M. J. McCarthy Motor Sales Co.

National Labor Relations Board - Board Decisions

Jun 23, 1964

147 N.L.R.B. 605 (N.L.R.B. 1964)

NEW ENGLAND TANK INDUSTRIES, INC. 605
Sarnacki, Stanley------------------------------------------ 700.54
Seekins, David-------------------------------------------- 3,977.02
Stockford, Stuart------------------------------------------ 5,987.84
Stone, Irving---------------------------------------------- 1,743.72
Watts, Malcolm------------------------------------------- 3, 150. 22
Webster, Elwood--------------------------------8 (No backpay claimed)
Webster, John--------------------------------------------- 2,433.85
White, James E------------------------------------------- 5, 801. 12
Whiting, Frank-------------------------------------------- 6,972.85
$ As to this employee the specification 'states that "Inasmuch as Webster had been re-
instated by Respondent and had left Respondent's employ voluntarily on September 13,
1961, no backpay is claimed for him." The record shows that Webster was 1 of the 12 men
offered reemployment by Respondent by means of a letter dated July 13, 1961. Webster
had been earning $2.321/2 per hour before the discrimination against him. The offer to
reemploy him was at a rate of $1.50 per hour. As indicated this was not a bona fide offer
of reinstatement. As I consider myself bound by the specification I make no further find-
ings regarding his case.
TRIAL EXAMINER'S AMENDED SUPPLEMENTAL DECISION
Having recently reread my Supplemental Decision released herein on December
17, 1963, I have come to the conclusion that I was mistaken in the position that I took
regarding discriminatee Elwood Webster for whom no backpay was claimed by the
General Counsel in his specification.'
As I previously indicated, Webster had been paid $2.321/2 per hour before the
discrimination against him. By letter of July 13, 1961, Respondent offered to re-
employ him at a rate of $1.50 per hour. This I found in my prior decision not to be
a bona fide offer of reinstatement such as would toll Respondent's liability to him
for backpay. Nevertheless, I made no recommendation as to Webster since no
backpay was claimed.
The record shows one "R. Webster" was employed by Respondent at $1.50 per
hour for 4 weeks in the early spring of 1961, and from the middle of July 1961
until about the middle of September. In all he worked a total of 564 hours. As-
suming this to be the Elwood Webster referred to in the specification it is clear that
at the very least he is entitled to the difference between the $1.50 he was paid per
hour and the $2.321/2 he had received before the discrimination against him. This
difference amounts to $465.30. Accordingly, I hereby amend my original decision
by finding and recommending that Elwood Webster is entitled to the sum of $465.30
( less tax withholding required by law).
I The specification stated that "inasmuch as Webster had been reinstated by Respondent
and had left Respondent's employ voluntarily on September 13, 1961, no backpay is
claimed for him."
M. J. McCarthy . Motor Sales Co. and International Vehicle
Salesmen 's Union of America (Independent ). Case, Nos. 13-
CA-4198,13-CA-4198-°2,13-CA-4198-3,13-CA-x.°3692, and 13-CA-
4305. June 23, 1964
SUPPLEMENTAL DECISION AND ORDER
On February 5, 1962, the Board issued a Decision and Order in the
above-entitled proceedings,' finding, inter alia, that Respondent had
discriminatorily discharged Merlin Griffith, James Marzano, Leonard
Pechtold, and Walter Zion in violation of Section 8(a) (3) and (1)
of the Act and directing that Respondent make whole the above-
mentioned employees for loss of pay resulting from the discrimination.
1 135 NLRB 828.
147 NLRB No. 74.
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thereafter the United States Court of Appeals for the Seventh Circuit.
entered its decree enforcing the aforesaid Board Order.2
On June 28, 1963, the Acting Regional Director for the Thirteenth
Region of the Board issued a backpay specification and on July 12,
1963, Respondent filed an answer thereto. Upon appropriate notice
issued by the Acting Regional Director, a hearing was held before
Trial Examiner Jerry B. Stone for the purpose of determining the
amount of backpay due the four claimants. On November 29, 1963,
the Trial Examiner issued his attached Decision on Backpay in which
he found that three of the discriminatees were entitled to the following
payments: Merlin Griffith, $12;605.35; Leonard Pechtold, $11,830.65;
and Walter Zion, $1,373.55. Finding James Marzano's testimony
evasive and otherwise unreliable, rendering it impossible to deter-
mine his interim earnings, the Trial Examiner denied backpay as to
Marzano. Thereafter the General Counsel and Respondent filed ex-
ceptions to the Trial Examiner's Decision on Backpay and briefs in
support thereof.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
these cases to a three-member panel [Chairman McCulloch and Mem-
bers Leedom and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the entire
record in these cases, including the Trial Examiner's Decision, the ex-
ceptions, and briefs, and hereby adopts the findings, conclusions, and
recommendations 3 of the Trial Examiner with the following addition:
In awarding backpay to Pechtold, we agree with the Trial Examiner
that Pechtold's rejection of the Mike McCarthy Lincoln -Mercury, Inc.,
job offer did not constitute a willful loss of earnings. A discriminating
employer's duty is to offer a discharged employee reinstatement to his
former or substantially equivalent position. When an employer
makes such an offer, which can be either accepted or rejected by the
employee, then the employer's backpay liability terminates. Such an
offer, however, must be on the same terms as existed when the employee
was fired. Here, Respondent has not shown that its offer to Pech-
told of a job as used-car sales manager at its McCarthy Lincoln-
Mercury place of business constituted reinstatement to his former job
as used-car salesman at M. J. McCarthy Motor Sales Co., even though
2 309 F. 2d 732 (C.A. 7).
9 As no exceptions were filed to the Trial Examiner ' s computation of loss of insurance
benefits by Pechtold, we find it unnecessary to pass upon this computation and adopt the
Trial Examiner's recommendations in respect thereto pro forma.
M. J. McCARTHY MOTOR SALES CO. 607
the "salary" feature of the offer was better. Moreover, by the terms
of the offer itself, it can be seen that it was not only to a different posi-
tion, but was also at a different location, with different management,
.and possibly with different merchandise and clientele-differences
which might entail some risk to the employee if the employer's inclina-
tion to discriminate against him remained unchanged. An employee
placed in such circumstances by the employer's misconduct need not
assume these risks in order to reduce the employer's backpay liability,
by mitigation or otherwise. See Electro-Mechanical Products Com-
pany, 126 NLRB 637, 649-650. Consequently, Pechtold in rejecting
the offer did not incur a willful loss of earnings, and the offer did not
terminate or reduce Respondent's backpay obligation.4
ORDER
On the basis of the foregoing Decision on Backpay and the entire
record in these cases, the National Labor Relations Board hereby orders
that Respondent, M. J. McCarthy Motor Sales Co., its officers, agents,
successors, and assigns, shall make Merlin Griffith, Leonard Pechtold,
and Walter Zion whole by payment to each of them of the amount
set forth in the Trial Examiner's Decision on Backpay.
In view of above, N.L.R.B. v. Alaska Steamship Co. and American Radio Association,
CIO, 211 F. 2d 357 (C.A. 9), relied upon by Respondent is inapposite.
TRIAL EXAMINER'S DECISION ON BACKPAY
STATEMENT OF THE CASE
On December 6, 1962, the Court of Appeals for the Seventh Circuit entered its
decree enforcing in full the backpay provision of the National Labor Relations
Board's Decision and Order in the instant matter ' which directed M. J. McCarthy
Motor Sales Co., herein called the Respondent , to make whole Merlin Griffith, James
Marzano, Leonard Pechtold, and Walter Zion for their loss in earnings resulting from
the Respondent 's unfair labor practices violative of Section 8(a) (3) and (1) of the
Act. On June 28, 1963 , the Acting Regional Director for the Thirteenth Region of
the Board issued backpay specifications in this matter , reciting that a controversy had
arisen over the amount of backpay due under the terms of the Board 's Order and
alleging certain amounts of backpay due the aforementioned discriminatees and the
bases of said computations.
The Respondent's answer to the backpay specifications admitted certain matters
set forth in the specifications but in other respects raised issues as to the amount of
'backpay due the referred-to discriminatees . The General Counsel amended his
specification in various respects at the hearing, and the Respondent amended his
answer in various respects at the hearing.
A hearing was held pursuant to due notice on the issues developed by the backpay
specifications and the answer thereto before Trial Examiner Jerry B. Stone at Chicago,
Illinois, on August 12, 13, 14, 15, 16, 17, 19, 20, 21, 22, 23, 26, and 29, 1963.
All parties were represented at the hearing and were afforded full opportunity to be
heard, to introduce relevant evidence , to present oral argument , and to file briefs
with me . Briefs were filed by the Respondent and the General Counsel and have been
considered.
IM. J. McCarthy Motor Sales Co., 135 NLRB 828. Enfd . 51 LRRM 2527 ( C.A. 7), de-
cided November 23, 1962 ; decree issued December 6, 1962 (309 F. 2d 732].
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record 2 in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
A. Introduction
The parties stipulated to the mathematical gross earnings , interim earnings, and
net backpay due to the discriminatees if the General Counsel's contentions were
found to have merit. However, the Respondent by his answer and his position at the
hearing raised issues as to the propriety of some of the General Counsel's conten-
tions.3 First I shall dispose of those issues common to all or several of the
discriminatees.
B. General issues
I. Willful loss of earnings
The Respondent contends that discriminatees Marzano, Griffith, and Pechtold
did not sincerely seek employment during their backpay period but in fact deliberately
caused their gross back wages to accumulate.
In support of its contentions that Griffith, Marzano, and Pechtold incurred willful
loss of earnings, the Respondent introduced numerous newspaper advertisements
relating to job opportunities in the Chicago area during the discriminatees' backpay
periods. The Respondent also extensively questioned Griffith as to the places he
sought employment. Griffith credibly testified to the effect that he had prepared a list
of the places he had gone to seek employment and that he had placed on this list the
approximate dates showing when he had gone to the places listed, naming some of
the persons seen, and the results. This list was received into evidence. Griffith ad-
ditionally credibly testified as to his visit to some of the places seeking employment.
The sum effect of Griffith's testimony revealed with rather accurate preciseness the
times he sought employment, the places he sought employment, and as to some of
the places the names of the persons he spoke to,'and that Griffith at closely spaced
time intervals (within days throughout his backpay period) had made such visits
seeking employment. Griffith was unavailable for employment and made no search
for employment from June 14 to August 7, 1961, as well as during the time he
worked at Shames Motors. There was no contradiction of Griffith's testimony in this
regard,4 nor is there evidence that Griffith refused any job offer made to him. Addi-
2 A stipulation from the parties relating to coming during the discriminatees ' vacation
week has been received into the record as Trial Examiner Exhibit No. 1. Duplicate copy
for the same has been waived.
A stipulation from the parties has been received providing that duplicate copies of Gen-
eral Counsel ' s Exhibits Nos. 1( a) through 1 (e) he substituted into the record for lost copies
of the same . The stipulation has been marked as General Counsel's Exhibit No. I 09a) and
has been received into the record and the substitution of duplicate copies of General
Counsel 's Exhibits Nos . 1(a) through 1(e) is hereby allowed and approved . Duplicate
copies of the same are hereby waived.
A stipulation from the parties has been received relating to a true copy of Respondent's
Exhibit No. 26 . The stipulation has been marked as "Respondent 's Exhibit No. 26( al" and
the copy of Respondent ' s Exhibit No. 26 is received into the record in place of the
illegible copy of the same erroneously in the record . Duplicate copies of the same are
hereby waived.
uA posthearing stipulation by the parties removed an issue relating to earnings during
vacation period. The effect of the stipulation would be to adjust Z ion's gross backpay by
the deduction of 2 weeks gross backpay ( third quarter-1961 ) resulting in net backpay due
him of $1 ,373.55.
11 have considered Respondent ' s contention , in relationship to the newspaper advertise-
ments of job opportunities , that the discriminatees did not seek work where it was avail-
able, but in fact sought work where it was not available. The evidence reveals that on
several occasions the discriminatees did receive employment and the evidence does not
reveal a refusal to accept employment at employers other than the Respondent . I am con-
vinced from the evidence as a whole that the discriminatees Griffith and Pechtold did sin-
cerely, diligently , and reasonably seek Interim employment . Griffith's list of places re-
vealed, In connection with his testimony , that he visited Hartigan Chevrolet and left a job
application on November 24, 1961. John F. Warren, used-car manager at Hartigan Chevro-
let, was asked if he received an application from Griffith . Warren testified , "Myself, no."
Warren similarly testified that "not to my knowledge " had he taken a job application from
Pechtold.' As to Marzano , Warren testified without reservation that he had not received a
job application . On cross -examination , Warren testified that there were others who could
have seen Griffith, Pechtold , and Marzano concerning employment . Thus Warren 's testi-
mony does not contradict Griffith 's testimony.
M. J. McCARTHY MOTOR SALES CO. 609
tionally Griffith, during his backpay period, registered with frequency at United States
and State employment agencies. I found Griffith's demeanor to be that of an im-
pressive and truthful witness and credit his testimony to the effect that he made rea-
sonable and diligent search for employment throughout his backpay period excepting
the time found herein to be when he was working or when he was incapacitated for
work. I conclude and find that Griffith has not willfully incurred loss of earnings .6
The Respondent also questioned Pechtold as to some of the places he sought em-
ployment. Pechtold credibly testified to the effect that he had prepared a list of the
places he had sought employment during his backpay period, listing the approximate
dates of his visits, the results, and some of the persons seen. In addition, Pechtold
credibly testified concerning some of the places he sought employment and the names
of some of the persons he saw. In sum, his testimony reveals with respect to his
backpay period with rather accurate preciseness the times he sought employment, the
places he sought employment, and as to some of the places the names of the persons
he spoke to, and that he registered with frequency at United States and State employ-
ment agencies. There was no contradiction of Pechtold's testimony in this regard,
nor is there evidence other than the job offer made by Baker (for Mike McCarthy
Lincoln-Mercury Inc.) at the instance of Respondent owner, that Pechtold refused any
jobs. As found hereinafter this refusal was not unjustifiable. As to the details
of Pechtold's search for employment, from my observation of his demeanor as a
witness, I found Pechtold to be a very frank and honest witness. I credit his testi-
mony to the effect that, excepting when he in fact was working, he made reasonable
and diligent search for employment throughout his backpay period.6 I conclude and
find that Pechtold did not willfully incur loss of earnings during his backpay period.
The evidence relating to Marzano's alleged willful loss of earnings however presents
a different problem. The previously referred-to numerous newspaper advertisements
introduced by the Respondent must be considered along with the questioning of
Marzano as to his search for employment, and along with the activities engaged in
by Marzano during the backpay period. Marzano was such an evasive and untruthful
witness that I place no reliance on his testimony pertaining to his search for errmploy-
ment, nor do I credit his testimony in connection with the manner or reliability of
the list of places he sought employment. However, as revealed later in this decision,
Marzano was active during most of the backpay period in the buying and selling of
cars. I am convinced from all the evidence of such activity that he did not willfully
incur any loss of earnings.
2. The value of the use of a demonstrator car as earnings
It is clear from the unfair labor practice findings giving rise to the instant proceed-
ings 7 that the Respondent discriminatorily discontinued the use of a demonstrator
car by the discriminatees. It follows that absent such discrimination, that had the
discriminatees worked for Respondent on a nondiscriminatory basis during the back-
pay period that the use of the demonstrators would have been a benefit enjoyed by
them. Such benefits, constituting a monetary value, are rightly considered a legit-
imate part of the employees' earnings 8 I therefore conclude and find that the value of
the demonstrator is properly computed as part of the discriminatees' gross earnings.
At first there appeared to have been developed at the hearing an issue as to whether
an additional offset of some amount should be allowed the Respondent in the cnmputa-
tions pertaining to Zion 's use of a demonstrator during his interim employment.
Zion's credited testimony reveals that he did not have a demonstrator car for his use
until around July 1, 1961 . I so find the facts.
5 Additionally it is. noted that Griffith did obtain work at Shames Motors during the
fourth quarter of 19G2. This is not indicative of an intent to willfully incur loss of
earnings.
9 As previously indicated I have considered the evidence of newspaper advertisements re-
lating to job opportunities , and consider that the evidence relating to actual job search to
be more persuasive and revealing . Additionally , I find very persuasive Pechtold's actual
employment at W and J Motor Company and Shames Motors as revealing that he did not
incur willful loss of earnings.
7 M. J. McCarthy Motor Sales Co., 135 NLRB 828.
8In the same manner as insurance benefits are deemed to be part of earnings. See
Deena Artware, Incorporated, 112 NLRB 371, 375 ; Glen Raven Silk Mills , Inc., 101
NLRB 239.
750-236-65-vol. 147-40
610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Specific issues-Griffith
1. Griffith's backpay period
The General Counsel 's backpay specifications issued on June 28, 1963 , alleged
that Merlin Griffith's backpay period began on April 27, 1961 , and ended on
February 5, 1963 . At the hearing the General Counsel amended the specifications to
allege that Griffith's backpay period commenced on April 27, 1961 , and ended on
May 11 , 1963, excepting for the period of time February 5 to April 1, 1963.
Griffith credibly testified to the effect that he was reinstated to his old position as a
used-car salesman by the Respondent on February 5 , 1963, and worked as a used-
car salesman at Respondent until April 1, 1963. At the time that Griffith returned
to work on February 5 , 1963 , Respondent transferred two used -car salesmen to the
new-car sales department . 9 On April 1 , 1963 , Griffith was transferred to the new-car
sales department and worked there until May 11 , 1963 , when he was retransferred
to his former used-car salesman position.10
General Counsel 's witness Marzano, Pechtold , Zion , and Griffith testified relative
to the position of new-car salesman as compared to the position of a used-car sales-
man. The aforementioned witnesses appeared prone to exaggerate and magnify dif-
ferences . ll I credit their testimony only to the extent that it reveals that the dif-
ferences as exist as may be described by the following : New-car salesmen as compared
to used-car salesmen generally have higher earnings , work fewer hours, and have bet-
ter work conditions . 12 New-car salesmen sell various models of new cars . A new-car
buyer is interested in knowing what optional equipment and accessories are available,
and the new-car salesman must be prepared to furnish answers in this regard. In
addition to the new-car salesman 's training , he has price lists and special cards with
information as to equipment and accessories to aid him in answering such questions.
In general the new-car salesman deals with a discriminating buyer who is knowl-
edgeable with competitive dealers' selling prices and financing rates . The used-car
salesman generally deals with a customer who is prepared to buy the used car "as
is," 13 and who is not able , generally , to compare the car with one of identical usage
or condition . I cannot see that the evidence in this case reveals that the new-car
salesman job is substantially different from that of a used-car salesman job. It is clear
however , that a used-car salesman is not required to exercise the same "degree" of
perceptiveness in his selling of a used car as he generally would in selling new cars.
This difference in degree of perceptiveness does not appear to be a substantial dif-
ference . The effect of such difference in perceptiveness would appear to vary as to
the individuals involved.
In the instant case Griffith, whose experience had been in selling used cars, in
actuality made less earnings as a new-car salesman . If Griffith had been placed on
February 5 , 1963 , on a new-car salesman 's job, there might be a close question as to
whether Respondent had properly reinstated him. This is not the question. The
question is whether Respondent's reinstatement on February 5 , 1963, of Griffith
to his used-car salesman 's job was bona fide or not , taking into consideration all of
the facts surrounding his reinstatement and subsequent transfer. Considering all
the facts herein; as well as the Respondent 's discriminatory action revealed in the
unfair labor practice case , 14 I am convinced that Respondent's reinstatement of
Griffith on February 5, 1963 , was bona fide and that nothing in this case reveals that
Griffith's subsequent transfer was part of a subterfuge connected with the said rein-
statement . In fact the General Counsel 's amendment to his specification , made at the
hearing, appears to recognize the validity of the February 5, 1963 , reinstatement by
excluding from the backpay period the time from February. 5 to April 1, 1963.
In the General Counsel's brief he asserts "that the involuntary transfer of Griffith
from used cars to new cars was'not a reinstatement to the same position , although it
was available." 'Considering the foregoing the General Counsel in this case actually
attempted to litigate possible new unfair labor practices concerning the transfer on
April 1 , 1963 , and not the bona fides of Respondent 's -reinstatement of Griffith on
February 5, 1963.
6 Employees Grant Scott and Salasazon.
10 Prior to Griffith 's "retransfer" on May 11, 1963, complaints to Respondent about his
transfer to the new-car sales department and charges of unfair labor practices had been
filed with the National Labor Relations Board.`
11 Such as the'fact that new-car salesmen wore coats and.ties as compared to used-car
salesmen wearing sports shirts at work.
13 New-car salesmen work in an air-conditioned showroom-used-car salesmen work out-
side on a used -car lot.
23 In the condition that the car is, and with such equipment as is on it.
14 M. J . McCarthy Motor Sales Co., 135 NLRB 828.
M. J. McCARTHY MOTOR SALES CO. 611
Considering all the foregoing, I find and conclude that Griffith was properly rein-
stated on February 5, 1963, and that his backpay period commenced on April 27,
1961, and concluded on February 5, 1963.
2. Griffith's availability for work between August 7 and November 27, 1961
The General Counsel in his amended backpay specification admits that Griffith
was unavailable for employment between June 14 and August 7, 1961. The Re-
spondent contends that Griffith was also unavailable for employment between
August 7 and November 27, 1961.
Griffith went on vacation around June 14, 1961, and while on this trip had an au-
tomobile accident. Griffith credibly testified that he was treated for his injuries
suffered as a result of this accident and was released by his doctor on August 3,
1961, as recovered. Griffith testified that he was physically able and available for
work at all times thereafter up and to February 5, 1963.
The Respondent introduced certain bills relating to treatment and expenses and
certain releases of liability executed by Griffith with reference to his July 3, 1961,
accident and relating to a later accident around September 11, 1961. Neither the
hospital bills nor the releases executed by Griffith specify any amount of alleged
lost worktime, nor do they characterize his injuries in such a way that a conclusion
could Abe made as to the extent or meaning of the injuries with reference toincapabil-
ity to work on and after August 7, 1961. Respondent questioned Griffith with re-
spect to Respondent's Exhibit No. 4. This exhibit, in addition to an apparent
summary of the previously referred-to bills, contained reference to "loss of time" and
set forth as loss of time from July 5 to September 8-9 weeks, and from September
11-11 weeks. How this exhibit was made or from where it came was not de-
veloped. Griffith denied that he made the original of the exhibit and denied that
he had ever claimed loss of time from July 5 to September 8. Griffith denied
that he had "personally" claimed loss of time "from September 11-11 weeks."
I find no value to Respondent's Exhibit No. 4 except in relationship to Griffith's
testimony. I am convinced that his testimony reveals that he knew some claim
had been made on ibis behalf as to loss of time after September 11, 1961.
The question is not what claim as to loss of time that Griffith or his agents made
on his behalf with reference to his accident, but is whether he in fact was available
for employment between August 7 and November 27, 1961. I have carefully con-
sidered Griffith's demeanor as a witness, and that a claim for lost time was made on
his behalf and was known to him. I am, convinced that Griffith truthfully testified
that he was physically able and available for work from August 7, 1961, to Feb-
ruary 5, 1963, and conclude and find that he was physically able and available for
work at all times between April 27, 1961, and February 5, 1963, excluding the
period of time June 14 to August 7, 1961.
In summary, in accordance with the foregoing disposition of the general and
specific issues as related to Respondent's obligation to pay Griffith backpay for his
period of discrimination, it is necessary to delete from the stipulated computation
those computations concerning alleged backpay for the period of time after Feb-
ruary 5, 1963, the date Griffith was reinstated by the Respondent. The computations
as so revised reveal that the amount of backpay due Griffith in this case is $12,605.35.
The computations as adjusted are set out in the attached Appendix A.
D. Special issues-Pechtold
Alleged Willful Loss of Earnings
1. The job offer by Mike McCarthy Lincoln-Mercury, Inc.15
The Respondent contends that Pechtold's refusal to accept an offer of employment
at-Mike McCarthy Lincoln-Mercury, Inc., on June 23, 1961, constitutes evidence upon
which a finding should be made that Pechtold has engaged in a willful loss of earnings.
15 Based upon a composite of the credited testimony of Pechtold and Baker. Pechtold's
credited uncontradicted testimony reveals that he accepted Chick's offer of a job at W and J
Motors on June 12, 1961. I do not find Pechtold or Baker's testimony as to the events of
employment to be inconsistent with his testimony that he accepted Chick's offer of a job
on June 12, 1961. It is entirely reasonable that although Pechtold had accepted Chick's
offer of a job, he would be interested in other opportunities, especially to the point of
ascertaining the Respondent's intent as evidenced by Baker. I do not credit Pechtold's
testimony that he and Baker discussed his job with respect to Pechtold's continuing in
the Union. Pechtold's testimony in this connection was not sure, and upon my observation
of his demeanor , I am convinced that he has mixed some of his unspoken thoughts with
that which was said.
612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
M. J: McCarthy; the owner of Respondent, is also owner of Mike McCarthy
Lincoln-Mercury, Inc. Respondent Owner McCarthy directed Raymond Baker, the
general manager of Mike McCarthy Lincoln-Mercury, Inc., to offer Leonard Pech-
told the job of used-car manager for Mike McCarthy Lincoln-Mercury, Inc. On
June 23, 1961, Pechtold's wife told Pechtold that he had a telephone call from Ray
Baker. Pechtold then telephoned both the Union's attorney and McCabe, an attor-
ney on the National Labor Relations Board's Regional Office staff, and asked what
he should do. He was told to find out what Baker wanted. Later that day Peck-
told called Ray Baker and Baker told Pechtold that he wanted him to come down
to see him. Either that day or the next day Pechtold went to see Ray Baker at Mike
McCarthy Lincoln-Mercury, Inc. Baker offered Pechtold a job as used-car manager
for Mike McCarthy Lincoln-Mercury, Inc., and informed him of the salary arrange-
ments. The salary arrangements were superior to those that Pechtold had enjoyed
at Respondent. Pechtold told Baker that he appreciated the offer, that he "did"
have something else lined up, that he wasn't sure that he wanted to accept the job,
but would let Baker know. Pechtold called both Burns and McCabe and asked
if he had to accept the job. He was told that he did not have to take it because
it was not the same status of employment.16 Pechtold later called Baker's office and
left word that he had decided to take employment at another place-W and J Motors.
On June 12, 1961, Pechtold had applied for a job with W and J Motors. Mr.
Chick of W and J Motors told Pechtold on June 12, 1961, that he could start work in
a week and half. The next day Pechtold told Chick that he could not start work
on June 23, 1961, because he had twisted his back. It was agreed that Pechtold
could wait a few days before starting and Pechtold accepted the job. Pechtold
started work at W and J Motors on June 26, 1961, with salary arrangements admit-
tedly inferior to the salary arrangements offered by Baker at Mike McCarthy Lincoln-
Mercury, Inc.
Had the Respondent on June 23, 1961, made a genuine offer of reinstatement to
Pechtold, he would have been obligated to accept such offer or thereafter the Re-
spondent would have been relieved of backpay obligation. The offer by Baker on
June 23, 1961, to Pechtold was not an offer of reinstatement but, in effect, was
tantamount to an offer of a job by the Respondent which would not have served the
remedial aspect of reinstatement. Pechtold's declination of a nonreinstatement job
offer, emanating for practical purposes from a Respondent who had within days
discriminatorily discharged him, and at a time that the discriminatee had reasonable
assurances of continued employment, although with less benefit and salary, does not
constitute a clearly unjustifiable refusal to accept new employment. Thus the Re-
spondent's claim that Pechtold's refusal of an offer of a job at Mike McCarthy
Lincoln-Mercury, Inc., on June 23, 1961, constitutes a willful loss of earnings is
without merit.17
The foregoing evidence clearly reveals that Pechtold would have had interim em-
ployment on June 23 and 24, 1961, were it not for a back injury. During his em-
ployment at W and J Motors Company, Pechtold worked 25.5 weeks and earned
$2,832.04. His average weekly earnings were $111.06, $18.51 per day. I shall allow
as an offset to his 1961 second quarter gross backpay the amount of $37.02.
2. Pechtold's insurance benefits as wages
The General Counsel contends by the backpay specifications that Pechtold is
entitled to receive the amount of the cost of the hospitalization of his wife, relative to,
the birth of a child The hospital bill for the aforesaid hospitalization was $338.75
and although the birth of the child occurred in May 1963, the parties' stipulations
and contentions were to the effect that the basis for and the costs of such hospitaliza-
tion occurred in the period of time January to February 5, 1963.
The evidence is undisputed that prior to June 12, 1961, the Respondent, with,
Pechtold's approval, deducted the monthly premiums, in the amount of $17.40,
from Pechtold's pay to be applied as premiums on a group insurance policy. After
Pechtold's discriminatory discharge the Respondent on June 26, 1961, notified'
Pechtold by notice as follows:
Date 6/26/61, to Leonard Pechtold, RE: Blue Cross.
"You are covered through 6/28/61 on your group. Suggest you transfer over
to direct coverage within the next 10 days, if you wish to keep Blue Cross. See
attached. M. J. McCarthy Motor Sales."
10 Such advice, however. Is not dispositive of the issue.
17 Accord : Electro -Mechanical Products Company, 126 NLRB 637, 648, 649; Budd
Wheel Company, 49 NLRB 1350-1351.
M. J. McCARTHY MOTOR SALES CO. 613
Pechtold went to the office 18 and discovered that the cost of his insurance coverage
would be higher if he were covered on a "direct" and not a "group" basis.19 Pech-
told's insurance coverage under the group insurance program available at the Re-
spondent ceased on June 28, 1961, and he did not acquire similar insurance cover-
age until he commenced work, at Shames Motors in September 1962. At Shames
Motors the premium that Pechtold had to pay for his insurance was at the rate of
$9 per month. Excepting for such insurance rights as, accumulate as the result of time
coverage,. Pechtold's insurance coverage at Shames was similar to his coverage while
employed at Respondent prior to his discharge. During Pechtold's backpay period,
had he continued in employment at Respondent, he would have continued his in-
surance coverage and would have had $17.40 deducted monthly by the Respondent
for payment to the insurance carrier.
During the period of time approximately January 1963 to May 1963, Pechtold in-
curred hospital bills in connection with his wife's hospitalization for pregnancy.
Pechtold's hospital expenses were not covered by his current insurance coverage be-
-cause he had not 'been covered by the plan for proper time coverage .20
The Respondent in his brief poses the following question "Where the Employer at
Employee's sole expense arranges for Blue Cross and Blue Shield, does he owe any
obligation to employees during the backpay period and if so, to what extent?"
The Respondent contends that since the Respondent at no time paid the insurance
'premium for the group insurance coverage of its employees that such insurance bene-
fits are not properly an item of back wages. In connection with the factual situation
of this case I find no merit to this contention. Where (1) an employer has arranged
for group insurance coverage, even if optional to the employees, (2) the employer
,engages in a function of deducting the premiums (as authorized) for transmitting to
the insurance carrier, (3) the insurance premiums under the group plan are cheaper
'to the employee than on a direct coverage under the plan available, and (4) the
participation of the employee in the group plan and at the group rates is dependent
upon his employment status, the employer has so intertwined the relationship of the
insurance benefit with the employment relationship that the discriminating termina-
tion of the employee's employment status coupled with the employer's employment
termination of the beneficial arrangement of deducting or collecting insurance pre-
miums from the employee and transmitting the same to the insurance carrier consti-
-tutes a removal of a benefit of employment in the nature of and tantamount to wages.
Admittedly the value of insurance benefits presents problems of computation.
Where employees have lost insurance benefits (coverage) there is a value to the loss
,of protection even where the actual necessity of protection does not arise. The
determination of the value under such circumstances involves many intangibles.
For this reason. I believe a policy of limiting the determination of the measure of the
value of such benefits .to the instances of measurable monetary loss is wise 21 Ac-
^cordingly I compute the value of Pechtold' s loss in wages, resulting from the loss
-in insurance coverage to be the amount of the hospital bills he had to pay for his wife
plus the premiums he paid for attempted various coverage, less the premiums he
would have paid had he continued to work at the Respondent during the backpay
period.
In summary, in accordance with the foregoing disposition of the general and
specific issues as related to Respondent's obligation to pay Pechtold backpay for his
period of discrimination, it is necessary to include an additional offset in the com-
putation for the second quarter in 1961 for the amount of interim earnings he would
have earned had he not been injured, and to modify the claim for $338.75 for
insurance benefits in the nature of wages so as to compute as the value of such bene-
'9 It is not clear whether lie went to Respondent's office or to an office of the insurance
company.
19 Contrary to Respondent's contention Pechtold testified credibly to the effect that he
learned the cost was higher under direct coverage than under group coverage.
20 Pechtold testified to the effect that the necessary time coverage was "over 9 months or
something like that." There appears no issue and I conclude and find that had Pechtold
had continuous coverage under the insurance plan available at Respondent, prior to his dis-
charge on June 12, 1961, that he would have been covered by such insurance for such bene-
fits between September 1962 and May 23, 1963.
a See Glen Raven Silk Mills , Inc., 101 NLRB 237; Deena Artware, Incorporated, 112
NLRB:371, 375.
614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fits the amount $53.15.22 The computations thus adjusted reveal that backpay due
to Pechtold is $11 ,830.65. The computations as adjusted are set forth in the attached
Appendix B.
E. Walter Zion
In accordance with the previous disposition of the general and specific issues as
related to Respondent's obligation to pay Zion backpay for his period of discrimina-
tion, it is necessary only to adjust the mathematical stipulations of the parties by,dele
tion (as stipulated) of 2 weeks of gross backpay claimed in 1961, the third quarter.
The computations as revised reveal that the backpay due to Zion is $1,373.55. The
revised computations are set out in the attached Appendix C.
F. James Marzano's specific issues
1. Formula for gross earnings
The General Counsel's backpay specifications alleged that Marzano, who was
discriminatorily discharged on April 27, 1961, only worked for 10 weeks for the
Respondent in 1960. The backpay specifications further alleged that this 10-week
period was during a seasonably slow period. The backpay specifications alleged
that an appropriate formula for Marzano would be one in which his average weekly
wages were adjusted as is revealed from the following excerpt from the specifications.
Inasmuch as Marzano began his employment in the latter part of calendar
year 1960, a seasonably slow period, his average weekly earnings have been
adjusted in the following manner: The combined average weekly earnings of
the other three discriminatees during the calendar year 1960 was $505.35. Their
combined average weekly earnings for the 10-week period during which Marzano
worked was $399.92. Their combined average weekly earnings for the entire
calendar year 1960 was 126.4% of their combined average weekly earnings for
said 10-week period. Therefore, Marzano's average weekly earnings has been
adjusted to 126.4% of his average weekly earnings for the 10-week period.
This adjustment formula was discovered at the hearing to be based upon erroneous
calculations of the average weekly wage rates of the various discriminatees and was
revised accordingly resulting in a contended average weekly wage for purposes of
computation of Marzano's gross earnings during the backpay period of $158.70 per
week.
The General Counsel offered no evidence in support of his formula. I find nothing
in the General Counsel's backpay specifications to reveal that the composite, earn-
ings of Griffith, Pechtold, and Zion constitute a comparable or representative basis
for which an appropriate adjustment can be made relative to Marzano's actual earn-
ings. On the contrary, the evidence reveals that in 1960 the vast majority (approxi-
mately 9 or 10) of the Respondent's new- and used-scar salesmen were new-car sales-
men. The evidence also reveals that the formula advocated by the General Counsel
is based upon the comparative adjustment of the composite average weekly earnings
of two used-car salesmen and one new-car salesman and Marzano's (a new-car
salesman) actual earnings. It is completely speculative as to whether new-car
salesmen's wages varied slightly or substantially from those of used-car salesmen.
This problem was clearly made known to the parties at the hearing. I find no basis
for reliance on the General Counsel's formula for Marzano's gross earnings.23
Marzano was actually employed by the Respondent for 26 weeks prior to his
discharge. His total wages during that time were $3,175.86. However, the Re-
spondent discriminatorily reduced his earnings between April 18 and 27, 1961, by
$50 per week.24 Thus, absent discrimination Marzano would have earned $75
more than is reflected 25 in his 1960-61 earnings. His earnings thus would have
been $3,250.86 for the 26-week period, or an average of $125.03. It is clear from
'2a Hospital benefits $338.75 plus cost of attempted insurance coverage=$383.75 minus
(19 monthsX$17.40) $330.60 premium cost=amount of actually ascertainable monetary
value-$53.15.
2' The fact that the formula is artificial does not destroy the validity of the formula. An
artificial formula must however reveal itself to be based upon appropriately comparable
or representative data.
24 See M. J. McCarthy Motor Sales Co., 135 NLRB 828.
269 days=13 weeksX$50=$75.
M. J. McCARTHY MOTOR SALES CO. 615
the record as a whole that a salesman's earnings depend primarily on his individual
ability, and that such earnings would vary from individual to individual and be
dependent upon all the circumstances. There is only a variance'of 7 cents between
Marzano's average weekly earnings computed on the 26-week basis, and computed
on the 10-week basis in 1960 ($124.96). Under the circumstances involved in
this case, I find that a formula equating Marzano's average weekly earnings for the
purpose of backpay computations as being $125.03 to be a reasonable formula.
2. Marzano-willful concealment of interim earnings
Marzano, during the backpay period, April 27, 1961 to February 5, 1963, pur-
chased numerous cars in his name, in his wife's name, and in fictitious names, and
resold the same cars using the same names, with an overall resultant profit to himself,
During the same period Marzano received several fees for sending customers to
several automobile companies. The General Counsel concedes, and I agree, that
such transactions should be treated as interim earnings.
In the instant case, Marzano's purchase and sale of cars in fictitious names, coupled
with (1) his failure to reveal such purchases and sales to the Regional Office in his
affidavit of February 13, 1963, (2) his failure to be frank and forthright as
to such purchases and sales in his talk with the General Counsel several weeks
before the instant hearing, and (3) his failure to be an honest, frank, and forth-
right witness in the instant hearing, has made it impossible to ascertain Marzano's
actual interim earnings with any degree of sureness.
Marzano testified to the effect that although he was told on February 13, 1963, to
report all his earnings, that he took it to mean this work earnings. Marzano also
testified with reference to the February 13, 1963, report to the Board and with
reference to his conversation with counsel for General Counsel several weeks be-
fore the hearing as is revealed from the following excerpt from his testimony: 26
I told him that I bought some cars and I sold these cars and I didn't know
if or what I made on them if I did make anything on them and I didn't know
how many there were.
And I said I know you will, naturally, it. is obvious that you would bring
these -things up and I didn't know what was involved or how much money,
or if there was, how much it was or anything about it.
And at the time I made this statement-when it says about earning, I wasn't
sure if I was supposed to tell them-as far as that goes, I got money from
compensation, the compensation board gave me money too, and I got a little
help from Stickney Township. I didn't list that on here either. Not because
I didn't want to list it but I didn't think it was necessary because I wasn't work-
ing for nobody as I understand it.
Marzano, as a witness, impressed me as a personable but skillfully evasive witness,
testifying truthfully only to those facts which appeared to have been established or
clearly about to be established concerning his interim earnings by other evidence.
Illustrative of his evasiveness as to a witness are the following excerpts from his
testimony during examination as to his automobile transactions.
Transcripts, page 523, lines 24 and 25; page 524, lines 1 to ,6
Q. Well, do you remember any cars that you bought?
A. Well, I remember that there were other cars. I don't remember what
I bought them for, or what I sold them for, what I put them-what I put into
them as repairs to drive them. I don't know any of them things. You have
got the record. You tell me.
Q. No, you tell me. You are under oath, not me.
A. I don't remember.
* * * * * * *
Transcript, page 535, lines 12 to 14
Q. Do you recall at this time any other cars that you bought?
A. No, I don't.
21 Contrary to Marzano's testimony , Marzano did refer to unemployment compensation
and help from •Stickney Township in his February 13, 1963, statement to the Board.
616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Transcript, page 539 , lines 16 and 17
Q. Can you think of any other cars that you bought?
A. No, I can't.
Transcript , page 541, lines 1 and 2
Q. Do you recall any other cars that you bought?
A. No, I don't.
*
* * * * * * *
Transcript, page 550, lines 4 and 5
Q. Do you recall any other cars what you owned?
A. No, I don't.
* * * * * * *
Transcript, page 550, lines 15 to 18
Q. Well, do you recall any other cars that you owned?
A. No, I don't.
Q. Did you ever own a '53 Buick?
A. I stated I owned a'53 Buick.27
At this stage in Marzano's testimony he had testified previously to the purchase
of a 1953 Buick. He subsequently "recalled" another 1953 Buick transaction.
Again he was asked about other vehicles as is revealed by the following excerpt
from his testimony.
Transcript, page 555, lines 3 to 9
Q. (By Mr. HARRINGTON.) Mr. Marzano, are there any other vehicles that you
can think of that you bought and sold during this period?
A. No, I can't.
Q. Well, did you buy any cars at Hartigan Chevrolet, other than that one you
told us about?
A. Yes, I bought another carat Hartigan Chevrolet.
Transcript, page 556, lines 7 to 19
Q. Did you buy any cars from Hoeffel-Goy Ford on Western Avenue?
A. I think I did buy a car off of him, I don't recall what it was.
Q. Did you buy more than one off of him?
A. This-no, I did not.
Q. Only one?
A. That is right.
Q. You are sure of that?
A. I think I have, sir, here, I have-
Q. You have some papers on some of these deals?
A. Yes. I found some papers. I don't have many. But there was a '53
Buick.
At this stage in Marzano's testimony he produced several invoices relating to a
Hoeffel-Goy Ford transaction, to several Hartigan Chevrolet transactions, and to a
Jack Thompson Oldsmobile transaction.
-Later Marzano was questioned as to the purchase of cars in the names of James
Spain, James Dawson, and Marlene Spain. His initial answers were evasive but his
ultimate answers clearly reveal that he purchased and sold cars, using fictitious names
of James Spain and Marlene Spain. Marzano's ultimate answer *as to James Dawson
in effect asserted that James Dawson was not a fictitious person. Illustrative of
Marzano's testimony concerning James Dawson is the following excerpt from his
testimony.
Q. Do you know a Mr. James Dawson?
A. Yes, I did.
Q. Who is Mr. James Dawson?
A. Who is he, what he is-he is just a fellow, that is who he is.
27 The transcript is corrected to reflect "stated" instead of "stared" in accordance with
the Trial Examiner's recollection of the testimony.
M. J. McCARTHY MOTOR SALES.CO. 617
Credited testimony of other witnesses clearly establish that various automobile
agencies sold automobiles to James Marzano, who signed purchase orders for them
as James Marzano, Arlene Marzano, James Spain, Marlene Spain, James Dawson,
and as other persons, and that James Marzano sold various cars using the same afore-
mentioned names as the seller on the various titles and bills of sales.28
It is clear from the foregoing, all the evidence, and my impression of Marzano
as a witness, that he was intentionally evasive and untruthful in his report to the
Regional Office concerning his interim earnings on February 13, 1963, and in his
report to the General Counsel several weeks before the instant hearing. It is also
clear, in the same manner, that he intentionally attempted to deceive at the hearing
as to his purchase and sale of cars using fictitious names. Illustrative of this is his
testimony originally that he only purchased one car at Hoeffel-Goy Ford in con-
nection with the ultimate testimony relating to his purchase of a car at Hoeffel-Goy
in the name of James Spain.
Since it is clear that during his backpay period Marzano purchased and sold auto-
mobiles, using fictitious names, and since I am convinced that Marzano has attempted
to conceal such purchases and sales, it is proper for me to presume and I do presume
that there were other purchases and sales of cars, using fictitious names, and that
Marzano's complete interim earnings have not been revealed in this case 29 Under
the circumstances of the case, the only practical way for such interim earnings to be
fully revealed would be by the truthful cooperation of Marzano. This he has failed
to provide.
In addition based upon my consideration of the family relationship and the bias
interest of the witnesses as they testified, and the demeanor of the witnesses, I do
not credit James Marzano's, John Marzano's, Joseph Marzano's, or Marlene
Marzano's testimony to the effect that various specific cars were purchased and sold
by James Marzano for his brothers and sisters. In view of my observation of James
Marzano as an evasive and untruthful witness, I do not credit his testimony as to his
expenses incurred on various specific automobiles excepting to the extent that he
had $2 title transfer fees on each transaction. He may have had other expenses;
however, because of the unreliability of his testimony, I am not convinced that such
expenses existed to the extent testified to.
James Marzano and Joseph Marzano testified that Marzano Beverage Company
was owned in 1962 by Joseph Marzano and was now operated by John Marzano.
Their testimony was to the effect that the expenses connected with this company
were not expenses of James Marzano. James Marzano on occasion in 1962 did obtain
the beverages from the distributor, and did deliver the beverages. The company
used James Marzano's telephone number and James Marzano applied for an FHA
loan asserting that he was the owner of Marzano Beverage Company and that he
had salary or net income per week of $135. James Marzano testified at the instant
hearing to the effect that these assertions were untruthful, that he did not own the
aforesaid beverage company, and. that he received no compensation from the com=
pany. In view of James Marzano's demonstrated propensity for untruthfulness when
it serves him, it is impossible to really know from the evidence in this case exactly
his status in connection with the foregoing company. I find it unreasonable to be-
lieve that he received no compensation for his admitted services in connection with
the handling of the beverages. I am convinced that he received some earnings in
connection therewith. His untruthful testimony, in connection with'his.other -acts
previously described and the lack of pertinent records kept by James Marzano or his
brother, make it impossible to ascertain James Marzano's interim earnings in this
regard.
The abuse of the Board processes by Marzano has rendered the ascertainment of
his interim earnings impossible. To determine that backpay is due Marzano,"under
the circumstances of this case, would encourage the abuse of Board processes and
thus would not effectuate in an overall manner the purposes of the Act.
2s The Respondent presented numerous witnesses who testified to the above transactions.
Marzano in the initial phases of his testimony attempted to evade or deny the effect of
some of the testimony pertaining to these transactions. Marzano, toward the end of his
testimony, essentially admitted the effect of the testimony pertaining to these transactions.
To the extent of any possible residue of denial in Marzano's testimony as to the facts set
out herein, his testimony is discredited. I credit the testimony of all witnesses consistent
with the facts set out herein.
a In fact the evidence in the case actually reveals that Marzano made other purchases of
automobiles. As to some of these purchases there was adduced no evidence of sales or
expenses.
618- DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Considering the foregoing and all the evidence, including the fact that Marzano's
actions have prevented the possibility of determining his backpay, I recommend
that no backpay be awarded to James Marzano.S°
0
CONCLUSIONS AND RECOMMENDATIONS
Upon all of the foregoing findings, I find and conclude that the individuals be-
low are entitled to payment by Respondent of the suns listed opposite their names,
less any tax withholdings required by Federal and State laws, as follows: 31
Merlin Griffith--------------------------------------- $12, 605.35
Leonard Pechtold------------------------------------- 11,830.65
Walter Zion------------------------------------------ 1,373.55
It is further recommended that the Board adopt the foregoing findings and con-
clusions, and order the Respondent, its successors and assigns, to pay to the dis-
criminatees the amounts recommended herein.
II0Jaek C. Robinson , doing business as Robinson Freight Lines, 129 NLRB 1040, 1042,
1043. See also "Concealed Earnings and Back Pay Order," 11 LRRM 2545, and "Back Pay
Forfeited for False Claim," 13 LRRM 2565.
ai On the basis of the rationale of Ellis and Watts Products, Inc., 143 NLRB 1269, I deny
the General Counsel's request in his brief that Respondent be directed to pay the'dis-
criminatees interest on the backpay awarded.
APPENDIX A
MERLIN GRIFFITH
[Backpay period April 27, 1961, to February 5, 1963]
12,605.35
Year
1961_____
1962_____
1963__,__
Quarter
Weeks
13 X 132.46 = 1,721.98 + 195.00 + 1,916. 98 - ------- = 1, 916.98
5 X 132. 46 = 662.30 + 81.25 + 743.55 - ------- = 743.55
APPENDIX B
LEONARD PECHTOLD
[Backpay period Tune 12, 1961, to February 5, 1963]
d
0n
1961 _
1962
1963 _
2d__
3d__
4th_
lst__
2d__
3d__
4th_
lst _
Weeks
Gross earnings
Average
weekly
wage
Total
7 X $132.46 = $927.22 + $130.00 + ____ =$1,057.22 - ------- = $1,057.22
8 X 132.46 = 1,059. 68 + 130.00 + $100 = 1, 289 .68 - ------- = 1, 289.68
13 X 132.46 = 1, 721.98 + 195.00 + ____ = 1, 916. 98 - ------- = 1, 916.98
13 X 132.46 = 1, 721.98 + 195.00 + = 1, 916.98 - ------- = 1, 916.98
13 X 132.46 = 1,721.98 + 195.00 + = 1,916.98 - ------- = 1,916.98
13 X 132.46 = 1, 721.98 + 195.00 + 100 = 2,016.98 - $170.00 = 1,846.98
Gross earnings
Average
weekly
Wage
Total
Value of
demon-
strator.
car
Value of
demon-
strator
car
Vaca-
tion
pay
Vaca-
tion
pay
Insur-
ance
Total
gross
earnings
Total
gross
earnings
Interim
earnings
Interim
earnings
Net
backpay
Net
backpay
3X$171. 36= $514.08+
13 X 171. 36 = 2,227.68 +
18 X 171. 36 = 2,227.68 +
13 X 171. 36 = 2,227.68 +
13 X 171. 36 = 2,227.68 +
13 X 171. 36 = 2, 227.68 +
13 X 171. 36 = 2, 227.68 +
5 X 171. 36 = 856.80 +
$48.75 + ____ -r ------ = $ 562.83 - $37.02 = $525.81
195.00 + $100 + ------ = 2, 522.68 - 1, 625.00 = 897.88
195.00 + ____ + ______ = 2, 422.68 - 1, 207.04 = 1, 215.64
195.00 + + ------ = 2,422.68 - -------- = 2,422.68
195.00 + + ------ = 2,422.68 - -------- = 2,422.68
195.00 + 100 - ______ = 2,522.68 - -------- = 2,522.68
195100 + ____ - ------ = 2,422.68 - 1,300.40 = 1,122.28
81.25 + ____ + $53.15 = 991.20 - 290.00 = 701.20
I I e1 I
11, 830.65
U.S. RUBBER COMPANY
APPENDIX C
WALTER ZION
[Backpay period April 28, 1961, to February 1, 1963]
619
Gross earnings
Value of Vaca- Total
Year Quarter demon- tion gross Interim Net
Weeks
Average
weekly
wage
Total
strator
car
pay earnings earnings backpay
1961-__ 2d------- 4 X $204 .58 = $1,841.22 + $130.00 + ____ _ $1, 971.22 - $1,088.51 $882.71
3d------- 11 X 204. 58 = 2, 250 .38 - ------- + $100 = 2,350 . 38 - 2,072.68 277.70
4th______ 13 X 204. 68 = 2,659.54 - ------- + ____ = 2, 659.54 - 2,446.40 213.14
1962__- 1st-_-___ 13 X 204. 58 = 2, 659.54 - ------- + 2,659. 54 - 3,239.15
2d------- 13 X 204. 58 = 2, 659 . 54 - ------- + 2,659.54 - 4,156.50
3d__-____ 11 X 204. 58 = 2, 250.38 - ------- + 100 = 2,350 . 38 - 3,500.75
4th--____ 13 X 204. 68 = 2, 659 .54 - ------- + ____ _ 2,650.54 - 2, 980.25
1963_-_ 1st-_____ 4 X 204. 58 = 818 .32 - ------- -{- ____ _ 818.32 1,180.78
1, 373.55
U.S. Rubber Company and United Textile Workers of America
U.S. Rubber Company and United Textile Workers of America,
Petitioner. Cases Nos. 26-CA-1663, 26-CA-1716, and 26-RC,-
1975. June 23, 1964
DECISION, ORDER, AND DIRECTION OF SECOND
ELECTION
Pursuant to a stipulation for certification upon consent election, an
election by secret ballot was conducted on July 11, 1963, under the di-
rection and supervision of the Regional Director for the Twenty-
sixth Region, among the employees in the stipulated unit. At the con-
clusion of the balloting, the parties were furnished with a tally of
ballots which showed that of approximately 370 eligible voters, 358
valid ballots were cast, of which 174 were for, and 178 against, the
Petitioner 1 and 6 were challenged. The challenged ballots were suffi-
cient in number to affect the results of the election. Thereafter, Peti-
tioner filed timely objections to conduct affecting the election.
The Regional Director investigated the objections and, on Septem-
ber 5, 1963, issued his report on objections and challenged ballots,
in which he found that objections Nos. 1, 2, and 4 raised substantial
and material issues affecting the election results and recommended that
the election be set aside and a new election be held. The Employer 2
filed timely exceptions to these recommendations.
1 Hereinafter also called the Union or the Charging Party.
2 Hereinafter also called the Respondent or the Company.
147 NLRB No. 82.