Mastell Trailer Corp.

National Labor Relations Board - Board Decisions

Dec 14, 1984

273 N.L.R.B. 1190 (N.L.R.B. 1984)

1190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Masten Trailer Corporation and District No. 77,
International Association of Machinists and
Aerospace Workers, AFL-CIO. Case 18-CA-
6750
14 December 1984
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND DENNIS
On 28 September 1983 Administrative Law
Judge John H. West issued the attached supple-
mental decision. The Respondent filed exceptions
and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, 1 and
conclusions and to adopt the recommended Order.
Unlike the Chairman, we fmd the judge did not
err by extending the backpay period to 31 July
1980. 3 The Respondent failed to meet its burden of
proving that the backpay period termination date
should be other than 31 July, the date the General
Counsel alleged in his backpay specification.
In the original unfair labor practice proceeding,3
the Board found that the Respondent discharged 11
employees in violation of Section 8(a)(3) and (1) of
the Act and awarded backpay from the discharge
date, 11 June, to the date of their employment, or
waiver of employment, with Midway Trailer,
which purchased a portion of the Respondent's
assets. The Board concluded that "even assuming
Respondent's financial condition was precarious, it
is obvious that Respondent's practice and intention,
until June 11, 1980, and the advent of the Union,
was to keep its repair shop employees working and
occupied in spite of its economic difficulties."4
The Eighth Circuit3 affirmed the Board's finding
that the discharges were unlawful, but remanded
the backpay issue to further consider when, in the
exercise of reasonable business judgment, the Re-
spondent would have been forced to close the
shop.
'The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
2 All dates are in 1980 unless otherwise indicated.
'258 NLRB 1234 (1981).
4 Id. at 1240.
5 Masten Trader Corp. v. NLRB, 682 F.2d 753 (8th Cir. 1982).
It is well settled that in a backpay proceeding
the General Counsel's sole burden is to show the
gross amounts of backpay due. Kansas Refined
Helium Co., 252 NLRB 1156, 1157 (1980), enfd.
683 F.2d 1296 (10th Cir. 1982); NLRB v. Brown &
Root, Inc., 311 F.2d 447, 454 (8th Cir. 1963). Once
he has done so, "the burden is upon the employer
to establish facts which would. . . mitigate that li-
ability." Brown & Root, 311 F.2d at 454.
In Brown & Root, the Eighth Circuit observed
that "in many cases it is difficult for the Board to
determine precisely the amount of backpay which
should be awarded to an employee." Id. at 452.
The court went on to state that the Board may use
close approximations, and may adopt formulas rea-
sonably designed to produce close approximations,
so long as the method selected is not arbitrary or
unreasonable under the circumstances. Accord:
Iron Workers Local 378 (Judson Steel), 227 NLRB
692 (1977); Bagel Bakers Council v. NLRB, 555
F.2d 304 (2d Cir. 1977).
The Respondent has raised an affirmative defense
that it would have been forced to close 13 June,
and thus jobs for the discriminatees were not avail-
able thereafter. The burden of going forward with
evidence to prove a defense based on lack of job
availability rests with the Respondent. NLRB v.
Mastro Plastics Corp., 354 F.2d 170, 176 (2d Cir.
1965), cert. denied 384 U.S. 972 (1966); Underwood
Machinery Co., 95 NLRB 1386, 1392-93 (1951).
In the instant case, the General Counsel in the
backpay specification and at the hearing met his
burden of showing the gross amounts of backpay
due. The General Counsel reasonably selected 31
July to terminate the Respondent's backpay liabil-
ity, as the third quarter of the Respondent's fiscal
year ended on that date and as the court of appeals
had concluded that the record did not support an
award of backpay for August.6
The burden of establishing its affirmative defense
therefore fell on the Respondent. At the backpay
hearing, the Respondent failed to meet its burden.
In an effort to demonstrate that it would have
closed the shop 13 June, the Respondent merely re-
iterated evidence which the judge discredited at
the original hearing. The judge in the backpay pro-
ceeding specifically found that "Mastell was not
being truthful when he testified that he had decid-
ed on June 10 to close the shop and parts depart-
ment on June 13," and that Mastell was attempting
to find ways to keep the shop open and "was not
about to call it quits." The Respondent failed to
present any evidence at the backpay hearing to
show that it would have been forced to close its
6 682 F.2d at 756.
273 NLRB No. 149
MASTELL TRAILER CORP. 1191
shop on a date earlier than 31 July but later than
13 June.
Our dissenting colleague would remand the case
to the judge for further findings as to when the Re-
spondent would have been forced to close the shop
absent unlawful discrimination. But, because the
Respondent insisted on presenting evidence only
with regard to 13 June, and because the judges in
both the original and backpay proceedings discred-
ited that evidence, no finding of a different date is
supported by this record.
In the alternative, our dissenting colleague
would remand the case for further evidence. This
option, however, would give the Respondent two
bites at the apple. The Respondent had full oppor-
tunity to produce evidence, if it had such evidence,
. of when it would have been forced to close the
shop other than 13 June. It failed to avail itself of
the opportunity. A remand for further evidence
would cause additional delay, and would not likely
elicit substantially different evidence from that the
Respondent previously adduced. Further, in its 31
August 1982 statement of position following the
court remand, the Respondent stated:
[T]he position of Mastell Trailer Corporation
[is] that this matter not be remanded to Region
18 for a subsequent back pay hearing. The tes-
timony which will be adduced at such hearing
will be no different than that adduced approxi-
mately twenty months ago when this matter
was initially heard with the exception that
Mastell would be calling its banker and ac-
counting firm to further substantiate its dete-
riorating economic condition. The record dic-
tates that Mastell would have shut down its
shop and parts department on June 13, 1980
regardless of the union.
In other words, the Respondent stated it did not
desire a backpay hearing to present evidence.
Unlike our dissenting colleague, we see no con-
flict between our decision and the court of appeals'
statement, as follows (682 F.2d at 756):
The Board should employ an economic analy-
sis to determine when Mastell, in the exercise
of reasonable business judgment and, with ap-
propriate concern for the welfare of its em-
ployees, would have been forced to close its
repair shop and parts department. Backpay
should then be computed from the date of
actual discharge to the date the employees
would have been discharged in the absence of
antiunion animus.
We do not interpret this statement as changing
long-established Board and court law regarding
evidentiary burdens in backpay proceedings.
Rather, we view the court's direction as requiring
us to analyze the Respondent's economic evidence
in light of evidence of union animus. This we be-
lieve the judge properly did.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Mastell
Trailer Corporation, St. Paul, Minnesota, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the Order.
CHAIRMAN DOTSON, dissenting.
Contrary to my colleagues, I am unable to adopt
the judge's calculation of the appropriate amount
of backpay owing in this proceeding. In my view,
the judge's finding that the backpay period extends
to 31 July 1980 1 is unsupported by the record in
this proceeding and is based on a rationale at odds
with the remand order of the court of appeals.
In Mastell Trailer Corp. v. NLRB,2 the United
States Court of Appeals for the Eighth Circuit en-
forced on the merits the Board's finding 3 that the
Respondent violated the Act by closing its repair
shop and parts operation and discharging employ-
ees on 11 June because of their union activities.
The Eighth Circuit, however, vacated and remand-
ed for additional Board consideration matters per-
taining to the proper backpay entitlement of the
unlawfully discharged employees. Contrary to the
Board's order of backpay extending to August, the
court concluded that although the record justified
a backpay order "for a short period of time" the
award of backpay into August "appears punitive in
nature" inasmuch as the Respondent's financial
condition "continued to deteriorate during June,
July, and August." 4 Because of the deficiencies in
the Board's analysis regarding the backpay issue,
the court specifically ordered: •
The Board should employ an economic analy-
sis to determine when Mastell, in the exercise
of reasonable business judgment and, with ap-
propriate concern for the welfare of its em-
ployees, would have been forced to close its
repair shop and parts department. Backpay
should then be computed from the date of
actual discharge to the date the employees
would have been discharged in the absence of
antiunion animus.
'All dates are in 1980.
2 682 F.2d 753 (8th dr. 1982).
3 258 NLRB 1234 (1981).
4 682 F.2d at 756.
1192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At the compliance hearing following the court's
remand the General Counsel presented as the sole
witness in support of the backpay specification
Compliance Supervisor James Miller. Miller testi-
fied that he did not speak with anyone in the Re-
spondent's management in determining when the
Respondent likely would have closed its shop in
the absence of the employees' union activities and
that in drafting the backpay specification it was
"assumed" that the Respondent would have kept
open its shop until 31 July. According to Miller,
this assumption was reached because it so hap-
pened that 31 July was the end of the third quarter
of the Respondent's fiscal business year. The Gen-
eral Counsel presented no other evidence.
The Respondent contended at the hearing that it
was on the brink of imminent financial collapse in
June and would have closed its shop for economic
reasons shortly after 11 June. Consistent with the
Eighth Circuit's description of the Respondent's
perilous financial condition in June, the Respond-
ent's banker Bradley Rinsum testified that the Re-
spondent could not have continued to sustain the
losses it already had incurred in view of its out-
standing business debts. Indeed, it is undisputed
that the Respondent had to obtain additional credit
from its bank immediately prior to 11 June just to
meet its payroll and also was required to seek an
advance under its existing loan arrangement to pay
employees their accrued vacation pay.
Notwithstanding this uncontradicted record evi-
dence of the Respondent's critical economic condi-
tion, the judge dismissed this evidence of a likely
imminent shutdown as "purely speculative" and
completely failed to undertake the economic analy-
sis ordered by the Eighth Circuit. Instead, the
judge accepted the General Counsel's "assumption"
that the Respondent would not have closed its
shop until the end of the fiscal quarter on 31 July.
The judge made this finding because "Board calcu-
lations based on calendar quarters have been ap-
proved" by the courts, citing NLRB v. Brown &
Root, Inc. 5 Brown & Root, however, concerned the
propriety of the customary quarterly formula used
by the Board in calculating gross backpay once the
proper backpay period has been determined 6 and
therefore does not answer the question of when
backpay ceases to accrue because of a loss of em-
ployment pursuant to legitimate business reasons.
In seeking to answer that question, the happen-
stance of when the Respondent concludes its fiscal
5 311 F 2d 447 (8th Cir 1963)
6 The court rejected the employer's contention in Brown & Root that a
gross backpay formula based on a "lump sum" amount was appropriate
rather than one based on calendar quarters
quarterly period has only minimal, if any, probative
value.
More importantly, in Brown & Root the Eighth
Circuit adopted a standard that the General Coun-
sel's backpay calculation must not be "arbitrary or
unreasonable in the circumstances involved." 311
F.2d at 452. Applying this reasonableness standard
to the instant proceeding in light of the court's in-
structions on remand, it is clear that the Eighth
Circuit has ordered the Board to engage in an
"economic analysis" and that application of the as-
sumption proffered by the General Counsel derived
solely from the date the Respondent commenced
its fiscal year does not satisfy that requirement. It
therefore follows that the failure of the judge and
the majority to render a decision based on the
mode of analysis ordered by the Eighth Circuit is
to engage in precisely the "arbitrary or unreason-
able" calculation the Eighth Circuit directed the
Board to avoid in Brown & Root.
In sum, given the law of this case as ordered by
the Eighth Circuit, I would find that a calculation
of backpay based solely on the General Counsel's
fiscal year assumption is arbitrary and unreason-
able. Accordingly, it is my view that the General
Counsel has failed to satisfy his burden of present-
ing a reasonable basis for awarding backpay to 31
July. I would therefore remand this proceeding to
the judge with instructions to make sufficient addi-
tional findings of fact in line with the economic
analysis ordered by the Eighth Circuit or, in the al-
ternative, I would remand this proceeding to the
judge for rehearing for the purpose of taking addi-
tional evidence sufficient to enable the Board to
comply with the directions of the court of ap-
peals. 7
7 The majority concedes that it is the General Counsel's burden and
not the Respondent's burden to show the gross amount of backpay due
This calculation, of course, requires the General Counsel to demonstrate
a reasonable basis to support the gross backpay period set forth in the
backpay specification In determining that the gross backpay period ter-
minated on 31 July 1980, the General Counsel and the majority rely ex-
clusively on the fact that 31 July 1980 is the date ending the third quarter
of the Respondent's fiscal year Why is the Respondent's fiscal year a
reasonable date to terminate the gross backpay period ? The majority
offers no explanation What is the connection between the Respondent's
fiscal year and the likely closing of its shop? The majority again offers no
explanation Instead, the majority merely assumes that 31 July 1980 is a
reasonable date to terminate the backpay period To rely exclusively on
such an assumption is to ignore the Eighth Circuit's admonition to
employ an economic analysis in computing the appropriate amounts of
backpay in this case Unlike my colleagues, I decline to do so
SUPPLEMENTAL DECISION
JOHN H. WEST, Administrative Law Judge. The Na-
tional Labor Relations Board (Board), in its decision
herein, see Mastell Trailer Corp., 258 NLRB 1234 (1981),
adopted the findings and conclusions of an administrative
MASTELL TRAILER CORP. 1193
law judge who recommended, among other things, a
backpay award from the day of the involved employees'
unlawful discharge, June 11, 1980, to the date of their
employment or waiver of employment with the corpora-
tion which purchased a portion of Respondent's oper-
ation. On review, the court in Masten Trailer Corp. v.
NLRB, 682 F.2d 753 at 755 (8th Cir. 1982), as here perti-
nent, determined that when Respondent unlawfully dis-
charged the employees it was in "financial plight . . .
[and] would not have operated for very long." The court
went on to state at 756:
As we review the record, it justifies a backpay
order for a short period of time. Because Mastell's
financial condition continued to deteriorate during
June, July, and August, the record does not appear
to support a backpay award for August. The award
of backpay to August lacks evidentiary support, and
therefore, appears punitive in nature.
It then concluded at 756:
Accordingly, we . . . vacate and remand the
backpay issue to the Board. The Board should
employ an economic analysis to determine when
Mastell, in the exercise of reasonable business judg-
ment and, with appropriate concern for the welfare
of its employees, would have been forced to close
its repair shop and parts department. Backpay
should then be computed from the date of actual
discharge to the date the employees would have
been discharged in the absence of antiunion animus.
On January 4, 1983, the Board's Regional Director for
Region 18 issued a backpay specification and notice of
hearing, which specifies a backpay period which ends on
July 31, "the date on which the Respondent would have
closed the [involved] shop repair facility."
In its answer, Respondent denied that the appropriate
period of backpay ends on July 31. It states two affirma-
tive defenses. The first alleges that due to deteriorating
economic conditions Respondent would have closed its
repair shop and discharged the 11 employees on June 13
and, therefore, the backpay period should end on that
date. The second alleges that the 11 discharged employ-
ees failed to make a reasonable and diligent search and a
good-faith effort to find interim employment and to oth-
erwise mitigate their damages following their discharge.
A supplemental hearing was held on April 11, 1983, in
Minneapolis, Minnesota. On the entire record thus made,
including my observation of the demeanor of the wit-
nesses, and after due consideration of the briefs filed by
the General Counsel and counsel for Respondent, I make
the following findings of fact and conclusions of law.
The General Counsel called one witness, James Miller,
who is a compliance supervisor with the Board, and who
testified that he compiled the information for the back-
pay specifications; that he assisted in drafting the back-
pay specification; that it assumed that Mastell would
have kept its shop open until July 31; and that he did not
talk with anyone in Respondent's management regarding
when it would have closed its shop.
The General Counsel then argued at the hearing that
the computation of backpay on a quarterly basis has been
approved by the Board; that 2 while the involved "em-
ployees were reinstated or effectively declined or waived
reinstatement . . . with Respondent's successor on
August 12 . . . [i]n view of the decision of the Eighth
Circuit Court of Appeals, it appears inappropriate to
seek backpay for any part of August"; and that it is Re-
spondent's burden to establish that the discriminatees
would have been laid off due to economic considerations
prior to July 31, but for the unlawful layoff of June 11.
With respect to the ba.ckpay period, Respondent called
four witnesses: David Mastell, who owns Respondent,
Bradley Rinsum, who is Respondent's banker, and
Robert Schneider and Jack McCabe, who own the suc-
cessor corporation and who formerly were Respondent's
shop service manager and parts manager, respectively.
Of these witnesses, only Rinsum did not testify at the
first hearing.
In the April 1983 hearing, Schneider testified that he
knew Respondent was losing money. At monthly meet-
ings with Mastell every area of the Company was dis-
cussed. Mastell's philosophy had always been to try to
keep the men working, "and at a couple of different
times, he told me if they had to sweep floors, to keep
them busy, not to lay them off"; that the employees in
the repair shop were repairing few customer-owned
truck trailers; that to keep the men busy they repaired
Respondent-owned units, which it was trying to sell and,
therefore, no return was had until these units were sold.
Prior to 1980 about 75 percent of the trailers repaired
were customer-owned; that on the day the shop closed
Respondent had only two customer-owned trailers in the
shop. He was surprised when the shop was closed down.
He knew it was coming but he "just didn't think it
would be that quick." In the January or March 1980
management meeting it was determined that, if condi-
tions could not be improved within 3 or 4 months, some-
thing would have to be done or the Company might go
bankrupt. The successor corporation, which purchased
Respondent's parts and repair business (and more recent-
ly Respondent's fabrication business), grew from 2 em-
ployees in August to 15 employees (not counting office
personnel) in April 1983. The successor corporation did
not purchase the trailer sales portion of Respondent's
business and, therefore, did not have the expenses of the
trailer inventory.
McCabe testified that the fact that Respondent had an
accumulated loss of over $100,000 was brought up in a
management meeting held between June 1 and June 7.
He was not surprised when the shop shut down because
"with the losses we were having every month, I was sur-
prised he didn't do it three or four months before that."
One of the two banks which extended credit to the suc-
cessor corporation was the same bank at which Respond-
ent had its line of credit. He did not remember whether
2 Respondent operates on a fiscal year basis, and July 31 would have
been the end of its third quarter.1 All dates are in 1980 unless otherwise stated.
1194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
at the above-described June management meeting Mastell
said he was considering laying off all shop employees or
shutting down the business. He was not advised prior to
June 11 that Mastell was going to close the shop.
Mastell testified that from the start of fiscal 1979 to
June 1980 Respondent went from 22 to 11 employees in
the repair shop. While during fiscal 1979 about 85 per-
cent of the work of the repair shop was on customer-
owned units and the remainder of the work was on Re-
spondent's units which it was selling, there was a de-
crease in shop work in 1980 due to a loss of major ac-
counts. In the spring of the year 85 percent of the work
was on equipment Respondent was attempting to sell.
The accountant who Respondent employed, who testi-
fied at the prior hearing, advised Mastell in March to liq-
uidate all but the sales department (Respondent had
about 120 trailers for sale in the spring of 1980). At the
time of the April 1983 hearing he thought the account
was out of State (the accountant did not testify). On
June 9, he received the May 31 profit/loss statement
which showed a loss of almost $23,000 in May with an
accumulated loss for year-to-date of over $103,000. The
accountant again advised liquidation; and then prepared
a statement of income and expenses by department (ac-
cording to the statement, the shop lost over $57,000 and
the parts department lost over $26,000 during the year-
to-date period. Mastell, on June 9, showed Rinsum both
the profit and loss and the department income and ex-
pense statements. He decided to close the shop and parts
department while lying awake the morning of June 10,
and decided that he was going to shut them on Friday,
June 13. He did not tell anyone because he "was
hoping—maybe a trailer sale would come up, maybe I
could have liquidated something—anything to pull it
off." While his mind was made up he had hopes that
something drastic would happen. He was calling on cus-
tomers on June 11 when he learned that "the Union was
going to come in" with a contract that afternoon. He
was relieved because he believed it was no longer neces-
sary to feel guilty about closing the shop and parts de-
partment. He "was overdrawn $2,000 from the payroll
from the . . . [preceding week and] . . . [t]he bank was
good enough to cover the checks that went through, and
I had to borrow money for the payroll." When the shop
was closed there were only two customers' trailers
which needed a total of 10 hours of work; he could not
reasonably liquidate Respondent's trailer inventory be-
cause at that time he could only expect 25 cents on the
dollar, even though he had personally guaranteed the
loan covering his inventory, his personal assets would
not have covered the difference between what he owed
and what he believed his inventory was worth at the
time. 3 He paid the discharged employees the 1 to 3
weeks' vacation they had accrued with funds obtained
from his line of credit. Prior to the discharge he made
every effort to keep his shop and parts employees work-
ing. He was not going to give the employees any ad-
vance warning of the closing and at his last meeting with
the employees, in May 1980, he advised them they
2 Respondent had a $400,000 line of credit in 1979 with 90-day notes
on its inventory of new and used trailers
would be receiving a raise but, at the same time, there
could be layoffs if things did not turn around. He was
trying to get repair business on June 11 so that he could
go "to the bank and . . . [get] more money to pay the
payroll and extend it." He never suggested to employees
that they cut their wages to save their jobs; his banker
left him with the impression that he should liquidate. He
testified that he had laid off employees in the repair shop
in the past without any advance notice.
Rinsum testified that the agreement between his bank
and Respondent provided for (a) a floor plan for the req-
uisition and holding of trailers for resale, (b) an accounts
receivable financing package, and (c) an installment
credit line for the acquisition of equipment. The initial
line of credit his bank gave to Respondent was $250,000
for trailers and either $100,000 or $150,000 for accounts
receivable. The bank had a 90-day note with an interest
rate that eventually floated at 2 percent above prime. He
reviewed Respondent's monthly financial statements and
he did see a breakdown for each department, but he nei-
ther recalled nor was he interested in how individual de-
partments were doing. He believed it was a wise business
decision to shut down the repair shop on June 11 be-
cause he could see no way for Respondent to satisfy the
debts that were outstanding at that point but he "could
only evaluate that by the end result . . . since he did not
have information at . . . [his] disposal with which to
make such a judgment at the time." The week before
Mastell laid off the shop employees, he had to obtain ad-
ditional credit at his bank to pay them. Mastell also had
to take an advance under the existing commitment to pay
the employees for their accrued vacations. He did not
know whether the income the shop employees generated
exceeded labor costs; but he knew that Respondent
could not have continued to sustain its losses.
Contentions
On brief, the General Counsel contends that while Re-
spondent pled, as an affirmative defense, that the shop
would have closed on June 13, it chose to offer nothing
more, with the exception of Respondent's banker, than
testimony and evidence already discredited. Assertedly,
Rinsum failed to shed any light in that, while he was of
the opinion that Respondent's decision to shut down the
shop on June 11 was a good business decision, he con-
ceded that he did not recall whether labor cost exceeded
income generated by the shop in the spring of 1980 and
could not state how a particular department of Respond-
ent's business was performing. It is argued by the Gener-
al Counsel that "much of Rinsum's testimony buttresses
the argument that in spite of its economic difficulties,
Respondent intended to continue to operate" (G.C. Br.
6.) Assertedly, since Respondent failed to prove with any
degree of certainty when the discriminatees would have
been laid off absent the discrimination, the presumption
is that the backpay specification accurately sets forth the
backpay period.
Respondent, on brief, contends that when the record
establishes that the employees would have been laid off
"eventually" due to economic reasons, it becomes incum-
bent on the Board to determine when economic factors
MASTELL TRAILER CORP 1195
would have forced a shutdown irrespective of union
animus, and limited backpay accordingly. Mastell re-
quests that the
• . award of back pay to the discharged employ-
ees [be limited] to the period of June 11, 1980 to
June 13, 1980 and submits that any award past June
13, 1980 will be punitive in nature, will award the
discharged employees more than they would have
received absent the 8(a)(3) violation and will be
contrary to the remand of the 8th Circuit Court of
Appeals [R. Br 16].
In the alternative, Respondent argues that employees Mi-
chael Fancy and James Gear did not make a good-faith
effort to mitigate losses in that the former allegedly made
no attempt to find employment in other trailer shops in
the Twin City area and the latter was "offered" factory
work but did not accept the employment because he did
not like the hours or the location.
Analysis
In this type of proceeding the General Counsel has the
burden of establishing as nearly as possible what the em-
ployees would have earned but for the unlawful conduct
of the Respondent. Phelps Dodge Corp. v. NLRB, 313
U.S. 177 (1941), and NLRB v. Brown & Root, Inc , 311
F.2d 447 (8th Cir. 1963). The General Counsel has the
burden of establishing a formula for the calculation of
gross backpay due to employees, but in many cases it is
difficult to ascertain the precise amount due and, there-
fore, a wide range of discretion is accorded the fashion-
ing of such a formula provided it is reasonably designed
to produce approximations and it is not arbitrary and un-
reasonable. Once the General Counsel has established a
reasonable formula, the burden then falls on Respondent
to establish facts which would negate or' diminish the ex-
istence of liability. Brown & Root, Inc., supra. Board cal-
culations based on calendar quarters have been ap-
proved. Id.
It would seem that Respondent has misread Mastell
Trailer Corp. v. NLRB, supra, in asserting that "any
award past June 13, 1980 . . . will be contrary to the
remand of the 8th Circuit Court of Appeals." The evi-
dence Respondent submitted herein does not speak to—
as the court directed—when Respondent would have
been forced to close its repair shop and parts department,
in the exercise of reasonable business judgment and with
appropriate concern for the welfare of its employees.
The evidence speaks to when Mastell alleges he would
have closed absent union animus, namely, June 13. This
evidence was formerly discredited. After listening to him
testify, it is my opinion that Mastell was not being truth-
ful when he testified that he had decided on June 10 to
close the shop and parts department on June 13. Mastell
may have engaged in self-deception. He impressed me as
being a fighter. With only 2 years of high school, he has
accomplished a great deal. He did not listen to his ac-
countant who earlier had told him to "throw in the
towel." He did make some changes which included some
layoffs. But he was not about to call it quits Not until he
felt betrayed was he willing to close down a portion of
the business he built. Mastell was not going to close the
shop and the parts department on June 13. He was at-
tempting to find ways to avoid doing just that. And if he
had not succeeded he would have found a way to pro-
long what may have been inevitable Mastell impressed
me as being a stubborn man who would not rely on the
"experts." How long he could have kept the repair shop
and the parts department open is, on this record, purely
speculative. He had extended his line of credit to meet
one payroll. He was also able to further extend it to
cover accrued vacations. Possibly there could have been
alternatives. But Mastell did not discuss alternatives with
the employees. It was not indicated how far his bank
would have extended his credit line to make up any dif-
ferences in the income and labor costs for the shop and
parts department. Respondent focuses solely on June 13.
But again, Mastell's testimony regarding June 13 is not
credited. His accountant did not testify herein and
banker Rinsum did not provide the answer to the court's
question.
In my opinion Respondent has not met its burden of
demonstrating when "in the exercise of reasonable busi-
ness judgment and, with appropriate concern for the
welfare of its employees, [it] would have been forced to
close its repair shop and parts department." (Emphasis
added.)
Regarding Respondent's contentions about employees
Fancy and Gear, it is my opinion that based on the evi-
dence of record, both made good-faith efforts to find
other employment during the backpay period. Gear did
not receive an offer of factory work, contrary to Re-
spondent's assertion on brief.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed 4
ORDER
The Respondent, Mastell Trailer Corporation, St.
Paul, Minnesota, its officers, agents, successors, and as-
signs, is ordered to pay the persons listed below the
amounts set forth opposite their names, together with in-
terest, computed in the manner prescribed in Florida
Steel Corp., 231 NLRB 651 (1977) See generally Isis
Plumbing Co., 138 NLRB 716 (1962):
Sidney Albee $ 544
Michael Fancy 2188
James Gear 3024
Edwin Hohn 2188
Thomas Mauder 2541
Paul Madison 2906
Dan Sapp 2448
Thomas Solem 3024
Dennis Alm 3024
Warren Scribner 3024
4 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses