Deena Artware, Inc.

National Labor Relations Board - Board Decisions

Apr 21, 1955

112 N.L.R.B. 371 (N.L.R.B. 1955)

DEENA ARTWARE , INCORPORATED 371
ployees by reducing them in seniority to conform to the dates of their union
memberhip , and we will not engage in any like or related conduct.
WE WILL make whole Arthur G. Brackett and Patrick M. Kenily for any
loss of earnings which they suffered as a result of the discrimination against
them.
LOCAL 600, INTERNATIONAL BROTHERHOOD OF
TEAMSTERS , CHAUFFEURS , WAREHOUSEMEN &
HELPERS OF AMERICA, AFL,
Labor Organization.
Dated---------------- By----------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof , and must not
be altered, defaced , or covered by any other material.
Deena Artware , Incorporated and United Brick and Clay Work-
ers of America , Affiliated with American Federation of Labor.
Case No. 9-CA-44. April 21, 1955
SUPPLEMENTAL DECISION AND ORDER
On October 25, 1949, the Board issued a Decision and Order in the
above-entitled proceeding, finding, inter alia, that the Respondent had
violated Section 8 (a) (3) of the Act by discharging more than 60
employees. The Board therefore ordered the Respondent to offer
reinstatement to these employees and to make them whole for any
loss of pay suffered as a result of the discrimination against them.'
On July 30, 1952, the court of appeals handed down its decision en-
forcing the Board's Order.' Thereafter, on October 1, 1952, the court
of appeals denied the Respondent's petition for a rehearing. The
United States Supreme Court denied a petition for a writ of certiorari
on March 9, 1953.'
I The Board 's Decision and Order and its Supplemental Decision are reported in 86
NLRB 732 and 95 NLRB 9.
The Board 's Order, in relevant part, directed the Respondent to take the following
affirmative action with respect to the discriminatorily discharged employees :
(a) Offer . . . immediate and full reinstatement to their former or substantially
equivalent positions without prejudice to their seniority or other rights and privileges ;
(b) Make whole . . . for any loss of pay they may have suffered by reason of the
Respondent ' s discrimination against them , by payment to each of them of a sum of
money equal to the amount which he normally would have earned as wages during the
period from the date of his discharge to the date of the Respondent 's offer of rein-
statement, less his net earnings during such period ;
3 N. L R. B. v. Deena Artware, Inc., 198 F. 2d 645 (C. A. 6).
On May 8, 1950, the Board filed in the Court of Appeals for the Sixth Circuit a petition
for enforcement of its Order. On August 11, 1950, the Respondent filed a motion to re-
mand the case to the Board to adduce additional evidence . The court granted the Re-
spondent 's motion on October 12, 1950. Pursuant to the remand , a further hearing was
held before a Trial Examiner, who issued a Supplemental Intermediate Report. The Board
issued its Supplemental Decision on July 6, 1951 (95 NLRB 9), and thereafter filed a sup-
plemental petition for enforcement of its Order. The decree of the court enforced the
Board's Order , granting reinstatement and back pay to 62 employees . (The court 's modi-
fication of the Board's Order as to four additional employees is not relevant to this pro-
ceeding.)
8 345 U. S. 906.
112 NLRB No. 44.
369028-56-vol. 112-25
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent and representatives of the Board were subse-
quently unable to reach agreement with respect to the amounts of back
pay due the employees under the terms of the court decree, and the
Regional Director ordered a hearing to resolve such disagreement.
A hearing was held on February 15, 16, 17, and 18, 1954, before Trial
Examiner C. W. Whittemore, who issued a Supplemental Inter-
mediate Report on March 30, 1954. The Trial Examiner found
specific amounts of back pay due 56 employees, and recommended
that the Respondent reimburse them in accordance with his findings.
He dismissed back-pay claims of six employees who did not appear
at the hearing.4 The Respondent filed exceptions to the Supplemental
Intermediate Report and a brief. At the Board's request, it filed
supplemental exceptions and a supplemental brief 5
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Sup-
plemental Intermediate Report, the supplemental exceptions and
brief, and the entire record in this case, and hereby adopts the findings,
conclusions, and recommendations of the Trial Examiner, with the
following corrections and modifications.
Basis of the Back-Pay Computations
The Trial Examiner adopted a schedule of complainants' back pay,
substantially as submitted by the General Counsel, showing the
amount of net back pay owed each employee. Explanatory notes,
attached to the schedule, recited the pertinent facts with respect to
the discriminatees' employment history. The schedule also contained
transcript references to the employees' testimony and citations to the
exhibits supporting the back-pay computations. The General Coun-
sel expressly disclaimed job rights for six employees who did not
appear to testify at the hearing. He questioned each of the 56 who
were present as to his efforts to obtain employment, expenses incurred
A Tilmon Barker, James Green, Gertrude Slayden, Gordon Harris, James Joyner, and
Charles Mitchuson
6 The General Counsel moved to strike , in their entirety , the Respondent 's exceptions and
brief on the ground that they did not meet the requirements of the Board's Rules and Regu-
lations ( Series 6 , Section 102 .46) in that they failed to "designate by precise citation of
page and line the portions of the record relied upon " Thereafter , the Board advised the
Respondent that its documents were unacceptable and that it would order them stricken
from the record unless the Respondent filed exceptions and brief , within 14 days, in con-
formity with the Board's Rules . The Board requested the Respondent to supply " `precise
citation of page and line' to the portions of the record ( including the Supplemental Inter-
mediate Report and the wage computations contained therein) to which the Respondent
desires to raise a question and that it wishes the Board to consider ." It also stated : "To
the extent that you may except to any findings or conclusions with respect to the amount
due each employee pursuant to the Court decree, the Board requests that you submit to
the Board your own computation of the amounts due, based upon facts in the record." The
Respondent has filed supplemental exceptions and a supplemental brief. Accordingly, the
General Counsel 's motion is hereby denied.
DEENA ARTWARE, INCORPORATED 373
in connection with the search for work, interim earnings, periods of
illness or other periods when he was removed from the labor market,
and his employment status from May 29, 1948, the date the Respondent
discriminatorily discharged the employees, to March 23, 1953, the date
the Respondent offered them reinstatement.
The General Counsel also introduced supporting data, including
copies of individual Federal income tax returns, employees' W-2
withholding statements, Social Security Administration reports show-
ing wages received by the discriminatees during the back-pay period,
and information supplied by the discriminatee to the Board listing
interim employment and wages. The General Counsel further intro-
duced summaries of the Respondent's payroll records showing the
rates of pay of replacements, hours worked, and schedules of seniority
prevailing during the back-pay period, and established a reasonable
method for computing back pay.
Before the hearing, the General Counsel furnished the Respondent
with a tentative schedule of back-pay claims. There is nothing in
the record to show that the Respondent offered the General Counsel
any estimate of its own. The hespo'ident did not file any counter-
estimates of back pay due or a brief with the Trial Examiner. Its
supplemental exceptions do not now question the wage computation
for any specific employee.' The Board asked the Respondent to fur-
nish its own computation of the amounts due (see footnote 5). It
has not done so. It says that it cannot until the Board decides the
general issues raised by the exceptions. We confine our consideration
to those issues.'
The Normal Workweek for the First 13 Weeks of the Back-Pay
Period
The Trial Examiner adopted computations based on a 48-hour
workweek (in all except 2 departments) in determining pay for the
first 13 weeks of the back-pay period. He utilized this workweek be-
cause the discriiinatees "would have worked 48 hours per week except
for Respondent's unfair labor practices," Appendix, note No. 1. The
Respondent contends that this early part of the back-pay period
should be based on a 40-hour week.
6 We note , however, that the Respondent 's original brief to the Board said that the
schedule showed discriminatees ' gross earnings in excess of amounts earned by the re-
placements It did not point to a single instance to substantiate this assertion . The supple-
mental brief omits entirely reference to this exception we therefore find it without merit
7 The Trial Examiner recommended that subsistence payments , paid by the Federal Gov-
ernment to claimants attending Veterans ' Administration approved trade schools , should
not be deducted from gross earnings No exception has been filed to this recommendation
Accordingly , we adopt it . The Appendix schedule therefore includes addition of the sub-
sistence payments to net back pay due, as recommended by the Trial Examiner , Appendix,
note No. 7.
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board's Order, as enforced , directed the Respondent to pay to
each discriminatee the back wages he "normally would have earned."
The evidence shows that 48 hours was the normal workweek in the
Respondent's plant before the discriminatory discharges in 1948.
The Respondent's payroll clerk and personnel director so testified in
this proceeding. And, in the earlier proceeding, the Board found that,
shortly before the discriminatory discharges, the Respondent reduced
its normal 48-hour workweek to 40 as a measure of reprisal against its
employees for electing the Union as their bargaining representative.8
The Board also found that, after the Respondent had hired replace-
ments, it increased the workweek to approximately the hours prevail-
ing before the election. The Respondent points to no evidence to prove
that its normal workweek had been 40 hours. It has not supported its
contention. We therefore reject it.
Expenses Incurred by Some Discriminatees in Seeking Work
The Trial Examiner adopted computations for five employees that
deducted travel expenses from their gross interim earnings. The travel
expenses covered the cost of transportation, board, and room that these
employees incurred in seeking work in localities away from their
homes, Appendix, note No. 2. The Respondent argues that such
expenses are proper only when the Board orders reinstatement of
employees in a plant which the employer has moved to a new location,
and that otherwise the allowance of expenses for distant trips would
seem to open the door to extensive padding by claimants.
The Order in this case, as enforced, directed the Respondent to pay
to the discriminatees the wages they would have earned during the
period of discrimination "less net earnings" (see footnote 1). This
remedy incorporated by reference the Board's early decision in Cros-
sett Lumber Company, defining the term "net earnings." 9 The Cros-
sett decision established the principle that extra expenses of trans-
portation, room, and board incurred by discriminatees in searching
for work-expenses which diminished their gross interim earnings-
shall be deducted therefrom in order to compute net interim earnings.
8 86 NLRB 732 at 745, adopted by the court, 198 F 2d 645 at 647.
The Board did not find that the Respondent's act of reprisal in cutting the workweek to
eliminate overtime earnings was an independent violation of Section 8 (a) (1) because the
complaint did not allege such violation But both the Board and the court considered such
conduct as evidence of the Respondent 's bad faith in negotiations , since the complaint did
allege that the Respondent had failed to bargain in good faith, in violation of Section
8 (a) (5).
Because of the limited allegations in the complaint, the Board did not order the Re-
spondent to remedy the effect of its eliminating the 48-hour week However, the failure
to provide a remedy for imposing the abnormal workweek does not detract from the fact
that the Respondent 's established normal workweek was 48 hours.
9 8 NLRB 440 , 497-498, cited in 86 NLRB at 804
DEENA ARTWARE, INCORPORATED 375
The Board has consistently followed this definition of net earnings.10
And the United States Supreme Court has noted the Crossett principle
with approval."
The Respondent does not suggest that any of the five employees
who was forced to leave his home to search for work padded his
expenses or that his expenses were unreasonably large. It only
speculates that there might be room for falsification of expense ac-
counts. We find its argument insufficient.
Insurance Benefits Lost by the Discriminatees
The Trial Examiner adopted gross back-pay computations that
included medical maternity benefits payable under the terms of a
group insurance policy to nine claimants who bore children during
the back-pay period, Appendix, note No. 3.12 The Respondent ex-
cepts to the inclusion of the item on insurance benefits, asserting that
the insurance policy was not in effect during the back-pay period
with respect to the discharged employees.
The Board's Order directed the Respondent to "make whole" the
discriminatorily discharged employees for losses they suffered by
reason of the Respondent's discrimination against them. There is
no question here that one of the losses suffered included the surgical
operation and hospitalization benefits payable under the group policy
insuring Deena's employees. The Respondent does not dispute this.
If, as the Respondent seems to contend, the policy terminated as to
the discharged employees on account of the discriminatory discharge,
this argument misses the point of our Order. We do not determine
here the insurer's liability under the policy.13 We seek only to make
whole the employees for the losses suffered by reason of the Respond-
ent's discrimination. We find that these claimants suffered the loss
of their insurance benefits.
10 See recent decisions in L B. Hosiery Co , Incorporated, 99 NLRB 630 , 635, 651-653;
supplemental decree making definite amounts of back pay due, 34 LRRM 2144 (C. A 3),
January 16 , 1954; adjudging employer and successor in civil contempt , 34 LRRM 2639
(C. A 3), June 25, 19,54; West Texas Utilities Company, Inc ., 109 NLRB 936 ; Kartarsk,
Inc, 111 NLRB 630
Phelps Dodge Corp v. N. L It B , 313 U S. 177, 198.
12 The Trial Examiner also adopted computations allowing medical benefits to two other
employees , payable under the terms of the group insurance policy, Appendix, note No 6.
No exception has been filed to this finding. We therefore adopt it.
la The Respondent says in its brief that if the group insurance policy had continued in
effect as to the discharged employees , these employees would have paid part of the
premium We fail to see the relevance of this argument . But, in any event, the Respondent
did not offer any evidence at the hearing to show the policy terms , that the employees did
not pay premiums , or even that they were required to do so The master group insurance
policy is not in the record. The General Counsel requested the Respondent's counsel to
produce it , but the latter did not do so. The Kentucky statute (Kentucky Revised Statutes
1953 , Sec 304 839 ) cited by the Respondent , has no application to this case. It provides
that premiums on a group life insurance may be paid in part by employee contribution.
It also provides that group life insurance policy premiums may be paid wholly by the em-
ployer, and in some circumstances , wholly by the employee.
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Respondent further excepts to the allowance of maternity
benefits to three employees (Elsie Calhoun, Margaret Holdman, and
Loretta Tucker) who, it states, have been paid insurance benefits.
The Respondent introduced no evidence at the hearing to prove such
payment. We therefore find its contention without merit.
The Continuing Employment Status of the Discriminatees
The gross earning period, as approved by the Trial Examiner,
does not include certain temporary periods when some employees
were out of the labor market on account of pregnancy, illness, acci-
dent, or not looking for work, Appendix, notes Nos. 3 and 5. Aside
from this deduction from the gross earning period, the computations
of back pay resume when the employees reentered the labor market.
The Respondent contends that, under its employment policies, it
would have terminated the employment relationship of those who re-
mained away from work for such extended' periods, and therefore
all gross earnings should be cut off completely as of the time these
employees were out of the labor market.
The Respondent's argument lumps together employees involuntarily
removed from the labor market because of illness or pregnancy and
those who removed themselves for temporary periods by not looking
for work. We cannot fit the case of employees who did not seek
work during some part of a period of unemployment, caused by the
Respondent's discharging them, into any alleged employment policy
applicable to working employees. We therefore find that the Trial
Examiner properly excluded from the gross back-pay period the
periods when employees did not seek work, and he properly considered
that the discriminatees' status as "employees" continued when they
reentered the labor market.
The Respondent asserts that, under its employment policy, it would
have terminated the services of employees absent for extended periods
on account of pregnancy or illness. The Trial Examiner found that
the Respondent had not adduced any credible evidence proving an
established sick or maternity leave policy. He therefore allowed
back-pay deductions from the gross earning period for only the time
these employees would. normally be unavailable for work.14
14 The schedule , as adopted , deducts from the gross earnings period definite periods when
some employees were out of the labor market because of illness or accident . It also ap-
plies the Board's usual rule governing childbearing claimants , deducting from gross back
pay otherwise due 3 months before and 3 months after the birth of children . Empire
Worsted Mills, Inc., 53 NLRB 683, 688. ( The Court of Appeals for the Second Circuit
amended its decree, enforcing an earlier Board Order , to incorporate back pay as com-
puted. Opinion of February 14, 1944, not reported in official reporter system.) Four
childbearing claimants, however, who removed themselves from the labor market for longer
periods do not earn gross back pay for this longer period following the birth of their
children. See names of Dorothy Ann Cherry , Robbie Flake , Opal ]Keeling, and Pauline
DEENA ARTWARE, INCORPORATED 377
We have examined the record in the light of the exception raised by
the Respondent. The Respondent does not rely on a written policy or
rule governing absences in its plant.15 Both the Respondent's person-
nel director and clerk in charge of payrolls testified that the Respond-
ent granted no maternity leave but that there was a 30-day sick leave
policy, and that employees who returned to work after such absences
did so as new employees. The latter recalled that the floorlady of one
department, apparently a supervisor, returned to work at less pay
after an absence due to illness. The personnel director, employed but
a few months before the discharges, did not recall any employee who
was absent more than 30 days on account of illness. She said that
the Respondent terminated employees who ceased work because of
pregnancy, and that she had told the Respondent's maternity leave
policy to one or two employees whose names she could not remember.
The payroll clerk testified that the Respondent never terminated preg-
nant employees but that they quit themselves. Employee Boyd testi-
fied that after her pregnancy in 1947 she returned to the same job
with the same pay.
In view of the variance between the testimony of the Respondent's
responsible administrative employees, the fact that the Respondent
introduced no written policies, the vague testimony of the Respond-
ent's personnel director who could not remember the name of any
employee to whom she told the Respondent's maternity leave policy,
the payroll clerk's hearsay testimony as to a supervisor's sick leave
experience, and the contradiction of their testimony by employee Boyd
who said that she suffered no loss in job rights when she returned to
work, we will not overturn the Trial Examiner's credibility resolutions.
It has been the Board's settled practice not to disturb the credibility
findings of the Trial Examiner, based on his observation of the de-
meanor of the witnesses, unless the clear preponderance of all the rele-
vant evidence demonstrates that the Trial Examiner's resolution was
incorrect." No such conclusion is warranted in this case. We there-
fore adopt the Trial Examiner's findings."
Harris on Appendix, note No 3 as having given birth to children Their names also ap-
pear on note No. 5 as employees who were not in the labor market for extended periods
after the birth dates of their children.
15 The Respondent 's personnel director testified that leave policies were not written until
after November 1948. The Respondent did not introduce any written employment policy
in evidence
10 Standard Dry Wall Products, 91 NLRB 544, enforced 188 F. 2d 362 (C. A. 3) ;
N L R. B. v. Universal Camera Corp., 190 F. 2d 429, 430 (C A 2).
17 The Respondent argues, alternatively , that if the Board finds that the Respondent
had no maternity leave policy , then it should hold that employment status terminated
when the pregnant employee became incapacitated In order for the Respondent to pre-
vail in its contention that extended absences ( because of either illness or pregnancy) cut
off the employees ' job rights , it would seem to be necessary for it to prove that it never
rehired any employee who had been absent for these reasons . This is not the Respondent's
contention In any event , the back-pay claim for childbearing claimants for periods after
their children were born relates only to those mothers who reentered the labor market.
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Measure of "Interim" Earnings
The Trial Examiner adopted computations for 16 employees that cut
off the Respondent's liability to these employees at a date when they no
longer desired reinstatement, Appendix, note No. 4. The Respondent
excepts to a finding allowing employees to waive their job rights, con-
tending that it enables them to select, on hindsight, a cutoff date in a
period of high interim earnings-an earning period that the Respond-
ent cannot credit against its back-pay liability.
The computations reflect usual Board practice in determining net
back pay due discriminatorily discharged employees.18 Under the
terms of the Order an employee's gross pay is that which the Re-
spondent would have paid the employee, but for the discrimination,
from the date of the discrimination to either the employer's offer of
reinstatement or the employee's waiver of reinstatement, whichever
came first. The record shows that some employees eventually ob-
tained better jobs and would not have accepted an offer of reinstate-
ment to the Respondent's plant. Using this cutoff date to establish
gross back pay due, the calculation subtracts from gross back pay the
dischargee's net interim earnings before, but not after, the cutoff date
to arrive at net back pay.13
The Respondent desires to offset against gross back pay all employee
earnings to the date it offered reinstatement-some 5 years after the
discriminatory discharges. It thus seeks to benefit by its continuing
refusal to offer reinstatement to the employees. But it could have
reduced its back-pay liability at any earlier time that it selected-
merely by offering reinstatement to the discriminatorily discharged
employees. In any event, under the terms of the Order, the Respondent
will not be required to pay back wages to these employees with respect
to any period for which it may not take credit for their earnings. We
reject the Respondent's contention and find that the Trial Examiner
properly measured the period of interim earnings.
Is New York Handkerchief Mfg Co ., 16 NLRB 532 , 550, 558 , enforced as modified 114 F.
2d 144, 147-148 (C. A. 7 ), certiorari denied 311 U. S. 704; Kaplan Bros ., 45 NLRB 799,
enforced 138 F. 2d 884 (C. A. 2 ), certiorari denied 321 U. S 788; E. A. Laboratories, Inc.,
80 NLRB 625 , 627, enforced as modified 188 F. 2d 885 ( C. A. 2), certiorari denied 342
U. S 871 ; Don Juan Co , Inc., 79 NLRB 154, 157, 167 , enforced 185 F. 2d 393 ( C. A. 2) ;
Kopman-Woracek Shoe Mfg. Co ., 66 NLRB 789 , 800, enforced as modified 158 F. 2d 868
(C. A. 8).
16 The Board no longer calculates back-pay in one lump sum over the entire period of
discrimination It modified the formula in F. W Woolworth Company, 90 NLRB 291-
293 (approved by the United States Supreme Court in Seven- Up Bottling Co., 344 U. S.
344). The Board now computes the net back pay to which an employee discriminatorily
denied employment is entitled by computing the net back pay to which the employee is en-
titled for each 3-month calendar period and totaling the quarterly net amounts. Under
this method of computation , earnings in any quarter which exceed the amount the em-
ployee would have earned in the employment from which he was discriminatorily barred
are not treated as diminishing the back pay accrued in any other quarter.
DEENA ARTWARE, INCORPORATED 379
The Employees' Diligence in Seeking Work
The Trial Examiner found that there was no credible evidence
to establish that any employee incurred a wilful loss of earnings.
The Respondent does not except specifically to this finding, but states
generally that the employees did not show that they exercised due
diligence in seeking work.
The General Counsel introduced the detailed testimony of each
employee as to his job search. Every single employee for whom the
General Counsel made a back-pay claim testified at the hearing to his
efforts in seeking employment, naming places and dates of employ-
ment applications as nearly as possible. He further introduced
documentary evidence showing each employee's history of actual em-
ployment and earnings. The schedule computing gross back pay, as
submitted by the General Counsel, excluded all periods when 11 em-
ployees were not available for work because of illness, accident, or
not looking for work, Appendix, note No. 5. It excluded all periods
after which 16 employees would have refused reinstatement, Appen-
dix, note No. 4. It excluded 6-month periods surrounding the birth
of children to 9 claimants, Appendix, note No. 3. It excluded entirely
more extended periods surrounding the birth of children to four
claimants who indicated that they would not have reentered the labor
market after the birth of their children, Appendix, note No. 5 (see
names in footnote 14). It also deducted periods of layoffs, affecting
the earnings of 16 employees, Appendix, note No. 8. The General
Counsel made no claim whatsoever for six employees who did not ap-
pear at the hearing to testify (see footnote 4).
The record shows the depressed labor conditions prevailing in the
area following the employees' discriminatory discharge. Employees
testified that the State Employment Service declined to register some
of them, and that employers in the area would not hire some of them
because they were involved in a labor dispute at the Respondent's
plant. These circumstances, coupled with the fact that a very large
part of the group were women without special job skills, satisfy us
that the employees diligently sought work during the periods for
which back pay is claimed for them.
Against this, the Respondent makes but a bare statement that dur-
ing the back-pay period labor conditions changed to one of increased
labor demand. The Respondent did not establish the exact date for
the asserted change in the economic climate 20 It does not show when
23 In an opening colloquy between the Trial Examiner and the Respondent's counsel, the
latter placed the date of the establishment of the Atomic Energy installation as January
1951 The Board cannot consider counsel's statements as evidence But, in any event, the
date, standing alone , does not prove that any employee wilfully incurred a loss of earnings.
380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
either Government or new private industry became established in the
area. Other than its reference to the Atomic Energy installation, it
does not say what industry came in. It does not show what types
of jobs were available, or if any of these employees could have per-
formed them. A statement that there was an increased labor demand
is hardly evidence that any employee wilfully forewent an opportunity
to work.
The Board requested the Respondent to document its exceptions
and brief by reference to record citations. The Respondent does not
refer to any part of the record on which it relies to substantiate this
exception 21 At the hearing the Respondent did not name any em-
ployee who it contended did not seek work, although the Trial Ex-
aminer asked it to do so. And the Respondent does not now name
any employee who unjustifiably refused any job offers or gave up new
employment. Its assertion that some of the discriminatees earned
little falls short of establishing that anyone wilfully incurred losses
by refusal to take desirable new employment.
The Accuracy of the Computations
The Respondent contends that the schedule shows inaccuracies and
errors on its face. We have audited the computations for arithmeti-
cal accuracy and corrected the errors. The attached Appendix re-
flects this audit and contains the final computations as corrected.
ORDER
Upon the basis of this Supplemental Decision and the entire record
in this case, the National Labor Relations Board hereby orders that
the Respondent, Deena Artware, Incorporated, Paducah, Kentucky,
its officers, agents, successors, and assigns, shall pay to the employees
named in the Appendix, attached hereto, who were found to have
been discriminated against by a Board Decision and Order issued
October 25, 1949, as enforced by a decree of the Court of Appeals for
the Sixth Circuit, net back pay in the amount set out in the Appendix.
MEMBER LEEDOM took no part in the consideration of the above
Supplemental Decision and Order.
m The cases cited by the Respondent are not in point. In N. L R . B. v. Pugh and Barr,
Inc, 207 F. 2d 409 (C. A 4 ), the court held that the discriminatee 's registration with the
State unemployment agency was not conclusive proof of the employee's diligence in seeking
work. The General Counsel did not rely in this proceeding on registration as conclusive
proof of the employees ' diligence in seeking work. And the Respondent fails to mention any
discriminatee here who, like the employee involved in Seam,prufe, Incorporated, 106 NLRB
1143, made only the most meager effort in seeking work.
DEENA ARTWARE, INCORPORATED
APPENDIX
SCHEDULE OF COMPLAINANTS ' BACK PAY
381
Gross
earnings Layoff
Vaca-
tion
pay
Travel
expense
Medical
expense
Interim
earn-
ings
Net
back
pay
Lee G. Berry ______________________ $3, 554 82 ---------- $30.00 $25 00 $2,287 56 $1, 322 26
Elizabeth Boyd ____________________ 9,301.45 $1,616 27 301 60 $108 00 3, 623 81 4, 470.97
Dorothy Branton __________________ 9,301 45 230 91 251.60 915 74 8, 406.40
Alice Brian----- ------------ ------- 9,301 45 313.60 12 10 9,602 95
Frank Burns _______________________ 10,659 24 431 20 2, 361 73 8,728 71
Elsie Calhoun______________________ 9,726 17 1, 614 48 313.60 108 00 975 34 7,557 95
Doris Cambron ____________________ 0, 301 45 307 60 136 10 9,472 95
Thomas Carper ____________________ 3,684 16 114 00 1,800 84 1 , 997.32
Sadie Lee Carter___________________ 6,933 26 151.41 234 40 __________ 7,016 25
Dorothy Ann Cherry______________ 5, 239 66 299 35 86 00 70 00 2, 258 37 2, 837 94
James Coleman ____________________
Warren Crane ______________________
14, 406 48
14 406 48
-----
325 60
445 60 46 60
14,918 72
8, 496 70
_
, 401 98
Rossie DePriest____________________
,
9,726 17 9 24 313 60 733 35 9, 297.18
Ila Dick ---------------------------- 9, 726 17 605 54 253 60 8,455 37 918, 86
Edward Dykes _____________________ 4,231 36 40 00 790 69 3,480 67
Pauline Few----------------------- 10, 454 08 347 60 3,422 20 7,379 48
Ruth Farley _______________________ 9,726 17 2, 033 96 249 60 5,435 27 2,506 54
Robbie Flake ______________________ 9, 726 17 3,463 46 159 60 66 00 54 75 6, 433.56
Lucille Frymire____________________ 9,301 45 307.60 3, 775 56 5,933 49
William N . Girten_____ ____________ 543 40 __________ 543 40
Christine Green____________________ 9, 726 17 2, 204.85 313 60 132 00 1,027 77 6,939 15
Eugene Halstead ___________________ 2,133 91 36 00 1,064 92 1,104 99
George Hardman __________________ 9,058 94 304.80 6,724 14 2.639 60
Pauline Harris _____________________ 916 49 33 24 __________ 883 25
Florine Hill________________________ 9,301 45 ---------- 249 60 1,889 07 7,661.98
Sam Hines , Jr______________________ 4, 256 36 ---------- 92 00 4,215 45 132 91
Margaret Holdman_________________ 9,301.45 1,604,97 251.60 108 00 528 39 7,527.69
Kelly Joiner_______________________ 4, 727 25 249.60 88 00 38.00 3, 275.22 1,328 43
Kenneth Johnson __________________ 5, 787 73 9.50 194 00 5,405 91 566 32
Opal Keeling----------------------- 6,489 77 863.92 225 60 62 00 __________ 5,913 45
Clayton Klein --------------------- 11,855 70 301 60 80 00 10, 492 60 1 , 744.70
Alice Leigh ------------------------ 9,726 17 924, 68 253 60 1,479 50 2, 993 38 7, 541 21
Charles Leneave ___________________ 9,018 48 431.20 2,161 83 7, 287.85
Annette Leidecker _________________ 9,301.45 273.25 251.60 106.00 9 173.80
Martha Julia Ligon _________________ 9,726 17 3, 929.54 247 60 ---------- 6,044 23
Grace Mallory ______________________ 9,301 45 313 60 134.25 9,480 80
Marvin A. McCoy __________________ 10,476 43 249 60 8, 582 67 2, 143.36
Trine McDonald ___________________ 9,301 45 313 60 4,455 77 5, 159.28
Myra Meek ------------------------- 9,301.45 343.60 2, 788 37 6, 856 68
Cecil Park, Jr______________________ 3,463.42 28.00 2, 592 09 899 33
Ava Nell Plumlee __________________ 9,726 17 2, 936.95 245 60 464 86 6,569 96
Thelma Ray----------------------- 9,301 45 489.86 335.60 517 31 8, 629 88
Eddleman B . Reeves____ __________ 6, 453 21 184.00 644.50 2,722 63 4, 559 08
Leona Stokes _______________________ 9,301 45 2, 075 27 251 60 140.00 1,027 . 42 6,590 36
Lucille Rudd______________________ 9, 301 45 343 60 1, 443 00 8, 202 05
Frances Ryan______________________ 10,391 26 933 95 353 60 66.00 __________ 9,876.91
Edna Sanders______________________ 9,301 45 1,039.96 245.60 2, 264 77 6, 242 32
John L Steger _____________________ 11, 165.92 431.20 9,918 44 1, 678 68
Frances Taylor_____________________ 9,726.17 9.24 313.60 .2,33934 7,691 19
Charles Thompson_________________ 2, 272 79 24 00 1,572 35 724.44
Willard Thompson_________________ 4,156 69 120 00 1, 736 22 2, 540.47
Loretta Tucker____________________ 9,726 17 791.81 327.60 62 00 40.00 9, 283.96
Beulah Wade -____________________ 9, 726 17 328.39 251 60 40 00 359 21 9, 330.17
Geneva Walker _____________________ 9, 726 17 9 24 251 60 1,166 78 8,801 75
Zettie Walker______________________ 9,301 45 251.60 197 00 9,356.05
Ray Rushing ______________________ 12,426 21 295.82 393.20 9, 241 69 3, 281.90
382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Note No. 1: After the discharges on May 29, 1948, normal production was not
achieved for several weeks. Examination of the schedules in General Counsel's
Exhibit No. 2 discloses that all departments had achieved a 48-hour week with a
regular complement of employees by the payroll period ended September 4, 1948.
Therefore, except in the decorating and finishing departments, the discriminatorily
discharged employees would have worked 48 hours per week except for Respond-
ent's unfair labor practices. In the decorating and finishing departments the normal
complement of employees was reached by the same payroll period, but the average
number of hours worked had been achieved almost immediately. Therefore, Re-
spondent's figures as to average number of hours worked per employee in the
finishing and decorating departments are what the discriminatorily discharged em-
ployees would have worked, less discrimination, and are accepted. Except for
those 2 departments the complainants would have worked 676 hours (adjusted for
time and one-half for overtime after 40 hours) for the period of May 29 to August
28, 1948.
Note No. 2, travel expenses: Lee G. Berry made a trip to St. Louis, Missouri, in
1948. He spent $25 on transportation, room, and board. Berry worked on his
job in St. Louis but 2 days.
Warren Crane also worked in St. Louis. Bus fare to St. Louis was $4 60. Crane's
room and board for 3 weeks, at $14 per week, totaled $42. Crane's family then
joined him.
Clayton Klein spent $10 per week for 8 weeks while employed in Detroit, before
being joined by his wife.
Alice Leigh worked in Detroit for 71 weeks. Room and board for that period
cost her $1,455.50. Transportation by bus for the round trip was $24.
Eddleman B. Reeves was employed in Peoria during his period of discrimination.
The round trip by automobile, at 7 cents per mile for 450 miles, cost Reeves $31.50.
Room and board in Peoria for 3 weeks, at $15 per week, cost him $45. Also,
Reeves worked for TVA at Golden Pond, Kentucky, for 65 days. Transportation
by Reeves' automobile cost him $364, for the daily 80-mile round trip. Reeves
also worked at Cleveland, Ohio. The 1,200-mile round trip by his private auto-
mobile cost him $84, at 7 cents per mile. While Reeves was employed in Cleveland,
room and board for 6 weeks, at $20 per week, cost him $120.
Note No. 3, births of children: During the period of discrimination, several
children were born to discriminatorily discharged female employees.
Deductions from gross earnings were made on the following basis- 13 weeks' pay
prior and 13 weeks' pay after the payroll period in which the child was born was
deducted from the complainant's gross earnings. Additions to gross earnings were
reimbursable medical and hospital expense.
Name of complainant Date ofbirth
Medical
expenses
Amount
deducted
Elizabeth Boyd--------------------------------------------------- 2-22-49 $54 00 $718.33
Do------------------------------------------------------------- 9-15-50 54 00 897 94
Elsie Calhoun---------------------------------------------------- 10-11-48 54 00 777 74
Do----------------------------------------------------------- 4-2-50 54 00 836 74
Dorothy Ann Cherry--------------------------------------------- 12-10-51 ------------ (i)
Robbie Flake------------------------------------------------------ 1-26-50 ------------ (i)
Do------------------------------------------------------------- 3-12-52 66 00 1,149 23
Opal Keeling----------------------------------------------------- 6-29-49 62 00 863 92
Do-------------------------------------------------------------- 6-17-52 ------------ (i)
Christine Green--------------------------------------------------- 8-23-49 66 00 959.39
Do------------------------------------------------------------ 8-10-51 66 00 1, 236 22
Pauline Harris------------------------------------------------------ 1-15-49 ------------ (i)
Do ------------------------------------------------------------- 6-7-51 ------------ (i)
Margaret Heldman------------------------------------------------ 9- -48 54 00 798 05
Do-------------------------------------------------------------- 7-11-50 54 00 806.92
Thelma Ray------------------------------------------------------- 3-29-53
(2) 489 86
Frances Ryan------------------------------------------------------ 1-7-53 66 00 933.95
Leona Stokes------------------------------------------------------- 10-26-49 70 00 844.14
Do-------------------------------------------------------------- 7-10-52 70 00 1,231.13
Loretta Tucker----------------------------------------------------- 12-17-48 62.00 782.57
Not entitled to back pay at time of child's birth for other reasons.
2 Refused reinstatement , not an employee at time of child's birth.
DEENA ARTWARE, INCORPORATED 383
Note No. 4: The following employees are not entitled to back pay after the dates
following their names. The complainants would not have accepted reinstatement
after the said dates.
Lee G. Berry ------------------------------------------------- 3-7-50
Frank Burns -------------------------------------------------- 9-15-52
Thomas Carper ----------------------------------------------- 1-25-50
Edward Dykes ------------------------------------------------ 12-31-49
William Girten ------------------------------------------------ 8-16-48
Eugene Halstead ---------------------------------------------- 6-30-49
George Hardman ---------------------------------------------- 9-21-51
Sam Hines, Jr. ------------------------------------------------ 5-28-51
Kelly Joiner -------------------------------------------------- 4-12-51
Kenneth Johnson ---------------------------------------------- 12-31-50
Charles Leneave ---------------------------------------------- 3-11-52
Cecil Park, Jr. ------------------------------------------------ 4-27-50
Eddleman B. Reeves ------------------------------------------- 2-2-51
John L. Steger ------------------------------------------------ 4-17-52
Charles Thompson --------------------------------------------- 1-1-49
Willard Thompson --------------------------------------------- 3-14-50
Note No 5: The following employees are not entitled to back pay for the periods
following their names because of removal from the labor market, because of illnesses
(other than pregnancies ), accidents , or giving up search for employment.
Dorothy Branton ------------------------------------ 7-27-48 to 9-18-48
Sadie Lee Carter ------------------------------------ 12-31-51 to 3-23-53
Dorothy Ann Cherry ---------------------------------- 4-30-51 to 3-23-53
Ila Dick --------------------------------------------- 4-27-52 to 7-26-52
Robbie Flake --------------------------------------- 4-17-49 to 4-1-51
Pauline Harris -------------------------------------- 12-31-48 to 3-23-53
Kelly Joiner ----------------------------------------- 6-25-48 to 8-28-48
Opal Keeling --------------------------------------- 12-31-51 to 3-23-53
Annette Leidecker ----------------------------------- 10-22-50 to 12-9-50
Martha Julia Ligon ---------------------------------- 5-29-48 to 12-31-48
Do --------------------------------------------- 1-1-49 to 6-1-49
Do --------------------------------------------- 8-1-52 to 12-31-52
Do --------------------------------------------. 1-1-53 to 3-23-53
Beulah Wade --------------------------------------- 7-16-48 to 9-4-48
Do --------------------------------------------- 6-21-49 to 7-2-49
Note No. 6. Reimbursable medical expense should be allowed under the benefit set
out in the Medical Insurance Policy.
Name Surgery
Hospital
ization
Kelly Joiner-------------- -------------------------------------
Beulah wade--------------------------------------- -------------------
10 00 28 00
40 00
Note No. 7: Veterans' Administration subsistences while attending Tilghinan
Trade School are not deducted from the gross earnings of the following employees:
Name
No.
Months Rate Total
Frank Bums ------------------------------------------------------------- 21 $94 50 $1,994 50
Kenneth Johnson ------------------------------------------ 9 105.00 945 00
Clayton Klein----------------------------------------------------------- 12 105 00 1, 260 00
Marvin McCoy --------------------------------------------------------- 9 120 00 1,080 00
Note No. 8, layot's: Layoffs are figured by departmental seniority by the weekly
payroll period. Layoffs have been computed according to such seniority except for
the period of subnormal operation from May 29 to August 28, 1948. The seniority
tables and average number of employees working each week as set out in General
Counsel's Exhibit No. 2 have been followed. All layoff deductions from gross earn-
384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ings have been lumped together on schedule of complainants ' back pay . Other layoff
deductions are covered in Notes Nos. 3 and 5 . Deductions from gross earnings
caused by layoffs from work necessitated by insufficient seniority are as follows:
Name Amount
Sadie Lee Carter------------------------------------------------ $ 151.41
Dorothy Ann Cherry-------------------------------------------- 299.35
Rossie Depriest------------------------------------------------- 9. 24
Ila Dick------------------------------------------------------- 9.24
Ruth Farley---------------------------------------------------- 2,033.96
Christine Green---------- --------------------------------------- 9.24
Pauline Harris-------------------------------------------------- 33.24
Kenneth Johnson----- ------------------------------------------- 9.50
Alice Leigh---------------------------------------------------- 924.68
Martha Julia Ligon---------------------------------------------- 810.65
Ava Nell Plumlee----------------------------------------------- 2,936.95
Edna Sanders--------------------------------------------------- 1,039.96
Frances Taylor------------------------------------------------- 9.24
Loretta Tucker------------------------------------------------- 9.24
Beulah Wade--------------------------------------------------- 9.24
Geneva Walker------------------------------------------------- 9.24
Crystal Ice & Cold Storage Company and United Packinghouse
Workers of America, Local 78, CIO , Petitioner . Case No. 21-
RC-3804. April 921,1955
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Martin Zimring, 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 National Labor Relations Act.
2. The labor organizations involved claim to represent certain em-
ployees of the Employer.
3. No question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act, for the following
reasons:
The Petitioner seeks to represent a single unit of production em-
ployees at the Employer's four vacuum cooling plants located at
Phoenix, Mesa, Glendale, and Cashion, Arizona, respectively, exclud-
ing the engineers.' The Employer and Intervenor, Local 274, Sales
Drivers and Helpers, International Brotherhood of Teamsters, Chauf-
feurs , Warehousemen and Helpers of America, AFL, contend that
only a companywide unit is appropriate here, including in addition
1 International Union of Operating Engineers , Local 428, AFL, appeared at the hearing
for the sole purpose of protecting its interests in the engineers whom it currently repre-
sents
112 NLRB No. 50.