The Madison Courier, Inc.

National Labor Relations Board - Board Decisions

Jan 16, 1970

180 N.L.R.B. 781 (N.L.R.B. 1970)

THE MADISON COURIER, INC.
The Madison Courier , Inc. and Louisville
Typographical Union No. 10, International
Typographical Union , AFL-CIO. Case
25-CA-2217
January 16, 1970
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING, BROWN, AND JENKINS
On January 4, 1967, the National Labor
Relations Board issued a Decision and Order,
finding, inter alia, that the Respondent had failed to
bargain in good faith in violation of Section 8(a)(5)
and (1) of the National Labor Relations Act, as
amended, and directing, among other things, that
the Respondent upon application reinstate a number
of unfair labor practice strikers to their former or
substantially equivalent positions and make them
whole for any loss of earnings resulting from failure
to so reinstate.' Thereafter, on December 26, 1967,
the Board's Order was enforced by the United
States Court of Appeals for the District of
Columbia Circuit=
On November 12, 1968, the Acting Regional
Director for Region 25 issued and served on the
parties a backpay specification and notice of hearing
and Respondent filed an answer to the backpay
specification. Pursuant to due notice, a hearing was
held before Trial Examiner Benjamin K. Blackburn
from February 3 to 8 and 10 to 13, 1969, for the
purpose of determining Respondent's backpay
obligation to David R. Ashby, Bernard A. Corbin,
Albert Lee Dowell, Walter W. Dowell, Paula B.
Feltner, Louis D. Giltner, Rudolph D. Juett,
Virginia F. Kerr, Henry Lorenz, Jr., August Mead,
Judith A. Moore, James H. Nichols, and Micky D.
Storie.
On May 26, 1969, the Trial Examiner issued the
attached Supplemental Decision, in which he found
the claimants herein to be entitled to backpay in the
amounts specified. Thereafter, Respondent filed
exceptions to the Trial Examiner's Supplemental
Decision and a supporting brief, and the General
Counsel filed a brief in support of the Trial
Examiner's Supplemental Decision.
The Board has reviewed the rulings made by the
Trial Examiner at the supplemental hearing and
finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has
considered the entire record in this case,3 including
the Supplemental Decision and exceptions and
briefs, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner.
The Madison Courier , Inc., 162 NLRB 550.
'Madison Courier , Inc v . N L.R.B , 67 LRRM 2462 (C.A D.C.)
'Respondent has requested oral argument . This request is hereby denied
as the record , the exceptions , and the briefs adequately present the issues
and the positions of the parties
ORDER
781
On the basis of the Trial Examiner's
Supplemental Decision and the entire record in this
case, the National Labor Relations Board hereby
orders that Respondent, The Madison Courier, Inc.,
its officers, agents, successors, and assigns, shall pay
to the claimants involved in this proceeding as net
backpay the amounts determined to be due by the
Trial Examiner in his attached Supplemental
Decision.
TRIAL EXAMINER'S SUPPLEMENTAL
DECISION
STATEMENT OF THE CASE
BENJAMIN K. BLACKBURN, Trial Examiner: On January
4, 1967, the Board issued its Decision and Order directing
The Madison Courier, Inc. (referred to herein as
Respondent), inter alia. "upon application [to] reinstate
the unfair labor practice strikers who began their strike on
April 2, 1965, to their former or substantially equivalent
positions . and make them whole for any loss of
earnings resulting from failure to reinstate them."' On
December 26, 1967, the United States Court of Appeals
for the District of Columbia Circuit enforced the Board's
Order.'
A controversy having arisen over the amount of
backpay, if any, due David R. Ashby, Bernard A. Corbin,
Albert Lee Dowell, Walter W Dowell, Paula B. Feltner,'
Louis D. Giltner, Rudolph D. Juett, Virginia F. Kerr,
Henry Lorenz, Jr., August Mead, Judith A. Moore,
James H. Nichols, and Micky D. Storie (referred to
collectively herein as the claimants),4 the Acting Regional
Director for Region 25 (Indianapolis, Ind.) on November
12, 1968, pursuant to authority conferred upon him by the
Board, issued a backpay specification and caused it to be
served on Respondent. Respondent's answer admits
certain of the allegations contained in the backpay
specification and denies others, the net result being to
place in issue the items listed below. Pursuant to due
notice a hearing was held before me on February 3 to 8
and 10 to 13, 1969, in Madison, Indiana. All parties were
present and were afforded full opportunity to call and
examine or cross-examine witnesses, and otherwise
introduce evidence. At the close of the hearing all waived
oral argument. I have carefully considered briefs
subsequently filed by Respondent and the General
Counsel.
The Issues Litigated
1. Does the claimants' continuing to engage in picketing
of Respondent's plant and other strike-related activities
following Respondent's rejection of their application to
'The Madison Courier , Inc., 162 NLRB 550, 603
'Madison Courier , Inc v. N L R B, F 2d (C.A D C.)
'Since the initiation of this phase of these proceedings, Miss Feltner has
become Mrs Noble. In the interest of simplicity , I have continued to refer
to her by her maiden name.
'The backpay specification also names one Allen Arbuckle and indicates
that his interim earnings were consistently larger than his gross backpay,
thus precluding any backpay being due him At the outset of the hearing
counsel for the General Counsel stated that he was not going ahead with
the Arbuckle matter.
180 NLRB No. 118
782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
return to work at a time when work was available in and
around Madison, Indiana, constitute willful loss of interim
earnings, thus barring them from any backpay9
2 If the claimants are not guilty of willful loss of
interim earnings under the first issue, are they entitled to
have a Christmas 1966 and 1967 bonus included in their
gross backpay?
3 Similarly, are certain of the claimants entitled to
have included in their gross backpay premiums paid by
them or on their behalf in order to replace insurance paid
for by Respondent prior to April 2, 1965?
4 Did Respondent offer Rudolph D. Juett
reinstatement to a job substantially equivalent to his
prestrike position as a Linotype operator on or about
January 15, 19689
5 Does the fact that Respondent employed no one on a
part-time basis during the backpay period bar backpay for
August Mead, a part-time employee when he went out on
strike?
Upon the entire record and from my observation of the
demeanor of the witnesses while testifying, I make the
following
Findings and Conclusions
1. THE WILLFUL LOSS ISSUE
A. Facts
trial Examiner William F. Scharnikow's Decision,
containing the order quoted above which was ultimately
adopted by the Board, issued on July 7, 1966 On July 22,
1966, Respondent received a letter dated July 21, 1966,
and signed by all the claimants in which they applied for
reinstatement 5 Respondent did not respond to the letter.
The claimants continued to picket Respondent's plant
daily and to engage in other activities usually associated
with a strike such as soliciting the support of the public
through handbills and the support of Respondent's
advertisers through personal appeals These activities
continued until January 1968 when, pursuant to the court
of appeals' decree enforcing the Board's Order,
Respondent offered reinstatement to the claimants. The
activities of the claimants after July 22, 1966, were
precisely the same as before The International
Typographical Union, AFL-CIO (referred to herein as the
ITU), through its Local 10 (referred to collectively herein
as the Union) paid strike benefits to the claimants from
April 1965 until January 1968. The strike benefits were
computed on the basis of 60 percent of a journeyman's
pay under Local 10's contract with Louisville, Kentucky,
employers for a striking journeyman and 60 percent of
that figure for a striking apprentice. In July l"56 benefits
were $86.63 for the former and $51 98 for the latter In
1967, when Local 10 negotiated a new contract in
Louisville, these figures increased o $88.73 and $53.24,
respectively, and remained at that level until the claimants
were reinstated. All of the claimants received
journeyman's strike benefits, with the exception of Paula
Feltner and Judith Moore. They each received an
apprentice's strike benefits The sums received by the
claimants were roughly comparable to the weekly
take-home pay they received from Respondent prior to the
strike 6 In order to be eligible for strike benefits, the
claimants had to be available for picket line and other
duties No claimant ever failed to meet this requirement
When any of the claimants earned the equivalent of a full
day's pay while working at the printer's trade during the
backpay period, one-fifth of a full week's strike benefits
was deducted from his check ' Whether or not they are
legally bound to do so, the claimants consider themselves
morally obligated to reimburse the Union if backpay is
awarded them in this proceeding
Following Trial Examiner Scharnikow's Decision,
apparently in August 1966, the Union advised the
claimants to register for employment with the Indiana
Employment Security Division. All except David Ashby
did so and, as required by the State agency, periodically
visited its office in Madison. In registering, each indicated
that he was seeking employment only in the printing
trade The officer in charge of the agency's Madison office
was aware that the claimants were Madison Courier
strikers He commented to various of them on various
occasions that they were not really seeking jobs because
they well knew the agency had no printing jobs available
in the Madison area. They replied, in substance, that they
would accept any printing job within a reasonable distance
from Madison to which the agency referred them Ashby
did not register because he was told of these conversations
and concluded that registering would be a futile act. The
only claimants to receive job referrals from the State
agency were Bernard Corbin and Louis Giltner. Each
received a postcard referring him to a factory job in
Lawrenceburg, Indiana, approximately 50 miles from
Madison. Corbin learned that the available work was in a
distillery He did not go to Lawrenceburg to apply
because of the distance involved. Corbin told Giltner that
the cards they had received involved distillery work.
Giltner did not go to Lawrenceburg to apply because of
scruples against working in a distillery.
Pursuant to the Board's Order, the backpay period
begins for all claimants on July 27, 1966, 5 days after
receipt by Respondent of the letter dated July 21 in which
they applied for reinstatement. The backpay periods end
on various dates in January 1968 when the claimants were
reinstated B As already indicated, all but the Dowells
continued to engage in picketing and other strike-related
activities and to receive strike benefits from the Union
throughout the backpay period. The usual stint on the
picket line was 2 hours a day, Monday through Saturday.
The details of their interim employment, if any, and their
efforts to find it are as follows
'The letter reads, "We , the undersigned , unconditionally apply for
reinstatement to our employment at The Madison Courier, Inc in
accordance with the decision of the Trial Examiner in NLRB Case
Number 25 -CA-2217 " Respondent also received a letter from the
president of Local 10 dated July 22, 1966 , which reads , " Louisville
Typographical Union No . 10 hereby offers to permit the employees
affected by the strike at the Madison Courier, Inc to return to work in
accordance with the decision of the Trial Examiner in Case No
25-CA-2217 Louisville Typographical Union No 10, also, offers and
requests to bargain collectively with the Madison Courier, Inc on all
matters affecting wages , hours and other conditions of employment for
your employees in the appropriate unit as described in the Trial
Examiner ' s decision in Case No 25-CA-2217 "
All but Miss Feltner and Miss Moore were earning from $2 16 to $2.50
per hour when the strike began Miss Feltner and Miss Moore were
earning $1 35 and $1 40, respectively
'When Albert and Walter Dowell went to work full time for the
Louisville Courier-Journal in October 1966, their strike benefits ceased
The only dispute on this point involves Rudolph Juett , discussed in
detail in section IV As to the others, the backpay period ends as follows
January 8 , 1968 David Ashby, Bernard Corbin, Henry Lorenz, James
Nichols
January 15, 1968 Paula Feltner, Louis Giltner , Virginia Kerr
January 22 , 1968 Albert Dowell, Walter Dowell, Judith Moore,
Micky Stone
February 5, 1968 August Mead
THE MADISON COURIER , INC. 783
Walter and Albert Dowell
Walter and Albert Dowell are father and son. Both are
high school graduates. Walter Dowell worked 15 years in
the shipping department of a nail factory before he went
to work in Respondent's composing room in 1947. Albert
Dowell went straight to Respondent from high school in
1955. At the time the strike began both were employed by
Respondent as advertising compositors, that is, printers
who, under the hot-type process then used by Respondent,
assembled advertisements from type cast by other printers.
Both learned through the Union that jobs were available
on the Courier-Journal in Louisville, approximately 50
miles from Madison. Consequently, they applied and were
hired full time, effective October 25, 1966. They
commuted to and from Louisville daily, sharing the
driving between them, until January 22, 1968, when they
returned to work at The Madison Courier. Because his
interim earnings, minus his transportation expenses in
commuting to and from Louisville, regularly exceeded his
gross backpay, including Christmas bonus in 1967 and
insurance premiums, no backpay is claimed for Walter
Dowell after the fourth quarter of 1966. Similarly, the
only backpay claimed for Albert Dowell in all of 1967 and
the first quarter of 1968 is a nominal $76.15 in the second
quarter of 1967 when his gross backpay exceeded his net
interim earnings by that amount. Between July 27 and
October 25, 1966, Albert Dowell applied for work with no
employers, whether in or out of the printing trade and
whether in or out of Madison, Indiana. During this same
period Walter Dowell obtained a few days' work on a
casual basis at the Madison Press, a small job shop in
Madison run by a friend. He made no other applications
for employment. Both Walter and Albert Dowell were
available for work in the printing trade between July 27
and October 25, 1966.
Virginia Kerr
Mrs. Virginia Kerr is a wife and mother. She, too, is a
high school graduate. Her entire work experience has been
in the printing trade. Before, during, and after the
backpay period two of her three children lived at home
with her and her husband. She went to work for
Respondent in 1962 as a Linotype operator. Sometime
between the beginning of the strike in April 1965 and the
beginning of the backpay period in July 1966 the Union
obtained a job for her as a Linotype operator at Dunne
Press in Louisville. The job lasted for 2 weeks. During this
period Mrs. Kerr remained in Louisville from Monday
through Friday and returned to her home in Madison over
the weekend. Sometime during the backpay period the
Union informed her that a job was again available at
Dunne Press. Mrs. Kerr turned it down on the ground
that she did not want to leave her family again, as she had
on the previous occasion when she worked for Dunne
Press.
The Trimble Democrat and Banner is a weekly
newspaper published in Bedford, Kentucky, approximately
10 miles from Madison. It employs one Linotype operator
3 days each week. When its one operator quit around the
time the backpay period began, the proprietor asked Mrs.
Kerr to help him out. Mrs. Kerr worked for 2 days. The
proprietor then offered her the job on a regular basis.
Because the Trimble Democrat and Banner is a nonunion
operation, Mrs. Kerr asked the Union whether she should
take the job. Donald McFee, the representative to whom
she spoke, told her that she could work for a nonunion
newspaper without endangering her status as a union
participant in the Madison Courier strike but suggested
that the work available be shared with all of Respondent's
Linotype operators. Consequently, Mrs. Kerr worked off
and on for the Trimble Democrat and Banner from the
third quarter of 1966 into the fourth quarter of 1967. She
worked, at most, I day a week. She applied for work with
no other employers, either in or out of the printing trade,
either in or out of Madison, Indiana, during the backpay
period. She was available for work in the printing trade
throughout the backpay period
Bernard Corbin, Henry Lorenz, and James Nichols
Bernard Corbin, Henry Lorenz, and James Nichols
were all employed as Linotype operators by Respondent
just prior to the strike. Pursuant to McFee's suggestion,
Mrs. Kerr shared the work available at the Trimble
Democrat and Banner with them on a day-by-day
rotation. After a few days' work, since there were only 3
days' work available each week, Lorenz dropped out, and
Mrs Kerr, Corbin, and Nichols shared the job on the
basis, generally, of I day of work per week for each.
Consequently, Lorenz' interim earnings at the Trimble
Democrat and Banner ceased after the fourth quarter of
1966 while Mrs. Kerr, Corbin, and Nichols continued on a
regular basis into the second quarter of 1967. At that time
the Trimble Democrat and Banner finally hired its own
Linotype operator and regular work for Madison Courier
employees came to an end.' Nichols also obtained
part-time work as a Linotype operator at the Gallatin
County News in the second quarter of 1967 which
continued into the fourth quarter. The Gallatin County
News is a weekly paper published in Warsaw, Kentucky,
approximately 35 miles from Madison.
Corbin is a high school graduate He went directly to
Respondent's composing room from high school in 1957.
During the backpay period the only employer from whom
he actively sought work, either in or out of the printing
trade, was the operator of a grocery store in the Madison
area. He asked for part-time work. Only full-time work
was available. Corbin declined it because it would have
conflicted with his picketing assignments.
Lorenz is 62 years old and has lived for more than 50
years in the Madison area. The record does not reveal
how much formal education he has had. He has worked
more than 40 years for Respondent. During the backpay
period he did his loafing at a job shop in Madison owned
by a friend named Chapman. Chapman has one Linotype
machine and employs one Linotype operator. Lorenz
constantly asked Chapman whether Chapman had any
work for him. Chapman never did. To the extent that
these casual conversations constitute applications for
employment, Lorenz actively sought work in the printing
trade in Madison during the backpay period. He applied
for work to no other employer, either in or out of the
printing trade, either in or out of Madison.
Nichols has lived in the Madison area all his life. At
the time the strike began he had worked for Respondent
since 1955 as a Linotype operator. Just prior to that he
worked for 18 months as a civilian gunner at Jefferson
Proving Grounds following a 2-year tour of military
service. Before going into service he had worked for
Respondent. During the backpay period he applied for
work to no employer, either in or out of the printing
'Mrs. Kerr received 2 or 3 days' part-time work on a fill-in basis at the
Trimble Democrat and Banner in the fourth quarter of 1967
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
trade, either in or out of Madison. He was the Union's
chapel chairman during the backpay period and, as such,
in charge of the picketing of Respondent's plant At the
time of the hearing he was working as a Linotype
operator for a magazine printer in Louisville, having left
Respondent's employ in May 1968
Corbin, Lorenz, and Nichols were available for work in
the printing trade during the backpay period
August Mead
While it is undisputed that, when he did work for
Respondent, August Mead worked as an ad compositor,
the amount of work he did prior to the strike is part of
another issue which is dealt with in section V, below
Mead is 63 years old and has lived in Vevay, Indiana, 20
miles from Madison, practically all of his life The recoid
does not record the extent of his formal education or
whether he had ever worked outside the printing trade.
During the backpay period Mead obtained occasional
work on a casual basis at the printing trade in Madison at
both the Madison Press and Chapman's job shop Mead
did not apply for work to any other employer, either in
the printing trade or out, either in Madison or out, during
the backpay period He was, however, available for work
in the printing trade
Louis Giltner and Micky Stone
Louis Giltner was employed as a pressman by
Respondent just prior to the strike Micky Storie's
principal duty was page makeup, although he had a
variety of duties, including helping to run the presses
Both are high school graduates. Giltner went to work for
Respondent in 1960 after brief employment as a farmer
and in a poultry processing plant. Before going to work
for Respondent in 1959, Stone worked for relatively short
periods of time as an automobile mechanic for two
different employers Both held regular part-time jobs in
Madison throughout the backpay period which did not
interfere with their picketing duties. Giltner worked as a
clerk in a grocery store Storie worked as a mechanic for
a motorcycle dealer Since these jobs did not interfere
with their picketing duties, no deductions were made from
Giltner's and Storie's strike benefits because of their
earnings from these jobs. Neither applied for work to any
other employer, either in or out of the printing trade,
either in or out of Madison, during the backpay period.
Both were available for work in the printing trade
throughout the backpay period. At the time of the hearing
Storie was working for the Courier-Journal, having left
Respondent's employ in the fall of 1968.
Rudolph Juett, Judith Moore, and Paula Feltnc^
Rudolph Juett was employed by Respondent as a
Linotype operator, and Judith Moore and Paula Feltner
as teletypesetter tape punch operators just prior to the
strike.'° Juett is 66 years old, has lived most of his life in
Madison, and had worked 41 years for Respondent when
the strike began Misses Moore and Feltner are both high
school graduates. In addition, Miss Moore attended
business school for 1 year. She worked for several weeks
as a clerical employee in a business office before going to
work for Respondent in 1964. Miss Feltner graduated
from high school in 1964 and went directly to work for
Respondent During the backpay period" neither Juett,
Moore, nor Feltner applied for work to any employer,
either in or out of the printing trade, either in or out of
Madison All three were available for work in the printing
trade throughout the backpay period
David Ashby
David Ashby was employed by Respondent as a
makeup man just prior to the strike He is a high school
graduate. He first went to work for Respondent in 1955
In 1960 he left for about 6 weeks and then returned
Before he went with Respondent he worked variously as
an automobile body repairman, automobile salesman, and
farmer Like Juett, Moore, and Feltner, he did not work
during the July 1966 January 1968 period 'Z However,
unlike them he did seek work He applied for a job as a
civilian ordinance man at the United States Army's
Jefferson Proving Grounds near Madison, took a Civil
Service examination, and was placed on a roster
However, he was not hired due to a freeze on hiring. He
applied to no other employer for work, either in or out of
the printing trade, either in or out of Madison, during the
backpay period. He was available for work in the printing
trade throughout that period.
I have linked the claimants as above because I find that
the significant facts with respect to each can be
summarized as follows
Picketed until taking a full-time job in the printing
trade- Walter Dowell and Albert Dowell
Picketed while working part time in the printing
trade Virginia Kerr, Bernard Corbin, Henry Lorenz,
James Nichols, and August Mead
Picketed while working part time outside the printing
trade Louis Giltner and Micky Storie
Picketed, never worked, never sought work-"
Rudolph Juett, Judith Moore, and Paula Feltner
Picketed, never worked, but sought work outside
trade David Ashby
As detailed in Trial Examiner Scharnikow's Decision,
Respondent, shortly after the beginning of the strike in
April 1965, changed its printing operation from the
hot-type process to the cold-type process Consequently, in
addition to picketing and eng ging in other strike-related
activities, the claimants attempted to retrain themselves in
the new skills they would require when they returned to
work. Typewriters, light tables, and a ruling machine,
equipment used in the cold-type process, were moved into
various strike headquarters occupied during the strike.
The claimants used them and copies of the Madison
Courier to practice production of cold type and paste
makeup Prior to July 1966 the Dowells, Stone, and
Ashby attended for 3 weeks a center operated by the ITU
at its headquarters in Colorado Springs, Colorado, for
retraining its members in the new processes which have
"A teletypesetter is a device used in conjunction with a Linotype
machine A tape is punched The tape is then fed into the teletypesetter
which is attached to the Linotype machine It causes the Linotype to cast
lines of hot type automatically as if the Linotype were being operated
directly by a human being The Linotype operator's function then becomes
one of merely monitoring the functioning of the teletypesetter and
Linotype
"Whether or not Juett's backpay period ended in early 1968 like the
other claimants or is still running is the crux of another issue which is
dealt with in section IV below
"Interim earnings charged against Ashby in the computation of the
backpay due him are payments to him under a Government farm program
which the General Counsel concedes should be deducted from his gross
backpay.
"Except, of course , for registering with the Indiana Employment
Security Division
THE MADISON COURIER, INC. 785
revolutionized the printing industry since the end of World
War II. Mrs. Kerr and Nichols took typing lessons at a
school in Versailles, Indiana, at Local 10's expense."
The Madison Courier is a daily newspaper. Other daily
newspapers which are circulated in the area are published
in Louisville, Kentucky; Cincinnati, Ohio; and
Indianapolis, Indiana; all 50 or more miles distant.
However, several weekly newspapers are published within
a 50-mile radius of Madison. In addition to the Trimble
Democrat and Banner and the Gallatin County News
already mentioned, these include the North Vernon Plain
Dealer and Sun published in North Vernon, Indiana,
approximately 20 miles away; the Versailles Republican,
published in Versailles, Indiana, approximately 25 miles
away; and the Carrollton Mirror, published in Carrollton,
Kentucky, approximately 12 miles away. No claimant
applied for work at any of these newspapers during the
backpay period. The owner of the North Vernon Plain
Dealer and Sun could have used a "good, all-around
printer" at $2.50 to $2.75 an hour during the backpay
period. However, he hired no printers during that period
nor did he contact any of the Madison Courier strikers
about coming to work for him even though he was aware
they were on strike. He regularly employs approximately
six persons in his printshop. The Versailles Republican
hired approximately five new employees at the legal
minimum wage during the backpay period and trained
them to work in its printshop. During this period it lost
one experienced, all-around printer to whom it had been
paying the equivalent of approximately $2.50 an hour. It
did not replace him with a printer of comparable skill and
experience. During the backpay period it employed seven
persons in its printshop. It did not offer employment to
any of the Madison Courier strikers at any time although
it, too, was aware of the strike. Neither the North Vernon
nor the Versailles paper sought printers through the
Indiana Employment Security Division.
While there were very few jobs available in the printing
trade in the Madison area during the backpay period,
there was no scarcity of work available outside the trade.
Olin Mathieson Chemical Corporation operates a
federally owned shell loading plant at Charlestown,
Indiana, 32 miles from Madison. During the backpay
period, when the Charlestown plant was rapidly expanding
its operations due to the Vietnam war, Olin Mathieson
hired 13,679 new employees in various job classifications.
Most of the jobs paid between $2.50 and $3 an hour or
the equivalent in monthly salary, plus normal fringe
benefits. Few of the persons hired had any prior
experience in the jobs for which they were hired, the only
prerequisite for most of them being a high school
education and physical fitness. Without attempting to
detail the work involved, directly and indirectly, in the
many different jobs involved in loading artillery shells of
various calibers and other types of explosive weapons, I
find that the duties which employees at the Charlestown
plant perform are not particularly heavy, dirty, or onerous
and, giving due consideration to the volatile nature of the
product, no more hazardous than factory work generally.
Of the various employers in the Madison area whom
Respondent called to testify in the presentation of its
defense, Olin Mathieson was the only one which used
printers. A small printshop at the Charlestown plant
prints various technical data on powder bags before they
are filled. No person was hired directly into this job
classification during the backpay period The job is
usually filled by progression from within the plant
Reliance Electric Company is located just outside
Madison. It manufactures fractional horsepower electric
motors. Its work force of approximately 560 mans such
job classifications as lathe operator, punch press operator,
assembler, and stock handler. The wage for any particular
job is determined by its labor grade. Grade 9, the level of
some entry level jobs, paid $2.18 an hour prior to July
1967 and $2.33 thereafter, with normal fringe benefits.
Higher numbered grades paid higher wages. During the
backpay period Reliance Electric hired 301 persons, most
of them at approximately $1.70 an hour. Their
progression to the wage of the labor grade assigned to the
job for which they were hired depended on merit but was
relatively rapid. Prior experience at the particular job was
not required in order to be hired for entry level jobs.
The United States Army's Jefferson Proving Grounds is
located 6 miles from Madison. Its function is to test fire
conventional ammunition such as artillery and mortar
shells. It is staffed by civilian employees of the United
States Government under Civil Service regulations,
including all the fringe benefits common to Federal
employees. There are numerous job classifications. For
example, munitions operators prepare ammunition for
firing. Civilian gunners load and fire guns. Proof
technicians supervise firing tests. Observers, working from
dugouts, plot the fall of shells in the impact area of the
range. Persons inexperienced in handling high explosives
need only a high school education to be hired at the WB-5
level. These jobs paid $2 57 and $2.65 per hour at various
times during the backpay period. During the backpay
period 432 persons were hired to work at Jefferson
Proving Grounds. Many had no prior experience in the
jobs for which they were hired.
Dow Corning Corporation began production in January
1967 at a new silicone plant employing 100 persons which
is located 17 miles from Madison near Carrollton,
Kentucky. The initial work force was hired and trained
during 1966. A total of 76 persons were hired during the
backpay period, most during the latter part of 1966, for
such job classifications as class A operator and utility
operator. Hiring rates were in the $2.50 to $3 an hour
range with normal fringe benefits. The only requirements
for hiring were a high school education and physical
fitness.
Indiana-Kentucky Electric Corporation operates an
electricity generating plant at Madison. It has a work
force of approximately 234 employees in such
classifications as laborer, utility man, and helpers in
departments such as results and measurement and
metering. Laborer is the entrance job; helper is the entry
classification in the various departments as employees
advance up the ladder of Indiana-Kentucky's job
progression. During the backpay period 45 new employees
were hired at beginning rates of pay ranging from $2.25 to
$2.44 an hour. There were no specific requirements for
being hired, whether experience, education, or physical
fitness.
American Can Company has a plant at Austin,
Indiana, 25 miles from Madison, at which it manufactures
tin cans. The plant employs approximately 350 persons in
such job classifications as slitter operator and
operator-tester. During the backpay period 155 new
employees were hired, most of them in labor grade 4. The
beginning rate for labor grade 4 was initially $2.652, later
"Unlike the Linotype, the teletypesetter and machines used in the $2.726 during the backpay period. The only requirement
cold-type process have keyboards similar to a typewriter. for being hired was physical fitness.
786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Grote Manufacturing Company has a plant in Madison
at which it employs 325 persons in the manufacture of
medicine cabinets and automotive safety equipment.
During the backpay period it hired 63 new employees in
such job classifications as assembler light, assembler
heavy, and cabinet packer. Starting rates were generally in
the $1.45 to $1.85 an hour range. Generally speaking,
physical fitness was the only requirement for hiring
although the company sought experienced help for some
of its higher paying jobs.
Rex Chain Belt manufactures equipment for mixing
concrete in highway building at a plant in Madison.
During the backpay period it employed approximately 400
persons. About 130 new employees were hired during that
time, at starting rates of either $1.73 or $1.80 an hour
with progression after 90 days to $2. or $2.07 depending
on whether the new employee was hired in the early part
or the latter part of the backpay period. Rex Chain Belt
employees work in such job classifications as helper, press
operator, punch operator, and assembler.
Williamson Company manufactures heating and cooling
equipment, metal shipping containers, frames for
telephone equipment, and metal shipping bucks at a plant
in Madison. During the backpay period it hired 96 new
employees for such job classifications as shear operator,
press operator, welder, and grinder. In all but a very few
cases, the starting rates of the new employees were either
$1.70 or $1.82 an hour.
The foregoing is only a sketchy summary of the myriad
of uncontroverted facts in the record about jobs available
in the Madison area during the backpay period. Based on
the record as a whole, I find that there were numerous
jobs outside the printing trade available in the Madison
area during the backpay period which were comparable
to, but not identical with, the jobs held by the claimants
at the Madison Courier prior to the strike with respect to
wages, hours, and other conditions of employment, as well
as the amount of physical effort required to perform them
and the degree of personal satisfaction and status in the
community they afforded to their holders. Each of the
claimants might have been hired to fill one or more of
these jobs if they had elected actively to seek work outside
the printing trade rather than to continue picketing and
engaging in other strike -related activities during the
backpay period, regardless of whether the individual
claimant was a man or a woman, an older person or a
younger person.
B. Conclusions
The first preliminary point is one of semantics. Until
their letter of July 21, 1966, there is no question but that
the claimants were strikers in the full sense of the word,
that is, they were employees who concertedly chose to
withhold their labor from their employer in order to bring
pressure to bear on him in a dispute relating to the terms
and conditions of their employment. When they applied
for reinstatement their status changed. Their letter of July
21 is clear and unequivocal. It attaches no conditions
whatsoever to their return. They did not return to work at
that time only because Respondent rejected their offer.
Therefore, absent any other evidence whatsoever bearing
on their bona fides, their continuing thereafter to engage
in strike activities does not establish that their offer to
return to work was made in bad faith. It merely
establishes that they were willing to pick up the gage of
continued battle thrown down by Respondent when it
ignored their offer. I find that their failure to return to
work at that time, thus starting the backpay period
running under the terms of the Board's Order, was solely
Respondent's doing and not their own. It follows, then,
that after July 21 they were no longer withholding their
labor from Respondent by choice but were ready, willing,
and able to return to work as soon as Respondent gave
the word. Thus they were not strikers during the backpay
period, even though that word might be used loosely to
describe their continuing activities."
The next question is whether any distinctions should be
drawn among the claimants on the basis of the categories
into which I have placed them above. Insofar as this issue
is concerned, is there any significance in the fact that
Louis Giltner and Micky Storie augmented their strike
benefits by finding part-time jobs, thus reducing their
backpay somewhat, while Rudolph Juett, Judith Moore,
and Paula Feltner never actively looked for work9 Or,
again, should David Ashby be granted backpay because he
actively sought work at Jefferson Proving Grounds during
the backpay period while Juett, Moore, and Feltner are
denied it because they did not? Or, again, is there any
significance in the fact that Walter and Albert Dowell
eventually found full-time work as printers in Louisville
while Virginia Kerr turned down a similar job in the same
city? I think not. The claimants were not required to seek
or accept work less suitable to their experience and
background in order to avoid being found guilty of a
willful loss of interim earnings.1' Therefore, Giltner,
Storie, and Ashby stand in no better position than Juett,
Moore, and Feltner because they did so. Because the
Dowells decided to drive 100 miles each day in order to
obtain work as printers, it does not follow that Mrs. Kerr
had to do the same thing to avoid being found guilty of a
willful loss of interim earnings. Her family situation was
quite different from the Dowells'. The expense she would
have been put to would have greatly reduced the addition
to her income which would have resulted from substitution
of a full-time job for strike benefits. Therefore, her
decision to turn down the Dunne Press job in Louisville
was reasonable and proper.
A related question is whether Paula Feltner and Judith
Moore stand in the same position as the other claimants
when the test of work suitable to their background and
experience is applied. When the strike began they were
both fairly recent high school graduates who had become
teletypesetter tape punchers in Respondent's production
process because they could type. They had done some
general office work for Respondent. Unlike the other
claimants, who had worked for extended periods in the
printing trade and were qualified in various of the skills
which distinguish printers from other skilled tradesmen,
they could, as Respondent points out, probably have
qualified for available clerical jobs in the Madison area
with no retraining whatsoever. But to distinguish Feltner
and Moore from the other claimants on this basis is to
overlook the very point which links them to the others.
When Respondent made them teletypesetter tape
punchers, they ceased to be office clerical employees and
entered the printing trade. The Union recognized this fact
when it admitted them to membership and accorded them
apprentice status for purpose of computing their strike
benefits. They elected to stand with the other printers in
"Cf. Berger Polishing , Inc. 147 NLRB 21, and Northern Virginia Sun
Publishing Company, 134 NLRB 1007, both of which turned on the fact
that the offer to return to work was not unconditional.
"Brotherhood of Painters, etc, Local No 419, 114 NLRB 295, Robert
Haws Company , 161 NLRB 299.
THE MADISON COURIER , INC. 787
the battle with Respondent . They were no more required
to give up their new-found trade than the other claimants
in order to avoid a willful loss of interim earnings I find,
therefore, that all of the claimants must be judged
together in determining whether the jobs available in the
Madison area were suitable to the background and
experience of printers and all must stand or fall together
in deciding the willful loss of earnings issued.
Another question is whether Ashby should be penalized
because he, alone of all the claimants, failed to register
for work with the Indiana Employment Security Division.
I rely on the fact that the claimants did register. But the
mere fact of registering is not a touchstone in this case.
The claimants were aware of the weight that can be given
in backpay proceedings to registering for work with a
State employment service. Mindful of this, they carefully
sought to protect themselves by going through the
formality. As all their stories of what the State official
said to them and they said to him on those occasions
clearly establish, they were complying with form rather
than substance. The official told them that they were not
serious because they knew that he had no jobs for
printers. They replied, as form required, that they would
accept any printing job within a reasonable radius of
Madison. The fact that the official treated their
applications as a joke does not establish that their
registration was a joking matter to them. On the other
hand, it does not follow that their right to backpay turns
on whether or not they registered . There is no such
mechanistic test for granting or withholding backpay."
Registration with a State agency is only one of many
factors to be taken into consideration in deciding whether
a particular claimant is guilty of a willful loss of interim
earnings. Therefore, I find that David Ashby was correct
in his conclusion that registering with the Indiana
Employment Security Division would have been a futile
act in view of the agency's attitude toward the claimants
and that he did not disqualify himself by not registering.
The final preliminary question which must be disposed
of is what significance, if any, should be attached to the
generous strike benefits the claimants received from the
Union throughout the backpay period. That strike benefits
are not deductible from gross backpay as interim earnings
is a point well settled and not an issue in this case." But
the benefits are nonetheless probably the key factor in the
situation as it developed. The sum received each week by
each claimant was close enough to what he had received
in take-home pay from Respondent just prior to the strike
that Respondent' s major weapon in its fight with the
Union was blunted. Because they were able to live on
what they received from the Union, the claimants were
under none of the usual economic pressures to give up
quickly in order to restore their incomes . Therefore, the
Union was able to hold its adherents together throughout
the strike, keeping its pressure on Respondent for nearly 3
years. Now it is likely that any backpay awarded to the
claimants in this proceeding will wind up in the coffers of
the Union as the claimants reimburse it for the benefits
they received during the backpay period. The result may
well be a situation in which Respondent is forced to
finance strike activities against itself . However, I find that
result, if it comes to pass , incongruous but not
controlling. Strike activities continued during the backpay
period because Respondent rejected the unconditional
offer to return to work triggered by Trial Examiner
"Southern Silk Mills , Inc., 116 NLRB 769, enforcement denied 242
F.2d 697 (C A. 6), cert. denied 355 U.S 821.
Scharnikow's Decision. If it is not now relieved from all
backpay liability because the claimants elected to continue
their strike activities in support of their Union, it cannot
profit from its own failure to comply at that time with
what ultimately became the Board's Order merely because
the opposite result redounds to the Union's benefit.
Boiled down thus to its simplest form, the basic issue in
this proceeding is whether the claimants had to abandon
their strike activities after applying for reinstatement and
being ignored by Respondent as the price of being entitled
thereafter to backpay. Both Respondent and the General
Counsel rely heavily on Florence Printing Company,
supra, 777, 793. In that case, as here, printers who were
ultimately found to be unfair labor practice strikers
applied for reinstatement after the Trial Examiner's
Decision but before the Board's Order. The employer did
not reinstate them until the United States Court of
Appeals for the Fourth Circuit enforced the Board's
Order. In the interim between application and
reinstatement the printers continued to picket. One of the
issues litigated was "(4) Whether the otherwise stipulated
backpay due to involved typographical workers is subject
to the defense of mitigation by reason of the availability
of sundry jobs in unrelated occupations as shown in want
ads." The General Counsel relies on that portion of the
Trial Examiner's Decision which reads:
Respondent made no attempt at the hearing to show
that any of the "want ad" jobs were offered to any of
the involved given former strikers. Respondent has
accordingly failed to meet the burden of proof required
of it "to establish facts which would negative the
existence of liability to a given employee or which
would mitigate that liability."
Respondent's "want ad" job opportunities defense to
the otherwise stipulated backpay due the 13 former
strikers must also fail because the strikers were not
required "to lower their sights" to minimize their loss
of earnings during the liability period by taking jobs
which were not substantially equivalent to the jobs they
held with the Respondent.
Respondent points to this language in the Board's
Decision at 777. "2. The Respondent contends that
although suitable jobs were available in the area, as
indicated by the advertisements in its newspapers, the
strikers failed to avail themselves of other employment
during the liability period. The Respondent failed,
however, to show that the strikers did not seek these or
other jobs." In arguing that the Board was not adopting
the Trial Examiner's findings on either of the two points
he made. Respondent argues that Florence Printing stands
for the proposition that, once the missing ingredient of
evidence that the claimants failed to seek other available
jobs has been supplied, a willful loss of earnings has been
established. I agree with Respondent that it has, through
its cross-examination of the claimants and the evidence of
other jobs in the Madison area it produced as its
case-in-chief, supplied the missing ingredient here.
However, the result for which Respondent argues does not
necessarily follow. Florence Printing does not dispose of
the issue squarely presented in this case because it is clear
that neither the Board nor the court considered it." In
rejecting Florence Printing as dispositive of this case, I
"Florence Printing Company, 158 NLRB 775, enfd.376 F.2d 216(C A 4)
"Judge Boreman's dissenting opinion in Florence Printing Co v
N L R B. 376 F.2d 216, comes closest, but even he has not weighed the
relative rights of strikers and employer under the statutory scheme nor
788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have noted the subtle distinction between the Trial
Examiner's "jobs were [not] offered" and the Board's
"strikers did not seek." If the Board intended by this
change to indicate a higher duty on claimants actively to
seek other jobs than the Trial Examiner would require, a
conclusion I do not presume to reach, the point merges
into and is lost in the larger issue here of whether the
claimants had to choose between picketing and backpay.
Ozark Hardwood Company, 119 NLRB 1130, comes
closest to supporting Respondent's position, but it also is
not dispositive of the issue. There the Board held that 3 of
27 claimants did not diligently seek employment while on
a picket line and thereby incurred a willful loss of
earnings . In Ozark Hardwood the claimants were illegally
discharged on May 16, 1949. The Board's Order,30
consequently, required offers of reinstatement without any
prerequisite of an unconditional application by the
claimants and the backpay period began on May 16, 1949.
The union placed a picket line at the plant on December
2, 1949, and maintained it until July 1950. Service on this
picket line for varying periods during which they did not
actively seek jobs led to the three claimants being
penalized. However, the Board specifically rejected the
argument that no backpay should be allowed from
December 2, 1949, until July 1950 because all the
claimants, being adherents of the union, would have gone
on strike during that period.
Finally, Respondent cites N L.R.B v Southern Silk
Mills, Inc , 242 F.2d 697 (C.A. 6), cert. denied 355 U.S.
821, and N L.R B. v. Moss Planing Mill Co., 224 F.2d
702 (C.A. 4), in support of the proposition that the
claimants here had to look beyond the printing trade for
work in order to avoid a willful loss of earnings. In
Southern Silk Mills the Sixth Circuit reversed the Board
and held that two female knitters should have turned to
work which paid less money than the jobs from which
they had been discharged when a 7-month search for a job
paying substantially the same wages proved fruitless. In
Moss Planing Mill the Fourth Circuit reversed the Board
and held that two men, one a fireman and the other a
blocksetter in a sawmill, should have turned to farm work
available in the area to support their families sometime
during a 3-year backpay period. Both cases turn on the
rationale that a claimant must, at some point in the
backpay period, "lower his sights" to less lucrative or less
suitable work rather than wait for a job substantially
equivalent to the one he has been discriminatorily denied.
But the issue involved in this case is not whether the
claimants were being lazy. It is whether they had a right,
under the Act, to live on their strike benefits while
continuing to oppose Respondent in a labor dispute. Thus
the point of the court decisions in Southern Silk Mills and
Moss Planing Mill simply begs the question presented
here.
In my view, this issue must turn on a weighing of the
equities. Backpay is remedial, not punitive." What, then,
is required to remedy this situation in the light of the
statutory scheme embodied in the Act? The Act gives
employees the right to strike and carefully protects them
against discrimination when they exercise that right. The
Act, on the other hand, gives employers the right to
does he state that he would rule finally in the employer's favor
"Ozark Hardwood Company, 91 NLRB 1443. The hearing was held in
late January and early February 1950 The Board's Order issued on May
16, 1950 Apparently the picketing did not come up at all at that stage of
the proceeding
protect themselves against strikes by continuing to operate
with replacements. When a strike flares, the Act allies
itself with neither party, absent overriding public interests
not present here. The parties are left to their test of
strength, and the side with the heaviest artillery wins.
Only subsequently do such considerations as whether the
employees walked out in violation of a no-strike pledge or
whether the strike was caused by the employer's unfair
labor practices come into the picture.
In the Madison Courier strike the employees had
heavier artillery on their side than is usually the case
They had strike benefits from the Union which made it
financially possible for them to exercise their rights from
the day they walked out until the day Respondent finally
complied with the Board's Order. The legal conclusion
that they were unfair labor practice strikers was first
established by Trial Examiner Scharnikow's Decision. The
fact that Respondent refused to concur in that decision
until it had exhausted its legal rights at the Board and
court level does not alter that fact. When the claimants
sought to exercise their right to return to work in July
1966, Respondent could have avoided any backpay
liability by according them that right at that moment.
Doing so would not have required Respondent abjectly to
surrender to the Union. It could have continued the war
under the statutory scheme by pressing before the Board
and the court all the issues it pressed before the Trial
Examiner. When it elected to take a chance that it could
upset the Trial Examiner's Decision and avoid taking
back the claimants even though they had complied with
that part of the Order which required them, in good faith,
to seek reinstatement unconditionally, it took a calculated
risk. This case presents no Ozark Hardwood issue of
whether the claimants withdrew from the job market when
they continued to picket the Madison Courier after July
27, 1966. They were as much in the job market then as
they were before Trial Examiner Scharnikow issued his
Decision. This case presents no Southern Silk or Moss
Planing issue of lowering of sights after being out of work
for a long time with no money coming in. Thanks to the
Union's strike benefits, the claimants had enough money
coming in that they could afford to elect to continue to
fight following Respondent's decision to continue the war
unabated. This case simply presents the issue of who
should bear the cost of the claimants' decision to continue
to exercise their rights following Respondent's decision to
continue to resist their rights as unfair labor practice
strikers. Remedying the wrong done to the claimants
when Respondent made that decision requires Respondent
to bear that cost since, I think, the rights accorded to the
claimants by the Act in this situation outweigh those of
Respondent. Therefore, I find the claimants did not, at
law, engage in willful loss of interim earnings when they
elected to continue their fight with Respondent rather than
actively seek the jobs which were available in the Madison
area following Respondent's rejection of their
unconditional offer to return to work because they have
met the following criteria applied in other situations to
determine whether a willful loss had occurred:
1. The claimants were under no obligation to seek or
accept work less suitable to their background or
experience than the jobs denied them by Respondent. In
this case, this means that they did not have to seek any of
the numerous jobs available in the Madison area outside
the printing trade. As comparable as these jobs may have
been to their old jobs in such items as wages and hours
"Phelps Dodge Corp v N L.R B, 313 U S. 177.
THE MADISON COURIER, INC. 789
and as easy as it may have been for the claimants to get
them despite their lack of any experience, the fact remains
that each of them required the claimants to change their
calling. While a factory worker may not be justified in
refusing a job because the factory at which he could get
work makes a product different from the factory which
has discriminated against him, the same reasoning does
not apply when a printer could get the factory job. The
factory worker is not rejecting a less suitable job because
the work he would be doing, in a broad sense, is the same
as the work which has been denied him. It matters little
whether he is operating one model press in this factory or
another model in that, whether he is operating a lathe in
this factory or a press in that. The printer, on the other
hand, like any skilled worker in one of the recognized
crafts, makes a sacrifice of no mean proportion when he
gives up his trade and goes into an entirely different line
of work. The sacrifice would have varied with the
individual claimants in this case, of course. They vary
from Rudolph Juett and Henry Lorenz, men in their 60's
who have spent a lifetime working at their trade, to Judith
Moore and Paula Feltner, young women not long out of
high school whose skills in the printing trade are
apparently limited to reading proofs and operating the
typewriter-like keyboard of a teletypesetter tape puncher.
But the principle which applies to Juett and Lorenz
applies equally to Moore and Feltner. To require them to
seek other kinds of work elsewhere would be to require
them to seek work less suitable than the jobs in
Respondent's printshop to which they became entitled in
July 1966 at the very moment when their statutory right
to join with Juett, Lorenz, and the other skilled printers
was most important to them. This the law does not
require.
2. The claimants accepted all the work available in the
printing trade in the Madison area. The only work
available in the immediate vicinity of Madison was the
temporary situation on the Trimble Democrat and Banner
which Virginia Kerr, Bernard Corbin, Henry Lorenz, and
James Nichols shared. The fact that the claimants did not
apply for work at the other small newspapers published
within a 25-mile radius of Madison is immaterial because
none of them sought an experienced printer during the
backpay period even though they knew that the claimants
were out of work. The only evidence in the record that
there was any other printing trade job available during the
backpay period is the fact that Mrs. Kerr, for good and
sufficient reasons, turned down a job in Louisville. I find
that a round trip of 100 miles a day was an unreasonable
requirement to impose on any of the claimants, even
though the Dowells voluntarily undertook it, and,
therefore, the Dunne Press job was not one in the
Madison area which the claimants willfully failed to seek
or accept.='
3. The claimants sought work in the printing trade in
the Madison area in the only meaningful way open to
them by registering for work with the Indiana
Employment Security Division. As I have indicated above,
I do not consider this fact in any way controlling, and I
recognize that the efforts they went through to attempt to
get work in the printing trade in this manner finally took
"Respondent points to the Dowells and Mrs . Kerr as well as the fact
that Nichols and Storie have since left Respondent to go to work in the
printing industry in Louisville in arguing that plenty of work was available
for printers in Louisville during the backpay period . Nichols' and Storie's
experience months after they were reinstated by Respondent is irrelevant.
The Dowells' and Mrs . Kerr's experience is insufficient basis for such an
inference.
on the quality of a charade. Nevertheless, I find no basis
for concluding that the claimants acted in less than
complete good faith when they registered. Therefore, the
fact is entitled to be weighed along with the other factors
in reaching the ultimate conclusion.
11. THE BONUS ISSUE
The backpay specification includes a Christmas bonus
of 40 hours' pay in the gross backpay of each claimant for
the fourth quarters of 1966 and 1967. Respondent
contends that the claimants are not entitled to this money
because it was not a bonus in the technical sense of a
form of wages to which employees have a right because of
the circumstances under which they have received it in the
past but rather a gift solely within the discretion of
Respondent. I find it unnecessary to decide whether
Respondent's past practices have converted its annual
Christmas bonus from a gift into a right for all purposes.
Don Wallis, Respondent's publisher, testified that he
decided how much each employee would receive as a
Christmas bonus in 1966 and in 1967. He gave bonuses
each year on the basis of some token amount to each
employee with less than I year's service. These bonuses
were, in each instance, less than a full week's pay for the
recipient. Each employee who had been with Respondent
I year or longer received in 1966 and again in 1967 a sum
equal to his hourly rate of pay times the number of hours
in his normal workweek. Each claimant was working for
Respondent prior to Christmas 1964. Therefore, each had
more than 1 year's service by Christmas 1966. Each
claimant, with the exception of August Mead," worked a
40-hour week prior to the strike. Therefore, but for the
fact that they had not yet been reinstated by Respondent,
each claimant would have received in 1966 and again in
1967 bonuses computed by the formula used by the
General Counsel. Consequently, a Christmas bonus is
included in the gross backpay figure for the fourth
quarters of 1966 and 1967 for each claimant in Appendix
A. For each claimant except Mead the figure is that which
the General Counsel used in the backpay specification.
Appendix A contains a breakdown by quarters of the
backpay I find to be due each of the claimants.
III. THE INSURANCE ISSUE
Prior to the strike Ashby, both Dowells, Juett, Mrs.
Kerr, Lorenz, and Storie participated in Respondent's
group insurance plan. The plan was a contributory one.
When the strike began the employees arranged for
comparable insurance coverage through Local 10. Local
10 paid the premiums and billed the employees. In some
cases the claimants have not yet reimbursed Local 10 for
premiums paid on their behalf during the backpay period.
The backpay specification claims as a part of the gross
backpay due each of these seven claimants the difference
between the amount he had previously contributed under
Respondent's plan and the amount which Local 10 had to
spend each month to buy similar coverage.
Respondent contends that none of these sums should be
included in gross backpay because the General Counsel
failed to prove that the insurance obtained through Local
10 was "comparable" to that obtained through
Respondent. However, the specification alleges such
comparability. The general rule with respect to backpay
proceedings is that the burden of disproving the
"See section V, below
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
allegations of the specification is upon the respondent.
Mastro Plastics Corporation, 136 NLRB 1342, enfd. as
modified 354 F.2d 170 (C.A. 2), and 145 NLRB 1710.
Here, since Respondent made no effort to meet that
burden, I find that the insurance obtained through Local
10 did give the claimants coverage comparable to the
insurance obtained under Respondent's plan and that,
therefore, the difference in premium which the claimants
were required to pay to obtain it through Local 10 is
properly included in the gross backpay due them.
Respondent also contends that insurance premiums
should be disallowed in those months for which the
claimant has not reimbursed Local 10. It points out that
the claimants have given Local 10 no promissory notes for
these amounts and argues that the passage of time since
the sums were paid by Local 10 on their behalf proves
that they are not indebted to Local 10, thus these amounts
do not represent out-of-pocket expenditures by the
claimants. I find no merit to this argument. Like the basic
situation with respect to strike benefits discussed above,
the record is clear that insurance payments for which
Local 10 has not yet been reimbursed were not intended
by Local 10 to be a gift to the claimants. In the event that
this proceeding results in reimbursement of Local 10
generally as discussed above, any balance on Local 10's
books due from claimants because of insurance premiums
will be wiped out.
Records of Local 10 which were introduced show that
Walter Dowell paid only $9.12 a month through Local 10,
not the $20.36 alleged in the specification. Since $9.12 a
month is less than the $2.55 a week he was paying under
Respondent's plan, I have eliminated credits for insurance
premiums for Walter Dowell in Appendix A.
IV. THE RUDOLPH JUETT ISSUE
A. Credibility
Within a few weeks after the beginning of the strike in
April 1965, Respondent converted its operation from a
hot-type letterpress operation to a cold-type offset press
operation. This fact caused Trial Examiner Scharnikow to
include in his Decision a provision that Respondent
provide on-the-job training of not less than 8 weeks'
duration for any striker reinstated not to his former job
but to one substantially equivalent to it. Trial Examiner
Scharnikow also found a unit of Respondent's production
and mailroom employees appropriate. Since all 13 of the
claimants involved in this stage of these proceedings were
"production" employees, i.e., performed duties in either or
both of what are usually referred to on more highly
departmentalized newspapers as the composing room and
the pressroom, and since all of their prestrike jobs, with
the exception of proofreading'24 ceased to exist when
Respondent went to offset printing, all, perforce, were
reinstated to substantially equivalent jobs when
Respondent complied with the court's decree. This caused
a problem only in the case of Rudolph Juett.=s
"An offset press is, of course , similar to a letterpress so that operation
of the press once a plate has been prepared is not much different now from
what it was before the strike It is , however , a different press and some
readjustment was required when the claimants returned to work
"I permitted the General Counsel to introduce much evidence about the
experiences of other reinstated strikers in adjusting to their new jobs
because of its relevancy to his theory that Respondent has never complied
with the Board ' s Order in Juett ' s case and therefore his backpay period is
still open In brief summary, that evidence shows that no issue ever arose
about whether Respondent was complying in a strict sense with the 8
There is relatively little dispute about what happened to
Juett when he reported for work on January 15, 1968, yet
what little there is, is the core of the Juett issue The
General Counsel contends that Respondent offered Juett a
mailroom job formerly held by Lester Hatchell, that the
mailroom job is not substantially equivalent to a Linotype
operator's job, and that, therefore, Respondent has never
complied with the Board's Order to reinstate Juett to his
former or substantially equivalent position. Respondent,
on the other hand, contends that it offered Juett the
mailroom job only after he indicated that he did not want
any of the other available jobs because of trouble with his
eyes.
Three eyewitnesses testified about the events of January
15, Rudolph Juett, Don Wallis, publisher of the Madison
Courier, and Alpha Aldridge, the composing room
foreman. Their versions conflict on several crucial points.
Juett testified that Wallis announced as soon as they met
that Juett was being assigned to the mailroom job and
never offered him any of the other available jobs. Wallis
and Mrs. Aldridge testified that Juett's assignment to the
mailroom job came only after he had objected to all the
other available jobs on the ground that his eyes were not
what they used to be and had toured the plant to inspect
the new operations. Juett testified that Wallis typed the
mailroom assignment on his timecard the moment they
first entered Wallis' office. Wallis and Mrs. Aldridge
testified that the timecard originally prepared for Juett
was torn up and a new one noting the mailroom
assignment prepared only after Juett toured the plant.
Juett testified that he specifically asked for the
proofreader's job. Wallis and Mrs. Aldridge denied that
he did. On such crucial details the conflict cannot be
reconciled Therefore, in making the findings of fact which
weeks' on - the-job training program part of the Board's Order As each
striker returned to work Respondent assigned him to the "job" of a strike
replacement by giving him the hours and duties of that specific
replacement as they appeared on a current work schedule Management
officials, supervisors , and the strike replacements instructed the returning
strikers in their new duties and in operation of the new equipment to an
extent sufficient to get them started . Thanks to their own native skills, to
the training they were foresighted enough to get in offset printing while on
strike, and to the instructions they did receive on their return, no claimant
was unable to make the shift from his old job to his new one
Consequently, reinstatement went smoothly in all cases except Juett's
Much later, Respondent agreed to the Union's demand that it put the
employees on a 5-day workweek In order to cover all the necessary
operations 6 days a week , Respondent asked each employee in October
1968 to acquire a second skill if he did not already have one. All
Respondent 's employees except Rudolph Juett and David Ashby were able
to cope with the new requirement without difficulty. Juett and Ashby got
the justowriter as their second jobs. The justowriter is the machine which is
used to produce the text of the Madison Courier in the cold-type process
In this respect it is analogous to a Linotype in the hot-type process
However, it has a typewriter keyboard , not a Linotype keyboard. Juett and
Ashby were ultimately discharged when they failed to take typing lessons
in order to learn how to operate the justowriter , Ashby 2 days before the
hearing before me opened and Juett while the hearing was on Some of the
evidence I received in connection with the Juett issue related to the events
leading up to Juett's ultimate discharge . Since , as set forth in detail below,
I have concluded that Respondent did offer Juett reinstatement to a
substantially equivalent job on January 15, 1968, Respondent complied
with the Board 's Order at that time and , therefore, was not required to
give him 8 weeks' on -the-job training on the justowriter in late 1968 or
early 1969. Consequently , I find it unnecessary to set forth in detail the
facts with respect to that controversy or to make a finding that
Respondent did or did not comply with the Board 's Order at that time
insofar as Juett is concerned . Since no such issue is before me in this
backpay proceeding , I express no opinion on whether Juett or Ashby was
discriminated against within the meaning of the Act when he was
discharged
THE MADISON COURIER, INC.
follow immediately I have discredited Juett wherever his
testimony is in conflict with the other witnesses. I have
relied especially on the testimony of Mrs. Aldridge, who
impressed me as a frank, intelligent, and truthful witness.
From Juett's demeanor I gathered the impression of a
man who had unwittingly made a tactical error at a
crucial point in the battle between the Union and
Respondent, realized his mistake when his
"representatives"" pointed out that he had jeopardized his
rights under the Board's Order, and sought thereafter to
shade his story so as to recoup his loss to the point where
he believed it himself. In addition, in reaching these
conclusions I have relied on the following:
1. Juett admitted that he asked Wallis almost
immediately on the morning of January 15 not to put him
on a machine with a keyboard because, after 41 years of
operating a Linotype keyboard, his eyes were not up to
that kind of work. Yet the entire thrust of Juett's
testimony is that Wallis told him his eyes were not good
enough for any composing room work, including
proofreading, rather than that the state of his eyesight was
a matter of concern to Juett. I find the attitude
inconsistent with the admission.
2. All the events subsequent to January 15 occurred
because the Union took the initiative to try to get Juett
back to work, even on the mailroom job.
3. W. Stewart Sellers, president of Local 10, also
testified about the conference on February 2, 1968,
preceding Juett's brief fling at the mailroom job. There is
no dispute about what went on at this meeting . It is clear
that the Union urged Juett to take the mailroom job.
4. A list prepared by Mrs. Aldridge in preparation for
return of the strikers shows Juett assigned to the
headliner. It does not contain Allen Arbuckle's name or
any reference to the mailroom job. I take this as
corroboration of Wallis' testimony that he had Arbuckle,
not Juett, in mind for the mailroom job if Arbuckle
showed up on the morning of January 15.
5. Finally, and most significantly, Virginia Kerr, Paula
Feltner, and Dale Giltner also returned to work on
January 15, 1968. The timecards prepared in anticipation
of their return bear, in addition to their names, the
notation "Replaces" or "In place of followed by the
name of a production employee. On Paula Feltner's card
the typed name of the employee she was expected to
replace has been scratched out and a different one
penciled in, indicating to me that, at the last moment,
Respondent changed its mind as to the job to which she
would be reinstated. Juett's timecard which is in evidence
is marked "Mailing department Varela." I find the
difference between the cards of Kerr, Feltner, and Giltner
on the one hand and the card of Juett on the other
significant. It corroborates the testimony of Wallis that
the card he originally prepared in anticipation of Juett's
return did not indicate that he would be assigned to the
mailroom job, that he had not thought of assigning Juett
to the mailroom job prior to January 15, and that the
card to which the General Counsel attaches so much
significance was only prepared after Juett had toured the
plant and indicated his unhappiness with all the
production jobs available.
"Juett's way of referring to officials of the Union.
B. Facts
791
By the time the decision of the Circuit Court of
Appeals for the District of Columbia in late December
1967 forced Respondent to accept the fact that it had to
take back its strikers, the strikers' former jobs under the
hot-type process no longer existed. Consequently, which
job each striker would get upon his return was a major
problem Respondent had to cope with in carrying out the
provision of the Board's Order and the court's decree that
it reinstate strikers, upon application,2' to substantially
equivalent positions under the cold-type process
Respondent undertook to comply under the careful
guidance of its attorneys A letter dated January 4, 1968,
was sent to each of the claimants except August Mead"
and to Allen Arbuckle instructing each to report for work
on either January 8, 15, or 22. Arbuckle and Juett were
among the five employees instructed to report for work on
January 15 In the meantime, Mrs. Aldridge, in
consultation with Wallis, worked out on January 2 a
tentative schedule in which strikers were paired with strike
replacements. It reflected her thinking as to how
Respondent would comply with the Board's Order to
dismiss strike replacements, if necessary, to make room
for returning strikers. Trial Examiner Scharnikow's
Decision had spelled out an appropriate bargaining unit
consisting of Respondent's "production employees and
mailing room employees." Mrs. Aldridge's tentative
schedule contemplated that each striker would assume the
schedule of hours and the specific duties of a person then
doing production work for Respondent. For example, this
document indicated that Henry Lorenz would replace
"Schwartz" on advertising makeup. When he returned to
work on January 8, 1968, however, Lorenz was put to
work on the headliner =' The only mailroom job within the
bargaining unit which was available under the Board's
Order was the one formerly held by Lester Hatchell. Mrs.
Aldridge's schedule did not refer to this job at all, nor did
it list Arbuckle. It showed Juett assigned to a headliner
job.
The mailroom job consists of making plates used to
address copies of the Madison Courier sent to mail
subscribers, bundling papers for nonmail distribution in
and around Madison, addressing and otherwise preparing
for the mails those copies which go to mail subscribers,
and taking mail distribution copies to the post office once
a day. The latter duty requires the holder of the mailroom
job to drive a small van to the post office, carrying out
other errands on the way. The trip takes about 40
minutes. Finally, the holder of the mailroom job has some
janitorial duties. He must sweep out a part of the plant
and clean one men's room.
In preparation for the return of strikers on January 15
Wallis typed the name of each on a timecard along with
the name of the strike replacement he was replacing.
When Respondent wrote to Arbuckle on January 4, 1968,
it did not expect him to reply. Therefore, Mrs. Aldridge
did not include him in her tentative schedule of returning
strikers. However, Arbuckle did respond to the letter in
some way sufficient to cause Wallis to think that he would
show up on the morning of January 15. Arbuckle failed to
"There is no indication in the record that any striker ever applied for
reinstatement at any time other than July 1966
'"See section V, below.
'•The headliner is the machine used in Respondent 's cold-type process to
reproduce copy in type faces larger than the text of the newspaper,
generally headlines It is analgous to the Ludlow in the hot-type process
792 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
appear.
Juett reported to Respondent's plant as instructed
around 8 a.m that morning. He met Wallis in Wallis'
office. Wallis asked him to wait a moment until Mrs.
Aldridge could join them because Wallis wanted a witness
present. Juett said that he had one request to make in
connection with his reinstatement. He said that after 41
years on the Linotype his eyes were no longer good
enough to work on a machine of that type. He asked
Wallis not to assign him to a job which would put a
similar strain on his eyes. Wallis asked Juett not to put
him in a difficult situation by asking for special favors
when Respondent was under a duty to negotiate with the
Union about such matters. Wallis pointed out that Juett
had never seen Respondent's new machines and suggested
that he go into the shop and take a look at what Lorenz
was doing on the headliner. Mrs. Aldridge had joined the
two men in Wallis' office during this conversation and
accompanied them into the composing room.
Juett watched Lorenz operate the headliner. He told
Wallis he thought that kind of work would be too hard on
his eyes He and Wallis then made a brief tour of the
plant looking at the various operations in the new process.
Mrs. Aldridge left them for part of this period but
rejoined them before they returned to Wallis' office. The
theme of their discussion as they looked at the various
jobs was Juett's eyes. At no time did Juett say that he
thought he could do any of the new jobs. At one point,
when they were discussing the amount of light in one of
the work areas, Juett told Wallis that he had told his
doctor light bothered his eyes. Finally, Wallis mentioned
that Arbuckle had not shown up that morning and,
therefore, the mailroom job which Respondent had had in
mind for him was still open Juett replied that he
understood Arbuckle was going to California instead of
returning to work for Respondent. He asked Wallis if the
mailroom job was not Hatchell's old job. Wallis replied
that it was. At some point in this discussion, Wallis, Juett,
and Mrs. Aldridge returned to Wallis' office. Wallis typed
"Mailing Department Varela Rudolph Juett" on
another timecard, tearing up and discarding the card he
had originally prepared for Juett as well as Arbuckle's.
Juett, Wallis, and Mrs. Aldridge discussed the mailroom
job for some time during which Juett indicated that he
objected to its truck driving and janitorial aspects. Finally,
Juett said that he wanted to talk to his wife before
deciding whether to accept the mailroom job and left.
On January 27, 1968, Juett sent Respondent a letter
prepared for him by the Union in which he again applied
for reinstatement to "my former or substantially
equivalent employment." The Respondent replied on
January 30, instructing him to report for work on
February 2 on the mailroom job. When Juett showed up
around 2 p.m. on February 2 he was accompanied by W.
Stewart Sellers and Nicholas Bachert, president and
secretary-treasurer, respectively, of Local 10 Wallis first
refused to talk to the three men until he checked with his
attorney. Consequently they waited in the Union's nearby
strike headquarters until Wallis sent for them. The
discussion which followed ranged over the whole situation
with respect to Juett's reinstatement as it existed at that
moment. They discussed the availability of composing
room jobs. They talked about what Juett had, and had
not, said about his eyes on January 15. There was wide
disagreement between Juett and Wallis on this point. They
discussed the mailroom job in great detail, including the
fact that Juett had no Indiana Chauffeur' s license, a
prerequisite for driving a motor vehicle as an employee of
the owner, and the fact that the duties of the job included
all the duties performed by Hatchell prior to the strike.
Sellers protested that Juett, with his many years of service
with Respondent, should not have to do Hatchell's janitor
work. Wallis insisted that reinstatement of Juett to the
mailroom job would comply with the Board's Order.
Finally, Sellers and Bachert advised Juett to accept the
mailroom job under protest while they checked with
Region 25's compliance officer on whether there had been
compliance with the Board's Order Consequently, Juett
went to work sometime after 2 p.m. on February 2, 1968
Juett spent the balance of the afternoon trying to learn
how to operate the graphotype machine, used for making
address plates, and bundling papers as they came from the
press. About 7:30 p.m. he went home without permission
and without having swept up. The next morning, a
Saturday, he reported for work at 10 a.m.70 and started in
again on the graphotype machine. He accompanied
another employee on a trip to the post office in the van.
Sometime around noon Wallis and Juett got into an
argument. Wallis asked Juett why he had left early the
night before without finishing his work. Juett replied that
no one had been around to show him what to do, he had
not been given a schedule" showing when he was supposed
to eat, he had gotten hungry, and he had gone home to
eat. Wallis told Juett that the mailroom did not operate
on a fixed schedule and asked Golden Skeldon, another
mailroom employee, to confirm that fact. Skeldon told
Juett that they grabbed a sandwich whenever they got a
chance. Juett objected vigorously to working without a
schedule which gave him a definite time to eat. The
argument expanded into another discussion of all the
aspects of the mailroom job which Juett objected to,
including the truck driving and Juett's lack of a
chauffeur's license as well as the janitor work. Finally,
Juett clocked out and went home.
Another exchange of correspondence followed.
Respondent wrote to Juett on February 5, 1968, setting
forth the situation as it then existed from its point of view
and asking Juett to let it know promptly whether he
accepted "reinstatement " Juett replied on February 8,
again "offering myself for reinstatement " Respondent
wrote to Juett again on February 10, instructing him to
come to work at 2 p.m. on February 12 and setting forth
a precise schedule which included a 1-hour meal break
each day. Juett met with Wallis again in Wallis' office on
the afternoon of February 12 Mrs. Aldridge and James
Nichols, Local 10's chapel chairman at the Madison
Courier, were also present. There was another extended
discussion about the mailroom job and Juett's objections
to it. Juett did not go to work.
On May 10, 1968, Respondent wrote to Juett to offer
him a job as a proofreader. Juett accepted. He began
working for Respondent as a new employee on May 14.
He was still employed as a proofreader when the hearing
before me opened on February 3, 1969, although the
controversy alluded to in footnote 25, above, was at that
time nearing its climax
"The mailroom job, at that time, ran from 2 to 9 p . m Monday through
Friday and 10 a m. to 5 p.m on Saturday, with the privilege of leaving
early if the work was all done This, of course, is another point weighing
against Juett's credibility and in favor of Wallis' and Mrs. Aldridge's If
Wallis had intended from the beginning to assign Juett to the mailroom
job, Respondent would not have ordered him to report at 8 a m. on
Monday, January 15, 1968
"Composing room employees work according to a schedule which gives
them an hour off for lunch Prior to the strike , Juett had been in the habit
of going home for a hot meal
THE MADISON COURIER, INC. 793
C. Conclusions
The specification computes backpay for each claimant
except Juett into but not beyond the first quarter of 1968.
As to Juett, the computation runs to the end of the third
quarter of 1968. In addition, the specification alleges with
respect to Juett, unlike the other 12 claimants, that the
backpay period is still open. In my computation of the
backpay due Juett set forth in Appendix A, I have
eliminated the second and third quarters of 1968 and have
modified the figures for the first quarter set forth in the
specification to end Juett's backpay period on January 15,
1968. 1 have done so because I find that Juett was offered
reinstatement by Respondent to a position substantially
equivalent to his prestrike job as a Linotype operator on
that day.
I am persuaded principally by the fact that, insofar as
this record reveals, Juett was the only one of the
claimants as to whom there was any dispute over
compliance with the reinstatement portion of the Board's
Order. Reinstatement was effected under particularly
difficult circumstances. In an ordinary case, Juett would
have returned to the Linotype machine he had left more
than 2 1/2 years before simply by sitting down as the
Linotype operator who had replaced him during a long
and bitter strike got up. Reinstatement came as the
culmination of a long and costly series of legal setbacks
for Respondent. I conclude that Respondent failed to
respond to the strikers' application to return to work in
July 1966 because it believed sincerely in the correctness
of its own position and gambled that it could upset Trial
Examiner Scharnikow's adverse decision at subsequent
stages of the case. Its hope of victory was dashed twice
more when the Board and then the court ruled against it.
Under these circumstances a continued recalcitrance on
the part of Respondent would not have been surprising
although somewhat less than praiseworthy. Respondent
could have taken advantage of the fact that all strikers
had to be reinstated to substantially equivalent positions
to avenge itself on them by complying with the letter of
the Board's Order while rejecting its spirit. Nothing of the
sort happened. Instead, 12 of the 13 strikers returned to
work in jobs which varied, in greater or lesser degree from
case to case, from the jobs they held when the strike
began. No disputes arose, either as to the fairness of the
assignments Respondent made in fitting old skills into new
jobs or as to the amount of on-the-job training which
Respondent gave in carrying out the switch under the
express terms of the Board 's Order. It is obvious,
therefore, that Respondent acted in good faith in dealing
with all 12 of these individuals. I find no basis in the
record for concluding that Respondent was motivated any
differently in its dealings with Juett.3 1 Therefore, I find
that it acted in good faith in its dealings with him.
It does not follow from this that Respondent treated
Juett with kindness in a spirit of forgiveness. When the
crucial confrontation between Wallis and Juett took place
on January 15, the reinstatement process was not yet
complete. Respondent might have acceded to Juett's
request for a favor by giving him , for example, a
proofreader's job, making whatever adjustments were
necessary in the plan under which it was operating by
shuffling the assignments of other returning strikers. To
do so Respondent would have had to let the relationship
with Juett built up over his more than 40 years of service
bridge the gulf created by 2 1/2 years of labor strife. If
this had happened it might have avoided the issue
presented here and earned unstinting praise, although the
effect on another striker's situation would remain
speculative. That it did not happen is also understandable.
The only important point is that Respondent was not
required to treat Juett with kindness, only with fairness.
This it did.
I am convinced that the true explanation of what
happened to Juett is as follows: Wallis had in mind for
Juett either a headliner or a makeup job. Juett forestalled
his smooth reinstatement to one of those jobs when he
asked for special treatment because of the condition of his
eyes, a condition he attributed to his long service with
Respondent. Juett asked for a favor before Wallis could
even tell him what Wallis had in mind for him because
Juett feared that his assignment was going to be to the
justowriter, a job he could not fill because he could not
operate a typewriter keyboard and had no intention of
learning. Wallis reacted as he did because he was aware
that he was acting under his attorney's instructions in a
ticklish legal situation and did not want to take a chance
of making some egregious legal blunder. The shift from a
composing room job to the mailroom job then took place
step by step as Juett continued to press his request for
special treatment against Wallis' determination to comply
with the Board's Order without making any mistakes. In
the interim which occurred between January 15 and
Juett's next contact with Respondent, reinstatement of the
strikers had, for all practical purposes, been completed
and Respondent's room to maneuver on Juett had
disappeared. Consequently, all subsequent discussions
between Respondent and Juett or the Union acting on
Juett's behalf centered around the mailroom job, the only
unit job still open, as the dispute grew and positions
hardened.
In summary, then, and on the basis of the record as a
whole, I have computed Juett's backpay as indicated
above because I find that his failure to be reinstated to a
production job along with the other 12 claimants was his
own fault and not Respondent's. The same result would
obtain regardless of what transpired between Juett and
Wallis on January 15 if I were to find that the mailroom
job was substantially equivalent to Juett's old job of
Linotype operator. The General Counsel argues that it is
not. Respondent argues that it is. If I were to find that
Wallis had offered Juett only reinstatement to the
mailroom job on January 15, thus reaching this issue, I
would agree with Respondent. The key fact, once again, is
that, under the peculiar facts of this case, all strikers had
to be offered reinstatement to substantially equivalent
rather than former jobs. Under those circumstances, an
offer of reinstatement to any job within the unit found
appropriate by Trial Examiner Scharnikow amounted, at
law, to an offer of reinstatement to a substantially
equivalent position even though the duties of the
mailroom job bear little, if any, similarity, to the duties of
any of the production jobs.
V. THE AUGUST MEAD ISSUE
"The General Counsel would find Respondent' s motive for treating Juett
differently from the others in Trial Examiner Scharnikow ' s Decision
Scharnikow credited Juett over Wallis I observed nothing about the
relationship between Wallis and Juett which would support the General
Counsel's theory that this caused Wallis to seek revenge against Juett.
Like the hassles which arose during the hearing in
connection with the bonus issue over the distinction
between a Christmas bonus and a Christmas gift, and in
connection with the use of the word striker, this issue
794 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
involves a semantics dispute which is best resolved at the
outset. As the term finally came to be understood by all
participants during the hearing, "part time" does not
mean working for Respondent less than 40 hours a week.
It means, rather, working for Respondent fairly regularly
but on a day-to-day basis; i.e., each day's work depending
on being advised expressly to report for work on that day
because Respondent has a need for the employee's services
on that particular day. On the basis of the record made
before me as well as Trial Examiner Scharnikow's
Decision, I gather that August Mead was Respondent's
only "part time" employee in this sense of the word. In
any event, he is the only employee whose "part time"
status in this sense of the word poses a problem in the
backpay phase of this case. I have attempted to use the
word "part time" only in this limited sense herein.
Trial Examiner Scharnikow applied the term "part
time" to Mead in its more usual sense. Specifically, with
respect to Mead, he found:
there were 13 other persons on the Respondent's
and Vevay corporation's" payrolls who worked only
part time in production or mailing room tasks, either as
regular part-time employees or as "dual function"
employees who spent part of their time at other work
for the Respondent or the Vevay corporation in or
outside the Respondent's plant... .
(1) . . . August Meade [sic] worked part of [his] time
at Vevay and part of [his] time in the Madison plant. .
Meade was a part-time employee on both the
Respondent's and the Vevay corporation's payroll.
* * * * *
Almost all of the people on the Respondent's payroll
were paid simply at straight and overtime hourly rates
for the hours they actually worked. This included
Meade (for his part-time work on the Courier). . .
In addition to performing these duties, Coleman also
told Publisher Wallis when he needed the part-time help
of August Meade, who operated the flatbed press at
Vevay and who also worked on the Respondent's
payroll as a compositor on Courier . . Coleman
would notify Meade to come to work as he was needed.
3. August Meade' As an hourly-paid, part-time
worker for substantial periods as a compositor on the
Respondent's payroll in the printing of the Courier,
Meade had such an apparent, substantial community of
interest with the Respondent's production and mailing
room employees as to require his inclusion in the
appropriate bargaining unit... .
The General Counsel's position with respect to the
backpay due Mead is predicated on the work he
performed in the Madison plant and not on the work he
performed in Vevay. Although the point is somewhat
obscure, I gather from the testimony before me that most
of Mead's work in Respondent's plant in Madison was on
the Vevay papers which are printed in Madison although
edited in Vevay. If this is a disagreement with Trial
Examiner Scharnikow's finding that Mead was paid on
"See Trial Examiner Scharnikow's Decision for a full discussion of the
relationship between Respondent and the Vevay corporations. In brief,
both are owned by the same family, although ownership of the latter has
changed slightly since Scharnikow' s hearing.
Respondent's payroll" "for his part-time work on the
Courier," the distinction is unimportant, for the General
Counsel concedes that, if Mead is entitled to any backpay
at all, he is entitled only because of his status as an
employee of Respondent and not because of his status as
an employee of the Vevay corporation prior to the strike.
Mead first went to work for Respondent in November
1964. Because of the Christmas rush he worked full time
for Respondent for a month or two. Thereafter, he
generally worked part of the week in Madison and
another part in Vevay. In Vevay he worked on job
printing. Usually he worked Monday, Tuesday, and
Wednesday in Madison .31 However, he had no such
regular schedule. Whether he worked on any particular
Monday, Tuesday, or Wednesday depended on whether he
was instructed by John Coleman, a Vevay employee
excluded from the unit by Trial Examiner Scharnikow, to
report for work.
Mead joined the strike and, along with the other 12
claimants, applied for reinstatement in July 1966. When
Respondent began to think about reinstating strikers
following the court's decision in late December 1967, it
did not include Mead in its initial planning. Consequently,
Mead is not listed on Alpha Aldridge's tentative schedule
of January 2, 1968, he was not sent a letter dated January
4, 1968, and he was not scheduled for reinstatement on
either January 8, 15, or 22 as were the other 12 claimants.
Respondent initially handled the Mead situation
differently from the other claimants because of its position
that his part-time status prior to the strike made his case
different from the others. This, essentially, is the same
issue raised before me with respect to Mead's backpay.
However, Respondent apparently thought better of this
position insofar as it applied to Mead's right to
reinstatement for it soon sent him a letter offering him
reinstatement. He returned to work for Respondent on
February 5, 1968, as a full-time proofreader. There is no
controversy over Mead's reinstatement, only over his right
to backpay.
Between July 27, 1966, and February 5, 1968, the
backpay period applicable to Mead, Respondent employed
no one as a part-time employee in the sense in which the
word is here used. Several employees worked less than 40
hours a week. In fact, this was a fairly common situation
for Respondent's full-time strike replacements, each
employee's workweek consisting of the number of hours,
usually between 30 and 40, Respondent needed his
services.16 However, work was performed in the Madison
plant throughout this period in connection with the Vevay
papers which was substantially equivalent to Mead's
prestrike job as a compositor under the hot-type process.
Similarly, proofs were read in the Madison plant
throughout this period, the work to which Mead was
assigned when he was reinstated.
Respondent contends that Mead is entitled to no
backpay because it employed no one as a part-time
employee between July 27, 1966, and February 5, 1968.
Therefore, it says, since Mead was only a part-timer prior
"An exhibit introduced by the General Counsel at the hearing before me
indicates that Mead was paid only by checks of the Vevay corporation just
prior to the strike . This fact has no significance in the face of Trial
Examiner Scharnikow 's finding that Mead was an employee of Respondent
when the strike began. Scharnikow ' s finding is the law of the case, and I
am bound by it.
"The Vevay papers are weeklys which go to press each Wednesday
night.
..When the claimants were first reinstated they took over these schedules
on a man -for-man replacement and only later went on 40 hours a week
THE MADISON COURIER, INC.
to the strike, it obviously would not have used him during
the backpay period, and he lost nothing by not being
reinstated. I find no merit in Respondent's argument. The
significant fact is not that Respondent employed no
part-time workers during the backpay period. The
significant fact is that, by the clear import of Trial
Examiner Scharnikow's finding that Mead was an
employee of Respondent and included in the Courier unit
and the Board's Order based thereon, Mead stands in
precisely the same situation as all the other claimants.
Respondent has, in effect, conceded the point by
reinstating him along with the other claimants. Since there
was work performed in Respondent's plant during the
backpay period which was performed by Mead prior to
the strike, Mead was entitled to reinstatement to the
position he formerly held when he applied. Therefore, he
now stands in no different position from any other
claimant as to whether backpay is due him because
Respondent gambled and lost when it elected not to
comply with Trial Examiner Scharnikow's Recommended
Order.
The position Mead formerly held was one that gave
him at most only 24 hours work a week in Madison. The
General Counsel has computed the backpay due him on
the basis of a 40-hour week. There is no justification for
determining how much is due Mead in that manner. The
fact that he may have worked a full week for Respondent
and the Vevay corporation combined before the strike and
did not continue to work in Vevay during the strike
because he felt, as he put it, that he "couldn't very well
work there and be on strike at the same time" is
irrelevant. The Board's Order is directed only to
Respondent. At no time has the Vevay corporation been a
party to this proceeding. Mead is entitled to be made
whole only for the money he lost as a result of not being
employed by Respondent during the backpay period.
Therefore, I have recomputed the backpay due Mead on
the basis of a 24-hour workweek. I have likewise reduced
the amount of the Christmas bonus credited to him in the
fourth quarters of 1966 and 1967 from 40 hours' pay to
24. The results of my computations by quarters are
contained in Appendix A."
"In addition to the changes in the backpay due August Mead, Walter
Dowell , and Rudolph Juett which I have described here and in sections III
and IV , Appendix A differs from the backpay specification in several other
Vi. THE AMOUNT OF BACKPAY DUE
795
I find that backpay in the following amounts is due
each of the claimants under the terms of the Board's
Order and the court's decree in this proceeding:
David R Ashby $7,726.18
Bernard A . Corbin $7,035.61
Albert Lee Dowell $1 ,313.70
Walter W. Dowell $932.50
Paula B. Feltner $4,617.10
Louis D. Giltner $5,468.41
Rudolph D . Juett $8,365.35
Virginia F. Kerr $7,815.64
Henry Lorenz, Jr. $8,418.66
August Mead $4,355.50
Judith A. Moore $4 ,735.06
James H. Nichols $6,112.36
Micky D. Stone $6 ,923.76
In addition, since the Order herein provides for interest
at 6 percent per annum on the above sums, to be
computed in the manner specified in Isis Plumbing &
Heating Co., 138 NLRB 716, such interest will continue
to accrue until the payment of all backpay due. Finally,
payment of all sums due shall be less any taxes required
to be withheld by Respondent under Federal or State law
respects An amendment to the specification issued on January 17, 1969,
changed the adjusted average hours figure for the week ended February 23,
1967, from 48 55 to 43.33 without , however, recomputing the backpay due
each claimant in the first quarter of 1967. In addition , Respondent and the
General Counsel disagree as to the number of hours worked in the week
ended November 23, 1967, by the employees used as a base for computing
gross backpay Respondent arrives at a total of 586 90, the General
Counsel , 597 90. In studying original payroll records, I have discovered an
error in the calculations of each . Consequently, I have used a figure of
587.90 hours worked by 15 employees , or an adjusted average hours figure
of 39 .19. Adding this to the adjusted average hours figures for the other 12
weeks in the fourth quarter of 1967 results in a quarterly total of 541.77
Consequently , I have recomputed the backpay due each claimant in these
two quarters using a total of 553 89 instead of 559 1 1 in the first quarter
and 541 77 instead of 542 44 in the fourth Also, I have deducted $24 in
interim earnings from Virginia Kerr in the first quarter of 1968 and
disallowed $7 50 in expenses credited to Henry Lorenz in the third and
fourth quarters of 1966 Both are based on concessions by the General
Counsel during the hearing and in his brief
APPENDIX A
Name Quarter
Gross x
Backpay
Interim Y
Earnings
Net
Backpay Total
David R. Ashby 1966-III 1,046.40 1,046.40
IV 1,566.25 1,566.25
1967-I 1,423.58 1,423.58
11 1,406.30 380.01 1,026.29
III 1,421.75 380.02 1,041.73
IV 1,493.28 1,493.28
1968-I 128.65 128.65
$7,726.18
Bernard A. Corbin 1966-111 971 .52 45.00 926.52
IV 1,454.08 286 .34 1,167.74 n
' Includes, where applicable , Christmas bonus and amount claimant was
required to spend for insurance premiums due to suspension of
Respondent's contributions thereto during the backpay period.
'Amounts earned elsewhere less, where applicable, expenses incidental
thereto.
796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Name Quarter
Gross
Backpay
Interim
Earnings
Net
Backpay Total
1967-1 1,318.26 307.50 1,010.76
11 1,301.81 182.50 1,119.31
III 1,316.52 1,316.52
IV 1,384.61 1,384.61
1968-I 110.15 110.15
Albert Lee Dowell 1966-III 1,046.40 1,046.40
IV 1,566.26 1,375.10 191.15
1967-1 1,423.58 1,580.55
II 1,406.30 1,330.15 76.15
III 1,421.75 1,799.65
IV 1,493.28 1,622.46
1968-I 331.03 841.16
$1,313.70
Walter W. Dowell 1966-III 1,020.50 138.50 882.00
IV 1,527.40 1,476.90 50.50
1967-I 1,384.73 1,691.85
II 1,367.45 1,765.05
III 1,382.90 1,924.85
IV 1,454.43 1,788.35
1968-I 318.08 986.04
$ 932.50
Paula B. Feltner 1966- III 551 .07 551.07
IV 824 .80 824.80
1967-I 764.83 764.83
11 765.77 765.77
III 774.42 774.42
IV 814 .48 814.48
1968-I 121.73 121.73
$4 617.10
Louis D. Giltner 1966- III 881 .71 323.40 558.31
IV 1,319.67 301.23 1,018.44
1967-I 1,196.40 340.03 856.37
11 1,181.48 155.16 1,026.32
III 1,194.75 282.75 912.08
IV 1,256.62 291.43 965.19
1968-I 187.81 56.I1 131.70
$5,468.41
Rudolph D. Juett 1966-Ill 1,021.82 1,021.82
IV 1,529.38 1,529.38
1967-I 1,386.71 1,386.71
II 1,369.43 1,369.43
III 1,384.88 1,384.88
IV 1,455.75 1,455.75
1968-I 217.38 217.38
$8,365.35
THE MADISON COURIER, INC. 797
Name Quarter
Gross
Backpay
Interim
Earnings
Net
Backpay Total
Virginia F. Kerr 1966-Ill 1,046.40 171.25 875.15
IV 1,566.25 199.25 1,367.00
1967-1 1,423.58 151.25 1,272.33
if 1,406.30 154.50 1,251.80
III 1,421.75 1,421.75
IV 1,493.28 72.00 1,421.28
1968-I 230.33 24.00 206.33
$7,815.64
Henry Lorenz , Jr. 1966- III 1,046.40 25.00 1,021.40
IV 1,566 . 25 42.50 1 ,523.75
1967-I 1,423 . 58 1,423.58
11 1,406.30 1 , 406.30
III 1,421.75 1,421.75
IV 1,493.28 1 ,493.28
1968-1 128 .60 128.60
$8,418.66
August Mead 1966-III 560.00 16.50 543.50
IV 840.00 108.00 732.00
1967-1 780.00 125.00 655.00
II 780.00 69.00 711.00
111 780.00 74.00 706.00
IV 840.00 116.00 724.00
1968-1 300.00 16.00 284.00
$4,355.50
Judith A. Moore 1966-III 571.48 571.48
IV 855.34 855.34
1967-I 775.45 775.45
11 765.77 765.77
III 774.42 774.42
IV 814.48 814.48
1968-I 178.12 178.12
$4,735.06
James H. Nichols 1966-III 1,020.50 22.50 998.00
IV 1,527.40 270.50 1,256.90
1967-I 1,384.73 233.00 1,151.73
II 1,367.45 259.50 1,107.95
III 1,382.90 702.75 680.15
IV 1,454.43 652.50 801.93
1968-1 115.70 115.70
$6,112.36
Micky D. Stone 1966-III 1,046.40 267.48 778.92
IV 1,566.25 242.80 1,323.45
1967-I 1,423.58 360.00 1,063.58
11 1,406.30 390.00 1,016.30
III 1,421.75 390.00 1,031.75
IV 1,493. 28 90.00 1,403.28
1968-1 331 .03 24.55 306.48
6,923.76