Mooney Aircraft, Inc.

National Labor Relations Board - Board DecisionsDec 23, 1965

156 N.L.R.B. 326 (N.L.R.B. 1965)

326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2.-Take the following affirmative action which it is found will effectuate the policies of the Act: (a) Post at its business offices and meeting halls, copies of the attached notice marked "Appendix A." 12 Copies of said notice, to be furnished by the Regional Director for Region 19, shall, after being duly signed by Respondent's authorized representatives, be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its members are customarily posted. Reasonable steps shall be taken by Respondent to insure that such notices are not altered, defaced, or covered by any other material. (b) Sign and mail copies of said notice to the Regional Director for Region 19 for posting by Baugh and Miller, those companies willing, at all locations where notices to their employees are customarily posted. (c) Notify the Regional Director for Region 19, in writing within 20 days from the date of the receipt of this Decision, what steps Respondent has taken to comply herewith 13 It is further recommended that unless on or before 20 days from the date of its receipt of this Trial Examiner's Decision, Respondent notify the Regional Director that he will comply with the foregoing Recommendations, the National Labor Rela- tions Board issue an Order requiring Respondent to take the action aforesaid. 12 In the event that this Recommended Order be adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order." 13 In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, In writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX A NOTICE TO ALL MEMBERS OF PAINTERS LOCAL UNION No. 720, BROTHERHOOD OF PAINTERS, DECORATORS AND PAPERHANGERS OF AMERICA, AFL-CIO Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify you that: WE WILL NOT threaten, coerce, or restrain Baugh Construction Company or any of its subcontractors with picketing a jobsite where an object thereof is to force or require Baugh to cease doing business with Miller Decorating Company. PAINTERS LOCAL UNION No. 720, BROTHERHOOD OF PAINTERS, DECORATORS AND PAPERHANGERS OF AMERICA, AFL-CIO, Labor Organization. Dated------------------- By------------------------------------------- (Representative) (Title) 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. If members have any question concerning this notice or compliance with its provi- sions, they may communicate directly with the Board's Regional Office, 327 Logan Building, 500 Union Street, Seattle, Washington, Telephone No. 682-4553. Mooney Aircraft, Inc. and Lodge 725, International Association of Machinists, AFL-CIO. Case No. 23-CA-1475. December 23,. 1965 SUPPLEMENTAL DECISION AND ORDER On August 9, 1965, Trial Examiner Lloyd Buchanan issued his Trial Examiner's Supplemental Decision, attached hereto, finding 156 NLRB No. 36. MOONEY AIRCRAFT, INC. 327 the discriminatee, George E. Mays, entitled to a payment of $2,952.30.1 Thereafter, the General Counsel and Respondent filed ex- ceptions and briefs, and Respondent filed a reply to the General Coun- sel's statement of exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members Fanning and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the entire record in this case, including the Trial Examiner's Supplemental Decision, the exceptions, the briefs, and the reply, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. [The Board ordered that Respondent make whole George E. Mays by payment to him of the amount set forth in the Trial Examiner's Supplemental Decision.] 1 The Board by Its Decision and Order of June 5, 1963, Mooney Aircraft, Inc., 142 NLRB 942, directed Respondent to make Mays whole for the losses he incurred as a result of Respondent 's unfair labor practice. TRIAL EXAMINER 'S SUPPLEMENTAL DECISION The United States Circuit Court of Appeals for the Fifth Circuit has , by opinion dated October 21, 1964 ,1 and decree dated November 19, 1964 , enforced the Board's Decision and Order of June 5 , 1963,2 directing , inter alia, that the Company make George E . Mays whole for losses resulting from the Company 's discrimination against him. A hearing was held before Trial Examiner Lloyd Buchanan from May 25 through 27 , 1965 , inclusive , on the backpay specification dated April 8, 1965, as amended , and the answer thereto , as amended . Pursuant to leave given to all parties, a brief has been filed by the General Counsel , the time to do so having been extended. Upon the entire record of the hearing , and from my observation of the witnesses, I make the following: FINDINGS OF FACT ( WITH REASONS THEREFOR) The evidence received at the hearing covers the period from August 9, 1962, when Mays was discharged , through the first calendar quarter of 1965. Little need be said concerning the Company 's claim that Mays unduly delayed and should not be paid for the period between November 20, 1964 ,3 when he received the Company's letter offering reinstatement , and November 27, when he reported for work. Employed approximately 100 miles away ( his earnings credited here ) and having moved his family , Mays did not unreasonably delay action for reinstatement. The Company evidently recognized this when it called for his return within 5 working days and raised no question of delay on November 27. Mays was himself a poor witness . It will suffice at the moment to note his fre- quent inability to recall . But as with respect to his absences , more definite and reliable evidence was at times available than that which the witness could himself offer. A. Promotion to leadman ; welding work I find, on the basis of the credited testimony , that Mays was entitled to and, had he not been discriminatorily discharged , would have been promoted to leadman on August 3, 1964 , when Fritz and Stephens, each formerly a mechanic A like Mays, 1 337 F. 2d 605. 2 142 NLRB 942. 3 The Company In its answer carried computations through November 21. 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were so promoted. Mays' seniority admittedly warranted such promotion before either of the other two were promoted, and the Company has failed in its defense that he lacked either ability or efficiency. I could not properly, nor do I, set up my own judgment concerning Mays' quali- fications or, in the terms of the collective-bargaining agreement, his ability or effi- ciency on the basis of which alone the Company could ignore his seniority rights. Nor could I, even if so inclined, compare him, his initiative, etc., with Fritz or Stephens, who have not appeared before me, and their work and personal qualifica- tions. But I do not credit the Company's attempts to downgrade Mays insofar as his relative ability and efficiency are concerned. Harmon, the Company's vice president in charge of engineering and manufacturing, first testified that Mays lacked initiative and leadership qualities, and made brief reference to Fritz' and Stephens' technical abilities. (He did not suggest that Mays had at any time or on any assignment through the years of his employment shown insufficient ability.) Later, after it was pointed out that in a failure to promote Mays the significant issue would be not merely his qualifications or lack of them but what the Company considered and evaluated at the time when he should have been promoted or when he returned to work 3 months thereafter, Harmon was recalled by counsel for the Company and asked to check the list of leadman qualifica- tions. As to most of these he disclaimed personal knowledge, thus largely minimizing his earlier attempt at comparison with Fritz and Stephens, (To whatever extent it may be covered in the Company's listed qualifications, technical ability is not listed. This may be because the Company assumes and recognizes such ability in all of its class A mechanics.) Among the qualifications concerning which Harmon claimed to have personal knowledge are such intangible and subjectively rated items as leadership ability, proper attitude toward company objectives, aggressiveness (desirable as it manifests itself in doing more work and "the ability to impart this to other employees;" not at all desirable in the Company's eyes, as has been found, when it manifests itself in union activities), and "in the opinion of management, capability of future develop- ment" and promotion. To the extent that such an objective and demonstrable item as helping others is concerned, Carney 4 himself testified that Mays was among those who taught him to weld. Harmon's criticism now was that Mays has not "completely" trained any employee, this in the absence of evidence that he could have or that anyone in the plant has himself completely trained any employee. As for ambition and initiative, Harmon as he testified appeared to be not at all impressed by the fact that Mays had completed a blueprint reading course and had passed welder's tests. It is evident that Harmon was straining here to prove more than he could show and more than he had claimed the day before as the reasons for not promoting Mays to leadman. Having thus told us that he had considered at the time of reinstatement on November 27, 1964, the various qualifications for leadman, Harmon proceeded to list Mays' shortcomings as compared with Fritz and Stephens. Harmon thereafter told us that he discussed the qualifications of the three men with his supervisors and that this occurred immediately after Mays filed a grievance in February 1965 because he had not been made leadman; and that he had not considered Mays for leadman before that time. In this connection Cox, Mays' foreman, testified that when Mays told him one afternoon since his return that he would like to go back to welding work instead of painting off by himself, he replied that Mays was not getting along with others (this is one of the listed leadman qualifications) and was doing a good job by himself. Despite the latter praiseworthy element, Cox without citing proof or instances, main- tained that Mays requires close supervision "sometimes." With the history of com- pany discrimination and in the absence of details or explanation concerning Mays' alleged inability to get along with his fellow employees, a reasonable inference would be, if inference be necessary, that the remark about getting along with others referred to Mays' organizational activities and reverberations therefrom; certainly there is no proof here of any failure by Mays to get along with others. Actually, the Company has not given him the opportunity to show such a shortcoming as it has generally assigned him to work alone since his reinstatement. Called presumably to justify the failure to promote Mays, Tonnessen, the Com- pany's production superintendent, testified that he observed Mays more prior to his discharge than he has since his return. Aside from his emphasis on subjective items 4 We shall note Infra that, with respect to both reinstatement to his former job and comparison of earnings , Mays should in the alternative have been assigned to welding work since his return. MOONEY AIRCRAFT, INC. 329 which are not susceptible of proof and which I do not credit , and failure to testify concerning any observed failure by Mays to measure up, Tonnessen strengthened the discriminatee 's position as be referred to ability to follow drawings and impelled me to receive in evidence exhibits which cited Mays' completion of a blueprint reading course, which I had theretofore rejected as not having been shown to be connected with the work under consideration . (The list of leadman qualifications, which includes this ability , was thereafter offered by the Company and received.) The only other witness called in this connection by the Company was Leas, the manufacturing plant engineer ; who testified that since Mays' return he has observed him, Fritz, and Stephens but not as much as has been done by "direct supervision," this evidently referring to Cox. Again we have been regaled with subjective con- clusions such as aggressiveness and ability to "carry the ball." Leas did tell us, to justify the denial of welding work to Mays since his return, that he requires close supervision (although admittedly less knowledgeable, he was more definite con- cerning this than had been Cox, who preceded him on the stand) but that painting calls for a minimum of this. However much or little supervision he requires, the fact remains that Mays works alone and is apparently relied on not to loaf on this work, which he does not want to perform. While decision on the leadman issue makes it unnecessary to answer the question whether Mays should have been assigned to welding and other duties generally performed instead of being banished and sentenced to work alone on painting, the very attempts to minimize the time he spent on welding before his discharge and his testimony that he had instructed Carney, which the latter confirmed, underscore the nature and extent of the Company's animus; and this stands out more clearly as the dominant factor rather than the generally subjective attempts to minimize Mays' qualifications. Significantly, although it has been held that Mays' absences did not in fact prompt or warrant his discharge in 1962, they could be cited, even if they were excused, as an item militating against his promotion since absence of a leadman might be shown to be more serious than that of a mechanic. But this latter was not shown, and among the factors which the Company emphasized that of absences was not included. (Here again I do not set up my own opinion of what might be a significant factor when the Company did not.) In fact, when comparison was made among Mays', Fritz' and Stephens' 1962 absences, it was done by Andrus, the Company's assistant personnel manager, in connection with her testimony concerning his absences while employed elsewhere, as he had himself acknowledged them. This, as we shall further note, appeared to be done in connection with the issue of absenteeism as it affects backpay, not to show that she considered Mays' absences as a reason for not promot- ing him. As she following this with testimony concerning a conversation with Mays with respect to his qualifications, she also cited his alleged attitude or appearance of belligerence and an objective factor, his lesser experience before coming to work for the Company, of which more infra. Undertaking to explain Mays' relative short- comings, she did not even here cite the absence factor, which is supported by the evidence and could have been argued as having swayed the Company were the explanation for not promoting Mays other than pretextual. We recall that Harmon tried to minimize Mays' ability to train others, by injecting the factor of complete training; and that he later undertook to expand on Mays' lack of qualifications for leadman. Casting further light on Harmon's reliability on the stand, we recall further his testimony first that, comparing Mays' qualifications with those of Fritz and Stephens, he had considered these when Mays returned to work in November; but then that he had not considered Mavs for leadman until after the February 1965 grievance had been filed. While I have found that Mays was a poor witness, his satisfactory work on the job and his seniority stand as facts. The burden shifted to the Company to support its claim that he lacked ability and efficiency, and I do not credit the testimony submitted in support of the claim. The defense in the unfair labor proceeding did not go to such alleged shortcomings in Mays as lack of initiative. Nor do I credit the present claims that his ability and efficiency are less than those of Fritz and Stephens. As for the testimony that the latter two had more experience before entering the Company's employ, this would indeed constitute a novel argument: that we ignore the Company's admitted recog- nition of seniority. (It stands uncontradicted that, when it was recently pointed out that Mays had shown leadership ability at Loadcraft and in the National Guard, the Company's reply was that activities elsewhere are not pertinent.) The Company's motivation and the reason for its failure to promote Mays can be understood in the light of its longstanding animus as previously found. Testimony that various former strikers or stewards (aside from the greater indicated extent of 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mays' activities and representation of the Union ) have not been discriminated against does not overcome the proof of discrimination previously found and again shown. There is sufficient basis for inferring , from Mays' union activity , the Company's knowledge thereof, and the pretextual nature of the explanation or defense offered, that the Company 's actions vis-a-vis Mays and its failure to comply with the rein- statement order were themselves discriminatory . This finding is further supported by the finding , in the proceeding out of which our inquiry arises, that the Company's hostility is, inter alia, "continuing" in character . It is clearly so even without con- sideration of the delay in raising Mays to $1 . 95 and the refusal to grant his request for leave of absence before returning to the Company ; and aside from any alleged threat to discriminate , which Harmon denied. The Company has failed to comply with the reinstatement order. If it be argued that there are two leadmen and no more are needed , the answer is that any problem thus created is of the Company's making and that the evidence shows that but for the discrimination against him Mays would have been working at the plant and received the promotion . If as Harmon detailed , the Company failed to consider Mays for leadman when he returned , we do not even reach the question of his comparative ability. His qualifications and entitlement to promotion accepted, Mays can better than anyone else proceed to show by absences or otherwise that he should not be retained as leadman . This is noted not to encourage further discrimination against him; it may prompt him to avoid that possible ground for subsequent and lawful demotion. No more than we are concerned with what might have been done as distinguished from what the credible evidence shows was done here, do we now anticipate either dere- liction by Mays or discrimination by the Company . My own impression of Mays' qualification with respect to initiative , leadership , proper aggressiveness , etc., being quite irrelevant, this decision is based on the evidence received and without anticipat- ing future acts or events . The suggestion was made at the hearing that the case be settled if some basis agreeable to the parties could be found . But it is not anyone's function , certainly not mine, to mediate at this stage . Nor is this a prescription for instant paradise . It merely declares the status and the relationship which would obtain but for the discrimination against Mays. I shall not resist the urge to express my feeling that, were this an attempt "to make everyone happy," that might more nearly be accomplished by a compromise with certain backpay findings and a denial of the claim for promotion to leadman . But the evidence before us and the apparent attitude of the parties as disclosed , the immediate facts and the perspective before us , indicate that, but for the discrimination, Mays would have been promoted. Because considerable time was spent at the hearing in connection with the alterna- tive claim for welding work , and because backpay figures were received in this con- nection, it may be helpful at this time to cover the issue , which would face us but for the leadman promotions . Whatever the greater percentage to which Mays testified in this respect , whatever other percentages were testified to, and whatever the total amount of welding which had been performed in the maintenance department, it is clear from Foreman Cox 's testimony that prior to his discharge Mays had done half of all of the welding in the department , and therefore more than that done by any of the other five mechanics who shared in that work . We recall that he had admittedly helped train Carney, who has been doing most of the welding since Mays' return. But the Company has now denied him welding work. Except for approximately 3 hours of welding on two small jobs and various odd jobs during the first month after his return , Mays has been assigned to painting , which does not call for overtime and had previously been rotated among the men ; and this although he asked to go back to welding . It begs the question to argue that he has lost opportunity for overtime because painting does not require it; by the very assignment (such work is also done by class B mechanics ) the Company has discriminated and failed to offer proper reinstatement . Mays' ability as a welder is not questioned , and his reinstatement rights to such work as well as to overtime earnings therein are clear. As in connec- tion with its failure to promote him to leadman , so with respect to refusal to assign Mays to welding has the Company manifested its continuing discriminatory attitude. There remains in this proceeding only to find the amount of backpay due Mays. B. Gross straight-time backpay and absences The gross backpay due Mays is properly computed on the basis of the straight-time pay, overtime pay, and incentive pay received by representative employees, less MOONEY AIRCRAFT, INC. 331 deduction for absences recognized from Mays' absentee record. The question in this connection, omitting for the moment the issue of diminution of overtime is whether Fritz and Stephens are representative from August 3, 1964, when they were promoted to leadman.5 Since this question has been answered in the affirmative, we shall take the gross backpay figures set forth in the amended specification, with modifications as indicated infra for absences and overtime. After testifying that he was absent only 2 days while employed by another employer, Loadcraft, in 1963, Mays adopted (he assumed its correctness) a sheet 6 which listed, in addition to those 2 days, 10 working days marked "Military Leave" and 91/2 other days of absence. Without exact figures, it appears reasonable 7 to deduct from the specification gross backpay figures 91/2/260ths or 3.6 percent as representative of Mays' absences through the period before us in addition to any prior deduction for absences made by the General Counsel. This will be reflected in the gross backpay figures set forth in the attached Appendix. While the work year consists of some 260 days, the General Counsel does not appear to have had knowledge of the 91/2 days (in fact he has resisted reference to them) beyond Mays' annual military leave of 10 working days and the 2 days which he admitted. I have not overlooked the figures submitted for 1962 up to the date of discharge and the marked disparity in absences among Mays, Fritz, and Stephens. But these cover what appears to have been a special situation, when Mays was incapacitated by burns. There is no indication that the only full year figures available, for 1963, are not representative. Further, the total of 211/2 days of absence at Loadcraft is close to the 9 to 10 percent absence factor based on Mays' absences and taken by the Company in. deducting 16.5 hours in each month of some 173 working hours; and while the Company's deduction (in its mechanic A computations) are applied to base pay only, the slightly lower deduc- tion here (including that previously taken by the General Counsel) will be applied to the specification figures, which cover both base pay and overtime pay. The additional deduction of 91/2/260ths herein indicated as reasonable should be made even though counsel for the Company agreed that, in the event that it be found that Mays is entitled to backpay as a leadman from August 3, 1964, he has no alterna- tive to accepting the General Counsel's figures (as noted, these could not have included the additional absences which Mays recognized) concerning this since the Company had submitted none. As for evidence that Mays' attendance record has improved since his return, this is all to the good insofar as his current and future value to the Company is concerned. Should full reinstatement be delayed, a different computation may be necessary. But however clever this afterthought presentation, it does not warrant codification for the time being of the reasonable absence. formula based on his 1962 and 1963 records as noted. (Whether or not either side had reliable information concerning 'Mays' absences elsewhere in 1964 prior to his reinstatement, none was presented.). Noted on the record were various gross backpay figures which the parties agreed on as acceptable (aside from the issue of diminution of overtime) if Mays is not entitled to the position of leadman; as noted, they .were arrived at on the basis of '16.5 hours of absence per month applied to base pay. But these alternative figures are not set forth••lierein in view of the decision that Mays would have been promoted to leadman but for the- discrimination against him. C. Diminution of overtime The Company claims, as Harmon first sought to show and as Tonnessen suggested, that Mays was not replaced and that the overtime worked by each of the class A mechanics after Mays' discharge would have been diminished and in some calendar quarters would have been nonexistent had the amount of work and total of working a Whichever figures are - accepted ,' the parties do not dispute the item of incentive pay, which counsel for the Company set forth by payroll periods. It was agreed that' the General Counsel 's average of 2 percent is approximately equivalent. We can but guess at'the source of this sheet . It should be unnecessary to point, out that reliance is placed not on the sheet itself but on Mays' adoption of. It, which pro- vided the necessary foundation . While be said only what - he did not recall but assumed that the sheet was correct , it was quite evident that, after examination of 'it, he accepted it as correct despite his earlier different testimony. 7 N.L.R.B . v. Sartarik, • Ino., 227 ' F. 2d 190, 192-193 (C.A: 8). 332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD time been shared by Mays the overtime would have been reduced by the amount of time Mays would have worked. Were this so, we would expect a marked increase in overtime immediately after the discharge. This, as we shall see, did not occur.8 On the other hand, if as Harmon later indicated, Mays was replaced, the overtime was not increased by his absence and therefore is not to be computed as if diminished by his presence on the job. (Later still, Harmon told us that during each period and at all times there would have been one more class A mechanic had Mays not been terminated: he was not replaced.) According to Harmon, no new mechanics were hired in the maintenance department after Mays' discharge, but two class B mechanics were promoted as they became eligible; these would have been promoted anyway so that, had Mays been there, there would have been one more mechanic and therefore less overtime for each; a new class A mechanic (or two) thereafter did work which Mays would have done, thus replacing him. Only in the sense that promotion of these two was inevitable or routine can there be any basis for a claim that Mays was not later replaced. If the question whether Mays was replaced appears confused, this stems from Harmon's contradictory statements and perhaps from the difference between a new hiring to take Mays' place and assignment of another to do his work. We do not know how the work was apportioned or to whom; whatever was done, we shall next note that the few class A mechanics who were there after his discharge were not thereupon called on for more overtime work. With respect to the amount of overtime worked during the month immediately preceding Mays' discharge and the month after it the figures on the amount of over- time worked in tot0 and per man show that, so far from increasing because Mays was no longer there (this is the basis for the "diminution" claim), overtime decreased. We have no explanation for this: we cannot speculate whether Mays' work was taken over by one or more other mechanics or even by supervisors. But whatever the facts, no basis is provided for a claim that overtime per man was increased because Mays was no longer there and that it should therefore be computed at a lower figure if he be included. While overtime later materially increased, this does not reflect any shortage of manpower immediately after Mays was discharged. We can only specu- late whether other factors, such as variation in orders and assignment of available manpower according to the Company's discretion affected the amount of overtime at any period. The argument that overtime was increased because Mays was termi- nated and would therefore have been diminished had he been there is not supported by the facts and figures before us. At this point it should be noted, contrary to Har- mon's testimony that Mays' work was done by the class B men who were promoted, that the first promotion after his discharge occurred in December and the second in May 1963. As for inevitability of promotion, Harmon told us that a class B mechanic must serve a 56-day probationary period before he becomes eligible for promotion to class A; if be is efficient and capable, he could be promoted at the end of ,the probationary period, and the Company would like all to get to class A as soon as possible; and that they are promoted when the supervisors feel that they have met the requirements. Here is a nebulous, certainly subjective basis for relying on alleged promotions. These are not inevitable or fixed as to time as Harmon's testimony, that the two referred to would have been promoted anyway suggested. How many class A mechanics there would have been had Mays not been discharged would depend on how many class B men the supervisors, considering all factors, would decide to pro- mote from among those eligible, a decision which might be made at any time after the probationary periods. It should be pointed out further that the entire argument that overtime work is affected by the number of class A mechanics is fallacious. It is clear that class B men assist class A, and that they work together on maintenance. Conclusions as to 8 Any later increase would be remote and not probative since it could be due to a host of intervening factors. Harmon told us that while Mays was away (covering a 2-year period, this is of little help in determining whether the work which Mays would have done was divided among the remaining mechanics without replacement) the number of class A mechanics increased slightly but less than did overall employment. He thereafter testified to a marked disproportion between the increase in the number of class A mechanics and the increase in the total number of employees since August 9, 1962. No more than such disproportion is seriously affected by addition or subtraction of one class A mechanic does it cast light on the number of mechanics who would have been employed had Mays not been discharged ; nor therefore on the amount of overtime he would have worked. MOONEY AIRCRAFT, INC. 333 availability of men and need for overtime therefore cannot be based on the number of class A men alone. Even were it shown that the total amount of work did not vary (or was proportionately the same), assignment of class B men would also affect the amount of overtime work done by those in class A. There is not sufficient proof that fewer mechanics were employed during the period of more than 2 years when Mays was not at the plant than would have been had he been there. The Company's claim for diminution of overtime has not been sustained. D. Interim earnings and allowable expenses No issue has been raised concerning gross interim earnings or the amounts shown on the specification as received in employment elsewhere (or at the Respondent Com- pany since November 28, 1964), during the respective quarters of the backpay period. Mays testified that during the 2 or 3 weeks immediately following his discharge he made some half dozen trips, for a total mileage of 720,, to San Antonio, where he sought work and registered at the unemployment compensation office. He then found employment, but from the earnings credited in the specification $72 is to be deducted as travel expense on the trips to San Antonio. His earnings on that job were small, and he thereafter found better employment in Brady, Texas, where he was employed from the fourth quarter of 1962 into the fourth quarter of 1964. The only moving or travel expenses claimed here are for rental of a trailer and a one-way trip to Brady, for a reasonable total of $27. It is further claimed that, some 6 months after he left Kerrville (which would bring us to the spring of 1963), financial difficulties brought on by the discharge compelled Mays to sell rental property which he owned in Kerrville. This included a house and two apartments, one of which he had himself occupied. Having told a stranger and prospective purchaser who offered $1,000 that his investment in the property by that time totaled $1,500, Mays sold the property to his father-in-law for $300, claiming that he had not received any other offer. I find from the credible testimony that the property was generally occupied and that there was no such rental loss as to compel sale of the property as Mays claimed. It appears and I find that the property was easily rentable for more than enough to cover the necessary charges. Mays' intrafamily transaction culminated in sale of the property for $1,500 a few months later to the prospective purchaser mentioned above and whom he had overlooked in his testimony. The General Counsel has not sustained his burden of showing that Mays' income from the property did not cover the necessary payments and that any loss sustained was occasioned by his discharge and move to Brady; nor do I credit Mays' testimony that he sustained a loss as claimed on transfer of the property to his father-in-law. Not only did the purchaser from the latter pay $1,500 for the equity, the amount which Mays had paid (we have no information concerning extent or cost of improve- ments as against income while Mays and his relative had title), but it does not credibly appear that the discharge compelled Mays to sell. I disallow the claimed deduction of $2,325 from Mays' interim earnings for the first quarter of 1963. I find that the backpay obligation to Mays through and including the first quarter of 1965, as herein found and computed in the attached Appendix, will be discharged by payment to him of the amount of $2,952.30, with appropriate interest and minus the tax withholding required by Federal and State laws. Upon the basis of the above findings of fact and upon the entire record in this proceeding, I make the following: CONCLUSIONS OF LAW 1. Mays has been, since August 3, 1964, and is entitled to promotion to leadman. 2. The next backpay due from the Company to Mays through March 31, 1965, is $2,952.30. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in the case, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I recommend that the Resoondent, Mooney Aircraft, Inc., Kerrville, Texas, its officers, agents, successors, and assigns, shall: 1. Promote George E. Mays to leadman and make him whole for any loss of pay suffered (through March 31, 1965), by payment to him of the amount of $2,952.30, with interest and minus the tax withholding required by Federal and State laws. 334 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2: Notify the Regional Director for Region 23, in writing , within 20 days from the date of this Supplemental Decision , what steps have been taken to comply herewith s, O In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX. 3d quarter 1962 (commencing August 9, 1962) Gross backpay due-------------------------------------------- $626.87 Less interim earnings_________________________________ $351.00 Minus expenses allowed_______________ ________________ 72.00 Net interim earnings___________________________________________ 279.00 Net backpay due__________________________________ _____ 347.87 4th quarter 1962 Gross backpay due-------------------------------------------- 1,092.17 Less interim earnings ($565.50; $146.40) ---------------- 711.90 Minus expenses allowed_______________________________ 27.00 Net interim earnings________________________________________ 684.90 Net backpay due---------------------------------------------- - 407.27 1st quarter 1963 Gross backpay due_____________________________________________ 1,212.87 Less interim earnings___________________________________________ 1,149.80 Net backpay due---------------------------------------------- 63.07 2d quarter 1963 Gross backpay due____________________________________________ 1,028.47 Less interim earnings___________________________________________ 955.85 Net backpay due---------------------------------------------- 72.62 3d quarter 1963 Gross backpay due____________________________________________ 1,166.31 Less interim earnings------------------------------------------ 844.55 Net backpay due---------------------------------------------- 321.76 4th quarter 1963 Gross backpay due --------- - -- ______________________________ 1,137.71 Less interim earnings------------------------------------------- 935.92 Net backpay due---------------------------------------------- 201.79 1st quarter 1964 Gross backpay due____________________________________________ 1,348.25 Less interim earnings------------------------------------------- 1,147.20 Net backpay due----------------------------------------------- 201.05 2d quarter' 1964 ' -Gross backpay due_ 1,279.57 Less. interim earnings _____________________________ 1,036.60 Net backpay due---------------------------------------------- 242.97 3d quarter 1964 Gross backpay due_____________________________________________ 1,606.17 Less interim earnings___________________________________________ 985.11 Net backpay due--------------------------------------------- 621.06 ASSOCIATED TRANSPORT, INC. 335 APPENDIX-Continued 4th quarter 1964 Gross backpay due_________________ $1,499.02 Less interim earnings 1, 200. 91 Net backpay due---------------------------------------------- 298.11 1st quarter 1965 Gross backpay due____1,708.21 Less interim earnings__________________________________________ 1,533.48 Net backpay due---------------------------------------------- 174.73 Associated Transport , Inc. and Harold C. James Local 182, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (Associated Transport Inc.) and Harold C. James. Cases Nos. 3-CA-9663 and 3-CB- 839. December 27,1965 DECISION AND ORDER. On September 17, 1965, Trial Examiner Lowell Goerlich issued his Decision herein, finding that Respondent Union had engaged in and was engaging in certain unfair labor practices alleged in the complaint and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. He also found that the Union had not engaged in other unfair labor practices alleged. He further found that Respondent Employer had not engaged in unfair labor practices and recommended that the complaint be dismissed as to it. Thereafter Respondent Union filed exceptions to the Decision and the General Counsel filed exceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with these cases to a three-member panel [Chairman McCulloch and Members Jenkins and Zagoria]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and brief, and the entire record in these cases, and finds merit in the General Counsel's exceptions. Accordingly, the Board adopts the Trial Examiner's findings, con- clusions, and recommendations only to the extent consistent with the following. The complaint alleged in substance that Respondent Union had caused Respondent Employer to discharge the Charging Party, 156 NLRB No. 23.