Sedgwick Furniture, Inc.

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 21, 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. SEDGWICK FURNITURE, INC. 305 the Regional Director for Region 17, among the employees in the appropriate unit. At the conclusion of the election, the parties were furnished with a tally of ballots which showed that of approximately 15 eligible voters, 15 cast ballots, of which 6 were for and 5 against the Petitioner, and 4 were challenged. The challenged ballots were sufficient in number to affect the results of the election. In accordance with the National Labor Relations Board Rules and Regulations and Statements of Procedure, Series 8, as amended, the Regional Director conducted an investigation and, on March 16, 1966, issued and duly served upon the parties his report on challenged ballots in which he recommended that the National Labor Relations Board direct a hearing in order to resolve the issues with respect to unit placement and voting eligibility of the four individuals whose ballots were challenged. As no exceptions were filed to the Regional Director's report within the time provided therefor, the Board adopted the Regional Direc- tor's recommendation as contained in his report and, on March 31, 1966, issued an Order remanding the case to the Regional Director with instructions to hold a hearing with respect to the challenged ballots. Pursuant to that Order, the Regional Director issued a notice of Bearing and designated R. L. DeProspero as Hearing Officer. A hear- ing was held on April 19 and 26, 1966, at which all parties to these proceedings were represented by counsel and were afforded full opportunity to, be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. On June 10, 1966, the Hearing Officer issued his report on chal- lenged ballots in which he recommended that the Board sustain the challenges to the ballot of Robert E. Brickner, and that the Board overrule the challenges to the ballots of Catherine Wilcher, Eugene J. Blades, and Louis Williams. The Hearing Officer further recom- mended that these three challenged ballots be opened and counted. Thereafter, the parties filed timely exceptions to the Hearing Officer's report. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Board has delegated its powers in connection with this case to a three-member panel [Chairman McCul- loch and Members Brown and Zagoria]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act and it will effectuate the policies of the Act to assert juris- diction herein. 2. The Petitioner is a labor organization claiming to represent certain employees of the Employer. 264-188-67-vol. 161-21 306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. A question affecting commerce exists concerning.,the representa- tion of the employees of the Employer within the meaning of Sec- tions 9(c) (1) and 2(6) and (7) of the Act. 4 The parties stipulated, and we find,-that the following employees constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All truckdrivers, helpers, finishers, warehousemen, and shipping and receiving clerks employed by Sedgwick Furniture, Inc., and Outlet Furniture, Inc., Springfield, Missouri, excluding salesmen, office clerical employees, professional employees, -guards, and super- visors as defined in the Act. 5. The Board has reviewed the rulings made by the Hearing Officer at the hearing and finds that no prejudicial error has been committed. The rulings are hereby affirmed. The Board has considered the Hearing Officer's report, the Petitioner's and Employer's exceptions thereto,' and the entire record in this case, and hereby adopts the Hearing Officer's findings and recommendations with regard to the challenged ballots, with the exception of his recommendation to over- rule the challenge to the ballot cast by Catherine Wilcher. The Petitioner challenged Wilcher's ballot on the ground that, since she was a cleaning maid, her work category was not embraced by any of the five classifications specifically stipulated to by the parties for inclusion in the unit. Although the Hearing Officer found that Wilcher was in fact performing maid's work at the time of the election, he nonetheless further found that she should be included in the unit. In reaching the latter conclusion, the Hearing -Officer rea- soned that, since the parties had neither included nor excluded the classification of maid from the stipulated unit, their failure to specify her unit placement requires that the Board make this determination. The Hearing Officer thereupon decided to include the maid, based on her community of interest with other unit 'employees, and he recommended that the challenge to her ballot be overruled. Petitioner excepts to this recommendation, and we find merit in the exception. The unit to which the parties stipulated and which we have found appropriate has no generic description, but, as noted, reflects that five specific classifications, only, are to be included, and that five specific classifications are to be excluded. "Maid" is not specifically included or excluded. In these circumstances, we find that the failure of the parties to include the classification of maid clearly indicates their intention that such a classification should not be a part of the i The Petitioner's and Employer's exceptions to the Hearing pfficer's report with respect to the challenges to the ballots of Blades, Williams, and Brickner , in our opinion, raise no material and substantial issues which would warrant reversal of the Hearing Officer's find- ings, conclusions, and recommendations as to these three ballots. ELECTRO CONTROLS, INC. 307 unit complement. The Hearing Officer's contrary finding with respect to her unit placement is thus inconsistent with the parties' intention and would constitute a departure for their stipulation which was approved by the Regional Director. We find, therefore, that Wilcher is not included in the appropriate unit, and we sustain the challenge to her ballot. However, as we have adopted the Hearing Officer's recommenda- tions that we overrule the challenges to the ballots of Blades and Williams,2 we shall direct that their ballots be opened and counted and that a revised tally of ballots be prepared. [The Board directed that the Regional Director for Region 17 shall, within 10 days from the date of this Direction, open and count the ballots of Eugene J. Blades and Louis Williams, and serve on the parties a revised tally of ballots and take such steps as may be necessary in accordance with Board Rules and Regulations, Series 8, as amended.] 2 See Snap-Out Binding & Folding, Inc., 160 NLRB 161. Electro Controls, Inc. and International Brotherhood of Electri- cal Workers, Local No. 354, AFL-CIO. Cases 27-CA-1843 and 1904. October 24,1966 DECISION AND ORDER On 'April' 28, 1966; Trial Examiner Irving Rogosin issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in certain unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take cer- tain affirmative action, as set forth in the attached Trial Exami ner's Decision. The Trial Examiner also found that Respondent had not engaged in certain other unfair labor practices and recommended that such allegations of the complaint be dismissed. Thereafter, the Gen- eral Counsel 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 these cases to a three-member panel [Chairman McCulloch and Members Fanning and Jenkins]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. 161 NLRB No. 26.