Herman Brothers Pet Supply, Inc.

National Labor Relations Board - Board Decisions

Jan 29, 1965

150 N.L.R.B. 1419 (N.L.R.B. 1965)

HERMAN BROTHERS PET SUPPLY, INC. ; ETC. 1419
Herman Brothers Pet Supply , Inc.; and Francis Herman, d/b/a
Herman Brothers Bird Products ; and Leon Herman, d/b/a
Herman Brothers Seed Merchants ; and Julius J. Herman and
Joseph M. Gondek. Case No. 7-CA-3376. January 29, 1965
SUPPLEMENTAL DECISION AND ORDER
On September 27, 1962, the National Labor Relations Board
issued a Decision and Order in the above-entitled case 1 finding,
inter alia, that the Respondents had discriminated against six named
employees in violation of Section 8 (a) (3) and (1) of the National
Labor Relations Act, as amended, and directing that the Respond-
ent offer immediate and full reinstatement to these employees and
make them whole for any loss of pay suffered by reason of the
Respondents' discrimination.
On December 3, 1963, the United States Court of Appeals for the
Sixth Circuit entered its decree enforcing in full the Board's Order,
including the reinstatement and backpay provisions.2
On April 28, 1964, the Board's Regional Director for Region 7
issued and served on the parties a backpay specification and notice
of hearing, and the Respondents filed an answer thereto. Pursuant
to notice, a hearing was held before Trial Examiner Leo F. Lightner
for the purpose of determining the amounts of backpay due. On
November 3, 1964, the Trial Examiner issued the attached Supple-
mental Decision, awarding specific amounts of backpay to the dis-
criminatees. Thereafter, the Respondents filed exceptions to the
Trial Examiner's Supplemental Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Fanning, Brown, and
Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.3
1138 NLRB 1087.
2 325 F. 2d 68.
3 Respondents ' exceptions relate solely to the Trial Examiner 's revocation of a subpoena
duces tecum served on the Michigan Employment Security Commission . The subpena,
issued at the request of Respondents , directed production of records of the commission
pertaining to the registration , referrals, and compensation payments to five of the six
discriminatees involved herein. The Trial Examiner revoked the subpena upon motion
of an assistant attorney general of the State of Michigan on grounds that a statute
of the State of Michigan prohibited the commission from disclosing the information
sought. As the Board has held that subpenas directed to State officials for the produc-
tion of similar material may properly be quashed upon such a showing that State law
prohibits disclosure of the information, the Trial Examiner 's ruling is hereby affirmed.
Cashman Auto Company, 109 NLRB 720, 721, enfd. on other grounds 223 F. 2d 832
(C.A. 1). Although the First Circuit, in enforcing Cashman, questioned the Board's
authority to pass on the question of privilege, we adhere to our position in that case
with due respect to the contrary view of the circuit court of appeals . See also Car-
penters Local Union $k 224, United Brotherhood of Carpenters and Joiners of America,
AFL-CIO ( Peter Kiewit Sons Co. ), 132 NLRB 295 , 334-336, and case cited at 336.
150 NLRB No. 145.
1420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The rulings are hereby affirmed. The Board has considered the
entire record in this case, including the Trial Examiner's Supple-
mental Decision, the exceptions, and the brief, and hereby adopts
the findings, conclusions , and recommendations of the Trial
Examiner.
ORDER
On the basis of the foregoing Supplemental Decision and the
entire record in this case, the National Labor Relations Board, pur-
suant to Section 10(c) of the National Labor Relations Act, as
amended, hereby orders that the Respondents, Herman Brothers
Pet Supply, Inc.; Francis Herman, d/b/a Herman Brothers Bird
Products; Leon Herman, d/b/a Herman Brothers Seed Merchants;
and Julius J. Herman, their officers, agents, successors, and assigns,
shall pay to the employees involved in this proceeding, as net back-
pay herein determined to be due, the amounts set forth opposite
their names in the Concluding Findings and Recommended Order of
the Trial Examiner.
TRIAL EXAMINER 'S SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
This supplemental proceeding to determine backpay, with all parties represented,
was heard before Trial Examiner Leo F . Lightner in Detroit, Michigan , on June 17,
1964 , on the specifications of General Counsel , as amended,' and the answer of
Herman Brothers Pet Supply , Inc., Francis Herman , d/b3a Herman Brothers Bird
Products , Leon Herman , d/b/a Herman Brothers Seed Merchants , and Julius J.
Herman , herein collectively referred to as Respondents , as amended . 2 Generally,
the issues litigated were the amounts of backpay due, if any , from the Respondents
to various discriminatees . All parties were afforded full opportunity to examine and
cross-examine witnesses , to introduce evidence , to present argument , and thereafter
to file briefs . Briefs filed by the General Counsel and Respondents have been care-
fully considered.
Upon my observation of the witnesses , and upon consideration of the pleadings,
testimony, exhibits , and entire record in the case , I make the following:
FINDINGS AND CONCLUSIONS
Background and Pleadings
On September 27, 1962, the Board issued its Decision and Order , reported in 138
NLRB 1087 , directing , inter alia, that the Respondents make whole Leonard Biegan-
ski, Leonard Calcaterra , Anthony Licausi, Joseph Gondek , Walter Wilson , and Edna
Wilson , whom the Board found had been denied employment by reason of the dis-
criminatory conduct of Respondents . On December 3, 1963 , upon petition for
enforcement , the United States Court of Appeals for the Sixth Circuit entered its
decree enforcing the Board 's Order in toto, N.L .R.B. v. Herman Brothers Pet Supply,
Inc., et al., 325 F. 2d 68.
No issue has been raised by the Respondents in their answer in regard to the
accuracy of the formula used in the specification to determine the amounts of back-
gay due .3 The formula is in conformity with Board decisions.
1 A backpay specification and notice of hearing was issued on April 28, 1964, and
amended, as set forth infra, during the hearing.
2 Amendments to the answer by way of stipulation and otherwise are set forth infra.
8 In substance the formula provides as follows:
(1) The gross backpay due each of the discriminatees is the wages each would have
earned but for the discrimination against him or her.
HERMAN BROTHERS PET SUPPLY) INC.; ETC. 1421
The Issue as to Whether Claimants Willfully Incurred Loss of Earnings
Respondents assert the discriminatees did not make the requisite effort to obtain
other employment in the backpay period. The undisputed testimony of Anthony
Licausi, Leonard Calcaterra, Joseph Gondek, and Edna Wilson 4 was that, after the
respective layoff of each, they promptly applied to the Michigan Employment Secu-
rity Commission for, and obtained, unemployment benefits. I find it unnecessary to
detail the testimony of each to the effect that they did receive full benefits, where
applicable, that they were required to report the efforts each made to obtain employ-
ment, that they made such efforts, as recited in their testimony, and so reported to
the commission. Illustrative of this is the credited testimony of Edna Wilson that
she was required to report each week the names of two employers from whom she
had sought work.
Respondents produced no evidence of probative value that any of the discriminatees
withdrew from the labor market or failed to make the requisite efforts to obtain other
employment during the backpay period. The record is replete with evidence to the
contrary.5 Accordingly, I find no merit in Respondents' contention.
The claim of each discriminatee and Respondents' defense, if any, relative to each
is set forth, as follows:
Anthony Licausi, Leonard Bieganski, Joseph Gondek, Walter Wilson
It is undisputed that Licausi's backpay period commenced on June 19, 1961, and
terminated on October 28, 1962, both dates inclusive; no calendar quarter expenses
are claimed; and Licausi had certain interim employment earnings, as set forth in
the specifications.
It is undisputed that Bieganski's backpay period commenced on June 19, 1961, and
terminated on October 17, 1962, both dates inclusive; Bieganski had certain interim
employment earnings as set forth in the specifications; the mileage expenses alleged
in the specification for Bieganski are accurate.
It is undisputed that Gondek's backpay period commenced July 1, 1961, and termi-
nated on October 17, 1962, both dates inclusive; Gondek had certain interim employ-
ment earnings as set forth in the specifications; and the expenses claimed by Gondek
in the first quarter of 1962 are accurate .6
It is undisputed that Wilson's backpay period commenced on July 1, 1961, and
terminated on August 31, 1961, both dates inclusive; no calendar quarter expenses are
claimed; and Wilson had certain interim employment earnings as set forth in the
specifications.
Respondents, by answer, denied knowledge of the accuracy of the interim earnings
and net backpay claimed on behalf of Licausi, Bieganski, Gondek, and Walter Wilson.
It is well established by Board and court decisions that the burden of proving diminu-
tion is upon Respondents. No evidence was produced by Respondents, in addition to
the admissions of General Counsel, relative to the interim earnings of each.
(2) An appropriate measure of the gross backpay due each of the discriminatees is a
projection of the average weekly earnings of each discriminatee, while in the Respond-
ent's employ during the 52-week period beginning March 7, 1960, and ending March 4, 1961.
(3) In computing the average weekly earnings neither vacation pay nor earnings
received for working less than 24 hours in a normal workweek of 40 hours are included.
(4) Quarterly gross backpay for each discriminatee is determined by multiplying the
average weekly earnings by the number of week's the discriminatee would have, worked
during each quarter of the backpay period.
(5) Calendar quarter wages earned by each of the discriminatees during their respec-
tive backpay periods are interim earnings. • 1
(6) Calendar quarter net interim earnings is the difference between calendar quarter
interim earnings and calendar quarter expenses , if any. -
(7) Calendar quarter net backpay due each of the discriminatees is the difference
between calendar quarter gross backpay and calendar quarter net interim earnings.
(8) The total net backpay due each discriminatee is the sum of the calendar- quarter
amounts of net backpay due each discriminatee.
6 Leonard Bieganski and Walter Wilson were not called as witnesses.
6 The testimony. of Frank Schrader, an employee of Respondent Frank - Herman, that
Gondek advised Schrader, shortly after Gondek was laid off , that Gondek did not "have
to look for a job. He can live under Herman ," was denied by Gondek. I credit Gondek.
6 General Counsel acknowledged that expenses claimed in the second , third, and fourth
quarters of 1962 were not allowable, since the net interim earnings of Gondek in those
quarters exceeded the amounts of gross backpay Gondek would have earned, in each
quarter, in employment by Respondent.
1422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, I find the gross and net backpay and interim earnings of the four
named, by calendar quarters, are the amounts set forth in the specifications and that
the total backpay due each is:
Licausi_______________ $3, 831.09 Gondek______________ $3,506.53
Bieganski 7------------ 2, 058.'61 Walter Wilson_-_______ 723. 39
Leonard Calcaterra
It is undisputed that Calcaterra's backpay period commenced on June 19, 1961,
and continued through October 17, 1962, both dates inclusive; Calcaterra had certain
interim earnings as shown in the specifications. '
General Counsel contends and Respondents deny that' certain expenses listed in
the specifications are allowable deductions from interim earnings, in order to arrive
at net backpay. The alleged expenses are in three categories (1) cost of uniforms,
(2)- union dues, and (3) mileage or transportation expense. These contentions are
next considered.
Calcaterra, whose testimony is undisputed and is credited, asserted that during the
backpay period he was employed by Burns Detective Agency, commencing full time
in October 1961. Calcaterra first worked at Spartan Department Store. However,
3 weeks after his employment commenced, according to Calcaterra, the Burns Agency
lost its contract with Spartan and he was consequently laid off. Thereafter in
December 1961 Calcaterra was recalled for part-time assignments, which continued
until he was placed on a full-time assignment at Dana Corporation in June 1962.
Calcaterra asserted that he was advised, inferentially by Superintendent Grace,
when he was hired by Burns, that he would be required to purchase a guard uniform,
which he described as similar to a policeman's uniform. While Calcaterra asserted
that the total paid for one uniform and a pistol belt totaled $63.66, the claim asserted
by General Counsel, documented by payroll deduction records, is in the amount of
$60.66. It appears undisputed that Calcaterra was not required to wear a uniform
while working for Respondents. Respondents introduced no evidence at variance
with Calcaterra's assertion that he was required to obtain a uniform as a condition
of employment by Burns.
In its original decision,in this case, 138 NLRB 1087, 1096, the Board followed its
customary practice of providing that the discriminatees were to made whole "by pay-
ment to [each] of a sum of money equal to the amount [each], would have earned
from the date of the discrimination to the date of the offer of reinstatement, less net
earnings...." The Board in an early case 8 defined its use of the term "net earnings."
The Board said, in Crossett, that net earnings afe the earnings remaining after deduc-
tion of expenses "such as for transportation, room, and board, which they would not
have incurred had they continued to work for the Respondent and not been forced,
by virtue of Respondent's unfair labor practices, to leave their homes." The Board
also said "to the extent that all such expenses diminish the earnings of the employees
whom we have found were discriminated against during the respective periods of
discrimination, such earnings shall not be deducted in computing the loss of pay said
employees may have suffered."
The Supreme Court has noted, with approval, the action of the Board in Crossett
(Phelps Dodge Corp. v. N.L.R.B., 313 U.S.,177, 197, footnote 7). The Board has
asserted that it has "consistently followed this definition of net earnings." Deena
Artware, Incorporated, 112,NLRB 371, 375.9
While many of the Board cases treat only with transportation expenses, moving
expenses, and rentals where employees have been evicted from company-owned hous-
ing, the Board has approved deduction for other expenses such as "feed and black-
smith services in connection with plowing." 10 In East Texas, supra, at 1341, the
Board said 'In defining the term 'net earnings' in the Crossett Lumber case, the Board
held that only extra or additional expenses incurred by the claimants while in search
of, or during, their interim employment-expenses which reduced their gross interim
earnings-are deductible therefrom in computing their net earnings."
7 While it is noted that there is a transposition of the net backpay figure from, $874.77
to $847.77 in the third quarter of 1961 In the. specification, relative to Bieganski, the total
net backpay set forth in this portion of the specifications is accurate. ,
s Crossett Lumber Company, 8 NLRB 440, 497.
e See also Brown 'and Root, Inc, 132 NLRB 486, 504; East Texas Steel Castings Com-
pany, In,,, 116 NLRB 1336, 1341.
10 Harvest Queen Mill & Elevator Company, 90 NLRB 320.
HERMAN BROTHERS PET SUPPLY, INC.; ETC. 1423
It thus appears, and I find, that Calcaterra is entitled to deduct the cost of the
uniform, a requisite to his employment , from the interim earnings , in the total amount
of $60.66.
The specifications include as an additional expense item , deducted from interim
earnings , initiation fees and union dues in the amounts of $10 and $40, respectively.
In West Texas,11 the Board denied an allowance for union dues as "expenses." It
is clear that this denial was predicated on the fact that the State of Texas has a law
prohibiting "closed shops" ( union membership agreements ). Inferentially , it appears
that the Board held that the payment of union dues, in that case, was voluntary' and
not a requisite expense. In General Engineering,12 the Board held that union dues
paid to a local which had referred the discriminatee to employment , and long-distance
telephone calls to the union, were reimbursable items of expense , deductible from
interim earnings.
It is undisputed that the facts in the instant case are that there was in existence a
union-security clause between the employer of Calcaterra and the union representing
the guards , which provided, inter alia : ( 1) that employees were not required to join
the Union until 30 days after their employment date, (2) that the agency would not
be required to discharge any employee in any instance where it would result in a viola-
tion of the Labor Management Relations Act, 1947, or any State law, and (3) for
the payment of an initiation fee and dues.13
Respondents contend that no deduction should be permitted for union dues.
Respondents ' contention is predicated on the testimony of Calcaterra that joining the
Union was a condition of employment and that the union contract was illegal. I
have found, supra, that the union contract was not unlawful . Respondents also urge
that the Board lacks power to order reimbursement of union dues.14 Respondents
confuse a so-called Brown-Olds remedy (United Association of Journeymen &
Apprentices of Plumbing, etc, 115 NLRB 594), where the Board found such pay-
ments resulted from coercion and ordered a union or an employer to refund dues
and assessments , as part of the remedy. These cases are inapposite . I find no merit
in this contention.
Additionally, Respondents urge that this backpay proceeding arises out of the
liquidation of Herman Brothers Pet Supply, Inc., and its failure to bargain with the
Union. The Respondents urge that if that Company had not been dissolved, if it
had remained in business and had bargained with the Union, Calcaterra would have
been required to join the Union and to have paid union dues. Consequently, urge
the Respondents , no damage , by way of dues payments , ensued . This defense is
wholly speculative. The fact remains that by reason of Respondents ' unfair labor
practices , Calcaterra was required to use his best efforts to mitigate damages by
accepting employment where he could find the same , and did so. The sole question
is his entitlement to an offset for resultant requisite expense. I find no merit in
Respondents ' contention.
Accordingly, I find, for the reasons enunciated , that the initiation fee and dues are
an allowable deductible expense.15
The specifications recite a mileage expense to and from Dana Corporation in the
second, third, and fourth quarters of 1962. During the hearing it was agreed that the
listed 30 miles , round trip, per day was erroneous and that the distance actually is 27
miles, round trip , per day. The distance Calcaterra would have traveled from the
place he was then living to Respondents ' plant, had he continued employment, was
11 West Texas Utilities Company, Inc., 109 NLRB 936, 938.
General Engineering , Inc, et at., 147 NLRB 936.
13I find it unnecessary to make any finding on Calcaterra' s recitation that he was
advised by Superintendent Grace that he would not have received a job if he had not
joined the Union at the time he applied for the job. The fact is that the union-security
clause in the union agreement is not violative of the provisions of the Act. The further
fact is that while Calcaterra commenced working in October 1961 i o.expense for, union
initiation fees or dues is claimed prior to the first. quarter of 1962. -
14 Respondents rely, on the holdings in Local 60 , United Brotherhood of Carpenters and
Joiners of America (Mechanical Handling Systems ) v. N;L R.B., 365 U.S. 651 , and Inter-
national Union, Progressive Mine Workers of America ( Quality Coal Corporation) v.
N L.R B.,-319 F. 2d 428 (C A 7).
15 In this connection it is noted that the monthly payment of dues for the months of
March and April 1962, were both deducted from the pay of Calcaterra in April 1962.
Since Calcaterra had interim earnings , from which expenses could be deducted in both
the first and second quarters of 1962, I find the application of this portion of the expense
to the second quarter , when it was actually paid, of no consequence.
775-692-65-voL, 150-91
1424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
estimated at approximately one-half mile per round trip. Accordingly the additional
mileage claimed by reason of interim employment, for the purpose of determining
additional expense allowable as a deduction from interim earnings, is 26'/2 miles per
day. The claim is predicated on the number of days worked and computed at 8 cents
per mile. The Board has found a claim of 10 cents per mile a reasonable charge for
the use of a discriminatee's car in commuting to and seeking employment. General
Engineering, Inc., supra.
I find the claim for mileage, as modified and found herein, is a reasonable and
allowable expense to be deducted from interim earnings in determining net interim
earnings.
Accordingly, I find Calcaterra's gross and net backpay by calendar quarters is as
follows:
Year and quarter Weeks Gross
backpay
Interim
earnings
Net
backpay
1961, 2d-------------------------------------------------------- 2 $153 04 $36 00 $117 04
3d-------------------------------------------------------- 13 994 76 0 994 76
4th------------------------------------------------------- 13 994 76 328 78 665.98
1962,1st-------------------------------------------------------- 13 994 76 307 96 686 80
2d-------------------------------------------------------- 13 994 76 528 70 466 06
3d-------------------------------------------------------- 13 994 76 840 78 153 98
4th------------------------------------------------------- 26 198 95 152 84 46 31
Total------------------------------------------------- 3,130 93
Edna Wilson
It is undisputed that Edna Wilson's backpay period commenced on July 1, 1961.
General Counsel contends that the reinstatement of Edna Wilson on October 29, 1962,
did not conform with the Board's Order of reinstatement and that the backpay period
continued through January 31, 1963.16 Respondents by answer assert that Edna
Wilson was reinstated on October 29, 1962, and denied that she was thereafter
employed on an intermittent basis, and denied that the reinstatement did not con-
stitute compliance with the Board's Order. The circumstances surrounding the recall
of Edna Wilson and the adequacy or inadequacy of the reinstatement, in the light of
the Board's Order and the evidence are next considered.
Edna Wilson, whose testimony was largely undisputed and is generally credited,
related that she worked for Julius Herman prior to her layoff on July 1, 1961, for
approximately 9 years. During this period of time she was off by reason of illness
on three or four occasions, the longest period being 4 days. However, she was off
from work for a period of 8 weeks in 1960 by reason of her mother's illness. Her
normal workweek was 40 hours; however, on occasions, she worked 54 hours. Her
principal activity was the preparation of cuttlebone for parakeets. Her work included
sorting, grinding, sanding, clipping, bagging, stapling, and packing. In this operation
she used an electric grinder, sandpapered the cuttlebone by hand, placed a clip on
the bone, classified by size and price, bagged, stapled on cards, and packed in boxes.
She was the only employee performing this operation for a period of 3 or 4 years
prior to her discharge. She was recalled by Francis Herman on October 29, 1962,
and advised that she would be employed 2 days a week on the cuttlebone operation,
Tuesday and Thursday. Edna Wilson's assertion that five other girls were employed
by Francis Herman at that time is undisputed.17 She did not know if any or all of
the other five employees worked more than the 2 days a week when she was present.
There is no evidence in this record that any other employee, at any time, worked on
the cuttlebone operation. The evidence establishes 18 that Edna Wilson worked on
October 30 and November 1, in the week ending November 3, 1962, and November 6
and 8, in the week ending November 10, 1962. Numerous Board and court deci-
's General Counsel acknowledges that, in any event, backpay for Edna Wilson was
tolled as of February 1, 1963, the date on which she was determined to be disabled by
the Social Security Administration and commenced drawing benefits. Actually the deter-
mination of disability was in the fall of 1963, retroactive to February 1, 1963.
14 She identified the-work of the five others as, one worked on a biscuit machine, infer-
entially making bird biscuits ; two worked on a belling machine, on which a metal bell is at-
tached by a wire to a bell-shaped biscuit ; and two worked on a boxing , or packing; machine.
>8 The testimony of Edna Wilson and Francis Herman and the payroll records.
HERMAN BROTHERS PET SUPPLY, INC.; ETC. 1425
sions place the burden of proving changed economic conditions in the backpay period
upon the Respondent.10 Recalling an employee, who previously regularly worked
40 hours each week, for periods limited to 16 hours a week, without more, does not
constitute compliance with the Board's Order of reinstatement. I so find.
Edna Wilson related that she commenced working full time on the belling machine
on November 26, 1962. She was advised by Francis Herman that he would give her
3 days to a week to learn the operation. She described the operation as: one girl
lays bell-shaped biscuits into a series of grooves as the machine turns; a second girl
draws a wire, with a bell attached at the end, through the biscuit, with a needle; the
bells then go on a conveyor to the girls who do the packing. The wheel was described
as being 24 to 30 inches in diameter. The-bell is described as a "honey bell," con-
taining a mixture of birdseed, gum, and honey. Edna Wilson related that she worked
on both sides of the belling machine, that the operators would change positions every
half hour. Edna Wilson asserted that she worked on the belling machine 8 hours a
day, 5 days a week, and was advised by Francis Herman, during the second week that
she was "getting the hang of it." 20
While the testimony of Edna Wilson and Francis Herman establish that she worked
on the biscuit machine (making bird biscuits), on stringing wild bird honey biscuits
(three bells to a string), and filling bags with wild bird seed, it is unclear from the
record, and unimportant, whether these activities were engaged in in December 1962,
as distinguished from January and February 1963.
It is undisputed that at the end of 4 weeks, on December 22, 1962, Francis Herman
advised Edna Wilson that the order he had from R. T. French Company was finished.
Edna Wilson stated he laid "us off," identity and number of employees unspecified.
Francis Herman asserted that he laid off two or three employees, on December 22, for
the reason indicated. There is no evidence in the record which contradicts Respond-
ents' assertion that the reason for the layoff was the reason given. While Edna Wilson
asserted that two other girls, identified as Judy and Mary Ann, worked with her on the
belling machine, she acknowledged that she did not know how many years they had
been employed 21 There is no evidence of probative value upon which a finding could
be made that the layoffs of December 22 were not in accordance with seniority.22
Edna Wilson asserted that at the time of the layoff, on December 22, 1962, Francis
Herman advised her to leave her telephone number and she would be recalled when
there was work available for her. Subsequently she was recalled in January 1963, and
worked 16 hours in the week ending February 2, 16 hours in the week ending Febru-
ary 16, and 12 hours in the week ending February 23, 1963.
General Counsel contends that the recall of Edna Wilson, inferentially including
her full-time assignment commencing November 26 and ending December 22, 1962,
was on an intermittent basis, without sufficient training, and does not constitute proper
compliance. General Counsel asserts, in his brief, that the reinstatement of Octo-
ber 29, 1962, did not constitute compliance with the Board's Order. I have so found,
supra.
Acknowledging that she was given full-time work commencing November 26, 1962,
General Counsel asserts that she was laid off "allegedly for lack of work." There is no
evidence that this was not the fact. It is asserted that Edna Wilson worked with five
other women who had less seniority than she did. The record does not support this
10 Un4ted States Air Conditioning Corporation, 141 NLRB 1278, 1280.
20 The payroll records reflect that Edna Wilson was paid for 40 hours for the week ending
December 1, 1962, 32 hours for the week ending December 8, 1962, 391/2 hours for the week
ending December 15, 1962, and 40 hours for the week ending December 22, 1962.
nThis admission followed Edna Wilson's earlier assertion that Judy and Mary Ann
could have been there 3 or 4 years. In any event, there is no identification of those
who were laid off or retained on December 22.
22 In so finding , I am not unmindful of the testimony of Francis Herman, who related
that he had six employees, unidentified, when Edna Wilson was recalled on October 29,
1962. Herman asserted that he may hire as many as 10 or 12 people and when the order
runs out he lays off employees Herman asserted that he continued a skeleton crew of
four to six after the layoff of December 22, and at times employed members of his family.
However, there is no evidence in the record to indicate whether the employees retained
were male or female, the seniority of each, or the particular job assignment of each.
More importantly there is no evidence that Edna Wilson was competent to perform the
work which was performed by the employees so retained
Under these circumstances, and in view of Edna Wilson's later recall by Respondents, I
find of no consequence Edna Wilson's assertion that no dissatisfaction with her work was ex-
pressed by Francis Herman during this 4-week interval. Similarly, I find of no consquence
the effort by Respondents to discredit Edna Wilson's ability to perform the work assigned.
1426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
assertion . General Counsel urges that the Trial Examiner "review in detail the
transcript of the original hearing," asserting that it reveals the extent of Respondents'
machinations and stratagems in order to thwart employees' rights under the act. I
have taken official notice of the decision in the original case and find that it relates to
the former employees of Julius Herman, as distinguished from employees of Francis
Herman's employees. The fact that the Board found the transfer of the business of
Julius Herman to Francis and Leon Herman a sham, is not a substitute for evidence
that the layoff of Edna Wilson was not, in fact, economically motivated or required by
the completion of French's order. General Counsel is correct in urging that Respond-
ents were equivocal to the extent that they attempted to produce evidence that Edna
Wilson suffered from nervousness and was not a satisfactory employee on the belling
machine. However, no contention was made by Respondents that this was the reason
for the layoff of Edna Wilson on December 22.
General Counsel urges that there is no credible evidence in the record that the sale
of cuttlebones, or any of the other products of Julius Herman, is any less a part of
Respondent's business than before the discrimination, or that business has declined to
the point that Edna Wilson could not be reinstated to her former or a substantially
equivalent position 23 I find the cases cited inapposite. In Barberton, the Board
found that the work formerly performed by the dischargee had been redistributed to
other employees and the discriminatee had not been reinstated. In Ellis, the Board
rejected a contention by the Respondent therein that an economic layoff would have
ensued, during the backpay period, prior to the reinstatement of discriminatees. In the
instant case we are concerned with a layoff after reinstatement and concededly after
4 weeks of steady employment.
Finally, General Counsel contends that Edna Wilson could not have filed a new
charge relating to her layoff on December 22, 1962. In support of this, General
Counsel asserts that enforcement of the Board's Order in the instant case did not take
place until a period of time after Edna Wilson had permanently severed her employ-
ment relationship with Respondents. General Counsel urges that the Board was
hampered from any effective action pending enforcement of its Order in the circuit
court and that the only feasible avenue of relief open to Edna Wilson was her claim
for backpay in this hearing, wherein the validity of her reinstatement can be tested.24
I find the cases cited in support of these contentions inapposite. The Mastro case was
concerned with the existence or nonexistence, in respondent's plant, of the job of a
polisher, which the discriminatee was performing prior to discharge, during the back-
pay period and before reinstatement. In United States Air Conditioning, the Board
restated its well-founded and court-approved findings of the burden of proof in a back-
pay case. The Board noted that General Counsel not only met the burden of proving
the amount of gross backpay due, but introduced evidence which disclosed that jobs
were available for all the discriminatees during their backpay periods. In the instant
case the distinguishing factor is that there was a layoff after reinstatement of a discrim-
inatee. In effect, General Counsel asserts it was discriminatorily motivated. There is
no evidence to support this assertion. The burden of proving it did not accord with
the Board's Order relative to seniority is upon General Counsel, not Respondents.
Accordingly, and for the reasons set forth, I find that the backpay period of Edna
Wilson terminated upon her reinstatement to an equivalent full-time position on
November 26, 1962.
I find that Edna Wilson's gross and net backpay, by calendar quarters, is as follows
Year and quarter Weeks Gross
backpay
Interim
earnings
Net
backpay
1061, 3d------- ------------------------------------------------- 13 $600 73 $90 00 $510 73
4th------------------------------------------------------- 13 600 73 130 00 470 73
1062, 1st------------------------------------------------------- 13 600 73 0 600 73
2d-------------------------------------------------------- 13 600 73 0 600 73
3d------------------------------------------------------ 13 600 73 0 600 73
4th---- -------------------------------------------------- 8 369 68 53 20 316 48
Total------ ----- ----------------------------- 3,100 13
za Citing Barberton Plastics Products, Inc, 146 NLRB 393; Ellis and Watts Products,
Inc., 143 NLRB 1269.
24 Citing Mastro Plastics Corporation, 145 NLRB 1710, 1716 (Valentine claim) ; United
States Air Condstioivang Corporation, supra.
THE ARCHER LAUNDRY COMPANY 1427
CONCLUDING FINDINGS AND RECOMMENDED ORDER
The Board has consistently held, with court approval, that the burden of proof is on
the General Counsel to establish for each discriminatee the loss of pay which has
resulted from Respondents' established discriminatory conduct; i.e., the gross backpay
over the backpay period. However, the burden of proof is on Respondents to show
diminution of that amount, whether such diminution results from the claimant's willful
loss of earnings, or from the unavailability of a job at Respondents' operation from
some reason unconnected with discrimination. The fact that the General Counsel, in
an effort to narrow the issues, has preliminarily examined claimants as to their attempts
to find work and the amounts of their interim earnings, and has prepared a backpay
specification attempting to fix the amounts of net backpay, does not shift the burden of
proof as to diminution of the amount of gross backpay. Much less does it shift
Respondents' burden of proving that the net backpay claimed is erroneous. New
England Tank Industry, Inc., 147 NLRB 598.
Based on the formula set forth in the amended specifications, as amended, and on
the record as a whole, I find that the discriminatees are entitled to the following
amounts of backpay, less such taxable withholding as may be required by Federal or
State law, if any; and, in addition, interest at the rate of 6 percent per annum.
Anthony Licausi_______ $3,831.09 Joseph Gondek________ $3,506.58
Leonard Calcaterra__.__ 3, 130. 93 Walter Wilson________ 723. 39
Leonard Bieganski_____ 2,058.61 Edna Wilson ---------- 3, 100. 13
It is recommended that the Board adopt the foregoing findings and conclusions.
The Archer Laundry Company and AFL-CIO Laundry & Dry
Cleaning International Union, Petitioner. Case No. 5-RC-4522.
January 29, 1965
DECISION AND CERTIFICATION
OF REPRESENTATIVE
Pursuant to a stipulation for certification upon consent election,
an election by secret ballot was conducted on April 9, 1964, under
the direction and supervision of the Regional Director for Region 5
among the employees in the unit described below. At the conclusion
of the election, the parties were furnished a tally of ballots which
showed that of approximately 134 eligible voters, 129 ballots were
cast, of which 68 were for, and 59 against, the Petitioner, with 2
challenged ballots. Thereafter, the Employer filed timely objec-
tions to conduct affecting the results of the election.
On September 9, 1964, the Regional Director issued and duly
served upon the parties his report on objections recommending that
the objections be overruled in their entirety and that Petitioner be
certified as bargaining representative of the employees involved.
On October 22, 1964, the Employer filed timely exceptions to the
report and a supporting brief.
Upon the entire record 1 in this case, the National Labor Rela-
tions Board finds:
i The Employer's request for oral argument is hereby denied because the Regional
Director's report and the exceptions and brief adequately present the issues and positions
of the parties.
150 NLRB No. 139.