Cone Brothers Contracting Co.

National Labor Relations Board - Board Decisions

Apr 20, 1966

158 N.L.R.B. 186 (N.L.R.B. 1966)

186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Cone Brothers Contracting Company and Local 925, Interna-
tional Union of Operating Engineers, AFL-CIO
Tampa Sand & Material Company and Teamsters, Chauffeurs,
Helpers Local Union No 79, International Brotherhood of
Teamsters , Chauffeurs, Warehousemen & Helpers of America
Cone Brothers Contracting Company, Tampa Sand & Material
Company, and Florida Prestressed Concrete Co, Inc and
Local 925 , International Union of Operating Engineers, AFL-
CIO
Cone Brothers Contracting Company and John P Siers
Cone Brothers Contracting Company and/or Tampa Sand &
Material Company, and /or Florida Prestressed Concrete Co,
Inc and Robert Alvarez. Cases Nos 1?-CA-1493, 12-CA-
1477, 12-CA-1492, 12-CA-1674, 192-CA-1687, and 12-CA-1767
Apml 20 1966
SUPPLEMENTAL DECISION AND ORDER
On January 10, 1962, the National Labor Relations Board issued
a Decision and Order in the above-entitled case,1 finding that the
Respondent, Tampa Sand & Material Company, had engaged in and
was engaging in certain unfair labor practices, and directing it, enter
aha, to offer immediate reinstatement to three unlawfully discharged
employees and, upon application therefor, to reinstate certain unfair
labor practice strikers, and to make these employees whole for any
loss of pay sustained as a result of their discharge or denial of rem-
statement Thereafter, the Board's Order was enforced by the United
States Court of Appeals for the Fifth Circuit 2 Subsequently,
Respondent filed a petition with the United States Supreme Court
for a writ of certiorari, which the Court denied 3
On August 24, 1964, the Acting Regional Directoi for Region 12
issued and served upon the parties a backpay specification and notice
of hearing The Respondent filed an answer to the backpay specifica-
tion on October 8, 1964
On November 12 to 27, 1964, Trial Examiner William Seagle con-
ducted a hearing to determine the sufficiency of Respondent's conduct
in respect to reinstatement and to ascertain the amount of backpay
owing under the Board's Order as enforced On May 10, 1965, the
Trial Examiner issued his Supplemental Decision, attached hereto,
which awards backpay to employees and contains findings and recom-
3135 NLRB 108
2 317 F 2d 3
3 375 U S 945
158 NLRB No 15
CONE BROTHERS CONTRACTING COMP&NY 187
mendations regarding Respondent's reinstatement obligation There-
after, Respondent filed exceptions to the Trial Examiner's Supple-
mental Decision, a brief in support of these exceptions, and a brief
in support of certain portions of the Decison The Geneial Counsel
filed exceptions to the Supplemental Decision, a brief in support of
these exceptions, and an answering brief to Respondent's exceptions 4
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with these cases to a thi ee-member
panel [Chairman McCulloch and Members Fanning and Brown]
The Board has reviewed the rulings of the Tiial Examinee made 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 Trial Examiner's Supplemental
Decision, the exceptions, and briefs, and hereby adopts the findings,
conclusions, and recommendations of the Trial Examiner, with the
following modification
Employees reinstated after the strike were advised by Respondent
that they would have to be on the company payroll for a year before
again becoming eligible for benefits under Respondent's group medi-
cal insurance plan 8 Thereafter, within the year, Mathis and Swoboda
incurred medical expenses for which they were not reimbursed under
the plan The Trial Examiner held that as former strikers they
were not entitled to such reimbursement In so concluding, he found
that the General Counsel had not shown that Respondent was respon-
sible for the 1-year denial of insurance He also found that the insur-
ance loss was part of the economic detriment voluntarily accepted by
employees who participated in the strike
The issue posed by the Trial Examiner's findings is whether employ-
ees who returned to work following the strike were denied job benefits
by Respondent in a manner inconsistent with the full restoration of
their status quo as envisaged by our reinstatement order We find
that there was such a withholding of benefits Thus, at the time of
the discriminatory terminations and the strike which followed as a
result, the right to insurance coverage had accrued to the employees
This insurance coverage represented a job benefit which arose from
the employment relationship and which had vested in the employ-
ees as of the date of the unlawful discharges and protest strike It
4 No objections are raised to Respondent s motion to amend its exceptions and General
Counsels motion to amend its brief in support of exceptions The motions are hereby
granted
5 A brochure of the Company states that "An employee who leaves the company on his
own accord and later returns must again complete 12 or more consecutive months' em
ployment before he is eligible for insurance "
188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
could not, of course , be lost to employees thereafter by virtue of an
unlawful termmation ,6 or forfeited by participation in an unfair
labor practice strike 7 In the latter connection, it is tine that strikers
may incur certain economic losses, such as wages whose sole aspect
is monetary compensation for work performed during the employ-
ment relationship 8 But strike activity does not entail acceptance
after the strike of a smaller quantum of vested job rights and
privileges
If Respondent had reinstated the employees with their insurance
rights intact, as it should have, Mathis and Swoboda would have
been covered by the medical insuiance plan at the time they incurred
their medical expenses during the 1-year requabfication period
imposed upon them Because of their incomplete reinstatement,
Mathis and Swoboda sustained losses for which they should be reim-
bursed in this pioceeding We shall order that they be made whole
for those expenses they would have recovered under the insurance
plan absent Respondent's requalification i equirement, less what they
would have paid to maintain the insurance coverage, with interest
thereon at the rate of 6 percent per annum, from I he date of the
Trial Examinei's Supplemental Decision
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, Tampa Sand & Material Company, Tampa
Florida, its officers, agents, successors, and assigns, shall
1 Offer reinstatement and pay to the employees listed in the Appen-
dix to the Trial Examiner's Supplemental Decision as net backpay
the amounts there specified, with interest, as requned by the Trial
Examiner's Supplemental Decision
2 Notify the employees offered Ieinstatement if presently serving
in the Aimed Forces of the United States of their right to full rein-
statement upon application in accordance with the Selective Service
Act and the Universal Military Training and Service Act, as amended,
after discharge from the Armed Forces
3 Reimburse Otho Mathis and Joe Swoboda for the medx al
expenses incurred in the year following their reinstatement which,
absent the requalification requirements, would have been covered by
the Respondent's group medical insurance plan, less the amount of
premiums each employee would have paid to maintain the insurance
coverage, with interest at the rate of 6 percent per annum, from the
date of the Trial Examiner's Supplemental Decision
See Deena Artware, Incorporated, 112 NLRB 871, enfd 228 F 2d 871 (C.A. 6)
* Great Dane Tradlera, Ino,180 NLRB 438
Cf Quality Oaatinge Company v N L R B 325 F 2d 36 (C A 6)
CONE BROTHERS CONTRACTING COMPANY 189
IT IS FURTHER ORDERED that the rights to reinstatement and backpay
of certain employees, as set forth in the Trial Examiner's Supple-
mental Decision, be reserved for periods beyond the scope of this
Supplemental Decision and Order.
TRIAL EXAMINER'S SUPPLEMENTAL DECISION
STATEMENT CONCERNING THE ORIGIN OF THE PROCEEDING
On May 26, 1961, Trial Examiner George A. Downing issued his Intermediate
Report in the above-entitled proceeding, finding that the Respondents, Cone Brothers
Contracting Company, herein called Cone Brothers, and Tampa Sand & Material
Company, herein called Tampa Sand, had engaged in unfair labor practices in viola-
tion of Section 8(a) (1) and (3) of the Act. On January 10, 1962, the Board issued
its Decision, affirming, as modified, the Trial Examiner's findings, conclusions, and
recommendations, and entered its Order directing that the Respondents remedy their
unfair labor practices., On May 8, 1963, the U.S. Circuit Court of Appeals for the
Fifth Circuit issued its decision affirming the Board's Order in full,2 and on July 19,
1963, the court entered its decree enforcing the Board's Order.3 Certiorari was denied
by the Supreme Court of the United States on December 9, 1963.4
The present backpay proceeding involves only Tampa Sand, since Cone Brothers
was found guilty only of 8(a)(1) violations. So far as Tampa Sand is concerned,
however, it was found guilty not only of 8(a)(1) violations but also of Section
8(a)(3). The latter violations consisted of the discriminatory discharges of three of
the Tampa Sand mixer drivers, Otto Mathis, Woodrow Wilson, and Wyman Davis,5
whom the Board ordered reinstated with backpay in accordance with the usual
requirements, the backpay to run from May 26, 1960, to the date of the Respondent's
offer of reinstatement. As a result of the discharge of Mathis, Wilson, and Davis, a
strike was precipitated at Tampa Sand on May 27, 1960. Since this was an unfair
labor practice strike, the Board also ordered the reinstatement of the strikers with
backpay to run from 5 days after the dates on which they applied for reinstatement to
the date of the Respondent's offer of reinstatement, less their net earnings, if any,
during this period. Tampa Sand was also directed to dismiss "if necessary" any
persons hired by it on or after May 27, 1960, who were not in its employ on that date.
Actually, Tampa Sand did not await the Board's or the court's decision before rein-
stating Mathis, Wilson, and Davis and commencing the reinstatement of most of the
strikers, who, when identified, turned out to be 26 in number.6 Like the discrimi-
natees, all of the strikers were also mixer drivers, except Chester P. Green, who was a
hatcher; Howard S. Grey, who was a dispatcher; Andrew S. Johnson, who was a batch
bin laborer; and John D. Owens, who was a forklift driver in the block plant.
Although not required to do so, Mathis, Wilson, and Davis applied for reinstate-
ment on June 7, 1961, and were reinstated by Tampa Sand on June 13, 1961. Most of
the strikers also applied for reinstatement on June 7, 1961, and the rest of them, with
two exceptions, 7 applied for reinstatement before the end of August 1961, and had
been reinstated or offered reinstatement before the end of that month, except for
Howard S. Grey and Charles F. Pitts, who were denied reinstatement because of
alleged misconduct.
After the Board' s Decision had received judicial enforcement negotiations com-
menced to settle the amount of backpay due to the 29 claimants. The parties were,
1 The Board 's Decision Is reported in 135 NLRB 108.
The court's decision is reported In 317 F. 2d 3
$ The court 's decree was amended July 31, 1963, to add the name of Florida Prestressed
Concrete Co., Inc., herein called Prestressed.
* The action of the Court Is reported in 375 U. S. 945.
5 The Board, in agreement with the Trial Examiner , found that Tampa Sand had engaged
In a scheme of placing these employees In a position of either crossing the picket line of
the other Respondent Employers, or being placed in a "quit" status , and that when they
refused to cross the picket line they were terminated.
6 Except where the context indicates otherwise , the term "strikers" will be used to
include Mathis, Wilson, and Davis, who, indeed , were also strikers.
7 The two exceptions are Leroy Smith and Dwight Stringfellow whose cases are con-
sidered in detail in/re.
190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
however, unable to reach agreement, and on August 24, 1964, counsel for the General
Counsel issued his backpay specification and notice of hearing in the present
proceeding.
Pursuant to this notice, Trial Examiner William Seagle held a hearing on the back-
pay specification at Tampa, Florida, between the dates of November 12 and 27, 1964,
inclusive.
Upon consideration of the pleadings, consisting of the backpay specification and the
Respondent's answer, the evidence adduced at the hearing; the posthearing briefs filed
by both counsel for the General Counsel and for the Respondent, and in view of my
observation of the demeanor of the witnesses, I hereby make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE ISSUES AS TENDERED IN THE BACKPAY SPECIFICATION
Despite the fact that Tampa Sand actually reinstated or offered reinstatement to
almost all of the claimants, and that seven of them were still working for the Company
at the time of the hearing, it is the contention of counsel for the General Counsel that
not a single one of them has been properly reinstated in accordance with the require-
ments of the Board's Order, and of the court's decree and that the backpay is still
continuing with respect to all of them, except in the cases of Louis M. Coppola and
Theodore R. Gardiner, who died, respectively, on March 15 and August 18, 1964; of
Wyman Davis, who is conceded to have been discharged on July 21, 1961, for just
cause; of George Hendry, who suffered a stroke on October 24, 1962; of Dwight
Stringfellow, whose backpay period is conceded to have terminated sometime in
May 1963; and of Joe Swoboda, who had a heart attack on May 26, 1962, and whose
backpay period is conceded to have terminated on September 30, 1962.
In paragraph 11 of the backpay specification, counsel for the General Counsel
advances as the general basis for his seemingly paradoxical position the assertions that
the reinstated strikers earned less than previously and suffered loss of various benefits,
and that they were subjected to more onerous terms and conditions of employment.
He then proceeds to develop no less than 10 different theses in support of his conten-
tion that no effective reinstatements were accomplished; namely, tree loss of insurance
benefits; the imposition of the requirement that each returning striker pass a physical
examination, although such examinations had not previously been required; discrimi-
nation in the giving of physical examinations; the requirement that such of the return-
ing strikers as were mixer drivers clean their trucks, under penalty of a loss of a
yardage bonus, although no cleaning solvents or chemicals were provided; the assign-
ment of older and more wornout trucks to the returning strikers, while new or replace-
ment trucks were assigned to nonstrikers or striker-replacements; the assignment of
returning strikers to the 13th Street batch bin where they could more readily be
subjected to surveillance; the creation of an impression among the returning strikers
that they might suffer discrimination. in the future because of their former status as
strikers; the reduction in earnings of the returning strikers due to the failure to dismiss
striker-replacements as the Board had ordered; the failure to allow the returning
strikers sufficient time to report to work in order to encourage them to reject reinstate-
ment; and, finally, the diversion of ready-mix cement business to affiliates of Tampa
Sand in order to reduce the wages paid to the discriminatees.
In paragraph 11 of the backpay specification, counsel for the General Counsel
failed, however, to put any particular claimant in any particular category. Even in
the appendixes to the backpay specification he failed, in the case of a majority of the
claimants, to indicate or explain why the backpay of these claimants should be con-
tinued. Fortunately, the Respondent's answer revealed in many cases the nature of
the issues when it was pleaded that particular claimants had been discharged for just
cause or had declined reinstatement. Although the statute of limitations was also
pleaded as a bar to the consideration of many of these cases, counsel for the General
Counsel insisted on pressing them even though years had elapsed in some cases
between the dates of the particular claimants' reinstatement and their subsequent
discharges. When asked to remedy the vagueness of the backpay specification, the
General Counsel could only state that, whenever a particular reason for continuing
backpay did not appear, it was relying on the failure to dismiss the reinstatements, and
the diminution of the claimants' earnings as a result of this failure In fact, it enu-
merated no less than 21 of the claimants as falling in this category, in addition to
others.
The General Counsel and Respondent also clash on the backpay formulas that are
to be applied to determine the amount of backpay to which the claimants may be
entitled. In the case of Howard S. Grey, who was a dispatcher, the General Counsel
CONE BROTHERS CONTRACTING COMPANY 191
would apply the actual quarterly earnings of Edward S. Dunning , allegedly a com-
parable employee, while Respondent would award to Grey only 85 percent of
Dunning's average quarterly earnings. In'the case of all the other claimants, the
General Counsel alleges that the appropriate formula for computing the earnings that
they woud have received, and would continue to receive where their backpay periods
continue, would be to apply the respective claimant's actual weekly average earning
based on a period of employment up to 48 weeks immediately preceding the strike 8
to each quarter- or portion thereof of that claimant's backpay period. Respondent
would apply in the case of these same claimants, on the other hand, a formula which
would give each driver, during his backpay period a proportionate share of the total.
driver's payroll based on his prestrike participation in this payroll 'for the first 5
months of 1960. However, in the case of Andrew J. Johnson, who was a batch bin
laborer at the Skipper Road batch bin, Respondent's counsel would measure his
backpay by the earnings of another employee, Joseph Franklin, who, presumably, was
also a laborer. Similarly, in the case of Julius L. Wigham, who in the relevant
appendix to the Respondent's answer is also described as a laborer, Respondent would
measure his backpay by the earnings of Vannie Franklin, who, presumably, was also
a laborer, but the description of Wigham as a laborer is erroneous, for he was
actually a mixer driver.
II. THE ISSUES IN RELATION TO THE LIMITATIONS OF A BACKPAY PROCEEDING
Sections 102.52 and 102.53 of the Board's Rules and Regulations, Series 8, as
amended, provide that if, after the entry of a court decree enforcing an order of the
Board "directing the, payment of backpay," it appears that a controversy has arisen
"concerning the amount of backpay which cannot be resolved without a formal pro-
ceeding," the Regional Director shall issue and serve on respondent, in the name of
the Board, a backpay specification, showing in detail for each employee "the backpay
periods broken down by calendar quarters, the specific figures and basis of computa-
tion as to gross backpay and interim earnings, the expenses for each quarter, the net
backpay due, and any other pertinent information."
Respondent contends that the issues tendered by the General Counsel transcend
the limits of a backpay proceeding, since they involve issues of discriminatory prac-
tices rather than questions concerning backpay. With respect to many of the alleged
discriminatory practices the statute of limitations is pleaded as a bar, and it is claimed
that it would be a denial of due process to allow the General Counsel to avoid its
burden of proof in what otherwise would be a complaint case by labeling it a "back-
pay" proceeding. It is contended, moreover, that the very allegations made in para-
graph 11 of the backpay specification were made the subject matter of charges pre-
viously filed and withdrawn by the Union with the approval of the Regional Director.'
Such withdrawal would not in itself make the subject matters of the charges res
adjudicata.9 In the light of the evidence taken at the hearing, however, the other
contentions of Respondent would seem to be justified to a considerable extent. The
General Counsel does seem to treat the backpay proceeding as if it were a complaint
proceeding, and in its brief it finally even demands that the Respondent "be required
to do more than pay money-it must be required to cease and desist from continuing
the host of onerous and discriminatory practices it has instituted to defeat reinstate-
ment and perpetuate its wrongdoing." It is apparent, however, even from the back-
pay specification itself, that the General Counsel is charging the Respondent in many
instances with allegedly discriminatory practices, which either arose after the rein-'
statement of the strikers and which applied not merely to the strikers but to all
employees, or which, if confined to particular strikers, occurred long after their rein-
statement and were wholly unconnected with any events occurring prior to the strike
or at the time of their reinstatement, or which cannot properly furnish the basis for
continuing backpay indefinitely beyond the date of reinstatement. • -
8 The average earnings would have been "determined over a 52-week period. However,
the period was limited to 48 weeks in the present case simply because the employment
records turned over to Compliance Officer Strickland did not cover more than this 48-week
period. .
U It is well established that the administrative dismissal of a charge does not constitute
an adjudication. See Jersey City Welding & Machine Works, Inc., 92 NLRB 510; Textile
Machine'Works, Inc., 96 NLRB 1333, 1335; Swanson's Inc., 125 NLRB 407, 408; W. Ralston
& Co., Inc. and Technical Tape Corporation, 131 NLRB 912, 913; N.L.R B. v' Baltimore
Transit Company, 140 F. 2d 51, 54-55 (CA. 4), cert. denied 321 U S 795 ; N L.R.B. V.
T. W. Phillips Gas & Oil Co:..'141 F. 2d 304,,305-306 (CA 3)',; Olson Rug Company v.
N.L.R.B., 304 F. 2d 710, 714 (C.A. 7). 1 .
192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
To the extent that the charges against the Respondent were true , it would be, of
course , in contempt of the court's decree , which runs in perpetuity and which forbids
not only the specific unfair labor practices of which the Respondent was adjudged
guilty but also any like or related practices that would violate the guarantees of
Section 7 of the Act. But, if the 6-month period of limitation prescribed in Section
10(b) of the Act has run on such charges, it would seem that the Board would be
without jurisdiction to remedy them.
The relationship between the Board and the circuit courts of appeals in securing
enforcement of Board orders is simple in cases which do not involve reinstatement
and backpay. In such cases failure to comply with an order of the Board which has
been enforced judicially can be remedied only by bringing a contempt proceeding.
A familiar example would be a persistent refusal to bargain. In cases involving rein-
statement and backpay, however, the Board's order, even after it has been judicially
enforced, would seem to be only interlocutory, so long as the amount of the backpay
has not been definitely determined, and this cannot be done until questions relating
to the right to reinstatement have been resolved.
It seems to have been doubted at one time whether the Board could determine
such questions when the case had not been explicitly remanded to the Board by the
reviewing court for such purpose.10 But it now seems to be universally agreed that
such a remand is not necessary, and that the Board may proceed sua sponte to deter-
mine the questions of reinstatement and backpay, subject, however, to further review
by the court which entered the order if its jurisdiction should be invoked 11
In some early cases doubts have been expressed nevertheless concerning the extent
of the Board's powers in a backpay proceeding. A distinction has been drawn in
these cases, apparently, between the administrative function of working out the
details of reinstatement and backpay, and the judicial function of punishing acts of
contumacy which amount to contempts of the court's decree. Thus, in The Wallace
Corporation v. N.L.R.B., supra, the court, while leaving it to the Board to work out
in general the problems of reinstatement and backpay, reserved to itself the deter.
mination of the question whether the employer had declined to reinstate five employ-
ees in accordance with its decree. If such was the case, the court reasoned, the
employer would be in contempt and, declared the court, it was not disposed "to farm
out its powers over contempt to' an administrative agency." So, too, in N.L.R.B. v.
Bird Machine Company, supra, while the court held that the Board could work out
the details of reinstatement and backpay, it declared nevertheless that if the Board
was contending that, although the discriminatee's position remained in existence, the
employer had failed to offer him reinstatement to that position, "the issue thus
tendered is whether the respondent is in contempt of our decree. Determination of
questions of fact on this issue is not a proper administrative function of the Board
but becomes the function of this court, in contempt proceedings."
Such qualifications of the Board's jurisdiction in backpay proceedings, however,
seem also to have been generally abandoned. In N.L.R.B. v. Brown and Root, Inc.,
supra, it was recognized that the Board could determine such questions as whether
strikers were available for employment or whether jobs were available for them.
In N.L.R.B. v. Reliance Clay Products Company, supra, which involved an economic
strike, the court held that the Board could determine in subsequent administrative
proceedings the question whether strikers had been permanently replaced. An even
broader declaration of the scope of the Board's functions was made by the same
court in N.L.R.B. v. J. H. Rutter-Rex Manufacturing Company, supra, as follows:.
The numerous questions which the Employer insists now plague it, such as the
possibility of non-strikers voluntarily terminating employment with subsequent
replacement during the strike, the availability of work at various times con-
sidering the nature of these manufacturing operations, the number of strikers
who may have declared their unwillingness to return to work , the calculation of
10 See, for Instance, N.L.R.B. v. New York Merchandise Company, Inc., 134 F. 2d 949
(C.A. 2) ; and The Wallace Corporation v. N.L.R.B., 159 F. 2d 952 (C.A. 4).
u See N.L R B. v. Bird Machine Company, 174 F. 2d 404 (C.A. 1) ; N.L,R.B. v. Went-
worth Bus Lines, Inc., et aT ., 191 F 2d 849 (C.A 1) ; NL.R.B. v. Brown and Root, Inc.,
et al., 203 F. 2d 139 (C.A. 8) ; N.L.R.B. v C.C.C. Associates, Inc., 306 F. 2d 534 (C.A. 2) ;
Home Beneficial Life Insurance Company, Inc . v. N.L.R.B ., 172 F . 2d 62 ( C.A. 4) ; N.L.R.B.
v. Norfolk Shipbuilding & Drydock Corporation, 172 F. 2d 813 (C .A. 4) ; N.L.R.B. v. Royal
Palm Ice Company, 201 F. 2d 667 ( C.A. 5) ; N.L .R.B. v. J . H. Rutter-Rem Manufacturing
Company, 245 F. 2d 594 (C.A. 5) ; N.L.R.B. v. Reliance Clay Products Company, 245
F 2d 599 (C.A. 5) ; N L.R.B. v. Deena Artware, Inc., 228 F. 2d 871 (C A. 6) ; N.L.R B. v.
Oman Construction Co., 338 F. 2d 125 (C.A. 6).
CONE BROTHERS CONTRACTING COMPANY 193:
the lost pay if any, the misconduct of some specified strikers which might afford -
a basis for denying reinstatement, are not foreclosed. Their resolution can
come either in further administrative proceedings before and through the Board:
or in direct contempt proceedings, if brought before us, for failure to comply
with our order decreeing enforcement.
In United States Air Conditioning Corporation, 141 NLRB 1278, the most recent
case, the Board itself asserted a very broad administrative jurisdiction to effectuate
proper reinstatement. In this case the respondent had gone through the motions of
reinstating five employees but within a matter of days or weeks had transferred them,
to other, far less desirable, work, which in some instances led the employees to quit.
The Board declared that "Respondent's liability as to these employees was not tolled
by its token reinstatement of them on August 1, 1960, but continues to accrue until'
the Respondent offers them reinstatement to their former or substantially equivalent -
positions. Accordingly, the Regional Director is instructed to take such steps as may
be necessary to insure a proper reinstatement of these discriminatees, and to deter-
mine the amounts of additional backpay if any which may be due them. Payment
of backpay herein determined to be due shall not, however, await such further
action." [Emphasis supplied.] In enforcing the Board's backpay order in this case,
which is reported in 336 F.2d 275 (C.A. 6), the court declared that the power of the
Board "to enter supplementary orders for reinstatement and backpay and for such
purpose to determine the adequacy of compliance by respondent" could not be,
disputed.
This seems to be a recognition, at least by the Sixth Circuit, that the Board pos-
sesses a general jurisdiction to determine not only the amount of backpay but also,.
the question of good-faith compliance with the requirement of reinstatement on
which the amount of backpay is dependent. More difficult questions arise, however,
when reinstatement is effected but the employer, at a considerably later time, com-
mits an act which seems to undo the reinstatement. I now proceed to consider
seriatim the general theses advanced by the General Counsel as a basis for conclud-
ing that the reinstatements of the strikers were ineffective. However, no considera-
tion is given to the thesis that the Respondent diverted ready-mix cement business to
its affiliates in order to reduce the wages of the discriminatees, since no proof what-
soever was offered in support thereof.
III. THE GENERAL THESES OF THE BACKPAY SPECIFICATION
A. The alleged threat of future discrimination
From a chronological point of view, the first thesis that must be examined is that;
the Respondent sought to create the impression among returning strikers that it
might discriminate against them in the future by advising them that it did not
believe that they were legally entitled to return to work as unfair labor practice
strikers, and that.their replacements would be preferred if the legal issue should be-
decided in its favor.
The Respondent never sent letters to any of the strikers offering them reinstate-
ment. The offers were made orally either by personal contact or by telephone
through either Charles Poe himself, who was the plant manager, or his assistant,.
G. W. Stephens,12 known to the employees as Steve. There is nothing to show that in,
any of the interviews or telephone conversations any of the strikers was told that
there were any conditions attached to the offer of reemployment. However, after
reporting to work, each of the strikers was given a mimeographed form letter, which
read as follows: 13
You have stated that you are abandoning the strike and want to return to,
work. You may report to (place and time designated).
By putting you to work we do not wish you to think that we believe you are
legally entitled to return to work as an unfair labor practice striker or that we-
have any responsibility to you.
We believe that you have been legally replaced. The unfair labor practice
case is on appeal presently. If the N.L.R.B. or the courts should ultimately
decide that your former job was legally filled by a replacement, he will be given;
preference over you at that time.
TAMPA SAND AND MATERIAL CO.
12I spell the name as It appears in the transcript. In its brief, however, Respondent
uniformly refers to "Stephens" as "Stevens."
is It Is In evidence as General Counsel's Exhibit 4.
221-731-67-vol. 158-14
194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At least nine of the reinstated strikers testified that they were handed copies of
this form letter on the same day that they returned to work 14 Otho Mathis, one
of the three discriminatees, testified that he received a copy of the same letter in
the mail `a couple of days" after he returned to work Presum ibly, any returning
striker received the same form letter
The General Counsel seems to consider that the Respondent made two offers of
reinstatement to the strikers, the first being an oral one, and the second being the
mimeographed form letter handed to most of them on their return to work Appar-
ently, it is unhappy about the oral offers but there would seem to be no requirement
that an offer of reinstatement to be valid must be made in writing As for the
second offer in writing, he regards this as a mere "tidbit," since in effect it retracted
the oral offer by reason of its "disclaimers of responsibility joined with veiled
threats " It also finds in the statement in the letter that the replacements would be
given preference if the Respondent won its case "a flat prediction of future
discrimination "
It would seem to be difficult to understand the logic of this contention If the
Respondent had won its case, the retention of the replacements would not have been
discriminatory It could not have been engaged, therefore, in making a prediction
of future discrimination Actually, the only offers of reinstatement were the oral
ones The mimeographed form letter was not an offer of reinstatement but a
reservation of legal rights Issued at a time when neither the Board nor the court
had reviewed the Intermediate Report of the Trial Examiner, the Respondent was,
obviously, entertaining hopes that it could still prevail, and it was seeking to preserve
whatever rights it still might have Despite `the flat prediction of future discrimina-
tion," the returning strikers subscribed apparently to the philosophy that sufficient
unto the day is the evil thereof They continued their employment and they may
not be heard to say several years later that they are still entitled to backpay because
of the mimeographed form letter
B The assignments to the 13th Street batch brn
Tampa Sand operates from four batch bins, known as the 13th Street batch bin,
the Skipper Road batch bin, the Anderson Road batch bin, and the 301 batch bin
The whole ready-mix business is controlled from the 13th Stref t batch bin where
the dispatch office is located, the other bins are outlying ones
In only one of the appendixes to the backpay specification-the one relating to
the claim of Harold G Beunk-is any mention made of an assignment to the 13th
Street batch bin Yet, although Beunk was called as a witness, he was not even
asked whether he had been assigned to the 13th Street batch bin, and, although he
mentioned a number of complaints in the course of his testimony, assignment to the
13th Street batch bin was not among them However, one of the mixer drivers,
John S Morrow, did testify that he was assigned to the 13th Street batch bin after
his reinstatement, although he had been working at the Skipper Road batch bin prior
to the strike, and in the course of one of Poe's appearances on the stand, the General
Counsel elicited from him the testimony that most of the returning strikers were
probably assigned to the 13th Street batch bin On the basis of this evidence, and a
showing that the number of drivers at the 13th Street batch bin in June 1961, when
most of the strikers were reinstated, was a few percentage points higher than in
June 1960-the increase was from approximately 48 percent to approximately 51
percent-the General Counsel considers it to be established that they were put there
for purposes of surveillance Actually, there is nothing to show that the slight
increase was not due to shifts in demand at the different batch bins As the number
of drivers at the Skipper Road batch bin steadily declined, it would be normal to
expect increases at one or another batch bin As a matter of fact, the 13th Street
batch bin always employed the greatest number of drivers 15 Certainly, if it is to
be concluded that the returning strikers were put at the 13th Street batch bin to
subject them to surveillance, there should at least be some evidence that surveillance
actually occurred Of this there is not a scintilla I find therefore, that the rem-
statement of employees at the 13th Street batch bin was not effected to facilitate
surveillance
14 These nine strikers weie Harold G Beunk Robert E Glausier Andrew James John
son feather W Lumpkin John S Moriow John D Owens Dee Toran Woodrow Wilson,
and Allan W Wright
11 4s shown by Respondent s Exhibit 16 Driverb at Batch Bins
CONE BROTHERS CONTRACTING COMPANY 195
In view of this negative conclusion , there is no occasion to decide either whether
reinstatement at another batch bin would satisfy the requirements of the Board's
Order even if the motive was unlawful or whether if its purpose was surveillance it
was an unfair labor practice on which the statute of limitations had run Moreover,
since the victims of any unlawful conduct would remain unidentified with the single
exception of Morrow, there would be no basis for continuing their backpay
C The alleged assignment of older, wornout trucks to returning strikers
In support of its allegation that the returning strikers were assigned older and
defective trucks, the General Counsel relies on the testimony of only two witnesses,
Beunk and Toran Beunk testified that he drove a No 40 truck before the strike,
which was a 1959 Mack, and that on his reinstatement he was assigned to drive a
No 92 truck Asked to state the model year of No 92, he replied " I have no idea
I'd say it was along about a '54 or '55-1954 or 1955' Actually this was a good
deal of an exaggeration, for it was actually a 1957 Mack 16 Beunk also testified
that the tiuck he drove after his return to work had defective brakes and that,
although he reported this condition to Poe about five times, the brakes were never
repaired Poe denied this, and, although I do not have complete confidence in him
as a witness, I credit his testimony in this respect I find it difficult to believe that
Beunk would be allowed deliberately to drive a concrete mixer truck weighing over
55,000 pounds on the highway if it had defective brakes 17
As for Toran, the reason that the General Counsel relies on his testimony is
apparently that he called the trucks which he drove after reinstatement "old junks "
Toran has the distinction of having been fired by the Respondent twice after his rein-
statement 18 He is what is known as a "character ," and he perpetually convulsed
everyone at the hearing with laughter over his exploits, misfortunes, and scrapes
The difficulty in accepting Toran's testimony is that to him all motor vehicles were
junks It seems that one of his interim employers was none other than Elvis Presley
for whom he acted as chauffeur during the filming of one of Presley's pictures In
the course of testifying about this employment , Toran at one point exclaimed "I was
Elvis Presley's chauffeur, I was driving that old junk Cadillac of his " The cold
record establishes that after his reinstatement Toran drove a 1960 Chevrolet, which,
in 1961, could hardly have qualified as an old junk The General Counsel seems to
find great significance in the fact that this 1960 Chevrolet truck was sold by the
Respondent in January 1963 but the sale hardly proves that it was an old junk either
in 1961 or 1963
The record shows that most of the reinstated strikers were given trucks to drive
of the same model year as before the strike, and that in most instances they drove
even the same trucks as before the strike While a few of the returning strikers
were assigned somewhat older trucks, there were also others of them who were
assigned newer trucks In October 1962, A W Wright was driving the newest truck
in the fleet , and in July 1964 , Robert E Glausier was driving next to the newest
truck in the fleet
I find no credible and convincing evidence that Poe deliberately assigned the trucks
of the oldest vintage to the returning strikers As the strike had been long and
protracted , each returning striker could hardly expect to get the same truck that he
had been driving before the strike In fact, there were in the fleet a considerable
number of even older trucks than those assigned to the strikers The Respondent
was not required to give each returning striker his prestrike equipment in order to
effect proper reinstatement
D The truck-cleaning requirement
The Tampa Sand mixer drivers were required to clean their trucks both before and
after the strike The penalty for the persistent neglect of this requirement was the
loss of the yardage bonus
The only significant difference in practice between the prestrike and poststrike
period was that before the strike the Company supplied the mixer drivers with acid
with which to clean their trucks and the trucks were cleaned weekly on Saturday
1s As shown by Respondent 's Exhibit 18
17 Beunk's case is discussed further antra
18 These discharges are discussed in the section infra on the individual cases
'196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
-Acid was no longer supplied after October 1963, however, when the Company had
all trucks in the fleet sandblasted and repainted. The fleet having been refurbished,
it was felt that if the trucks were cleaned daily they could be kept clean simply by
the use of water. Another reason for making this change was that it had been found
that the use of acid tended to corrode the trucks. Of course, some drivers who
neglected to clean their trucks daily found that they could get them clean again only
by using acid which they themselves had to purchase. However, there is no record
that any employee was ever penalized for not keeping his truck clean after all the
trucks had been sandblasted and repainted.
In contending that more onerous requirements for cleaning the trucks were insti-
tuted after the reinstatement of the strikers, in order to penalize them, the General
Counsel overlooks the salient fact that the discontinuance of the use of acid, of
which he complains, actually occurred almost 21 years after the reinstatement of
the strikers, and the change in the requirements cannot, therefore, be nicely cor-
related with the termination of the strike and the return to work of the strikers.
Since this is not possible, I cannot conclude that the change was in any way motivated'
by a desire to penalize the strikers. Actually, there is nothing to show that any
distinction was made between strikers and nonstrikers, so far as the cleaning of the
trucks is concerned. But, if it were otherwise, it would be equally plain that it
would amount to an unfair labor practice which could now be punished only in,
contempt proceedings.
E. The denial of medical insurance benefits to returning strikers
It is undisputed that before the strike the employees of Tampa Sand had group
medical insurance but that the reinstated strikers had to wait a period of 12 months,
before they became eligible again for medical insurance. This resulted from the-
terms of the plan under which an employee to be eligible must have completed 12.
or more consecutive months of employment. It was specifically provided that any
employee who quit his employment of his own accord but later returned had toa
complete again a period of employment of 12 or more consecutive months. Apart,
from these provisions, the terms of the medical insurance plan are extremely vague.
The plan itself is not in evidence but only a booklet describing the plan.19 In the
booklet no information is given with respect to the monthly premiums paid by.,
employees or the extent of the Respondent's contributions to the plan. Only three
of the reinstated strikers-Glausier, Mathis, and Wilson-testified at all with respect
to their monthly premiums, and it would appear from their testimony, which is none
too clear, that the premiums steadily rose so that by 1964 some employees at least-
were paying $8.55 a month for the medical insurance, which was more than they,,
had paid before the strike. It seems also that at least before the strike the length,
of employment was a factor in determining the amounts of the monthly premiums-
On the basis of this rather scanty evidence the General Counsel contends that the
reinstated strikers were precluded from "full" reinstateement. He bases this con-
tention not only on the fact that the reinstated strikers had no medical insurance for-
a period of a year after their reinstatement but also on the higher premiums which
they had to pay after their reinstatement. There is not a scintilla of evidence, how--
ever, that the Respondent was responsible either for the imposition of the 1-year-
waiting period, or for the increase in the premiums or that the purpose of the
Respondent in arranging for the medical insurance was to discriminate against the
returning strikers.
The General Counsel argues that Deena Artware, Incorporated, 112 NLRB 371,
establishes that the Respondent is "in error in its apparent contention that respon-
sibility for the 1-year denial of insurance after recall may be shifted to the insurance-
company." It is true that in this case the Board rejected such a contention, and'
commented that the Respondent had missed the point of its order. "We do not
determine here," said the Board, "the insurer's liability under the policy. We seek
only to make whole the employees for the losses suffered by reason of the Respond-
ent's discrimination. We find that these claimants suffered the loss of their insurance
benefits." [Emphasis supplied.] The General Counsel misses the point of the deci-
sion even as the respondent in Deena Artware missed the point of the Board's Order.
Deena Artware deals with the rights of discriminatees. The portion of the decision
19 The booklet is in evidence as General Counsel 's Exhibit S.
CONE BROTHERS CONTRACTING COMPANY 197
dealing with insurance benefits is indeed headed "Insurance Benefits Lost by the
Discnminatees " Strikers are not in the same position, however, as discnminatees
An employer is directly responsible for the loss of employment suffered by a dis-
criminatee, and he is therefore also responsible for all the consequences of his
discriminatory act, including the loss of insurance benefits An employer is, how-
ever, only indirectly responsible for the loss of employment suffered by a striker
even when the strike has been precipitated by unfair labor practices The loss of
employment is attributable to the striker's own voluntary act in withholding his
services until the unfair labor practices have been remedied by the strike rather than
by available forms of legal redress It is for this reason that a striker-even an
unfair labor practice striker-unlike a discriminatee, is not entitled to backpay until
he has made an application for reinstatement which has been denied
For the same reason it would seem that a striker is not entitled to be made whole
for the loss of any benefits which he may have incurred as a result of going out
on strike Apparently, there is no decided case in which the loss by unfair labor
practice strikers of benefits in the form of medical insurance has been involved but
in Quality Castings Company, 139 NLRB 928, the Board considered a modification
introduced into a profit-sharing plan after a strike, which reduced the shares of the
strikers because their absence during the period of the strike was taken into con-
sideration in determining then shares A majority of the Board held the modifica-
tion to be discriminatory per se but the two dissenting members in rejecting this
approach declared that "the Act was not intended to indemnify an individual from
all economic losses incurred as a result of a strike When an individual chooses to
go on strike he may incur many economic losses including the loss of wages, the
loss of wage credits for social security purposes, the temporary loss of medical and
life insurance coverage, the loss of retirement wage credits, et cetera " [Emphasis
supplied ] When the Board sought enforcement of the order of the majority, enforce-
ment was denied, and the pet se approach was rejected 20
Actually, the denial of medical insurance benefits is a very minor issue in the
present proceeding While all the reinstated strikers were denied medical insurance
for a period of a year after reinstatement, most of them were fortunate enough to
escape illnesses or incapacities which would have made it necessary to take advantage
of the insurance The denial of the insurance thus represented a case of damnum
absque inuria Indeed, these strikers actually saved the amounts which they would
have had to pay in premiums Today they have the same medical insurance as all
other employees As for the strikers who were less fortunate, and could hai'e taken
advantage of the medical insurance, there were only four of them, namely, Harold G
Beunk, Howard S Grey, Otho Mathis, and Joe Swoboda But, as hereinafter shown,
Beunk voluntarily quit his employment on August 16, 1961, which was long before
the incapacity that is the basis of his insurance claim occurred, and the claim of
Howard S Grey was withdrawn at the hearing Thus the claims of Mathis and
Swoboda alone remain, the claim of the former amounting to $122 and the claim
of the latter amounting to $467 99 Thus, even if valid, the outstanding claims would
amount only to a total of $589 99, and adjustments could readily be made in the
amounts of backpay due to the two employees concerned The existence of these
minor liabilities could hardly be made the basis for continuing into the indefinite
future the backpay of all the other reinstated strikers The amounts to which they
would be entitled would have to be reduced, moreover, by the savings in premiums
F The loss of earnings in relation to the alleged reduction of the workweek
The General Counsel seems to be under the mistaken impression that after the
reinstatement of the strikers the Respondent went from a 5-day week to a 4-day
week, and that it failed therefore in its obligation to effect full reinstatement, even
though the curtailment of the workweek may have been due to what it calls economic
necessity Its main reliance in connection with this argument is the Board's decision
in Mooney Aircrafts, Inc, 132 NLRB 1194, in which the respondent upon reinstate-
ment of the strikers altered its previous work schedule from a 5-day, 40-hour week
to a 4-day, 32-hour week This is not, however, what happened when the strikers
were reinstated at Tampa Sand
There was no formal change in the work schedule or the workweek But due to a
decline in business, which began in 1960 and continued into 1961, less work was
20See325F 2d36(C4 6)
198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
available, and many of the employees worked only 3 or 4 days a week As Poe
testified
Q Were you working 4 days every week?
A No, sir There is no absolute set rule to it, or pattern it was-there
was many times when business was real slow that the men did work basically
4 days per week, were authorized to work at least 4 days per week Sometimes
they did get in 5 days per week, just depending on how busy we were at any
specific time
Q What dictated whether or not you worked 4 or 5 days'
A The amount of business that we had, or sales
Q Was there any distinction made between strikers and nonstrikers in hours?
A No, sir
Q Were non strikers given preferable treatment with respect to their work-
ing conditions?
A No, sir
Such is also the testimony of the strikers themselves who testified about the number
of days that they worked after their reinstatement Glausier testified that he worked
only 4 days a week after the strike but also that after being transferred to Prestressed,
he worked 5 days a week for a total of 50 hours a week Johnson testified that
after being reinstated on the contract gang he worked 5 days a week, but that after
being transferred to the 301 batch bin he worked, alternately, 5- and 4-day weeks,
after being transferred again to the Skipper Road batch bin, however, he worked
regularly 5 days a week again Morrow testified that he worked 4 days a week after
the strike except when assigned to Prestressed but also that when he was moved to
the 13th Street batch bin he worked 4 days a week for 5 or 6 months Wilson
testified that for a long time after the strike he worked only 4 days a week but that
on occasion he worked 5 days a week Mathis testified that he worked only 4 days
a week after the strike but he conceded nevertheless that there was a period of 2
weeks during which he worked 5 days a week All this testimony indicates irreg-
ularity of employment Of particular interest is the testimony of Allen Walter
Wright, who was reinstated, then discharged, and finally reinstated again on Octo-
ber 2, 1962, which was somewhat over a year after most of the strikers had been
reinstated Wright testified that after being reinstated on October 2, 1962, he worked
4 days a week in the winter and 5 days a week in the summer But such a seasonal
variation in employment would not be unusual
Despite some apparent disclaimers, the General Counsel seems to proceed on the
theory that the Respondent was bound to guarantee the returning strikers the same
earnings which they had enjoyed prior to the strike But employers and employees,
like husbands and wives, take each other for better or worse, for richer or poorer
The returning strikers were privileged against discrimination in the distribution of
work but they were not guaranteed any particular quota of work If even a dis-
criminatee may be laid off or even discharged after his reinstatement for a nondis-
criminatory reason, which is usually that no work is available, the same misfortune
may overtake a returning striker
G The loss of earnings in relation to the alleged retention
of the striker replacements
The General Counsel has, however, still another string to its bow This is that
the Respondent failed to comply with the requirements of the Board's Order that it
offer to the strikers "immediate and full reinstatement to their former or substan-
tially equivalent positions," dismissing `if necessary" any of the striker replacements-
The consequence of this failure, it contends, was to reduce the earnings of the srtikers
below their prestrike averages, and thus to defeat again their "full" reinstatement
Actually, at the time that the strikers were being reinstated in 1961 there was no
Board order in effect directing the Respondent to reinstate the strikers and to dis-
miss the replacements "if necessary " Due to an oversight, this direction was not
contained in the Intermediate Report, and the oversight was not remedied until the
Board's Order was finally entered on January 10, 1962 By this time all of the
strikers whom the Respondent intended to reinstate were already reinstated, and the
Board's Order merely corrected a technical defect in the record This defect was,
of course, not fatal By force of the statute, as interpreted by the Board and by the
CONE BROTHERS CONTRACTING COMPANY 199
courts, the unfair labor practice strikers remained employees of the Respondent, and
it is well settled decisional law that as soon as they abandoned the strike they could
reclaim their jobs , even if this meant the dismissal of the striker replacements 21
Now it is true that in the months of June, July, and August , 1961 , when the strikers
were applying for reinstatement , and were, with a few exceptions , being reinstated,
the Respondent did not , immediately and systematically , clean house of all the
striker replacements Nevertheless , it is not "self evident ," as the General Counsel
seems to contend , that the Respondent , therefore , breached its obligations to all of
the returning strikers
While it is well-settled that an employer must reinstate unfair labor practice
strikers upon their request even though their jobs have been filled, there seems to be
scant decisional law on the question of whether and to what extent , if the strikers
have been reinstated , the employer is bound to dismiss his striker replacements This
is indeed a highly complex and difficult question in any case in which a strike has
been prolonged and the strikers are fairly numerous The first step toward realizing
the complexities and difficulties of this question is to realize that the obligation of
the employer to dismiss the replacements is not absolute He is required to dismiss
them only "if necessary " This is a hallowed phrase which has been in use for
decades, and it serves well enough in relatively simple cases , but actually it can be
quite ambiguous in the more complex cases in which many strikers are to be rein-
stated Of course , the phrase is to be read in connection with the direction to the
employer to effect "full" reinstatement But this only transfers the ambiguity from
the phrase "if necessary" to the adjective that modifies "reinstatement " It may
seem capricious to question the clarity of "full " but, as everyone knows , a full cup
is not one that is really full, for the simple reason that a cup after it is filled has to
to be carried also by the drinker to his lips This necessity for portage dictates that
the cup not be filled to the top If it is, it is likely to spill and the drinker will end
up with half a cup On the other hand, if the cup is filled too charily, the question
may be raised whether it is a full cup
There are somewhat similar dilemmas involved in effecting "full" reinstatement
and in deciding whether it is "necessary" to dismiss particular replacements Cer-
tainly reinstatement is "full " if no conditions of employment are imposed on return-
ing strikers which detracts from their former status and which are not discriminatory.
Does the phrase "if necessary" mean also that the replacements are to be dismissed,
if necessary , to provide the returning strikers with employment on a level which will
give them their prestrike average earnings , or which will give them at least earnings
of the same average magnitude as those of nonstrikers?
How an employer will construe his obligations will depend on his economic situa-
tion at the time he is called on to reinstate returning strikers If business is good
and his operations are expanding , he will tend to retain most of his striker replace-
ments even though he is reinstating all the strikers On the other hand, if business
is bad , and it is necessary to curtail operations , he may decide to dismiss all or most
of his striker replacements unless, indeed , he expects a pickup in business in the not
too distant future, in which case he will want to retain his full employee complement
In both situations , the employer's decisions will be influenced by the number of
strikers for whom he has to find jobs The smaller the number the more likely he
will be to hesitate and procrastinate in dealing with his striker replacements, and
decide to wait and see how many of his striker replacements will leave of their own
accord As striker replacements and strikers often mix as poorly as oil and water,
the early departure of the former is always a distinct possibility There would appear
to be no good reason why the employer should not then be allowed to claim credit
for the departing striker replacements
What actually happened in the present case is that there were departures among
both the striker replacements and the nonstrikers It is shown affirmatively that at
least 10 of the striker replacements were terminated 22 between June 29 and Octo-
ber 30, 1961, which is the very period in which the Respondent was reinstating the
m See Mastro Plastics Corp and French-American Reeds Mfg Co, Inc v NLRB
850 U S 270 278, and earlier cases there cited N L R B V E L Dell, Jr, Trading as
Waycross Machine Shop, 288 F 2d 783 (CA 5) , Mooney Aircraft, Inc, 182 NLRB 1194,
1205 enfd 310 F 2d 565 (CA 5)
as The word " terminated" is used to denote all forms of termination including employees
who were discharged for cause and those who quit of their own accord
:200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
`strikers.23 Moreover, this is precisely the number of returning strikers who were
being reinstated during this period and whose employment was to last more than a
-few days, weeks, or months.24 A nice balance was thus achieved between the depart-
ing striker replacements and the returning strikers. While more of the strikers should
have been reinstated than actually were, and the tenure of others was all too brief,
as will be shown, this does not gainsay the existence of the balance. Furthermore,
-during this same period, four of the nonstrikers, namely, John Willard Fleming,
Laurence Messick, William M. Grimes, and Hollie T. Lyles, were either temporarily
or permanently terminated. Actually, the Respondent employed a smaller number
of mixer drivers after the returning strikers had been reinstated than it did just
before the strike 25 While such a decline in the number of drivers could be con-
sistent with the retention of too many of the striker replacements, it does possess
'significance in view of the balance shown to have been achieved in the present case.
The General Counsel has entangled its discussion of the problem' presented by
-the striker replacements with the problem of justifying its backpay formula. The
two problems are distinct, however, and the statistical approach which has some
relevance to the selection of an appropriate backpay formula only produces con-
fusion where applied to the problem of the retention of the striker 'replacements. I
-shall *subsequently consider the validity of the statistical analysis in connection with
the discussion of the rival backpay formulas but it would be expecting too much of
an employer, who is engaged in reinstating a considerable number of employees
'over a^period of several months, to undertake on each occasion a statistical analysis
'of the effect that a particular reinstatement would have on the payroll as a whole.
It must be assumed that normally an employer, guided byy an enlightened self-interest,
-will not, in the process of reinstating strikers, retain more of his striker replacements
than production requires.' Once he has effected reinstatement he should be given the
benefit'of the, doubt, and'should not -be required to prove affirmatively also that he
was not engaged in an attempt to reduce the earnings of the strikers whom he is
reinstating by his retention of striker replacements. I find no affirmative proof that
when the strikers were being reinstated it was "necessary" to dismiss more of the
-replacements; or all of them, and I must conclude, therefore, that the effectiveness
-of the reinstatements- cannot be challenged on this' ground. The effect of holding
that there was no "full" reinstatement of any of the strikers either because not
enough of the striker replacements were discharged or because some of the rein-
statements were not bona fide would be to penalize the Respondent many times over
not only in the case of those strikers who were' not- reinstated at all but also in the
,case of those strikers who were reinstated.
Finally, there would seem to be doubt that the Board may continue backpay
indefinitely to compel the dismissal of 'striker replacements.' This goes beyond the
question. of the adequacy of the reinstatements and the collection of backpay in the
ease of individual discriminatees and strikers. It could well be a punitive measure
which' could be taken only by a court which has the power to punish for contempt
,of its order.
' ss The 10 striker replacements who were terminated, and the dates of then terminations
were as follows : George Montgomery, June 28, 1961 ; James Cook, July 19, 1961 ; John
Francis Bell, July 26, 1961 ; Willie J. Williams, July 28, 1961 ; George E. Hart, August 16,
1961- ; Vannie James Franklin, August 19, 1961; William K. Hess, August 26, 1961 ;
Cecil W. Philmon, September 29, 1961; James W. Winant, October 3, 1961; and Louie
Powell Watts, October 30, 1961. A list of the striker replacements is attached as chart
A'to General Counsel's Exhibit 2, entitled "Earnings of Replacements compared by Quarter
with Total Net Back Pay Claims of Strikers and Total Hypothetical Net Back Pay Claims
of Nonstrikers ." Chart B, attached to the same exhibit, shows most of the returning
strikers , and chart C, attached to the same exhibit, shows the nonstrikers. The dates of
-termination of batch bin employees is shown by Respondent's Exhibit 17, as well as by
General Counsel ' s. Exhibit 20, entitled "Summary of Dates and Results 'of Physical Exami-
nations," which also contains a good deal of miscellaneous information.
24 These 10 strikers , whose cases will be discussed in detail infra, are George Hendry,
Robert Clausier, -Andrew. J. Johnson , Albert Landgren, Jeather W. Lumpkin, Otho Mathis,
John S. Morrow, Walter O. Schneider, Sam Solazzo , and Woodrow Wilson
11 There were 40 mixer drivers employed on an average by the Respondent in May 1960,
but the average number, of mixer drivers had dropped to 37 by October 1961. In 1959,
the Respondent had employed 51 mixer drivers.
CONE BROTHERS CONTRACTING COMPANY 201
IV. THE CASES OF THE CLAIMANTS INDIVIDUALLY CONSIDERED
A. Introductory
There is little dispute between the parties concerning the dates when the claimants
applied for reinstatement , and the dates when they were offered reinstatement , despite
the fact that the parties are in utter disagreement as to the adequacy of the rein-
statements . Indeed , counsel stipulated as to the correct dates with respect to all
the claimants except Louis Coppola, Gilbert W. Davis, Leroy Smith, and Dee Toran.
The stipulation may be summarized in tabular form as follows:
Name of Claimant
Date of appli-
cation for
Date of
reinstatement
reinstatement if offered
Harold G Beunk-------------------------------------------------------- 6-7-61 7-2741
Charles W. Davis------------------------------------------=---------- 8-9-61 8-31-61
Wyman Davis ---------------------------------------------------------- 6-7-61 6-13-1
Theodore R. Gardiner--------------------------------------------------- 6-7-61 6-26-61
Robert E. Glausier------------------------------------------------------ 6-7-61 7-28-61
Chester P. Green-------------------------------------------------------- 8-28-61 8-30-61
Howard S Grey--------------------------------------------------------- 6-7-61 ----------------
George Hendry---------------------------------------------------------- 6-7-61 8-3-61
Andrew J. Johnson------------------------------------------------------ 6-7-61 8-28-61
Albert Landgren-------------------------------------------------------- 6-7-61 6-28-61
Jeather W. Lumpkin --------------------------------------------------- 6-7-61 8-1-61
Otho Mathis------------------------------------------------------------ 6-7-61 6-13-61
John S Morrow----------------------- ------------ ------------------- !-- 6-7-61 6-30-61
John P. Owens---------------------------------------------------------- 6-7-61 6-21-61
Charles F Pitts--------------------------------------------------------- 6-7-61 ----------------
Walter O. Schneider----------------------------------------------------- 6-7-61 6-30-61
Sam Sollazzo------------------------------------------------------------ 6-7-61 8-3-61
Dwight Stringfellow----------------------------------------------------- 12-1-61 1-15-62
Joe Swoboda------------------------------------------------------------ 6-7-61 6-26-61
J. L Vaughn----------------------------------------------------------- 6-7-61 6-19-61
Guy T. Wells------ -------------------------------------- 8-9-61 8-22-61
Juhus Wigham ---------------------------------------------------------- 6-7-61 8-28-61
Woodrow Wilson------------------------------------------------------- 6-7-61 6-13-61
A. W. Wright----------------------------------------------------------- 6-7-61 6-27-61
Joseph C Wright------------------------------------------------------- 6-7-61 6-28-61
The Respondent contends that it had a reasonable time after a striker applied for
reinstatement in which to reinstate him. The Board's Order, as enforced by the
court, requires the Respondent to reinstate a striker within 5 days after his applica-
tion for reinstatement, and backpay would run from this date. The 5-day require-
ment for the reinstatement of strikers has been judicially upheld by the very court
that has enforced the Board's Order.26 Notwithstanding the fact that the Board's
Order and the court's decree were not entered until after the reinstatements had
occurred, it must be taken to adjudicate what the Board and the court would regard
as a reasonable time.
In approaching the consideration of the individual cases, it is well to bear in mind
that the evidence as a whole seems to indicate that there were actually two periods
in the history of the Respondent's attitude toward the returning strikers. In the
period immediately following the issuance of the Trial Examiner's Intermediate
Report, the Respondent's officials, although they had resolved on beginning the rein-
statement of the strikers, were still hoping, apparently, that they would ultimately
prevail, in whole or in part, and were still in a fighting mood. The strikes, involving
both Cone Brothers and Tampa Sand, had been bitter and protracted, and the unfair
labor practices committed had been of a gross, if not lurid, character, including even
encouragement to armed violence. While the memories of these events were still
fresh, it would not be very surprising that the Respondent's executives would tend
sm See N.L R .B. v. Trinity Valley Iron and Steel Company, Division of C. C. Griffin Man-
ufacturing Company, Inc., 290 F. 2d 47 , 48 (C.A. 5).
202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to continue unlawful practices , and attempt to get rid of as many of the returning
strikers as they could . But over 3 years have now elapsed since the original unfair
labor practice proceeding , and, as the events that precipitated it have receded into
the past, the attitudes of Respondent 's officials seems to have changed for the better.
B. The discharges of seven of the returning strikers for failure
to pass physical examinations
1. The -inauguration of the annual physical examination program
In 1959, the year before the strike , Tampa Sand had neither a safety program nor
any physical examination program. In that year the mixer drivers did have eye
examinations, but they were not given by Tampa Sand nor paid for by it. The eye
examinations were given by the Florida Trucking Association in a tractor -trailer.
They showed that approximately 60 percent of the drivers of Tampa Sand had
defective vision and arrangements were made for these drivers to get corrective
lenses but , apparently , none of them was discharged.
However, in 1959 some steps were taken to remedy Tampa Sand's abysmal safety
record . The first step in this direction was the employment on September 1, 1959,
of one Thomas Frazer James as safety director James, who was no doubt a sincere
believer in and advocate of safety programs , went to work immediately to attempt
to sell J. L. Cone, Jr., the president of both Cone Brothers and Tampa Sand, on the
desirability of having a safety program that would include annual physical examina-
tions as a condition of employment . James enlisted the aid and .support of one
Robert Smith, a field investigator for the Employers Service Corporation which
processed compensation claims for the Cone Brothers under their system of self-
insurance.27 As a result of the efforts of James and Smith, steps were taken in 1960,
to institute a safety program . A safety rules handbook was prepared and promul-,
gated and supervisory personnel were required to take a first -aid course.
It took James far longer to obtain a favorable decision to make annual employ-
ment physicals part of the safety program , and his success, apparently , had less to do
with safety than a desire to reduce workmen 's compensation costs, if the testimony
of J. L. Cone, Jr., himself, be accepted. The latter could not come any closer to
fixing the time when he decided to adopt an annual physical examination program
than "the early part of 1961." James himself testified that it was in February or
March 1961 that the decision was taken to implement the annual physical examina-
tion program . But many details had to be worked out before the program could be
put into effect. The earliest documented indication that the program was underway
is a memorandum , dated May 17, 1961 , from J. L. Cone, Jr., to the superintendents
of all three Cone Brothers companies , dealing with the inauguration of the program.
The first two paragraphs of this memorandum read as follows:
Beginning on Monday , May 22, 1961 every new employee must have a
physical examination , which must show his fitness to perform his job, before
he is put on the payroll. The expenses of the examination will be borne by
the company, and doctors will be selected by the company to give the exam-
inations . No other doctors will be used without permission of the main office.
All persons presently employed will be required to have an annual physical
examination during the month of their birthdate or earlier , at company expense,
to determine their fitness for the jobs they are presently performing . The super-
intendents and/or the main office may request that an employee have a physical
examination at any time.
When James was asked when the first physical examination was actually given,
he gave the same date as in this memorandum ; namely, May 22, 1961. If, in giving
this date , he had Tampa Sand in mind , he was certainly mistaken . The very earliest
date that any physical was shown to have been given was May 31, 1961 , and it was
given to applicants for employment rather than to employees . It is doubtful, more-
over, that these physicals were actually given to applicants for employment at Tampa
Sand. The application and referral forms used seem to indicate that the applicants
were seeking employment at Cone Brothers, although they did subsequently work
for brief periods in either the concrete placement department or the block plant of
When asked what he thought of the safety record of Tampa Sand , Smith pronounced
It to be "terrible "
CONE BROTHERS CONTRACTING COMPANY 203
Tampa Sand 23 The first physicals given to any mixei driver or, other batch bin
.employee of Tampa Sand were given on June 9, 1961, to two nonstrikers, J. W.
Fleming and L. E. Messick , who, according -to ,Poe, were -the only two employees
-who failed to pass their physicals . 29 All of the Respondent 's witnesses who testified
about the physical examination program stated without ' hesitation that the examina-
tions were staggered on an alphabetical basis at least over a period of . several months
if not over a period of a year.30 Actually, however, -all of the physical examinations
-that were given in 1961 to incumbent employees after the inauguration of the pro-
.gram were given between June 9 and 29, a brief period indeed.'
It is really remarkable how little the Respondent's representatives or officials know
;about the details of their own physical examination program. James, during his
first appearance as a witness, explained that during the first year of the program each
-employee was examined in the month of his birth, but that it was difficult to keep
track of the employees under this natal system , and a change was made to put the
medical examinations on an alphabetical basis. The next day James was recalled
to the witness stand to testify, to his evident, chagrin, that he had been mistaken in
his testimony of, the previous day. It seems that he\had been informed by the
Respondent's paymaster, George L. Brandewie, that the natal system had never
been put into effect, and that the emloyees had always been examined on an alpha-
betical basis. It seems that Brandewie's recollection had been refreshed when
he came across a handwritten -paper attached to a card file with scotch tape. The
General Counsel seems to be skeptical about the trust of'James' revised testimony
because the natal system is referred to in the Cone memorandum of May 17, 1961.
It is perfectly possible, however , that this system could have been revised before it
had actually been put into effect. The Strickland summary of the records relating
to the physical examinations shows that the employees on the payroll-this would
exclude, of course, the returning strikers-were actually examined in almost strict
alphabetical order.32 -
Among the details of the physical examination program that had to be worked
out were, of course, the selection of the doctors who were to do the physicals, the
fixing of their fees, and the preparation of instructions to guide them in evaluating
the results of the physicals.
So far as concerns the seven returning strikers who were discharged after taking
-physical examinations, they were examined either by a Dr. George Joseph Suarez or
by a Dr. Donald W. Mills. Drs. Suarez and Mills were associates, and they were
-already being employed by Cone Brothers in treating employees who suffered work-
connected accidents or disabilities. They undertook the additic-lal chores of the
physicals for fees that were modest indeed, since they ranged fi om $5 to $8. At
such fees they necessarily had to dispense with such valuable aids to diagnosis as
X-ray, electrocardiogram, and laboratory tests.
The instructions to the examining doctors were prepared principally by a Tampa
-doctor by the name of E. F. Carter, Jr., who himself gave a number of the physicals.
Entitled "Instructions to Physicians," they consisted of six pages and were based
on similar instructions used by other companies. After such mechanics as the
The individuals concerned were Edward Carroll III , a son of the superintendent of
the concrete placement department of Tampa Sand ; a friend of his, Grant L. Jones, and
Lucious Dell:, Jr. Carroll and Jones were put to work in the concrete placement depart-
ment that did work for any company that desired its services , including Cone Brothers.
Jones was put to work in the block plant
21 However , Poe failed to mention at this point that Fleming and Messick were sub-
sequently reemployed.
°Thus James testified : "I would say that over a period of time, say within one year,
they all had them, yes, sir," and he agreed that the physical examinations were "sort of
staggered ." Poe testified : "I believe we gave at least the bulk of the examinations within
a two- to three-month period." Asked to specify the months, Poe declared: "From May,
I'd say, through August, something like that" William 0 Stubbs, Jr, the assistant
secretary of Tampa Sand, testified that the physical examinations were staggered over a
60-day period
"This is demonstrated by General Counsel's Exhibit 20 , a summary of the dates and
results of the physical examinations which was compiled by Compliance Officer Strickland
by utilizing the Respondent 's employment records, which recorded the dates and results of
the physical examinations , as well as a good deal of miscellaneous information
=Any slight variations would be accounted for by special circumstances, such as vaca-
tions, absences , or temporary illnesses , ' '
204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
handling of referral forms 33 and the preparation of reports had been covered,
standards for classification of physical examinations were set forth in the instructions.
Standards were prescribed in three different classifications , as follows:
Class ' A-Acceptable for any type of work.
Class B-New employees in this group , not acceptable.
Class C-Applicants not employable if in this classification.
But, remarkable to relate , Dr. Carter's efforts in preparing the detailed instructions
proved so much wasted labor so far as Drs. Suarez and Mills, as well as Poe, were
concerned . Dr. Suarez blandly admitted that he never saw or read the instructions,
nor even discussed them with Poe. The instructions , it seems, were sent to his office
but were, apparently , misplaced . To him the classifications A, B, and C, despite the
detailed standards set forth in each classification , had a self-evident meaning. "I don't
practice medicine by paper ," he assured the General Counsel , who seemed to exhibit
some degree of incredulity about this proposition . Dr. Suarez never explained to Poe
or anyone else, moreover , what he meant by A, B, and C . However, Dr. Mills did a
little better than Dr. Suarez. He saw the "Instructions to Physicians " but he did not
read them ; he just glanced at them . So he too, was just left to surmise what A, B, and
C stood for. Finally, Poe, who , on the basis of the classifications and the reports on
the physicials , made the ultimate decisions whether to retain the particular employees
who had taken the physicals , had finally to confess that he, too , had not read "Instruc-
tions to Physicians" but went by what J. L. Cone, Jr., and William 0 . Stubbs, Jr., had
told him to do. In the light of these instructions , Poe felt that he had considerable
flexibility in deciding the fate of the employees , and he sometimes made the decisions
without even talking to the doctor who had done the physicals . In these instances he
simply acted as Dr. Poe, although he had to confess that he had no medical degree,
and did not even know the meaning of such medical terms as "hernia " and "inguinal
ring" with which he was to be confronted . In certain circumstances , Poe also under-
took to assume the role of a workmen 's compensation expert.
2. The taking of physical examinations by the returning strikers
Theodore R. Gardiner : He was examined by Dr. Suarez on June 26 , 1961, which is.
the date of his recall to woik.14 Gardiner received a C rating , and was discharged by
Poe on June 26, 1961. Dr. Suarez testified that he classified Gardiner as a C because
he found that he had a right inguinal hernia, which , he thought , in the case of a man,
who was 57-this was Gardiner 's age-might result in strangulation. As Dr. Suarez
put it: "Now , if we hire a man like this , 57 years old with an inguinal hernia to do
labor work , we are bound to get this man into a strangulated hernia, which will be a
deferred disability , but the fact is that it may cost his life sometimes ." After making
this pronouncement , Dr. Suarez testified further as follows:
Q. Is this type of a hernia , do you feel, a definite reason for not employing
a man?
A. That is correct, sir.
Q. Do you recommend that if a man has this hernia that he not be employed?
A. That is correct, sir . [Emphasis supplied.]
Since it was not indicated on Gardiner 's referral form what the purpose of his
examination was, it remains unexplained how Dr. Suarez knew that he was doing
a preemployment physical. If he had taken the trouble to ask Gardiner whether he
was an applicant for employment , the latter would hardly have answered the question
in the affirmative.
In testifying concerning Gardiner 's discharge, Poe revealed only that he had
advised Gardiner to see his family physician , and that Gardiner had never returned
to tell him that he had had his hernia repaired. As Gardiner himself had died on
August 18, 1964, it was not possible , of course , to make use of him as a source of
as The referral form provided two boxes in which the company representative making
the referral could indicate the purpose of the examination. One of the boxes was to be
checked for "Pre-employment physical examination " and the other box for "Annual
Physical Examination." There are in evidence 14 physical examination forms of employ-
ees in the batch bin department of Tampa Sand. Seven of them are those of strikers and
seven are those of nonstrikers. The appropriate boxes are checked on the forms of only
two of the strikers but are checked on the forms of five of the seven nonstrikers.
04 The report of his physical examination is in evidence as Respondent 's Exhibit 22.
CONE BROTHERS CONTRACTING COMPANY 205
illumination . The cause of Gardiner's death is also not established but his employ.
ment records , as reflected in the backpay specification , show that he was gainfully
employed, notwithstanding his hernia , in every quarter from the date of his discharge
to the date of his death.
John D. Owens : He is one of the few claimants who was not a mixer driver. He
was a forklift operator in the block plant . He had a physical examination on the
day of his recall; he was rated C by Dr. Mills, who did the examination ; and he was
discharged by Poe-all on the same day , June 21, 1961 . At this time he was 43 years
of age , and he had been working for Tampa Sand for over 10 years at the time of
the strike.
In his testimony, Owens described his previous medical history. In 1956 or 1957
he had injured his back while driving a payloader, and he was unable to work for
a period of 3 weeks. In 1958 or 1959 he had developed cement-contact dermatitis,
which afflicted his feet, and he had been sent by Superintendent Linton to a Dr. Pate.
However, he never even saw Dr . Pate on this occasion but was treated by Dr. Pate's
nurse , who gave him two shots and a tube of ointment . He also lost no time from
work on this occasion.
When Owens was being examined by Dr. Mills on June 21, 1961, he told the latter
about his previous back injury but the doctor neither examined nor X -rayed his back.
He also mentioned to Dr . Mills the trouble he had previously had with the skin on
his feet but the doctor did not look at his feet . Owens did not mention to the doctor
that he had any trouble with the skin of his hands , and he denied that he had any such
trouble in fact.
The referral form used in the case of Owens did indicate that he was being referred
for a preemployment physical. Dr. Mills made the following comment on Owen's
referral sheet : "Back injury five years ago which still bothers patient periodically,
also cement-contact dermatitis, hands ." He made the same comment on Owen's
physical examination report 35 but also noted the back injury-"still bothers him off
and on."
Basing himself solely on his report, Dr. Mills undertook to explain the basis of his
rating. It was not Owen's cement-contact dermatitis that led him primarily to give
him a C rating. It was rather that he had confessed to a history of back injury.86
It seems that Dr. Mills as a doctor who handled workmen 's compensation cases
recoiled from back injuries . You never could tell when they would be reactivated
and cause trouble, and the fact that the patient was not engaged in heavy labor did
not make too much difference in itself . By way of an example he pointed out that
even a secretary bending down to pick up a pencil could cause a compensable back
injury!
Since his discharge by Tampa Sand Owens has been employed at the Temple Ter-
race Golf Club. His job there has been to mow the green . "Well, it isn 't easy mow-
ing them greens ," he testified . "But I like it ." Surely, it is reasonable to assume that
in keeping the green trim and neat he has had to bend down innumerable times daily
to pick objects off the grass.
Joe Swoboda: On being recalled , Swoboda was examined by Dr. Suarez on June 26,
1961 , and the doctor found mainly that he had high blood pressure-it was 190/90-
and he gave Swoboda a B rating. On receiving Dr. Suarez ' report, Poe testified, he
spoke to the doctor , who told him that Swoboda 's condition was dangerous because
he could black out at any time . Nevertheless , Poe did not immediately discharge
Swoboda. He spoke to the latter and suggested that he go to his family doctor for
treatment , since some forms of high blood pressure can be controlled by medication.
He also told Swoboda that he would be reexamined in a month's time but that in the
meantime he could continue working. During this period, Swoboda was -treated by
his family doctor. When Dr. Suarez examined Swoboda a second time on July 28,
1961, he found his blood pressure to be 200/100, and this time Poe, without checking
further with Dr. Suarez , terminated Swoboda, although his blood pressure was not
much higher than revealed on his first- examination . Swoboda was terminated on
August 1, 1961.
According to the consensus of the doctors who testified at the hearing , normal
blood pressure should not exceed a -systolic rate of 140 and a diastolic rate of 90 but
15 It is in evidence as Respondent 's Exhibit 23.
"In contradiction to Owens himself, Dr . Mills testified that.he had examined - Owens'
back. But the doctor had to concede that there was no indication of such an examination.
in his report , and that normally there should have been such an indication . I do not,
therefore , credit his testimony in this respect
206 DECISIONS OF NATIONAL LABOR RELATIONS 'BOARD
blood pressure does tend to increase with age. However, it is significant that in the
unread "Instructions to Physicians," which-after all was also prepared by a doctor,
an A rating is indicated as proper if the systolic rate is below 150 and the diastolic
rate is below 90, and a B rating is allowable if the systolic rate is not more than 165,
and the diastolic rate is not more than'100.
Judged by these standards, Swoboda's blood pressure does not appear to have been
towering,even on the second examination, and Poe's handling of his case seems
rather puzzling. His patience after Swoboda's first examination is in sharp contrast
to his peremptory action-after Swoboda's second examination. If, indeed, it was
dangerous for Swoboda to drive a ready-mix truck because he was subject to black-
out, he could just as readily have blacked out during the month between his first and
second examinations. Swoboda did have a heart attack on May 26, 1962, but this
was not predictable, of course, on the basis of his hypertension. - -
Jimmie Lee Vaughn: Although Vaughn was recalled on June 19, 1961, appar-
ently he was not sent for a medical examination until June 22. He was examined by
Dr. Suarez who found that he had a blood pressure of 170/90, which he considered
high; a heart murmur, which he described in his report as "harsh"; and a right
inguinal hernia.37 He, therefore, gave Vaughn a C rating. When Dr. Suarez was
asked as a witness which of the three conditions he had found to exist would dis-
qualify Vaughn, he answered: "'All three." Vaughn was terminated by Poe the
following day; namely, June 23.38
. Vaughn appears to have been- incensed by his dismissal and took legal action. In
connection with this suit, Vaughn was referred by his attorneys to a Dr. William
Benjamin Hopkins, Jr., for examination, and he was examined by Dr. Hopkins on
July 7, 1961, although this was only 2 weeks after Vaughn's examination by Dr.
Suarez. Dr. Hopkins found nothing wrong with his patient. Dr. Hopkins testified
that Vaughn was not suffering from hypertension; 39 that he did not have a' hernia
in the right inguinal region; and that while he did find a heart murmur it was not
organic but wholly innocent. Dr. Hopkins' examination of Vaughn was, moreover,
very thorough, taking about an hour and a half to complete. The examination
included laboratory tests, an electrocardiogram, and chest X-ray. While Dr. Hopkins
conceded that, it was possible for blood- pressure to be brought down in a period of
2 weeks, depending on its cause, he did not concede anything else that would explain
Dr. Suarez' findings. In fact, Dr. Hopkins declared that it was easy to diagnose a
hernia. When Dr. Hopkins was asked by Respondent whether Dr. Suarez was
"a reputable -doctor," he answered: "He is licensed to practice in the City of Tampa
and is a qualified member- of the Hillsborough County Medical Association."
Vaughn has been gainfully employed during most of his backpay period, and his
earnings have generally been almost two-thirds of his gross backpay. On August 1,
1964, moreover, he was employed by Gulf Concrete.
Julius Wigham: He was examined by Dr. Mills on August 28, 1961, the day of
his recall, and the referral form in his case indicated that he was being referred for
a preemployment physical examination. At the time of his examination, Wigham
was 29 years of age, and Dr. Mills recorded for him a perfectly normal blood pres-
sure of 130/80, and absolutely perfect vision, 20/20, in both eyes, certainly a valu-
able asset in the case of a mixer driver.40 But Dr. Mills found that Wigham had
an inguinal hernia and gave him a C rating, and Poe discharged him the same day;
namely, August 28, 1961.
Asked on the witness stand to explain his C rating in the case of Wigham; Dr_
Mills complied by declaring: "Mr. Wigham was graded as a `C' because of a right
inguinal hernia PERIOD. I think the rest of his physical examination was, within,
normal limits." He declared further that he always classified anyone who had an
inguinal hernia as C because it constituted a risk to his personal safety due to the
possibility that a hernia can become "incarcerated or strangulated."
97 The report on Vaughn 's physical examination is in evidence as Respondent 's Exhibit 24.
° In its answer to the backpay specification , the Respondent gives June 19, 1961, as
the date of Vaughn's termination . This is manifestly in error , since he was not even
examined until June 22, as shown by Respondent 's Exhibit 24. Vaughn was undoubtedly
terminated the following day as shown by General Counsel's Exhibit 20, which is based-
on the Respondent 's payroll records.
81 At the, time that Dr. Hopkins examined Vaughn his blood pressure was 144/84 in the-
right arm recumbent
10 Dr. Mills ' report is in evidence as Respondent 's Exhibit 25.
CONE BROTHERS CONTRACTING COMPANY 207
- Dr. Mills was, however, not the only doctor who examined Wigham. On Septem-
berj9, 1961, which would be only 11 days after Dr. Mills' examination; Wigham was
examined^by a Dr. George Robert Greenwell for the'purpose of determining whether
he had a right inguinal hernia. Dr. Greenwell found that Wigham did not have a
.right inguinal hernia, although he did have a weakened inguinal ring which at some
.time might lead to a hernia but not necessarily. Dr. Greenwell testified, moreover,
that Wigham may have had the' weakened inguinal ring from birth, and also that
medical opinion could differ as to whether an inguinal ring was weakened.
The backpay specification shows that Wigham has been employed during every
quarter of his backpay period, and that he is now driving 'a tractor.
Allen Walter Wright: On June 27, 1961, which was the day of his recall, Wright
was referred to Dr. Mills for a physical examination.41 Dr. Mills found that Wright
had poor vision in his left eye (20/100), although his right eye•was almost normal
(20/25), and that Wright also had a small external hemorrhoid that bled occasion-
ally. Dr.' Mills made notations both on the referral form and_ on the face of the
'report. itself to the effect that Wright "must not drive" until `the vision in his left eye
-had been corrected.
Dr. Mills seems to have been in quite a quandary when it came to deciding how
to rate Wright. He first rated him B but then crossed out the B and rated him C.
When his vacillation was called to his attention, Dr. Mills explained that he had rated
Wright as a B hastily but as he thought it over he concluded that with'the hemor-
rhoid present he should be rated as a C. Of course, he explained further, he knew
that the hemorrhoid could be, corrected by surgery but he did not know whether
Wright's vision could be corrected With glasses! He conceded that he was undecided,
or, as he himself put it, he was "betwixt and between." When it was called to Dr.
Mills' attention that, after all, Wright had normal vision in his right eye, he fell back
on the possibility that dust might be blown in the-right eye in heavy traffic,'and the
situation would then be precarious. But, then;-he also conceded that even a person
with perfectly normal vision would be in just as precarious a position if dust blew
into both of his eyes. . .
Apparently, even Poe was somewhat undecided in this case' for he waited 2 days-
until June 29-before terminating Wright.' In discharging Wright, he did not even
specifically mention the latter's "faulty" vision, but told Wright that he himself knew
what was wrong with him. After his discharge, Wright consulted a Dr. John M.
Edmiston about his hemorrhoid, and Dr. Edmiston performed a hemorrhoidectomy
on him. Under date of September 5, 1961, Dr. Edmiston gave Wright a note certi-
fying that he had- had the operation and was progressing nicely. Wright showed the
certificate'to Poe when he applied to him for reemployment about 2 weeks after his
operation'but to' no avail. ' Poe looked at the certificate 'and told Wright that he had
no opening just then. Between this time and October 2, 1962, Wright' applied for
reemployment at Tampa Sandfive or six times. On the latter date he was finally
rehired after he had produced a certificate from Dr. E. F. Carter showing that his
vision in his left eye had been corrected to 20/40. At the time of the hearing, Wright
was still in the employ of Tampa Sand.
Joseph C' Wright: He was examined by Dr. Suarez on June 28, 1961, the date of
his recall, and received a B rating. Being a young man of 36, he was in good health,
and Dr. Suarez found him to be so.- Like Wigham, Wright had a normal blood pres-
sure of 120/80 and-perfect vision (20/20) in both eyes. But Dr. Suarez also found
that he had a dilated inguinal ring on the left, and entered the following comment' on
his referral form: "'Normal physical examination. He has dilated inguinal ring on
the left-this is a weakness of inguinal canal and prone in the future to ruptures as
to when is hard to say. Classification B=entirely up to you-to hire him or dismiss
him." Dr. Suarez included the italicized language, although the referral form did
not indicate whether Wright was being referred for a preemployment physical.
Poe discharged Wright on July 12, 1961.42 Asked why he had terminated his
employment, Poe stated the reason to be as follows: "From the doctor's report of
what he put down, that he had a weakness in his inguinal canal, I guess it is and was
prone in the future to rupture, thereby could cause a Workmen's Compensation
case." Dr. Suarez could not recall whether he had himself communicated with Poe
about Wright. If he did not, as is highly probable, Poe made the decision which the
doctor had left'up to him without further ado. It is established by the evidence of
Dr.'Hopkins that, an individual could go through life without developing a hernia,
"Dr. Mills' report is in evidence as Respondent's Exhibit 27.
42 This is,the date of termination shown on Respondent's Exhibit 17.
208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
despite the existence of a weakened inguinal ring . For Poe, however, the mere pos-
sibility of the development of a hernia some time in the future was sufficient, even
though he could not but have known that Wright was a young man, and that even
if he developed a hernia, it could be corrected by surgery.
The fears of Dr. Suarez and of Poe do not seem to have been realized. Since the
beginning of 1963, Wright has been working as a mixer driver for Harstone Concrete,
and his earnings since the second quarter of 1963, have always nearly equaled his
gross backpay and have twice exceeded it!
3. The physical examinations of the nonstrikers
The physical examinations conducted by Drs. Suarez and Mills must be judged
not only in their own terms but in comparison with those of the nonstrikers. This
comparison becomes invidious indeed, for, when it is made, it indicates that the
strikers received disparate treatment to a startling degree. There are in evidence
the physical examination reports for seven nonstrikers. By a coincidence, this is
precisely the same number of reports as for the strikers who applied for reinstate-
ment but who failed their physicals. The cases of the nonstrikers will be considered
in alphabetical order.
Sammie Lee Allen: He was examined on June 14, 1961, by Dr. Mills on a referral
form that indicated he was being sent for an annual physical examination as a batch
-bin operator. Dr. Mills found that Allen was colorblind, and that he had a blood
pressure of 170/100, which was above normal ; a fatty tumor of the left armpit;
-a history of back injury in 1958, which had been compensable, and which had kept
him out of work for 6 weeks; and bleeding hemorrhoids. With reference to this last-
mentioned condition, Dr. Mills made the comment: "This is compensable, if patient
does any lifting or straining the company will be responsible. He is being ordered
to have them [presumably, the hemorrhoids] repaired." Despite Allen's multiplicity
of diseases, and his own fears of blackouts, back injuries, and compensable condi-
tions in general, Dr. Mills rated Sammie Lee Allen as a B, and, Poe decided to retain
him in the employ of Tampa Sand. Asked to explain his decision, Poe testified that
he had checked with Dr. Mills and "asked him how serious all those conditions were,
after explaining what he did with us." Allen was a batch bin operator rather than
-a mixer driver, and, apparently, Poe considered him less of a risk for this reason.
Nevertheless, Poe asked Dr. Mills which of Allen's conditions were " serious" from
-a workmen's compensation standpoint , and Dr. Mills told Poe definitely that Allen
should have his hemorrhoids corrected. Therefore, Poe testified further, he told
Allen that "he'd have to get a corrective operation before I would put him back on,"
and Allen had the operation "a short time" after he received the report on his physi-
cal examination, being absent "a few weeks" from work as a result of having the
-operation. But Allen's earnings record 43 shows that he worked continuously for a
period of at least 6 weeks after the date of his physical examination, and that he lost
only about 10 days of work between August 2 and 16, 1961. It is apparent that if
Allen did indeed have a hemorrhoid operation, the performance of the operation
was not a condition of his retention. In the course of his attempting to explain his
retention of Allen, Poe also hazarded the expression of his belief that Allen's blood
pressure was "a little bit lower" than Swoboda's,44 and that Owens' back injury was
-of a "different type" from Allen's, although he failed to specify what the differ-
^ence was.
John Willard Fleming: He was examined by Dr. Mills on June 9, 1961, on a
referral form that indicated that he was being sent for an annual physical. Fleming
was a mixer driver. Dr. Mills testified that he had found that'Fleming had "a quite
-enlarged heart" and "extremely high" blood pressure-it was 240/130. Dr. Mills
considered such symptoms to be correlated. Consequently, Dr. Mills gave Fleming
a C rating. But about 5 months later Fleming was put back on the payroll when he
appeared with a certificate from Dr. Mills in which the doctor stated: "Mr. Fleming
-now has his blood pressure under control and I feel he may return to work with the
-stipulation that he cont. his medication and have period BP checks." When Dr. Mills
was cross-examined about the giving of this certificate, it was called to his attention
-that he had found that Fleming had "quite an enlarged heart," and he was asked the
very pertinent question: "Is it possible to correct an enlarged heart, doctor?" Dr.
.Mills replied that he did not think this was possible-"not to any appreciable degree
4 It is in evidence as General Counsel's Exhibit 14. .
-4 Actually, Swoboda's diastolic rate was lower than Allen's.
CONE BROTHERS CONTRACTING COMPANY 209
at any rate." But now he sought to escape from his dilemma by denying that he had
testified that Fleming had "a quite enlarged heart"; he declared that Fleming only
had "a bit of an enlarged heart."
Noland Green: He was another mixer driver who was referred to Dr. Mills for
examination twice. He was first examined on June 26, 1961, by Dr. Mills who found
he had a blood pressure of 220/110, and a history of back- pains and awkward move-
ments. Nevertheless, Dr. Mills gave Green a B rating. Green was reexamined by
Dr. Mills on August 1, 1961, and the doctor found his blood pressure to be 160/90.
On the face of his report, Dr. Mills noted: "Blood pressure corrected-back prob-
lem persists-awkward motions-never compensable-employee 17 years and good."
In his comments on the referral form, Dr. Mills stated: "Talked to Mr. Poe regarding
back problem-chronic-awkward motion but good employee 17 years. Never comp.
BI pressure corrected." On the basis of his second examination, Dr. Mills gave
Green an A rating . During his cross-examination, Dr. Mills was asked to explain
what Green's employment for 17 years had to do with his medical findings but he
evaded this puzzling question. Faced with Owens' back injury, Dr. Mills fell back
on a distinction between "legitimate" and "illegitimate" back injuries.
Poe testified that after his second examination he decided to retain Green. Actu-
ally, Green never lost any time from work. Poe could not recall whether he spoke
to Dr. Mills about Green but he averred that the fact that Green had been a good
employee for a long time had nothing to do with his decision to retain him.
William Grimes: He, too, was a mixer driver who was sent to Dr. Mills for a
physical examination on June 28, 1961. At the time of his examination Grimes was
71 years of age! Dr. Mills found that Grimes had had a cataract in April 1961, and
that he had only 20/200 vision in his left eye. He explicitly noted both on the face
of his report and in his comments on the referral form that Grimes should have his
vision corrected before driving. Nevertheless, Dr. Mills gave Grimes an A rating!
When he was asked to explain this rating Dr. Mills was for once completely non-
plussed. He could only say that the rating must have been a mistake. When Poe
was asked why he had allowed Grimes to continue to drive, although his vision had
not been corrected, he had to admit that he had disregarded the doctor's
recommendation.
L. B. Hordge: He was a laborer at one of the batch bins, who was referred on
June 16, 1961, to Dr. Mills on a form that indicated he was being sent for an annual
physical examination. Dr. Mills found that Hordge had a blood pressure of 180/ 100,
and that he was overweight. He weighed indeed 271 pounds! Dr. Mills rated him
B, and Poe retained him. Asked to explain this decision, especially in view of the
fact that Hordge had the same blood pressure as Swoboda, who, moreover, weighed
only 148 pounds, Poe explained that Hordge was a laborer rather than a mixer
driver, and was, therefore, less likely to have compensable injuries, and that in any
event his understanding was that Hordge's high blood pressure was due to his over-
weight condition. It seems also that Poe advised Hordge to reduce.
Lawrence E. Messick: He was also a mixer driver who was referred to Dr. Suarez
for examination on June 9, 1962, on a form that indicated be was being sent for
an annual physical examination. Dr. Suarez found that Messick had heart disease
and an inguinal hernia, and gave him a C rating. Poe testified tht Messick was put
back to work after he had a hernia operation. On cross-examination, it was called
to Poe's attention that even after the operation, be would still have heart disease.
He thereupon explained that he had checked with the doctor and with Messick him-
self and that the latter had told him that he had had is heart condition for many, many
years, and that it had not bothered him.
The record shows a good basis for the special consideration shown by Poe in the
case of Messick. The latter carried a tale to Poe that one of the strikers Howard S.
Grey, had made threats against an employee if he did not sign a union authorization
card 45
E. B. Starling: He was a cement unloader in the ready-mix department who was
referred to Dr. Mills for examination on June 21, 1961, and Dr. Mills found that he
had cement-contact dermatitis. Dr. Mills noted in his comment on the referral form
that Starling had been with the company 10 to 12 years, and rated him B. When
Dr. Mills was asked what the length of Starling's employment by Tampa Sand had
to do with his medical condition, he declared that it was always interesting to know
whether "you are doing a pre-employment examination or an annual examination,
' The case of Grey is discussed infra.
221-731-67-vol. 158-15
210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
if the employee is a good worker, if he is-if he's been there for a great length of
time and so on , but it should not alter your physical findings, no " He was then
asked whether he knew that there had been a strike at Tampa Sand, and he, of
course , admitted that he had such knowledge
After receiving the report on Starling, Poe decided to retain him When he was
ouestioned about the basis for his decision, Poe was asked whe Cher he had treated
Owens and Starling alike, since they both had cement contact of rmatitis He there-
upon declared that "you can't compare the two," and proceeded to explain that Owens
back was still bothering him, and that Starling had "just a skin disease that can be
cleared up very readily " He did not, however, explain why Owens' supposed skin
disease could not be cleared up just as readily
The disparate treatment of the strikers is also shown statistically There were 14
nonstrikers who also took physicals after the inauguration of the program, and they
all received A or B ratings and retained their employment except F leming and Messick,
and the disqualification of even these two was only very temporary In addition, there
were 25 striker replacements who took the physical examinations at the same time,
and all of them, without a single exception, passed their examinations Indeed, all but
10 of the 25 received A ratings On the other hand, of the total of 20 strikers who on
their recall took physical examinations, 7 received unsatisfactory ratings and lost their
jobs either on the same day of their recall or very shorty thereafter This represents
a job mortality of 35 percent as compared to virtually no mortalities among the non-
strikers and striker replacements
There was also another respect in which the returning strikers were treated in a dis-
criminatory manner As strikers they never ceased to be employees but, so far as the
taking of physical examinations was concerned, they were treated as new employees,
and were required to take the physical examinations before they were put back on the
payroll This was admitted by both Poe and Stubbs Thus, the strikers, unlike the
nonstrikers and still incumbent striker replacements, did not take their physical exami-
nations in alphabetical order but in the order of their return Since a majority of the
strikers have surnames that begin with the letters in the second half of the alphabet,
moreover, they would not have been subjected to physical examinations until some
time after their recall This may explain why Respondents officials hastily abandoned
the natal system It was ill suited to the primary objective of inaugurating the physical
examination program
4 The physical examination program as a scheme to disqualify
the maximum number of returning strikers
The mere fact that the returning strikers were treated as new employees for the
purpose of the physical examination program was discriminatory, for, being unfair
labor practice strikers whose work had ceased as a consequence of unfair labor prac-
tices, they remained "employees," as expressly provided in Section 2(3) of the Act
They were also however, made the victims of discrimination by the manner in which
the physical examination program was applied to them The evidence of this seems
overwhelming
This is not a case in which the Respondent could reasonably plead that its benef-
icent intentions were betrayed by the employment of bungling physicians The crux
of the case is not that the physicians made mistakes-if indeed they were mistakes-
but rather the alacrity with which the Respondent's own agent seized on these mistakes
to disqualify the returning strikers, and his almost total indifference to correct diag-
noses in the case of the nonstrikers and striker replacements It is evident that Poe
was ready to continue to employ the halt and the nearly blind, provided only that they
had not participated in the strike, and equally ready to get rid of any striker whose
physical condition afforded any justification, real or apparent He terminated strikers
even when it was clear that they had physical defects that could easily be remedied by
medication or surgery, and retained nonstrikers who had conditions that were incur-
able The motivation of such decisions could only be discriminatory
A finding of the discriminatory application of the physical examination program is
sufficient in itself to invalidate the action taken in seeming to reinstate the strikers and
in subjecting them at the same time to physical examinations as a condition of rein-
statement But a fair preponderance of the evidence also indicates that one of the
motives-if not indeed the primary motive-in adopting the physical examination
program was its utility in disqualifying the maximum number of reutrning strikers
A better scheme for this purpose would be difficult to imagine Considering the
number of ills that the flesh is heir to, a physical examination program , even if admin-
istered with complete competence and probity, would be bound to result in a certain
CONE BROTHERS CONTRACTING -COMPANY 211
number: of disqualifications. Administered with -anything less than. complete objec-
tivity, the disqualifications would multiply proportionately . - Precisely because of the
inherent utility of the program , it must be scrutinized closely.
The Respondent took considerable pains to show that the-institution of the safety
1
program and the consideration of the medical examination program antedated the
return of the strikers . There can be no doubt that this was so. James was employed
in the year before the strike, and some steps were taken to establish a safety pro-
gram . There was also some discussion concerning annual physical examinations
before the return of the strikers and at least the implementation of the program also
occurred before the return of the strikers . It occurred indeed before the issuance of
the Trial Examiner 's Intermediate Report in the unfair labor practice proceeding.
But it did not occur before the commission of the Respondent 's unfair labor prac-
tices, the filing of the charges which led to the unfair labor practice proceeding, and
the hearing on these charges that ran from January 4 to February 9, 1961. Signifi-
cantly, it was shortly after this time that , according to James, the decision was taken
to go ahead with the physical examination program . This is consistent with the
assumption that even then the Respondent was preparing a second line of defense,
and that part of the appeal of the physical examination program lay precisely in the
fact that it could be made to serve a dual purpose . But everything was still in sus-
pension , and no physical examinations had actually been ordered . The first physical
examinations were not actually given until after the issuance of the Trial Examiner's
Intermediate Report on May 26, 1961. When the first physicals were finally given,
moreover, on June 9 , 1961 , they were not given according to the prearranged plan,
which called for giving them in the months of the employees' birthdays but under a
new plan, the adoption of which was necessary to 'carry out the discriminatory objec-
tive of the program . The change from the natal to the alphabetical system certainly
did not antedate the issuance of the Intermediate Report in the unfair labor practice
proceeding.
The manner in which the program was carried out also supports the conclusion that
one of its objectives was discriminatory ab initio . Although there is no need to
recapitulate the incidents already related , it must be emphasized that if the Respond-
ent's officials had had no discriminatory motive in inaugurating the program, they
would have been more scrupulous in their selection of the doctors who were to give
the physical examinations . Knowing that they would be examining many employees
who would be returning strikers, they would have avoided the selection of doctors
whose good faith could be challenged.
Instead , they selected cooperating physicians with whom they were personally
acquainted , who were already handling their compensation cases, and who were
already dependent on them for a good part of their income. The evidence shows,
moreover, that Poe was in frequent touch with the physicians , and that the physicians
did cooperate , in fact, by considering other than strictly medical factors in classifying
the employees whom they examined . They could have done so only on the basis of
information which they obtained through personal sources rather than from the
referral forms . The failure of the doctors and of Poe to read the "Instructions to
Physicians" and to guide themselves by these instructions indicates , furthermore, that
they were to constitute merely a facade for another objective . Poe betrayed the nature
of this objective when he unwittingly made the telltale remark that he did not go so
much by the written instructions but by what the company officials had told him to do.
What the company officials had told him to do was to get rid of as many of the return-
ing strikers as he could.
The conclusive proof of this is to be found in the subsequent history of the so-called
annual physical examination program . In fact , it was not an annual program at all.
Poe told the truth at least in part about this, when he testified as follows:
Q. . . . Can't you be a little more certain as to whether or not you had a physi-,
cal examination for each employee each year?
A. Well, like I say, we are supposed to, sir.
Q. But you don't know in fact?
A. I don't know that we have got one on every man annually, no, sir.
Stubbs, the Respondent 's assistant secretary, did not tell even part of the truth about
this, however, for he testified flatly: "At the present time all employees are periodically
notified to go to a doctor for an annual physical ." [Emphasis supplied .] In fact,
Strickland 's summary of the results of the physical examinations shows that while a
few employees received physical examinations in 1962 , 1963, and 1964-no doubt
-because some special reason for reexamining them existed-anything that could with
any degree of accuracy be described as an annual physical examination program was
212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
abandoned in the year of its birth. Having served its purpose , which was to disqualify
a maximum number of the strikers, the "annual" physical examinations program was
quietly shelved.
I find that the reinstatements of Theodore F. Gardiner, John D. Owens, Joe
Swoboda, Jimmie Lee Vaughn, Julius Wigham, Allen Walter Wright, and Joseph C.
Wright, who were in fact employable, were sham, and that their backpay has not
been permanently tolled, except in the case of Joe Swoboda, whose right to backpay
was terminated on May 26, 1962, when he suffered a heart attack which deprived him
of any further capacity for employment, and except in the case of Allen Walter
Wright, whose backpay period terminated with his reinstatement on October 2, 1962.
C. The alleged misconduct cases
The Respondent refused to reinstate two strikers who applied for reinstatement on
the ground that they were guilty of misconduct that is a bar to their reinstatement.
These two employees were Howard S. Grey and Charles F. Pitts.
Howard S. Grey: Poe testified that he refused to reinstate Grey, who was a dis-
patcher, because of two alleged incidents that occurred at least a few weeks before the
strike. The first of these alleged incidents involved Lawrence Messick, the nonstriker
already mentioned, who, according to Poe, told him several weeks before the strike
that, in an effort to get him to sign a union authorization card, Grey had seized him
bodily and threatened him with harm if he did not sign the card. Poe also testified
that he spoke to another one of the employees, Bobby Jones, who claimed to have wit-
nessed the incident, and that Jones confirmed Messick's story. As for the alleged
second incident, this, according to Poe, involved a notice posted on the company
bulletin board in which the Company's policy on the Union was stated, although Poe
could no longer recall what was stated in the notice. Poe testified that he was told by
some employees, whose names he could not even recall, that Grey had pulled this
notice off the bulletin board.
Poe himself did not observe either of the alleged incidents. Except for speaking
to Bobby Jones, he did not investigate either of them. He did not confront the culprit
himself, moreover, with the accusations against him, and afford him an opportunity
to give his version of the incidents. At the hearing the Respondent called neither
Messick, nor Jones, nor any other employee who claimed to have witnessed the inci-
dents in which Grey was allegedly involved and, consequently, it was not possible to
test the truth of their stories by cross-examination.
During Poe's cross-examination he was asked the highly relevant question why be
had not discharged Grey before the strike if he believed him to be guilty of miscon-
duct. To this question Poe replied that he had not discharged Grey for fear of trig-
gering a strike, or provoking unfair labor practice charges. The good faith of this
explanation collides with the fact that it was none other than Poe who had taken
actions that had triggered the strike in the present case and had led to the filing of
unfair labor practice charges. Whatever the reason, however, the fact remains that
Poe continued to employ Grey for at least several weeks after his alleged misconduct.
By doing so he necessarily condoned whatever misconduct Grey may have been guilty
of. I find that Grey was entitled to reinstatement.
Charles F. Pitts: Poe testified that Pitts, a white man, who was mixer driver, had
not been offered reinstatement because he had been arrested for assaulting Alfred
Williams, a Negro, who had been hired as a mixer driver during the strike. Both Pitts
and Williams testified concerning this assault, which undoubtedly occurred. However,
their stories differ somewhat with respect to important details, especially with respect
to the immediate provocation for the assault.
It seems that at the intersection of Skipper Road and U.S. Highway 41 there was
located a gasoline service station known as the Seymour Service Station. The location
of the service station was only a few blocks from where the strikers were picketing.
Seymour, the owner of the station, had posted a sign on the premises reading: "We
refuse service to any of the Cone Brothers or Tampa Sand scabs." When he was not
on the picket line, Pitts worked at the Seymour Service Station, and he had been
instructed-by Seymour not to serve any of the "scabs." On the day of the assault,
Williams was driving home after quitting work when he found that his car was "run-
ning hot," and he stopped at the Seymour Service Station to get some water for his
radiator.
The testimony of Williams is that he did not see the sign declaring the service station
off-limits to "scabs," and he proceeded to fill his radiator with water from a 2-gallon
water bucket when he was approached by Pitts who told him that the place was off-
limits to "scabs," and then hit him with the water bucket which he had put down,
CONE BROTHERS CONTRACTING COMPANY 213
although he had said nothing in reply to Pitt's remark and had made no movement of
a threatening nature. Williams plainly contradicted himself, however, in testifying
as to the precise moment when Pitts hit him with the water bucket . He first testified
that he was hit as he was getting into his car but a moment later he was testifying that
he was hit as he was letting the hood of his car down.
The testimony of Pitts is that he approached Williams as he picked up the water
bucket to go to the spigot to get water ; that when he told Williams that the place was
off-limits to him, the latter replied : "Who the hell are you to tell me what to do?;";
that he then remarked further to Williams, "I 'm not telling you what to do, I'm telling
you the orders I have from the boss. Come on give me the bucket and go on across
the street to the next station , or wherever you can get some water "; that Williams then
put the water bucket down and drew back his clenched fist as if to strike him; and
that he then picked up the water bucket and struck Williams in self-defense.
The blow landed on the left side of Williams ' head , and he had to be taken to the
hospital. His wound required 16 stitches and he lost 3 weeks of work. Pitts was
arrested a day or two after the assault but he was never tried for it , and so, of course,
he was never convicted.
I credit the testimony of Pitts rather than that of Williams with reference to the
circumstances of the assault and its immediate provocation . Thus , I must conclude
that Williams was a trespasser at the Seymour Service Station , for even if he did not
see the sign warning "scabs " from the premises , he refused to leave after he was
requested to do so. Since he also clenched his fist as if to strike Pitts , he also made a
threatening gesture which was the immediate provocation of the assault . In my view
Pitts was not justified in striking Williams with a water bucket , for this involved the
use of more force than was necessary . Nevertheless , the fact remains that the local
authorities saw fit not to prosecute Pitts for assaulting Williams, and thus he does not
stand convicted of any offense.
Pitts himself testified , moreover , that although he had two conversations with Poe
after the assault the latter not only did not accuse him of misconduct but assured him
that he harbored no ill-will toward him because of the strike . The reason that Poe
gave for not reinstating Pitts was that he had no job available . Thus , as Pitts testified:
Q. Did the company ever tell you what its reason was for not reinstating you?
A. Yes, sir, he told me that-
Q. Who's "he"?
A. Charlie Poe, the superintendent of Tampa Sand. Both times I asked him
for my job back he said he was overloaded with help, and that he didn't have an
opening at the present time, and I said , "Charlie I hope there is no hard feelings
due to the strike?" And he said , "No, not as far as I'm concerned."
Q. He said-you said to him there is no hard feelings , you hope there is no,
hard feelings as far as the strike?
A. Yes.
Q. And what did Mr. Poe reply?
A. He said, not as far as I'm concerned.
Q. Did any company official accuse you of misconduct in any way whatever?
A. No, sir.
Q. Misconduct was never given to you as a reason for the company's failure
to reinstate you at any time?
A. No, sir, it was not.
I fully credit this testimony of Pitts concerning his conversations with Poe. The
latter was not called on to deny it specifically. In the midst of a colloquy between
counsel about whether Pitts had committed a "crime," Poe interjected the comment:
"I don't believe that I have ever talked to Mr. Pitts since that incident." If this was
intended as a denial of Pitts' testimony that he did talk to Poe, it is certainly a very
weak denial, and certainly not credible. It is stipulated that Pitts applied for rein-
statement on June 7, 1961, which is as early as any of the strikers applied for reinstate-
ment. The applications were generally made to Poe in person, or Poe would seek out
a particular striker either by telephoning to him or by visiting him personally. If Poe
never spoke to Pitts, the application of the latter for reinstatement would never have
been admitted. As Poe, in his capacity as a witness, was attempting to justify his
refusal to restore Pitts to the Respondent's payroll , he had a strong motive for failing
to remember anything which might indicate that he had forgiven Pitts. In any event,
the sincerity of Poe in maintaining that he refused to reinstate Pitts because of his
misconduct is open to question.
The question presented in Pitts ' case is not whether he should be reinstated. In the
first week 'of January 1964 he had a heart attack which has incapacitated him from
214 DECISIONS.'OF- NATIONAL LABOR RELATIONS BOARD
further employment. The question is thus rather whether he should be deprived of
backpay, although the, answer to this question depends on whether there has been
such misconduct as to justify the denial of reinstatement 46
While the mere fact that Pitts was never convicted of any crime is perhaps not
decisive,47 in view of the circumstances . of the case, I must conclude that Pitts
should have been reinstated, and that he is entitled to backpay from June 7, 1961,
when he applied for reinstatement, to January 1, 1964, when he became incapacitated.
It- is settled law that the misconduct of a striker constitutes a defense to a refusal to
reinstate him only if the employer's refusal was in fact motivated by the misconduct.
This pfinciple has been applied in N.L.R.B. v. Anchor Rome Mills, 228 F. 2d 775, 782
(C.A. 5), by the very court which has entered the decree in the present case. In that
case the court held that although a striker was guilty of violence the employer could
not plead -his misconduct as a defense to his reinstatement because his-application for
reinstatement had been rejected on the ground that no job vacancy was available.
D. The voluntary renunciations of employment
There are-four cases in this group, and in all four of them there is no dispute but
that the particular strikers made timely application for reinstatement and were
offered reinstatement to their former positions as mixer drivers. Moreover, in these
four cases the renunciation of further employment or reinstatement are evidenced by
written statements.
Harold G. Beunk: He has already been mentioned as the mixer driver who claimed
that after his ,reinstatement he was assigned to drive a wornout truck which had
defective brakes. Beunk, who was reinstated on July 27, 1961, voluntarily quit his
employment on August 16, 1961, and, at the request of Poe, signed a statement, which
reads as follows: "I am leaving Tampa Sand & Material Co. on my own accord
because I now have a better job." Beunk himself testified that, in requesting him to
sign the statement, Poe told him that he wanted it in order to avoid further difficulties
with the National Labor Relations Board. Nevertheless, Beunk also attempted to
repudiate his statement. On voir dire examination, he testified that he quit his employ-
ment because of the defective brakes on his truck. On cross-examination, however,
when he was asked whether this was his only reason for quitting his employment, he
testified: "No the fact that I was told that I couldn't get any hospitalization, because
at that time I-my wife and family was to be considered, and due to the fact that I
was given an old piece of equipment on my return, after leaving a brand new truck,
and furthermore the hours that we were held down to wouldn't permit me to get by
with it, that's to live on." This, compared to the alleged condition of Beunk's truck,
was quite a variety of reasons.
Poe testified that when he spoke to Beunk about his leaving the latter told him that
he was leaving for a better job, which, apparently, was driving a long-distance truck.
Charles W. Davis: He was offered reemployment on August 31, 1961, but declined
the offer, which was made to him by Stephens, Poe's assistant, who, at the instance of
Poe, had come to his house to offer him reinstatement. According to the testimony
of Davis, he declined the offer because he had heard that they were only working 2 or
3 days a week at Tampa Sand. Apparently, the principal sources of his information
were his brother, Wyman Davis, and his father, Gilbert W. Davis, both of whom are
claimants in the present proceeding. Wyman Davis had already been discharged by
the Respondent because of too many unauthorized absences from work, and the law-
fulness of his discharge is not contested by the General Counsel. Gilbert W. Davis
was not working at Tampa Sand, for he had already declined reinstatement, as is about
to be related.
Despite his contentions at the hearing, Charles W. Davis, like Beunk, had signed, at
the request of Stephens, who had been sent to him by Poe, a statement which Stephens
wrote out and which reads as follows: "As of the above date (August 31, 1961) I
Charles W. Davis was offered my job back with the Tampa Sand & Material Co. of
which I decline due to my present employment with the Azzarelli Const. Co."
Stephens testified that when he offered reinstatement to Davis the latter told him
that he had a better job with Azzarelli, and that he would like to stay there. Davis
testified that he signed the statement which he gave to Stephens reluctantly but he was
equally reluctant to question the honesty of Stephens.
do The backpay is tolled as of the date of the misconduct , but in the case of an unfair
labor practice striker seeking reinstatement there would be no backpay at all in a case
in which the misconduct antedated the application for reinstatement.
47 See N.L.R.B. v. Longview Furniture Company, 206 F. 2d 274, 275 (CA. 4).
CONE BROTHERS CONTRACTING COMPANY 215
Gilbert W. Davis: He testified that about 2 weeks after his application for reinstate-
ment, which was made on June'7,'1961, Poe telephoned him between 4:30 and 5 p.m.
and told him that he wanted him to report'back to work at 7 a.m. the following morn-
ing, but he replied that he was working for Joe McLeod and that he could not quit
on such short notice. Davis further testified that that same evening just after dark
Stephens came out to his house and asked him to sign a statement-which he wrote out
to the effect that he had been offered a job but refused it. Davis did sign a statement
which is dated July 31, 1961, and which reads as follows: "I Gilbert-Davis as of the
above date have been offered reemployment by the Tampa Sand & Material Co., of
which I decline due to present employment by Joe McLeod Concrete."
. Poe's testimony with respect to Gilbert W. Davis is entirely inconsistent with that of
the latter. Poe testified that he personally went to see Davis to ask him to come back
to work, but that Davis declined the offer, giving as his reason that he was working for
Joe McLeod and' he was satisfied with his job. Poe testified further that he subse-
quently sent Stephens to Davis to get a statement from him, and that Stephens came
back with Davis' statement. Poe specifically denied that Davis had asked for more
time to consider the offer of employment, and so, too, did Stephens whose testimony is
the same as Poe's. Indeed, Stephens testified that Davis told him that he was happy
working for Joe McLeod. Davis was employed there as an acting foreman, making
$80 a week.
It seems evident from the testimony not only of Davis but also of Poe and
Stephens that an offer of reinstatement was made to Davis on only one occasion, and
that this offer was made on July 31, 1961, the date of Davis' statement. Davis was
obviously mistaken in testifying that Stephens' visit to his home occurred about 2
weeks after he applied for reinstatement and that he signed his statement that same
day. Yet the General Counsel alleges in its .backpay specification that Davis applied
for reinstatement on June 21, 1961, and Respondent alleges in its answer that Davis
,was "offered reinstates ent on June 21, 1961, and on July 31, 1961, which he declined
on both occasions." 48 On the basis of the record evidence, I can only find, however,
that Davis was offered reinstatement on July 31, 1961, and that he rejected the offer
because he preferred to work for Joe McLeod.
Guy T. Wells: Wells was offered reinstatement on August 22, 1961, but declined
the offer. It seems that Wells, who had been working for Tampa Sand for over 15
years, had developed a hernia early in his career as an employee, and he was wearing
a brace for support, which was known to Poe and other officials of Tampa Sand. So
when Stephens came to see him to offer him reinstatement, knowing that physical
examinations were being given to returning strikers, and feeling that he could not pass
such an examination because of his hernia, he rejected Stephens' offer. "I told him,"
Wells testified, "I was already working with Azzarelli, and I was making good 49
money. I didn't feel that I could go back there and get turned down." At Stephens'
request, however, Wells signed a statement reading as follows: "On the above date
(August 22, 1961) I G. T. Wells was offered reinstatement with the Tampa Sand &
Material Co., of which I declined due to my present employment with the Azzarelli
Const. Co."
Wells testified explicitly that he understood the language of the statement which he
had signed, and that he had signed it voluntarily. He also testified that he had been
employed continuously by Azzarelli and that he was working there at the time of the
hearing. He also testified that he was driving a dump truck for Azzarelli, which he
liked much better than driving a mixer, and that he was happy in his job. The testi-
mony of Stephens is in entire agreement with Wells' own testimony.
I find that Harold G. Beunk, Charles W. Davis, Gilbert W. Davis, and Gay T. Wells
voluntarily renounced further employment by Tampa Sand as of the dates of their
statements. I credit in these cases the testimony of Poe rather than that of the
claimants , where the testimony is inconsistent , because Poe's testimony is corroborated
by Stephens, whom I regard as a credible witness, and the testimony of the claimants
is inconsistent with their contemporaneous written statements. It is apparent, more-
over, that several years after giving these statements the claimants would have strong
reasons for repudiating them. When they gave them they had what evidently appeared
'8 Counsel for 'the parties made no stipulation as to the date or dates on which rein-
statement was offered to Gilbert W. Davis, nor did they make any statements explaining
their inability to enter into such a stipulation.
'e This word erroneously appears in the transcript as "gross." It is hereby corrected.
216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to them to be satisfactory substitute jobs, and the backpay which was then owing
to them was small.50 At the time the claimants gave their inconsistent testimony, they
had hopes of collecting large amounts of backpay.51
So far as Charles W. Davis and Guy T. Wells are concerned, their alleged reasons
for rejecting reinstatement would seem to be only rationalizations suggested to them
by the situation at Tampa Sand. The fact that the rationalizations have some degree
of plausibility does not establish that they were the real motives of Davis and Wells.
Neither of them ever put their alleged beliefs to the test, moreover, by offering to
accept reinstatement.
I am aware'that it has been held in certain cases that the rights of discriminatorily
discharged employees to reinstatement and backpay are not subject to private adjust-
ment. However, Beunk, the two Davises, and Wells were not discriminatees but
returning strikers. In any event, I have not treated their statements as agreements
binding on the Board but as evidentiary facts relating to their motives for rejecting
further employment.
E. The alleged failures to make offers of reinstatement,
or to effect proper reinstatement
Leroy Smith: Although it is conceded that Smith applied for reinstatement on
June 7, 1961, there is a sharp dispute as to whether he responded to one or more
offers of reinstatement beginning with July 27, 1961. Poe and Stephens testified that
they made such offers both over the telephone and in person. Smith, who as a witness
revealed a marked degree of vagueness about time sequences, admitted that his wife
told him that some men had been to the house to see him, but that she "didn't call any
names." Mrs. Smith testified that in 1961 she received visits from two men who told
her that they were from Tampa Sand but she denied that these men identified them-
selves or told her that they had come to offer her husband employment.
She further testified that on the occasion of one of the visits, she simply told the
men that her husband was not at home but that on the occasion of the other visit she
told them that her husband was not at home because he was fishing.
There was a great hassle about whether the Smiths had a telephone. The General
Counsel made a determined effort to show that the Smiths had no telephone, and that
Mrs. Smith could not, therefore, receive any telephone message from Poe. While the
Smiths did not have a telephone, their landlady had one, and Poe undoubtedly had the
landlady's telephone number. Called as a witness in rebuttal, Mrs. Smith undertook
to deny positively that her landlady ever called her to the telephone in 1961!
I find it impossible to credit the testimony of Smith and his wife. Since it is appar-
ent from their testimony that they did receive visits from emissaries who revealed
that they were from Tampa Sand, it is very difficult indeed to believe that they were
not told what their mission was. Mrs. Smith further undermined her credibility by
undertaking positively to deny receiving a telephone call several years previously,
although it was firmly established that Poe was in possession of the landlady's tele-
phone number.
It seems that Poe had those drivers who had applied for reinstatement put down
on a sheet of paper the names, addresses, and telephone numbers of the drivers.
Smith had put down his landlady's telephone number on this sheet of paper, which
was shown to the General Counsel and examined at the hearing. Poe also had notes
concerning his contacts with the drivers and these notes also showed that he had
contacted Mrs. Smith on July 27, 1961. I perceive no good reason for doubting
Poe's testimony, therefore, that an offer of reinstatement was made to Smith on
July 27, 1961. If this offer were made orally to Smith, although in all other cases,
or in most cases, the offers were made by letter, it would raise grave suspicions con-
cerning the offer to Smith. But, actually, the offer of reemployment was made to
Smith in precisely the same manner as it was being made to all the other strikers.
The General Counsel agreed that most of the other strikers had been recalled,
although the method used was the same as in the case of Smith. The General Coun-
sel has not shown an adequate basis for doubting the use of this method in the case
of Smith. I find, therefore, that Smith was offered reinstatement but failed to act
on the offer in a reasonable time, and that he is not entitled to backpay.
w Beunk would have collected 15 days' backpay ; Charles W. Davis 17 days' backpay ;
Gilbert W. Davis 49 days' backpay ; and Guy T. Wells 8 days' backpay.
"In the case of Beunk, the backpay claimed in the specification was $1,982.41 ; in the
case of Charles W. Davis, $2,768.75; in the case of Gilbert W Davis, $3,118 13; and in
the case of Guy T. Wells, $ 3,522 58.
CONE BROTHERS CONTRACTING COMPANY 217
Chester P. Green: Before the strike Green was a hatcher, employed on a straight
salary basis of $80 a week rather than on an hourly basis as in the case of the mixer
drivers. When Green joined the strike, his job as a batcher was taken over by Sidney
Jones, a relief man . Also, one of the mixer drivers, Holly Lyles, was made a batcher
after the strike.
Green applied for reinstatement to his job on August 28, 1961, and Poe offered
to reinstate him but only as a mixer driver, effective August 30. But Green refused
this offer insisting on being reinstated to his job as a hatcher. Poe did not tell Green,
moreover, how long he would be employed as a mixer driver; he told Green only
that he would be reemployed as a hatcher as soon as he had an opening.
Green was justified, clearly, in refusing reinstatement as a mixer driver, a type of
job that was far less important and certain in its earnings than a batcher's. Indeed,
a batcher in a concrete mixer plant is a key employee,52 and this may be the explana-
tion of Poe's reluctance to give him a batcher's job at a time when the strikers were
returning to work. Even if it could be said, moreover, that Green' s earnings as a
driver would have been substantially the same as his earnings as a batcher-which is
extremely doubtful, considering the decline in business in 1961-he would still have
been entitled to his former job. An offer of substantially equivalent employment
is not sufficient unless the applicant's former job has been abolished.53
Never having been offered reinstatement to his former position , Green's backpay
has not been tolled. Respondent seems to contend that since Green refused to accept
a job as a mixer driver, his interim earnings should be increased by the amount that
he would have made if he had accepted the job. This does not seem to be a tenable
position. Green's interim earnings are those which he actually made in his interim
employment when he was denied proper reinstatement. Actually, Green made in
his interim employments almost as much as the gross backpay claimed for him. This
amount is $437.38, although the backpay period extends over several years.
Andrew J. Johnson: Before the strike, Johnson, a Negro laborer, was employed
at the Skipper Road batch bin, where his work consisted of unloading cement and
loading rock and sand. On August 28, 1961, Johnson was reinstated as a laborer on
what was known as the contract crew, and was required to perform such work as
grading out forms and pouring concrete floors. He also drove a truck part of his
time. After a while he was transferred from the contract crew to the 301 batch bin,
and finally was put back at the Skipper Road batch bin. Both before and after the
strike Johnson received the same rate of pay, which was $1.20 an hour. Although
work elsewhere was slack, be worked 5 days a week while on the contract crew;
alternate 4 and 5-day weeks while at the 301 batch bin; and when he was finally
returned to the Skipper Road batch bin, he worked 5 days a week. The reason why
Johnson was not immediately put back to work at the Skipper Road batch bin was
the decline in the work there.
Apparently, the General Counsel contends that Johnson was not reinstated to his
former job but there would seem to be no adequate basis for this contention. As a
general laborer, Johnson had no special assignment and performed whatever labor
was available. The work he was required to do while working on the contract crew
was not essentially different from the work which he had done at Skipper Road. In
fact, by being reinstated on the contract crew, he received steadier employment.
I reject, therefore, the contention that his reinstatement was not proper.54
'Dwight Stringfellow: Apart from the two strikers who had died before the hear-
ing, Stringfellow was the only striker who chose not to appear and testify at the
hearing. All the record shows about him is that he was a mixer driver 55 before the
strike , who applied for reinstatement on December 6, 1961, and was offered rein-
statement on January 15, 1962.56 Yet in the backpay specification there is claimed
for him backpay until late in May 1963. At the close of the General Counsel' s case,
a motion was made by Respondent to eliminate backpay for Stringfellow after
en See N.L.R .B. v. Charley Toppino and Sons , Inc., 332 F. 2d 85 (C.A. 5), in . which it
was even held that a batcher was a supervisory employee.
10 See The Chase National Bank of the City of New York , San Juan, Puerto Rico,
Branch, 65 NLRB 827, 829.
w See Mayrath Company, 132 NLRB 1628, 1635.
N This is established by the allegation in the backpay specification and the admission in
the answer.
16 The General Counsel and Respondent stipulated as to these facts.
218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
January 15; 1965. The General Counsel- resisted the granting of this motion appar-
ently on the ground that he had not been offered proper reinstatement but it had
not adduced any such evidence and, for this reason, the motion was granted.
Respondent also contends that Stringfellow should be denied backpay even for the
period between December 6, 1961 , and January 15, 1962, because he unreasonably
delayed for 5 months after the termination of the strike in seeking reinstatement.
Such a delay would seem , indeed, to be unreasonable ,57 and I find, therefore, that
Stringfellow is not entitled to any backpay.
George Hendry: Before the strike, Hendry had been working for Respondent for
about 23 years. He was reinstated by Respondent as a mixer driver on August 3,
1961, and worked continuously for Respondent until October 24, 1962, when he quit,
apparently because of illness. It is difficult to fathom in the case of Hendry the
basis for continuing his backpay during his employment by Tampa Sand but it seems
that his experience after he returned to work is offered as a prime example of the
allegedly harassing working conditions to which the returning strikers were subjected.
The complaint seems to be that, although before the strike Hendry was not even
subjected to a harsh word when he wrecked his truck on some occasions, he was
taken to task when after his return to work he backed into a concrete pillar some-
where. Stephens went out to investigate the customer 's complaint but it seems that
Hendry was exonerated ; certainly he was not penalized in any way. There would
seem to be no basis for questioning the adequacy of Hendry's reinstatement.
F. Reinstated but subsequently discharged strikers
Six of the strikers who were reinstated by Respondent were subsequently terminated,
in addition to those who failed to pass their physical examinations. These six strikers
were Louis M. Coppola, Wyman Davis, Albert Landgren, Otho Mathis, Walter O.
Schneider, and Dee Toran. What they have in common is that all of them except
Wyman Davis and Dee Toran were discharged from approximately 2 months to
approximately 3 years after their reinstatement. Curiously, one of the exceptions,
Wyman Davis, was discharged on July 21, 1961, which was about 5 weeks after his
reinstatement but the General Counsel concedes that he was justly discharged because
of too many unauthorized absences. The General Counsel complains only that the
terminations of the other five reinstated strikers were unjustified, and he considers,
therefore, that they were never really reinstated. He takes the position, moreover,
that Respondent has the burden of establishing that they were terminated for just
cause.68
e1 See N.L.R .B. v. Biles-Coleman Lumber Co., 98 F 2d 18, 23 (C.A. 9) ; Crosby Chemi-
cals, Inc., 105 NLRB 152, 154 ; If. J. Oil & Refining Co., Inc, 108 NLRB 641, 684-685.
`s As establishing this proposition , he cites three cases but they do not seem to be in
point . United States Air Conditioning Corporation , 141 NLRB 1278, 1280, establishes
only the general rule that "the burden is upon the respondent to establish facts which
would negative the existence of liability to a given employee or which would mitigate
liability" ; the specific problem in this case was the availability of employment . N.L.R.B.
v. Broom & Root , Inc., 311 F. 2d 447, 454 (C.A. 8), holds only that where in a: backpay
proceeding the General Counsel has established the gross amount of backpay due, the
,respondent has the burden of establishing "facts which would negative the existence of
liability to a given employee or which would mitigate that liability." N.L.R.B. v. Bis-
cayne Television Corporation, 337 F. 2d 267, 268 (C .A. 5), holds only that the burden is
.on the employer who contends that discharges and demotions would have occurred sub-
sequently for purely economic reasons to establish that this was so. Respondent, which
contends , of course, that the burden is not on the Respondent to establish that returning
strikers were terminated for good cause, relies principally on N.L.R.B. v. Loren A. Decker,
d/b/a Decker Truck Lines, 322 F . 2d 238, 247 (C .A. 8), as establishing this proposition
but this case holds merely that when an employer's records show that an employee was
not available for the employment the burden shifts to the General Counsel to show the
availability of employment. Respondent complains that I erroneously put on the Re-
spondent the burden of establishing that the reinstated strikers were discharged for just
cause. Actually, the ruling was merely that when the General Counsel had established
that a reinstated striker had subsequently been discharged , the Respondent was obligated
to proceed with evidence justifying the discharge . This was not tantamount' to ruling
that the ultimate burden of proof was on the Respondent. This burden, should rest on the
General Counsel , as it certainly would in a contempt proceeding . See N.L.R.B. v. Reed
& Prince Manufacturing Co., 130 F. 2d 765, 768 (C.A. 1), and earlier cases there cited,
as well as Mastro Plastics Corp ., 136 NLRB 1342, 1347.
CONE BROTHERS CONTRACTING COMPANY 219
Even if it could be assumed, however, that this burden rests on the Respondent,
there is no convincing evidence that the six reinstated strikers under consideration
were discharged for unjust reasons. Conceivably, if it could be shown that their
subsequent discharges were part of a scheme, conceived ab initio, to reinstate them
temporarily but to get rid of them ultimately, there might be some basis for consider-
ing their reinstatement to be sham, and for continuing their backpay. But, as a prac-
tical matter, it must be difficult indeed to make such a showing. The difficulties
increase, obviously, the further removed the discharges are in point of time from
the dates of the reinstatements. Theoretically, the testimony should have stopped
as soon as it was shown that the subsequent discharges were wholly unconnected with
any scheme to defeat reinstatement. But, practically, as soon as the discharges began
to be explored, it was difficult to select a point at which to stop.
All five of the discharges occurred so long ago that the 6-month period of limita-
tion prescribed by Section 10(b) of the Act has, of course, expired. It is my view
that the justness of the discharges can no longer be determined by the Board in a
backpay proceeding, except, possibly in the cases of Coppola and Toran whose dis-
charges came relatively soon after their reinstatements. But since the evidence has
been taken, and, conceivably, the Board might wish to press contempt charges, as to
which there is no period of limitation, I shall proceed to comment, although briefly,
on each of the disputed discharges.
Louis M. Coppola: He was reinstated as a mixer driver on August 21 and dis-
charged on October 24, 1961. According to the testimony of Poe and Stephens, he
was discharged for making too many unauthorized stops, and for being uncoopera-
tive with customers and with shipping clerks, who complained about him. The
immediate occasion for his discharge was his stopping at an old tire place to look
at some tires, although his truck was then fully loaded. As Coppola had died prior
to the hearing, he did not, of course, testify and the incident which immediately trig-
gered his discharge could not be explored. The General Counsel contended, how-
ever, on the basis of an affidavit which Coppola had made, that the latter had merely
stopped at the roadside to eat lunch, as was the custom. Although the affidavit
was ruled inadmissible, the General Counsel was allowed to call more than half a
dozen witnesses to testify with respect to when the mixer drivers were supposed to
eat lunch. Their testimony only supports that of Poe and Stephens that the mixer
drivers were supposed to eat lunch either while waiting for a load, or on the job
while they were discharging their concrete.
Albert Landgren: He was reinstated as a mixer driver on June 28, 1961, and was
not terminated by Respondent until the latter part of May 1964, which was almost
3 years after his reinstatement. Landgren had a monumental record of absences
from work, having been absent no less than 10 times in 1964 alone , and having been
repeatedly warned about his absences. The immediate occasion for his discharge
was an absence of 4 consecutive days occasioned by the fact that all of Landgren's
children were ill at the same time! Landgren claimed that his wife had called the
dispatcher's office and obtained permission for him to be absent but when Poe dis-
charged him Landgren even failed to mention this. In view of Landgren's record, it
is not surprising that Poe should have finally lost patience with him, even though he
may have had a good reason for his last absence. Landgren was discharged for the
same reason as Wyman Davis, and this was conceded to be a just cause.
Otho Mathis: He was reinstated on June 13, 1961, as a mixer driver, and was dis-
charged on May 21, 1962, almost a year later. On the day in question, Mathis' got
off early in the afternoon and was about to punch his timecard, when Landgren,
apparently, in jest, according to Mathis, took it out of his hand and told him: "I'll
tell you when to punch the card," whereupon he replied: "Well, punch it out, I'm
going to go gas up and go home." Later in the day, after Landgren had delivered
a load, he came into the office to punch out and, after he had done so, reached out
and- took Mathis' card from the rack. He was observed in the act of doing so by
Leroy Smith, a mechanic, who was in charge of the office after the dispatcher left.59
Smith asked Landgren, "What are-you going to do with this card?" and Landgren
replied: "Mr. Mathis told me to punch his card out for him when I got off." Smith
then repeated what he had observed to Poe who discharged Mathis, despite, the Tat-
ter's protest that he had been free of evil intent. Poe did not discharge•Landgren,
however, because, as Poe testified, Landgren had told him the truth, and because of
his many' children: In the forensic battle which followed the testimony of the prin-
w This Leroy Smith is not to be confused with the other employee Hof the ' same name,
who failed to respond to offers of reinstatement.
220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cipals , a number of witnesses were called to testify with respect to whether one
employee was allowed to punch out another. Their testimony only created the usual
amount of confusion and contradiction but on the whole I am inclined to credit
Respondent's witnesses, and to refuse to believe that it was common practice for
the employees to punch each other out. Admittedly, Mathis had left early and did
not punch out but left it to Landgren to do it for him. This was an arrangement
that was bound to create suspicion , and I am not convinced that Poe acted unreason-
ably or unjustly in terminating Mathis. One of the General Counsel 's own witnesses,
J. L. Vaughn, testified that he had observed other employees punching each other
out, so that they could get paid for the whole day although they had been off all day.
Walter O. Schneider: He was reinstated as a mixer driver on June 30, 1961, and
worked for Respondent until April 19, 1962, which is almost a year later. He then
received an eye injury resulting in his losing one eye. This was not, however, a work-
connected injury. It seems that Schneider, whose wife was in charge of the county
dump , was engaged , as a sideline to his driving for Tampa Sand , in collecting junk,
and he had got a piece of steel in his eye while doing so. Actually, although a termi-
nation slip was entered in the case of Schneider, he was not discharged. According to
Poe, when he saw Schneider after his injury, he merely told the latter that he would
have to undergo a physical examination but he never heard from him again. Accord-
ing to Schneider, Poe told him on this occasion that "he didn't think the insurance
company would allow him to work a one-eyed truck driver" but he would check on
this and let him know, which, however, he never did. I credit the testimony of Poe
rather than that of Schneider who struck me as a not very estimable character, who
was living off his wife's income while pretending to be looking for work. It seems
also that before the strike Schneider had had his driver's license suspended. When
this happened, Poe gave him a laborer's job. Indeed, this accommodation seems to be
the whole basis of the General Counsel's case. But, if Schneider did not appear for
the physical examination, there is nothing further that Poe could do for him, and
even if he had put in an appearance, there may not have been a job available for him
at that time. As I am convinced that Schneider never made an honest effort to obtain
work, either before his reinstatement or after his termination, and that his occupation
when not employed by Tampa Sand was precisely the same as his occupation when he
was employed by Tampa Sand, I shall not recommend backpay for him.6°
Dee Toran: In the course of introducing Toran, it has already been mentioned that
he was discharged twice by the Respondent. After being reinstated, he was discharged
for the first time, apparently, on August 30, 1961.61 Toran admittedly burned out in
the space of 1 week two clutches on the truck which he was driving, although it was
an almost new Chevrolet truck, and he was accustomed to driving a Chevrolet truck,
having driven one before the strike. Toran always firmly believed that any trouble he
was involved in was not his fault but it is not possible to believe that he had nothing
to do with ruining the clutches of his truck. It would seem also that if Poe was trying
to get rid of Toran as a former striker he would have never reemployed him. But,
actually, he reemployed Toran in the last quarter of 1962,62 when the latter promised
to reform, and Toran worked until January 27, 1964, when he was discharged again
because he had caused three chargeable property damage claims in a period of 8
months. Toran readily admitted getting into these scrapes, which involved knocking
over bags of cement while backing, dumping cement on what later proved to be a
driveway, and running over an "exit" sign at a hamburger place, but he volubly main-
tained that he was not at fault in any of these instances. I credit, however, the testi-
c0 See H. J. Daniels and Blanche, co-partners, d/b/a H. J. Daniels Poultry Co., 65
NLRB 689, 692; East Texas Steel Castings Company, Inc., 116 NLRB 1336, 1376-1377,
enfd. 255 F. 2d 284 (C.A. 5).
m The General Counsel and Respondent would not stipulate as to when Toran applied
for reinstatement and when he was reinstated. In the backpay specification it is alleged
that Toran applied for reinstatement on June 7 and he was reinstated on September 13,
1961. The latter date is manifestly in error, since his first discharge was on August 80,
1961. In Respondent's answer, it is alleged that Toran applied for reinstatement on
June 17, 1961, and that he was reinstated on August 16, 1961. But in Respondent's
Exhibit 18, the date of Toran's reinstatement is given as September 13, 1961, which
agrees with the date in the backpay specification but is also manifestly in error unless
the date of discharge shown on Respondent's Exhibit 81, Toran's termination slip, is in
error. Toran's own testimony, which is quite incoherent, especially with reference to
dates, does not help to solve the problem.
es This is established in the relevant appendix to the backpay specification which is
based, of course, on Respondent's employment records.
CONE BROTHERS CONTRACTING COMPANY 221
mony of Stephens who investigated these mishaps and concluded that Toran was at
fault . But, even if Toran were wholly guiltless , I believe Respondent would have been
justified in discharging him as an accident -prone employee.
G. Reinstatement strikers still working for Tampa Sand
It has already been mentioned that seven of the claimants are still working foi'
Respondent. In addition to Allan Walter Wright, who was first discharged for failure
to pass his physical examination and then reinstated, these claimants are Robert E.
Glausier; Andrew James Johnson, the adequacy of whose reinstatement has also been
already discussed; Jeather W. Lumpkin; John S. Morrow; Sam Sollazzo; and Woodrow
Wilson, the sole survivor of the three discriminatees whose discharges led to the strike.
There is nothing to show that any of these reinstated strikers have been treated any
differently from any of the other employees. Indeed, in the more recent phases of
their employment, they seem to have received special tokens of favor. As already
mentioned, Allan Walter Wright and Robert E. Glausier have been assigned the two
newest trucks in the Tampa Sand fleet, and Johnson has received the steadiest employ-
ment perhaps of any of the strikers. In addition, Lumpkin was made a part-time
batcher in October 1962 and promoted to the full position of batcher in April 1964.
The only basis on which the General Counsel contends that the backpay of these
claimants has not been tolled is that they have worked fewer hours after their rein-
statement than they did before the strike due to Respondent's failure to dismiss the
striker replacements. This has already been found to be an inadequate basis for con-
tinuing their backpay beyond the dates of their reinstatement.
V. THE CALCULATION OF THE BACKPAY
A. The claimants entitled to backpay and their backpay period
The claimants entitled to backpay may conveniently be divided into three classes,
based on the length of their backpay periods. The first class may be described' as
short -term claimants have concluded ; and the third class as long-term claimants whose
backpay periods are continuing. Thus:
1. Short-term claimants to backpay
Name Backpay period
Harold G. Beunk_________ ________________________ 6/12/61 to 7/27/61
Louis M. Coppola_________________________________ 8/1/61 to 10/24/61
Charles W. Davis--------------------------------- 8/14/61 to 8/31/61
Robert E . Glausier_____ ___________________________ 6/12/61 to 7/28/61
George Hendry----------------------------------- 6/12/61 to 8/3/61
Andrew J.Johnson-------------------------------- 6/12/61 to 8/28/61
Albert Landgren__________________________________ 6/12/61 to 6/28/61
Jeather W. Lumpkin_______________________________ 6/12/61 to 8/1/61
John S . Morrow__________________________________ 6/12/61 to 6/30/61
Leroy Smith______________________________________ 6/12/61 to 7/27/61
Sam Sollazzo_____________________________________ 6/12/61 to 8/3/61
Dee Toran_______________________________________ 6/22/61 to 8/16/61
Guy T. Wells_____________________________________ 8/14/61 to 8/22/61
Woodrow Wilson______ __________________________ 6/12/61 to 6/13/61
2. Long-term claimants whose backpay periods have concluded
Name Backpay period
Theodore R. Gardiner_____________________________ 6/12/61 to 8/18/64
Otho Mathis------------------------------------- 5/26/60 to 6/13/61
Charles F. Pitts___________________________________ 6/12/61 to 1/1/64
Joe Swoboda _____________________________________ 6/12/61 to 5/26/62
Allan W. Wright---------------------------------- 6/12/61 to 10/2/62
3. Long-term claimants whose backpay is continuing
Backpay
commencement
Name date
Chester P. Green-------------------------------------------- 9/2/61
Howard S . Grey--------------------------------------------- 6/12/61
John D. Owens---------------------------------------------- 6/12/61
J. L. Vaughn------------------------------------------------ 6/12/61
Julius Wigham----------------------------------------------- 6/12/61
Joseph C. Wright-------------------------------------------- 6/12/61
222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It will be noted that Wyman Davis, who would otherwise be entitled to backpay
from May 26 , 1960 , to July 2, 1961 , when he was concededly discharged because of
too many unauthorized absences , has not been included among the long-term claim-
ants whose backpay periods have concluded . The reason for this is that he volun-
tarily gave up in the first quarter of his claimed backpay period what was undoubtedly
substantially equivalent employment . He was then employed by Wellman & Lord
Engineering Co., of Lakeland , Florida, and was earning substantially the same
amount as the gross backpay claimed for him. Davis himself characterized this job
as "a good paying job" but , he also testified , he decided to give it up because he
was a single man, and he felt that one of the other strikers who was seeking work
and needed the job more than he did should have it. In the succeeding quarters of
his backpay period , Davis was unable to obtain more than odd jobs , apparently. No
doubt Davis ' surrender of the Wellman & Lord job was highly altruistic but since-
it constituted a voluntary abandonment of substantially equivalent employment, I
must hold that he is not entitled to backpay.
B. The measures of backpay
To dispose first of the relevantly simple questions , I consider the measures of
backpay to be applied in the cases of Howard S. Grey, the dispatcher; Andrew J.
Johnson, the batch bin laborer ; and Chester P. Green , the batcher.
There is no dispute but that the backpay of Grey should be measured by the earn-
ings of Edward S. Dunning, who was also a dispatcher; the dispute is rather whether
their earnings were identical . Based on their earnings records, which are in evi-
dence,63 I must conclude that Respondent is correct in its contention that the earnings
of Grey would average only about 85 percent of those of Dunning, and the backpay
of Grey will be calculated , therefore , on this basis . This requires reducing Grey's
gross backpay in each quarter of the backpay period by 15 percent , and then deduct-
ing his interim earnings for each quarter.
As for Johnson, a case could be made out for the formula suggested in the relevant
appendix to Respondent's answer , which is to apply as a measure of his backpay, the
earnings of Joseph Franklin . However, Respondent made no effort to prove any of
the facts which would have to be established before the suggested formula could be
applied. He did not attempt to prove that Joseph Franklin could be considered a
comparable employee, nor did he offer the earnings record of Joseph Franklin in
evidence. Even if the earnings figure $870.99, which is given in the relevant
appendix to Respondent 's answer, could be accepted , moreover, it covers only the
third quarter of 1961, and Johnson is also entitled to backpay in the second quarter
of 1961 . In view of the failure to attempt to prove the basis for applying a different
formula in the case of Johnson , it is reasonable to conclude that this basis was
abandoned , and that the parties are agreed that Johnson 's backpay should be deter-
mined in the same manner as the backpay of the mixer drivers with whom, indeed,
Johnson seems to have closely worked.
As for the third employee who was not a mixer driver, Chester P. Green , he worked
before the strike on a straight salary of $80 a week .. In-the relevant appendix to the
backpay specification the unit measure of Green 's gross backpay is stated to be $80
a week but the basis for measuring this is nevertheless stated to be, as in the case
of the mixer drivers, his prestrike average earnings based on his length of employ-
ment up to 48 weeks. - His backpay has nevertheless been determined , apparently,
by multiplying his weekly base by the number of weeks in each full or partial quarter
of his backpay period, which would seem to be proper , and his backpay will be
determined accordingly.
Respondent attacks the backpay formula which the General Counsel would apply
to determine the backpay of the other claimants , who were all mixer drivers, prin-
cipally on the ground that the 48-week period prior -to the strike on which the
formula is based is not fairly representative of the average earnings which the
claimants would have made after their reinstatement because the business of Respond-
ent markedly declined, thereafter. It is axiomatic that backpay is, remedial rather
than punitive, and that it should, therefore, merely compensate backpay claimants
for the wages which they would have lost during their actual backpay periods. A
marked decline in an employer's business is certainly a factor which should be taken
into consideration in determining whether claimed backpay is excessive84 But it
is by no means the only factor, for it may be offset by others, which indicate that
83 As Respondent 's Exhibits 36 and 37.
11 See, for Instance , Piezo Manufacturing Corp., 138 NLRB 568, 572.
CONE BROTHERS CONTRACTING COMPANY 223
despite the decline in business the backpay claimants would have continued to earn
the same average wages as they earned prior to their separation from the payroll
The mere fact that a backpay formula is based on a period of earnings prior thereto
does not in itself demonstrate that it will produce excessive amounts of backpay
To demonstrate the extent to which its business had declined after 1959, Respond-
ent introduced into evidence a compilation of data showing by years and months the
number of hours worked by its mixer drivers, their earnings, the number of yards
of concrete sold, and its sales in dollars 65 Disregarding the data for 1964, which
does not cover the full year, they may be summarized on an annual basis as follows 66
Year Hours Earnings Yards sold Sales in
dollars
1959 122 204 $194 586 248 345 $3 202 108
1960 115 382 172 831 173 571 2 384 923
1961 76 483 114 657 149 328 2 012 265
1962 73 260 112 301 152 305 2 153 375
1963 81 741 125,559 146 803 2 069 968
As Respondent's backpay formula is based on the earnings of the mixer drivers
during the first 5 months of 1960, and this period also forms approximately half of
the basis for the General Counsel's formula, the same data is summarized on a
monthly basis for these 5 months of 1960 as follows
Month Hours Earnings Yards sold Sales
January 10 398 $16 743 21 749 $302 785
February 9 431 14 040 17 268 238 228
March 10 287 14 340 13 910 196 806
April 7 790 11 303 13 119 177 294
May 8 442 12 804 14 992 197 643
As the General Counsel's formula is based also on approximately the last 6 months
of 1959, the same data is summarized for these 6 months of 1959 as follows
Month Hours Earnings Yards sold Sales
July 12 238 $20 254 22 740 $282 158
August 9 760 15 519 20 589 257 169
September 12 321 19 295 21 371 278 316
October 10 852 16 665 23 010 308 294
November 11 191 18 594 24 521 336 323
December 12 263 20 029 24 275 332 033
In general this data does indicate that there was a very marked diop in business
in 1960, which declined further in 1961, and then leveled off in 1962 and 1963 But
the decline in 1960, which is the crucial year, since the backpay formulas are based
on this year, was marked only in terms of yards of concrete sold, which declined 22
percent, and sales in dollars, which declined 25 percent However, compared to
1959, the decline in the number of hours worked in 1960 was only 6 percent, and
the earnings of the mixer drivers declined only 11 percent Moreover, the monthly
figures for the first 5 months of 1960 indicate that the decline in business began to
be marked early in 1960, so that the decline is already reflected to a considerable
extent in the General Counsel's backpay formula Furthermore, while business was
far better in the last 6 months of 1959 than it was in the first 5 months of 1960, the
number of hours worked in August and October 1959 was pretty close to the average
number of hours worked per month in 1960, which was 9,615
All this is only another way of saying that there was no direct relationship between
the labor costs and the total sales in either yards of concrete or of dollars This
05 The compilation is in evidence as Respondent s Exhibit 12
60 In the summary fractional figures have been disregarded
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
suggests the further inference that the proof of a decline in business is not necessarily
proof of a decline in earnings of particular employees or groups of employees. In
slack periods an employer will tend to reduce the number of his employees, and when
this reduction has been effected the remaining employees may do as well if not
better than they did before in the busy season. This is particularly true of the older
and more experienced employees, and most of the mixer drivers fell into this
category. The record shows, moreover, that Respondent did reduce the number
of mixer drivers in the years after 1959. In short Respondent itself has not proven
affirmatively or conclusively that the earnings of the mixer drivers declined markedly
just because business declined markedly. The burden of making such a showing is
always on Respondent in any backpay proceeding, for it is well settled that any
basis for mitigating liability or for establishing the unavailability of work is on
Respondents? -
Each of the opposing counsel fought' valiantly to destroy the basis of the other's
backpay formula by statistical means. The General Counsel, who was proceeding
on the assumption that the returning strikers were being deprived of their just earn-
ings by the replacements, offered a summary, prepared by his compliance officer from
his earnings records and a number of representative payrolls in his possession, and
entitled "Earnings of Replacements compared by Quarter with Total Net Back Pay
Claims of Strikers and Total Hypothetical Net Back Pay Claims of Nonstrikers." 68
This summary, which covered most of the backpay period was supplemented by a
graph entitled "Striker and Non-Striker Earnings for 3 quarters after recall of
Strikers-Percentage of Earnings of Each Group Compared to.Respective Prestrike
Averages." This graph purported to show that the strikers, compared to the non-
strikers, remained at a disadvantage in achieving their prestrike average earnings.
On the other hand, Respondent called a Dr. A. E. Brandt, a truly noted statistician,
who after examining Respondent's hours and earnings data, had prepared impressive
graphs and charts,69 which, according to him, showed that in both the prestrike and
poststrike periods the strikers earned more than the nonstrikers, and also worked
more hours than the nonstrikers.
The value of the General Counsel's charts seems to be impaired not only by its
assumption concerning the role of the replacements but by its considerable inaccura-
cies 'in identifying the employees included in the groups of strikers and nonstrikers,
and the partly unexplained nature of some of its hypotheses. The value of Dr.
Brandt's charts seems to be impaired , on the other hand, by his failure to distinguish
altogether between nonstrikers and striker replacements, whom he treated as a
single undifferentiated group in all the periods covered by his chants, including the
few months right after the termination of the strike. However, this becomes more
and more of a minor blemish as the period of reinstatement is left farther and
farther behind, and what emerges from Dr. Brandt's statistical analysis ate conclu-
sions that tend to support rather than to undermine the average earnings formula of
the General Counsel, for if the strikers did so much better than the nonstrikers after
their return to work, there is all the more reason for supposing that the strikers who
were denied reinstatement would have shared the same favorable work opportunities.
A general statistical analysis is in itself no substitute, however, for a backpay
formula. It is only a method of testing it . It seems to me that, while the General
Counsel's backpay formula is certainly sound for the purpose of determining the
backpay of the three discriminatees, whose backpay period extends over the most of
1960, and of the short-term claimants who were strikers, since several months
elapsed before Respondent had lost enough of the replacements to take care of the
returning strikers, it does not make any allowance for the undoubted decline in
Respondent's business during most of the backpay period. While the burden of
establishing the extent to which the decline in business affected the earnings of the
employees is on Respondent, it so happens that in the present case this was established
with a fair degree of accuracy in the appendixes to the backpay specification. The
General Counsel made available a nonspeculative method of determining what the
long-term claimants would have earned if they had actually been reinstated by
Respondent , because he treated even the reinstated strikers who were working for
Respondent as only interim employees , and represented their actual earnings while
67 See N.L .R.B. V. Reed & Prince Manufacturing Company, 180 F. 2d 765 , 768 (C.A. 1) ;
N.L.R.B. v. Cambria May Products Company, 215 F. 2d 48 , 56 (C.A. 6) ; N.L.R.B. T.
Brown & Root , Inc., et at., 311 F. 2d 447 , 454 (C .A. 18) ; W. C. Nabors, d/b/a W. C. Nabors
Co. v. N .L.R.B., 323 F . 2d 686, 690 (C .A. 5), cert . denied 376 U.S. 91.1. -
08 It is in evidence as General Counsel 's Exhibit 25. -
OR They are in evidence as Respondent 's Exhibits 13 and 14.
CONE BROTHERS CONTRACTING COMPANY 225
working for Respondent as interim earnings . There are six reinstated strikers who
were mixer drivers and worked for Respondent throughout most of the backpay
period; namely, Glausier, Landgren, Lumpkin, Morrow, Sollazzo, and Wilson. There
are five long-term claimants to backpay who were mixer drivers; namely, Gardiner,
Pitts, Vaughn, Wigham, and Joseph C. Wright. By averaging the actual earnings of
the six reinstated strikers in each quarter of the backpay period, the average earnings
of the group in that quarter of the backpay period may be determined. By averaging
the gross backpay of the five long-term claimants for each quarter of. the backpay
period the average gross backpay of the group in that quarter of the backpay period
may be determined. By comparing the two figures for each period the percentage
by which the claimed gross backpay in each quarter of the backpay period exceeds
the actual earnings may be determined. By averaging the percentages for each of
the backpay periods from the fourth quarter of 1961 to the second quarter of 1964,
a percentage of approximately 90 is obtained. The gross backpay of the long-term
claimants in each quarter of the backpay period will be reduced, therefore, by 10
percent.
This necessarily entails the rejection, of course, of Respondent's proportionate earn-
ings formula for the mixer drivers. The percentages which are used in this formula,
being derived from a much shorter base period than the General Counsel's, when
both earnings and hours were much lower than in the last 6 months of 1959, are far
less representative. Moreover, all. proportionate earnings formulas, as well as lump
sum formulas, which ignore such factors as relative seniority, skill, and experience of
individual employees or groups of employees have not been favored.70 In any event,
the evidence of record does not permit the verification either of the percentages or
total driver payrolls which would be involved in the application of the formula in
each of theiquarters of the rather extensive backpay periods.
In applying the General Counsel's formula, subject to the 10 percent reduction in
each quarter of the backpay period, the'gross backpay and the interim earnings have
been proportionalized in those quarters in which the backpay has been found to end
sooner than is claimed in the backpay specification. Each backpay-period• has been
assumed to consist of 13 weeks, and each week of the backpay periods has been
assumed to consist of,5 days.
The net effect of applying the 10-percent reduction and of proportionalizing the
gross backpay and the interim earnings will be, of course, to deprive the amounts of
backpay of exactitude. - But exactitude is not required in calculating backpay, and
any reasonable formula is sufficient 71
C. Adjustments or corrections to be made in the backpay specification
In the case of Howard S. Grey, there is listed in the third quarter of 1963 a claim
for "differential in hospitalization allowances" to the amount of $422.25. The Gen-
eral Counsel and Respondent stipulated that this claim should be eliminated, and it
is, consequently, eliminated. In the case of Joe Swoboda, there is a claim made in
the second quarter of 1962 for "hospitalization insurance benefits"_ in the amounts
of $392.99 and $89. This claim should also be eliminated in view of the conclusion
reached that the returning st'rikers" were not wrongfully denied medical insurance
benefits. In any -event, the claim for- $89, which is for physician's services, would
have to be reduced to $75.
In the case of Allan W. Wright, $15 must be added to his NIE for the first quarter
of 1962. This represents the amount earned by Wright in part-time farm work.
In the case of Joseph C. Wright, all interim earnings in the third quarter of 1962
must be eliminated, since the evidence shows that this employee incurred greater
expenses than his gross backpay in seeking employment. The elimination of the
interim earnings will restore the.gross backpay in the amount of $899.86.
D. Backpay computation
I find that the claimants are entitled to backpay in the amounts set forth in the
tabulations in the Appendix, which total $35,542.28, and, in accordance with the
70 See, for Instance , Kartarik, Inc., 111 NLRB 830, enfd . 227 F . 2d 190 (C.A. 8) ; Ozark
Hardwood Company, 119 NLRB 1130, enfd . 282 F. 2d 1 (C.A. 8) ; Brown c Root, Inc.,
et at , 132 NLRB 486, enfd . 311 F . 2d 447 (C.A. 8).
73 See, for instance , Marlin-Rockwell Corporation v. N.L.R.B., 133 F. 2d 258 (C.A. 2) ;
Kartarik, Inc., supra ; N.L.R.B. v. Deena Artware, Inc., 228 F. 2d 871 (C.A. 6) ; N.L.R.B.
v. East Texas Steel Coatings Company, Inc., 255 F . 2d 284 ( C.A. 5) ; Ozark Hardwood
Company, supra ; Brown ,E Root, Inc., et at., supra.
221-731-67-vol. 158-16
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board's decision in Local 138, International Union of Operating Engineers , AFL-CIO,
et al, 151 NLRB 972, I direct that the amounts of backpay to which they are entitled
shall bear interest at the rate of 6 percent per annum from the date of this Supple-
mental Decision 72
i Under dates of April 19 , 1965, the General Counsel filed a motion requesting that
interest be allowed from the beginning of the first backpay quarter of each claimant
This motion is denied , since to grant it would go beyond the requirement of the Board's
Decision
APPENDIX
BACKPAY COMPUTATION FOR SHORT TERM CLAIMANTS
Group A (name and period)
Calendar
quarters
Gross
backpay
Net
interim
earnings
Net
quarterly
backpay
Total
backpay
Beunk, Harold (6-12-61 to 7-27-61) 1961-2 $245 91 $210 00 $35 91
3 311 49 133 17 178 32 $214 23
Coppola, Louis M (8-1-61 to 10-24-61) 1961-3 497 23 400 16 97 07
4 120 02 56 21 63 81 160 88
Davis, Charles W (8-14-61 to 8-31-61) 1961-3 243 46 82 02 161 44 161 44
Glausier, Robert E (6-12-61 to 7-28-61) 1961-2 237 63 40 00 197 63
3 316 84 198 84 118 00 315 63
Hendry George (6-12-81 to 8-3-61) 1961-2 238 71 210 93 27 78
3 381 94 213 59 168 35 196 13
Johnson, Andrew J (6-12-61 to 8-28-61) 1961-2 261 36 112 50 148 86
3 714 38 375 71 338 67 487 53
Landgren Albert (6-12-61 to 6-28-61) 1961-2 140 35 2 34 138 01 138 01
Lumpkin,Jeather W (6-12-61 to 8-1-61) 1961-2 264 36 156 36 108 00
3 387 73 180 98 206 75 314 75
Morrow, John S (6-12-61 to 6-30-61) 1961-2 247 20 0 00 247 20 247 20
Smith, Leroy (6-12-61 to 7-27-81) 1961-2 212 07 153 90 58 17
3 268 62 123 49 145 13 203 30
Sollazzo, Sam (8-12-61 to 8-3-81) 1961-2 238 50 51 29 187 21
3 381 60 318 32 63 28 250 49
Toren, Dee (6-22-61 to 8-16-81) 1961-2 91 00 27 14 63 86
3 429 00 736 63 000 63 86
Wells, Guy T (8-14-61 to 8-22-61) 1961-3 145 97 43 88 102 11 102 11
Wilson, Woodrow (6-12-61 to 6-13-61) 1961-2 15 72 0 00 15 72 15 72
Total, Group A 2 871 28
13ACKPAY COMPUTATION FOR LONG TERM CLAIMANTS WHOSE BACKPAY
PERIODS HAVE CONCLUDED
Group B (name and period)
Calendar
quarters
Gross
backpay
Adjust-
ment 1
Net
interim
earnings
Net
quarterly
backpay
Total
backpay
Gardiner, Theodore R (6-12-61 1961-2 $198 93 $19 89 $61 35 $117 69
to 8-18-64) 3 862 03 86 20 245 00 530 83
4 862 03 88 20 150 00 625 83
1982-1 862 03 86 20 150 00 625 83
2 862 03 86 20 100 00 675 83
3 862 03 86 20 797 15 21 32
4 862 03 86 20 447 00 328 83
1963-1 862 03 86 20 362 20 413 63
2 862 03 86 20 349 50 426 33
3 862 03 86 20 350 69 425 14
4 882 03 86 20 279 80 498 03
1964-1 503 96 50 40 0 00 453 56
2 (2) 000 0 00 0 00
3 464 17 46 42 0 00 417 75
- $5 558 60
See footnotes at end of table
CONE BROTHERS CONTRACTING COMPANY 227
APPENDIX-Continued
BACKPAY COMPUTATION FOR LONG TERM CLAIMANTS WHOSE BACKPAY
PERIODS HAVE CONCLUDED-Continued
Calendar Gross Adjust Net Net Total
Group B (name and period) quarters backpay ment 1 interim quarterly backpay
earnings backpay
Mathis, Otho (5-26-60 to 6-13-61 ) 1960-2 $386 85 $0 00 $0 00 $386 85
3 1,005 81 0 00 0 00 1,005 81
4 1 006 81 0 00 44 10 961 71
1961-1 1 005 81 0 00 90 30 915 51
2 804 65 0 00 131 19 673 46
Pitts, Charles F (6-12-61 to 1961-2 219 72 21 97 0 00
-
197 75
$3 943 &
1-1-64) 3 952 12 95 21 35 49 821 42
4 952 12 95 21 0 00 856 91
1962-1 952.12 95 21 74 75 782 16
2 952 12 95 21 958 73 0 00
3 952 12 95 21 1 013 04 0 00
4 952 12 95 21 1 082 91 0 00
1963-1 952 12 95 21 1 025 08 0 00
2 962 12 95 21 340 93 515 98
3 952 12 95 21 980 47 0 00
4 952 12 95 21 454.51 402 40
1964-1 14.65 1 47 1 18 12 00
- 35
Swoboda, Joe (6-12-61 to 5-26-62) 1961-2 232 71 23 27 48 05 161 9
8861
3 1,008 41 100 84 325 28 582 29
4 1 008 41 100 84 216 00 961 57
1962-1 1 008 41 100 84 72 00 835 57
2 620 56 62 06 000 558 60
2
Wright, Allan W (6-12-61 to 1961-2 256 26 25 63 26 60 204 03
,829 31
10-2-62) 3 939 62 93 96 14. 60 831 16
4 1,110 46 111 05 0 00 999 41
1962-1 1 , 110 46 111 05 535 68 463 73
2 1 110 46 111 05 1,228 06 0 00
3 1 110 46 111 05 190 76 808 65
4 34.17 3 42 29 96 79
- 3 307 77
Total Group B 19 227 66
1 A 10 percent adjustment was applied to all employees except Otho Mathis
a Excepted period
BACKPAY COMPUTATION FOR LONG TERM CLAIMANTS WHOSE BACKPAY
IS CONTINUING
Group C (name and period)
Calendar
quarters
Gross
backpay
Adjust-
ment 1
Net
interim
earnings
Net
quarterly
backpay
Total
backpay
Green, Chester P 1961-3 $320 00 $32 00 $97 33 $190 67
(9-2-61 and continuing ) 4 1 040 00 104 00 738 39 197 61
1962-1 1 040 00 104 00 1 040 87 0 00
2 1 040 00 104 00 1 205 00 0 00
3 1 040 00 104 00 1 235 00 0 00
4 1 040 00 104 00 1 319 00 000
1963-1 1 040 00 104 00 1,326 00 0 00
2 1 040 00 104 00 1,326 00 000
3 1,040 00 104 00 1,326 00 0 00
4 1 040 00 104 00 1 326 00 000
1964-1 1,040 00 104 00 1 326 00 0 00
2 1 040 00 104 00 1 326 00 0 00
4ase aft
ee footnote at end of table
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX--Continued
BACKPAY COMPUTATION FOR LONG TERM CLAIMANTS WHOSE BACKPAY
IS CONTINUING-Continued
Calendar Gross Adjust Net Net Total
Group C (name and period) quarters backpay ment 1 interim quarterly backpay
earnings backpay
Grey, Howard S 1961-2 $289 10 $40 36 $499 82 $0 00
(6-12-61 and continuing) 3 1,257 43 188 61 747 63 321 19
4 1,256 70 188 50 760 22 307 98
1962-1 1 196 20 179 43 1,170 00 0 00
2 1 226 06 183 91 1 205 00 0 00
3 1 321 26 198 19 1 237 50 0 00
4 1 259 42 188 91 1 385 70 0 00
1963-1 1 294 95 194 24 1 315 00 0 00
2 1 398 72 209 81 1 167 60 21 41
3 1,003 18 150 48 1 105 00 0 00
4 1 392 42 208 86 1 180 00 3 56
- $654 14
Owens, John D 1981-2 233 79 23 38 184 50 25 91
(6-12-61 and continuing) 3 1 013 09 101 31 729 50 119 28
4 1 103 09 101 31 730 00 181 78
1962-1 1 013 09 101 31 787 50 124 28
2 1 013 09 101 31 826 62 85 16
3 1 103 09 101 31 889 05 22 73
4 1 013 09 101 31 823 60 88 28
1963 1 1,013 09 101 31 855 75 56 03
2 1,013 09 101 31 914 73 0 00
3 1 013 09 101 31 908 55 3 23
4 1,013 09 101 31 889 85 21 93
1964-1 1 013 09 101 31 919 75 0 00
2 1,013 00 101 31 921 20 0 00
728 61
Vaughn, I L 1961-2 245 46 24 55 70 20 150 71
(6-12-61 and continuing ) 3 1,063 66 106 37 615 31 341 98
4 1 d83 66 106 37 790 73 166 56
1962-1 818 20 81 82 627 50 108 88
2 1 063 68 106 37 708 50 248 79
3 1,063 66 106 37 647 50 309 79
4 1,063 66 106 37 627 50 329 79
1963-1 1,063 66 106 37 656 70 300 59
2 1 063 66 106 37 656 70 300 59
3 1 063 66 106 37 656 70 300 59
4 1,063 66 106 37 656 70 300 59
2 858 86-
Wigham,Julius 1961-2 286 26 28 63 153 99 103 64
(6-12-61 and continuing ) 3 1 240 46 124 05 639 29 477 12
4 1,240 46 124 05 748 80 367 61
1962-1 1,24046 124 05 849 46 266 95
2 1 240 46 124 05 776 52 339 89
3 1 240 46 124 05 495 39 621 02
4 1 240 46 124 05 738 15 878 26
1963-1 1 240 46 124 05 851 23 265 18
2 1,240 46 124 05 699 87 416 54
3 1 240 46 124 05 700 39 416 02
4 1 240 46 124 05 764 72 351 69
1964- 1 1 240 46 124 05 650 00 466 41
2 1,240 46 124 05 695 50 420 91
- 4,891 2rh
See footnote at end of table
GENERAL MOTORS CORPORATION , ETC. 229
APPENDIX-Continued
BACKPAY COMPUTATION FOR LONG-TERM CLAIMANTS WHOSE BACKPAY
IS CONTINUING-Continued
Calendar Gross Adjust- Net Net Total
Group c (name and period) Quarters backpay ment I interim Quarterly backpay
earnings backpay
Wright, Joseph C. $1961-2 $207.66 $20. 77 $57.68 $129.21
(6-12-61 and continuing). 3 899.86 89. 99 164.23 645.64
4 899.86 89. 99 524.24 285.63
1962-1 899. 86 89. 99 282.11 527.76
2 899.86 89. 99 359.11 450.76
3 899.86 89. 99 0.00 809.87
4 899.86 89. 99 105.91 613.96
1963-1 899.86 89.99 350.38 459.49
2 899.86 89. 99 893.32 0.00
3 899 . 86 89. 99 866.27 0.00
4 899.86 89.99 1,154.71 0.00
1964-1 899 . 86 89.99 879.85 0.00
2 899.86 89. 99 1, 078.33 0.00
$3 922 32, .
Total, Group C------------- ------------ ------------ ---------- ---------- ------------ 13,443.45
Total, all groups------------- ------------ ------------ ---------- ----------- ------------ 35,542.38
I A 10-percent adjustment was applied to all employees , except for Howard S. Grey whose adjustment
was computed at 15 percent.
General Motors Corporation , Buick-Oldsmobile-Pontiac Assembly
Division and International Union , United Automobile, Aero-
space and Agricultural Implement Workers of America,