Vita Foods

National Labor Relations Board - Board Decisions

Sep 27, 1965

154 N.L.R.B. 1716 (N.L.R.B. 1965)

1716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Drivers Local Union 657, or any other labor organization, by discriminating
against our employees in regard to their hire or tenure of employment or any of
their working conditions.
WE WILL NOT question our employees about their union membership, sym-
pathy, or activities in a manner violative of Section 8 (a) (1) of the Act.
WE WILL NOT assign to our employees more arduous or less desirable work
because of their union membership, sympathy, or activities.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right of self-organization, to form, join, or
assist unions, to bargain collectively through representatives of their own choos-
ing, to engage in concerted activities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from such activities.
WE WILL offer each of the following named employees full reinstatement to
their former or substantially equivalent positions, or to the position for which
they applied, without prejudice to any seniority or rights and privileges enjoyed,
and make them whole for any loss of pay they may have suffered by reason of
the discrimination against them.
Herlinda T. Alaniz Maria Cuestas Maria Prieto
Guadalupe R. Alegria Elvira Garza Francisca V. Rendon
Juana B. Cipriano Rebecca Gonzales Antonia C. Rodriquez
Gumecinda Cordova Ofelia Marroquin Eligia C. Vargas
Maria M. Cortez Ambrosia G. Montalva
WE WILL offer Heriberto T. Alanis employment in our warehouse department,
without prejudice to any seniority or other rights and privileges he would have
enjoyed, and make him whole for any loss of pay suffered as a result of the dis-
crimination against him.
WE WILL place Juan Garcia on a preferential hiring list for any position which
may become available in our warehouse office substantially equivalent to that
which he held prior to his transfer from the warehouse office.
Our employees are free to become, remain, or refrain from becoming, members of
the above-named or any other labor organizations.
ELSA CANNING COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
NoTE.-We will notify the appropriate above employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon application
in accordance with the Selective Service Act and the Universal Military Training and
Service Act of 1948, as amended, after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its provi-
sions, they may communicate directly with the Board's Regional Office, 6617 Federal
Office Building, 515 Rusk Avenue, Houston, Texas, Telephone No. Capitol 8-0611,
Extension 4271.
Thomas J. Aycock, Jr., an Individual , d/b/a Vita Foods and
Truckdrivers, Warehousemen & Helpers Local Union No. 512,
International Brotherhood of Teamsters , Chauffeurs, Ware-
housemen and Helpers of America . Case No. 12-CA-2001.
September 07, 1965
SUPPLEMENTAL DECISION AND ORDER
On February 28, 1962, the National Labor Relations Board issued a
Decision and Order in the above-entitled proceeding,' finding, inter
1135 NLRB 1357.
154 NLRB No. 113.
VITA FOODS 1717
alia. that the Respondent had discriminated against employee John
Mathis in violation of Section 8(a) (1), (3), and (4) of the National
Labor Relations Act, as amended, and directing that the Respondent
offer said employee immediate and full reinstatement to his former
capping machine position and make him whole for any loss of pay
suffered by reason of the Respondent's discrimination against him.
Thereafter, the Board's Order was enforced by the United States
Court of Appeals for the Fifth Circuit.2
On June 9, 1964, the Board's Regional Director for Region 12 issued
and served on the parties a Backpay Specification and Notice of Hear-
ing alleging that the total amount of backpay due Mathis from the
Respondent, excluding interest, was $2,848.54. On June 23 and 26, the
Respondent filed an answer and an amended answer. Pursuant to
notice, a hearing was held on August 10 and 11, 1964, before Trial
Examiner James A. Shaw for the purpose of determining the amount
of backpay due the discriminatee for the period from the date of the
discrimination against him to March 17, 1964, the date on which the
General Counsel concedes that Mathis was duly offered reinstatement.
On June 2, 1965, the Trial Examiner issued his attached Supple-
mental Decision finding the amount of backpay due Mathis to be $2.50.
Thereafter, the General Counsel filed exceptions to the Trial Exam-
iner's Supplemental Decision and a, supporting brief, and the Respond-
ent filed cross-exceptions and an answering brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Brown and Zagoria].
The Board has reviewed the rulings made by the Trial Examiner at
the backpay hearing and finds that no prejudicial error was com-
mitted. The rulings are hereby affirmed.3 The Board has considered
the entire record in this case, including the Trial Examiner's Supple-
mental Decision and the exceptions, the cross-exceptions, and the
briefs, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner only to the extent consistent herewith.
As described in the Board's original Decision and Order in this case,
Mathis was discriminatorily transferred on April 28, 1961, from his
job as a capping machine operator to that of a cook's helper, in viola-
tion of Section 8(a) (1), (3), and (4) of the Act. On June 8, 1961,
Chancellor, the plant superintendent, offered Mathis a job as a truck-
driver, and Mathis, who disliked the cook's helper job, accepted the
offer.
2 N L.R.B. v. Thomas J. Aycock, Jr, d/b/a Vita Foods , 328 F 2d 314.
3In his Supplemental Decision , the Trial Examiner denied the General Counsel's motion
for summary judgment , which the Trial Examiner , apparently inadvertently , referred to
as a motion to dismiss the complaint.
1718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On September 22, 1961, after Mathis had voted in the election con-
ducted by the Board among the Respondent's employees, he was
directed by Chancellor to deliver food products to the warehouses of
two customers. Mathis pointed out to Chancellor that he would be
unable to reach the first customer, referred to in the record as Setzer,
before that firm's closing hour, but Chancellor, according to Mathis,
said "they would probably take it." Setzer was closed when Mathis
arrived, and he was not able to deliver this order. As a consequence,
Mathis had to unload the Setzer merchandise, which had been
arranged on the truck for unloading first, in order to reach and unload
the second order, and then had to reload the Setzer order and take it
back to the Respondent. When Mathis returned to the plant, the
Setzer order, packed in rather insubstantial cases, was in some dis-
array. The testimony is conflicting as to what occurred when Mathis
got back to the plant, but the Trial Examiner found, on the basis of
the credited testimony, that Aycock, the owner-president of the Re-
spondent, "bawled out" Mathis "in no uncertain language."
On the following Monday, September 25, Aycock for the first time
asked to see Mathis' driver's license. His license, however, had expired
prior to the time that he started to work for the Respondent as a truck-
driver. Mathis made various excuses to Aycock for not showing the
license, and finally said that he had lost it and needed to obtain a dupli-
cate. He was granted permission to leave his work to obtain a dupli-
cate, and left the plant; he did not return, except to pick up his pay-
check a few days later, until he was reinstated by the Respondent, as
noted above, on March 17, 1964.
In the Trial Examiner's view, this proceeding raises the following
issues :
1. Did the acceptance by Mathis of a truckdriver's job on June 8,
1961, constitute a reinstatement as contemplated by the Board and
court decisions?
2. Did the circumstances surrounding the termination of Mathis'
employment as a truckdriver on or about September 25, 1961, consti-
tute grounds for tolling any or all future backpay thereafter?
As to issue 1, the Trial Examiner found, and we agree, that the
acceptance by Mathis of the truckdriving job did not constitute rein-
statement within the meaning of the Board and court orders. The
Respondent argues, on the basis of the facts that Mathis accepted the
transfer to a truckdriving job without objection and that his wages
as a truckdriver were about the same as the wages lie had received as
a capping machine operator, that this transfer satisfied the Respond-
ent's obligation to Mathis. It is clear from the entire record, however,
that Mathis accepted the truckdriving job, even though not qualified
for it in view of his lack of a license, because he considered it a far
more desirable job than that of a cook's helper. There is no indication
VITA FOODS 1719
that he would have accepted the truckdriving job if he had been offered
the choice of reinstatement to his former job of capping machine
operator. He was entitled to such an offer, the job was available, and
the Respondent has furnished no explanation of why it failed to offer
him reinstatement to his former job. We find, therefore, that the
Respondent' s offer to Mathis of a job which constituted less than full
reinstatement did not satisfy the obligation to Mathis arising out of
the Respondent's original discrimination against him 4
As to issue 2, the Trial Examiner found that, on September 25,
Mathis "voluntarily quit his job as a truckdriver and left the Respond-
ent's services for personal reasons and not at the demand or request of
the Respondent subtly or otherwise." At another point in his Supple-
mental Decision the Trial Examiner found that "Mathis misinter-
preted what Aycock said to him in their conversations on Monday,
September 25, 1961, and that Aycock did not discharge Mathis at the
time in question," but did not indicate whether or not Mathis may have
understood, rightly or wrongly, that he had been discharged, and the
record is not clear on this matter. [Emphasis supplied.] In any
event, the 'T'rial Examiner concluded that Mathis' conduct tolled the
Respondent's backpay liability on the basis, as set forth in the Trial
Examiner's Decision, that :
... in reaching my ultimate decision herein I have ... adopted an
equitable approach to the problems he was faced with herein, and
at all times had in mind the ancient equitable maxim, that he who
seeks equity should do equity. In other words even a person who
has been found to be a "discriminatee" under the Act has certain
obligations as a person and/or a citizen not only to society as a
whole but to the individuals who constitute it, such as the procure-
ment of a driver's license ...
We agree with the General Counsel that the Trial Examiner's conclu-
sion is unwarranted.
The basic issue herein is whether the Respondent, who violated the
Act, has adequately remedied that violation under the terms of the
Board and court order, and not, as the Trial Examiner viewed it, a
question of balancing the conduct of Mathis in driving a truck without
a license against the Respondent's conduct in violation of the Act.5
It should be noted, moreover, that there is no contention, and the Trial
Examiner has not found, that Mathis engaged in conduct so heinous
as to render him unemployable.
4 Minnesota Manufacturing Company, Inc., 132 NLRB 1398, 1413. See also M. J.
McCarthy Motor Sales Co., 147 NLRB 605.
s As the Supreme Court stated in Phelps Dodge Corp. v. N.L.R.B , 313 U.S. 177, 188,
"Attainment of a great national policy . . . must not be confined within narrow cannons
for equitable relief deemed suitable by chancellors in ordinary private controversies."
1720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As we have found above, the Respondent did not meet its obligation
to Mathis by transferring him to a truckdriving job. It is clear, and
we find, that Mathis' termination from the truckdriving job occurred
as one of the consequences of the Respondent's original and unrem-
edied discrimination against him. We find further that there is no
showing that Mathis, who obtained other employment promptly after
he left the Respondent's employ, wilfully incurred any loss of pay.'
In these circumstances, we find that, whether Mathis' termination is
viewed as a voluntary quit, as the Trial Examiner found, or as a con-
structive discharge, as the General Counsel contends, the Respondent's
backpay liability was not tolled thereby, but continued to accrue until
the Respondent remedied the original violation by offering Mathis
reinstatement on March 17, 1964, to the specific job to which he was
entitled.? Accordingly, as the backpay specification is otherwise undis-
puted, we find that the net backpay due Mathis is $2,848.54, as set forth
in the backpay specification, for the period ending March 17, 1964,
with interest at the rate of 6 percent per annum, consistent with the
principles enunciated in Isis Plumbing dl Heating Co., 138 NLRB 716.
ORDER
On the basis of the foregoing and the entire record in this case, the
National Labor Relations Board hereby orders that the Respondent,
Thomas J. Aycock, Jr., an Individual, d/b/a Vita Foods, Jackson-
ville, Florida, his officers, agents, successors, and assigns, shall pay to
John Mathis the sum of $2,848.54 as backpay for the period from
April 28, 1961, to March 17, 1964, with interest thereon at the rate of 6
percent per annum.
61n Miami Coca-Cola Bottling Company, 151 NLRB 1701 , the Board found that, al-
though a discriminatee unjustifiably left his interim job and became unemployable for
2 months, this reduced the backpay liability rather than terminated it. See also Mastro
Plastics Corpoiation and French-American Reeds Manufacturing Co, Inc., 136 NLRB
1342, 1359.
7 Barberton Plastics Products , Inc., 146 NLRB 393, 396; United States Air Condition-
ing Corporation, 141 NLRB 1278; Brotherhood of Painters , Decorators & Paperhangers
of America, Carpet, Linoleum & Resilient Tile Layers , Local No. 419 , AFL (Lauren
Burt, Inc. of Colorado ), 114 NLRB 295, 299.
TRIAL EXAMINER'S SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
This supplemental proceeding was heard before Trial Examiner James A Shaw in
Jacksonville, Florida, on August 10 and 11, 1964, on a backpay specification of the
General Counsel and the answer as amended of Thomas J. Aycock, Jr., an individual,
d/b/a Vita Foods, herein called the Respondent. The purpose of the proceeding was
to determine the amount of backpay due and owing John Mathis, the named dis-
criminatee under an Order of the Board in the above-captioned matter. At the hear-
ing, the parties appeared as noted above, were afforded a full opportunity to examine
and cross-examine witnesses, to introduce evidence, to present oral argument, and to
file briefs presenting their respective contentions.
Upon consideration of the entire record in this supplemental proceeding, and the
Board's Order in the case at hand, issued February 28, 1962, in which it adopted the
findings and conclusions of Trial Examiner Bruce Hunt, issued on November 13,
VITA FOODS 1721
1961, in which he found that the Respondent herein had engaged in conduct violative
of Section 8(a)(3) and (4) of the Act, of which I take judicial notice, and make
the following:
FINDINGS AND CONCLUSIONS
A. The prior unfair labor practice proceeding
As I see it no proper understanding of the issues we are concerned with herein
could be had without a resume of the incidents that led up to the issuance of the
Board's Order on February 28, 1962, and what transpired thereafter up to and includ-
ing the Regional Director's backpay specification and notice of hearing, dated June 9,
1964, which is the predicate for the issues we aie primarily concerned with herein.
As indicated above, the issues we are concerned with herein concern the tenure of
employment of one John Mathis, with the Respondent over the years, and in particu-
lar, since April 1961, at which time he was employed as a capping machine operator,
and had been so employed for quite some time. On April 27, 1961, he along with
another employee, Steve Barrier, appeared under subpena at a representation hearing
in Case No. 12-RC-1200, thereafter on April 28, 1961, he was assigned to "mole
arduous duties as cook's helper." 1 It was this action on the part of the Respondent
that led to the filing of the original charges herein by the Union on May 11, 1961.
Thereafter the Regional Director for Region 12 issued the complaint herein, upon
which, as indicated above, a hearing was held on July 26, 27, and 28, 1961, before
Trial Examiner Bruce Hunt.
On June 8, 1961, Mathis was transferred from his job in the kitchen as a cook's
helper to the warehouse where he was assigned to a truckdriver's job, which he held
until on or about September 25, 1961, at which time he left the Respondent's services
under circumstances that will be discussed and disposed of herein below.
On November 13, 1961, Trial Examiner Hunt issued his Decision in the instant case
in which he found inter alga as to the allegation in the complaint concerning John
Mathis:
2. By discriminating against an employee because he attended a representation
hearing before the Board, by discouraging membership in a labor organization
through discrimination in employment, and by interfering with, restraining, and
coercing employees in the exercise of their rights under the Act, the Respondent
has engaged in and is engaging in unfair labor practices affecting commerce
within the meaning of Section 8(a)(4), (3), and (1) and Section 2(6) and (7).
In the section of his Decision entitled "The Remedy" Trial Examiner Hunt used
certain language which was the predicate for my ruling at the hearing herein in
which he denied the General Counsel's objections to the admission in evidence of
any testimony surrounding the transfer of Mathis to a truckdrivei's job in the ware-
house on June 8, 1961, and his motions to strike any and all testimony that con-
cerned his tenure of employment as such on the grounds that this issue had been
fully litigated at the original hearing in the instant case, considered and disposed of
by Trial Examiner Hunt, and the Board which later adopted his findings and con-
clusions, and consequently was ies judicata insofar as the issues in the case at hand
are concerned. As indicated above I permitted limited interrogation of the wit-
nesses at the hearing in this regard, for reasons which will be apparent below in the
2italicized portion of the section entitled "The Remedy."
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices,
I shall recommend that it cease and desist therefrom and tnat it take certain
affirmative action designed to effectuate the policies of the Act. I have found
that Mathis was transferred to the job of Cook's helper, that about 2 months
later he was transferred to a job as a truckdriver, that only the first transfer
was invalid, that his rate of pay was not changed, and that, insofar as appears,
he had not sustained a loss in earnings. Thus, there may be no need for a
recommendation that Mathis be made whole. Moreover, the record indicates
that Mathis, as a truckdriver, may have received an increase in wages by now
and, therefore, he may not desire reinstatement in the job of capping machine
operator. Nevertheless, because I do not know whether Mathis (1) sustained a
1 See infra regarding Mathis ' reassignment to another job on June 8, 1861.
s See infra for further discussion in this regard.
1722 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
loss in earnings after the hearing and (2) prefers to continue as a truckdriver,
I shall recommend the usual reinstatement and backpay order. Specifically, I
shall recommend that the Respondent offer Mathis immediate and full rein-
statement to the job of capping machine operator, or a substantially equivalent
position . (The Chase National Bank of the City of New York, San Juan,
Puerto Rico, Branch, 65 NLRB 827), without prejudice to his seniority or other
rights or privileges, and that the Respondent make him whole for any loss of
pay he may have suffered as a result of the discrimination against him, by pay-
ment to him of a sum of money equal to that which he normally would have
earned from the date of the discrimination, April 28, 1961, to the date of a
proper offer of reinstatement , less his net earnings (Crossett Lumber Company,
8 NLRB 440, 497-498) during said period, the payment to be computed on a
quarterly basis in the manner established in N.L.R.B v Seven-Up Bottling Com-
pany, Inc, 344 U.S. 344 I shall recommend also that the Respondent preserve
and, upon request, make available to the Board or its agents, for examination
and copying, all payroll records, social security payment records, timecards,
personnel records and reports, and all other records necessary to analyze the
amount of backpay and the right to reinstatement under the terms of these
recommendations. [Emphasis supplied ]
Since the foregoing emphasized portions of the above excerpt from Trial Exam-
iner Hunt's Decision indicated to me that there was some doubt as to whether the
question of ". . . substantially equivalent" employment had been fully litigated at
the original hearing herein, I honestly felt that in such ciicumstances the Respondent
was entitled to explore the issue, at least to the extent that it did at the hearing we
are concerned with herein, and it was for these reasons that I permitted counsel for
the Respondent to engage in the interrogation of certain witnesses in this regard.3
On February 28, 1962, the Board issued its Order in the instant case, in which it
adopted the findings, conclusions, and recommendations of Trial Examiner Hunt,
in toto, insofar as the issues herein aie concerned .4 Thereafter on February 28,
1964, its Order was enforced by the court (328 F. 2d 314 (C.A. 5) ). In its decree
the couit said zntei alia ". . . that the said older of the National Labor Relations
Board in said proceeding be enforced and that Respondent Thomas J Aycock, Jr., an
individual, d/b/a Vita Foods, its officers, agents, successors and assigns abide by
and perform the directives of the Board in said order contained."
Thereafter on March 17, 1964, Mathis was "reinstated" by accepting a sealing
job with the Respondent. Suffice it to say at this stage of my Decision herein that
he was so employed by the Respondent at the time of the hearing herein.
It was in the light of all of the foregoing that the Regional Director for Region 12
issued his "Backpay Specification and Notice of Hearing" on June 9, 1964, with
which we are concerned herein Since the issues raised thereby are well phrased
and couched in plain and understandable language I feel that it would be helpful
to all concerned herein to insert herein the following excerpt therefrom. Conse-
quently it follows below:
BACKPAY SPECIFICATION AND NOTICE OF HEARING
The National Labor Relations Board having on February 28, 1962, issued
its Decision and Order directing Thomas J. Aycock, Jr , an individual, d/b/a
Vita Foods, hereinafter called the Respondent, to offer reinstatement to and
make whole John Mathis for his losses resulting from the Respondent's unfair
labor practices in violation of Sections 8(a)(4), (3) and (1) of the Act; the
United States Court of Appeals for the Fifth Circuit having on March 24, 1964,
entered its Decree enforcing the Order of the Board; and a controversy having
arisen over the length of the backpay period and hence the amount of the back-
pay due John Mathis, the discruninatee; now .
The Regional Director of the National Labor Relations Board for the
Twelfth Region, pursuant to authority duly conferred upon him by the Board,
hereby issues this Backpay Specification and alleges the following.
1 The period for computing backpay due John Mathis runs from April 28,
1961, when Mathis was discriminatorily transferred to a less desirable job, to
March 17, 1964, when Mathis accepted Respondent's offer of reinstatement.
3 An examination of the record herein will show that there was considerable argument
on this issue at the hearing herein. It was for this reason that I have devoted a portion
of my Decision to this particular issue.
See 135 NLRB 1357.
VITA FOODS 1723
2. A reasonable measure or formula for computing John Mathis' gross back-
pay, by quarter, is to apply the actual gross earnings of Monroe Johnson, who
succeeded John Mathis as operator of the capping machine, for the following
reasons:
(a) The assumption that John Mathis would have earned at least as much
as his replacement, Monroe Johnson, on the job as capping machine operator,
during the backpay period is not unreasonable when Appendices "C" and "B,"
the respective earnings records, reflects that for the quarter ending March 31,
1961, Mathis earned $672.53 (617.25 hours), while Johnson earned $608.28
(575.75 hours).
(b) During the quarter ending June 30, 1961, Mathis, as capper until April 28,
as cook helper until late in the quarter, and then as truck driver, earned $708.03
(645.25 hours), while Johnson earned $641.89 (601.25 hours).
3. Application of this measure or formula results with reasonable accuracy in
the construction of quarterly gross backpay, in the manner described in N.L R B.
v. Seven-Up Bottling Co., Inc., 344 U.S. 344, for the entire backpay period, as
detailed in Appendix A.
4. Subcontracting quarterly interim earnings , as conceded from quarterly
backpay, as alleged and specified, results with reasonable accuracy in calculating
net backpay due John Mathis, as detailed in Appendix A.
5. Summarizing the facts and calculations specified above, and in Appendices
A, B, and C, the obligation of Respondent to make whole John Mathis under
the Board Order as enforced by the Court will be discharged by payment to
John Mathis the sum of $2,848.54, exclusive of interest, minus the tax withhold-
ing required by Federal and State laws. [Emphasis supplied.]
In due course the Respondent filed its Answer to Backpay Specification on or about
June 22. 1964 Shortly thereafter it filed a Motion to Amend Answer, in which it
requested that the date June 8, 1961, in the fist paragraph of its answer be changed
to September 28, 1961, which was referred to me for ruling on July 1, 1964. Since
the motion concerns an obvious typographical error when considered in the light of
the record herein as a whole it is hereby formally approved by me and the answer
corrected as requested in said motion. The answer as amended is likewise set forth
herein below for reasons which will be apparent below. Suffice it to say at this
point that the parties entered into certain stipulations at the hearing that refer to the
pleadings herein. It was for this reason that he inserts the answer herein below and
also because he felt that it would be helpful to all concerned herein to have it before
them at this stage of his Decision.
I
That Respondent admits that the period for computing backpay due John
Mathis runs from April 28, 1961, and further admits that Mathis was reinstated
on March 17, 1964. However, the Respondent states that Mathis was promoted
aftei April 28, 1961, and thereafter voluntarily quit the employment of the
Respondent during the week ending June 8 , 1961, and, therefore, the period
following [September 28], 1961, should be excluded from any consideration in
this cause.
II
The Respondent admits that it is reasonable to apply the actual gross earnings
of Monroe Johnson, who succeeded Mathis as operator of the capping machine,
as a reasonable measure or formula for computing any money which may be
due to John Mathis.
III
That the Respondent admits that the application of this formula or measure
would result with reasonable accuracy in the construction of quarterly gross
backpay.
IV
That by subtracting quarterly interim earnings, as conceded, from quarterly
gross backpay, results with reasonable accuracy in determining any net backpay
due John Mathis.
V
Respondent shows that Mathis was in fact transferred from a capping machine
job to a job as cook 's helper on April 28, 1961;
5 See supra for excerpts from the General Counsel's Backpay Specification and Notice
of Hearing.
1724 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
That Mathis, subsequent to the week ending June 8, 1961 , was transferred to
the position of truck driver, which position he voluntarily quit during the week
ending September 28, 1961;
That for the period of the alleged discrimination from April 28, 1961, to the
week ending June 8, 1961, the backpay,due to Mathis would amount to the sum
of $2.50 , as will appear in Respondent 's Appendix A;
That from the period of the week ending June 15, 1961 through September 28,
1961 , Mathis earned , as a truck driver, the gross salary of $854.07, as set out
in Respondent's Appendix B, against the earnings of $820 .08 of Monroe John-
son, who the Regional Director uses for comparison purposes. A comparison
of these earnings will be set out in Respondent 's Appendix B.
While Mathis ' actual dollar figures as shown for the third quarter, as a truck
driver, are slightly less than Johnson 's earnings , the payroll record reflects that
for the week ending July 27 , 1961 , Johnson was absent from the job and worked
eighteen and one-half ( 181/2 ) hours even though a full week could have been
earned, and that during the week ending on September 28, 1961, Mathis only
worked ten and one-half ( 101/z ) hours when there was full weekly employment
for him, had he desired to work.
The Respondent , as hereinbefore stated , takes the position that after Mathis
voluntarily quit his employment the week ending September 28, 1961, that he
therefore is not entitled to any claim for interim earnings after that date.
Respondent states that there was full time work available to Mathis at the time
he voluntarily quit, which Mathis could have performed or as will more par-
ticularly appear from Respondent 's Appendix C which represent the earnings of
employee Griffin, who replaced Mathis when Mathis voluntarily quit.
As indicated above both the General Counsel's Backpay Specification and the
Respondent 's answer , as amended , refer to the Board 's Backpay Specification for-
mula, as set forth in Section 102.53 of the Board's Rules and Regulations, Series 8,
as amended. The parties at the hearing herein were in agreement as regards the
Board 's formula, and in addition the Respondent 's answer so indicates . Even so, I
feel that it too should be inserted herein for the convenience of all concerned herein
consequently it is set forth herein below:
The applicable backpay sections and subsections of the Rules and Regulations
of the Board , Series 8, as amended, read as follows-
Sec. 102.53 Contents of backpay specification and of notice of hearing without
specification.
(a) Contents of backpay specification .-Where the specification procedure is
used, the specification shall specifically and in detail show, for each employee,
the backpay periods broken down by calendar quarters , the specific figures and
basis of computation as to gross backpay and interim earnings , the expenses for
each quarter, the net backpay due, and any other pertinent information.
Sec. 102.54 Answer to specification; no requirement for answer to notice of
hearing issued without backpay specification.
(a) Filing and service of answer to specification .-The respondent shall,
within 15 days from the service of the specification , if any, file an answer
thereto; an original and four copies shall be filed with the regional director
issuing the specification, and a copy thereof shall immediately be served on any
other respondent jointly liable.
(b) Contents of the answer to specification .-The answer to the specification
shall be in writing, the original being signed and sworn to by the respondent or
by a duly authorized agent with appropriate power of attorney affixed, and shall
contain the post office address of the respondent . The respondent shall specifi-
cally admit , deny, or explain each and every allegation of the specification,
unless the respondent is without knowledge , in which case the respondent shall
so state, such statement operating as a denial . Denials shall fairly meet the
substance of the allegations of the specification denied. When a respondent
intends to deny only a part of an allegation, the respondent shall specify so
much of it as is true and shall deny only the remainder . As to all matters within
the knowledge of the respondent , including but not limited to the various factors
entering into the computation of gross backpay , a general denial shall not suffice.
As to such matters , if the respondent disputes either the accuracy of the figures
in the specification or the premises on which they are based , he shall specifically
state the basis for his disagreement , setting forth in detail his position as to the
applicable premises and furnishing the appropriate supporting figures.
VITA FOODS 1725
(c) Effect of failure to answer or to plead specifically and in detail to the
specification.-If the respondent fails to file any answer to the specification
within the time prescribed by this section, the Board may, either with or without
taking evidence in support of the allegations of the specification and without
notice to the respondent, find the specification to be true and enter such order
as may be appropriate. If the respondent files an answer to the specification in
the manner required by paragraph (b) of this section, and the failure so to deny
is not adequately explained, such allegation shall be deemed to be admitted to
be true, and may be so found by the Board without the taking of evidence sup-
porting such allegation , and the respondent shall be precluded from introducing
any evidence controverting said allegation.
At the close of the hearing herein counsel for the parties herein waived oral
argument and, at my request, filed well considered briefs in support of their respec-
tive positions, which I have carefully considered in disposing of the issues herein.6
After the close of the hearing counsel for the General Counsel filed with me on
September 2, 1964, a Motion to Correct the Record. Thereafter, on or about
September 12, 1964, the Respondent by its counsel filed with me Objections to
Motion to Correct the Record, in which he objected to certain of the corrections
set forth by the General Counsel in his motion to correct the record and con-
sented to other positions thereof 7 After careful consideration of the foregoing, I
hereby overrule the objections of the Respondent to certain portions of the General
Counsel's Motion to Correct the Record, and accept his motion in its entirety, and
the record herein is corrected in accordance thereto 8
At the onset of the hearing herein it was obvious to me that the pertinent issues
herein where beclouded by an atmosphere of confusion run rampant, which is
clearly evidenced by a mere cursory glance at the record herein. In such circum-
stances I suggested to counsel for the parties that they discuss their differences off
the record and endeavor to clear the atmosphere, so to speak, and reach an agree-
8 At this point I desire to point out that the delay in my disposition of the case at hand
has been due to Causes beyond my control, illness, and the disposition of cases assigned
me prior to the instant case.
7 At this point I identify and admit in evidence the above referred to documents as Trial
Examiner's Exhibits, No. 1, the General Counsel's "Motion to Correct the Record" and
No. 2, the Respondent's "Objections to Motion to Correct the Record," as exhibits in the
formal file.
8In view of all of the foregoing the record herein is corrected in accordance with the
General Counsel's "Motion to Correct the Record," which is set forth sn toto herein below:
MOTION TO CORRECT THE RECORD
Now comes Counsel for the General Counsel and moves that certain errors in the
transcript in the supplemental hearing in the above entitled case be corrected in the
following particulars:
Page 27, line 20, change "job at all times" to "job was available at all times" ;
page 28, line 6, change "respondent" to "respondent to prove" ; page 28, line 21,
change "my motion" to "the motion" , page 30, line 13, change "also an issue" to
"also was an issue" ; page 32, line 22, change "Examiner before" to "Examiner were
before" ; page 32, line 25, change (entire line) to "contest the finding of an unfair
practice act" ; page 33, line 6, change "where" to "and" ; page 37, line 25, change
"stipulated" to "still have" ; page 38, line 3, change (entire line) to "The finding as
to the merit of his taking issue" , page 38, line 4, change "issue of res judicata" to
"with res judicata" ; page 39, line 15, change "applied is not" to "applies is"; page
41, line 19, change "litigated" to "litigable" ; page 44, line 13, change "does not" to
"does"; page 44, line 14, change "issue" to "issues", page 46, line 7, change "gen-
erously" to "generally" ; page 46, line 10, change "your exception" to "the excerpt" ;
page 119, line 4, change "circumstances he is associated" to "circumstances associ-
ated" ; page 122, line 14, change "second" to "succeeded" ; page 123, line 9, change
"discriminator" to "discriminatory" , page 124, line 4, change "he" to "where they" ;
page 125, line 7, change "position without" to "position. Without" ; page 126, line
12, change "don't" to "didn't"; page 131, line 14, change "some" to "such" , page
136, line 8, change "he is correct" to "he is not correct" ; page 136, line 15, change
"he" to "was" ; page 140, line 22, change "motion is denies motions" to "mo-
tion is denied . . . evidence" ; page 152, line 9, change "lower" to "load" , page 157,
line 6, change "he got" to "you got" , page 164, line 12, change "to me . . . was not
on" to "told me . . . was on", page 190, line 6, change "in" to "at", page 199,
line 16, change "statement" to "statements".
1726 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment as regards the issues herein and arrive at a stipulation for the record in that
regard, which they did in a commendable and cooperative manner. As a result of
their efforts in this regard counsel stipulated that the issues herein were as follows: 9
Issue No. 1: "Did the acceptance by Mathis of a truck driver's job on June 8,
1961, constitute reinstatement as contemplated by the Board and
Court decision."
Issue No. 2: `Did the circumstances surrounding the termination of Mathis'
employment as a truck driver on or about September 25, 1961,
constitute grounds for tolling any or all future backpay thereafter."
After the parties had agreed upon the issues I requested counsel to state for the
record their respective positions in this regard, which they did.10
As indicated above the General Counsel's position as to issue No. I was that it
had been fully litigated at the original hearing herein and consequently was res
tudicata In support of his position at the hearing herein he relied primarily on the
language used by Trial Examiner Hunt in that portion of his Intermediate Report
entitled "The Remedy," and which has likewise been inserted heremabove 11 with
particular reference to the Board's Decision in The Chase National Bank of the
City of New York, San Juan, Puerto Rico, Bianch, 65 NLRB 827. In further sup-
port of his position in this regard the General Counsel identified and offered in
evidence at the onset of the hearing herein certain documents that were filed by
counsel for the Respondent with the Board before it issued its Decision and Order
in the instant case on February 28, 1962. Since he has well summed up his argument
before me at the hearing herein, in his brief I am convinced that it would be bene-
ficial to all concerned herein to set forth below the following excerpt therefrom.
Consequently it follows below::
On November 29, 1961, Respondent filed a motion (GC-2) averring in
pertinent part:
13. Upon receipt of the Intermediate Report, Respondent indicated
through the undersigned attorney to the Board that it would be voluntarily
willing to comply with the Order except for the reinstatement of Mathis
because Mathis had voluntarily quit on September 25, 1961. Respondent
also advised the Board that it would make Mathis whole for any loss of
pay he may have suffered from the date of the alleged discrimination until
the time he quit on September 25, 1961.
14. Mr. Woodrow Strickland, Acting Compliance Officer for the Twelfth
Region, advised the undersigned that the Regional Director could not
change the Trial Examiner's Ordei, but that he would attempt to find out
if Mathis was desirous of returning to work for Respondent, which would
obviate all problems if the answer were negative.
15. Mr. Strickland subsequently advised that Mathis was desirous of
returning to work and he had no choice but to require Respondent to
offer him reinstatement.
On December 1, 1961, General Counsel filed opposition to Respondent's
motion (GC-2), of which official notice may be taken (Enclosure 4 of the
certified record), which replies:
The Trial Examiner did not know whether Mathis preferred to continue
as truckdriver, and did not find this to be the substantial equivalent of
Mathis' job as capping machine operator, or that acceptance of the job
as truckdriver constituted a waiver to any right to reinstatement.
Respondent's allegation in its Motion that Mathis quit his employment
as truckdriver, and thereby forfeited any right [sic] to reinstatement, is a
matter for the compliance stage of this proceeding.
In its Exceptions filed on December 14, 1961 (GC-3), on page 6, the
Respondent excepts to the remedial language quoted hereinabove. In its Order,
issued on February 28, 1962, the Board, after considering the Intermediate
Report, the exceptions and briefs, and the entire record in the case, specifically
adopted with later Court approval, the Trial Examiner's recommended remedy:
Offer John Mathis immediate and full reinstatement to his job as capping
machine operator, or to a substantially equivalent position .. .
O Quoted portion setting forth the issues are from the General Counsel's brief, page 1.
w Though I have made some reference to the General Counsel's position as regards
Issue No 1 heretofore above it was for the primary purpose of presenting a picture, so to
speak, of what I was confronted with at the onset of the hearing herein.
11 See supra.
VITA FOODS 1727
At this point in his Decision in the case-at-hand I again point out to all concerned
herein that the primary reason for his overruling the objections of the General
Counsel to the admission of any and all testimony offered by the Respondent as
regards issue No. 1, was predicated on the language of Trial Examiner Hunt in that
portion of his Intermediate Report entitled "The Remedy," which has been not only
inserted hereinabove, but the language therein that I referred to was emphasized
and thereafter referred to above as the basis for my ruling in this regard.
Further evidence that issue No. 1 was not fully litigated at the original hearing
herein is found the following excerpt from the record in the case-at-hand, which con-
cerns the General Counsel's interrogation of Mathis at the hearing herein as regards
Mathis' reaction to his transfer to the truckdriver job on June 8, 1961:
Q. At that time did Mr. Chancellor offer you reinstatement to your former
position as capping machine operator?
A. No, he did not.
Q. Did Mr. Chancellor offer you a choice between the position of truck-
driver and your original position of capping machine operator?
A. No, sir, he did not.
Q. If you had been offered the choice
Mr. BOWDEN: I am going to-
Q. -between the position of capping machine operator and truckdriver at
that time, what would you have selected?
Mr. BOWDEN: I want to make an objection. This is nothing more than a
self-serving declaration. He is asking what he would have done under different
circumstances This happened three years ago. I think he can ask what was
said and what was done.
TRIAL EXAMINER: Sustained. Ask him what he did, what happened at
the time.
Mr. BRENNER: Mr. Examiner, the conversation as to what happened in
the total form is a matter of the record. It has already been put into the record
from the original transcript.
Mr. BRENNER' Mr. Examiner, the conversation as to what happened in
the total form is a matter of the record. It has already been put into the
record from the original transcript.
TRIAL EXAMINER: All right.
Mr. BRENNER The reason I am asking this question here is because he has
never been asked this question. I feel it is important for the record for Mr.
Mathis to advise as of that time if given the opportunity to make the choice
would have selected the truckdiiver or former position as capping machine
operator. [Emphasis supplied.]
Mr. BOWDEN' I object It is proper for him to indicate for the record.
That is one of the main things we can hear-we can hear respondent contend
when he took this job as a truckdriver he was totally or in effect being reinstated.
TRIAL EXAMINER: If you will put your question as of that time. I under-
stand he made the objection. The objection is three years afterwards, after
thinking it over.
Q [By Mr. BRENNER.] Let me rephrase my question. Mr. Mathis, at the
time of your conversation with Mi. Chancellor on June 8, 1961, had you been
given a choice of selecting-selection between that-selecting a job of truck-
driver or that of a capping machine operator? What would your choice have
been? [Emphasis supplied ]
Mr. BOWDEN' Same objection
TRIAL EXAMINER: I understand that he has rephrased; in order to get along
here I am going to let him answer it. You have your exception, of course. I
want to move along here.
Q. [By Mr. BRENNER.] Does the witness understand the question?
A. Yes, sir. I would have taken the capping machine job.
TRIAL EXAMINER: All right. Go on.
It is to be noted that the testimony of Mathis and the remarks of counsel at the
time he was under interrogation as set forth in the above excerpt from the record
herein clearly indicate that the issue as regards " . . substantially equivalent employ-
ment" was not ... fully litigated at the original hearing herein. In such circum-
stances I find myself on the horns of a dilemma as regards Mathis for the obvious
reason that between August 10, 1964, when he testified before me at the hearing
herein, he had been separated fiom his former job as a capping machine operator for
a period of a little over 3 years, and from his employment with the Respondent for
at least 21/2 years, which were severed under circumstances that are the predicate
1728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the second issue we are confronted with herein.12 In such circumstances I can
give little weight to his testimony that we are now concerned with as regards his
personal opinion or "feelings " as to the "equivalency" between his job as a capping
machine operator and a truckdriver at times material herein. In such circumstances
I see no point in further discussion in this regard, except to point out to all con-
cerned herein that the Board sustained and accepted Trial Examiner Hunt's findings
and comment in this regard, and in effect found that the two jobs we are concerned
with were not "substantially equal" and issued its Order accordingly, which was
later enforced in its entirety by the United States Court of Appeals for the Fifth
Circuit.
In all the circumstances discussed and described above I find that Mathis' accept-
ance of the truckdrivers' job on or about June 8, 1961, did not constitute "reinstate-
ment" as contemplated by the Board and Fifth Circuit Court of Appeals in their
decisions.
We now come to the disposition of issue No. 2, which quite frankly has caused
me grave concern for reasons that will be obvious below. Suffice it to say at this
point that he has reference to certain admissions by Mathis, the discrimmatee, at
the hearing herein and the injection of an issue that was not litigated at the hearing
herein, by the General Counsel in his brief, and the reaction of the Respondent
thereto in its reply brief 13
As indicated above in cases of this nature the burden is upon the Respondent
to support its position by a preponderance of the evidence. In other words the
Respondent has the burden of sustaining its position by a preponderance of the
evidence, considered in the light of the record as a whole, which in my considerate
opinion includes the record in the original hearing herein, the Intermediate Report
of Trial Examiner Hunt, the Board's Decision and Order, and the Decision of the
U S Court of Appeals for the Fifth Circuit approving and enforcing said order, for
purposes of clarification of certain of his findings hereinafter as regards the case
at hand.
Before we get into the evaluation of the evidence offered by the Respondent in
support of its position, I feel that it would be helpful to all concerned herein to
restate the issues we are concerned with at this stage of my decision. As I see it
the issue we are now concerned with is the amount of backpay due Mathis for his loss
of earnings as a result of the Respondent's discrimination. The Respondent con-
tends that as of the date that he reentered its services on March 17, 1964, that the
total amount due him was $2 50 under the Board's formula in cases of this nature,
and that he by his own conduct tolled any backpay liability of the Respondent on
September 28, 1964, when he quit his job as one of its truckdrivers under circum-
stances that will be thoroughly discussed and disposed of below. On the other hand
the General Counsel contends that the circumstances under which Mathis left the
Respondent's services on September 28, 1961, did not toll its liability for backpay,
and that consequently it owes Mathis $2,848.54, plus interest, for the period between
April 28, 1961, and March 17, 1964. The circumstances surrounding what trans-
pired on September 28, 1961, and other incidents concerning Mathis' relations with
the Respondent between April 28 and September 28, 1961, will be set forth and
disposed of below.
12 See supra in re the second issue.
11 1 refer to certain statements by the General Counsel in his brief as regards the fact
that the discriminatee, Mathis, was a Negro, and that this fact should be considered by
me in my disposition of the issues I am confronted with herein. The reaction of the
Respondent to the injection of this issue into the case at hand is stated in no uncertain
language in a "Reply Brief" that was filed by its counsel thereafter, concerning which I
make no comment, except to point out to all concerned herein that I sincerely regret
that the issue was thrust upon me for consideration especially in view of other contro-
versial issues that must also be considered and disposed of in my final disposition of the
case at hand In the circumstances I assure all parties concerned that I will dispose
of the issues herein as I interpret the evidence in the light of the record considered as
a whole, and "let the chips fall where e'er they may " I also assure all concerned
herein that I am no "oreconeeptionist" and reject and scorn such a philosophy and
approach to the problems we are faced with in this day and age So, in passing would
suggest that such problems he obnsidered in an atmosphere of compassion with a sense
of fairness and justice and is touch of kindness toward all concerned , as the ultimate goal
of those entrusted with resolving our problems, and in full realization, that "hatred"
solves nothing, and that "man's inhumanity to man makes countless thousands mourn"
( from "Man Was Made to Mourn" by Robert Burns).
VITA FOODS 1729
Though I have set forth hereinabove the issues and the respective positions of the
parties I feel that I should again refer to what I consider the major issue that I am
confronted with herein, which concerns Mathis' tenure of employment with the
Respondent after June 8, 1961, when he was transferred from his job in the kitchen
as a cook's helper to a truckdriver's job in the warehouse. The Respondent contends
and the record shows that there was little if any difference between the average
weekly earnings of the employee, Monroe Johnson, who replaced him on the capping
machine job, and his wages as a truckdriver, primarily because their hourly rates
were the same, $1.15 per hour, and ordinarily they worked the same number of hours
per week. As I see it, such was the situation as of September 22, 1961, and there-
after insofar as the attached wage charts, as interpreted by me, in the light of the
stipulations of the parties, and the record herein considered as a whole. With that
in mind we will now return to the essayence of the record herein.
In the case at hand it is the contention of the Respondent that the amount of
backpay due Mathis as a result of its discrimination against him on April 28, 1961,
was tolled by his own conduct on or about September 25, 1961, when he left its
services on his own initiative, and not by reason of any illegal conduct on its part.
In support of its position in this regard the Respondent called two witnesses, Thomas
J. Aycock, its president, and John L. Chancellor, its principal supervisory employee.
According to the record the most important testimony offered by the Respondent
through its witnesses Aycock and Chancellor concern two incidents that occurred on
September 18 and 22, 1961. It is what flowed from those incidents and what trans-
pired thereafter that we are primarily concerned with herein. Its principal witness
in this regard was Aycock, a summation of his testimony in this regard will be
discussed and disposed of below.
According to Aycock, Mathis was assigned to the truckdriver's job at the request
of John L. Chancellor, the plant superintendent, who told him at the time that he
. needed a truckdriver and he understood that Mr. Mathis was a truckdriver and
he told me Mr. Mathis had a chauffeurs license and could drive the truck.14 As a
result of their conversation Mathis was transferred from the kitchen, where he was
then working as a cook's helper, to the truckdriver's job on or about June 8, 1961.
According to the record he performed his duties in a satisfactory manner thereafter
until September 22, 1961, when the incident that we are primarily concerned with
herein occurred. In the interim, that is between June 8 and September 22, 1961,
Mathis spent a portion of his time working in the warehouse at various jobs. Though
the record herein is most vague in this regard I am convinced and find that he spent
at least 75 percent of his time driving the truck and the rest of it working on
different jobs in the warehouse.15 His principal duty as a truckdriver was to
deliver the Respondent's products, jellies and the like, to its customers in the Jackson-
ville area. The truck assigned to Mathis for this purpose at least at the time we are
primarily concerned with herein was a panel truck.
At this point I am convinced that I should now consider the testimony of John L.
Chancellor, the plant superintendent at all times material herein, and who, as indi-
cated above, transferred Mathis from the kitchen to the truckdriver's job. As I
see it Chancellor's testimony in this regard is of considerable importance, not
only because it stands, uncontradicted and undenied in the record herein, but also
because it goes to his ultimate determination of the issues herein, of which more
anon below.
According to Chancellor he was in need of a truckdriver on or about June 8, 1961,
for reasons which will be set forth below and so advised Aycock in this regard, and at
the time suggested that the job be given to Mathis. As I see it the circumstances
surrounding this important phase of the case is best told in the following excerpt from
his testimony:
A. I went upstairs in the department in which he was working and talked to
him and explained to him the job was open. The man that had the job had aban-
doned it, left the job. It had been two or three days, and I needed a driver. I
knew since John Mathis had worked for us for about two years at the time that
he was a truckdriver and I asked him if he wanted the job and he indicated that
he did. In fact, he took the job
Q. Well, did you have any further conversation with him?
A. About the job at that time?
Q. Yes.
14 Quotes from Aycock's credible testimony.
u The finding is predicated on the record as a whole, including the testimony of Mathis
and Chancellor.
206-446-66-vol. 154-110
1730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. Not to my knowledge. I offered it to him and he accepted.
Q. Is there any special qualifications that a man has to have to hold that job?
A. Truckdriving job we are talking about only the fact he should be qualified
in operating the truck
Q. Is there any license required?
A. Yes, the State truckdriver's license is required.
Q. At the time you talked to him about the lob, did you inquire with him if
he had the proper license?
A. I asked him if he had a truckdriver's license.
Q. What did he tell you?
A. Yes.
Q. Did you ask him to produce it at that time?
A. No, I didn't.
Q. After the conversation with Mathis about his desire for the job, when did
he actually go on the job?
A To the best of my knowledge, I believe it was that same day.
Q. So, in point of time, this conversation took place around the time he actu-
ally went on the job?
A. Yes. [Emphasis supplied.]
It is to be noted at this point that Mathis admitted at the hearing herein that he
did not have a driver's license at times material herein. Suffice it to say at this point
that he admitted on cross-examination at the hearing herein that he had not told
Chancellor the truth when he queried him in this regard.
We now come to what transpired on Friday, September 22, 1961, which I consider
the most important date that we are concerned with herein, primarily because the
Board conducted an election among the Respondent's employees, which was lost by
the Charging Union herein and secondly, it was the date that the incident occurred
that led to Mathis leaving the services of the Respondent under circumstances that
are the predicate for its position that its liability for "backpay" to Mathis was tolled
by his own conduct on the day in question
As indicated above the Board conducted an election among the Respondent's
employees on Friday, September 22, 1961, between the hours of 1 and 1:30 p.m.,
which the Union lost 13 to 10. Mathis, as an active supporter for the Union, voted
in the election and returned to his working place around 1:45 p.m. What transpired
thereafter follows below:
After the election was over Mathis returned to his working place to pick up his
truck and deliver certain orders to two of the Respondent's customers in the Jackson-
ville area, Setzers Warehouse and United Food Stores, which had been loaded on
the truck prior to the election Since what transpired at the time in question is of
considerable importance to the issues herein, I am convinced that it is best told in
the following excerpt from Mathis' testimony in this regard. Consequently it follows
below:
Q. [By Mr. BRENNER.] Mr. Mathis, do you recall the date that the election
was conducted at the premises of Vita Food?
A. Yes, sir.
Q. What was that date?
A. The 22nd of September, 1961.
Q. On or about September 22nd, did you have a conversation with a repre-
sentative of management?
A. Yes.
Q. Who was that?
A. John L. Chancellor.
Q. And what did this-what time did this take place?
A. Between the hours of 12.00 and 12 30.
Q. Who else was present other than you and Mr. Chancellor during this
conversation'?
A. No one.
Q. Do you recall the hours of the election that was held on September 22nd?
A. Between the hours of 1:00 and 1.30.
Q. And you stated that the approximate time of your conversation-the time
of your conversation with Mr. Chancellor on that day-was what time?
A. Between 12:00 and 12:30.
Q. Would you relate what that conversation was September 22nd, 1961?
A. Mr. Chancellor came up to me and told me he would lower the truck for
Setzer's Warehouse and United Food. I was to deliver after the election. I told
him if I delivered Setzer's order after the election it would probably be closed.
VITA FOODS - 1731
They would not take anything after 2:00 o'clock. He told me to take it on
that they would probably take it.
Q. Do you remember attempting to make a delivery of Setter's order and
United Food order?
A. Yes, I did.
Q. Do you know-strike that-did you participate in the loading of these
orders in the truck on that day?
A. No. I did not.
Q. Do you know who supervised the loading of the truck that day?
A. Mr. Chancellor.
Q. Approximately what time did you leave the plant to attempt to make
these deliveries?
A. About a quarter of 2:00.
Q. At the time that you left the plant-had you known the results of the
election?
A. Yes, I did.
Q. What was the ruling of the election?
A. The union had lost 10 to 13.
Q. Now, wheie did you first go after leaving Vita Food to make your first
delivery?
A. Setzer's warehouse on Commonwealth Avenue.
Q. What time did you have to arrive at Setzer's warehouse?
A. Ten minutes after 2:00.
Q. What time did you arrive?
A. The guards stopped me at the gate and told me they would not receive
anything after 2:00 o'clock.
Q. What did you then do?
A. I drove to United Foods, unloaded Setzer's order off the back end of the
truck in order to get United Food order. [Emphasis supplied.]
The importance of the above excerpt from Mathis' testimony is his account of
what transpired at Setzer's when he attempted to deliver its order. As indicated in
the above excerpt from his testimony the guards at the gate refused to let him
deliver the order. As a result he and his helper, Lonnie Mitchell, had to remove
the Setzer order from the truck so that they could deliver the order for the United
Food Store. This was due to the practice of the Respondent to place the orders in
the truck in the order that they were to be delivered to its customers, that is, those
that were to be delivered last were placed in the rear of the truckbed and those to be
delivered first were placed in next in order with the first to be delivered placed in
the rear of the truckbed. The purpose of this procedure was to simplify the delivery
of each separate order and to keep the packaged goods from getting mixed up at the
time the deliveries were made. Consequently, when the Setzer order was placed
back into the truckbed it would have a tendency to move around in the truckbed
primarily because it was not bolstered in front by the United order which had been
removed. In other words had Mathis been permitted to deliver the Setzer order
his truck would have been empty after he delivered the United order, as I interpret
the record, the Setzer order consisted for the most part of cardboard cartons or
cases of jellies packed in glass containers. The pertinency of my observation in this
regard will be apparent below. After the United order had been delivered Mathis
drove back to the plant, what transpired thereafter will be discussed and disposed
of below.
The testimony in the record as regards the incident we are now concerned with
is most baffling, primarily because of errors in the reporting thereof at the hearing
herein. Even so I will set forth below my interpretation of the testimony of Aycock,
Chancellor, and Mathis, as to their separate versions of what transpired at the time
we are now concerned with.
According to the record Mathis, and Lonnie Mitchell, his helper returned to
the plant about closing time. Shortly after he parked the truck in the driveway
and noticed that ". . . merchandise was strung all over the back of the body of the
truck," and that some of the jelly glasses were broken. Since his version of what
he saw in the truck and said to Mathis at the time is of considerable importance,
I feel that the following excerpt from his testimony in this regard would be helpful
to all concerned herein, consequently, it is set forth hereinbelow.
Q. [By Mr. BOWDEN.] Thereafter, what did you observe at the time and place?
A. I observed when he opened the doors to the truck that merchandise was
strung all over the back of the body of the truck.
1732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Did you previous to that occasion of September 22, 1961-have you ever-
been critical or said anything to Mathis about his performance?
A. I don't recall whether I said anything critical at all up until the time r
saw the merchandise up in the heap in the back of the truck.
Q. That merchandise was packed in what manner?
A. Packed in city delivery cases.
Q. Describe how they are different from other cases.
A. Thinner cases. Not padded like cases called shipping cases. We use them
-we are taking a chance on them being broken in shipment, They are called
CD cases or city delivery.
Q. Describe as well as you can the condition of the stock in that truck.
A. It was shipped out all in order but when it came back just like somebody
mishandled the truck, stopped, put on brakes fast, turned corners fast, some--
thing, because all the cases were turned over.
A. [Continued] I saw the cases all piled up in a heap, strung about the-
truck.
Q. [By Mr. BOWDEN.] Were theie any damaged cases?
A. That I can't say. It wasn't unloaded that night but the next morning.
* * * * * * *
Q. [By Mr. BOWDEN.] Did you say anything to Mathis about the condition
of the truck?
A. I asked him what happened, what went on here. When he opened up,
the doors there, words were said, I don't know the exact words.
Mr. BRENNER: Objection. He is going into a lot of other things not
responsive to the conversation.
TRIAL EXAMINER: Overruled. Go ahead.
A. [Continued] I asked him what in the world happened, did he try to tear
up all the cases? His remark to me was, "You must have thought I did it on
purpose."
Q. [By Mr. BOWDEN.] What else was said by either you or Mathis?
A. Mathis and the striker that he had on that afternoon-
Q. You are talking about helpers?
A. Yes. Truck striker walked over to the conveyer belt there when I started
bawling him out, made the remark, what in the world are you trying to do
tearing it all up and he said, "Do you think I am trying to do it on purpose?"
Q. Was anything else said to you by Mathis that day?
A. Not that day. [Emphasis supplied.]
Aycock also testified that he had no further conversation with Mathis at the time
in question as regards the incident we are now concerned with, until Monday,
September 25, 1961, under circumstances that will be discussed and disposed of
below.
According to the record Mathis' reaction to Aycock's remarks to him at the time
in question was to the effect that they were most "disturbing" primarily because he
interpreted them as accusations that he had deliberately damaged the goods that
constituted the Setzer order that was scattered all over the floor of the truck when
he returned to the plant on the date we are now concerned with. The effect of
Aycock's tirade, upon Mathis is well illustrated by the testimony in the record as
regards what transpired at the plant on Monday, September 25, 1961 16
Mathis' testimony as to what Aycock said to him on the evening of September 22,
1961, regarding the condition of the merchandise in the truck and the broken jelly
glasses was, ". . I'll be doggoned. You (you) deliberately broke my jars." He
said that, several times and I said, "What would it profit me to break his jellies?" and
that "He repeated it again after I walked over to the bathroom and I came back and
finished unloading the truck." 17 He further testified that nothing of importance
happened after he had unloaded the truck until Monday morning September 25,
1961. What transpired at that time will be thoroughly discussed and disposed of
below.
As indicated above Monday, September 25, 1961, was the date that Mathis left
the Respondent's services and sought employment elsewhere. The circumstances
under which he left are in my considered opinion of major importance for reasons
which should be obvious to all concerned hereinbelow.
1d Aycock in his testimony referred to his statements to Mathis at the time in question
as ". . bawling him out." See above excerpt from his testimony in this regard.
17 As Indicated above the quotes are from Mathis' testimony.
VITA FOODS 1733
According to the record herein, Mathis reported to work on the morning of
September 25, 1961, at his usual time, and shortly thereafter went to Chancellor, his
immediate supervisor, and talked to him about his conversation with Aycock on
Friday, September 22, 1961, and his interpretation of what he said at the time in
question. At this point I desire to point out to all concerned herein that Mathis'
testimony in this regard at the hearing herein, was taken almost 3 years after the
incident occurred, and that in the interim the decision of the Trial Examiner, the
Board, and the Fifth Circuit Court of Appeals enforcing the Board's Order in its
entirety had been made, each of which he was well aware of as well evidenced at
the hearing herein by his own testimony. This observation of mine is, of course,
applicable to the other witnesses who testified at the hearing herein, particularly
Aycock and Chancellor.
Mathis' testimony as regards his conversation with Chancellor is best told in the
following excerpt from his testimony at the hearing herein:
A. I told Mr. Chancellor that I didn't want to drive the truck any more
because I thought Mr. Aycock talked to me wrong. The following Friday he
in turn told me that you knew how it was. Both of you were tense because of
the union. I said that give him no reason to talk like that. He said, "Well, you
know he is mad because he got him in trouble about the union." He asked
me to make the delivery to Setzer's warehouse which I did.18
Q. What time did you leave that morning to make delivery to Setzer's ware-
house?
A. About 8:00 o'clock.
Q. You mentioned a moment ago that one of your reasons that you didn't
want to drive the truck any more was the fact that Mr. Aycock had to talk to
you the way he did the day before. Did you have any particular reference to
what he said to you?
A. Did I deliberately break up the jellies?
Q. Still on September 25, 1961-did you make this Setzer's delivery?
A. Yes, I did.
Q. What did you do after you made the Setzer's delivery?
A. Drove back to the plant.
Chancellor was queried, as regards the conversation referred to above in the
excerpt from Mathis' testimony, on cross-examination by counsel for the General
Counsel. His answers to the questions posed him, were not only vague but, as I
interpret the record, reluctant admissions that he ". . . could have told him he
should go talk to Mr. Aycock." is
After careful consideration I find that Mathis and Chancellor engaged in the
conversation referred to above and credits Mathis' version of what transpired and
was said at the time in question.
According to Mathis' credible testimony Chancellor requested that he deliver the
Setzer order that he had been unable to on Friday, September 22, 1961, for reasons
heretofore discussed above, which he did. Upon his return to the plant, at about
9 a.m., he was met by Aycock, who told him in substance that Chancellor had
informed him that he wished to talk to him. Mathis' version of what transpired at
the time is likewise best told in the following excerpt from his testimony in this
regard:
Q. When did that take place?
A. About 9:00 o'clock.
Q. Was anybody else present or within hearing of this conversation?
A. No. There was not.
Q. Would you relate what that conversation was?
A. Yes, I were on my way to get a drink of water and he stopped me and
told me Mr. Chancellor wanted to talk to me and he told him I did and we
went into the office and I told him I didn 't want to drive the truck any more.
18 As I see it the phrase "The following Friday" on line 3, page 157 of the record herein
is misphrased and the record is hereby corrected on lines 2 and 3, page 157, to read
11. . I thought Mr. Aycock talked to me wrong on the preceding Friday. He in turn
told me that you knew how it was, . . . "
10 See the record at page 103 in this regard. I want to point out to all concerned herein
that the above quote from Chancellor's testimony is not a "lifting out of context," so to
speak, but my interpretation of his testimony when considered in the light of the record
as a whole.
1734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I didn't think he was right in talking to me like that. So, because I broke up
his jellies and he said to me that I give him no other opinion to go by. I asked
him what profit was it to me to break up the jellies and he said I was mad
because of losing the union and that Riley also was mad because of the union.
Q. Is that name Riley, R-i-l-e-y-was also mad?
A. Also mad and was breaking up jellies, also. Then he in turn told me
that, "I don't like your attitude. Why didn't you leave the job?"
Q. [By TRIAL EXAMINER.] Who said that?
A. Mr. Aycock and he said he didn't like me going around-said I went
around with my head down all the time and didn't speak to anyone. I talked
to Miss Saunders, "Don't I speak to you every morning when I come in?"
She said, "Yes." I said, "Mr. Aycock, if you want to give me justice you
will admit I speak to you every morning."
It is to be noted at this point that the above excerpt from Mathis' testimony was
his version of what transpired and was said in his conversion with Aycock on
direct examination by counsel for the General Counsel. The sole purpose of this
observation is to point out to all concerned the state of the record herein and its
effect on me in resolving certain credibility issues that will be apparent hereinafter.
As indicated above Mathis had another conversation with Aycock on Monday,
September 25, as regards the incident that had occurred on Friday, September 22,
1961. The resolution of the testimony herein as regards what was said and later
transpired as a result of this conversation is in my opinion the most important and
perturbing issue that he has been faced with in arriving at his ultimate disposal of
the major issue that we are concerned with, which, as indicated and referred to on
several occasions hereinabove is issue no. 2, which briefly stated was whether or
not the Respondent's liability for backpay due Mathis was tolled by his leaving its
services on Monday, September 25, 1961, under the circumstances that will be dis-
cussed and disposed of below.
As pointed out above Chancellor told Aycock about his conversation with Mathis
earlier that morning and while Mathis was away from the plant delivering the Setzer
order. Due to the importance of Aycock's version of what Chancellor told him at
the time in question it will be set forth hereinbelow in an excerpt from his testimony
in this regard.20 Suffice it to say at this point it was to the effect that Chancellor
had told him that Mathis was "grieved over the fact that I said he did it on purpose,
I didn't say he did it on purpose. I said he said you must think I did it on purpose." 21
We now come to the testimony referred to above as regards Aycock's conversation
with Mathis on Monday morning, September 25, 1961. According to the record it
took place at around 9 a.m. and shortly after Mathis had returned to the plant from
his delivery of the Setzer order. Due to the importance of the incident that Aycock
queried Mathis about and the further fact that I am convinced it is best told in his
own testimony, the following excerpt therefrom is inserted hereinbelow.
A. I walked up, I said to Mathis-I said, "Mr. Chancellor wanted me to
see you because you were grieved or upset over the fact that I had accused you
of rough handling of the truck." And I said, "1 still wouldn't put it past you."
And then I said, "John," I said, "I'd like to see your driver's license. I'd like
to get the number off of it."
Q. Why did you need that?
A. I needed that because he had had an accident with the truck September 18.
Q. Would that have been four days before this Friday?
A. That is correct.
Q. [By TRIAL EXAMINER.] You mean a company truck?
A. Yes, sir. This truck.
Q. [By Mr. BOWDEN.] How did you hear of that accident?
A. A man called me up from the car-wash located near an A & P store saying
my truck backed over one of his signs and I asked him what it was worth and
he said it was $30.
Q. Did you have any idea in point of time when it was the man called you?
A. I don't remember.
Q. It would have had to be after he backed over the sign?
A. Yes, sir.
Q. Do you remember if it was the same day?
20 See infra
21 See R-70 lines 12 to 15
VITA FOODS 1735
A. I don't remember if the same day. I can't say for sure. I do believe
it was,
Q. Do you have liability insurance carrier?
A. Yes, sir.
Q. Do you have to fill out a report of the accident?
A Yes, sir.
Q. At the time you received the report about the accident do you know
which of your trucks might have done that?
A. I knew which truck it was. The only truck in town.
Q. Was that the truck driven by Mathis?
A. Yes, sir.
Aycock further testified that Mathis had not reported the accident to him, but
that ". . . He may have reported to Chancellor, not me." At this point I would like
to point out to all concerned herein that he has referred to the "accident" we are
now concerned with and has found that Mathis did report the incident to Chancellor
on the date it occurred.
According to Aycock there were two reasons for interrogating Mathis as regards
his driver's license, the first was for the purpose of filling out a report of the accident
to send to the insurance company with whom the Respondent had a liability insur-
ance policy; and the second reason was because other employees had told him that
Mathis did not have a driver's license 22
Aycock's version of what transpired and was said at the time he queried Mathis
about his driver's license is in my opinion likewise best told in the following excerpt
from his testimony:
Q. [By Mr. BOWDEN.] You asked Mathis if he had a driver's license
A. Yes
Q. What did he tell you9
A. He said he started reaching for his hip pocket to bring it out. He said,
"Mr. Aycock, I left my wallet at home and my driver's license is in my wallet."
Can I go ahead?
TRIAL EXAMINER: Go ahead.
A. [Continued] I said, "John, do you mean to say you are driving a city
truck and don't have a driver's license on you?" He said, he had left it home
that day. I said, "John, you don't drive the truck without a driver's license.
My car is out in front. You go get my car and I will drive you home and we
will pick it up" So John went out and got in the car, we left and went to
where he said he directed me to where he said he lived. I waited while John
went into the house to get his wallet and driver's license. John came out approx-
imately 15 minutes later, because it was some time before he came out of the
house and he stated he had lost his wallet, all his money and his driver's license
was in it.
Then I said, "Well, John, let's go on back to the plant." So we left and
went up, drove up back to the plant. John said very little. I told him as
far as the driver's license, "John, you can go down to Judge McKenney Davis'
office and get a duplicate."
We got back to the plant, which wasn't very far-took us probably about 10
minutes and we got out of the car and went on back. I told him, "John, you
can't drive the truck without a driver's license." So he went on over and walked
on over toward the-where he had worked. Somebody was there. The plant
was in operation at the time because it was then approximately 9:30 or close
on to 10 00 o'clock and John came back to me in less than 15 minutes or approx-
imately 15 minutes.
Q. Was there anyone present with you?
A. Yes, Mr. Chancellor was standing there and he walked up to me and
asked me and said, "Mr. Aycock, can I go and get a duplicate?" He called it a
duplicate. "Can I check off and get a duplicate?"
za Even though Aycock's testimony in this regard was hearsay, nevertheless it was a
motivating factor for his interrogating Mathis in this regard. In such circumstances hear-
say is admissible in evidence and an exception to the rules, of evidence in this regard
For a case in point where an employer relied upon hearsay in taking action against cer-
tain of his employees during a union organizational campaign see Ohio Associated Tele-
phone Company, 192 F 2d 664, 666 (C A. 6), setting aside 91 NLRB 932
1736 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I said, "Yes, John, you can." He checked out. He asked me for permission
to go get it so he checked out and left .
Then we never saw John any more until the following Friday when John
came back and I saw him back in the back. I happened to open the door. I
said, "John, where have you been?" He would not answer me. He grunted a
couple times to questions I asked him. I saw him getting his check because
he had had time he worked on Friday. Then that one hour or two hours that
he had on the clock on Monday. Our week ends on Thursday night so he had
his check and he just rushed on out to the front door of the office. One of the
other employees, yelled at him, "Hey, John." And the other employee was the
cook, and John turned aiound and said, "I can't talk to you now. I am on a job."
With that he went across the street and he got into a Foremost Dairy truck.
As indicated in the above excerpt, Mathis did not return to the plant after he
picked up his check on Friday, September 29, 1961, until on or about March 16, 1964.
Moreover there is no evidence in the record that he ever at anytime during the 2
years and 8 months after he left the Respondent's services offer any explanation as
to why he did not return to the plant after he was granted permission to take time
off to go to the courthouse and get a new driver's license.
Mathis' version of what Aycock said to him in the conversation we are now con-
cerned with has been set forth hereinabove Later on he was queried as to why
he did not return to work on the morning of September 26, 1961, after he had been
given permission to go to the courthouse and get his driver's license renewed. His
answer to this important question was as follows:
Well, Mr. Aycock told me he didn't like my attitude, wanted me to leave the
job. He didn't want me back there anymore. I was breaking up his jellies and
he didn't want me back there any more.
It is significant to note at this point that Mathis was not queried on direct examina-
tion as regards the driver's license predicament that he was in at the time in question
despite the fact the record herein at the time he was under interrogation was replete
with testimony by both Aycock and Chancellor in this regard. Even so he was
interrogated on cross-examination by counsel for the Respondent in this regard and
admitted that he did not have a valid State driver's license at all times material
herein.23
In all the circumstances discussed, described, and found above, I, after long and
careful consideration, am convinced and find that Mathis misinterpreted what Aycock
said to him in their conversations on Monday, September 25, 1961, and that Aycock
did not discharge Mathis at the time in question. The resolution of the issue as to
the credibility of the witnesses Mathis and Aycock has been most difficult, and has
caused me grave concern for reasons which should be obvious to all concerned herein.
For example, Mathis' testimony that he had a valid driver's license at all times
material herein, which he later admitted was false, but qualified his admission by
testifying to the effect that he had had a license but had let it run out, "quite a while
back." In other words he knew at the time he was telling Aycock that he had left
his license at home and similar folderol, as set forth hereinabove, that he was lying.
Such testimony by a witness would perturb any conscientious trier of the facts, either
in administrative hearings or any other tribunal. A further perturbing factor was
Mathis' testimony that he considered that he was discharged, yet on the very day
that he said it occurred and a few minutes thereafter he requested time oft from
Aycock to go to the courthouse and get a renewal of his license, which was granted
him, he went over to the timeclock and checked out. When this factor is considered
in the light of the further fact that there is no evidence in the record that he demanded
the wages due him at the time or that the Respondent offered them to him, which is
the universal custom in discharge cases, but the record does show that he went to
the plant on the next payday and was paid the wages due him, in the same mode
and manner that other employees of the Respondent were paid their wages on regular
paydays. Another factor that has likewise perturbed me is that there is no evidence
in this record that Mathis ever at any time repoited his discharge to either the
Charging Union herein or to the Board itself. This factor alone causes one to look
askance at the General Counsel's alternate contention that he was discriminately
"constructively discharged" on or about September 25, 1961. When this factor is
21 During the course of the interrogation of Mathis on cross-examination by counsel for
the Respondent, counsel for the General Counsel conceded that ". . . he didn't have a
license in the time the counsel is now inquiring."
VITA FOODS 1737
considered in the light of the fact that the alleged discharge occurred less than 2
months after the original hearing herein before Trial Examiner Hunt, on July 26,
27, and 28, 1961, another perturbing question arises and causes one to wonder and to
further ponder whether in such an atmosphere any employer, including the Respond-
ent herein as a matter of everyday commonsense engage in the tactics alluded to it
by the General Counsel at the hearing herein and in his brief. In such circumstances
I am convinced and find that Mathis' own conduct at the time in question was the
major contributing factor to the creation of the issues we are confronted with herein.
Another factor that caused me grave concern in arriving at my ultimate decision
herein as regards the issue we are now concerned with was Mathis himself. Though
he impressed me as a fundamentally honest sort of person, nevertheless he seemed
seized with an obsession toward the Respondent and in particular its president
Aycock, which is well illustrated in the record herein in his testimony as regards
what Aycock said to him when he returned to the plant on Friday afternoon,
September 22, 1961, with the Setzer order. Though I am convinced and have so
found above that Aycock "bawled him out" in no uncertain language, I am also
convinced and have also found above that Aycock did not use certain phrases
attributed to him by Mathis, such as "deliberately broke his jellies" and the like, not
only because Aycock denied making such statements, but primarily because in the
circumstances there was no necessity for him to use such language, and finally the
words used were of a nature that did not fit in, so to speak, with Aycock's manner of
speaking, which I observed during his testimony at the hearing herein on the day
before Mathis testified. I recognize the fact that my observation in this regard may
be considered trivial by others who may have occasion to peruse my decision herein,
but they are not for reasons that follow below in my comments as regards Mathis'
testimony and/or interpretation of what Aycock said to him on Monday, Sep-
tember 25, 1961.
Mathis in his testimony as to what Aycock said to him on Monday, September 25,
1961, which was to the effect that he suggested that he leave the Respondent's services
and seek employment elsewhere, is, in my considered opinion, not supported by the
record herein as a whole. My reasoning in this regard is, as pointed out and
commented upon hereinabove, predicated upon the testimony of Mathis himself
and his own conduct after he talked to Aycock, as regards procuring a new driver's
license, which has been thoroughly discussed and disposed of above. In all the
circumstances discussed, described, and found above, I am convinced and find that
Mathis by his own conduct on September 25, 1961, voluntarily quit his job as a
truckdriver and left the Respondent's services for personal reasons and not at the
demand or request of the Respondent subtly or otherwise.
Conclusion
Upon all of the above I am convinced and find that the Respondent herein has
maintained its position that its liability to Mathis for backpay was tolled by his own
conduct on September 25, 1961, by a preponderance of the evidence considered in
the light of the record as a whole, and will recommend hereinbelow that its liability
be limited to its calculation of its backpay obligation to Mathis in accordance with
Board's decision herein enforced by the U.S Court of Appeals for the Fifth Circuit.
In reaching my decision herein I have given careful consideration to the position
of the General Counsel as expressed at the hearing herein and in his well-considered
brief. Quite frankly in reaching my ultimate decision herein I have likewise adopted
an equitable approach to the problem he was faced with herein, and at all times had
in mind the ancient equitable maxim, that he who seeks equity should do equity.
In other words even a person who has been found to be a "discriminatee" under the
Act has certain obligations as a person and/or a citizen not only to society as a whole
but to the individuals who constitute it, such as the procurement of a driver's license,
which is illustrative of the burdens society places upon itself for the protection of
those that constitute it. In such circumstances an employer is required by society,
that is the people, to protect not only himself but others as well by requiring that
drivers of cars and similar vehicles have a permit or license to operate them over
the public highways for the ultimate protection of all concerned, even those to whom
they are issued. To those who ignore its requirements in this regard "society" has its
remedies, which should be familiar to all concerned herein, such as civil actions in
its courts of law or by means of criminal action against its violators in accordance
with the rules it has established through its legislative and executive branches. Obvi-
ously both Mathis and the Respondent herein were faced with a duty and obligation
1738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the public at all times material herein. In such circumstances the Respondent
was under a duty to society or the State to demand that Mathis inform them of
his status in this regard, or face the consequences itself of all that might flow from
his carelessness and its acquiescence thereto.
Another important facet of the case as to Mathis is that he knew that as a citizen
he was required to have a driver's license at all times material herein, and yet he
ignored his obligation to the public in this regard from June 8 to September 25, 1961,
or in other words more than 3 months before he made any effort to comply with
the law in this regard. These are factors that neither I nor any trier of the facts
can ignore either in his capacity as a Tiial Examiner or a citizen.
I have considered the General Counsel's position as regards the predicament of a
"discriminatee" in a situation such as Mathis was in the case at hand, still in the
employ of the discriminatory employer, the Respondent herein, at the time issues
such as we are concerned with herein arise. Under certain circumstances I would
agree with his position in this regard which is well stated in the following excerpt
from Brown Transport Corp., 140 NLRB 954 at 958.
To hold that employees who have been discriminatorily discharged must,
under peril of sustaining wilful loss of employment, cooperate with a wrong
doing employer by accepting less than the full reinstatement which is their due,
while the effects of the employer's unlawful conduct remain unremedied, would
provide a discrimination minded employer with a ready device whereby he
might be assured of the benefit of his unlawfulness while being insured against
its costs.
In other words, an employer such as the Respondent herein cannot "... both eat
thy cake and have it" too.24
Here again I agree with the General Counsel's theory, in principle, but for reasons
discussed at great length above am convinced that the facts herein which I have
likewise discussed and found above are not applicable to the case as to Mathis who
deliberately walked off his job with the Respondent herein because he knew he had
lied to his employer as regards his driver's license, which fact played upon his con-
science to such an extent that inwardly he was persuaded to leave his job with the
Respondent and thus avoid further discussion in this regard with either Aycock or
Chancellor, and thus, temporarily at least, satisfy his inner self.
Before final disposition of the case at hand I desire to point out to all concerned
herein that I was well aware at all times material herein of the fact that the "capping
machine" job was still in existence at all times material herein, and that the Board's
decision and that of the Fifth Circuit Court of Appeals had in plain language ordered
Mathis' reinstatement to his former job as its operator, which the Respondent had
complied with on or about March 17, 1964, under the circumstances stated and stipu-
lated to by counsel for the parties at the hearing herein.
Another facet of the case that should be referred to again at this point is that the
record shows that Mathis' earnings as a truckdriver were equal to and in fact when
considered over a period of time in excess of those he earned as a capping machine
operator.
Concluding Findings
The Board has consistently held in cases similar to the case at hand, with court
approval that the burden of proof is on the General Counsel to establish for each
discriminatee the loss of pay which has resulted from Respondent's established dis-
criminatory conduct; i.e , the gross backpay over the backpay period.25 However,
the burden of proof is on Respondent to show diminution of that amount, whether
such diminution results from a claimant's willful loss of earnings (which I have found
herein as to Mathis) or from some season unconnected with discrimination, which
the Respondent herein for reasons discussed and found above, has done in the case
as to John Mathis.
Based on the formula set forth in the record herein as a part of the Respondent's
answer and by stipulation of the parties at the hearing herein as to the correctness of
the Board's formula in cases of this nature I find that the discriminatee, John Mathis,
is entitled to the following amount of backpay, less such taxable withholding as may
be required by Federal or State law, if any, exclusive of interest.
21 See Bartlett 's Familiar Quotations , at page 95a . It is a matter of common practice
to phrase the above quote "You can't have your cake and eat it too "
25 See attached Appendixes, particularly the backpay specification charts filed by the
Respondent herein as part and parcel of its answer.
VITA FOODS 1739
John Mathis-$2.50
At this point I will dispose of the General Counsel 's motion to dismiss the com-
plaint which was made at the close of the Respondent 's case-In-chief . The motion
was to the effect that the Respondent herein had failed to support its position in the
case at hand by a preponderance of the evidence in accordance with the Board 's Rules
and Regulations applicable to backpay specification cases, which has been set forth
in toto hereinabove . I deny his motion in this regard without prejudice to renewing
it at the close of the hearing herein , which he did . At this point I deny his motion in
this regard for reasons set forth above in his final disposition of the case at hand.
It is recommended that the Board adopt the foregoing findings and conclusions.
APPENDIX A
COMPUTATION OF BACEPAY
Case No 12-CA-2001
Mathis, John E SS No 261-12-6822
'Capping Machmg Operator
Backpay Period April 28, 1961 , to March 16, 1964
Measure of gross backpay The actual quarterly earnings of Monroe Johnson , the replacement capping
machine operator
Gross Interim earnings Net
backpay backpay
1961
4/28-6/30 (9 weeks) ----- --------- ---- $449 26 Vita Foods ------------ --------- --- $489 51 _
3d Quarter_________________________ 668 57 Vita Foods ------------------------ 659 82 $8 75
4tb Quarter ________________________ 718 76 Foremost Dairies- ____ 13 80
Laney & Duke_______________ _____ 35 65
Whitmire Tank Co_______________ 102 50
Jacksonville Terminal_____________ 51 27
196$
203 22 515 54
let Quarter_________________________ 776 40 Sam F. Barket -- --------------- --- 163 00
Panama Motel ____________________ 75 00
Naughton & Co___________________ 161 00
399 00 377 40
2d Quarter_________________________ 747 19 Panama Motel _ - ------------------- 40 00
Naughton & Co___________________ 588 00
628 00 119 19
3d Quarter_________________________ 696 27 Haughton & Co ------------------- 469 00 227 27
4th Quarter ________________________ 692 19 Haughton & Co___________________ 351 00
Self-employed painter_ ____________ 210 00
1963
561 00 131 19
1st Quarter_________________________ 758 00 Haughton & Cc ------------------- 84 00
Odd jobs__ ________________________ 304 00
388 00 370 00
2d Quarter _________________________ 682 34 Odd jobs -------------------------- 378 00 304 34
3d Quarter_________________________ 661 45 Patterson Cold Storage ____________ 32 50
W H Davis_ ----------------- ----- 9 28
Odd jobs------------------------- 389 22
431 00 230 45
4th Quarter________________________ 703 33 Odd jobs -------------------------- 392 00 311 33
1964
1/1 to 3/16/64 Prorated , i e , 10 40
for 3/13/64
641 08 Odd jobs_ ________________ 388 00 253 08
Total net backpay (excluding __________ $2,848 54
interest).
NOTE -Interim employers are in Jacksonv ille, Florida
1740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX B
Johnson, Monroe
Extract from compensation record
Pay period Time Gross Pay period Time Gross
worked earnings worked earnings
1/5/61-------------- ---------- 41Y2 $42 25 10/5/61 ------------ 49Y4 $61.96
1/12/61 ---------------------- 453 47 88 10/12/61 --------------------- 463/4 57 64
1/19/61 ---------------------- 48% 52 75 10/19/61 ---------------------- 5034 63 68
1/26/61 ---------------------- 42% 43 38 10/26 /61 --------------------- 48% 60 23
2/2/61 ----------------------- 47% 50 88 11/2/61 ---------------------- 36% 41 98
2/9/61 ----------------------- 50 55 00 11 /9/61 ---------------------- 43 51 18
2/16/61---------------------- 48% 53 . 16 11 116161 -- ------------------- 49 61.53
2/23/61 ---------------------- 47 50 50 11 /23/61 --------------------- 37Y4 42 84
3/2/61---- -------------------- 43% 44 88 11/30/61 --------------------- 47Y4 59 37
3/9/61------------------------ 34% 34 25 12/7/61 ---------------------- 44% 54 19
3/16/61 ---------------------- 36% 6 50 12/14/61 --------------------- 48Y4 61 09'
3/23/61 ---------------------- 48 52 00 12/21/61 --------------------- 4934 61 96.
3/30/61 ---------------------- 43% 44 88 12/28/61 --------------------- 35% 41 11
Quarterly Total------- ---------- 608 28 Quarterly total ------- ---------- 718 76,
4/6/61 ----------------------- 431 44 88 1/4 /62------------------------ 35 43 75
4/13/61 - ------------------- 44 46 00 1/11 /62----------------------- 44Y4 57 97
4/20/61 ---------------------- 43M 45 25 1/18/62 --------- -------------- 48 65 00,
4/27/61 ---------------------- 51 56 50 1/25/62 ----------------------- 453 60 31
5/4/61 ----------------------- 44 46 00 2/1/62 ------------------------ 48'22 65 94
5/11/61 ---------------------- 49 54 25 2/8J62 ------------------------ 45% 60 31
5/18/61 ----------------------- 47A 51 25 2/15/62----------------------- 46% 62 66,
5/25/61------ --------------- 41% 41 88 2/22/62----------------------- 45% 60 31
6/1/61 ----------------------- 50 55 00 3/2/62------------------------ 47 63 13.
6/8/61 ----------------------- 46Y4 49 38 3/8/62------------------------ 45Y4 59 84
6/15/61 ---------------------- 50 55 00 3115/62 ----------------------- 4534 60 31
6/22/61 ---------------------- 45 47 50 3/292162----------------------- 4534 59 84
6/29/61 ---------------------- 46 49.00 3/29/62----------------------- 453/4 57 03.
Quarterly total - ------ ---------- 641 89 Quarterly Total - ------ ---------- 776.40
7/6/61 ----------------------- 35% 75 75 4/5/62- ----------------------- 45 59.38
7/13/61 ---------------------- 45 47 50 4/12/62----------------------- 43% 57 03
7/20/61 --_-_-____---------- 47 50 50 4/19/62----------------------- 45Y4 59 84
7/27/61- --------------------- 28% 28 50 4/26/62 ----------------------- 44 57 50
8/3/61 ----------------------- 38% 38 75 5/3/62------------------------ 46A 62 19
8/10/61 ---------------------- 45% 48 63 5/10/62----------------------- 4434 57 97
8/17/61---------------------- 49 53 50 5/17/62 ----------------------- 4534 59 84
8/24/61 ---------------------- 44% 46 38 5/24/62----------------------- 45% 60 31
8/31/61 ---------------------- 4534 47 88 5/31162 ------- ---------------- 46% 62 19
9/7/61 ----------------------- 45% 53 07 6/7/62------------------------ 42 53 75
9/14/61 ---------------------- 52% 67 57 6/14/62 ----------------------- 42% 55 16
9/21/61 ---------------------- 45 54 63 6/21/62 ----------------------- 4334 56 09
9/28/61---- ------------------ 45% 55 92 6/28/62----------------------- 36% 45 94
Quarterly total ------- ---------- 668 57 Quarterly total -------- ---------- 747 19
VITA FOODS
APPENDIX B (Continued)
1741
Pay period Time Gross Pay period Time Gross
worked earnings worked earnings
7/5/62----------------------- Vac $50 00 5/23/63---------------------- 43% $56 09
7/5/62 ----------------------- 25 31 25 5/30/63---------------------- 43Y2 56 56
7/12/62 ------ ---------------- 27% 34 69 6/6/63 ----------------------- 32 40 00
7/19/62 ---------------------- 45% 59 06 6/13/63 ---------------------- 26Y2 33 13
7/26/62 ------ ---------------- 44% 58 91 6120/63---------------------- 36% 45 94
$/2/62----------------------- 36 45 00 6/27/63---------------------- 28 35 00
9/629 44% 9158/ ----------------------- .
8/16/62 -- -------------------- 44% 48 44 Quarterly Total ----- - ---------- 682 34
23 628 45 59 38// ---------------------
8/30/62 ---------------------- 42Y4 54.22 7/4/63----------------------- Vac 50 00
9/6/62---- ------------------- 20% 25 63 7/11/63 ---------------------- 33% 42 19
9/13/62 ---------------------- 41M 52 81 7/18/63 ---------------------- 43 55 63
9/20/62 ---------------------- 43% 56 56 7/25/63 ---------------------- 34% 43 44
9/27/62------ --------------- 40% 51 . 41 8/1 /63----------------------- 41% 53.28
818/63 39% 49 06----------------------- .
Quarterly total -- ------ ---------- 696 27 8 /15/63 ---------------------- 44% 58 44
8/22/63 40 50 00----------------------
10/4/62-- -------------------- 44 57.50 8/29/63------ ---------------- 43 55.63
10/11 /62 --------------------- 45% 60 31 9/5/63 ----------------------- 29% 38 68
10/18/62 --------------------- 4534 60 31 9 /12/63---------------------- 433/4 59.31
10/25/62--------------------- 45 59 38 9/19/63 ---------------------- 43% 59 31
11/1/62______________________ 44A 58 44 9/26/63 ---------------------- 35% 46 48
11 8/62 44% 58 44/ ---------------------- -
I1/15/62--------------------- 43% 57.03 Quarterly Total------ ---------- 661 45
11/22/62 32% 9440--------------------- .
11/29/62 --------------------- 43% 56.56 10/3/63---------------------- 43% 58 83
12/6/62 ---------------------- 43% 57.03 10/10/63 --------------------- 43% 58 83
12/13/62--------------------- 3334 41. 56 10/17/63--------------------- 44% 60 78
12/20/62---------------=----= - ---393 49 69 10/24/63--------------------- 433 58.83
12/27/62--------------------- 28 35 00 10/31 /63 --------------------- 42% 57 36
11/7/63 43% 59 31----------------------
Quarterly total------ -- ---------- 692.19 11/14/66--------------------- 37 48 10
11/21163--------------------- 43% 58 34
1/3163----------------------- 44Y2 58 44 11/28 /63--------------------- 41% 54 93
1/10/63 ---------------------- 44% 58 91 12 /5163 ---------------------- 36 46 80
1/17/63 ---------------------- 44% 58 91 12 /12/63 --------------------- 39 50 70
1/24/63--- ------------------- 411M 58 44 12/18/63 --------------------- 43% 58 34
1/31/63---------------------- 44% 58 91 12/28163 --------------------- 243/4 32 18
2/7/63 443 58 44----------------------- %
2/14/63 ---------------------- 4334 56 56 Quarterly Total-- ---- ---------- 703 33
2/21/63 443/ 58 91---------------------- 4
2/28/63 ---------------------- 46 61 25 1/2/64----------------------- 35Y4 45.83
3/7/63----------------------- 46 61 25 1/9/64---------------------- 41 53 95
3/14/63 ---------------------- 46% 62 66 1/16/64 ---------------------- 44 59 80
3/21/63 ---------------------- 373 46 88 1/23/64 ---------------------- 44% 60 78
3/28/63---------------------- 443/ 58 44 1 /30/64 ---------------------- 4334 59 31
2 6 64 43 58 3/ -----------------------/ % 4
Quarterly Total ------ ---------- 758 00 2/13/64 ---------------------- 443/4 60 29
2/20/64 43 3159---------------------- % .
4/4/63----------------------- -44% -58 91 - 2127/64 ---------------------- 425 56 39
4/11/63--------------------- 43% 56 09 3/5/64---------------------- 42% 56 88
4/18163 ---------------------- 4534 60 31 3/12/64 ---------------------- 44 59 80
4/25/63---------------------- 443/4 58 91 3/19/64 ---------------------- 44% 60 29
5/2/63----------------------- 45% 60 31 3126164 ---------------------- 43% 58 34
5/9/63 45% 60 31-----------------------
5/16/63---------------------- 45% 60 78 Quarterly Total ------ ---------- 749 31
1742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX C
Mathis, John E.
Extract from compensation record
Pay period Time Gross Pay period Time Gross
worked earnings worked earnings
1/5/61_ 40% $41 13 6/1/61_______________________ 48% 53 13
1/12/61______________________ 46% 49 38 6/8/61 ----------------------- 483 52 75
1/19/61______________________ 53 59 50 6/15/61______________________ 54 61 00
1/26/61_ - --------- ------------ 26% 26 75 6/22/61______________________ 68% 82 75
2/2/61_______________________ 49 53 50 6/29/61 ---------------------- 47 50 50
2/9/61 57% 65 88_______________________
2/16/61______________________ 51 56 50 Quarterly Total______ ---------- 708 Os
2/2 /61 52% 59 13______________________0
3/2/61_______________________ 50 55 00 7/6/61 ----------------------- Vac 40 00
3/9/61_______________________ 40% 41 13 36% 36 75
3/16/61______________________ 53% 59 88 7/13/61 ---------------------- 49% 54 63
3/23/61_____________ 42 43 00 7/20/61 ---------------------- 48% 53 13
3/30/61______________________ 54% 61 75 7/27/61______________________ 18% 18 50
8 3/ /61_______________________ 37% 37 50
Quarterly Total______ __________ 672 53 8/10/61 _____-_-____ 46% 50 13
8 17 61 50/ / ---------------- - ----- 55 00
4/6/61_______________________ 49% 54 63 8/24/61 ---------- ------------ 55Y2 63 25
4/13/61______________________ 47% 51 63 8/31/61 ---------------------- 46 49.00
4/20'61---------------------- 54V4 61 38 9/7/61 ----------------------- 45% 53 43
4/27/61______________________ 47% 50 88 9/14/61 ---------------------- 57 75 33
5/4/61_______________________ 453 48 25 9/21/61______________________ 48% 61 09
5/11/61___________ 47% 50 88 9%28/61______________________ 10% 12 08-
5/18/61 39% 39 75----------------------
5/25/61______________________ 47 50 50 Quarterly Total______ ---------- 659 82
APPENDIX D
APPENDIX "A"
Week Ending- Johnson Mathis
5/4/61______________ $46 00 $48 25
5/11/61_____________ 54 25 50 88
5/18/61_____________ 51.25 39 75
5/21/61_____________ 41 88 50 50
6/1/61______________ 55 00 53 13
6/8/61______________ 49 38 52 75
297 76 295 26
Mathis' deficit is $2.50.
VITA FOODS
APPENDIX E
APPENDIX "B"
Week Ending- Johnson Mathis
6/15/61_ ____________ $55 00
00
$61 00
6/22/61 _____________ 47 6 82 75
6/29/61_____________ 49 00 50 50
7/6/61 ______________ 75 75 76 75
7/13/61_____________ 47 50 54 63
7/20/21 _____________ 50 50 53 13
7/27/61_____________ 28 50 18 50
8/3/61 ______________ 38 75 37 50
8/10/61_ ____________ 48 63 50 13
8/17/61 _____________ 53 50 55 00
8/24/61 ------------- 46 38 63 25
8/31/61_ ____________ 47 88 49 00
9/7/61 ______________ 53.07 53 43
9/14/61 _____________ 67 57 75 33
9/21/61_____________ 54 63 61 09
9/28/61--- ---------- 55 92 12 08
820 08 854 07
APPENDIX F
1743
Appendix "C"
What the "city truckdriver -warehouseman 's job" earned from the time Mathis
quit until his return on March 27, 1964
4th Quarter 1961
For two weeks after Mathis left there was no designated truckdriver -warehouseman.
Mikell ( 11 weeks)----------------------------------------------- $603.30
1st Quarter 1962
Mikell(1 week)------------------------------------------------- 58.95
Approximately 2 weeks-no truckdriver-warehousemen.
Griffin ( 10 weeks )----------------------------------------------- 526.41
2d Quarter 1962
Griffin ( 13 weeks )----------------------------------------------- 711.43
3d Quarter 1962
Griffin ( 13 weeks)----------------------------------------------- 771.82
4th Quarter 1962
Griffin ( 13 weeks)----------------------------------------------- 691.16
1st Quarter 1963
Griffin ( 13 weeks)----------------------------------------------- 785. 18
2d Quarter 1963
Griffin ( 13 weeks)----------------------------------------------- 685. 15
3d Quarter 1963
Griffin ( 13 weeks)----------------------------------------------- 743.80
4th Quarter 1963
Griffin ( 13 weeks)----------------------------------------------- 667.67
1st Quarter 1964
Griffin ( 13 weeks)----------------------------------------------- 712.69