Brotherhood of Painters, Etc.

BROTHERHOOD OF PAINTERS, ETC. 295 the reasons set forth- in the Woolworth case, supra, we find no merit in this contention and overrule the objection. As to the sixth allegation, we agree with -the Regional Director's ,determination that it affords no basis for setting aside the election. Admittedly, a supervisor transported three employees to- the polls and entered the election area with them. However, investigation re- veals that he left when asked to do so and that he did no electioneer- ing. Mere brief presence at or near the polls without proof of im- proper conduct is insufficient to raise an issue with respect to the con- ,duct of the election.' Furthermore, contrary to the Petitioner's con- tention, transportation of employees to the voting area is not improper conduct.5 Accordingly, we overrule this objection. Finally, with respect to the eighth objection, we find, as did the Re- gional Director, that the alleged taking of pictures of the counting ,of the ballots and the alleged postelection statements of Personnel Di- rector Diamond and General Manager Wolfinbarger, assuming the truth of these allegations, do not amount to interference with the elec- tion and do not warrant setting it aside. In view of the foregoing, we find that the objections do not raise substantial or material issues with respect to conduct affecting the re- sults of the election. Accordingly, we hereby overrule the objections. As the Petitioner did not receive a majority of the votes cast in the election, we shall certify the results of the election. [The Board certified that a majority of the valid ballots was not cast for International Association of Machinists, AFL, and that this labor organization is not the exclusive bargaining representative of the employees of the Employer in the unit heretofore found ap- propriate.] MEimER Mu1u ooK took no part in the consideration of the above Supplemental Decision and Certification of Results of Election. * Fruehauf Trawler Company, 106 NLRB 182, 184. Seidbord Bros. Co., 99 NLRB 127, 130. Brotherhood of Painters, Decorators & Paperhangers of Amer- ica, Carpet, Linoleum & Resilient Tile Layers, Local No. 419, AFL and William F. Coopersmith. Case No. 30-CB-?5. October 10,1955 SUPPLEMENTAL DECISION AND ORDER On June 19, 1953, the National Labor Relations Board issued a Decision and Order in the above-entitled case,' finding that -the Re- spondent Union had violated Section 8 (b) (2) and 8 (b) (1) (A) of n 105 NLRB 669. 114 NLRB No. 58. 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ' '' the Act by causing Lauren Burt, Inc., of Colorado to discriminate against William F. Coopersmith. The Board therefore ordered that the Respondent Union make Coopersmith whole for any loss of pay which he may have suffered as a result of the discrimination practiced against him. In due course, the Board petitioned the United States Court of Ap- peals for the Tenth Circuit for enforcement of its Order. On May 21,1954, the court enforced the Board's Order .2 Thereafter, on Decem- ber 21, 1954, the Regional Director for the Seventeenth Region is- sued a notice of hearing for the purpose of determining the amount of back pay due Coopersmith. A hearing was held on February 16, 1955, before Trial Examiner William E. Spencer. On April 14, 1955, the Trial Examiner issued his Supplemental Intermediate Report attached hereto, in which he recommended that the discriminatee be awarded a specified amount of back pay. Thereafter, the Respondent filed exceptions to the Supplemental Intermediate Report and a sup- porting brief. 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. The Board has considered the Supple- mental Intermediate Report, the exceptions and brief, and the entire record in this case and hereby adopts the Trial Examiner's findings, conclusions , and recommendations. ORDER Upon the basis of the supplemental findings of fact and the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent Union, Brotherhood of Painters, Decorators & Paperhangers of America, Carpet, Linoleum & Re- silient Tile Layers, Local No. 419, AFL, its officers, representatives, agents, successors, and assigns, shall pay to William F. Coopersmith, who was found to have been discriminated against by the Respondent Union by a Board Decision and Order issued June 19, 1953, am en- forced by a decree of the Court of Appeals for the Tenth Circuit en- tered on May 21, 1954, net back pay in the amount of $3,620.19. 9 N. L. R. B. v. Carpet, Linoleum & Resilient Tile Layers, Local Union No. 419, etc., 213 F. 2d 49 (C A. 10). SUPPLEMENTAL INTERMEDIATE REPORT A hearing before the duly designated Trial Examiner was conducted at Denver, Colorado, on February 16, 1955, with all parties represented and participating, for the purpose of determining the amount of back pay that is due one William F. Coopersmith, pursuant to the decree of the United States court of appeals, dated May 21, 1954, enforcing the Board's Order dated June 19, 1953, in the above-entitled' case. 1 The Board's Decision and Order adopted without modification the Trial 1213 F.2d49. BROTHERHOOD OF PAINTERS, ETC. 297 Examiner's Intermediate Report and Recommended Order. Section 2 (b) of the Order required the Respondent Union to make whole William F. Coopersmith for any loss of pay he may have suffered as a result of the discrimination against him in a manner set forth in the section of the Intermediate Report entitled "The Remedy.- Following is quoted the relevant portion of the Trial Examiner's recommended remedy: Having found that Respondent has caused Coopersmith to lose his employ- ment with Colorado and consequently to lose opportunity to earn wages on Denver contracts, it will be recommended that the Respondent notify Colorado and Coopersmith, in writing, that it has withdrawn its objections to Cooper- smith's employment by Colorado and that Respondent make Coopersmith whole for any loss of pay he may have suffered by reason of his discharge. Loss of pay shall be computed on the basis of each separate calendar quarter or portion thereof from June 26, 1952, to the date of Respondent's notice of withdrawal of objection to Coopersmith's employment. The quarterly periods shall begin with the first day of January, April, July, and October. Loss of pay shall be determined by deducting from a sum equal to that which Coopersmith would normally have earned for each such quarter or portion thereof, including any and all amounts he would have been paid by Denver following assignment by Colorado to Denver projects, his net earnings, if any, in other employment dur- ing the period. Earnings in one particular quarter shall have no effect upon Respondent's liability for any other quarter. Prior to his discharge on June 26, 1952, Coopersmith was regularly employed by Lauren Burt, Inc., of Colorado, referred to by the Trial Examiner and herein as "Colorado," and was occasionally loaned to another employer, Earl A. Dixon, who about May 1, 1952, acquired the business known as Lauren Burt of Denver, which he continued to operate under that trade name until the close of 1952 and thereafter conducted as Earl A. Dixon, Inc. The Trial Examiner in his Intermediate Report referred to this second employer as "Denver"; herein he will be referred to as "Dixon." Colorado discontinued its business operations as a floor covering contractor early in April 1953, as soon as it completed its floor covering contracts. A. Issue as to length of period of discrimination 2 The Respondent Union, following the issuance of the decree of the Tenth Circuit enforcing the Board's Decision, wrote a letter dated July 1, 1954, to Colorado, formally withdrawing its objection to the employment by that employer of the claim- ant, and a copy of that letter was sent to the claimant. Coopersmith contends that the period of discrimination for which he is entitled to be reimbursed for loss of wages, flowing from his discharge on June 26, 1952, continued to July 7, 1954, the date he received a copy of the Respondent's letter removing its objection to his em- ployment. However, the payroll records of Colorado show that while there were 10 journeymen floor covering mechanics employed by Colorado during the week ending April 5, 1953, there were only 2 employed the following week, and that Colorado virtually discontinued its floor covering operations on that date. It may reasonably be assumed, and is found, that Coopersmith would have been discharged by that employer by the close of work on April 5, 1953, for lack of further available work for him with that employer. Coopersmith was one of a group of skilled mechanics employed by Colorado who frequently was assigned by Colorado's superintendent, Kaufmann, to work for Dixon. It was the employment by Colorado and the consequent opportunity to earn wages on Dixon's jobs that Respondent sought to, and did, end. Coopersmith re- mained an employee of Colorado during the periods of loan to Dixon. However, since Dixon has continued in the floor covering business, Coopersmith contends that the computation of his loss of earnings should be for the period from his dis- charge until July 7, 1954, on the theory that if it were not for the Respondent's action in causing discrimination by Colorado against him, he presumably could have con- tinued to work for Dixon after the floor covering operations by Colorado were dis- continued. He concedes the discrimination period would end by July 7, the date he 2 After consideration of all the evidence before me and briefs submitted by each of the parties, I have arrived at conclusions substantially in accord with those proposed in the brief submitted by the Board's representative at the hearing, and with some modifications and additions have adopted substantial portions of that brief and incorporated them herein as my own findings and conclusions. 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD received his copy of the Respondent 's letter withdrawing its objection to his em- ployment. The difficulty with Coopersmith's argument on the point is that the court decree en- forced the Board's decision which specifically found that Dixon's operations did not meet the jurisdictional tests established by the Board and therefore the Board would not take cognizance of action by the Respondent which might cause Dixon, qua employer, to discriminate against Coopersmith. It follows that the period of discrimination for which back pay should be awarded Coopersmith extended only to such date as Colorado, over whom the Board could and did assert jurisdiction, would have terminated Coopersmith's employment if there had been no discrimina- tion against him 3 That date, as previously indicated, was April 5, 1953. It ac- cordingly is found, contrary to Coopersmith's contentions, that the period of discrim- ination was June 26, 1952, to and including April 5, 1953. B. Issue as to whether claimant wilfully incurred loss of earnings Respondent Union in this proceeding has challenged the right of Coopersmith to claim any loss of wages accruing from the discriminatory discharge, contending that Coopersmith has wilfully incurred loss of earnings by refusing and failing to seek, accept, or retain other employment. However, since claimant admittedly registered for work at a public employment office and made independent effort to find other work, Respondent cannot rest its contention of wilfully incurred losses on the ground of claimant's failure to obtain employment, but has the burden of showing af- firmatively that claimant wilfully failed to seek and accept, or quit, suitable em- ployment.4 The record at the hearing herein shows that Coopersmith did not wilfully incur loss of earnings, but on the other hand that he diligently sought to obtain other work. The day following his discharge on June 26, 1952, by Superintendent Sam Kaufmann, he called on Earl Dixon with respect to employment and he made ap- plication for work to Kaufmann twice within 2 weeks of his discharge. At the back-pay hearing Dixon testified that the first time he saw Coopersmith after the latter's discharge was within a few days after such discharge and he testi- fied as follows concerning that incident: A. I believe Mr. Coopersmith came in and the conversation was regarding whether he could go to work or not, I don't recall, and he said `No I have to report or ask for work.' Q. And did he add anything to that statement? A. I don't recall. Q. Did he say why he had to report? A. I don't recall. Q. All right, do you recall any more of that conversation on that par- ticular occasion? A. No, sir. However, Dixon had testified at the original hearing held on February 19, 1953, that Coopersmith came to see him the following morning after his discharge and "He just asked me for a job is all, to go to work," and that he (Dixon) had told Coopersmith that he would have to get in touch with Sam Kaufmann. Dixon's testimony given at the first hearing, only some 8 months after the event, is, I believe, a more accurate and acceptable version of words actually used by Coopersmith than that reflected by his testimony at the back-pay hearing. As suggested by Board's counsel, Dixon, at the latter hearing, in attempting to convey the impression that Coopersmith was not really seeking work, was perhaps in- fluenced by his desire to aid the Respondent, of which he is a member on a with- drawal card. That Dixon in May 1952, prior to Coopersmith's discharge by Colorado, spoke to the latter about hiring him, and that Coopersmith at that time refused the offer because he was then employed by Colorado, does not in my opinion raise doubts as to the bona fides of Coopersmith's efforts to obtain employment with Dixon following his discharge by Colorado. Kaufmann's testimony at the first hearing also bore no indication of a lack of good faith on Coopersmith's part in his efforts to obtain employment following his dis- charge on June 26, 1952. Kaufmann testified that Coopersmith asked him for work 3 N. L. R B v Wilson Line, 122 F. 2d 809 (C A. 3) ; American Needlecrafts, Inc., 59 NLRB 1384; Colonial Fashions, Incorporated, 110 NLRB 1197; N. L R. B. v. Grace Company, 184 F 2d 126, 131 (C. A. 8). 4 Venetian Blind Workers' Union, Local No 2565, etc., 110 NLRB 780. BROTHERHOOD OF PAINTERS, ETC. 299 -within a few days of his discharge and that "He showed up around 8:00 to 8:15 in the morning and asked if there was any work and I told him `No."' On a second occa- sion, Coopersmith asked Kaufmann for work at Dixon's place and was refused. After having asked Dixon once and Kaufmann twice for work, without success, Coopersmith sought employment elsewhere. As he had had civil service coverage from 1937 to 1947, he made application to the United States Civil Service Commis- sion, and also applied to the Lowry Air Force Base, the Air Forces Finance Center, the city and county of Denver, the International Harvester Company, Denver Tile & Brick Company, a real estate firm, and to some nonunion floor covering firms, includ- ing Harry Hansen Linoleum Company, Denver Carpet & Linoleum, Daniels & Fisher, Sears & Roebuck, and Anchor Floor Covering Co. His failure to apply to organized floor covering firms, in view of his discharge by Colorado on demand of the Union, can hardly be described as wilfully incurred loss, and while it is true, as cited in Respondent's brief, that he did not apply to all the nonunion floor covering concerns in the vicinity of Denver, he doubtless was deterred from a more exhaustive search by the belief, undoubtedly held, that his age (51 years) was an almost insurmountable barrier in obtaining work with a new employer in this field. I am convinced that the applications he did make with leading nonunion floor covering companies, together with the other applications described, showed an earnest desire and reasonable dili- gence with respect to obtaining employment. In reaching this conclusion I have also taken into account the fact that he ran advertising in a Denver newspaper in an effort to get floor covering jobs. These advertisements appeared on the following dates in 1952: July 11, 12, and 13; July 16 through 22; July 27; August 10 and 28; September 24; and October 1, 15, 22, and 29. He then ran no more of these advertisements until October 11, 1953. Respondent argues that by running these advertisements and by obtaining on Au- gust 12, 1952, a sales tax license from the State for the purpose of conducting a floor covering business, Coopersmith in effect took himself out of the labor market and for that reason any losses incurred during the period of discrimination were wilfully incurred. I am unable to agree. Coopersmith's registration on June 29, 1952, with the State employment service; his action in seeking employment from at least two employers every week, and reporting thereon, in order to receive unemployment bene- fits; the specific applications for employment listed above; his actual taking of employ- ment on occasion, as will be set forth hereinafter; and the comparatively small amount of revenue he derived from the odd jobs that he performed for persons responding to his advertisements, are factors which in combination convince me that he at no time actually took himself out of the labor market, but finding himself unable to obtain employment in the field to which his skills suited him, attempted to obtain such work by direct advertisement. This, in my opinion, is evidence in support, not in derogation of diligence. Finally, there is the matter of the employment which Coopersmith actually obtained during the period of discrimination, and then quit, wherefrom Respondent argues wilfully incurred losses. In November 1952, Coopersmith was offered and accepted employment with The Spray Coffee and Spice Company. After 6 days he quit. His employer testified that his services were satisfactory but added that 6 days "was a very brief period for a man to come in and do something he had never done before." Coopersmith's job was the assembling, disassembling, installing, and repairing of gas and electric equipment such as coffee urns, electric and gas ranges, and the like. As testified to by the em- ployer, he was not qualified for the job and his hiring came about because of an old friendship between him and the employer and because the employer was in need of help at that particular time. He asked Coopersmith if he would like to "try his hand at it" and Coopersmith accepted. The rate of pay was $1.50 an hour and he was required to be on call at all hours, because, as testified to by the employer, "A man's got to be on call all the time in that kind of job, because if an urn goes out in a restaurant, something happens to the coffee making equipment, somebody's got to go and do the job." Also in November 1952, Coopersmith obtained work with the McCollum-Law Cor- poration, and quit after 2 days. He was paid at the rate of $1.09 an hour. Here his job was that of a warehouseman, moving equipment of various sorts, such as TV sets, electric stoves, refrigerators, etc., from the warehouse to the loading dock. He quit when he learned that after working an 8-hour shift he was required to make deliveries of merchandise such as TV sets at odd hours during the evening. I do not believe that Coopersmith's quitting of these two jobs constituted wilfully incurred loss within the meaning of the decisions. I know of no decisions under the Act holding that a skilled craftsman who has been discharged in violation of the Act is required to accept employment that is unreasonably burdensome in comparison with that held at the time of his unlawful discharge, totally unsuited to him, and incom- 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD mensurate with his skills and experience. Such were the jobs that Coopersmith ob- tained with The Spray Coffee and Spice Company and McCollum-Law Corporation. That from December 1 to 22, 1952, Coopersmith worked for the United States post office shaking out mail sacks in what he described as "below zero weather," at a wage of about $1.50 an hour, is of course evidence of diligence-not lack of it. At the end of the pre-Christmas rush he was laid off, no doubt along with many others. In summation, it is found that Coopersmith exercised reasonable diligence in seek- ing employment throughout the period of discrimination. In reaching this conclusion, it has not been necessary to rely on Coopersmith's credibility to any appreciable degree for the controlling facts are matters of record or uncontested evidence. For that reason I have not adverted to certain testimony which showed that Coopersmith in his suspicion of and animosity toward the Union attributed to it certain interference in obtaining materials at wholesale which was not shown to exist, and on the basis of rankest hearsay attributed unpatriotic motives to one of its agents. I would not have my failure to deal with this testimony at length construed as condonation of it. C. Issue of claimant's job expectancy for period of discrimination Inasmuch as Colorado's business was one of peaks, plateaus, and hiatuses, the problem of determining the amount of wages lost by Coopersmith because of the dis- crimination is not an easy one, nor one capable of being solved with absolute cer- tainty. The record of the back-pay hearing contains an exhaustive analysis of the earnings of Colorado's journeyman floor covering mechanics-of whom Coopersmith was one-for a substantial period preceding and following his discharge. None of these some 6 to 10 or more employees worked the same number of hours during an _extended period, and a wide differential existed between those making the highest, and those making the lowest, salaries. However, for the period of employment pre- ceding the discharge, a pattern emerges which affords what I believe to be a stable basis for estimating the amount of wages lost by Coopersmith during the period of discrimination, for while the fluctuations of Colorado's business subsequent to his discharge were not identical with those preceding the discharge, its journeymen floor covering mechanics continued to do the same kind of work and there is no probative evidence upon which to base an assumption that their normal job assign- ments would have been handled in a different order. Up until the time Colorado discontinued its floor covering business, it continued to assign employees to work for Dixon, the wage rate for journeyman floor covering mechanics remained at $2.57 an hour, and in all other material respects the conduct of its floor covering business remained the same. Before proceeding with an analysis of Colorado's payroll records for the period in question, however, we must turn to Respondent's contention, supported by the testi- mony of Superintendent Sam Kaufmann, that because Coopersmith was capable only of "laying small jobs of lino-tile and small jobs of linoleum," he would have been em- ployed very irregularly during the period of discrimination, along with five other em- ployees also employed irregularly during that period because of their lack of qualifi- cations. According to Kaufmann, 8 of Colorado's employees during the period of discrimination were capable of performing all phases of floor covering work, as Coopersmith was not, and therefore were regularly employed during periods when Coopersmith, had he still been in Colorado's employ, would have been laid off, along with the other 5 less qualified employees, it being Colorado's policy to lay off its least qualified employees first. Employees who, according to Kaufmann, were fully quali- fied and regularly employed were Cawood, Deicken, Munson, Harry L. Kaufmann (brother to the witness), Sechrist, Spencer, Magee, and Morris. It is recalled at the outset that it was Kaufmann, a member of Respondent on a withdrawal card, who discharged Coopersmith at Respondent's request, and that the Trial Examiner who conducted the unfair labor practice hearing discredited his explanation of the Coopersmith discharge. I find his estimate of Coopersmith's qualifications just as unreliable. The extent of its unreliability is established by a sur- vey of Coopersmith's employment during the first 6 months of 1952 and up to the date of his discharge. May 1952, by Kaufmann's admission, was a slack period of employment and Colo- rado had reduced its floor laying mechanics to a basic crew. During the weeks ending May 4, 11, and 18, Coopersmith was 1 of 5 regular employees retained. Also according to Kaufmann, during slack periods Colorado would "loan" employees to Dixon in order not to lose their services altogether, and to have them available when Dixon had finished with their services. He admitted that he made no effort to refer the less competent employees to Dixon. Colorado's records show that Coopersmith was assigned by Kaufmann to work on Dixon jobs during the weeks ending May 11, BROTHERHOOD OF PAINTERS, ETC. 301 June 15, June 22, and June 29, 1952, and was in fact working on Dixon jobs at the time Kaufmann discharged him. It further appears that during the first 6 months of 1952, only the following journeyman floor laying mechanics were employed by Colorado: Coopersmith, Ca- wood, Deicken, H. L. Kaufmann, Markley, Munson, Sechrist, and Smith. Smith was laid off for the week ending March 16 and did not return to work for Colorado until the week ending October 26, 1952. Morris was laid off the week ending March 9, returned the week ending April 6, was laid off 2 more weeks, and returned the week ending April 20. Deicken was off for the weeks ending March 2 and 9 and May 4, 11, and 18, 1952. Cawood worked 12 hours during the week ending April 27, was off during the weeks ending May 4 and 11, and worked only 16 hours the week end- ing May 18 , 1952. Coopersmith was off from work for the week ending April 20 and the week ending June 1 and worked only 4 hours for Colorado the week ending June 15, 1952. However, during the week ending May 11, when Coopersmith worked only 32 hours for Colorado, he worked 161/2 hours for Dixon, and during the week ending June 15, in addition to the 4 hours he worked for Colorado, he worked 16 hours for Dixon. Furthermore, testimony at the original hearing in this matter disclosed that Coopersmith did not work on June 12 and 13 because of fric- tion with the Respondent Union. It is' also established that he was off from work a total of 17 days from January 1, 1952, to the discharge date, and that on 8 of the 17 days he was attending to the funeral rites of his father. From this it appears that he was off of his job due to lack of work for only 7 days during the period, and had been retained by Colorado when the latter had laid off Deicken in March and May, Smith and Morris in March, and Sechrist in May. During the entire first calendar quarter of 1952, Coopersmith worked a total of 4791/2 hours, whereas Deicken during the same period worked 426 hours and Morris, 384 hours. McGee did not work during that quarter with the exception of 40 hours during the week ending February 17. Coopersmith's hourly assignments were ex- ceeded only by Sechrist with 4953/4 hours; Cawood with 511 hours; Munson with 526 hours; and Henry Kaufmann, the superintendent's brother, with 544 hours. The testimony established that Munson had a preferential arrangement with Colorado with respect to the allotment of work and it is not unreasonable to assume that the superintendent's brother would also receive preferential treatment. However, in the order of the total number of hours worked by floor laying mechanics during the first calendar quarter of 1952, Coopersmith stood in fifth place, only a little below Sechrist and Cawood. This calendar quarter appears to have been a rep- resentative period insofar as the distribution of work among the employees was concerned. From the time of Coopersmith's discharge until floor covering operations were discontinued by Colorado in April 1953, the number of floor covering mechanics assigned by Superintendent Kaufmann to work for either or both Colorado and Dixon was never reduced to as low as 5, the number of the crew for 3 weeks in May 1952, when Coopersmith had been retained. The lowest number to which the crew was reduced during that period was seven, this during the week ending August 17, 1952. Of those seven, Rollins, Spencer, Nelson, and Wilmore were new employees, Spencer, Nelson, and Wilmore having been hired during the last half of June 1952, and Rollins having started early in July. There is no evidence to support a conclusion that any of these recently hired employees would have been retained in preference to Coopersmith who had been regularly employed by Colorado since 1949, other than the testimony of Superintendent Kaufmann that certain of them were more generally qualified than Coopersmith and, as previously noted, Kaufmann has been found to be an unreliable witness. I am convinced, and find, that absent discrimination Coopersmith would have worked not only the week of August 17, 1952, but throughout the period of discrimination. Upon consideration of the number and identity of the employees who worked in each week during the period of discrimination, and the number of hours worked by each of those employees, an estimate has been made of the number of hours Cooper- smith would have worked during each week throughout the period of discrimina- tion, and this estimate of employment expectancy is used for the computation of -his gross back pay, inasmuch as employment of the floor covering mechanics was somewhat irregular throughout this period.5 The computation has been made on a basis of $2.57 per hour, the journeyman's rate of pay throughout the period of discrimination. In arriving at this estimate, application has been made of persuasive evidence that Coopersmith during his employment usually had not chosen to work overtime, 5 Waterman Steamship Corp. v. N. L. R. B., 119 F. 2d 760 (C. A. 5). 302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD although on occasion he did so . Therefore, the only week that an allowance has been made for overtime work is the week of December 21, 1952, when nearly all the floor covering mechanics worked a great deal of overtime. [Recommendations omitted from publication.] APPENDIX A* Coopersmith's Gross Loss of Wages Computed at $2.57 Per Hour Week ending- Estimated number of "Would have worked" hours Weekly gross back pay Quarterly gross back pay 1952 June 29------------------------------------------------------- 8 $20 56 ••$20.56 July 6- -------------------------------------------------------- 32 82 24 July 13- ------------------------------------------------------ 40 102 80 July 20- ------------------------------------------------------ 40 102 80 July 27- ------------------------------------------------------ 40 102 80 Aug 3-------------------------------------------------------- 40 102 80 Aug 10---------------------- --------------------------------- 40 102 80 Aug 17------------------------------------------------------- 40 102 80 Aug. 24--------------- s--------------------------------------- 40 102 80 Aug. 31------------------------------------------------------- 36 92 52 Sept. 7-------------------------------------------------------- 32 82 24 Sept 14------------------------------------------------------- 38% 98 95 Sept 21------------------------------------------------------- 40 102 80 Sept. 28------------------------------------------------------- 40 102 80 1, 281.15 Oct. 5-------------------------------------------------- ------- 40 102 80 Oct. 12----------•--------------------------------------------- 40 102 80 Oct 19-------------------------------------------------------- 40 102 80 Oct. 26-------------------------------------------------------- 40 102 80 Nov. 2-------------------------------------------------------- 40 102 80 Nov. 9-------------------------------------------------------- 38 97 66 Nov 16------------------------------------------------------- 40 102 80 Nov 23------------------------------------------------------- 40 102 80 Nov 30------------------------------------------------------- 32 82 24 Dec. 7-------------------------------------------------------- 40 102 80 Dec. 14------------------------------------------------------- 40 102 80 Dec 21------------------------------------------------------ 56 164 48 Dec. 28---------------------------------------- -------------- 32 82 24 1,351.82 1955 Jan 4--------------------------------------------------------- 32 82 24 Jan 11-------------------------------------------------------- 40 102 80 Jan. 18-------------------------------------------------------- 40 102 80 Jan. 25-------------------------------------------------------- '40 102 80 Feb. 1-------------------------------------------------------- 40 102 80 Feb 8-------------------------------------------------------- 40 102 80 Feb 15------------------------------------------------------- 48 138 78 Feb. 22------------------------------------------------------- 40 102 80 Mar. 1-------------------------------------------------------- 40 102 80 Mar 8 40 102 80 Mar 15------------------------------------------------------- 40 102 80 Mar. 22------------------------------------------------------- 40 102 80 Mar. 29------------------------------------------------------- 40 102 80 1,381.82 Apr. 5-------------------------------------------------------- 18 46 26 46.26 'Reference is to Board Exhibit No. 5 which I find to be an accurate and complete digest of payroll records. "Coopersmith reported for work on June 27, 1952, and was refused further employment on grounds that there was no further work for him. Inasmuch as his discharge on that date was found to have been dis- criminatory and therefore not due to lack of work, he is credited with 8 hours' work on that date. CONE BROTHERS CONTRACTING COMPANY APPENDIX B Computation of Net Loss of Earnings by William F. Coopersmith Quarter ending- Gross back pay Interim earnings 1952 June 30---------------- $20 . 56 None------------------------------------------------- Sept. 30---------------- 1, 281.15 Employer Amount Emil Alm---------------------------------- $30 00 Carroll Lindenmeier----------------------- 20.00 Geo. Bewley------------------------------- 20.00 Denver Hardware Co---------------------- 10.00 Navajo Court------------------------------ 30.00 Total for quarter-------- ----------------- 110.00 Dec 31 ----------------- 1,351.82 Spray Coffee Co--------------------------- 72 00 McCollum-Law --------------------------- "17.28 U. S. Post Office--------------------------- 261.36 Total for quarter------------------------- 350.64 303 Net back pay $20.56 1,171.15 1,001.18 1955 Mar. 31---------------- 1,381 82 None------------------------------------------------- 1,381.82 Apr. 5----------------- 46 26 None ------------------------------------------------- 46.26 Total ---------------------------------------------------------------------------------- 3, 620.97 •Coopersmith gave $17.26 as the amount earned on the McCollum-Law job, but the report on his earnings furnished by the Social Security Administration show the earnings to have been $17 28. Cone Brothers Contracting Company and United Stone and Allied Products Workers of America, CIO. Case No. 10-CA- 2066. October 10, 1955 DECISION AND ORDER On April 27, 1955, Trial Examiner A. Norman Somers issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the In- termediate Report attached hereto. Thereafter, the Respondent filed, exceptions to the Intermediate Report and a supporting brief. The Board has reviewed the rulings of the Trial Examiner made at the-hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in this case and hereby adopts the 'findings, conclusions, and recommenda- tions of the Trial Examiner. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Cone Brothers 114 NLRB No. 62.