Henry Colder Co.

National Labor Relations Board - Board DecisionsDec 4, 1970

186 N.L.R.B. 1088 (N.L.R.B. 1970)

1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Henry Colder Company and Retail Store Employees Union Local No. 444, affiliated with Retail Clerks International Association , AFL-CIO. Cases 30-CA-124 and 30-CA-167 December 4, 1970 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS FANNING, BROWN, AND JENKINS On February 24, 1967, the National Labor Rela- tions Board issued its Decision and Order in this proceeding,' inter alia, directing Henry Colder Com- pany to make Norman Walters whole for any loss of pay he may have suffered as a result of the unfair labor practices found to have been committed by Respondent against him in violation of Section 8(a)(3) and (1) of the Act. On October 8, 1969, the United States Court of Appeals for the Seventh Circuit entered its Judgment enforcing this aspect of the Board's Order. A Backpay Specification and Notice of Hearing was issued by the Regional Director for Region 30 and a hearing was held pursuant thereto before Trial Examiner Max Rosenberg on July 23 and 24, 1970, to determine the amount of backpay Respondent owed Walters. On August 24, 1970, the Trial Examiner issued his Decision finding that Walters was entitled to backpay in the amount specified in the attached Trial Examin- er's Decision. Thereafter, Respondent filed excep- tions to the Trial Examiner's Decision and a suppor- ting brief.2 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 proceeding to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in this proceeding, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner. ORDER On the basis of the entire record in this proceeding, the National Labor Relations Board hereby orders that the Respondent, Henry Colder Company, Mil- waukee, Wisconsin, its officers, agents, successors, 1 163 NLRB 105 2 Respondent's Motion to Reopen is denied Exhibit A attached thereto, even if incorporated into the record, would not alter the result in this and assigns, shall pay to Norman Walters as net backpay the amount set forth in the attached Trial Examiner's Decision. TRIAL EXAMINER'S SUPPLEMENTAL DECISION MAX ROSENBERG, Trial Examiner: On February 24, 1967, the National Labor Relations Board issued its Decision and Order in this proceedmg, 1 directing Henry Colder Compa- ny, herein called the Respondent, to make whole Norman Walters for any loss of pay he may have suffered as a result of the unfair labor practices found to have been committed by Respondent against him in violation of Section 8(a)(3) and (1) of the Act. Thereafter, on October 18, 1969, the United States Court of Appeals for the Seventh Circuit entered its Judgment enforcing in full this aspect of the Board's Order On June 22, 1970, the Regional Director for Region 30 issued a Backpay Specification and Notice of Hearing, to which Respondent filed a timely amended answer. A hearing on the pleadings was held before the Trial Examiner in Milwaukee, Wisconsin, on July 23 and 24, 1970. All parties were afforded full opportunity to examine and cross-examine witnesses and to introduce pertinent evidence. Briefs have been filed by the Respondent which have been duly considered. Upon the entire record made in this proceeding and my observation of the witnesses , including their demeanor while on the stand, I hereby make the following: FINDINGS OF FACT 1. The backpay specification During his employment with Respondent, Walters worked as a commission salesman vending appliances and furniture In computing the gross backpay for Walters, the Specification alleges that an appropriate measure of his earnings during the backpay period, which spans from January 14, 1965 through March 28, 1967, should be based upon the quarterly average earnings of four named commission salesmen who constituted a representative group and who were employed by Respondent during each quarter of the backpay period. Appendix A of the Specification sets forth the total gross quarterly earnings which Walters would have received from the Respondent absent the discrimination practiced against him. Appendix B of the Specification lists Walters interim earnings from permanent full-time employment with Thurner Heat Treating Corp., herein called Thurner, for the pertinent quarters Finally, the Specification avers that the obligation of the Respondent to make Walters whole under the Board Order and Court Judgment would be discharged by payment to him in the amount of $10,908, plus interest accrued to the date of payment pursuant to said Order and Judgment, minus the tax withholding required by Federal and State Laws. proceeding 1 163 NLRB 105 186 NLRB No. 143 HENRY COLDER COMPANY 2. Respondent's contentions Respondent does not quarrel with the method which the General Counsel has utilized in computing Walters' backpay, nor does it take issue with the correctness of the mathematics contained in the Specification. Respondent's main defense to this proceeding rests in its assertion that Walters' net backpay figure should be further abated by his interim earnings during the backpay period which were derived from employers other than Thurner. Alternatively, Respondent argues that Walters' wages would not have reached the plateau of the four commissioned salesmen whose earnings were utilized in the Specification had he continued to work for Respondent because he would not have been physically or mentally capable of performing on their level due to his other employment during the backpay period. 3. The evidence Walters was hired by Respondent in June 1964. Shortly before his discharge by Respondent on January 14, 1965, he worked 6 days a week, averaging between 45 and 48 hours each week. Following his illegal termination by Respon- dent, Walters sought and obtained a full-time job with Thurner, initially working a shift from midnight to 8 a.m which was subsequently enlarged from 11 p.m. to 8 a.m. when he was promoted to foreman This employment continued throughout the backpay period. Finding that his wages at Thurner did not measure up to those which he earned while employed by Respondent, Walters procured an additional full-time job with Zayre Corporation in April 27, 1965 In the course of his employment with Zayre Corporation, which extended until March 31, 1966, Walters worked 48 hours each week and earned a total of approximately $6,000. For approximately 3 or 4 months after March 31, 1966, he toiled solely for Thurner. However, in the third quarter of 1966, he obtained another full-time position with the Canada Dry Bottling Corp of Milwaukee during which he was paid slightly in excess of $1,300 In the fourth quarter of 1966, he relinquished his employment with Canada Dry and took an additional full-time Job with Railroad Express Agency, Inc His wages for that quarter from this source totalled approximately $2,250 In the first quarter of 1967, Walters received about $1,190 in wages from this enterprise. As chronicled hereinabove, the backpay period terminated on March 28, 1967 Walters testified without contradiction and I find that, had he not been discriminatorily terminated by Respon- dent on January 14, 1965, he would have continued in Respondent's sole employ and would have not sought outside employment because his earnings with Respondent were sufficiently adequate to support himself and his family 2 Indeed, both the Board and the Court found in the original unfair labor practice proceeding that Walters was a "crackerjack" salesman, and Henry Felker, Respondent's 2 The record shows that, from the date of his hire by Respondent in June 1964 until his separation on January 14. 1965, Walters undertook only one full-time job at an automobile service station in the last quarter of 1964 during which he earned $74 80 It is clear on this record and I find that he obtained this employment financially to tide himself over as a result of loss 1089 president, testified in this proceeding that competent salesmen "make a lot of money," adding that "They can be successful beyond your wildest dreams. I feel so strongly about that, I will argue to the death any man who says his profession is superior to this profession." Moreover, Respondent's officials testified and I find that they had no complaint regarding the quality or quantity of his work performance during the entire course of his employment Conclusions At the hearing, Respondent conceded that Walters' acquisition of work at Thurner satisfied his statutory duty to obtain substantially equivalent employment in order to mitigate Respondent's monetary liability during the backpay period As its main defense to the Backpay Specification, however, Respondent takes the position that Walters' earnings while employed by Zayre Corporation, Canada Dry Bottling Corp. of Milwaukee, and Railway Express Agency, Inc., in addition to those derived from his employment with Thurner, should be deducted from the net backpay listed therein on the ground that, in backpay parlance, they also constituted interim earnings. In support of this position, Respondent maintains that supplemental earnings, regularly acquired on a full-time basis, are to be accorded the same status as normal full-time earnings derived from the claimants prime, daily occupation, when considering their impact on gross backpay. Phrased differently, Respondent contends that the wages from secondary full-time jobs earned during the backpay period are deductible from its backpay liability, while earnings from secondary part-time, casual jobs are not. I perceive no such distinction in the governing precedent. In Miami Coca-Cola Bottling Company,3 the claimant garnered a full-time job during the backpay period. In addition, he secondarily drove a taxicab 16 hours a day on a casual, part-time basis The Board concluded that, "As the evidence shows that this [the taxicab job] was indeed supplemental earnings from employment held outside [the claimants') full working hours . . , they were properly reported but not deducted from gross backpay under the specification " (Emphasis supplied.) In The Richard W Kaase Company,4 the claimant received $20 per month from her daughter for the support of the daughter's child. The specification did not include this sum in the claimant's interim earnings. The Board observed that "This was proper, for the $20 per month constituted, in effect, money received for a secondjob [Her] supplemental earnings from this source are not deductible from gross backpay." (Emphasis supplied.) And, in Belle Steel Company, Inc,5 the discriminatee worked on Saturdays at other than his normal job. In holding that the earnings thus derived were not deductible from his backpay, the Board noted that "The Saturday work amounted to a second job or independent source of income while [he] was employed by Respondent, and which he could continue to perform after his discharge without being required to deduct the of earnings occasioned by his participation in two work stoppages called by the Charging Party in the last quarter of 1964 ' 151 NLRB 1701, 1710 4 162 NLRB 1320, 1330 135 NLRB 3178 1380 1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD compensation therefor from any amount found due in a backpay determination." (Emphasis supplied.) While the claimants in the afore-mentioned did not obtain full-time supplemental work during the backpay periods, the Board's emphasis seems clearly focused upon the secondary nature of the employment "held outside full working hours" rather than the duration of that employment. To view these decisions in any other fashion would create the ridiculous anomaly whereby an assiduous and diligent backpay claimant would be penalized for toiling a 24-hour day whereas a shirker would be rewarded. Accordingly, I find no merit in the main defense to the Specification advanced by Respondent. I therefore conclude that Walters' earnings at the Zayre Corporation, Canada Dry Bottling Corp. of Milwaukee, and Railway Express Agency, Inc. do not constitute interim earnings and that they should not be deducted from Respondent's backpay liability to him Respondent's alternative defense to the Specification is too frivolous to warrant serious or extended consideration. Respondent prays that its monetary liability to Walters should be abated in some unspecified amount because his earnings at Respondent, absent the discrimination prac- ticed against him, would not have equalled those of the four salesmen whose average earnings were utilized in the Specification. The predicate for this request is that Walters would have been so physically and mentally exhausted by dual employment that he would have been incapable of doing a good job of selling for Respondent during the backpay period. The short answer to this argument is, as I have found heretofore, that Walters would not have worked for any other employer during the backpay span had not Respondent wrongfully discharged him simply because his earnings at Respondent's store would have made secondary employment unnecessary. I conclude that this defense lacks merit. I shall therefore recommend that the Backpay Specifica- tion be adopted and that Walters be awarded the amount of net backpay set forth therein. RECOMMENDATIONS I recommend that Respondent's obligation to make whole Norman Walters shall be satisfied by payment to him of the sum of $10,908, together with interest thereon at the rate of 6 percent per annum, calculated in the manner set forth in Isis Plumbing and Heating Co., 138 NLRB 716, less any lawfully required tax withholding. I recommend that the Board adopt the foregoing findings, conclusions, and recommendations.