Idaho Potato Processors, Inc.

646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in the case, I recommend that the complaint be dismissed in its entirety. Idaho Potato Processors, Inc. and American Federation of Grain Millers, AFL-CIO. Case No. 19-CA-2306. August 28, 1964 SUPPLEMENTAL DECISION AND ORDER On June 27, 1962, the Board issued its Decision and Order in the above-entitled proceeding' finding, inter alia, that the Respondent had unlawfully discriminated against employee Ernest Essary and ordering that he be reinstated to his former, or a substantially equiv- alent, position and made whole for any loss of earnings attributable to his unlawful discharge. The U.S. Court of Appeals for the Ninth Circuit granted enforcement of the Board's Order on October 17, 1963.2 On March 26, 1964, a hearing was held before Trial Examiner Howard Myers for the purpose of determining the amount of backpay due employee Essary. On May 11, 1964, the Trial Examiner issued a Supplemental Decision, attached hereto, finding that Essary was entitled to backpay in the amount of $2,963. and recommending that the Respondent be required to pay interest at the rate of 6 percent per annum on this sum beginning 5 days after receipt by the Respondent of his Supplemental Decision. The Respondent filed exceptions to the Supplemental Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Mem- bers Fanning and Jenkins]. The Board has reviewed the rulings made by the Trial Examiner at the supplemental hearing and finds that no prejudicial error was committed.' The rulings are hereby affirmed. The Board has con- 1137 NLRB 910. 2 322 F. 2d 573 3 Respondent contends that the Trial Examiner erroneously rejected its offer of proof to the effect that, shortly after Essary's discharge on September 26, 1961, he stated that he was planning to obtain a farm in Arkansas and to move there and that, if Respondent had waited a while and not fired him, he would have quit We find it unnecessary to pass upon the correctness of the Trial Examiner's ruling, for, even assuming that Essary stated that he had intended to quit in the future , the record herein fails to support Respondent's posi- tion that the backpay period should be shortened Essary's undenied testimony reveals that he began seeking to trade his Idaho property for an Arkansas farm in March 1961, approximately 6 months before his unlawful discharge , that he did not sell the Idaho property until July 1, 1902 , approximately 3 months after his reinstatement, at which time he did obtain property in Arkansas ; that he has offered the Arkansas property for sale since he obtained it; and that he traveled to Arkansas to seek employment at the end of November 1961 , only after failing to find. Work in Idaho , and again in January 1962, 148 NLRB No. 63. IDAHO POTATO PROCESSORS, INC. 647 sidered the entire record in this case, including the Supplemental De- cision and the exceptions, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the following modification. As noted above, the Trial Examiner recommended the payment of interest on the backpay due Essary. We do not adopt this recom- mendation, as the payment of interest was not required by the Board's original order which was enforced by the court 4 ORDER On the basis of the foregoing Supplemental Decision and the entire record in this case, the National Labor Relations Board hereby orders that the Respondent, Idaho Potato Processors, Inc., its officers, agents, successors, and assigns, shall pay Ernest Essary the sum of $2,963. after once more unsuccessfully seeking work in Idaho following his return there in Decem- ber of 1961 . It is also significant that Essary immediately accepted Respondent' s uncondi- tional offer of reinstatement and returned to his former job on April 4, 1962 Thus, at best, the record shows that Essary's statement that he would have terminated his em- ployment voluntarily and settled in Arkansas if he had not been discharged was merely speculative and anticipatory and, in fact , did not materialize . We find, therefore, that the evidence offered would not have proved that, absent the unlawful discharge , Essary would have quit * See General Dngmeering, Inc, and Harvey Aluminum (Incorporated ), 147 NLRB 127. TRIAL EXAMINER'S SUPPLEMENTAL DECISION On June 27, 1962, the National Labor Relations Board, herein called the Board, issued its Decision and Order in the above -entitled case l directing that Idaho Potato Processors , Inc., herein called Respondent , take certain affirmative action, including, among other things, to make whole Ernest Essary for any loss of pay resulting from Respondent's unfair labor practices. In due course , the aforementioned Board Decision and Order was reviewed by the U.S. Court of Appeals for the Ninth Circuit and on October 17, 1963, the court granted enforcement .2 The parties having been unable, through informal negotiations , to agree upon the backpay due Essary, the Regional Director for Region 19 (Seattle, Washington), on January 24, 1964, by virtue of Section 102.52 of the Board's Rules and Regula- tions, Series 8, as amended, duly served upon Respondent, backpay specification as called for by the aforesaid rule. The specification alleged that Essary's bdckpay period began on September 26, 1961, when he was discriminatorily discharged , and ended on April 1, 1962, when Respondent unconditionally offered him reinstatement to his former job. The specification further alleged that an appropriate measure of the amount which Essary would have earned is the amount earned per calendar quarter by a representa- tive employee, Joe B . Wolf, who worked as a relief man at the rate of $2.10 per hour from September 26 through September 30, 1961 ,3 and as a regular full-time boiler operator thereafter at the rate of $2.15 per hour. The specification also alleged that under Respondent 's group insurance policy, which was in effect during the period from September 26, 1961, through April 1, 1137 NLRB 910. 2 322 F. 2d 573. 3 Essary's hourly rate as a boiler operator on the third shift, which job lie held at the time of his discharge, actually was $2 15 The Board, as stated in the specification, adopted wolf's $2 10 per hourly rate for the last few days of September for simplicity in computation . 648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1962, Essary was entitled to reimbursement in the sum of $160, which he person- ally paid to the surgeon for performing an operation on the eye of Essary's son in November 1961. On February 7, 1964, Respondent duly filed an answer specifically disclaiming any financial liability for any backpay due Essary. At the hearing- herein, which was held, pursuant to due notice at Burley, Idaho, on March 26, 1964, before Trial Examiner Howard Myers, the Board and Respond- ent were represented by counsel. Full and complete opportunity was afforded counsel to be heard, to call and to examine and cross-examine witnesses, to in- troduce evidence pertinent to the issues, to argue orally on the record at the con- clusion of the taking of the evidence, and to file briefs on or before April 17, 1964. Briefs have been received from Board's counsel and from Respondent's counsel which have been carefully considered. Upon the basis of the record as a whole and from my observation of the witnesses, I make the following: FINDINGS OF FACT On December 14, 1961, pursuant to due notice to the parties, a hearing in the original proceedings was held before Trial Examiner Wallace E. Royster. On February 2, 1962, Trial Examiner Royster issued his Intermediate Report and Recommended Order in which he found that Respondent had engaged in cer- tain unfair labor practices. He further found that, in order to effectuate the policies of the Act, the Board should order Respondent, its officers, agents, successors, and assigns to (1) cease and desist from engaging in the conduct found to be violative of the Act; (2) offer Essary immediate and full reinstatement to his former or sub- stantially equivalent position; and (3) make Essary whole for any loss of pay he may have suffered by reason of the discrimination against him. In addition, Trial Examiner Royster recommended that Respondent post copies of certain notices, addressed to all Respondent's employees, at such places where notices to its employees were customarily posted. Said notices read, in part, as follows: WE WILL offer to Ernest Essary immediate and full reinstatement to his former or substantially equivalent position, without prejudice to [his] seniority or other rights and privileges, and make him whole for any loss of pay suffered by reason of his discharge on September 26, 1961. Respondent filed with the Board timely exceptions to Trial Examiner Royster's Intermediate Report and Recommended Order. On June 27, 1962, the Board issued its Decision and Order in which it adopted, with certain minor modifications, the findings, conclusions, and recommendations contained in Trial Examiner Royster's Intermediate Report and Recommended Order. The Board's order directed Respondent, its officers, agents, successors , and as- signs, to take, among other things, certain affirmative action which the Board deemed would effectuate the policies of the Act, to wit: (1) to offer Essary immediate and full reinstatement to his former or substantially equivalent position; (2) make Es- sary whole for any loss of pay he may have suffered by reason of the discrimination against him, in the manner set forth in "The Remedy" section of Trial Examiner Royster's Intermediate Report and Recommended Order; and (3) post at its place of business copies of certain notices at such places where notices to its employees were customarily posted. On September 17, 1963, the Court of Appeals for the Ninth Circuit handed down its decision enforcing, without modification, the Board 's Decision and Order. There- after, the aforesaid Circuit Court of Appeals entered its Decree ordering Respond- ent, its officers, agents, successors, and assigns to abide by and perform the direction contained in the Board's order of June 27, 1962. Respondent's answer to the specification, averred, among other things, that Essary was unconditionally offered reinstatement on February 19, 1962. With re- spect to said averment, Respondent argues that if any backpay is due Essary it should not be financially liable for any moneys beyond said date. This argument is with- out substance or merit. Essary credibly testified without contradiction that prior to leaving on January 15 or 16, 1962, his Burley, Idaho, home for Winslow, Arkansas, he informed Respond- ent's personnel office that his new mailing address would be c/o General Delivery, Winslow, Arkansas; that on February 27, 1962, he received a letter signed by Re- IDAHO POTATO PROCESSORS, INC. 649 spondent's counsel, dated February 19, 1962; 4, that the same day, he received said letter he telephoned from, Winslow and spoke to Respondent's then Personnel Di- rector, Earl Anderson; that when he told Anderson he, received_ the letter of Feb- ruary 19 and would be in Burley as soon as possible, Anderson said, to quote from Essary's credible testimony,. "He- wanted to inform me . since they didn't have a boiler operator anymore, that I would go back on the freezer- tunnel, that that was all I was' qualified for, at $1.70' an hour"; 5 that Anderson- further said that he would only be working 351/2 hours a week on the freezer tunnel job; that he replied he could not.accept_the offer of -reinstatement under, such conditions because he could not,afford to return with_his_family_ to Burley, rent a furnished place, and live on the wages offered; that he also told Anderson when he worked on the grave- yard shift as a boiler operator his rate of pay was $2.15 per hour adding, that when he had worked on the freezer tunnel job he was paid $1.96 per hour; and that the conversation-ended when Anderson requested him to write a-letter declining the proffered job. - - Under date of March 4, 1962, Essary wrote Anderson as follows: Due to the cut in salary I mill have,to, refuse your offer of reinstatement. According to Essary's credible and undenied testimony, he telephoned on March 27 or 28, 1962, from Winslow to Respondent's Burley plant and spoke to General Manager Bohannon; he informed Bohannon what transpired during his aforemen- tioned telephone conversation with Anderson; Bohannon stated that Eli Weston, Respondent's attorney, was handling the matter and Respondent would be governed by Weston's advice; that same day Weston telephoned him from either Pocatello or American Falls, Idaho, and told him he would be reinstated to the same job he had when he was discharged, or to a-similar job, and at $2.15 per hour; he left Winslow within a day or two after his conversation with Weston and reported to Respondent's plant for work on April 4, 1962, and he was put to work on his old job at $2.15 per hour. At the hearing, it was stipulated between counsel for the Board and counsel for Respondent that,the appropriate measure of the amount Essary would have earned had he been employed by Respondent during whatever period is found appropriate is the amount earned per calendar quarter by Joe B. Wolf. The evidence discloses, and I find, that Essary is entitled to backpay from September 26, 1961, to April 1, 1962, both dates inclusive. I further find that during the aforementioned period Essary would have earned as wages during said period the sum of $2,843. In support of its disclaimer of any financial liability to Essary, Respondent con- tended at the hearing, and in its brief, that Essary did 'not make a diligent search for work during the period in question. It would serve no useful purpose to set forth here at length the places, the labor hiring halls, plants, and the employment agencies visited by Essary during the period from September 26, 1961, to April 1, 1962, for I am convinced, and find, that Essary made diligent efforts to obtain work. In fact, within a few hours of his September 26, discharge, Essary registered with and sought work through the State employment agency-- in his home town of Rupert, located not far from Respondent's plant. Respondent further contended that Essary is not entitled to any backpay because he took himself out of the labor market by engaging in self-employment. The credible evidence establishes that Essary engaged in self-employment in addition to his regular employment with Respondent both before and after his reinstatement. This self- employment consisted,'with the aid 'of his wife, of hauling potatoes and grain for neighboring farmers. Essary and his wife also engaged in this potato- and grain-hauling enterprise even during the backpay period in question. 'This activity, however, did not interfere with his search for work or, with his availability for work Essary's 1960 income from the aforementioned hauling grossed $1,441, and only $1,220 in 1961. 'The letter which was addressed to Essary's home in Rupert, Idaho, where he lived while working for Respondent was forwarded to him in Winslow, Arkansas. It reads as follows: This is to inform you that pursuant to the Intermediate Report of the Trial Exam- iner in the above case (19-CA-23061, we are offering you re-instatement as required by the Order We'will expect you to report for work within the next two or three days. s Anderson's statement that Respondent had eliminated the boiler operator job was clearly false. The credited and undisputed evidence clearly shows that Joe Wolf occupied Essary's boiler operator job. 650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Since the earnings outlined immediately above cannot properly be considered interim earnings within the meaning of the Act because said income did not interfere with his availability for employment , Respondent's contention with respect thereto is without merit. CONCLUSIONS AND RECOMMENDATIONS Upon the foregoing findings of fact and upon the record as a whole, I conclude that Essary is entitled to backpay as follows: 4th quarter 1961--- -------------------------------------- $ 1,503 1st quarter 1962------------------------------------------ 1,230 2nd quarter 1962----------------------------------------- 110 Total ---------------------------------------------- 2,843 Plus insurance benefits ------------------------------------- 120 Gross total due------------------------------------- 2,963 I further find that Respondent is obligated to make Essary whole by payment to him of the sum of $2,963, minus whatever Federal and State taxes are due on the sum of $2,843, plus interest at the rate of 6 percent per annum beginning on the sum of $2,963 5 days after the receipt by Respondent of this Supplemental Decision. It is recommended that the Board adopt the foregoing findings and conclusions. Amalgamated Lithographers of America, Local 33 and The Standard Register Company. Case No. 9-CD-71. August 28, 1964 DECISION AND DETERMINATION OF DISPUTE This is a proceeding pursuant to Section 10(k) of the National Labor Relations Act, following a charge filed by The Standard Reg- ister Company, herein called the Company, alleging that Amalga- mated Lithographers of America, Local 33, herein called the Litho- graphers, had violated Section 8(b) (4) (D) of the Act. Pursuant to notice, a hearing was held on March 24, 25, and 26, 1964, before Hearing Officer Donald G. Logsdon. All parties appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. The rulings of the Hearing Officer made at the hearing are free from prejudicial error and are hereby affirmed. Briefs have been filed by the Company, by the Lithographers, and by Dayton Printing Pressmen and Assistants' Union, Local 54, International Printing Pressmen and Assistants' Union of North America, AFL-CIO, herein called the Pressmen, which appeared at the hearing as a party to the dispute. Upon the entire record in the case, the Board I makes the following findings : 1. The business of the Company The Company is engaged in the manufacture of printed business forms. It has a plant in Dayton, Ohio, which is the subject of the 1 Pursuant to the provisions of Section 3 (b) of the Act , the Board has delegated its powers in connection with this case to a three -member panel [Chairman McCulloch and Members Leedom and Jenkins]. 148 NLRB No. 62.