Prigg Boat Works

290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 8. All employees of Wyatt engaged in its logging operations in and about Flag- staff, Arizona, excluding office and clerical employees and supervisors, as defined by the Act, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. 9. Northern Arizona District Council of Lumber and Sawmill Workers, United Brotherhood of Carpenters and Joiners of America, affiliated with the American Federation of Labor, was on June 5, 1950, and at all times thereafter has been, the exclusive representative of all the employees in the aforesaid appropriate unit for the purpose of collective bargaining within the meaning of Section 9 ,(a) of the Act. 10. By refusing on June 8, 1950, and at all times thereafter, to bargain col- lectively with the Union, as the exclusive representative of all employees in the appropriate unit, Respondent Wyatt has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 11. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, Respondent Wyatt has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 12. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 13. Respondent Wyatt did not discriminatorily lock out its employees, as alleged in the complaint. [Recommended Order omitted from publication in this volume.] Appendix A Flano Apadaca Jesus Pozas D. L. Berryhill Claude Sanders Samson Brue Sidney M. Stewart Gilbert Holden A. C. Everett H. PAUL PRIGG, AN INDIVIDUAL, DOING BUSINESS UNDER TIIE NAME AND STYLE OF PRIGG BOAT WORKS and INDUSTRIAL UNION OF MARINE AND SHIPBUILDING WORKERS OF AMERICA, C. I. O. Case No. 10-C- 1660. December 7, 1951 Amendment to Supplemental Decision and Recommendation On October 31, 1950, the Board issued its Supplemental Decision and Recommendation in the above-entitled case.' Upon further con- sideration it appeared to the Board that said Supplemental Decision and Recommendation should be amended. Accordingly, on Novem- ber 9, 1951, the Board issued a Notice to Show Cause, returnable on or before November 23, 1951, why the proposed amendment attached to said notice should not issue as an amendment to Supplemental Decision and Recommendation. None of the parties has responded to said notice. IT IS HEREBY ORDERED that the said Supplemental Decision and Re- commendation be, and it hereby is, amended by substituting for the 191 NLRB 1379. 97 NLRB No. 56. PRIGG BOAT WORKS 291 last paragraph on page 1379 and "Recommendations" on page 1380, the following : The Board has reviewed the rulings made by the Trial Exami- ner at the hearing and finds that no prejudicial error was com- mitted. To the extent here consistent, the rulings are hereby affirmed. The Board has considered the Supplemental Inter- mediate Report, a copy of which is attached hereto, the excep- tions and briefs filed by the parties, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner, with the following modifica- tions, exceptions and additions : 1. In concluding that four of the claimants were actually en- titled to back pay under the applict ble provisions of our original back-pay order, the Trial Examiner ruled, in accordance with his interpretation of the remand order, that he would consider only the possibility that the claimants might have been selected for nondiscriminatory release at sometime after the date (February 7, 1945) on which they were discharged. This approach neces- sarily compelled a finding that all claimants were entitled to some back pay for the period commencing on about February 7, 1945. We do not agree with the Trial Examiner. In our original Decision we expressly found that the "general reduction [of force on February 7, 1945] was itself not discrimi- natorily motivated," but that the discrimination "took the form of the selection" of the claimants for separation because of unlaw- ful considerations. Thus, in a remedial context, we in effect found that economic considerations required the Respondent to discharge six employees on February 7, explicitly reserving for future consideration the question of when the claimants, absent discriminatory motivation, would have been normally separated during the course of the general reduction in force.2 In these circumstances, we think it clear that both our Decision and the remand order of the court contemplated the possibility that some or all of the claimants might normally have been included in the February 7 reduction of force as well as in subsequent reductions. Our findings as to back pay shall be made accordingly. 2. We next turn to the question of when the claimants would have normally been released under the Respondent's reduction of force program. We agree with the Trial Examiner in prin- ciple that under the circumstances of this case, length of service by classification is a reasonable and practical criteria for making such determination. 2 The original Decision stated . "It is possible that one or more of the six employees might have been discharged in the general reduction of the work force , even if the Respond- ent's selection had been on a nondiscriminatory basis This possibility will be taken into consideration in determining the amount due to the employees in compliance with our order herein." 292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD To. the extent here material, the record shows that the re- duction of force program required terminations on dates, as follows : February 7, 1945, four first-class carpenters and two second- class carpenters. March 30, 1945, one second-class carpenter. May 4, 1945, one first-class carpenter. May 18, 1945, one first-class carpenter. August 17, 1945, two first-class carpenters -and one second-class carpenter. The following tables show the original employment dates of the six claimants and other similarly classified employees : Name First-Class Carpenters Employment Date *Belknap 12/12/44 Jarrell 11/ 2/44 Woods 11/ 1/44 Bond 10/18/44 *Craig 10/10/44 *D. H. Wood 11/27/43 *Watton 11/22/43 Worthington 5/22/42 Seconul-Class Carpenters Employment Name Date *J. P. Wood 11/ 1/44 *Berry 6/12/44 Owens 12/11/43 Di Lorenzo 6/ 2/43 *The claimants are designated with asterisks. On the basis of the foregoing, we find that Belknap, J. P. Wood, and Berry would have normally been discharged on February 7, 1945, and therefore are entitled to no back pay. We further find that Craig would have been normally discharged on May 4, 1945; D. H. Wood on May 18, 1945; and Watton on August 17, 1945, and that their back-pay periods would normally terminate on these respective dates. Notwithstanding, we shall, for reasons assigned by the Trial Examiner, award no back pay to Craig. In the absence of exceptions, we also adopt the Trial Examiner's finding that D. H. Wood's back-pay period terminate as of the date he quit his employment with the Merrill Company.' ' The record does not establish the exact date on which Wood severed his employment with the Merrill Company. However , we have administratively ascertained by a letter from that employer that Wood's employment there terminated on March 10 , 1945, and, in the absence of a showing of cause to the contrary , we shall rely on the information so obtained for the purpose of terminating his back -pay period as of March 10, 1945. PRIGG BOAT WORKS 293 3. In arriving at a formula for computing the gross earnings of the claimants, the Trial Examiner relied to some extent upon an absentee factor. Any question as to the projection of past absenteeism into the gross back period is not sufficiently impor- tant under the particular facts of this case to warrant considera- tion of a different method of computation. We shall therefore adopt the Trial Examiner's formula. However, in determining gross earnings under the formula, we shall compute hours in ex- cess of 40 a week at one and one-half times the prevailing rate, in accordance with the Fair Labor Standards Act. Net Back-Pay Calculation P G. Watton D. II. Wood A. Gross Back Pay4----------------------- $1802.59 $253 73 B. Interim Earnings----------------------- b 1052. 43 6 285 46 C. Expenses------------------------------ D. Net Interim Earnings------------------- 1052. 43 285. 46 E. Net Back Pay-------------------------- 750.16 $0 Recommendations Upon the basis of this Supplemental Decision and the entire record in the case, the National Labor Relations Board hereby respectfully recommends to the United States Court of Appeals for the Fifth Circuit : (a) That paragraph 2 (a) of the original Order herein (relat- ing to reinstatement) be denied enforcement. (b) That paragraph 2 (b) thereof be enforced only as to P. G. Watton. (c) That the Respondent be required to pay P. G. Watton the sum of $750.16 as back pay. MEMBERS REYNOLDS and STYLES took no part in the consideration of the above Amendment to Supplemental Decision and Recommenda- tion. 4 For method of computation, see appendices A and B, attached hereto. 5 Computed as follonns $199 65-1st quarter 1945 earnings. 643 01-2nd quarter 1945" earnings. 804 10-last half 1945 earnings. Claimant 's back-pay period ends on August 17, 1945 . Claimant earned $804 10 in the last half of 1945 , a period of 184 days , 48 of which are within the back-pay period. 484X$80410 =$209.77, I. e. interim earnings from July 1 , 1945, to August 17, 1945. Total Interim Earnings =$199.65 643 01 209 77 $1052 43 6 Representing $12 unreported income , $110 56 from the Merrill Company of Miami, Florida , and $16290 from the American Boat Building Corp., as set forth in the Inter- mediate Report. 986209-52-vol. 97--20 294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Appendix A Calculation of Gross Back Pay hours worked by weeks before discharge Period: 4-7-44 through 2-2-45 P C Watton D H Wood 5700 4400 5700 4750 5700 5700 5700 5700 5700 5700 5700 4600 5700 4100 4750 3800 5700 5700 5200 5200 5200 1900 2850 4750 2850 5200 5200 4250 5200 5200 5200 950 3675 1900 4750 1900 5700 4750 5200 5200 5700 5700 4750 5700 4750 4200 5200 2800 4750 4750 2850 950 5700 1400 5200 4250 950 4750 5700 3800 5200 5500 5200 1200 5200 5600 5200 2850 5200 4600 4250 1900 5200 5550 5150 5200 5200 4500 5200 2850 Total hours worked_____________________________ 184675 176950 Total No. of weeks worked__________________________ 37 43 Weekly average hours_______________________________ 5000 4125 THE GREAT ATLANTIC & PACIFIC TEA COMPANY Appendix B Calculation of Gross Back Pay 295 A. Gross back pay before 2/16/45 P 0 Watton D. H Wood 1. Daily Average Hours (Weekly Avg. Hours 6)------ 8.25 7.00 l.a. Date of.Discrimination-------------------------- 2/8/45 2/8/45 2. No. of Working Days; date of discrimination to 2/16/45-------------------------------------- 7 7 3. Hourly Rate of Pay Before 2/16/45--------------- 1.05 1.00 3.a. Total Hours Before 2/16/45---------------------- 57. 75 49. 00 4. Gross Back Pay Before 2/16/45------------------- $60.64 $49.00 5. Straight-time. Overtime Gross Back Pay before 2/16/45 A------------------------------ ------ $7.35 $.88 B. Gross back pay after 2/16/45 1. Weekly Average Hours (From Table A) ----------- 50. 00 41.25 2. Hourly Rate of Pay After 2/16/45----------------- 1. 18 1. 18 3. Date--End of Back Pay------------------------- 8/17/45 3/10/45 4. Number of Whole Weeks in Back-Pay Period After 2/16/45-------------------------------------- 26 3 5. Number of Odd Days in Back-Pay Period after 2/16/45-------------------------------------- 0 1 6. Total Hours in Whole Weeks--------------------- 1300. 00 123. 75 7. Total Hours in Odd Days------------------------ 0 7. 00 8. Grand Total Hours of back pay in period after 2/16/45- 1300. 00 130 75 9. Straight-time. Gross Back Pay After 2/16/45------ $1534. 00 $154. 29 10. 40 Hours Vacation Pay-------------------------- $47. 20 $47. 20 11. Overtime Gross Back Pay After 2/16/45----------- $153.40 $2 36 C. Grand total-Gross back pay n-------------------- $1802. 59 $253 73 A Computed by multiplying the number of hours over 40 for every week in the back period (including parts of week by one-half of the claimant's pay rates) B Addition of lines A4, A5, B9, B10, and Bll. THE GREAT ATLANTIC & PACIFIC TEA COMPANY and LOCAL 474, NATIONAL FOOD CHAIN STORE EMPLOYEES, CIO, PETITIONER and RETAIL FOOD CLERKS UNION, LOCAL 1500, AFL. Case No. 2-RC- 2119. December 7,1951 Decision and Order Setting Aside Election On September 27, 1950, pursuant to a stipulation for certification upon consent election, an election by secret ballot was conducted under the direction and supervision of the Regional Director for the Second Region among the employees in the appropriate unit.' Upon completion of the election, a tally of ballots was issued and duly 1 The stipulated unit was composed of all employees of the Employer ' s supermarkets and service stores serviced by the Bronx warehouse in the counties of New York , Bronx, Westchester, Putnam and Dutchess, including dairy department heads, produce depart- 97 NLRB No. 29.