Bonnar-Vawter, Inc., 1270 (1962)

SUPPLEMENTAL DECISION AND ORDER

On September 29, 1960, the Board issued a Decision and Order in the above-entitled case, finding that the Respondent had discriminated against certain named employees in violation of Section 8(a) (1) and (3) of the Act. Thereafter, the Board's Order was enforced by the United States Court of Appeals for the First Circuit and the decree was entered on April 26, 1961. The decree provided, inter alia, that the Respondent make whole the employees named therein for any loss of pay suffered by reason of Respondent's discrimination against them. On August 18, 1960, the Regional Director for the First Region issued backpay, specifications and on September 25, 1961, the Respondent filed an answer thereto. Upon appropriate notices issued by Regional Director, a hearing was held before Trial Examiner Phil Saunders for the purpose of determining the amounts of backpay due tho claimants.

On December 8, 1961, the Trial Ekaminer issued his Supplemental Intermediate Report, which is attached hereto, in which he found the 135 NLRB No. 125.

BONNAR-VAWTER, INCORPORATED 1271 claimants were entitled to specific amounts of backpay. Thereafter, the Respondent filed exceptions to the Supplemental Intermediate Report and a supporting brief. A brief in support of the Supplemental Intermediate Report was filed by the General Counsel.

Pursuant to the provisions of Section 3(b) of the At, the Board has delegated its powers in connection with this case to a threemember panel [Chairman McCulloch and Members Rodgers and Fanning].

The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the entire record in this case, including the Supplemental Intermediate Report, the exceptions, and briefs, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner.

ORDER

On the basis of the foregoing Supplemental Decision and the entire record in this case, the National Labor Relations Board hereby orders that the Respondent, Bonnar-Vawter, Incorporated, its agents, successors, and assigns, shall pay the employees involved in this proceeding as net backpay the following amounts :

Christy Alex---------------------------------------- $3,288

Mary Kalloch--------------------------------------- 1,697

Eleanor F. Robinson--------------------------------- 2,410

Richard A. St. Clair--------------------------------- 3,442 SUPPLEMENTAL INTERMEDIATE REPORT

STATEMENT OF THE CASE

This supplementary proceeding to determine backpay, with all parties represented, was heard before the duly designated Trial Examiner in Rockland , Maine, and Boston, Massachusetts, on October 4 and 6 , 1961 , on the specification of the General Counsel and the answer of the Respondent. Generally, the issues litigated were the amounts of backpay due, if any, from Bonnar-Vawter, Incorporated , herein called the Respondent or the Company, to Christy S. Alex and Mary Kalloch. All parties were afforded full opportunity to examine and cross -examine witnesses, to introduce evidence, and to present oral argument . Briefs were duly received from both parties and have been fully considered herein. Upon my observation of the witnesses, and upon consideration of the pleadings , the testimony, the exhibits, and the entire record in this case, I make the following findings and conclusions:

1. BACKGROUND AND PLEADINGS On September 29, 1960 , the Board issued its Order affirming the Intermediate Report issued by its Trial Examiner on February 25, 1960 , directing, inter alia, that the Respondent make whole four employees who the Board held had been discriminatorily discharged by the Respondent . On April 26, 1961 , the United States Court of Appeals for the First Circuit issued its decree affirming the Board 's findings and requiring that Eleanor F. Robinson , Mary Kalloch, Christy Alex, and Richard A.

St. Clair be reimbursed for wages lost by them, because of their discharges by the Respondent. On August 18, 1961, the Regional Director issued backpay specifications naming the four above as claimants , and on September 25, 1961, the Respondent filed its answer.

The specification by the General Counsel utilizes a formula traditionally applied by the Board in backpay cases. Thus , the earnings of the incumbent employees who worked in equivalent jobs constitute the measure for computing the alleged gross backpay lost by the discriminatees as a result of the Respondent's discriminatory activity. In this computation are included periodic wage increases, vacation pay, and other benefits paid to incumbent employees, which, it is claimed, the discriminatees would have received had they worked for the Company during the alleged backpay period. From these amounts are deducted the known interim earnings of the discriminatees, and to the amounts are added the expenses alleged to have been incurred by a discriminatee in seeking employment during the backpay period.

2. WITH RESPECT TO ROBINSON AND ST. CLAIR The Respondent stated for the record at the hearing that the Company agreed with the General Counsel that no issue exists with respect to the amount of backpay claimed for employees Eleanor F. Robinson and Richard A. St. Clair. In accordance with the above, I therefore find and recommend that Robinson be paid the full amount of net backpay claimed for her, the sum of $2,410; and that St. Clair be paid the full amount of the net backpay claimed for him, the sum of $3,442.

3. THE ISSUES LITIGATED The issues in this proceeding were narrowed to the following:

   (

   1. Whether or not Christy Alex willfully incurred a loss of earnings, within the meaning of Board decisions, when he voluntarily quit a higher paying job at Potter Press Company in Waltham, Massachusetts, and returned to Rockland, Maine, where he was unemployed for several months.

   (b) Whether or not Mary Kalloch used reasonable diligence in seeking interim employment to mitigate the alleged backpay damages.

4. THE INDIVIDUAL CLAIMS LITIGATED; FINDINGS AND CONCLUSIONS A. As to Christy Alex As alleged in the specification, Alex's backpay period begins July 2, 1959, and ends June 9, 1961, and it is alleged that the amount of backpay due Christy Alex under the Board's formula totals $3,288. It is undisputed that Christy Alex was employed at the Potter Press Company in Waltham, Massachusetts, from early October 1959 until about January 1, 1960, and that his rate of pay while at Potter Press was $2.60 per hour. The record also reveals that Wilson Tarble, personnel director of the Potter Press Company, interviewed Alex and several others in Rockland, Maine, before hiring them, and afterward made certain efforts to locate housing for them in the Waltham area.' Christy Alex credibly testified that in his interview in Rockland with Personnel Director Tarble of Potter Press Company, he was promised a foreman's job after a brief breaking-in period of a week or two. Alex also testified that after accepting employment with the Potter Press Company, Personnel Director Tarble further told him that the three other employees, coming in with Alex from the Rockland area, would be working in the press department, but that Alex did not have to worry, because he 'was going to have a foreman's job.' It is undisputed that Potter Press Company never promoted Alex to a foreman's job during the time of his employment with them.

   In addition to the above, the record established that during the period of employment with Potter Press, Alex commuted back and forth from Rockland, Maine, to Waltham, Massachusetts, each weekend together with the three other Rockland residents also employed by Potter Press. Each of the four drove his car 1 week a month, and each contributed $3 toward the transportation expenses. Also, while in Waltham,

   Monday through Friday of each week, the four shared an apartment, and with utilities, and heat the cost was approximately $25 to $30 a month for Alex in paying his share of the housing expenses. It was also -established that two out of the four, sharing the apartment and transportation costs, subsequently decided to move their families to the Waltham area, and in accordance with the above Alex credibly testified that he then could no longer share housing and transportation costs. Alex further credibly testified that in late December personnel director of Potter Press,

   Tarble, informed him of a pay cut from $2.60 to $1.70 per hour, and that he would not get the foreman's job .2 In summary, Alex verified that the reasons for terminati Waltham, Massachusetts, Is in the Boston area, and approximately, 200 miles from Rockland, Maine, where Christy Alex had his family located, and had worked for the Respondent.

   2Alex stated that he_could not move his wife and baby to Waltham because -of expenses, and his cut in pay.

   BONNAR-VAW.TER, INCORPORATED 1273' ing his employment at Potter Press were -the following : he-was promised a foreman's job which he did not get, that his wages were cut, that he was no longer able to share transportation and housing expenses due to the aforestated reasons, and that under the circumstances then prevailing he could not move his family to the Waltham area.3

   In several respects the credited testimony given by Alex was substantially corroborated by Ronald Kennison-one of the four who shared transportation and housing expenses in Waltham.4 The record establishes that after Alex terminated his employment with Potter Press on about January 1, 1960, he returned to Rockland, and filed an application with the State unemployment office. In February of 1960 Alex made application and took an examination for work with the Maine State Prison, and after waiting for results was hired for this job during the last part of March 1960.

   It has been a long-standing policy of the Board not to toll backpay for discriminatees who quit interim employment for good cause. In...