Adams Motors, Inc.

National Labor Relations Board - Board Decisions

Oct 31, 1951

96 N.L.R.B. 1198 (N.L.R.B. 1951)

1198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -
ADAMS MOTORS, INC. and LODGE 1898 , INTERNATIONAL ASSOCIATION
OF MACHINISTS . Case No. 1-CA-073. October 31, 1951
Supplemental Decision and Determination
On February 24, 1950, the Board issued an Order in this case
adopting the findings, conclusions, and recommendations in the Trial
Examiner's Intermediate Report dated January 6, 1950, which Order
was thereafter enforced in a decree entered on September 28, 1950,
by the United States Court of Appeals for the First Circuit. On
February 27, 1951, the Board issued an Order that the record in
this case be reopened, that a further hearing be held before a Trial
Examiner to determine the amount of back pay due Benjamin Lan-
caster, and that the case be remanded to the Regional Director for the
First Region for the purpose of conducting such further hearing.
Pursuant to said remand a hearing was duly held before Trial Exam-
iner Sidney Lindner.
On July 13, 1951, the Trial Examiner issued a Supplemental Inter-
mediate Report, a copy of which is attached, finding that Benjamin
Lancaster was entitled to net back pay in the amount of $578.81. The
Union filed exceptions to the Supplemental Intermediate Report, to-
gether with a supporting brief. The Respondent filed a reply brief.
The Board 1 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 Sup-
plemental Intermediate Report, the exceptions and brief filed by the
Union, and the entire record in the case, and hereby adopts the find-
ings, conclusions, and recommendations of the Trial Examiner, with
the following additions and modifications :
Under the Board's Order and the decree of the court the Respond-
ent was required to make Lancaster whole "for any loss of pay
he may have suffered . . . by payment to him of a sum of money
equal to that which he would normally have earned as wages" during
the period of discrimination against him.
The Trial Examiner found, and we agree, that, for the reason de-
tailed in the Supplemental. Intermediate Report, Lancaster was en-
titled to back pay only for the periods (1) September 20 and 21,
1948, (2) October 8 to December 31, 1948, and (3) January 1 to 11,
1950.
In determining the amount of wages which Lancaster would
normally have earned during those periods if he had remained in the
1 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 Herzog and M dm-
hers Reynolds and Styles].
96 NLRB No. 189.
ADAMS MOTORS, INC. 1199
Respondent's employ, the Trial Examiner rejected the General Coun-
sel's contention that it should be assumed that Lancaster would have
put in a full day's work on each day of the back-pay period. Citing
the fact that Lancaster, during the period of his employment by
the Respondent, had been unable to work steadily because of a chronic
heart condition, and in view of the absence of any credible evidence
that this condition had improved, the Trial Examiner, in effect,
found that this condition had continued during the foregoing back-
pay periods and had impaired Lancaster's availability for work dur-
ing those periods to the same extent as during his period of employ-
ment by the Respondent. The Trial Examiner accordingly based his
back-pay award on Lancaster's average weekly earnings during his
period of employment by the Respondent, rather than on the pay he
would have received for a full week's work.
We believe that, under the circumstances of this case, this was an
appropriate method of determining the loss of pay that Lancaster
"would have normally earned." 2 We will, therefore, adopt the
method of computation used by the Trial Examiner and determine
that Lancaster is entitled to back pay in the amount of $578.81.
Determination
Upon the basis of this Supplemental Decision and the entire record
in the case, the National Labor Relations Board hereby determines
that net back pay is due Benjamin Lancaster in the amount of $578.81.
Supplemental Intermediate Report and Recommendations
By direction of the Board , the Executive Secretary on February 27, 1951,
issued the following :
ORDER REMANDING PROCEEDINGS TO REGIONAL DIRECTOR FOR FURTHER HEARING
On February 24, 1950, the Board issued an Order adopting the findings,
conclusions , and recommendations as contained in the Trial Examiner's
Intermediate Report dated January 6 , 1950 , which Order was thereafter en-
forced in a decree entered on September 28, 1950, by the United States Court
of Appeals for the First Circuit. The Respondent and representatives of
the Board having been unable to reach an agreement concerning the amount
of back pay due Benjamin Lancaster , and it appearing that the question of
back pay can best be resolved by a hearing,
2 Cf. Empire Worsted Mills , 53 NLRB 683 , 691-692. In that case the Board took into
account , in computing back pay for each discriminatee , the general rate of absenteeism
of all regular employees of the respondent who had continued to work in the
discriminatee ' s occupation during the back period However, where , as in the instant
case , it is necessary to determine the extent to which the discriminatee was precluded from
working by a chronic physical condition peculiar to himself, his own past record of
absenteeism clue to that condition is more significant than the general rate of absenteeism
among his former fellow employees.
1200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IT IS HEREBY ORDERED that the record in the above-entitled proceeding be
reopened, and that a further hearing be held before a duly designated Trial
Examiner for the purpose of determining the amount of hack pay due Ben-
jamin Lancaster ; and
IT IS FURTHER ORDERED that this proceeding be remanded to the Regional
Director for the First Region for the purpose of conducting such further
hearing, and that the said Regional Director be and he hereby is, authorized
to issue notice thereof.
Pursuant to a notice of further hearing issued by the Regional Director and
served on the charging Union and the Respondent , a hearing was held at Boston,
Massachusetts , on March 26 , 27, 29, and 30 and April 11 and 12, 1951, before the
undersigned Trial Examiner , duly designated by the Chief Trial Examiner. The
General Counsel and Respondent were represented by counsel and participated
in the hearing. The Union was represented by a Grand Lodge representative.
Full opportunity to be heard , to examine and cross -examine witnesses, and to
introduce evidence was afforded all parties.
At the opening of the hearing, counsel for the Respondent moved for further
particulars regarding the amount of the claim of Benjamin Lancaster , herein
referred to as the discriminatee , an analysis of the amount of his other earn-
ings, the source of such other earnings , and a complete statement as to the
efforts of the discriminatee to obtain other income . The motion was granted in
part and denied in part.
When the General Counsel and counsel for the Respondent had concluded their
presentation of evidence at the hearing, they waived oral argument . Both of
them, however , submitted briefs on June 15, 1951 , which have been duly con-
sidered. Upon the entire record in the case and from his observation of the
witnesses, the undersigned makes the following :
FINDINGS OF FACT
In an Intermediate Report, dated January 6, 1950, Trial Examiner Horace
Ruckel found that Adams Motors, Inc., herein called the Respondent, dis-
criminatorily laid off Benjamin Lancaster, a mechanic in the repair shop, on
September 20 and 21, 1948, and on October 8, 1948, discriminatorily discharged
Lancaster. The Board, in its Order of February 24, 1950, adopting the findings,
conclusions, and recommendations as contained in the Trial Examiner's Inter-
mediate Report, and the United States Court of Appeals for the First Circuit, in
decreeing its enforcement, directed the Respondent, among other things, to:
(a) Offer Benjamin Lancaster immediate and full reinstatement to his
former or substantially equivalent position without prejudice to his seniority
or other rights and privileges ;
(b) Make whole Benjamin Lancaster for any loss of pay he may have suf-
fered by reason of Respondent's discrimination against him by payment to
him of a sum of money equal to that which he would have normally earned
as wages on September 20 and 21, 1948, and from the date of discharge on
October 8, 1948, to the date of Respondent's offer of reinstatement less his
net earnings during said period.
In a letter dated January 11, 1950, the Respondent offered Lancaster reemploy-
ment. Lancaster reported to Walter Smith, Respondent's service manager at
the repair shop, on January 20, 1950. He was told that he would receive $1.25
per hour, the same rate of pay as when he was discharged. A time card was
made out for him which he punched and he then asked Smith for time to get ,his
ADAMS MOTORS, INC. 1201
tools. Within a few minutes Lancaster returned without the tools and told
Muldoon, the Respondent's shop foreman, "I don't like the atmosphere here,
I'm not going to work for you," punched the time card out and left' The General
Counsel concedes that a proper offer of reinstatement was made to Lancaster
on January 11, 1950, and that the back-pay period terminates as of that date.
There remains the question of the amount of back pay to which Lancaster is
entitled under the Board's Order and the court's decree for loss of earnings until
January 11, 1950.
From the time of his discharge until December 31, 1948, Lancaster sought
employment in at least 12 named mercantile establishments, as stations, and
automobile repair shops, without success. During this period, he earned $20.80
for 2 days' temporary work at the Duane Company in Quincy, Massachusetts,
and approximately $100 for automobile repair jobs at Charles Franklin's service
station in Quincy, Massachusetts.
On January 1, 1949, as a result of arrangements between Lancaster and Charles
Monroe, landlord of the premises at 442 Sea Street, Quincy, Massachusetts, the
location of Franklin's service station, Lancaster took over the operation of the
service station to carry on an automobile repair business and sell gasoline and
oil. He continued to operate it, allegedly at a loss, until December 31, 1949.
There was received in evidence a copy of Form 1040, U. S. Individual Income
Tax Return for the year 1949, filed by Benjamin J. and Mary G. Lancaster
(his wife) and prepared by Morris Snyder, an accountant employed by Lancaster
for this purpose, which showed that Lancaster's business suffered a net loss of
$1,353.42. While carrying on his busines, Lancaster continued his search for
employment during the entire year but was unable to find a job. It is within
the framework of these general facts, the details of which will be related herein-
after, that the General Counsel claims that Lancaster is entitled to full back
pay for the 2 days in September 1948, when he was discriminatorily laid off, and
from October 8, 1948, the date of the discriminatory discharge, to January 11,
1950. Counsel for the Respondent contends that Lancaster is not entitled to
any back pay because he ran a business from which he received income and for
the further reason that while running the business, Lancaster had withdrawn
from the labor market and did not seek employment.
Lancaster testified that he did not obtain other employment on either Septem-
ber 20 or 21, 1948.
Subsequent to his discriminatory discharge, Lancaster testified he obtained
temporary work for 2 days in November 1948, at the Duane Company in Quincy,
Massachusetts, doing acetylene torch burning for which he was paid $20.80 and
also during the months of November and December 1948, he did about 4 auto-
mobile repair jobs for Franklin and earned "close to $100." Although, as noted
previously, he sought other employment without success, the record does not
reveal that Lancaster registered with U. S. E. S. for employment during this
period.
Lancaster testified that about the last week of December 1948, "close to the
end of December," Charles Monroe came to his home to talk to him about taking
over the service station and garage which Franklin was then operating. Monroe,
according to Lancaster, prevailed upon him, since he was not working, to open
up the service station which Franklin was going to vacate.2 Lancaster agreed
that if he was able to borrow some money he would rent the garage at $50 per
I The record reveals that the time card was punched, in at 12: 29 p. in. and punched out
at 12 37 p. in.
8 Lancaster was unable to recall precisely when Franklin went out of business He
thought it was the last week of December.' Upon cross-examination Lancaster admitted
Franklin occupied the premises until December 31, 1948.
1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
month and the adjacent dwelling for his living quarters at $35 per month
Lancaster began to operate the service station on January 1, 1949, doing business
under the name of Lancaster & Son. Raymond, the son, corroborated by his
mother, testified he was a partner in the business. Lancaster disclaimed this
and stated the only reason for the title was to "just to have his name in there ;
that was all."
Mary Lancaster testified that her husband started to discuss with Monroe the
renting of the garage a week before they took occupancy.
At another point in his testimony, Lancaster stated that Franklin had given
up the garage and was out of business when he made arrangements with Monroe
to take over the garage. As previously noted, Lancaster admitted that Franklin
occupied the service station until December 31, 1948.
On cross-examination, Lancaster testified that Monroe talked to him on the
street in Quincy sometime in the latter part of November and said "Mr. Franklin
is getting out of there I don't want him in there." Lancaster stated he refused
at that time to take over the garage when asked by Monroe. He was approached
again in December and their negotiations resulted in his renting the premises.
Lancaster testified that on December 22, 1948, he procured a loan in the names
of Benjamin and Mary Lancaster in the amount of $325 which money was used
to set him up in the service station business. Mary Lancaster, in answer to the
General Counsel's questions regarding the amount of money borrowed for this
purpose, was unable to state the exact amount. She testified at first it was $150,
later she changed her testimony and stated it was $300.
Lancaster testified that he had not done much business at the service station
and, as a matter of fact, in February 1949, when it became necessary to borrow
money from a friend for the purchase of gasoline, the pumps having run dry, he
decided he would have to go out of business He stated he never thereafter
changed his mind about going out of business. In spite of this and the further
fact that neither Lancaster nor Raymond, who worked full time at the service
station, were drawing no salary from the business, William Lancaster, another
son, was hired in the latter part of March under the GI Training Bill to learn
the automotive electrician trade and was paid a salary of $25 per week Lan-
caster's only explanation for hiring William as an apprentice when business was
so bad was that he thought it might help the business William continued to
work at the service station for the remainder of the year. Raymond testified
that busines picked up in March when William came to work only sufficiently to
pay him the $25 weekly salary regularly. It is worthy of note that after
leaving his father's service station, William did not make use of the trade he
learned.
During the year he was in business, Lancaster testified he did not draw any
salary, nor did he take any money from the receipts'of the business for his own
purpose. He stated further that he "never went as much as to a moving picture
show or anything." Raymond testified that he did not receive a salary but on
occasion would take $2, $3, or $4 a week, sometimes nothing Mary Lancaster
testified she handled the cash receipts and disbursements of the business and
established a checking account in her name for this purpose. On cross-examina-
tion she admitted that she might have paid the house rent by check but that it
was money that she had budgeted for household use and that it did not come
from the business receipts.
As noted hereinabove, there was received in evidence a copy of Form 1040,
U. S. Individual Income Tax Return for the year 1949, filed by Benjamin J. and
s Lancaster and his wife and son Raymond were then living in a rented house for $25
per month.
ADAMS MOTORS, INC. 1203
Mary G. Lancaster. The said return contains the following Schedule C.-"Profit
(or Loss) from business or Profession":
Schedule C.-Profit (or Loss) From Business or Profession
---------------------------------------------------------------------------
State ( 1) nature of business : Gas Station , (2) business name --- --------- ;
(3) business address ------------------------------------------------------
Do NOT include in this schedule cost of goods withdrawn for personal use or
deductions not connected with business or profession.
1. Total receipts----------------------------------------------- $6,828.29
COST OF GOODS SOLD
(To be used where inven-
tories are an income-de-
termining factor)
(Enter the letters "C" or "C
or M" on lines 2 and 8 if
inventories are valued at
either cost, or cost
market, whichever
lower:)
2. Inventory at beginning
of year-------------- $--------
3 Merchandise bought for
sale _ ________ 5,513.37
4. Labor ----------------- ---------
5 Material and supplies__ ---------
6 Other costs ( explain in
Schedule G)__________ ---------
7. Total of lines 2 to 6____ ---------
8. Less inventory at end of
year-----------------
9 Net cost of goods sold
(line 7 less line 8) ___ $5, 513 37
10. Gross profit (line 1 less
line 9 )_______________ 1,314.92
20 Net operating loss deduc-
tion ( attach state-
ment) ---------------
F) ------------------ 180.00
18. Repairs--------------- ---------
19. Other expenses (explain
in Schedule G)_______ 1,481.84
15. Losses (explain in
Schedule G)_________
10. Bad debts arising from
sales or services______
17. Depreciation , obsoles-
cence, and depletion
(explain in Schedule
business property ____ 6.50
13 Interest on business in-
debtedness___________
14. Taxes on business and
11. Salaries and wages not
in line 4____________ $1,000.00
12. Rent------------------ ---------
or
is
21. Total of lines 11 to 20__ 2, 668. 34
22 Total of lines 9 and 21__ 8, 181. 71
23 Net profit (or loss) (line
1 less line 2) --------- $1,353.42
Neither Lancaster nor his wife was able to produce any bills, canceled checks,
bank statements, or other documentary evidence to substantiate the items in the
income tax return. Mary Lancaster testified that the documents were either lost
when the family moved or she destroyed them because she felt they were no
longer needed since the auditor had taken care of the necessary filing of the
income tax return.
Questioned regarding the sole entry under "cost of goods sold," $5,513.47 for
"merchandise bought for sale," Lancaster was unable to state what items he
purchased and in what amounts As to the purchases and sales of gasoline,
Lancaster testified that upon opening the business he borrowed $150 from
Williams 4 to buy 800 gallons of gasoline. He stated that the tanks ran dry and
remained empty several times during the year for lack of money to refill them.
4 William obtained a loan of $150 from a loan company on December 27, 1948, which
money he claimed he turned over to his father to enable him to purchase gasoline.
1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
His only specific testimony in elucidation of this general assertion was that the
tanks were dry for about 4 days in February 1949, and that it was necessary for
him, to borrow $300 from a friend, $200 of which he used for the purchase of
gasoline to refill the tanks. On cross-examination, Lancaster was unable to state
precisely the number of occasions the tanks ran dry. He did testify, however,
that on each such occasion he was able after a while to purchase a new load of
gasoline, using monies from previous gasoline sales. In fact, he stated that gaso-
line sales receipts were always put aside for future gasoline purchases and that
after he sold "a lot of gasoline," he had not only enough money for a new loaq,
but a profit as well to buy parts.
Under the heading "Other Business Deductions" the item "depreciation, ob-
solescence, and depletion" in the amount of $180 appears. This amount repre-
sents 10 percent of $1,800 of fixtures and equipment acquired in 1948. Lancaster
could testify only with respect to approximately $131 worth of tools and equip-
ment purchased in 1949. It is the Respondent's contention set forth in its brief
that the purchase of tools and equipment prior to 1949 is irrelevant to the sub-
stantiation of the 1949 return. In view of the findings hereinafter made, the
undersigned will not determine the validity of this contention. Suffice it to say
that Lancaster could not confirm the purchases of $1,669 (the difference between
"1,800 claimed and $131 purchased) of tools and equipment in 1948 Lancaster
did not turn over receipts for his 1948 purchases to the auditors who made up
his income tax return. Nor did he remember ever having told the auditors that
he owned $1,800 worth of tools and fixtures in 1948.
Under "Other Business Deductions" there appears the item "other expenses"
in the amount of $1,481.84. This item is separately broken down and attached
to the return. Lancaster was unable to shed any light as to the "miscellaneous"
entry in the amount of $156.60, testifying that he did not know what it repre-
sented. As to the "contract work" item in the amount of $708.26, which refers
to repair work done on a subcontract basis, Lancaster testified on cross-examina-
tion as follows :
(By Mr. EPSTEIN :) When did you first start subcontracting work?
I don't remember when I first started.
When did you stop?
I don't remember that.
Did you do more of it at first than you did later?
I don't remember.
Did your business improve as you went on?
I don't remember that.
Did it get worse as you went on?
I don't remember.
The Lancaster household consisted of the discriminatee, his wife, and son
Raymond. William testified that during the period from March 1949 to the end
of the year, he ate lunch at his mother's home. As noted hereinabove, Lancaster
testified he did not draw any monies from the business and since he did not
have any income from other sources, he did not contribute to tho' household.
Mary Lancaster testified that none of the business receipts was used for house-
hold expenses.
Testifying with respect to the sources of money used to defray the houshold
expenses for 1949, Mary Lancaster stated that she was the recipient of unem-
ployment compensation in the approximate amount of $300.5 In addition, re-
6 Mary Lancaster was employed until the last week of December 1948. She applied for
and received unemployment compensation shortly after the requisite waiting period of 4
weeks.
ADAMS MOTORS, INC. 1205
funds from the Bureau of Internal Revenue for excess taxes paid in previous
years were received by both Benjamin and Mary Lancaster in the amounts of
approximately $70; $170 ; and $27, respectively , all of which monies were used
for the household. A friend of the family, Gertrude Keating, loaned Lancaster
$300 in February 1949 of which $200 was used to purchase gasoline and $100
was given to his wife to be used in the home. Another $100 for household
expenses was borrowed from Magnus Hallson, a friend. William Lancaster,
according to his mother, lent them "something like-about a $100 or $125, all in
all" over a period of several months.' The record does not reveal that any other
money was obtained or used for maintaining the household.
Mary Lancaster testified that of the $917, hereinabove itemized, $350 was
used in payment of 10 months' rent. She stated further that the household
money was used to make payments on the loans of Lancaster and William Lan-
caster hereinabove described. The record reveals that a total of $307.65 was
repaid on such loans. Lancaster testified that he incurred expenses of $125 in
his search for employment during 1949 and that this money was given to him
by his wife from the household monies. Thus, there remained for the family
$134 35, ostensibly for the purchase of food and clothing and the payment of
utilities, including a telephone. It is hardly conceivable that this could have
been accomplished without going deeply into debt and the record does not reveal
that this was the case.
In view of the inconsistencies in Lancaster's testimony regarding his business
venture in 1949, the conflicts between his and his wife's testimony, the failure
adequately to explain the items set forth in the income tax return, the failure
to produce any documentary evidence to substantiate the receipts and disburse-
ments of the business, Lancaster's sporadic lapses of memory while under cross-
examination, the unconvincing testimony regarding the hiring of William and
the payment to him of a regular salary when neither Lancaster nor Raymond
was drawing any money from the business, and from his demeanor on the
witness stand which was unconvincing, the undersigned does not feel that Lan-
caster's testimony with regard to the events and circumstances of his business,
and particularly the alleged losses sustained in the said venture, can be relied
upon. Nor does the undersigned credit the testimony of Mary Lancaster, Ray-
mond, or William in the same regard.
Even though Lancaster on January 1, 1949, undertook a full-time business he
testified that throughout 1949 while thus engaged in this venture he at no time
gave up his search for other employment. Thus Lancaster testified he spent on
the average of three full days a week during the year when he absented himself
from the service station, seeking employment throughout Greater Boston, as well
as Boston proper. He stated that he sought work not only as an automobile
mechanic, but also as a truck driver, an industrial worker, a shipyard worker, a
fireman, and common laborer but met with no success whatsoever.'
In addition to the regular business establishments contacted by him, Lancaster
testified he went to the Social Security Board office in Quincy eight or nine times
and looked at the board where job notices are posted. On none of these occasions
did he register for employment with U. S. E. S. Nor did he at any time in 1949
apply for unemployment compensation. His only explanation for not doing so
'William testified specifically that he loaned his mother money on six occasions In the
amounts respectively of $50; $40; $30 ; $20; and two $5 loans.
T Mary Lancaster 's testimony regarding the repayment of loans is in direct conflict with
Lancaster 's who stated he made the monthly payments from receipts of the business.
' Lancaster enumerated approximately 33 establishments where he sought work on at
least one and in most cases more than one occasion . He also testified he followed the
"Help Wanted" columns in the Boston Globe.
974176-52-vol. 96-77
1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was that he knew that because be had been discharged from his previous job
he was not entitled to apply.
Hyman Lesberg, who operated an employment bureau under the name Motor
Industries Employment Bureau in Boston from 1947 through August 1950, deal-
ing exclusively with help requirements of automotive employers in Greater
Boston in that period, testifying as a witness for the Respondent stated that
during 1949 his agency always had jobs available for nest-class mechanics; that
his agency never experienced difficulty in placing a first-class mechanic applicant ;
and that any first-class mechanic could obtain employment as a first-class
mechanic without difficulty throughout the period here in question, even without
resort to employment agencies. The undersigned credits Lesberg's testimony
and finds that while Lancaster may have sought employment on occasion during
1949, he did not seek it in the proportions testified to by him
By this finding the undersigned does not intend to imply that Lancaster was
wilfully idle: the fact remains that he did engage in a business throughout 1949
and the Board has held that self-employment under such circumstances does
not constitute wilful idleness.
Within the terms of the reference of the remand, the General Counsel as-
sumed the burden of demonstrating (1) that during 1949 Lancaster did not wil-
fully incur-losses and (2) that during the period of Lancaster' s business ven-
ture he suffered losses and did not draw any monies from the business thus en-
titling him to full back pay for the entire discharge period. With respect to
(1) the undersigned agrees with the contention of the General Counsel that by
engaging in a private business venture during 1949, Lancaster did not thereby
deprive himself of the right to have this time included in the period for which
the back pay computation should be made. The Respondent's contention that
by so doing Lancaster voluntarily removed himself from the labor market is
rejected. See Harvest Queen Hill-Elevator Co., 90 NLRB 320; Columbia Pic-
tures Corporation, et al., 82 NLRB 568.
As to (2), however, there is in issue here the relatively novel situation of a
discriminatee engaged in a private business venture who has peculiarly within
his possession the facts on which a finding must be made that he either realized
a profit from his business or drew monies therefrom which might he construed as
interim earnings to be offset against gross back pay or, as contended by the
General Counsel, he sustained losses as a result of his venture and therefore
there were no interim earnings With respect to this issue, the record contains
only the testimony of Lancaster, his wife, and sons, who.,-' testimony the under-
signed has found to be unreliable and has discredited. In view of these
circumstances the undersigned is unable to make any findings with respect
thereto. Further, it is found that the General Counsel has not sustained the
burden assumed by him of demonstrating that Lancaster suffered losses in his
business venture because of the lack of credible evidence in this regard10
Upon the foregoing considerations, the undersigned concludes that Lancaster
is not entitled to any back pay for the year 1949 when he was engaged in his
business venture.
g The General Counsel in an effort to contradict Lesberg's testimony adduced evidence
from David McSweeney, business representative of the Union. who testified generally that
work in the automotive industry was slack during the period in question McSweeney's
contacts and experience ere mainly with the trucking branch of the industry and the
undersigned is of the opinion that his testimony is not entitled to the same weight as
Lesherg's. %
10 Lancaster's income tax return showing losses is an uncorroborated self-serving state-
ment and does not constitute adequate proof of the statements made therein.
ADAMS MOTORS , INC. 1207
Back Pay Due Lancaster
The mechanics in Respondent's shop worked a 9-hour day, 5 days a week, and
a 5-hour day on Saturday, a total of 50 hours per week.
Counsel for the Respondent in his brief sets forth the contention that because
of a continuous pattern of absenteeism by Lancaster throughout the period of
his employment with Respondent, there is raised from the record in the instant
hearing "the strong and unrebutted inference" that Lancaster's absenteeism
Would have continued at the same rate during the discrimination period.
Lancaster admitted that during the course of his employment with the Re-
spondent he was unable to work for periods of time because of a chronic heart
condition. On this issue of absenteeism from work and the reason for it the
Board, in adopting the Intermediate Report in Case No. 1-CA-273, concluded
as follows : "
The record shows that Lancaster had a chronic heart condition which
the Respondent knew when it hired him, that he had frequently been absent
for this reason, and on occasion had been driven home by his supervisor dur-
ing working hours because of illness.
The undersigned does not accept Lancaster's testimony that his heart condi-
tion had not rendered him unable to work at any time during the discrimination
period nor had it prevented him from seeking employment during the period.
The Board's Order and the court's decree enforcing it provides that Lancaster
be made whole for "any loss of pay ... he would have normally earned...."
(Emphasis supplied.) The undersigned agrees with the Respondent's con-
tention that the computation of gross back pay will present an erroneous
version of Lancaster's potential "normal" earnings unless it "fair ly reflects
normal absenteeism." See Empire Worsted Mills, Inc., 53 NLRB 683, 691-692.
The undersigned in computing the gross back pay due Lancaster took an
average of his earnings during a 47-week period when he earned $125 per hour,
including 2 days additional pay for the week ending September 23, 1948 (except-
ing the week ending October 8, 1948, during which he worked only 9 hours, this
was not a complete week's payroll period), to arrive at Lancaster's average
weekly earnings.
In accordance with the findings hereinabove made, the undersigned concludes
and finds that Lancaster is entitled to back pay during the following periods ;
1. From: September 20, 1948 To: September 21, 1948-2 days
2. From : October 8, 1948 To : December 31, 1948-12 weeks
3. From : January 1, 1950 To : January 11, 1950-1 week and
3 days
Gross Back Pay
1. Average weekly earnings--------------------- $51.77
2. Number of weeks in back-pay period--------- 13
3. Gross back pay for weeks------------------- $673.01
4. Average daily earnings---------------------- 9.32 ($51.77)
(3 5/9)
5. Number of additional days in back-pay period_. 5
6. Gross back pay for days--------------------- $46.60
7. Total gross back pay ------------------------------------------- $719.61
Interim Earnings
1. Total net interim earnings----------------------------------- 140.80
Net back pay--------------------------------------------------- $578.81
" Page 5. lines 30-34.
1208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Conclusions and Recommendations
Upon the foregoing findings and the computations made in accordance there-
with, the undersigned makes the following determination, as directed by the
Order of the Board entered on February 27, 1951, and recommends its adoption
by the Board :
That back pay in the sum of $578.81 is due to Benjamin Lancaster from the
Respondent, Adams Motors, Inc., under the Board's Order in Case No. 1-CA-273
and the Decree of the United States Court of Appeals for the First Circuit en-
forcing said Order on September 28, 1950.
TEl-STATE CULVERT LC MANUFACTURING COMPANY 1 and SIdOPMEN'S
LOCAL UNION #6 16 OF THE INTERNATIONAL ASSOCIATION OF BRIDGE,
STRUCTURAL AND ORNAMENTAL IRON WORKERS , A. F. OF L., PETI-
TIONER. Case No. 1O-RC-1./.29. October 31,1951
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held on July 17, 1951, before Jerold B.
Sindler, hearing officer. The hearing officer's rulings made at the
hearing are free from prejudicial error and are hereby affirmed?
' As the Employer appeared specially to challenge the Board' s jurisdiction , the Em-
ployer refused to indicate whether its name as given in the Petitioner's petition is
correct. However, numerous references thereto at the hearing and the Employer's
exhibits indicate that the petition contains the Employer's correct name.
2 At the hearing and in its brief the Employer moved to dismiss the petition or reopen
the hearing, in substance , for the reasons , among others : (1) That the petition contains
no allegation as to compliance with Section 9 (f), (g), and (h) of the amended Act;
(2) that such compliance is a matter litigable at the hearing ; (3) that if non-Communist
affidavits were filed, they were improperly sworn; (4) that the hearing officer improperly
revoked subpenas addressed to the Board and the Petitioner, and by his rulings adverse
to the Employer otherwise impeded the Employer's efforts to secure information con-
cerning the compliance status of the Petitioner ; (5) that a subpena addressed to the
Secretary of Labor was not honored.
The fact of compliance by a labor organization which is required to comply, is a
matter for administrative determination and is not litigable by the parties. Moreover,
the Board is administratively satisfied that the petitioning Local. its International, and
the A. F. of L. are in compliance. See Sunbeam Corporation, 94 NLRB 844; Swift h
Co., 94 NLRB 917 ; cf. Highland Park Mfg. Co., 71 S. Ct. 489. The Board will not go
behind the affidavits filed under the provisions of Section 9 (h), as neither the statute
itself nor its legislative history authorizes the Board to investigate the authenticity or
truth of the affidavits which have been filed. Stationers Corporation, 96 NLRB 196.
In revoking the subpenas for compliance data and in refusing to do likewise with respect
to the subpena requiring the Employer's representative to testify on issues material
to this proceeding, the hearing officer was properly exercising his authority. Bill Heath,
Inc., 89 NLRB 67. As the subpena directed to the Secretary of Labor called for com-
pliance evidence which is inadmissible in this proceeding, no prejudice resulted from the
fact that it was not honored. The other rulings made by the hearing officer are also
free from prejudicial error. The Employer's nrotion to dismiss the petition or reopen
the hearing is hereby denied.
In accordance with the Employer's motion made subsequent to the hearing, the subpena
to the Secretary of Labor and the registered receipt therefor are hereby made an official
part of the record as Company Exhibit No. 16.
96 NLRB No. 190.