Robert Haws Co.

ROBERT HAWS COMPANY 299 for the removal of tools. In all such instances, the firemen is respon- sible for obtaining the name of the employees admitted, the reason for admittance, and the completion of a company form identifying the employee and the tools or equipment removed. Negotiations for new collective-bargaining agreements covering Petitioner's production and maintenance unit are conducted every 2 or 3 years and, as a rule, preparations are made by the Employer for a possible strike. These preparations include provisions for assignment of patrolmen and firemen to 12-hour shifts, 7 days a week. Under strike conditions, firemen are to be placed on patrol of build- ings for the protection of employees and property and for the secur- ity of classified material; patrolmen are to be placed on exterior patrol, charged with the same duties. Thus, it is clear that, although the primary function of the firemen is to fight fires, maintain fire equipment, and standby while hazard- ous operations are conducted, an essential and significant part of their duties and responsibilities is substantially intermingled and inte- grated with the enforcement of plant protection rules. In these circumstances and upon the record facts, we find that the firemen are guards within the meaning of Section 9(b) (3) of the Act.' Accordingly, and as it appears that the Petitioner admits to membership other than guards, we shall dismiss the petition. [The Board dismissed the petition.] 'Chance Vought Aircraft, Incorporated, 110 NLRB 1342; Boeing Airplane Company, Seattle Division, 116 NLRB 1265. Robert Haws Company and Millmen's Local 1452, United Brother- hood of Carpenters and Joiners of America , AFL-CIO. Case 7-CA-4352(2). October X1,1966 DECISION AND ORDER On July 6, 1965, the Board adopted the Trial Examiner's Decision in this proceeding,' finding that Respondent had unlawfully discrim- inated against certain named employees and ordering that those employees be reinstated to their former or substantially equivalent positions and made whole for any loss of earnings. On September 29, 1965, the Regional Director for Region 7 issued a backpay specification and Respondent filed an answer thereto. On May 10, 1966, a hearing was held before Trial Examiner Herbert Silberman for the purpose of determining the amount of backpay 1 By Executive Secretary 's order, not published in NLRB volumes 161 NLRB No. 22. 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD due the discharged employees. On July 11, 1966, the Trial Examiner issued the attached Trial Examiner's Decision in Backpay Proceed- ing, finding that the specified claimants were entitled to specific amounts of backpay with interest of ,6 percent per annum, running from the dates specified in the Decision. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel' [Chairman McCulloch and Members Fanning and Jenkins]. 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 Trial Examiner's Decision in Backpay Proceeding, Respondent's excep- tions and brief, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. [The Board ordered that the Respondent pay to the employees involved in this proceeding, the amounts set forth in the Trial Examiner's Decision in Backpay Proceeding.'-] 2 The amount of backpay due Jerry Bowen shall be placed in escrow with the Regional Director for Region 7, as recommended by the Trial Examiner , for a period not to exceed 1 year from date of deposit If Bowen is not located within said period of 1 year, the entire sum deposited with the Regional Director by Respondent shall be refunded to Re- spondent. However, the refund of the deposit shall not operate to extinguish Respondent's liability. TRIAL EXAMINER'S DECISION IN BACKPAY PROCEEDING On March 22, 1965, Trial Examiner George J. Bott issued his Decision in the above-entitled proceeding which, among other things, recommended that the Respondent make Jerry Bowen, Robert Giraud, Richard Marshall , and Harry Reyn- olds (herein called the claimants) whole in a manner consistent with Board policy for any loss of earnings they may have suffered by reason of Respondent's discrimination against them . On July 6, 1965, the Board issued an Order that the Respondent take the action recommended in the Trial Examiner 's Decision. Sub- sequently, the Regional Director for Region 7 of the Board , on September 29, 1965, issued ' a Backpay Specification and Notice of Hearing thereon . Respondent, on January 18, 1966, filed an amended answer to the specification . A hearing in this proceeding was held before Trial Examiner Herbert Silberman in Detroit, Michigan, on May 10, 1966. Various motions directed to the pleadings were dis- posed of before the hearing. Respondent's motion to dismiss this proceeding as to Bowen is denied. The Respondent does not dispute the computations set forth in the Backpay Specification regarding the amounts the respective claimants would have earned had they continued working for the Respondent during the periods covered by their respective claims or their net interim earnings. However , various issues are raised by Respondent which are discussed below. As to Richard Marshall The Backpay Specification shows that Marshall 's backpay period commenced on August 31 , 1963, and continued through September 22, 1963 . Respondent's amended answer does not dispute any of the computations set forth in the specification but ROBERT HAWS COMPANY 301 alleges that for "want of information thereof Respondent neither admits.nor denies the allegations as to when Marshall -accepted permanent employment elsewhere" and that he failed to mitigate damages. Marshall was called to testify as a witness in this proceeding. Respondent failed to establish that Marshall was derelict in his obligation to seek other employment following his discharge by the Respondent or for any other reason is not entitled to the net backpay as set forth in the specification. Accordingly, I find that there is due to Richard Marshall as backpay the sum of $ 189.75 plus interest thereon at the rate of 6 percent per annum from September 30, 1963 until the date of payment but less such tax withholdings as are required by Federal or State laws. As to Robert Giraud Giraud was discriminatorily discharged by Respondent on August 30, 1963, at which time his wage rate was $1.65 per hour. He obtained another position with McLouth Steel Company beginning on September 4, 1963, at a wage rate of $2.25 per hour. Giraud was laid off from that position on October 26, 1963. Thereupon, he registered with the Michigan Employment Security Commission to which office he reported weekly. Giraud testified that during this period of unemployment he also conducted an independent search for work every day or every other day and made job inquiries at approximately 30 firms. About November 20 an official of the Michigan Employment Security Commission advised Giraud that he might be eligible for enrollment in a Federal retraining program. Wishing to take advan- tage of this opportunity, Giraud took the aptitude test which was a prerequisite to acceptance for the program. Subsequently he was advised that he had passed the test, and in early December, Giraud made arrangements to enroll in a course of instruction which began on January 7, 1964. Giraud testified that during the period his application for enrollment in the training program was being processed he con- tinued to look for work and to report to the unemployment office. In this regard, on cross-examination by Respondent's counsel, he testified as follows: Q. You were unemployed then from October 26th through Christmas, is that correct? A. Yes. Q. Did you try to secure any temporary Christmas employment? A. Well, I tried all the time. Q. How about something like at the post office? Did you go to the post office? A. The post office? Q. Yes, for Christmas part time work. A. I may have. I don't know whether I did or not. I went to so many places, I don't recall. Q. And you received no calls to go to" work . . . from the Michigan Employment Security Commission? A. No. Q. None at all? A. No. Q. You were registered with them all of this time? A. Yes. On further cross-examination he testified: Q. (By Mr. MILMET.) Mr. Giraud, after you had accepted the retraining program scheduled for January 7th, did you look for work after that date? A. No. On February 7, 1964, Giraud received an offer of reinstatement from the Respondent to which he did not respond because he preferred to continue with his schooling rather than to return to work for the Company. However, Giraud testified that had he. received such offer during the period he was unemployed and before he started school he would have accepted reinstatement. Respondent argues that Giraud would have accepted employment with McLouth Steel Company even if he had not been discharged by the Company and therefore is not entitled to backpay for any period-after September 4, 1963. In support of this contention Respondent relies upon Giraud 's testimony that he had filed an application for employment with McLouth Steel Company approximately 1 month prior to his discharge, that during his lunch hour on August 30, before he was 302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD informed of his discharge, he took further steps to secure a position with McLouth Steel Company and that his employment with McLouth was at a substantially higher wage rate than he was being paid by Respondent. I find this argument to be without merit. Giraud was discriminatorily discharged on August 30, 1963. His loss of work thereafter had an illegal genesis for which Respondent is responsible. "Making the workers whole for losses suffered on account of an unfair labor practice is part of the vindication of the public policy which the Board enforces." 1 The fact of the case is that Giraud did not voluntarily quit his employment with Respondent. It would be contrary to the purposes of the Act to penalize Giraud by reducing the amount of backpay to which he otherwise would be entitled merely because of the speculative possibility that had he not first been discriminatorily discharged he would have voluntarily quit.2 Respondent further argues that Giraud is not entitled to any backpay or Christmas bonus after the first week of December 1963, because he had then ceased to look for work. In support of this contention Respondent relies solely upon the following question and answer: Q. Mr. Giraud, after you had accepted the retraining program scheduled for January 7th, did you look for work after that date? A. No. Viewed in isolation the foregoing might support Respondent's argument. However, Giraud's testimony shows that he reported weekly to the Michigan Employment Security Commission, that in addition he made independent searches for employ- ment and that he was ready, willing, and able to accept employment until the date on which he began school. Thus, when considered in the context of all Gir- aud's testimony concerning his efforts to obtain employment after he was laid off by McLouth Steel Company on October 26, the quoted question and answer does not prove that Giraud had withdrawn himself from the labor market in the first week of December or that he had willfully incurred any loss of earnings. Accord- ingly, I find that Giraud is entitled to the net backpay set forth in the specification for the period from August 31, 1963, through January 7, 1964 (when because of attendance at school he withdrew himself from the labor market), as follows. the sum of $583.70 with interest at the rate of 6 percent per annum until the date of payment, on $123.14 from September 30, 1963; on $356.88 from December 31, 1963; and on $103.68 from March 31, 1964. Such net backpay shall be reduced by such tax withholdings as are required by Federal and State laws. As to Jerry Bowen The specification shows that the backpay period for Bowen commenced on August 31, 1963, and continued through January 31, 1964. General Counsel at the hearing asserted that diligent effort was made to locate Bowen but his where- abouts are unknown. Accordingly, the specification does not show any deductions from the computed gross backpay for net interim earnings. In view of the fact that Respondent has not had an opportunity to examine Bowen to ascertain what, if any, deductions should be made from the computed gross backpay, General Counsel proposes that the total gross backpay as set forth in the specification (Respondent does not dispute the accuracy of this computation) shall be deposited by Respondent with the Regional Director for Region 7 of the Board in escrow subject to the condition that when and if Bowen is located a determination shall be made concerning Bowen's interim earnings, expenses, and other factors which might diminish the total gross backpay set forth in the specification and the total of such deductions shall be returned to Respondent, but if the whereabouts of i Phelps Dodge Corp. v. N L R B., 313 U.S. 177, 197. 2 Furthermore, under the Board's Order, Respondent was required to offer reinstatement to Giraud, although the initial hearing herein was held after Giraud had started to work for McLouth Steel Company. It would be a serious attenuation of this remedial provision were Giraud denied reimbursement for loss of earnings not willfully incurred during the period that he was entitled to reinstatement. "To deny the Board power to neutralize discrimination merely because workers have obtained compensatory employment would con- fine the 'policies of this Act' to the correction of private injuries. The Board was not devised.for such a limited function. It is the agency -of Congress for translating into con- creteness the purpose of safe-guarding and encouraging the 'right. of self-organization." Phelps Dodge Corp. v. N.L.R B., supra, 192-193. I - ROBERT HAWS COMPANY 303 Bowen are not discovered within 2 years the entire sum deposited with the Regional Director shall be returned to Respondent with the understanding that such return does not extinguish Respondent's backpay liability as to Bowen Respondent, citing N L.R.B. v. Mastro Plastics Corporation, 354 F 2d 170, 178 (C.A. 2), contends in effect that the proceedings should be dismissed as to Bowen. In Mastro Plastics the court refused to enforce an awaid of backpay to Isiah Smith, who at the time of the backpay hearing was known to be a Florida attorney, because the disciiminatee did not appear at the hearing and because no un- usual circumstances were shown to justify his failure to appear. However. the court specifically stated, "[n]or do we mean to condemn the Board's practice of requiring payment of the gross back pay figure into escrow when a d'sciim natee has not appeared initially. The finding of an unfair labor practice and discrimina- tory discharge is presumptive proof that some back pay is owed by the employer. Therefore, to ensure by use of the escrow technique that funds will be available when a disciimmatee is finally located and produced is entirely appropriate " I find that General Counsel's suggestion of an escrow procedure is appropriate in this case. However, because more than a year has elapsed since the Decision by Trial Examiner Bott in this case,3 I am of the opinion that the escrow period should not exceed 1 year rather than 2 years as requested by General Counsel Accordingly, I direct that the Respondent deposit with the Regional Director for Region 7 of the Board the sum of $1,360.13 with interest at the rate of 6 percent per annum to the date of deposit, on $214.88 fiom September 30, 1963; on $831 75 from December 31, 1963; and on $313.50 from March 31, 1964. Said sum shall be held by the Regional Director in escrow subject to the condition that if Bowen shall be located within a period of 1 year from the date of deposit a determination (including a further hearing if requested by Respondent) shall be made as to the amount by which the gross backpay for Bowen set forth in the specification shall be reduced by reason of net interim earnings and other relevant factors and said difference plus such tax withholdings as are required by Federal and State laws shall be refunded to Respondent, but if Bowen shall not be located within said period of 1 year the entire sum deposited with the Regional Director by Respond- ent shall be refunded to Respondent. In the latter instance the refund of the deposit shall not operate to extinguish Respondent's liability on account of any backpay which may be due Jerry Bowen. As to Harry Reynolds The specification shows the backpay period for Harry Reynolds commenced on August 30, 1963, and continued through April 2, 1964. Reynolds is a cabinet maker. He was being paid $1.75 per hour at the time of his discharge. Promptly following the termination of his employment on August 30 he began to search for other work.4 He sought the assistance of Mr. Shriver, the business agent of the Union, but the lead given him by Shriver was not fruitful. He applied for work at another company in Detroit, also without success. About a week after his dis- charge he left Detroit and went to Branchland, West Virginia, where he continued his search for employment. His search for employment in West Virginia covered a radius of approximately 50 miles, but meeting no success in these efforts he extended his search for work to Dayton and Columbus, Ohio. While there he registered for employment with the Ohio State Employment Service. In November 1965 he obtained a job with Parsons Linoleum in Columbus as a plastic laminator at $2.50 per hour. At the end of his first day of work he was informed that he did not have the qualifications for the job. His employer inquired whether he wished "to stay on the job training" at a lower rate of pay. Reynolds refused to accept the position of trainee. Reynolds returned to West Virginia where he continued to look for employ- ment. Then in March 1964 he went to Detroit in search for work. During his period of unemployment Reynolds obtained several temporary posi- tions. One of the jobs that he obtained was with General Wood Products Co. which job, according to Reynolds, he quit after 4 days "because I wasn't physically able to do the work." During the period covered by the specification, Reynolds conscientiously looked for work and Respondent did not contend otherwise. However, Respondent argues 8 Jerry Bowen did not testify in that proceeding. 4 Reynolds testified that he believes be registered for employment with the Michigan Employment Security Commission. 304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that for the reasons discussed below additional deductions should be made from the gross backpay computed in the specification. First, Respondent argues that Reynolds "removed himself from Detroit, an area of job opportunity to an economically depressed area of less opportunity-West Virginia," and such move constituted a willful loss of wages. This argument is not sound as applied to the facts in this case. A discriminatorily discharged employee is required to exercise reasonable efforts to mitigate his loss of earnings by seeking other suitable employment. However, there is no requirement that his search for employment must be limited to the geographical area where he had been working when he was discriminatorily discharged and there is no evidence in the record which suggests that Reynolds exercised unreasonable bad judgment in leaving Detroit to look for work elsewhere. Furthermore, immediately following his dis- charge Reynolds did not look for employment and after he left that city he did not restrict his search for employment to West Virginia but also went to the State of Ohio and ultimately returned to Detroit. In these circumstances, contrary to Respondent, I find that the various moves Reynolds made in the course of his search for employment do not constitute any willful loss of earnings. Second, Respondent, referring to Reynolds' experience at Parsons Linoleum Co., contends that "once having found employment at a higher rate than he was earning at Respondent's company, [Reynolds] had an obligation to continue working there and his failure to do so can be only construed as willfully incurred loss of wages." However, the facts of the case do not support the agrument. Reynolds obtained a position with Parsons as a plastic laminator for which position his lack of quali- fication immediately became manifest. He did not voluntarily quit this job but was terminated. However, his employer offered him another position as a trainee. Reynolds is a cabinet maker. Work in the linoleum or plastic laminating industry was foreign to his trade and past experience. He was offered a position as trainee in such different trade less than 2 months after he had been discharged unlawfully by the Respondent. Such job did not constitute an offer of suitable employment. Reynolds was not required to train in a new trade before he exhausted all reason- able opportunities to find employment compatible with his skills and experience. Therefore Reynolds did not willfully incur any loss of earnings by refusing to accept a position as a trainee in an unrelated occupation so soon after his unlawful discharge. Finally, Respondent refers to Reynolds leaving the job he had with General Wood Products as a failure in his affirmative duty to mitigate damages. However, Reynolds' testimony is uncontroverted that he was physically unable to do the work. In such circumstances quitting the position did not constitute a willful loss of earnings. I find that Reynolds is entitled to the net backpay set forth in the specification. Accordingly, I find that there is due to Harry Reynolds as backpay the sum of $1,556.67 plus interest at the rate of 6 percent per annum to the date of payment, on $250.69 from September 30, 1963; on $899.88 from December 31, 1963; and on $406.10 from March 31, 1963. The sum due to Reynolds shall be reduced by such tax withholdings as are required by Federal and State laws. I direct that the Respondent make the payments, or deposit on account of the backpay due, to the claimants in accordance with the findings above set forth. Sedgwick Furniture, Inc. and Outlet Furniture, Inc. and General Drivers, Salesdrivers, Warehousemen & Helpers, Local Union 245, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Petitioner. Case 17-RC-4961. October P21,1966 DECISION AND DIRECTION Pursuant to a stipulation for certification upon consent election executed on February 8, 1966, an election by secret ballot was con- ducted on February 16, 1966, under the direction and supervision of 161 NLRB No. 25.