Gary Aircraft Corp.

National Labor Relations Board - Board Decisions

May 10, 1974

210 N.L.R.B. 555 (N.L.R.B. 1974)

GARY AIRCRAFT CORP. 555
Gary Aircraft Corporation and International Brother-
hood of Operative Potters, AFL-CIO-CLC. Cases
23-CA-3591, 23-CA-3660, and 23-CA-3671
May 10, 1974
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS FANNING, JENKINS, AND
PENELLO
On May 12, 1971, the National Labor Relations
Board issued its Decision and Order' in the above-
entitled proceeding finding that Respondent had
discharged Guadalupe R. Canales in violation of
Section 8(a)(3) and (1) of the Act. The Board's Order
directed, among other things, that Respondent offer
reinstatement to Guadalupe R. Canales and make
him whole for losses suffered as a result of this
discrimination.
On November 2, 1972, the United States Court of
Appeals for the Fifth Circuit enforced the Board's
Order.2 Thereafter, a backpay specification and
notice of hearing was issued by the Acting Regional
Director for Region 23 and a hearing was held on
September 18, 1973, before Administrative Law
Judge David S. Davidson to determine the amount of
backpay due the discriminatee.
On November 29, 1973, the Administrative Law
Judge issued his Supplemental Decision finding that
Canales was due backpay from the date of his
unlawful discharge on March 3, 1970, until he was
reinstated on May 14, 1973, less interim earnings.
Thereafter, the General Counsel and Respondent
filed exceptions to the Administrative Law Judge's
Supplemental Decision.3
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Supplemental Decision in light of the
exceptions and briefs and has decided to affirm the
rulings, findings, conclusions, and recommendations
of the Administrative Law Judge.
SUPPLEMENTAL ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Gary Aircraft
Corporation, Hondo, Texas, its officers, agents,
successors, and assigns, shall pay to Guadalupe R.
Canales as net backpay the amount awarded to him
as set forth in section IV of the Administrative Law
Judge's Supplemental Decision, which amount shall
210 NLRB No. 88
accrue interest at the rate of 6 percent per annum,
computed in the manner set forth in Isis Plumbing &
Heating Co., 138 NLRB 716. There shall be deducted
therefrom social security taxes, income tax withhold-
ing, and such other deductions as may be required,'by
the laws of the United States or State of texas.
Respondent shall also reinstate Guadalupe R.
Canales to full status in the pension fund, as if he
had not been discharged, and pay into such pension
fund Respondent's share of the contributions called
for under the pension plan based on the gross annual
earnings that Canales would have earned during the
backpay period, as set forth in section IV of the
Administrative Law Judge's Supplemental Decision.
1190 NLRB 306.
2 468 F.2d 562 (C.A. 5, 1972).
s The Administrative Law Judge inadvertently failed to include in his
recommended Order an amendment to the backpay specification, made
pursuant to an agreement of the parties at the hearing , that Respondent is
obligated to reinstate Canales to its pension fund. We shall amend the
Order to correct this omission.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
DAVID S. DAVIDSON, Administrative Law Judge: On
May 12 , 1971, the Board issued its Decision and Order in
this case 1 directing Respondent , inter alia, to make whole
Guadalupe R. Canales for loss of earnings as a result of his
discharge on March 13, 1970, which the Board found
violated Section 8(a)(3) and (1) of the Act. Thereafter the
United States Court of Appeals for the Fifth Circuit
enforced the backpay provisions of the Board's Order.2 A
controversy having arisen over the amount of backpay due
under the terms of the order, on July 31, 1973, the Acting
Regional Director issued a backpay specification and
notice of hearing . On August 15, 1973, Respondent filed its
answer.
On September 18, 1973, a hearing was held before me at
San Antonio, Texas. At the conclusion of the hearing
counsel for the General Counsel argued orally on the
record, and the parties were given leave to file briefs which
have been received from the General Counsel and
Respondent.
The issues are whether Canales made a reasonable effort
to secure interim employment during the backpay period;
whether he voluntarily removed himself from the labor
market for a portion of the backpay period; and whether
certain travel expenses should be deducted from his
interim earnings.3
Upon the entire record in this case, including my
observation of the witnesses and their demeanor, I make
the following:
i 190 NLRB 306
2 468 F.2d 562.
3 At the hearing Respondent amended its answer to eliminate other
issues initially raised therein.
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS AND CONCLUSIONS each, while the four larger employers which he did not visit
employed from 25 to 100 employees.
Canales testified that in mid-April, 1970, he spoke to his
brother-in-law, who was a supervisor at Universal Rundle
about finding a job there. His brother-in-law told him that
there were then "so many" applications that Canales would
have to put in an application. His brother-in-law said he
would see if he could get Canales an application but never
brought one to him.
During the period between Canales' discharge on March
13, 1970, and the time he started work for South Texas Tire
Fleet on August 7, 1970, Universal Rundle hired at least
two employees in the labor pool.5 From 1970 through the
first part of 1972, the city of Hondo hired from 20 to 25
employees for various jobs including heavy equipment
operators, policemen, office clericals, and laborers. About
eight laborers were hired during that period, but there is no
evidence to show whether any of them were hired before
August 7, 1970. There are no hiring requirements for office
clerical or labor jobs although no man has ever been hired
as an office clerical. There is no evidence as to hiring or the
availability of employment elsewhere in Hondo while
Canales was unemployed. However, there is evidence that
unemployment was substantial in the area.
Respondent concedes that it has the burden to show that
Canales did not make a reasonable effort to obtain interim
employment after his discharge by Respondent .6 It
contends that it has met this burden because Canales did
not apply for work with any of the four largest employers
other than Respondent in Hondo, because he named only
small employers with few jobs as places where he applied,
because his registration with the Texas Employment
Commission did not constitute evidence of an effort to
obtain interim employment, and because he found employ-
ment only as his unemployment compensation was about
to expire.
There is some reason to wonder why Canales failed to
visit any of the larger employers in Hondo if he was
diligently seeking employment. Yet apart from the size of
these employers, there is no evidence to show that Canales
had any reason to believe that any of them had work
available. There is no showing that any of them were
advertising for help or even seeking or accepting applica-
tions at the time Canales needed work. Apart from the
testimony that the city of Hondo hired laborers and
clerical employees without any qualifications, there is no
evidence as to what qualifications, if any, were required by
other employers and whether Canales met them.? Although
Universal Rundle may have hired a few employees before
Canales found work, in April his brother-in-law told him
there were many applications on file, and never brought
him one thereafter as he indicated he would try to do. To
be sure Canales could have pursued the matter independ-
ently, but from his brother-in-law's response and inaction
before the date of an employee roster on which his testimony was based.
6 See Mastro Plastics Corporation, 136 NLRB 1342, 134647 , enfd. as
modified 354 F.2d 170 (C.A 2, 1965), cert . denied 384 U.S. 972 (1966).
r Although the record does not show Canales ' exact age, it shows that IK
was marred in 1940 and was in all likelihood close to 50 at the time of lie
discharge
1. CANALES' EFFORTS TO FIND INTERIM EMPLOYMENT
Guadalupe Canales was discharged from his job as a
supply warehouseman4 by Respondent on Friday, March
13, 1970. He remained unemployed until August 7, 1970,
when he started to work for South Texas Tire Fleet. He
remained there until reinstated by Respondent on May 14,
1973.
Canales testified that the week after his discharge he
started to look for work and went to several places in
Hondo, Texas, where Respondent's plant is located and
where he then was living. Canales named as places that he
visited "Western Auto Store, White's Store, Mummie's
Hatchery, Ranch Store, G & M Store, and others." He did
not apply for any particular job, but applied for whatever
might be open. All but one of the places named by Canales
was a retail establishment ; the other was wholesale.
Canales testified that during that week or the next week he
also went to San Antonio to check the Civil Service register
for a civilian position. He visited San Antonio monthly
thereafter for that purpose as new lists came out.
Canales also registered with the Texas Employment
Commission and applied for unemployment compensation.
As the TEC has no permanent office or representative in
Hondo, Canales waited until a TEC representative came to
Hondo about 2 weeks after his discharge, and registered at
that time , signing a single application which stated, "I
hereby register for work and file notice of my unemploy-
ment and request a determination of my benefit rights
under the Texas Unemployment Compensation Act."
Thereafter Canales reported approximately every 2 weeks
when the TEC representative was in Hondo. Canales was
advised by the TEC representative that he had to go out
and seek work affirmatively, and each time that he
reported he was required to fill out a form showing the
places he had visited seeking work as a condition of
receiving unemployment compensation. Canales denied
that the TEC representative ever told him that the TEC
would be unable to seek work for him because of the
location of Hondo. However, the TEC never referred him
to a job, and Canales ultimately found his job with South
Texas Tire Fleet through friends.
Canales testified that he was ready and willing to look
for work and did look for work during the time between his
jobs. He testified that at the places he named he looked for
any type of work they would give him. Canales conceded
that he never applied for employment at Universal Rundle,
Chapman Gram, the city of Hondo, or the Medina Utility
District, which with Respondent are the five largest
employers in Hondo, a city with a population of 5,487 at
the last census . Canales conceded that the places where he
applied for work only employed from 2 to 4 employees
4 The initial Decision in this case states that Canales had worked at six
different jobs while employed by Respondent, but describes only one of
them
5 The employees at Universal Rundle were represented by the Union
which sought to represent Respondent's employees Its representative, Fidel
Sanchez , testified that two employees were hired in June 1970, one in
Anput, and that others might have been hired during that period who quit
GARY AIRCRAFT CORP.
it was not unreasonable to conclude that further efforts
would be futile.
Of course, Canales' failure to visit the larger employers
does not stand alone . He visited five named employers and
"others" during the week after his discharge and made
efforts to seek employment thereafter. He also went to San
Antonio soon after his discharge and monthly thereafter to
check Civil Service lists for employment opportunities.
While Respondent denigrates these efforts, it did not cross-
examine Canales as to the identity of the "others" he
visited or his efforts to find employment following the
week after his discharge. Its contention must be rejected
that the trips to San Antonio reflect no effort to find work
because Canales testified merely that he looked at the list
and never filed an application. Absent some showing that
there were jobs listed for which Canales was qualified and
should have applied, the presumption is that Canales did
not read the lists out of idle curiosity.
Moreover, despite Respondent's contrary contention,
Canales ' registration with the TEC is also evidence of
effort to seek interim employment. While Respondent
avers that the TEC provided no employment service for
registrants at Hondo, there is no evidence in the record to
establish that fact, and the mere fact that the TEC
representative visited Hondo every 2 weeks does not
warrant the inference that TEC did nothing to refer
applicants to jobs at Hondo. Mail and other means permit
communication in the absence of a representative in
Hondo, and face-to-face communication even every other
week is not inconsistent with job referral. Indeed, the card
which Canales was given on which to record his visits to
the TEC office had printed on it "Any Texas Employment
Commission office can help you find a suitable job."
Moreover, Canales' application specifically stated that he
applied for work, and each time he reported he was
required to show where he had sought work in the interim.
On the record evidence there is no basis to conclude that
Canales' visits to the TEC related only to collection of
unemployment compensation and prove nothing as to his
efforts to seek employment.
Finally, there is no record evidence to support Respon-
dent's assertion that one must judge the sincerity of
Canales' efforts in light of the fact that his unemployment
compensation ran out concurrent with his finding a job.
Respondent concedes that the record shows only that
Canales applied for and received unemployment compen-
sation . Respondent asserts in its brief that the maximum
period of benefits in Texas is 26 weeks, that Canales was
disqualified from receiving benefits for 6 weeks, and that
he received them for 20 weeks dating from his discharge, so
that they ran out shortly before he started to work at South
Texas Tire Fleets Even if notice is taken of the maximum
period of benefits in Texas, there is simply no record
support for the remaining assertions, and they cannot be
relied on as a basis for decision.
On the light of the above I conclude that Respondent has
failed to sustain its burden of proving that Canales did not
8 The card kept by Canales on which his visits to the TEC representative
were recorded shows that he last reported on August 6, 1970, but it does not
show when his payments started or stopped.
s Apart from the fact that the specification and record do not show how
make a reasonable effort to find intenm employment.
Although Canales did not visit the larger employers in
Hondo, there is no evidence apart from their size to show
that he had reason to do so, and the evidence shows
otherwise that he made regular efforts through visits to
other employers, through monthly trips to San Antonio,
and through registration with the TEC to seek employ-
ment. Accordingly, I find that Canales was not disqualified
from receiving backpay between March 13 and August 7,
1970, because of any deficiency in his efforts to seek
interim employment.
II. CANALES' ALLEGED UNAVAILABILITY FOR
EMPLOYMENT
Shortly after Canales was discharged he left Hondo and
visited his sister for 2 weeks at Dilley, Texas. Dilley is
about 70 miles from Hondo. There is no evidence that
Canales made any effort to secure employment in the
Dilley area while he was there. Although the exact time of
this visit is not established in the record, Canales was
discharged on a Friday and his testimony as to his efforts
to find work, his visit to San Antonio, and his registration
with the TEC indicates that he did not go to Dilley until at
least 2 weeks after his discharge. While employees are not
obligated to begin their search for employment immediate-
ly upon discharge, Canales did start to seek employment in
the Hondo area and looked for at least 2 weeks before
leaving to visit his sister in Dilley. In the absence of
contrary evidence, Canales' testimony that he went to visit
his sister in Dilley warrants the inference that the purpose
of the trip was not to seek employment. I find therefore
that while in Dilley he temporarily removed himself from
the labor market and lost his eligibility to receive backpay
for that period of time. As it appears that Canales went to
Dilley shortly after his first visit to the Texas Employment
Commission representative on April 2, 1970, I find that a
deduction for 2 weeks pay should be made from the gross
backpay for the second quarter of 1970. For this purpose, it
will be assumed that gross backpay was evenly distributed
over that quarter, and the gross backpay for the quarter
will be reduced by two-thirteenths.
During the period that Canales worked for South Texas
Tire Fleet, company records show that he missed work on
May 18, September 23, and December 17, 1972, and
March 15, 1973. Although Canales testified that he
believed he only missed work once or twice, I rely on the
records as more accurate than his memory m this regard.
The General Counsel appears to concede that gross
backpay should be reduced for these absences and I so find
to the extent that Canales would have been working for
Respondent on these dates if he had not been discharged.
However, the backpay specification does not afford
sufficient basis for determining the amount of backpay
attributable to those days when Canales was not available
for employment.9 Accordingly, it will be left to the
Regional Director to calculate the precise amount, if any,
to be deducted from Canales' gross backpay for the day
many days a week Canales' replacement worked, two of the dates on which
he was absent from South Texas Tire Fleet were a Saturday and a Sunday,
and it is not clear whether he would have worked for Respondsat an &a
days he was absent from his interim job.
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
missed in each of the quarters in which these dates fall
consistent with the above.
III. TRAVEL EXPENSES
The job obtained by Canales in August 1970 was located
in Devine, Texas, some 21 to 22 miles from where Canales
lived. Before his discharge by Respondent Canales drove I^
1/2 to 2 miles each way to work each day. Except for the
last 3 months of 1970, when Canales' car did not operate,
he drove his car back and forth to work each day. During
the last quarter of 1970, he paid various people $2 a day to
drive him to and from work.
On February 7, 1972, Canales moved from Hondo to
Pearsall, Texas. Pearsall was also about 21 to 22 miles from
his job at Devine, but was considerably further from
Hondo. Immediately before the move Canales had been
sharing a small house with a friend. At the time of the
move Canales remarried, and it became necessary for him
to find a new place to live. Canales sought housing in
Hondo, Devine, and Pearsall but was unable to find
anything he could afford closer to his work. After moving
to Pearsall, Canales sought to find housing closer to his
work but he was unsuccessful.
In the backpay specification the Regional Director
deducted from Canales' interim earnings as expenses 10
cents a mile for the difference between the distance
traveled by Canales to reach his work at his place of
interim employment and the distance he had traveled to
reach work from his home before his discharge. Respon-
dent contends that this figure should be reduced because
his actual expenses were not 10 cents a mile and because
after February 7, 1972, Canales' actual expenses were less
than what they would have been if he had still been
working for Respondent.
With respect to the proper rate for reimbursement, for
the period that Canales drove his own car 10 cents a mile is
a reasonable figure to use as a basis for determining his
commuting expenses. It has been commonly used in
backpay proceedings to reflect car operating expenses as
well as for other purposes. However, as during the last
quarter of 1970 Canales paid others $2 a day for
commuting expense, the deduction for that quarter should
be based on his actual expense, or $120 rather $228 as
claimed in the specification. 10
With respect to the deduction for travel expense after
February 7, 1972, there is no question that if Canales had
been working for Respondent and had moved to Pearsall
he would have traveled substantially further each day to
reach Respondent's plant than he traveled to reach his job
at Devine. The evidence also shows that the occasion for
his move was unrelated to his employment. Rather because
he remarried, he would have found it necessary to move at
that time wherever he was working. In these circumstances,
it cannot be said that after February 7, 1972, Canales
would have continued to travel only 1-1 /2 to 2 miles a day
to work if he had not been discharged. As Canales would
have moved in any event, I find that after February 7,
1972, Canales did not travel any additional distance to
to The specification is based on the assumption that Canales worked 5
days a week for 12 weeks dunng this quarter As Respondent does not
dispute these assumptions and it appears that Canales paid $2 a day for
reach his interim employment above that which he would
have traveled to reach Respondent's plant. Accordingly, I
find that that travel expenses should not be deducted from
Canales' interim earnings after that date . Therefore, the
deduction for travel expenses for the first quarter of 1972
will be reduced to $95,11 and deductions for travel
expenses in subsequent quarters will be eliminated.
IV. AMENDED BACKPAY COMPUTATION
As a result of stipulations at the hearing it was agreed
that from Canales' net backpay $602 should be deducted
for payment to Respondent 's pension fund and that $58
which was received by Canales at the time of his discharge
as an accrued vacation payment should be deducted as he
would otherwise be reimbursed twice for it.
In addition, in accord with section II, above, Canales'
gross backpay for the second quarter of 1970 has been
reduced by $174 to reflect the period that Canales was
visiting his sister in Dilley. In accord with section III, the
deduction for travel expenses in the fourth quarter of 1970
has been reduced to $ 120, the deduction for travel expenses
for the first quarter of 1972 has been reduced to $95, and
deductions for travel expenses for the subsequent quarters
have been eliminated.
These changes result in the following amounts of
backpay to which Canales is entitled;
Gross Interim Net
ctr. • Back a arninlys Dads . lsac ay
70-1 $ 210 $ 0 $ 0 $ 210
70-2 956 0 0 956
70-3 1,131 446 161 846
70-4 1,236 945 120 411
71-1 1,052 783 247 516
71-2 1,685 1,026 247 906
71-3 1,197 781 247 663
71-4 1,512 1,085 247 674
72-1 1,179 989 95 285
72-2 1,645 1,333 0 312
72-3 1,405 1,033 0 372
72-4 1,366 1,065 0 301
73-1 1,384 987 0 39'
73-2 632 521 0 _Ill
Total $6,960
Less Stipulated Deduction _ 660
Net Backpay $6,300
As a consequence of the amendment of Respondent's
answer at the hearing an additional amount of backpay
due Canales remains to be computed by the Regional
Director to reflect the difference between what Canales
was paid upon his reinstatement and what his wage rate
should have been as alleged in the complaint and admitted
in the amended answer. Furthermore, as a consequence of
the findings in section II, above, as to Canales ' absences
transportation dunng this quarter , the correct deduction is $120.
11 Based on 190 miles travel a week for 5 weeks.
GARY AIRCRAFT CORP. 559
from work during the second, third, and fourth quarters of
1972 and the first quarter of 1973, it is left to the Regional
Director to calculate the amounts, if any, to be deducted
from his backpay during those quarters.
RECOMMENDED ORDER 12
Upon the basis of the foregoing fmdings and conclusions
it is ordered that Respondent Gary Aircraft Corporation,
its officers , agents , successors , and assigns , shall pay to
Guadalupe R. Canales as net backpay the amount
awarded to him as set forth in section IV of the Decision,
above, which amount shall accrue interest at the rate of 6
percent per annum, computed in the manner set forth in
,Isis Plumbing & Heating Co., 138 NLRB 716. There shall
be deducted therefrom social security taxes, income tax
withholding, and such other deductions as may be required
by the laws of the United States or the State of Texas.
12 In the event no exceptions are filed as provided by Sec 102.46 of the 102.48 of the Rules and Regulations , be adopted by the Board and become
Rules and Regulations of the National Labor Relations Board, the findings, its findings , conclusions , and order , and all objections thereto shall be
conclusions and recommended Order herein shall, as provided in Sec . deemed waived for all purposes.