Charley Toppino and Sons, Inc.

National Labor Relations Board - Board Decisions

Apr 13, 1965

151 N.L.R.B. 1638 (N.L.R.B. 1965)

1638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Charley Toppino and Sons , Inc. and Freight Drivers, Warehouse-
men and Helpers Local Union No. 390, an affiliate of Inter-
national Brotherhood of Teamsters, Chauffeurs , Warehouse-
men and Helpers of America . Case No. 12-CA-2147. April
13, 1965
SUPPLEMENTAL DECISION AND ORDER
On September 28, 1962, the Board issued a Decision and Order
in the above-entitled case, finding that Respondent Charley Toppino
and Sons, Inc., had unlawfully discriminated against certain named
employees and ordered that those employees be reinstated to their
former, or substantially equivalent, positions and made whole for
any loss of earnings.' The United States Court of Appeals for the
Fifth Circuit granted enforcement of the Board's Order on June 11,
1964.2
On August 21, 1964, the Regional Director for Region 12 issued
a backpay specification, and Respondent filed an answer thereto.
On October 26, 27, and 28, 1964, a hearing was held before Trial
Examiner Stanley N. Ohlbaum for the purpose of determining the
amount of backpay due the discharged employees. On January 14,
1965, the Trial Examiner issued a Supplemental Decision and Order,
attached hereto, finding that the specified claimants were entitled
to the indicated amounts of backpay, with interest at 6 percent
per annum on each of the quarterly sums set forth in his Decision
and Order. He also recommended, in the case of Leroy Jordan, an
additional undetermined amount from October 1, 1964, to the date
of a valid offer of reinstatement. Thereafter, Respondent filed
exceptions to the Trial Examiner's Supplemental Decision and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
at the supplemental hearing and finds that no prejudicial error
was committed. The rulings are hereby affirmed. The Board has
considered the Respondent's exceptions and brief, the Supplemental
Decision and Order, and the entire record in this case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner with the following modification.3
1138 NLRB 1247
2 N.L.R.B. v. Charley Toppino and Sons , Inc., 332 F. 2d 85
3 We do not adopt the Trial Examiner ' s recommendation that Leroy Jordan be paid
an additional indeterminate amount dating from October 1, 1964 , to the date of a valid
151 NLRB No. 153.
CHARLEY TOPPINO AND SONS, INC. 1639
ORDER
On the basis of the foregoing Supplemental Decision and Order
and the entire record in this case, the National Labor Relations
Board hereby orders that the Respondent, Charley Toppino and
Sons, Inc., its officers, agents, successors, and assigns, shall pay to
Raymond Beiro and Sam Cagnina as net backpay herein determined
to be due, the amounts set forth opposite their names in the section
of the Trial Examiner's Supplemental Decision headed "IV. Com-
putation of Backpay," plus interest at the rate of 6 percent per
annum, less any lawfully required tax withholding; and that the
Respondent shall pay to Leroy Jordan, as total net backpay herein
determined to be due, the sum of $6,452.81 plus interest at the rate
of 6 percent per annum, less any lawfully required tax withhold-
ing, which is the amount computed to be due to him as of June 15,1964.
offer of reinstatement. When Jordan reported to Respondent on June 13, 1964, he was
informed by his foreman that he had block-stripping work available for him immediately.
Jordan indicated that he was not prepared to resume work until 'Monday, June 15, 1964,
and agreed to return then to work of stripping blocks, which, as the Trial Examiner
found, as indeed Jordan admitted, was work occasionally performed by him. Jordan,
however, did not report to work June 15, 1964, and did not thereafter communicate
with the Respondent until approximately 6 or 7 weeks later, at which time the Respond-
ent had permanently assigned another employee to Jordan's job. We find that Respondent
was justified in believing that Jordan had abandoned any further interest in working
for Respondent, and therefore justified in replacing Jordan. Unlike the Trial Examiner
we find it unnecessary to pass on the validity of Respondent's offer of reinstatement be-
cause Jordan's failure to report to work on June 15, 1964, was not based on any belief
that he would not be reinstated to his basic job of operating a forklift. See Research
Designing Service, Inc., 141 NLRB 211, 216.
TRIAL EXAMINER'S SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
This proceeding was instituted by the Acting Regional Director for Region 12, for
the purpose of determining the amount of backpay, if any, due to certain employees
whom the National Labor Relations Board had found to have been unlawfully dis-
charged by Respondent in violation of Section 8 (a) (3) and (1) of the National Labor
Relations Act (herein called the Act), as amended; the Board's order having been
enforced, as hereinafter set forth, by the United States Court of Appeals for the Fifth
Circuit. Pursuant to appropriate notice, a hearing was held before Trial Examiner
Stanley N. Ohlbaum in Key West, Florida, on October 26, 27, and 28, 1964, upon the
issues resulting from Respondent's answer to the Acting Regional Director's backpay
specification. General Counsel and Respondent were represented throughout by
counsel and were given full opportunity to examine and cross-examine witnesses and
to introduce pertinent evidence. At the close of the hearing, the parties argued their
positions orally. Subsequent to the hearing, Respondent filed a brief.
Upon consideration of the pleadings, my observation of the witnesses, my review of
the testimony and exhibits, Respondent's brief, and the entire record in this case,1 I
make the following:
FINDINGS AND CONCLUSIONS
1. BACKGROUND; PLEADINGS; ISSUES
On September 28, 1962, the Board by its Decision and Order, reported at 138 NLRB
1247, adopted in Coto the findings, conclusions, and recommendations of Trial Exami-
ner William Seagle, to the effect that, among other things, Respondent had unlawfully
IL Including the entire record In the original unfair labor practice and enforcement
proceedings , of which I have taken official notice.
1640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharged its employees Raymond Beiro, Sam Cagnina, Leroy Jordan, and Manuel
Carmona, in violation of Section 8 (a) (3) and (1) of the Act, in order to discourage
and defeat its employees' membership in and attempt to organize and bargain col-
lectively through the Charging Union. The Board's remedial order included cease-
and-desist provisions, reinstatement provisions, and a provision that the discrimi-
natorily discharged employees be made whole for earnings lost as a result of the
discrimination against them. Upon petition for enforcement of the Board's Order,
the United States Court of Appeals for the Fifth Circuit on June 11, 1964, enforced
the Board's Order in all respects and as to all of said unlawfully discharged employees
except Carmona. N.L.R.B. v. Charley Toppino and Sons, Inc. 332 F. 2d 85
Because of the inability of the parties through informal negotiations to agree upon
the amount of backpay due, the Acting Regional Director on August 21, 1964, pur-
suant to the Board's Rules and Regulations, issued a backpay specification, setting
forth in detail the amounts alleged to be due to the employees required to be made
whole under the terms of the court decree; namely, Beiro, Cagnina, and Jordan. On
or about September 28, 1964, Respondent filed an answer to the backpay specification,
challenging the bases utilized therein for calculation of backpay due, and in effect
contending that each of the discriminatorily discharged employees would in any event
have been laid off shortly after his discharge, for nondiscriminatory, economic reasons
involving "a substantial reduction of the work force."
II. THE NATURE OF RESPONDENT'S BUSINESS
Respondent, having its principal place of business on Stock Island, Florida, has
been engaging in a number of business enterprises and operations , namely, the manu-
facture and sale of concrete blocks, crushed stone, ready-mix concrete, and rock fill;
a land development operation, employing crane operators, bulldozer operators, and
dragline operators; a maintenance department, employing mechanics and helpers;
operation of a batching plant at Marathon, Florida; operation of a portable plant at
Zigsby Park, Florida; building construction contracting operations; furnishing of build-
ing supplies and materials for construction of bridges and highways; rock mining and
operation (through a subsidiary) of a harbor-berthing and boat-selling marina (result-
ing from its bay-bottom quarrying operations); and landholding. According to
Respondent's secretary and administrator, Frank Toppino, its total personnel from
1961 to the present has been around 80 to 95 at a time.
Respondent's concrete blocks are produced in its cement block plant by employees
comprising a work crew of variable size. According to Paul Toppino, Respondent's
officer in charge of its cement block plant, the block plant work crew has varied
upwards from a "bare minimum," or skeleton crew, of four (consisting of a cement
block machine operator; a batchman, batcher, or batch mixer; a forklift operator, who
by means of a forklift conveys blocks of cement in racks from the machine to the
"curing" or hardening area; and a supervisor). Further according to Paul Toppino,
the "normal" block plant work force was "four or five"; and in addition to the "bare
minimum" crew of four, normally there is a "cutter" or "chipper" (who cuts or trims
the cement blocks to required odd sizes or shapes), and also one or more "strippers"
(who remove or "strip" the hardened cement blocks from their racks and stack them,
this work being compensated at a piece rate per rack). Also according to Paul
Toppino, although in "slow" times the "stripping" may be done by one or more of the
aforedescribed four-man skeleton crew of the block plant, the number of employees
engaged in block plant production "varies from time to time, depend[ing] on the
amount of production that we need out of the plant."
The testimony of Paul Toppino, Respondent's payroll records, and the record in the
unfair labor practice proceeding-in-chief before Trial Examiner Seagle, amply estab-
lish, as I find, that (1) a diversification pattern of work assignments existed among
Respondent's employees, who were shifted around from one operation, job, or task to
another as required or convenient in the conduct of Respondent's construction and
other businesses and operations; 2 (2) block "stripping" work was regularly per-
See, for example, in the record of the proceeding-in-chief before Trial Examiner Seagle,
the cases of employees Beiro, one of the discriminatees herein (truckdriver of different
varieties of trucks, crane operator, and "stripper": ULP-T 116-117 and 118-119 ; this
and succeeding references herein are to pages in the transcript of the hearing in that
unfair labor practice proceeding) ; Estopinin (dump truck or "JOOK" operator and shop
"tire man": ULP-T 135 and 137) ; Murphy (Euclid payhaul operator, ready-mix plant
worker, drill crew dynamiter, and road crew general helper: ULP-T 141 and 795-796) ;
Machin (forklift operator and "stripper", ULP-T 181-182) ; Sobausis (dump truck
driver, mixer driver, and delivery truck driver: ULP-T 255-256) ; Jones (yard truck
CHARLEY TOPPINO AND SONS, INC. 1641
formed by various categories of personnel, including not only members of the four-
man "bare minimum" crew of the cement block plant, but also by other employees of
Respondent elsewhere employed in its enterprises and oprations (in addition to or
instead of their usual work), and also by supernumeraries or temporary help; and
(3) that more than one forklift was utilized in Respondent's operations, and at least
at times more than one forklift in its cement block plant.
III. EXTENT OF RESPONDENT'S BACKPAY OBLIGATIONS TO
ITS UNLAWFULLY DISCHARGED EMPLOYEES
A. Beiro and Cagnina
The cases of discriminatees Beiro and Cagnina may be considered together, since
they involve related problems and a common basis or method of backpay calculation.
Beiro's employment with Respondent commenced on or about February 6, 1961.
Working as a ready-mix driver, he also (as shown in the unfair labor practice hearing-
in-chief) drove tiucks of different variety, as well as a crane, at the same time deriving
significant portions of his income (as shown by Respondent's payroll records) from
overtime and block "stripping" work. A scant month or so before his discriminatory
discharge on September 9, 1961, he ceased operating the ready-mix and his activities
were confined to stripping block in the cement block plant until, as decided by Board
and court, he was discharged in violation of the Act. Although Respondent insisted
herein that Beiro's discharge was because of misconduct or inefficient work per-
formance, this contention involved an attempted relitigation of issues determined
adversely to Respondent in the hearing-in-chief in the unfair labor practice proceed-
ing, and affirmed by the Board and court.3
Cagnina, whose latest date of hire 4 was September 19, 1960, had worked not only
as a forklift operator both in the cement block plant and on an outside construction
project, but also as a dispatcher and as acting foreman of the cement block plant.
Paralleling in case of Beiro (as well as other employees), he also earned significant
amounts by way of overtime and from block stripping. Like Beiro, shortly-in
Cagnina's case, only about 2 weeks-before his unlawful discharge on September 5,
1961, his work activity was restricted to block stripping As determined in the unfair
labor practice proceeding-in-chief herein, the employees' organizational activities,
spearheaded by Cagnina, had been launched just before that, early in August.
Respondent advances the contention that Cagnina was incapable of or unsuited for
employment within the confines of the block plant itself as a forklift operator,
because of an asthmatic condition. This contention, however, ignores the fact that
he also had done other work, including stripping, outside the block plant proper.
Moreover, the asthmatic condition of Cagnina, a relative of Respondent's principal
Paul Toppino, is of long standing and was well known to Respondent at the time of
his hire as well as during his tenure; according to Cagnina, it is a condition which
exists indoors, even when supposedly not exposed to dust, as well as outdoors; he has
managed to maintain employment and earn significant amounts of money notwith-
standing that condition; since his discriminatory discharge by Respondent, he has
continued to work in construction work, painting, and unloading milk vans; and Cag-
nina's condition was fully known to and litigable by Respondent, if not thoroughly
aired, in the prior proceeding 5
The backpay specification relating to Beiro is based upon a backpay period running
from September 9, 1961 (the date of his unlawful discharge), until June 12, 1964,
when, after the court's enforcement decree, Respondent made him an offer of rein-
driver and delivery truck driver: ULP-T 418-419) ; Alvarez (cement truck driver, crusher
operator, trailer operator, batcher, ready-mix operator, and dump truck operator* ULP-T
1007) At the earlier hearing, Paul Toppino testified that ready-mix drivers also "take
care of the day to day maintenance of the plant" when they have time, otherwise "the
batchman will hire somebody or take somebody out of another department who isn't so
busy to handle it," and that "It has been kind of an unwritten law out there that we
maintain when we haven't anything else to do . . . If he [batcher] has two or three
men or one man not doing anything, he will usually give him a job chipping or painting
or preventative maintenance." According to Paul Toppino's testimony in the instant hear-
ing, even the employees comprising the skeleton force at the cement block plant did
"various other jobs" as called for.
8 Cf. N.L.R.B v. Biscayne Television Corporation. 337 P. 2d 267, 268 (CA 5) ; Flora
Construction Company et al., 149 NLRB 588; Interurban Gas Corporation, 149 NLRB 576.
He had been previously employed by Respondent.
5 Cf Interurban Gas Corporation, supra.
1642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
statement which it is conceded he declined . Against the earnings which he would
presumably have received from Respondent had he had continued in its employ have
been credited the earnings which he received from other employment , all of which
has been calculated on the quarter-annual basis regularly utilized by the Board in
backpay cases .6 The backpay specification relating to Cagnina involves the same
method of calculation , except that in his case the backpay period runs from Septem-
ber 5, 1961 ( the date he was unlawfully discharged ) until June 12, 1964, when
Respondent offered and he also concededly declined reinstatement.
In the cases of both Beiro and Cagnina, the measure of backpay utilized in the
specification was the average weekly prediscrimination wage of the discharged
employee during a continuous period of employment exceeding 6 months immediately
before his unlawful discharge , in Beiro's case $114 22 and in Cagnina 's case $106.73
per week. As explained by Woodrow G. Strickland , compliance officer of the Board's
Region 12 , testifying as General Counsel's witness , this measure of backpay, known
as the "projection of average earning formula ," involves selection of a significant
period of time predating the discrimination as a basis for averaging weekly pay of the
discriminatee and then projecting that forward over the backpay period. As further
explained by Compliance Officer Strickland , this formula was selected because of
difficulty in finding precise counterpart employees to the discriminatees , each of whom
had been utilized by Respondent in various capacities in its operations .? The formula
assumes that (as found by Board and the court ) the discriminatees ' employment
would have continued , as did that of other employees not discriminated against, and
assumes the continued availability of work in the discriminatees ' former or substan-
tially similar job capacities . In this connection , it is well to bear in mind that-as
conceded by Respondent in closing argument-there is no burden on General Counsel
to establish that jobs were available for the discriminatees ; that burden is upon
Respondent.8
Notwithstanding the fact that Respondent disputes the reasonableness and propriety
of the utilization of this formula , under all of the circumstances and considering the
factors described by Compliance Officer Strickland , I am of the opinion and accord-
ingly find and conclude that utilization of the Board's usual projection of average
earning formula for calculation of backpay in the cases of discriminatees Beiro and
Cagnina was reasonable , fair, and proper .9
Although under no duty to do so,10 the Acting Regional Director as a public serv-
ice 11 set forth as a part of the backpay specification ( as amended at the hearing) the
amounts and sources of interim earnings accruing to the discriminatees during the
backpay periods , as offsets to the gross backpay due . In view of Respondent 's burden
of proof to establish interim earnings of the discriminatees ,12 Respondent 's denial in
its answer of knowledge sufficient to form a belief thereof, raised no triable issue
with respect to the sources or amounts of the discriminatees ' interim earnings to be
offset, nor did Respondent offer any proof at the hearing with respect thereto.
6 See F W. Woolworth Co., 90 NLRB 289, 292-293
7 A further source of difficulty in locating precise counterpart employees to match the
cases of discriminatees Beiro and Cagnina was the fact, as pointed out by Compliance
Officer Strickland, that Respondent' s records , which he analyzed, are not arranged accord-
ing to work categories or job classifications , such as forklift operator , ready-mix driver,
hatcher, stripper , etc Moreover, as Strickland stated, his studies of Respondent ' s records
revealed that the work pattern of Respondent ' s operations showed "a pronounced history
of interchange [ of employees ] as between jobs These interchanges happen frequently
They involve many employees " Also, as Strickland testified , Beiro and Cagnina did only
block stripping work for but a short time before their discharge ; at the time of the un-
lawful discrimination there were four employees engaged in stripping work, and after the
unlawful discharges the stripping work was redistributed among other employees in con-
nection with their other duties All of these factors rendered identification of precise
counterpart employees for discriminatees Beiro and Cagnina unfeasible if not impossible.
8 See cases cited infra, footnote 25
0 Cf. Phelps Dodge Corp v N L R.B., 313 U.S. 177, 198; N.L.R B V. Brown d• Root,
Inc., et at, 132 NLRB 486, enfd 311 F. 2d 447 (CA. 8) ; Ozark Hardwood Company, 282
F. 2d 1, 7 (C.A 8).
1o New England Tank Industries , Inc, 147 NLRB 598, 56 LRRM 1253, 1254-1255.
" Mastro Plastics Corporation, 136 NLRB 1342, 1346
12 Ibid at 1346-1347.
CHARLEY TOPPINO AND SONS, INC. 1643
Accordingly, the interim earnings as set forth in the backpay specification, as amended
at the hearing, are hereby (except as herembelow expressly found to the contrary)
found to be accurate in all respects.
The Alleged Unavailability of Work Defense
As already indicated, Respondent attempted herein to relitigate defenses, involving
the alleged misconduct, inefficiency, or unsuitability of the discriminatees, unsuccess-
fully asserted by it and determined adversely to it in the unfair labor practice hearing-
in-chief, affirmed by the Board and enforced by the court. The decisions in the unfair
labor practice proceeding disposing of Respondent's defenses of alleged misconduct,
inefficiency, or unsuitability of the discriminatees must be regarded as res tudicata
herein.13 Since the discriminatees were no longer in Respondent's employ after the
dates of their discriminatory discharges, Respondent is hardly in a position to claim
that they misconducted themselves, or were inefficient or unsuitable in its employ
thereafter. It was expressly admitted by George Toppino, Respondent's official and
ready-mix department supervisor, that there was no change in the qualifications of
Beiro between the date of his discriminatory discharge (September 9, 1961) and the
date (November 14, 1961) when Respondent claims it would anyway have laid him
off for economic reasons.14 And, during closing argument, Respondent conceded
that "the only factor that really changed [between the dates of the discriminatory dis-
charges in September 1961 and the date Respondent now claims in the instant pro-
ceeding that it would anyway have discharged these three employees for economic
reasons on November 14, 1961] was this alleged economic change" and that "respond-
ent's case rests or falls on the alleged change in economic situation."
Before proceeding to consider this defense of "alleged change in economic situa-
tion" upon which thus concededly "respondent's case rests or falls," it is noted that,
likewise in closing argument, Respondent further conceded that also in the litigation
of the unfair labor practice proceeding, Respondent raised an economic defense as a
justification for its discharge of discriminatee Jordan, and that it was therein decided
that as of the September 1961 date of his discriminatory discharge there was in fact
(contrary to Respondent's contention) no economic necessity therefor; and, further,
that although as to discriminatees Beiro and Cagnina, Respondent's counsel in the
instant proceeding was "not totally familiar" with the prior proceeding, nevertheless
concededly "the issues of economics and the economic status of respondent was part
and parcel of respondent's case in the prior proceeding." Respondent's avenue of
entry into renewing its economic argument in the instant proceeding was, however,
pinpointed in its observation, also in closing argument herein, that "the production
records indicate that economic conditions at the time of the discharge of these three
persons possibly did not dictate their discharge; whereas, a period of sixty days subse-
quent to the date of their discharge economic conditions did indicate they would have
been discharged." Accordingly, Respondent's basic defense herein is that, apart
from its unlawful discharge of the three discriminatees in September 1961, it would
in any event have discharged each of them for nondiscriminatory economic reasons
on or about November 14, 1961.
In support of this "economic" defense, Respondent relies upon production statistics
of its cement block plant (only), showing a decline in the production of cement blocks
commencing in November 1961 and continuing until June 1964.15 Although these
figures do, indeed, show a cement block production decrease during the period indi-
cated, it cannot be assumed-despite Respondent's conclusory contentions that the
'3 Cf. N.L.R.B. v. Biscayne Television Corporation, 337 F. 2d 267 , 268 (CA. 5 ) ; Flora
Construction Company, at al., 149 NLRB 583; Interurban Gas Corporation, 149 NLRB 576.
"A similar admission was made by Respondent ' s official , Frank Toppino , supervisor
of its cement block plant, with regard to discriminatee Jordan, whose case is discussed
below
15 Respondent 's Paul Toppino ascribed the decline in block production to completion
of delivery of cement block for 500 homes in a local naval housing project , to which
some 140,000 blocks per month had been delivered for about 6 or 7 months. According
to Paul Toppino, Respondent was manufacturing all of the concrete block and also pour-
ing all of the concrete for that project , which had started around the beginning of 1961
and was still in progress , with Respondent still engaged in operations there, at the time
of the instant hearing. Respondent submitted no production or comparable statistics or
figures with regard to any of its operations other than cement block production.
1644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
block production decline was "symbolic" of conditions throughout its entire enter-
prise-that these figures in and of themselves convey the complete economic and
employment picture throughout Respondent 's entire enterprise and diversified opera-
tions. In appraising and evaluating the cement block production figures with sophis-
tication (as distinguished from accepting them without analysis and perfunctorily
adopting Respondent 's conclusions therefrom ), it is necessary to consider , as I have,
related facts and circumstances, notably the following: (1) With relation to the
cement block production figures (Respondent's Exhibit No. 1) themselves- Apparent
internal inconsistencies or equivocal or qualificational aspects underlying the produc-
tion figures submitted; 16 the fact that discriminatee Cagnina was hired in September
1960 ( and discriminatee Jordan prior to that ) at a time when block plant production
was as low as, if not below (e.g.: September 1960• 15,433, Respondent's Exhibit
No. 2) the figures during the period of alleged "economic decline" commencing
November 1961; the fact that (according to Paul Toppino) the qualifying notation
"Block Plant Closed Down" on its cement block plant production figures means only
that there was on hand "more than ample supply of [cement block] stock piled in
the yard, so that period of time we did not need to run the plant," but that raw pro-
duction figures may present only a partial pictuie in the absence of inventory figures
(showing the amount of existing stockpiles, particularly considering the fact that
inventory levels are controllable and frequently a highly discretionary matter) and
sales; and the fact that the production figures submitted are confined to cement block
production only. (2) In addition to the cement block production figures The fact
that work, including "stripping," which had been done by the discriminatees prior
to their unlawful discharge has continued thereafter to be performed by other employ-
ees (e g., Hernandez and various others) having less seniority than the discnmina-
tees; 17 the diversification of Respondent 's enterprises and operations, and the types
19 For example, the cement block plant production figures submitted by Respondent
(Respondent's Exhibit No. 1) contain the notations "Block Plant Closed Down" and
"Block Plant Down" at various times. Paul Toppino testified that the payroll records
submitted by Respondent (Respondent's Exhibits Nos 3-165) accurately reflect work
being performed in the cement block plant, such, for example, as the hatching and
stripping shown on Respondent's Exhibit No 109 for the week ending September 24,
1963 ; and he further testified that if no cement blocks were being produced, there was
no need for batching or stripping Toppino was asked to reconcile these payroll entries
for hatching and stripping on its payroll Exhibit No 109 (for the week ending Septem-
ber 24 , 1963 ) with the notation on its cement block production figures ( its Exhibit No 1)
showing a shutdown for that period His explanation was that "from time to time" the
block-making machine was overhauled, requiring 3 to 4 weeks Notwithstanding this
alleged total shutdown , however , Respondent 's payroll entries indicate wages being paid
to block plant employees
By way of further example, Paul Toppino testified that at such times as the cement
block plant is placed on a "one day [on] and a one-day off basis" of operation, cement
blocks are produced on one day and stripped the next day, with only 1 forklift "necessary,"
and with the regular block plant crew doing the stripping ; that "normally" about 90
racks of 60 cement blocks each, or 5,400 blocks, are made in 1 day; that 1 man can strip
about 30 racks (i e , 1,800 blocks) in 1 stripping workday consisting of 3 to 4 hours,
and that it takes 3 men 3 hours, or a total of 9 man-hours, to strip 1 day's "normal"
block production (Le , 5,400 blocks or 60 racks) Toppino first testified that if the
block plant produced 6,000 blocks on it given day, a crew of 4 additional employees (i e ,
in addition to the "minimum" block plant work crew of 4), consisting of 1 other forklift
operator and 3 other strippers, would be required: but he added that "actually it is physi-
cally impossible to produce 6,000 blocks a day without having more curing racks " There-
upon, it being pointed out to him that Respondent ' s production figures showed that 6.000,
or more blocks were produced on various dates, he stated that since then "we have de-
commissioned about fifteen of our racks " He also testified that 3 strippers working
31/2 hours (i.e, a total of 3 full stripping workdays) could strip 6,000 blocks; that any
block production in excess of 5,400 per day would require an extra stripper, "but when
most of those [ production ] records [ Respondent 's Exhibits Nos. 1 and 2 1 were made we
had 100 racks in service " , and that the number of strippers is in a sense dependent
upon the number of racks "available ," which varies
17 Thus, for example, Paul Toppino admitted that "from time to time " from Septem-
ber 1961 through May 1964 , additional employees have been employed in the cement
block plant "assisting in the stripping operation to supplement a man's pay or for various
reasons "
CHARLEY TOPPINO AND SONS, INC. 1645
of jobs available; the large total number of Respondent's employees, and the extent
of turnover of . nskilled as well as readily trainable components of its workforce; is
the degree of versatility and interchangeability of employees (including block plant
employees) in its work force, in practice as well as in theory; 19 the fact that super-
visory personnel (e.g., DelPino) and other employees (e g , Cartonia) performed the
work which had been performed by the discriminatees prior to their unlawful dis-
charge; 20 the significant extent and regularity of overtime work performed by
Respondent's employees following the unlawful discharge of the discriminatees; 21
Respondent's admitted hiring of new employees following the unlawful discharge of
the discriminatees, for stripping and other work for which the discriminatees were
or could readily have been qualified, or were not shown by Respondent (having the
burden of proof) to be unqualified; 22 Respondent's admitted recall to work of former
employees 23 and hiring of new employees, including "strippers," following its unlaw-
ful discharge of the discriminatees; 24 Respondent's admission that block plant main-
is Cf New England Tank Industries, Inc., 147 NLRB 598, 56 LRRM 1253, 1255. Even
a reduction in total work force to less than the number of discriminatees would not in
itself establish that no jobs existed for the discriminatees, but rather only the absence of
"exact correlation between the number of jobs available and the number of employees on
the payroll " Ibid. Under the fluid circumstances there and herein presented, the num-
ber of employees on the payroll at any particular time (much less a fragment thereof
limited to a single portion, such as only the cement block plant of a total operation) is
not the true measure of the number of jobs available for backpay computation purposes
Id. To the same effect, see N.L.R B. v. Biscayne Television Corporation, 337 F 2d 267
(CA 5)
ie Cf New England Tank Industries, Inc., supra footnote 18; Flora Construction Com-
pany, et al, 149 NLRB 583.
20 " Respondent divided the duties formerly performed by [discriminatee ] Hetrick
and his successors by assigning some of the maintenance work to one of the foremen,
some of the packing and shipping duties to a forelady, the work of cleaning pumps and
changing meters to an employee, and some packing and shipping work to a temporary part-
time employee We are not convinced by this evidence that there is no job to which Hetrick
can be reinstated, as the work which Hetrick performed is still being performed in the
plant Barberton Plastics Products, Inc., 146 NLRB 393, 394.
21 New England Tank Industries, Inc., 147 NLRB 598.
22 Cf N L R B. v. Remington Rand, Inc, 130 F. 2d 919, 933, 934 (C.A. 2).
23Eg, -Machin (ULP-T 181-182). After his recall (December 1961), according to
Paul Toppino, the only work he did was block stripping.
23 Without going into exhaustive detail, the following is noted by way of example.
According to the testimony of Paul Toppino, about a month prior to November 14, 1961
(the date of the alleged economic decline), Respondent admittedly utilized as a stripper
in its block plant an employee named Cartonia, who worked as a mechanic in its marina
and was also qualified to operate a front-end material loading "payloader." Respondent's
payroll records, however, would appear to indicate that he was utilized for this purpose
much sooner following the discriminatory discharges, and continued in that capacity.
The explanation given by Paul Toppino for having Cartonia strip block in November 1961,
despite the fact that there were allegedly only 20,000 blocks (less than 4 days' "normal"
production of 5,400 blocks per day) produced in the 15-day period from November 15
to 30, 1961, was that "he [Cartonia] was an experienced factory trained outboard
mechanic who was very essential to our business in the Marina , and the work load being
such over there, we were afraid if we did not supplement his pay with some extra
activity we may lose him." About the same time, at the alleged inception of the "economic
decline" in mid-November 1961, Hernandez also began stripping block (General Counsel's
Exhibit No 4). Around mid-December 1961, according to Paul Toppino, Cartonia left the
block plant and moved to the ready -mix department, where he commenced operating a
payloader, and Machin, formerly employed as a block stripper, was rehired, and worked
for approximately a month as a stripper, and after he left one Donald was hired and
worked in the block plant for 3 or 4 months "doing routine plant maintenance , painting
and chipping and that sort of thing " Also Roosevelt Carey, who had likewise formerly
worked there, was rehired and stripped for about 6 weeks and then, around June 1962,
left. These employees were in addition to the "bare minimum" crew of four employees
essential to block plant operations, and exclusive of working supervisors , overtime work-
ers, and employees temporarily detailed there. In the summer of 1963, still another
person was hired and worked in the block plant on maintenance , chipping, fixing racks,
"and that type of thing," without even doing any stripping. Still additionally, according
to Paul Toppino, "From time to time . . . there were people that worked [in the block
plant] for several weeks . . . doing plant maintenance and that type of thing whenever
1646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tenance chores , which were "never-ending " and did not require skilled labor, were
required to be performed , and that employees other than the "regular " block plant
employees were hired and utilized for these purposes ; and the fact that Respondent
failed to substantiate , through income tax returns , accountants ' reports or otherwise,
its -self-serving , conclusory allegation that its business had gone into economic decline
during the backpay period.
It is settled law that the burden of proof of establishing defenses of the type here
advanced , such as that the discriminatory discharges in question would in any event
have occurred for nondiscriminatory reasons (such as "economic" reasons ) at some
time subsequent to the discrimination , is upon the employer.25 To the extent that the
proof adduced consists of attempted relitigation of the Employer 's contentions in the
unfair labor practice proceeding -in-chief, it fails to meet the required burden.26 Nor
is that burden met by the type of incomplete , self-servingly selective , conclusory,
equivocal showing made herein by Respondent . As the Board had recent occasion
to state*
Respondent did not make bona fide offers of employment to any of the dis-
criminatees , but continued its practice of discriminating against them This
circumstance negates Respondent 's argument that the loss of pay suffered by
some of the claimants was due to lack of work rather than to the discrimination
practiced against them. The burden on Respondent to prove, as to each back-
pay claimant , that he would not have had work for reasons unconnected with
the discrimination practiced against him , is not met by the sort of general evi-
dence introduced herein, which at best permits only conjecture that some claim-
ants would not have had work for some part of the period for which backpay
is claimed . Accordingly , we conclude that Respondent has not shown that the
net backpay claimed in the backpay specifications is erroneous.21
Since Respondent has failed to sustain its burden of establishing by substantial
credible and persuasive evidence that the jobs of ( or jobs substantially equivalent to
those which had been held by) discriminatees Beiro and Cagnina were no longer in
existence or available subsequent to November 14, 1961, I find and conclude that
Beiro and Cagnina are entitled to backpay for the period from their respective illegal
discharges in September 1961 to June 12, 1964, in accordance with the terms of the
Board's remedial order as enforced by the United States Court of Appeals herein,
and in the specific amounts herembelow set forth
B Jordan
Leroy Jordan last entered Respondent 's employ on June 8, 1960 ,28 and was from
that day until the date of his unlawful discriminatory discharge on September 19,
1961, employed as a forklift operator in Respondent's cement block plant.
we needed somebody to"-this, again , still being exclusive of the stripping work which
was done by others-froin mid-1963 to May 1964, when four of five employees were hired
to do nothing but stripping , and the block plant has continued in "full" production
(making and stripping blocks every day ) at all tines since This upsurge in block pro-
duction was attributed to several new naval contracts as well as a pickup in homebuilding
construction . The foregoing employment actii ity following the discriminatory discharges
and the alleged "economic decline ," limited as it is to only a portion of Respondent s
operations ( namely, just the block plant ), would haidly seem to establish, .i. is Respond-
ent's burden beiein , that there was an absence of job opportunities for the discriminatees
There is no requirement that General Counsel establish precise job replacements for the
discriminatees . Cf Flora Construction Company , et a7, 149 NLRB 583
2s Phelps Dodge Corp . v. N L R B., 313 U.S 177 , N.L R B. v Biscayne Teleeision Col po-
ration, 337 F. 2d 267, 268 (CA. 5) ; N.L.R B v Brown if Root , Inc, 311 F 2d 447, 454
(C A 8) ; W. C. Nabors , d/b/a W C. Nabors Co v. N.L R B , 323 F 2d 686, 690 (C A 5),
cert denied 376 U S 911 ; N L.R.B v Salmon and Cowin, Inc , 148 F 2d 941 (C A. 5),
enfg 57 NLRB 845, cert denied , 326 U S 758. N L.R B v . Reed R Prince Manufoctnrinq
Company, 130 F 2d 765 , 768 (C A 1) .lone oe Weed Stoi e, 122 NLRB 1479 • Jlasti o
Plastics Corporation, 136 NLRB 1342, 1346-1347, New England Tank Jnilnstiics, Inc,
147 NLRB 598.
26 N.L R .B. v. Biscayne Television Corporation, sepia , footnote 25, Intei ai ban Ca, Coi-
poratioii, 149 NLRB 576
27 New England Teals Industries , Inc , 147 NLRIl 598, (02
28 IIe had also previously worked for Respondent
CHARLEY TOPPINO AND SONS, INC. 1647
There is no question that up to , including , and at all times since the date of Jor-
dan's discriminatory discharge, there was at least one forklift in operation by a fork-
lift operator in the cement block plant ,29 and that at the time of his unlawful dis-
charge Jordan was the senior forklift operator in the cement block.30 Inasmuch as
there continued to be at least one forklift operator at all times in (at least the) cement
block plant after Jordan's discriminatory discharge, the backpay specification in the
case of Jordan utilized as the measure of backpay due, the actual quarteily earnings
of Hernandez , the employee who, while junior to Jordan, was retained in Respondent's
employ as a forklift operator in the cement block plant at the time of (and at all
times since) Jordan's unlawful discharge. Jordan's backpay specification, as amended
at the hearing, involves the period from the date of his discriminatory discharge on
September 19, 1961, continuing until Respondent complies with the reinstatement
order of the Board as enforced by the court.
As Compliance Officer Strickland testified, the "representative employee earnings
formula" was used in ascertaining backpay liability in the case of discriminatee Jor-
dan. This formula involves calculation of backpay based upon the pay actually
received by another representative employee ( or group of employees ) not discharged,
and utilizes a "replacement employment experience", i.e., that of Hernandez, who
was concededly selected to iemam instead of or in replacement of drscriminatee
Jordan, and who has continued since Jordan's discharge to operate the forklift which
Jordan had operated in the cement block plant.31 Notwithstanding Respondent's
contention disputing the reasonableness and propriety of utilization of the foregoing
formula in calculating Jordan's backpay, I am of the opinion and accordingly find
and conclude that utilization of the Board's usual representative employee earnings
formula for calculation of backpay in the case of discriminatee Jordan was reasonable,
fair, and proper.32
As in the cases of discriminatees Beiro and Cagnma, Respondent sought in the
instant case to rehtigate issues involving the suitability and efficiency, as well as
alleged misconduct , of discriminatee Jordan, involving the period of time prior to his
discriminatory discharge, which could have been 33 and were litigated in the unfair
labor practice hearing -in-chief before Trial Examiner Seagle, resulting in determina-
tions adverse to Respondent which have been affirmed by the Board and enforced by
the United States Court of Appeals.34 I regard and find these to be res judicata
herein.35
Also in the case of Jordan, Respondent has raised the same "economic " argument
as in the cases of Beiro and Cagnina. Since this contention has already been dealt
with extensively above, it need not be repeated here. It is , however, to be noted that
Respondent expressly conceded in closing argument herein that in the case of dis-
eD At times , there was more than one forklift in operation in the cement block plant,
aside from forklifts elsewhere
30 Respondent conceded that Jordan had about 1 year's seniority over Hernandez, who
was retained or took over Jordan ' s job at the time of Respondent ' s unlawful discriminatory
discharge of Jordan.
31 Cf. Barberton Plastics Products , Inc, 146 NLRB 393.
32 See cases cited supra, footnote 9
as Cf. Interurban Gas Coi poration, 149 NLRB 576
34 In repetition or amplification of its contentions at the unfair labor practice hearing-
in-chief , Respondent again contended herein that Hernandez , who was retained in place
of, or replaced , Jordan on the torklift at the time of the discrimination against Jordan,
was a relative and a more desirable employee than Jordan and would therefore in any
event eventually have displaced Jordan. This contention , however , ignores Respondent's
unlawful discrimination in discharging Jordan , and the requirements of the Board ' s Order
and the court ' s decree requiring his reinstatement As the Board recently stated, in
Interurban Gas Corporation , supra, at 578,
We consider it quite irrelevant whether [replacement employee] Allen is more com-
petent than either of Respondent ' s former servicemen If [discriminates ] Gilling-
ham's reinstatement means that Allen is a superfluous employee , this is a hazard
that Respondent should have foreseen Nothing in our order would preclude Re-
spondent , after it reinstates Gillingham and provides him with sufficient opportunity
to prove himself as a driver -salesman , to exercise its normal nondiscriminatory
business policies with respect to the retention or termination of individual employees.
'° N T. R B v Biscayne Teleotsion Corpoi ation, 337 F 2d 267, 268 , Flora Construction
Company, at al, 149 NLRB 583 , Intel to ban Gas Corpoi ation, 149 NLRB 576.
1648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
criminatee Jordan the "economic" defense was raised and litigated by it in the unfair
labor practice case-in-chief, as a justification for its discharge of Jordan, resulting
in a determination adverse to Respondent, at any rate as of the date of the discrimina-
tory discharge on September 19, 1961, less than 2 months before the date of the
alleged "economic" justification upon which it currently relies. It is further to be
noted that also in the case of discriminatee Jordan, Respondent conceded that there
was no change in the qualifications (or lack of qualifications) of Jordan or of his
forklift operator replacement, Hernandez, at any time between the date of Jordan's
discriminatory discharge on September 19, 1961, and the date of November 14, 1961,
when Respondent now maintains it would in any event have discharged Jordan for
"economic" reasons; and that Respondent conceded in closing argument that "respond-
ent's case rests or falls on the alleged change in economic situation."
In view of the litigation of issues of Jordan's misconduct, unsuitability, and ineffi-
ciency, in the unfair labor practice proceeding-in-chief herein, as well as issues of
"economic" justification for his discharge; in view of considerations explicated here-
inabove rejecting the "economic" argument advanced in the instant case as of Novem-
ber 4, 1961; and the indisputable fact that discriminatee Jordan's job of operating
a forklift in the cement block plant has continued to be performed by another
employee at all times since the date of Jordan's discriminatory discharge, I reject
these defenses as either involving matter which is res judicata 36 or as not established
in accordance with Respondent's burden of proof and persuasion,37 and as lacking
in merit.
There remains for consideration a question as to whether Respondent has fulfilled
its duty of reinstatement of discriminatee Jordan in accordance with the order of the
Board as enforced by the decree of the court. As amended at the hearing, the back-
pay specification relating to Jordan alleges that Respondent has failed to comply with
the court's decree, entered on June 11, 1964, ordering Respondent to offer him
"immediate and full[y] reinstatement to [his] former or substantially equivalent posi-
tion[s]." Unlike discriminatees Beiro and Cagnina, discriminatee Jordan denies he
was offered reinstatement as required, and denies that he refused to accept it. Dis-
puting these contentions, Respondent insists that it has fulfilled its reinstatement
obligations to Jordan in full compliance with the court's decree and hence is unwill-
ing to accept him back into its employ. The facts are as follows.
On June 9, 1964, after the enforcement decision of the United States Court of
Appeals, Respondent by Frank Toppino wrote Jordan:
You are hereby offered reinstatement in the employment capacity you for-
merly occupied with this company as of September 1, 1961. Should you so
desire to be reinstated at your former rate of pay, report to the undersigned at
the company office located on Stock Island, Key West, Florida at 7:30 A.M.
Friday, June 12, 1964.
If it is not possible for you to report at the time and place stated above contact
the company office on or by 5:00 P.M. June 12, 1964 and indicate your intentions.
It will have been observed that this offer of reinstatement, almost 3 years after the
discriminatory discharge of Jordan, expressly specified Jordan's former "employment
capacity," at his "former rate of pay." Whatever was intended by the expression
"employment capacity," the expression "former rate of pay" (i e., of 3 years previ-
ously) is at any rate clear. The reinstatement order expressly required reinstatement
to his "former or substantially equivalent position[s], without prejudice to ... seniority
or other rights and privileges and make'[him] whole for any loss of pay [he] may
have suffered by reason of the Respondent's discrimination against [him] . . . ."
Although Respondent's letter limited the offer of "reinstatement" to Jordan's "former
rate of pay" of 3 years previously, Jordan's forklift operator replacement, Hernandez,
had, according to the testimony of Paul Toppino, during the backpay period received
an increase in pay, which Respondent intended to deny to Jordan. Moreover,
Respondent's letter (and its further dealings with Jordan) was wholly silent on the
matter of making him whole for loss of pay suffered by reason of the discrimination
against him, as required by the order of the Board and decree of the court Since
Respondent has continued up to the present time to dispute backpay liability to
Jordan, there is no reason to assume other than that when it wrote this letter to
Jordan, and at all times since then, it took no different position on the matter of its
backpay obligation to Jordan. There are thus presented serious threshold questions
3e Ibid.
37 See cases cited supra, footnote 25.
CHARLEY TOPPINO AND SONS, INC. 1649
as to whether Respondent's letter of June 9 fulfilled, as Respondent now insists, its
legal obligations to comply with the requirements of the Board's Order as enforced
by the court.
Also at the outset, it is to be noted that since Jordan's job of forklift operator in
the cement block plant has continued to exist at all times from the date of his unlaw-
ful discharge to the present time, Respondent was obliged under the terms of the
Board Order and court decree to restore him to that job, and did not have the alter-
native of "restoring" him to another job, even if "substantially equivalent." ris
Respondent's letter of June 9 was not received by Jordan in Key West, where he
lived. He was at the time in Miami, visiting his sick mother. However, the letter
was received on his behalf and described or read to him over the telephone, accord-
ing to his credible testimony, causing him to return to Key West that Friday night
and to report to Respondent's plant on Saturday morning, June 13, in his dress (not
work) clothes. According to Jordan, after waiting for about 45 minutes for Frank
Toppino, the latter came out with Cement Block Foreman DelPino (Paul Toppino's
father-in-law and Hernandez' uncle). Jordan told Frank Toppino he had received
Respondent's letter (Jordan himself cannot read). Frank Toppino told him "he
had a job for me to go to work. I asked what was it and he said he wanted me over
to the block plant to strip block. So Mr. DelPino said he wanted me to go right then.
So I told him I cannot go right now because I did not know for me to go to work.
He ask me, `How about Monday morning?' So I said, `I will check with you Monday.'
He said, `I will give you fifteen racks per day 39 to strip blocks.' So I said `I will
check for Monday morning,' so I left." 40 Jordan adhered well on cross-examination
to this account of what took place between him, Frank Toppino, and DelPino on
his visit to Respondent's plant in response to its letter offering to "reinstate" him On
cross-examination, Jordan added, "He [DelPino] told me he would give me fifteen
racks per day to strip. I told him I could not start today .... I told him I would see
him Monday morning and he said to meet him at 7:00 o'clock and I told him I would
... I was thinking I was going to work ... stripping blocks. That is what he told
me .... That is what he told me he had for me to do. I was going to start on that
because I was not doing anything else." Jordan insisted no mention was made by
anybody of forklift work; i.e., his former job.
The versions of Frank Toppino and of DelPino as to the foregoing meeting with
Jordan differ somewhat from that of Jordan, and also differ between themselves.
According to Toppino, Jordan appeared on Friday morning, June 12, placed a letter
on the desk of the shop foreman's office, where he was alone, and said, "I have
received this letter," to which Toppino replied, "The letter means just what it says,"
and walked out, followed by Jordan, where they met DelPino, who, after Toppino
told him Jordan was here, said, "Well, good, I can use him now." At this point,
according to Toppino, somebody else whom he could not identify approached and
started to talk to Toppino, who from this point on heard only snatches or portions of
the conversation between DelPino and Jordan, including a statement by Jordan that
he would he back Monday. However, on redirect examination Toppino added that
while he was thus engaged in conversation with somebody else, "through the back-
ground" of the other conversation between DelPino and Jordan "There was some-
thing said about stripping block for the rest of the afternoon ... Jordan asked him
[DelPino] was he going back on the fork lift ... And he [DelPino] told him [Jordan]
he would be stripping the rest of the afternoon and he would put him on the lift Mon-
day." I have taken into consideration the circumstances under which this extra
testimony was first educed on redirect examination; its self-serving nature; the unlike-
lihood of Toppino's being able to overhear this while simultaneously conducting
another conversation of his own with another person; the inconsistency of this testi-
mony with that of the active participants to the discussion-namely, Jordan and
DelPino: the unlikelihood that DelPino would be telling Jordan in the morning what
he would be doing for the "rest of the afternoon"; and the unlikelihood that DelPino
would be discussing what Jordan would do Monday after working "the rest of th[is]
afternoon," if it was really Friday (as insisted by Toppino) since Saturday was also
a workday at Respondent's plant. In view of the foregoing, I do not credit this tes-
timony of Toppino on his redirect examination, which impressed me as a self-serving
afterthought.
39 The Chase National Bank of the City of New York, San Juan, Puerto Rico, Bionch,
65 NLRB 827, 829
39 I e , about 11 hours' work, or half of a 3-hour stripping day's work.
40 Emphasis supplied
7 83-13 3-G G-v of 151-105
1650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DelPino's version of the foregoing meeting in some respects bordered on the incom-
prehensible , which I attribute to an apparent English language comprehension-com-
munication difficulty on his part . Discounting such of his testimony as that he had
not spoken to or seen Jordan for 6 months prior to the hearing and that he did not
remember Jordan at the plant in June 1964 , he did, however , finally testify that early
one Friday morning ( stipulated by counsel to be the occasion in question in June
1964 ) he saw Jordan when "Frankie [Toppino ] called me, and he said `Got to put
him back, got to put Leroy on the job.' So I told him, `I would be glad to because
I needed one more man today.' . . . I said, `Now let's go.' He [Jordan ] said, `What
I going to do?' I said, `As a stripper .' 41 He said, `Not today .' I told him `How
about tomorrow?' He said, `Not tomorrow.' `So, what is the matter?' He said, `I
got to go back to Miami. Monday morning. `I told him 7:00 o'clock. That was
the time I started to work." In response to questioning by Respondent 's counsel,
DelPino further testified:
Q. (By Mr. Bare ) Mr. DelPino , did you say anything to Leroy Jordan at that
time about operating the forklift truck?
A. No. I told him I am going to put him on the lift.
Q. Did you tell Leroy Jordan this when you talked to him at that time?
A. No. I ain't told him nothing. He don't ask me nothing . He just wanted
that day-1 wanted to use him for a stripper.42
At this time , two forklifts were being operated in the cement block plant, one by
Hernandez and one by Lionel C. Jaycocks ("Pork Chop" ). Although on cross-exam-
ination DelPino offered a slightly variant version of his conversation with Jordan,
it still did not mention anything about operating a forklift (Jordan's former job)
and was still restricted to "I got a plenty to strip ...... And once again on cross-
examination , DelPino clearly reiterated that he did not say anything to Jordan about
placing him back on operating a forklift 43 However , toward the conclusion of his
testimony , DelPino allegedly recollected , "I aint' [sic] sure. I think I told him [Jor-
dan] that day , `You are going to start Monday morning on the lift.' I remember now.
I thinking I told him the day he got to start Monday morning , that is why I wanted
him 7:00 o'clock to be on the job." Based on the circumstances under which this
testimony was tardily appended to DelPino's prior versions of the conversation, its
inconsistency with his prior testimony , the hesitant and unconvincing manner in which
4z Emphasis supplied.
42 Emphasis supplied.
43 Respondent ' s counsel attempted to elicit from DelPino and Jaycocks that DelPino
had the intention , uncommunicated to Jordan , but allegedly expressed by DelPino to
Jaycocks outside the presence of Jordan , to restore Jordan to forklift operating on the
following Monday . While sustaining General Counsel's objection to such proffered testi-
mony, I permitted an offer of proof thereon by Respondent . General Counsel then moved
to strike the proffered testimony from the record , upon which decision was reserved
Although I now deny General Counsel ' s motion to strike from the record the testimony
of Jaycocks permitted to be made as an offer of proof, I adhere to my rulings sustaining
General Counsel ' s objections to the testimony of DelPino and Jaycocks on this subject,
since even if believed , such a statement by DelPino to Jaycocks was at best a mere inten-
tion uncommunicated to Jordan . Furthermore, it ignores the fact that Hernandez, who
was retained or replaced Jordan as forklift operator when Jordan was unlawfully dis-
charged, was also operating a second forklift ( i e , a second , separate forklift), Respond-
ent apparently , notwithstanding the reinstatement order and decree, not even thinking in
terms of restoring Jordan to the forklift position of which he had been deprived by
Hernandez at the time of the unlawful discrimination Under these circumstances, I
regarded the alleged conversation between DelPino and Jaycocks , concededly uncom-
municated to Jordan , as immaterial . As to Respondent ' s alleged uncommunicated sub-
jective intent to put Jordan back on forklifting on the following Monday , it may be said
that even assuming arguendo that Respondent ' s "intentions were good ," nevertheless
"This contention is untenable . The question is whether any employees have suffered
harm because of a violation of the decree ; those who have should be made whole. This
is so regardless of the subjective intent of respondent ." N L R.B. v. Remington Rand,
Inc., 130 F. 2d 919, 936 ( C.A. 2).
CHARLEY TOPPINO AND SONS, INC. 1651
it was testified to, its unpersuasive context, and the contrary testimony of Jordan, I
do not credit these late apparent afterthoughts by DelPino that he told Jordan he
would be placed on the forklift the following Monday.
Based upon the foregoing considerations , the initial testimony or admissions of
Respondent's witnesses that Jordan was told only that he could do stripping work
with no mention of restoration of forklift operation, Jordan's testimony that restora-
tion to forklift operating was not mentioned, and my estimation of the inherent proba-
bilities of the situation as well as my comparative demeanor observations, I credit
the testimony of Jordan that no mention was made, on the occasion in question, of
returning him to forklift operation, his former job 44
Respondent contends that its offer to Jordan to give him block stripping work was
legally equivalent to an offer of reinstatement to his former job of forklift operation,
since block stripping was an important and integral part of Jordan's forklift operating
job. This would not appear to be the fact, however. According to the testimony of
Paul Toppino, supervisor of the cement block plant, Jordan never did stripping
work.45 DelPmo (cement block plant foreman) testified that although Jordan's job
was to operate the forklift, "I think I put him on some time to strip, sometime when I
needed him; but I ain't sure. I do not remember if I got him sometime for stripping
or fixing fuses, something like that. I do not think I used him for stripping .... I
do not remember, certainly." On further redirect examination , however, DelPino
stated that "sometimes" Jordan stripped blocks once a week. Jordan testified that he
was hired and worked as a forklift operator, but stripped blocks "sometimes once
a week; sometimes once every three or four weeks; but I did strip from time to time."
Compliance Officer Strickland's analysis of Respondent's records apparently failed
to indicate that Jordan performed work other than forklift operation, and such rec-
ords as were produced by Respondent at the hearing do not appear to indicate any
stripping work by Jordan during the period covered by those records. Under the
circumstances, upon the record presented I find that Jordan stripped blocks only sel-
dom and occasionally,46 and not to such an extent as to have constituted a significant
or integral portion of his job, which concededly was to operate a forklift. If the nature
of that job had undergone alteration during the backpay period, the least that Respond-
ent could have done was to have explained the situation to Jordan in clear and unam-
biguous terms, instead of conveying to him the definite impression, as it did, that he
was being offered a job as a (part-time-i.e., 30 racks per day) block stripper with
no mention of resuming forklift operation. Not only did Respondent fail to reinstate
Jordan to his former job of forklift operator, but the surrounding circumstances
strongly suggest that it had no bona fide intention of restoring Jordan to forklift oper-
ating, when he presented himself at its plant for reinstatement on or about June 13,
1964, and I so find.
Jordan did not return to Respondent 's plant on Monday ( June 15 ) because when
he arrived home after the aforedescribed meeting with Toppino and DelPino at
Respondent 's plant on Saturday (June 13 ) he received a telegram as a result of which
he immediately returned to Miami to his mother, whose illness had taken a turn for
44 Before deciding to credit the described testimony of Jordan , I have taken into con-
sideration the record , nature, and dates of his traffic and other convictions which have
been submitted by Respondent. Cf. Winston Rose et at, d/b/a Ideal Donut Shop, 148
NLRB 236, 56 LRRM 1486, 1489 and cases there cited.
Paul Toppino testified
Q. [By Mr. Bare , Respondent 's counsel ] What duties did Jordan perform while
he was in your employ"
A. [By Paul Toppino] Forklift operator.
Q. In the block plant?
A. Yes, sir.
Q. Did he ever operate the forklift in any other portion of your plant or away
from the plant?
A. No, sir.
Q. Did Jordan ever perform any stripping operation9
A. No, sir.
48 At the hearing , I observed Jordan to be of slight build, seemingly frail physique, and
apparently substantially older than Hernandez, who appears to be a vigorous young man
1652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the worse. He remained there with her until she died, 6 or 7 weeks later. The day
after her funeral, he telephoned Frank Toppino and explained the circumstances to
him. Toppino said he was "sorry about my mother but he did not have an opening
for me any more. He said he had hired someone else."
It was stipulated by the parties that Jordan "did not return or present himself to
the respondent for work on Monday, June 15, 1964," and that Jordan "did by tele-
phone call to the respondent on some date between, about, July 20th and August 1st
indicate to respondent that he was ready to return to work for the respondent but
that he was at that time informed by the respondent that the job had already been
filled and for that reason he could not return to the respondent's employ." Notwith-
standing the foregoing, it is clear from the record that no block plant forklift operator
was hired by Respondent in June, July, or August, 1964; and that the two forklifts
there continued to be operated by Hernandez and Jaycocks, as previously. There is
no contention by Respondent that it at any time, on or after Monday, June 15, 1964, in
any way communicated with Jordan. And, in closing argument, Respondent char-
acterized as "Very possibl[e]" although "a speculation," that if Jordan has been
working in its employ it would have excused him or given him a leave of absence
for the period here involving his mother's terminal illness.
In this situation, Respondent stands on the position that it has technically fulfilled
all requirements of the Board Order and court decree requiring reinstatement of
Jordan to the same position and emoluments of which he was deprived by Respond-
ent's illegal discriminatory discharge, and continues to refuse to readmit him to its
employ or make him whole for backpay lost. General Counsel, on the other hand,
contends that Respondent did not make a technically valid offer of reinstatement of
Jordan to his former job in compliance with the Board Order and court decree. Under
the particular facts here involved, and the record as a whole, I agree with the position
of General Counsel and find that Respondent did not make a valid offer of rein-
statement of Jordan to his former job and emoluments as required to remedy its
discriminatory action against him.
Respondent's letter of June 9 offering Jordan reinstatement in his former "employ-
ment capacity" did not mention the job of forklift operator and conditioned the offer
to his "former rate of pay" of some 3 years before, although the salary for the job
paid to his discriminatory replacement (Hernandez) had been raised during the back-
pay period. It is undisputed that when Jordan presented himself for reinstatement
on June 12 or 13, he was not placed on or told to resume operating a forklift, his
former job, although there were then two forklifts in operation at the block plant
(i.e., by Hernandez and Jaycocks). As herein found, he was then told he could strip
some blocks, but was not told he was being or would be restored to forklift operation
then or on the following Monday or at any time. It seems to me that if, as Respond-
ent now claims, it only intended to have Jordan strip blocks for that day and the next
day, and to restore him to forklift operation on the following Monday, it would
have been extremely simple for it to have told him so in plain words. Instead, the
impression was conveyed to Jordan, and under the circumstances reasonably received
by Jordan, that he was being told he could work stripping blocks 47 Jordan was
under no obligation to accept employment as a stripper in lieu of Respondent's obli-
47what might have happened on Monday if Respondent had reinstated Jordan to his
forklift operation job on Friday or Saturday or if it had made an unequivocal offer to
him on Friday or Saturday to do so, is speculative. Although Respondent could very
easily have told Jordan on Friday or Saturday that he was only being temporarily detailed
to block stripping and would be reinstated to his former job of forklifting on Monday,
Respondent did not do so. Although Respondent attempted to show at the hearing that
it privately communicated to an employee other than Jordan its intention of placing
Jordan back on forklifting the following Monday, Respondent did not communicate its
intention to Jordan, the very person most concerned. Why Respondent did not com-
municate its intention to Jordan is difficult to understand, since it would have been easy
to do so and since only Respondent could do so It is not necessary to speculate whether
if Respondent had on Friday or Saturday made it clear to Jordan that he was being
reinstated to his former job of forklifter, Jordan would or would not have returned on
Monday or would or would not have communicated with Respndent on or before Monday
to request a leave of absence without pay in order to be with his mother during her
terminal illness.
CHARLEY TOPPINO AND SONS, INC . 1653
gation under the Board Order and court decree to reinstate him to his former job
and emoluments as a forklift operator.48 Respondent argues that Jordan was then
in any event willing to accept a job as a stripper. Assuming arguendo this to be true-
and it may well have been true, since he was then unemployed-does not, however,
erase or diminish Respondent's obligation to reinstate him to his forklift operator's
job as required by the order and decree. Nor would even his acceptance of a transi-
tory stripper's job in lieu of stable employment as a forklift operator have avoided
the Board's continuing official concern and public responsibility to remedy a viola-
tion of the Act by enforcing its (and the court's) appropriate, ordered remedy for
Respondent's public wrong in violating the Act 49 Moreover, if as a result of ambig-
uous conduct and expression, Respondent finds itself in the awkward position of
never having offered Jordan technically proper reinstatement as required, this is a
consequence purely of its own doing and one for which Jordan should not suffer,
since it was always within Respondent's power to utter words which were clear and
not readily susceptible of misinterpretation, and which would have avoided such
results 50
Although Jordan's statement to DelPino about checking with or seeing him or
returning on the following Monday (June 15) is not inconsistent with an intention
on Jordan's part to insist at that or some later time upon reinstatement to his former
job of forklift operator and to accept no less, it is, as already indicated, unnecessary
to reach the question of whether Jordan was willing to accept less than reinstatement
to his former forklifting job which the Board Order and court decree required, since
when he presented himself for reinstatement Respondent did not reinstate or unequiv-
ocally offer to reinstate him to his former job as required.51 Respondent having
failed in its obligation to reinstate Jordan to his former job when he presented him-
self on Saturday, June 13, there was no duty on Jordan on Saturday to accept less,
nor to return on Monday, June 15, or thereafter, to accept less; nor to negotiate with
Respondent for less on Saturday or Monday or thereafter; nor to offer any explana-
tion to Respondent on or after Monday as to why he would not accept less or return
to do less.52 Furthermore, as indicated, Respondent was powerless, certainly without
Jordan's clear express agreement, and because of the Board's public enforcement
responsibilities possibly even with Jordan's express agreement (the Board not being
a party thereto), to water down or bargain away the requirements of the Board and
court's reinstatement order and decree by giving Jordan a different job when his
former job was still available and filled by another.53 As stated per curiam in
45 Cf. The Chase National Bank of the City of New York, San Juan, Puei to Rico,
Blanch, 65 NLRB 827, 829. The employer's obligation to reinstate a discriminatorily
discharged employee to his former job, where as here it is still in existence, requires no
less than a restoration of the status quo prevailing before the discrimination, le, the
"exact old job" and no other. NLRB v. Remington Rand, Inc., 130 F 2d 919, 931
(CA 2)
49 Cf W. C. Nabors, d/b/a W C Nabors Co v. NLRB , 323 F. 2d 686, 691 (CA 5),
cert denied 376 U S 911; Winston Rose et at, d/b/a Ideal Donut Shop, 148 NLRB 236.
ii Cf N L R B v. Remington Rand, Inc, 94 F. 2d 862, 872 (C.A. 2) ; Miami Coca-Cola
Bottling Company, 151 NLRB 1701
61 It is further unnecesary to consider, for purposes of offset against accruing backpay,
what Jordan's interim earnings would have been as a stripper had he commenced work-
ing as such on or at any time between June 15 and August 1, in view of findings herein-
below made, eliminating that interval from inclusion in the backpay peiiod for reasons
to be shown.
521 do not regard Eastern Due Company, 142 NLRB 601, upon which Respondent
heavily relies, as apposite In that case, the Board held an employer's reinstatement
obligation to be fulfilled where the Employer had made a valid, unconditional reinstate-
ment offer, and the employee failed to respond thereto or to report back to work of to
indicate any reason for unwillingness to do so, only because he entertained the unwarranted
suspicion that he would not get his former job back
0 If, as Respondent claims, there was stripping to be done on the Friday or Saturday
when Jordan presented himself for reinstatement to his fork-lifting job, Respondent could
readily have reinstated Jordan to forklifting in compliance i ith the order and decree,
and have assigned either of the two forklift operators (one of whom was, and still is,
holding Jordan's job), or even somebody else, to the job of stripping blocks, instead of
continuing its illegal discrimination against Jordan and assigning him to the block-
stripping job.
1654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
N.L.R B. v. Remington Rand, Inc., 97 F . 2d 195, 196-197 (C.A. 2), in considering
what it called an employer 's "unexampled persistence [in] . . . fending off enforce-
ment of the Labor Board's order,"
the settlement was no more than expression of the company 's willingness to com-
ply with its duties independently imposed by law; so far as the order prescribed
more, it was unaffected ; so far as the settlement must be read as comprehending
all the relations of the parties it is a nullity .... the order required the substitu-
tions [of discharged employees ] unconditionally , regardless as much of their
effect upon the company 's business as of the hardship entailed upon those who
must be displaced . The old hands are to be offered their former jobs as soon as
they can be identified , and so far as the jobs remain ; that is to say, so far as any-
one else is performing the same, or substantially the same, services as they were
performing .... If this involves disturbance of the company 's business , it is no
doubt unfortunate ; but, having chosen to challenge the law , it must abide the
loss.
As the court there further stated , the Board 's Order and the court 's decree "both stated
with reasonable specificity those acts which respondent was to do affirmatively." (Id.
at 936. ) Insofar as Jordan was concerned , since Respondent failed to carry out these
requirements it would seem fair that , as between it and the injured employee, it
should bear the consequences.54 55
Since, as herein found , Jordan was at no time reinstated or unequivocally offered
unconditional reinstatement to his former job and emoluments as required , it follows
that Respondent 's reinstatement and backpay obligations under the Board 's Order
and court decree were not extinguished by its letter of June 9 as supplemented or
modified by its discussion with Jordan on June 12 or 13 , 1965 . 56 However, since
Jordan voluntarily removed himself from the labor market during the period of his
mother's terminal illness , from June 15 to July 26 , 1964 ,57 it is clear that that interval
should be and it is hereby excluded from the backpay liability period.58
s+ Cf. Samuel Levine, doing business as Hock and Mandel Jewelers , 145 NLRB 435,
including dissent in part of Board Member Brown ; Interurban Gas Corporation, 149 NLRB
576. Since it was Respondent 's illegal action in discriminatorily discharging Jordan
which created the situation requiring no less than his reinstatement to his former job,
it was Respondent 's duty to reinstate Jordan or to make it clear to him that he was
being offered reinstatement to his former job and no less As stated by Judge Learned
Hand in N.LR .B. v. Remington Rand , Inc., 94 F 2d 862 , 872 (C.A. 2), ". . . it rested
upon the tortfeasor to disentangle the consequences for which it was chargeable . . .11
55Finally , I reject as lacking in merit respondent ' s suggestion , also advanced in closing
argument , that the discriminatees were under obligation after their discriminatory ouster,
to reapply for employment with Respondent since "they possibly may have been given
part-time work in the field of stripping block which was done from time to time on a
sporadic basis by other employees , other persons than the four long - time regular perma-
nent employees [ apparently including Hernandez , who, though junior to discriminatee
Jordan, replaced him] in the block plant. " This contention appears to be premised on
assumption that if the discriminatees had not been unlawfully discharged they would
have been laid off for nondiscriminatory reasons around November 14, 1961, because of
the alleged "economic" decline and in that event would have been obliged to apply for
reinstatement. Aside from the fact that I have found adversely to Respondent's con-
tention of such an "economic " decline , this contention ignores the fact that the dis-
criminatees had already been unlawfully discharged prior to November 14, and that
unfair labor practice charges were pending and thereafter in litigation , freeing them of
the necessity for applying for reinstatement Respondent cannot take advantage, to the
detriment of the discriminatees , of a situation resulting from its own illegal acts. Cf.
Interurban Gas Corporation, 149 NLRB 576.
56Cf. General Engineering , Inc and Harvey Aluminum , Inc., 147 NLRB 936, 56
LRRM 1361 ; Interurban Gas Corporation , supra.
57 In selecting July 26, I have struck a balance midway between the dates of July 20
and August 1 which have been stipulated by the parties as the period during which
Jordan notified Respondent that he was able to return to work following his mother's
funeral and when Toppino told him he could not return because the job was filled.
59 Cf. Brown & Root, Inc, 132 NLRB 486, enfd 311 F 2d 447 (C A 8).
CHARLEY TOPPINO AND SONS, INC. 1655
IV. COMPUTATION OF BACKPAY
Upon the basis of the foregoing and upon the entire record, I find and conclude
that
1 The following discrimtnatees are entitled to payment by Respondent of net
backpay in the amounts listed opposite their names, plus interest at 6 percent per
annum on each of the quarterly sums found due herein from the end of each
calendar quarter,59 less any lawfully required tax withholding.
Employee Year and Gross Interim Net Total net
quarter backpay earnings backpay backpay
BEIRO, Raymond 60 ------------- 1961-3 $342 66 $179 20 $163 46
1961-4 60 1, 484 86 1,248 25 236 61
1962-1 1,484 86 1,605 38 0
1962-2 1,484 86 1,895 20 0
1962-3 1,484 86 1,759 00 0
1962-4 1,484 86 61 1,967 60 0
1963-1 1,484 86 1,381 65 103 21
1963-2 1,484 86 1,151 60 333 26
1963-3 1,484 86 919 80 565 06
1963-4 1,484 86 1,005 40 479 46
1964-1 1, 484 86 1, 827 88 0
1964-2 1,142 20 1,300 00 0
Total-- - ------------------- ----------- -------------- ------------- --------------
$1,981 06
CAGNINAISam----------------- 1961-3 320 19 337 49 0
1961-4 1, 387 49 588 45 799 04
1962-1 1,387 49 55 00 1,322 49
1962-2 1,387 49 975 00 412 49
1962-3 1,387 49 965 00 422 49
1962-4 1,387 49 975 00 412 49
1963-1 1,387 49 1,275 00 112 49
1963-2 1,387 49 1,040 45 347 04
1963-3 1,387 49 1, 113 30 274 19
1963-4 1,387 49 870 45 517 04
1964-1 1, 387 49 519 74 867.75
1964-2 1, 067 30 0 1.067 30
Total------------------------ ----------- -------------- -------------- --------------
$6,564 81
JORDAN, Leroy----------------- 1961-3 62109 69 3 60 62106 09
1961-4 1,037 30 148 44 888 86
1962-1 963 50 277 75 685 75
1962-2 950 39 253 71 696 68
1962-3 1, 007 02 0 1, 007 02
1962-4 933 24 87 87 845 37
1963-1 1,385 00 1.059 76 325 24
1963-2 1,199 50 462 37 737 13
1963-3 63 1,441 70 768 27 63 673 43
1963-4 893 80 64 823 04 64 70 76
1914-1 742 90 740 02 2 88
65 1964-2 66 65 847 60 434 00 413 60
6 67 1964-3 68 65 826 98 434 00 392 98
Total (through 1964-3 only) - ----------- -------------- ----------- -- -------------- $6,845 79
(Grand total, through 1964-
3 only------------------ ----------- -------------- ------------- ------------- $15,291 66)
6B Although Respondent in its answer takes the position that Interest accrues only
from the date of the court's final enforcement decree of June 11, 1964, upon the basis of
the Board's Order and 1818 Plumbing & Heating Co , 138 NLRB 716, I find and conclude
that interest calculated as above described is due and should be paid
[Footnotes for table on following page.]
1656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Respondent has failed to comply with the terms of the order of the Board and
the decree of the United States Court of Appeals for the Fifth Circuit in respect to
offering Leroy Jordan immediate and full reinstatement to his former or substantially
equivalent position without prejudice to his seniority or other rights and privileges.
3. In the case of Leroy Jordan the foregoing backpay amount should be and is
without prejudice to such further backpay as may have accrued and may hereafter
accrue subsequent to the date covered by the backpay specification as amended herein
(i e., September 30, 1964) until said employee is offered reinstatement as required
by the Board Order and court decree; and should be and is without prejudice to such
further backpay proceedings as may be appropriate.
RECOMMENDED SUPPLEMENTAL ORDER
Upon the foregoing findings and conclusions and the entire record, and pursuant
to Section 10(c) of the Act, it is recommended that Charley Toppino and Sons, Inc.,
its officers, agents, successors, and assigns, shall pay to each claimant the amount
set forth in paragraph 1 of section IV, above, with interest at the rate of 6 percent
per annum on each of the quarterly sums set forth in said paragraph, less lawfully
80 There appears to be an arithmetical or typographical error in the calculation of
Beiro's gross backpay as set forth in Appendix A to the backpay specification. This con-
sists of setting forth (and repeating) Beiro's gross backpay for each quarter, commencing
the fourth quarter of 1961, to be $1,584 86 instead of $1,484 86 (the latter being arithmeti-
cal product of Beiro's average weekly wage of $114 22 times the 13 weeks comprising
one-quarter of the 52-week year). I have corrected this obvious error in my calculations
shown above, resulting in reduction by $500 of the amount of backpay shown as due to
Beiro in the backpay specification.
'n This corrects an immaterial miscalculation in the backpay specification
62 Although the backpay specification shows $55 69 for the last week of 1961-3,
Respondent's payroll records (General Counsel's Exhibit No 4, p 1) indicate that this
sum represented only overtime pay, and that gross backpay for the week was $109 69.
63 Although the backpay specification shows $1,638 70 as gross backpay for 1963-3,
this appears to be in error.
Examination of the figures listed under the column headed "Gross Backpay" indicate,
that in Jordan's case these figures are based upon the gross earnings of Hernandez (at
any rate, upon those figures "iounded" to the end of each quarter, rather than as of the
end of Respondent's pay periods). In view of the pay record-keeping system instituted
by Respondent in 1962, which shows the employee's cumulated pay totals during the year,
the employee's earnings for the third quarter of 1963 may be ascertained by deducting
from the cumulated total of his earnings accruing to the end of that quarter ($4,020 20),
the amount cumulated as of the end of the previous quarter $2,578 50), resulting in the
sum of $1,44170 as the amount (or approximate amount, since Respondent's pay period
dates did not necessarily coincide with quarter-annual calendar dates). (See General
Counsel's Exhibit No 4, p 6 ) This is $197 less than the gross backpay figure of
$1,638 70 shown in the backpay specification, and results in a diminution of $197 in
the net backpay due for 1963-3, from $870.43 (as shown in the backpay specification)
to $673 43 as found herein
61 This corrects an evident omission in the backpay specification, omitting interim
earnings from Quad Construction Co ($321.30) and Thompson Fish Co ($13.74), result-
ing in an additional offset of $335.04, or a total offset of $823.04 for 1963-4 (See
General Counsel's Exhibit No 9.)
65 Excluding the period from June 15 through July 26 See footnote 57, supra, and
related text of decision.
66 Based upon General Counsel's Exhibit No 4, p. 7, for the period up to June N',
1964 (i.e., $1,658 00 minus $742 90, or $915.10) and Respondent's Exhibit No. 149 for
the last week of June 1964 (i e , $90 40 ; resulting in a total of $915 10 plus $90 40,
or $1,003 50) From this I have deducted $157 90 for the period from June 15 through
June 30, 1964 (see footnote 64, supra), resulting in $847.60
67 Based upon Respondent's Exhibits Nos 152-162. I have excluded the period from
July 1 through 26 (see footnote 65, supra). Based upon Respondent's Exhibit No 103,
I have allowed $15.80 or one-sixth of Hernandez' earnings of $94 78 for the week ending
October 6, 1964, as gross backpay for September 30, 1964, the last day of 1964-3 ; and
I have similarly prorated 2 days' pay for July 27 and 28, 1964, at $16, based upon gross
pay of $48 for the week ending July 28, as shown on Respondent's Exhibit No. 153
611 am unable to ascertain any basis for the gross backpay figure of $1,013 58 for
1964-3 shown in the backpay specification as amended during the hearing. See foot-
note 67, supra, for an explanation of how my figure of $826 98 was arrived at
UNITED BROTHERHOOD OF CARPENTERS, ETC. 1657
required tax withholdings; and also, in the case of Leroy Jordan, additional undeter-
mined amounts which may have accumulated or which may accumulate on and
since October 1, 1964, until said Leroy Jordan is offered full reinstatement to his
former or a substantially equivalent position in accordance with the requirements
of the Board Order and court decree herein; and that the Regional Director for
Region 12 be authorized to take appropriate steps consistent with the findings and
conclusions hereinabove set forth, without prejudice to the conduct of additional
backpay proceedings.
United Brotherhood of Carpenters and Joiners of America, Local
1061 , AFL-CIO; Central Arizona District Council of Carpen-
ters, AFL-CIO and Packer Construction Company
United Brotherhood of Carpenters and Joiners of America, Local
1089 , AFL-CIO ; Central Arizona District Council of Carpen-
ters, AFL-CIO , and R . E. Barrett 1 and Klaas Brothers, Inc.'
Cases Nos. 28-CD-58 and 28-CD-59. April 13, 1965
DECISION AND DETERMINATION OF DISPUTES
This is a consolidated proceeding pursuant to Section 10(k) of
the National Labor Relations Act, as amended, following charges
filed by Packer Construction Company (Case No. 28-CD-58) and
Klaas Brothers, Inc. (Case No. 28-CD-59), alleging that Carpenters
Locals 1061 and 1089, respectively, and Central Arizona District
Council of Carpenters, AFL-CIO, herein called the Respondents,
had induced and encouraged employees to strike for the purpose of
forcing or requiring subcontracting employer Gray Plastering Com-
pany, Inc. (Case No. 28-CD-58), herein called Gray, and employer
Klaas Bros., Inc., to assign particular work to members of the Re-
spondents rather than to members of Wood, Wire & Metal Lathers'
International Union, Local 374, AFL-CIO, herein called Lathers.
A consolidated hearing was held before Hearing Officer Lewis S.
Harris on September 23, 24, 25, 26, and 28, 1964. All parties ap-
peared at the hearing and were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to adduce evi-
dence bearing on the issues. The rulings of the Hearing Officer
made at the hearing are free from prejudicial error and are hereby
affirmed. The Respondents, the Lathers and Klaas Bros., Inc., and
Gray jointly, filed briefs which have been duly considered.
Pursuant to the provisions of Section 3(b) of the Act, the
National Labor Relations Board has delegated its powers in con-
nection with these cases to a three-member panel [Chairman Mc-
Culloch and Members Fanning and Brown].
1 R. E. Barrett is secretary-treasurer of Central Arizona District Council of Carpenters,
AFL-CIO.
2 The Employer ' s name appears as amended at the hearing.
151 NLRB No. 156.