J. H. Rutter-Rex Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Oct 26, 1973

206 N.L.R.B. 656 (N.L.R.B. 1973)

656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
J. H. Rutter-Rex Manufacturing Company, Inc. and
Amalgamated Clothing Workers of America AFL-
CIO. Cases 15-CA-721 and 15-CA-723
October 26, 1973
THIRD SUPPLEMENTAL DECISION AND
ORDER
By CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY I
On May 29, 1973, Administrative Law Judge Lo-
well Goerlich issued the attached Third Supplemental
Decision in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief, and the Gen-
eral Counsel filed a brief in support of the Adminis-
trative Law Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the Ad-
ministrative Law Judge's Third Supplemental Deci-
sion in light of the exceptions and briefs and has
decided to affirm the rulings, findings, and conclu-
sions of the Administrative Law Judge and to adopt
his recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
' tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, J. H. Rutter-Rex Manufac-
turing Company, Inc., New Orleans, Louisiana, its
officers, agents, successors, and assigns, shall take the
action set forth in said recommended Order.
i We especially agree with the finding of the Administrative Law Judge
that a narrow question was before hun in the remand hearing ordered by the
Court of Appeals for the Fifth Circuit in J. H Rutter Rex Manufacturing
Company, Inc v. N.L.R.B, 473 F.2d 223, i.e., the question of Fannie
Watford's reinstatement offer as determined from an examination of the
Board files by witness Lacey. The court stated that the Trial Examiner did
err, in not requiring the Board to produce the Watford file for the narrow
purpose of allowing Lacey to refresh his memory. The court also stated that
the Company was entitled to a new hearing before the Board on the Watford
claim at which time the Board must permit Lacey to review the Watford file
if a similar situation were to arise Thus, we find that the court's language
regarding a new hearing was indeed hunted, as found by the Administrative
Law Judge.
We also find that two inadvertent typographical errors in the Decision of
the Administrative Law Judge require correction Thus, the dates shown as
1972 and 1973 on p. 3, 1. 7, of the Decision should actually appear as 1962
and 1963. In addition, p 4, 1. 24, of the Decision which reads "had been
communicated to the discrimmatees" should actually appear as "had not
been communicated to the discnminatees."
THIRD SUPPLEMENTAL DECISION
LOWELL GOERLICH, Administrative LawJudge: On Febru-
ary 21, 1973, the Board issued an Order Reopening Record
and Remanding Proceeding to Regional Direction for Fur-
ther Hearing as follows:
On November 5, 1971, following issuance of the
opinion of the Supreme Court of the United States in
this proceeding, the National Labor Relations Board
issued a Second Supplemental Decision and Order in
which it ordered Respondent to pay certain enumerat-
ed employees the amounts of net backpay awarded
them. In particular, the Board ordered Respondent to
pay Fannie M. Watford $9,592 with interest.
Thereafter, upon a petition to review the Board's
Order filed by Respondent, and a cross-application for
enforcement thereof filed by the Board, the United
States Court of Appeals for the Fifth Circuit enforced
the entire backpay order with the exception of the Wat-
ford claim. In that case, the Court found that "the
Board erred in refusing to produce Watford's file for
the purpose of allowing refreshment of witness Lacey's
memory" and because such refusal was prejudicial, Re-
spondent "is entitled to a new hearing before the Board
on the Watford claim, at which time the Board must
permit Lacey to review the Watford file is a similar
situation arises." The Court remanded the Watford
claim for further proceedings not inconsistent with its
opinion. Accordingly, the Board having accepted the
remand,
IT IS HEREBY ORDERED that the record in this proceed-
ing be, and it hereby is, reopened and that a further
hearing be held before an Administrative Law Judge to
be designated by the Chief Administrative Law Judge
for the purpose of taking evidence on the Watford
claim in accordance with the Court's remand of Janu-
ary 16, 1973.
IT IS FURTHER ORDERED that this proceeding be, and it
hereby is, remanded to the Regional Director for Re-
gion 15 for the purpose of arranging such further hear-
ing, and that the Regional Director be, and he hereby
is, authorized to issue notice thereof.
IT IS FURTHER ORDERED that, upon the conclusion of
such further hearing, the Administrative Law Judge
shall prepare and serve upon the parties a Third Sup-
plemental Decision containing findings of fact upon
the evidence received, conclusions of law, and recom-
mendations; and that following service of the Third
Supplemental Decision upon the parties, the provisions
of Section 102.46 of the Board's Rules and Regulations,
Series 8, as amended, shall be applicable. [Footnotes
omited.]
Thereafter, on April 10, 1973, pursuant to the remand,
this matter came on for hearing at New Orleans, Louisiana.
John T. Lacey, the witness referred to in the court's remand,
and John M. Drake testified for the Respondent. During
Lacey's examination, the Board's files, as directed by the
court, were made available for Lacey's examination. The
additional testimony of Lacey and Drake and the briefs and
arguments of the parties have been examined in the light of
206 NLRB No. 80
J: H. RUTTER-REX MFG. CO. 657
the record as a whole and the demeanor of the witnesses.
In its opinion on remand, the court of appeals stated that
the Respondent's request for Lacey's further testimony
"had a very narrow focus and purpose. Lacey had stated on
the stand quite clearly that if he could see the file, he might
be able to clear up in his own mind the narrow question of
Fannie Watford's reinstatement offer." t It is this narrow
question which is now before the Administrative Law Judge
and to which this decision on remand must be confined 2
In the Administrative Law Judge's initial decision in this
matter it was stated that "[t]he Respondent claims that Wat-
ford was offered employment by the Respondent sometime
in December 1961. The Respondent produced no credible
written or oral substantiating evidence to support this con-
tention." 3 At the remand hearing, certain exhibits and the
testimony of Lacey and Drake were seemingly offered to
cure this lack. Citing this evidence, the Respondent no lon-
ger relies on the December 1961 date, but now asserts in its
memorandum, "There are three distinct possibilities for an
earlier cutoff date on the Watford claim. First, January,
1972; second, September 30,1973; and, a date in 1967."
(Emphasis supplied.)
First: Exhibits offered on remand by the Respondent
reveal that, Watford filed employment applications with the
Respondent on December 4, 1961, and September 27, 1963.
In addition, a company "Absentee Form" dated November
27, 1971, was offered, indicating that Watford "called and
asked if we had opening-told by J. Drake that she should
come in and fill out an application-we have opening for
experienced operators.
A letter from Lacey to Respondent's attorney, Lund, dat-
ed July 17, 1970, was also offered in which Lacey indicated
that he "would recommend in settlement of the Supplemen-
tal backpay at this time" certain minimum amounts for
discriminatees including Watford. Watford's claim was set
at $590. It is suggested that from this low figure it should
be concluded that Lacey had information that Watford had
been offered a reinstatement which tolled backpay much
earlier than that contended by the General Counsel. How-
ever, Lacey, after several stabs at explaining the source of
the figure, finally testified that the $590 figure was based
"on lack of search and also other earnings made at Louisi-
ana Garment.- 4
The "three distinct possibilities" were referred to by'La-
cey as follows:
First offer, January 1962. Information in regard to this
offer was derived by Lacey from information given to an-
other examiner, John Immel, which Lacey "happened" to
pick up in the file.5 This offer followed Watford's telephone
call on November 27, 1961, and her application filed on
December 4, 1961, and was apparently pursuant to the ap-
plication. The offer was "limited to her coming back on the
particular day in which the call was made and she happened
to be sick on that day." Lacey did not consider this offer to
be adequate since Watford was not told that she could
return when she had recovered from her illness 6 and he
believed that offer may have been tied to her application.7
It further appears that this offer was the one referred to by
Watford in her testimony which she fixed as occurring in
1958 or 1959.
Second offer„ sometime in 1967. In respect to this offer,
Lacey's recollection was refreshed from undated notes in
the file which he thought were the result of a communica-
tion from Watford in the "general neighborhood of March
or April or early May of 1970." Watford related to Lacey
that she had received an offer "sometime in 1967"; that
prior to the offer she had filled out an application for em-
ployment; and that she did not accept the "apparent" offer
because she was employed at the time.
Third offer, exact date not established. Lacey testified that
the offer was made to Attorney Jackson by either Attorney
Read or Attorney Lund, but was never communicated to
Watford. Lacey did not consider the offer a "proper" offer
because it had been communicated to the discriminatees 8
Second: The Board's Order in the instant case (115 NLRB
388, 391) enforced by the Court of Appeals for the Fifth
Circuit (245 F.2d 594) required among other things that the
Respondent "Upon application, offer immediate and full
reinstatement to their former ' or substantially equivalent
positions to all those employees who went on strike April 21,
1954, or thereafter,9 without prejudice to their seniority or
other rights and privileges, dismissing if necessary all persons
hired on or after that date, and make such applicants whole
for any loss of pay suffered by reason of the Respondent's
refusal, if any, to reinstate them, in the manner set forth in
the section of the Intermediate Report entitled "The Reme-
i J H. Rutter-Rex Manufacturing Co, Inc. v. N.LR.B, 473 F.2d 223, 239
(C.A. 5, 1973).
2 Thus the contention of the Respondent that Watford should be barred
from backpay during the period 1961 through 1963 because of willful loss of
earnings is not before the Administrative Law Judge for decision on remand.
However, if it were a consideration , Lacey's testimony on this subject was
so vague and speculative that it warrants no probative value in the light of
Watford's heretofore credited testimony.
3 In this respect the court of appeals opined (J. H. Rutter-Rex Manufactur-
ing Co., Inc. v. N.L.R B., supra, 235), "The Company lacked specific docu-
mentation for its allegation that Watford was offered reinstatement in 1961,
and sought the testimony of Lacey "
4 In any event the figures set out in Lacey's letter do not support the
conclusion , since, by comparison with the Board's findings , many areinaccu-
rate. For example, BeatriceWhiteLane: Lacey-$680, Board-$3,007; Lear-
son: Lacey-$2,725, Board-$1,591; Landry. Lacey-$952, Board-$192;
Green: Lacey-$2,645, Board-$3,536; Johnson. Lacey-$2,176,
Board- $2,772, Allen: Lacey-$1,960, Board-$2,543. In reference to
Watford's figure, Lacey explained , "I am rather convinced from having
reviewed the files that it was quite an inexact figure ... this figure that Iliad
arrived at, $590, which appears in one of these letters, was obviously inexact
.... And there again in making that determination of that figure I doubt
at that time I had any records which would have reflected what Watford
would have earned had she been employed at Rutter-Rex itself." Lacey's
testimony on this subject sheds no light on whether Watford had received a
valid offer of reinstatement
5 As noted by the court of appeals this kind of testimony ascends to the
"second level of hearsay" and the use of such testimony "cannot be consid-
ered conducive to the ascertainment of a reliable factual picture and indeed
might be counterproductive to the search for truth."
The Respondent had a policy of allowmg employees to return to work
after illnesses. See court of appeals decision, supra
7 By this, apparently Lacey meant that she, in response to the application,
was offered employment as a new employee rather than as a reinstated
emsployee with all rights and privileges.
Apparently the Respondent does not claim that the third offer tolled
backpay because in the conclusion of its memorandum it contends only that
"the backpay of Fannie Watford should be tolled as of January 1962. Alter-
natively, in event this date is considered inappropriate, the claim should be
tolled no later than September 30, 1963."
9 Watford was in this group.
658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dy." 10 (Emphasis supplied.) Thus the offer required under
the Order was more demanding than a bare offer of a job.
It was the Respondent's obligation by its offer to afford
"full and complete reinstatement privileges" to Watford.
(Cf. Mission Rubber Company, Inc. 202 NLRB No. 17.) This
meant that the Respondent, in order to have tolled backpay,
must have offered Watford not only her "former or substan-
tially equivalent" position but also all privileges and rights,
including seniority rights which obtained to her job.11 "The
reinstatement obligation properly rests with the Respondent
and is satisfied only by a valid and unconditional offer of
reinstatement," 12 which is only valid and unconditional if
the offer is coextensive with the order for reinstatement. An
offer to return as a new employee 13 or an offer which does
not allow reasonable time in which to report for work 14 or
does not allow reasonable latitude in reporting because of
illness does not constitute an offer which will toll backpay.
Lacey's testimony, if given its greatest probative weight,
does not establish that"the Respondent was affording Wat-
ford "full and complete reinstatement privileges." Indeed
the implication is that by these offers, shortly following
Watford's applications for employment, the Respondent
meant to treat her as a new employee. Such conclusion
surely follows from Drake's communication to Watford on
November 21, 1961, in which he told her that he had open-
ings but that she should fill out an application. Had he
intended to treat her other than as a new employee, it seems
reasonable that he would have offered her a job forthwith.
Moreover, while Lacey testified that the Respondent had
offered Watford jobs, there is no credible evidence that
these jobs were the same as her position or substantially
equivalent positions. Nor is there a scintilla of evidence that
the job offers contemplated a restoration of her seniority, if
any, and her other full and complete reinstatement privileg-
es.15 To produce such proof was the burden of the Respon-
10 The "Remedy" required "payment to each of them of a sum of money
equal to that which he would normally have earned, less his net earnings,
during the period from 5 days after the date on which he applies for reinstate-
ment to the date of the Company's offer of reinstatement "
11 "In computing backpay awards the Board endeavors to restore the
employee to the status quo he would have enjoyed if he had not been
discriminatorily discharged." NLR.B. v. Robert Haws Company, 403 F.2d
979, 980 (CA. 6).
12 Harrahs Club, 158 NLRB 758, 759, fn 1
13 See Tennessee Packers, Inc, Frosty Morn Division, 158 NLRB 1316.
14 See Harrah's Club, 158 NLRB 758
15 While Lacey reported that Watford turned down the second offer be-
dent for the "burden of proving facts that show no liability
or that mitigate the extent of damages" is on the employer
in-a backpay case arising out of an employer's unfair labor
practices. N.L.R.B. v. Robert Haws Company, supra at 981.
See also J. H. Rutter-Rex Manufacturing Company, Inc. v.
N.L.R.B., 399 F.2d 356 (C.A. 5). The Respondent has not
met this burden as to Watford's claim by the evidence of-
fered in this proceeding." In this regard, the testimony of
Lacey and Drake and the exhibits offered in the remand
hearing have been weighed.
Accordingly, ittis found that backpay owed Watford is
the same as in the Board's Second Supplemental Decision
and Order-$9,592.
Upon the basis of the foregoing findings of fact and con-
clusions of law, and the entire record before the Administra-
tive Law Judge, and pursuant to Section 10(c) of the Act,
it is recommended that the Board issue the following:"
THIRD SUPPLEMENTAL ORDER
Respondent, J. H. Rutter-Rex Manufacturing Company,
Inc., New Orleans, Louisiana, its officers, agents, succes-
sors, and assigns, shall make Fannie M. Watford whole by
payment to her of $9,592, together with interest at the rate
of 6 percent per annum, commencing June 2, 1964, and
continuing until the amount is paid in full, but minus tax
withholding required by Federal and state laws. ,
cause she was employed elsewhere, the offer turned down for such reason
would not have tolled backpay because there is no persuasive evidence that
the offer which was tendered by the Respondent included in its scope an offer
of her former position or a substantially equivalent position and restoration
of her full and complete reinstatement privileges Cf Burnup and Sims, Inc.,
157 NLRB 366, enfd. 383 F.2d 987 (C.A. 5); Rushton & Mercier Woodworking
Co., Inc. and Rand & Co, Inc., 203 NLRB No. 17.
16 In respect to the 1967 offer, the Respondent claims that it was tendered
m 1963 Its claim is based on the fact that the offer followed an application
for employment with the Respondent and that the last application filed by
Watford with the Respondent was in September 1963. Further corroboration
is claimed in the fact that Watford turned the offer down because she was
working elsewhere. Since she was not working in 1967 but was on strike from
Louisiana Garment and was working the last quarter of 1963, the Respon-
dent reasons that being unemployed in 1967 she would not have turned the
job down, but would have rather turned the job down in 1963 when she was
employed. Whether the offer occurred in 1963 or 1967 need not be decided
since, whether the offer was tendered in 1963 or 1967 , it was an invalid offer.
17 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Third Supplemental Order herein shall, as
provided in Sec. 102.48 of the Rules and Regulations, be adopted by the
Board and become its findings, conclusions, and Order, and all objections
thereto shall be deemed waived for all purposes.