Belle Steel Co., Inc.

National Labor Relations Board - Board Decisions

Feb 28, 1962

135 N.L.R.B. 1378 (N.L.R.B. 1962)

1378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT discharge or otherwise discriminate against any employee in
order to discourage membership in, affiliation with, or support of Building
Service Employees International Union , Building Service & Maintenance Union
Local No. 47, AFL-CIO.
WE WILL NOT interrogate any employees concerning whether they or any
other employees have signed union cards or have in any other manner sup-
ported or assisted the above -named or any other labor organization.
WE WILL NOT threaten any employees with discharge or other reprisals for
affiliating with, or supporting , or for refusing to withdraw affiliation or support
from , the above-named or any other labor organization.
WE WILL NOT promise or grant raises or other benefits as inducements
against affiliating with or supporting , or as inducements to employees to with-
draw their affiliation or support from , the above-named or any other labor
organization.
WE WILL NOT in any other manner interfere with , restrain , or coerce our
employees in the exercise of their right to self-organization , to forma labor
organization , to join Building Service Employees International Union , Building
Service & Maintenance Union Local No. 47, AFL-CIO, or any other labor or-
ganization , to bargain collectively through representatives of their own choos-
ing, and to engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection , or to refrain from any and all such
activities.
WE WILL offer Karin Kupp, Ilene Kurdelaid , and Susan (Zsuzsanna) Boda-
heli immediate and full reinstatement to their former or substantially equivalent
positions , without prejudice to their seniority or other rights and privileges, and
make them whole for any loss of pay suffered as a result of the discrimination
against them.
PHYSICIANS & SURGEONS BUILDING, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof , and must not be
altered, defaced , or covered by any other material.
Belle Steel Company, Inc. and International Brotherhood of
Boilermakers, Iron Ship Builders, Blacksmiths , Forgers and
Helpers, and its Local 651, AFL-CIO. Case No. 1-CA-:817.
February 28, 1962
SUPPLEMENTAL DECISION AND ORDER
On June 8, 1961, the Board issued a Decision and Order in the
above entitled case, finding, inter alia, that the Respondent had dis-
charged Joseph F. Miller in violation of Section 8(a) (1) and (3) of
the Act, and ordering it to make Miller whole for any loss of pay
suffered by reason of its discrimination against him.'
By a stipulation executed on September -13, 1961, by all the parties,
the Respondent agreed to comply with the Board's Order except that
it reserved its right to contest the amount of backpay found to be due.
After efforts to settle the backpay issue failed, the Regional Director
for the First Region, on October 18, 1961, issued a bacl.-pay specifi-
cation, and, on November 3, 1961, the Respondent filed an answer
1131 NLRB 1083
135 NLRB No. 114.
BELLE STEEL COMPANY, INC. 1379
thereto. Upon appropriate notice issued by the Regional Director, a
hearing was held before Trial Examiner James V. Constantine for
the purpose of determining the amount of backpay due.
On December 19, 1961, the Trial Examiner issued his Supplemental
Intermediate Report, a copy of which is attached hereto, in which he
found that Miller was entitled to payment by the Respondent of
$2,125. Thereafter, the Respondent filed exceptions to the Supple-
mental Intermediate Report, a supporting brief, and a motion to
remand for further hearing, and the General Counsel filed a sup-
plemental brief
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
Brown].
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 .2 The Board has considered the entire
record in this case, including the Supplemental Intermediate Re-
port, and the exceptions and briefs, and hereby adopts the findings,
conclusions,' and recommendations of the Trial Examiner.
ORDER
Upon the entire record in this case, the National Labor Relations
Board hereby orders that the Respondent, Belle Steel Company,
Inc., Boston, Massachusetts, its officers, agents, successors, and as-
signs, shall pay to Joseph F. Miller net backpay in the amount of
$2,125.
z The Respondent's motion to remand to take further evidence as to the value of services
performed by Miller for his nephew is hereby denied as we agree with the Trial Examiner
that the services in question did not rise to the stature of earnings Moreover, the
burden of proof on this issue rests on the Respondent, which did not meet it at the hear-
ing, and did not request additional time at the hearing for this purpose.
3 The Trial Examiner did not pass upon the Respondent 's contention that Miller for-
feited his right to backpay by failing to disclose interim earnings prior to the hearing,
on the ground that no evidence on this point had been introduced As there was no evi-
dence showing that Miller failed , prior to the hearing, to disclose interim earnings such
as would reduce the amount of the Respondent's backpay liability, we find no merit in
the Respondent 's contention
SUPPLEMENTAL INTERMEDIATE REPORT
This proceeding , following the Board 's Decision and Order dated June 8, 1961,
was scheduled for the purpose of determining the amount of backpay due to Joseph
F. Miller. Pursuant to due notice, it was heard by James V. Constantine , the duly
designated Trial Examiner, on November 14, 1961, at Boston , Massachusetts, on
the backpay specification and Respondent's answer thereto. All parties were repre-
sented at and participated in the hearing, and were given full opportunity to be heard,
to examine and cross -examine witnesses , to present oral argument , and to file briefs.
At the close of the hearing, the General Counsel argued orally. Briefs have been
received from the General Counsel and the Respondent.
1380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, including stipulations of the parties and official
notice of the Board 's Decision and Order, and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
On June 8, 1961, the Board issued its Decision and Order, reported in 131 NLRB
1083, commanding , in pertinent part, that Respondent offer to reinstate , and make
whole, Joseph F. Miller whom the Board found to have been discriminatorily dis-
charged by the Respondent.
By stipulation executed by all the parties, Respondent conceded the validity of
the Board 's Order and agreed to comply with and not to object to said Order, ex-
cept that Respondent reserved the right to contest before a Trial Examiner and the
Board and , if judicial proceedings are necessary to enforce or review the Board's
backpay determination , before the court, any amount of backpay found to be due.
Efforts were made to resolve the amount of backpay due to Miller by means of in-
formal negotiations . These attempts having failed , the Board 's Regional Director
for the First Region issued the backpay specification and notice of hearing herein.
At the hearing certain concessions by the Respondent resulted in a ruling by me,
concurred in,by Respondent, that the General Counsel had made out a prima facie
case and that Respondent should go forward with its case. These concessions show
that the parties agreed that: (1) Miller's backpay period begins October 7, 1960,
and ends March 31, 1961; ( 2) Miller's average weekly earnings with the Respondent
during this period would have been $ 85 a week; and ( 3) if no defense is established,
the backpay due Miller is $2,125.
Respondent's answer setting up its affirmative defenses in substance alleges that:
(1) Miller failed in his duty to obtain other employment "or to minimize his
damages"; (2) Miller withheld information as to his employment during the period
between his discharge and offer of reinstatement , and (3) accordingly , Miller "should
not be entitled to any backpay."
Strictly speaking, Respondent 's second defense does not assert that any interim
wages were earned, or , if received, should be deducted from the gross backpay of
$2,125. Nevertheless, I have construed it broadly to encompass an affirmative de-
fense that interim earnings were received and should be used to reduce the amount
of backpay due.
Only Miller and his nephew , Arthur Miller, testified as witnesses for the Respond-
ent. In some minor respects some variance exists between the testimony of Arthur
and Joseph, but in the great majority of instances they agree. The following findings
are based on the testimony which I have credited.
For about 2 years prior to the date of the hearing on November 14, Joseph Miller
often worked on Saturdays for his nephew, Arthur Miller, who operated the Arthur
Miller Disposal Company. This consisted in picking up and dumping rubbish on a
truck which he operated over a route which Joseph knew well and for which he at
first received $10 a Saturday. At some later date his remuneration was increased
to $12 a day, and he sometimes received $15 a day if he performed additional work.
His average Saturday work lasted from 31/2 to 5 hours. This Saturday work which
averaged $24 a month, continued during the backpay period and since his reinstate-
ment. However, the social security record of Joseph for this period does not dis-
close any wages received from Arthur.
Arthur's checkbook shows that, during the backpay period , he made payments of
$35, $35, and $30 ( totaling $100 ) which were in addition to the compensation re-
ceived by Joseph for Saturday work. Arthur testified that this $100 was a loan to
his uncle and that it has since been repaid . I accept Arthur's explanation.
Neither of the foregoing classes of payments from Arthur to Joseph , I find , consti-
tutes interim earnings which may be deducted from the gross backpay of $2,125.
The Saturday work amounted to a second job or independent source of income while
Joseph was employed by Respondent, and which he could continue to perform after
his discharge without being required to deduct the compensation therefor from any
amount found due in a backpay determination . Link-Belt Company, 12 NLRB 854,
872. And manifestly the $100 loan cannot be treated as interim earnings.
However, it is clear that during the backpay period Joseph also helped Arthur by
performing substantially the same kind of work on some weekdays other than
Saturdays . Joseph testified that he performed such non-Saturday work only because
he wanted Arthur to help him in the construction of a room in the basement of
Joseph 's home, and a walk at such home. Arthur performed such work at Joseph's
home on Sundays or at night. As Joseph put it, whenever he asked Arthur for
help at Joseph 's home Arthur would do so if Joseph would help Arthur in Arthur's
BELLE STEEL COMPANY, INC. 1381
rubbish disposal business on days other than Saturdays. Arthur corroborated this.
Arthur also testified that when Joseph is at Arthur's place of business "if I [Arthur]
got stuck I used him [Joseph]." Joseph performed such non-Saturday work once
or twice a week for a few hours in the morning. Unlike the Saturday work, which
Joseph performed alone, Joseph performed the weekday work as a helper for
Arthur who accompanied him.
In some cases an arrangement to perform services in return for another's services
may result in intervening earnings even though neither party receives cash for the
work he renders. See Empire Worsted Mills, Inc., 53 NLRB 683, 693-695. But
such an arrangement must be convincingly established and shown to amount to a
firm mutual agreement . I find that no such firm arrangement- exists here; rather,
I find that Joseph on weekdays occasionally lent a hand to his nephew without any
hope or expectation of recompense. I further find that such gratuitous services'do
not rise to the stature of earnings . Cf. L. B. Hosiery, Incorporated, et al., 99 NLRB
630, 632. In any event, the state of the record is inadequate to permit the making
of an accurate evaluation of the services performed by Joseph. Not only is the
record unsatisfactory as to the number of occasions when Joseph assisted his uncle,
but it contains no competent evidence as to the fair market value of such services.
Joseph's Saturday work is not a criterion because he worked alone, not-as a helper,
on Saturdays. Accordingly, I find that Joseph had no interim earnings which re-
sulted from his non-Saturday work for Arthur.
One more issue remains. It is whether Joseph Miller, in the words of paragraph 4
of the answer, "failed in his duty to secure other employment and/or to minimize
his damages." On this question Respondent has the burden of proving its defense,
i.e., showing a failure to make reasonable search for other employment. Southern
Silk Mills, Inc., 116 NLRB 769, 770, enforcement denied on other grounds 242 F. 2d
697 (C.A. 6), cert. denied 355 U.S. 821. On this point Respondent's evidence may
be abridged as follows:
Because he had no money, Joseph was often forced to obtain transportation in
looking for employment by riding on Arthur's truck. Although every time he did
go out on Arthur's truck, Joseph sought employment, nevertheless he did not succeed
in finding a job. He went to almost every contractor on the route, and to other
employers as well, some of whom he remembered to be: Leland Construction,
Lexington; I Wakefield Moving and Storage, Wakefield; Greyhound Van Lines,
Wakefield; Schofield Farms; Wakefield Bank & Savings; Curley Fuel and Oil, Wake-
field; Schofield Oil Co., Greenwood; Lindstrom Movers, Melrose; Warren Bros. Con-
struction Co., Saugus; Hickey Foundry, Wakefield; Commonwealth Metal Craft,
Wakefield; G & W Trucking Co., Lexington; Letes Trucking Co., Waltham; R & M
Ormes, Woburn; A. C. Spark Plugs, Wakefield; Davis Trucking, Malden. Joseph
also registered with the "Employment Security Office" at Malden; but, although he
reported there weekly, that office did not refer him to any work. On this evidence
I find that Respondent has failed to show that Joseph willfully incurred loss of
earnings or that he failed in his duty to obtain other employment. Accordingly, I
find that Joseph was not voluntarily unemployed. Cf. Harvest Queen Mill, et al,
90 NLRB 320, 324. I further find that Joseph engaged in adequate and reasonable
diligence in seeking appropriate employment.
Accordingly, I find nothing in the record (1) to support Respondent's contention
that Joseph Miller is not entitled to backpay as alleged in the backpay specification
or (2) to reduce the amount of $2,125 claimed to make him whole. No evidence
has been introduced showing that Joseph has failed to disclose interim earnings
"prior to the hearing," as argued in the Respondent's brief in support of one of
Respondent's defenses. Hence I do not pass upon the question, raised by Respond-
ent, that Joseph has forfeited all backpay by his failure to disclose such earnings.
CONCLUSION AND RECOMMENDATION
Upon the foregoing findings and the entire record, I find and conclude that Joseph
Miller is entitled to payment by Respondent of the sum of $2,125 to make him
whole pursuant to paragraph 2(a) of the Board's Decision and Order of June 8,
1961, as reported in 131 NLRB 1083.
I recommend that the Board adopt the above findings and conclusion and enter
an order directing Respondent to pay to Joseph Miller the amount recommended
herein, i.e., $2,125.
'All places enumerated in this paragraph are located In Massachusetts