Brotherhood of Painters, Etc.

National Labor Relations Board - Board Decisions

May 15, 1957

117 N.L.R.B. 1596 (N.L.R.B. 1957)

1596 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. All technical employees at the Employer's Chattanooga, Ten-
nessee, division, including draftsmen "A" and engineering draftsmen
"A," draftsmen "A" checkers, draftsmen designers and checkers as
well as engineering draftsmen designers and checkers, estimators
grade II, and laboratory technicians grade IT, but excluding inspectors
and assistant inspectors, welding technicians, all other employees,
co-op students, guards, and supervisors as defined in the Act.
B. All professional employees at the Employer's Chattanooga, Ten-
nessee, division, excluding all other employees and supervisors as de-
fined in the Act.
[Text of Direction of Elections omitted from publication.]
Brotherhood of Painters , Decorators & Paperhangers of America,
Carpet, Linoleum and Resilient Tile Layers Local Union No.
419, AFL-CIO, and George Cooney, Business Agent [Spoon Tile
Companyl and Charles Myers, Jr., A. R. Mick, B. F. Carls, Art
Cassias. Cases Nos. 30-CB-46, 30-CB-47, 30-CB-48, and 30-CB-
19. May 15, 1957
SUPPLEMENTAL DECISION AND ORDER
On November 18, 1955, the Board issued its Decision and Order in
the above-entitled proceeding,' finding, inter alia, that the Respond-
ents had violated Section 8 (b) (1) (A) and (2) of the Act by causing
the Company to discriminate against the four Charging Parties herein,
and ordering the Respondent Union to make these employees whole
for any loss of pay which they might have suffered as a result of the
discrimination against them. On May 29, 1956, the Board, having
been administratively advised that the Respondents had requested that
a back-pay hearing be conducted, ordered the Regional Director to
serve upon the Respondents a back-pay specification as provided in
Section 102.51a and 102.51b of the Board's Rules and Regulations,
and thereafter to proceed under Section 102.51c to 102.51h of the
Rules.2 Such specifications were served on the Respondents on July
26, 1956, and later amended. The Respondents filed an answer to the
specifications on August 8,1956.
After a hearing on October 16-18, 1956, pursuant to due notice to
all parties, Trial Examiner James R. Hemingway, on December 11,
1956, issued his Supplemental Intermediate Report, attached hereto,
in which he found specified amounts of back pay to be due the four
discriminatees. Thereafter the Respondents and the General Counsel
1114 NLRB 1171.
2 On June 12, 1956, the Board petitioned the United States Court of Appeals for the
Tenth Circuit for enforcement of its Order. On February 26, 1957, the court granted
enforcement of the Board 's Order insofar as it is pertinent to this proceeding.
117 NLRB No. 206.
BROTHERHOOD OF PAINTERS, ETC. 1597
filed exceptions to the Supplemental Intermediate Report, and sup-
porting briefs.
Pursuant to the provisions of Section 3 (b) of the Act, as amended,
the Board has delegated its powers in connection with this proceeding
to a three-member panel [Chairman Leedom and Members Murdock
and Rodgers].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.3
The rulings are hereby affirmed. The Board has considered the Sup-
plemental Intermediate Report, the exceptions and briefs, and the
entire record in these cases, and hereby adopts the findings, conclu-
sions, and recommendations of the Trial Examiner with the following
exceptions and modifications.
1. The Trial Examiner found that the four discriminatees were
not entitled to back pay for the period October 20-22, 1954, because
they did not apply to the Respondents after their discharge to see if
any work they customarily performed was available in the area. We
disagree.
The four complainants were discriminatorily discharged by Spoon
Tile Company at the behest of the Respondents on Monday, October
18, 1954. The next day, October 19, they filed unfair labor practice
charges with the Board against the Respondents. The Trial Examiner
found that the discriminatees did not need to apply to the Respondents
that day but should have contacted them the following day.
The record shows that employers of union labor of the type here
involved customarily look primarily to the Respondents in order to
secure the employees they need. Accordingly, the Trial Examiner
concluded that, in order for the complainants to have made reasonable
efforts to obtain other employment during the period of their dis-
charge, it was incumbent upon them to turn immediately to the very
parties that were responsible for their discriminatory dismissal and
request the Respondents' aid in finding work. To the contrary, we
believe that, under all the circumstances present here, the complainants
were reasonably diligent and therefore did not, prior to the time of
their initial application,4 have the duty to apply to the Respondents
for job referrals in order to meet the Board's requirement that discrim-
inatees must make a reasonable search for other employment during
the period of their discrimination.5 We therefore find that the 4
'We find no merit in the Respondents ' contention that the Supplemental Intermediate
Report "contains numerous derogatory remarks concerning respondents which are un-
founded , improper , and should be stricken " We have carefully reviewed the Inter-
mediate Repoit and we are of the opinion that the Trial Examiner has been fair and
impartial in his treatment of all parties and that his " remarks" which the Respondents
feel are deiogatory are based upon the record and necessary to the findings and con-
clusions herein
4 The four discriminatees applied to Cooney for job referrals at various times beginning'
with Saturday, October 23, 1934
5 See Southern Stlk Mills, 116 NLRB 769.
1598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
complainants are entitled to receive back pay for this 3-day period
in amounts that they would have earned working for Spoon Tile
Company, i. e., $2.57 an hour for a total of 24 hours, or $61.68 apiece.'
2. As Spoon Tile Company did not have any work to perform on
November 4, 5, and 6, 1954, it did not employ any employees on those
days. Accordingly, in computing the sum that the 4 discriminatees
would have earned in the Company's employ but for their unlawful
discharge, the Trial Examiner correctly did not include these 3 days.
However, in computing total interim earnings, which are deducted
from the foregoing gross back pay in determining net back pay due,
the Trial Examiner incorrectly included the sums which Myers and
Cassias earned while working for other employers on November 4 and
5 and which Carls earned during this period as an independent con-
tractor. Also, in finding that Mick and Carls were not entitled to
receive back pay for certain periods during the period of the discrimi-
nation against them-the former because he made no reasonable effort
to find other employment and the latter because he unreasonably re-
fused an offer of other employment-the Trial Examiner incorrectly
included November 4 and 5 in computing the amounts to be deducted
as willful loss from their net back pay.'
Board practice is that during a period when no gross earnings are
attributable to a discriminatee , as here for November 4, 5, and 6, no
deductions are made either for interim earnings or willful loss during
this same time.6 The reason for this rule is that, under these circum-
stances, there is no occasion for the discriminatee to attempt to mini-
mize his loss of earnings, as there would have been none during this
time, even if he had not been unlawfully discharged. Accordingly, in
conformity with our findings herein, we find that the amount of back
pay due each of the claimants is to be computed as follows :
Myers :
Gross back pay_________________________________ $469.77
Less interim earnings :
October 12-15, 1954__________________ $40.00
October 25, November 2-3, 1954_______ 61. 68
November 8-9, 1954 ------------------ 41. 12 142. 80
Net back pay due_________________________ 326.97
U The Trial Examiner found that Myers, in any event , would not have been available
for employment on October 22, as his truck which he used in order to get to work was
being repaired that day. As there is nothing in the record indicating that Myers would
not have been able to secure another mode of transportation if work had been available
for him, we shall grant him back pay for that day.
7 In determining the amount to be deducted from net back pay for willful loss of other
earnings during the period of unlawful discharge the Board assumes that any other
employment would have yielded earnings equal to that of the work from which the dis-
criminatee had been discharged . Latister-Kauffman Aircraft Corporation, 63 NLRB 1367.
The Trial Examiner followed this formula.
8 Ibid.
BROTHERHOOD OF PAINTERS , ETC. 1599
Mick :
Gross back pay--------------------------------- $449.21
Less interim earnings, October 12-15, 1954-------- 40.00
Net back pay--------------------------------- 409.21
Less unreasonably incurred loss, October 25-Novem-
ber 3, 1954: 64 hours at $2.57 an hour and 10 hours
at $3.86 an hour 9----------------------------- 203. 08
Back pay due------------------------------- 206.13
Carls :
Gross back pay--------------------------------- 449.21
Less interim earnings :
October 12-15, 1954------------------ $40.00
October 25-27, 1954------------------ 57. 83 97. 83
Net back pay----------------------------- 351.38
Less unreasonably incurred loss, November 3, 1954:
8 hours at $2.57 an hour------------------------ 20. 56
Back pay due------------------------------- 330.82
Cassias :
Gross back pay--------------------------------- 428.65
Less interim earnings :
October 12-15, 1954----------------- $40.00
October 25, 27-29, and November 1-3,
1954----------------------------- 143.92 183.92
Net back pay due----------------------- 244.73
e Mathematical errors in the Trial Examiner 's computation of the amount of loss
unreasonably incurred during this period are corrected herein.
ORDER
Upon the basis of the foregoing Supplemental Decision and the
entire record in these cases, the National Labor Relations Board here-
by orders that the Respondent, Brotherhood of Painters, Decorators
& Paperhangers of America, Carpet, Linoleum and Resilient Tile
Layers Local Union No. 419, AFL-CIO, its officers, agents, successors,
and assigns, shall pay to the discriminatees involved in this proceeding
as back pay due the amounts set out below opposite their names, as
follows :
Charles Myers, Jr------------------------------- $326. 97
A. R. Mick------------------------------------- 206.13
B. F. Carls------------------------------------- 330.82
Art Cassias------------------------------------ 244.73
1600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
SUPPLEMENTAL INTERMEDIATE REPORT
I. PROCEDURAL SUMMARY
On November 18, 1955, the Board issued a Decision and Order i in the above-
entitled proceedings, finding, among other things, that the Respondents had caused
Spoon Tile Company to discriminate against the four Charging Parties. In its
Order, the Board directed the Respondent Union to make whole the four employees
for any loss suffered as a result of the discrimination against them. On May 29,
1956, the Board, stating that it had been administratively advised that the Respondent
had requested that a back-pay hearing be conducted, ordered the Regional Director
to serve upon the Respondent a back-pay specification as provided in Section 102.51a
and 102.51b of the Rules and Regulations as amended August 16, 1955, and there-
after to proceed under Section 102 51c to 102.51h of the Rules and Regulations.
Such specifications were served on the Respondent on July 26, 1956, and were later
amended. The Respondent filed an answer to the specifications on August 8, 1956.
Pursuant to notice, a hearing on the back-pay specifications was held before me in
Denver, Colorado, on October 16, 17, and 18, 1956 At the opening of this hearing
the Respondent stated that it was taking the position, raised in its answer, that
under the Board's Rules and Regulations, Section 102.51a, the decree of a court was
a prerequisite to a back-pay proceeding. Noting that the rule referred to specifies
the procedure to be followed by the Regional Director on his own initiative after
court decree, that it does not state that the Board itself may not order an earlier
hearing on back pay, that in this case the Respondent requested a hearing on back
pay, that the proceedings herein would not conflict with the status of the case now
pending before the Court of Appeals for the Tenth Circuit, and that findings herein
might enable the parties to effect a settlement of the case before the court renders
its decree, I proceeded with the hearing herein. At the opening of the hearing the
General Counsel introduced amended specifications to include certain claimed over-
time pay not included in the original specifications and the Respondent asked that
its answer stand to the amended specifications.
II FINDINGS OF FACT
The Board, in its Decision, found that each of the four employees on each of the
days from October 12 to 15, inclusive, 1954, was given report-in-time pay of $10.
It further found that the four were discharged on either October 15 or 18 The
evidence adduced here fixes the date more certainly as October 18. Except for one
instance of an offer of a specific job earlier, I shall therefore summarize the activi-
ties of each discriminatee starting from the time of the notice to him on October 18,
1954, that his services were terminated until he was reinstated.
A. Ef}orts to obtain other employment
1. Charles Myers, Jr.
Myers left the location of the Spoon Tile Company about noon on October 18
and returned home. He made no effort that day to look for work. On October 19
Myers, like each of the others, went to the local office of the Board to file a charge.
He spent the entire day there, giving information and signing a statement.
Between October 20 and 25, 1954, Myers' efforts to find work were limited to tele--
phoning Baker, the Spoon Tile foreman, and attempting unsuccessfully to reach
Cooney by telephone. ^ He testified that he telephoned the Union Hall twice on.
October 20, leaving word the second time that he would telephone again the next
day. He did not ask that Cooney call him because he did not have a telephone.
He might have,'but did not, so'far as the evidence discloses, leave a message for:
Cooney to assign him,to work for an employer whose identity he could learn when,
he called the Union Hall in the morning. On October 21, he testified, he telephoned'
the Union at 8 a. in. and again close to noon and he testified that Cooney was
reported "not in" both times. On the afternoon of October 21, Myers' truck broke
down and he spent the rest of that day and all the next day repairing it. As Myers
used the truck as transportation in going to work from his home in Golden, Colorado,
to the site of assigned work, I conclude that he would have been unable to accept an
assignment on October 22 even if he had been able to reach Cooney on the 21st.
On Saturday, October 23, Myers telephoned the Union Hall and spoke with Cooney.
Cooney told him to come in on Monday , October 25, and he would have a job
for him.
1 114 NLRB 1171.
BROTHERHOOD OF PAINTERS, ETC. 1601
On October 25, Cooney assigned Myers (along with Cassias) to a job at the Mile
High Building being done by the American Flooring Company. Myers cut in some
asphalt tile around doorways and installed rubber base. This is a top-set cove used
with tile floor coverings. It is the last work done on a tile floor installation. At the
end of the day the foreman on the job told Myers and Cassias that they were hired
only to finish that job and that there was then nothing else for them.
On October 26, Myers returned to the Union Hall for another assignment.
Cooney told him there was another job at the Mile High Building. Myers asked
what kind of job it was. Cooney told him it was for installing bolta-wall. This was
a new type of plastic wall covering which would be installed much the same as lino-
wall, a linoleum-type wall covering. It was a type of work that a linoleum man
could install, but Myers' experience was limited to wall and floor tile installation.
Myers told Cooney that he was not familiar with that type of work, that he did not
even know what it was, and he asked if there was any other work available. Cooney
told him there was nothing else. According to Cooney's notes, however, two em-
ployers that day made requests for men which Cooney did not fill. One of the two,
CB&I, had called in for a floor-tile man on Monday, October 25, and again on
Tuesday, October 26 .2 It is also to be noted that Cooney testified that four employers
had standing orders with the Respondent for men throughout the whole period of
the discrimination. When Cooney said there was nothing else, Myers left. Cooney's
testimony gives the impression that he thought Myers had gone to the job at the Mile
High Building. Myers testified that he did not then know the name of the contractor,
but learned later that it was McGinness. This suggests that Cooney had not completed
giving the assignment before Myers said he was unfamiliar with the work and asked
if there were anything else. On the other hand, Myers did not testify that he spe-
cifically told Cooney he would not take the McGinness assignment, and, as he left the
Union Hall with Cassias that morning, he asked Cassias what bolta-wall was. He
testified that Cassias gave an explanation and that he commented that he saw no
reason for going over to that job. This conversation with Cassias leads to the in-
ference that Myers could have left Cooney without a definite understanding that Myers
would not go to the McGinness job, and Cooney might have been justified in believing
that Myers was at least going to make an appearance at the McGinness job. I am
doubtful, however, that Cooney reasonably believed that Myers was qualified to do
the McGinness job.
According to Myers, he went to the Union Hall on Wednesday, October 27.
Cooney testified that Myers came in on October 28, making no mention of seeing
him on October 27. However, as Cassias, who was present at the Union Hall on
October 27 but not on October 28, confirmed Myers' presence there on the 27th, I
find that Cooney was mistaken as to the date of Myers' next appearance. On the
27th, Cooney,. having learned from McGinness that the man requested had not
shown up, asked Myers what the matter was with the job he sent him on the day
before. Myers told Cooney he could not do that kind of work. Cooney told
Myers to telephone him the next day. On Wednesday, October 27, according to
Cooney's own notes, four employers made requests for men which, according to him,
he could not fill. Two of these (Ideal Furniture and McGinness) had work which
I infer Myers could not have done.3 But there is no evidence that Myers would
not have been qualified to do the work for the other two employers. Furthermore,
there were standing orders for men according to Cooney. Cooney testified, at one
point, that with the exception of Carls, any of the Charging Parties would have been
qualified to fill the jobs listed in his notes. In the light of the evidence that Myers
was not a linoleum mechanic, I find that Cooney's testimony was too broad in this
regard, but in view of Cooney's own testimony and the lack of any evidence to
show that Myers was not qualified to do the work for Midwest Sales and Chavis
Bros., who called the Union for men on October 27, it is a reasonable inference that
Cooney might have assigned, but did not assign, Myers to 1 of those 2 jobs or to an
employer with a standing order for men.
On October 28 Myers telephoned Cooney, who said there would be a job for him
the next day at Kimbulian's. Myers went to the assigned job the next day, Friday,
October 29, at 8 a. in. He waited half an hour for Kimbulian to arrive. When he
9 Cooney assigned Mick to this employer on Wednesday, October 27, when the work was
nearly finished
B Ideal Furniture, I infer, wanted a carpet man, or perhaps a linoleum man McGinness
apparently still wanted a man to install bolta-wail and Cooney assigned Cassias to that
job. From Cooney's testimony, his notes could be interpreted to mean that McGinness
wanted another man besides Cassias
423784-57-vol. 117-102
1602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
came, Kimbulian asked Myers if he could do linoleum cove work. Myers replied
that he could not do any type of linoleum work and that he had been sent as a tile
man. Kimbulian telephoned Cooney, and Myers asked Kimbulian's permission to
speak with Cooney. When Myers took the telephone, he told Cooney that he had
no experience with linoleum. Cooney told Myers to call him on Saturday, October
50. Myers did so, and Cooney told him to keep in touch with him as something might
come in over the weekend. Myers called Cooney on Monday, November 1, and
Cooney told him to report the next day, November 2, to Ideal Builders. Cooney's
testimony, based upon his notes,4 which I find are not complete and in some instances
are of questionable accuracy, was that Myers was assigned to Kimbulian's on Novem-
ber 1 instead of October 29. On all the evidence, however, I credit Myers' recol-
lection of the date .5 From the evidence, it appears that Cooney might have given
Myers an assignment earlier, for, according to Cooney's notes, Ideal Builders called
the Union Hall for two men on both Monday and Tuesday. Another employer
called for one man on both days. If these 3 employers had needed men on Monday,
November 1, Cooney might have referred Myers to 1 of them that day instead
of waiting until Tuesday. This would have been possible even if it had been true that
;Myers went to Kimbulian's on Monday morning, instead of the previous Friday,
because it was still early in the day when Myers notified Cooney that he could not
do the job for Kimbulian, and if he had called Cooney on Monday, there is no reason
to believe that the employer (wanting men that day) would have refused to start a
man a little late in the morning. On November 2, Myers did report to Ideal
Builders and worked steadily with that employer until he returned to Spoon Tile
Company on November 10.
2. A. R. Mick
Until October 23, Mick made no effort to procure work other than for Spoon
Tiles On that date, he, Carls, and Cassias went to the Union Hall to talk with
Cooney. Mick's memory was not as good as that of Carls and Cassias, and some
of the findings here are made on the testimony of the latter two. After a discussion in
which the four men again sought approval to return to work for Spoon Tile, a sug-
ge^tion which Cooney again vetoed,? Cassias asked if he had work for them. Cooney
said that he had work for all of them and if they would come in on Monday, he
would assign them to jobs. Mick, however, did not show up with the others on
Monday, October 25. Cooney at that time had a job to which he could have
referred Mick. Cooney's notes show that he was unable on Monday, October 25,
to furnish men requested by 2 employers, 1 of whom was Carpet Binders and
Installers, herein called CB&I, who wanted 1 man. CB&I repeated its request for
a man on Tuesday, October 26, and again Cooney was unable to furnish a man,
but on October 2T or 28 Mick telephoned Cooney and was referred to CB&I. There
is no evidence that CB&I had repeated its request on October 27 or 28 but four other
,employers had called in for men on the 27th, and Cooney had not assigned men to
any of them. From the evidence, I find that Mick would have been qualified to
,do the work for at least 2 of them and probably all of them as he was qualified to
.do more types of floor covering work than the other 3 Charging Parties. By Wed-
nesday CB&I was nearly over its urgent need for men, so Cooney's assignment of
Mick to that job rather than the others arouses some wonder if Cooney was using
his best judgement in making assignments of the Charging Parties. However, Mick
4 Cooney testified that he made such notes, admittedly not a complete list of employers
wanting men or of assignments of workmen, within 24 hours after the occurrences therein
shown. There is some reason to believe that Cooney's memory was not always fresh
when he wrote these notes.
51n the Respondent's answer to the back-pay specifications, it alleged that Carls
telephoned Cooney on October 29 and received an assignment to Kimbulian's Oriental
Rugs on that day and that he called again on October 30 and stated that he was unable
to perform that work. At the hearing, Cooney admitted that this was a mistake and
that Carlsbad never been assigned to Kimbulian's The Respondent's motion to amend
its answer to substitute Myers' name for Carls' was granted. From the amended state-
ment in the Respondent's answer, I find additional reason for crediting Myers' testimony
of dates and occurrences.
6 While the Board's field examiner was taking a statement from Myers on October 19,
according to Cassias, he and Mick went to the Colorado State Employment Office. But
}Cassias did not testify that Mick registered there for work and Mick denied that he
glad registered.
7 According to Cooney's notes and testimony, on October 23 he assigned five other men
tto work for Spoon Tile on an overtime basis.
BROTHERHOOD OF PAINTERS, ETC. 1603
called CB&I, who referred Mick to a floor-tiling job it was working on in the Mile
High Building. When Mick arrived there, after having some difficulty finding a
place to park his car, he found a mechanic working on the job. Mick asked if that
was all that remained to be done and was told that it was. He estimated that there
was only about a half day's work remaining to be done, so he "just took off."
He did not call CB&I to learn if it had work for him elsewhere. It is uncertain
whether or not he telephoned Cooney that day. According to Cooney, Mick tele-
phoned him on the afternoon of October 28 and asked why he could not return to
Spoon Tile. Cooney told Mick that he had several other jobs that Mick could do.
Mick said that he would not work for anyone but Spoon Tile. Mick made no
further requests of Cooney and Cooney made no effort thereafter to assign Mick
to any jobs.
The Respondent called as a witness Alice Gaskins, a partner in CB&I, who testi-
fied that CB&I had been short of help and had asked Cooney for more, that Cooney
sent Mick, and "we were very happy when we were sent this man because we needed
help very badly." The inference from this testimony was that there was work for
which Mick was needed. Gaskins estimated that this particular job that Mick went to
would have taken 3 or 4 days. She testified that she was upset when she learned
that Mick had left "because we were in a bind at the time." But Gaskins could not
remember if she had asked Cooney for another 'man. She could not remember
when the job was completed, although she believed that it was several days later.
However, she had no records with which she could refresh her recollection on this.
She "imagined" that there was other work that Mick could have done and that if
he had called in she could have put him on some other job. Assuming that Gaskins'
estimate of the time that one job would take was accurate and taking into account
the fact that (by Cooney's notes) CB&I had called for one man on Monday and
Tuesday, October 25 and 26, and did not call again, so far as the evidence shows,
until Monday, November 1, I am led to the conclusion that the job to which Mick
was sent was nearly completed when he got there and that CB&I did not need
more men until November 1. Mick got the impression that he was being "pushed
around" by Cooney and I infer that this was the reason he did not ask Cooney for
further assignments. Although some basis for Mick's suspicions may have existed,
it is impossible to overlook the fact that Mick failed to report to Cooney on Monday,
October 25, as had the other three Charging Parties, that he failed to check with
CB&I, after going to the Mile High Building, to see if other work was available,
and that he ceased to look to Cooney for other employment.
Mick testified that about October 29 or 30, 1954, he applied to Marlin McGinness,
proprietor of McGinness Floor Covering, for work and that McGinness told him
he had no work, that he was keeping only one man on. McGinness himself testi-
fied that he had known Mick since 1950, that he needed men around October 28
and that if Mick had applied, which he, could not recall happening, he probably
would have hired him, that he would have hired him anytime between October 25
and November 5. Cooney's notes show that McGinness had called the Union and
requested men on October 26 and 27. He got one man on October 26 and another
on October 27 (Cassias), and they worked for him until November 5. It does not
appear that he made any further requests, but it is obvious that he had more than
one man working for him at the time; so it is unlikely that McGinness would have
made the statement attributed to him by Mick. I am doubtful that Mick applied to
McGinness for work at all, but if he did I infer that he sought permanent employ-
ment only, since he exhibited a distaste for temporary work. Mick testified that
about November 1, 1954, he applied for work at another employer-Dixon-and
was told that there was no need for men. No evidence refutes this testimony except,
Cooney's testimony that Dixon and several other employers had placed with the
Respondent a standing order for men. If this be true, Mick either did not apply
to Dixon or Dixon rejected Mick's application for some reason other than lack
of need for men. But even if Mick made the applications as he testified, he does
not appear to have exerted that degree of diligence which could be denominated a
reasonable effort, in the period from October 25 to November 8, to find other work.
3. B F. Carls
On October 14, 1954, Cooney telephoned Carls and Cassias and asked them to come
in to discuss employment. They went to the Union Hall that day, and Cooney asked
them to take jobs other than at Spool Tile, but, except for Cooney's mention of a
job for Cassias, Cooney does not appear to have mentioned specific jobs, and the
conversation resulted in an argument as to why the men could not work for Spoon
Tile. Carls and Cassias claimed that the Respondent's charges against them were
1604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unfounded, and Cassias suggested that all the parties involved get together and
attempt to reach a settlement or arbitrate. Cooney said there would be no arbitration
and that representatives of Spoon Tile would not be allowed to appear before the
union executive board. Cassias asked Cooney to speak to the union executive board
members on their behalf. Cooney agreed to do so and said that he would call them
,and let them know the result. It does not appear whether or not he did so. At this
time, as previously stated, the four Charging Parties were still being paid $10 a day
report-in time by Spoon Tile.
On October 18 Cans reported to Spoon Tile for work and, along with the others,
was told that the dispute could not be settled and that their services were terminated.
With the other Charging Parties, he went to the Board offices in Denver and filed
a charge on October 19. He, along with the others, was there all day. For the
remainder of the week until Saturday, October 23, he did nothing to find other
employment.
On October 23 Carls went to the Union Hall with Cassias and Mick. Cooney
told them he had work for them and to come in on Monday morning. Carls arrived
at the Union Hall at 8 a. in. on Monday. Cooney was not there. About half an hour
later, as a result of a call from Cooney, Ross Smith, Sr., came with assignments for
each of the four Charging Parties. Carls was given an assignment to Artcraft
Linoleum and Tile Company, for whom he worked 61h hours that day and 8 hours
each on October 26 and 27.
When Carls reported for work on the morning of October 28, the proprietor,
Harry Warren, told him that he was caught up on the job and that he would get
Carls' check. Carls went from there to the Union Hall and told Cooney that he
was out of work. Cooney made 1 or 2 telephone calls. Cooney testified that he
called Warren, who said that he had terminated Carls, that Carls had taken longer
than his regular men, and that some of his work would have to be replaced. Warren,
who testified, appeared to be trying to give evidence in a way to please the Respondent.
For example, he shifted his testimony from less favorable to more favorable as he
was questioned by the Respondent. He testified from records, having no independent
recollection, that Carls took longer to do the work than had his regular mechanics.
He also testified that some of Carls' work had to be torn out and done over. This
last testimony Warren appeared to base partly on memory, partly on hearsay, and
partly on inferences drawn from the time shown on the records. I am very doubtful
that, if work had to be done over, Warren knew it at the time that Cooney telephoned
him on October 28. Although Warren recalled work having to be done over in the
bathroom in which Carls, among other mechanics, had worked, Warren admitted
that there was nothing in the records to show that it was Carls' work rather than
that of others which had to be done over. I judge that his testimony that it was
Carls' work was a biased conclusion rather than a remembered fact. Because
Cooney was making notes (during October and November 1954) of any actions of
the four men which would be helpful to the Respondent's case, and because he made
no such note regarding Carls' work at Artcraft, I incline to the belief that Cooney's
testimony of his conversation with Warren was based, not on a memory of the
conversation as it occurred at that time, but on what he heard or speculated on
after the investigation in this case began and after the memories of Warren and
others had largely failed. Warren had a regular crew of about 18 men, and he,
like other contractors, called the Union for extra men when they were rushed.
Warren had one extra man whom he had hired earlier than Carls. He left that
man go on October 28 because he did not need him any more. This justifies the
inference that there would have been no more work for Carls regardless of proper
or improper performance. Warren also testified that he did not request a replace-
ment for Carls. A line in Cooney's notes indicates that Artcraft called for a linoleum
man on October 29, but Carls was not a linoleum man. Although Carls may have
been slower than other men, I find that this was not a cause for his termination.
According to Carls' testimony, which I credit in this respect, after Cooney re-
turned from the telephone on October 28, he told Carls that one of the parties he
had called was getting some work ready, and Cooney told Carls he would telephone
him that afternoon. He did not do so, however If, as Cooney testified, several
employers had standing orders for men, he did not offer Carls a job with any of
them.
That same day Carls telephoned the Board field examiner and asked if it was
all right for him "to get another job with some other outfit or did I have to stick
around 'and accept all these jobs from Cooney," that he believed that jobs Cooney
would get him would all be short ones, and that he had a family to support. I
deduce from this and other testimony of Carls that he, like the other Charging-
Parties, was looking for steady rather than intermittent jobs such as Cooney was.
BROTHERHOOD OF PAINTERS, ETC. 1605
giving them and that he wished to learn whether or not his interest in this case
would be affected by his getting such a job on his own initiative. The field examiner
told him it was all right for him to get another job. Thereupon Carls went to a
number of employers looking for work as a laboratory technician (work in which
he had had experience), he applied at the Aurora city hall for a job as a police
officer, made inquiries at the Colorado State Patrol concerning examinations for a
position, and finished that day's search by talking with Baker, foreman of Spoon
Tile. In the following few days he called Oshier, one of the partners in Spoon Tile,
for a job as a truckdriver, telephoned his former union, the Tile Setters and Helpers,
to learn if work was available and how much it would cost him to reinstate,8 and
picked up some gratuitous surplus tile left over from that which was used by Spoon
Tile Company when it installed tile in houses in an area called Hoffman Heights.
-Carls learned that the tile work in some of these houses was in need of repairs and
he canvassed the area taking the addresses of houses he decided to send cards to.
Then he procured about 100 postal cards, on which he offered to give estimates of
necessary repairs.
On November 1, Carls telephoned a couple of tile shops to see if there was any
need for ceramic tile setters helpers. There was not. He also sought a job at an
automobile service station.
On November 2 Cooney telephoned Carls and said he had a job for Carts at Ideal
Builders, that Myers would be going out, and that it would be wall tile work. (Cooney
did not explain why he had not called Carls on November 1 about this. As he in-
formed Myers of the job on Monday, November 1, he presumably could have notified
Carls on the same day.) Carls told Cooney he was tired of being pushed around,
that he had called the Board and asked if he had to take piecemeal work, that he
was informed he could take other employment, and that he had a job. That day,
Carts sent out a, batch of the postal cards he had been preparing. The rest of the
hundred cards he posted in the next 2 days. He also visited without avail several
places where he had heard that repair or contract work was to be let.
On November 4 Carls received a reply to one of his postal cards. He went to
the house, made a bid of $17,,and performed the work the next day, November 5.
At the end of his work, he gave a price of $5 to another householder and did the
work on Saturday, November 6.
On Monday, November 8, Carls made application at Montgomery Ward for work
and had an appointment for an interview that afternoon, but he did not keep it
because he learned from Cassias that the four Charging Parties could return to
work for Spoon Tile. He returned there the following day, November 9.
4. Art Cassias
At the request of Cooney, Cassias went to the Union Hall on October 14 as did
Carts. Cooney asked Cassias to take a job which was open at Lowry Field installing
masta-pave. Cassias said that that was quite a distance from his home,9 and he
asked why he could not return to Spoon Tile. The discussion did not return to
specific jobs. In addition to the job at Lowry Field, Cooney might have offered
jobs at five other employers. Of these, 1 was Spoon Tile who had requested 4 or
5 men. Cooney had dispatched five men to Spoon Tile on October 12. He did not
dispatch any more until Saturday, October 16, when he assigned one more man.
This man shows on the Spoon Tile payroll for Monday, October 18. Another was
dispatched to Spoon Tile on October 19. Cooney testified that he would have sent
the Charging Parties to any of the employers from whom he had requests on October
14 except Spoon Tile. It does not appear that he suggested to Cassias working for
any employers except the one at Lowry Field.'°
After Cassias was released from Spoon Tile on October 18, he went with the
others on October 19 to the Board offices, filed a charge, gave a statement, and regis-
8 He did not renew his membership, he testified, because no jobs were open for ceramic
tile setters helpers, which was the rating he had had
0 Cassias lived 3 miles west of Bloomfield, a suburb approximately 16 miles north of
western Denver. Lowry Field is at the eastern border of Denver. It was stipulated
that the distance from Bloomfield to Lowry Field was 21 8 miles.
10 Cooney asked Dale Smith, one of the men who had worked for Spoon Tile until
October 9 (when the Union ordered the men off that job), to go to the Lowry Field job
on October 12 Smith did so but was back the next day to say that be could not get
along with the superintendent on the job. Cooney gave him an assignment of 1 day at
Hansen's Interior and then let Smith go to American Flooring (for whom he had previ-
ously worked) as a steady employee.
1606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tered for employment at the Colorado Employment Service. There is no evidence
that Cassias made any further search for work until he went to the Union Hall on
Saturday , October 23 . 11 As in the case of the others , Cooney told Cassias to come
in on Monday.
Cassias appeared as directed on Monday morning. He and Myers were ' assigned
to American Flooring Company as related previously in the summary of Myers'
work. This job lasted just 1 day. The Respondent adduced evidence to suggest that
the men were discharged for cause and that otherwise they would have been con-
tinued in the employ of American Flooring Company . Howard Hart , proprietor
of American Flooring Company , called as a witness for the Respondent to prove
that Myers and Cassias were responsible for termination of their employment , testi-
fied on direct examination that he had asked his superintendent why he had released
Myers and Cassias after only 1 day's work, and that his superintendent had told
him that they were not doing floor tile up to standard and he put them on rubber
base which requires less skill and they did a lot of talking . Hart further testified
that he still had work available and that any mechanic who showed good workman-
ship would be continued in his employ . On cross-examination Hart testified that
Myers and Cassias were working on the Sharples Oil Company office in the Mile
High Building, that installation of rubber base and cutting in floor outlets was the
last part of the work, that the Sharples job appears to have been completed on
October 25 , and that he did not ask Cooney for any more men until November 1.
One extra man whom he had started about October 25 was retained on other work
for a couple of days, but there is no reason to believe that there would have been
work also for Myers and Cassias. Hart's superintendent was not available as a
witness. Hart's testimony of what his superintendent told him was hearsay, and in
the face of the other evidence I give it no weight as a reason for termination of the
services of Myers and Cassias, and I find that Myers and Cassias were employed
for I day only because their services were needed for that day alone. The Respond-
ent had the burden of proving not only that Myers and Cassias could have con-
tinued to work for American Flooring, but of proving that work would have been
available to them there but for their fault. On all the evidence I find that the
Respondent did not sustain the burden of proving either one.
Returning to the Union Hall on Tuesday , October 26, Cooney told Cassias to
go to Ideal Furniture Company on a job and told Myers of the McGinness job in
the Mile High Building, as previously reported . Although Myers was not qualified
for the McGinness work, as he had no experience in that type or any type of
linoleum work , it was work which Cassias could have done. However, Cooney
sent Cassias to the Ideal Furniture Company. Cassias stopped at the American
Flooring Company office for his check for Monday 's work. It was not ready and
he had to wait . He did not reach Ideal Furniture Company until 11 a. in. Accord-
ing to Cassias ' testimony , the proprietor of the company , Otto Colsman, told him
that he had called for a carpet layer and not a linoleum man. Cassias told Colsman.
that he had not laid carpets for a number of years and did not think he was
qualified. He did not report back to Cooney until the following morning. Then
he asked Cooney for another job. Cooney asked what had happened at Ideal
Furniture Company. Cassias said that Colsman wanted a carpet man but said he
thought he might be able to switch some of his men and if he could he would call
Cassias that evening, but as Colsman had not called him, he was looking for
another job . Cooney testified that when Cassias did not show up at Ideal Furniture
by 9 a. in., Colsman called him and asked where the man was that had been sent.
Cooney told Colsman that the man was on his way. He further testified that that
afternoon Colsman called to say that Cassias had shown up but that he had already
made up his schedule and it was too late to change it and that Cassias did not
look presentable and he probably would not have sent him anyway ( i. e., to an
occupied home ). There is reason to doubt the accuracy of Cooney 's memory in
respect to the last statement . Here again , his own notes fail to report any such
statement . They do carry a notation that Colsman had said his schedule was
already made up, but nothing about Cassias ' appearance . Colsman, himself, had
little or no memory of the incident , but testified that he would not turn away a man
he had called for merely because he was late. He testified that sometimes the men
dispatched did not show up until the following day . He testified that he had a
regular crew of carpet layers and that he presumed that he had called for a
linoleum man because of that fact , but he conceded that on occasions he had
called the Union for carpet layers, so he could not be sure that he had not done so
on that occasion . Colsman testified that he made up his schedule for the following
"On this day Cooney sent five new men to Spoon Tile for the overtime work done by
that company that Saturday
BROTHERHOOD OF PAINTERS, ETC. 1607
week on Friday and that this fact would not deter him from taking a man who
was late. If Colsman told Cooney something about turning Cassias away because
he had already made up his schedule , I infer from all the evidence that he was
referring to the fact that the work of each man had been laid out and he could not
shift his regular men around in such a way as to use Cassias on linoleum work.
This would tend to support Cassias' testimony . Both because the evidence as a
whole tends to corroborate Cassias' account and because he appeared to be testi-
fying honestly , I credit his testimony of his conversation with Colsman.
In any event , on October 27, Cooney assigned Cassias to the McGinness job which
he had originally tried to give to Myers. Cassias reported to that job and was
employed there steadily until November 5. On that date , McGinness told Cassias
that that finished the work he had and that he would call him if he got any more.
On November 8 Cassias called Cooney for another job, and Cooney told him he
could return to Spoon Tile. Cassias did so the same day.
B. Interim earnings
As previously reported , Myers received from Spoon Tile Company from October
12, 1954, when his services were suspended , until October 18 , 1954, when he was
discharged , the sum of $40. For the balance of the time between October 18 and
November 10, when he returned to Spoon Tile Company , his earnings came to
$ 143 92. Therefore his total interim earnings came to $183.92.
Mick also received $40 from Spoon Tile Company, but he had no other earnings
before he returned to that company 's employ on November 9, 1954.
In addition to his $40 report -in pay, Carls earned $79 . 83 between October 12 and
November 9, when he returned to Spoon Tile Company 's employ. His total interim
earnings , therefore , were $119 83.
Including his $40 report -in pay for Spoon Tile, Cassias ' interim earnings between
October 12 and November 8, 1954, when he returned to the employ of Spoon Tile
Company, were $225.04.
C. Amount each could have earned in the employ of Spoon Tile
In computing the amount which each of the four discriminatees could have earned
at Spoon Tile Company but for the discrimination , the General Counsel included
in its amended specifications the overtime pay which they might have earned during
the entire period on regular workdays and Saturdays . However, the General
Counsel included for Myers, Carls , and Cassias overtime for Saturday , November
6, when no work was actually performed by Spoon Tile. Also is included a 40-
hour week for the calendar week ending on November 6. The evidence does not
support the General Counsel 's computation in full as to overtime or even straight
time in the calendar week ending November 6 Further, the General Counsel com-
puted Mick's back pay on the assumption that he was ill between November 1 and 6.
I am not satisfied that this was the case, and I have computed Mick's back pay
without regard to possible illness. Also , some doubt exists that the Charging
Parties would have earned any overtime in the payroll week ending on October 21.
Before October 12, the date of the discrimination , Spoon Tile Company employed
about 10 floor and wall tile mechanics . On October 12, the day of the discrimina-
tion, the Union supplied five new men to Spoon Tile Company . 12 Three regular em-
ployees had been permitted by the Union to continue in the employ of Spoon Tile.
Therefore , on October 12, 1954, Spoon Tile had two fewer employees than before.
By October 19 the Union had supplied 2 more men, bringing the crew back to its
original size, and on October 20 Spoon Tile procured 2 men from another location,
bringing the total to 12, but by October 25 2 terminations , apparently occurring at
the end of the prior week, again brought the number back to 10 men. One more was
off the payroll on October 27, leaving nine men. Before the 4 Charging Parties were
permitted to return , further terminations left Spoon Tile with only 4 floor and wall
tile men by November 4. As none of the crew worked on Thursday and Friday,
November 4 and 5, 1954, I assume that they were not then needed.
During the payroll week ending October 21 , 9 men worked 31/2 hours overtime
each , 1 man worked 21/2 hours overtime , and 2 men worked 2 hours overtime each.
On Saturday , October 23 , Spoon Tile had 10 regular floor and wall tile men on its
payroll . Of these , 7 worked 81/ hours each , 2 worked 8 hours each , and 1 worked
4 hours. In addition to the regular men, the evidence shows that five extra men
were assigned to Spoon Tile for that Saturday. There is no evidence of the num-
12 One of the five may have been a replacement for It Lord who worked for Spoon Tile
for a few days until Friday , October 8, 1954
1608 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ber of hours they worked. In addition to the Saturday overtime work, the crew
worked a total of 181 hours (or an average of a little more than 11/2 hours per
man) overtime during the payroll week of October 22 to 28. On Saturday, October
30, 8 men worked 8 hours each. In addition, during the payroll week ending
November 4,- 6 men put in a total of 10 hours overtime work.
The Respondent raised the question of whether or not such overtime work would
have been needed but for the shortage of men caused by the discrimination. No
overtime work was performed in the 3 payroll weeks ending September 30, October
7, and October 14. The suggestion is, therefore, that it was the shortage of men
created by the layoff and discharge of the 4 Charging Parties that made the over-
time work necessary, and the Respondent takes the position that if the 4 Charging
Parties had not been laid off or discharged, no such overtime work would have been
needed. This position received some inconclusive support from certain testimony
given by Frank Oshier, a partner in Spoon Tile Company. He testified that the over-
time work was necessitated by the shortage of men and that it was possible that,
if the four Charging Parties had been in his company's employ for the full time be-
tween October 12 and November 10, it might not have been necessary to work over-
time. The latter, of course, is speculative. I am not sure whether or not, when
Oshier was speculating on what the situation would have been if the Charging Parties
had remained in his employ, he had in mind a crew which also contained the men
he actually had in his employ plus the Charging Parties of if he was thinking only
of his crew as it existed before October 11. If he had in mind the former, he was
thinking in terms of 13 to 16 men, a crew which he apparently never was able to
assemble. It is not known now whether or not the workload was uniform during
the entire period. It is not beyond possibility that, even with the four Charging
Parties on a customary-sized crew, there would have been a shortage of help for at
least a part of the time, depending on the job that had to be done. Rather than
rely on Oshier's speculation, I believe a proper conclusion as to the necessity for
overtime work can better be ascertained by comparing the total number of hours
worked by the crew during each of the weeks in question. An examination of the
payroll records of Spoon Tile for floor and wall tile mechanics discloses that the
total straight-time and overtime hours worked in each of the payroll weeks shown
was as follows:
Payroll week ending
Number of
men
Total
straight Total overtime
time
Sept 30--------------------- 10 352 0
Oct. 7----------------------- 10 330 0
O ct. 14---- ----------------- Is 7-10 245 0
Oct 21 ---------------------- 8-12 406 38
Oct. 28 ---------------------- 10-12 376 92 (Includes Saturday , Oct 23)
Nov 4---------------------- 9 256 75 (Includes Saturday , Oct 30)
Nov. 11-- ------------------- 5-8 208 203
's On Friday, Oct. 8, the beginning of the payroll week, there were 10 men ; on Monday,
Oct 11, 7 men worked ; on Tuesday, Wednesday, and Thursday, Oct 12 to 14, there were
8 men The crew remained at 8 until Monday, Oct. 18, when it returned to 10. Two more
were added on Oct. 20.
No men were worked on Thursday or Friday, November 4 and 5. It seems
probable, therefore, that the work was caught up by then. It will be observed that the
amount of overtime was not always in inverse proportion to the number of men
working. In fact, the greatest periods of overtime work were those in which there
were the most men. Thus, even if the 4 Charging Parties had been employed
throughout the whole period, there would still have been need for overtime work,
unless the employer had been able to build the crew up to about 16 men, which
he never appears to have done. Assuming that some of the extra hours put in during
the week ending October 21 may be attributed to the fact that the employer fell
behind in his schedule during the week ending October 14, when it was deprived of
the services of the Charging Parties, I deduce that this lost time was more than made
tip in the following weeks. Taking the last week in September and the first week in
October as normal weeks, we find that the average number of hours was 341 per
week. On this basis, the company lost about 96 hours of work during the week end-
ing October 14. But in the week ending October 21, it exceeded the normal average
by 103 hours, thus making up the 96 and putting in several hours in excess. Since
BROTHERHOOD OF PAINTERS, ETC. 1609
the lost hours were more than made up, I deduce that the extra hours after that may
be attributed to the heavier workload. I conclude, therefore, that, if there had been
no discrimination, the Charging Parties would still have worked overtime during the
period following October 21. In the week ending October 28, two men (each hired
after the discriminatory layoff) worked only for a day and a day and a half,
respectively. Eight men worked 40-hour weeks and, of these, 5 worked 101/z hours
of overtime each. There is no reason to suppose that each of the four Charging
Parties could not have worked an equal amount during that week. During the pay-
roll week ending November 4, no one was employed on the final day. Therefore,
straight time that week would amount to 32 hours each. Five men worked 10 hours
of overtime that week. Four of the five men who worked 10 hours overtime were
men hired after the layoff of the 4 Charging Parties. Therefore it is fair to assume
that, but for the discrimination, the Charging Parties would each have been able to
earn 10 hours' overtime pay that week. After November 3, no more overtime was
available which the Charging Parties could have earned during the period of dis-
crimination.
Unless a deduction is made for failure to make reasonable efforts to procure other
employment, the gross amount which each would have earned during the period
between October 12 and the date of his reinstatement, computed on a payroll week,
would be as follows:
Name Payroll week
ending
Straight time at $2 57
per hr
Overtime at $3.86 per hr Total
Myers ------------------- Oct 12____________ 24 hrs $61 68_____-____ $61 68
Oct 21_____-______ 40 hrs $102 80_______-_ ------------------------ 102 80
Oct 28____________ 40 hrs $102 80_________ 10 hrs $40 53--------- 143 33
Nov 4___________- 32 his $82 24__________ 10 hrs $38 60_____--___ 120 84
Nov. 11-__-___-__ 16 hrs $41 12____-_____ ------------------------ 41 12
469 77
Mick--------------------- Oct.14____________ 24 hrs $61 68_____--___ 61 68
Oct 21_____-______ 40 hrs $102 80____-__-_ ------------------------ 102 80
Oct 28 ------------ 40 hrs $102 80_____-__- 10% hrs $40 53____---_ 143 33
Nov 4___-__-__-__ 32 hrs $82 24___--_____ 10 hrs $38 60__________ 120 84
Nov.11______-____ 8 hrs $20 56_________-_ ------------------------ 20 56
449 21
Carts--------------------- Oct 14____________ 24 hrs. $61 68-_________ 61.68
Oct. 21____________ 40 hrs $102 80__-______ ------------------------ 102 80
Oct 28_____-______ 40 hrs. $102 80_____-___ 10%hrs $4053________ 143 33
Nov 4__________-_ 32 hrs $82 24_______--_ 10 hrs $38 60__________ 120 84
Nov. 11_______-__ 8 hrs $20 56-__-_-_____ ------------------------ 20 56
449 21
Cassias___________________ Oct 14_________-__ 24 hrs. $6168 ---------- 61 68
Oct 21 ------------ 40 his $102 80--------- ------------------------ 102 80
Oct 28____________ 40 hrs $10280_________ 103 hrs $40 53________ 143 33
Nov 4_______-____ 32 hrs $82 24__________ 10 hrs $38 60_____--___ 120 84
428 65
D. Net back pay
If no further deduction were made'because of failure to use reasonable efforts
to procure other employment, the net back pay for each (taking the interim earnings
as shown in the General Counsel's back-pay specifications) would be as follows:
Myers: Mick:
Gross back pay_______ $469.77 Gross back pay_______ $449.21
Interim earnings------- - 183.92 Interim earnings------- -40.00
Net back pay_______ 285. 85 Net back pay_______ 409. 21
1610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Carls:
Gross back pay_______ $449.21
Cassias:
Gross back pay_______ $428. 65
Interim earnings ------ -119.83 Interim earnings------- -225.04
Net back pay_______ 329.38 Net back pay_______ 203.61
E. The issue of failure to make reasonable efforts to procure other employment
In the Respondent's second defense to the back-pay specifications (the first being
that, before court decree, the back-pay specifications are premature), it admits that
the interim earnings of the discriminatees were as alleged in the back-pay specifica-
tions but contends that such sums did not represent all that they could have earned
by use of reasonable efforts to procure other employment. Stated as a third defense
(but actually constituting support for its second defense) was the allegation that
between October 12 and November 9, 1954, there was a continuing demand in the
floor-covering industry for floor-covering mechanics with the skills, qualifications,
and experience possessed by each of them.
At the reopened hearing, the Respondent took the position that the discriminatees
incurred an unreasonable loss during the period between October 12 and 23 because
they failed to come to Cooney for reassignment on October 11 as they had been
instructed to do by the Union at the meeting of October 9, as related in the Board's
Decision. Of course, this amounts to a contention that the Charging Parties should
have concurred in the unfair labor practice of the Respondent and not attempted
to remain in the employ of Spoon Tile Company. With such contention I cannot
agree. But the Charging Parties were not actually doing work for Spoon Tile on
and after October 12 until their reinstatement. A question is posed, therefore,
regardless of the Respondent's prior direction to come to Cooney for assignments,
as to whether or not, by not actively seeking work during the balance of that week
but instead holding themselves ready (in exchange for report-in pay) to work for
Spoon Tile Company, the Charging Parties wilfully incurred a loss for which they
should not be compensated. The Board found that they were laid off on October
12 and were discharged on a later date. A layoff, as differentiated from a discharge,
often implies an unemployment period of short duration with expectation of re-
employment. Such implication is particularly apt here, where the Employer was
paying report-in (or standby) pay and where both the Employer and Charging
Parties had expectations (not unreasonable under the circumstances) of effecting an
understanding with the Union. These expectations derived support from the fact
that the Employer and the Charging Parties had consulted an agent of the Board
and been advised that the men should return to work on October 11. I infer that
they were also given the opinion that it would be an unfair labor practice to terminate
these employees at the demand of the Respondent, for otherwise they would not
have been advised to disregard the Respondent's demand. It is also reasonable to
suppose that the Employer and the Charging Parties believed that the Respondent
would settle the controversy rather than proceed adamantly on its initial course
after learning that its conduct amounted to an unfair labor practice.14 Furthermore,
until October 18, when the superintendent of the general contractor returned to town,
there was reason to hope that he might effectively intercede with the Union on
behalf of Spoon Tile Company and the four Charging Parties. I conclude, there-
fore, that the Charging Parties did not incur a wilful loss by failing to seek other
employment before their discharge on October 18.
Following their discharge on October 18, the Charging Parties agreed among
themselves to file charges the next day, and they left the Spoon Tile project at about
noon on the 18th. On October 19 they filed charges and were at the Board's local
offices all day. I do not deem their conduct on these days to be a wilful incurrence
of loss. On Wednesday, October 20, however, they should have started to make
efforts to procure other employment. On that day and the following 2 days, according
to the evidence, the Respondent received calls from employers for men (for 6 men
on Wednesday, for 4 men on Thursday, and for 3 on Friday), and it is reasonable
to infer that each of the 4 could have obtained employment had they sought it.
Even Myers could more effectively have sought work on those days. I find, there-
fore, that the Charging Parties did not make reasonable efforts to procure other
employment on those 3 days.
Without application to the Respondent for a job, Cassias' registration with CES
does not, under the circumstances here present, constitute a sufficient effort to procure
14 The Respondent was not without prior experience with unfair labor practice law
and Board proceedings Carpet, Linoleum d Resilient Tile Layers, Local Union No 419,
105 NLRB 669, enfd 213 F 2d 49 (C A. 10)
BROTHERHOOD OF PAINTERS, ETC. 1611
other employment 15 between October 20 and 22. Saturday is not a regular workday
among union employees of the type here involved. But the evidence shows that
each of the four Charging Parties made application for work to Cooney on Saturday,
October 23. That date therefore ended their period of failure to seek other
employment.
Unless failure to register with the Colorado Employment Service, herein called
CES, be automatically a wilful incurrence of loss, Myers and Carls, who did not
register with CES, made reasonable efforts to procure other employment during
the period from October 25 to 30. Cassias not only registered with the CES but
also sought work through the Respondent. In American Bottling Company, 116
NLRB 1303, the Board quoted with approval its language in Southern Silk Mills,
116 NLRB 769, where it said, " . . . we shall no longer give conclusive weight to
registration with such [governmental employment] agencies in determining the
issue of reasonable search, but shall treat such registration as a factor to be given
greater or less weight depending on all the circumstances in each case." The Board,
in the latter case, gave as its reason for abandoning the policy adopted in Ohio Public
Service Company, 52 NLRB 725, and the later extension thereof in Harvest Queen
Mill & Elevator Company, 90 NLRB 320, that "government employment services are
but one of several means which are normally used by unemployed persons in seek-
ing new employment and their effectiveness in placing registrants varies widely with
the type and supply of labor being sought." Evidence in the case at hand tends to
prove that employers of union labor of the type here involved customarily look
primarily to the Respondent for mechanics. They seldom advertise and, judging
from Cassias' experience, I infer that the CES was not a promising source of refer-
ences for men with his type of skill. He testified that he received only 1 reference
from CES and that was to the same employer for whom he had already been work-
ing for 2 days as a result of an assignment by Cooney. Under the circumstances, I
find that the failure of Myers, Mick, and Carls to register with CES was not a
factor carrying any weight in their failure to procure employment as long as they
were seeking employment through the Union or otherwise.
Myers and Cassias took the job assigned to them on October 25 and worked until
they were laid off. On the evidence, 1 am not convinced that they brought about a
discharge and unreasonable loss. They were apparently hired as extra help during
a rush job and were laid off because they were no longer needed. Since Myers was
not a linoleum man, I find that his refusal to do the bolta-wall job for McGinness
was not a wilful incurrence of loss.
Evidence of the circumstances occurring during the week between October 25 and
30 give rise to suspicion that Cooney was not fully cooperating to assign work to
the Charging Parties. In the first place, it is the responsibility of the business agent
to know or ascertain the skills of the men he assigns to jobs. Cooney had assigned
Myers to jobs from the time Myers had arrived in the Denver area in February 1952.
Between that time and October 1954, I am convinced, Cooney would have learned
that Myers did not do linoleum work. Cooney's attempt to assign Myers to Mc-
Ginness and Kimbulian for linoleum work when other types of jobs were available
gives some foundation to the belief of some of the Charging Parties that Cooney was
giving them the "run-around." About the same time that Cooney was misassigning
Myers, we find that Cooney assigned Cassias, who was qualified to do the job for
McGinness, to Ideal Furniture Company for a job he was not qualified to do. I have
credited Cassias' testimony that the proprietor at Ideal Furniture told him that he
wanted a carpet man. Thus, it might be inferred that, because Cassias and Myers
vented their irritation with Cooney and the Respondent vocally while on their
October 25 job, Cooney retaliated by referring them to employers who could not
use them. But whether or not such inference is well founded, I find evidence that the
Respondent did not assign the Charging Parties to all available jobs. Cooney re-
peatedly testified that, throughout the backpay period, there were, in addition to the
calls for men listed in his notes, standing orders for men from the larger companies.
He specifically named Earl A. Dixon,is Reeves Ryan, Colorado Carpet, and
American Flooring. If these employers had a standing order in for men, the
suggestion is that their need was not for temporary help on short rush jobs. I am
not convinced that they were in such steady need of men as Cooney testified. There
is evidence that American Flooring required, and at times employed, extra men
(in addition to Myers and Cassias on October 25) whose employment was tem-
15American Bottling Company, 110 NLRB 1303
16 Cooney testified that Dixon normally employed about a half dozen men but "at this
time he had Farmers Union going and he took everybody that we could furnish." Obvi-
ously, Cooney did not assign the Charging Parties to Dixon
1612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
porary. During the week of October 11-16, Cooney had permitted Dale Smith,
one of the men he had taken away from Spoon Tile, to go to American Flooring
as a regular, rather than as an extra, employee after only two short jobs as an
extra. He did not accord the same privilege to the Charging Parties. If the other
large employers having standing orders had steady work such as Smith procured,
Cooney made no effort to place the Charging Parties in such jobs. Had they needed
even extra men during the week of October 25 to 30, Cooney would have had no
excuse for failing to refer Carls to one of them on October 28. But between
October 28 and November 2, Cooney made no attempt to give Carls an assign-
ment . If there were standing orders for men of skills such as Carls', as Cooney
testified, Cooney's failure to assign Carls to a job during this period is indefensible.
Between October 28 and November 2, while he was out of work, Carls appears to
have been exerting reasonable efforts to procure other employment. On November
2, 1954, he rejected Cooney's offer to assign him, along with Myers, to Ideal Builders
on November 3 for a job at which Myers worked until November 10. Carls told
Cooney that he was tired of being pushed around and that he had another job.
Although there is some evidence to justify Carls' feeling that he was being "pushed
around," it is my opinion that on the facts here present, Carls was not justified in
rejecting the offered work unless he in fact was otherwise gainfully employed.
His "other employment" constituted his decision to take jobs on a contract basis.
Although working on a contract basis would not, in itself, necessarily be tantamount
to removing Carls from the labor market generally,17 inasmuch as he was still willing
to return to Spoon Tile Company's employ and on November 8 was in the process of
applying to Montgomery Ward for employment, I am of the opinion that Carls un-
reasonably incurred loss in rejecting the offer of the job at Ideal Builders, inasmuch
as he had not, at the time of his telephone conversation with Cooney on November 2,
made any commitments for work at Hoffman Heights or elsewhere. But for one
fact, this loss would be one which could affect Carls' back pay to the date of his
return to Spoon Tile. The one fact that I find intervenes to prevent this is that
Cooney, in a letter dated November 1, but mailed on about November 3, according
to the Board's findings of fact, notified Spoon Tile that "members of our union, in-
cluding those in your employment prior to the above occurrence, are now available
for employment with your concern," yet he did not inform Carls either formally or
informally of the fact that he had written such a letter and, except for the informal
notice he gave Cassias, he did not, so far as appears, attempt to direct any equivalent
formal or informal notice to the other Charging Parties that the Respondent had
withdrawn its objection to their being reemployed by Spoon Tile. I take note of the
fact that on Thursday, November 4, according to Cooney's notes, five of the men who
had, until then, been working for Spoon Tile Company, were assigned to work else-
where.18 This left Spoon Tile with four regular men exclusive of the Charging Parties.
Because even these 4 remaining men did not work on Thursday and Friday,
November 4 and 5, I assume that there would have been no work on those days for
the Charging Parties either, and I have taken this into account in computing back
pay, but those 4 men plus Cassias (who had called Cooney on November 8 for a
new assignment and been told informally that he could return to Spoon Tile or work
for another named employer) worked for Spoon Tile on Monday, November 8.
I assume, therefore, that there was work on that day for Mick, Carls, and Myers.
Hence, I conclude and find that if Cooney had given the notice customarily required
of unions in cases where they have caused discriminatory loss of employment,19
Carls and Mick, like Cassias, would have returned to work on Monday, November 8,
1954. I shall therefore include November 8 as a day for which the Charging Parties
should be reimbursed.
With respect to Mick's efforts to procure substantially equivalent employment,
I conclude, on the entire record, that he did not exert reasonable efforts between
Wednesday, October 20, and Friday, November 5, 1954, to procure such employment.
He apparently took the position that Cooney was going to offer him crumbs rather
than bread and that he would prefer to do without them. However, Mick, unlike
Carls, did not make an earnest and diligent attempt to get employment independently
of Cooney. He told Cooney that he was interested in working only for Spoon Tile
11 See Brotherhood of Painters, etc, Local No 419 (Laarren Burt, Inc ), 114 NLRB 295
is R Smith, F Deiken, F Cawood, and K Mock were assigned to American Flooring,
while Stasel was assigned to Kimbullan.
19 Sherman Paper Products Company. 116 NLRB 529; The Great Atlantic & Pacific
Tea Company (Pittsburgh Bakery), 110 NLRB 918, 926; Carpet, Linoleum & Resilient
Tile Layers, Local Union No. 419, 105 NLRB 669, 670.
BYRON-JACKSON DIVISION 1613
Company. Although Mick made no effort on November 8 to seek other employ-
ment, I shall, for reasons above stated , include that day as one for which he should
be reimbursed , for he undoubtedly would have returned to work on that date if
he had been given the type of notice customarily required in such cases.
In conclusion , then , I find the amount of net back pay, less unreasonably incurred
losses, to be as follows:
Myers:
Net back pay------------ ------------------------------- ----- $285.85
Less unreasonably incurred loss between October 20 and 22 , or 24 hours
at $2.57 an hour------------------------------------------- 61.68
Back pay due-------------------------------------------- 224.17
Mick:
Net back pay---------------------------------------------- 409.21
Less unreasonably incurred loss between October 20 and November 5,
or 96 hours at $2.57 an hour-------------------------------- 246.72 -
Back pay due-------------------------------------------- 162.49
Carls :
Net back pay------------------------- - 329.38
Less unreasonably incurred loss between October 20 and 22 and be-
tween November 3 and 5 ,* or 48 hours at $2.57 an hour---------- 123. 36
Back pay due------------------------------------------- 206.02
Cassias:
Net back pay------------------------------ ------------- ----- $203.61
Less unreasonably incurred loss between October 20 and 22, or 24 hours
at $2.57 an hour------------------------------------------- 61.68
Back pay due-------------------------------------------- 141.93
*Although , if Cooney had mailed the required notice to the Charging Parties on November
3, 1954, it would presumably have been received on November 4, Spoon Tile would have
had no work before November 8 and Carls could, if he had accepted employment at Ideal
Builders , have worked on November 3, 4, and 5 for that company.
Byron-Jackson Division , Borg-Warner Corporation and Local 4,
International Molders and Foundry Workers Union of North
America, AFL-CIO, Petitioner . Case No. 9-RC-3004. 'May 15,
• 1957
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Clifford L. Hardy,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds :
1; The Employer is engaged in commerce within the meaning of the
Act.
2. The Petitioner, referred to herein as' Molders, and Local Lodge
1391, International Association of-Machinists, AFL-CIO, the Inter-
venor, referred to herein as IAM, are labor organizations claiming to
represent certain employees of the Employer.
117 NLRB No 204.