McCann Steel Co., Inc.

National Labor Relations Board - Board Decisions

Jun 28, 1974

212 N.L.R.B. 394 (N.L.R.B. 1974)

394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
McCann Steel Company, Inc. and Shopmen 's Local
Union No. 733 of the International Association of
Bridge, Structural and Ornamental Iron Workers,
AFL-CIO and J. C. Hindsley. Cases 26-CA-3661
and 26-CA-3717
June 28, 1974
DECISION ON REVIEW
BY MEMBERS FANNING, KENNEDY, AND PENELLO
On April 23, 1971, the National Labor Relations
Board issued a Decision and Order in the above-enti-
tled proceeding,' finding, inter aba, that Respondent
had discriminatorily discharged J. C. Hindsley in vio-
lation of Section 8(a)(1) of the National Labor Rela-
tions Act, as amended. Respondent was directed to
make an offer of immediate and full reinstatement to
Hindsley to his former or a substantially equivalent
position and to make whole Hindsley for any loss of
earnings resulting from the discrimination. On July 6,
1972, the United States Court of Appeals for the Sixth
Circuit entered its judgment enforcing in full this as-
pect of the Board's Order.
Thereafter, pursuant to a backpay specification and
appropriate notice of hearing issued by the Acting
Regional Director for Region 26, a hearing was held
before Administrative Law Judge Thomas S. Wilson
for the purpose of determining the amount of backpay
due Hindsley. On January 18, 1973, the Administra-
tive Law Judge issued his Supplemental Decision in
which he found that Hindsley was entitled to the
amount of money set out in the specification, i.e.,
$4,967, upon which interest was to be paid at the rate
of 6 percent per annum, minus the tax withholding
required by Federal and state laws. Thereafter, Re-
spondent filed exceptions to the Supplemental Deci-
sion and a supporting brief, and counsel for General
Counsel filed an answering brief.
The Board on May 18, 1973, issued its Supplemen-
tal Decision and Order in which it affirmed the Ad-
ministrative Law Judge's decision that Respondent
owed Hindsley $4,967 in backpay, while modifying
the Administrative Law Judge's rationale for so find-
ing?
Thereafter, Respondent filed with the United States
Court of Appeals for the Sixth Circuit a petition for
review of the Board's Supplemental Decision and Or-
der, and the Board filed a cross-application for en-
forcement of its Supplemental Decision and Order.
On January 8, 1974, the court of appeals remanded
' 190 NLRB 12
'203 NLRB No 115
the case to the Board for,clarification of its decision
in two pertinent parts,' and on March 12, 1974, the
court denied the Board's petition for rehearing.
Thereafter, on April 18, 1974, the Board notified the
parties that it had decided to accept the remand from
the court of appeals and to clarify its order consistent
therewith. The parties were notified they would re-
ceive copies of whatever order the Board issued in
light of the court's remand.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has reconsidered the record, including
the Administrative Law Judge's Supplemental Deci-
sion, the exceptions and briefs filed with respect there-
to, and its own Supplemental Decision and Order,
and hereby reaffirms the conclusions reached in its
Supplemental Decision and Order and reaffirms that
the amount of backpay owed J. C. Hindsley by Re-
spondent is $4,967.
In its order of remand, the court of appeals stated:
. . . the Board found the Company to be indebt-
ed to J. C. Hindsley in the amount of $4,967,
with interest, less tax withholdings, for backpay.
The Company contended that Hindsley willfully
incurred a loss of earnings by failing to work the
full number of hours he could have for his inter-
im employer and by taking a leave of absence
from that employer. The Board correctly im-
posed the burden of proof upon the Company to
show the amount by which the gross backpay
should be diminished because of the claimed
willful loss of earnings, and found that it had
failed to meet its burden of showing that
Hindsley's interim employer had work available
that Hindsley declined to perform.
From the record, viewed as a whole, it is un-
clear whether [1] the Board considered the fact
that Hindsley's fellow draftsmen worked over-
time during several pay periods [presumably the
court was referring to the third and fourth quar-
ters of 1971 and the first quarter of 1972] when
he failed to work the basic 40 hours, and whether
[2] any credit against the gross backpay was al-
lowed for self-employment when the same activi-
ty would be compensated if performed for
another employer.
With regard to the first issue raised in the court's
remand order, the Board in its Supplemental Decision
and Order did specifically consider the fact that other
3 489 F 2d 1328 (C A 6, 1974)
212 NLRB No. 39
McCANN STEEL CO., INC. 395
draftsmen at Englert worked overtime during several
pay periods when Hindsley did not work 40 hours.
Specifically, the Board stated that Englert's records
showed that Hindsley "worked a lower number of
straight-time hours than the other employees in his
job category during the latter part of 1971 and the first
quarter of 1972, and that Hindsley worked no over-
time during this period while his fellow employees
did." Nevertheless, the Board concluded that this fail-
ure to work a 40-hour workweek while others may
have worked overtime did not indicate, in the circum-
stances of this case, that Respondent's backpay liabil-
ity should be lessened. We here reaffirm this
conclusion.
We must, of course, start with the basic premises:
(1) that the burden of proof to show the amount by
which the gross backpay should be diminished be-
cause of a claimed willful loss of earnings rests with
Respondent,4 and (2) that any uncertainties in the
record must be resolved against the wrong-doer.'
Considering the evidence in this light, we find the
record fails to show whether work with Englert was
available to Hindsley at those times he was not pres-
ent and therefore fails to show that Hindsley willfully
incurred a loss of earnings that should be subtracted
from the gross backpay figure.
Specifically, we note, as we did in our Supplemental
Decision and Order, that Respondent presented no
direct evidence that Hindsley ever refused to do an
available straight-time job or that there was work
available for Hindsley at those times he was not pres-
ent at Englert. We note again that, although Respon-
dent called Hindsley's supervisor at Englert as its
witness, it did not attempt to elicit from him answers
to these issues which we deem crucial, but rather con-
fined itself to questions which elicited only general
responses that the work in the backpay period was a
"steady amount" and that work was assigned in a
rotation manner wherein when one finished one job
he was assigned "the next available job."
While Hindsley himself incorrectly testified that he
thought he had worked "close to" a 40-hour week at
Englert up to January 1972,6 he was never confronted
with his time records nor asked why he did not work
full straight time in the latter part of 1971 and in the
first quarter of 1972. He did respond to a question as
to why he did not desire to work overtime during this
period,' but no questions were presented as to his
reasons for not working full straight-time; whether he
was ever reprimanded for not doing so;8 or whether
there was work for him on a straight-time basis that
he ever refused .9
We are left then with an uncertain record regarding
the availability of work for Hindsley in September
through December of 1971 and the first quarter of
1972. In such circumstances, we do not think Re-
spondent has sustained its burden of proving a willful
loss of earnings on Hindsley's part ,as it has alleged.
With respect to the second point raised in the
court's remand order, we note that in April 1972
Hindsley requested a leave of absence from his inter-
im employer, Englert Engineering Co., in order to
become self-employed. Hindsley remained self-em-
ployed until June 29, 1972, the time of his reinstate-
ment at Respondent. The backpay specification
shows that in the second quarter of 1972 Hindsley
received $102.69 in wages from Englert and that he
earned $922.20 during that period working for him-
self.1° Further, the backpay specification shows that
both of these sums were duly credited against the
backpay owed in arriving at a sum of $4,967.
We reaffirm here our Supplemental Decision and
Order that the backpay owed Hindsley is the sum of
$4,967, with interest less tax withholdings.
6 The records indicate that from September 1971, when overtime was
reinstated, until April 1972, when Hindsley took his leave of absence Hmds-
ley averaged about 25 hours per week , and the other employees who worked
there over that 7-month period averaged about 40-1/2, 48, and 51- 1/2 hours
per week.
' His wife was ill and the doctor recommended someone be with her during
this time
S In this regard, we note that Hindsley's supervisor at Englert recommend-
ed him for raises in January 1971 and 1972.
9 In this regard, we think it highly unlikely that Englert would have tolerat-
4 Marlene Industries Corporation, et a! v. N.L.R.B, 440 F.2d 673 (C .A. 6, ed for some 7 months a situation where Hmdsley 's failure or refusal to do
1971). available work compelled it to pay overtime to others as it did.
5 NL.RB. v Mianu Coca-Cola Bottling Company, 360 F.2d 569 (C.A. 5, 10 Respondent does not dispute the accuracy of Hindsley 's reported earn-
1966) ings from his entry into self-employment in 1972.