The Rogers Mfg. Co.

National Labor Relations Board - Board Decisions

Sep 16, 1969

178 N.L.R.B. 429 (N.L.R.B. 1969)

THE RODGERS MFG. CO. 429
The Rogers Mfg. Co. and International Chemical
Workers Union , AFL-CIO. Case 8-CA-3767
September 16, 1969
SECOND SUPPLEMENTAL DECISION
AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On October 11, 1965, the National Labor
Relations Board issued a Decision and Order in the
above-entitled case,' finding, inter alia , that the
Respondent had discriminatorily discharged
employees Sarah LaRue in violation of Section
8(a)(3) and (1) of the Act, and directing that the
Respondent offer her immediate and full
reinstatement and make her whole for any loss of
pay caused by its discrimination against her.
On June 2. 1966, the Board's Order was enforced
by a consent decree of the United States Court of
Appeals for the Sixth Circuit.
On September 30, 1966, the Regional Director for
Region 8 issued and served on the parties a backpay
specification and notice of hearing. Pursuant
thereto, a hearing was held before Trial Examiner
Thomas A. Ricci on November 29, 1966. On
January 11, 1967, the Trial Examiner issued his
Supplemental Decision, in which he found LaRue to
be entitled to backpay in the amount specified.
Thereafter, the Respondent filed exceptions to the
Trial Examiner's Supplemental Decision, together
with a brief.
On May 2. 1967, the Board issued a
Supplemental Decision and Order,' in which it
adopted the findings, conclusions, and
recommendations of the Trial Examiner, and
ordered the Respondent to pav LaRue the specified
amount.
On February 10. 1969, the United States Court of
Appeals for the Sixth Circuit issued a decision,"
enforcing the Board's Supplemental Order in part,
but denying enforcement and remanding as to the
balance. The court enforced the portion of the
backpay award attributable to the period from
LaRue's discharge until the beginning of the strike
on April 6, 1965. But the court rejected the Board's
holding that LaRue's strike activity was irrelevant
as a matter of law with respect to the Respondent's
burden of proving mitigation of its backpay liability
after the beginning of the strike, and remanded the
case for a factual determination on the issue of
mitigation.
On May 19, 1969, the Board issued and served on
the parties a Notice, inviting the filing of a
statement of position with respect to .the issue
remanded by the Court. The Respondent and the
'155 NLRB 117.
'164 NLRB No 46
'406 F.2d 1106.
General Counsel filed statements pursuant thereto.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
Board has delegated its powers in connection with
this case to a three-member panel.
In accordance with the court's remand. we have
reexamined the record of the supplemental hearing
before Trial Examiner Ricci, the Trial Examiner's
Supplemental Decision , and the Respondent's
exceptions thereto and the accompanying brief. We
reaffirm our finding that the Trial Examiner's
rulings at the supplemental hearing were free from
prejudicial error."
Our reexamination of the record shows that
LaRue was an active protagonist, advocate, and
supporter in the Union's organizational campaign.
and was an elected trustee and a member of the
negotiating committee. On February 2, 1965, she
was discriminatorily discharged. On April 6. 1965,
the Union launched an economic strike; and it also
maintained pickets for about 3 months, until
removed by a State court. LaRue joined the
picketing every other day and also continued as a
member of the negotiating committee. Respondent
did not offer LaRue reemployment of any sort until
December 16, 1965, when LaRue promptly accepted
an offer of reemployment at a lower paying job. The
strike has never been formally terminated, and the
strike call remained in effect at the time of the offer
of reemployment, as the Court found.'
As the court in its decision properly noted, under
the basic substantive and procedural principles
applicable to backpay following an unfair labor
practice discharge, "the employer has the burden of
proving facts that show no liability or that mitigate
the extent of the damage." In computing backpay
for employees who have been wrongfully discharged
before an economic strike is called, the Board
normally refuses to exclude the period of a
subsequent economic strike. In the Board's view, the
employer's burden of proof is not met merely by
establishing the fact of the strike, for it remains a
matter of speculation and conjecture whether the
employees would have gone out on strike if still in
the employer's employ and, as the Board sees it,
that uncertainty must be resolved against the
'Although the court at one point in its decision referred to "rejected
(excluded) relevant evidence ' tending to prove mitigation of the backpay
period, we respectfully state that we have been unable to find any such
ruling in the record It is true that the Respondent attacked the Trial
Examiner's refusal to permit it to offer evidence of harassment by the
Regional Office. In its remand , however, the court did not indicate that its
reference was to this ruling, or indeed that the conduct of the Regional
Office in pressing for backpay could properly be characterized as
harassment mitigating the backpay liability.
`The Respondent alleged , in its brief after the Trial Examiner's
Supplemental Decision, that the strikers were offered reinstatement and
had been replaced. However , there is no evidence that the strikers, or the
Union on their behalf, ever applied for reinstatement or otherwise called
off the strike, even though the evidence shows that the pickets had been
involuntarily removed by the State court. Moreover , the brief, filed long
after LaRue accepted reemployment by the Respondent, concedes that the
strike had not yet been officially terminated
178 NLRB No. 69
430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wrongdoing employer who made it impossible to
ascertain what they would have done had they not
been unlawfully discharged. See, e.g., East Texas
Steel Castings Companzy. 116 NLRB 1336, cnfd.
255 F.2d 284 (C.A. 5).
We recognize that the instant case may have a
somewhat different dimension from the usual one
because the facts here show that the discharged
employee, LaRue. occupied more than a simple
membership relationship to the Union, and during
the strike not only engaged in picketing, but also
served the Union in an official capacity as an
elected trustee and member of the negotiating
committee. For purposes of decision in this case, we
accept the Court's holding that these added
considerations are "relevant to the determination of
the appropriate backpay period," and must be
weighed in the balance in determining whether the
Respondent satisfied its burden of proving facts to
show mitigation of its backpay liability. We also
grant that, in the absence of other countervailing
evidence, these considerations might have supported
an inference that would satisfy the burden of proof.
But we are of the opinion that such an inference is
not warranted on the facts in this case, for the facts
show that LaRue did accept the Respondent's
December 1965 offer while the strike was still in
effect, et en though the offer was of a lower paying
iob and not full reinstatement. Since LaRue thus
demonstrated her availability for work when first
put to the test, by the Respondent and this despite
her close involvement with the Union, we are not
pursuaded that on this record a finding is justified
that the Respondent has, met its burden of proof
that she would have withheld her services if offered
full reinstatement sooner. Though we acknowledge
that this remains a matter of uncertainty, we believe
it only reasonable to resolve that uncertainty against
the Respondent This is so, not only because the
Respondent alone had the capacity of removing that
uncertainty by offering LaRue the reinstatement to
which she was entitled, but also because the burden
of proving LaRue's earlier unavailability for work
lay with it. We conclude , in sum , after consideration
of all the relevant facts disclosed in the record, that
the Respondent has not sustained its contention that
LaRue was not available for work after April 6,
1965.
Accordingly, we find that LaRue is entitled to the,
amount of backpay specified in our Supplemental
Decision and Order.`
The award of interest on the backpay due LaRue , although includedlin
our original Decision and Order, was inadvertently omitted in the
Supplemental Decision and Order We hereby ask leave of the Court to
modify the Supplemental Decision and Order so as to include the
customary provision for the addition of interest at the rate of 6 percent per
annum in accordance with the formula set forth in F W Woolworth
Company. 90 NLRB 289, and Isis Plumbing & Heating Co , 138 NLRB
716