Sterling Furniture Co.

602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD no inherent or circumstantial inconsistency was developed in any witnesses ' testimony. Under these circumstances, I cannot find a preponderance of evidence to support the alleged threats of shutdown and promises of benefit , and I accordingly find only that Golden conducted the conversations with the employees in the manner to which he testified. There is no substantial basis for finding that Golden interrogated the employees for the purpose of dissipating the Union's representation . And, as the record does not otherwise show any efforts by the Respondent to undermine the Union or that it withheld recognition of the Union for reasons other than its stated good-faith doubt concerning the Union's majority , I conclude that the Respondent has not thereby violated Section 8 (a) (5) of the Act. See The Walmac Company, 106 NLRB 1355 ; Beaver Machine & Tool Co., Inc., 97 NLRB 33 ; Roanoke Public Ware- house, 72 NLRB 1281 , 1282-1283 ; Chamberlain Corporation, 75 NLRB 1188, 1189-1190. This leaves only the matter of Golden 's interrogation. Although such conduct under Board doctrine has been a long-established violation of Section 8 (a) (1) of the Act (Syracuse Color Press, Inc., 103 NLRB 377; Standard-Coosa-Thatcher Com- pany, 85 NLRB 1358 ), the Board recently held in a factual context similar to the present case that such interrogation of all employees within a proposed bargaining unit is, absent other unfair labor practices, to be regarded as of "isolated nature." The Walmac Company, 106 NLRB 1355 . Without determining whether the inter- rogation in the Walmac case was an unfair labor practice, the Board dismissed the allegation upon finding that no useful purpose would be served by issuing a cease and desist order thereon . The Walmac holding is applicable here. Having found no other unfair labor practices, I shall recommend that the entire complaint be dismissed. [Recommendations omitted from publication.] STERLING FURNITURE COMPANY and CHARLES O. BARNES CARPET, LINOLEUM & SOFT TILE WORKERS, LOCAL No. 1235 and CHARLES O. BARNES. Cases Nos. 20-CA-350 and 2O-CB-109. July 30, 1954 Second Supplemental Decision and Order On April 27, 1951, the National Labor Relations Board issued a Decision and Order in the above-entitled cases,' finding, inter alia, that Sterling Furniture Company, herein called Sterling, and Carpet, Linoleum & Soft Tile Workers, Local No. 1235, herein called the Union, had violated Section 8 (a) (3) and 8 (b) (2) of the Act, respectively, by discharging Charles O. Barnes pursuant to an unlaw- ful union-security provision contained in a contract between the Union and the Retail Furniture Association of California, of which Sterling is a member. The Board therefore ordered that Sterling and the Union, jointly and severally, make Barnes whole for any loss of pay suffered as a result of the discrimination practiced against him. In due course, the Board petitioned the United States Court of Appeals for the Ninth Circuit for enforcement of its Order. On February 4, 1953, the court remanded the cases to the Board for fur- ther consideration of the remedial scope of its Order.2 The court, 194 NLRB 32. 2202 F. 2d 41 (C. A.9). 109 NLRB No. 98. STERLING FURNITURE COMPANY 603 however, affirmed the Board's finding that Barnes had been unlaw- fully discriminated against by Sterling and the Union. Pursuant to the remand, the Board, on June 18, 1953, issued a Supplemental Decision, Amended Order, and Recommendation conforming to the court's mandate.3 In doing so, the Board reaffirmed its previous de- termination that Sterling and the Union should make Barnes whole for any loss of pay suffered. On November 4, 1953, the Board issued an Order remanding this proceeding to the Regional Director and directing that a hearing be held for the purpose of adducing evidence with respect to the amount of back pay to which Barnes might be entitled. On February 10, 1954, Trial Examiner Maurice M. Miller issued his Supplemental Intermediate Report in which he found that Barnes was entitled to a specific amount of back pay, as set forth in the copy of the Supple- mental Intermediate Report and Recommendation attached hereto. Thereafter, Sterling and the Union filed exceptions to the Supple- mental Intermediate Report, and both filed supporting briefs. 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.4 The Board has considered the Sup- plemental Intermediate Report, the exceptions and briefs, and the en- tire record in these cases, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the following modifications. 1. The Trial Examiner found that, as Barnes was discriminatorily discharged on October 29, 1949, and as he refused an unconditional offer of reinstatement with Sterling on November 15, 1950, the back- pay period for which Barnes should be made whole constituted the period between the dates of these occurrences. He further found that, absent any discrimination against Barnes, Barnes would have been laid off for economic reasons on December 31, 1949; that he would have been rehired on February 16, 1950, when jobs became available, had the Union not refused to admit him as a journeyman member or to hold him out, on a nondiscriminatory basis, as available for work; and, that Barnes would have continued in Sterling's employ until the date of the offer of reinstatement. In their exceptions, Sterling and the Union contend that their back-pay liability should be limited to 8105 NLRB 653. * Sterling and the Union excepted to the Trial Examiner's ruling precluding testimony from Barnes as to whether he would have accepted reinstatement in his position with Sterling if, at any time after his unlawful discharge , and prior to November 1'5, 1950, the end of the back-pay period , such an offer had been made by Sterling. As there is no evi- dence that Barnes, prior to November 15, ever communicated to Sterling or the Union any disinclination to accept reinstatement, or that Sterling and the Union were otherwise led to believe that such an offer would have been declined and accordingly acted on such belief to their detriment , we find no merit in the exceptions . We therefore adopt the Trial Ex- aminer's ruling in this connection. See Fox Midwest Amusement Corporation, 98 NLRB 699; Oklahoma Transportation Company, 50 NLRB 907, enfd. 140 F. 2d 509 (C. A. 5). 604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the period from October 29 to December 31, 1949,' for the reason that Barnes would not have been rehired after December 31, and be- cause he exerted no reasonable effort to obtain employment between that date and the date of the offer of reinstatement. As set forth more fully in the Intermediate Report, Sterling had in its employ on October 29, 1949, 13 carpetlayers. Barnes' discharge on that date reduced the complement to 12. During November and December 1949, Sterling hired 2 additional carpetlayers, bringing the total to 14. On December 31, 1949, 5 carpetlayers were laid off for economic reasons, leaving a force of 9 employees. All parties agree that, had Barnes been employed on December 31, he would have been included in the group whose employment was then terminated. The parties further concede that, between December 31, 1949, and Febru- ary 16, 1950, no jobs were available which Barnes could have filled. On February 16, Sterling commenced to augment its staff, and on that date had in its employ "thirteen or more" journeymen carpet- layers, a number equal to or in excess of that which obtained on the date of Barnes' discharge. The Trial Examiner concluded that, as jobs were then available, Barnes would have been rehired by Sterling on February 16 if the Union had not refused to admit him to member- ship or to hold him out, on a nondiscriminatory basis, as available for work. Sterling and the Union do not dispute that positions were available on February 16. However, they contend that because Ster- ling had no definitive policy for recalling former employees, the Trial Examiner erred in finding that Barnes would have been rehired on that date. They further argue that, even if Barnes had been reem- ployed on February 16, his employment would not have survived April 6, 1950, the date on which the Respondent effected another re- duction in force. In support of their contention that Barnes would not have been re- hired on February 16, because of the absence of any policy for recalling carpetlayers, Sterling and the Union rely upon the credited testimony of Foreman Rossi. Rossi testified that he made it a regular practice, in hiring carpetlayers, to telephone the Union's office for the names of union men who were available for work, that he made his selection from the names proffered to him, and that this practice was followed in hiring employees on February 16. Rossi further testified that he makes no independent attempt to seek out or hire any former employees. As the Board found in its Decision and Order of April 27, 1951, Sterling unlawfully discharged Barnes because he had not obtained a work permit from the Union as required by an agreement between 5 In their briefs, Sterling, and apparently the Union, concede their back-pay liability to Barnes for the period between October 29 and December 31, 1949, in the amount recom- mended by the Trial Examiner. STERLING FURNITURE COMPANY 605. Sterling and the Union making union membership or the possession of a work permit a condition of employment. As a consequence of its unlawful conduct, the Act imposed upon Sterling the duty to offer re- instatement to Barnes to his former position or one substantially equivalent thereto.6 That duty, which arose on October 29, 1949, the date of Barnes' discharge, existed on February 16, 1950, the date when jobs became available after the 6-week layoff period. In our opinion, Sterling's failure to offer Barnes reinstatement on February 16 cannot be defended on the ground that it maintained no policy for recalling laid-off employees. Rather, Foreman Rossi's testimony affirmatively establishes that Sterling did maintain a policy of procuring em- ployees when jobs became available which effectively foreclosed any possibility that Barnes would have been referred to Sterling for em- ployment. This policy, from which Sterling never deviated and which was set forth in the contract between Sterling and the Union, con- sisted of Rossi's telephoning the Union and requesting the names of Union men who were in search of employment in the trade. Rossi would then hire only from among union members or persons who had obtained union work permits. This unlawful arrangement between Sterling and the Union, which formed the basis for the Board's original finding that Barnes was discriminatorily discharged by Sterling, together with the fact that the Union persistently refused to admit Barnes to membership after his discharge, deprived Barnes, a nonunion carpetlayer, of the Union's referral facilities on February 16 when he was available for work and when a union referral was the only means by which Barnes could have obtained employment with Sterling. Under the circumstances, we find, in agreement with the Trial Examiner, that Barnes would have been rehired on February 16, 1950, when jobs were available. We shall therefore overrule the ex- ceptions of Sterling and the Union in this connection. In his Intermediate Report, the Trial Examiner found that, had Barnes been reemployed on February 16, he would have continued in Sterling's employ until November 15, 1950, the date of Sterling's un- conditional offer of reinstatement. Sterling and the Union contend that Barnes would have been laid off on April 6, 1950, because of a reduction in force which occurred on that date. The parties stipulated that between February 16 and April 6, Sterling employed "thirteen or more" carpetlayers. They further agreed that between April 6 and November 15, Sterling had 12 carpet- layers in its employ. Sterling and the Union argue that, because Barnes was 13th in point of seniority on October 29, 1949, the date of his discharge, he would have possessed the same seniority status had he been rehired on February 16. Accordingly, they contend that BE g, Underioood Machinery Company, 95 NLRB 1386, 1392. 606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Barnes would have been laid off on April 6 when the working comple- ment was reduced to 12 carpetlayers. We do not agree. When Sterling effected a reduction in force on December 31, 1949, 5 employees were laid off, leaving a working force of 9. During Jan- uary 1950, Sterling rehired 1 of the 5 for limited duty, bringing the staff to 10 employees. If, on February 16, Sterling had fulfilled its statutory duty of offering Barnes reemployment, it appears that Barnes would have been the 11th employee in point of seniority, as the Respondent failed to produce any evidence that any former employees with greater seniority were hired on that date, or that Barnes' seniority status would have been lower than 11th.? Accordingly, when employ- ment reached "thirteen or more" on February 16, and then receded to 12 on April 6, Barnes, absent any evidence to the contrary, would have been protected in his job. In view of the foregoing, we find, in agree- ment with the Trial Examiner, that if Barnes had been reinstated on February 16 he would have continued in Sterling's employ until the date of the offer of reinstatement on November 15, 1950. In further support of their contention that their back-pay liability should be limited to the period from October 29 to December 31, 1949, Sterling and the Union contend that Barnes is not entitled to back pay after December 31 because his efforts to obtain other employment were less than diligent. The Trial Examiner found, and the parties do not dispute, that Barnes registered with the California State Employment Service on November 1, 1949, for employment as a. carpetlayer, service station attendant, and truckdriver. Barnes was not referred to any jobs as a result thereof. On the same day, Barnes visited the Union's office and appeared before the Union's executive board in an unsuccessful at- tempt to obtain union membership. During November 1949, in addi- tion to reporting to the Employment Service for work, Barnes inde- pendently sought employment with a local carpet company without success. On December 6, 1949, Barnes again appeared at the union office to seek membership. In consequence of this visit, the Union referred Barnes to Jack Lerner's for a "tryout" as a carpetlayer on December 12, 1949. Barnes worked for Lerner for approximately 11 days. Thereafter, the Union referred him to the Duncan Floor Com- pany but Barnes never reported for work, apparently because of an illness which extended from December 28 through December 30, 1949. On or about January 9, 1950, Barnes was again referred by the Union to the L. D. Reeder Company for employment as an asphalt tile layer. This employment terminated on January 15. On January 18, the Union informed Barnes that he had riot been accepted as a union member, and no further union referrals were made. 7 See Underwood Machanery Company, 95 NLRB 1386, 1395 STERLING FURNITURE COMPANY 607 The record reveals, and the Trial Examiner further found, that Barnes again reported to the Employment Service office on February 8. Although Barnes continued to report regularly until May 23, he was never referred to a job during this period by that agency. In the meantime, however, Barnes made an independent search for em- ployment. The record shows that he applied to at least six firms for work as a carpetlayer without obtaining a job. At one of the firms, Barnes was told that only union members were being hired. In addi- tion, Barnes also applied for work at several specified service stations and drugstores, again without success. On June 1, Barnes succeeded in obtaining employment as a service station attendant at Kirk John- son's where he worked until August 31, at which time Johnson went out of business. On September 29, Barnes independently obtained employment at the San Francisco Rug Company on a piecework basis, continuing in that company's part-time employ until the offer of reinstatement by Sterling on November 15,1950. The Board has frequently held that where a claimant for back pay has registered for employment with a State agency which has facilities equivalent to the United States Employment Service, that fact is regarded as conclusive evidence that the claimant made a reasonable search for employment.8 In the instant case, Barnes registered with the California State Employment Service immediately after his un- lawful discharge and continued to report to that agency on 13 occa- sions until he obtained employment on June 1, 1950. These facts, in themselves, conclusively establish the reasonableness of Barnes' quest for suitable work. However, Barnes did not rest in his search for employment by such registration alone. The record reveals that Barnes twice visited the union office to obtain union membership and to avail himself of the Union's referral facilities. When this intro- duction to the labor market was closed to him, Barnes independently sought employment with at least six floor covering firms in San Fran- cisco, as well as several other business establishments. There is no evidence that, in his search for work, Barnes had ever been offered and rejected any position for which he had applied. In view of the foregoing, and the record as a whole, we find, in agreement with the Trial Examiner, that Barnes exerted reasonable efforts to obtain desirable new employment during the period of the discrimination against him. 2. In computing Barnes' interim earnings during the gross back- pay period, the Trial Examiner found that Barnes had earned $295 as wages for his employment with Kirk Johnson. He therefore uti- lized that sum in determining the net back pay due Barnes. In their exceptions, Sterling and the Union contend that, pursuant to the 8 E g. Harvest Queen Mill and Elevator Company, 90 NLRB 320, 321; see Seamprufe, Incorporated, 103 NLRB 763, 765. 608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employment agreement between Barnes and Johnson, Barnes should have received a sum in excess of $295 for his work. They therefore argue that, in determining the net back pay, the Trial Examiner erred in deducting the lesser sum which Barnes actually received rather than the sum for which he had agreed to work. We find merit in the exceptions. The record discloses that Barnes obtained employment on or about. June 1, 1950, as a service station attendant at a Richfield station oper- ated by Kirk Johnson, a personal friend. Pursuant to the employ- ment agreement, Barnes was offered and accepted a weekly wage of .,$50. Due to adverse business conditions, Barnes testified that he received only $15 the first week, but was assured that when business conditions improved he would receive the balance of his unpaid salary. Barnes never at any time received the $50 per week wage which he had been promised. On August 31, 1950, Johnson went out of busi- ness. During his 13 weeks of employment, Barnes should apparently have received $650. At the hearing, Barnes stated that he never asked Johnson for the balance of the wages due him and otherwise made no attempt to recoup this amount. He further testified that his disinclination to do so was prompted by his feelings of friendship for Johnson and because "Johnson was out of business." Viewing the entire record in this connection, we do not deem it appropriate, in determining the net back pay to which Barnes is entitled, to deduct from the gross back pay only that portion of Barnes' wages which he actually received from his employment with Johnson, particularly in light of the evidence that Barnes never re- quested that Johnson pay Barnes the balance of his earned wages, and in the absence of evidence that such a request would have been futile. We shall accordingly modify the amount of the interim earnings which the Trial Examiner found that Barnes had received during the gross back-pay period by substituting the sum of $650 as interim earnings received from Kirk Johnson in lieu of the sum of $295 which the Trial Examiner found to have been earned by Barnes from that em- ployer. We therefore compute Barnes' net back pay as follows: Gross back pay-------------------------------------------- $4,582.40 Interim earnings Jack Lerner___________________________________ $172.80 Kirk Johnson---------------------------------- 650.00 San Francisco Rug Co-------------------------- 65.90 Total interim earnings--------------------------------- 888.70 Net back pay---------------------------------------------- 3,693.70 [The Board ordered the Respondents to jointly and severally pay Charles O. Barnes, who was found to have been discriminated against by the Respondents by a Board Decision and Order issued April 27, STERLING FURNITURE COMPANY 609 1951, as enforced by a decree of the Court of Appeals for the Ninth Circuit entered on February 4, 1953, net back pay in the amount of $3,693.70.] MEMBERS PETERSON and BEESON took no part in the consideration of the above second Supplemental Decision and Order. Supplemental Intermediate Report STATEMENT OF THE CASE On April 27, 1951, the National Labor Relations Board issued a Decision and Order in the above cases. See 94 NLRB 32. The Board found, inter alia, that the Sterling Furniture Company, herein designated as the Respondent Company, and Carpet, Linoleum &• Soft Tile Workers, Local No. 1235, herein called the Respondent Union, had engaged in and were engaging in certain unfair labor prac- tices affecting commerce. Specifically, it found that the Company had lent support to the Union in connection with the efforts of that organization to recruit and retain employee members, in violation of Section 8 (a) (1) and (2) of the Act, by the maintenance of a contract with an illegal union-security provision, negotiated and executed by the Respondent Union and the Retail Furniture Association of Cali- fornia, to which the Company belonged. The Board also found that the Company had violated Section 8 (a) (3) of the statute by its discharge of Charles O. Barnes, under the unlawful union-security provision. Finally, it found that the Union had violated Section 8 (b) (2) of the Act by the maintenance and enforcement of its illegal contract, insofar as the Company was involved. The Board, inter alia, ordered the Respondents, jointly and severally, to make Barnes whole for any loss of pay suffered as a result of the discrimination practiced against him. In due course, a Board petition for the enforcement of its order against the Respondent Company and the Union was filed. On February 4, 1953, however, the United States Court of Appeals for the Ninth Circuit remanded the cases to the Board for further consideration as to the scope of its remedial orders. Sterling Furni- ture Company, et al., 202 F. 2d 41. With respect to the Board's conclusion in regard to the discriminatory treatment of Barnes, the court observed that: It is apparent that this treatment of Barnes, while in conformity with the express terms of the contract between the Union and the Association, was in violation of the terms of the Act relating to union-security agreements. There is no dit- pute here that such was the case and that the provision was invalid. On June 18, 1953, the Board issued a Supplemental Decision, Amended Order, and Recommendation pursuant to the court's remand: Insofar as Barnes was con- cerned, however, the Board reaffirmed its previous order, which directed the Respond- ent Company to offer him immediate and full reinstatement to his former position, or one substantially equivalent, without prejudice to his seniority or other rights and privileges, and went on to order the Respondents, jointly and severally, to make him whole for any loss of pay suffered because of the discrimination practiced against him. See 105 NLRB 653, for a report and summary of the Board's decision. Pursuant to due notice, thereafter, a further hearing was held at San Francisco, California, on November 25, 1953, and January 4, 1954, before me, to determine the amount of back pay due Barnes, the discriminatee. The General Counsel and the Respondents were represented by counsel. All participated in the hearing and were afforded a full opportunity to be heard, to examine and cross-examine witnesses, and to introduce relevant evidence. At the close of the testimony, each party was afforded an opportunity to present oral argument; their arguments are reported in the stenographic transcript. Thereafter, on behalf of each party, counsel waived their right to file briefs. Upon the entire record in the case, and my observation of the witnesses, I make the following: FINDINGS OF FACT The employment of Barnes, as found, was terminated on October 29, 1949, by the Respondent Company. He performed no services for the firm on that date, and has performed no services for it since. His charges with respect to the unfair labor practices of the Respondent Company and the Union were filed on March 29, 1950. Thereafter, in due course-as the original record shows-a consolidated complaint 610 DECISIONS OF NATIONAL LABOR RELATIONS BOARP was issued and a hearing held. On November 7, 1950, the Intermediate Report of the Trial Examiner was issued. Shortly thereafter, on November 13, 1950, the Respondent Union advised the Company by letter that it had no objection to the reinstatement of the discriminatee. Upon its receipt of this advice, the Company sent a letter to Barnes with an offer of reinstatement. He received it on November 15, 1950, communicated with the Company at once, and refused the offer. On these facts, the period from October 29, 1949, to November 15, 1950, both dates inclusive, would appear to constitute the "back pay period" for which Barnes must be made whole in order to effectuate the objectives of the statute. I so find. The parties have stipulated with respect to the daily wage rates received by carpet- layers in the employ of the Respondent Company during the back-pay period; between October 29, 1949, and March 31, 1950, they received $19.20 per day. As of April 1, 1950, however, the daily wage rate was increased to $20 per day. The record also contains a stipulation that the regular workweek during the period in question was limited to the 5-day period from Monday through Friday, and that Barnes, if con- tinuously in the Company's employ, would not have been required to work on holi- days falling within the regular workweek and would not have received any holiday pay. (The parties have also stipulated that seven holidays, recognized as such under the terms of their trade agreement, fell within the back-pay period with which this case is concerned; these included Thanksgiving Day and Christmas in 1949, and the following holidays in 1950: New Year's Day and Washington's Birthday in the first quarter; Decoration Day in the second quarter; and the Fourth of July and Labor Day in the third quarter. No fourth quarter holidays in 1950 fell before November 15, when the back-pay period ended.) Barnes testified, and the General Counsel admitted for the record, that he had been ill and unable to work on 3 days within the back-pay period, December 28 through 30, 1949, inclusive. There is no other evidence in the record to indicate that he was unable to work, or unavailable for employment, at any other time during the period with which this case is concerned. The record shows, and I find, that Barnes registered with the California State Employment Service, affiliated with the United States Employment Service, on November 1, 1949, immediately after his discharge. (In so doing, of course, Barnes established, conclusively, the fact that he was in search of employment. Harvest Queen Mill and Elevator Company, 90 NLRB 320, 321, and the cases therein cited.) At the same time, he filed a claim for unemployment compensation. Thereafter, as required by law, he returned to the local office of the California State Employ- ment Service, at which he had registered, on numerous occasions to continue his unemployment compensation claims, and to renew his registration for work. His testimony, which I credit in this connection, establishes that he never received an Employment Service job referral on these occasions, or at any other time. Insofar as the record shows, his last report at the Employment Service office appears to have occurred on or about May 23, 1950. (His unemployment compensation claims, however, appear to have terminated after his visit to the Employment Service office on the 10th of the month in question.) Concurrently, I find, Barnes was engaged in an effort to win journeyman status as a union member. The transcript of the original hearing-partially adopted, as a part of the present record, by reference-reveals that he had revisited the Union's office or "hall" on November 1, 1949, immediately after the termination of his employment by the Respondent Company, and that he had appeared before its executive board in an effort to win membership in the organization. His effort was apparently unsuccessful. The record establishes that he returned on December 6 with additional references as to his qualifications; that the references were presented to the Union's executive board; and that Watson A. Garoni, one of the Union's busi- ness representatives, finally told him that he would receive a "tryout" as a carpetlayer. On or about December 12, 1949, accordingly, Barnes was sent to Jack Lerner's in San Francisco with a union referral. He was employed as a carpetlayer for approxi- mately 11 days within a 2-week period and received $172.80 in gross pay. There- after, he appears to have reported back to Garoni; his testimony indicates that he received a referral to the Duncan Floor Company in San Mateo, California, but never reported. (This referral appears to have coincided with the period of his illness, previously noted.) On or about January 9, 1950, Barnes was referred by Garoni, to the L. D. Reeder Company of San Francisco; he worked through January 15, laying asphalt tile, and received $99.60 in gross pay. The testimony of the discriminatee at the original hearing, which has not been challenged in this case, establishes that Business Repre- STERLING FURNITURE COMPANY 611 sentative Garoni then requested him, by telephone, to get in touch with the Reeder Company's foreman. He appears to have done so, and was told that the firm did not need him any longer, and that he could "pick up" his check at the union hall. He did. And Business Representative Garoni advised him at the time, I find, that the executive board of the Union would decide, shortly, whether to accept him as a journeyman member. On or about January 18, 1950, therefore, Barnes telephoned Business Representative Garoni and was informed that while his work was neat, and he knew his tools, he was considered to be too slow and had not been accepted as a union member. The current testimony of Barnes, which I also credit, establishes that he attempted, on a number of occasions in February, March, April, and May, to secure employ- ment as a carpet and linoleum layer. The record shows, and I find, that he applied for work in the trade with at least six firms. His efforts were unsuccessful. During this period also, he appears to have applied at a number of gasoline service stations in search of work as an attendant, but received no offers of employment. At various unspecified times within the back-pay period he also applied, I find, for counter or clerical work at a cafeteria and two large drugstore firms. None of these applications, however, brought results. On or about June 1, 1950, Barnes secured work as a service station attendant at a Richfield station operated by one Kirk Johnson, a personal friend. His testimony establishes that he was promised a salary of $50 a week. At the end of his first week, however, Johnson appears to have advised him that the station was not very productive, and that he (Johnson) would be unable to pay the promised amount; he requested Barnes, I find, to accept $15 in cash, and to wait for the balance of his salary to be paid thereafter, when the earnings of the station improved. Barnes acquiesced in this arrangement. His testimony establishes that he never received $50 a week at any time, and that Johnson ultimatejy had to close or relinquish the sta- tion. (The employment of Barnes as a service station attendant, it may be noted, began 1 week after his last reported visit to the Employment Service office on May 23, 1950, as previously noted.) The employment of Barnes as a service station attendant lasted to approximately the end of August. His testimony indicates that he grossed approximately $295 for the 3 months of his employment. (Johnson, in a letter to a Board field examiner, reported that Barnes had earned $287 in his employ. The letter was rejected as an exhibit, however, since its allegations had not been verified, and since there had been no indication that Johnson would be unavailable to testify in person. In cross- examination Barnes admitted, readily, that he had not been supposed to receive only $95 a month for his work; his testimony establishes, however, that his employment ended when Johnson reached the end of his (Johnson' s) financial resources-and that he (Barnes) had made no effort to utilize legal process to collect the balance of his wages due because of his knowledge with respect to Johnson's insolvency, and because of the fact that Johnson had employed him as an act of friendship. I credit the testimony of Barnes in this connection.) On or about September 29, Barnes, by his own efforts, secured part-time, piece- rate work as a carpetlayer with the San Francisco Rug Company. His testimony, which has not been disputed, indicates that he was hired only when work was avail- able, and that between September 29 and November 15, 1950, he received approxi- mately $65 in gross pay. The General Counsel's Case On these facts, the General Counsel would seem to have established, prima facie, that Barnes was engaged throughout the back-pay period in a reasonable search for employment, and that the amount of back pay required to make him whole ought to include the amounts he could have earned, absent any discrimination, in the employ of the Respondent Company throughout the entire period in question, with appro- priate deductions for holiday not worked, his period of illness, and the amount of his interim earnings. (Insofar as the record shows, Barnes does not appear to have been required during the back-pay period to expend any sums in connection with his search for work; there would appear to be no reason or necessity, therefore, to deduct amounts so expended from his gross interim earnings, to determine the net amounts deductible from his gross back pay. In the course of the oral argument, I raised a question as, to whether the discriminatee's accord with Kirk Johnson in regard to his salary claim involved a "wilful loss" of earnings. Upon the entire record, however, I am satisfied that it should not be so construed and it has not been so treated.) 334811-55-vol. 109-40 612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On the General Counsel's theory of the case, the amount of back pay required to make Barnes whole could , apparently, be computed as follows: 1949-4th quarter (45 days) Daily rate: $19.20 x 45____________________________ $864.00 Deduct 2 holidays_______________________ $38.40 3 days of illness___ _______________ 57.60 Total deduction_________________________ 96.00 Total back pay-4th quarter_______________________________ $768.00 1950-1st quarter (65 days) Daily rate: $19.20 x 65___________________________ $1,248.00 Deduct: 2 holidays__________________________ 38.40 Total back pay-1st quarter______________________________ 1950-2d quarter (65 days) Daily rate: $20.00 x 65__________________________ $1,300.00 Deduct: 1 holiday___________________________ 20. 00 1,209.60 Total back pay-2d quarter_______________________________ 1,280.00 1950-3d quarter (65 days) Daily rate: $20.00 x 65__________________________ $1,300.00 Deduct: 2 holidays___________________________ 40.00 Total back pay-3d quarter________________________________ 1,260.00 1950-4th quarter (33 days) Daily rate: $20.00 x 33_____________________________________ 660. 00 Gross back pay------------------------------------------------ 5,177.60 Interim earnings Jack Lerner_______________________________________ $172.80 L. D. Reeder Co---------------------------------- 99.60 Kirk Johnson_____________________________________ 295.00 San Francisco Rug Co----------------------------- 65.90 Total interim earnings____________________________________ 633.30 Net back pay------------------------------------------------- 4,544.30 The Board is requested, by the General Counsel's representative, to find that the last sum shown represents the amount of back pay required to make Barnes whole for the discrimination to which he was subjected. The Contentions of the Respondent Union and the Company The Respondent Union has contended, throughout, that work for qualified carpet- layers was readily available in the Bay Area during the back-pay period, and that the failure of Barnes to find such work prior to September 1950 would warrant an inference that he was something less than diligent with respect to his search for employment in the trade. Cf. N. L. R. B. v. Pugh and Barr, 207 F. 2d 409 (C. A. 4). The Respondent Union has also questioned the fact that Barnes was unable, ap- parently, to secure relatively "unskilled" employment as a drugstore clerk or cafeteria counterman. It made no effort, however, to establish that the discriminatee had ever received a specific offer of such work, which he had rejected, or even that his efforts to locate such work were halfhearted and calculated to discourage offers. The fact that employee turnover in such occupations may be rapid, and that such employ- ment opportunities, generally, may be frequent or plentiful, would not, of course, establish that Barnes could have secured such employment by a more persistent effort; many factors influence hiring, and none of them have been explored in this connection in the present record. In any event, it should be noted that Barnes, under established Board precedents, could not be said to have incurred "wilful losses" in connection with his search for work unless the record showed that he refused a specific offer of desirable new employment. No evidence of a specific offer refused has been proffered for the record. And in the light of his employment history, I do not believe it would be just or proper to say that work as a counterman, drugstore clerk, or service station attendant involved desirable new employment for Barnes, STERLING FURNITURE COMPANY 613 within the meaning of those terms as defined in the relevant cases . Harvest Queen Mill and Elevator Co., supra, p. 335. The record shows that Barnes, after registering for work as a carpetlayer on No- vember 1, 1949, at the Employment Service office, did not reregister for employment until February 8, 1950. During this period, however, it is undisputed that he made a genuine effort to qualify for union membership, in order to make himself avail- able for a job referral by that organization . And in December 1949 and January 1950, he did in fact secure "tryout" assignments. Barnes testified, without contra- diction, that he visited the Employment Service office several times during this period in search of work, but did not reregister as unemployed. I would not consider his failure to reregister at the Employment Service office during the period in question evidence of a lack of diligence, under the circumstances. Upon the record considered as a whole, then, I find no merit in the contention that Barnes did not make a reasonable effort to find work in his chosen trade. His registration with the Employment Service and his continued visits to its office in search of a job have been conceded. The testimony he offered with respect to his own unsuccessful efforts to find work as a "mechanic," within the field of the Union's jurisdiction, has not been controverted. And the record clearly shows that his efforts to qualify for a job referral through the Union were cut off by the organization itself-apparently pursuant to the decision of its executive board that he would not be acceptable as a member because his work, allegedly, failed to meet union stand- ards. (Barnes testified without contradiction, and I find, that he was never told by any Union official that carpetlayers were in "short supply" at the time.) Under the circumstances-and particularly in view of the undisputed evidence in the record that firms under contract with the Union then utilized it, exclusively, as a source of labor supply-the organization, in my opinion, cannot argue logically or in good conscience that Barnes could have found employment in the trade if he had made a greater effort. As a matter of law, and in fact, Barnes would appear to have more than fulfilled his obligation to mitigate the losses suffered by virtue of the discrimination practiced against him, under the statute as authoritatively inter- preted to date. I so find. There is implicit in the case of the Respondent Company, however, a more sig- nificant issue. The record, largely developed by way of stipulation, reveals that Barnes-when hired on October 13, 1949-became the 13th carpetlayer "mechanic" in the Respondent Company's employ. Throughout his period of service with the firm, he remained its junior employee in terms of seniority. Under the circumstances, it is said, serious question arises as to whether he would have remainded in the Respondent Company's employ throughout the back-pay period previously noted. His dismissal, at the "request" of the Respondent Union, reduced the Company's staff of carpetlayers to 12. In November 1949, on a date not set forth in the record, the Company hired another journeyman carpetlayer, one Cornfoot, to perform serv- ices comparable to those Barnes had previously undertaken. And in December 1950, another carpetlayer, one Nixon, was employed. The Respondent Company's foreman, Anthony O. Rossi, testified without contra- diction, however, that the firm's need for carpetlayers fell off at the end of the year, in 1949, and during the period between Christmas and New Year's Day in particular. His testimony establishes that a reduction in force appeared to be required; that he conferred generally with his immediate superior, Superintendent Fitzgerald, in order to reach a determination as to the number to be laid off; that a decision was reached to lay off 5 men; and that 5 journeymen carpetlayers were in fact laid off by the Respondent as of the close of business on December 31, 1949. Three of those laid off were employees with no seniority status: Nixon, Cornfoot, and one Devlin-an employee with approximately 61/2 months greater seniority than that which Barnes would have had if he had remained in the Respondent Company's employ. The other employees laid off, named Borell and Gheen, appear to have been selected- despite their considerable seniority-on the basis of Foreman Rossi's judgment that their work had not been up to standard. Rossi testified that he has been foreman of the Respondent Company's carpet and linoleum workroom for seven years, with full authority in regard to employment and discharge; that it is his practice, in selecting employees for layoff, to consider seniority exclusively as a determinative factor in the case of all employees with less than one year of service; and that relative ability plays no part in the determination of those to be laid off until workers with "pretty close to a year" or more of service for the Respondent Company are involved. With respect to the 1949 layoff which concerns us here, Rossi testified, expressly, that Nixon, Cornfoot, and Devlin were selected for layoff solely because of their lack of seniority, and that he refrained from the selection of the employee next in line on this basis, one Goodro, because of his determination that Goodro's work justified his retention, in preference to 614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Borell and Gheen, despite their lengthier service. Over a strenuous objection, which I overruled, Foreman Rossi testified that if Barnes had been a member of the crew on December 31, 1949, he would have been named as one of the five employees tagged for layoff, solely on the basis of the seniority factor. Despite his status as a Company superivsor and Union member, Rossi's exposition of his rationale in selecting employees for layoff would appear to be reasonable, I have found in it no obvious sign of contrivance or an artificial standard of judgment. Although his testimony necessarily reflects "hindsight" and certainly could be described as self- serving, I believe that it was honestly given. There is no indication in the record that Barnes' work as a carpetlayer was outstanding. It would seem to be clear therefore, and I find, that Barnes, if he had remained in the Respondent Company's employ until December 31, 1949, would have been laid off for lack of work, as a result of his low seniority, on that date. During the week which ended on January 19, 1950, Foreman Rossi of the Respond- ent Company reemployed Borell. Upon the entire record-which includes, in this connection, the stipulation previously noted and Foreman Rossi's testimony-I am satisfied that he was reemployed to do "odd jobs" at a reduced rate of pay with the Union's acquiescence, because of his extensive seniority and advanced age. Essen- tially, the Respondent Company's decision appears to have been motivated by good will; there is no indication whatever that the amount of available work had increased sufficiently to warrant the employment of a journeyman carpetlayer. In this posture of the record, of course, Borell's reemployment would not appear to raise any issue with respect to the possibility of concurrent reemployment for Barnes, the dis- criminatee. Between January 1 and February 16, 1950, the Respondent Company employed less than 13 "mechanics" in the trade. Between the latter date and April 6, 1950, however, the Company employed "13 or more" journeymen carpetlayers. (Analysis of the record, then, would indicate that the firm had 13 carpetlayers in its employ, counting Barnes, on the day of his discharge; that his termination reduced the staff to 12; that it grow to 14 by New Year's Eve; that it was then reduced to 9 and restored to 10 as a result of the layoffs and Borell's reemployment. At least three "new hires" or more, therefore, would have been required on February 16 to raise employment to the level indicated. There is nothing in the record, however, to indicate the identity of any carpetlayers hired on or after February 16, 1950, to augment the Respondent Company's staff-although it was stipulated that none of the employees laid off on New Year's Eve, 1949, were ever rehired by the Company, except Borell as noted.) Rossi's testimony indicates, and I find, that he made no particular effort to find or rehire any carpetlayers previously in the Respondent Com- pany's employ. He appears to have followed his regular practice in connection with any staff expansion; specifically, he appears to have telephoned the union office in order to report his need for carpetlayers and request a list of the "available" men from which to make a selection. Rossi could not recall a single occasion, prior to 1950, when the name of a former employee of the Respondent Company had been reported to him as that of a union member available for work. He was unable, therefore, to report any policy on the part of the Respondent Company with respect to the rehiring of carpetlayers pre- viously in its employ. (The foreman did testify that, if given the names of union members familiar to him, he would choose the "best mechanic" for employment in fairness to his employer; he could not, however, recall any occasion on which he had been required to exercise such a choice.) The name of Barnes does not appear to have been suggested to Rossi, at any time on or after February 16, as that of an individual available for referral. Neither were the names of any other recently laid-off employees. Barnes, however, was not then employed elsewhere. And the fact that the other men laid off by the Company, all of them union members, may have secured other employment in the trade through the good offices of the Union certainly cannot, in my opinion, justify any conclusion that Barnes would have been unavailable. Insofar as the record shows, the dis- criminatee would have been available for a union referral, if that organization had accepted him as a journeyman member, or if its referral facilities had been made available to him, nondiscriminatorily, as an unemployed nonunion carpetlayer. I so find. And if his name had, in fact, been suggested to Rossi, there is nothing to indicate that Rossi would have failed or refused to rehire him. The foreman admitted that he had seen nothing during Barnes' brief tenure as a carpetlayer, to suggest that he was incompetent or otherwise unworthy of rehire. In the absence of any indication of a company policy calculated to foreclose the reemployment of workers previously laid off, it certainly cannot be said that Barnes would have been rejected by Rossi, out of hand. Experience suggests, rather, that- in the absence of an unfavorable record-Barnes might well have received favorable STERLING FURNITURE COMPANY 615 consideration. In cases like this, the employer involved must shoulder the burden of showing circumstances in mitigation of its back pay obligation. Seamprufe Inc., 103 NLRB 763, modified in respects not now material in 106 NLRB 1143. The General Counsel, therefore, need not establish by a preponderance of the evidence that Barnes would have been rehired; the Respondent, instead, must show that he would not have been reemployed. And when a Respondent's unlawful discrimination has made it impossible to ascertain what would actually have happened in a given situation, the uncertainty must be resolved against the persons responsible for the dis- crimination. Spitzer Motor Sales, Inc., 102 NLRB 437, footnote 52. The indicated principle or legal proposition, in my opinion, ought to be considered determinative here. I find that Barnes-absent any refusal on the part of the Respondent Union to admit him as a journeyman member, or to hold him out, nondiscriminatorily, as available for work in the trade-would have been referred to Foreman Rossi for employment on February 16, 1950. And in the absence of any evidence whatsoever with respect to the existence of a valid reason for his rejection, I find that he would have been reemployed by the Respondent Company on that date. The parties stipulated that the Respondent Company-between April 6 and Novem- ber 14, 1950-employed 12 journeymen carpetlayers. There is no evidence in the record, however, to suggest the number of persons laid off on April 6, 1950, in order to reduce the Company's staff to the indicated level. (The stipulation, as noted, was to the effect that the Respondent Company employed "13 or more" journeymen carpetlayers between February 16 and April 6, 1950; it is, therefore, entirely conceivable that reduction of the staff to 12 carpetlayers on the specified April date may have involved the simultaneous layoff of more than one employee.) Nothing in the record suggests either, that Barnes would have been the junior employee in point of service among the Respondent Company's journeymen carpet- layers on April 6, if he had been reemployed on February 16, 1950. In the absence of such an indication, it would only be right and proper for the Board to infer that he would have remained in the Respondent Company's employ. Insofar as the record shows, indeed, he could have been the 11th man in seniority then in the Respondent Company's employ-immediately junior to Goodro, previously men- tioned. As such, he would of course have been "insulated" against a layoff, in any staff reduction calculated to reduce the number of journeymen carpetlayers in the Company's employ to 12. The burden of providing any evidence to the contrary rested upon the Respondent Employer. See Salmon and Cowin, 57 NLRB 845, enfd. 148 F. 2d 941 (C. A. 5); Underwood Machinery Company, 95 NLRB 1386, 1393. In the absence of such evidence I find that Barnes would not have been laid off. Conclusions In summation-and in the absence of evidence sufficient to warrant a contrary inference-I find that Barnes, absent any discrimination, would have remained in the employ of the Respondent Company from October 29 to December 31, 1949, inclusive; that he would have been laid off at the close of business on the last- mentioned date, that, absent the discrimination previously found, he would have been reemployed on February 16, 1950; and that he would have been able to con- tinue in the Respondent Company's employ from that date to November 15, 1950, the end of the back-pay period. In this posture of the case, he would appear to be entitled to back pay as follows: 1949-4th quarter (45 days) Daily Rate: $19 .20 x 45__________________________ $864. 00 Deduct: 1 holiday________________________ $ 19.20 3 days of illness_ __________________ 57. 60 Total deduction________________________ 76. 80 Total back pay-4th quarter_______________________________ $787. 20 (Although a holiday deduction would appear to be warranted with respect to Thanksgiving Day, none would appear to be warranted with respect to Christmas-which fell on Sunday in the year in question.) 1950-1st quarter (32 days) Daily Rate : $19.20 x 32___________________________ $614. 40 Deduct : 1 holiday____________________________ 19. 20 Total back pay-1st quarter_______________________________ $595.20 616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1950-2nd quarter (65 days) Daily Rate: $20 x 65----------------------------- $1,300.00 Deduct: 1 holiday---------------------------- 20.00 Total back pay-2nd quarter------------------------------ $ 1,280.00 1950-3rd quarter (65 days) Daily Rate: $20 x 65----------------------------- $1,300.00 Deduct: 2 holidays--------------------------- 40. 00 Total back pay-3rd quarter------------------------------- 1, 260.00 1950-4th quarter (33 days) Daily Rate: $20 x 33-------------------------------------- $660.00 Gross Back Pay------------------------------------------------ $4,582.40 Interim Earnings Firms: Jack Lerner--------------------------------- $172.80 Kirk Johnson-------------------------------- 295.00 San Francisco Rug Company------------------ 65. 90 Total Interim Earnings ----------------------------------- 533.70 Net Back Pay------------------------------------------------- $4,048.70 The earnings of the discriminatee at the L. D. Reeder Co. have been omitted from the above interim earnings computation , since his employment with the firm fell during a period in which, the record shows, he would not have been employed by the Respondent Company. [Recommendations omitted from publication.] ARMSTRONG FURNACE COMPANY and UNITED STEELWORKERS OF AMERICA, CIO , PETITIONER. ARMSTRONG FURNACE COMPANY and LOCAL No. 52, UNITED, TOOL AND DIE MAKERS OF AMERICA, NATIONAL INDEPENDENT UNION COUNCIL, PETITIONER . Cases Nos. 18-RC-2137 and 18-RC-2142. July 30, 1954 Decision, Order, and Direction of Election Upon petitions duly filed under Section 9 (c) of the National Labor Relations Act, a consolidated hearing was held before Ray C. Jenkins, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.' Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain employees of the Employer.2 1 The hearing officer referred to the Board the motion of the Employer and the Machinists to dismiss the Tool Makers ' petition on the ground that the proposed unit is inappropriate. For the reasons hereinafter stated, this motion is granted. 2 Local No. 32, United Aircraft & Jet Engine Workers of America, National Independent Union Council, herein called Aircraft Workers , intervened on the basis of a current con- tract. International Association of Machinists , AFL, District Lodge 118 , herein called 109 NLRB No. 99.