Atlantic Marine, Inc.

National Labor Relations Board - Board Decisions

Jun 7, 1974

211 N.L.R.B. 230 (N.L.R.B. 1974)

230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Atlantic Marine, Inc., and Atlantic Drydock Corpora-
tion and International Brotherhood of Boilermak-
ers, Iron Shipbuilders , Blacksmiths, Forgers and
Helpers, AFL-CIO. Case 12-CA-4891
June 7, 1974
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On October 29, 1971, the National Labor Relations
Board issued a Decision and Order in the above-
entitled case,' finding that the Respondents violated
the National Labor Relations Act, as amended, and
ordering the Respondents, inter alia, to make whole
Condon Boggs , David Johnson, and Roy Potter for
any loss of earnings they may have suffered because
of the discrimination practiced against them.
On April 30, 1973, the Regional Director for
Region 12 issued a backpay specification and notice
of hearing for the purpose of determining the
amounts of backpay, if any, due and owing and
making whole the said discriminatees, Condon
Boggs , David Johnson, and Roy Potter. Upon
appropriate notice issued by the Regional Director, a
hearing was held on June 26, 27, and 28, 1973, before
Administrative Law Judge Thomas A. Ricci.
On August 15, 1973, the Administrative Law Judge
issued the attached Decision in which he found that
the claimants were entitled to the amounts of
backpay therein set forth. Thereafter, the Respon-
dents filed exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, findings,
and conclusions of the Administrative Law Judge as
modified herein to correct mathematical and other
factual inadvertences: 2
1. We agree with the Administrative Law Judge's
finding that an appropriate measure of the earnings
of Condon Boggs would comprise the average of the
earnings of his fellow welders, Anderson and
Howard, but would exclude the average earnings of
Hunter, found to be a supervisor in the earlier Board
proceeding. In reviewing the Administrative Law
Judge's computation of Boggs' backpay on the basis
of this finding, however, we find that he has made
certain inadvertent mathematical miscalculations,
which we herein correct pursuant to the Appendix
attached to this Decision. On the basis of our
computation, we find that Condon Bogg is entitled
to backpay in the amount of $7,528.36, instead of
211 NLRB No. 42
$8,758.38 as stated by the Administrative Law Judge.
2. Having reviewed the Administrative Law
Judge's computation of the backpay due Roy Potter,
we correct his inadvertent failure to find that Potter
was hospitalized on October 15, 1971, with a hernia
condition which rendered him unable to work for a
period of 6 weeks thereafter. Accordingly, and
absent cogent evidence that Potter's disability was
employment connected, we find that the sum of
$1,717.21, representing Potter's potential earnings
during the fourth quarter of 1971, but for his
disability, should be deducted from the sum of
$7,533.09. Accordingly, Potter's total backpay is
$5,815.88.
3. In accord with our foregoing computations of
the backpay due Boggs and Potter, we hereby strike
the Administrative Law Judge's recommended Sup-
plemental Order and substitute our own, as herein set
forth:
SUPPLEMENTAL ORDER
It is hereby ordered that Atlantic Marine, Inc., and
Atlantic Drydock Corporation, their officers, agents,
successors, and assigns, shall pay to each of the
individuals listed below the amounts set forth
opposite their names, as follows: Condon
Boggs-$7,528.36; David Johnson-$3,517.19; and
Roy Potter-$5,815.88.
i Atlantic Marine, Inc., and Atlantic Drydock Corporation, 193 NLRB
1003.
2 We correct the following inadvertent factual misstatements of the
Administrative Law Judge which, however , have no effect on the backpay
calculations . That for 9 weeks Boggs averaged less than 40 hours of work a
week at U .S. Natural Resources , when in fact he averaged less than 40 hours
a week for 10 weeks; that Boggs worked overtime during 10 weeks at U.S.
Natural Resources, when in fact he worked overtime for only 9 weeks; that
Potter, rather than Boggs, was employed at U S . Natural Resources; and
that Boggs' hospitalization on December 21, 1970, and his inability to work
for a month thereafter were due to a herma operation.
APPENDIX
Schedule of Backpay Due Condon Boggs
Cal. Gross Net Interim Net
Qtr. Backpay Earnings Backpay
70-3 $1,990.85 $1,735.07 $ 255.78
70-4 1,814.11 1,188.23 625.88
71-1 1,829.89 894.78 933.11
71-2 2,028.65 649.49 1,379.16
71-3 1,520.01 2,073.02 ---
71-4 2,022.31 1,298.10 824.21
72-1 2,741.95 1,401.50 1,340.45
72-2 2,789.11 1,084.25 1,704.86
72-3 2,815.74 1,492.42 1,323.32
72-4 2,830.51 2,458.90 371.61
Total Net Backpay $8,758.38
ATLANTIC MARINE, INC. 231
DECISION
THOMAS A. Ricci, Administrative Law Judge: This is a
backpay proceeding, in which a hearing was held on June
26, 27, and 28, 1973, at Jacksonville, Florida. The sole
questions to be decided are the amount of make-whole
compensation due three employees of the Respondent who
were unlawfully discharged.
Upon the entire record and from my observation of the
witnesses I make the following:
FINDINGS OF FACT
Preliminary Statement
Condon Boggs was discriminatorily discharged on July
10, 1970, and David Johnson and Ray Potter were
similarly discharged on July 11, 1970. In accordance with
applicable Board Regulations, the Regional Director
served a backpay specification on the Respondent. It fixes
the backpay period for Johnson as ending on March 25,
1972, Boggs on December 5, 1972, and Potter on January
12, 1973. It also sets out, for each of the three men, and for
each of the quarterly 3-month periods included in the
backpay periods, what their gross earnings would have
been with the Respondent had they not been discharged,
what their interim earnings were, and what expenses they
incurred in their search for work. The end result of these
calculations says that the Respondent now owes approxi-
mately $20,000 in total to the three men.
The Respondent's answer to the specifications admits
certain factual assertions and denies others; it also disputes
certain assumptions , but without articulating precisely
what the Company's contrary position might be. The
answer then sets out a completely different set of numerical
calculations about backpay, ending with a conclusion that
none of the employees is entitled to any backpay at all. For
the most part the Respondent's contentions, or attacks
upon the validity of the Regional Director's specifications,
must be gleaned from the testimony of the plant manager,
Edward Dougherty, when he explained how and why he
went about calculating the picture as he did in the answer.
The Respondent did not file a brief to explain any of its
theories.
Certain major contentions, or what seemed to be major
contentions, must be disposed of first.
Cutoff Dates for the Backpay Periods
There is no issue with respect to Johnson on this score;
his period goes from July 11, 1970, to March 25, 1972. As
to Boggs and Potter, the Respondent claims their backpay
period ended at the latest on April 4, 1972, instead of 8 or 9
months later. Considering the entire record, I find this
contention without merit.
In March of 1972 Boggs and Potter were living, and
working, in the State of Oregon. By letter dated March 20,
1972, the Respondent wrote each of them "we hereby offer
you reinstatement to your former position," adding they
had 10 days to report and that if they did not do so within
the allotted time it would be assumed they had declined the
offer. Boggs and Potter flew east on March 25, and at 8
o'clock Monday morning, March 27, presented themselves
at the yard to Manager Dougherty and offered to go to
work. Dougherty told them he had no idea how to reinstate
them, he would have to talk to his lawyer about it. Each
man was staying with his mother, and each gave Dougher-
ty his mother's address and telephone number in Jackson-
ville. They were back on Wednesday, March 29, and again
offered to work. This time Dougherty asked them to fill out
a form setting out what work they had done since the
discharges, what experience they had acquired. Potter
refused to fill it out; he called the procedure improper in
the circumstances. Again the two men left emptyhanded.
No one on behalf of the Respondent ever communicated
with them.
On April 3 and 4, now 10 or 11 days after they had left
their family members behind, they offered to forego all
claims in return for the necessary money to get home
again . Potter's testimony is that when he called Dougherty
by phone on the 3rd he first asked the manager "did he
have any idea when we could go back to work," and then
proposed that if the Company would give him roundtrip
plane fare he would decline the reinstatement offer.
Dougherty said he must first check with the lawyer. The
next day, when Potter again telephoned to press the matter,
Dougherty sent him to Coffman's office. Boggs' testimony
is not different. According to him, when on the 29th he
asked Dougherty "did he have any idea as to when we
could go to work, he [Dougherty] said, "Well, you know
how long these things take,' said it might take six months
or longer." On April 4, he accompanied Potter to the
lawyer's office.
Dougherty's testimony conflicts with that of Potter, and
of Boggs, in only one respect. He denied they left any
address or telephone number where they could be reached.
It is virtually incredible that after leaving their jobs with no
intention of returning to them, crossing the entire country
at their own expense , presenting themselves ready to work
2 days later as they did, and then being confronted with the
purest stalling tactic, they would do anything other than
tell the Company where they could be reached there in the
city. But there is more to discredit Dougherty. The record
leaves no doubt the Respondent had no intention of
offering reinstatement to either of the men. Dougherty said
he was "shocked and surprised" to see them arrive, that the
letters of invitation had been sent because the Company
had heard the men would surely decline the offer. The
clearest fact, admitted quite candidly by the manager, is
that throughout the period of Boggs ' and Potter's stay in
Jacksonville, the Respondent never offered them work at
all. I certainly credit their testimony that they left their
phone numbers and addresses, and that Dougherty never
communicated with them.
We come to their visit to the lawyer's office. Coffman
appeared at the hearing as a witness for the Respondent.
He explained the invitation letters on the ground that when
he inquired of a Board agent he was told "all three 8(a)(3)s
did not desire reinstatement." He added he too was
surprised when Boggs and Potter came back for their jobs.
(Johnson received a like letter and he did decline the
written offer; he lived in Jacksonville, and his backpay is
therefore tolled as of March 25, 1972.) Coffman added it
was he who advised Dougherty to have the men give
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
statements as to their interim experience , and that he did
not advise his client to reinstate them.
When Potter arrived at Coffman's office the lawyer
asked his desire , and Potter said clearly he would forego
reinstatement in return for his cash outlay in making the
trip to Jacksonville because he had to get home. Coffman
recalled Potter's words somewhat ambiguously: ". . . I
think that he-he said he would settle the whole case,
consider it all of his backpay, for three hundred and some
dollars ...." Whatever words were used, the lawyer
prepared a very exact release and waiver of all claims by
Potter, and Potter signed it . Coffman then gave him
$364.50 . Coffman also talked to Boggs , who signed a like
document , literally waiving reinstatement and compromis-
ing all claims for backpay; he was paid $324. It is these
documents on which the Respondent now grounds an
argument that both Boggs and Potter are not entitled to
any money at all in this proceeding.
The fundamental object of all backpay proceeding is to
remedy unfair labor practices committed, to effectively
undo the wrong done by one party or another-in this case
the Respondent Employer, to compensate the person or
persons who have suffered monetary damages because
they were the object of unlawful activity found. Another
phrase for all this would be to say that the purpose is to see
that justice is finally done. To hold this Respondent free of
any further obligation to Boggs and Potter now because of
what happened in March and April of 1972 would do
violence to that concept. The two men found themselves in
Jacksonville-jobs abandoned and families far away-on-
ly because the Company had misled them into believing
they would be put to work immediately upon arrival. It
had no intention of rehiring them; whatever might
ultimately have been the outcome had Boggs and Potter
had the financial means to await the Respondent's
pleasure, the critical truth is it never did offer them
reinstatement . It is a lawyer's play on words to say they
"declined" reinstatement . There never was any reinstate-
ment offer to decline .' The Respondent placed them in an
impossible position . When Coffman first spoke to Boggs in
his office on April 4, he said , as Boggs testified without
contradiction, "I guess you guys know you threw us a
curve . . . . We didn't expect you to come all the way back
here from Oregon." It would be as fair to hold the curve
was thrown in the other direction . If, in desperation, with
not even a promise of actual employment by the Respon-
dent, the men conceived the notion of getting whatever
they could in cash in order to be able to restore themselves
to whatever their condition had been before leaving
Oregon , the idea was as much the product of the
Respondent's doing as it could be called a voluntary act on
the part of the claimants. The true import of these realities
I Potter said Coffman had the legal document all prepared when he
arrived , and that he was in the lawyer's office only 5 minutes Coffman took
pains to detail at the hearing how the work to prepare the formal releases
was all done after the two men came . This is a small question and of no
importance at all, for there is no claim any work was offered either Potter or
Boggs that day by anyone.
More pertinent , because it fits the undisputed facts with illuminating
clarity, is Boggs ' testimony that in his conversation with the lawyer that day
Coffman asked how did he feel about signing a release - "And, I told him, at
this time-I said , 'Well, evidently we're not gonna get ourjob back, and you
guys can hold out a lot longer than we can , so I guess I'll sign it, too' "
is not changed, as the Respondent would have it, by the
fact Potter became reconciled with his wife while in
Jacksonville. He had moved to Oregon with only two of his
three small children , and said he returned essentially to
resume his old job, and not for any other purpose. There is
no reason for disbelieving this. He would hardly have left
two little children behind otherwise, and certainly if his
purpose was not to work in Jacksonville he could not have
counted on the Respondent to pay for his travel cost in
either direction. Whatever may then have developed in his
family life, it had nothing to do with the Respondent and
its lawful obligation to reemploy him and make him whole
under the Board Order. It was the Respondent that put
him in a position of having to do something extreme and
desperate financially, and it cannot now enjoy a benefit
from the weakness it forced upon its old employee.
Nor is there merit in the Respondent's further assertion
that the ostensible settlement of the whole case with
respect to these two men was approved by the Board's
authorized agent . At more than one step between the
Board's remedial Order and the time of this hearing there
was talk of settlement , but such talk cannot affect or
reduce the legal liabilities of a respondent in a Board
proceeding. Coffman said that he talked to a Board agent
by telephone during April 4 while he was preparing the two
general release documents for Boggs and Potter to sign,
asking about the right kind of language to use . The agent
was in Tampa and Coffman in Jacksonville. There is no
reason for assuming the lawyer told the Board agent no
jobs had ever been offered the claimants. Compliance with
Board remedial orders requires substantive and fair action
by the respondent; it must make its peace formally with the
government , which looks after the public interest , and not
with charging party or with individual discharged employ-
ees.
Gross and Interim Earnings2
Before considering the many criticisms voiced by
Manager Dougherty of the conventional specifications
used by the Regional Director , it will be well to state
certain general principles applicable to all backpay
proceedings. To start with, the entire calculation rests upon
a retroactive restructuring of what would have happened
had the employees not been discharged. Of necessity,
therefore, there is always an element of doubt , if only in
establishing what amounts they would have earned had
they continued to work for the Respondent. They might
later have quit of their own accord ; they might have been
discharged for cause during the backpay period. As to the
vicissitude of their lives in their later search for replace-
ment work , unconventional conditions are often revealed
From Potter's testimony : "The kind of position I was in , I was over a
barrel-I mean , I had to get back to my kids My brother had called me and
told me that my kids was carrying on , and I had to get back there , or either
send for them, or something . That was my intentions when I came to
Florida, was to go to work and send for my kids . But, I was here nearly two
weeks, there , and I was flat busted , so I had to do something."
2 There is no need for comment upon the Respondent's contention that
the Supreme Court decision in N.LR.B. v. Seven -Up Bottling Company of
Miami, Inc, 344 U.S. 344 (1953), should be reversed in this case and
backpay be computed on a total single period basis instead of on a quarterly
basis.
ATLANTIC MARINE , INC. 233
when one looks back on how they may have gone from one
job to another, an unnatural strain is placed on them in
consequence of the discharge. It is difficult precisely to
prove every step they took throughout the backpay period,
for them to recall each and every attempt to find work, or
exactly what happened each and every time they changed
jobs. Such uncertainties out of the past are only to be
expected. But regardless of where these uncertainties he, it
always remains true they were brought about by the
Respondent 's misconduct, by its unlawful act. And this is
why the Board has long held, with court approval, that
once the Regional Director has shown the gross amounts
of backpay due ". . . the burden is upon the employer to
establish facts which would negative the existence of
liability to a given employee or which would mitigate that
liability." N.L.R.B. v. Brown & Root, Inc., 311 F.2d 447
(C.A. 8, 1963). And whenever in the total picture there do
appear uncertainties or ambiguities ". . . the backpay
claimant should receive the,benefit of any doubt rather
than the Respondent, the wrongdoer responsible for the
existence of any uncertainty and against whom any
uncertainty should be resolved." United Aircraft Corpora-
tion, 204 NLRB No. 131; see also J. H. Rutter-Rex
Manufacturing Company, Inc., 194 NLRB 19, and N.L.R.B.
v. Miami Coca-Cola Bottling Company, 360 F.2d 569 (C.A.
5, 1966).
These basic principles, essentially aimed at reaching a
fair resolution of backpay issues , are illustrated when
applied to one of the many contentions made by the
Respondent here . On one of the jobs Boggs found during
his backpay period-U.S. Natural Resources, in Jackson-
ville-he worked for about 5 months, May through
September of 1972. He worked less than 40 hours during 9
of the 20 weeks he remained there; during 10 others he
worked overtime. The Respondent asks that Boggs be
charged-as an interim earning-with what he would have
earned had he worked a full 40 weeks during those 9 weeks
when he did fewer, and in support offered the testimony of
the personnel manager of Natural Resources , who said his
company "normally" scheduled 40 hours each week during
that period, and he knew no reason why Boggs should have
done less, although sometimes employees have valid
reasons for doing so . As it happened Boggs worked more
overtime hours on this job than he lost when he did less
than 40-72.3 hours compared to 64.5. And of course it
brought him more money as interim earnings, for the
overtime must have been paid at time and a half. But the
Government's specifications give the Respondent full
credit for Boggs' overtime earnings as an offset against
what the earnings with the Company would have been. In
the circumstances , it cannot be said that the Respondent
has satisfied an affirmative burden of proving Boggs
incurred any willful losses during his tenure with Natural
Resources.
With these as basic elements of Board law applicable to
this case also, we come to the many contentions raised by
the Respondent.
1. Boggs, discharged on July 10, 1970, had been hired
during the week ending May 10. He had also worked for
the Respondent twice in 1968 and once during 1967.
Assuming I understood Dougherty correctly while he
testified, he was saying that if the periods of Boggs'
successive hires with the Respondent-including the last,
which ended by decision of the Company-be averaged
out, it appears he only works 6 or 7 weeks and no longer on
any job he ever begins. From this, Dougherty continued, as
he noticed how many other jobs Boggs had then held
during his backpay period, he, Dougherty, made a
"guesstimate" and concluded that the man would have left
the Respondent's employ maybe 8 weeks after July 10,
anyway, and therefore never mind any claim for loss of
earnings thereafter. I reject the argument, and the principal
reason is because what would have happened had the
Company not discharged the man is a now pure specula-
tion. All we know with certainty is that Boggs stopped
work here because the Company forced him to it. If the
Respondent wished to take advantage of what it now
assumes as predictable probability, all it had to do was
simply let nature take its course, and not commit unfair
labor practices. Moreover, employment with this company
is not a steady thing; the complement of employees in its
yards fluctuates from 15 up to as high as 80, depending
upon the ebb and flow of available work. Who knows but
that Boggs on earlier occasions may have sought work
elsewhere after being laid off in the normal course of
events with this same company. Indeed, there is also clear
evidence of comparable layoffs at another shipyard where
he worked later, and where low seniority hirees go home
first.
2. There is also a related argument, still aimed at
Boggs, grounded on the fact that during his employment
with this Company-again figuring his 1967 and 1968 time
together with 1970-he worked an average of only 27
hours weekly. Dougherty said that were he preparing the
backpay specifications in this case, he would assume that,
had he not been fired, Boggs would have worked no more
than 27 hours per week throughout whatever the backpay
period might be. I do not see sufficient evidence in this
record to support the assumption and therefore will not
alter the Regional Director's specifications to reflect it.
There is nothing to indicate why Boggs worked less than 40
hours at any time during his employment. While the
evidence does not reveal how many hours he worked each
week while on his later jobs, the Respondent's own exhibit
relative to the Natural Resources Company shows that for
5 months there he averaged over 40 hours weekly. There is
no reason for assuming he would have worked less with the
Respondent.
The same argument , in a sense , is made with respect to
Potter. Dougherty said that from his study of old records,
he found that during the 82 weeks Potter had been with the
Company before he was discharged he worked a total of
2,877 hours, which is an average of 35 hours a week. He
also said that Talbot, Perry, and Hunter (these are the
three shipfitters like Potter, who worked throughout the
backpay period and whose gross earnings are used for
comparison in the specifications) each worked 3,490 hours
during the same 82 week period-or an average of 40 hours
weekly each. In a shipyard of this kind, where the flow of
work is irregular and the number of employees needed
from time to time varies so greatly, there is no definitive
way for knowing why one shipfitter may put in more hours
234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
than another . Certainly the Respondent has offered no
objective evidence to support a retroactive finding that
whatever variables may have affected the earnings of these
four persons in the past of necessity would have reoccurred
in precisely the same pattern in future years. In short, there
is no valid reason for finding now that Potter surely would
have worked less than the other three. As the burden is on
the Respondent for proving its assertions , I find this attack
on the specification unconvincing.
3. As already set out above , the Respondent did not at
the hearing , either through its principal witness, Yard
Manager Dougherty , or its consel , clearly state its position
or positions , or pinpoint its contentions as to why the
Regional Director 's specifications are unreliable. The
many faceted defense to the entire bill for backpay only
emerges obliquely from Dougherty' s testimony, and in
many details is overlapping and indirect . And there is a
direct relationship in the basic facts among many of the
defense assertions , whether called lesser earning opportuni-
ties with the Respondent or willful refusal to work for
anyone else during the backpay period.
For example , Jacksonville Shipyards, Inc., is a large yard
in the Jacksonville area where work comparable to that of
the Respondent is done . At one time or another all three of
the claimants worked there . In his examination of the
claimants at the hearing , counsel for the Respondent had
both Potter and Boggs say they had once, or more than
once , "quit" the Jacksonville Shipyard Company. From
this one descriptive word in the record, taken in isolation
and completely out of context , the Respondent argues
willful loss incurred by the claimants . The fact is that the
Jacksonville Company Shipyard, like that of the Respon-
dent , lays off large groups of employees as a regular aspect
of its activities , and the direct, uncontradicted and
perfectly credible testimony of the two men is that by the
word "quit" they meant a necessary abandonment of
unreliable , short term hire , to look for or quickly accept,
other immediate employment . The real story was told with
particular clarity by Boggs at one point : ". . . I recall I got
laid off [from Jacksonville shipyards] about a dozen times.
I don 't recall voluntarily quitting . Last time I got laid off I
didn't go back to work, and was terminated because I
didn't answer a telegram, because they only had a few
days' work and there wouldn't be any point in going back
.... I went to another company, and I was making less
money, but I was making a paycheck every week." At
another point Boggs said that when he then quit the
3 Again from Boggs' testimony:
Q. Now, when you say you left Jacksonville Shipyards, why
precisely did you leave the shipyards? I'm talking now about the second
quarter of 1971, when you left the shipyards. What was the problem?
A. Well, just so many layoffs I couldn't you'd work a week and
be off a week, and .... If I make $200 this week I can't save a
hundred of it to live on next week-you know. I like to get a paycheck
every week, regardless even if its smaller, and that's not the way it is
down there. You may work a week, and you'll be off 2 weeks.
Q. All right . Now, Canada Dry Bottling Company-you worked
therein the second quarter of 1971.
A. Right, sir.
Q. Why did you leave there?
Jacksonville Shipyard, by failing to respond to its call to
resume work after a layoff , he had already found and was
at work on another job 3
Potter's testimony tells the same story. "When I first
went there, [Jacksonville Shipyard ] with no seniority, I'd
get laid off-I'd get to work a week or 2 weeks , and I'd get
laid off two weeks or so-three weeks or so-a couple
weeks, at times, just depending you know-three or four
days at the time, sometimes longer-my layoffs ." 4 There is
an item of expense in his search for work by Potter; he
traveled to Mobile, Alabama , without success . Still more
from his testimony : "If-if I recall it, I think it was during
a layoff at the Jacksonville Shipyards-yeah, I'm sure it
was during a layoff at the Jacksonville Shipyards that I
went to Mobile Drydock , and took a Navy test. And, I
didn't bum too many rods till the man stopped me and
said-you know-that he didn't think I could pass the
test."
Against this the Respondent offered the testimony of
John Stewart , the personnel clerk of Jacksonville Shipyard.
He produced a document saying that in October of 1970
Boggs had "quit." In fact Potter had substantial earnings at
this shipyard during every quarter from the time of his
discharge to the fall of 1971 . Stewart said nothing to
contradict the testimony of the employees that periodic
layoffs were a common occurrence there. It was also shown
that five times between April of 1971 and June of 1972
Jacksonville Shipyard placed an ad in the Jacksonville
newspaper saying it "Has Requirements For" the usual
category of shipyard employees . I do not deem this fact
probative evidence that any of the three employees here
involved failed to make adequate search for work, or
deliberately did less work than was available for them. The
frequent newspaper calls for help fit logically into the
nature of employment in this, and, apparently, other
shipyards . With repetitive layoffs of personnel , of course
the employer is in constant need of new employees . It does
not follow that any single craftsmen must be held to have
refused to work each and every day.
This same idea of inevitable on and off work opportuni-
ties fits Dougherty's companion argument that the gross
amounts the claimant would have earned is not as high as
set out in the specifications . He said these figures must be
reduced, because during the backpay period there were
lulls in business even with the Respondent.
A. I found out that I wasn' t a soft drink salesman; I couldn't make
any money.
Q. All right. Was the reason you left Canada Dry a financial
reason?
A. Yes , sir, it was. I couldn 't make enough money to live on
because I couldn't sell enough drinks.
4 Also from Potter's testimony:
JtmoB Ricca Go back to Jacksonville Shipyards . Are you saying
that it was not steady employment?
'Ilia Wilms : No, sir, it is not steady employment.
Jvnoe Ricci: You didn't have seniority , so they would let you go
and call you back sometimes . Is that what happened?
THE wimass: Sure, but I couldn't make it on layoffs like that ....
I couldn't make it on layoffs . I mean, I was making hardly enough
money to take care of my family.
ATLANTIC MARINE, INC. 235
Q. Was there any other period of time , other than
this summer period of 1970, when you had a reduction
in work force? -
A. It fluctuates all the time . I can't nail it down
now.
Q. Well, was there any period of time in which you
had enough of a reduction whereby Boggs , Potter and
Johnson would not have had work available , during
any of this backpay period contended by the Board?I
A. Sure , because our work rule varies , particularly
with our repair work . When Atlantic Marine has a job
at Mayport they'll hire 80 or 90 people , and they'll
work 90 days to 100 days , and then there'll be a big
reduction in force . These contracts come and go.
Q. Okay . Is there any definite time that you know
this would have happened?
A. There were some periods , but I don't have them
available to me.
Dougherty even said that the men should be awarded no
backpay through August of 1970 because "Atlantic Marine
had a reduction in force in June of 1970 ... we were
averaging ... around 70-some-odd people; we went down
to about 40 or 50 people . In August 1970. . . our labor
force increased considerably at that time to well over 100."
All this is no more than descriptive comment about how
people work at the Respondent 's shipyard or at any other
of like kind , including Jacksonville Shipyard . The three
claimants worked until their illegal discharge in July of
1970. Of course that particular summer long lull can have
no bearing upon what backpay is due now , to say nothing
of the fact that in the unfair labor practice case itself the
Board has already found the 1970 need for layoffs,
whatever it was, had nothing to do with these particular
employees . The total picture of successive layoffs does
serve, however, to explain much of changing of jobs by the
claimants . Insofar as the Respondent 's attack upon the
Regional Director's specification is concerned , I find no
significance in the fact that these employees may some-
times have used the word "quit" in their recital of the past,
that the word may appear in a notation kept by some later
employer or other, or that layoffs occur as a regular aspect
of certain employers.
4. As in every proceeding of this kind the first figure
that must be established is the amount the discharged
persons would have earned had they not been dismissed. In
keeping with established and long accepted Board practice,
here too it was fixed as the amount which employees in the
same category who were not discharged in fact earned
through the backpay period . Boggs is a welder, Johnson a
carpenter and Potter a shipfitter . Ordinarily it is enough to
start with the earnings of only one man in the category, but
here, because the period was relatively long, three persons
in each category were selected for each discriminatee, and
the average earnings of the three was taken as gross interim
earnings lost by the claimants . And of course the only
reliable , objective evidence to support the figure are the
Company's records . The timecards were used, three
marked welders , three marked carpenters and three
marked shipfitters . The selection of employees for compar-
ison also drew those persons in the three categories who
worked throughout the entire backpay period . In one or
two instances the employees selected did not work
throughout; in those cases further craftsman was selected
for him to complete the picture.
Dougherty quarreled with this method for selecting
comparison figures and establishing gross earnings lost.
His sole argument in support was that some of the
employees whose timecards were used had worked more
hours than the three claimants would have worked,
because they-the comparison employees-were "techni-
cians," or "mold loftsmen," or had passed "navy certifica-
tion test," or were "key" employees, or were "part-time
supervisors." He said this of Hunter and Williamson, two
welders whose records were used, and of Perry, a shipfitter,
also used for comparison. He produced no objective
evidence from company records to support his off-hand
conclusionary statements; he conceded there was nothing
in the Company's records that could have been discovered
by an investigating Board agent to prove his assertions.
Dougherty added the only external indication of special
status in the employees he spoke about is the higher rate of
pay they received. It is to be noted, however, that in every
instance where the comparison craftsmen, whose earnings
were examined, were paid at a higher hourly rate than the
discriminatees were earning while on the job, adjustment
was made in the specifications. The gross interim earnings
now charged to the Respondent have been recalculated as
though the comparison employees had been paid at the
same hourly rate that Boggs, Potter, and Johnson received
in July of 1970. And when the rate of the comparison
employees were raised during the backpay period, those of
the discriminatees were adjusted upward accordingly, i.e.,
in percentage ratio accorded to their own wage scale. There
can be no contention that this last correction was
improper, for Dougherty himself said that the raise that
came later was "an across-the-board increase . . . every-
one in the yard got a increase."
In its Decision and Order the Board found Hunter is a
supervisor within the meaning of the Act, and held the
Respondent responsible for his illegally coercive conduct.
In view of this specific finding of the Board, I think it was a
mistake, or an oversight, to have used Hunter's earnings
for comparison. I will therefore look to the earnings of only
the other employees, designated straight welders on their
timecards, to calculate Boggs' gross interim earnings.
As to Dougherty's remaining statement at the hearing,
aimed at removing Williamson's and Perry's earnings from
the specifications, I find them insufficient evidence to
prove either that they are supervisors as defined in the Act,
or that they of necessity worked more hours than the
discriminatees would have worked. His statements are no
more than general conclusion , self-serving and unsupport-
ed by any objective truth. I think this is what is meant by
the principle that uncertainties are resolved against the
wrongdoer whose conduct made uncertainty possible.
5. When he was fired Johnson, the carpenter, went to
Jacksonville Shipyard; there he worked for less than with
the Respondent. He was laid off and went to a cabinet
company. Now he decided to work for an insurance
company, as a debit agent and insurance salesman. He
remained with the insurance company throughout the
remainder of his backpay period, about a year and a half.
During every one of the quarterly periods after joining the
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
insurance company he earned considerably more than he
earned during the entire third quarter of 1970, the one
during which he was discharged . It seems to be a
contention of the Respondent that Johnson should be cut
off from any backpay compensation from the day he
changed from carpenter to insurance salesman. No
persuasive reason is advanced to support this position. The
situation is quite comparable to a man going into business
for himself in the search for making a better living after
being illegally deprived of his regular employment. There is
nothing to indicate he would have earned more had he
continued to look for carpentry work, or that he refused to
accept any kind of other employment that would have
enabled him to earn more money than the insurance job
brought him.
6. Another attack upon the validity of the specifica-
tions involved Potter. During the fourth quarter of 1971 he
left Jacksonville and accepted employment in Oregon,
where he remained (except for his trip back in March in
response to the Company's abortive reinstatement offer)
until the end of his backpay period . His last employment in
Jacksonville was with the Jacksonville Shipyard. The
Regional Director's specifications , as served upon the
Respondent , do not set out what earnings Potter in fact
had in Oregion ; in their place , instead , are listed the
earnings of another welder , a man named Brandon,
employed by Jacksonville Shipyards, in the same category
and with the same seniority as Potter, but who remained
there throughout the time of Potter's remaining backpay
period. Potter did work in Oregon, but so far as the record
shows, he earned less than he might have made had he
remained with Jacksonville Shipyard. There are three
Wage and Tax Statements from 1972, called forms W-2,
which show that during the year he earned $2132 with one
company, $760 with another, and $1322 with a third. The
specifications concede , in fact expressly state , that Potter
"for personal reasons, quit his job at Jacksonville Ship-
yard." The theory underlying this approach by the
Regional Director is that the Respondent is entitled, and
an offset against Potter's gross backpay, to what Potter
would have earned had he remained at Jacksonville
Shipyard, or, again as stated in the specification, "had he
not voluntarily quit."
It is not an unreasonable approach; Potter is entitled to
be made whole, and he had a right at the same time to live
his life as fortune dictated. The Respondent protests this
method of calculation, but it advanced no persuasive
reason why it should be rejected, or why, as it also seems to
be saying, Potter should be cut off completely from the
moment he left Jacksonville. The record as a whole shows
quite convincingly that he did make constant effort to find
work. During most of the year 1971 he persisted at the
Jacksonville Shipyard; he had earned considerably less
than he used to make with the Respondent. He tried to find
more remunerative work elsewhere during that period but
could not. He was, as stated above, frequently laid off, he
needed more money for personal reasons , and at one time
during 1971 he even tried to hold two jobs simultaneously
in Jacksonville . But most significantly of all , he was always
ready to return to his old job had the Respondent offered
him reinstatement ; his quick trip home in March of 1972
fully establishes that central fact. It must therefore be
found that whatever his problems were in the struggle to
earn an adequate living, they might all have been avoided
had the Respondent not fired him. He ran into domestic
difficulties with his wife; could it be that even that
situation might not have become as aggravated as it did
had he continued to earn a good living? I find the
Respondent has come forth with no proof sufficient for
rejecting the Regional Director's specification on this
point.
Close study of certain exhibits offered by the Respon-
dent, and of Dougherty's total testimony, suggests a further
number of contentions , again not directly articulated,
collectively intended to support a broadside argument that
Boggs especially, and a little bit Potter too, sustained
willful losses in their interim earnings, either by failing to
report some work performed, or deliberately leaving jobs
they had. Some of these pinpointed ideas have already
been considered, such as Potter's employment with
Natural Resources, and the fact that Jacksonville Shipyard
placed ads in the local newspaper when it needed men. For
the rest, I do not think the Respondent has carried its
affirmative burden of proving any of these three men guilty
of incurring willful losses, or falsely reporting their interim
earnings . Failure to make a reasonable search for interim
work is an affirmative defense of backpay liability; the
burden of proof is on the employer. W. C. Nabors Co. v.
N.L.R.B., 323 F.2d 686 (C.A. 5, 1963); N.LR.B. v. Mastro
Plastics Corporation and French American Reeds Manufac-
turing Company, 354 F.2d 170 (C.A. 2, 1965). The first
important fact to be noticed is that in every quarter of
backpay period, each of the discriminatees worked-one
for 7 quarters, one for 10, and one for 11 quarters.
Although they earned less than they would have made with
the Respondent , their earnings were always substantial. No
generalization of underlying indolence can be made here.
1. A Company called Owens Steel produced a record
notation reading that Boggs on October 4, 1971, "failed to
return to work ." Boggs testified, without contradiction,
that a few days earlier he had been hurt on the job, that the
doctor had advised him to do only light work for a while,
and that on October 4 he did return to Owens Steel only to
be told by the manager there was no light work he could
do. He also testified, again without contradiction, that the
very next day he started work with another company called
American Steel Co. He left American Steel because it went
bankrupt.
2. During the fourth quarter for 1971 Boggs left the
Ingalls Shipyard in Pascagoula , Mississippi , and went to
work in Oregon. He explained, quite credibly, that living
costs in Pascagoula made it impossible for him to remain
there, notwithstanding the hourly rate might have been
sufficient were he living elsewhere; he said the cost of
living in Mississippi was double what it was in Jackson-
ville.
3. In the second quarter of 1971 he quit the Jackson-
ville Shipyard because he was being laid off too often. He
went to a company called Fleco; he quit that one too, and
then tried being a salesman for Canada Dry Bottling, only
to find he earned too little as a salesman to live on. He
explained that Fleco was a night job, and he had to give it
ATLANTIC MARINE , INC. 237
up because with three little children he was needed at home
nights.
4. One exhibit produced by the Respondent is an
employment application Boggs filed with Owens Steel on
2-29-71; among the prior employments it says he worked
for a southern Ohio company in Cincinnati from "12-69 to
1-71." At the hearing Boggs said this was a mistake, and
testified he never worked for the Cincinnati company after
his discharge. The entry had to be a mistake, if only
because during 1970 he worked for the Respondent as well
as two other companies, as the specifications show.
5. In order to respond to the Respondent's March 1972
putative offer of reinstatement, Boggs had to quit the job
he had in Oregon; when he returned there he could not
find another and therefore returned to Jacksonville again.
On May 4, he filed an employment application with
Natural Resources; among the past employers listed he put
Nelson Construction interim earnings on the specification.
Does it follow he concealed interim Co.: "date started
1-72." Nelson Construction does not appear among Boggs'
earnings? I think not; I find his explanation credible. That
company is not listed on the Social Security Administra-
tion official report covering Boggs' earnings during the first
6 months of 1972, a document received in evidence. He
testified he had been told he could work part time at
Nelson-he was friendly with the man who owned the
company-but because he found he could get regular
employment at Natural Resources he never worked for
Nelson. He added he listed Nelson to avoid listing
Jacksonville Shipyards, where he had worked, because the
hiring agent told him to be sure not to talk of places where
he, Boggs, had been involved in union activities. "If you go
in to work in a small shop, and you know they're not gonna
hire you if you worked at the shipyard, you just don't put it
down, because they don't hire shipyard people ... it's a
fact of life in this area."
6. Lastly, Boggs quit Natural Resources to work as a
card carrying member of Boilermakers Local 433, at an
hourly rate of $7.13; he increased his interim earnings
considerably after making the change.
Changes in the Specifications
It will be recalled Boggs was paid $324 by the
Respondent in April 1972 when he returned to Jacksonville
expecting reinstatement . No mention is made of this
payment in the specification on the theory this money was
reimbursement for expenses incurred, in the search for
work, literally chargeable to the Respondent.
Potter was paid $364.50 for the same futile trip. In his
case the specifications say his travel expenses total $519,
and therefore lists $154.50 as additional expenses as yet
unreimbursed, and therefore to be deducted from his
interim earnings . In response to an inquiry by a Board
agent, in February of 1973, asking what his expenses had
5 In the event no exceptions are filed as provided by Section 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, recommendations, and recommended Order herein
been to make that trip, Potter detailed exact items totalling
only $421. Asked at the hearing to explain this discrepancy
between the higher and lower figures, he said he could not.
Given the distance the two men had to travel, and the time
they had to remain away from their homes idly awaiting
the Respondent's pleasure, I think both Boggs' claimed
expense-$324-and Potter's-$421, not at all unreasona-
ble. But as there is no explanation for the deferential in
Potter's case-the sum of $98-I think it fair to deduct that
amount from the expenses claimed for him in the
specifications.
In December of 1970 Boggs was working for Jacksonville
Shipyard. He took sick on about December 21, went to the
hospital for a hernia treatment, and was unable to work
again until at least January 14. A representative of that
Company testified he did not return to work until January
19; Boggs worked for no other company during that
month. Although Boggs said he might not have suffered
the hernia had he remained with the Respondent, there is
no probative basis for finding the condition was employ-
ment connected. I find Boggs was ill for a month, unable to
work, and therefore not to be reimbursed by the Respon-
dent for earnings lost during that period. Boggs' gross
backpay for the fourth quarter of 1970 is $1814.11, and for
the first quarter of 1971 it is $1827.89. A fair estimate for
what gross backpay should be eliminated from the
specifications would be the average monthly pay for the 6-
month period-or $607.00. I will accordingly deduct that
amount from his net backpay for those two quarters.
CONCLUSIONS
As precisely detailed in the Regional Director's specifica-
tions, backpay due Potter totaled $7,631.09. Deducting
from that amount $98-an unwarranted item of interim
expense claimed-his final total becomes $7,533.09. John-
son's backpay is $3,517.19 in the specifications and
remains the same. Boggs' gross backpay is recalculated, as
shown on the attached Appendix [omitted from publica-
tion], to reflect only the average earning of welders other
than Hunter. So adjusted, his backpay is reduced to
$8,758.38.
On the basis of the foregoing findings of fact, conclu-
sions, and the entire record in this proceeding, and
pursuant to Section 10(c) of the National Labor Relations
Act, there is hereby issued the following recommended:
SUPPLEMENTAL ORDERS
Atlantic Marine, Inc., and Atlantic Dry Dock Corpora-
tion, their officers, agents , successors , and assigns, shall
pay to each of the individuals listed below the amount set
forth opposite their names: Condon Boggs-$8,758.38;
David Johnson-$3,517.19; Roy Potter-$7,533.09.
shall, as provided in Section 102.48 of the Rules and Regulations, be
adopted by the Board and become its findings , conclusions, and Order, and
all objections thereto shall be deemed waived for all purposes.