Brown and Root, Inc.

National Labor Relations Board - Board Decisions

Jul 31, 1961

132 N.L.R.B. 486 (N.L.R.B. 1961)

486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has frequently held that in determining the status of
persons alleged to be independent contractors , the Act requires the
application of th,; "right of control" test.' Where the person for
whom the services are performed retains the right to control the
manner and means by which the result is to be accomplished the rela-
tionship is one, of employment, and where control is reserved only as
to the result sought the relationship is that of independent contractor.
On the basis of the entire record it is clear that both the driver-owners
and driver-renters do not possess the independence of action as to the
manner and means of accomplishing their work which is an essential
characteristic of an independent contractor. Accordingly, we find the
driver-owners and driver-renters are employees within the meaning
of Section 2(3) of the Act,4 and we find that the following employees
of the Employer constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9(b) of the Act:
All drivers of taxicabs at the Employer's St. Louis, Missouri, place
of business, excluding all other employees, office clerical employees,
guards, watchmen, and supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
'Albert Lea Cooperative Creamery Association , 119 NLRB 817, and cases cited in
footnote 18.
4 See, Albert Lea Cooperative Creamery Association , supra; Nu-Car Carriers, Inc, 88
NLRB 75.
Brown and Root, Inc., Wunderlich Contracting Company, Peter
Kiewit Sons Company, Winston Bros . Company, David G.
Gordon, Condon-Cunningham Co., Morrison-Knudson Com-
pany, Inc., J. C. Maguire & Company, and Chas. H. Tompkins
Co., doing business as joint venturers under the names of
Ozark Dam Constructors and Flippin Materials Co. and Fort
Smith, Little Rock & Springfield Joint Council , A.F.L. Case
No. 26-CA-111.1 July 31, 1961
SUPPLEMENTAL DECISION AND ORDER
On June 27, 1952, the Board issued a Decision and Order in the
above-entitled case, finding that Respondents had discriminated
against certain named employees in violation of Section 8 (a) (1)
and (3) of the Act? Thereafter, the Board's Order was enforced-in
part by the United States Court of Appeals for the Eighth Circuit,
and a decree was entered on September 18, 1953, against Respondents
doing business as joint venturers under the name of Ozark Dam Con-
Formerly Case No 32-'CA-111.
2 99 NLRB 1031 . On August 15, 1952, the Board issued an Order Correcting Decision
and Order , hereinafter attached as Appendix A.
132 NLRB No. 38.
BROWN AND ROOT, INC., ETC. 487
structors.3 The decree provided, inter alia, that Respondents make
whole the employees named therein for any loss of pay suffered by
reason of Respondents' discrimination against them.
On January 4, 1957, the Regional Director for the Fifteenth Region
issued a backpay specification and on July 9, 1957, Respondents filed
an amended answer thereto.4 Upon appropriate notice issued by the
Regional Director, a hearing was held before Trial Examiner James
R. Hemingway, for the purpose of determining the amounts of back-
pay due the claimants.
On January 8, 1960, the Trial Examiner issued his Supplemental
Intermediate Report, attached hereto, in which he found that certain
of the claimants were entitled to specific amounts of backpay. There-
after, Respondents and the General Counsel filed exceptions to the
Supplemental Intermediate Report, and supporting briefs.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Rodgers, Leedom, and Fanning].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed.5 The Board has considered the en-
203 F. 2d 139 , petition for rehearing denied 206 F. 2d 73. The Board 's Order was set
aside insofar as it pertained to Respondents doing business under the name of Flippin
Materials Co.
* On March 23 and 27, 1957, oral argument was held before Trial Examiner C. W.
Whittemore on a motion by the General Counsel to strike portions of Respondent's first
answer to backpay specification . Thereafter , upon the filing of Respondents ' amended
answer, the parties entered into a stipulation whereby the General Counsel's motion to
strike was withdrawn.
During the course of the hearing , Respondents submitted to the Board an inter-
locutory appeal from a ruling of the Trial Examiner permitting the General Counsel to
introduce into evidence 13 reels of microfilm , containing approximately 26,000 documents
from Respondents ' payroll records and personnel files. The Board, by telegram to the
parties dated August 8, 1958, affirmed the Trial Examiner's rulings and on August 20,
1958, denied Respondents ' request to appeal further on this matter . Respondents con-
tend they were denied a fair hearing by the use of the microfilms , particularly the Trial
Examiner's utilization of them in the "secrecy " of his chambers , and allege that in all
instances the Trial Examiner used the films to support the accuracy of the General
Counsel 's computation
The backpay period in the present case covers several years The pertinent records
were stored by Respondents in their private vaults , and Respondents refused to relinquish
them on the grounds the records had to be kept intact for pending litigation before an-
other governmental agency. Board agents thereupon obtained permission from Respond-
ents to make microfilmed copies of the records for use in computing the amounts of back-
pay due the claimants. These films , along with a projector , were made available to
Respondents during the hearing, as required by the Board's interlocutory decision. In
addition , Respondents at all times had in their possession the original copies of the
reeords.
We note that , at the commencement of the hearing, several days were devoted to verifi-
cation and explanation of the microfilmed records, and thereafter they were projected and
examined in the hearing room whenever an issue arose involving their contents Respond-
ents readily stipulated as to their authenticity . Under the circumstances , we fail to see
how Respondents were prejudiced because the Trial Examiner , after the hearing, used the
microfilms in comparing and verifying the various backpay computations before him
Contrary to Respondents ' contention, in several instances the microfilmed records were
used by the Trial Examiner to Respondents ' benefit. ( See, e g , the computation in re-
gard to Harvey E. Marehant .) In sum, we find no merit in Respondents ' aforesaid
contentions.
488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tire record in this case, including the Supplemental Intermediate
Report and the exceptions and briefs, and hereby adopts the findings,
conclusions, and recommendations of the Trial Examiner, with the
exceptions, additions, and modifications set forth below.6
1. THE GROSS BACKPAY FORMULA
As the parties were unable to agree on the amounts of backpay due
the claimants, in accordance with the Board's Rules and Regulations,
the General Counsel issued a backpay specification which was served
on Respondents on January 4, 1957. The specification computed the
amounts of backpay due each claimant under a comprehensive back-
pay formula, set forth in the specification and described in detail in
the Intermediate Report. In essence, the General Counsel's formula,
computes the average hours of all employees working in each claim-
ant's job classification, for each week of the period of discrimination
found by the Board and the Eighth Circuit, supra. These average
hours, which are taken to be the closest approximation of the number
of hours which would have been worked by such claimant absent the
discrimination, are multiplied by the appropriate hourly wage rate to
arrive at the proper amount of gross backpay due each claimant.7
Respondents contend that the General Counsel's backpay formula
is punitive rather than compensatory, and that it substantially over-
states the amount of backpay due each claimant. As an alternative,
Respondents have submitted their own proposed backpay formula,
which is discussed below. The Trial Examiner found the General
Counsel's formula to be the "most appropriate" under the circum-
stances, and computed the amounts of backpay due accordingly.
Respondents except to the Trial Examiner's ruling.
We have carefully analyzed the backpay formula proposed by the
General Counsel, and find, in agreement with the Trial Examiner,
that it provides the most accurate method in the present case for
determining the amounts of gross backpay due the claimants. Be-
cause of the intermittent nature of construction work, it is unlikely
that the claimants involved herein would have worked regular, suc-
cessive 40-hour weeks throughout their backpay periods, in the ab-
sence of discrimination. Rather, their work experience would most
likely have resembled that of other, comparable employees during the
relevant periods. Contrary to Respondents' contention, the utiliza-
We deny Respondents ' request for oral argument , as the record and briefs adequately
present the issues and the positions of the parties
These computations were made by the General Counsel with the assistance of a Board
senior industrial analyst Certain adjustments were made in the formula to accommodate
such factors as overtime and employees working in more than one job category. We
adopt the Trial Examiner 's use of these adjustments , as they conform to the Board's prac-
tice in previous backpay cases . See, e.g., Ozark Hardwood Company, 119 NLRB 1130,
1158, enfd . as modified 282 F. 2d 1 (C.A 8).
BROWN AND ROOT, INC., ETC. 489'
tion•of the average adjusted hours of comparable employees in arriv-
ing at gross backpay amounts is not a novel formula, "punitively"'
chosen for use against Respondents in the present case. The same
formula has been approved by the Board in numerous cases involving-
similar circumstances.8
Respondents contend that the average adjusted hour method is in-
appropriate in the present case, as Respondents' work force after the-
strike declined to such an extent that insufficient work would have
been available in any event for the returning strikers. Thus, while
acknowledging that the Board in its original decision found replace-
ments in a number equaling or exceeding the claiming unfair labor
practice strikers,' Respondents urge that the General Counsel's for-
mula makes no allowance for a later decline in the number of replace-
ments, and in the specific amount of work assigned to those replace-
ments. These arguments, we find, are not in accord with the record
evidence. Respondents' own exhibits indicate that their work force
numbered approximately 600 at the termination of the strike in
December 1949, and thereafter remained at that level, or higher,,
throughout 1950, except for the weeks of the January ice storm and
the May flood.10 Moreover, we have found that, in every instance
but one," the number of replacements in each job category continued
throughout each quarter of the backpay period to be equal to, or in
excess of, the number of claimants for that period.12
In place of the backpay formula adopted by the Trial Examiner,
Respondents suggest a formula whereby the total work actually per-
formed by replacements would be divided among all the strikers.
Respondents point out that the figures obtained by this " lump sum"
method are "relatively small," whereas those obtained under the
8 See, e.g., Friedman-Harry Marks Clothing Company , Inc., 1 NLRB 411 , 431, enfd.
301 11 S. 58 ( point not discussed). See also Kartarik, Inc, 111 NLRB 630, 633, enfd:
227 F . 2d 190 ,, 192-193 ( C.A. 8) ; The Babcock & Wilcox Company, 121 NLRB 26, 29;
Ozark Hardwood Company, supra
O The LAM, or "economic" strikers , are dealt with in section V, infra.
10 Any decline in available work during these weeks is automatically reflected in lower
average adjusted hours as computed under the General Counsel's formula.
" See Appendix B, a worksheet containing a chart of replacements 'as of each quarter
of the backpay period . (This chart , except where specifically indicated , considers as re-
placements only those employees named as such in Respondents ' own backpay exhibits )
The exception referred to above occurred in the case of jackhammer operators. As the
record reveals that jackhammer operators performed work virtually identical to that of
air tool operators , we have treated these job categories as interchangeable ; the payroll
records indicate that in fact employees moved between these categories from week to week.
12 Although we have found , infra, reinstatement at Flippin to be substantially equivalent
reinstatement , we have not included Flippin vacancies in our calculation of available posi-
tions for Ozark strikers , as we have found sufficient positions available at Ozark. Cf.
Eagle-Picher Mining & Smelting Company, 16 NLRB 727, 119 F. 2d 903 (C.A. 8 ), relied
on by Respondents, where the Board specifically found that the number of claiming
strikers exceeded the number of positions available after the strike . It might be noted
that, upon later discovering sufficient positions available for the claimants , the Board
sought, albeit unsuccessfully for procedural reasons, to withdraw 'the lump sum formula.
141 F 2d 843, 325 U.S. 335
490 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Counsel's formula are substantial. However, analysis re-
veals that the posed disparity is attributable not to a "declining work
force," as alleged by Respondents, but rather to fundamental errors
in Respondents' application of their own formula. For example,
Respondents have sought to divide the available work among all
strikers, and not merely among those for whom the General Counsel
claims backpay. Thus, although the General Counsel claimed back-
pay for only 27 carpenters, Respondents propose to divide the "avail-
able work" by 73, the total number of carpenters appearing on the
Joint Council's lists. Some of these, as the Board has found, did not
properly request reinstatement and were not reinstated. There is,
therefore, no valid reason why Respondent should be permitted to
receive credit for other possible backpay claims never presented to it,
and of course never paid by it. Respondents' duty was to reinstate
those unfair labor practice strikers who properly requested reinstate-
ment and were available for work, and they may not plead in mitiga-
tion of this duty the fact that there were other strikers who might
have requested or accepted reinstatement, but did not do so. In addi-
tion, some of the strikers for whom no backpay is claimed were actu-
ally put back to work. While Respondents' formula seeks to allocate
the available work among all strikers, including those actually re-
instated, it does not include in the allocable total the work actually
performed by the reinstated employees.13
We note also that Respondents seek to credit the backpay claimants
with only a fraction of the work actually performed, but offset
against this the total interim earnings of the claimants. The sug-
gested computation would be contrary to Board practice and unfair
even under a lump sum method of computation."'
The Board has been entrusted with broad discretion in choosing
an appropriate backpay formula, as warranted by the circumstances
1D In determining the question of "available work" under their formula, Respondents
propose to reduce the number of replacements contributing to this total by the number of
promotional replacements who might have been reassigned to old jobs in replacements' job
classifications, thereby reducing the allocable total. Respondents justify this approach
by the Board 's statement , in "The Remedy" section of the original decision , that "if there
are not sufficient positions available in appropriate classifications, the Respondents shall
make room for the employees ordered reinstated by dismissing or demoting , to the extent
necessary , employees occupying such classifications, who were hired or promoted to such
classifications after December 3, 1948 ." (99 NLRB at p 1062 ) However, contrary to
Respondents ' assumption , the record shows that in many instances , there were sufficient
replacements in claimants ' job classifications, aside from promotional replacements, to
make room for the claimants . Thus, the job shifts assumed by Respondents in many
instances were not, in fact, necessary. This becomes clearer when it is noted that
Respondents ' formula reassigns virtually all promotional replacements , including those
holding jobs of strikers not even involved in this proceeding . In any event, in our view
the reassignment of promotional replacements is relevant at the compliance stage herein
only in determining the appropriateness of the backpay formula. Under all the circum-
stances, we have found infra the "average adjusted hours" formula to be appropriate in
the present case.
14 See, e.g., Ford Motor Co., 29 NLRB 873, 912-913.
BROWN AND ROOT, INC., ETC. 491
of each case.15 It is necessary only that the formula utilized - be
reasonable and fair in carrying out the terms of the Board's Order.'
In the present case, we find the formula proposed by the General
Counsel and on analysis accepted by the Trial Examiner to be reason-
able and fair, and we adopt it in computing the amounts of backpay
due the claimants.
H. SHIFT DIFFERENTIAL
Prior to the strike, certain of the claimants received, in addition to
their regular wage rates, a premium differential of $0.05 an hour for
working on the "graveyard" shift. The General Counsel computed
backpay for such claimants on the assumption that they would have
continued to receive the premium rate in the absence of discrimina-
tion. However, the Trial Examiner omitted the premium differential
on the theory that no claimant had any "fixed right or privilege" to
it, and might not have continued to receive it even in the absence of
discrimination.'7
We find merit in the General Counsel's exception. The fact that
the shift premium was not guaranteed to the claimants is, we find,
irrelevant." If a preponderance of the evidence indicates that the
claimants would have been paid at the premium rate, absent dis-
crimination, they are entitled to receive such a rate in the computa-
tion of their backpay. In this connection, the record indicates that
a substantial number of replacements in several of the classifications
worked the "graveyard" shift throughout the period of discrimina-
tion, and that all such replacements were paid the premium rate.
Accordingly, in such classifications, where a particular claimant was
regularly paid the premium prior to the strike, we find it reasonably
inferable that he would have continued to receive the premium in
the absence of discrimination. A study of Respondents' payroll re-
veals that a substantial number of replacements in the classifications
of aggregate conveyor operator, batch and mix operator, and pump
operator worked the "graveyard" shift and received the shift differen-
tial following the strike. Therefore, claimants in the aforementioned
categories who received the premium prior to the strike are, we
find, entitled to such differential in the computation of their gross
backpay.19 We shall revise the Trial Examiner's computations
accordingly.
15 Phelps Dodge Corp . v. N.L.R.B., 313 U.S. 177, 198.
15Kartarik, Inc, supra ( 227 F. 2d 190, 192-193 ) ; Ozark Hardwood Company, supra
(282 F. 2d at p. 7).
17 The Trial Examiner awarded the shift differential to three claimants who were
eventually reinstated to the "graveyard" shift. We adopt such findings insofar as they
are consistent with our holding infra.
>e West Texas Utllstles Company, Inc , 109 NLRB 936.
19 Claimants thus entitled to shift differential are Onimus Kyles , James R. Marler,
and W. W. Lackey.
492 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. REINSTATEMENT BY FLIPPIN MATERIALS CO.
In its opinion in the enforcement proceeding, the Eighth Circuit
denied the Board's Order of reinstatement as to employees of Flippin
Materials Co., finding that Flippin and Ozark were separate em-
ployers for purposes of determining the nature of the strike.. The
General Counsel construed the foregoing to require that Flippin and
Ozark be considered as separate entities for all purposes, and com-
puted backpay for Respondents' employees on the theory that re-
instatement to Flippin vacancies could not be considered substantially
equivalent employment for claiming Ozark strikers, but merely em-
ployment producing deductible interim earnings.
We agree with the Trial Examiner's rejection of this approach,
for the reasons stated in the Intermediate Report. In addition, we
note the Board's original decision contained the following finding:
In the circumstances of this case, as revealed herein, we believe
and find that all parties understood such vacancies to be avail-
able at both Flippin and Ozark. As we have already noted, most
of the strikers were ultimately offered reinstatement and re-
instated without regard to any distinction between their Flippin
or Ozark status at the time of the strike. (99 NLRB at p. 1046,
footnote 30.)
The Eighth Circuit did not disturb this finding, and we adopt the
Trial Examiner's conclusion on this point .20
IV. RES JUDICATA
We agree with the Trial Examiner's ruling that Respondents may
not relitigate issues already decided by the Board and court at earlier
stages of this proceeding. Thus, such matters as the status of em-
ployees as strikers, the authorization of the Joint Council to submit
reinstatement applications for strikers, the effect of Respondents'
communications with Council, and the merits of Respondents' "over-
load" theory as a defense have already been considered and passed
upon in the earlier case,21 and further contentions as to these ques-
tions are not relevant in this proceeding.22
20 Member Leedom would not find that reinstatement at Flippin is the equivalent of
reinstatement at Ozark. In view of the decision of the court of appeals in the enforce-
ment proceeding , he thinks that Ozark and Flippin should be treated as separate em-
ployers for all purposes . He would , however , toll backpay for those Ozark strikers
reinstated at Flippin from the date of the original Intermediate Report to the date of
the court 's decision.
21 We find no merit in Respondents ' contention that the Charging Party is not a labor
organization . The issue has been fully litigated in a previous proceeding on the merits.
Council was certified by the Board as bargaining representative for certain of the em-
ployees, and the Board in that proceeding found that Council was a labor organization
within the meaning of the Act. See Brown and Root, Inc , at al ., d/b/a Ozark Dann
Constructors , 77 NLRB 1136, 1138-1139. Moreover , neither the Act nor the Board's
Rules and Regulations require that an unfair labor practice charge be filed by a labor
organization . See Rules and Regulations ( Series 8 ), Section 1029.
21 Cf. Monroe Feed Store, 122 NLRB 1479 , 1484 . Respondents imply that the Eighth
Circuit reserved judgment as to the "bona fide" character of Council 's January 15, 1950,
BROWN AND ROOT, INC., ETC. 493
At various stages of the compliance proceeding, both parties, as
well as the Trial Examiner, have alluded to certain mechanical and
-factual errors in the Board's prior decision, relating to such matters
as dates, names, etc. Where we have found such errors to have been
made, we have corrected them under our specific reservation to that
effect in the prior proceeding 23 All other alleged "errors," as in-
dicated in the prior paragraph, were substantive matters fully liti-
gated, and we shall not disturb our earlier findings on these points.
V. IAM STRIKERS
The Board in its original decision found that certain of the strikers,
represented in separate units by the IAM, were "economic" rather
than "unfair labor practice" strikers, and that they were therefore
,entitled to reinstatement and backpay only if vacancies existed at the
time they properly applied for reemployment. Of 36 complainants
in the IAM classifications, the Board found on the evidence that 13
had made such proper application for employment, and referred for
-compliance investigation the determination as to whether suitable
vacancies existed at the time of these strikers' applications.
The General Counsel's backpay specification alleged that suitable
vacancies for the 13 IAM strikers occurred on various dates between
January 5 and March 24, 1950, and assigned to each striker one of
the vacancies, computing backpay for each from the date the par-
ticular vacancy assigned to him became available a' The Trial
Examiner rejected this approach on the ground that it improperly
assumes Respondents had a duty to seek out the economic strikers
when vacancies became available after their application. As the Trial
Examiner found no vacancy in the appropriate classification to have
existed on the date any IAM striker applied for employment, he
found that, under the Board's original Decision, none of the IAM
letter to Respondents , requesting reinstatement for certain strikers . This 1s clearly not
the case, 203 F . 2d 139 at p . 147. The court's opinion merely directed the Board in
compliance proceedings to determine whether the strikers on the January 15 list were
available for reemployment during the backpay period , and whether positions were avail-
able for them. We have, infra, carefully considered all the evidence presented on these
matters, and the Trial Examiner has done likewise . See, e .g., his findings , which we
adopt, that Flippin , Harris, and Kent , whose names appeared on the January 15 list,
were not available for reemployment.
2399 NLRB at p. 1063. We deny the General Counsel 's motion to correct the prior
Board finding as to the substantial equivalence of Haynes ' reinstatement as a laborer
(99 NLRB at p. 1060 , footnote 56). All facts in connection therewith were known to
the Board and considered in the prior proceeding, and that issue may not now be re-
litigated . In any event , the General Counsel has not excepted to the Trial Examiner's
finding that Haynes is due no backpay because he made an inadequate effort to find
interim employment , and we adopt that finding pro forma . The General Counsel's con-
tention as to Alvie Boyd, an IAM striker , is rendered moot by our determination , onfra,
regarding the IAM strikers as a group.
24 These vacancies were assigned to the strikers on the basis of comparable wage rates.
Where two claimants were "competing " for the same vacancy, seniority was used to
establish a priority.
494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
strikers had been discriminated against, and therefore that no back-
pay was due them. The General Counsel excepts to this ruling.
Like the Trial Examiner, we are constrained to hold the evidence
presented by the General Counsel insufficient to establish that vacan-
cies were available when the IAM strikers applied to Respondents for
employment 25 Moreover, we reject the theory urged by the General
Counsel, to the effect that the 13 IAM strikers were entitled to appro-
priate vacancies as they arose. The record discloses that Respond-
ents' normal employment practice was to hire "the first man that came
up that could fill the bill." There is no indication that Respondents
normally placed other applicants for employment on a preferential
hiring list, or later notified them when vacancies became available.
In the circumstances of this case, we hold that Respondents had no
obligation to seek out or prefer the JAM strikers for vacancies which
opened up after their application.26 We therefore adopt the Trial
Examiner's ruling on this point.
We find no independent evidence in the present case that Respond-
ents, in denying the 13 IAM strikers reemployment at the time of
their request, were motivated unlawfully, or motivated other than by
an actual absence of vacancies.27 On the contrary, we note that all
the 13 IAM strikers who requested reinstatement were eventually re-
instated by Respondents to an available position, or offered reinstate-
ment which they declined.
Accordingly, under all the circumstances, we find, with the Trial
Examiner, that the IAM strikers were not discriminated against, and
are not entitled to backpay.28
21 The General Counsel contends , inter alia, that on January 3 , 1950 , Respondents
stated In a letter to the Joint Council that there were vacancies for three thin-wall
tubing installers, five oilers , and one pipefitter ( see original Board Decision , 99 NLRB at
p. 1045, footnote 29), and that these classifications were in reality those possessed by
certain of the IAM claimants prior to the strike , the change in name being occasioned
by a subsequent Davis-Bacon Act reclassification This contention was made for the
first time by the General Counsel in his brief . The backpay specification does not allege
that the TAM strikers were entitled to the January 3 vacancies , and the General Counsel
has failed to identify these vacancies on Respondents ' subsequent payrolls, or to compute
backpay for the claimants on this basis . Thus, Respondents had insufficient notice of
the General Counsel's position on this matter , and the issue was not litigated at the
backpay hearing . Accordingly , even assuming that certain of the IAM strikers were
entitled to jobs in other classifications , which is not at all clear from the record, we
cannot under the circumstances find that the January 3 vacancies were available for, and
appropriate to, the IAM strikers as of the times of their applications for reemployment.
"0 See Atlas Storage Division, P & V Atlas Industrial Center, Inc , 112 NLRB 1175,
footnote 15, enfd 233 F. 2d 233, 237-238 (C .A. 7), where the Board held that a com-
pany had no duty to seek out an economic striker when no vacancy existed at the time
of his request to return to work , but became available sometime thereafter . The Board
stated that the company 's duty was merely to refrain from discriminating against the
striker should he request employment again See also California Cotton Cooperative
Association Ltd, 110 NLRB 1494, 1502
77Cf Anchor Rome Mills, Inc., 110 NLRB 956, 957-959, enfd . 228 F. 2d 775 ( C.A 5),
cert denied 352 U S 802.
21 These claimants are Harold Arrowsmith , Alvie Boyd , Houston D Crosby, Lewis E.
Davis, Raymond A. Hotalling , Thomas E Hurst , Corley O. Langston , T. A. Marchant,
V. O. Miller , Samuel J. Pearl, Harry Ivan Satterlee, Ewell D. Smith, and Dewey F.
Trivett.
BROWN AND ROOT, INC., ETC.
VI. CLAIMANTS NOT TESTIFYING
495
Pursuant to the Board's Order, as enforced by the Eighth Circuit,
the backpay specification claimed backpay for 75 former strikers. Of
these, 40 appeared in person at the backpay hearing, testifying as to
their attempts to secure interim employment, and the amounts of their
interim earnings, if any., Certified earnings records of the Social
Security Administration were offered by the General Counsel as to
71 of the 75 employees, and certain affidavits, personnel files, and
other relevant documents were also offered.
In his Intermediate Report, the Trial Examiner awarded backpay
to 20 of the 35 claimants who failed to testify, inferring their avail-
ability for employment with Respondents from social security earn-
ings reports, interim earnings admitted by the General Counsel, or
subsequent reemployment by Respondents. He denied backpay to
eight of these claimants, finding no evidence of their availability for
employment. Respondents except to the Trial Examiner's finding of
backpay for the 20; the General Counsel excepts to his dismissal as
to the 8.29
The Trial Examiner correctly notes that there is no rule requiring
the General Counsel to produce all backpay claimants for examina-
tion by Respondents. On the contrary, it is well established that the
burden is on Respondents to prove that a claimant willfully incurred
loss of earnings during his backpay period, or for some other reason
is not entitled to receive backpay for the period of discrimination 30
It is true that, in proceedings of this sort, the General Counsel cus-
tomarily undertakes to produce as many claimants as possible. How-
,ever, the General Counsel's function in this connection is merely ad-
-v-lsory and cooperative in assisting generally to assemble evidence.
In the pr"tsent case, the General Counsel was admittedly diligent in
attempting to produce claimants. Respondents concede this in their
brief, and admit that they themselves made no effort to produce the
missing claimants.31 We find no error in the Trial Examiner's award
.of backpay to the 20 claimants not appearing in person at the back-
pay hearing, and as to whom periods of discrimination have already
29 Of the remaining seven who did not testify , four were IAM strikers , for whom we
have found no backpay in any event ( Arrowsmith , Davis , Miller, and E D. Smith).
The other three ( Choate, Hayes, and Petty ) present special situations , and no exceptions
have been filed to the Trial Examiner ' s findings as to them
$0 Ozark Hardwood CO, supra ( 119 NLRB at p 1134) ; Alaska Chapter of Associated
General Contractors of America, Inc, 119 NLRB 663, footnote 21
31 Respondents contend they relied on a promise by the General Counsel to produce
the claimants . However, the record discloses no such promise . On the contrary, the
General Counsel repeatedly stated at the hearing that the burden of proof as to willful
idleness and interim earnings rested upon Respondents , and intimated that some claimants
would not be called by it because the amounts of their backpay were small , and the dis-
tances they would have to travel would be too great.
496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been found by the Board and approved by the Eighth Circuit.12 We=
shall award these claimants the following amounts of backpay : 13
Bailey, Benjamin W-11 --------------------------- $1,276Beal, Jones P.35 ................ _______________ __________________P35
Blecker, Robert R-------------------------------
Carlton , H . L.38--------------------------- ------
Cloven, George----------------------------------
Drown, Wm. H 37
James , John H----------------------------------
Jencks, R. H------------------------------------
Killian, D . E.38................................ =-
Kyles , Onimus 38---------------------------------
Landry, C. C-----------------------------------
Lazenby, A . M----------------------------------
Mashaw , J. W----------------------------------
Mooney, Carl40............. .....................
Pfingston,Jake----------------------------------
Smith, Elbert C_________________________________
Stamps , C. D41---------------------------- ------
367
81
571
208
100
214
401
191
4, 708
1, 093
1,466
66
468
307
345
367
82 See Earl I. Si/ers, d/b/a Si/era Candy Company, 92 NLRB 1220 , 1246-1247; Hall'
Transportation Company, 102 NLRB 1015 , 1016, 1024 . Cf E/co Manufacturing, Inc,
111 NLRB 1032 , 1035, where no backpay was awarded a witness who was asked to appear
and refused . There is no contention in the present case that any claimant expressed
such a refusal to appear.
ss Except where indicated , these amounts coincide with those computed by the Trial
Examiner in his Intermediate Report.
ss We grant the General Counsel 's motion to add Benjamin W. Bailey's name to-
Schedule B of the Board 's original Decision , from which it has heretofore inadvertently
been omitted . The Trial Examiner mistakenly found that Benjamin W. Bailey's name
had been added to Schedule B by the Board 's correcting order of August 15, 1952,
attached hereto as Appendix A. We also hereby correct that portion of the correcting
order adding the name of "Alvie Boyd" to Schedule B of the original Decision ; "Alvie
Boyd" should read "Arnold , Hayes G."
as Though correctly computing Beal's backpay , the Intermediate Report inadvertently
lists, in the computation section, Beal 's backpay period to end on February 3 The
correct date is February 14
as The Board's original Decision found that Carlton was offered reinstatement by Re-
spondents on March 6 , 1950 ( 99 NLRB at p. 1053 ). At the backpay hearing, the General
Counsel's motion to correct this finding to July 25, 1950, was referred to the Board by
the Trial Examiner. We grant the General Counsel's motion, as it is clear that our
earlier finding was a mechanical error. All the evidence , including Respondents' own
exhibit at the original hearing, indicates that Carlton was offered reinstatement on
July 25, 1950. We have revised the Trial Examiner 's computations accordingly (See
Appendix D.)
as Although Drown did not personally testify, Houston A. Jones, a contractor, testified
that Drown worked for him during the backpay period, and Jones verified the amount
of Drown ' s interim earnings
sa In the absence of exceptions by the General Counsel , we adopt the Trial Examiner's
finding that Killian's earnings of $192 for the first quarter should be deducted from his
gross backpay in their entirety.
RD In accordance with our finding , supra, section II, we have recomputed Kyles' back-
pay to include the $0 .05 per hour shift differential.
"The Intermediate Report contains a typographical error, in that Mooney's backpay
period ends July 25, 1950 , instead of July 25, 1959
"The Board Decision left for compliance investigation the determination as to when
a vacancy first became available for Stamps (99 NLRB at p 1054) Although Respond-
ents' payroll Indicates that a replacement was hired in Stamps ' job classification as early
as January 12, 1950, the backpay specification claims backpay for Stamps no earlier than
February 3, 1950. We adopt the Trial Examiner 's utilization of February 3, 1950, as
the date for commencing the computation of Stamps ' backpay.
BROWN AND ROOT , INC., ETC. 497
Stone, C. L-------------------------------------- $509
Walker, V. B.42---------------------------------- 157
Wood, Russell T--------------------------------- 365
As to the other eight employees, we find merit in the General
Counsel's exception. The Board has already found that these em-
ployees were discriminated against on certain dates when they applied
for reemployment with Respondents, and were refused. Thus, as
stated above, the burden of proof in this proceeding is on Respond-
ents to show that these employees were not in the labor market during
the backpay period, or for some other reason were not entitled to
backpay. We do not think that the failure of the General Counsel
to call these employees to testify, or to discover evidence as to their
interim earnings, is a substitute for affirmative evidence by Respond-
ents on these matters.43 Accordingly, we shall award backpay to these
eight claimants, in the following amounts : 44
,Dorell, Chas------------------------------------- $2,694
Ford, Jason S----------------------------------- 529
Freeman A. D---------------------------------- 2,175
Lynch, S^. L------------------------------------- 1,689
Mashaw, Roy------------------------------------ 455
Patton, H. C------------------------------------ 455
Rains, Willis---------------------------------- 455
Wells, John D---------------------------------- 1,148
Particularly in the circumstances of this case, we believe that the
award of backpay, in the above amounts, to 28 claimants who did not
testify is legally proper and binding upon Respondents. The pres-
ent case has been in litigation for an inordinate length of time; it
must finally be brought to a close. In this context, we nevertheless
desire to afford Respondents some reasonable opportunity to examine
these claimants before the awarded backpay is turned over to them.
Accordingly, the Regional Director is instructed to hold in escrow
the amounts of backpay awarded the claimants who did not testify,
and to make suitable arrangements to accord Respondents, together
with the General Counsel's representative, an opportunity to examine
them as to their interim earnings and activities. The Regional Di-
rector shall make a final determination whether any interim earnings
or other amounts, in excess of those shown herein, are revealed which
are properly deductible from a claimant's backpay award under exist-
ing Board precedent. Where so determined, the Regional Director
shall make such deductions and return the amounts deducted to Re-
spondents. The Regional Director is further instructed to report to
42 Walker died January 3 , 1953. Respondents ' first amended answer admits that
Walker made a reasonable search for employment during his backpay period.
43 Although some discriminatees were not called to testify , the General Counsel
claimed no backpay for those who, it was learned, were not in the labor market. See,
e.g., Herman E . Hayes.
" See Appendix C for our computations as to these claimants.
498 DECISIONS, OF NATIONAL LABOR RELATIONS BOARD
the Board when these matters have been finally resolved, and in any
event no later than 1 year from the date of this Supplemental Deci-
sion, the status of these cases at such time.
VII. THE INDIVIDUAL CLAIMANTS WHO TESTIFIED AT THE BACIU'AY HEARING
Thirty-one claimants , other than the IAM strikers , testified at the
backpay hearing. We adopt the Trial Examiner's findings in their
entirety as to 13 of these claimants, and award them the following
amounts of backpay, as found by the Trial Examiner :41
Francis Flippin --------------------------------- 0
E. E. Harris ------------------------------------ 0
Geo. W. Haynes --------------------------------- 0
W. A. Kent ------------------------------------- 0
Donald C. Plymate ------------------------------ 0
D. W. Bailey ----------------------------------- $533
J. B. Brents ------------------------------------ 455
V. W. Cooper ----------------------------------- 1,009
F. P. Marberry ---------------------------------- 375
James R. Marler -------------------------------- 2 155
T. H. Parris ------------------------------------ 2,806
Robert M. Rutledge ----------------------------- 1,284
Hoy Shaw -------------------------------------- 75
As to the remaining 18 claimants who testified, we adopt the Trial
Examiner 's findings and recommendations, with the following
modifications :
1. Truman E. Anderson: During the strike, Anderson was employed
as a teacher at Southern Baptist College, 135 miles from the dam
project . Pursuant to a telegram from his local , Anderson reported to
Respondents for employment on January 3,1950, but, as the Board has
found, was discriminatorily denied reinstatement. Anderson's job at
the college was taken when he returned.
Respondents contend that Anderson voluntarily quit profitable in-
terim employment, and therefore should be denied backpay. We do
not agree. This is not a case where, during the backpay period, a
claimant has quit one job to look in vain for another.41 Here, Ander-
son quit his teaching job solely for the purpose of ending the strike and
applying for reinstatement with Respondents. His employment at the
college therefore did not occur during the backpay period, but prior
to it. Accordingly, we agree with the Trial Examiner's finding that
Anderson did not abandon employment during the backpay period 47
2. J. N. Bevan, Jr.: It was stipulated that Bevans made a reason-
able search for employment. We adopt the Trial Examiner's finding
that Bevans' earnings at Silas Mason, reported on the social security
'O No exceptions were filed to the Trial Examiner 's findings as to Flippin , Harris, Kent,
and Plymate Accordingly, we adopt these findings pio forma See footnote 23, sapaa,
as to Haynes
40 Cf , e g, Ozark Hardwood Co., supra ( 119 NLRB at p 1139).
47 See West Texas Utilities Co., Inc, supra, at 946
BROWN AND ROOT, INC., ETC. 499
records for the period ending March 30, 1950, did not occur during the
backpay period ending March 8, 1950. We rely in particular on
Bevans' specific testimony that his earnings at Mason took place after
March 20, 1950, and on Respondents' admission that Bevans had no'
earnings during the backpay period.
3. Glenn H. Bonner: Bonner's period of discrimination extends
from January 15 to July 29, 1950, as found by the Board in the prior
proceeding. Respondents content that Bonner was out of the labor
market from February to April 1950, when, Respondents allege, he
was repairing his house. Bonner's testimony at the backpay hearing
was confused as to dates, but he testified that an affidavit executed by
him on January 12, 1954, reflected the dates more accurately. Bonner's
affidavit indicates that he worked on his house in February 1950, and
that his grocery and hauling jobs took place between March and July
1950, as found by the Trial Examiner. The General Counsel claims no
backpay for Bonner during January and February 1950, when, as we
find, he was repairing his house and becoming accustomed to his arti-
ficial-eye. We adopt the Trial Examiner's findings and computations
as to Bonner's 'backpay.
4. Lee R. Cutler: The Trial Examiner found that Cutler earned $25
during the backpay period cutting wood, prior to working on Reed's
farm, but inadvertently failed to deduct this sum as interim earnings.
We shall make this deduction 48
5-Eugene N. Cypert: Respondents contend that Cypert held a per-
sonal grudge against Ozark because of an incident involving his father,
and would not have accepted reinstatement in any event. However,
in a letter,to Ozark's superintendent dated January 1, 1950, Cypert
specifically requested reinstatement to the project, "without malice."
We therefore find no merit in Respondents' contention.
Respondents also allege that, because of his hearing defect, Cypert
was physically unfit for reinstatement. However, the record indicates
that, on March 21, 1950, Cypert was reemployed by Flippin as a car-
penter, doing substantially the same kind of work he had done pre-
viously. Cypert apparently could hear satisfactorily with his hearing
aid, as he was able to answer questions put to him at the hearing. We
find that Cypert's defect did not render him unfit for reemployment
as a carpenter at the damsite.
Although Cypert was reinstated by Respondents on March 21, 1950,
he received Respondents' offer of reinstatement on March 8, 1950. The
Board's prior decision inadvertently failed to find that Cypert's period
of discrimination ended March 13, 1950, 5 days after he received Re-
spondents' offer, rather than March 21, the date Cypert returned to
es It is unnecessary to infer, as did the Trial Examiner, that Cutler received no cash
benefits while working on the farm, as Cutler testified positively that he received no
such benefits
614913-62-vol 132-33
500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work. We hereby correct our prior finding and revise the Trial Ex-
aminer's computation as to Cypert's backpay. (See Appendix D.)
In our computations, we shall deduct $56 rather than $38 as Cypert's
interim earnings for the first quarter of 1950, the amount substantiated
by the social security reports and Cypert's own testimony.
6. R. V. Dunn: The Trial Examiner awarded Dunn backpay from
January 15 to July 25, 1950. Respondents except, on the ground that
Dunn was not in the labor market during this period.
After Dunn was discriminatorily refused reinstatement by Respond-'
ents on January 15,1950, he purchased a farm near his father-in-law's
residence. Thereafter, until June 25, 1950, Dunn had no employment
other than working on his farm. The record indicates that Dunn spent
his time during this period making improvements on his farm and
preparing the soil for fall harvesting. Starting on June 25, 1950, and
extending beyond the end of his backpay period, Dunn worked full
time at the Tennessee Valley Authority.
We do not agree with Respondents' contention that Dunn, was not in
the labor market during the backpay period. As the Board has held,
self-employment does not in itself indicate withdrawal from the labor
market 49 However, we note that Dunn reported no interim earnings
from his work on the farm. It appears that the only crop Dunn
actually harvested, cotton, was not sold until after the backpay period.
The amount of the proceeds from the cotton harvest does not appear
on the record. Under the circdmstances, we shall credit Dunn with an
amount equal to the average Arkansas farm laborer's income during
the period Dunn worked on his farm 50 The wages Dunn received
from his interim employment with the Tennessee Valley Authority,
will, of course, also be deducted. (See Appendix D for the compu-
tation of Dunn's net backpay.)
7. W. A. Gardner: The Trial Examiner lists Gardner's gross interim
earnings during the second quarter of 1950 as $527. Respondents con-
tend this figure should be $952.
The record indicates that, during the second quarter, Gardner earned
$473 from L. E. Myers, $130 from Broadway Electric Company, and
$270 51 from Bagby Elevator and Electric Company. Accordingly,
Gardner's gross interim earnings during the second quarter were $873.
As Gardner's allowable expenses were $91 for this quarter, his net
See ,Monroe Feed Store, supra, at 149G, and cases cited therein
so See the Trial Examiner's similar findings with respect to claimants Cutler and Lippe,
which we adopt The appropriate figures have been derived from United States Depart-
ment of Agriculture charts, introduced as exhibits in the backpay hearing
we do not adopt the Trial Examiner's general ruling with respect to crops cultivated
during the backpay period, but not harvested until afterward
6' This figure is Gardner's own estimate, as determined from his withholding state-
ments The social security records reflect only $54 from Bagby for this period We
accept Gardner's higher estimate
BROWN AND ROOT, INC., ETC. 501
interim earnings were $782. We shall revise Gardner's total back-
pay award accordingly.
8. Ray L. Hale : The Trial Examiner recommends backpay for Hale
in the amount of $597. Respondents except to this finding on grounds
that (a) Hale applied for reinstatement only as a foreman; (b) Hale
refl}sed reemployment in February 1950; and (c) Hale's testimony
should be stricken, as he was an eccentric and uncooperative witness.
We find no merit in these contentions. As to ( a) and (b), these
issues were decided in the unfair labor practice case and may not be
relitigated in this proceeding.52 As for (c), the record fails to disclose
a basis for finding that the Trial Examiner erred in admitting and.
considering Hale's testimony. Under the circumstances, and as it,
appears to us that ultimately Hale sufficiently answered all relevant
questions to the best of his ability, we deny Respondents' motion to
strike Hale's testimony.
9. Jessie A. Kil f oy : We affirm the Trial Examiner 's finding that
Kilfoy exercised due diligence in seeking interim employment. How-
ever, contrary to the Trial Examiner, we do not infer that, after June
1950, Kilfoy "may not have tried to get work through his union."
Kilfoy testified affirmatively that he registered for work with Local
382, Operating Engineers, throughout the backpay period, and kept
in contact with them "about every week or every two weeks." In find-
ing that Kilfoy exercised due diligence, we also take into considera-
tion Kilfoy's World War I injury, rendering him incapable of per-
forming certain types of manual labor.
10. W. W. Lackey: Although the Trial Examiner properly found
Lackey's backpay period to end May 21, 1951, he inadvertently com-
puted Lackey's backpay through part of the third quarter of 1951.
We shall revise the Trial Examiner 's recommended award accord-
ingly. (See Appendix D.) In conformity with our findings, supra,
as to shift differential, we shall credit Lackey with the premium rate
throughout his backpay period.
11. Frank J. Lippe : We agree with the Trial Examiner's conclu-
sion that Lippe diligently searched for interim employment during
his backpay period. However, we do not adopt his subsidiary finding
that Lippe "apparently did not register with the employment agency."
Lippe testified that he did register with the employment agency, and
checked with it every week for about 10 weeks, looking for a job.
In computing Lippe's backpay, the Trial Examiner utilized the
average adjusted hours of a single employee, J. H. McCracken. How-
63 We note incidentally that Hale testified at the backpay hearing that he applied for
reinstatement to "anything that was available . whether a foreman ' s job or what it might
be," and that his refusal of Moore ' s offer of a job was in February 1951 and not February
1950, as alleged by Respondents ( See the original Board Decision, 99 NLRB at p. 1053,
footnote 44 )
502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ever, once sufficient replacements have been identified in Lippe's clas-
sification (see Appendix B), the proper basis for computing Lippe's
backpay is the average adjusted hours of all employees in the clas-
sification of working foreman. We shall compute Lippe's backpay
on this basis rather than that utilized by the Trial Examiner. (See
Appendix D.)
12. Harvey, E. Marchant: We adopt the Trial Examiner's finding
that Harvey E. Marchant was not reinstated to a substantially equiv-
alent position until September 11, 1951, when he was offered his
former job of crane operator. However, contrary to the Trial Exam-
iner, we do not rely on the fact that Marchant's job of crane operator
may have been available throughout his backpay period. The Board
rejected a -similar finding of the Trial Examiner in the unfair labor
practice case, holding that one of the interim positions occupied by
Marchant may have constituted substantially equivalent employment,
despite the continued presence of crane operator replacements.63 The
question of substantial equivalence was left for compliance.
We agree with the Trial Examiner's ultimate conclusion that Mar-
chant's interim positions with Respondents were not, prior to Septem-
ber 11, 1951, substantially equivalent to his former position of crane
operator. Marchant was paid $1.75 per hour as crane operator prior
to the strike. Although, on December 4, 1950, Marchant was rein-
stated by Respondents to a job paying $1.8125 an hour (truck-tractor
operator), and'on April 2, 1951, to a job paying $2.125 an hour (struc-
tural ironworker), the record indicates that earlier, in November 1950,
the rate for crane operators had been raised to $2.25 an hour. Thus
at all times during his backpay period, prior to September 11, 1951,
M,archant was assigned to a job paying substantially less than Re-
spondents' prevailing rate for crane operators 54 We therefore shall
award Marchant the amount. of backpay recommended by the Trial
Examiner.
13. John TV. Marchant: On January 25, 1950, John W. Marchant
was reinstated to the position of mechanical repairman at a rate of
$1.50 per hour. Prior to the strike, Marchant was classified as an
ironworker at $1.75 per hour, and the Board in the unfair labor prac-
tice case found that Marchant's reinstatement as mechanical repair-
man was not substantially equivalent to his original job .15 However,
Respondents contend this finding was erroneous, as Marchant's prior
classification of ironworker was incorrect, and that it was changed in
the interim to mechanical repairman pursuant to Davis-Bacon Act
proceedings.
- 99 NLRB at p 1052
64 See the Board's finding as to John Marchant , 99 NLRB at p. 1055.
s-- 99 NLRB at p. 1055.
BROWN AND ROOT, INC., ETC. 503
Like the Trial Examiner, we believe these contentions should have
been raised in the unfair labor practice proceeding, when questions
concerning periods of discrimination were specifically-considered and
passed upon. However, we note that Marchant's testimony at the
backpay hearing, while it indicated some confusion as to his proper
formal classification, was emphatically that Respondents did not rein-
state him to his former position. Prior to the strike, Marchant ap-
pears to have held somewhat of a privileged position, working "on
his own" on several of Respondent's electric cranes. After the strike,
Marchant was assigned to work on diesel equipment in the quarry,
which, he testified, was less desirable because of the large amounts
of grease and dirt on the equipment. We affirm our prior finding
that Marchant was not reinstated to an equivalent position on Jan-
uary 25, 1950, and award Marchant backpay as computed in the Inter-
mediate Report.56
14. A. J. McFarland: McFarland's status as a striker was deter-
mined by the Board in the unfair labor practice proceeding.57 We
do not, therefore, adopt the Trial Examiner's observations pertaining
-thereto in footnote 77 of the Intermediate Report.
In computing McFarland's backpay, the Trial Examiner found that
McFarland was not out of the labor market during the time he was
self-employed as a farmer under the GI training program. He also
found that the subsistence payments McFarland received were de-
ductible as interim earnings. We agree with these findings.56 How-
ever, we also note that McFarland's on-the-job subsistence payments
were relatively small, and there is no indication that McFarland
actively searched for other employment while working on his farm.
Under the circumstances, we shall, in addition to the subsistence pay-
ments, credit McFarland with an amount of interim earnings equal
to the average Arkansas farm laborer's income during the 5 months
McFarland worked on his farm.59 (See Appendix D for. the computa-
tion of McFarland's net backpay.)
15. Calvin C. Mynatt: We adopt the Trial Examiner's findings
with respect to Mynatt's backpay. For the reasons stated in the
Intermediate Report, we deduct as interim earnings the GI subsistence
payments received by Mynatt while employed at Cook's, as well as the
wages paid him by Cook.60
88 Respondents concede in their brief that Marchant 's pay rate, for backpay purposes,
should include shift differential We therefore adopt the Trial Examiner' s finding in
this regard
57 99 NLRB at p 1055, footnote 49
51 See 0rark Hardwood Co, supra (119 NLRB at p 1133) , The cases cited by the
General Counsel, involving unemployment compensation, are, we find. inapposite. They
do not , as here, involve payments in the nature of compensation for services performed.
50 See footnote 50, supra.
80 See our findings, supra, in regard to McFarland See also Taylor Manufacturing
Company, Incorporated, 83 NLRB 142, 144.
504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
16. Clyde S. Putney: Respondents except to the Trial Examiner's
finding that Putney had no interim earnings during the third quarter
of 1950. We find merit in this exception. Evidence introduced at the
backpay hearing indicates that Putney's social security reports might
inadvertently have lumped together his third and fourth quarter earn-
. ings as having occurred entirely within the fourth quarter. The Trial
Examiner found the evidence insufficient to support such a conclu-
sion. However, we note that the General Counsel in his brief to the
Trial Examiner admitted the inaccuracy of the social security reports
in this respect, and conceded that Putney earned $456 during the third
quarter. We shall, accordingly, recompute Putney's backpay on this
basis, as urged by Respondents. (See Appendix D.)
17. T. R. Roberts: We adopt the Trial Examiner's general findings
in regard to Roberts' backpay. However, we note, and hereby correct,
the following errors in the Trial Examiner's treatment of Roberts'
expenses:
(a) In the first quarter of 1950, Roberts was properly credited with
$110 for room and board while working at Oak Ridge.61 However, he
should be credited with only $38 for round trip travel between Chil-
dersburg.and Oak Ridge, and not $75, as alleged by the General Coun-
sel and found by the Trial Examiner.ea Thus, Roberts' allowable
expenses for the first quarter are $148, and his net backpay for that
period, $553.
(b) The Intermediate Report is not clear in describing the nature
of Roberts' second quarter expenses. The $320 claimed by the General
Counsel for this quarter consists of $220 for room, board, and travel,
and $100 for moving his family to Somerset. Like the Trial Examiner,
we allow these expenses.83
With the above corrections, the proper amount of backpay due
Roberts is, we find, $1,172.
18. George Tulipana: Respondents except to the Trial Examiner's
failure to deduct as interim earnings the value of Tulipana's labor in
improving his gas station during the backpay period. We find no
merit in this exception. The record indicates that these "improve-
ments" were of an incidental-and continuing nature, and that similar
improvements were made by Tulipana before and after his backpay
period.84 In any event, Tulipana testified that his time and labor
involved were minimal, and no evidence was offered by Respondents
to contradict this testimony.
We do not find it necessary to adopt the Trial Examiner's analysis
of the effect of capital improvements on interim earnings generally.
O' Contrary to Respondents ' contention , Roberts lived at home while working for Re-
spondents , and would not have had these expenses absent Respondents ' discrimination.
61275 miles each way, at $0 .07 per mile.
ea Harvest Queen Mill & Elevator Company, 90 NLRB 320, 338.
°' See Acme Mattress Company, Inc., 97 NLRB 1439, 1443
BROWN AND ROOT, INC., ETC. 505
We affirm the Trial Examiner's other findings with regard to
Tulipana, and his computations as to Tulipa.na's backpay.
ORDER
On the basis of the foregoing Supplemental Decision and the entire
record in this case, the National Labor Relations Board hereby orders
that Respondents Brown and Root, Inc., Wunderlich Contracting
Company, Peter Kiewit Sons Company, Winston Bros. Company,
David G. Gordon, Condon-Cunningham Co., Morrison-Knudson Com-
pany, Inc., J. C. Maguire & Company, and Chas. H. Tompkins Co.,
doing business as Joint Venturers under the name of Ozark Dam
Constructors, Mountain Home, Arkansas, their agents, successors,
and assigns, shall pay to the employees involved in this proceeding
as net backpay the amounts set forth in Appendix E of this Supple-
mental Decision and Order.
APPENDIX A
ORDER CORRECTING DECISION AND ORDER
On June 27, 1952, the Board issued a Decision and Order in the above-entitled
proceeding (99 NLRB 1031).
IT IS HEREBY ORDERED that the aforesaid Decision and Order be, and it hereby is,
corrected as specified below:
1. On page 1045, line 1, by inserting after the word "practice" the words "strikers
to the extent and in the amount that permanent replacements were."
2. On page 1056, footnote 52, by inserting after the last word of the footnote the
following sentence : "Truman Erwin testified that he applied personally at the plant
for reinstatement `about the 1st of January,' 1950. However, in view of the over-
whelming evidence in the record that the Respondents during the period after the
termination of the strike had a continuing need for laborers and so notified the Joint
Council, and that the Respondents did hire all laborers who applied from among the
strikers, we do not find that Truman Erwin made proper personal application for
reinstatement after January 3, 1950."
3. By deleting the name of Lucian R. King from Schedule ,B and inserting it in
Schedule D; and by inserting on page 1049, following table, the following paragraph-
Although Lucian R. King had his name placed on the Joint Council's De-
cember 21, -1949 application list, he testified that he did not in fact wish to go
back to work immediately. He did, however, apply personally for his job in
February 1950 and was refused. The record shows that King's name on the
December 21, 1949, list was immediately approved as eligible by the Respond-
ent's representative. Under the circumstances, we find that King in fact and
effect rejected a proper offer of reinstatement, which relieved the Respondents
of further obligation toward him. We shall, accordingly, dismiss the complaint
as to King.
4. On page 1061, by deleting from the list of names beginning on line 3, "Arnold,
Hayes G., 1-4-50," and by inserting at the appropriate places in the list of names
"Boyd, Alvie `January 1950'." By deleting "Arnold, Hayes G." from Schedule C,
and by inserting in Schedule C "Boyd, Alvie." By deleting from Schedule D and
inserting in Schedule B: "Boyd, Alvie"; "Forbes, Herbert"; "Holt, J. E."; and
"Shaw, William E."
On page 1056, by inserting before the caption "Millwright" the following:
I
`Mechanical Repairmen (Flippin)
Claiming strikers ---------------- 4 Promotional replacements -------- 6
Replacements ------------------- 1 Discriminatory replacements 17
506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Application
Joint
Offer of
reinstate-
Personal Council meet Reinstated
Arnold, Hayes G.-_________________ 1-4-50 ------- 4-13-51 -------
(At hearing)
Forbes, Herbert ___________________ _______ 1-15-50 7-25-50 -------
Holt, J. E. ------------------------ _______ 1-15-50 7-25-50 -------
Shaw, William E. __________________ _______ 1-15-50 4-13-51 ---------
IT IS FURTHER ORDERED that the aforesaid Decision and Order as printed, shall ap-
pear as hereby corrected.
Dated, Washington, D.C., August 15, 1952.
PAUL M. HERZOG,
Chairman,.
JOHN M. -HOUSTON,
PAUL L. STYLES,
IvAR H. PETERSON,
Members,
NATIONAL LABOR RELATIONS, BOARD.
APPENDIX B
WORKSHEET
Classification Claim-
Replacements working in claimants' job classifications
ants
1/8/50 4!1/50 7/2/50 10/1/50 1/7/51 4/1/51 7/1/51
Ag Conv Ops---------------------- 1 6 6 3 1 1 • 1
Air Tool Ops---------------------- 2 b 17 8
Batch and Mix Ops--------------- 1 1 1 1 (') (')
Carpenters------------------------ -27 28 29 23 21 (') (`) (')
Cement Finishers----------------- 1 2 2 1 (') (') (') (')
Crane Ops------------------------- 1 5 6 7 4 1 1 1
Dinkey Ops ----------------------- 2 d 10 8 6 (`) (*) (`) (')
Electricians----------------------- 4 8 10 9 (') (') (') (')
Form Setters---------------------- 1 11 8 3 (') (') (') (')
Ironworkers----------------------- -7 7 8 6 i 5 4 1 2
Jackhammer Ops------------------ 4 1 2 e 1 (') (') (') (')
M111wrights ----------------------- b 1 (') (`) (') (') (') (') (')
Pump Ops------------------------ 4 7 7 4 2 1 1 1 k
Riggers---------------------------- 1 2 2 2 (') (') (") (')
Sandblasters----------------------- 1 11 (') (') (') (')
Signalmen------------------------- 1 6 (') (') (') (')
Vibrator Ops---------------------- iI (`) (') (') C) (')
Wagon Drill Ops------------------ 1 1 1 m 1 1 1 1
Working Foremen----------------- 1 1 1 1 (') (') (') (')
Payroll 4/8/51 (James H. Hawkins, badge No. 1829.)
b Computed by Respondents as of 1/22/50
Trial Examiner found no backpay due Flippin, Harris, Hayes, Kent, and Plymate. No exceptions
filed. Therefore, number of claimants reduced to 22.
d Computed by Respondent as of 1/15/50
Trial Examiner found no backpay due Choate. No exceptions filed. Therefore, number of claimants
reduced to 6
Only one ironworker claims backpay for this period and beyond (J. Marchant).
g Only one jackhammer operator claims backpay for this period and beyond (D W. Bailey).
h Trial Examiner found no backpay due Petty, the sole claimant No exceptions filed.
i Only one pump operator claims backpay for this period and beyond (J Kilfoy).
New discriminatory replacement H I Pool, badge No. 2188
k New discriminatory replacement R. T. Morris, badge No 1943
Trial Examiner found no backpay due Haynes, the sole claimant. No exceptions filed
Air tool operator found to be probable job transfer for wagon drill operators. From 7/2/50 and thereafter,
many new air tool operators appear on the payroll as discriminatory replacements. In addition, other&
working as discriminatory replacements in earlier periods reappear (See, e. g, R L. Stone, badge No.
4372, 10/1/50). We have identified only one per quarter, as the General Counsel specifies only one backpay
claimant in this category.
G. E. Anderson, badge No. 1143 (1/8/50-4/30/50); C. W. Bayless, badge No. 1008 (4/30/50-7/23/50).
N.b.-Asterisk indicates total working replacements not computed, as no backpay claimed for these
periods.
BROWN AND ROOT, INC., ETC.
APPENDIX C
507
Calendar
quarter
Hours Pay rate Backpay
1: Dorell, Chas (electrician) (1-15-50 to 7-25-50) ------- 1950-1
1950-2
1950-3
617
734
167
$1 775
1 775
1.775
$1, 095
1,303
296
Total------------------------------------------- --- ------------ ------------ 2,694
2. Ford, Jason S (carpenter) (1-3-50 to 3-8-50) --------- 1950-1 385 1 375 529
Total-------------------------------------------- ------------ ------------ ------------ 529
3. Freeman, A. D. (cement finisher) (1-15-50 to 7-25-50) _ 1950-1
1950-2
1950-3
548
646
144
1 625
1 625
1 625
891
1,050
234
Total------------------------------------------- ------------ ------------ ------------ 2,175
4. Lynch, S. L. (carpenter) (1-15-50 to 7-25-50) --------- 1950-1
1950-2
1950-3
482
611
138
1 375
1 375
1 375
663
840
186
Total-------------------------------------------- ------------ ------------ ------------ 1,689
5. Mashaw, Roy (carpenter) (1-15-50 to 3-8-50) -------- 1950-1 331 1 375 455
Total----------------------------------------- ------------ ------------ ------------ 455
'6. Patton, H C (carpenter) (1-15-50 to 3-8-50) --------- 1950 331 1 375 455
Total-------------------------------------------- ------------ ------------ ------------ 455
7. Raines, Willis (carpenter) (1-15-50 to 3-8-50) -------- 1950-1 331 1 357 455
Total ------------------------------------------ ------------ ------------ ------------ 455
8. Wells, John D (air tool operator) (1-15-50 to 7-25-50) - 1950-1
1950-2
1950-3
478
571
128
975
975
975
466
557
125
Total------------ ------------------------------- ------------ ----------- ------------ 1,148
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX D
Gross Net Net
Calendar quarter Hours Pay rate back- interim back-
pay earnings pay
1. Eugene N Cypert----------- 1950-1----------- 331 $1 425 $472 $56 $416
Total--------------L------ -------------------- ---------- ---------- ---------- --------- 416
2. H L Carlton---------------- 1950-1 438 1 25 548 75 - 473
1950-2 ------------ 575 1 25 719 880 0
1950-3 ------------ 124 1 25 1 155 57 . ^., 98
Total--------------------- -------------------- ---------- ---------- ---------- ---------- 571
Gross Farm , TVA Total Net
Calendar quarter back- earnings interim interim back-
pay earnings earnings pay
3 R V. Dunn------------------ 1950-1 (1/15-3/31) $826 $205 ---------- $205 $621
1950-2 ------------ 1.168 243 $86 329 839
1950-3 (7/1-7/25) 281 ---------- 258 258 23
Total--------------------- ------------------ --------- 1,483
Gross Net Net
Calendar quarter Hours Pay rate back- Interim back-
pay earnings pav
4 W. W. Lackey--------------- 1950-1 ------------ 207 $1 30 $269 0 $269
1950-2------------ 587 1 30 763 $212 551
1950-3 ------------ 606 1 30 788 688 100
1950-4 ------------ 348 1 30 452 688 66
------------------- 195 1 55 302 -
1951-1 -----------_ 583 1 55 904 169
1951-2 (4/1-5/20) 307 1 55 476 91
Total--------------------- --------------------
5 Frank J. Lippe--------------- 1950-1 ------------ 523 1 675 876 246 630
1950-2 ------------ 603 1 675 1.010 243 767
1950-3 (7/1-7/25) 174 1 675 291 79 212
Total-------------------- ----------- -------- ---------- ---------- ---------- ---------- 1,609
Gross GI sub- Farm Total Net
Calendar quarter back- sistence earnings interim back-
pay earnings pay
6. A. J. McFarland------------- 1950-1 (1/15-3/31) $944 $110 $82 $192 $752
1950-2 ------------ 1,153 330 243 573 580
1950-3 ------------ 269 110 79 189 80
Total--------------------- ---------- ---------- ---------- --------- ---------- 1,412
Calendar quarter Gross backpay Net interim
earnings
Net backpay
7. Clyde S Putney---------------- 1950-1 (1/15-3/31) $663 $416 $247
1950-2------------ 840 719 121
1950-3------------ 866 456 410
1950-4 (10/1-10/26) 274 b 140 134
Total------------------------ 912
o Lackey's earnings at Walt's Service Station, Kansas City, Missouri, did not take place until later in the
quarter.
b $456 , prorated for the period between October 1 and 26, 1950.
BROWN AND ROOT, INC., ETC. 509'.
APPENDIX E
Amounts Due the Claimants
Anderson, Truman E--------- $948
Arrowsmith, Harold S________ 0
Bailey, Benjamin W---------- 1, 276
Bailey, D. W________________ 533
Beal, Jones P________________ 367
Bevans, J. N., Jr------------- 529
Blecker, Robert R------------ 81
Bonner , Glenn M------------ 1, 138
Boyd, Alvie------ ___________ 0
Brents, J. B----------------- 455
Carlton, H. L_______________ 571
Choate, Wirt W______________ 0
Cloven, George______________ 208
Cooper, V. W--------------- 1,009
Crosby, Houston D----------- 0
Cutler, Lee R_______________ 436
Cypert, Eugene N____________ 416
Davis, Lewis E______________ 0
Dorell, Chas_________________ 2, 694
Drown, Wm. H-------------- 100
Dunn, R. V a---------------- 1,483
Flippin, Francis______________ 0
Ford, Jason S_______________ 529
Freeman, A. D______________ 2, 175
Gardner, W. A.______________ 1, 776
Hale, Ray L_________________ 597
Harris, E. E_________________ 0
Hayes, Herman E------------ 0
Haynes, Geo. W------------- 0
Hotalling, Raymond A-------- 0
Hurst, Thomas E_____________ 0
James, John H_______________ 214
Jencks, R. H---------------- 401
Kent, W. A----------------- 0
Kilfoy, Jessie A______________ 4, 878
Killian, D. E________________ 191
Kyles, Onimus --------------- 4,708
Lackey, W. W_______________ 2,106
Landry; C. C---------------- $1,093.
Langston, Corley O---------- 0
Lazenby, A. M______________ 1,466
Lippe, Frank J_______________ 1,609
Lynch, S. L_________________ 1,689
Marberry, F. P______________ 375
Marchant, Harvey E---------- 1, 271'
Marchant, John W_ __--_--__ 863
Marchant, T. A______________ 0,
Marler, James R_____________ 2, 155
Mashaw, J. W--------------- 66
Mashaw, Roy________________ 455
McFarland, A. J_____________ 1,412,
Miller, V. O_________________ 0
Mooney, Carl________________ 468
Mynatt, Calvin C-------- ____ 623'
Parris, T. H------------------ 2, 806'
Patton, H.'C---------------- 455,
Pearl, Samuel J______________ 0
Petty, Hubert L______________ 0
Pfingston ,Jake --------------- 302'
Plymate, Donald C----------- 0,
Putney, Clyde S______________ 912
Raines, Willis---------------- 455,
Roberts, T. R________________ 1, 172
Rutledge, Robert M__________ 1, 284
Satterlee, Harry Ivan --------- 0
Shaw, Hoy__________________ 75
Smith, Elbert C______________ 345
Smith, Ewell D______________ 0
Stamps, C. D________________ 367
Stone, C. L_________________ 509
Trivett, Dewey F------------- 0
Tulipana, George_____________ 1, 263
Walker, V. B________________ 157
Wells, John D_______________ .1, 148
Wood, Russell T_____________ 365
Mistakenly referred to as R 0 Dunn in the Board 's original Decision
SUPPLEMENTAL INTERMEDIATE REPORT
1. STATEMENT OF PROCEDURE
Following unfair labor practice charges, the Board , on June 27 , 1952, issued its
Decision and Order finding certain unfair labor practices in the Respondents' failure
or refusal to reinstate two groups of strikers ( one being designated unfair labor
practice strikers , the other economic strikers ) and ordering that the Respondents
make them whole for losses resulting from such unfair labor practices.
On March 24, 1953, the Court of Appeals for the Eighth Circuit enforced the
Board 's Order except as to the Respondent Flippin Materials Co.' That company
is not, therefore , subject to the Board 's Order.
On January 4, 1957 , the Regional Director issued backpay specifications for those
employees allegedly covered by the Board's Decision and Order , as modified by the
court,2 for whom backpay was found to be due.
1 203 F 2d 139
2 This eliminated nine discriminatees : William I Curtis, Troy Engles, Walton Ford,
Lester M. Holden , Raymond Hudson , Royal E Losch, W. E. Morgan , Dilly C. Redus,
and Kern K Russell, former Flippin employees
510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent filed an answer and, on July 15, 1957, an amended answer, in
which it took issue with the specifications both generally and specifically in many
respects. The issues raised, so far as relevant, will be considered hereinafter.
Pursuant to notice, a hearing on the backpay specifications was held at Houston,
Texas, between August 5 and 15, 1958; at Mountain Home, Arkansas, between
September 23 and October 15, 1958; and again at Houston, Texas, on December 2
and 3,-1958. .
At the opening of the hearing, the General Counsel made a motion to correct five
alleged errors in the Board's Decision and Order, or in the schedules attached thereto,
which affected 'the right to, or amount of, backpay claimed by the General Counsel
to be the correct amount due to five employees. The motion as to the first three
employees concerned, Alvie Boyd, H. L. Carlton, and George W. Haynes, depended
on alleged evidence in the record of the original proceedings. Counsel and the Trial
Examiner at the time of the hearing were not aware of the fact that on August 15,
1952, the Board issued an Order Correcting Decision and Order of June 27, 1952,
because this order was introduced in evidence at proceedings held in New Orleans in
May 1957 and the exhibits introduced there were not produced for a long time after
the beginning of the backpay hearing. Most of the corrections listed in the order
failed to appear in the printed volume of the Board's Decision and Order. Among the
corrections made in this order were three with reference to Alvie Boyd. Two of
these inserted Boyd's name on the list of JAM men conditionally entitled to rein-
statement and backpay. One correction directed that his name be included with
those on Schedule B attached to the Board's Decision and Order. Schedule B is a list
of unfair labor practice strikers who had been reinstated before the date of the Board's
Decision and Order and who were entitled to backpay only. It is likely that Boyd
and other employees whose names were included in this directive (transferring several
names from Schedule D to Schedule B) were intended only to be transferred to
Schedule C and that the letter "B" was a typographical error for "C." The error,
if it was one, 'is unimportant in view of my findings as to the IAM men and in view
of"tb fact 'that all those included in this direction, with the exception of Boyd, were
Flippin strikers who, by the court's modification of the Board's Decision, were not
entitled to relief anyway. With respect to the first three named claimants, as the
Board may have made its findings on evidence in the record at variance with that
mentioned by the General Counsel, it is not for the Trial Examiner to say that there
is a patent error in the Board's Decision. I therefore denied the motion, leaving it
to the Board to determine on exceptions. However, 3 took evidence with respect to
the three named employees as an offer of proof to be used by the Board should it
be inclined to modify its original findings. The motion as to the remaining two
employees involves patent variances between the schedule attached to the Board's
Decision and Order and the Board's actual findings. In such instance, I concluded,
the Board's findings of fact are to be relied on as paramount to the schedules of
names appended to the Decision and Order .3 At the close of the hearing, the Re-
spondent moved to amend its amended answer by adding to section 1, paragraph No. 8,
adopting and making a part of that pleading Respondent's Exhibit No 35 BP, a
computation of backpay based on the Respondent's theory and contentions. At the
same time, it also moved to amend its amended answer to allege that Frank J. Lippe,
a mechanic working foreman, was a supervisor within the meaning of the Act. The
motions were granted. The Respondent argued orally at the close of the hearing
but the General Counsel waived oral argument. Both the General Counsel and the
Respondent filed extensive briefs 'with the Trial Examiner. These have been
considered.
II. THE ISSUES
A. Correctness of conclusions drawn by the General Counsel as to
the effect 'of the court's decision
The Respondent in this proceeding has made numerous arguments on issues which
were either passed upon in the unfair labor practice proceedings or should have been
raised there but were not. I do not pass on such contentions here as they are beyond
the scope of these proceedings.
s The Board dismissed the complaint as to Troy Engles (99 NLRB 1056, footnote 52)
but Included his name as a discriminatee entitled to backpay in Schedule B attached to
the Decision and Order. The Board Included Benjamin Bailey as a claimant In the body
of the Decision (99 NLRB 1048) but omitted his name from Schedule B, apparently
through oversight.
BROWN AND ROOT, INC., ETC. 511
1. What the Board and court decided
a. Decisions of the Board
In proceedings in earlier cases,4 the Board found a unit, appropriate for collective
bargaining, consisting of certain Ozark employees, without including Flippin em-
ployees therein, and it found an unlawful refusal by Ozark alone to bargain withL
respect to such employees. As a result of the refusal to bargain, employees of both
Ozark and Flippin struck. In the Board's Decision in this case, it found that both,
groups of employees (excluding a group of IAM-represented employees) were unfair
labor practice strikers on the ground that Ozark and Fhppin were one employer. It
therefore ordered reinstatement of all unfair labor practice strikers insofar as jobs
were available for them, if they had not already been reinstated or offered reinstate-
ment. The Decision as to IAM -represented strikers will be mentioned hereinafter.
In determining the availability of jobs for the strikers, the Board found three
different types of replacements and found the number of each type in each job
category. As a result of its calculations, it found that there were more such replace-
ments in each job category than there were returning strikers and, therefore, that all
unfair labor practice strikers were entitled to reinstatement . It ordered reinstatement
with backpay for those employees who had not been offered reinstatement before the
date of the Board's Decision and Order, and it ordered backpay alone for those found
to have been offered reinstatement . It further found the dates of application for
reinstatement of each striker and the date of reinstatement or offer thereof where
that had occurred. In some instances, it found that strikers who had been employed
by Ozark were in fact reinstated after the strike when they were reemployed at
the Respondent Flippin.
b. The decision of the court
The court denied enforcement of the Board's Order as to Respondent Flippin and
its employees because of prior proceedings by the Board against the Respondents as
separate employers, culminating in the court's decision in N.L.R'B v. Ozark Dam
Constructors, 190 F. 2d 222. The court in this case commented that "the question
whether the Board was precluded from consolidating Ozark and Flippin into one
employer for the purpose of this proceeding is not free from doubt . ." After
expressing the view that the question was res judicata because of the prior proceed-
ings, mentioned above , the court said , "But ^ if the ^ issue was not res judicata 4inn a
strict sense, we are still of the opinion that there is an inadequate basis in the record
for visiting the sins of Ozark upon Flippin." I take this to mean that, as the Board and
court had, in the refusal to bargain case, treated Ozark and Flippin as separate entities
in finding that Ozark alone had refused to bargain, it would not be proper to find that
Flippin strikers were unfair labor practice strikers. As sympathetic strikers Flippin
employees would at best have been economic strikers and would not be entitled to
reinstatement if permanent replacements had been hired ' in their place . Since no
new remedy was fashioned for Flippin strikers as economic strikers, they were
dropped from the case.
The Board's Order as to Ozark was enforced and the case was remanded to the
Board for the purpose of determining the amount of backpay due.
2. The disputed effects of the court's decision
a. The General Counsel's theory
It is the theory of the General Counsel that, because the court denied enforcement
of the Board's Order as to Flippin strikers, Ozark and Flippin were to be treated as
separate employers, and from this, the General Counsel argues that striking em-
ployees of Ozark were not, therefore, reinstated if they were given jobs only at
Flippin after the strike. As a result of this conclusion by the General Counsel, the
backpay period of such of the claimants in this case was computed in the specifications
as running either to the time of actual reemployment by Ozark itself or to the end of
the work for employees in the same job classification (whichever was first ), merely
showing earnings of such employees while at Flippin as interim earnings.
The Respondent takes issue with this theory and method of computing backpay.
It contends that Flippin and Ozark were, for the purposes of the backpay proceed-
ings, one employer and that assignment of Ozark strikers to Flippin, on rehire, was,
as the Board found, reinstatement.
* Brown and Root, Inc, et al , d/b/a Ozark Dam Constructors , 77 NLRB 1136; Brown
and Root, Inc, et at, 86 NLRB 520
512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
b. Conclusions as to the contentions of the parties
Although the General Counsel's theory appears plausible, and although it might
be applied in other cases if used from the outset, I am of the opinion that it should
-not be used here. In the first place, I am not satisfied that the result of the court's
decision was to sever all ties and relationship between Ozark and Flippin. In the
,earlier case against the same Respondents, the Board had proceeded against Ozark
alone on a charge of violation of Section 8(a)(5) of the Act.5 Had Ozark and
'Flippin been one employer for all purposes, Flippin as well as Ozark would have
-been responsible for the refusal to bargain, but the Board did not then so contend.
It is obvious, therefore, that the Board regarded Ozark and Flippin as one employer
for some but not all purposes. By my reading of the court's decision, the court is
-not saying that Ozark and Flippin could not under any circumstances be treated as
one employer. It merely decided that Flippin employees, in joining the strike against
:Ozark because of the latter's refusal to bargain with the Joint Council (representing
Ozark employees), were not themselves unfair labor practice strikers and that their
-employer, Flippin, was not obliged to reinstate them as though they were. I am of
the opinion that the court's decision should not be extended beyond the question sub-
mitted to it and that it is not to be concluded that Ozark and Flippm were not joint
employers for any purpose.
In the second place, to say that Ozark and Flippin were separate employers for all
purposes is to disregard actual facts, for both were organized by the same joint ven-
turers for the purposes of performing their respective functions in the building of
the Bull Shoals Dame Both were under the same management. The same produc-
tion manager supervised both. A single personnel office handled the hiring of em-
ployees of both, and Ozark and Flippin employees were frequently transferred from
one to the other, often without change of job classification. Ozark transferees to
Flippin testified they still received Ozark paychecks. A jackhammer operator at
Ozark might have been transferred to Flippin as a jackhammer operator, or a car-
penter at one might have been transferred back and forth always as a carpenter and
at the same rate of pay. Although separate payrolls were kept by Ozark and Flippin,
they had the same timekeepers as well as the same personnel department. The pay-
rolls were made up in the same accounting department, the rates of pay by classifica-
tion were apparently the same, and conditions of work, making allowances for the
-differences in functions of Ozark and Flippin, were much the same. The fact that
separate payrolls were kept for Ozark and Flippin is not important. The reason
therefore may have been for legitimate accounting reasons that would apply even
in cases of groups of employees hired by a single employer. Beginning in June 1950,
Ozark also kept separate payrolls of its employees working on the dam and those
working on the powerhouse. In cases of temporary transfers, I conclude from pay-
roll records in evidence , employees with Flippin badge numbers sometimes retained
That number on the Ozark payroll, the number being preceded by the letter "F" to
show that it was a Flippin badge number. Sometimes on social security reports
•Flippin employees would be shown as employees of Ozark. Considering all that
could be taken into account, I am not satisfied that the Board's decision depended on
a premise which was totally nullified by the court.
Finally, I believe it is neither administratively desirable nor proper to hold that
Ozark did not reinstate those returning Ozark strikers who were assigned by the joint
personnel department to work at Flippin. It is not desirable because at the time or
times when returning Ozark strikers were being reinstated to jobs at Flippin this was
apparently in line with the Board's thinking. The Board's Decision and Order, which
issued on June 27, 1952, adopted the view of the Intermediate Report, issued August
15, 1951, in this respect. If the Board were going to alter the computation of back-
,pay ex post facto from the date of the court's decision, it should at least toll backpay
in the intervening period on the same principle as that recognized when it tolls back-
pay between the date of the Intermediate Report and that of the Board's Order in
cases where it reverses a Trial Examiner's recommended dismissal of a discriminatory
discharge complaint and in similar cases .? Thus, on this principle, backpay would be
tolled from the time that a claimant was hired back and assigned to Flippin until
,: Brown and Root, Inc, at at., 86 NLRB 520.
e See NLRB v. Ozark Dam Constructors, 190 F 2d 222 (C A. 8).
'' Custom Underwear Manufacturing Company, 108 NLRB 117. Cf Union Bats Terminal
of Dallas, Inc, 98 NLRB 458; International Hod Carriers, Building and Common
Laborers Union of America, Local #341 (J. H Pomeroy and Company, Inc ), 117 NLRB
s724; Washington Coca-Cola Bottling Works, Inc, 122 NLRB 7; Wooster Division of
Borg-Warner Corporation, 121 NLRB 1492. 1
BROWN AND ROOT, INC., ETC. 513
the date of the court's decision (March 24, 1953) and this would, for most of the
claimants, be after the end of the backpay period.
But to my way of thinking, it would be not merely undesirable, it would be im-
proper now to recompute backpay on the theory that what was, until the date of the
court's decision, considered reinstatement ceased thereupon to be reinstatement by
the court's' decision on another point. It will be remembered that the Board ordered
unconditional reinstatement only for those employees listed in Schedule A attached
to its Order. It found that those listed in Schedule B had been reinstated and ordered,
for them, no reinstatement but only backpay. It even found specific dates of rein-
statement of employees listed in Schedule B. The Board never modified these find-
ings. The General Counsel's theory not only would require me to alter the Board's
findings as to the, date of reinstatement, but would require me to read into the
Board's Order that which is not there-an order of reinstatement for employees
listed in Schedule B who had previously been deemed reinstated at Flippin. I have
no authority to do this.
One, of the employees whose backpay is computed on the theory that assignment,
upon reemployment after the strike, to Flippin was not reinstatement was listed
in Schedule A (John W. Marchant) and his backpay was computed to September
'10, 1951, which was 11 years before the court decision issued. Two employees
whose backpay was so computed were on Schedule B and two were on Schedule C.
As the Board found reinstatement as to the two on Schedule B-D. W. Bailey and
Eugene Cypert -I am bound thereby and cannot compute backpay to a different
time even if I were persuaded that the result of the court's decision in some manner
justified a modification of the Board's Decision and Order. Such modification,
however, would be for the Board and not for me to make. The backpay of both
of those whose names appeared on Schedule C, IAM (economic) strikers, was com-
puted to a time ending before the court's decision issued (Corley O. Langston,
whose backpay was computed in the specifications from February 11 to December
16, 1950, and T A. Marchant, from February 25, 1950, to January 18, 1953). It
would be unnecessary, therefore, in any of the cases mentioned, to compute what
backpay might have been due for any time after the date of the court's decision
(if backpay were tolled to that date), for none accrued thereafter in any event.
Whether or not the employment of any of the foregoing employees who worked for
Flippin after the strike were employed in their own classification and type of work
"(i.e., whether or not reinstated to the same or a substantially equivalent job) will
be considered hereinafter when I take up individual cases.
. As a result of the foregoing considerations, I conclude that I am bound by the
Board's Decision that Ozark strikers, rehired and assigned to Flippin, were rein-
stated . This will change the terminal date of the backpay used in the specifications
for the several employees mentioned.
B.• Respondent's contention that the period of discrimination should be limited to
the period during which replacements continued to be employed
In tile' Respondent's view, the period of discrimination exists only so long as
replacements were actually employed in the job classification of backpay claimants,
and therefore the Respondent sees no right to backpay after the replacements ceased
to be employed. This view confuses the substantive problem of discrimination with
the procedural one of remedy. The discrimination exists because the Respondent
refused to reinstate the discriminatees at the time the Board found that it should
have reinstated them. Once the discrimination is shown, the remedy is designed
to continue from the date of the discrimination to the date when the discrimination
is rectified by a bona fide offer of reinstatement. Where backpay is called for, any
time during the period of discrimination when the discriminatees would not have
worked even if not discriminated against would be omitted. For example, in the
absence of discrimination, the discriminatee would not be likely to have been em-
ployed after the Respondent permanently ceased all operations in which the dis-
criminatee was qualified to work. Thus, the latter condition measures the backpay
period but not the discrimination.
Because the Board ordered reinstatement of employees not already reinstated
or offered reinstatement to jobs that were available and decided that jobs were
available so long as any of three enumerated types of replacements were in the
Respondent's employ on the date of application for reinstatement, the Respondent
assumes that backpay is measured by the period when such replacements continued
in the Respondent's employ to the exclusion of returning unfair labor practice
strikers: This misconceives the Board's theory of available positions. it may have
been that work ,(and therefore positions) was available for returning strikers because
Hof an increase in work 'and the need for additional men. In such instance there
514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would be no need for replacement, but if returning strikers were not hired, while
others were, the discrimination would be shown regardless of replacements on the
payroll. In such instance, backpay would have nothing to do with replacements
already on the payroll or the duration of their employment. It is only if positions
are not otherwise available that resort is made to the positions of replacements.
Then the jobs of replacements are treated by the Board as the same as vacancies.
But treating the jobs of replacements as vacancies is not the same as measuring
the duration of the jobs the discriminatees would have had by the duration of
employment of the replacements exclusive of prestrike employees. It is important to
determine 'the existence of "vacancies" in the form of jobs of replacements only
because the Board does not penalize old employees whose right to jobs is at least
equal to that of the discriminatees, and therefore the Board does not require their
displacement in order to make room for discriminatees. But this does not mean
that, had the Respondent done what it should have done and reinstated the dis-
criminatees at the time the Board found it should have, the retained old employees
would have had superior employment rights thereafter. Reinstated discriminatees
are not second-class employees who could be expected to be laid off fast in any
subsequent layoff. Consequently, from the time they should have been reinstated
they are deemed to have employment rights equal to all other employees in the
same job classification, except insofar as seniority rights or other lawful bases for
discrimination (none of which existed here) may prevail. From the time that the
discriminatees should and could have been reinstated, for purposes of determining
backpay, the Board proceeds on the equitable principle that that was done which
ought to have been done, i.e., it considers that discriminatees are employees again,
albeit unpaid ones. Thereafter, the Board is no longer concerned with the identity
of replacements as such. In a case like the present one, the Board is then concerned
with the total number of employees employer in each classification and with
their earnings in order to utilize actual on-the-job experience in determining the
amount of backpay to which the discriminatees would be entitled. The period
of employment of striker replacements' as distinct from that of other employees
does not, therefore, determine the duration of discrimination nor fix the backpay
period.
Once reinstated, the discriminatee's right of job tenure would be as good as any
other employee's, not merely as good as that of replacements. There could be no
certainty that, when a replacement is shown to have gone off the payroll, the dis-
criminatee would have gone off the payroll at the same time. In the first place, the
replacement might have gone off the payroll voluntarily and not involuntarily-
there is no evidence here to the contrary-and it cannot be said that the discrimi-
natee would necessarily have gone off at that time. In the second place, since the
discriminatee, from the time he should have been reinstated, is on a par with all
employees in his classification for the purpose of fixing job continuance, his right
to backpay continues so long as .it cannot be shown that he, specifically, would have
been terminated. Since the Respondent did not recognize seniority as affecting job
tenure, the order in which employees would be laid off absent discrimination. is un-
certain. The Respondent has not undertaken to prove that the discriminatees would
have been laid off in a reduction in force before nonreplacements. It merely pro-
poses that, for want of evidence to the contrary, the discriminatees should be deemed
to have the same job rights as replacements. I find no valid reason for the adoption
of such a presumption. Since the Respondent's unfair labor practice created the
difficulty of ascertaining what would have happened absent discrimination, the burden
should be on the Respondent to show that, although as many employees as, or more
than, the number of discriminatees in any given classification were kept on the
payroll, a discriminatee would have been the one laid off at a time of reduction in
force rather than a nondiscriminatee.
In order to measure the duration of the backpay period of each discriminatee by
the duration of the jobs of replacements it would be necessary to show that a given
discriminatee would have displaced replacement A instead of replacement B, C, or D.
Since the discriminatee was not reinstated when he should have been, it is impossible
to tell which replacement he would have displaced The Respondent's proposed
method of determining the end of the backpay period is unworkable as well as con-
trary to the Board's theory of reinstatement.
C. Dates of commencement of backpay
Availability of Jobs for Unfair Labor Practice Strikers
The Respondent complains that, not only is the end of the backpay period used
for individual claimants fixed in the specifications too late but in many cases it- is
BROWN AND ROOT, INC., ETC. 515
fixed too early. I have heretofore partly disposed of the argument concerning the
end of the backpay period (which does not necessarily coincide with the severance
of replacements) and shall dispose of the termination date of backpay of individual
claimants or classifications of employees hereinafter.
With respect to the beginning date, the Respondent, in effect, is complaining of
the accuracy of the Board's findings respecting dates of applications for reinstate-
ment and its findings respecting the vacancies available for returning strikers as of
the date of application. The accuracy of the Board's findings are not subject to
challenge in these proceedings. If enough vacancies existed on the dates of respec-
tive applications for reinstatement to take care of all who were entitled to reinstate-
ment, backpay would begin with the date of application. It is not necessary to
determine the later date of hire of discriminatory replacements if there were enough
vacancies on the date of application in the form of any of the three kinds of re-
placement defined. Only if there were insufficient vacancies in the form of such
replacements on the date of application would the commencement of backpay ever
run from the later date of hire of a discriminatory replacement. The Board's find-
ings respecting the dates of application for reinstatement were not disturbed by
the court of appeals and so are res judicata here. But with respect to the Board's
findings as to the number of vacancies available for returning strikers both the
General Counsel and the Respondent presume that the elimination, by the court,
of the Respondent Flippin also eliminated job vacancies at Fhppin. in the form of
replacements. If this is the effect of the court's decision, the number of vacancies
.found by the Board to exist on the dates of application for reinstatement would be
'reduced by the number of replacements at Flippin which were counted in the total
by the Board. The General Counsel assumed that, in ascertaining the availability
of jobs for returning strikers, replacements at Flippin should not be counted. The
Respondent indulged in a like assumption. But if assignment of returning Ozark
strikers to Flippin be reinstatement, it may well be argued that replacements at
Flippin as well as at Ozark should be counted in determining the availability of
jobs for Ozark strikers. However, the problem is not quite so simple as that. The
so-called replacements at Flippin were, presumably, replacements, not for unfair
labor practice strikers at Ozark, but for economic strikers at Flippin. Under these
circumstances, should the jobs of replacements for economic strikers be treated as
jobs available to the Ozark unfair labor practice strikers? Perhaps not as a gen-
eral rule, but because Ozark and Flippin had a more or less common work force,
there might be instances where jobs of Flippin replacements should be deemed to
be vacancies for Ozark strikers. Suppose that during the strike a replacement of,
say, a striking jackhammer operator at Ozark was hired by Ozark and, still during
the term of the strike, was transferred to Flippin. A returning unfair labor practice
striker at Ozark might be contended to be entitled to the job of such transferee
replacement. Also, whatever the situation might be with respect to the first two
classes,-of replacements at Flippin, I am of the opinion that men hired at Flippin
in the same classification as that of returning unfair labor practice strikers (former
Ozark employees) after the time when the said strikers were entitled to reinstate-
ment 'should be deemed to be discriminatory replacements as to the Ozark unfair
labor practice strikers. Before applying this conclusion to the facts to determine
the dates of availability of jobs to unfair labor practice strikers, however, it might
be well to determine the availability of jobs at Ozark alone.
Because the Board and the Trial Examiner in the unfair labor practice hearing
in this case did not list the names of those men classed as promotional replace-
ments, replacements, and discriminatory replacements, I have had no means of
eliminating merely the names of Flippin replacements and have found it necessary
to prepare a list of Ozark replacements myself from evidence introduced at the
original hearing in this case. In doing this, I have encountered certain difficulties
in fitting individual employees into the three classes of replacements adopted by
the Board. For example, in ascertaining who should and who should not be deemed
a replacement, the Trial Examiner in the unfair labor practice hearing in this case
included some "old employees" and excluded others as replacements. He did not
limit his inclusion of "old employees" in the replacement group to promotional
replacements but included also men who had worked for Ozark at some prior time
and had been rehired during the strike in a job category in which they had not
previously been employed .8 The Trial Examiner did not indicate, however. into
which of the three classes of replacements such "old employees" should be placed.
This employee does not necessarily constitute a promotional replacement, although
he might be put in a group which included promotional replacements. The fact
s See 99 NLRB 1085
614913-62-vol. 132-34
-516 DECISIONS- OF NATIONAL LABOR RELATIONS BOARD
that he is described as an "old employee" tends ,to exclude him from the definition
-of "replacements," -for the word "replacements" was defined as "new -employees
hired in strikers' classifications during the period of the strike." Although not a
"new employee" literally, this type of former employee was treated by the Trial
Examiner in his Intermediate Report as though he were a new employee for the
purposes of determining replacements and therefore, as I see it,-he should definitely
be included as a replacement of some kind and he would naturally fall in one of
the first two groups of replacements, i.e., either "promotional replacements" - or
"replacements." With this in mind, I have prepared the list of names- winch is
attached hereto as Appendix A, showing the names of those I consider to be Ozark
replacements of one kind or another. Because of variations to be -found in the
employment record of various employees, other difficulties arise in determining
whether or not to count a given employee as some kind of replacement. In these
instances, where deviation from the literal definition of the three types of -replace-
ments raised a question as to the inclusion of a name, I omitted such name from
the list referred to even though, considering the overall solution devised -by ' the
Trial Examiner and his intent to exempt only those deemed part of-the regular work
force, the name might have been included. If a man was hired during the strike
but was not on the payroll at the end of • the strike and was later rehired after a
-returning striker had applied for reinstatement, I have treated such rehire as a dis-
criminatory replacement. As a result of my study, I conclude that, without regard
to available jobs at Flippin, there were, at the date of the applications found by'the
'Board, ample jobs at Ozark available for claimants in all job classifications except
in that of jackhammer operator.9
In the jackhammer category there were four claimants. On the Ozark payroll
on the dates of application there was one replacement and one discriminatory re-
placement. A new man was hired in this classification on February 15, 1950
Obviously there would be insufficient jobs available for all four claimants as jack-
hammer operators if the available Flippin jobs are not counted. However, if the
jobs of discriminatory replacements at Flippin are counted, as I believe they should
be, enough jobs would have been available for all on the dates of application by
the four, respectively. However, even assuming for the sake of argument that the
jobs of discriminatory replacements at Flippin should not be counted as available
to the claimants herein, the Board has here, as it has consistently in other cases,
required reinstatement of discriminatees to their former or substantially equivalent
positions. Hence, assuming that the claimants could not be reinstated as jack-
hammer operators, they could have been given substantially equivalent positions.
The most likely equivalent position would have been that of air tool operator, since
a jackhammer is an air tool, the rates of pay were identical, and the payrolls indi-'
'cate that employees were transferred from one job to the other. The Board found
in the air tool operator category five claimants, eight replacements, seven promo-
tional replacements, and four discriminatory replacements. Eliminating Flippin
strikers, there were only two claimants in this job category. If all types of replace-
ments at Flippin were eliminated, there would be on the Ozark payroll 9 old em-
ployees rehired during the strike in a striker's category for the first time, 5 promo-
tional replacements, 7 replacements, and 7 discriminatory replacements, a total of
28 available jobs, which would be more than enough to take care of the 2 claimants
in-this category and any former jackhammer operators for whom there were no
jackhammer jobs available on the dates of application. On the record, therefore,
I find that the dates of commencement of backpay are as shown in the specifications.
Because the Flippin payrolls are not in evidence, it is impossible to determine the
backpay of the claimants to jackhammer jobs on the basis of average hours of such
operators employed at Flippin. As only two replacements of any kind were em-
ployed at Ozark in January 1950, I could allocate those positions to the first appli-
cants: D. W. Bailey and C. L. Stone and compute their gross backpay on the basis
e The Board found no available position for C. D Stamps, a form setter and stripper.
until the date of hire of a discriminatory replacement in that category It was stipu-
lated at the unfair labor practice hearing that a discriminatory replacement was hired
between February 1 and July 25, 1950 I found (in addition to certain old employees
who were rehired during the period of the strike In the form setter and stripper category
for the first-time) five promotional replacements and five replacements (during the period
of the strike) not to mention a number of hirings that I would classify as discriminatory
replacements. However, as the General Counsel has computed backpay for Stamps only
from February 3, 1950, the date of employment of the first discriminatory replacement
after February 1, 1950, and as this accords with the Board's Decision and Order, that
date will not be disturbed If any change is to be made, it will be for the Board to
make it -- "
BROWN AND ROOT, INC., ETC. 517
.of average hours of jackhammer operators alone, and I could , as to Jencks and
Killian , the other two claimants , compute their gross backpay on the basis of the
average hours of air tool operators from January 15 to the week of February 19,
1950, when additional jackhammer - jobs became available. If I were to do so,
however, the result would be to increase the gross backpay of Jencks and Killian
over that computed by the General Counsel because the air tool operators in that
period worked an average of 205 hours to an average of 185 hours for jackhammer
-operators . Under the circumstances , I shall compute the backpay of all on the basis
-of the average hours of jackhammer operators as the General Counsel did.
D. Method of computing backpay
1. Adjusted average hours
a. Use of average hours worked by all employees in classification as against average
- hours worked by replacements
The Respondent contends that backpay should be calculated , not on the basis
of the average hours of all employees in a particular classification , but on a basis
of the actual earnings of those who replaced the discruninatees and who in turn
would have been replaced by the latter upon reinstatement . When the Respondent,
in its amended answer, avers that, under the method for determining backpay used
.in the specifications , it requires the payment of wages to discriminatees for periods
of time after discrimination has ceased by the discharge , layoff or other termina-
tion of the discriminatory replacement ," it suggests that it would consider a par-
ticular replacement as being in the individual job of a particular discriminatee and
'would determine the backpay of each discriminatee on the basis of a specific re-
placement as his counterpart , terminating backpay for the discnminatee when the
particular replacement was terminated . But in proposing its own formula, the
Respondent does not proceed on this basis. Instead, it used replacements as a
-class rather than as individual counterparts . In its brief, it describes its proposed
method and then reasons that in periods when there are more "vacancies" (i.e., re-
placements who would have to be removed under the Board 's Order to make room
for a returning striker having paramount rights ) than discriminatees , the latter's
backpay would be determined on the basis of the average number of hours worked by
the replacements; and when the "vacancies" are fewer than returning strikers, each
striker would be entitled to a proportionate part- of the average hours worked by
replacements . This method proposed by the Respondent is, according to it, de-
signed to take . into account the fluctuations in the size of the work force so that
if, in a given week , no replacements worked ,. the discriminatees would not be
credited with any backpay for that week.
The fallacy in this ,reasoning has been disclosed - already in section II, B, above.
In fashioning a backpay remedy, the Board aims to restore discriminatees as nearly
as possible to the state they would have been in absent discrimination . However,
'because reconstruction of the situation that would have existed absent discrimina-
tion involves too many unknown facts and variable possibilities , that situation can-
not literally be reconstructed . It can only be approximated . To the extent that
the elements entering into the computation of backpay are known facts, they will
be used. Thus, it is possible to know the rate a discriminatee in a particular classi-
fication would have been paid had he been reinstated wherever records show that
all employees in that classification were paid at a given rate during the backpay
period. In other matters , the degree of certainty vanes. Where absolute certainty
is impossible , a presumption may be resorted to when probabilities favor such pre-
sumption . For example, it cannot with certainty be known how many hours the
discriminatee would have worked had he been reinstated when he should have
been , for although the discriminatee may have, throughout the backpay period,
been in good health and able to work, he might have, had he been reinstated when
he should have been , suffered an accident or contracted an infectious illness in the
Respondent 's employ during the backpay period which he .would not have suffered
or contracted elsewhere, thus rendering him incapable of working. But this is a
mere possibility and not a probability ; so, absent proof that he would have been
unable to work during any given period if at the Respondent , it is considered as
probable that he would have been available to work at the Respondent to the same
extent as elsewhere during the backpay period.
Now, although the Board did not in its Decision and Order identify , by name,
the persons in the various categories of replacements , it is possible, from evidence
available, to identify them. That is something which, if not certain , can reasonably
,be ascertained , and, if the Respodnent's proposed formula were otherwise sound,
518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such facts might be used. But it is not certain which replacement would have been
displaced by any specific discriminatee and, because even probabilities cannot be
shown, no presumption can be indulged in that any given discriminatee would have
been given the work of any given replacement. But even if counterparts could be
named, there is no genuine probability that the hours of work available to the
particular discrimmatee would have coincided with those which were in fact avail-
able to his replacement. In the first place, the replacement might have lost time
from work for reasons personal to him. Furthermore, the situation here is not
the same as one where the job is- unique (as a job might be if the discriminatee had
been an operator of -the only machine of its kind in use by his employer), and in the
case at, hand if the-'Respondent had reduced,-its force during any given week, the
probability that Respondent would have laid off the discriminatee at the same time
it did his replacement is so slight as to amount to pure chance. The basis for se-
lection of men for layoff is not shown. The agents of the Respondent making lay-
offs may each have used a subjective test-one personal to each-giving varying
degrees of weight to seniority, skill, strength, personality, or a combination of some,
all, or none of these. To assume that the discrininatee would have been laid off
at exactly the same time and for the same length of time as his replacement is to
treat each as an automation identical in all respects with the other. This is con-
trary to fundamental knowledge and is not a proper foundation for a presumption.
Exactly the same considerations that stand against the treatment of the one dis-
criminatee as having a prospect of a job only for the duration of the job of one
replacement also stand against the treatment of the prospects of discriminatees as
a class as being identical with those of replacements as a class. Once restored to,
their former or substantially equivalent positions, the discriminatees should have
had, a chance- for retention, at times,.9 f sreduction in force the same as any employee
in the same classification, including' prestrike employees, and not merely the same
chance as any replacement. There is neither certainty nor probability that, as a
class, they would have been laid off or would otherwise have lost time from work
in the same degree as the replacements. Hence, no basis for a presumption exists
here that the discriminatees' job tenure would have been the same as that of their
replacements. The identity of the discriminatees, once they have been reinstated,
is with their entire classification and not merely with the replacements who should
have been removed to make a place for them. The use of average hours of all
employees in a given job classification „ is not only a proper one ,io its is here the
most appropriate one. I shall, therefore, use the General Counsel's formula based
on average hours of all employees and not merely those of replacements.
b. Adjustments made by General Counsel in formula used in specifications
in determining average hours
(1) Determination of- overtime to be credited to claimants
The specification, s,, are, drawn on the , basis of an adjustment in average hours by
giving overtime hours a value of 1 1h that of straight time and lumping all such hours
together. Thus, if 100 straight-time hours were worked in a given week by all em-
ployees taken into account and 10 overtime hours were worked during the same
period, whether by one, all, or an•intermediate number of-employees, the specifications
translate the 10 overtime hours into 15 straight-time hours, making a total of 115
straight-time hours to be averaged by the number of men working.
The Respondent objects to this method, claiming that the proper method to adjust
the averages for the purpose of determining gross backpay would be to add all hours
worked by all employees in the category (adding both straight-time and overtime hours
as straight-time hours), divide the sum of this addition by the number of men working,
and then multiply the quotient in the last step by the hourly straight-time rate up to
40 hours and by 11/2 times the straight-time rate for any hours exceeding an average
of 40. By the Respondent's method, the discriminatees would receive a credit for
an average number of hours a week, lumping straight-time and overtime hours to-
gether to reach an average in which all overtime pay might disappear unless most of
the men in the category who were employed in a given week worked a 40-hour week
and a substantial number of them worked overtime. The Respondent's method more-
10 N.L R B v. Remington Rand, Inc, 94 F 2d 862 (C.A 2) ; Harvest Queen Mill &
Elevator Company, 90 NLRB 320, footnote 3 The Board's backpay formula is discre-
tionary so long as it is not arbitrary and bears an appropriate relation to the statutory
policies N L R.B v East Texas Steel Castings Company, Inc, 255 F 2d 284 (CA 5)
BROWN AND ROOT, INC., ETC. 519
rover ignores Sunday and holiday work.ii As between these two methods of com-
puting averages, I consider that which gives discriminatees an average of overtime
hours as well as an average of straight-time hours as fairer and more closely approxi-
mating the actual situation, because the chances of the discriminatees' receiving over-
time work and pay would have been in the same proportion as the chances of any
employee on the payroll for that week, and from an inspection of the payrolls, I
judge that overtime work wasIsometimes.done on otie, shift,'althoughKmen on other
shifts or even on the same shift might not have. worked a 40=hour week. 'With no
,certainty as to which shift the discriminatee would have worked on, the average of
men on all shifts may reasonably be used. There is no proof that overtime was
given on a preferential basis; so I infer that anyone had as much chance as anyone
else to get it. The method which has been employed by the General Counsel in
-determining the averages is one that has been used without question in previous cases,
although I am unaware that the propriety of this practice has ever been put in issue
before. Once it is determined that overtime is to be determined on the basis I have
found appropriate, no objection can be made to the procedure of translating over-
time hours into 11/2 times straight-time hours (because pay for such hours was in that
ratio) and of determining average pay by multiplying the adjusted average hours.
so determined, by the straight-time rate of pay.
(2) Exclusions from averages
The General Counsel made further modifications of strict averages in the method
employed in reaching the results shown in the specifications by (1) omitting from the
-determination of average hours the time worked by any employee who worked less
than 24 hours a week (unless the majority worked less than 24 hours in that week),
and (2) omitting the hours worked in a given classification by employees who, in the
same week, also worked in other classifications. The analyst who prepared the
specifications testified that his purpose in disregarding the two types of employees
mentioned was to,avoid a "downward bias." On the,surface, this explanation appears
to be arbitrary and, when I first considered it, before examining the payroll records,
it appeared to me to ignore the most desirable objective, that of distributing all the
work available in a given job classification to all the men in that classification. How-
ever, this presupposes that the amount of work available is to be determined on the
basis of the number of hours actually worked by all men who worked in that classi-
fication. For example, it may be supposed that, if you have a work force of 10 men
and in a given week 8 of them work 40 hours each and 2 work 16 hours each, there
would be a total of 352 hours of work available to be divided by 10 men and that the
partial absence of the 2 men merely served to increase the amount of work available
-for the other 8 men. And, further, it might be supposed that, in the same situation,
if 2 replacements were put on the squad to work for 3 days when the 2 regular men
were absent, this would increase the number of total hours of work available to 400
without increasing the number of men actually working above 10 at any one time
and hence you could divide 400 by 10 and get an average of 40 hours. Upon in-
spection of the payroll records, however, I decided that this method of calculating
average hours was impractical and unduly complicated by variations in the possible
situations. An examination of the payrolls led me to conclude that, except in cases
of general inactivity owing to inclement weather, the most usual instances of men
working less than 24 hours a week occurred when employees were quitting or were
terminated for one reason or another and when new employees were starting, because
new employees more frequently than not started in midweek or toward the end of
the week rather than at the beginning. Furthermore, the new employees could not
be considered literally to be replacements for those who dropped off the payroll, for
the number of new employees seldom coincided with the number leaving the payroll.
Thus the number of employees in a given classification fluctuated from week to week.
This cannot be attributed solely to the amount of work available. It would depend
to some extent on the ability of the Respondent to hire new men as fast or faster than
men dropped out when work was increasing. Another difficulty in trying to average
out the amount of work available on the basis of treating new employees as replace-
ments for men who dropped out so as to count their hours worked in conjunction with
the hours of the men who were replaced during a given week is that you cannot be
sure the new men are doing the same work as those who dropped out. I would infer
from the fact that certain men on a given shift appeared to work the same number
n During some holiday weeks the payroll shows in many instances as many overtime
as straight-time hours were worked by employees although few worked 40 straight-time
hours.
520' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of straight-time and overtime hours that such men may have been working as a team,
But it cannot be ascertained from an examination of the payrolls how many teams
there were and whether new men were assigned to one team or another. I also ob-
served that a man from one classification might be temporarily assigned to work in
another classification for an hour or a day or two or an intermediate number of hours.
Inclusion of the time of such temporary transferees in the averages would certainly
result in a downward bias because the discriminatees would be entitled to as much
pay as would be earned by any regular, full-time employee, and the inclusion of the
time of such supernumeraries and the division of the total number of hours by the,
number of regular employees and supernumeraries would result in a lower average
than the average of regular employees. After an extended examination of the pay-
roll records and an.attempt to determine averages on other bases, I reached the con-,
clusion that the method employed by the General Counsel was the only practical,
method and it is at the same time a fair one. In the course of my examination of
the payrolls and determination of average hours, I tried a method which included all
regular workers even though they may have worked less than 24 hours in a given
week. I found that the result produced by this method varied so imperceptibly from
that reached by the, General Counsel: as.to.make the benefit of using such alternate
method negligible . In most instances it resulted only in a difference of a few
hundredths of an hour in the average adjusted hours in a given week.
The exclusion from the averages of the time of men who worked in more than one
classification is likewise fair because although the discriminatees might have an equal
opportunity' to work -as, many hours a week as regular employees who worked in
more than one classification, it cannot be assumed that each man would be equally
as competent to work in specific classifications other than his own. And yet if the,
time of men who worked in more than one classification were included only to the.
extent that it would fall in their regular classifications, the Respondent as well as the
General Counsel might have cause to complain. Often the work in a different classi-
fication resulted in a man's receiving overtime pay for work in his own classification.
For example, a carpenter who works 24 hours as a millwright in a given week might
have worked 36 hours the same week as a carpenter, and he would be shown as
having worked 16 straight-time and 20 overtime hours as a carpenter. As I have.
already decided that overtime hours should be counted as one and one-half times
that of regular hours, the Respondent might complain in this instance. On the whole,'
it is fairer and more practical to exclude from the averages the time of men who
worked in more than one category.
For the purpose of showing errors in the General Counsel's computation of average
hours, the Respondent took, as an example, the week ending July 30, 1950, and, by
use of IBM methods, tabulated for each classification of worker the number of men
employed in that classification, their rate of pay, the number of straight-time hours,
and the number of overtime hours. The Respondent then pointed to the differences
in the number of men in these classifications and in the number of hours worked as
between the General Counsel's computation of average hours and the Respondent's
mechanical computation. One difficulty standing in the way of accepting the Re-
spondent's figures as proof of errors is that, by its mechanical method, every man in
the classification whose name is%shown on the payroll is counted, whether or not that
man worked as many as 24 hours in that week or whether or not he even worked
at all.12 Accuracy in the General Counsel's adjusted average hours can be shown only
if his formula is followed. By following his formula, I checked the carpenter classi-
fication in full, and I spot checked the other classifications, doing a week here and
there. I found that his figures were accurate with rare exceptions and that such
errors as existed tended more to favor the Respondent's interest than the claimants'.
Because I have not checked each classification in full, however, I shall not raise the
General Counsel's figures when I find they were too low, so any possible errors the
other way may be offset, but where I have found the General Counsel's figures too
high, I have reduced them.13
12 There are instances in the payroll records where a man's name is carried on the
payroll for weeks with no showing of hours worked Presumably this is a case of
industrial accident or the like. Including such an individual in the number of woikers
would certainly result in an inaccurate picture of average hours
13 The Respondent showed that the General Counsel overlooked three jackhammer
operators on the payroll during the week ending July 30, 1950 If the hours of those
three were added to those of the four used by the General Counsel, the result would be
to raise the adjusted average hours for that week from 45 to 48 The reason for the
General Counsel's oversight is obvious, because the payroll records as to the additional
three jackhammer operators were not very clear.
BROWN AND ROOT, INC., ETC. , , 521'
2. Shift differential .
Before the commencement of the strike, the Respondent paid a 5-cent premium
to employees on the graveyard shift, the latest of its three shifts. In computing back-
pay, the General Counsel included this 5-cent premium in the backpay of each claim-
ant who had been on the graveyard shift when the strike started. The Respondent-
contests the correctness of the inclusion of this premium pay. The General Counsel's
reason for including it is based on the premise that the Board, in computing a figure
that is designed to make a discunnnatee whole, includes not only wages, but also'
bonuses 'and other emoluments going with the job.14 The Respondent's objection is
based on the reasoning that the claimants would have been entitled to such premium
pay only if it could be shown that they had a right to be reinstated on the night shift
when they applied for reinstatement after the end of the strike. The Respondent
denies that they were entitled as a matter of right to the shift-differential pay. The
Respondent's position appears to have merit. In this case, the discrimination occurred
not at the beginning of the strike when certain of the claimants were on the graveyard
shift but at the end of the strike when they sought reinstatement-and then they were
entitled to reinstatement only if jobs in appropriate classifications were available.
The General Counsel made no effort to determine how many jobs might have been
available on the graveyard shift, if any. But assuming for the sake of argument that,
jobs were available in sufficient number on that shift to provide jobs for all claimants
who had been on that shift before the strike, there is no evidence that the Respond- .
ent's employees had any fixed right or privilege of working on any particular shift.
So far as the evidence discloses, employees hired by the Respondent were assigned to.
the shift where they were needed without their having any choice in the matter, and
the Respondent placed employees on the shift where it decided it needed them
without recognizing any special rights, privileges, or preferences. Furthermore, an
examination of payroll records discloses that men are not always on a single shift
throughout the week. One man might be on the day shift for 2 days, the swing shift,
for 2 days, and the night shift for 1 day in a given week. On this state of the proof,
therefore, I find that no claimants had any right to a shift differential or any privilege
of picking his shift. I omit the shift-differential premium from my calculation of
backpay except where backpay accrued after reemployment.
E. Reinstatement rights of economic strikers
The Board 'found that certain employees, those represented by the IAM, were'
economic strikers and, in its Order, in substance , directed their reinstatement upon
their personal applications if jobs were available. The principal issue in the current
proceedings is whether or not such returning strikers were entitled to the first openings
in their classifications occurring after their personal application or whether the Re-
spondent was free of all duty to them if no IAM claimant was on the spot to make a
personal application between the time when a vacancy occurred and the time when
it was filled. It is the General Counsel's position that, if jobs were not available to,
these applicants at the time of their applications , the Respondent should, in effect.
have established a preferential list and, when job vacancies occurred, called the men
whose names were on the list and offered them jobs. The Respondent, on the other
hand, contends that it was under no duty to seek out the economic strikers for
replacement and that its only duty was to hire them upon their personal application-
if job openings at that time existed
The right to backpay depends upon a finding of discrimination , and a finding of
discrimination against returning economic strikers in a case like this depends on the
refusal of the Respondent to reemploy them although positions are available. The
unfair labor practice strikers had a right to reinstatement as long as replacements
held jobs, but the economic strikers were not entitled to reemployment so long as
permanent replacements had been hired in their positions and no vacancies existed'
for them at the time they applied for rehire. The Board recognized this limitation
on the rights of economic strikers in this case when it said, "As economic strikers,.
these complainants were entitled to reinstatement only if vacancies existed at the
time of their proper [personal) application for employment." This imposes no duty
on the part of the Respondent to recall the economic strikers It places the duty
on the economic strikers to apply for jobs No discrimination was found by the
Board as to these men. Such finding was left to be determined upon compliance'
investigation. Before a discrimination can be found in this case. three elements
., Cf Deena Articare Incorporated . 112 NLRB 371 (insurance benefits ) • Moss Planing
1101 Co 110 NLRB 9,23 (Christmas cifts) : Century Cement 3fanit fact urinry Coinpanp
Inc. 100 NLIIB 1323 ( Christmas bonus)
522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
must be shown: (1) There must be a vacancy in the type of job the economic striker
held before the strike, (2) the returning economic striker must make personal
application for the job which is vacant, and (3) the Respondent must refuse to give
him the available job. Unless a discrimination has first been shown, there can be
no basis for an order either of reinstatement or of compilation of a preferential
list from which men are to be called as needed. Accordingly,, I find that the
Respondent had no duty to seek out the TAM strikers and offer them jobs as vacancies
occurred.15
The investigation in the backpay hearing disclosed that only one job vacancy
existed on the very day that an application was made. In all the other cases, no
vacancy was established to exist on the very day of application. The sole instance
of a vacancy existing on the same day was in the case of the claimant Virgil O. Miller.
He did not testify at the backpay hearing, but he had testified at the unfair labor
practice hearing in 1951, that he applied on "about January 5" and that he guessed it
was about 10 a in The first new man hired as mechanic repairman was hired on
January 5, 1950 (B. D. Sanders, badge No 2919). The next new man hired in that
classification appeared on the payroll on January 10, 1950. No economic strikers
applied at that time.
The General Counsel, proceeding on the theory that it was the Respondent's duty
to offer reinstatement to the TAM men as jobs became available, made no effort
to prove the existence of any vacancy at the very moment of application. To be
sure of the time of a vacancy and the time of the filling of that vacancy, I would
want to see whatever is available in the Respondent's records to show a requisition
for the particular type of worker involved and the employment records in the per-
sonnel files of the new men hired into the jobs of mechanic repairmen or other
classifications of employees represented by the TAM Only in this way could the
exact date of employment be established. The Respondent frequently hired men
the day before they reported for duty (i e., the EOD date). The burden is on the
General Counsel to prove the discrimination and therefore to call for such records
as would prove the time of vacancy and of the new hire. As matters stand, the only
evidence of a vacancy is the appearance of a new name on the payroll. This shows
the EOD date but not necessarily the actual day of hire. In the case of Sanders,
however, it makes little difference whether the date of hire or the EOD date is
used because I notice from the payroll for the week ending January 8, 1950, that
Sanders worked a full 8-hour day on January 5. 1950, on the day shift. This means
that Sanders had actually entered on duty on the morning of the 5th before Miller
appeared at the personnel office to apply for the job. Hence, the job vacancy was
filled when he applied This being true, I find that the General Counsel has failed
to show discrimination as to Miller, and that he has likewise failed to show
discrimination as to any of the other TAM men. It follows that none of them is
entitled to backpay. I do not therefore show their names in the succeeding pages
where the cases of individual claimants are dealt with.
F. Contention of the Respondent that claimants who do not testifly are not
entitled to backpay
The Respondent contends that no backpay should be awarded to claimants who
did not testify. It apparently reasons that it has been deprived of due process if the
General Counsel fails to produce each of the claimants as a witness so that the
Respondent might cross-examine him. Production of each alleged discriminatee as
a witness is not necessary in unfair labor practice cases and I know of no rule that
requires the General Counsel to perform this function in backpay hearings. If the
General Counsel fails to call a witness who might give testimony which the Re-
spondent believes might assist its case, the Respondent is privileged to apply for the
issuance of a subpena and, when the witness appears, request that the Respondent
be permitted to cross-examine the witness because of his adverse interest.
The only reason why the Respondent might desire the claimant's presence is to
prove the facts that the Respondent is charged with establishing. It is therefore in-
cumbent on the Respondent to produce the witness if it wishes to benefit by his
testimony. Some of the claimants were not called because they were ill at the time
of the hearing. The Respondent did not seek a' postponement on account thereof.
Two were deceased before the backpay hearing.
15 Atlas Storage Division, P & V Atlas Industrial Center, Inc, 112 NLRB 1175 (at
1180, footnote 15), enfd 233 F 2d 233 (CA 7) And see Rugcrofters of Puerto Rico,
Inc, 112 NLRB 724 There is no evidence here that the personal applications were in-
tended to be continuing applications for employment as distinguished from applications
for immediate reemployment See American Snuff Company, 109 NLRB 885
BROWN AND ROOT, INC., ETC. 523
The claimant's right to backpay does not have to rest on proof which he supplies.
His rights may be determined on the basis of any competent evidence in the record,
including any inferences that may properly be drawn. In the absence of any such
evidence, it may be that the claim should be disallowed. I shall, therefore, not
adopt a compendious rule that each claimant must testify in order to be entitled to
backpay, but I shall consider each case on all the evidence available. In some
instances there is a lack of evidence to show availability for employment after the
dates of application for reinstatement made by the Union on behalf of certain
claimants . In such instances, I believe no backpay should be found. But if I
find any evidence of availability, I shall find the amount of backpay due regardless
of where the evidence comes from.
G. Findings as to backpay of individual claimants
With the exception of IAM-represented claimants, I have computed the backpay
of each claimant in alphabetical order. The figures shown have been rounded out
to'the•nearest dollar for simplification.
1. Truman E. Anderson, electrician
The Respondent admits that Anderson's backpay period begins January 3 and
ends March 13, 1950. The Respondent denies that he made a reasonable search
for employment during the backpay period and denies that he would have worked
for the Respondent for as many hours during the backpay period as is claimed by
the General Counsel.
At the end of the strike, Anderson was teaching in the electrical shop of South-
ern Baptist College. His contract with the college was for a 9-month school year,
plus summer school. When he received a telegram from his local union to report
back to the Respondent for work on the dam on January 3, 1950, he gave up his
teaching job and returned. It has already been found that he was discriminatorily
refused a job upon his application on January 3, 1950. At the time, the super-
intendent told Anderson that he would let him know when he wanted him back,
and in March he did so.
Between January 3 and March 13, 1950, when Anderson was notified by the Re-
spondent to report to work, he registered at the State employment office at Walnut
Ridge , Arkansas, and returned there once a week or sometimes oftener. Twice
that office called him to notify him of possible jobs. The first was at the Red River
Arsenal. Anderson filed an application there and took an examination but received
no call until a year later. The second was at a textile factory. This job had been
filled by the time Anderson got there.
Independently, Anderson spent about $8 in long-distance telephone calls about
jobs. (No claim was made for this in the specifications and no effort was made
to prove the precise amount spent.) He made applications at two construction jobs
and a shoe factory (which offered Anderson a job 3 days after he returned to work
for the Respondent), made trips to Jonesboro, and telephoned the union business
agent ,in Little Rock about possible jobs. He found no employment before he was
recalled to the Respondent. I find that Anderson was diligent in his search for
employment. He was justified in giving up his teaching job under the circum-
stances, and he was not able to return to it because someone else was employed
to take his place. I find no willful loss incurred thereby.
I shall compute Anderson's backpay on the basis of the average adjusted hours
worked by electricians at the rate of pay for electricians working for the Respondent
during the backpay period. Anderson's backpay is as follows:
Period Gross Net interim Net
Year Quarter backpay earnings back pail
1950 1(1/3-3/13) -------------------- $948 0 $948
2. Benjamin W. Bailey,16 carpenter ,
The specifications claim backpay for this claimant from December 21, 1949, to
October 31, 1950, the period found by the Board to be his backpay.period.17 The
16 Bailey's name originally was not on Schedule B, nttached to the Board's Decision and
Order (those entitled to backpav onlv), but the omission was corrected by order dated
August 15, 1952 The General Counsel's motion regarding Bailey at the opening of the
backnav hearing was, therefore, unnecessary
17 The Respondent appeared to assume that the backpay period should end with the date
of the offer of reinstatement which, in this case, was made on October 26. 1950 The
524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
specifications show interim earnings and expenses for Bailey. The interim earnings
are admitted and require no proof and none was offered. Bailey did not testify.
In computing his backpay, therefore, I omit expenses as a reduction of interim
earnings . His backpay is as follows:
Period Gross Net interim Net
Year Quarter backpay earnings backpay
1949 IV (12/21-31) -------------------- $107 $5 $102
1950 I______________________________ 737 200 537
II______________________________ 840 223 617
III______________________________ 866 1,331 0
IV (10/1-31) --------------------- 274 254 20
Total backpay______________________ _____ ____----- 1,276
3. D. W. Bailey, jackhammer operator
The General Counsel contends that the claimant was never reinstated because he
was never again on the Ozark payroll and because Flippin was held by the court
to be a separate employer. The General Counsel, therefore, claims that Bailey's
backpay period is from January 3, 1950, to March 1, 1953. I have already reached
-the conclusion, as heretofore explained, that I cannot change the findings of the
Board and the court did not expressly require a recomputation of backpay as to
Ozark discriminatees. Respondent denies the terminal date claimed in the specifica-
tions. I shall compute D. W. Bailey's backpay for the period January 3. to July
31, inclusive, since the Board found that he was reinstated on August 1, 1950.
During the first quarter of 1950, Bailey had no employment except what he
created for himself in cutting timber to sell or in clearing rights-of-way for the
highway department. At the time of the backpay hearing Bailey was deceased and
his wife testified sketchily to his earnings. Her memory of dates was poor and she
was unable to testify to the period of time when he cut timber. Her estimate. of
his earnings from cutting timber was $200 from work done intermittently over a
6-month period. As she was unable to fix the date when these earnings began, I
have no way of fixing them as in the backpay period at all. But the General Coun-
sel, in the specifications, shows interim earnings for Bailey in the sum of $105 as
the allowable offset to backpay for the first quarter of 1950.18 I take this to be
,-conceded and, as no greater amount is proved in the first quarter of 1953, I shall
use the figure in the specifications. I have previously explained why the shift differ-
ential claimed by the General Counsel will not be included. D. W. Bailey's back-
pay is as follows:
Period Gross
Year Quarter backpay
Net interim
earnings
Net
backpay
1950 1(522 hours) -------------------- $509 $105 $404
II------------------------------ 541 479 62
III(7/1-31)---------------------- 169 102 67
Total backpay---------------------- ----- --------- 533
4. Jones P. Beal, ironworker 19
The Respondent, in its amended answer, admits that Beal's backpay period is be-
tween January 3 and February 14, 1950, and that he was an ironworker before the
strike, but denies that Beal made a reasonable search for other employment, denies
Board, however, granted 5 days In which to receive and accept the offer (99 NLRB
1047). Bailey was reinstated on November 1, 1950. If the offer is not accepted, the date
,of Its receipt Is customarily the date ending the backpay period If the offer Is accepted,
the backpay period ends with reinstatement or with a date 5 days after the date of the
offer, whichever Is first In point of time.
18 The Respondent appeared to take the position that the General Counsel had a burden
of proving not only what was conceded, but also of proving that the claimant did not
earn more than the amount shown as interim earnings In the specifications. The amount
shown as Interim earnings in the specifications Is an admission requiring no proof If
additional Interim earnings are to be shown, the burden Is on the Respondent to show
-them
19 The proper designation Is structural Ironwork to distinguish It from reinforcing iron-
work The former is a higher skilled job, and the rate of pay is higher.
BROWN AND ROOT, INC., ETC . 525
that he was available for employment by the Respondent, denies that his interim
earnings did not exceed that shown in the specifications, and alleges that Beal
.refused "suitable" employment offered him by the Respondent on January 3, 1950.
The Respondent offered no evidence of any of the assertions made in its answer.
,Particularly, it failed to prove that it offered Beal his former or substantially equiv-
.alent employment before February 14, 1950, and that Beal had refused the offer.
This was evidence that should have been offered sin, the. original hearing.' The
Board's findings that Beal made a personal application for employment and that
,he was offered reinstatement on February 14, 1950 (and not before), would have
foreclosed the Respondent from relitigating the facts alleged in any event. The
burden was on the Respondent to prove any willful loss incurred by Beall and to
-prove the alleged greater interim earnings. It offered no proof thereof.
Beal did not testify, but the evidence shows interim earnings for Beal in the first
quarter of 1950 in the amount of $140.50 at an electrical company of Dallas, Texas.
As Beal returned to work for the Respondent on February 14, 1950, and continued
to work there until August 1950, I infer that Beal's earnings at the electrical company
;preceded his return to the Respondent. This creates a positive inference that Beal
was in the labor market, available for work, and suffering no willful loss. Beal's
'backpay is as follows:
Period Gross Net interim Net
Year Quarter backpay earnings backpay
-1950 1(1/3-2/3) ---------------------- $508 $141 $367
5. J. N. Bevans, Jr.,au carpenter
The Board found that, -after the strike; Bevans applied for reinstatement in person
and that he was offered reinstatement on March 8, 1950. This fixes the limits of the
backpay period. The specifications show no interim earnings during the backpay
period. The Respondent's answer denied that Bevans was unemployed during the
packpay period and called attention, to the fact that the social security' account of
Bevans "indicates earnings of $244.80 during the calendar quarter ending March 31,
1950."; Bevans was not questioned about the earnings shown in the social security
account when he was on the witness stand. However, on direct examination, he testi-
fied that between January 3 and March 8, 1950, he was unemployed, and he accounted
for his movements and efforts to obtain employment throughout the backpay period.
The social security information is not contrary to his testimony that he was unem-
ployed during the backpay period as he might have received such earnings between
March 8 and 31, 1950. I also take official notice of the fact that the social security
records show the employee's earnings in' the quarter in which they are reported, which
,.may or may not be the quarter in which the work was done or the compensation was
paid. In the absence of evidence that the work was done in the backpay period, I
find no reason to show the said sum as interim earnings during the backpay period. It
.was stipulated that Bevans made a reasonable search for employment.
The Respondent argues in its brief to the Trial Examiner that it was an error to
exclude evidence in the backpay hearing that "his Union" failed to notify Bevans of
the Respondent's willingness on January 3, 1950, to reinstate him. The Board found
that Bevans made personal application for reinstatement, on January 3 and was re-
jected. The Respondent was therefore trying to relitigate the unfair labor practice
hearing. Once Bevans was rejected, he had no further duty to apply to Ozark or
Flippin until the Respondent offered his reinstatement. This did not occur before
March 8, 1950. Excluding shift differential, Bevans' backpay is as follows:
Period Gross Net interim Net
Year Quarter backpay earnings backpay
.1950 1(1/3-3/8) --------------------- $529 0 $529
20 On page 2908 of the transcript in the backpay hearing Bevans was asked by the
General Counsel's representative what attempts he had made to find employment Bevans
is shown to have testified, "Well, sir, when I come back and they refused to hire me and
I went up to the employment office they didn't have anything " Upon Respondent's
,objection that this was repetitious, I sustained the objection believing at that time that
Bevans answer was " when I came back, they refused to hire me when I went up to
the employment office . . " and believing that, he was, referring to the Respondent's
employment office, because this appeared to be going into matters covered in the original
hearing Noting that I misunderstood his answer, I now reverse my ruling and let the
answer stand as shown.
526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6. Robert R. Blecker, carpenter
As found by the Board,.Blecker made application for reinstatement on January 3,
1950, but was not offered reinstatement until March 8, 1950.21 The Respondent, in
its amended answer, denies that Blecker was available for employment or desired"
reinstatement,, denies that he was available for employment by the Respondent and
that he did not. receive substantially equivalent employment elsewhere. It alleges
that Blecker obtained permanent employment before the termination of the strike,
that he abandoned the.strike and his right to reinstatement, and that he did not apply
for reinstatement. No evidence was offered of these allegations22 The allegation
that he did not apply for reinstatement is contrary to a stipulation entered into at
the unfair labor practice hearing and the finding of the Board thereon. Blecker did
not testify. However, his application for reinstatement on January 3, 1950, shows
that he was available for employment by the Respondent. I find no evidence, there-
fore, which would toll or reduce backpay. Blecker's backpay is as follows:
Period Gross Net interim Net
Year Quarter backpay earnings backpay
1950 I(1/3-3/8)--------------------- $529 $448 $81
7. Glenn M. Bonner, carpenter
Bonner was out of the labor -market in January and February 1950 and no back-
pay is therefore claimed for him between January 15, 1950, the date of the Joint
Council's application on his behalf, and the end of February of that year. During
the balance of the backpay period, while not otherwise employed, Bonner sought
work at least once a week in Berryville, Arkansas, where he lived. Specifically he
testified that he applied at a die-cast;,plant near Harrison, Arkansas, and at various
lumberyards in Berryville and Eureka Springs, Arkansas. Bonner's memory of
dates was faulty, a•not surprising condition 8 years after the date of the discrimina-
tion. Bonner 'testified that the .dates given in an affidavit signed by him in 1954
were more likely to be accurate and I rely on the affidavit for that purpose.23 How-
ever, where a discrepancy exists between his testimony and his affidavit as to the
amount of his earnings I have taken the largest amount conceded. During March
and April 1950,,Bonner picked up an occasional day's work catching and hauling
chickens for a dealer. In June 1950 he,got a job driving a truck for about 4 to 6
weeks at $25 a•week. Soon after the end of this job, Bonner was offered a job as
a carpenter, his former classification, by .the Respondent, and he was reinstated on
July 29, 1950.
Bonner did not register at the State employment office. An issue is raised con-
cerning the reasonableness of his search for interim employment . Bonner testified
that he did not apply for unemployment insurance-because he thought he could
get as much from 'his picking up odd jobs as he could from unemployment insur-
ance. It does not appear that .he knew that he could apply for job references at
n The Board found that he•was reinstated on March 8 . The Intermediate Report finds
that he was sent a register$dt letterson that dateollering,'him reinstatement 'The pay-
rolls and personnel files do not show that Bleaker was rehired However, this does not
affect the dates of the backpay period.
21 It is incumbent on the Respondent to prove facts tending to reduce the amount of
backpay due. Denying that the claimant did not have interim earnings or did not have
more than is already conceded does-not throw the burden of proof on the 'General Counsel
to prove that the claimant had no earnings or had no earnings other than those shown in
the specifications.
=In its brief to the Trial Examiner, Respondent insisted that -backpay should end
with April 1950 because Bonner testified that that was when, according to his memory,
he returned to work for the Respondent after he received a letter offering him reinstate-
ment The Respondent argues that April should be accepted as the terminal date even
though it was obvious that Bonner was in error about the date and even though the
evidence discloses no offer by the Respondent of reinstatement before July 25, 1950, and
even though the Respondent's own ,records show that.Bonner was rehired on July 29 1950,
and not before. In its brief the Respondent imputes bias to the Trial Examiner by argu-
ing that the Trial Examiner "tried to get [Bonner] to say that the dates in his prior
written statements . . . were more accurate than his present memory" This "attempt"
consisted of the following questions • "Trial Examiner • I will just ask the witness with
respect to the Respondent's Exhibit 15 [his affidavit] to explain any, discrepancies •betwecn
the information given on that form and the testimony he has given here.-A Well, that
is it. The only thing I might have got my dates mixed up. Trial Examiner • Which is
correct" The Witness : This is nearer correct than what I stated "
BROWN AND ROOT, INC., ETC. 527
the State employment office without registering for unemployment insurance. Fail-
ure to register at the State employment office does not, in itself, bar backpay.24 I
find that Bonner was diligent in his search for work.
Bonner owned 40 acres of land which he called a farm, but,most of it was pas-
ture. Some of it was wooded, and he occasionally cut wood and took it to town
to sell. By these efforts he received an estimated $85. One acre of his land was
in garden, but no evidence was adduced to show whether or not he marketed any
vegetables. Between the end of his job as a truckdriver, on which he was paid
$25 a week, a job which he lost when he refused to buy his groceries from his em-
ployer at a higher cost-than that for which he could buy-them across the street, he
just stayed around home, Bonner testified on cross-examination, and cut a little
wood and sold it. However, on redirect, he testified that-he went into town every
weekend to get groceries, and would then make inquiries for jobs and that he would
do the same when he would bring in a load of wood during the week. On all the
evidence I find no willfully incurred loss.
The specifications show no earnings from the sale of wood. In effect, Bonner
was self-employed while cutting wood, and his net profits should be shown as
interim earnings, but there is no evidence of the value of standing trees, or any costs
involved in the operation. As the total amount of earnings is relatively small and
as standing trees are (I infer from evidence in the record, which accords with my
observation) fairly plentiful in the Ozarks, I shall treat the entire amount as interim
earnings, in the absence of evidence making a more exact finding possible.
The Respondent argues that, as Bonner was not in physical condition to return
on January 15, 1950, the date when the Joint Council made an application for a
number of employees, including Bonner, it was Bonner's duty to make application
when he was in physical condition. This argument overlooks the fact that the Re-
spondent rejected the application on Bonner's behalf. Thereafter, it was the duty
of the Respondent to offer reinstatement to the employees denied reinstatement; it
was not their duty to apply for reinstatement 25
The physical condition which the Respondent contended rendered Bonner unfit
for work on January 15, 1950, pertained to one of his eyes. In February 1949 he
had an operation for removal thereof and in January 1950 he returned to the hos-
pital to have a false eye inserted. The specifications except the period from Janu-
ary 15 to February 28, 1950, from the backpay period on this account, because
Bonner used this time as an adjustment period. Whether or not he would have
used that much time if he had been offered reinstatement earlier is uncertain. Had
the Respondent accepted the application of the Joint Council on Bonner's behalf,
Bonner might have been capable of making arrangements to report within a reason-
able time thereafter. Although I find that the Respondent's obligation was not dis-
charged as to Bonner, I shall, like the specifications, omit the period from January
15 to February 28, 1950, from the backpay period because, whether idleness for that
period was fully necessary or not, Bonner did not seek work in that period.
The Respondent contends that Bonner was not a striker. This contention was
disposed of by the Board's finding that Bonner had been discriminated against. In
'any event, evidence in the original record shows,that Bonner stayed out because he
refused to cross the picket line. By so doing, he joined the strike as a sympathizer.
Bonner's backpay is as follows:
Period Gross
Year Quarter backpay
Net interim
earnings
Net
backpay
1950 I(3/1-31)---------------------- $330 0 $330
II------------------------------. 840 $150 690
III(7/1-25)---------------------- 253 135 118
Total backpay---------------------- ----- --------- 1,138
8. J. B. Brents, carpenter
The Board found that Brents had been offered reinstatement on March 8, 1950,
and been reinstated on March 21, 1950.26 Claim-is made for backpay only to
March 13, 5 days after the date the offer was made, as approved by the Board.27
24 R K Baking Corp., 120 NLRB 772 ; Ozark Hardwood Company, 119 NLRB 1130
zs Morristown Knitting Mills, 80 NLRB 731 ; Happ Brothers Company, Inc, 90 NLRB
1513
2 The letter offering reinstatement gave Brents until March 20, 1950, to report His
personnel file shows that he was hired on March 20 but was directed to report for work
•on March 21
n 99 NLRB 1031, at 1047.
528 DECISIONS OF NATIONAL LABOR - RELATIONS BOARD
The Respondent argues that Brents is not entitled to backpay because Brents
. . did not know the strike was over, did not authorize the Union to apply for
reinstatement for him and did not know that ODC had offered on 1/24/50 to
rehire the men who showed up. If the Union had advised him of ODC's letter,
he would have reported. . . Brents is not entitled to backpay because he
would have been hired if he had reported to work.
This argument assumes facts not proved and assumes at least one fact which is
contrary to the evidence. 'Without regard to specific, authorization, the Union as
"statutory bargaining representative of the Joint Council strikers" had, the Board
held, the necessary' authority to make -application for the reinstatement of those
strikers, of whom Brents was one. The Respondent did not make an unqualified
offer on January 24, 1950, to reinstate all the strikers found entitled to be,reinstated.
Although the Respondent could, by discharge or demotion of replacements, have rein-
stated all employees to their former or substantially equivalent positions, the Re-
spondent merely offered to employ "as many . . men as possible" if they made
personal application. That it intended by this offer not to reinstate all those who were
entitled to reinstatement is evident from the fact that some former strikers who
applied thereafter were rejected. In the circumstances in which this language was
employed, the words "as many . as possible" must be taken to mean "as many
as the Respondent chose to employ" since it was unwilling to discharge, demote, or
transfer replacements in order to make room for strikers. Although the Board did
not state that the Respondent's letter of January 24 was not a bona fide offer of
reinstatement,28 it did so in effect by finding that the letter was a rejection of the
demand of the Joint Council 'and by :finding the period of discrimination for many
strikers, including _Brents, to run between the date of the Joint Council's application
of January 15, 1950, and the `varidus-'dates found to be those of reinstatement or
offer of reinstatement as shown-in the Decision and Order. Further, the Board stated-
at 99 NLRB 1043 that "the rejection by the Respondents of the Joint Council's
blanket demand on January 15, 1950, made it unnecessary for these listed strikers
to apply personally at the dam site." If the so-called offer of January 24, 1950, had
been found to be a bona fide offer of reinstatement , the Board would not have found
that personal application was unnecessary nor would the Board have found that the
period of discrimination for Brents was between January 15 and March 8, 1950 (plus
5 days allowed in which to accept). It is clear that Brents was not obligated to
make a personal application in response to the January 24 letter. 29 Hence , his lack
of awareness of it is immaterial. u
The Respondent asserts that Brents would have been hired if he had personally
applied in response to the suggestion made in Respondent's letter of January 24, 1950.
There is no evidence to support this assertion.
The Respondent argues that Brents made no application to Flippin for employment
and, therefore; for that reason, among others, failed to make reasonable effort to
obtain other employment. As Flippin hired only through the personnel office of
Ozark, application at Flippin was included in the application to Ozark of January
15, 1950, and personal application was not necessary.
The Respondent contends that Brents was not entitled to any backpay because he-
did not make a reasonable search for work. During the backpay period Brents was
living in Morrilton, Arkansas, a county seat of approximately 5,500 population. He,
testified that he registered with the State employment service in Morrilton, drew un-
employment compensation, and reported there every 2 weeks, at which time he was
asked what he had done, and he gave to the clerk a list of places to which he had been
to seek work. He could remember only a few of the places where he had applied.
These were all in Morrilton. He was offered no jobs and was referred to none by
the employment service. The Respondent sought to discredit Brents' testimony that
in 1950 he registered with the State employment service in Morrilton. Brents' per-
sonnel folder contained information only about a registration in Harrison, Arkansas,
in 1949. At the end of the hearing it was stipulated that the Respondent's records
showed that Brents had received $60 in unemployment benefit payments in 1950-
based on the benefit year of 1949 (first quarter). It does not appear whether these
2' Without discussion , the Board found that the Respondent's letter of January 24,
1950, rejected the Joint Council's request of January 15, 1950 See 99 NLRB 1031,
at 1041.
11 Contrast the finding as to Brents with that as to Putney, footnote 39, 99 NLRB-
1031, at 1049. Putney was in the list of workers which the Respondent stated it would'
reemploy.
80 The same arguments are made by the Respondent with respect to other claimants
It will be unnecessary in each case to reiterate what I have said here.
BROWN AND ROOT, INC., ETC. 529
payments were received as a result of registration at Harrison or at Morrilton. .
Furthermore, there is no evidence to show that Brents did not receive additional
payments based on earnings in 1949 from some employer other than the Respondent.
I credit Brents' testimony. The backpay period for Brents is only about 2 months.
It was not shown that Brents in that time ceased to report to the employment office
in an effort to find employment. I find no evidence of willful loss. Brents' backpay
is as follows:
Period Cross Net interim Net
Year Quarter backpay earnings backpay
1950 1(1/15-3/13) ------------------- $455 0 $455
9. H. L. Carlton, dinkey operator
Carlton's name is included in the specifications with a claim for backpay for the
period between January 15 and July 25, 1950. The Board found his period of dis-
crimination to be January 15 to March 6, 1950. At the opening of the hearing the
General Counsel moved to amend the last date to July 25, 1950, on the ground that
the Board's finding was contrary to the evidence. As only the Board may amend its
findings, I denied the motion.
Carlton did not testify either at the original hearing or at the backpay hearing
The social security reports, showing Carlton's earnings during 1950, indicate that he
had not retired from the labor market. The Respondent denies that Carlton made a
reasonable search for employment and denies that Carlton was available for em-
ployment by the Respondent during the backpay period. The Respondent does not
state on what it. bases its assertions. That Carlton was in the labor market and
available must be presumed from the fact that the Joint Council made application on
his behalf on January 15, 1950, and the fact that he had earnings in the first quarter
of 1950. The Respondent offers no evidence that Carlton was ill or otherwise unable
to work. The fact that Carlton may have been working outside the State of Arkansas
during the backpay period, as might be suggested by the social security report of
his earnings , did not mean that Carlton was unavailable for employment by the
Respondent .31 ,Carlton's backpay is as follows:
Period Cross Net snterini Net
Year Quarter backpay earnings backpay
1950 1(1/15-3/6) -------------------- $385 *$55 $330
*Prorated.
10. Wirt A. Choate, ironworker
It is admitted that the backpay period is January 15 to July 25, 1950. As Choate's
net interim earnings in the first and second quarter of 1950 were in excess of gross
backpay, the only period with which we need be concerned is that from July 1 to 25,
1950. During that period he earned $291.60 in interim employment which exceeds
the gross backpay of $268.60 shown in the specifications. However, the specifica-
tions,show $51.20 in expenses and net earnings of $240.40. Choate did not testify
at either the unfair labor practice or the backpay hearing, and no proof was offered
of the claimed expenses. The expenses are, therefore, disallowed, and I find that
no backpay is due to Choate.
11. George Cloven, signalman
Cloven testified at neither hearing. The Respondent does not concede that he
was available for work during the backpay period, January 3 to February 7, 1950.
The Board found that the Joint Council made application for reinstatement of Cloven
on January 3, 1950, and Cloven' s name is on the January 15 list sent by the Joint
Council to the Respondent, albeit Cloven is there listed as an ironworker instead of
as a signalman .32 The Board drew an inference of availability from the applica-
tions for reinstatement made by the Joint Council on behalf of the returning strikers,33
Cloven did, in fact, return to the Respondent's employ on February 8, 1950. I
si Southern Furniture Manufacturing Company, 91 NLRB 1159, enfd. 194 F 2d 59
(CA. 5 ) , cert. denied 343 U S 964.
52 See footnote 26 in Board' s Decision and Order, 99 NLRB 1043, to the effect that the
discrepancy is immaterial.
33 See footnote 29, 99 NLRB 1045 The Board here was speaking of men in the classi-
fication listed by the Respondent as ones in which it needed men; but the others, although
not offered jobs, would likewise have been available under the same reasoning
530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
find no evidence to rebut the inference that he was available during the backpay
period. Cloven's backpay without shift differential is as follows:
Period Gross Net interim Net
Year Quarter backpay earnings backpay
1950 1(1/3-2/7) --------------------- $208 0 $208
12. V. W. Cooper, ironworker
The Respondent claims that Cooper was not available for employment, by the
Respondent before June 1950 (when he made a personal application for a job), be-
cause he "was permanently employed in substantially equivalent employment
' The fact that Cooper was outside the State is immaterial.34 Likewise is it
immaterial that Cooper may have had other employment, whether or not substan-
tially equivalent.35
Cooper's backpay period is January 15 to July 25, 1950. The General Counsel
shows, in the specifications, interim earnings at C. F. Braun & Co. during the first
and second quarter of 1950, but shows Cooper as unemployed in the third quarter.36
Cooper testified, however, that, after being rejected by the Respondent in June 1950,
he got a construction job at Los Alamos, New Mexico, in the latter part of June
and worked there for about 3 months and earned about $100 a week. His estimate
appears to have been high in view of the fact that he gave his hourly rate as $2.05
(he believed-I find that he was not certain) • and testified that he worked a 40-hour
week, weather permitting, and that there was not a great deal of overtime-perhaps
an hour a week. However, the claimant's estimate of his average earnings must be
accepted in the absence of a more accurate computation. I shall, therefore, credit
the Respondent with Cooper's interim earnings for 31h weeks at $100 per week
in the third quarter of 1950. As this sum ($350) exceeds the gross backpay for
that quarter shown in the specifications, no backpay will be due for that period.
Cooper's interim earnings for the first quarter of 1950 also exceeded his gross
backpay. His backpay for the second quarter of 1950, therefore, is the only one to
be figured. In that quarter his backpay is as follows:
Gross Net interim Net
backpay earnings backpay
$1,153 $144 $1,009
13. Lee R. Cutler, air"tool operato1
The Board found that Cutler had made application 'for reinstatement on January
15, 1950, through the Joint Council and had been reinstated-on May 24, 1950. On
the latter date, Cutler was hired as a laborer at 85 cents an hour, which was 121h
cents below his former rate of 971h cents. However, 5 days later he was -reclassified
temporarily to vibrator operator for 2 days at $1 an hour which was 21h cents
above the rate for that job, and the Board found that this job was substantially
equivalent to that of air tool operator. Cutler was permanently reclassified to
vibrator operator on June 5, 1950, at the rate of $1 an hour. The Board found no
discrimination after May 24, 1950. That is, therefore, the cutoff date:
The Respondent alleges that Cutler did not make a reasonable search for' interim
employment and that he was not available for employment by the Respondent
before May 24, 1950. That he was available appears to be clear. In addition
to making application for reinstatement on January 15, 1950, through the Joint
Council, Cutler applied in person twice thereafter before he was rehired on May 24.
The Respondent adduced no evidence of an offer of reinstatement before the one
resulting in his reinstatement on May 24, 1950. On the entire record, I find that
Cutler was available for employment throughout the backpay period.
In January or February 1950, Cutler cut some wood and made about $25. He
applied for a job with civil defense "in the West" and "tried employment services"
in Mountain Home, Arkansas, but found no work. Soon after cutting wood, Cutler
was asked to take over a farm for one L. P. Reed, who was going into the real
estate business in Missouri. Cutler was to get all the crops. Cutler applied for GI
34 Southern Furniture Manufacturing Company, 91 NLRB 1159, enfd 194 F. 2d 59
(C A 5), cert denied 343 1 S 964
ss Phelps Dodge Corp v. N L R B , 313 U S 177; N L R B v. Blanton Co , 121 F 2d
564 (C A 8) ; NLRB v. Keystone Freight Lines, 126 F. 2d 414 (C A. 10) ; N L R.B v.
Weirton Steel Co, 135 F 2d 494 (C.A 3)
se The social security information shows no reported earnings in the third quarter of
1950 for Cooper.
BROWN AND ROOT, INC., ETC. 531
training as a farmer although he testified that he received no compensation from the
Government. He testified that he had his crops in when Reed returned and resumed
possession and control of the farm. Cutler also testified that he received no com-
pensation from Reed for his work, that all he got was butter, milk, and eggs while
there and that he had built his own house from the woods. He testified that when
Reed returned, the latter told him he was not satisfied with the way Cutler was doing
things. The explanation of his failure to receive anything was so garbled that I can
make little or no sense out of it.37 However, Cutler's testimony makes it clear
that when he told the Veterans Administration that he was no longer farming, that
administration barred him from further rights. No effort was made by the parties
hereto, through Reed or the Veterans Administration, to get a more exact explana-
tion. Three days after Reed returned and took over his farm, Cutler returned to
work for the Respondent.
In the absence of evidence to show that Cutler's loss of possession of Reed's farm
was attributable to his own fault, I do not find that Cutler incurred a willful loss.
However, I believe that he should be charged with some interim earnings for the
time he spent on the farm and looked for no other work. If Cutler had an enforce-
able agreement with Reed, the agreed amount which he should have received, whether
demanded or not, might be deducted from gross backpay. (Sterling Furniture Com-
pany, 109 NLRB 602, 605.) But here the evidence does not make it plain whether
or not there was an enforceable agreement, or, if so, the value thereof. If the agree-
ment was verbal; it might have been unenforceable. In any event there appears to
be no way of ascertaining the value of the crops so that cannot be used as the measure
of interim earnings. The General Counsel apparently felt that Cutler should be
charged with some interim earnings because the specifications show $54 in the first
quarter and $108 in the second quarter as interim earnings from L. P. Reed for farm
work. How this is computed was not explained. If it was intended to be the equiva-
lent of wages for farm labor, it was low. Cutler testified that he was on the farm for
3 or 4 months. Since he returned to work at the dam on May 24, 1950, just a few
days after Reed repossessed his farm, Cutler must have started farming in about
mid-February. I find it difficult to believe that, if Cutler applied for self-employment
benefits under the GI bill, he would not, in 3 or 4 months' time, have received any
payments thereunder, especially as his testimony indicates that he was receiving
schooling until he was dispossessed by Reed. Apparently he was not being paid for
on-the-job training. Absent any.evidence to the contrary, I find that Cutler received
no cash benefits. An exhibit introduced in evidence by the Respondent shows the
value of farm labor in Arkansas. On the basis of these figures, I find that Cutler
should be charged with interim earnings in the first and second quarters of 1950 in
the amount of $150 each quarter.
The Respondent, in its brief, assigns as reasons why Cutler should not receive back-
pay (1) that he was out of the State, (2) that he had not personally authorized the
Joint Council to make application for his reinstatement, (3) that he did not know
the strike was over when he applied for work, (4) that he did not mention being a
striker when he made application, and (5) that while he was on GI training on the
farm, he was not on the labor market.
I have already disposed of the first and second of the above allegations in connection
with other claimants. The third reason is immaterial. If the Respondent had offered
Cutler's agent, the Joint Council, to reinstate him at a specified time, the agent would
have been responsible for letting Cutler know, and Cutler would then have learned
that the strike was over. If Cutler applied for rehire without knowing whether or
not the strike was over, this might prove that he intended to return to work regard-
less of the strike-in other words, he may have intended to abandon the strike if he
thought it was still continuing. However, it does not appear that he did intend to do
so until after the strike was, in fact, ended and until after the Respondent had dis-
criminated against all those found by the Board to have been discriminated against, in-
cluding Cutler. Therefore, Cutler's attitude toward the strike after January 15, 1950,
is immaterial. With respect to the fourth reason set forth above, that was disposed
of by the Board in connection with the application of C. L. Stone in footnote 51 of its
37 After testifying that when he took Reed 's farm he "figured on going to school, this
GI school, the GI Bill of Rights I was going to get and go into farming," Cutler testified,
"He [Reed] came back and said he wasn't satisfied with what I had done so that lost my
schooling because I got a letter that when my stuff burned up was in there that they wrote
from right here to this school, Mountain Home, that they would see I never got in another
school because I didn't come a time and they wouldn't take my word for what happened "
No effort was made to get a further explanation
614913-62-vol . 13 2-3 5
532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Decision and Order . As to contention (5), it has already been decided by the Board
that acceptance of GI on-the-job training is not an incurrence of willful loss or with-
drawal from the labor market 38 Cutler 's backpay is as follows:
Period Gr088
Year Quarter backpay
Net interim
earnings
Net
backpay
1950 1 (1/15-3/31) ------------------- $466 $150 $316
11(4/1-5/24) -------------------- 295 150 145
Total backpay______________________ ----- --------- 461
14. Eugene N. Cypert, carpenter
Claim is made by the General Counsel for backpay for Cypert for the period from
January 15, 1950 , to November 30, 1952 , although the Board found that he was
reinstated on March 21 , 1950, when he reported to Ozark for work in response to an
offer of reinstatement which he received on March 8 , 1950 . The General Counsel
proceeds on the theory that Cypert 's assignment by the Ozark employment office to
work at Flippin on March 21 , 1950, did not constitute reinstatement in view of the
court's ruling that Ozark and Flippin were separate employers. I have previously
disposed of this argument adversely to the General Counsel.39
Cypert testified at the original hearing and admitted that he had received from
the personnel office an offer of reemployment on March 8 , 1950 . The Board made
no finding concerning this offer by the Respondent but merely found that Cypert
was reinstated on March 21, 1950. Had the Board found that Cypert had received
this offer, backpay, according to the Board's practice in this case, would have been
cut off 5 days after the date of receipt of the offer , which in this case would be
March 13, 1950. Although the failure to make a finding of receipt of the offer
appears to be an oversight , I shall , in accordance with the Board 's findings , compute
Cypert's backpay to March 21, 1950.
The Respondent , in cross-examining Cypert, sought to prove matters not in issue
according to the pleadings, and made an offer of proof that Cypert was not a striker.
The offer was rejected inasmuch as the Board had already found discrimination.40
The Respondent also sought to prove that Cypert held a personal grudge against
the Respondent which caused him to form a determination not to accept employ-
ment at Ozark even if offered . Cypert was not obliged to decide whether or not
he would return to Ozark before he received an offer of reinstatement . When he
did receive it, he returned. The fact that he was put on the Flippin payroll I con-
sider to be immaterial and as not providing that he would have refused to work for
the Respondent 41
In Cypert's case, as with others , the Respondent contended that the application
made Eby the Joint Council on his behalf was not a proper application for, reinstate-
ment as Cypert had not- given the Joint Council specific authority to do so. There
is no merit in this contention as I have previously pointed out and as the Board
previously found.
The Respondent contends that, by accepting employment with other employers
during the strike, Cypert abandoned his employee status with the Respondent.
There is no evidence that Cypert took such work as substantially equivalent em-
-ployment. The contention is without merit.42
The Respondent contends that Cypert admitted interim employment in the first
quarter of 1950 other than that which was shown in the specifications. Cypert's
memory for occurrences and dates was, like that of many other witnesses after the
lapse of so many years, confused and imperfect. Taking Cypert's testimony as a
8 Ozark Hardwood Company, 119 NLRB 1130, at 1133.
ea The illogical aspect of the General Counsel's argument might be illustrated by assum-
ing that^Cypert had, upon rehire, worked 1 day on the Ozark payroll before being trans-
ferred to the Flippin payroll. As there appears to be no question of the right of Ozark to
transfer its employees to Flippin , I see no reason to object to an assignment to Flippin
at the outset
40 In its offer of proof the Respondent called attention to a letter by Cypert in which he
mentioned leaving the Respondent in December 1948 On the basis of this letter, even if
the offer of proof were to be received , I could not find that Cypert was not a striker. The
letter was carelessly drafted and there appears to be an obvious omission at the crucial
point.
41 It is conceivable that the result of Cypert 's medical examination may have influenced
the personnel office to put Cypert on the Flippin payroll as less hazardous work, as his
hearing apparently was worse at the time of his reinstatement
4= Phelps Dodge Corp v NLRB, 313 U.S. 177.
BROWN AND ROOT, INC., ETC. 533
whole, and all other evidence available , I find that the specifications set forth
Cypert's interim earnings with reasonable accuracy. It may be noted that on sub-
pena from the Respondent , Cypert produced personal records of his employment,
but the Respondent did not see fit to have any read into the record or otherwise
introduced in evidence . I find Cypert's backpay ( without shift differential) is as
follows:
Period Gross Net interim Net
Year Quarter backpay earnings backpay
1950 1(1/15-3/21)* ------------------ $524 $38 $486
*The General Counsel computed 472 hours in this period . There would be 471 hours if
the weeks ending on January 15 and March 26 were both included. If reinstated upon
application , Cypert would presumably have started on January 16, as the week ending
the 15th should not be included . As he would have worked less than half a week in the
week ending March 21, I do not include that either.
15. Charles Dorell , electrician
The Board found that the Joint Council made application for reinstatement of
Dorell on January 15, 1950, and that the Respondent offered him reinstatement on
July 25, 1950 . Dorell did not testify at either the unfair labor practice hearing or
the backpay hearing and no explanation was offered concerning the failure to call
him.43 No interim earnings are shown for him on the social security report or in
the specifications . No evidence was offered to show that he was in the labor
market during the backpay period except what inference might be drawn from the
fact that the Joint Council made application on his behalf . The total absence of
any evidence of Dorell 's whereabouts , of any earnings , and of any attempt to pro-
cure interim employment , dissipate the inference that (although available for em-
ployment on January 15, 1950 ) he continued in the labor market thereafter during
the backpay period. I recommend that the claim on his behalf be disallowed.
16. William H . Drown , carpenter
The Board found that the Joint Council made application for reinstatement on
behalf of Drown on January 15 , 1950 , and that the Respondent offered him rein-
statement on March 6, 1950. Drown did not testify at either the unfair labor prac-
tice hearing or the backpay hearing.
The General Counsel apparently prorated Drown 's first quarter earnings, for the
specifications show interim earnings of $297 .49, whereas the social security report
discloses earnings by Drown for the first quarter of 1950 in the sum of $552.49
from Houston A. Jones of Mountain Home, Arkansas . Jones, a cabinetmaker and
housebuilder , was called as witness by the Respondent , and confirmed the first
quarter earnings . His testimony also made it apparent that Drown had worked
for Jones steadily since early in 1949 and long after the end of the backpay period.
This does not mean , however , that Drown was not available for employment by
Respondent or that he had made a decision not to return to the Respondent even
if offered reinstatement . 44 Drown's backpay is as follows:
Period Gross Net interim Net
Year Quarter backpay earnings backpay
1950 1(1/15-3/6) -------------------- $397 $297 $100
17. R. V. Dunn , rigger
The Board found that Dunn was discriminated against from January 15, 1950,
when the Joint Council made application on his behalf, until July 25, 1950, when
the Respondent offered him reinstatement . At about the beginning of this period,
Dunn was unemployed . 45 On February 1, 1950, he bought a farm in Henry County,
Tennessee . From January to June, Dunn was engaged in getting the farm fixed
4s The General Counsel explained the failure to call some of the claimants ( not named)
on the ground that the amount claimed was relatively small and that there would be too
much expense incurred in bringing witnesses from great distances . The amount claimed
for Dorell was not small . It totaled nearly $2,700 . I notice that other electricians were
able to get interim employment and I consider it peculiar that Dorell , an electrician, was
shown to have had no interim employment.
44 East Texas Steel Castings Company, Inc , 116 NLRB 1336 , at 1343; LB Hosiery
Co.. Incorporated , 99 NLRB 630 , at 634.
45 At the unfair labor practice hearing, he testified that he had been laid off from his
Oak Ridge job on about January 4, 1950.
534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
up for cattle and in getting his ground prepared and his crops in. He testified,
however, that he watched for another job to help him pay for his farm. In the
latter part of June he learned of a TVA job at Camden, Tennessee, about 55 miles
from his house. He obtained work and continued working there for about 2 years,
commuting between Camden and his home. In October 1950, he sold cotton which
he had raised but sold none of his other crops.
The Respondent argues that Dunn was not available for employment during the.
backpay period because he had left the State and because he had bought a farm,
which it is contended, would have prevented his return to the Respondent's em-
ploy. I have heretofore stated that absence from the State does not establish un-
availability.46 At the unfair labor practice hearing, Dunn testified that the purchase
of the farm would not have prevented his return to the Respondent, and at the
backpay hearing he testified that he wanted work to help pay for the farm and that
in June he took a job in Tennessee and kept it for about 2 years. It cannot be specu-
lated on the basis of the purchase of the farm alone that, because Dunn did not re-
turn to the Respondent after receiving its July 25 offer of reinstatement, he would
not have done so before. He was not obliged to make a decision as to whether or
,not to return to the Respondent, following rejection of the Joint Council's letter of
January 15, 1950, until the Respondent had offered him reinstatement.47
Although Dunn may have been theoretically available for employment by the
Respondent', a' question is raised- as to whether or not Dunn really wanted work as
a ngger.or incurred a willful loss by not making an active enough search for such
work after he bought his farm. Of course, operating a farm may be said to consti-
tute going into business for one's self and, if farming were undertaken as a means of
support until work as a rigger became available, no problem would exist. Before
Dunn bought his farm, he registered for unemployment benefits and "drew a couple
of checks" before "some man stopped to check," i.e., investigate the fact that Dunn
was working on a farm. As a result of his conversation with this man, Dunn's un-
employment insurance was stopped. According to Dunn, "you are not supposed
to draw social security working on the farm." From this, the Respondent deduces
that Dunn must have withdrawn from the labor market. I do not agree. The fact
that Duni3's unemployment insurance was terminated does not mean it was ter-
minated because Dunn refused to look for work as a rigger. It is more likely that
it was terminated because unemployment insurance is not paid to anyone who has
a• job, and operating a farm is considered"ajob, even if the earnings therefrom are
not realized for a considerable time. I find, therefore, that the purchase of the
farm on which he lived and the termination of Dunn's unemployment insurance do
not establish Dunn 's unavailability nor constitute a willfully incurred loss.48
The Respondent contends that Dunn's net profits from his operation of his farm
should be deducted from backpay. These profits were not realized, however, until
after the end of the backpay period. Under the formula of the Woolworth case,49
earnings (and net profits from self-employment) are credited as interim earnings
on a quarterly basis. Consequently they will not be taken into account here.
Dunn's earnings on his TVA job will be prorated in the third quarter so that earnings
following July 25 will not be included. Dunn's backpay is as follows:
Period Gross Net interim Net
Year Quarter backpay earnings backpay
1950 1(1/15-3/31) ------------------- $826 0 $826
II ------------------------------ 1,168 $86 1,082
III(7/1-25)---------------------- 281 258 23
Total backpay______________________ _____ _________ 1,931
18. Francis Flippin, carpenter
The Board found discrimination for the period between January 15 and July 25,
"1950. When offered reinstatement in July 1950, Flippin did not accept it. His
-reason for not returning then was that the Respondent had not recognized the
Union, and he testified that he would not have gone back earlier unless the job had
gone union and he understood it had not done so. From this answer, I conclude
4s Southern Furniture Manufacturing Company, supra
47 East Texas Steel Castings Company, Inc., supra, at 1343-1344; Fox Midwest Amuse-
ment Corporation, 98 NLRB 699, at 720, footnote 15.
48 Columbia Pictures Corporation and Association of Motion Picture Producers, Inc,
et al, 82 NLRB 568, at 584-585 (White).
49 P. W Woolworth Company, 90 NLRB 289
BROWN AND ROOT, INC., ETC. 535
that Flippin 's services were not available to the Respondent during the backpay
period.50 Under the circumstances , the application of the Union for Flippin's re-
instatement did not constitute a bona fide offer on Flippin 's part to abandon the
strike and make himself available for work.51 I recommend no backpay for Flippin.
19. Jason S. Ford, carpenter
The Joint Council made application for reinstatement of Ford on January 3, 1950,
and the Respondent, by registered letter dated March 6, 1950, offered him rein-
statement . Ford testified at neither the unfair labor. practice hearing nor the back-
pay hearing. The social security reports in evidence show no earnings for him during
the backpay period, and there is no other evidence that he was in the labor market
during the backpay period after January 3, 1950. I find the evidence insufficient to
show Ford's availability to work for the Respondent at any time after January 3,
1950. I recommend no backpay.
20. A. D. Freeman, cement finisher
Backpay is claimed for Freeman between January 15 and July 25, 1950. Free-
man testified at neither the unfair labor practice hearing nor the backpay hearing.
No social security report on Freeman was offered in evidence ( not even a blank
one) and the specifications show no earnings for Freeman during the backpay
period. The Respondent's personnel files contain no information to show that he
was in the labor market during the backpay period . On this state of the record,
I find no evidence from which it may be inferred that Freeman was available to
work for the Respondent after January 15 , 1950 . I recommend no backpay.
21. W. A. Gardner , electrician
At the end of the strike , Gardner was working in Oklahoma but returned to
Arkansas when notified that the strike had ended and that he should return. The
Board found that he made personal application for reinstatement on January 3, 1950,
and that the period of discrimination lasted until July 25, 1950, when the Respondent
sent Gardner a letter offering him reinstatement.
Following his unsuccessful application for reinstatement , Gardner was unemployed
until April 1, 1950. In the interim , he sought employment through his union and, to
a limited extent , by himself. He lived in Booneville , Arkansas, and weekly he alter-
nately telephoned or visited the union hall in Fort Smith , Arkansas , to inquire about
work. A claim was made for his expenses of traveling between his home in Booneville
and Fort Smith but, as Gardner had no earnings during that quarter , the claim must
be disallowed.
Gardner testified that he registered at the State employment service for unemploy-
ment compensation in January 1950 and received checks throughout the first quarter
of 1950 except for the initial waiting period . The Respondent's personnel records
show that Gardner filed a claim in September 1949 . As this was during the strike,
Gardner would not at that time have been entitled to receive unemployment insurance
with the Respondent as his base period employer. It does not appear whether
Gardner's claim in January 1950 was a renewal of'the September 1949 claim or a new
one with a different base period employer . It makes little difference in any - event,
because I find that Gardner's efforts to find work through his union showed that he was
in the labor market and sustained no willful loss.
From April 1 to May 4, 1950, Gardner worked at a job in Campbell , Missouri.
His expenses of $44.80 in traveling to and from Campbell to take this job are allow-
able. Claim was also made for room and board at Campbell . However, while
working for the Respondent , Gardner, whose family continued to reside in Booneville,
rented a room at Flippin , Arkansas , and, although figures were not available of the
cost of room and board there, I infer that it was approximately the same as at
Campbell. Hence, Gardner 's room and board at Campbell was not an added expense
caused by the discrimination and will be disallowed.
Between May 4 and June 16, 1950, Gardner was again unemployed . He did not
register at the State employment service during this period , but -he again kept. in
contact with his union business agent and, through the latter „ got a lead which, in
June, took Gardner to Knoxville, Tennessee , to look for employment . On June 16,
he found 3 days' employment with Broadway Electric Service at Knoxville . Although
the social security reports do not show Gardner's earnings there , the specifications
60 James Thompson d ('o , Inc, 100 NLRB 456, at 472-473
sl Bruns Coal Company, Inc., 106 NLRB 590, at 592-593.
536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
credit Gardner with earnings of $129.38, much more than what he would have earned
at straight-time rates at the Respondent in that time. On June 20, 1950, Gardner got
a job in Knoxville that ran for about 2 months. Early in July, while on that job, he
learned that a job was going to open up at Oak Ridge, Tennessee, and that he would
be able to get a job there. He then notified his wife and decided to move his family
to the Knoxville vicinity. Within a week his wife had stored their furniture at Boone-
ville and moved the family to the Knoxville area. The furniture was not actually
moved until September.
It is contended by the Respondent that Gardner was unavailable for employment
by the Respondent after July 3,1950. In support of this contention, the Respondent
points to Gardner's testimony about deciding to move his family to the Knoxville area
after finding prospects of fairly permanent employment there and to Gardner's testi-
mony on cross-examination that, when he found conditions at Knoxville as he had
described, he decided that he did not wish to return to the Ozark job. The Respond-
ent also called attention to the fact that on the NLRB form 916, which Gardner filled
out, he claimed backpay from January 3 to July 3, 1950. Gardner testified that he
probably wrote July 3 in the erroneous belief that that was the date when he received
the Respondent's offer of reinstatement. The actual date of receipt of the Respond-
ent's letter of July 25 was not shown in this case. Why Gardner should have thought
he received the letter on July 3 does not appear. Because July 3 was, as nearly as the
evidence permits determination, the very day when Gardner notified his family to
join him, I infer that he, himself, when filling out his NLRB form 916, stated that
he did not claim backpay thereafter because that was the date when he decided that
he had better employment and that he no longer wanted work with the Rspondent.
This also comports with his testimony that when he found conditions as described at
Knoxville he decided that he did not want to return to the Respondent. Under the
circumstances, I conclude that Gardner was not available for employment by the
Respondent after July 3, 1950, and that backpay should therefore terminate as of the
date that he was no longer available. I also conclude and find that Gardner was
entitled to his expenses of travel to Knoxville in June 1950, but that he was not en-
titled to moving expenses of his family incurred after July 3, 1950. Gardner's room
and board at Knoxville, like his expenses at Campbell, Missouri, were expenses such
as he would have incurred if working for the Respondent and they are not deductible
from interim earnings . Gardner's backpay, without shift differential, is as follows:
Period
Year Quarter
Gross
backpay Gross
Interim earnings
Deductible
expenses Net
Net
backpay
1950 I(1/3-3/31)___ $1,255 0 0 0 $1,255
II ------------- 1, 303 $527 $91 $436 867
III (7/1-3)*----- 0 0 0 0 0
Total backpay_____ ______ _______ ______ 2,122
*The Respondent's payroll week ended on July 2, and the average hours to and in-
cluding July 2 are included in the second quarter figures.
22. Ray L. Hale, dinkey operator
The Board found that Hale made personal application for his former job in the
second week of January 1950, and that he was not hired . The exact date was to be
determined on compliance investigation. On the basis of the date shown in the
specifications, and the admission thereof in the amended answer, I find the date to be
January 11.,
Hale's testimony was so confused as to dates that I have found it of little assist-
ance. As near as I can determine , before the end of the strike, Hale was working
on the Avalon Dam near Wylie , Texas. This job was closed by seasonal rains and
Hale returned to the Mountain Home, Arkansas , area in time to hear that the strike
was over and that the men had been told to go back to get their jobs on the Ozark
Dam. '
Social security reports on Hale's earnings show $36.87 received in the first quar-
ter of 1950 from Moorman & Moorman . Hale identifies Moorman as his employer
on the Avalon Dam in Texas. I find that this sum was earned before he returned
to make application for his job at Ozark. The specifications claim expenses in the
sum of $286 . 50 based on Hale's trip to Texas and return , during which period he
worked for Moorman . As I find that these expenses were incurred before January
11, 1950, I find that the expenses are not deductible from interim earnings
During the first quarter of 1950, Hale did some work for his brother-in-law at
Mountain Home , Arkansas , and received $ 131.10. The specifications have appar-
BROWN AND ROOT, INC., ETC. 537
ently prorated this amount because they show only $115.97' as earned in this em-
ployment. The record does not show the date of this work, but on the entire record
I would find this work as.following January 11, 1950. I shall, therefore, show the
full sum as interim earnings.
In the second quarter, before leaving the Mountain Home area again, Hale worked
for a short time in Harrison, Arkansas, for a garment factory and earned $60. The
social security record shows this as in the second quarter of 1950. While working
at that place, Hale drove between his home in Mountain Home and Harrison in his
car, a distance of about 50 miles each way. The specifications do not claim this
transportation as an expense and I make no finding thereon.
Following his employment at Harrison, Arkansas, Hale obtained employment in
Nebraska and, later, in South Dakota where he received the Respondent's letter of
July 25, 1-450, offering him reinstatement. The specifications claim expenses for
travel and room and board while seeking employment in Nebraska and South
Dakota in the second quarter of 1950. The amount claimed for this travel is rea-
sonable and is allowed. The amount claimed for room and board appears to cover
30 days. Proof that Hale was away from home looking for work for that period
of time was not attempted. When Hale got a job at Alma, Nebraska, he transferred
his family there, so presumably he was not away from home after he transferred
them. Because the evidence does not warrant a finding of more than 5 days away
from home while in search of work, I allow $20 for board and lodging for that
time.
I find no evidence of willfully incurred loss. Hale testified that whenever he
was out of work, he was looking for it. Although he did not seek employment
through the State employment service, he did get work through his union and by
application at construction projects. I find Hale's backpay to be as follows:
earnin sInt
Period Grose
gerum
Deductible Net
Year Quarter backpay Gross expenses Net backpay
1950 I(1/11-3/13)__ $598 , $131 0 $131 $467
II-------------
,
719 672 $83 589 130
Ill`------------- 155 346 0 346 0
Total backpay_____ ------ 597
23. E. E. Harris, carpenter
When the strike was over, Harris, a carpenter, made no personal application for
reinstatement, although his name was on the Union's list of January 15, 1950. He
testified that he did not go back in person because every time he went on that job
he had been called to it. Furthermore, he "didn't like to work for Brown and Root,
if it was any other job I could do at all." However, he found no other work, and
after receiving the Respondent's letter of July 25, 1950, offering him reinstatement,
Hams returned to,the Respondent's employ.
The Respondent, in its brief, argues that, because of the above-quoted statement
of Harris, he could not apply for reinstatement in good faith and that he did not
authorize the Union to make application for him. I excluded questioning about the
latter because it was a matter already decided by the Board. Because Harris did
accept the offer of reinstatement made by the Respondent in July 1950, I am unable
to speculate as to what he would have done had the offer been made on January
15, 1950. I do not interpret his testimony as saying that he had at any time reached
a decision not to return to the Respondent's employ 52 I find no merit in this argu-
ment of the Respondent.
The Respondent also contends that Harris- did not make an adequate search for
interim employment. Harris-testified that between January 15 and July 25, 1950,
he looked for employment in the area of Mountain Home about every 2 weeks,
registered for employment with the unemployment service, but was referred to no
jobs. As specific instances of his search for work, Harris testified that he applied
to two carpenter contractors, to the foreman at the dam at Norfork, and to a wood-
working shop in Mountain Home. On the record, I deem it more than likely that
these applications were made in 1949 while Harris was drawing unemployment
benefits.
On cross-examination, Harris admitted that he made no application for unemploy-
ment compensation in 1950, although it appears that he did do so shortly after the
start of the strike and did again in 1951, and he testified that he remembered no
contact with the employment office except on those two occasions. Later, however,
52 See Fox Midwest Amusement Corporateon , et al , 98 NLRB 699, at 720, footnote 15
538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he testified that the first application was denied and he reapplied in 1950 after the
end of the strike and drew unemployment payments until he returned to work for
the Respondent in July 1950 . The General Counsel and the Respondent stipulated
that certain claimants received unemployment compensation benefits in 1950 and
that no others received benefits in 1950 based on their former employment with
the Respondent before the strike. Harris' name was not included as one who had
received such benefits in 1950. He did , however , according to another portion of
this stipulation , receive benefits in 1949 based on work performed in the fourth
quarter of 1948. This stipulation is difficult to reconcile with a document in Harris'
personnel file showing that, "after information submitted" by the Respondent to the
Employment Security Division of the State of Arkansas on December 28, 1948,
Harris was declared ineligible to receive unemployment benefits until he was avail-
able for work . There is no showing that he became available to work for the
Respondent until after the end of the strike.
Because Harris had a house with 30 acres of land , called a farm, and had small
sources of income from insurance and service disability payment, the Respondent
argues that Harris was not obliged to, and therefore did not, make a serious effort
to procure interim employment . Harris testified that he did no farming but helped
his 12 -year-old son raise some cattle and rabbits which the boy owned , paid the
feed bill for the boy, helped him trade cattle , and taught him what to do with a
garden patch , the produce of which was eaten by the family.
From the evidence , I received the impression that Harris ' efforts to procure interim
employment were not as strenuous as were those of needier backpay claimants.
Since he accepted the Respondent 's offer of reinstatement of July 25, 1950, it is
apparent that he was not averse to working , but on the evidence, including that which
was stipulated , 1 am convinced , and so find, that Harris was waiting for the job
to come to him and was not, during the backpay period , actively seeking work. I
recommend no backpay for Harris.
24. Herman E. Hayes, carpenter
Hayes' claim was dismissed on motion of the General Counsel because it had
been learned that Hayes was unable to work during the backpay period.
25. George W. Haynes , vibrator operator
Before the strike , Haynes was a vibrator operator receiving 971/2 cents per hour.
Because of the General Counsel 's contention that the Board erroneously found him
to be reinstated and because the Respondent contends that Haynes was not a striker,
a brief recital of his employment history may be useful in the event that my recom-
mendation as to backpay is not adopted by the Board.
Haynes was first employed by the Respondent (so far as his personnel records
in evidence show ) on September 2, 1947, as a laborer at the rate of 80 cents4an•hour.
He was terminated 10 days later because of sickness . On March 9, 1948, he was
employed by Flippin in the same capacity (laborer ) at the same rate of pay. Ef-
fective on April 28, 1948 , he was made a jackhammer operator at the rate of 90
cents an hour . On May 13, 1948, he became a laborer again at the former rate
of pay. On June 21, 1948, he was reclassified to apprentice carpenter at the rate of
$1 an hour, and on August 23, 1948 , he was reclassified to machine repairman at
the rate of $1.10 an hour . On October 6, 1948 , he was transferred to Ozark as a
laborer at 85 cents an hour . However, he quit on October 20, 1948 , for the stated
reason that he did not want to work for laborer's wages . On November 17, 1948,
he was reemployed by Ozark as a vibrator operator at the rate of 9716 cents an
hour and he continued until the time of the strike . His termination slip, dated
December 12, 1948, states as the reason: "Failed to report for work ." When he was
rehired on March 25 , 1950 , he was classified as a laborer at 85 cents an hour. Ef-
fective on May 28 , 1950 , he was reclassified to vibrator operator at the rate of $1
an hour.53
The General Counsel contends that Haynes was not actually 'reinstated until
he was employed in his former capacity at the going rate for that job on-May 28,
1950, $1 an hour, 15 cents an hour more than he received as a laborer between March
25 and May 28, 1950 . The Board , in fixing the date of Haynes' reinstatement
as March 25, 1950 , stated (99 NLRB 1060, footnote 56): "Haynes was reinstated
initially as laborer and reclassified as vibrator operator on May 27, 1950 . The Trial
Examiner found discrimination until May 27, 1950 . However, as it appears that
53A number of discriminatory replacements were hired as vibrator operators between
January 15 and May 28 , 1950. See Appendix A.
BROWN AND ROOT, INC., ETC. 539
the classification of laborer paid about the same wage rate as vibrator operator, we
find the two classifications to have been substantially equivalent." Although I might
not have reached this conclusion, myself, it does not appear that the Board was not
fully informed of the facts. Its finding that Haynes was reinstated on March 25,
1950, is, therefore, binding on me.
The Respondent, in its amended answer, does not deny (and therefore it must be
taken to admit)_ that Haynes was a striker. Nevertheless, an offer of proof by the
Respondent on cross-examination of Haynes was taken in question and answer form.
The offer was inconclusive. As previously stated, Haynes' termination slip was dated
December 12, 1948. This is the date found on termination slips of most of the
strikers. His slip gave the reason for his termination as "failure to report for work,"
the,same explanation that was used 4n the case of other strikers. The Respondent's
personnel records show that Haynes applied for unemployment compensation in
Arkansas on December 14, 1948, that the Respondent was notified thereof, and wrote
a letter which had the effect of disqualifying Haynes from receiving unemployment
insurance benefits indefinitely. The Respondent's letter is not in evidence, but be-
cause the action taken on Haynes was identical with that taken in the case of
strikers or strike sympathizers, I infer that the Respondent's letter informed the
authorities that Haynes was disqualified as a result of the strike. Even if this is
not the case, however, I find that the matter of strike status was open for determina-
tion in the original hearing and that the Board's order of backpay for Haynes was
based on its conclusion that he ceased working for the Respondent because he was
a striker or strike sympathizer.
Haynes was asked if he made any attempt to find employment between January
15, 1950, and the time he returned to the Respondent's employ. He answered that
he had gone to Springfield, Missouri, and "checked in at the employment office up
there." (At the time, he was living in Missouri.) Even if it be assumed that the
"employment office" meant the "state employment service," I cannot find that
"checking in" meant "registration." 54 If it was intended to mean "registration,"
there is no evidence to establish this registration other than the foregoing testimony
or to show that Haynes kept-his registration alive. I would conclude that, if he
registered, which I believe he did,not, he did not keep his registration alive by
regularly reporting to the State ,employment office. The date of the visit to Spring-
field, Missouri, is uncertain. From the questions asked of Haynes by the General
Counsel, his answers might be interpreted to mean that he went there between
January 15 and March 25, 1950. On cross-examination by the Respondent, he
testified that his visit to Springfield was "sometime in 1950, I guess, early part of
1950." However, Haynes showed no clear memory of dates. If he had registered
in 1950, presumably he would have been entitled to unemployment compensation,
but he testified that he received none. While in Springfield, Haynes testified, he
went to a foundry to look for work. After that, he did not look any more. This
was, even by his own testimony, the extent of his efforts to find work until he at-
tempted to get employment with the Respondent again. Then, he testified, he started
going to the dam every week, then twice a week, and then "maybe every day." On
cross-examination, he testified that it might have been in 1949 when he went back to
ask for a job and it might have been spring, summer, or fall.
On,the foregoing evidence, I am not convinced that Haynes made an adequate
effort to find interim employment. Although, according to his testimony, he was
persistent in returning again and again to the Respondent and although the Re-
spondent had vacancies from time to time in the vibrator operator classification, or
could have made a vacancy for Haynes by transferring, demoting, or discharging a
discriminatory replacement, when it refused to do so, Haynes was not justified in
abandoning all efforts to find employment elsewhere. I find that Haynes suffered a
willful loss and I recommend no backpay for him.
26. John H. James, carpenter
James did not testify in the backpay proceedings. As found by the Board, James
turned down an offer of reinstatement made on March 8, 1950. His backpay was
therefore limited to the period from January 3 to March 8, 1950. Although the
Respondent claims that James made no reasonable search for interim employment,
it offered no evidence thereof as is required under Board procedure.55 It is evident
from the testimony at the original hearing as well as the interim earnings conceded
64 Nothing in Haynes ' personnel file indicates any registration for unemployment com-
pensation in Missouri
55 Ozark Hardwood Company, 119 NLRB 1130.
540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for him in the specifications that James was in the labor market in the first quarter
of 1950. James' backpay is as follows:
Period Gross Net interim Net
Year Quarter backpay earnings backpay
1950 I(1/3-3/8)--------------------- $529 $315 $214
27. Ray H. Jencks, jackhammer operator
Jencks did not testify at either hearing. The -social security reports show that
Jencks had earnings in each of the quarters in the backpay period, January 15 to
July 25, 1950 . There is no showing of willful loss . Jencks' backpay is as follows:
Period Gross Net interim Net
Year Quarter backpay earnings backpay
1950 I(1/15-3/31)------------------- $441 $40 $401
II------------------------------ 541 654 0
III(7/1-25)---------------------- 125 236 0
Total backpay------------ ---------- ----- 401
28. W. A. Kent, carpenter
During the backpay period, Kent was in partnership with his father-in-law build-
ing houses. He did not seek other employment and testified that he would not have
left the partnership to work elsewhere on construction work, including the Re-
spondent's construction work. Under the circumstances, I find that Kent was un-
available for employment by the Respondent and he'is entitled to no backpay.56
29. Jessie A. Kilfoy, pump operator .
Because Kilfoy's testimony was introduced in the record at the unfair labor prac-
tice hearing in the form of a stipulation,57 the Respondent at the backpay hearing
sought to question Kilfoy, who testified in his hearing, about the facts stipulated to.
It was permitted to do so as an offer of proof, which I rejected because I am bound
by the original record and the Board's finding of discrimination.58
The Respondent also sought to discredit Kilfoy's testimony by evidence that in
September 1943 Kilfoy was convicted of the crime of "carnal abuse" for which he
was sentenced to 5 years' imprisonment. The exact nature of the crime committed
by Kilfoy was not established. 'He testified that he was convicted for "getting a
woman in a family way." It may be assumed that-the crime involved moral turpi-
tude but was not a crimen falsi. In February 1947- he was paroled and, in the same
year, at the expiration of his minimum sentence, was discharged . I am not per-
54 Alexander Manufacturing Company, 110 NLRB 1457; Deena Artware, Incorporated,
112 NLRB 371, at 378.
67 The Respondent , in its brief , accuses Trial Examiner Doyle of losing the pages of
the transcript which contained this stipulation, because they were not in the transcript
of the unfair labor practice hearing at the time of the backpay hearing, and the Respond-
ent reasons that Trial Examiner Doyle must have relied on his notes in making findings of
fact respecting Kilfoy. These surmises of the Respondent are unfounded . When the
record was printed for use in the circuit court of appeals , the designated portions of the
transcript to be printed were removed, at that time, from the transcript and were not
replaced This was true of all other portions of the transcript designated for printing
Those pages not found in the transcript will, therefore, be found in the printed record
Because reference was made to the stipulation at the backpay hearing, I requested the
official reporter to copy, from the carbon copy of the original transcript, the pages con-
taining the stipulation and to include it, for convenience , in the transcript of the unfair
labor practice case proceedings, which he did
51 Should the Board decide to take cognizance of this offer of proof, it should also
examine Kilfoy's personnel file, which is in evidence on microfilm, for the purpose of fix-
ing dates, which appear to conform to those in the original stipulation It should also
take note of the point made in the General Counsel's brief to the Trial Examiner, which,
because of my rejection of the offer of proof, I have not found it necessary to mention.
and the payrolls , which indicate that not all the pump operators were on the type of split
shift that was offered to Kilfoy. In fact, most of the replacements on the payroll on the
dates concerned were on straight shifts.
BROWN AND ROOT, INC., ETC. 541
suaded by this evidence that Kilfoy was not credible, although his memory at times
appeared faulty, but if I were to discredit Kilfoy and if I excluded all his testimony,
the exclusion would not redound to the benefit of the Respondent, for no contra-
dictory evidence was offered by the Respondent and, in fact, no other evidence
was adduced at all which would serve to show a willful loss incurred by Kilfoy.
Kilfoy testified that between December 21, 1949, the date of discrimination
found by the Board, and February 13, 1950, he drew unemployment compensation
and kept in touch with the unemployment office. There is nothing in Kilfoy's per-
sonnel file to show that he drew unemployment benefits during this period on the
basis of former employment with the Respondent and it was stipulated that he did
not. However, if he worked for other employers during the strike, he would have
been eligible for unemployment benefits on the basis of that work. The stipulation
does not, therefore, controvert Kilfoy's testimony. During this period of time
Kilfoy also "kept in touch" with his union (Local 382 of the Operating Engineers)
as an applicant for a job. He turned down no offers.
On February 13, 1950, Kilfoy got a job with a steel company at the Norfork
Dam not far from Mountain Home. There he operated a compressor, electric
welders, and some gas machines. This job ran out on May 13, 1950. Soon after
that date he was sent by his union to Newport, Arkansas, to run compressors for
the Bechtel Corporation. Because of inclement weather, the compressors were not
put into operation and Kilfoy was put to work on firing a tar pot and hauling around
a 6-inch hose used for spraying hot tar on a pipeline. Kilfoy had suffered a wound
in World War I which prevented him from performing heavy manual work and
he worked only 1 day at this work before giving up. However, he remained in the
work camp there with his wife because he was given to understand that he would
soon be put to work on the compressors. Having waited for about 3 weeks without
being put to work, Kilfoy ran out of funds and had to borrow money with which to
get home
For an entire year after his return to Mountain Home, Kilfoy was unemployed.
During this time, he testified, he tried to find work through the employment service
in Mountain Home, where he registered for work as a compressor and pump operator
although he did not draw any unemployment compensation. Aside from this, he
"tried to find work at some filling stations , something like that, some stuff that was
light," and he sought work as a caretaker at a couple of resorts in the area. Kilfoy
testified that that was about all he did to find work in that year. Kilfoy was not
specifically asked if he had sought work through his union in this period and did not
specifically say that he had not done so. His somewhat indefinite answer, "That is
about all, I guess" to the question of what else he did to get work is not too satis-
factory a basis for an inference that Kilfoy made no effort to get a job through local
Operating Engineers. There is no evidence of the working of that union 's job referral
system. If Kilfoy's name was on their list once, that might have been sufficient for
a full year without further contact so far as the record shows.
On July 2, 1951, having received a letter from his son in Canon City, Colorado,
telling Kilfoy that he had a job for him, Kilfoy set out with his wife for Canon City
without attempting to learn the nature of the job or the compensation. The job was
one of cleaning up around the grounds of the Royal Gorge Park. He-was paid $5 a
day but quit the job after 4 days because he had to commute 21 or 22 miles (one way)
from Canon City to work each day and, he testified, he could not make enough to
pay his transportation, rent, and food He testified there was no place at the park
where he could have resided. At 7 cents a mile, Kilfoy's expense of commuting
would have been more than $3 a day, which would have left less than $2 for board and
lodging for himself and his wife. After giving up the job at Royal Gorge Park he
registered for work at the State employment service in Canon City and was referred
to odd jobs which, in 3 months' time, paid him about $25. One expected job assured
him by the State employment service failed to materialize.
Kilfoy was in Canon City when he received a letter from the Respondent on
September 17, 1951, offering him back his job. He returned to Arkansas and was
reinstated by the Respondent on September 25, 1951. He continued to work there
until he was laid off in a reduction in force in May 1952.•
The Respondent claims that Kilfoy did not exercise reasonable diligence in an
effort to get interim employment. Although there is a suggestion that Kilfoy's search
for work between mid-June 1950 and July 1951 was desultory and unambitious, the
record is in a less than satisfactory state to support a finding that the Respondent has
sustained the burden of proof of willful loss. Kilfoy registered in Mountain Home
with the employment service for work as a pump or compressor operator but may
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not have tried to get work through his union . When he left Newport, Arkansas,
Kilfoy was told he would be notified when there was work for him. For a time this
might have deterred him from further efforts to get a job through his union. What
about the remaining time? As Kilfoy was never specifically asked about his contact
with the union office during this period of time, it is impossible to know whether or
not during the whole period of his unemployment he remained a member in good
standing with the union and could have obtained a job through it. Without a job, he
may have been unable to pay dues and may have been dropped from membership,
without which it is at least doubtful if he would have been given a referral by the
union . In the absence of a showing of membership, I am of opinion that Kilfoy was
not obliged to seek work through a union . The record does not show whether or
not Kilfoykept his registration for a job with the employment service active by report-
ing at least twice a month . As the burden is on the Respondent to prove willful loss,
and as the Respondent did not show a failure on Kilfoy's part to keep his registration
active, no willful loss is established in this respect . It is evident that whenever Kilfoy
heard of a job that he was capable of doing, he proceeded to it at once. I am unable
to find that Kilfoy's quitting at either Bechtel or Royal Gorge Park proved a willfully
incurred loss since he appeared justified in each instance in quitting .59 The first job
was more strenuous than his regular work and may well have aggravated Kilfoy's
infirmity . Although Kilfoy earned less in Canon City than he would have at the
Royal Gorge Park, it cannot be said that that was to be expected when he gave up his
job there and registered for work at the unemployment office. The record shows that
Kilfoy's wife , a nurse , obtained employment in a hospital in Canon City, and a
suspicion arises that Kilfoy, because of that, was relieved of the pressure of finding
a job, himself , and therefore did not exert due diligence to find a job which paid better
than the part-time job he got at a service station . But this is no more than suspicion,
and he did try to get employment through the unemployment office. In view of the
fact that Kilfoy returned to the Respondent when offered reinstatement and worked
there as long as there was work for him , it cannot be concluded that he was avoiding
employmet t,of a type he could perform.
The General Counsel claims as expenses, not only,Kilfoy 's round trip transportation
to Newport and to Canon City when going to those places for work, but also claims
board and room at Newport and phone calls getting the Bechtel job and claims rent
while at Canon City. The evidence is not altogether satisfactory on these claims.
Kilfoy took his wife with him to each job . It does not appear that he had a per-
manent place of abode in which he lived at Bull Shoals near Mountain Home. For
all that appears , he gave up his domicile each time he moved. On this state of the
record , he would not be entitled to subsistence but only to transportation . 80 How-
ever , on the basis of a complete move each time, he would be entitled to transportation
for both himself and his wife . The cost of moving to Newport was not separated from
total expenses , but, having examined maps of the area and discovered that the
highway mileage between Mountain Home and Newport is 111 miles and that the
railroad route does not appear to be any shorter, I estimate the cost of round trip
transportation as approximately $ 16, and , as even this cost exceeds Kilfoy's earnings
during the third quarter of 1950 of $13.75, I shall allow expenses in that quarter to
the extent of earnings . The total cost of transportation for two people to and from
Canon City was fixed at $176. As thiSLexpense likewise exceeds Kilfoy's earnings
during the third quarter of 1951, even counting an extra $25 earned at odd jobs, which
was not shown in the specifications , expenses of transportation will be allowed in this
quarter to the extent of earnings.
I note that , in computing average hours for pump operators , the General Counsel
included the time of pumpers as well as of pump operators , the rates of pay of both
being the same. No differences in function were shown. The Board appeared to
group them together . Some claimants served in both capacities . I would assume that
the jobs of pumper and pump operator were about the same. However, even if
pumpers were not to be included in determining average hours, I note from my
examination of the payrolls in evidence that their inclusion does not increase the over-
all averages . In fact in many instances it tends to lower them. Kilfoy's backpay is as
follows:
w See Harvest Queen Mill & Elevator Company, 90 NLRB 320, at 338 ; L B. Hosiery
CO, Incorporated, et at., 99 NLRB 630 ; Brotherhood of Painters , Decorators & Paper-
hangers of America, Carpet , Linoleum & Resilient Tile Layers. Local No 419 (Lauren
Burt, Inc, of Colorado ), 114 NLRB 295, at 299-300.
60 West Texas Utilities Company . Inc, 109 NLRB 936, at 938
BROWN AND ROOT, INC., ETC. 543
Interim earnings
Period Gross Deductible Net
Year Quarter backpay Gross expenses Net backpay
1949 IV (12/21-31)___ $111 0 0 0 $111
1950 I_____________ *659 $392 0 $392 267
II_____________ 734 451 0 451 283
III_____________ 758 14 $14 0 758
IV ------------- 727 0 0 0 727
1951 I_____________ 875 0 0 0 875
II_____________ 981 0 0 0 981
111(7/1-9/24) --- 876 45 45 0 876
Total backpay_____ ______ ______ ______ ______ 4,878
*The backpay was inaccurately computed by the General Counsel on the basis of 537
adjusted average hours. There were 527 such hours in the quarter.
30. Dave E. Killian, jackhammer operator
The Board found discrimination against Killian from January 15, 1950. However,
the specifications except from this period the time between February 12 and 26, 1950,
during which time he was supposedly unavailable for employment. Killian did not
testify at either hearing, but the social security information in evidence discloses earn-
ings for each quarter of the year 1950 within the backpay period, and I take this as
evidence that Killian was in the labor market. There is no evidence of, willfully
incurred loss.
The specifications claim certain expenses for Killian in his search for work and
while engaged in interim employment. However, as no proof was offered concerning
these expenses, they are disallowed.
Killian's interim earnings exceed gross backpay in each quarter except the first,
in which he earned $192. As the social security reports show all Killian's earnings
as received from the same employer, I infer that the $192 was all earned after the
excluded period and will deduct the entire amount from gross backpay. Killian's
backpay is therefore:
Period Gross Interim Net
Year Quarter backpay earnings backpay
1950 I(1/15-2/12,2/26-3/31)_________ $383 $192 $191
31. Onimus Kyles, aggregate conveyor operator
Kyles did not testify at the backpay hearing, but earnings are shown for each
quarter of the backpay period. The Board found discrimination between January 3
and August 1, 1950, and again after October 10, 1950. From August 1 to September
30, 1950, Kyles was on the Flippin payroll and thereafter until October 10, 1950, he
was on the Ozark payroll. In line with his theory that employment at Flippin was,
in view of the court's decision, not reinstatement, the General Counsel has treated
Kyles', employment at Flippin only as interim employment and has computed his
backpay from January 3, 1950, to September 9, 1951, excepting the period from
October 1 to 10, 1950. I have previously decided that it is not for me to modify
the Board's Order. I shall, therefore, ascertain Kyles' backpay for the periods of
January 3 to August 1, 1950, and that of October 10, 1950, to September 9, 1951,
the cutoff date fixed in the specifications. Presumably this date was fixed as the time
when there would have been no more work for Kyles as an aggregate conveyor
operator on the Ozark payroll because he was not again reinstated at that time.
Actually Kyles was rehired on the Flippin payroll on September 25, 1951, as an
aggregate conveyor operator and worked until January 11, 1952.
Kyles registered for unemployment benefits on January 30, 1950. There is no
evidence of any willfully incurred loss. Kyles' backpay, without shift differential,
is as follows:
Period Gross
Year Quarter backpay
Net interim Net
earnings backpay
1950 1(1/3-3/31) -------------------- $634 $100 $534
II ------------------------------ 739 100 639
111 (7/1-8/1) --------------------- 250 25 225
IV (10/10-12/31) ----------------- 730 40 690
1951 I______________________________ 1,110 65 1,045
II ------------------------------ 1,248 318 930
111(7/1-9/9) --------------------- 1,108 669 439
Total backpay______________________ _____ _________ 4,502
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
32. Willie W. Lackey, pump operator
The Board found discrimination against Lackey from February 23, 1950, until
offered reinstatement. The Board might, in the light of evidence available now, wish
to review its findings, because it found a constructive discharge, presumably occurring
on February 23, 1950, the record in the original hearing not being specific in dates
of Lackey's transfer to the hole and of his leaving for that reason. A note in Lackey's
personnel file shows that on January 7, 1950, Lackey was transferred to the hole
(coffer dam). By examining the payroll, it may be seen that the last day worked by
Lackey was Sunday, January 15, 1950. Thereafter, his name was carried on the
payroll until February 23, 1950, at which time, according to evidence in Lackey's
personnel file, a termination slip was made out showing his termination for failure to
report for duty and his name did not show on payrolls after that.
In finding the backpay due to Lackey, I shall use the date specified by the Board
as the date for beginning of backpay. The General Counsel has excepted the week
following February 23, presumably because of a period of illness which Lackey had.
I am not at all satisfied that the date of the period of illness was correctly fixed. It is
only through counsel's questions on cross-examinations at the backpay hearing that
any date appears and I am not satisfied that Lackey had any clear recollection of
dates at that time. Lackey's answer to the question, "Now, Mr. Lackey, I believe it
is true, is it not, that on February 23 you quit your job out there?" was "Yes, I was
sick. I got sick and had to quit. I just couldn't go any further out in the weather.
That is how come me to take off." This answer implies that Lackey was working at
the time he became ill and took off. Yet from January 15 to February 23, 1950,
Lackey is not shown by the payroll to have worked at all. He testified that he had
influenza or pneumonia and was in bed "for a week, anyhow" and that he went back
to the dam after his illness, "I don't know, March, I guess, of 1950, February or
March," and that he was told there were no openings for pump operators, that he
asked for any other work that he could do but was told there were no openings.
Following this testimony, counsel for the Respondent used March in his questions as
the month when Lackey was back looking for work. Lackey testified that he went
both to the employment office and to Balleau after his illness and asked about
getting his job back "down in the hole," but Balleau said he did not need anyone
then. When asked again whether this was in March, Lackey replied, "Something like
that. It might have been a little earlier. That was in March I think." It is difficult
to tell what dates Lackey might have given but for the suggestions made by counsel,
but his memory of dates generally was not too accurate. The possibility that Lackey's
illness occurred in mid-January and that he returned for his job about February 23,
at which time he was told he was not needed is suggested by the foregoing evidence.
It is further suggested by the fact that Lackey signed the back of the termination
slip, which was dated February 23, although he was not asked when he signed it.
It is not my function, however, to consider what effect the additional facts shown
might have had upon the conclusion that a discrimination occurred had these addi-
tional facts been known at the time of the original hearing. The fact of discrimina-
tion and the date thereof are res judicata. Because the date of commencement of
backpay is fixed as beginning on February 23, because the specifications are drawn on
the basis of the assumption that Lackey was unavailable for work for a week after
that date, presumably because of illness, and because counsel for both sides appear to
have accepted this as fact, I shall make my findings of backpay accordingly.
From the time of his recovery from his illness and his unsuccessful attempt at
reemployment at Ozark, Lackey was unemployed until about June 1, 1950. During
this time, Lackey reported to the State employment service every 2 weeks when it
was in Mountain Home,61 he tried twice to get work at a service station in Flippin,
Arkansas, and once at Cotter. These and a return to the dam once or twice were
the only specific applications he recalled. Lackey testified that he could not do
farmwork because he considered it too strenuous for him at his age and because the
pay was only $1 a day. He had once had a job in Kansas City, Missouri, at a filling
station and possibly might have got one there in March, April, or May, 1950, but,
01 This does not mean he registered for unemployment compensation but only for work.
A stipulation of the parties as to the strikers who received unemployment compensation
payments in 1949 and 1950 did not include Lackey's name, and he was, therefore, excluded
as one who had received such payments. Lackey registered for such benefits in March
1949 and might have been entitled to them after the end of the strike. The fact that he
was reemployed at the end of the strike may, in part, account for his failure to apply for
payments at that time, and his signing of a termination slip for failure to report for work
may have stood in the way of his receiving benefits later that year.
BROWN AND ROOT, INC., ETC. 545
he testified , he did not try there then because he was trying to sell a place he owned
near Norfork and buy a filling station of his own . He apparently succeeded in
doing this because he began operating his own station on June 1, 1950 , and con-
tinued to operate it for a little over a year. He testified that he had gross sales of
$1,800 but no profit . The Respondent offered no evidence to refute this. I note,
however, that the specifications show interim earnings during this period and I accept
them. as an admission of net profit.
During the time he ran his own business , he did not try to find other work, but
there is no evidence that he , had unequivocally indicated a decision not to return
to his former employment at Ozark and he was never offered reinstatement .62 I find
no willfully incurred loss.
In May 1951 63 Lackey closed his gas station and took his wife to Kansas City,
Missouri, for an operation . He never returned to Mountain Home from Kansas
City, and he testified that he never wanted to return once he got there . He devoted
his first 3 weeks after he arrived there to staying with his wife at the hospital she was
in. Then , around June 10,64 he got a job at the filling station where he had once
before been employed , and continued to work there for 4 years thereafter, long
after the end of the backpay period shown in the specifications.
When Lackey was rehired in December 1949, he was given a split shift , working
some days on the swing shift and some days on the graveyard shift. On the latter,
he received a premium of 5 cents an hour. I find that he would have received this
premium but for the discrimination found by the Board . I shall, therefore , in com-
puting backpay for Lackey from February 23, 1950 , to the end of the Respondent's
payroll of May 20 , 1951 ( the latter date being the one after which he no longer
desired to return to Mountain Home), less the week between February 23 and
March 2, 1950, add premium pay on one-half of Lackey 's hours. Lackey's backpay
is as follows:
Period Gross
Year Quarter backpay
Net interim
earnings
Net
backpay
1950 I(3/1-31 )---------------------- $264 0 $264
II------------------------------ 748 $212 536
III------------------------------ 773 688 85
IV ------------------------------ 741 688 53
1951 I ------------------------------ 889 169 720
II------------------------------ . 998 257 741
III(4/ 1-5/20)-------------------- 526 370 156
Total backpay---------------------- ----- 2, 560
33. C.• C. Landry, carpenter
Landry did not testify at either hearing. The General Counsel stated that he was
ill at the time of the backpay hearing and was not available to testify. The Board
found Landry to have been discriminated against from. January 15 to July 25, 1950.
Although no earnings - for Landry were shown in the social security reports, the
specifications show interim earnings in each of the quarters of the backpay period.
Thus Landry is shown to have been in the labor market. The specifications claim
expenses of travel 'from Missouri to Denver , Colorado, and for room and board in
the first and second quarters of 1950 : No evidence was offered that these expenses
were incurred in seeking or in the course of interim employment , much less that
the amounts were correct . I shall not, therefore , allow them as a deduction from
gross interim earnings . The Respondent offered . no evidence of willful loss or any
evidence to show that Landry was not at all times available to return to work for
the Respondent during the backpay period. Landry's backpay is as follows:
earnin siI t
Period Gross -
gn er m
Deductiblem Net
Year Quarter backpay Gross expenses Net backpay
1950 I ------------- $663 $31 0 .$31 $632
------------- 840 453 0 453 387
-------------------------- 186'. 112 0 112 74
Total backpay----- ------ 1,093
r
es See L. B. Hosiery Co ., Incorporated , et al., 99 NLRB 630, 631, 634.
63This ' date is fixed in part by Lackey's . testimony and in part on the social security
reports.
64 Computed from earnings at Walt's Service Station at $45 a week, his starting rate
546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
34. Archie Lazenby, pump operator
The Board found Lazenby's discrimination to run from January 15 to July 25,
1950. Lazenby did not testify at either hearing. The social security reports show
no earnings reported in the backpay period, but the specifications state that Lazenby
was self-employed during the backpay period, operating a retail variety store but
without profit. This was not specifically denied by the Respondent's amended
answer. The Respondent offered no evidence respecting Lazenby. As no willful
loss is shown I find Lazenby's backpay to be as follows:
Interim earnings
Perio d
Quarter backpay Gross ea;pensese
Net
Year Net backpay
1950 I_____________ $560 0 0 0 $560
II_____________ 734 0 0 0 734
III ------------- 172 0 0 0 172
Total backpay ----- ------ ------ ------ ------ 1,466
35. Frank J. Lippe, mechanic working foreman
The Board found that Lippe was discriminated against from January 3 to July
25, 1950. The Respondent argues that Lippe was a supervisor and not entitled to
the protection of the Act and that he was in the IAM unit, was an economic striker,
and as such should be dealt with as were the other IAM strikers. Both the issues
raised by the Respondent are matters that should have been raised at the original
hearing. If any modification of findings is to be made, it is up to the Board and not
the Trial Examiner to make them.
Lippe was patently confused about dates in his testimony. He testified that he
got a registered letter from the Respondent offering him his job and that this was
in 1948. As he received only one registered letter and the only one shown to have
been sent was sent on July 25, 1950, I conclude that this was the one which Lippe
thought he had received in 1948.
Lippe testified that after the Union told the boys they could go back to work, he
went to the dam and asked for his job and was told they could use him as a helper
but that he was not interested in that job. He tried to get work at several little
garages in Harrison, Arkansas, and Branson, Missouri, 15 to 20 miles from his
home in Omaha, Arkansas. There is, no evidence that Lippe registered with the
State employment agency in 1950.65
Before Lippe received the Respondent's letter of July 25, 1950, offering reinstate-
ment, he had applied for work with another employer and, after receiving the Re-
spondent's letter, he went to work for the other employer instead of returning to
the Respondent's employ.
Lippe had a farm of 160 acres on which he raised enough hay for his own use,
he had a few milk cows which his wife milked, and some chickens which his wife
raised, but the only thing he sold from the farm was a little milk and some stay
bows which he cut. The Respondent claims that Lippe's earnings from his farm
should be credited as interim earnings. However, there is no evidence that he did
not have the same small source of income from his farm while working for the Re-
spondent and I would infer that he did have some of it at least. That portion is,
therefore, not to be treated as interim earnings.66 However, because Lippe had no
other employment during the backpay period, the General Counsel has, in the
specifications, charged Lippe with interim earnings to the extent of the wages of
farm labor in Arkansas. This concession appears to be fair and equitable and it
will stand.
Although Lippe apparently did not register with the employment agency, he is
shown to have made some search for work and, when he did find it, he was con-
tinuously employed until 1958. I find, therefore, that Lippe did not withdraw from
the labor market. There is no evidence that he rejected any offers for work or
suffered any willful loss.
Determination of average hours for Lippe is complicated by the fact that, although
the Board found a promotional replacement in the job formerly held by Lippe, it
did not identify such replacement nor indicate whether he was on the Ozark or the
es It was stipulated that, after the hearing , Lippe had produced records which showed
that he had drawn unemployment compensation for a number of weeks in 1949, but pro-
duced no record that he had registered with the State employment agency in 1950 or that
he had any earnings that year.
66 Acme Mattress Company, Inc, 97 NLRB 1439, at 1442-144a. and cases there cited
BROWN AND ROOT, INC., ETC. 547
Flippin payroll. There were replacements of mechanic working foremen on the
Ozark payroll during the strike but in the week ending January 8, 1950, the week
of Lippe's application, there is no one described as a mechanic working foreman
on the payroll of hourly paid employees 67 There was in that week one mechanic
foreman, J. H. McCracken, badge No. 3824,68 but although the rate of pay for
mechanic foreman is the same as for mechanic working foreman there is no evidence
of similarity or difference in the jobs. Before the strike, I note, there were several
mechanic working foremen as well as mechanic foremen. The distinction is not
shown except in the job title. In February 1950 there appears on the payroll a me-
chanic working foreman-George Whitman-who split his time between that job
and the job of ironworker. From the average hours used by the General Counsel
to compute Lippe's backpay, I surmise that he used the hours of McCracken, averag-
ing in those of Whitman for the period between February 26 and April 9, 1950.69
Because that method appears to produce the figures used by the General Counsel,
I have used these figures in computing Lippe's backpay. It will be for the Board to
determine if McCracken was the replacement it had in mind. Lippe's backpay is
computed at $1.621/2, his base rate, as follows: •
Period
Year Quarter Backpay
1950 I_____________ $850
II_____________ 980
III ------------- 283
Interim earnings
Deductible Net
Gross expenses Net backpay
$246 0 $246 $604
243 0 243 737
79 0 79 204
Total backpay_____ ______ ______ ______ ______ 1,545
36. S. L. Lynch, carpenter
Lynch testified at neither hearing. The General Counsel produced no evidence,
not even social security data. The Joint Council made application for reinstatement
on behalf of Lynch on January 15, 1950. From this it might be inferred that Lynch
was available for employment on that day, but because of the total absence of any-
thing thereafter to show that Lynch was ready, able, and willing to work, I cannot
infer that• he was in the labor market after that day and I recommend no backpay
for him.
37. Frederick P. Marberry, carpenter
The backpay period is January 3 to March 8, 1950. The Respondent claims that,
Marberry is entitled to no backpay because he did not exercise due diligence in
searching for other employment, but that if backpay is due at all it should be less
than claimed for the reason, among others, that Marberry had interim earnings
from self-employment in 1950. With respect to the latter assertion, I find that no
earnings from self-employment during the backpay period were shown even in an
undisclosed amount. The Respondent took the position that Marberry, who was
in the grocery business at the time of the backpay hearing, had gone into this busi-
ness in 1950 during the backpay period. Marberry denied that he had started in
the grocery business that early. Counsel for the Respondent stated on the record
that he had an informant who informed him differently, but he did not produce
any witness to testify to that fact.
Regarding search for interim employment, I find that Marberry was employed
for a portion of the first quarter, and because Marberry testified that he had gotten
this job in 1949, I infer that it continued into 1950 and ran for a little less than 3
weeks in January 1950. This does not conflict with the Board's finding that he
applied for reinstatement on January 3, 1950, because Marberry testified that he
was employed by Gable Electric Company at Norfork Dam at the time he applied
to the Respondent for reinstatement. Evidence of what Marberry did after his job
at Gable Electric ended is vague. Marberry did not have a good memory for dates
or for his activities 8 years earlier, a fact that is not surprising. He testified that
he registered for unemployment compensation at Yellville (his county seat) and
that he may have drawn a few checks. Although on cross-examination, the Respond-
57 Emil Stimac, badge No 135, appears on the payroll of January 15. 1950, as a
mechanic working foreman receiving a salary instead of an hourly rate. He was on the
hourly paid payroll before the strike and continued to work after the beginning of the
strike, so he is not a replacement.
11 There is a machinist working foreman , which may or may not be a substantially
equivalent position.
09 On the latter date Whitman became a shovel operator.
614913-62-vol 132-36
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent succeeded in confusing Marberry and in casting doubt upon his testimony of
having registered for unemployment benefits, his personnel file shows that he regis-
tered in February 1949 and again on January 30, 1950. But Marberry's memory
of what he did to find work was almost a blank. When asked what he did while
unemployed in 1950, Marberry at one point on cross-examination, guessed he
hunted for work; at another point he agreed with counsel for the Respondent that
he was either working for Gable Electric or was out looking for a job. The only
specific applications for work that Marberry remembered were those made to the Re-
spondent. Although Marberry's testimony was vague, he did not testify to anything
that would indicate a willfully incurred loss, and he was unemployed for no more
than 6 weeks up to the date of the Respondent's offer to reinstatement. The Respond-
ent offered no independent evidence of willful loss. On all the evidence, I conclude
and find that Marberry is entitled to backpay.
• A claim was made for Marberry's expenses of traveling from his home in Flippin,
Arkansas, to his job at Norfork Dam. He testified that he was in a car pool and drove
every third day. There is no evidence of the cost of his transportation from Flippin
to Bull Shoals when he was working for the Respondent. Although the distance
from Flippin to Bull Shoals Dam is 12 miles, whereas the distance from Flippin to
Norfork is 26 miles, Marberry might have driven his car to Bull Shoals every day
when working for the Respondent whereas he drove only once or twice a week while
working at Gable Electric. For insufficient evidence of extra cost of transportation,
I shall exclude his claimed expenses as a deduction from interim earnings.
The General Counsel did not explain the difference between its figure of $112
shown as interim earnings in the specifications and the figure of $154 which was
shown in the exhibit on the social security information. I shall, therefore, use the
latter figure. Marberry's backpay is as follows:
Year Quarter
Gross Net interim Net
1cart backpay earnings backpay
1950 I(1/3-3/8)--------------------- $529 $154 $375
38. Harvey E. Marchant, crane operator
As stated in the opinion of the Board, Marchant was rehired by the Respondent
on July 12, 1950, as an aggregate conveyor operator at $1.25 an hour. At this time
the rate for the job of crane operator, without the 5-cent premium for work on the
graveyard shift, was $1.75 an hour. The Board apparently considered that this was
not reinstatement for it left the time of reinstatement of Marchant to a substantially
equivalent position for determination in the compliance proceedings. It is well-
established Board law that if the discriminatee's former position is available he is to
be reinstated to that position, and he is to be reinstated to a substantially equivalent
position only if his former position is not available to him.70 Not only was
Marchant's former position available on January 4, 1950, the initial date of discrimi-
nation, but it was also available on July 12, 19510. Promotional replacements could
have been demoted or transferred to provide Marchant with his former position on
January 4, and on July 12 both promotional and discriminatory replacements held
jobs as crane operators. Following July 12 other promotions were made to the job
of crane operator ahead of Marchant. Before Marchant was actually promoted to
that position on September 11, 1951, he could at any time have been reinstated to
that position had the Respondent complied with its legal obligation.
The Respondent has raised the argument that Marchant by accepting checks under
the unemployment provisions of the GI bill, acted in a way which it contends is
incompatible with his status as a striking employee. If the Board had not considered
Marchant as a returning unfair-labor-practice striker, it could have found no dis-
crimination. The Respondent's contention (whether valid or not need not be deter-
mined) should have been raised at the unfair labor practice hearing, and it should not
be raised here.
It is also contended by the Respondent that Marchant was rehired under an agree-
ment which was satisfactory to him and which he accepted. This contention could
likewise have been raised at the unfair labor practice hearing along with other evi-
dence of reinstatement or offers thereof. However, it may be pointed out that an
attempt by the discriminatee to dispose of his rights by private agreement or act to
which the Board is not a party does not dispose of the unfair labor practice.71 If the
Respondent had offered Marchant reinstatement to his former position and if
70 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Branch, 65
NLRB 827.
71 J. B Wood, an individual, d/b/a Wood Manufacturing Company, 95 NLRB 633, 642;
Newspaper and Mail Deliverers' Union of New York and Vicinity, 93 NLRB 237.
BROWN; AND ROOT, INC., ETC. 549
Marchant had then turned it down in favor of another job, the Respondent would
have discharged its duty under the Act. But it does not appear that Marchant was
offered his former position until September 11, 1951, and, therefore, he had no oppor-
tunity to reject it. His acceptance of another position when his own was not offered
was no more than a Hobson's choice and does not rectify the unfair labor practice.
Although Marchant was given periodic promotions by the Respondent first to
heavy duty truck-dozer operator at $1.45 an hour, then to heavy duty truck-tractor
operator at $1.8125 an hour, and, on April 2, 1951, to structural ironworker at
$2.125 an hour, and later a transfer to rigger at the same rate, there is no evidence
from which it can be found that the jobs of structural ironworker and rigger were
no more arduous or were otherwise more desirable than that of crane operator, the
rate for which, after November 1950, was $2.25 an hour base rate, 12th cents an
hour more than the pay for structural ironworker at that time. Furthermore, as
pointed out, the job of crane operator existed throughout the backpay period and
was available to Marchant. There was no justification for substitution. I find,
therefore, that Marchant was not reinstated to his former or a substantially equivalent
position until September 11, 1951, when he was promoted to his former job as crane
operator. His backpay period is, therefore, January 4, 1950, to September 11, 1951.
In ascertaining gross backpay, I have found a few errors in the General Counsel's
computation of average hours, occasioned by a miscount of the number of operators
in certain weeks in the second quarter of 1951: I have adjusted these.72
Marchant was employed in each quarter of the backpay period and, I find, suffered
no willful loss . There is a discrepancy between the amount of interim earnings at
the Respondent as shown in the specifications for the fourth quarter of 1950 and that
shown in the social security report, which shows about $65 more than do the specifica-
tions. I shall take the higher figure. Marchant's backpay without shift differential
is as follows:
Period Gross Net interim Net
Year Quarter backpay earnings backpay
1950 I------------------------------ $998 $917 $81
II ------------------------------ 1,136 1,135. 1
III ------------------------------ 1,094 736 358
IV ------------------------------ 1,034 999 35
Total 1950------------------------- ----- --------- 475
1951 I------------------------------ 1,404 922 482
II------------------------------ 1,636 1,523 113
III ------------------------------ 1, 244 1,043 201
Total 1951------------------------- ----- --------- 796
Total backpay---------------------- ----- --------- 1,271
39. John W. Marchant, ironworker
The backpay period is January 3, 1950, to September 10, 1951. The Respondent's
principal contention is that the Board made an error in finding that the Respondent
discriminated against Marchant by refusing him employment as an ironworker when
he had been doing work as a mechanic and, on application for reinstatement,
requested work as a mechanic. This contention is outside the scope of these pro-
ceedings 73 The Respondent's answer admitted that Marchant was employed as an
ironworker at $1.70 74 an hour (base rate) before the strike. At the time of his first
72 For the week ending April 8, 1951, the averages were not affected by the omission of
one operator and his hours . For the week ending April 15, the average was increased
from 50 to 54 hours, but for the week ending April 22, the averages were reduced from 62
to 56. For the entire quarter, there were 727 instead of 729 hours.
73 Additional evidence taken on offer of proof in the backpay hearing may be useful to
the Board if it desires to review the effect of misclassification under the Davis Bacon Act
(as in the case of the thin wall tubing installers who were misclassified under that Act as
mechanic repairmen and, because of the misclassification , were included by the Board
as economic striking mechanics ). The evidence here also more specifically fixes the date
of Marchant's first personal application.
74 There were two types of ironworkers . Marchant was receiving the pay of structural
ironworker as distinguished from reinforcing ironworker . In spite of his classification,
Marchant had been, before the strike , a trestle mechanic , repairing cranes and had never
done structural ironwork unless installation of compressor machinery could be so classified.
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
application for reinstatement , the Respondent denied him reinstatement as an iron-
worker even though there were then replacements who could have been shifted or
released to make room for him . When Marchant informed the Respondent 's person-
nel man that he had done heavy -duty mechanic work, the personnel man denied his
application for such work on the ground that Marchant had not been so classified at
the time of the strike.
The Respondent in its brief states that it does not contest the sufficiency of Mar-
chant 's search for interim employment between January 3, the date of application for
reinstatement, and 25, 1950, the date of his hire by Flippin. Although Marchant's
Flippin hiring slip in January 1950 ( to be found in his personnel file) showed his
classification as mechanic repairman , he was given a pay rate , not of $ 1.10, the going
rate for most mechanic repairmen , 75 but $ 1.45, the then current rate for maintenance
mechanics , heavy-duty mechanics , and machinists . On June 18 , 1950 , he was re-
classified to a working foreman at $ 1.625 an hour. This promotion did not bring him
up to his former rate . The Respondent contends that this promotion made Marchant
a supervisor and took him out of the protection of the Act. Marchant testified that
after this promotion he did the same kind of work as before although he had an
assistant , but that he did not direct the work of others. I find he was not a super-
visor within the meaning of Section 2(11) of the Act.
I find no merit in the Respondent 's contention that , as an ironworker , Marchant
would have been entitled only to 44 hours' work between January 3 and 25, 1950,
in determining gross backpay.
Marchant's backpay is computed at $1.75 to November 27, 1950, when the rate
was raised to $2.125, plus shift differential. In this case, since Marchant was actually
rehired at Flippin on the graveyard shift, the shift differential will be added in com-
puting his backpay , which is as follows:
Period Gross
Year Quarter backpay
1950 I _____________ $1, 132
II ------------- 1, 186
III ------------- 1, 187
IV ------------- 990
Interim earnings
Gross Deductible Net Netea,pepaae backpay
$688 0 $688 $444
973 0 973 213
1,392 0 1,392 0
1,333 0 1,333 0
'Total 1950________ ------ ------ ------ ------ 657
1951 I ------------- 1,248 1, 300 0 1, 300 0
II ------------- 1,442 1, 300 0 1, 300 142
III ------------- 1,064 1,000 0 1,000 64
Total 1951________
Total backpay due__
206
863
40. James R. Marler, batch and mix operator
The Board found discrimination between January 3 and July 27, 1950 . Between
these dates , Marler had no employment for which earnings were reported for social
security purposes. Since 1944 Marler and his father had operated a grocery store
near Gassville, on the premises where he lived. When not otherwise occupied during
the backpay period Marler helped his father in this store. When he was out doing
work elsewhere , Marler 's wife assisted in the store.
Marler testified that in looking for work he "went all over the country where they
were working any men at all" ("country " not being understood to mean the United
States nor even the whole of Arkansas, but probably an area of 50-mile radius from
Gassville) to look for work. He testified that he reported to the unemployment
office and offered to take an out-of-State job but received no referrals. On cross-
examination , Marler testified that he drew unemployment compensation in 1949
during the strike but did not draw any in 1950. In explanation, Marler testified that
he did not do so in 1950 because he did not think he had any coming to him in that
year. The Respondent assumes that, because he testified that he drew unemploy-
ment compensation in 1949, he must have had other employment on the basis of
The reclassification was apparently intended to be a promotion , carrying a higher rate of
pay, because after the change, Marchant was removed from the supervision of the shop
foreman and was made answerable directly to the superintendent.
'5 Mechanic repairmen got varying rates : $1.10 , $1.325, $1 . 25, and $ 1.45, but the
majority got $1.10.
BROWN AND ROOT, INC., ETC. 551
which he drew compensation that year. The accuracy of Marler's memory of the time
when he,drew unemployment compensation could just as readily be questioned. In
Marler's personnel folder is a document showing that he was disqualified on Febru-
ary 15, 1949, from receiving unemployment benefits. There is nothing to show a
reapplication in 1950 on the basis of his employment at the Respondent before the
strike. The Respondent sought to create a doubt as to Marler's availability for work
in 1950 because of the 1949 disqualification. The personnel file does not contain the
Respondent's response to the customary notice sent to it by the Employment Security
Division of the State of Arkansas. However, it is more reasonable to infer that he
was disqualified because of his strike status than because of other reasons for unavail-
ability. Marler is not shown to have done such work as would have given him
unemployment compensation rights in 1949. It seems probable that Marler, drew no
unemployment compensation until after the end of the strike in December 1949, if at
all. Marler did not testify that he had registered in 1950 for unemployment benefits.
He testified that, in 1950, he kept " in contact" with the unemployment office "but it
was more or less looking for work." 76
Before he was offered reinstatement by the Respondent, Marler found no consistent
employment. About all he found to do was a little work haying for farmers at about
50 to 75 cents an hour and a job cutting timber for a man near Gassville, for which he
received about $50.
The Respondent claims that Marler. like certain others, was not diligent in his
search for work because he did not undertake to work as a fishing guide. There is no
evidence that he ever had acted as a guide or would have been hired as such had he
chosen to act as one. I find no willful loss on Marler' s part on account of his failure to
earn anything acting as a guide.
From the fact that Marler accepted any employment offers that came to him,
including the offer of reinstatement by the Respondent, I find that he did not with-
draw from the labor market to work in his grocery store but find that whatever
he did in the store was only such as he could spare time for from. other work, as
would have been the case when he was working for the Respondent. Further, taking
into account the relative scarcity of job opportunities in Gassville and environs,%and
from all the evidence, I find that Marler suffered no willful loss.
The specifications show earnings by Marler of $100 during the backpay period.
There is no evidence that it was divided between quarters as is shown in the speci-
fications, but the amount is so small that this division does not alter the total amount
due as backpay. I show the $100 split into segments, but I round the figures off to
whole dollars, showing the last segment as $14 to bring the sum to an even $100.
Marler was reinstated on the graveyard shift in July 1950. I find that he would
probably have been put on that shift in January 1950 when he applied for reinstate-
ment because at that time there was only one replacement of any kind in the batch
and mix classification on the payroll (C. G. Pangle, badge No. 4131) and that one
was on the graveyard shift. 'I shall, therefore, include shift differential in comput-
ing Marler's backpay, which is as follows:
Period Gro8s
Year Quarter backpay
Net interim
earnings
Net
backpay
1950 I------------------------------ $919 $43 $876
II------------------------------ 1,029- 43 986-
III ------------------------------ 307 14 293
Total backpay---------------------- ----- --------- 2,155
41. J. W. Mashaw, sandblaster-nozzleman
Mashaw did not testify at either hearing. The Board found discrimination be-
tween January 15 and July 25, 1950. At the backpay hearing, counsel for the
General Counsel moved to amend the specifications to exclude the period between
"the middle of April" and July 25, 1950, because later investigation showed that
Mashaw had suffered an injury which kept him out of the labor market for that
period. In the General Counsel's brief, backpay is computed only to the end of
the first quarter, omitting all time in the second quarter before the middle of April.
I accept this as a further correction. Earnings are shown in the social security'
76 The Respondent erroneously assumes in its 'brief that failure to register with the
employment agency is fatal to a claim for backpay. It has already been decided to the
contrary. See R. K Baking Corp., 120 NLRB 772
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
information for Mashaw in the first quarter of 1950. He obviously was in the labor
market then . There is no proof of any willful loss sustained by him. Mashaw's
backpay is as follows:
Period Gross Net interim Net
Year Quarter backpay earnings backpay
1950 1(1/15-3/13) ------------------- $482 $416 $66
42. Roy Mashaw, carpenter
The Board found discrimination against Roy Mashaw from January 15, 1950, the
date on which the Joint Council made application on his behalf, until March 8, 1950,
the date the Respondent 's letter dated March 6 , 1950 , offering reinstatement, was
mailed . Mashaw testified at neither hearing. The social security records disclose
no earnings for him during the backpay period. There is no evidence that he replied
to the Respondent 's offer. In fact there is no evidence that he existed or was in the
labor market after January 15 , 1950. I recommend no backpay for Roy Mashaw.
43. A. J. McFarland ,77 ironworker
The Board found McFarland 's period of discrimination to be January 15 to July
25, 1950. During this time McFarland was unemployed . He could not remember
if he had registered at the State employment agency during this time , although he had
registered following the beginning of the strike more than once . Based on 'a stipula-
tion of the parties, I find that he did register in 1950.78 During the period in ques-
tion , McFarland kept himself enrolled on the out -of-work list of his union and kept
in touch with the business agent in Baton Rouge and Monroe , Louisiana . ( He lived
in the southern part of Arkansas .) Aside from this, he checked with acquaintances
to learn if there were any , openings at places where they were working . In at least
March , April, May, and June, 1950 , he admittedly took on-the-job training as a
self-employed farmer under the GI bill and received "about 5 checks." 79 However,
there is no evidence that McFarland would not have accepted work as a structural
ironworker during this period and I find no basis for saying that he withdrew from
the labor market during that period .80 Considering the total period of McFarland's
unemployment , I consider it fair in this case to count his benefits under the on-the-
job training program as the equivalent of interim earnings deductible from gross
backpay 81 McFarland was not asked the amount of the benefits so received The
personnel records show that he was married but had no children . ' I shall take official
note, therefore , that under the training program he would have been entitled to
benefits in the amount of $110 a month, and I shall accordingly deduct such sum
for March in the first quarter of 1950 , for each month in the second quarter of 1950,
and for July 1950 in the third quarter during which time he was receiving such
payments.82
As in like cases , I shall compute his backpay without shift differential . The ar-
guments of the Respondent in its brief relative to McFarland are without merit
*+ The Respondent 's brief erroneously states that McFarland quit his job 38 days after
the strike began, presumably because the figures 12 /9/48 (when he was shown by the
Respondent's records as terminated ) were indistinct. An examination of the payroll rec-
ords show that McFarland did not work after December 2, 1948, and that his name was
removed from the payroll after that of December 12, 1948.
The claimant 's name was misspelled "Mac" In the Board's Decision and Order The
variance is an immaterial one, the sound is the same, and there is in the record other
evidence of identity of the claimant as the one referred to in the Board's Decision and
Order
.8 It was stipulated that McFarland received unemployment compensation during 1950
based on employment in the third quarter of 1949
e This would mean that a payment was made for 1 additional month, either February
or July
80 Ozark Hardwood Company, 119 NLRB 1130, 1133.
81 Ibid . The General Counsel did not except to the Trial Examiner 's recommendation of
such a deduction in that case There is, therefore, no Board precedent that makes such
deduction a rule in computation of backpay , and I am not relying on one See also Somer-
ville Cream Company , Inc, 100 NLRB 1155.
82 At about the time of the Respondent 's offer of reinstatement , McFarland took a job
(obtained through his union ) near his home Presumably this ended his training under
the GI Bill.
BROWN AND ROOT, INC., ETC. 553
and have, for the most part, been answered hereinbefore. McFarland's backpay,
without shift differential, is as follows:
Period Gross Net interim Net
Year Quarter backpay earnings backpay
1950 1(1115-3131) ------------------- $944 $110 $834
II ------------------------------ 1,153 330 823
III ------------------------------ 269 110 159
Total backpay______________________ -----
44. Carl Mooney, electrician
1, 816
Mooney's backpay period is from January 15 to July 25, 1950. He did not testify,
but he had earnings in each of the three quarters of the backpay period. There is
no showing that he suffered a willful loss. I find his backpay to be as follows:
Period Gross
Year Quarter backpay
1950 1(1/15-3/31) ------------------- $1, 095
II------------------------------ 1,303
111(7/1-7/22) -------------------- 296
Total backpay______________________ _____
Net interim Net
earnings backpay
$893 $202
1, 150 153
183 113
468
45. Calvin C. Mynatt, pump operator
For a time during the strike until some months after its termination (specifically
until June 16, 1950), Mynatt was working for Cook's Garage and Service Station
in Melbourne, Arkansas,83 under GI on-the-job training in automotive mechanics,
receiving $90 a month from his employer and a like amount from the Government.
On June 16, 1950, Cook's went out of business . While working at Cook's Mynatt
did not seek other work. After June 16, 1950, he made applications for work at
the Ford and Chevrolet garages in Melbourne in an effort to get a job in which he
could continue his training in automotive mechanics, but he was offered no work.
He also applied without avail for work at a building material company (the name
of which appears to have been erroneously spelled by the reporter as Ban Hill Gin
Company but which I heard as Band Mill Gin Company, possibly after the name
of the town of Band Mill, 11 miles from Melbourne), as a truckdriver or any other
job they had. He could remember no other places where he had applied and he
could not remember if, during the period between June 16 and July 25, 1950, when
the Respondent sent its offer of reinstatement, he had registered at the State em-
ployment agency. If he did, there is nothing in his personnel file or elsewhere to
show that he gave the Respondent's name as a base period employer. When Mynatt
received the Respondent's offer of reinstatement he accepted it.
On all the evidence, I am of the opinion that Mynatt did not incur a willful loss
in failing to seek work outside of the vicinity of Melbourne or Izard County. He
was under no obligation to leave the general vicinity of his home in order to seek
work,84 especially since he was not shown to have had information leading him to
believe that a more distant search would have resulted in success. Although there
is evidence in the record concerning wage rates paid for farm labor in Arkansas,
there is no evidence that Izard County contained workable farms or farms where
help was needed. Mynatt's failure to seek farmwork does not appear, under the
circumstances, to constitute a willful disregard for available work.
The Respondent argues that Mynatt was not in the labor market during the time
that he was working at Cook's under the GI training program. This argument has
already been ruled on adversely to the Respondent's contention 85
The Respondent claims as interim earnings not only the amount received by
Mynatt from Cook's, but also the amount paid by the Government under the GI
training program. It has never been decided by the Board that the amounts so
received from the Government under such training program are necessarily to be
included as interim earnings. However, as it appears that Mynatt did not actively
ss A map examined by the Trial Examiner shows Melbourne as the county seat of Izard
County. Mynatt estimated its population as about 800 In 1950 it was about 562.
84 American Bottling Company, 116 NLRB 1303; Ozark Hardwood Company, 119 NLRB
1180.
s5 Ozark Hardwood Company, supra, at 1133; Somerville Cream Company, Inc, 106
NLRB 1155.
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
seek more remunerative employment during the time that he worked at Cook's, I
shall include, as the equivalent of interim earnings, the amount received by Mynatt
not only from Cooks' but also the supplemental payments he received under the GI
training program. Mynatt's backpay is as follows:
Period Gross Net interim Net
Year Quarter backpay earnings backpay
1950 1(1/15-3/31) ------------------- $560 $450 $110
II ------------------------------ 734 450 284
III ------------------------------ 229 0 229
Total backpay______________________ ----- 623
'46. T. H. Parris, wagon drill operator
The Board found discrimination against Parris from January 3, 1950, to April
10, 1951. Because no work was performed by wagon drill operators during the first
8 weeks following January 3, 1950, the General Counsel computed Parris' back-
pay on the basis of the average hours and rate of pay of air tool operators for that
period and on the basis of the average hours and rate of pay of wagon drill op-
erators during the weeks when there was work for the latter. As there was no job
as wagon drill operator available for Parris on January 3, 1950, he was entitled to a
substantially equivalent position. The question raised is whether or not the job
of air tool operator was substantially equivalent.
The Respondent denies that in the absence of discrimination Parris would have
been employed as air tool operator. It will be remembered that the Order of the
Board recognized that Parris was given a substantially equivalent position when he
was reinstated on April 10, 1951, to the position of air tool operator. This vir-
tually disposes of the problem. The rate of pay for the job of air tool operator is,
of course, much less, but it was not shown that there was any job vacancy for Parris
in other classifications in which he was also qualified. Hence, in determining what
would be a substantially equivalent position, the Board would have to decide on
known facts. The Respondent had, on January 9, 1950, many positions available
for air tool operators by transferring, demoting, or dismissing replacements of one
of the three kinds described in the Board's Decision and Order, so obviously a posi-
tion in this classification was available to Parris. By trade, -Parris was a Euclid
driver and, although his classification of wagon drill operator was not changed, he
was used by the Respondent as a Euclid driver for a period of several weeks before
the beginning of the strike. Had the Respondent properly reclassified Parris, the
Board might have ordered him reinstated as a Euclid driver,86 or, in the absence of
discrimination, the Respondent might have reinstated Parris as a Euclid driver, if
such a job was available, in which case Parris would have earned more than he
would have as an air tool operator. But it was not shown that a job as Euclid
driver was available.
Of 11 wagon drill operators on the payroll in early December 1949, 7 were shifted
to other jobs during the week of December 11, 1949; 3 of these were shifted to the job
of carpenter apprentice; and 1 was shifted to the job of dinkey operator. Thus, four
of those who had been wagon drill operators continued to work in jobs paying more
than the job of air tool operator. The last man to work as a wagon drill operator in
the last of December 1949 was transferred to the job of sandblaster nozzleman at a
rate higher than that of air tool operator. Three of the eleven wagon drill operators
in the week of December 11, 1949, became laborers at a rate lower than that of air
tool operator, but one of these was transferred to an undisclosed job at Flippin
within a week's time. Two of the wagon drill operators in December dropped off
the payroll for undisclosed reasons and a third was absent during most of December
and January, but his name was not dropped from the payroll until January 23, 1950.
As most of the wagon drill operators were retained in other classifications, it is reason-
able to infer that, absent discrimination, Parris would have been given an equal
opportunity to work in another classification.
Testimony of witnesses for the Respondent compared the work of wagon drill
operators, jackhammer operators, and air tool operators and testified that men in
either of the first two classifications could perform work as air tool operators because
of the similarity of the work. Because Parris was ultimately reinstated as air tool
operator, the inference is that the Respondent considered him, by previous experience,
to be qualified to do the work of air tool operator.
85 This is another instance of misclassification by the Respondent. Perhaps no claim
under the Davis Bacon Act could have arisen in this case because the rate Parris was paid
as wagon drill operator and as Euclid operator was the same.
BROWN AND ROOT, INC., ETC. 555
The Respondent sought to justify the delay in reinstating Parris by attempting to
portray him as an unsatisfactory worker. Three months after he was reinstated, Parris
was terminated with the notation on his termination slip, "unsatisfactory." If this
notation was put on the slip at the time of the termination, it may be questioned why
he was retained for 3 months before he was terminated. An examination of the pay-
rolls for June and July 1951 discloses that work for air tool operators was falling off
and that five air tool operators in addition to Parris went off the payroll at the same
time. I also note that, whereas during the period between the week ending April 15,
1951, when Parris was reinstated and the week ending July 15, 1951, when Parris
was terminated, the number of air tool operators dropped from 119 to 84, and not all
of the 84 were working. Thus, it may be inferred that Parris was not among the first
to be terminated. On this evidence, it is difficult to picture him as unsatisfactory. On
June 30, 1947, Parris was given a job as a laborer although he had applied for work
as a truckdriver, Euclid driver, or wagon drill operator. From this job he was, it is
true, discharged on July 8, 1947, with the notation "work unsatisfactory." However,
on February 2, 1948, Parris was rehired, this time as a wagon drill operator and he
continued in uninterrupted employment until the strike began in December 1948. I
cannot give weight to the Respondent's contention that Parris was denied reinstate-
ment throughout the backpay period because of any fault with his work as a wagon
drill operator. The Respondent at the hearing also sought to justify its failure to re-
instate Parris because of what were alleged to be falsifications. However, if any
material errors appeared on documents in Parris' personnel record, they were there
before Parris was hired as a wagon drill operator in 1948. He was never discharged
on account of them. I foreclosed the Respondent from examining Parris about
such matters.87
To the extent that both such contentions were made in an attempt to justify non-
reinstatement earlier than April 10, 1951, the evidence supporting them should have
been adduced at the unfair labor practice hearing. It was not contended that Parris
became unfit for employment after January 3, 1950, at least before the date of his
discharge in July 1951.
Parris was unemployed during the first three quarters of 1950. During that time
he was actively in search of employment. He traveled to Little Rock to talk to the
Teamsters representative about a job, to Poplar Bluff, Missouri, to inquire about work
with a contractor, went to Paducah, Kentucky, where a big construction job was
going on and inquired about work at Marion and Herrin, Illinois, went to the union
representative at Fort Smith, Arkansas, tried to get a job at Blue Mountain Dam below
Hot Springs, Arkansas, kept in touch with the State employment office at Mountain
Home and through it got a few little jobs cleaning up yards, and finally was referred
by that office to a place where men were being sent to pick cotton near Poplar Bluff
It was while inquiring about this job near Poplar Bluff that Parris saw some con-
struction work in the vicinity and made application for, and got, a job there with an
employer named Cone.88 This job lasted only a short time and then Parris got a job
with the -Bechtel Construction Company laying a pipeline and continued there until
work ran out. Following this last job, Parris returned to Mountain Home and looked
for work there. When he received a notification of a job with the Respondent he
returned there in April 1951. There is no evidence that Parris suffered a willful loss.
In his search for work, Parris incurred some expenses, but most of it came in
quarters when he was unemployed and is therefore not allowable. In the last quarter
of 1950, he presumably incurred expense of traveling to Missouri where he found
employment. The precise amount of his expense on this trip is not in evidence, nor
is any expense claimed therefore in that quarter. There is, however, a claim for ex-
pense of traveling to Fort Smith, Arkansas, and expense of unsuccessfully seeking
work at Ozark in November and December of 1950. The evidence concerning the
latter is too vague to establish the claim. The round trip expense from Mountain
Home to Fort Smith was not precisely shown. However, the round trip distance is
easily determined to be 418 miles. By 1950 standards, $29 should cover the cost of
travel, and $6 for room and board for the 2 days he was on the trip is certainly reason-
able. I shall, therefore, charge $35 against Parris' interim earnings in that quarter.
The'specifications state (page 60) that as no work was available as wagon drill oper-
87 One alleged error was the purported age of Parris as shown on the medical examina-
tion slip prepared when Parris was hired in 1947. Typed on this slip was the age 49.
Actually, Parris was then 55 years old It does not appear that Parris typed his age on
the medical examination slip, he did not sign it, and his correct age was given on his
application for employment which he filled out before his medical examination.
ss So spelled in the social security report In the transcript of the hearing in this case,
the reporter spelled it Combs
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ator for the weeks ending October 22 and December 10, 1950, no gross backpay has
been credited for these weeks and, therefore, $85.26 is deducted from interim earnings
for those periods. However, I note that the specifications include those weeks in
gross backpay computing such backpay at the rate of air tool operator. Therefore,
the full amount of interim earnings should be shown. I do so below. For reasons
previously stated in this report, I compute gross backpay without the night-shift
differential. Otherwise, I have used the hours and rates shown in the specifications.
Parris' backpay is as follows:
Interim earnings
Period Gross Deductible NetGross Net
Year Quarter backpay expense backpay
1950 I_____________ $656 0 0 0 $656
II_____________ 594 0 0 0 594
III ------------- 572 0 0 0 572
IV ------------- 688 $555 $35 $520 168
Total 1950________ 1,990
1951 I* ------------ 756 0 0 0 756
II_____________ 60 0 0 0 60
Total 1951-------- 816
Total backpay_____ ______ ______ ______ ______ 2,806
4 The specifications for this quarter compute gross backpay on the basis of 277 hours of
work at wagon drill operator's rate and 272 hours at air tool operator' s rates . The air
tool operator's hours were designated by an asterisk through the full backpay period. By
error an asterisk was placed after the 277 hours for wagon drill operators in the specifica-
tions for the first quarter of 1951
47. H. C. Patton, carpenter
Patton did not testify at either hearing. The Board found that Patton was dis-
criminated against for the period between January 15, 1950, when the Joint Council
requested his reinstatement, and March 8, 1950, when the Respondent offered him
reinstatement. It does not appear that Patton replied to the offer. In fact, there is
no indication that after January 15, 1950, he was in the labor market or was ready,
able, and willing to work. No earnings are shown for him during that period in
social security records. I recommend no backpay.
48. Hubert L. Petty, millwright
The Board found that Petty was discriminated against beginning on the date that
a new employee was hired in that job between February 4 and July 25, 1950 (the date
to be ascertained upon compliance investigation).89 The General Counsel in the
specifications has computed Petty's backpay on the basis of millwright work performed
in two widely separated weeks. In each of these weeks the millwright work was
done not by a newly employed millwright but by employees already on the payroll in
other classifications, who were used temporarily on millwright work. An oiler was
used for 17 hours as a millwright on February 16 and 17, 1950, and on June 16 or
17 eight men worked 2 hours each as a millwright. One of these was a crane opera-
tor, two were truck (tractor) operators, and the others were structural ironworkers
and an apprentice structural ironworker. Apparently the Board did not find Petty en-
titled to any other job as substantially equivalent, and the General Counsel makes no
contention that he should have received backpay in any classification other than that
of millwright.
Even if Petty were awarded backpay for the number of hours shown in the speci-
fications, his net backpay would be between $4 and $5. However, because I can find
no new employee hired as a millwright by Ozark,90 I conclude that Petty is entitled
to no backpay.
One promotional replacement was on the payroll in January. This man, J. B Daven-
port, was a management trainee. The Board apparently did not consider his position as a
vacancy. Davenport was a millwright until the week of January 29, 1950, when he became
a mechanic repairman ( maintenance ). Petty had been a mechanic repairman before he
became a millwright.
90 Whether or not the one who was the subject of the stipulation in the oiiginal hearing
was someone hired by Flippin cannot be ascertained since no Flippin records were put in
evidence in this case.
BROWN AND ROOT, INC., ETC. 557
49. Jake C. Pfingston, carpenter
The Board found discrimination against Pfingston from December 23, 1949, when
he made personal application for reinstatement, to March 8, 1950, when the Re-
spondent offered him reinstatement. In the fourth quarter of 1949, according to
social security information, Pfingston was employed by a contractor having a
Nebraska office (it does not appear where Pfingston's actual employment was). The
exact date of neither beginning nor ending of this employment is in evidence. Never-
theless, the specifications prorate his interim earnings for the last quarter of 1949
as a deduction from gross backpay from December 23 to 31, 1949, as though he had
had interim employment for the entire quarter to the end of December. Pfingston
was employed by two employers in the first quarter of 1950, although from the
amount of earnings shown, it would appear that he was not employed throughout
the quarter Part of the interim earnings may or may not have been received after
March 8, but there is no evidence furnishing a basis for assuming, as the General
Counsel appears to do, that Pfingston's earnings with his second employer were all
received after March 8.
Pfingston did not testify. If the General Counsel had information concerning more
specific dates of employment, it should have put it in evidence. In the absence of
such evidence, I will prorate Pfingston' s earnings in 1950 just as the General Counsel
did for his 1949 earnings. As no evidence was offered to show that Pfingston suffered
any willful loss,91 I find his backpay to be as follows:
Period Gross Net interim Net
Year Quarter backpay earnings backpay
1949 IV ------------------------------ $58 $51 $7
1950 I------------------------------- 529 '229 300
Total backpay---------------------- ----- --------- 307
*Nine-thirteenths of $331, the net interim earnings for the full quarter.
50. Donald'C. Plymate, carpenter
Plymate testified that he would not have worked for the Respondent after the strike
because it was open shop and he would not have worked on any job that was open
shop. Under the circumstances, Plymate was, in effect, still on strike and was not
available for employment 92 I find that no backpay is due to him.
51. Clyde S. Putney, carpenter
During the period of discrimination, Putney was employed, when work was avail-
able, by a local contractor, Houston Jones. Putney's testimony concerning efforts to
find work in Springfield, Missouri, appeared to relate to December 1948 and
January 1949 rather than to the backpay period, for he started working for Jones in
January 1949 and continued to work for him through the second quarter of 1950.
Putney testified that his next trip to Springfield was "probably along up in the sum-
mer," the year not being given. He explained that Springfield was his hometown, that
his sister was there, and that he did not stay away for more'than a year at a time.
Although Putney was not employed in the third quarter of 1950, according to earnings
records, and may have gone to Springfield, Missouri, at that time, he was unable to
remember what he did on that trip. The specifications show expenses for a trip to
Springfield in the third quarter of 1950, but, since Putney had no earnings in that
quarter, the expenses are not allowable in any event.
Houston Jones, a witness for the Respondent, testified that as far as he knew
Putney worked in the third quarter of 1950, although his own records showed no
payments for Putney in that quarter. Jones' records showed earnings for Putney
in the fourth quarter of 1950 in the amount of $911.12, more than Putney had
made in any other quarter, and Jones speculated that his bookkeeper might have
reported some of Putney's third quarter earnings in the fourth quarter. The Re-
spondent claims in its brief that Putney had $455 in interim earnings in the third
91 It was stipulated that Pfingston drew $45 38 in unemployment compensation during
1950 based on earnings in the first quarter of that year He must, therefore , have regis-
tered with the State employment agency for work
91 Bruns Coal Company, Inc , 106 NLRB 590 ; James Thompson ' J.Co , Inc , 100 NLRB
456,472-473
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
quarter of 1950. I find the evidence inadequate to support this claim. Putney's
backpay is as follows:
Period Gross
Year Quarter backpay
Net interim
earnings
Net
backpay
1950 I(1/15-3/31)------------------- $663 $416 $247
II ------------------------------ 840 719 121
III ------------------------------ 866 0 866
IV (10/ 1-10/26 ) ------------------ 274 280 0
Total backpay---------------------- -----
52. Willis Raines, carpenter
--------- 1,234
Raines testified at neither hearing. He had not made personal application for
reinstatement. There is no evidence that he replied to the Respondent's offer of
reinstatement. No earnings are shown for him by social security. No evidence
was offered to show that, after January 15, 1956, Raines was in the labor market.
I recommend no backpay for him.
53. T. R. Roberts, ironworker
The Board found discrimination from January 15 to July 25, 1950. Roberts was
working in Childersburg, Alabama, on January 15, 1950, and continued there until
January 28, when he heard that there would be only a few more days' work where
he was and he had heard that work was available at Oak Ridge, Tennessee. Al-
though the Oak Ridge job was scheduled to start early in February, it did not, be-
^cause of inclement, weather, actually start until mid-February 1950. That job lasted
until March 10, 1950, and then Roberts was unemployed until April 13, 1950. In
that period of unemployment, Roberts returned to his home at Childersburg, Ala-
bam,a, registered at the unemployment office, and contacted union business agents
in Atlanta and Savannah, Georgia; Birmingham , Alabama; and Knoxville, Tennessee.
Through one of the agents, Roberts got a job at Somerset , Kentucky, which lasted
about 3 or 4 weeks. At the end of that job he obtained another in the same vicinity
without loss of time . When schools closed in June, he returned to Childersburg,
Alabama, and brought his family to Kentucky. He was still working there when he
got the Respondent's letter offering him reinstatement . He made a trip back to the
Bull Shoals Dam, but after speaking with a superintendent of the Respondent he
decided not to take the offer because (according to his explanation) of the uncer-
tainty of the rate of pay he would get. The Respondent sought to elicit answers
from Roberts in an attempt to show that Roberts had a fixed determination not to
work on a nonunion job and for that reason would not at any time have accepted
the job at the Respondent . However, Roberts testified that he could work on non-
union jobs in so-called right-to-work States (of which Arkansas is one ) without
getting in bad with his union . If he would not, under any circumstances, have
worked for the', Respondent, he would not be likely to have returned there to speak
with the superintendent. I find that he had not decided before July 25, 1950, that
he would not return to work for the Respondent.
The Respondent in its brief makes certain contentions which I consider without
merit and which I have disposed of generally heretofore. It is not necessary to repeat
them here.
Roberts' interim earnings as shown in the specifications will be corrected to agree
with his testimony . This will mean adding earnings at Daniel Construction Com-
pany in Childersburg, Alabama, between January 15 and 28, 1950, and his full
earnings (without proration) on his job for Maxon Construction, Inc., at Oak Ridge,
Tennessee.
From interim earnings , certain expenses are deductible under the Board's estab-
lished practice. Although the expenses were not proved exactly, the nature of some
of these expenses were proved and they are reasonably ascertainable. Mileage is
calculated at 7 cents a mile 93 for travel (1) for 275 miles from his home in Ala-
bama to the job, at Oak Ridge in order to lake that job and (2) in moving his family
,,from their=home in Alabama 375 miles to the location of his job in or,.near Somerset,
Kentucky, in June 1950. Judging by the amount of expenses claimed in the specifica-
tions, I assume that no claim is made for Roberts for travel to and from work be-
tween Knoxville and Oak Ridge, Tennessee, while on the Maxon job but is made
for board and lodging while on that job. If I misconstrue the claim and if it was
°See Katarik, Inc, 1]1 NLRB 630, 635, footnote 7; East Texas Steel Castnngs Com-
pany, Inc, 116 NLRB 1336.
BROWN AND ROOT, INC., ETC. 559
intended to include mileage for commuting to and from work, a serious obstacle to
allowing such daily commuting expense is the failure of the General Counsel to
show where Roberts resided during the time on the job. If he resided in Knoxville
while on that job (as might be suggested by a question put to Roberts by the Gen-
eral Counsel on the distance between Knoxville and Oak Ridge), there is no evidence
to show that Roberts was obliged to live that far from the job-18 or 20 miles.
Furthermore, while working for the Respondent, Roberts had to travel 4 miles to
work from his home, so even if Roberts were entitled to some mileage, there should
be deducted from expense the cost of traveling 8 miles a day (round trip) which
Roberts would have incurred in the absence of discrimination. However, for want
of adequate proof, I do not allow daily commuting expense. Roberts is entitled to
a reasonable amount for board and lodging while living away from home since this
is an expense he did not have while working for the Respondent. The specifications
claim $110 for room and board while on the Oak Ridge job and $220 for room and
board while on the jobs at Somerset before he moved his family there. From
Roberts' earnings from Maxon I estimate that he had approximately 21 working
days at Oak Ridge. At the rate of 5 working days a week, this would mean about
29 days of residence there. Roberts did not remember the cost of his room and
board. Room may conservatively be computed at $2 per day 94 and restaurant fare
might conservatively be estimated at $2.50 per day. The claim of $110 for room
and board shown in the specifications is some $20 less than this. This may ^ be
accounted for-by the fact that he would have had to pay something for-his food at.
home, although it would be much less than eating out. I shall, therefore, allow the
amount claimed for room and board in the first quarter of 1950. The expense
claimed for room and board while in Somerset from mid-April to mid-June is for
more than twice the length of time of his stay in Oak Ridge. Hence, the claim of
$220 appears reasonable and is allowed. In addition to the amount for board and
lodging, I shall allow the round trip mileage at 7 cents a mile between Childersburg
and Somerset as claimed. Roberts' backpay is as follows:
Period Gross
Year Quarter backpay
1950 1 ( 1/15-3/31)__ $944
II ------------- 1, 153
111(7/1-7/25) --- 269
Total backpay_____ ______
Interim earnings
Deductible Net
Gross expenses Net baokpay
$539 $185 $354 $590
854 320 534 619
271 0 271 0
1,209
54. Robert M. Rutledge, carpenter
The Board found discrimination asto Rutledge 'between January 15 and July 25,
1950. The specifications claim backpay to July 30, 1950. This date is fixed as 5
days after the date of the offer of reinstatement because the Board, in modifying
the finding and recommendation of Trial Examiner Doyle that the discrimination
continued, and that backpay should extend to the date of reinstatement, stated that
"the Respondents cannot be held obligated for bockpay after their offer or reem-
ployment beyond a reasonable time for the striker to receive and personally accept
the offer," and the Board thereupon found that 5 days was a reasonable time in the
instant case.95
The Respondent, in its answer, denies that Rutledge made a reasonable search for
employment during the backpay period. However, in its brief to the Trial Examiner
the Respondent concedes that Rutledge made a reasonable effort to find employ-
ment. I shall not, therefore, detail Rutledge's efforts to find interim employment.
The Respondent, although conceding the reasonableness of Rutledge's efforts to
find employment, expresses incredulity with respect to the low earnings shown
by the evidence. Any objection that the Respondent has on this score is
apparently based on the false premise that the General Counsel has the burden of
proof as to all interim earnings and that, if the amount of earnings conceded by
the General Counsel is very low, the General Counsel has not sustained its burden
of proof without showing books, records, tax returns, and other documentary evi-
04 West Texas Utilities Company, Inc., 109 NLRB 936.
95 99 NLRB at p. 1047. The Board, in its section on "The Remedy" (p. 1063) and in
its Order (p. 1065), makes no reference to this 5-day period. Technically, therefore, back-
pay should be limited to the period of the discrimination found. However, I take the
opinion of the Board to express its intent, and I therefore compute backpay in Rutledge's
case to July 30, 1950.
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dence to establish negatively that there were no other earnings than those conceded.
Although I disagree that the General Counsel has such a burden of proof, I should
have welcomed any evidence that would have fixed precise dates of employment and
amounts of earnings . Rutledge's testimony demonstrated a hopeless confusion as
to dates. I suspect that some of the employment to which he testified may have
occurred at times outside the backpay period and that this may explain the failure
of the social security records to show such earnings. On the other hand, social se-
curity records show only the earnings reported to that administration by the em-
ployer, and some employers may not make the required report. Hence, the social
security reports have little or no value as evidence of nonearnings in the backpay
period 96 Rutledge's testimony as to dates and earnings varied from his affidavit
(made in 1955) and even varied some in separate parts of his testimony. I do not
attribute this to any intention on the part of Rutledge to deceive. Rather, I attribute
it to the vagaries of memory and confusion of incidents. Confronted with such
conflicts, I have shown Rutledge's interim earnings as in the largest amount conceded
in either his testimony or his affidavit. This appears to be the method adopted by
the General Counsel97
Certain amounts were claimed on behalf of Rutledge as expenses incurred in
seeking employment and while working on interim employment. The Respondent
contests all expenses incurred while Rutledge was unemployed. That expenses
incurred in seeking interim employment is a proper deduction from interim earn-
ings is long established.98 However, this is to reimburse the claimant only for
such expenses as he would not normally have incurred. The specifications claim $21
for room-rent in Houston in the second quarter and $45 for room rent for Rutledge
and his wife in Dallas in the third quarter of 1950. The evidence does not disclose
that, at the times mentioned, Rutledge was maintaining any other residence. I shall,
therefore, exclude these amounts.99 The other expenses shown in the specifications
are established and are allowed. Rutledge's backpay is as follows:
i
Period Gross
Interam earn ngs
Deductible Net
Year Quarter backpay Gross expenses Net backpay
1950 1(1/15-3/31)-- $663 $160 $77 $83 $580
11 ------------- 840 350 8 342 498
111(7/1-7/30)___ 253 50 3 47 206
Total backpay_____ 1,284
55. Hoy Shaw, carpenter
During 1949 and the first part of 1950 Shaw was self-employed, cutting timber.
He testified that he grossed $800 but paid for help at $1 an hour, which left him
about $200 and that he paid $75 out of that for the timber rights. During 1949
he started to build a tavern for himself. He finished cutting timber in the middle
of February 1950, and did not thereafter look for work because he was getting his
tavern ready to open. The exact date of its opening is not fixed, but Shaw testified
that things were slow and that it was about May 1950 when it began to go well.'00
Shaw received an offer of reinstatement from the Respondent about March 8,
1950. He did not return, he testified, because a neighbor of his had been discharged
2 hours after going back. Whether or not Shaw would have returned otherwise, I
find is immaterial because he was not in the labor market after February 15, 1950.
The General Counsel has allocated $167, received from cutting timber, to the
backpay period. As this was all received by February 15, when I find he withdrew
from the labor market, it should be included as a credit against backpay. The in-
terim earnings shown in the specifications are more than are shown in the testimony.
90 The General Counsel does not ask for social security information either before or after
the backpay period. Because such reports before and after the backpay period might show
that the claimant is a year off in his memory of dates of certain employment and thus
rectify errors of memory , some benefit might result from requesting social security infor-
mation for more than just the backpay period.
97 The specifications were amended at the hearing to show an additional $ 50 earned in
July 1950, just before Rutledge's return to the Respondent.
99 Crossett Lumber Company , 8 NLRB 440.
19 See West Texas Utilities Company, Inc., 109 NLRB 930.
100 The Respondent contends that Shaw's tavern opened in 1949. If it did, it did not
occupy his full time, as he was engaged in cutting timber until February 1950.
% BROWN AND ROOT, INC., ETC. 561
If Shaw's testimony could be relied on, he made only $125 net for the whole time he
was cutting wood in 1949 and 1950. However, the General Counsel did not move
to amend the specifications, so I accept the figure there shown as interim earnings.
However, because he withdrew from the labor market after February 15, 1950,
Shaw's gross backpay is reduced to 176 adjusted average hours, and his rate, with-
out night-shift premium pay, is $1.375. Shaw's backpay is, therefore:
Period Gross Net interim Net
Year Quarter backpay earnings backpay
1950 I(1/15-2/15)------------------- $242 $167 $75
56. Elbert C. Smith, carpenter
Smith testified at the unfair labor practice hearing but did not testify at the back-
pay hearing. His backpay period is from January 3 to February 16, 1950, when
he was rehired by the Respondent. During that period, Smith was making an effort
to be rehired. The record is barren of other evidence of his activities during the
backpay period. No interim earnings were shown for him. There is no evidence
of willful loss. Smith's backpay is as follows:
Period Gross Net inter im Net
Year Quarter backpay earnings backpay
1950 I(1/3-2/16)-------------------- $345 0 $345
57. C. D. Stamps, form setter and stripper
The Board stated, "There is no showing that there was in this classification a
vacancy or replacement on the Respondent's payrolls at the time of application."
It had been stipulated at the unfair labor practice hearing that a new employee was
hired in this classification between February 1 and July 25, 1950. The Board there-
fore found discrimination against Stamps "from the date that the new employee was
hired in this classification, to be ascertained upon compliance investigation, until
July 1, 1950." My scrutiny of the record led me to the conclusion that there were
replacements in each of the three categories of replacements in the classification of
laborer-form stripper and setter on January 15, 1950, the date of the application
on behalf of Stamps for reinstatement, as may be seen from Appendix A hereto
attached. The General Counsel appears to concur in my conclusions, judging by
the list of replacements contained in his brief to the Trial Examiner. In addition
to such replacements, I find from the payroll records that there were promotions
and transfers made into this category between January 15 and February 1. Never-
theless, in accordance with the Board's Decision, the General Counsel has com-
puted Stamps' backpay from the date of the first new hire in this classification after
February 1, 1950, and I agree that it is not for either the General Counsel or
me to modify the Board's findings. In the week ending February 5, 1950, an H. F.
Elliott, badge No. 519, was added to the payroll as a form setter and stripper. His
first day worked was February 3, 1950.101 Although the General Counsel does
not identify Elliott as the man hired on February 3 (thereby fixing the date for
the commencement of backpay), he was the only one actually hired in that classifi-
cation in the first week of February 1950, and I find that he is the new man referred
to in the Board's Decision (at 99 NLRB 1054). In computing Stamps' backpay,
however, the General Counsel excluded the week ending February 5, and the week
ending July 29, 1950.102 However, as the specifications were not amended to in-
clude one of the weeks I shall follow the specifications.
Stamps did not testify at either hearing and the only evidence offered about him
by either side was the social security information on Stamps' interim earnings.
These earnings, however, demonstrate that Stamps was in the labor market through-
out the backpay period. His backpay is as follows:
Period
Year Quarter
Gross
backpay
Net interim
earnings
Net
backpay
1950 I(2/3-3/31)-------------------- $377 $280 $97
II ------------------------------ 654 420 234
III(7/1-7/25)-------------------- 149 113 36
Total backpay---------------------- --------- 367
301 In this same week, Muett Copeland, badge No 3291, was transferred or promoted
'from apprentice carpenter ( rate $1 ) to form setter and stripper ( rate $1.05).
102 Average hours for the week ending February 5 were 31. Elliott worked 24. There
were 2 work days in the final week, July 24 and 25.
562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
58. C. L. Stone, jackhammer operator
Stone testified at the original -hearing but not in the backpay hearing. His testi-
mony at the original hearing related his numerous applications for reinstatement.
It is evident that he was in the labor market throughout the backpay period of
January 3 to April 4, 1950. No evidence was offered at the backpay hearing con-
cerning Stone except a social security form showing no interim employment earn-
ings. This does not indicate ,that Stone was not looking for work. The Respondent
has shown no willful loss.
In computing the average hours for jackhammer operators, the General Counsel
has, in the week ending January 8, 1950, eliminated the hours worked by two of
the four operators because they worked less than 24 hours. Because these two
were not in their first week of employment and because I noticed that the first week
in January 1950 was a period of less work than usual (presumably because of
weather conditions), I shall count all hours worked in computing the average
hours.103 The result is that four operators worked 102 adjusted hours, making the
average for that week 25 instead of 38. I compute Stone's gross backpay, therefore,
on the basis of 522 hours rather than 535 hours. Stone's backpay is as follows:
Period Gross Net interim Net
Year Quarter backpay earnings backpay
1950 I______________________________ $509 0 $509
50. George Tulipana, carpenter
The Board found Tuhpana's period of discrimination to be January 10 to October
23, 1950. The Respondent takes issue with this finding on the evidence How-
ever, it is not my function here to review such evidence for the purpose of deviating
from the Board's findings.
The Respondent claims that Tulipana did not make a reasonable search for in-
terim employment. In 1949, during the strike, according to a notice shown in his
personnel file, Tulipana applied for unemployment compensation, and he testified
that in 1950 he applied for work at the State employment agency. He testified that
he did not receive unemployment compensation because "they wanted to send me
away from here to work." 104 He was not asked where he was offered work, but
he testified that he would have accepted work in an area to which he could have
driven to work daily. Inferentially, therefore, he was offered work somewhere
where he would have been kept away from home. Except for the State employment
agency, Tulipana applied at only one other employer than the Respondent in 1950.
Before the strike, Tulipana had started to build an automobile service station. He
began to operate the service station in April 1949. His wife operated the station
whenever he was away. Later (date not shown) he added a fishing tackle store to his
service station. His sole occupation during the backpay period was operating this
business. For the full year of 1950 his gross receipts from this business amounted to
$9,000, and his net income was in the neighborhood of $1,700. In its brief, the Re-
spondent states that Tulipana's "interim earnings are incompletely developed" and
complains that Tulipana's "records are not in evidence to show the computation."
The Respondent had full opportunity to examine Tulipana on the witness stand and,
at the request of the Respondent, Tulipana signed an authorization for the Respond-
ent to get a copy of his income tax return showing his income during the backpay
period, but the Respondent has not offered it or any part of it in evidence. During
the backpay hearing, arrangements were made by counsel to inspect Tulipana's books.
The Respondent did not claim that it was later denied the privilege of inspecting
Tulipana's books and records and it did not request a subpoena duces tecum. The Re-
spondent argues that Tulipana did not account for the value of his labor in improving
the property used by him in business and states in its brief, "This enhanced value
would be shown by a comparison of the investment before and after the backpay
period if accurate books had been kept." I fail to see how a possible underevaluation
of Tulipana's capital improvements would adversely affect the Respondent. With a
higher evaluation, Tulipana would have been enabled to take a greater depreciation,
with the result that his net income would have been lower rather than higher.
Since Tulipana spent the greater part of his time operating his business during the
backpay period and made no great effort to find other work, I find he was self-
108 In certain other classifications the General Counsel did, in computing average hours in
the week ending January 8, 1950, include the time of men who worked less than 24 hours,
because a majority of them did.
104 The Respondent received no notice of claim filed in 1950.
BROWN AND ROOT, INC., ETC. 563
employed and will show his net profit for the backpay period as interim earnings, as the
General Counsel has done in specifications . The interim earnings shown in the
specifications indicate a proration of net income from Tulipana 's business on the basis
of an annual figure somewhat in excess of $1,700. I shall , therefore , use the interim
earnings figures shown in the specifications . Tulipana 's backpay is as follows:
Period Gross Net interim Net
Year Quarter backpay earnings back pay
1950 I(1/10-3/31)------------------- $715 $400 $315
II------------------------------ 840 433 407
III ------------------------------ 866 433 433
IV (10/1-22) --------------------- 208 100 108
Total backpay---------------------- ----- --------- 1,263
60. V. B. Walker, reinforcing ironworker
The Board found Walker's period of discrimination to be from January 15 to
July 25, 1950 . The Respondent 's answer admits that Walker made a reasonable
search for interim employment, but denies that Walker would have worked as many
hours or been paid at as high an hourly rate as the figures used in the specification. I
find the facts to be as shown in the specifications . The Respondent also pleaded that
Walker had found substantially equivalent employment and had voluntarily aban-
doned his right to reinstatement . This was pleaded in negative form as though denying
an allegation in the specifications . This form of pleading did not relieve the Respond-
ent from the obligation to prove its allegations , and no such proof was offered.
Walker died on January 3, 1953, and the only evidence adduced was the information
furnished by social security. As Walker had earnings in each of the quarters of the
backpay period, I find that he was in the labor market and available for work.
Walker's backpay is as follows:
Period Gross Net interim Net
Year Quarter backpay earnings backpay
1950 1(1/15-3/31) ------------------- $805 $860 0
II______________________________ 983 826 $157
I11(7/1-7/25)-------------------- 229 262 0
Total backpay due__________________ ----- 157
61. John D. Wells, air tool operator
Wells did not testify at either hearing. He did not make personal application for
reinstatement. The initial date of the period of discrimination, January 15, was the
date on which the Joint Council made application on behalf of most of the strikers
who had not been reinstated. Neither the General Counsel nor the Respondent
offered any evidence with respect to Wells' availability for work or interim earnings.
The General Counsel did not even offer the social security information introduced
as to other claimants. I find no basis for inferring that Wells was, after January 15,
1950, available for employment by the Respondent or that he was even in the labor
market. I recommend no backpay for Wells.
62. Russell T. Wood, carpenter
Wood's backpay period is January 3 to February 24, 1950. Wood did not testify,
but the evidence shows that on January 16, 1950, he registered for unemployment
benefits and, perforce, then applied for work through the State employment agency.
A stipulation regarding the identity of claimants who received unemployment benefits
in 1950 failed to list Wood. This may be explained on the ground that' he got interim
employment before he was reinstated on February 25, 1950. Although the only
evidence of interim employment comes from the social security information furnished
and this does not show the employment date, it may be inferred that Wood's employ-
ment in the first quarter of 1950 preceded his return to the Respondent's employ, be-
cause he continued in the Respondent's employ from February 25, 1950, to well after
the end of the first quarter. There is no evidence that he suffered a willful loss. I
find Wood's backpay as follows:
Period Gross Net interim Net
Year Quarter backpay earnings backpay
1950 1(1/3-2/24) -------------------- $407 $42 $365
614913-62-vol. 132-37
564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The specifications concede that no backpay is due to the following discriminatees:
William I. Curtis, ironworker; Lester M. Holden, signalman ; W. E. Morgan, crane
operator; Raymond Hudson, carpenter; Billy B. Redus, carpenter; Walton Ford, car-
penter; Royal E. Losch, carpenter; and Kern K. Russell, carpenter. I find that no
backpay is due to the foregoing discriminatees. The specifications included, with
the foregoing list of men for whom no backpay is due, the name of Troy Engles. How-
ever, under the Board's Decision, Engles was not a discriminatee. The Board' dis-
missed the complaint as to laborers, including Troy Engles (99 NLRB at p. 1056,
footnote 52).
As previously found, there is no backpay due for any of the men named in Schedule
C, attached to the Board's Decision and Order, including those added by subsequent
amendment.
APPENDIX A
Names of Various Types of Replacements of Strikers at Ozark Dam Constructors
[Figures in parentheses following classifications refer to number of claimants for reinstate-
ment as of date of application , to the extent now entitled to backpay]
CARPENTERS (30)
I
Promotional Reclassifications or Old Employees Rehired During Strike in a
Classification Not Formerly Held
Badge
Name number
Date of hire of
dnscriininatory
replacements
Avey, Henry E----------------------- 2586
Beach,Jeff --------------------------- 1122
Benton , James W--------------------- 742
Gentry, J. J------------------------- 1272
Hicks, Earl S-------------------------- 921
Hurst, Thurman W------------------- 1948
Marchant, Henry C------------------- 2312
Myers, James L---------------------- 569
Nowlin, Errett B--------------------- 1716
Pittaway, Walter H------------------- 555
Schenck, Lee H----------------------
II
2208
Replacements
Bozone, Roy F----------------------- 1906 ------------------
Covington , A. S---------------------- 907 ------------------
Criner, G. S------------------------- 1904 ------------------
Denton , C. A------------------------ 570 ------------------
Eby, C. W-------------------------- 1879 ------------------
Farris, W. C------------------------- 4355 ------------------
Gass, R. M-------------------------- 898 ------------------
Hankins, T. M----------------------- 977 ------------------
Horton , Carthel E-------------------- 1740 ------------------
Huett , Charles R--------------------- 512 ------------------
Hurst , Francis M--------------------- 983 ------------------
Johnson , Arnold R-------------------- 726' ------------------
Killian, Willie E---------------------- 980 ------------------
Kinard , Henry W--------------------- 1377 ------------------
Milum , Frank D---------------------- 1607 ------------------
Rice, Truman A---------------------- 2426 ------------------
Russell, Darrell W-------------------- 1279 ------------------
Sanford, Gilbert A-------------------- 1479 ------------------
Skiver, Robert L--------------------- 3425 ------------------
Tucker, James L--------------------- 573 ------------------
Watson, Thermal J .------------------- 981 ------------------
'BROWN AND ROOT, INC., ETC.
III
Discriminatory Replacements
565
Badge
Date of hire of
discriminatory
Name number replacements
Allen, E. G-------------------------- 3836 2/18/51
Bass, C. W-------------------------- 4326 5/29/50
Campbell, H. 0---------------------- 4393 2/ 3/50
Cherry E. E------------------------- 4325 4/17/50
Chesney, E. A----------------------- 4386 1/30/50
Dry, Doda--------------------------- 615 2/ 3/50
Duke, J. E-------------------------- 2976 1/12/50
Elliott, Roy-------------------------- 2990 1/13/50
Hall, Lester-------------------------- 2971 1/12/50
Haughn , T. V------------------------ 590 2/ 3/50
Hightower, Eugene-------------------- 2968 1/11/50
Payne,Elwood------------------------ 4398 1/30/50
Pitts, L. V--------------------------- 4366 1/24/50
Smith, I. E-------------------------- 4399 2/ 2/50
Smith , L. F-------------------------- 634 2/ 5/50
Stevens, L. C------------------------ 2975 1/12/50
Wyatt, E. C------------------------- 2993 1/13/50
AGGREGATE CONVEYOR OPERATORS (1)
I
Promotional Reclassifications or Old Employees Rehired During Strike in a
Classification Not Formerly Held
Badge
Name number
Date of hire of
discriminatory
replacements
Hawkins, James M.------------------- 1829
Hurst, Carlis------------------------- 2201
Nanney, Claude---------------------- 3801 ------------------Thomas, Harry M-------------------- 1637 ------------------Wallace, Homer J--------------------- 529 ------------------
II
Replacements
Hutchins , Eugene B------------------- 3920
------------------
III
Discriminatory Replacements
Ellison , Everett E-------------------- 2322
------------------
AIR TOOL OPERATORS (5)
I
Promotional Reclassifications or Old Employees Rehired During Strike in a
Classification Not Formerly Held
Name
Badge
number
Date of hire of
discriminatory
replacements
Browning, V. E---------------------- 1088
------------------Clark, E. E-------------------------- 1875
------------------
Gray, R. C-------------------------- 2151 ------------------Hanby, Phillip------------------------ 1759
------------------Hendrix, Wilburn B------------------- 1877 ------------------
Hickey, Arthur D--------------------- 1005
------------------High , Palmer D---------------------- 882
------------------Johnson , Oliver----------------------- 2139
------------------Keener, Jessie W--------------------- 1257
------------------Miller, Walter------------------------ 834
------------------Sisk , J. T---------------------------- 940
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Name
Badge
number
Date of hire of
discriminatory
replacements
Sisney, Homer------------------------ 690
Terry, Alba A----------------------- 1684
Weaver, William B------------------- 2109
II
Replacements
Blackwell, J. M---------------------- 1703 ------------------
Clark, J. B-------------------------- 2142 ------------------
Gray, P. E--------------------------- 903 ------------------
Lonon, Jack L----------------------- 1114 ------------------
Sloan , Luther M---------------------- 2148 ------------------
Uchtman, William L------------------ 765 ------------------
Wiggins, Joe 0----------------------- 661 ------------------
III
Discriminatory Replacements
Bums, H. H------------------------- 4313 ------------------
Campbell, H. 0---------------------- 4393 ------------------
McGinnis , A. V---------------------- 1191 ------------------
Reed, J. C--------------------------- 4346 ------------------
Roberts, E. R------------------------ 4394 ------------------
Satterfield , C. R---------------------- 4358 ------------------
Stone, R. L-------------------------- 4372 ------------------
BATCH AND MIX OPERATORS (1)
I
Promotional Reclassifications or Old Employees Rehired During Strike in a
Classification Not Formerly Held
Date of hire of
Badge discriminatory
Name number replacements
Pangle, Curtis G---------------------- 4131
None.
None.
II
Replacements
III
Discriminatory Replacements
CEMENT FINISHER (1)
I
Promotional Reclassifications or Old Employees Rehired During Strike in a
Classification Not Formerly Held
Date of hire of
Badge discriminatory
Name number replacements
Corder, T. A------------------------- 3951 ------------------
II
Replacements
Davis, C. H-------------------------- 3955
Tyler, Theo A------------------------ 1919
None
III
Discriminatory Replacements
BROWN AND ROOT, INC., ETC. 56Z
CRANE OPERATORS (2)
I
Promotional Reclassifications or Old Employees Rehired During Strike in a
Classification Not Formerly Held
Date of hire of
Badge discriminatory
Name number replacements
Doshier, R. R------------------------
Freeman, D. E-----------------------
Miser, Gene G-----------------------
Reeves, Arlis D----------------------
Wade, Martin------------------------
1809
1121
3208
862
2601
-----------------
II
Replace
None.
III
Discriminatory
Alexander, O. R----------------------
ments
Replacements
2978 /12/50- 1/29/50
Hickman, B. M---------------------- 2428 3/15/50-11/ 6/50
Strickland, J. R---------------------- 1779 4/19/50- 9/20/50
DINKEY OPERATORS (2)
I
Promotional Reclassifications or Old Employees Rehired During Strike in a
Classification Not Formerly Held
Date of hire of
Badge discriminatory
Name number replacements
Davis, F. C., Jr---------------------- 1883 ------------------
Garrigus, W. J----------------------- 859
Gilley, C. D------------------------- 1410
Griffith, R. D------------------------ 1843
Harris, L. H------------------------- 1918
Ramey, James W--------------------- 2418
Schneider, Andries P------------------
II
721
Replacements
Dobbins, J. E------------------------ 789 ------------------
Tolliver, James E--------------------- 3991 ------------------
Warburton, William J----------------- 713 ------------------
III
Discriminatory Replacements
Bell, T. V--------------------------- 4043 ------------------
Ricketts, R. L------------------------ 1580 ------------------
Rosson , R. F------------------------ 598 ------------------
Tolliver, E. E------------------------ 2926 ------------------
ELECTRICIANS (4)
I
Promotional Reclassifications or Old Employees Rehired During Strike in a
Classification Not Formerly Held
Date of hire of
Badge discriminatory
Name number replacements
Browning , J. E----------------------- 1187 ------------------
Parsley, George C-------------------- 2694
.568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II
Replacements
Badge
Date of hire of
discriminatory
Name number replacements
Burnett , Louis ----------------------- 4156 ------------------
Cornelius, Paul J--------------------- 3917 ------------------
Farrar, E. B------------------------- 1768 ------------------Manes,Julias J----------------------- 3854 ------------------
Sand, Joe H------------------------- 1436 ------------------
Word, T. G-------------------------- 3855 ------------------
Discriminatory Replacements
Connaughton, E. C------------------- 1965 4/27/50
Oglesby, Setas R--------------------- 2161 3/16/50
Person, B. R------------------------- 2004 (2826) 5/ 2/50
Sand, B. S--------------------------- 1461 4/ 5/50
Young, E. M------------------------ 4392 1/30/50
FORM SETTERS AND STRIPPERS (1)
I
Promotional Reclassifications or Old Employees Rehired During Strike in a
Classification Not Formerly Held
Name
Badge
number
Date of hire of
discriminatory
replacements
Kellem, Elzie L---------------------- 915 ------------------
Phillips, Claude N-------------------- 2213 ------------------
Pemberton, Raymond------------------ 627 ------------------
Pine, Roy A------------------------- 685 ------------------
Welch, James A---------------------- 588 ------------------
Whitley, Leonard G------------------- 931 ------------------
Whittaker, James H------------------- 586 ------------------
II
Replacements
Griffith, R. L------------------------ 2226 ------------------
Nethery, Nathan T------------------- 972 ------------------
Phillips, Milburn---------------------- 1136 ------------------
Reven, Thomas N-------------------- 1398
Reynolds, Harley E------------------- 4082 ------------------
Stafford, James A-------------------- 689 ------------------
Winfree, Claude W------------------- 2411 ------------------
III
Discriminatory Replacements
Parnell , C. C------------------------ 2967
(See Stipulation 99 NLRB 1054, Ct. Record 139)
1/12/50
IRONWORKERS (8)
I
Promotional Reclassifications or Old Employees Rehired During Strike in a
Classification Not Formerly Held
Name
Badge
number
Date of hire of
discriminatory
replacements
Beard, T. H------------------------- 1696 ------------------
Brazzell , John------------------------ 948 ------------------
McMillin, Robert E------------------- 1864 ------------------
Milligan, James P-------------------- 3131 ------------------
Narramore, Charles A----------------- 1727 ------------------
Nettles, Henry M--------------------- 3815 ------------------
BROWN AND ROOT, INC., ETC. ' 569
II
Replacements
Date of hire of
Badge discriminatory
Name number replacements
Brown, C. S------------------------- 1011
Parnell, George E-------------------- 1336
III
Discriminatory Replacements
Sherrell, Marvin---------------------- 1284
JACKHAMMER OPERATORS (4)
I
------------------
3/17/50
Promotional Reclassifications or Old Employees Rehired During Strike in a
Classification Not Formerly Held
None.
Name
II
Replacements
Date of hire of
Badge discriminatory
number replacements
Vanderventer, E. G------------------- 1802
III
Discriminatory Replacements
Girtman, W. R----------------------- 927 12/19/49
Dry, Elmer-------------------------- 3225 2/15/50
MILLWRIGHTS (1)
I
Promotional Reclassifications or Old Employees Rehired During Strike in a
Name
Classification Not Formerly Held
Date of hire of
Badge discriminatory
number replacements
Davenport, J. B---------------------- 3807
II
Replacements
None.
in
Discriminatory Replacements
(See Stipulation 99 NLRB 1057, Ct. Record, p. 142, 1 between 2/1 and 7/25/50)
PUMP OPERATORS (4)
I
Promotional Reclassifications or Old Employees Rehired During Strike in a
Classification Not Formerly Held
Badge
Name number
Date of hire of
discriminatory
replacements
Dearmore, R. L----------------------- 2796* ------------------
Johnson, Jesse W--------------------- 1920 ------------------
McKinney, Harold D----------------- 3070 ------------------
Thomas, Omer V--------------------- 2145 ------------------
Webber, Leroy ------------------------ 605 ------------------
*Reappears on payroll ending 1/1/50.
II
Replacements
Keeter, Aubrey----------------------- 792 ------------------
Pangle, James------------------------ 885 ------------------
Smith, George E--------------------- 1120 ------------------
570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III
Discriminatory Replacements
Date of hire of
Badge discriminatory
Name number replacements
Turner, Loy-------------------------- 620 2/ 8/50
RIGGERS (1)
I
'Promotional Reclassifications or Old Employees Rehired During Strike in a
Classification Not Formerly Held
Date of hire of
Badge discriminatory
Name number replacements
Jones, Joseph F---------------------- 1882 ------------------
Perry, Clifford------------------------ 1702
II
Replacements
Clark, L. H------------------------- 4108
Warren, Briney----------------------- 4102
None.
III
Discriminatory Replacements
SANDBLASTERS (1)
I
Promotional Reclassifications or Old Employees Rehired During Strike in a
Classification Not Formerly Held
Badge
Date of hire of
discriminatory
Name number replacements
Hamm, John H----------------------- 944 ------------------
Hamm , H. D------------------------ 549 ------------------
Sisk , Olgie--------------------------- 2481 ------------------
Vandeventer, Howard E--------------- 3502 ------------------
Whitfield, Allen E-------------------- 653 ------------------
II
Replacements
Mahan , Leonard---------------------- 648
Stewart , Lewnye D------------------- 2467
None.
III
Discriminatory Replacements
SANDBLAST-NOZZLEMEN
I
Promotional Reclassifications or Old Employees Rehired During Strike in a
Classification Not Formerly Held
Name
Badge
number
Date of hire of
discriminatory
replacements
Buchanan , Billie J-------------------- 650
Daniel , A. B------------------------- 2209 ------------------
Friend, J. A------------------------- 2143 ------------------
Funkhouser, T. R--------------------- 941 ------------------
II
Replacements
Dickerson, P. T---------------------- 969
Gossage, A. G----------------------- 1633
BROWN AND ROOT, INC., ETC.
None.
III
Discriminatory Replacements
SIGNALMEN (2)
571
I
Promotional Reclassifications or Old Employees Rehired During Strike in a
Classification Not Formerly Held
Badge
Name number
Date of hire of
discrzrnana tort'
replacements
Byrd, Grover C---------------------- 1810 ------------------
Griffin (Griffith), Joseph-------------- 759 ------------------
King, Neal Louis--------------------- 1166 ------------------
Lewis, Eugene------------------------ 2115 ------------------
Smith, Charlie L--------------------- 2140 ------------------
Walker, Harold-----------------------
II
1025 ------------------
None.
None.
Replacements
III
Discriminatory Replacements
VIBRATOR OPERATORS (1)
I
Promotional Reclassifications or Old Employees Rehired During Strike in a
Classification Not Formerly Held
Badge
Name number
Date of hire of
discriminatory
replacements
Beard, Claborn----------------------- 1459 ------------------
Crawford, Junior ---------------------- 2316 ------------------
Hare, Charles------------------------ 962 ------------------
Hathcock, Charles B------------------ 947 ------------------
Kindle, Walter E--------------------- 1954 ------------------
Koontz, James B--------------------- 1951 ------------------
Muier, Oliver R---------------------- 1338 ------------------
Parton, Raymond H------------------ 1934 ------------------
Perry, Hershel------------------------ 565 ------------------
Sanders, Lewis H---------------- ---- 1061 ------------------
Todd, Homer------------------------- 838 ------------------
Wheeler, F. W----------------------- 4158 ------------------
II
Replacements
Boatright, Harlan B------------------- 2210 ------------------
Cantrell, Jerry------------------------ 1935 ------------------
Cockrum, W. S---------------------- 1930 -----------------
Copeland, J. W----------------------- 2103 ------------------
Duggins, E. J------------------------ 1807 ------------------
Glendenning, Quinton----------------- 1214 ------------------
Harness, Alvin C--------------------- 1889 ------------------
Kieff, Robert H---------------------- 538 ------------------
Lance, Gerald------------------------ 1939 ------------------
Martin, Joe-------------------------- 1923 ------------------
Moss, Boyd-------------------------- 791 ------------------
Oels, John D------------------------ 1006 ------------------
Oels, Robert G----------------------- 1756 ------------------
Parker, James------------------------ 679 ------------------
Sisney, Archie------------------------ 1804 ------------------
Sites, Nathan C---------------------- 2237 ------------------
Taylor, Johnnie L-------------------- 1885 ------------------
572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Name
Badge
number
Date of hire of
discriminatory
replacements
Stone, Leffel C----------------------- 1921 ------------------
Todd, Bud H------------------------ 835 ------------------
Trivitt, Oliver E---------------------- 1340 ------------------
Young, Alonzo----------------------- 696 ------------------
III
Discriminatory Replacements
Adams, G. D------------------------ 4306 1/19/50
Blair, D. W-------------------------- 2944 3/20/50
Burns, H. H------------------------- 4313 4/24/50
Cockrum, C. B----------------------- 2984 1/13/50
Denny, Bill-------------------------- 4308 1/13/50
Denton, C. E------------------------ 2916 7/ 3/50
Fletcher, Vernon---------------------- 2915 1/ 3/50
Hughes, L. W------------------------ 4301 5/ 6/50
Kelley, Woodie----------------------- 1492 12/19/50
Lantz, C. V-------------------------- 4318 1/16/50
McGinnis, A. V---------------------- 1191 1/25/50
Morton, T. N------------------------ 4302 1/13/50
Smith, R. Q------------------------- 3888 8/21/50
WAGON DRILL OPERATORS (1)
I
Promotional Reclassifications or Old Employees Rehired During Strike in a
Classification Not Formerly Held
Date of hire of
Badge discriminatory
Name number replacements
Cranfill, Richard L------------------- 1264 ------------------
None.
None.
H
Replacements
III
Discriminatory Replacements
Unanue & Sons, Inc. and Manuel Alvarez, Eugenio Garcia,
Pedro Goyco , Frank Marti, Thomas Monllor, Raul Nieves,
Juan Ruiz, and Juan Seijo. Cases Nos. 2-CA-7340-2, 2-CA-
7340-3, 2-CA-7340-4, 2-CA-7340-5, 2-CA-7340-6, 2-CA-7340-7,
2-CA-7340-8, and 9-CA-7340-9. July 31, 1961
DECISION AND ORDER
On February 13, 1961, Trial Examiner James F. Foley issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist therefrom and
take certain affirmative action as set forth in the copy of the Inter-
mediate Report attached hereto. He further found that the Respond-
ent had not engaged in certain other unfair labor practices alleged
in the complaint and recommended that such allegations be dismissed.
132 NLRB No. 33.