English Mica Co.

National Labor Relations Board - Board DecisionsDec 16, 1952

101 N.L.R.B. 1061 (N.L.R.B. 1952)

ENGLISH bIICA COMPANY 1061 ENGLISH MICA COMPANY and UNITED STONE AND ALLIED PRODUCTS WORKERS OF AMERICA, CIO. Case No. 34-CA-168. December 16, 1962 Supplemental Decision and Order On December 18, 1950, the National Labor Relations Board Issued a Decision and Order 1 in the above-entitled proceeding, which order was enforced by a decree of the United States Court of Appeals for the Fourth Circuit entered on April 23, 1952.2 The decree provided inter alia that the Respondent make whole certain of its employees for losses of pay suffered by reason of the Respondent's discrimination against them. Thereafter, a question as to the computation of back pay having arisen, a hearing was held before Trial Examiner Eugene E. Dixon, to determine what further action was to be taken by the Respondent to make the discriminatees whole. On October 21, 1952, the Trial Examiner issued his Supplemental Intermediate Report and Recommendation finding that the dis- criminatees were entitled to specific amounts of net back pay, as set forth in the copy of the Supplemental Intermediate Report and Rec- ommendation attached hereto. Thereafter, the Respondent and the General Counsel filed exceptions to the Supplemental Intermediate Report and Recommendation, and the Respondent filed a brief in support of its exceptions. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Houston, Styles, and Peterson]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Supple- inental Intermediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. The Respondent objects to the Trial Examiner's application of the Woolworth 3 formula in computing the back pay due the discrimi- natees. Back pay based upon this formula was recommended in the original Intermediate Report, and was ordered in the Board's Decision and Order as enforced by the court decree. At none of these earlier steps in this proceeding did the Respondent object to the use of the Woolworth formula. Accordingly, we find that the Respondent is 1 92 NLRB 766. 7 195 F. 2d 986 (C. A. 4). 1 F. W. Woolworth Company, 90 NLRB 289 101 NLRB No. 179. 1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD precluded from raising this objection for the first time at this stage of the proceedings.' In any event, for the reasons stated in the Wool- worth decision, we affirm the Trial Examiner's application of the Woolworth formula in the instant case. The General Counsel objects to the Trial Examiner's method of computing the back pay due George H. Young, Jr., for the first quar- ter of 1950. During that quarter, Young's gross earnings were $67.35, and his expenses incurred in connection with obtaining employment were $173, leaving him with a net loss of $105.65. Young's earnings during that quarter in the Respondent's employ would have been $403.20. The Trial Examiner offset the $67.35 in earnings against the $173 in expenses, concluded that Young had in effect had no earnings to be deducted from the $403.20 owed him by the Respondent, and, therefore, awarded him $403.20 for the quarter in question. The Gen- eral Counsel, however, contends that Young should have been made whole for his deficit of $105.65 in addition to the $403.20. We find that the Trial Examiner correctly applied the Woolworth formula, which is based upon quarterly computations of the amounts of back pay due discriminatees. Accordingly, we shall allow Young $403.20 for the first quarter of 1950. Order Upon the basis of this Supplemental Decision and the entire record in the case, and pursuant to Section 10 (c) of the National Labor Rela- tions Act, as amended, the National Labor Relations Board hereby orders that the Respondent, English Mica Company, Spruce Pine, North Carolina, its officers, agents, successors, and assigns, shall pay to the employees listed below who were found to have been discrimi- nated against by the Respondent in a Board Decision and Order issued on December 18, 1950, as enforced by a decree of the Court of Appeals for the Fourth Circuit entered on April 23, 1952, the following amounts of net back pay: George H. Young,Jr ----------------------------------- $963.20 Lane Ledford----------------------------------------- 452.07 Harold Thomas--------------------------------------- 1,154.54 Leroy E. Fox----------------------------------------- 636.64 Sifers Candy Company, 92 NLRB 1220. Supplemental Intermediate Report and Recommendation On December 18, 1950, the National Labor Relations Board, herein called the Board, issued a Decision and Order in Case No. 34-CA-168' in which is found that English Mica Company of Spruce Pine, North Carolina, herein called the Respondent, had engaged in and was engaging in certain unfair labor practices 0 English Mica Company, 92 NLRB 766. ENGLISH MICA COMPANY 1063 within the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136. The Board ordered the Respondent to cease and desist therefrom and to take certain affirm- ative remedial action. In addition to other things not here pertinent, the Board found that the Re- spondent had discriminated with respect to the hire and tenure of employment of four employees' and ordered them reinstated and made whole, as recom- mended in the Intermediate Report of the Trial Examiner, for any loss of pay suffered by them by reason of the discrimination practiced against them. Fol- lowing the precedent established in the Woolworth case' the Trial Examiner recommended that "loss of pay shall be determined by deducting from a sum equal to that which these employees would normally have earned for each quar- ter or portion thereof, their net earnings, if any, in other employment during that period. Earnings in one particular quarter shall have no effect upon the back-pay liability for any other quarter. The quarterly period described herein shall begin with the first day of January, April, July, and October." In its exceptions to the Intermediate Report, the Respondent did not protest the Woolworth formula recommendation. Respondent having failed to comply with the Board's Order, the Board peti- tioned the United States Court of Appeals for the Fourth Circuit for enforce- ment thereof. On April 23, 1952, the court of appeals issued its decree enforcing the Board's order. Thereafter a question as to the computation of the back pay having arisen, a notice of further hearing was duly served upon the parties by the Regional Director for the Fifth Region for "the purpose of specifically determining what further action is to be taken by the Respondent in compliance with said Order and Decree." Pursuant to this notice a hearing was held at Spruce Pine, North Carolina, on August 12, 1952, before Eugene E. Dixon,' the undersigned Trial Examiner, duly designated by the Chief Trial Examiner. The General Counsel of the Board was represented by counsel, herein referred to as the General Counsel, the Respondent was represented by counsel, and the Union was represented by its international representative. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence was afforded all parties. The Issue No question is raised as to what the interim earnings of these employees were or what they would have earned in Respondent's employment had they not been discriminated against. These facts were stipulated at the hearing. The only question involved is the method by which the order requires the interim earn- ings to be balanced against what would have been earned in Respondent's em- ployment. In short, Respondent attacks the application of the Woolworth formula, supra. Respondent shows that by use of the Woolworth formula it will be required to pay $1,050.60 more in back wages than it would be required to pay if the total interim earnings were offset against the totals that would have been earned. Respondent contends that this difference "results in a penalty of $1,050.60 being imposed on Respondent." In support of its contention Respondent relies on Leroy E Fox, George H Young, Jr, Harold Thomas, and Lane Ledford F W. Woolworth Company, 90 NLRB 289. • The reporter inadvertently shows my name in the record as Nixon 1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD N. L. R. B . v. Seven-Up Bottling Company, 196 F . 2d 424 , in which the Fifth Cir- cuit refused to enforce the application of the Woolworth formula called for by the Board's order in the case.' In spite of the Seven-Up Bottling decision by the Fifth Circuit, upon which a petition for certiorari was granted by the Supreme Court October 13, 1952, the Board has continued the application of the Woolworth formula in its orders, even in the Fifth Circuit' Accordingly, there is no authority or precedent upon which I could honor Respondent 's contention . Obviously it is unnecessary for me to determine or conjecture what effect Respondent 's failure to except to the appli- cation of the Woolworth formula, either in its argument to the Board or the court, has on its standing now to do so before the Board or the court. In view of the foregoing, and upon the entire record in the case, I make the following : SUPPLEMENTAL FINDINGS OF FACT' Cross Back Wages 3rd quarter 1949_______ 4th quarter 1949 _ _ _ _ _ _ _ 1st quarter 1950________ 2nd quarter 1950_______ 3rd quarter 1950 ------- 4th quarter 1950_______ 1st quarter 1951________ 2nd quarter 1951_______ George H. Young, Jr. Interim Net Back Due Earnings Expenses Wages Due $114.80 None None $114.80 445. 20 None None 445.20 403. 20 $67. 35 1$173.00 403. 20 390 00 656. 84 49. 00 None 390.00 1, 166. 19 None None 378. 00 826. 01 49. 00 None 414.00 450.00 None None 64.00 450.00 None None Total Net Back Wages Due George H. Young, Jr -------- Lane Ledford 9$063. 20 3rd quarter 1949 _ _ _ _ _ _ _ $57. 20 None None $57. 20 4th quarter 1949 _ _ _ _ _ _ _ 227.70 $126.80 None 100 80 1st quarter 1950-------- 151.20 None None 151.20 2nd quarter 1950 _ _ _ _ _ _ _ 180. 00 37 13 Non 142. 87 Total Back Wages Due Lane Ledford------------------- $452. 07 Harold Thomas 3rd quarter 1949 _ _ _ _ _ _ _ $105. 60 None None $105. 60 4th quarter 1949 _ _ _ _ _ _ _ 388. 80 $200. 00 $50. 00 238. 80 1st quarter 1950-------- 386. 40 200. 00 50. 00 236. 40 2nd quarter 1950 _ _ _ _ _ _ _ 366 00 3 . 00 None 363. 00 3rd quarter 1950 _ _ _ _ _ _ _ 384. 00 201 00 16. 34 199. 34 4th quarter 1950 _ _ _ _ _ _ _ 368. 00 450. 73 None None 1st quarter 1951 -------- 414. 00 402. 60 None 11. 40 2nd quarter 1951 --- --- 208.00 224 80 None None Total Net Back Wages Due Harold Thomas _ _ _ _ _ _ _ _ _ _ _ _ _ $1,154.54 m Seven-Up Bottling Company , 92 NLRB 1622 e See for example S. S. Coachman f Sons, Inc, 99 NLRB 670; Cullman Electric Coopera- tive. 99 NLRB 753; Rubin Bros. Footwear, Inc., 99 NLRB 610. r These findings show the gross back wages due, the interim earnings , and the expenses of the employees in question and are set forth in table form for clarity and convenience. 9 While the actual expenses for the quarter were $173, since the actual interim earnings were only $67 35, only the latter amount can be credited to the employee. 9 The parties were in error on their computation by 30 cents , the amount they show being $963 50 UNITED STATES DEFENSE CORPORATION 1065 Leroy E. Fox 3rd quarter 1949 _ - - _ - _ - $79. 20 None None $79. 20 4th quarter 1949 - - - _ _ _ _ 343. 20 None None 343. 20 1st quarter 1950 -------- 151. 20 $163 00 None None 2nd quarter 1950 - _ - _ - _ _ 390 00 364 00 None 26. 00 3rd quarter 1950 _ _ - - _ - - 336. 00 240 76 None 1095. 24 4th quarter 1950 - - - - - - - 348.00 351.03 None None 1st quarter 1951-------- 414. 00 338. 80 None 75. 20 2nd quarter 1951- - - - _ _ - 208,00 190. 20 None 17. 80 Total Net Back Wages Due Leroy E. Fox------------------- $636. 64 Conclusions Upon the foregoing findings and computations I make the following conclusions: 1. That the total net back pay due Leroy E. Fox is $636.64 2. " Lane Ledford is $452.07 3. Harold Thomas is $1,154.54 4. " George H. Young, Jr., is $936.20 [Recommendations omitted from publication in this volume.] 1 The parties show this amount to be $101 24. UNITED STATES DEFENSE CORPORATION and INTERNATIONAL BROTHER- HOOD OF ELECTRICAL WORKERS, AFL, PETITIONER UNITED STATES DEFENSE CORPORATION and LOCALS 2, 2A, 2B AND 2C, INTERNATIONAL UNION OF OPERATING ENGINEERS , AFL, PETITIONER UNITED STATES DEFENSE CORPORATION and CARPENTERS DISTRICT COUNCIL OF THE CITY OF ST. LOUIS, UNITED BROTHERHOOD OF CAR- PENTERS AND JOINERS OF AMERICA , AFL, PETITIONER UNITED STATES DEFENSE CORPORATION and PAINTERS DISTRICT COUNCIL No. 2, BROTHERHOOD OF PAINTERS , DECORATORS AND PAPERHANGERS OF AMERICA, AFL, PETITIONER UNITED STATES DEFENSE CORPORATION and TEAMSTERS LOCAL 604, INTERNATIONAL BROTHERHOOD OF TEAMSTERS , CHAUFFEURS, WARE- HOUSEMEN , AND HELPERS OF AMERICA , AFL, PETITIONER . Cases Nos. 14-RC-197, 14-RC-2028, 14-RC,-.017, 14-RC-2048, and 14-RC- 2058. December 16, 195° Decision and Direction of Elections Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a consolidated hearing was held before John M. 101 NLRB No. 175.