Circle Bindery, Inc.

National Labor Relations Board - Board Decisions

Oct 13, 1977

232 N.L.R.B. 1185 (N.L.R.B. 1977)

CIRCLE BINDERY, INC.
Circle Bindery, Inc. and Graphic Arts International
Union, Local 16-B, AFL-CIO. Case I-CA-9460
October 13, 1977
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
On June 26. 1975, the Board issued its Decision
and Order' in the above-entitled proceeding, finding
that Respondent had violated Section 8(a)(3) and (1)
of the National Labor Relations Act, as amended, by
discharging employee Peter Verrochi for engaging in
union and protected concerted activities. However,
the Board left for determination at the compliance
stage of this proceeding the question of whether
Verrochi qualifies for reinstatement and the extent of
the backpay period for him.
On May 28, 1976, the Board's Decision and Order
was enforced by the United States Court of Appeals
for the First Circuit.2
On June 22, 1977, Administrative Law Judge Irwin
Kaplan issued the attached Supplemental Decision
in this proceeding. Thereafter, the General Counsel
filed exceptions and a supporting brief, and the
Respondent submitted as its answering brief its brief
to the Administrative Law Judge.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Supplemental Decision in light of the
exceptions and briefs and has decided to affirm the
rulings, findings,3 and conclusions of the Administra-
tive Law Judge and to adopt his recommended
Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Circle Bindery,
Inc., Boston, Massachusetts, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order.
i 218 NLRB 861 (1975).
2 536 F.2d 447.
3 In adopting the attached Supplemental Decision of the Administrative
Law Judge, we do so solely on the basis of his findings that at no time
material herein did the Respondent make a firm offer of permanent
employment to Peter Verrochi. Accordingly. in agreeing with the Adminis-
trative Law Judge's finding that no firm offer of permanent employment
was made to Verrochi or. even if made. was accepted by Verrochi. we find it
232 NLRB No. 181
unnecessary to pass on the Administrative Law Judge's speculative findings
as to whether Verrochi would have accepted an offer of reinstatement by
Respondent.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
IRWIN KAPLAN, Administrative Law Judge: On June 26,
1975, the Board issued its Decision and Order directing
Circle Bindery, Inc. (herein referred to as Circle or
Respondent), to take certain affirmative action to effectu-
ate the purposes of the Act. However, the Board left open
for determination at the compliance stage whether Peter
Verrochi, the discriminatee herein, qualifies for reinstate-
ment and the extent of the backpay period for him. On
May 28, 1976, the Board's Decision and Order was
enforced by the United States Court of Appeals for the
First Circuit.2 The parties being unable to agree on
reinstatement and on the amount of backpay due consis-
tent with the terms of the Board's Decision and Order, the
Regional Director for Region I issued a backpay specifica-
tion dated October 29, 1976 (amended at the hearing). The
Respondent duly filed an answer thereto (amended at the
hearing).
A hearing was held before me at Boston, Massachusetts,
on February II, and March 1, 1977. Briefs, which have
been carefully considered, have been received from
General Counsel and Respondent.
Upon the entire record in this case,3 and from observa-
tion of the witnesses and their demeanor, I make the
following:
FINDINGS AND CONCLUSIONS
1. THE SElTING
Peter Verrochi was first employed as a folding machine
operator at Tremblay Trade, herein Tremblay, in October
1971. Sometime during the second week of November
1973, he was laid off temporarily. Tremblay has had a
collective-bargaining relationship with Graphic Arts Inter-
national Union, Local 16-B, herein Union, for many years.
Under the collective-bargaining agreement laid off unit
employees at Tremblay have the right of recall in
accordance with seniority. On or about November 20,
1973, 4 Verrochi went to the union office and spoke with
George Carlsen, union president and business agent, in an
attempt to secure employment during he would have to
take in even more work in December and thereafter to the
layoff period. Carlsen suggested to Verrochi that he apply
for employment at Circle because he believed that the
Company was looking for a folder operator, and told
I 218 NLRB 861.
2 536 F.2d 447.
3 The transcnpt of the earlier unfair labor practice proceeding was
received in evidence and shall be deemed Resp. Exh. 5.
4 All dates hereinafter are within 1973 unless stated to be otherwise.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Verrochi that while there he could attempt to organize that
shop.5 The next day Verrochi called Herbert Martel,
president of Circle, and told him that he was laid off and
was looking for some part-time work.6 Martel invited
Verrochi to discuss the matter further and indicated that he
might be able to use him full time. Within a few days
Martel and Verrochi met in Martel's office and discussed
terms and conditions of employment. At the meeting in
Martel's office, Verrochi related to Martel that he had been
laid off at Tremblay. Martel asked Verrochi whether he
would consider working for Circle full time, but noted that
Tremblay is a union shop and expressed some concern that
the union rate was too expensive for him. Verrochi
responded that if the offer was good enough he might
consider. A discussion ensued regarding wages and
benefits. Verrochi wanted full Blue Cross Blue Shield
coverage and 2-weeks' vacation the first year, and an
hourly rate dependent in part on the nature and extent of
the fringe benefits. Martel told Verrochi that he wanted to
think about the fringe benefits and also wanted time, at
least 30 days, to observe his qualities as a person, pointing
out that he expects his employees to be loyal to him. In
addition, Martel asserts that he did not know whether the
Company could afford to carry him as it already employed
one full-time journeyman. While most of Respondent's
employees work from 8:15 a.m. through 4:15 p.m.,
Verrochi asked for and was granted permission to start an
hour earlier and to work from 7:15 a.m. to 3:15 p.m.
According to Verrochi, he wanted to start an hour earlier
because he was hoping to work 1 hour overtime every day.
Verrochi testified that Martel did not rule out overtime but
that he first wanted to see how things worked out. It was
agreed that Verrochi would start the following Monday,
November 25, at 7:15 a.m. at the rate of $5.75 an hour.7
Verrochi was discharged on November 28 at approximate-
ly 10 a.m. for reasons violative of Section 8(a)(3) and (1) of
the Act.8 Pursuant to the recall provision of the contract
Verrochi returned to Tremblay on December 8. He worked
regularly at Tremblay from December 8, 1973, to June,
July or August 1975 before he was laid off again. He was
recalled around Labor Day 1975. He is currently employed
by Tremblay but has been laid off for long periods of time
since Labor Day 1975. Martel did not hire a journeyman
folder operator until November 1974, 1 year after he
discharged Verrochi. In November 1974 Martel hired Al
Bruno, a journeyman, who was also to be the general
foreman in the folding department. Bruno was hired
because several weeks prior thereto Errante had given
notice that he was leaving.
II. THE PRIOR DECISION
While the Board found that Respondent discharged
Verrochi in violation of Section 8(a)(3) and (I) of the Act, it
left open questions regarding the appropriate remedy for
him. The record in the earlier case established that
Verrochi was hired by Respondent on a temporary basis
5 At all times material herein Verrochi has been a member of the union
executive board and a member of the union organizing committee.
I The record reveals that on two or three occasions from 1968 through
November 1973. Verrochi had worked for Circle for bnef periods of time on
a part-time basis and on Saturdays.
while on layoff status from Tremblay, and that he returned
to Tremblay shortly after Respondent discharged him. The
Board noted that in such circumstances it normally cuts off
an employee's right to reinstatement and backpay as of the
date he was reemployed. However, the Administrative Law
Judge found that in the course of being hired for temporary
work Verrochi was asked if he would be interested in
permanent employment with Respondent rather than
returning to Tremblay, and, further, that the matter was
left unresolved between the parties. The Board stated that
on the basis of that record it was unable to clearly resolve
whether a firm offer of permanent employment was before
Verrochi or, if one had been made, he had not rejected it
by his conditioning acceptance of it on his terms, or
Respondent had withdrawn it because of his stated
preconditions for considering permanent employee status.
Accordingly, the resolution of whether Verrochi qualifies
for reinstatement and the full extent of the backpay period
for him were left for the compliance stage of this case. The
Board held that the minimum backpay Verrochi would be
entitled to is the period between his discharge and his
reemployment by Tremblay in accordance with the
Board's established standards as set forth in F. W.
Woolworth Company, 90 NLRB 289 (1950), plus interest at
6 percent, Isis Plumbing & Heating Co., 138 NLRB 716
(1962).
III. DISCUSSION AND ANALYSIS
A. Whether a Firm Offer of Permanent
Employment was Really Before Verrochi
It is undisputed that Martel asked Verrochi whether he
would be interested in steady employment. Martel also
concedes that at the time he hired Verrochi, the Company
was busy. However, he denies and the record so supports
that any long-term agreement (beyond 30 days) was
reached. Martel had been operating for a substantial
period of time with only one journeyman folder operator.
He did not know whether he could use another journey-
man and wanted a trial period of a least 30 days to
consider whether he really needed two journeymen. He had
enough work so that he could carry one journeyman on a
trial basis for 30 days but could not determine whether he
had enough work for a longer period. In this connection it
is noted that Martel did not hire another journeyman for
approximately 12 months after he discharged Verrochi,
and the individual so hired performed certain supervisory
functions as well. It is further noted that Martel hired
another journeyman only when informed by the only other
full-time journeyman that he intended to quit. This tends to
support Martel's assertion that he did not intend to carry
two journeymen unless the volume of business increased
markedly. Martel's uncontroverted testimony is that the
volume of business in December was the same as in
November, the month Verrochi was hired.
' Augustine Errante, the only other journeyman folder operator
employed by Respondent. received the same hourly rate. While at Tremblay
Verrochi earned $5.68 an hour but earned substantial overtime pay.
8 See 218 NLRB 861.
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CIRCLE BINDERY, INC.
Verrochi concedes that Martel wanted time to reflect on
certain terms and conditions of employment before he
would agree to grant them. In this regard Martel left open
such items as rate of pay, overtime, and fringe benefits,
including full Blue Cross Blue Shield coverage, and
vacation time. The record reveals that the only item agreed
upon at that time was $5.75 per hour on a temporary
basis.9 Still further Verrochi concedes that Martel told him
that a trial period was also necessary because he, Martel,
wanted time to observe certain of Verrochi's qualities as a
person. In this regard Verrochi testified in the earlier unfair
labor practice hearing, that "he [Verrochi] said he just
wanted to check me as a person. He told me that he hired
people on an individual basis, and that he expected a
certain amount of loyalty out of his people, the people that
he hired, and the people that worked for him. He said that
he would like to try me for a month to see if I would be
loyal and keep my mouth shut because he said that he
didn't like people going around telling each other what
they made or what their benefits were ... ."
Even relying on Verrochi's account as just set forth, it
appears that the remarks attributed to Martel militate
against a "firm offer" finding. Thus, Martel wanted more
time to observe Verrochi's qualities as a "person." As noted
above, he also wanted additional time to consider overtime
work and whether he would grant the fringe benefits asked
for by Verrochi. Moreover, Martel knew that Verrochi
worked in a union shop and he expressed concern that the
union rate was too expensive for him. Therefore if Verrochi
was desirous of continued employment, a permanent
hourly rate would still have to be negotiated. Finally,
Martel, who already employed one full-time journeyman,
did not know whether he could afford two full-time
journeymen. This would depend on the volume of business.
While he was busy in November 1973, he would have to
take in even more work in December and thereafter to
justify employing two full-time journeymen. Thus, Martel
was in no position to make a firm offer of employment to
Verrochi in November. In this setting, whether any firm
offer of permanent employment would ever be made is at
best, purely conjectural. In any event, I find that at the
time Verrochi was hired in November 1973 no firm offer of
permanent employment was made.' °
B. Verrochi's Conditions
Having found that Respondent made no firm offer of
permanent employment, I further find that the terms and
conditions set forth by Verrochi were merely matters to be
discussed or negotiated in the event Martel decided to
make a firm commitment. All Martel and Verrochi really
9 While Verrochi testified at the unfair labor practice hearing that he and
Martel agreed upon a $6 per hour rate, his testimony in the instant backpay
proceeding reveals that an hourly rate of $5.75 was agreed upon. As Martel
also asserts that an hourly rate of $5.75 was agreed upon, which is supported
by the pay records (Resp. Exh. 3), 1 find that Martel and Verrochi agreed
upon a $5.75 hourly rate.
lo Two Wheel Corp. d/b/a Honda of Mineola, 218 NLRB 486, 487 (1975);
cf. Nelson Manufacturing Company. 138 NLRB 883 (1962). wherein the
Board ordered reinstatement for an employee who was originally hired on a
temporary basis but was promised a permanent position.
II Cf. Nelson Manufacturing Company, supra.
12 Verrochi relies on the fact that Martel had paid him above the union
scale in the past. However. Verrochi's history of employment with
agreed to, was to agree to further discuss and consider the
possibility of continued employment. Martel did not
promise Verrochi permanent employment." They had not
agreed on anything firm or concrete in regard to the hours
of work, overtime, rate of pay, and fringe benefits. Verrochi
also wanted overtime work and $6 an hour, but would
accept $5.75 hourly rate if Martel provided the fringe
benefits. However, the record reveals that Martel wanted,
not only time to reflect on Verrochi's conditions, but to
observe Verrochi's overall performance and to determine
whether he really needed or wanted a second journeyman.
Accordingly, he started Verrochi off on a temporary basis
at $5.75 an hour with no overtime and no fringe benefits.
In contrast, Verrochi was earning $5.68 an hour at
Tremblay, worked overtime and received fringe benefits
under the union contract. He also had seniority protection
(right of recall) in the event of layoff.
When asked herein by the Administrative Law Judges
whether he would have returned to work at Tremblay if
recalled on November 27, 28, or 29, Verrochi responded,
"At that point, I would have had a talk with Herb [Martel]
to see if we could work something out full-time." Accord-
ing to Verrochi, he did not expect any problem in coming
to terms with Verrochi 12 but conceded that any full-time
employment was dependent on negotiations between them.
Assuming, arguendo, a firm offer of permanent employ-
ment was made, I find that the conditions set forth above
by Verrochi, in effect, nullified any initial offer. By
Verrochi's own account, he and Martel would have to
"negotiate" to determine whether they "could work
something out full-time." In these circumstances, the
situation was fluid and anything but "firm." Thus, as
previously stated, I find that at no material time herein,
there existed a firm offer of permanent employment.
C. Conclusions
The record established that Verrochi was hired by
Respondent on November 26, 1973, on a temporary basis
while on layoff status from Tremblay. Further, the record
establishes that Verrochi was discharged on November 28,
1973, and that he returned to Tremblay, his permanent
employer, on December 8, 1973, pursuant to the recall
provisions of the union contract. Having found that
Respondent had not made a firm offer of permanent
employment to Verrochi, his right to reinstatement and
backpay thereby was cut off on December 8, 1973,13 when
Respondent was extremely limited and therefore it cannot be given
ovemding weight. Further, Martel may not have been willing to grant any
of the fringe benefits and overtime as desired by Verrochi.
13 The General Counsel urges that backpay not be tolled because
Verrochi was fortunate enough to be reemployed by Tremblay. He urges
that to do so would penalize the discnminatee for what he is obligated to do.
to wit, seek substantial equivalent employment. The General Counsel also
asserts that reinstatement is proper because Verrochi testified that he would
have accepted reinstatement in 1973. 1 do not credit Verrochi's testimony in
this regard. It is noted that Verrochi worked regularly at Tremblay from the
time he was recalled on December 8. 1973. until the summer months of
1975, when he was laid off and recalled once again in September 1975. It is
also noted as found by the Board that Verrochi linked Respondent's misuse
(Continued)
1187
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he returned to Tremblay. 1 4
The Backpay
I find that Verrochi is entitled to backpay for the period
between the date of his discharge herein (November 28,
1973) and his reemployment by Tremblay Trade (Decem-
ber 8, 1973) in accordance with the Board's established
standards as set forth in F. W. Woolworth Company, 90
NLRB 289 (1950), plus interest at 6 percent, Isis Plumbing
& Heating Co., 138 NLRB 716 (1962). The record reveals
that Verrochi was hired to work 37-1/2 hours a week at the
hourly rate of $5.75. He worked 17-3/4 hours for which he
was paid $102.06.'5 He is entitled to receive backpay for
19-3/4 hours for the week he was discharged and 5 full
days (37-1/2 hours) commencing December 3 and ending
on December 7 of the following week for an amount of
of a union label to his layoff According to Verrochi such misuse depnved
him and other union shop employees of enjoying union pay rates and
benefits. While it is well settled that a discriminatee has an obligation to
mitigate damages, I find that in the circumstances of this case, given
Verrochi's strongly held views about working in union shops, Verrochi
intended to return to Tremblay notwithstanding his discussion with Martel
regarding steady employment. While it is undisputed that Verrochi wanted
to organize Respondent's employees it is at best speculative whether he
would have been successful.
14 See, e.g., Bankers Club, Inc., 218 NLRB 22, 28 (1975); Temperature
$329.20 with the interest at the rate of 6 percent per annum
in the manner previously set forth in this section.
Upon the basis of the foregoing findings and conclu-
sions, and upon the entire record in this proceeding, I
hereby issue the following recommended:
ORDER 16
Circle Bindery, Inc., Boston, Massachusetts, its officers,
agents, successors, and assigns, shall make the employee
named below whole by payment to him the amount set
opposite his name, with interest thereon at the rate of 6
percent computed in accordance with Isis Plumbing &
Heating Co., supra.
Peter Verrochi $329.20
Systems Corporation, 195 NLRB 1023 (1972); The Cavern Supply Company,
Inc., 187 NLRB 160, fn. 2 (1970); Combustion Engineering, Inc., 130 NLRB
184, 185 (1961); and Honda ojMineola, supra
'5 Resp. Exh. 3.
'6 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
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