Murray Ohio Manufacturing Co.

National Labor Relations Board - Board Decisions

Apr 5, 1965

151 N.L.R.B. 1430 (N.L.R.B. 1965)

1430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 , 609 Rail-
way Exchange Bldg., 17th and Champa Streets, Denver , Colorado , Telephone No.
534-3161 , if they have any questions concerning this notice or compliance with its
provisions.
Murray Ohio Manufacturing Company and International Union,
United Automobile , Aircraft & Agricultural Implement Work-
ers of America , AFL-CIO. Cases, Nos. 26-CA-955 and 26-CA-
955-2. April 5, 1965
SUPPLEMENTAL DECISION AND ORDER
On November 14, 1961, the National Labor Relations Board issued
a Decision and Order in the above-entitled proceeding,' finding,
inter alia, that the Respondent had unlawfully discriminated against
Clyde B. Richardson and William H. Miller and ordering that they
be reinstated to their former or substantially equivalent positions
and made whole for any loss of earnings resulting from the discrimi-
nation against them. Thereafter, the Board's Order was enforced in
full by the United States Court of Appeals for the Sixth Circuit.2
On May 26, 1964, the Regional Director for Region 26 issued and
served upon the parties a backpay specification and notice of hearing.
On June 11, 1964, the Respondent filed an answer to the backpay
specification. On June 17, the Regional Director issued and served
on the parties an amendment to said specification and on June 30 the
Respondent filed a supplemental answer and answer to amended
backpay specification. Upon appropriate notice, a hearing was held
before Trial Examiner George L. Powell, for the purpose of deter-
mining the amounts of backpay due the claimants. On December 9,
1964, the Trial Examiner issued his attached Supplemental Decision,
in which he found that the claimants were entitled to specific amounts
of backpay. Thereafter, the Respondent and the Charging Party
filed exceptions to the Trial Examiner's Supplemental Decision, and
the Respondent also filed a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Brown and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
entire record in this case, including the Supplemental Decision, and
1134 NLRB 141.
2 N.L.R.B. v. Murray Ohio Manufacturing Co., 326 F. 2d 509, 516.
151 NLRB No. 140.
MURRAY OHIO MANUFACTURING COMPANY 1431
the exceptions and brief, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner with the exceptions,
additions, and modifications set forth below.
1. In agreement with the Trial Examiner, we find that William H.
Miller did not incur a willful loss of earnings by leaving his employ-
ment with Vulcan Mold & Iron Company in October 1962.
The Respondent's plant is located at Lawrenceburg, Tennessee.
The backpay period for Miller, which is not in dispute, commences on
January 13, 1960, and ends on March 23, 1964. Between January 13,
1960, and March 17, 1961, Miller sought and obtained employment
in and around Cook County, Illinois, and Memphis and Pulaski,
Tennessee. Beginning on March 17, 1961, Miller worked at Vulcan
Mold & Iron Company in Cook County, Illinois. Following a 4-
week layoff in November 1961, Miller remained in Vulcan's employ
until June 18, 1962, when he was again laid off for lack of work. He
then returned to his home in Pulaski, at which time he learned that
his mother was ill. During the period, beginning with his return
to Pulaski in June 1962 until her death from cancer on June 6, 1963,
Miller arranged for the medical care of his mother and otherwise
took care of her during her illness .3 On September 4, 1962, Vulcan
recalled Miller to work. Miller, however, sought and obtained a
30-day leave of absence in order to be with his mother. On Septem-
ber 18, 1962, Miller obtained employment at Fite and Warmoth
Construction Company in Pulaski. Shortly thereafter, Miller in-
formed Vulcan that he did not intend to return to work. Miller's
uncontradicted testimony at the backpay hearing was that he decided
not to return to Vulcan because of his mother's illness. On October 4,
1962, at the expiration of the leave of absence, Vulcan terminated
Miller. Miller's employment with Fite and Warmoth continued
through the second quarter of 1963. After a period of unemploy-
ment, Miller again worked at Fite and Warmoth in 1964, and he
thereafter obtained employment in Nashville with the Verne Wood-
row Company.
The Respondent contends that the illness of Miller's mother did
not justify his quitting his employment at Vulcan and therefore
Miller should be deemed to have earned for the remainder of the
backpay period the wages he was earning when he left his employ-
ment at Vulcan.4 In this connection, the Respondent relies on the
proposition that even though a claimant is not required to seek work
in another geographical area, once he secures in such other area a job
substantially equivalent to the one he lost with the respondent, he
' At various times during this period Miller ' s mother was confined to the Vanderbilt
Hospital in Nashville . Sometime in August 1962 Miller learned that an operation per-
formed on his mother was unsuccessful.
' Miller's wages at Vulcan were higher than those he received at any of his subsequent
places of employment during the backpay period.
1432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
may not voluntarily relinquish this employment to'return to his home
without incurring a willful loss of earnings for the period subsequent
to his quitting.5
In agreement with the Trial Examiner, we find no merit in this
contention for the following reasons: As Miller did not return to
his home in Pulaski, in June 1962, until after he had been laid off by
Vulcan, it is clear that he did not voluntarily relinquish such employ-
ment in order to return to his home. Later, when he was recalled to
work by Vulcan in September, Miller first obtained a 30-day leave
of absence. Further, Miller did not quit his employment at Vulcan
until October 1962, at which time he was working for Fite and
Warmoth Construction Company in Pulaski. Moreover, at that time,
Miller was taking care of his mother who, he had already learned,
was dying of cancer. We note finally, as pointed out b3i the Trial
Examiner, that if Miller had continued working at the Respondent's
plant in Lawrenceburg he presumably could have fulfilled his family
duties because of the proximity of the plant to his home in Pulaski
and to the hospital in Nashville.6 In view of all these circumstances,
and even though his job at Fite and Warmoth was paying less than
his job at Vulcan, we find that Miller, having returned to his home
for legitimate reasons, was thereafter under no obligation to leave
Pulaski and to return to his job at Vulcan in Illinois in October 1962.
As we have therefore found that Miller did not incur a willful loss
of earnings, and as the Respondent has not shown that Miller other-
wise did not diligently seek employment in or near Pulaski, we shall,
like the Trial Examiner, award Miller backpay in the amount of
$8,289.00.
2. Contrary to the Trial Examiner, we find that Clyde B. Richard-
son's actual farm and nonfarm income should be used to compute
his interim earnings.
The parties are in agreement that the backpay period for Richard-
son begins on March 4, 1960, and ends on February 3, 1964. During
this entire period, Richardson lived on and operated a rented farm in
the vicinity of Lawrenceburg, Tennessee. Under the rental agree-
ment, Richardson paid one-third of the corn yield and one-fourth of
the cotton yield as rent. Except for the years 1961 and 1962,
Richardson's sole income was derived from the farm. In September
1961, Richardson secured part-time nonfarm employment in
Lawrenceburg with M. M. Niedergeses & Son and Robert M. Press-
nell, and in 1962 he was engaged in part-time nonfarm employment
with C. Edwards.
In computing Richardson's interim earnings, the Trial Examiner
utilized statistics compiled by the United States Department of Agri-
'See Ozark Hardwood Company, 119 NLRB 1130 , 1131 , 1139 , enfd . In pertinent part
228 F 2d 1 (C.A. 8).
6 See Ma8tro Plaatice Corporation , et al, 136 NLRB 1342, 1349.
MURRAY OHIO MANUFACTURING COMPANY 1433
culture showing realized net farm income per farm in Tennessee for
each of the years 1960 through 1963. Although Richardson's Federal
income tax returns covering the backpay period were in evidence, the
Trial Examiner did not utilize Richardson's actual earnings for the
purpose of establishing interim earnings because, in his view, "actual
earnings were not pleaded as the base by the General Counsel in his
backpay specification as required by the Board's Rules and they were
not litigated at the hearing."
The Respondent and the Charging Party except to the Trial
Examiner's Supplemental Decision and urge that Richardson's actual
earnings should be used to compute his interim earnings. We find
merit in this contention, as we do not agree with the Trial Examiner
that Richardson's actual earnings were not properly pleaded or
litigated at the hearing.'' We rely on the facts that : Although the
General Counsel's backpay specification did not allege actual earn-
ings as the basis for Richardson's interim earnings, the Respondent's
motion for a bill of particulars filed on June 3, 1964, sought the
"amounts actually earned by Richardson ... in order to appropriately
answer the backpay specification" ; in its answer filed on June 11 the
Respondent, inter alia, disputed the General Counsel's computation
of Richardson's interim earnings on the ground that there was no
showing "as to actual earnings reported by Richardson to the Bureau
of Internal Revenue . . . during said period"; the General Counsel's
memorandum in response to the motion for a bill of particulars, filed
on June 17, 1964, showed the earnings reported by Richardson to the
Bureau of Internal Revenue in the years 1960 through 1963; the
Respondent in its supplemental answer and answer to amended back-
pay specification, filed-on June 26, 1964, objected to the failure of the
amended backpay specification to include as interim earnings Re-
spondent's actual nonfarm earnings ; and, at the hearing, the income
tax returns filed by Richardson with the Internal Revenue Service
for 1960 through 1963 were, at the request of the Respondent, put in
evidence by the General Counsel and Richardson testified concerning
these returns.8
T In concluding that Richardson 's actual earnings were not properly pleaded, the Trial
Examiner refers to Section 102 .53 and 102 . 54 of the Board ' s Rules and Regulations
(Series 8, as amended ). Section 102 53 provides that where a notice of hearing is issued
with a backpay specification, the specification shall show , inter alia, the "basis for com-
putation as to . . . interim earnings. .. . 11 Section 102.54 ( b) provides that in the
answer to such specification ". . . if the respondent disputes either the accuracy of the
figures in the specification or the premises on which they are based , he shall specifically
state the basis for his disagreement, setting forth in detail his position as to the
applicable premises and furnishing the appropriate supporting figures." Section 102 54(c)
provides that if the respondent ". . . fails to deny any allegation of the specification in the
manner required by paragraph ( b) of this section , and the failure so to deny is not ade-
quately explained , such allegations shall be deemed to be admitted to be true . . "
8 Although agreeing that Richardson 's actual earnings should be used to compute interim
earnings , the Respondent contends that the case should be remanded for a new hearing
because the Trial Examiner did not permit counsel for the Respondent to complete his
cross-examination of Richardson as to the accuracy of his income tax returns. In the
1434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board's normal practice is to base its calculation of interim
earnings on the actual earnings of the claimant during the backpay
periods We believe that this practice should be followed in the
instant case since Richardson's income tax returns evidencing his
farm and nonfarm actual earnings for the backpay period are in
evidence and since the statistics utilized by the Trial Examiner are
only an uncertain measure of Richardson's interim earnings. The
Trial Examiner, as noted, computed Richardson's interim earnings on
the basis of United States Government statistics showing "realized
net farm income ... per farm, in Tennessee, 1960-63." The record
contains no evidence as to the basis for the compilation of these
figures. Moreover, since these figures appear to represent statistical
averages, Richardson's actual farm earnings may have varied from
these averages to a greater or lesser extent depending on such factors
as his farm's productivity, the size of his farm, and the like.
Finally, it is not clear from the statistics in evidence whether the
"net farm" income in the case of tenant farmers such as Richardson
includes the share of income (one-third of the corn and one-half of
the cotton) which the farmer gives to his landlord for rent.10 Under
all the circumstances we deem Richardson's income tax returns to
be more reliable as evidence of his actual earnings than are the
statistics relied on by the Trial Examiner. Accordingly, we shall
utilize Richardson's income tax returns to compute his interim earn-
ings for the backpay period.11 Because of the foregoing change in
the basis for computing interim earnings, we have recomputed
Richardson's interim earnings and net backpay 12 and attach such
calculation to this Supplemental Decision and Order as an Appendix.
circumstances of this case , we find no error In the Trial Examiner's ruling. Thus, the
Respondent 's offer of proof In this respect reflects that it sought to establish only that
even at the time that Richardson prepared his tax returns , he did not have records to sub-
stantiate them and that Richardson 's returns were only estimates . It is well established,
however, that estimates of actual income are sufficient to support backpay findings.
W. C Nabors, d/b/a W. C. Nabors Company, 134 NLRB 1078, 1092, 1100; Brown and
Root, Inc., at at., 132 NLRB 486, 500. Moreover , contrary to the Respondent 's offer of
proof, Richardson testified that he had income records in the past which he used as the
basis for his returns.
6 See, for example , W. C. Nabors, supra, at 1093-1094 , enfd in pertinent part 323 F.
2d 686 ( C.A. 5), cert. denied , 376 U.S. 911, where the Board calculated a claimant's in-
terim earnings, in part , on the basis of his actual farm income
i' While in Brown and Root, Inc, et al., supra, the Board utilized average farm labor
wage rates in Arkansas to compute the interim earnings of a claimant working on a
farm , there , unlike here , the claimant reported no actual earnings for his work on the
farm during the backpay period. We have been referred to no case in which the Board
utilized average farm Income as a basis for computing interim earnings.
n Although Richardson 's income tax returns for the years 1960 through 1963 which
were placed in evidence were unsigned , Richardson testified without contradiction that
they were copies of original returns which he filed with the Bureau of Internal Revenue.
The Board in the past has accepted copies of income tax returns as evidence of Interim
earnings. Deena Artware Incorporated, 112 NLRB 371, 373, enfd. 228 F 2d 871 (CA 6).
'While Richardson's tax return for 1962 does not Indicate any nonfarm earnings, the
General Counsel admitted in his memorandum in response to the Respondent ' s motion
for a bill of particulars that in 1962 Richardson had nonfarm Income of $ 278 53 in addi-
tion to the farm income of $1,281 50 stated in his return . We therefore find that Rich-
ardson's actual earnings during 1962 amounted to $1,560 03 . In the absence of an in-
MURRAY OHIO MANUFACTURING COMPANY 1435
On the basis thereof, we award Richardson backpay in the amount of
$8,313.75.
ORDER
Upon the basis of this Supplemental Decision and the entire record
in this case, and pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Relations Board
hereby orders that the Respondent, Murray Ohio Manufacturing
Company, its officers, agents, successors, and assigns, shall pay to the
employees involved in this proceeding as net backpay the amounts
awarded to them in this Supplemental Decision and Order.
come tax return for 1964 or other evidence of Richardson 's actual income during 1964,
we shall calculate Richardson 's interim earnings for the backpay period in 1964 by tak-
ing an average of Richardson 's actual earnings for the years 1960 through 1963 and
prorating this amount over the 5 -week period in 1964 for which backpay is due. Since
Richardson 's income tax returns show his income on an annual basis , we have divided
Richardson ' s annual income by four to show his interim earnings on a quarterly basis.
In 1960, where the backpay period begins on March 4, we have divided Richardson's
actual income for the backpay period by 43, the number of weeks in the backpay period
for that year and on this basis calculated his quarterly interim earnings . The Trial
Examiner while correctly finding that Richardson 's backpay period ended on February 3,
1964, inadvertently stated in the Appendix to the Supplemental Decision and Order that
this date is January 23 . We have accordingly corrected this error.
APPENDIX
Pursuant to section 2 of the Supplemental Decision and Order, in-
terim earnings of Clyde B. Richardson are computed on the basis of
his actual farm and nonfarm earnings during the backpay period.
Calendar
Quarter
Gross
Backpay
Interim
Earnings Expenses
Net Interim
Earnings
Net
Backpay
1960
1 (3/4 to 3/31) -------------------- $118 40 $45 20 0 $45 20 $73 20
2-------------------------------- b76 08 146 90 0 146 90 529 18
3-------------------------------- 883 85 146 90 0 146 90 736 95
4-------------------------------- 569 28 146 90 0 146 90 422 38
1961
1-------------------------------- 809 86 230 11 0 230 11 579 75
2________________________________ 720 00 230 11 0 230 11 489 89
3________________________________ 573 12 230 11 0 230 11 343 01
4-------------------------------- 552 48 230 11 0 230 11 322 37
1962
1-------------------------------- 848 80 390 00 0 390 00 458 80
2-------------------------------- 781 60 390 00 0 390 00 391 60
3-------------------------------- 935 27 390 00 0 390 00 545 27
4-------------------------------- 855 74 390 00 0 390 00 465 74
1963
1-------------------------------- 878 40 174 42 0 174 42 703 98
2-------------------------------- 836 24 174 42 0 174 42 661 82
3-------------------------------- 978 71 174 42 0 174 42 804 29
4-------------------------------- S83 04 174 42 0 174 42 708 62
1964
1 (1/1 to 2/3)--------------------- 174 00 97 10 0 97 10 76 90
Total---------------------- -------------- -------------- -------------- -------------- 8,313 75
1436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
This supplemental proceeding was heard by Trial Examiner George L. Powell in
Lawrenceburg, Tennessee, on July 23, 1964, on a backpay specification and notice
of hearing of the General Counsel dated May 26, 1964, amended June 17, 1964, and
answers of Respondent dated June 10, 1964, and June 26, 1964. The purpose of the
proceeding was to determine the amount of backpay due and owing to individuals,
Clyde B. Richardson and William H. Miller, under an Order of the Board (134 NLRB
141, 146, 151) enforced by the United States Court of Appeals for the Sixth Circuit,
by order dated January 14, 1964 (326 F. 2d 509, 516).1 At the hearing, the parties
were afforded a full opportunity to examine and cross-examine witnesses, to intro-
duce evidence, to present oral argument, and to file briefs presenting their respective
contentions.
Upon a consideration of the entire record in this supplemental proceeding, includ-
ing consideration of the briefs filed by the parties, the prior decision of the Board, and
the order of the court, above referred to, and my observation of the witnesses while
they were testifying, I make the following:
FINDINGS AND CONCLUSIONS
1. As to William H. Miller, the issue is whether his quitting employment in Illinois
with Vulcan Mold & Iron Company, herein called Vulcan, and returning to Lawrence-
burg, Tennessee, was justified, or whether it is to be considered a failure to seek
employment (or a willful loss of earnings) during the backpay period.
It is undisputed that Miller's backpay period begins January 13, 1960, and ends
on March 23, 1964.
It is likewise undisputed that an appropriate measure of the earnings Miller would
have earned during the backpay period is the average earnings of representative
employees Hartsfield, Watts, and Short set out in the attached Appendix A under the
"Gross Backpay."
Respondent's answer claims that it is entitled to credit for a comparable amount
to that which Miller would have earned from September 1962 from Vulcan had he
not obtained a leave of absence therefrom. Miller never returned to Vulcan. Miller's
interim earnings after September 1962 were not as much as they would have been
had he not left Vulcan.
Miller credibly testified that he left his job with Vulcan, which was located in
Lansing, Illinois, to return home to Pulaski, Tennessee,2 to live there with his father
and mother during the last 9 months of his mother's life. Earlier, in June 1962, Miller
had returned home to find his mother sick. He made arrangements to have her
reexamined by a local doctor from which she was referred to Vanderbilt Hospital in
Nashville, Tennessee, in July 1962 for examination. Her illiness was diagnosed
there as malignant cancer. After a few weeks of treatment she was operated on for
cancer removal. Recognizing the seriousness of his mother's condition and realizing
she had not long to live he decided to stay home with her and his father. She gradu-
ally wasted away and died of cancer of the female organs on June 6, 1963.
During this period of time while living with his father and mother he sought work
and obtained some interim employment which the General Counsel duly set out in
the backpay specification.
Obviously, if Respondent had not discriminatorily refused Miller reinstatement in
1960 (as found by the Board and the court), he would have been working close to
his home and he would not have had to leave employment to be close to his mother
in her terminal illness. Accordingly Respondent will not be heard to claim that
Miller, who had obtained interim employment in a distant location in Illinois, will-
'The court, enforcing the Order of the Board sustaining the Trial Examiner, found
that Miller was "down graded because of his union activity" and the refusal to offer
him reemployment for the 1960 season violated Section 8(a) (1) and (3) of the Act.
Likewise the court enforced the Order of the Board sustaining the Trial Examiner that
Richardson had been discriminatorily discharged on March 3, 1960, in violation of Sec-
tion 8(a) (1) and (3) of the Act. The remedy ordered by the court was immediate rein-
statement for Richardson and immediate reemployment for Miller with both being made
whole for any loss of pay each may have suffered by payment to him of a sum of money
equal to that which he normally would have earned from the date of the discrimination
against him to the date of the offer of reinstatement or reemployment, respectively, less
his net earnings during said period.
2 His home Is 6 to 10 miles from Pulaski, Tennessee.
MURRAY OHIO MANUFACTURING COMPANY 1437
fully lost earnings there to Respondent 's detriment by returning to his home under
these circumstances . I find he did not incur a willful loss of earnings by leaving and!
not returning to Vulcan . He had a justifiable reason for leaving . (Mastro Plastics
Corporation , et al., 136 NLRB 1342 , 1349; East Texas Steel Castings Company, Inc.,
116 NLRB 1336, 1347-1348, enfd 255 F. 2d 284 (C.A. 5) )
The General Counsel argues in his brief that Miller is entitled to the full amount
of net backpay of $8,289 as set out in the backpay specification and that the burden
is on Respondent to establish any lesser amount. I find merit in this position.
Respondent has not been able to establish willful loss by Miller, as set out above,
nor has it urged other grounds to reduce the amount of backpay set out by the Gen-
eral Counsel to make Miller "whole" in accordance with the Board and court order.
Accordingly I find that Miller is entitled to $8,289.
2. As to Clyde B. Richardson , the issue is essentially whether he is to be classified
as a farmowner or a farm laborer during the interim earnings period.
It is undisputed that Richardson 's backpay period begins March 4, 1960 , and ends
February 3, 1964.
It is likewise undisputed that an appropriate measure of the earnings Richardson
would have earned during the backpay period is the earnings of representative C. R.
Long and Richardson 's quarterly gross backpay is equal to the quarterly earnings of
representative Long during each quarter of the backpay period.
Preliminary Statement
As set out in the Board's Rules and Regulations, Series 8, as amended, a backpay
proceeding is a formal proceeding concerning the amount of backpay due which
cannot be resolved informally by the Regional Director and the parties.
The Board has established for these cases some rather technical rules of pleadings
in the interest of clearly shaping the issues involved. For example where the backpay
specification procedure is used the specification shall specifically and in detail show,
for each employee, the backpay periods broken down by calendar quarters, the spe-
cific figures and basis of computation as to gross backpay and interim earnings, the
expenses for each quarter, the net backpay due, and any other information.
As to the computation of gross backpay (admitted in this case), the burden of
proof is on the General Counsel to establish it.3 But as to the interim earnings the
burden of proof is on the Respondent.4 Accordingly, the computations of interim
earnings so carefully set out in the specification are really no more than admissions
against interest. The General Counsel says, in effect, that the interim earnings are at
least those set out in the specification. If they are more, it is up to the Respondent
to prove it.
Accordingly, the rules state that as to all matters within the knowledge of the
Respondent, including but not limited to the various factors entering into the compu-
tation of gross backpay, a general denial is not enough. As to such matters, the rules
state, if the Respondent disputes either the accuracy of the figures in the specification
or the premises on which they are based, he must specifically state the bases for his
disagreement, setting forth in detail his position as to the applicable premises and
furnishing the appropriate supporting figures. (See Sections 102.53 and 102.54 of
the Board's Rules.)
Obviously then the specification and its amended specifications together with the
Respondent's answer and amended answers, as the case may be, are the important
necessary pleadings in a backpay proceeding with a specification. Other exhibits
may be used but the rules governing their pleading are not covered in the Board's
Rules. For example, in this case, if the General Counsel wished to base the interim
earnings on actual interim earnings of Richardson the specifications should have
set this out together with the Federal income tax returns, if that were to be the basis
for the computation.
The Pleadings
Respondent filed a motion for a bill of particulars seeking to secure from the
General Counsel the basis for arriving at the interim earnings of Richardson as set
out in the backpay specification and notice of hearing.
The General Counsel responded to this motion for a bill of particulars with a
memorandum setting out that the interim earnings were predicated upon informa-
tion obtained from the Tennessee Department of Employment Security. The Gen-
3 Brotherhood of Locomotive Firemen, etc . (Phelps -Dodge Corp .) v. N.L.R .B , 313 U.S.
177
1 United States Air Conditioning Corporation , 141 NLRB 1278, 1280.
1438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
eral Counsel also set out Richardson's actual earnings as reported to the Bureau of
Internal Revenue for the years in question.
The General Counsel then issued an amendment to backpay specification and
notice of hearing in which he recomputed the quarterly interim earnings of Richard-
son based upon the information obtained from the Tennessee Department of Employ-
ment Security, but computed on a 5-day week of 8 hours per day rather than on a
6-day week of 8 hour per day. This reduction in interim earnings reflected a greater
net backpay due Richardson from $7,178 claimed in the backpay specification and
notice of hearing to $7,988. (Actual earnings again were not used.)
Respondent then filed a supplemental answer to this amended backpay specifica-
tion in which the following issues were raised. After denying the interim earnings
of Richardson as set out in the amended backpay specification. Respondent alleged
that:
(a) The original backpay specification was not calculated on a 5-day week but
was based on the earnings of C. R. Long which earnings included overtime for work
done on Saturday .5
(b) The actual earnings of Richardson for 1962, as shown by General Counsel's
memorandum in response to the motion for bill of particulars, amounted to $1,560.03
($1,381.50 farm income plus $278.53 nonfarm income), instead of $1,040 as shown
by the amendment to the backpay specification.6
(c) Richarson earned $306.50 in nonfarm income in 1961 according to the memo-
randum in response to the motion for bill of particulars which was not reflected in
the amended backpay specification.?
(d) Richardson was self-employed and the Tennessee Department of Employment
Security does not maintain records showing earnings of self-employed farmers.
(Self-employed farmer as distinguished from a farm laborer for whom records are
maintained. The General Counsel referred to Richardson as being "self-employed
as farmer" in his amended backpay specification, and then set forth the rate of pay
for farm labor.) Respondent then set forth figures showing the average realized
income per farm for self-employed farmers in Tennessee as maintained by the United
States Department of Agriculture through its statistical reporting services, and claimed
credit against gross backpay due Richardson based on these figures .8
Self-employed Farmer or Farm Laborer
Richardson testified that he lived on a 195 acre farm which he managed or operated
during the entire time since he had been fired by Respondent. He and his children
plow the farm and at cottonpicking time he hires outside help. He owned the
machinery he used. He had "signed up as operator of the farm," and he paid one-
third of his com income and one-fourth of his cotton income as rent. Anything else
he raised, such as peas or livestock, was all his. He was not paid wages for his work.
Finally, he claimed to be self-employed in "General Farming" activities in filing his
Computation of Social Security Self-Employment Tax on Farm Earnings. (For
social security.)
I find from the above that Richardson was not a farm laborer. Although he does
not own his own farm he is a self-employed farmer entitled under a share-crop rental
arrangement to the full use and enjoyment of the farm as if he were the owner. He
owned his own machinery, hired his own laborers, and enjoyed all of the fruits of his
harvest except for that on which his rent was based.
Accordingly the net interim earnings and the net backpay figures as set out in the
backpay specification and notice of hearing as well as those set out in the amendment
to backpay specification and notice of hearing are erroneous and cannot be used
because they are based on the erroneous conclusions that Richardson was a farm
laborer. This issue was properly raised by the Respondent in his supplemental
answer and answer to amended backpay specification, as set out generally, above, in
paragraph (d). Respondent there claimed that the average realized income per farm
for self-employed farmers for the State of Tennessee ("maintained by the United
5 This will not be discussed as the case goes off on other grounds.
6 See footnote 5, supra.
7 See footnote 5, supra.
8At the opening of the hearing, Respondent's counsel stated this issue thusly:
My understanding of the issues is purely and simply this. That Mr. Richardson was
a farm laborer, hiring out at laborer' s rates, or else he manages and operates his own
farm.
MURRAY OHIO MANUFACTURING COMPANY 1439
States Department of Agriculture through its Statistical Reporting Services") were
the proper figures to be used and these figures were reported to be as follows:
For the year 1960__________________________________________ $3,783.00
For the year 1961__________________________________________ 3,919.00
For the year 1962__________________________________________ 4,177.00
For the year 1963__________________________________________ 4,398.00
I am unable to determine the accuracy of these figures. However, the Respondent
put into evidence a letter from the statistical services section, economic and statistical
analysis division, United States Department of Agriculture, to M. A. Prowell dated
July 1, 1964, which is reproduced in full as follows:9
UNITED STATES DEPARTMENT OF AGRICULTURE
ECONOMIC RESEARCH SERVICE
WASHINGTON 25, D.C.
July 1, 1964.
Mr. M. A. PROWELL,
Constangy & Prowell,
Candler Building,
Atlanta, Georgia 30303
DEAR MR. PROWELL: Realized gross and net farm income by State is complied
by calendar year. Realized net farm income, total and per farm, in Tennessee,
1960-63 is as follows:
Realized net farm income
Total Per farm
Mil. Dollars Dollars
1960----------------------- $232 6 $1,376
1961----------------------- 284 3 1,734
1962----------------------- 258 8 1,628
1963 (prel) ---------------- 254 7 1,633
Revised data for 1963 will be released early in August. Minor revisions may
also be made for 1961 and 1962. I will be glad to provide you with this informa-
tion when it becomes available.
Sincerely yours,
Earl E. Miller,
Head, Statistical Services Section, Economic and Statistical
Analysis Division.
It is noted from the above letter that the realized net farm income per farm is less
than the figures alleged by Respondent above. For convenience I will set them out
as follows:
Respondent's Dept. of
Year figures Agriculture
figures
1960--------------------------- $3,783 $1,376
1961---------- ---------------- 3,919 1,734
1962-------------------- ------ 4,177 1,628
1963--------------------------- 4,398 1,633
'For convenience this was introduced into evidence by the General Counsel as Gen-
eral Counsel's Exhibit No. 1-(0) (1).
1440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Inasmuch as Respondent must have relied on the letter of July 1, 1964, from the
Department of Agriculture, as it wished to introduce it into evidence, and as it
pleaded figures based on the Department of Agriculture in its amended answer, I will
accept these figures to establish a basis for computing the interim earnings of
Richardson. As there was little difference between the annual income of $1,628 in
1962 and the $1,633 in 1963, I will assume sufficient stability in this area for early
1964 and will carry over the figures for 1963 for the 5 weeks in 1964 in Richardson's
backpay period. I have recomputed, by quarter, Richardson's gross backpay, interim
earnings, and net backpay and have arrived at a total of $5,785.07 due and payable
to him in order to make him whole under the Board's Order and court decree. (The
odd cents will be dropped.) [Board's Appendix substituted for Trial Examiner's
Appendix B.]
In doing this I am conscious that preciseness and accuracy cannot be realized in this
area of trying to arrive at backpay. Thus only a reasonable method of computing
backpay is necessary. The Board and the courts recognize the inherent difficulty in
arriving at a sum of money which with the interim earnings of the discriminatee will
be equal to the wages he would have made had he not been discriminated against in
violation of the law.
In using the realized net farm income per farm as reported by the U.S. Department
of Agriculture as a bases for computing interim earnings of this self-employed
farmer we have the benefit of using an unbiased and reasonable measure. This
income was the average farm income in the same State. True we do not know how
Richardson's farm compares with the average farm as to size and productivity, but
we do know the figures compiled for self-employed farmers are higher and should be
higher than those figures compiled for farm labor otherwise there would be no incen-
tive in farming for oneself. That these figures are also higher than the "actual
earnings" of Richardson, as evidenced by his income tax returns, is no reason to
reject their use. The General Counsel had rejected the use of the so-called actual
earnings in preparing his backpay specification and his amended specification and it
is noted that the farm labor wages he used were also higher than the so-called actual
earnings. However, there is a better reason why I do not use actual earnings of
Richardson during the backpay period.
I do not use the income tax returns to establish interim earnings of Richardson
because actual earnings were not pleaded as the base by the General Counsel in his
backpay specification as required by the Board's Rules and they were not litigated at
the hearing. Because they were not pleaded, there was no way for Respondent to
answer and put in issue the probative value of income tax returns. I even ruled that
Respondent could not question Richaidson as to the accuracy of his income tax
returns because the answer did not put them in issue. Accordingly they were not liti-
gated. Thus, because they were neither pleaded nor litigated, I shall not use them.lG
FINAL CONCLUSIONS
Therefore, upon all the evidence I find that summarizing the facts and the computa-
tions set forth, above, and in the appendixes, the obligation of Respondent to make
whole the discriminatees pursuant to the Board Order and court decree will be
discharged by payment to the discriminatees named below the amount set forth below
opposite their respective names. Said sums are each subject to applicable tax deduc-
tion required by Federal and State laws:
William H. Miller---------------------------------------- $8, 289
Clyde B. Richardson-------------------------------------- 5,785
It is recommended that the Board adopt the foregoing findings and conclusions
and take such action in the premises as it deems appropriate.
10 Because of this holding It is unnecessary to do more than briefly comment on Re-
spondent's brief which took issue with my ruling on the examination of Richardson by
Respondent as to the Income tax returns. I note that when I made the ruling I was
under the misapprehension that the actual earnings of Richardson were properly pleaded
by the General Counsel. Thus Respondent would be barred, under the Board's Rules,
from raising issues as to their accuracy at the hearing without first raising the issue
in its answer. On the other hand as I now find the income tax returns were not properly
pleaded I did err in not permitting Respondent to examine the witness as to them.
INTERCONTINENTAL ENGINEERING & MFG. CO. 1441
APPENDIX A
Computation of Gross Backpay , Interim Earnings and Net Backpay for
William H . Miller
Calendar Quarter Gross Backpay Net Interim
Earnings
Net Backpay
1960-1 (1/13 to 3/31)------------------ ------------------ $617.89 ----------------
$618.00
1960-2-- - --------- -- ------
910.75 ---------------- 911.00
1960-3------------------------------------------------- 911.92
$639.26 273.00
1960-4------------------------------- -------- 688.63 ----------------
689.00
1961-1------------------------------ -------
778.78 136.36 642.00
1961-2---------------------------------- ----- 855.39 1,455.39 ----------------
1961-3------------------------------------------------- 849.29 1,673.08 ----------------
1961-4 -- -----
830.89 1,087.83 ----------------
----------------------
1962-1 ------ -- ------------
921.84 1, 770.82 ----------------
1962--2---------------- --- ------------- ------- 959.84
1, 481.88 ----------------
1962-3-------------------------- 930. 72
74. 17 857.00
1962-4------------------------------------------------- 903.18
616.68 286.00
1963-1--- ---------------------------------
974.54 521.52 453.00
1963-2------- -----------------------------------------
972.73 46.00 927.00
1963-3----------------------------------- --- 934.90 ------------
935.00
1963-4------------------------------------------------- 962.32 ---------- -
962.00
1964-1 (1/1 to 3/23)-------------------------- ---------- 776.00 736.00
Total-------- -------------------------
8,289.00
Intercontinental Engineering and Manufacturing Co. and Inter-
national Association of Machinists, District Lodge No. 71,,
AFL-CIO. Case No. 17-CA-.386. April 5, 1965
DECISION AND ORDER
On October 15, 1964, Trial Examiner Phil W. Saunders issued
his Decision in the above-entitled proceeding, finding that the Re-
spondent had not engaged in unfair labor practices as alleged in the
complaint, and recommending that the complaint be dismissed in its
entirety, as set forth in the attached Trial Examiner's Decision.
Thereafter, the General Counsel filed exceptions to the Trial Exami-
ner's Decision-in which the Charging Party joined-and a support-
ing brief. The Respondent filed a brief in support of the Trial
Examiner's Decision.
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.
151 NLRB No. 139.
783-133-66 vol. 151-92