Ellis and Watts Products, Inc.

National Labor Relations Board - Board Decisions

Aug 7, 1963

143 N.L.R.B. 1269 (N.L.R.B. 1963)

ELLIS AND WATTS PRODUCTS, INC. 1269
as authorized in Section 8(a)(3) of the National Labor Relations Act, as amended,
as modified by the Labor-Management Reporting and Disclosure Act of 1959.
KENNY CONSTRUCTION COMPANY OF ILLINOIS,
Employer.
Dated------------------- By-----------------------------------------(Representative (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Anyone having any question concerning this notice or compliance with its pro-
visions may communicate directly with the Board's Regional Office, Transit Building,
Fourth and Vine Streets, Cincinnati, Ohio, 45202, Telephone No. Dunbar 1-1420.
APPENDIX B
NOTICE TO ALL OUR OFFICERS, REPRESENTATIVES, AGENTS AND MEMBERS AND
TO ALL EMPLOYEES OF KENNY CONSTRUCTION COMPANY OF ILLINOIS
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act , as amended , you are notified that:
WE WILL NOT cause or attempt to cause Kenny Construction Company of
Illinois to discriminate against its employees in violation of Section 8 (a) (3) of
the National Labor Relations Act.
WE WILL NOT in any like or related manner restrain or coerce employees
of the above-named Company in the exercise of their right to self-organization,
to form , join, or assist unions, to bargain collectively through representatives
of their own choosing , to engage in concerted activities for the purposes of
collective bargaining or other mutual aid or protection, or to refram from such
activities , except to the extent that such rights may be affected by an agreement
requiring union membership as a condition of employment , as authorized by
Section 8(a)(3) of the National Labor Relations Act, as amended , as modified
by the Labor-Management Reporting and Disclosure Act of 1959.
WE WILL, with the above-named Company, make whole George W. Shaeffer
for any loss of pay suffered by him as a result of the discrimination against him.
INTERNATIONAL UNION OF OPERATING ENGINEERS,
LOCAL No. 181 , AFL-CIO,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Anyone having any question concerning this notice or compliance with its pro-
visions may communicate directly with the Board 's Regional Office, Transit Build-
ing, Fourth and Vine Streets , Cincinnati , Ohio, 45202, Telephone No. Dunbar
1-1420.
Ellis and Watts Products, Inc. and International Union , Allied
Industrial Workers of America , AFL-CIO. Cases Nos. 9-CA-
2041 and 9-CA-2069. August 7. 1963
SUPPLEMENTAL DECISION AND ORDER
On March 6, 1961, the Board issued its Decision and Order in these
cases,' finding that the Respondent had violated Section 8 (a) (1), (3),
and (5) of the Act. With respect to the 8 (a) (3) violation, the Board
found that on December 18, 1959, the Resprnwdent had discriminatorily
1130 NLRB 1216.
143 NLRB No. 115.
1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
laid off 27 named production employees at its Rossmoyne, Ohio, plant.
Accordingly, the Board ordered, inter alia, that the Respondent offer
immediate and full reinstatement to all the discruninatees who had
not previously been recalled. The Board further ordered that the
Respondent make all the discriminatees whole for any loss of pay they
might have suffered by reason of the Respondent's discrimination
against them, by payment to each of them of a stun of money equal
to that which he would normally have earned as wages, absent the dis-
crimination, from December 18, 1959, to the date of the Respondent's
offer of full reinstatement, less their net earnings during said period,
in a manner consistent with Board policy set out in F. W. 11'oolworth
Company, 90 NLRB 289, and Crossett Lumber Company, 8 NLRB
440.
On January 15, 1962, following a petition by the Board for the en-
forcement of its Order, the United States Court of Appeals for the
Sixth Circuit handed down its opinion herein and entered its decree
enforcing in full the Board's Order, including the reinstatement and
backpay provisions.' In its opinion, the court stated, inter alia :
In considering the amounts to be paid to employees under the
back pay order, we think the Board should take into account the
probable duration of their employment which the financial condi-
tion and business of the employer would have justified if the lay-
offs had not been made. The power of the Board to order rein-
statement with back pay is remedial in nature and may not be
used as fine or penalty for violation of the Act.
On November 28, 1962, the Board's Regional Director for the Ninth
Region issued and served upon the parties a backpay specification
and-notice of hearing, and on December 12, 1962, the Respondent filed
an answer thereto. Pursuant to notice, a hearing was held before
Trial Examiner Lee J. Best on January 21, 22, 23, and 24, 1963, for
the purpose of determining the amounts of backpay clue. On
April 22, 1963, the Trial Examiner issued his Supplemental Interme-
diate Report, which is attached hereto, finding that the backpay com-
putation should be made on the basis of full-time operations at 40
hours per week for the entire backpay period, plus overtime after the
second quarter of 1960, and recommending that the Respondent make
whole the discriminatees by the payment to them of specific amounts
of backpay computed on the basis of the above formula and in accord-
ance with the requirements of the Woolworth and Crossett Lumber
cases, cited above. Thereafter, the Respondent filed exceptions to
the Supplemental Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with these cases to a three-
2 F. 2d 576 ( C.A. 6). On February 14, 1962, the court entered its order denying a
petition for rehearing.
ELLIS AND WATTS PRODUCTS, INC. 1271
member panel [Chairman McCulloch and Members Leedom and
Brown].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no pre j ndicial error was committed. The
rulings are hereby affirmed. The Board has considered the entire
record in these cases, including the Supplemental Intermediate Re-
port, the exceptions, and the brief, and hereby adopts the findings,
conclusions, and recommendations of the Trial Examiner with the
following additions and modifications.
The Respondent contends, in substance, that, absent the discrimina-
tion, all the discriminatees would in any event have been laid off for
economic reasons on January 1, 1960, that it had no work for them
until they were recalled or until their specific jobs were filled by re-
placements, and therefore that no backpay is due for the periods
between January 1, 1960, and the dates of recall or replacement. The
Respondent further contends that the backpay of each discriminatee
should be limited to the regular and overtime pay actually received by
a newly hired employee or an employee with less seniority than the
discriminatee, who worked in the same department as that in which
the discriminatee worked at the time of layoff and did the same type
of work as such discriminatee. The Respondent asserts that the
Board's Decision and Order supports its contention that all the dis-
criinmatees would have been laid off for economic reasons on Janu-
ary 1, 1960. We have carefully examined the Board's Decision, how-
ever, and we find no support therein for this contention. On the
contrary, the Decision states, iil.ter alia, that there was at least 3
months' work remaining at the time of the layoff on December 18,
1959. Moreover, the record herein fails to establish that any discrim-
inatee would have been laid off for economic reasons on January 1,
1960, or on any other date. As found by the Trial Examiner, the
Respondent offered no evidence which shows that since the layoff its
volume of work was any less than it was in December 1959. In fact,
the evidence is to the contrary because, as further found by the Trial
Examiner, at about the time of the layoff the Respondent subcon-
tracted work from the Rossmoyne plant and also started production
at a new plant at Williamsburg, Ohio, of items similar to those pro-
duced at Rossmoyne.
In view of the foregoing, we find that the Respondent has failed
to establish that its backpay obligation terminated at any time before
its actual recall of the discriminatees.' We further find that the for-
united States Air Conditioning Corporation, 141 NLILB 1278, Biscayne Television
Corporation, 137 NLRB 430 In view of the Respondent's failure to show that the dis-
criminatees would have been laid off at any time for economic reasons, absent the dis-
crimination against them, we find it unnecessary to consider the Respondent's further
contention that no backpay was due any discriminatee until his job was filled by a junior
employee or a new hire.
1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mula followed by the Trial Examiner is the usual backpay formula
and is 'therefore in accordance with the Board's Decision and Order.
ORDER
On the basis of the foregoing Supplemental Decision and the entire
record in these cases, the National Labor Relations Board hereby or-
ders that the Respondent, Ellis and Watts Products, Inc., Rossmoyne,
Ohio, its officers, agents, successors, and assigns, shall pay to the em-
ployees involved in this proceeding, as net backpay herein determined
to be due, the amounts set forth opposite their names in the "Con-
cluding Findings" of the Trial Examiner. We do not, however, adopt
the Trial Examiner's recommendation that interest be paid on back-
pay, as the payment of interest, was not required by the Board's origi-
nal Order which was enforced in full by the court. See I. Posner,
Inc., et al., 140 NLRB 1313.
SUPPLEMENTAL INTERMEDIATE REPORT
STATEMENT OF THE CASE
This supplemental proceeding brought under Section 102.52, Rules and Regula-
tions of the National Labor Relations Board, Series 8, as amended, was heard
pursuant to notice before Trial Examiner Lee J. Best at Cincinnati, Ohio, on Janu-
ary 21, 22, 23, and 24, 1963, with all parties present or represented by counsel.
The purpose of this proceeding is to determine the respective amounts of backpay
due and payable to 27 discriminatees under Decision and Order of the Board dated
March 6, 1961, and published in 130 NLRB 1216. This Decision and Order of
the Board was enforced without modification on January 15, 1962, by the United
States Court of Appeals for the Sixth Circuit, and requires, inter alia, that each of
the 27 discriminatees hereinafter named be made -whole for any loss of pay suffered
by reason of the discrimination against them by payment to each of them of a sum
of money equal to that which he would normally have earned as wages, absent the
discrimination, from December 18, 1959, to the date on which Respondent offered
full reinstatement, less their net earnings during said period, in a manner consistent
with Board policy set out in F. W. Woolworth Company, 90 NLRB 289, and Crossett
Lumber Company, 8 NLRB 440. It is admitted that on various dates since Decem-
ber 18, 1959, the Respondent has offered proper reinstatement to each of the dis-
criminatees. All parties were afforded full opportunity to be heard, to examine and
cross-examine witnesses, to introduce evidence pertinent to the issues involved, to
present oral argument on the record, and to thereafter file written briefs with the
Trial Examiner, all of which have been given due consideration.
From my observation of the witnesses, and the entire record in the case, I make
the following:
FINDINGS AND CONCLUSIONS
1. PREFATORY STATEMENT
On December 7, 1959, the board of directors of Respondent corporation adopted
a resolution requiring its shop superintendent (Arthur Frey) to consider the possi-
bilities of eliminating all welding and sheet metal work in its shop by subcontracting
such work to outside contractors; to prepare a list of employees considered absolutely
essential to complete production contracts being processed; and to prepare a second
list of all other employees to be laid off. Notwithstanding such resolution, the Re-
spondent on December 9, 1959, posted a schedule for full-time operations extending
from December 14, 1959, through April 4, 1960, designating thereon the time allotted
for the performance of specific contracts. Thereafter, on December 18, 1959, Re-
spondent closed down its sheet metal department and drastically reduced all depend-
ent operations such as welding, painting, electrical testing, refrigeration, and assembly
work. Twenty-seven employees were laid off, but key personnel such as Ieadmen,
receiving clerks, and shipping personnel were retained. Concurrently therewith the
ELLIS AND WATTS PRODUCTS, INC. 1273
Respondent activated a new plant at Williamsburg, Ohio, and also subcontracted
shop work to Commercial Sheet Metal Company and Cincinnati Ventilating
Company.
For accounting purposes all work performed in Respondent's shop was charged
directly to specific job contracts. Employees recorded their labor (34 types) on
direct and indirect labor summary cards, and delivered these cards at the end of each
workday to the leadman in charge . For supervisory purposes only the shop was
organized into departments such as sheet metal, welding, electrical and testing, re-
frigeration , assembly, painting , research and development, each in charge of a lead-
man or working foreman, but office records did not classify employees by depart-
ments. Employees were divided into wage groups at an hourly wage determined
by agreement between the shop superintendent and a union committee. Seniority
was determined by length of service with the Company. Only welders were required
to be certified for any particular type of work. All others were selected by leadmen
to perform according to their skill and qualifications anywhere in the shop on a
loan basis from the department and leadman to which he was assigned for work.
By reason of this flexibility of operations, the Trial Examiner (under the circum-
stances of this case) finds it impractical to determine backpay based upon depart-
ment seniority classifications or from the actual earnings of junior employees re-
tained or newly hired employees. The Respondent made a financial report in
October 1959 showing that sales were steadily increasing and that production was
approaching capacity. It also reported receipt of a $4,000,000 contract performance
of which would be spread over a period of the next 3 years. Respondent also
adopted a budget for the year 1960 substantially larger than its budget for 1959.
The National Labor Relations Board in its Decision and Order of March 6, 1961,
found that there had been no noticeable decline in production work, that at least
3 months' work remained in Respondent's shop, and that no economic necessity
existed for the mass layoff of employees on December 18, 1959. The Respondent
has offered no evidence to show that since the layoff its volume of work, including
subcontracts, is any less than it was in December 1959. The record shows that
shortly after the layoff Respondent hired new employees, and also periodically re-
called its laid-off employees until it again had a full quota of 43 employees at the
end of the second calendar quarter in 1960; and thereafter continued to increase
its staff to a maximum of approximately 70 employees in the fourth quarter of 1960.
I shall find, therefore, that at all times material to this case the volume of contract
business on hand justified full-time operation of Respondent's Rossmoyne, Ohio,
plant, and that the 27 discriminatees are entitled to reinbursement for loss of wages
on that basis from December 18, 1959, to the date on which each of them was
offered proper reinstatement in compliance with the Board's Order of March 6, 1961.
Average overtime hours after June 30, 1960, will be added as to those recalled after
that date.
II. BACKPAY FORMULA PROPOSED BY GENERAL COUNSEL
The backpay specification filed herein by the Regional Director for the Ninth
Region alleges that backpay accruing for 13 weeks through March 18, 1960, should
be computed on the basis of a 40-hour week; that the next 12 weeks to June 12,
1960, should be computed on the basis of actual hours worked by employees with
less seniority being retained or by new employees hired since the layoff of December
18, 1959; and that after June 12, 1960, backpay should be computed on the basis
of a 40-hour week plus the "adjusted average overtime hours" worked by each
employee.
In principle, the Trial Examiner agrees with the backpay formula proposed by
the General Counsel, but finds it impracticable to compute wages after June 12, 1960,
solely on the basis of actual hours worked by employees with less seniority being
retained or by new employees hired since the layoff of December 18, 1959. In my
opinion , it will be more equitable to all parties to make the computation on the basis
of full-time operations at 40 hours per week for the entire backpay period plus
overtime after the second quarter, 1960.
The Respondent contends that the formula proposed by the General Counsel is
not remedial and constitutes a fine or penalty in that it does not take into consid-
eration the department in which the discriminatee worked or the skill, experience,
training , and knowledge of the person working overtime or that of the discriminatee.
Respondent proposes that the backpay of each discriminatee be computed on the
basis of straight and overtime work performed by an employee having less seniority
or has been newly hired to perform the same type of work within the department to
which he was assigned at the time of the layoff on December 18, 1959. I do not
agree with Respondent's proposed formula.
1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE COMPUTATION
1. Cunningham, Paull.
(a) Cunningham was employed as a production worker in the electrical and
test department at the pay rate of $2.49 per hour.
(b) His backpay period began on December 19, 1959, and ended with recall
to work on December 29, 1959-a period of 48 hours (6 working days), in-
cluding Christmas as a paid holiday.
(c) Respondent and the General Counsel agree that Cunningham be awarded
net backpay for the fourth quarter of 1959 for 48 hours at $2.49 in a total sum
of $119.52.
2. Meyer, Emil A.
(a) Meyer was employed at the pay rate of $2.26 per hour as leadman in the
electrical and test departments. His backpay period began on December 19,
1959, and ended with recall to work on December 29, 1959-a period of 6
working days or 48 hours (including Christmas as a paid holiday).
(b) Respondent and the General Counsel agree that Meyer be awarded net
backpay for the fourth quarter of 1959 for 48 hours at $2.26 in a total sum of
$108.48.
3. Lutarewytsch, Paolo
(a) Lutarewytsch was employed at the pay rate of $1.75 per hour as a laborer
in the sheet metal and paint departments. His backpay period began on De-
cember 19, 1959, and ended on January 1, 1960, when he declined reinstate-
ment because of ill health-a period of 10 working days or 80 hours (includ-
ing Christmas and New York's Day as paid holidays).
(b) Respondent and the General Counsel agree that Lutarewytsch be awarded
net backpay for the fourth quarter of 1959 for 80 hours at $1.75 in a total
sum of $140.
4. Miller, Raymond W.
(a) Miller was employed at the pay rate of $2.52 per hour as assistant lead-
man in the sheet metal department. His backpay period began on Decem-
ber 19, 1959, and ended with recall to work on January 5, 1960.
(b) Absent the discrimination, he would have worked 11 days or 88 hours,
including Christmas and New Year's Day as paid holidays He had no interim
earnings. I find, therefore, that he is entitled to net backpay for 72 hours at
$2.52 in the fourth quarter of 1959 ($181.44), and for 16 hours at $2.52 in
the first quarter of 1960 ($40.32) or a total sum of $221.76.
5. Klus, Thomas R.
(a) Klus was employed at a pay rate of $1 50 per hour as a production
worker in the sheet metal department. His backpay period began on Decem-
ber 19, 1959, and ended with recall to work on January 12, 1960.
(b) Absent discrimination, he would have worked 72 hours in the fourth
quarter, 1959, including Christmas as a paid holiday, for which he would have
earned $108. In the first quarter, 1960, he would have worked 56 hours
straight time, including New Year's Day as a paid holiday, for which he would
have earned $84, less interim earnings of $46, or net backpay of $38 I find,
therefore, that Klus is entitled to total net backpay for 128 hours at $1.50 less
interim earnings of $46 in the first quarter, 1960, or a total sum of $146.
6. Chamberlain, Harold D.
(a) Chamberlain was employed at $2.53 per hour as a production worker in
the assembly and sheet metal departments. His backpay period began on
December 19, 1959, and ended with recall to work on February 10, 1960.
He had no interim earnings.
(b) Absent the discrimination, he would have worked 72 hours in the fourth
quarter, 1959, including Christmas as a paid holiday, for which he would
have earned $182 16. During the first quarter, 1960, he would have worked
224 hours, including New Year's Day as a paid holiday, for which he would
have earned $566.72. I find, therefore, that Chamberlain is entitled to net back-
pay in the total sum of $748 88.
7. Mason, Billy W.
(a) Mason was employed at $1.65 per hour as a production worker in the
assembly and electrical departments. His backpay period began on Decem-
ber 19, 1959, and ended with recall to work on February 29, 1960. He had
no interim earnings.
ELLIS AND WATTS PRODUCTS, INC . 1275
(b) Absent the discrimination, he would have worked 72 hours in the fourth
quarter, 1959, including Christmas as a paid holiday, for which he would have
earned $118 80. During the first quarter, 1960, he would have worked 328
hours, including New Year's Day as a paid holiday, for which he would have
earned $541.20. I find, therefore, that Mason is entitled to net backpay in the
total sum of $660.
8. Harmon, Clyde 0.
(a) Harmon was employed at $1.70 per hour as a production worker in the
painting department. His backpay period began on December 19, 1959, and
ended with recall to work on February 29, 1960
(b) Absent the discrimination, he would have worked 72 hours in the fourth
quarter, 1959, including Christmas as a paid holiday, for which he would have
earned $122.40. During the first quarter, 1960, he would have worked 328
hours, including New Year's Day as a paid holiday, for which he would have
earned $557.60 less interim earnings of $214.60, or net backpay of $343. I
find, therefore, that Harmon is entitled to net backpay in the total sum of
$465.40.
9. Reimer, Robert H.
(a) Reimer was employed at $1.50 per hour to work as a student co-op
throughout the shop, as part of his educational program. His backpay period
began on December 19, 1959, and ended on March 1, 1960, when he obtained
permanent employment elsewhere.
(b) Absent the discrimination, he would have worked in Respondent's shop
for 72 hours in the fourth quarter, 1959, including Christmas as a paid holi-
day, for which he would have earned $108 During the first quarter to March 1,
1960, he would have worked 336 hours, including New Year's Day as a paid
holiday, for which he would have earned $504. He had no interim earnings.
I find, therefore, that Reimer is entitled to net backpay in the total sum of
$612.
10. Schwalbach, Howard John, II
(a) Schwalbach was employed at $1.55 per hour as a production worker
in the sheet metal department. His backpay period began on December 19,
1959, and ended with recall to work on March 2, 1960.
(b) Absent the discrimination he would have worked 72 hours in the fourth
quarter, 1959, including Christmas as a paid holiday, for which he would
have earned $111.60. During the first quarter to March 2, 1960, he would
have worked 344 hours, including New Year's Day as a paid holiday, for which
he would have earned $533.20. He had no interim earnings I find, there-
fore, that Schwalbach is entitled to net backpay in the total sum of $644.80.
11. Stumpf, Edward L.
(a) Respondent and the General Counsel agree that no backpay should be
computed for Stumpf because he fractured his leg on December 6, 1959, prior
to the layoff on December 18, 1959, and was thereafter incapacitated for work,
although he was offered reinstatement on March 16, 1960.
12. Heitfeld, Paul J.
(a) Heitfeld was employed at $1.75 per hour to work as a student co-op
throughout the shop as a part of his educational program. His backpay period
began on December 19, 1959, and ended when he entered military service on
March 17, 1960.
(b) Absent the discrimination he would have worked 72 hours in the fourth
quarter of 1959, including Christmas as a paid holiday, for which he would
have earned $126. During the first quarter, 1960, including New Year's Day
as a paid holiday, he would have worked 432 hours for which he would have
earned $756. He had no interim earnings. Consequently, I find that Heitfeld
is entitled to net backpay in the total sum of $882
13. Green, Robert J.
(a) Green was employed at $2 27 per hour as a production worker in the
electrical and testing departments. His backpay period began on December 19,
1959, and ended when he accepted permanent employment at Avco-Crosley on
April 1, 1960.
(b) Absent the discrimination he would have worked 72 hours in the fourth
quarter, 1959, including Christmas as a paid holiday, for which he would
have earned $163.44. During the first quarter, 1960, he would have worked
1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4.
520 hours straight time, including New Year's Day as a paid holiday, for
which he would have earned $1,180.40. In the first quarter, 1960, he had
gross interim earnings of $1,365.63 less expenses of $311.76-net interim earn-
ings of $1,053.87. I find, therefore, that Green is entitled to net backpay in
the sum of ($1,343.84 less interim earnings of $1,053.87) $289.97.
14. Hyden, Andrew J.
(a) Hyden was employed at $1.82 per hour as helper in the refrigeration
department. His backpay period began on December 19, 1959, and ended
with recall to work on May 31, 1960. He had no interim earnings.
(b) Absent the discrimination he would have worked 72 hours during the
fourth quarter, 1959, including Christmas as a paid holiday, for which he
would have earned $131.04. During the first quarter, 1960, he would have
worked 520 hours, including New Year's Day as a paid holiday, for which
he would have earned $946 40. In the second quarter, 1960, he would have
worked 42 days or 336 hours at $1 82 for which he would have earned $611 52.
Consequently, I find that Hyden is entitled to net backpay in the total sum of
$1,688.96.
15. Smith, Kenneth W.
(a) Smith was employed at $1.75 per hour as a helper in the refrigeration
department. His backpay period began on December 19, 1959, and ended with
recall to work on June 13, 1960 In the first quarter, 1960, he had interim
earnings of $168.51, and during the second quarter, 1960, had interim earn-
ings of $713.05.
(b) Absent the discrimination he would have worked 72 hours for the Re-
spondent during the fourth quarter, 1959, including Christmas as a paid holi-
day, for which he would have earned $126. During the first quarter, 1960, he
would have worked 520 hours, including New Year's Day as a paid holiday,
for which he would have earned $910 less interim earnings of $168.51, or a
total of $741.49. During the second quarter, 1960, he would have worked
408 hours (51 days) for which he would have earned $714 less interim earn-
ings of $713.05 or net backpay of $.95. I find, therefore, that Smith is en-
titled to net backpay from December 19, 1959, to June 13, 1960, in the total
sum of $868.44.
16. Harrison, Herman
(a) Harrison was employed at $2.08 per hour as a journeyman in the sheet
metal department. His backpay period began on December 19, 1959, and
ended with recall to work on July 21, 1960 He had net interim earnings of
$950 85 in the second quarter, 1960, and net interim earnings of $60 in the
third quarter of 1960
(b) Absent the discrimination he would have worked 72 hours in the fourth
quarter, 1959, including Christmas as a paid holiday, for which he would have
earned $149.76 In the first quarter, 1960, including New Year's Day as a
paid holiday, he would have worked 520 hours (65 days) for which he would
have earned $1,081.60. During the second quarter, 1960, he would have
worked 520 hours (65 days) and earned $1,081 60 less interim earnings of
$950.85 or net backpay of $130.75. During the third quarter, 1960, to July 21,
1960, he would have worked 14 days or 112 hours at $2.08 per hour and
earned $232 96 less interim earnings of $60 or net backpay of $172.96. Add
20 overtime hours at $3.12 per hour or $62 40. Consequently, I find that
Harrison is entitled to net backpay in the total sum of $1,597.47 from De-
cember 19, 1959, to July 21, 1960.
17. Barnes, Donald F.
(a) Barnes was employed at $2.05 per hour as a journeyman in the re-
frigeration department. His backpay period began on December 19, 1959, and
ended with recall to work on July 21, 1960 Interim earnings for the first
quarter, 1960, were $491.41, for the second quarter-$851.51; and for the
third quarter-$224.89.
(b) Absent the discrimination, Barnes would have worked 72 hours in
the fourth quarter, 1959, including Christmas as a paid holiday, for which he
would have earned $147 60. In the first quarter, 1960, he would have worked
520 hours (65 days), including New Year's Day as a paid holiday, for which
he would have earned $1,066 less interim earnings of $491.41 or net backpav
of $574.59. During the second quarter, 1960, he would have worked 520
hours (65 days) at $2 05 per hour for which he would have earned $1,066
less interim earnings of $851.51 or net backpay of $214.49. During the third
ELLIS AND WATTS PRODUCTS, INC. 1277
quarter, 1960, to July 21, 1960, he would have worked 14 days or 112 hours
and earned $229.60 less interim earnings of $224.89 or net backpay of $4.71.
Add 20 overtime hours at $3 08 per hour or $61 60. Consequently, I find
that Barnes is entitled to net backpay from December 19, 1959, to July 21,
1960, in the total sum of $1,002.99.
18. Deubell, Robert E. Jr.
(a) Deubell was employed at $1.50 per hour as a production worker in the
electrical department. His backpay period began on December 19, 1959, and
ended with recall to work on July 21, 1960 Interim earnings were $506.83
in first quarter, 1960; $469.05 in second quarter, and $100 in the third quarter,
1960.
(b) Absent the discrimination, he would have worked 72 hours in the fourth
quarter, 1959, including Christmas Day as a paid holiday, for which he
would have earned $108. In the first quarter, 1960, he would have worked 520
hours (65 days), including New Year's Day as a paid holiday, for which he
would have earned $780 less interim earnings of $506.83 or net backpay of
$273.17. During the second quarter he would have worked 520 hours (65
days) at $1 50 per hour for which he would have earned $780 less interim
earnings of $469.05 or net backpay of $310 95 During the third quarter to
July 21, 1960, he would have worked 14 days or 112 hours of which he would
have earned $168 less interim earnings of $100 or net backpay of $68. Add
20 overtime hours at $2 25 or $45. Consequently, I find that Deubell is
entitled to net backpay from December 19, 1959, to July 21, 1960, in the total
sum of $805.12.
19. Craig, Richard R.
(a) Craig was employed at $1 76 per hour as a production worker in the
electrical department. His backpay period began on December 19, 1959,
and ended with recall to work on July 25, 1960. He had no interim earnings
(b) Absent the discrimination, he would have worked 72 hours in the fourth
quarter of 1959, including Christmas as a paid holiday, for which he would
have earned $126.72. In the first quarter, 1960, he would have worked 520
hours (65 days) at $1.76 per hour, including New Year's Day as a paid holiday,
for which he would have earned $915.20. In the second quarter, 1960, he
would have worked 520 hours and earned $915.20 During the third quarter
to July 25, 1960, he would have worked 128 hours (16 days) and earned $225 28.
Add 24 overtime hours at $2.64 per hour or $63 36. Consequently, I find that
Craig is entitled to net backpay from December 19, 1959, to July 25, 1960,
in the total sum of $2,245.76.
20. Cordes, Joseph E.
(a) Cordes was employed at $1.82 per hour as an inspector. His backpay
period began on December 19, 1959, and ended with recall to work on July
25, 1960. He has reported interim earnings of $712.15 in the first quarter,
1960: $800.85 in the second quarter; and $171.03 in the third quarter. 1960.
(b) Absent the discrimination he would have worked 72 hours in the fourth
quarter, 1959, including Christmas as a paid holiday, for which he would have
earned $131.04. In the first quarter, 1960, he would have worked 520 hours
(65 days), including New Year's Day as a paid holiday, for which he would
have earned $946.40 less interim earnings $712.15, or net backpay of $234.25.
In the second quarter, 1960, he would have worked 520 hours (65 days) for
which he would have earned $946 40 less interim earnings of $800.85 or net
backpay of $145.55. During the third quarter to July 25, 1960, he would have
worked 128 hours (16 days) for which he would have earned $232.96 less
interim earnings of $171.03 or net backpay of $61.93. Add 24 overtime hours
at $2.73 per hour or $65.52. Consequently, I find, that Cordes is entitled to
net backpay from December 19, 1959, to July 25, 1960, in the total sum of
$638.29.
21. Hetman, William B.
(a) Hetman was employed at $2.06 per hour as a student co-on in the elec-
trical department. His backpay period began on December 19, 1959, and
ended with recall to work on July 27, 1960. During the second quarter, 1960,
he reports net interim earnings of $1,106.65; and $276.25 for the third quarter,
1960.
(b) Absent the discrimination, he would have worked 72 hours in the fourth
quarter, 1959, including Christmas as a paid holiday, for which he would
1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have earned $148.32. In the first quarter, 1960, including New Year's Day
as a paid holiday, he would have worked 520 hours (65 days) for which he
would have earned $1,071.20. In the second quarter, 1960, he would have
worked 520 hours (65 days) for which he would have earned $1,071.20 less net
interim earnings of $1,106.65 or net backpay of zero. During the third quarter
to July 27, 1960, he would have worked 144 hours (18 days) for which he would
have earned $296.64 less interim earnings of $276.25 or net backpay of $20.39.
Add 26 overtime hours at $3.09 per hour or $80.34. Consequently, I find that
Hetman is entitled to net backpay from December 19, 1959, to July 27, 1960,
in the total sum of $1,320.25.
22. Ellis, Ray wood
(a) Ellis was employed at $1.99 per hour as a tool crib attendant in the re-
frigeration and stockroom departments. His backpay period began on Decem-
ber 19, 1959, and ended with recall to work on July 27, 1960. For the second
quarter, 1960, he reported interim earnings of $704.86; and $340 for the third
quarter, 1960.
(b) Absent the discrimination, he would have worked 72 hours in the fourth
quarter, 1959, including Christmas as a paid holiday, for which he would have
earned $143.28. In the first quarter, 1960, he would have worked 520 hours
(65 days), including New Year's Day as a paid holiday, for which the would
have earned $1,034.80. During the second quarter, 1960, he would have worked
520 hours (65 days) for which he would have earned $1,034.80 less interim
earnings of $704.86 or net backpay of $329.94. During the third quarter to
July 27, 1960, he would have worked 144 hours (18 days) for which he would
have earned $286.56 less interim earnings of $340 or net backpay of zero. Add
26 overtime hours at $2.98 per hour or $77.48. Consequently, I find that Ellis
is entitled to net backpay from December 19, 1959, to July 27, 1960, in the
total sum of $1,585.50.
23. Dunigan, Robert E.
(a) Dunigan was employed at $1.60 per hour as a helper in the welding de-
partment. His backpay period began on December 19, 1959, and ended on
recall to work on July 27, 1960. Interim earnings of $30 for the fourth quarter,
1959, $425.59 for the first quarter, 1960; $374 68 for the second quarter, 1960;
and $110.50 for the third quarter, 1960, have been accounted for.
(b) Absent the discrimination, he would have worked 72 hours in the fourth
quarter, 1959, including Christmas as a paid holiday, for which he would have
earned $115.20 less interim earnings of $30 or net backpay of $85.20. In the
first quarter, 1960, including New Year's Day as a paid holiday, he would have
worked 520 hours (65 days) for which he would have earned $832 less interim
earnings of $425.59 or net backpay of $406 41. In the second quarter, 1960,
he would have worked 520 hours for which he would have earned $832 less
interim earnings of $374.68 or net backpay of $457.32. During the third quar-
ter to July 27, 1960, he would have worked 144 hours (18 days) for which he
would have earned $230.40 less interim earnings of $110.50 or net backpay of
119.90. Add 26 overtime hours at $2.40 per hour or $62.40. Consequently,
I find that Dunigan is entitled to net backpay in the total sum of $1,131.23.
24. Hughes, Wade M.
(a) Hughes was employed at $2.35 per hour as journeyman in the sheet metal
department. His backpay period began on December 19, 1959, and ended
with recall to work on August 3, 1960. Reported interim earnings for the first
quarter, 1960, were $734.41; for the second quarter were $1,380.79; and for
the third quarter to August 3, 1960, were $506.32.
(b) Absent the discrimination, he would have worked 72 hours in the fourth
quarter, 1959, including Christmas as a paid holiday, for which he would have
earned $169.20. In the first quarter, 1960, he would have worked 520 hours
(65 days), including New Year's Day as a paid holiday, for which he would
have earned $1,222 less interim earnings of $734.41 or net backpay of $487.59.
In the second quarter, 1960, he would have worked 520 hours (65 days) for
which he would have earned $1,222 less interim earnings of $1,380.79 or net
backpay of zero. During the third quarter to August 3, 1960, he would have
worked 184 hours (23 days) at $2.35 per hour for which he would have
earned $432.40 plus 33 overtime hours at $3.52 per hour or $116.16, less in-
terim earnings of $506.36 or net backpay of $42.20. Consequently, I find
that Hughes is entitled to net backpay in the total sum of $698.99.
ELLIS AND WATTS PRODUCTS, INC. 1279
25. Kelly, James E.
(a) Kelly was employed as a sweeper and laborer at $1 66 per hour. His
backpay period begins on December 19, 1959, and ends with recall to work on
August 3, 1960. No interim earnings were reported.
(b) Absent the discrimination, he would have worked 72 hours in the fourth
quarter, 1959, including Christmas as a paid holiday, for which he would have
earned $119.52. In the first quarter, 1960, he would have worked 520 hours
(65 days), including New Year's Day as a paid holiday, for which he would
have earned $863.20. In the second quarter, 1960, he would also have worked
520 hours (65 days) for which he would have earned $863 20. During the
third quarter to August 3, 1960, he would have worked 184 hours (23 days)
for which he would have earned $305.44. Add 33 overtime hours at $2.49 per
hour or $82.17. Consequently, I find that Kelly is entitled to net backpay in
the total sum of $2,233 53 for the period from December 19, 1959 to August
3, 1960.
26. Mobley, Robert P.
(a) Mobley was employed at $1 60 as a laborer in the paint and welding de-
partments. His backpay period began on December 19, 1959, and ended with
recall to work on August 3, 1960. Interim earnings of $79.20 were reported
for the second quarter of 1960.
(b) Absent the discrimination, he would have worked 72 hours in the fourth
quarter, 1959, including Christmas as a paid holiday, for which he would have
earned $115 20. In the first quarter, 1960, including New Year's Day as a paid
holiday, he would have worked 520 hours (65 days) for which he would have
earned $832 In the second quarter, 1960, he would also have worked 520 hours
(65 days) for which he would have earned $832 less interim earnings of $79 20,
or net backpay of $752.80. During the third quarter to August 3, 1960, he would
have worked 184 hours (23 days) for which he would have earned $294.40.
Add 33 overtime hours at $2.40 per hour or $79.20. Consequently, I find that
Mobley is entitled to net backpay in the total sum of $2,073.60.
27. Meyer, Leroy H.
(a) Meyer was employed as welder at $1.90 per hour. His backpay period,
began on December 19, 1959, and ended with recall to work on March 27, 1961.
His reported interim earnings were: for the first quarter, 1960-$203.48; for
the second quarter, 1960-$1,188.75; for the third quarter, 1960-$732.89;
for the fourth quarter, 1960-$783.70; and for the first quarter, 1961-$859.94.
(b) Absent the discrimination, in the fourth quarter, 1959, he would have
worked 72 hours (including Christmas as a paid holiday) for which he would
have earned $136.80. In the first quarter, 1960 (including New Year's Day as
a paid holiday), he would have worked 520 hours (65 days) for which he
would have earned $988 less interim earnings of $203.48 or net backpay of
$784.52. In the second quarter, 1960, he would have worked 520 hours (65
days) for which he would have earned $988 less interim earnings of $1,188.75
or net backpay of zero. In the third quarter, 1960, he would have worked 528
hours straight time at $1 90 per hour ($1,003 20) plus 89 average overtime
hours at $2.85 per hour ($253.65) for which his earnings would be $1,256.85,
less interim earnings of $732 89 or net backpay of $523.96. In the fourth
quarter, 1960, he would have worked 552 hours straight time at $1.90 per hour
($1,010.80) plus 74 overtime hours at $2.85 per hour ($210 90) for which his
earnings would be $1,221.70 less interim earnings of $783.70 or net backpay of
$438. In the first quarter, 1961, he would have worked 488 hours straight time
at $1.90 per hour ($927.20) to March 27, 1961, plus 47 overtime hours at
$2.85 per hour ($133.95) for which his earnings would be $1,061.15 less in-
terim earnings of $859.94 or net backpay of $201.21. I find, therefore, that
Leroy H. Meyer is entitled to net backpay in the total sum of $2,084.49.
CONCLUDING FINDINGS
Summarizing the foregoing computations of backpay, I find that the obligation of
Respondent to make whole the 27 employees under the Board Order and court decree
herein will be discharged by payment to each of them the amount set opposite their
respective names below, less any tax withholdings required by Federal and State
laws, as follows: 1
'Interest at the mate of 6 percent per annum shall be added to backpay to be com-
puted in the manner set forth in Isis Plumbing it Heating Co, Inc, 138 NLRB 716
1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cunningham, Paul J------------------------------------ $119.52
2. Meyer, Emil A---------------------------------------- 108.48
3. Lutarewytsch, Paolo------------------------------------ 140.00
4. Miller, Raymond W------------------------------------ 221.76
5. Klus, Thomas R--------------------------------------- 146.00
6. Chamberlain, Harold D--------------------------------- 748.88
7. Mason, Billy W---------------------------------------- 660.00
8. Harmon, Clyde 0-------------------------------------- 465.40
9. Reimer , Robert H-------------------------------------- 612.00
10. Schwalbach, Howard John, II---------------------------- 644.80
11. Stumpf, Edward L-------------------------------------- No claim
12. Heitfeld, Paul J---------------------------------------- 882.00
13. Green, RobertJ ---------------------------------------- 289.97
14. Hyden, Andrew J--------------------------------------- 1,688.96
15. Smith, Kenneth W------------------------------------- 868.44
16. Harrison, Herman-------------------------------------- 1,597.47
17. Barnes, Donald F-------------------------------------- 1,002.99
18. Deubell, Robert E., Jr----------------------------------- 805.12
19. Craig, Richard R-------------------------------------- 2,245.76
20. Cordes, Joseph E--------------------------------------- 638.29
21. Hetman, William B------------------------------------- 1,320.25
22. Ellis, Raywood---------------------------------------- 1,585.50
23. Dunigan, Robert E------------------------------------- 1,131.23
24. Hughes, Wade M-------------------------------------- 698.99
25. Kelly, James E---------------------------------------- 2,233.53
26. Mobley, Robert P-------------------------------------- 2,073.60
27. Meyer, Leroy H---------------------------------------- 2,084.49
Total----------------------------------------------- 25,013.43
It is therefore recommended that the Board adopt the foregoing findings and con-
clusions, and that the Respondent make whole the 27 discriminatees named above
by the payment of the specific sums of money set forth opposite their respective
names.
Pentagon Plaza, Inc. and its wholly owned subsidiaries River-
house West, Inc., and Riverhouse South , Inc., operating as
Riverhouse , Riverhouse West, and Riverhouse South and
Cafritz Management Company 1 and International Union of
Operating Engineers , Local 99-99A, AFL-CIO, Petitioner.
Case No. 5-RC-4055. August 7, 1963
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before M. Louise
Felton, a hearing officer of the National Labor Relations Board. On
March 7, 1963, the Regional Director for the Fifth Region issued a
Decision and Direction of Election in this proceeding.' Thereafter,
the Joint Employers, in accordance with Section 102.67 of the Board's
Rules and Regulations, Series 8, as amended, filed with the Board a
1 In conformity with the record and our decision herein the caption is amended to include
Cafritz Management Company as a Joint Employer.
2 The Regional Director found a joint employer relationship to exist between Cafritz
Management Company and Pentagon Plaza and its subsidiaries as named in the caption.
Cafritz Management Company is frequently referred to in the record as Cafritz Company.
We shall hereinafter use the latter designation.
143 NLRB No. 119.