International Trailer Co., Inc.

National Labor Relations Board - Board Decisions

Jan 22, 1965

150 N.L.R.B. 1205 (N.L.R.B. 1965)

INTERNATIONAL TRAILER COMPANY, INC., ETC. 1205
NOTE-We will notify the above-named employee if presently serving in the Armed
Forces of the United States of his right to full reinstatement upon application in
accordance with the Selective Service Act and the Universal Military Training and
Service Act of 1948 , as amended , after discharge from the Armed Forces.
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.
Employees may communicate directly with the Board 's Regional Office, Federal
Office Building, Room 2023, 550 Main Street, Cincinnati , Ohio, Telephone No. 381-
2200, if they have any questions concerning this notice or compliance with its
provisions.
International Trailer Company, Inc. and Gibraltar Industries,
Inc. and District #12, International Association of Machin-
ists, AFL-CIO. Case No. 5-CA-1796.-• January 22, 1965
SUPPLEMENTAL DECISION AND ORDER
On October 30, 1961, the Board issued a Decision and Order in the
above-entitled case, finding that Respondents had unlawfully dis-
criminated against certain named employees' and ordered that those
employees be reinstated to their former or substantially equivalent
positions and made whole for any loss of earnings.' The United
States Court of Appeals for the Fourth Circuit granted enforcement
of the Board's Order on August 23, 1962.2 On February 18, 1963,
the United States Supreme Court denied Respondents' petition for
certiorari .3
On October 14, 1963, the Regional Director for Region 5
issued a backpay specification, and Respondent, Gibraltar Industries,
Inc., hereafter called Respondent, filed an answer thereto. On De-
cember 17, 18, and 19, 1963, a hearing was held before Trial Exam-
iner Rosanna A. Blake for the purpose of determining the amount
of backpay due the discharged employees. On August 6, 1964, the
Trial Examiner issued the attached Supplemental Decision and
Recommended Order, finding that the specified claimants were en-
titled to the indicated amounts of backpay, with interest at 6 percent
per annum, running from the date of her Decision and Recommended
Order until paid. Thereafter, Respondent filed exceptions to the
Trial Examiner's Supplemental Decision and Recommended Order
and a supporting brief. The General Counsel filed a memorandum
in support of the Regional Director's specifications.
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].
1133 NLRB 1527.
2307 F. 2d 428 (C.A.4).
3 372 U.S. 911.
150 NLRB No. 118.
1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board has reviewed the rulings made by the Trial Examiner
at the supplemental hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The Board has con-
sidered the Respondent's exceptions and brief, the Supplemental
Decision and Recommended Order, and the entire record in this case,
and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner with the following modification .4
As noted above, the Trial Examiner recommended the payment of
interest on the backpay due the claimants. We do not adopt this
recommendation, as the payment of interest was not required by the
Board's original Order which was enforced by the court .5
ORDER
On the basis of the foregoing Supplemental Decision and Recom-
mended Order and the entire record in this case, the National Labor
Relations Board hereby orders that the Respondents, International
Trailer Company, Inc., and Gibraltar Industries, Inc., their officers,
agents, successors, and assigns, shall pay to the employees involved
in this proceeding, as net backpay herein determined to be due, the
amounts set forth opposite their names in section IV of the Trial
Examiner's Supplemental Decision and Recommended Order.
4 Respondent ' s request for oral argument is hereby denied , as the record , including the
exceptions and brief , adequately presents the issues and the positions of the parties.
5 Mooney Aircraft, Inc., 148 NLRB 1057 ; Idaho Potato Processors , Inc, 148 NLRB 646;
General Engineering , Inc., and Harvey Aluminum ( Inco)porated ), 147 NLRB 936; and
Ellis and Watts Products, Inc, 143 NLRB 1269
SUPPLEMENTAL DECISION AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This supplemental proceeding to determine backpay, with all parties represented,
was heard before Trial Examiner Rosanna A . Blake in Baltimore , Maryland, on De-
cember 17, 18 , and 19 , 1963 , on the specification of the General Counsel and on the
answer of Gibraltar Industries , Inc.,' herein at times referred to as Gibraltar or the
Company.2 Generally, the issues litigated were the amount due each of the six
employees who was discriminatorily discharged in August 1960, and who was offered
reinstatement on March 31, 1963.3 All parties were afforded full opportunity to
introduce evidence, to examine and cross -examine witnesses , to present oral argument,
and to file briefs . Briefs were received from counsel for Gibraltar.
'The spelling of "Gibraltar" Is that used by the Board in the unfair labor practice pro-
ceeding and that used by Respondent in the instant case
2No answer was filed by or appearance entered on behalf of International Trailer Com-
pany, Inc , herein referred to as International , which is no longer operating and is in
receivership The Board found in the unfair labor practice proceeding that International
and Gibraltar were joint employers and the validity of this finding was the only issue
before the court in the subsequent enforcement proceeding. The Board's Order which
issued on October 30 , 1961 ( 133 NLRB 1527 , 1531-1532 ), was enforced by the Court of
Appeals for the Fourth Circuit on August 23 , 1962 ( N.L R.B. v. Gibraltar Industries, Inc,
and International Trailer Company , Inc., 307 F. 2d 428), and the Supreme Court denied
certiornil on February 18, 1963 ( 372 U.S. 911 ). Gibraltar does not deny that it is
liable for any and all backpay found to be due
9 There being no opposition to the General Counsel's motion to correct the transcript,
it is hereby granted.
INTERNATIONAL TRAILER COMPANY, INC., ETC. 1207
Upon my, observation of the witnesses while testifying, upon consideration of the
pleadings, the entire record, and the briefs, I make the following:
FINDINGS AND CONCLUSIONS 4
1. INTRODUCTION
The Board's Order in the unfair labor practice proceeding directed Gibraltar and
International to make Gordon L. Melvin, Andrew P. Kraus, Chester E. Koso, Richard
L. Sims, Joachim B. Guercio III, and Thomas C. Collins whole for any loss of pay
they may have suffered by season of the discrimination against them. When informal
negotiations failed to produce agreement on the amount of backpay due any of the
six men,,the Regional Director for Region 5 of the National Labor Relations Board
issued a backpay specification setting forth the amount he believed to be due each
man to make him whole under the terms of the Board's Order and the court's decree.
In accordance with Board policy, the specification set forth, by calendar quarters,
the gross backpay allegedly due each employee, the formulas used in determining the
amount due, any expenses for which compensation is claimed, the claimants' interim
earnings, and the net backpay allegedly due. In its answer, Gibraltar challenged the
formulas used in the specification for determining gross backpay and set forth the
formulas which it contended should have been used.
II. THE FORMULAS USED IN THE SPECIFICATION
A. Introduction
The proposition that an employer is required to make discriminatees whole only
for actual losses is easier to state than to apply. If uncertainty exists, as it frequently
does, it results from the employer's illegal conduct and should be resolved against the
company rather than against the victims of the discrimination. N.L R.B. v. Reming-
ton Rand, Inc., 94 F. 2d 862, 872 (C.A. 2); N.L.R.B. v. Spitzer Motor Sales, Inc., 211
F. 2d 235 (C.A. 2), enfg. 102 NLRB 437, 453; Ozark Hardwood Company, 119
NLRB 1130, 1133. As the Supreme Court pointed out in Story Parchment Paper Co.
v. Paterson Paper Co., 282 U.S. 555, 562, "There is a clear distinction between the
measure of proof necessary to establish the fact that [a party] sustained some damage
and the measure of proof necessary to enable [a tribunal] to fix the amount." See also
Palmer v. Connecticut Ry. & Lighting Co., 311 U.S. 544, 561, in which the Court said
that "Certainty in the fact of damage is essential. Certainty as to the amount of
damage goes no further than to require a basis for a reasoned conclusion." See also
N.L.R.B. v. Kartarik, Inc., 227 F. 2d 190, 192-193 (C.A. 8), in which the court con-
cluded that the principles set forth in the above cases are equally applicable to backpay
proceedings and are intended to "permit a solution of the problem of amount to be
made upon any range of facts, circumstances, or reasonable inferences, which afford a
rational basis for a conclusion."
Broadly speaking, a discriminatorily discharged employee is entitled to receive what
he would have earned had he remained in the company's employ throughout the
backpay period (gross backpay) less what he actually earned in other employment
during that period.5 The determination of gross backpay, for example, is not always
a matter of arithmetic for, as in this case, questions can arise concerning how much the
claimant would have earned had he not been discharged. In cases in which such
questions exist, the Board "may use as close approximations as possible, and may
adopt formulas reasonably designed to produce such approximations." In other
words, "In solving the problems which arise in backpay cases the Board is vested with
a wide discretion in devising procedures and methods which will effectuate the purposes
of the Act." N.L.R.B. v. Brown & Root, Inc., etc., 311 F. 2d 447, 452 (C.A. 8).6 It
follows, therefore, that the Board is not required to use one formula only but may use
a combination of methods in arriving at the amount or amounts due if it appears that
such is necessary to effectuate, as nearly as possible, the policies of the Act.
As indicated supra, the major questions raised by Respondents concern the formulas
used in the specification to compute the gross backpay due the claimants. It must
4 All credibility determinations made herein are based In part upon my observation
of the demeanor of the witnesses while testifying.'
s Of course, an employee is not entitled to backpay for periods during which he was
voluntarily idle or was unable to work because of Illness or other reasons
6 The court also stated that when reviewing the formulas used by the Board, its
inquiry was ordinarily limited to satisfying Itself that the method selected was not
"arbitrary or unreasonable in the circumstances Involved ." 311 F. 2d 447, 453.
1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
therefore be determined whether the record as a whole "afford[s] a rational basis"
for the methods used by the Regional Director in making his computations (Kartarik,
Inc., supra).
B. The computation of gross backpay on the basis of the earnings
of comparable employees
The first step in determining backpay is to compute the amount the dischargee
would have earned had he not been discharged. The backpay period usually runs for
several years which often means that there have been changes in the plant since'the
claimants were discharged. For example, it frequently appears that some employees
have received pay increases not given the employees generally, and there may also
have been, as in this case, changes in operating methods and the methods of payment.
When such changes occur, the amount each dischargee would have earned had he
continued to work for the company is more difficult to determine and the conclusion
reached admittedly more speculative. On the other' hand, to freeze a dischargee's
wages as of the date of -his discharge, would, in many cases, be unfair to him and,
in effect, would perpetuate the discrimination and permit the employer to benefit from
his unfair labor practices. The problem then is to determine the amount which it is
reasonable to assume from all of the facts each claimant would have earned if he
had not been discharged.
In cases in which there have been substantial changes, the Board frequently selects
the employee in the plant or department which it believes to be most nearly comparable
to the dischargee and uses his earnings in computing the gross amount of backpay due.
This method, which has received judicial approval, is the one used by the Regional
Director in the instant case for computing the amount five of the claimants would
have earned had they not been discharged. He assumed that all the employees in a
department did the same work generally and selected as comparable the employee in
the department whose pay rate was, or during the backpay period rose-to, the rate
being paid the claimant at the time the latter was discharged.8
Gibraltar contends that the comparable employee method is improper in this case
and that the most equitable method would be to multiply the average hours, worked in
the appropriate, department by the claimant's wage rate at the time of his discharge.
It also argues that even if the comparable employee method is proper, pay rates are
not a true indication of comparability in the instant case. Finally, its witnesses testi-
fied that four of the claimants were not as skilled as the employees selected as com-
parable by the Regional Director and asserted that the claimants' skills were more
nearly comparable to those of other named employees.
In support of its contentions, Gibraltar introduced evidence, which I credit, that a
few months after the discharges, Gibraltar instituted a number of changes in operating
methods and instituted an incentive pay system. Its position is that the dischargees
would not have "fit into" the new system and therefore would not have earned the
amounts earned by the comparable employees. It concedes, however, that the dis-
chargees would have continued to work throughout the backpay period and they were
offered reinstatement in March 1963.
Prior to the discharges, International was manufacturing trailers and Gibraltar was
selling them. International had been in serious financial difficulties for some time and,
as a result, materials were in short supply. Moreover, for various reasons, Interna-
tional's management was more interested in producing units fast than in producing
quality units .9 Under these circumstances, it is not surprising that the trailers pro-
7 East Texas Steel Castings Company, Inc ., 116 NLRB 1336 , 1337, enfd . 255 F. 2d
284 (C.A. 5).
8 Respondents -presented no evidence indicating that the employees in a department do
not do the same work generally ,' although such evidence , if it existed , was clearly in
their possession.
9 Gibraltar 's witness Painter testified that "International was in bad , bad trouble . . .
they did not have operating money even . . . to buy material" and trailers were sup-
posedly ready for sale which "didn't pass inspection They weren't even completed.
They didn't have the material to even complete them with . They were short a refrigera-
tor and some moldings [ or other items ]." International's superintendent, according to
Painter , "wasn 't a production man," he "didn 't know how to handle men. He couldn't
give us a nice , clean quality mobile home . . . . All he thought about was get that
extra money [ for himself ] and never thought about quality .... , Respondents' wit-
ness Davis testified that material is always available at Gibraltar , the work is better
planned , and "everything is just the reverse to the. way it was before-no confusion."
INTERNATIONAL TRAILER COMPANY, INC., ETC. 1209
duced by International were of poor quality . If management is urging the employees
to produce trailers as quickly as possible, with little regard to quality , they are likely
to comply. It materials are in short supply, they will skimp wherever possible and will
use whatever is available even if it is not exactly "right" for the job. This does not
mean, however , that given sufficient and proper materials and an employer who is
interested in producing a good product rather than in producing something fast, the
same employees cannot produce or learn to produce a good product . In short, in my
opinion , the conditions at International , as described by Gibraltar 's witnesses, were
such that it would have been very difficult , if not impossible , for the employees to do
careful , skilled work and to produce quality trailers. That they may have failed to
do so when working for International by no means proves that they were incapable
of doing so or of learning to do so.
As a matter of fact , a major cornerstone of Gibraltar 's case is that Gibraltar , unlike
International , stressed quality and trained the employees to do good work. Thus,
according to Plant Manager Horace A. Fyle, Gibraltar's main witness, "We trained
almost every man.... These men [current employees ] have all been trained.... We
find that the best method is to train our own men, from the start." to
It is clear, therefore , that if the claimants had not been discharged , they too would
have had the opportunity to learn to do good work under Gibraltar , even if it is
assumed that they did not have the skill to do so under International . No one can
say with certainty how each would have fared under the new system but it was
Respondents ' actions which created both the uncertainty and the need to resolve it.
Subjective testimony by management representatives in 1963 concerning the ability
and skill of employees discharged in 1960 for union activity is not very reliable though
it may be that the witnesses believe that they are expressing their honest opinions. In
the instant case, for example , they were comparing the skills of men with additional
experience and training with men who had received no such training and who had
worked for an employer who was not interested in quality . In addition , the employer
has an interest in reducing his liability as much as possible. Moreover, the claimants
had aroused management 's antagonism sufficiently to cause it to discharge them and
such hostility does not necessarily disappear with the passage of time . 11 A good
example of the unreliability of subjective testimony in such situations is the assertion
of Plant Manager Fyle that he felt that the Company had given claimant Guercio an
opportunity to prove himself under the new system although , as a matter of fact,
Guercio was discharged several months before Gibraltar took over.
Furthermore , as set forth more fully infra, Gibraltar 's testimony concerning the
dischargees ' lack of ability and poor work is in some cases a repetition of the reasons
given the employees when they were discharged . However , in the unfair labor prac-
tice proceeding , those claims were refuted by the undenied testimony of the dis-
chargees and International President James A. Fyle, Jr., testified that the Company
prepared "excuses" which were going to be used to justify the discharges . 133 NLRB
1527 , 1530, footnote 7.12
Concededly , rarely if ever do two employees have exactly the same ability , skill,
diligence , and other qualities which determine the quality and quantity of work per-
10 Fyle also testified that one of his biggest problems was to make the men understand
that it takes time for new employees to become as skilled as they are.
11 Respondents did not offer the claimants reinstatement for nearly 6 weeks after the
Supreme Court denied certiorari . Furthermore , on one occasion during the informal
backpay negotiations both the Board representative and company counsel were asked to
leave the Employer ' s premises It also appears that discussions never reached the stage
where the parties could engage in "fruitful " discussions as to comparability or other
matters which might have been helpful in framing the backpay specification . After a
certain period , the Board ' s only source of information was the Company ' s records which,
for example , did not indicate that an employee was a group leader. Although I think
Gibraltar 's witnesses tended to exaggerate both the shortcomings of the claimants, other
than Melvin , and the superior qualities of current employees , other than Miller, I also
think that they believed-generally-that the latter are much better than the former.
But this does not mean that their testimony was not influenced subconsciously by the
various considerations set forth above, particularly an understandable inability to evaluate
how, the claimants would have performed with training and under the improved condi-
tions at Gibraltar . Claimant Melvin, of course , presented no problem since he was already
an outstanding workman.
12 As stated supra, the propriety of the Board 's findings on the merits was not chal-
lenged by Respondents in the enforcement proceeding.
1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
formed. On the other hand, it is not unusual for two men to have the same ability
and skill generally and one of the best if not the best objective indication of the
employer's belief that two employees are comparable is that they are paid the same
rate for doing the same general work.
It is for the foregoing reasons that I conclude that objective evidence; i.e., the same
pay rate for doing the same general work, is more reliable than subjective evidence by
interested witnesses in 1963 concerning the relative competence of employees illegally
discharged in 1960 and current employees who have had the benefit of Gibraltar's
change in emphasis and training program.13
In support of its contention that the claimants would not have been able to "fit into"
the new methods of operation, Gibraltar points out that only 22 of the 77 men
employed by International were on Gibraltar's payroll on March 31, the end of the
backpay period, and its witnesses asserted that scores of new employees were hired
and left between January 1961 and March 1963. However, Respondent adduced no
evidence that any of International's employees (other than group leaders) was dis-
charged by Gibraltar for incompetence or inability to work under the new system
although such evidence, it is existed, would be in Gibraltar's possession.14 It must
be assumed, therefore, that most if not all of the employees who left did so to take
better jobs or for other reasons either unrelated or only indirectly related to the
changes made by Gibraltar.
C. The inclusion of incentive pay in the computation of gross back pay.
Respondents also base their contention that gross backpay should be computed on
the basis of the claimants' hourly rate at the time of discharge on the fact that Gibraltar
inaugurated an incentive pay or bonus system in all but two departments.15 Under
this system, it is possible for employees to receive a sum in addition to their base pay.
The system operates as follows: $10,000 is allocated for wages for a certain operation;
there are 10 employees in the department doing the work and their base pay is $1 an
hour; they do the work in 90 hours so that their base pay for the job is $9,000; the
extra $1,000-the difference between the allocated amount and the actual cost-is
divided evenly among the 10 employees; i.e., if each has worked the same number
of hours, each receives $100 bonus or incentive pay for the job.16 In other words,
the bonus is divided among the employees in the department not on the basis of each
man's production or hourly rate but on the basis of hours worked. This means that
if a man worked in the department the same number of hours as the others, he got
the same share of the incentive pay as did each of the others.
One of the major issues in East Texas Steel Castings Company, Inc., 116 NLRB
1336, enfd. 255 F. 2d 284 (C.A. 5), was whether the earnings of comparable employ-
ees could be used in computing gross backpay because of the institution of an incentive
pay system following the discharges. The Board's Order, based on the comparable
employee method, was enforced by the court although the incentive pay in that case
was based on the employee's individual production rather than the production of the
entire department as in the instant case. 116 NLRB 1336, 1337, 1363. As the Board
pointed out, "While the introduction of the incentive wage system . . . might have
13 Although Fyle testified that the basic hourly rates at Gibraltar were " in some in-
stances" lower than those at International, he did not cite any specific example nor did
he claim that Gibraltar cut the pay rate of any International employee other than
McGehee, the employee selected by the Regional Director as comparable to claimant
Guerclo. It is clear that McGehee's cut was due to reasons peculiar to himself rather
than pursuant to a general policy. In fact, the record discloses that Gibraltar gave many
pay raises although it does not indicate how many of the employees receiving them had
been employed by International. I do not agree with the statement in Gibraltar's brief
that "the record shows that the hourly rate of employees hired subsequent to the instal-
lation of the incentive system were in most cases substantially lower than the hourly
rates earned by the International employees whom they replaced."
"There is therefore no evidence in the record supporting the statements in Gibraltar's
answer to the specification that "only 26% [of International's employees] were able to
successfully continue with Gibraltar under the incentive system" and that "many of
[International's employees] were found to be not qualified to work under the incentive
system established by Gibraltar . .. The employment record of the group leaders
after August 1960 Is discussed infra.
w International had an incentive system in one or two departments but it was not
really operating.
10 The above figures are for purposes of illustration only
INTERNATIONAL TRAILER COMPANY, INC., ETC. 1211
resulted in higher earnings for the comparable employees, it is reasonable to assume
that the complainants, if given an oportunity to work under that system, would
have had the same ratio of earnings as their comparable employees." 17
It being undisputed in the instant case that each employee in a department received
the same incentive or bonus pay as all others working the same number of hours and
it being conceded that each of the claimants would have continued to work during the
entire backpay period, I find that the fact that the comparable employees worked under
an incentive wage system rather than on a straight hourly basis does not mean that
the Regional Director acted unreasonably or improperly in using, in some cases and
for some periods, the earnings of comparable employees in determining the amount
of gross backpay due. East Texas Steel Castings Company, Inc., at 1338. Respond-
ents' claim that four of the claimants are not as skilled as the employees selected as
comparable are discussed infra.
D. The exclusion of employees working fewer than 24 hours per week
In arriving at the number of hours for which backpay is due, the Regional Director
excluded any employee who worked fewer than 24 hours if, but only if, the depart-
ment generally worked 24 hours or more.18 According to the Company, the hours
for which the claimants should be compensated should be the average hours worked
by all of the employees in the department. I do not agree.
In cases in which a minority of the employees in a department worked fewer hours
than the department generally, it is reasonable to assume that they did so for reasons
not applicable to the group as a whole such as illness or because they were hired or
fired in the middle of the week. Indeed, Respondents have not denied that the
excluded employees worked fewer hours because of circumstances peculiar to them-
selves. Nor have they asserted that any of the claimants was in the habit of working
fewer hours than the department generally nor did it present evidence indicating that
any would in fact have worked fewer hours than the department generally. The
absence of such evidence is, of course, significant since it is the kind of evidence which
Gibraltar could and undoubtedly would have adduced had it existed.
If the hours worked by the employees who are the exceptions to the rule are
included, they would reduce the hours (by lowering the average) for which backpay
is due. This would mean that the claimants would be made whole for a fewer number
of hours than, it is reasonable to conclude, they would have worked.
E. The group leader question
Each department except the labor pool and the stockroom has a group leader who
receives an additional bonus of $1 per unit produced. Thus a group leader's pay can
be made up of three parts: hourly or base pay, incentive pay earned by his group or
department, and the group leader bonus. Four of the five employees selected by the
Regional Director as comparable were group leaders during all or some of the backpay
period and Gibraltar contends that three of the claimants would not have been group
leaders and therefore would not have received the group leader's bonus. The ques-
tion, of course, is a factual one; i.e., whether it can reasonably be concluded on the
basis of all the facts that the claimant would have been a group leader had he not
been discriminatorily discharged. If so, the Regional Director acted reasonably and
properly in including the group leader bonus when computing the gross backpay due.
The findings in each of the cases are set forth infra.
F. Conclusions with respect to the formulas used in the back pay specification
On the basis of the facts and for the reasons set forth supra, I find that it is reason-
able to conclude and I do conclude that:
(1) If the claimants had not been discriminatorily discharged, they would have
continued to work for Gibraltar and would have received the training given employees
by Gibraltar after it took over from International.
17 An examination of the Intermediate Report and the Board's opinion in East Texas
makes it clear that the Board 's statement that "there is no issue as to the competency of
the claimants" refers to the fact that respondent did not claim in the unfair labor practice
proceedings that the claimants were discharged because of incompetence. In the backpay
case, the company argued vigorously that each of the "comparable" employees was a
much superior workman whose earnings, because of the incentive system, were substan-
tially higher than the claimant would have earned had he not been discharged.
is If the department generally worked fewer than 24 hours, the specification used the
actual hours worked.
1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(2) In five cases, to compute the gross backpay due on the basis of the claimants'
rates of pay at the time they were discharged would mean that they would not be
made whole for all losses which they suffered by reason of the discrimination against
them.
(3) The changes made by Gibraltar did not make unreasonable or improper the
use of the comparable employee method of determining the gross backpay due.
(4) Group incentive pay was properly included in computing the gross amount of
backpay due.
(5) If it is reasonable to assume from all of the facts that the claimants would have
been group leaders during all or part of the backpay period, the group leader bonus
was properly included in the computation of backpay.
(6) The claimants would have worked the same number of hours worked by the
department generally. _
(7) It was reasonable and proper to exclude the hours of employees who worked
fewer than 24 hours when the department generally worked more than 24 hours.
(8) The record would not support a finding that the hourly rates paid by Gibraltar
are generally lower than those paid by International.
(9) The formulas used in the backpay specification afford a rational basis for
computing gross backpay and are not an attempt to and do not achieve ends other than
those which can fairly be said to effectuate the policies of the Act.19
III. THE FINDINGS WITH RESPECT TO THE INDIVIDUAL CLAIMANTS
A. Thomas C. Collins
At the time of his discharge, Collins worked in the stockroom and his rate of pay
was $1.70 an hour. Employees in this department received no wage increases and
received no incentive pay during the backpay period.
Collins' gross backpay was computed by multiplying his rate of pay by the average
hours worked in the stockroom by calendar quarters.20 Collins' net backpay was then
determined by subtracting his net earnings during each quarter from his gross backpay
during each quarter and adding the results.
In his brief, counsel for the General Counsel concedes that Collins was out of the
labor market for 2 or 3 weeks in the fourth quarter of 1960 and that he is entitled to no
backpay for this quarter. I agree. I also agree that Collins' net backpay, for the third
quarter of 1960, as set forth in the specification, should be increased by adding $81.81,
it appearing that Collins earned this amount before he was discharged and that the
specification is in error in adding this amount to his earnings during the quarter in
which he was discharged.21
Collins was discharged on August 15, 1960. After about 3 weeks, he got a job
with Allied Research and worked for that company for approximately a year.22
Upon again becoming unemployed , Collins registered with the unemployment office
and applied for work at various places, some of which he named. He estimated that
he looked for work "about every other day, anyway" and after about a month got a
job with American Marietta. After being laid off by that company, he looked briefly
for work and then went to North Carolina where he lived originally and where his
mother still lived. He explained that "there is quite a lot of work" in that area and "I
couldn't find nothing around [Baltimore and] I thought there was a possibility I might
find work in North Carolina." He testified without denial that there are "a lot of
W N.L.R B. v. Kartarik, Inc., 227 F. 2d 190, 192-193 (CA. 8) ; N L.R B. v. Seven-Up
Bottling Company of Miami, Inc, 344 U.S. 344, 346, 347.
zo In computing the average, employees working fewer than 24 hours per week were
excluded and overtime was converted into straight time equivalent at the ratio of
1-to-1 %.
91 Collins testified that he quit at International and was rehired shortly before his
discharge.
za Respondents did not question Collins about his efforts to obtain work during the
3 weeks before he was hired by Allied or the reason he left that company. Since the
burden Is on Respondents "to establish facts which would negative the existence of
liability : . . or which would mitigate that liability" (N L R B. v. Brown & Root, Inc.,
etc., 311 F. 2d 447, 454 (C.A. 8)), I conclude that Collins was not willfully idle during
the 3 weeks prior to his employment by Allied and that he lost his job with that com-
pany through no fault of his own. Unless stated otherwise, I have also concluded in
the other cases that Respondents have not sustained their burden of showing that the
employees were willfully Idle during periods in which they were unemployed.
INTERNATIONAL TRAILER COMPANY, INC., ETC. 1213
cotton mills ... Rayon mills ... Hosiery Mills" in that area and that "a lot of
Northern concerns are moving down there." He estimated that he went to 15 to 20
places looking for work and got a job about 3 weeks later with a roofing company.
When he was laid off for lack of work, he went to Spartanburg, South Carolina,
because his brother told him jobs were plentiful there and in fact got a series of jobs.
One was with a construction company which he quit because it was moving "near
the Mississippi line, in Tennessee" and he did not want to "go west."
After being laid off by an ice cream company at the end of the summer of 1962,
Collins returned to Baltimore because his wife was still there 23 On his return, he
looked for work at "a lot of places," some of which he named, and got a job with
Flynn and Emerick. He was discharged because he was absent without notice. This
was because he was sick "in bed" for 3 days and the friend he asked to "call in"
apparently failed to do so. Collins then went to New Jersey where he got at least two
jobs. No backpay is claimed for the first quarter of 1963 because Collins' earnings
for that period were higher than the amount he would have earned at Gibraltar.
As the Board pointed out in Mastro Plastics Corporation and French-American
Reeds Manufacturing Co., Inc., 136 NLRB 1342, 1349, there is no requirement that a
claimant's efforts to get a job meet with success but only that he make reasonable
efforts to obtain and retain work. It then went on to say (ibid. at 1349-1350) :
. a claimant who obtains a job but then leaves it for a justifiable reason is not
deprived of all further claim; the assumption is that the reason for his quitting the
job would not have been present at Respondent's plant and therefore the job is
not substantially equivalent.... Only if the evidence supports a finding that the
claimant would have left Respondent's plant for the same reason that he left the
interim job or in order to obtain this particular new job is his claim from that
time disallowed .... Finally, if a claimant does willfully incur losses by either
unjustifiably quitting or refusing substantially equivalent employment, he is not
deprived of his entire claim, but only so much of it as he would have earned had
he retained or obtained the interim job.
As was also pointed out in the same case (ibid. at 1359), the answers to such ques-
tions depend on the facts and circumstances of each case and that, broadly speaking:
... a good-faith effort requires conduct consistent with an inclination to work ...
such inclination is best evidenced not by a purely mechanical examination of
the number or kind of applications for work which have been made, but rather
by the sincerity and reasonableness of the efforts made by an individual in his
circumstances ... [which] include the economic climate in which the individual"
operates, his skill and qualifications, his age, and his personal limitations.
Collins worked in the stockroom and apparently has no trade or other special job
qualifications. Under these circumstances, his chances of obtaining anything other
than semiskilled work, at best, were slight. There is no evidence that he ever refused
any job offer (except the one in western Tennessee) and he worked steadily for one
employer for approximately a year.
By going to North Carolina, Collins could reduce his expenses by living with his
mother and he also had reason to believe that he might be able to get a job in that
area and he did in fact get several jobs in North and South Carolina. Even assuming,
arguendo, that he used poor judgment in believing that his job prospects were better
in North Carolina than in Baltimore (cf. N.L.R.B. v. Cashman Auto Company and
Red Cab Company, 223 F. 2d 832, 836 (C.A. 1) ), I cannot find that he acted unreason-
ably or that he was willfully unemployed during those periods in which he was without
a job while away from the Baltimore area. Although he quit one job because other-
wise he would have had to move to western Tennessee, his job at Gibraltar would not
have required that he make such a move and it is clear that he would not have left
Gibraltar in order to obtain a job with the employer who wanted him to transfer to
an entirely different and unfamiliar area. Mastro Plastics Corporation, et al., 136
NLRB 1342, 1349-1350.
Nor can I find that Collins' discharge by one employer for failing to report that he
would be absent because he was ill was the result of negligence, as claimed by
Respondents. There is no evidence that Collins had access to a telephone so that he
himself could notify the company that he was sick and could not come to work. In
the absence of such evidence, I assume that the only other method available was the
one he used; i.e., to ask a friend to notify the company for him. The fact that the
23 Although Collins was separated from his wife, he testified that he returned to
Baltimore because she was there. It seems probable that his children were also in Balti-
more with his wife
1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
friend failed to do so does not constitute negligence on Collins' part or indicate that he
willfully failed to comply with company rules with respect to notice. However, I
assume that he would have been absent from work those 3 days had he not been dis-
charged by Respondents. Since Gibraltar employees are paid by the hour, I also
assume that he would have had no earnings during those 3 days. I find therefore that
his gross backpay should be reduced accordingly.
On the basis of the foregoing facts, I conclude that Respondents have not shown
that Collins acted "unreasonably" or that he was "willfully" unemployed during any
period. Accordingly, I find that Collins is entitled to the net backpay claimed for
him in the specification with the addition and reductions previously noted.
B. Gordon L. Melvin
Gordon Melvin was discharged on August 15, 1963, and was offered reinstatement
on March 31, 1963. At the time of his discharge, Melvin was the group leader in the
sheet metal department. In computing the gross pay due Melvin, the Regional
Director used the earnings of A. F. Miller, who has been the group leader in the sheet
metal department since shortly after Melvin was discharged.
Plant Manager Fyle testified in the instant proceeding that Melvin was "very well
qualified to perform his duties" and was a "true group leader." Accordingly, I find
that Melvin would have continued to be the group leader in the sheet metal department
and that, as Respondents admit, employee Miller is a comparable employee. It
follows, therefore, that the specification properly computes the backpay due Melvin
on the basis of Miller's earnings during the backpay period, including Miller's group
leader bonus.
Melvin got a job with Isaacs and Rodbell, Inc., about 3 weeks after his discharge
and was still employed by that company at the time of the hearing in the instant case.
In the interim 3-week period, he applied at a number of companies and actively looked
for work.
Melvin testified that he was sick 3 days in April or May 1963, and was absent 1 day
about the same time to go to a convention. Since Respondents' liability for backpay
ended on March 31, 1963, these absences are immaterial. He was absent 1 day in
1963 to go to a convention and I assume that he would not have been paid for that
day had he been employed by Gibraltar. Accordingly, I conclude that the amounts
set forth in the specification are the amounts due Melvin, less I day's pay in the
second quarter of 1962 if, but only if, Respondents' records show that Miller worked
at least 40 hours each week during that quarter.24
C. Joachim B. Guercio III
Guercio was employed by International in January 1958, and was discharged on
August 26, 1960. The Board's finding in the unfair labor practice proceeding that
Guercio had been assigned to train other employees was based on his undisputed
testimony and his similar testimony in the instant proceeding is undenied. His pay
rate at the time of his discharge was $1.60 an hour.
After his discharge, Guercio registered with the unemployment service and looked
for work on his own. There is no evidence that he ever refused any job offer or ever
quit any job. About the middle of September 1960, Guercio got a job in a bakery and
worked there until February 1961, when he was laid off for lack of work. Thereafter
he looked for work 3 or 4 days a week and during the next several months "went to
most of.the factories" in the Baltimore area, including Majestic Pickle Company, J. J.
Martin Company, Sidnoyd Steel, Bethlehem Steel, Thompson Wire, Esskay Meat, and
Crosse & Blackwell. He got a job at an auto parts company in June 1961, and worked
there until he transferred to another company in March 1962. He was still employed
by the latter company at the time of the hearing.
The first question to be decided in Guercio's case is whether he was a cabinet depart-
ment employee, as the General Counsel contends, or a member of the labor pool,
u Pursuant to an agreement reached at the hearing, copies of this Decision were served
on all the parties prior to official issuance and they computed the amounts due each man
based on the findings made herein. It was understood that this procedure would not con-
stitute a waiver by any party of its right to challenge any or all findings. Counsel,
particularly counsel for Gibraltar, are to be commended for suggesting and agreeing to
this procedure which meant that I was not required to analyze voluminous records and
make numerous computations It has also probably resulted in more accurate computa-
tions and avoided disputes at later stages in the proceeding over purely mathematical
matters.
INTERNATIONAL TRAILER COMPANY, INC., ETC. 1215
as Respondents contend . If Respondents are correct , the amount of backpay
due Guercio is substantially reduced because labor pool employees do not receive
incentive pay.
It is undisputed that Guercio was assigned to the cabinet shop when he was hired
in 1958, that he worked in that department off and on throughout his entire employ-
ment by the Company, and that he was working in that department when discharged.
On the other hand, he worked in other departments during much of 1960. However,
he testified that he had never heard of a "labor pool " at International and Plant
Manager Fyle testified only that if he "remembered correctly there were weeks" prior
to the discharges that there was a "defined labor pool." Fyle also agreed that the
Company's records would indicate that a man was assigned to the labor pool and that
Guercio was never shown on these records as a labor pool or utility man. Further-
more, Guercio testified without denial that he was never told that he was a labor pool
employee or that his transfers between departments were "temporary ." In other
words , he was not informed that his assignment to the cabinet department a few weeks
prior to his discharge was temporary ; i.e., to "fill in " during the absence of a regular
cabinet employee . It is also significant that Guercio 's assignments to various depart-
ments continued for a number of weeks whereas Fyle's testimony concerning the
assignment of labor pool employees to special departments makes it clear that such
assignments are, with rare exceptions , for short periods only ; i.e., to "fill in" for an
employee who does not report to work because of illness or some other short-term
reason.
According to Fyle, Guercio was not really a cabinetmaker but a "basic all around
man" in three or four departments However, Fyle was asked the following question
on direct examination and gave the following answer:
Q. Did Mr. Guercio show sufficient aptitude or ability for this cabinet shop
work, for you to assign him permanently to the cabinet shop, prior to his
discharge?
The WITNESS' He was not qualified as a cabinet maker. He would probably
have remained in the department, as we have the other employee that we have
now, we use him for a fill in man . The labor pool employees are not highly
skilled in every department . We try to . . . train them to have a well rounded
knowledge of the whole production process, so that they are of some help. They
are not as skilled as the men doing the job every day. You can 't get a man to
know everything in every department . We try to find the people in this utility
pool, that in case of sickness or accident or absenteeism we put these people into
these departments . I definitely would say that he was not as highly qualified as a
man that is there today , who has stayed there at [all? ] the time he was there.
[Emphasis supplied.]
The foregoing facts convince me and I find that Guercio was not a labor pool
employee and that his assignment to the cabinet department a few weeks before his
discharge was not a "fill in" assignment during the temporary absence of a regular
cabinet department employee. Concededly , in view of his prior assignments to other
departments , Guercio might at some later date have been assigned to another depart-
ment for several weeks or months . However, the record indicates that Guercio kept
returning to the cabinet department and that he was identified generally with that
department . I conclude , therefore , that Guercio was not a labor pool employee and it
would not make him whole for the losses which, it is reasonable to assume , he suffered
by reason of the discrimination against him to compute his gross backpay on the basis
of the earnings of a labor pool employee 25
Gibraltar also contends that even if Guercio was a cabinet department employee,
McGehee , the employee who was selected by the Regional Director as most nearly
comparable to Guercio , is far more skilled than Guercio was or, presumably, would
have become with additional experience and training.
According to Plant Manager Fyle , McGehee builds all the "tall furniture " for the
trailers, does "quite a bit" of the Company's "special" or custom work, and is able
to build a piece of furniture from "scratch "; i.e., from a sketch or pursuant to oral
instructions . By implication at least, Gibraltar 's witnesses claimed that McGehee has
special skills not possessed by other employees in the cabinet department and is one
of the outstanding employees in the department . The objective facts in the record
do not support their claims.
251t should be kept in mind that the employees in all the departments except the
stockroom and labor pool received bonus or incentive pay.
775-692-65-vol. 150-78
1216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There are seven employees in the cabinet shop and only one of them receives a
lower basic pay rate than McGehee. Although the details are not clear, Fyle admitted
that McGehee was discharged on one occasion, perhaps for drinking, and his testimony
suggests that McGehee may have been demoted on another occasion.26 In any event,
it is clear that McGehee was either demoted to the stockroom and his pay reduced from
$1.90 to $1.60 an hour or was fired and rehired in the stockroom at the lower rate. It
is also clear that when McGehee returned to the cabinet department it was at a rate of
20 cents an hour below the rate he was receiving when he left it. Fyle also admitted
that company records list McGehee as a labor pool employee at least during some
periods but he expressed the opinion that this might be due to the fact that McGehee
had been hired for the labor pool and his classification was never changed on the
records.
Fyle's testimony concerning McGehee's employment record is not only significant in
considering the comparability question but also in determining the weight to be given
his subjective testimony generally. For example, when asked on direct examination
how long McGehee had been employed in the cabinet shop, Fyle replied, "Since
1960." At least the implication of this testimony is that McGehee had been employed
in that department continuously since 1960 which he clearly was not. Fyle also testi-
fied on direct examination that McGehee was employed in the cabinet department at
the time Guercio was discharged but when he was asked on cross-examination whether
Guercio and McGehee were ever employed in the cabinet shop at the same time, Fyle
answered, "I don't recall." In short, it is clear that, as Fyle admitted, he was appar-
ently "wrong" in some of his testimony concerning McGehee's employment record,
that the "term of absence was another case" and that he "was evidently confused
when . this problem [with respect to McGehee] had arisen." 27
Fyle did not contend that McGehee was an accomplished cabinetmaker when he
was hired or that he was one International employee who was really skilled. I assume,
therefore, that he was trained by Gibraltar, training which was denied Guercio by
reason of his discharge.28 This means that Fyle was comparing McGehee's skill in
December 1963 with Guercio's skill more than 3 years before. Although Fyle pointed
out that the trailers produced prior to the discharges were relatively simple and that
those produced in 1963 were much more complicated, he admitted that the change was
a gradual one; i.e., that it did not take place overnight.
Guercio had been working for International for approximately 18 months at the
time he was discharged and it is undisputed that he had been assigned to teach new
employees. Moreover, he was described by Fyle as a "basic all around man." When
he quit on one occasion because of a dispute with another employee, he was asked to
return by one of the Fyles, a request which is difficult to reconcile with Gibraltar's
claims concerning Guercio's general lack of ability.29 These facts convince me that
Guercio was at least a reasonably competent employee who, with the additional train-
ing provided by Gibraltar, would have been able to do work comparable to that done
by McGehee.30 This is not to say that Guercio would have done exactly the same
work that McGehee does but that is not the issue. The question to be decided is
whether the Regional Director reasonably and properly concluded that Guercio would
pFyle testified on direct examination that he did not recall the reason for McGehee's
"transfer," that it could have been a personal problem
n Further evidence of the unreliability of subjective testimony concerning events which
occurred more than 3 years In the past Is to be found in Guerclo 's testimony that he
worked in the cabinet department "a good four or five months" In 1960 which he did
not-and that of Gibraltar's witness Davis-again contrary to fact-that Guercio was
in "final finish" when he was discharged and that he did not remember Guercio's return-
ing to the cabinet department except perhaps for a day or two. In fact, Davis testified
at one point that Guerclo was not discharged but was transferred to another department
se As set forth supra, although Guercio was discharged several months before Gibraltar
took over, Fyle testified that he felt that Guercio had been given an opportunity to
Improve "after we took over" and had not done so.
11 It Is not clear whether Guerelo was asked to return by International President
James Fyle or Respondents' witness Pyle.
311 do not credit the testimony of Respondents ' witness Davis that Guercio was gen-
erally incompetent and could never have learned to be a cabinetmaker. I note in this
connection that managemnet obviously does not share Davis' opinion that McGehee is
the "best mechanic" in the department since it pays him the second lowest rate in the
department
INTERNATIONAL TRAILER COMPANY, INC., ETC. 1217
have received the same rate of pay as McGehee, including the increases given
McGehee after he was rehired or reinstated following his discharge and/or demotion 31
On the basis of Guercio's employment record prior to his discharge and in view of
McGehee's discharge and/or demotion and his next to the lowest pay rate in the
cabinet department, the record as a whole causes me to conclude that the Regional
Director reasonably and properly (1) selected McGehee as the employee most nearly
comparable to Guercio and (2) used McGehee's earnings during some periods in
computing the amount Guercio would have earned if he had not been discharged.32
D. Chester E. Koso
Chester Koso was employed in the final finish department at $1.90 an hour when he
was discharged on August 15, 1960.
Following his discharge, Koso registered with the employment service which had
"nothing for him," checked newspapers, and visited numerous companies. At times
he looked for work every day, at others every other day, and on one occasion went to
Harrisburg, Pennsylvania, where, he had been told, jobs were available. There is no
evidence that he turned down any job offer or ever quit any job. In April 1961, he got
a job at the Baltimore City Hospital and was still working there at the time of the
hearing.
Fyle testified that the final finish department is the one responsible for installing
appliances, putting in bedding, hanging drapes, cleaning walls, and checking the unit
against the order for accuracy. He further testified that it was a one-man department
at the time Koso was discharged and that Koso's primary jobs were to install and
check the installation of appliances and check the water system for leaks. Under
Gibraltar, Fyle added, the service department, which had previously installed
appliances, was combined with the final finish department. Fyle also testified about
complaints about leaks in the installation of appliances in trailers produced during
the period Koso worked for International but it is apparent that he was referring to the
same incident or incidents which were mentioned to Koso at or about the time he was
discharged.33
Comer, the employee selected by the Regional Director as comparable, was hired in
April 1961, at $1.50 an hour; i.e., 40 cents an hour less than Koso was receiving. He
worked briefly in the service department and then spent 7 or 8 weeks in the labor pool.
His rate reached $1.90 (Koso's rate) in July 1961, shortly after he was transferred to
the final finish department. He became group leader of the department in the middle
of January 1962. By the end of May 1962, he was receiving $2 an hour and he
received no further increases prior to leaving the Company (for an undisclosed
reason) shortly before the hearing. The other three employees in the department were
receiving $1.50 an hour as of March 31, 1963, the end of the backpay period.
Fyle explained that the group leader in final finish "compares the order from the
customer to the actual product to see that the product is produced as it is ordered."
The finished trailer is then double-checked by "another inspector." He asserted that
Koso's duties had not included the "servicing of appliances" or checking "the drapes
and the final cleanliness of the unit." He admitted that Koso could "fill" at least some
of the jobs in the department but did not, in his opinion, have the qualities of leader-
ship displayed by Comer. Fyle named J. D. Williams, the temporary group leader, as
the employee must nearly comparable to Koso, at least in part because Williams has
the most service in the department. Williams was hired during the second quarter of
1962 and his rate of pay in March 1963 was $1.50 an hour; i.e., 40 cents less than
Koso was receiving in August 1960.34
"It will be recalled that all of the employees in a department receive the same bonus
or incentive pay if they work the same number of hours.
sa Gibraltar's claim that labor pool member Long is the employee most nearly compara-
ble to Guercio is really but a reiteration of its contention that Guercio was not a-cabinet
department employee Long's rate is $2 an hour; i.e., 10 cents more than McGehee's.
33 Koso testified without denial in the unfair labor practice proceeding that after his
discharge he visited the customer whose gas range allegedly had blown up and found
that there had been no explosion. He also testified without denial that he thereafter went
back to International and saw various management representatives, including President
Pyle and Respondents' witness Pyle, and President Pyle asked why he had visited the
customer and "caused them trouble. Because they have called back down here and
wondered why we had fired you on the charge that the stove had blew up." See also,
President Fyle's testimony in that proceeding that "excuses" had been prepared to justify
the discharges.
u One of the other two nongroup leaders was hired in September 1962 and the other
in early 1963.
1218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It does not appear that Comer, who was tried out briefly in the service department
and was then transferred to the labor pool, was hired because he was particularly
qualified to install appliances, hang drapes, or check trailers for "cleanliness." Further-
more, his rate of pay was one of the lowest among the group leaders and in March
1963 was only 10 cents an hour more than Koso's rate in August 1960.
Since Koso was the most experienced-and perhaps the only experienced-
employee in the final finish department prior to his discharge, he would have been the
logical choice for group leader. He was also, as Fyle admitted, probably among Inter-
national's highest paid employees other than group leaders, a fact which indicates that
he was regarded as one of its better employees. Since Koso worked alone, Fyle had
no real basis for judging how he would have performed as a group leader. Moreover,
final finish is not primarily a production line operation and a considerable part of the
group leader's duties is to check the finished trailer against a checklist.'
The foregoing facts, including Comer's lack of prior experience, his relatively low
pay rate among group leaders, and the fact that his rate in March 1963, was only 10
cents an hour more than Koso's in August 1960, cause me to conclude that the
Regional Director reasonably and properly selected Comer as the employee most
nearly comparable to Koso and computed the gross backpay due Koso in part upon
the earnings of Comer, including the group leader bonus received by the latter.
Koso was absent from work due to illness 11 days in the second quarter of 1961,
1 day in the fourth quarter of 1961, 1 day in the second quarter of 1962, and 1 day in
the third quarter of 1962. The gross backpay due Koso should be adjusted by
quarters to reflect these absences if the amounts set forth in the specification are based
upon the earnings of employees (whose hours were averaged during the early period)
all of whom worked at least 40 hours each week in the appropriate quarter and if
during the later period Comer worked a full workweek during every week in the
appropriate quarter.35
Respondent argues that Koso's failure to get a job between August 1960 and April
1961 indicates that he was willfully idle during that period. In support of its conten-
tion, it asserts that Koso's "experience was in sharp contrast to that of the other five
dischargees, who readily found substantial employment during that period." Each
claimant, however, must be judged on the basis of his own efforts and his own job
prospects. In other words, the fact that the other claimants found work by no means
proves that Koso's failure to get a job was due to lack of diligence.
Moreover, the record discloses that some of the others also had difficulty in getting
jobs, several never got "industrial" jobs, and several were laid off on one or more
occasions because of lack of work . In addition , there is no evidence that any one of
them, including Koso, was ever referred to any job by the unemployment service. It
is also' significant that none except Collins was able to obtain employment which
enabled him to earn substantially the amount he would have earned had he continued
to work for Respondents. Even Melvin, who Fyle admitted was a very capable
workman, was unable to find comparable employment. Finally, the fact that at the
time of the hearing. Koso was still working at the same job he got in April 1961 indi-
cates an "inclination to work" steadily and is not the record of a man who does not
want to work but prefers to be unemployed. (See Mastro Plastics Corporation, et al.,
136 NLRB 1342, 1359.)
On the basis of the foregoing facts, I conclude that Koso was not willfully unem-
ployed between August 1960 and April 1961, and that he is entitled to backpay for
that period.
I further conclude on the basis of the entire record that the amount due Koso is that
set forth in the specification subject to possible reductions for the 41/2 days he was
absent from work.
E. Andrew P. Kraus
Kraus was employed by International in January 1960 and was discharged on
August 15, 1960. He became the group leader in the metal trim department in
February and received two pay increases in the 6 months he worked for the Company.
The second one, a 25-cent-an-hour increase which raised his rate to $2.10 an hour,
came about a month before he was discharged.
As noted supra, in arriving at the average hours worked the Regional Director
excluded the hours of employees who worked fewer than 24 hours if the department gen-
erally worked 24 or more. By averaging the hours worked by the employees generally,
the gross backpay due Koso was reduced if one or more of the employees missed one or
more days for any reason. Similarly, If Comer missed one or more days for any reason,
his earnings reflected his loss of pay. Counsel for the General Counsel states in his brief
that the gross backpay alleged to be due Koso and the others was not adjusted upward
because of individual daily absences.
INTERNATIONAL TRAILER COMPANY, INC., ETC. 1219
Kraus got a job at Allied Research almost immediately but was physically unable to
do the work because of a prior operation. Thereafter, he went out every morning
looking for work and on September 23 got a job at City Baking where he was still
employed at the time of the hearing in the instant case. For some time prior to the
hearing, Kraus had been an assistant district manager for City Baking and was to
become a district manager on January 1, 1964.
According to Respondents, the Regional Director improperly computed the gross
backpay due Kraus by using, for certain periods, the earnings of Group Leader Eakes,
including the group leader bonus received by the latter. .
At the time Kraus was discharged, he was the group leader in the metal trim depart-
ment in which there were 12 men. Sometime after Gibraltar took over, the depart-
ment was divided into metal trim I and metal trim II with three men in each
department.
Eakes, the employee selected as comparable by the Regional Director, was hired in
the fourth quarter of 1960 at $1.90 an hour; i.e., 20 cents an hour less than that
received by Kraus. By March 1963, Eakes' rate had been increased to $2.30 an hour.
Fyle characterized Eakes as the Company's "hottest" group leader and expressed the
opinion that Kraus lacked the necessary "drive and spirit" and "personal trait of
leadership" to train new men and "get the spirit going to get the job done."
As indicated above, Eakes was hired after Kraus was discharged and he may well
have been hired as a replacement for Kraus. If so, Eakes would probably not have
been hired had Kraus not been discharged. Or if he had been employed, he might
have become the group leader of the second metal trim department after the old
department was divided.
Notwithstanding Fyle's testimony in December 1963 concerning Kraus' lack of
leadership ability, Kraus was made group leader about a month after he was hired, he
received two pay increases in 6 months, the second one coming after his superiors had
an opportunity to observe his performance as group leader. Moreover, his promotion
to the position of district manager with City Baking indicates that he is not wholly
lacking in managerial ability or the ability to get other employees to work
satisfactorily.
On the basis of the foregoing facts, it is reasonable to assume and I find that Kraus
would have continued to be a group leader in one of the metal trim departments, and
that the Regional Director reasonably and properly selected Eakes as the employee
most nearly comparable to Kraus. It follows that the amounts required to make
Kraus whole are those set forth in the specification except that the gross backpay for
the fourth quarter of 1962 should be adjusted downward because Kraus was unable to
work for 6 days during November 1962 because of eye trouble.36
In making the finding that Kraus would have continued to be a group leader, I am
aware that 4 of the 16 group leaders at International were subsequently discharged by
Gibraltar or quit "under fire." 37 But there is nothing in Kraus' work record, either
before or after his discharge, which makes it appear probable that he would have been
demoted; on the contrary, the facts set forth above indicate that in all probability
Kraus would have continued as a group leader. See also Fyle's selection of temporary
group leader Williams as most nearly comparable to Koso, at least in part, because he
had the most service in the department.38
3e Since the record does not show exactly when Kraus was unable to work in the
fourth quarter of 1962 and since Eakes received a pay increase on November 10, 1962,
the gross backpay due for that quarter will be computed as follows* Eakes' average daily
earnings for that quarter will be determined ; his daily average will be multiplied by 6;
and the result will be subtracted from the gross backpay set forth in the computation
for that quarter. The net backpay will, of course, be reduced accordingly. The gross
backpay due Koso for the third quarter of 1961 should also be reduced by 1 day's pay
because be was unable to work 1 day during that quarter if, but only if, the average
hours used in the computation show that all of the employees whose hours were used
worked full time.
37 There were 16 group leaders at International of whom 5 were still group leaders
at the time of the hearing. Five others quit voluntarily. Two others (Davis and Reedy)
were replaced at least in part for physical reasons. Two of the four discharged for in-
competence were retained until 1962 and Fyle described one of the others as "hard headed"
and "an objectionable type of person "
38 Fyle's selection of Puschell as the employee most nearly comparable to Kraus is not
supported by the record Even as late as March 1963, Puschell was being paid $1.85
an hour ; i e , 25 cents an hour less than Kraus was receiving in August 1960. Re-
spondent 's do not claim that Kraus' pay would have been reduced even if he had been
replaced as group leader and admitted that employees who drop back to work status
from group leader status do not have their hourly rate reduced.
1220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fyle also testified concerning numerous complaints about the poor quality of the
roofs and insulation of trailers produced by International while Kraus was, working
in the metal trim department. As in the case of Koso, these complaints are similar to
those voiced by Respondents prior to or at the time Kraus was discharged and which
were found in the prior proceeding not to have been attributable to work done by
Kraus personally.39 Moreover, leaking roofs, improper insulation, and the like are
the kind of defects which would be ,likely to result from the materials shortage which
had plagued International for months prior to the discharges. In addition, in view of
International's insistence on turning out something fast, the fact that his department
turned out poor work does not mean that it would have continued to do so under
Gibraltar when adequate materials and trained workmen were available and the
emphasis was shifted from quantity to quality.
F. Richard L. Sims
Sims was discharged on August 13, 1960. He got a job with Atlantic Trailer the
following Monday but was discharged after 1 day. The reason, he was told, was that
Atlantic had an agreement with International that it would not hire any of the
latter's employees. In late August, he got a job at Weyerhaeuser and worked there
until about Thanksgiving when he was laid off. In early December, he was hired by
Inland Container but was laid off a few weeks later because of lack of work. In
January 1961, he got a job in Glen Burnie which he quit in March because his uncle,
with whom he rode, was laid off and "no buses run out there."
After leaving the Glen Burnie job, Sims registered with the unemployment service
and looked for work every day or every other day. He was recalled to Weyerhaeuser
in July and stayed until November when he was drafted into the Army.40 Upon
receiving a medical discharge, Sims reregistered with the unemployment service and
applied at various places including Weyerhaeuser but found that he was 15th man on
the seniority list. He was recalled by Weyerhaeuser in May 1962, and continued to
work for the company until shortly before the hearing when he left to take a better job.-
Gibraltar argues that Sims forfeited his right to backpay by quitting his job at Glen
Burnie . He had no car and lost his ride when his uncle was laid off. He testified that
he was unable to get another ride and that there was no bus transportation from the
area in which he lived to Glen Burnie. I assume that it would be possible to get from
Sims' home to Glen Burnie by public transportation but that does not mean that there
were buses which would get him back and forth more or less at the time his workday
began and ended. Respondent introduced no evidence concerning the public trans-
portation available as I am sure they would have done if such evidence would have
disclosed reasonably convenient bus service between Sims' home and Glen Burnie 41
Contrary to Gibraltar's apparent suggestion, I do not believe that it would be proper
for me to obtain maps and bus schedules and determine therefrom, sua sponte, the
buses Sims could and should have taken to and from Glen Burnie 42 Clearly the
burden is upon Respondents to establish facts which would mitigate their liability
(N.L.R.B. v. Brown & Root, Inc., etc., 311 F. 2d 447,454 (C.A. 8)) and in my opinion
they have not sustained that burden here. Accordingly, I cannot conclude that Sims
was willfully idle because he did not go back and forth to work at Glen Burnie by bus
or taxi. I further conclude, therefore, that Respondents' liability to Sims was neither
terminated by the fact that he quit a job at Glen Burnie nor tolled during the period
thereafter when Sims was without work.
Sims was hired by International sometime in 1960 at $1.30 an hour. He was
assigned to the metal trim department but shortly thereafter was assigned to the
electrical department as a helper at which time his pay was raised to $1.50 an hour.
He and Nelson, the electrician, were the only two employees in the department and
when Nelson left about a month later, Sims replaced him and received a• 10-cent pay
increase. A paint department employee was assigned to Sims as a helper.
30 See also International President Fyle's testimony in the unfair labor practice proceed-
ing that the Company prepared "excuses" for discharging the claimants.
40 The specification includes no claim for backpay for the period in which Sims was
in the Army.
a Indeed, Respondent suggests in its brief that Sims could have gone to and from
Glen Burnie by taxi. Since Sims lived "right next to the trailer plant," he had no
transportation problem when working at Gibraltar.
"As a matter of fact, even if I had the maps and schedules, I would not be able to
make such a determination because the record does not show what hours Sims worked.
INTERNATIONAL TRAILER COMPANY, INC., ETC. 1221
In July 1960, Sims was away 2 weeks because of an accident and when he returned
he found that Nelson had been rehired. However, Sims continued to do the same
work as before and received the same pay. Sims testified without contradiction in the
unfair labor practice proceeding that "just a week before" he was discharged, Super-
intendent Stuttsman and Assistant Plant Manager Fyle complemented him on his work,
he and Nelson having wired and put the electrical fixtures in 18 trailers that week.
Sims frankly conceded that he was not as good an electrician as Nelson but Nelson
was also discharged on the same day as Sims 43 This means that but for Sims' dis-
charge for union activity, he would have been the employee with the most electrical
experience and it is reasonable to assume that he would have taken over Nelson's job
and position as group leader just as he had done when Nelson left a month or so
earlier. Moreover, if he had not been discharged, Sims would have generally learned
to do the more complicated electrical work which Fyle testified was required as
Gibraltar began building larger trailers with more complicated electrical wiring and
appliances.
Respondents did not claim that they hired an experienced electrician to replace
Nelson. Scarff, the employee selected by the Regional Director as comparable, was
not hired until June 30, 1962. He was assigned to "interior trim" for about 2 months
and there is no evidence that he had any experience as an electrician when he was
transferred to the electrical department in August as group leader "trainee." He was
made group leader 1 month later. In short, when Scarff became the group leader in
the electrical department, he had less experience in the department than did Sims at
the time Sims was discharged and substantially less than Sims would have had by the
summer of 1962.
In view of all the foregoing circumstances, I find that the Regional Director's selec-
tion of Scarff as a comparable employee is both reasonable and supported by the
record and that he properly computed the gross pay due Sims in part on the basis of
Scarff's earnings 44
Needless to say, Sims' 2 weeks' absence from work after the end of the backpay
period in no way affects Respondents' liability. He was absent a few days in late 1962
and another few days in 1963 because of the illness of his children.45 The gross back-
pay due him for the last quarter of 1962 and the first quarter of 1963 should be
reduced accordingly if, but only if, Scarff worked full time during each week of both
quarters.
IV. CONCLUDING FINDINGS AND RECOMMENDED ORDER
On the basis of the foregoing findings of fact and conclusions, I find that Respond-
ents' obligation to make the six employees whole under the Board's Order and the
court's Decree will be discharged by payment to each of them the amount set forth
opposite his name:
Thomas C. Collins ------ $3,392.26 Andrew P. Kraus ------ $3,383.96
Gordon L. Melvin ------ 3,275.48 Chester E. Koso -------- 8,122.50
Joachim B. Guercio III __ 3 ,204.37 Richard L. Sims -------- 2,797.86
I recommend that each of the above-named employees be paid the amount set forth
opposite his name. An adjudication now having been made of the entire amount of
Respondents' indebtedness, it is proper and not inconsistent with the Board's Order
or the court's Decree that the indebtedness bear interest at 6 percent per annum from
the date ^ of issuance of this Supplemental Decision and Recommended Order until
paid, and I so recommend.46
ss There was apparently no contention that Nelson was discharged because of his
union activity and his departure from the Company a month or so earlier suggests that
he was unsatisfactory for some reason
" It is undisputed that Sims was an electrical department employee and there is no
evidence that he had ever been assigned to the labor pool Accordingly, there is no basis
for Respondents' contention that labor pool employee Long Is the most comparable em-
ployee to Sims. Indeed, Respondents contended in their answer that Sims' earnings
should be computed on the basis of the average hours worked by the electrical department.
45 He testified that he was absent "at most" for 5 days.
4' My recommendation concerning Interest Is not based upon Isis Plumbing & Heating
Co , 138 NLRB 716, but upon the established practice in suits at law that a monetary
judgment bears interest from the date of entry until satisfied.