Efco Manufacturing, Inc.

National Labor Relations Board - Board Decisions

Mar 21, 1955

111 N.L.R.B. 1032 (N.L.R.B. 1955)

1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. By restraining and coercing employees and prospective employees of the Em-
ployer herein involved in the exercise of rights guaranteed in Section 7 of the Act,
the Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (b) (1) (A) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
Appendix A
NOTICE TO ALL MEMBERS OF CARPENTERS LOCAL UNION No. 1028, UNITED BROTH-
ERHOOD OF CARPENTERS & JOINERS OF AMERICA, AFL
Pursuant to the recommendations of a Trial Examiner of the National Labor Re-
lations Board, and in order to effectuate the policies of the National Labor Relations
Act, as amended, we hereby notify our members and employees of The Dennehy
Construction Company that:
WE WILL NOT enter into or enforce a preferential hiring agreement or ar-
rangement with The Dennehy Construction Company, its officers, agents, suc-
cessors, or assigns, except to the extent permitted by Section 8 (a) (3) of the
Act.
WE WILL NOT cause or attempt to cause The Dennehy Construction Company,
its officers, agents, successors, or assigns, to discriminate against N. W. Black
and Tommie Black, or any other employee or prospective employee in violation
of Section 8 (a) (3) of the Act.
WE WILL NOT in any other manner restrain or coerce employees or prospective
employees of The Dennehy Construction Company in the exercise of the rights
guaranteed in Section 7 of the Act, except to the extent that such rights may
be affected by an agreement requiring membership in a labor organization as
a condition of employment as authorized in Section 8 (a) (3) of the Act.
WE WILL make N. W. Black and Tommie Black whole for any loss of pay
suffered by them as a result of our having prevented their employment by The
Dennehy Construction Company.
WE WILL notify The Dennehy Construction Company that we have no ob-
jection to the hiring of N. W. Black and Tommie Black.
CARPENTERS LOCAL UNION No. 1028,
UNITED BROTHERHOOD OF CARPEN-
TERS & JOINERS 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.
EFCO MANUFACTURING , INC. and UNITED STEELWORKERS OF AMERICA,
CIO. Case No.1-CA-1296. March 21,1955
Supplemental Decision and Order
On April 15, 1954, the National Labor Relations Board issued a
Decision and Order in the above-entitled case,' finding, inter alia, that
the Respondent had violated Section 8 (a) (3) and (1) of the Act by
refusing to reinstate employees Charles W. Arnold, John W. Bunnell,
John Clancy, James Cummiskey, Albert Leduc, and Joseph A. Tru-
dell. On September 17, 1954, the Regional Director for the First
1 Efco Manufacturing, Inc, 108 NLRB 245
111 NLRB No. 182.
EFCO MANUFACTURING, INC. 1033
Region issued a notice of further hearing for the purpose of determin-
ing the amounts of back pay due these employees. A hearing was
held on October 25, 26, and 27, 1954, before Trial Examiner Albert
P. Wheatley. On January 5, 1955, the Trial Examiner issued his
Supplemental Intermediate Report, attached hereto, in which he found
that specific amounts of back pay were due to all the discriminatees,
except Bunnell. Thereafter, the Respondent filed exceptions to the
Supplemental Intermediate Report and a supporting brief. The
Respondent's request for oral argument is hereby denied as the record,
including the exceptions and brief, adequately presents the issues and
positions of the parties.
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 exceptions and brief, and the en-
tire record in this case and hereby adopts the Trial Examiner's find-
ings and conclusions.
Order
Upon the basis of the supplemental findings of fact and the entire
record in the case, and pursuant to Section 10 (c) of the National
Labor Relations Act, as amended, the National Labor Relations Board
hereby orders that the Respondent, Efco Manufacturing, Inc., East
Greenwich, Rhode Island, its officers, agents, successors , and assigns,
shall pay to Charles W. Arnold, John Clancy, James Cummiskey,
Albert Leduc, and Joseph A. Trudell, net back pay in the following
amounts:
Charles W. Arnold------------------------------- $11995.59
John Clancy------------------------------------- 444.67
James Cummiskey-------------------------------- 1, 473. 58
Albert Leduc------------------------------------- 516.96
Joseph A. Trudell-------------------------------- 212.26
MEMBER RODGERS took no part in the consideration of the above
Supplemental Decision and Order.
Supplemental Intermediate Report
STATEMENT OF THE CASE
This report concerns the amount of back pay due Charles W. Arnold, John W.
Bunnell , John Clancy, James Cummiskey , Albert Leduc, and Joseph A. Trudell.l On
or about April 15, 1954, the National Labor Relations Board issued a Decision and
Order in the above-entitled matter directing , inter alia, that Respondent make whole
'At the hearing before the Trial Examiner the parties adjusted the issues concerning
Eugene Jacques and Raymond P Reed and no comments concerning the amount of back
pay due them will be made herein. By letter dated December 20, 1954, the Trial Examiner
was advised that payment to Jacques of the sum agreed upon had not been made. If pay-
ment pursuant to the agreement has not now been made, Counsel for the General Counsel
mhy file an appropriate motion to reopen the record herein.
1034 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the above-named persons for losses of pay suffered by reason of Respondent's dis-
crimination against them. Thereafter a hearing was duly held before the Trial
Examiner for the purpose of adducing evidence with respect to the amounts of
back pay to which the above-named persons might be entitled.
A. Charles W. Arnold
At the hearing before the Trial Examiner it was agreed that the period of time
involved in computing the back pay due Arnold is from August 27, 1952, to May 10,
1954. It was also agreed that but for the discrimination Arnold, on a quarterly
basis, would have earned from Respondent:
For the period ending September 30, 1952______________________________ $453 00
For the period ending December 31, 1952_______________________________ 753. 74
For the period ending March 31, 1953__________________________________ 780. 00
For the period ending June 30, 1953__________________________________ 760 00
For the period ending September 30, 1953______________________________ 820 50
For the period ending December 31, 1953_______________________________ 895. 50
For the period ending March 31, 1954__________________________________ 835. 75
For the period ending June 30, 1954___________________________________ 422.25
The only issue herein concerns Arnold's interim earnings.
During the latter part of August or the first part of September 1952 Arnold ob-
tained employment at Niles-Bement-Pond Co., Pratt & Whitney (also known as
Chandler-Evans) Division, and was continuously employed by this concern there-
after until February 1953, at which time he was laid off. During this period his
earnings, by quarters, were:
For the perod ending December 31, 1952_______________________________ $998. 79
For the period ending March 31, 1953_________________________________ 411 41
After being laid off by Niles-Bement-Pond Co., Arnold, a qualified shellfisherman,
became self-employed as a shellfisherman. He continued his private business ven-
ture until he was reemployed by Respondent on or about May 10, 1954. While
engaged in this business Arnold kept a record of his earnings by notations on the
back of a calendar. However, this calendar was not available at the hearing before
the Trial Examiner, it having been lost or destroyed before such hearing.2 Never-
theless, Arnold estimated that he earned "approximately $40 a week, over a yearly
average." Arnold further testified that his 1953 Federal income tax return was pre-
pared from the notations on the calendar. A photostat of this tax return was received
in evidence and it reveals that Arnold's income from this business approximated $40
per week.
The record reveals that shellfishing in polluted waters is more remunerative than
fishing in nonpolluted waters but that such fishing is prohibited. Nevertheless, this
record also reveals that it is not uncommon for shellfishermen to fish in polluted
areas and that fish and game wardens are kept busy trying to enforce the prohibition
against such fishing. This record further reveals that Arnold fished in polluted
waters "very rarely" and was fined on one occasion in 1953 3 for engaging in such
conduct.
Respondent contends that because Arnold fished in polluted waters his earnings
were many times $40 a week and because of this conduct his testimony is unworthy
of belief. The Trial Examiner rejects these contentions. There is no evidence that
Arnold's estimate of his earnings did not include his earnings, if any, from shell-
fishing in polluted waters. The presumption from this record is that the $40-a-
week figure includes such earnings. A presumption that because Arnold fished in
polluted areas he did not tell the truth under oath is not warranted.
Because the facts are peculiarly within Arnold's possession it is difficult for Re-
spondent to attack the facts as to the amount of money Arnold realized from his
business venture. Respondent, nevertheless, endeavored to establish that $40 per
2 The evidence herein is not sufficient to warrant an inference that this calendar was
deliberately destroyed in contemplation of this proceeding
i On this occasion (on or about November 11, 1953) Arnold's equipment was impounded
and held until January 1954 Apparently Respondent contends Arnold was idle during
this period and that Respondent should not be required to compensate him during this
period. Any such contentions are rejected by the Trial Examiner. The record reveals
that during this period Arnold borrowed equipment and used this equipment in shellfish-
ing once or twice a week and that Arnold "applied for work at Graham Manufacturing,
Squanton Naval Air Station" and at "another manufacturing place in East Greenwich."
EFCO MANUFACTURING, INC. 1035
week is a conservative estimate and that in fact Arnold realized more than that sum.
From the evidence adduced it can be surmised and guessed that such may be the
situation but such evidence does not warrant findings to this effect. Furthermore,
Respondent offered no evidence in contradiction of Arnold and no competent evi-
dence on which it can be estimated how much money Arnold realized if he did, in
fact, average more than $40 per week.
On the basis of his observations of witnesses and the record herein, the Trial Ex-
aminer credits Arnold's testimony and finds that his net earnings accruing from his
self-employment approximated $40 per week.
Under all the circumstances the Trial Examiner concludes and finds that the total
back pay-due Arnold amounts to $1,995.59. The table attached hereto marked
"Appendix A" reveals the method used by the Trial Examiner in determining this
sum.
B. John W. Bunnell
This record indicates that Bunnell has evidenced an unwillingness to cooperate in
determining the amount of money, if any, due him and a complete lack of interest in
this matter.4 In view of this, the lack of evidence as to his interim earnings and the
small sum of money involved (Counsel for the General Counsel now only claims
back pay for a 2-day period) the Trial Examiner believes that no award should be
made to Bunnell and that it should be determined that no money is due him under
the Board's order of April 15, 1954.
C. John Joseph Clancy
At the hearing before the Trial Examiner it was agreed that the period of time
involved in computing the back pay due Clancy begins August 27, 1952. There is a
dispute as to the cutoff date-Counsel for the General Counsel contends this date is
March 31, 1953, and Respondent contends it is not later than September 22, 1952.
It was also agreed that on a quarterly basis Clancy would have earned from Re-
spondent:
For the quarter ending September 30, 1952_____________________________ $362. 40
For the quarter ending December 31, 1952_____________________________ 603 00
For the quarter ending March 31, 1953_________________ ________ 624. 00
During 1952 Clancy worked part time for George Manolakos at Ocean Cafe, Oak-
land Beach, Rhode Island, a summer resort. Between August 27, 1952, and about
September 1, 1952-when his employment there ceased-Clancy earned about $50.
Between about September 1 and 23, 1952, Clancy unsuccessfully sought employ-
ment at Hill Manufacturing Company and at Chandler-Evans both in Providence,
Rhode Island.
Beginning about September 23, 1952, Clancy obtained employment at L. F. Pease
Co., Inc, in Providence, Rhode Island, at 90 cents per hour. His rate of pay at
Respondent's place of business had been $1.05 an hour. In March or April 1953
Clancy's rate of pay at Pease was raised to "a little bit more than" he had been re-
ceiving from Respondent and Clancy no longer desired reinstatement at Respond-
ent's place of business. While working at the Pease Co. Clancy did not seek employ-
ment elsewhere.
Respondent contends that because Clancy ceased looking for a higher paying job
after going to work for Pease Clancy failed to use due diligence to secure appropri-
ate employment. The Trial Examiner rejects this contention. While a dischargee
(Clancy) is under the necessity of mitigating his loss of pay flowing from the dis-
crimination, he is not required to exert extreme care to save Respondent money,
but only to use reasonable diligence in seeking appropriate employment. Bearing
in mind that Respondent, not Clancy, through its unlawful conduct brought about
Clancy's loss of pay, that Clancy's obligation to mitigate his loss required him to
make a reasonable attempt to obtain appropriate employment, that this record does
not reveal any unjustifiable refusal to take desirable employment or unjustifiable
i By letter dated September 20, 1954, Bunnell was advised of the hearing in this mat-
ter then scheduled for October 25, 1954. By letter dated October 4, 1954, Counsel for the
General Counsel asked Bunnell to meet him (Counsel for the General Counsel) on October
11, 1954, in order to prepare for the hearing. Bunnell did not appear at the meeting
scheduled for October 11, 1954, or at the hearing, which opened on October 25, 1954.
After the hearing started Counsel for the General Counsel telephoned Bunnell on two
separate occasions and requested that he (Bunnell) testify in this matter. Bunnell stated
he couldn't spare the time and he did not appear at the hearing.
1036 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
relinquishment of desirable employment, and Clancy's advanced age, and Clancy's
qualifications, the Trial Examiner cannot, as urged by Respondent, conclude that
Clancy failed to use due diligence in seeking appropriate employment.
Under all circumstances the Trial Examiner concludes and finds that the total back
pay due Clancy amounts to $444.67. The table attached hereto marked "Appendix
B" reveals the method used by the Trial Examiner in determining this sum.
D. James Cummiskey
At the hearing before the Trial Examiner it was agreed that the period of time
involved in computing the back pay due Cummiskey is from September 3, 1952, to
March 16, 1953. It was also agreed that on a quarterly basis Cummiskey would
have earned from the Respondent:
For the quarter ending September 30, 1952---------------------------- $374 48
for the quarter ending December 31, 1952---------------------------- 623. 10
For the quarter ending March 31, 1953------------------------------- 476. 00
Total----------------------------------------------------- $1,473.58
On or about April 26, 1953, Cummiskey, a young man who celebrated his 19th
birthday on June 6, 1952, entered the Armed Forces of the United States. Between
September 3, 1952, and March 16, 1953 (the period involved herein), Cummiskey
was not gainfully employed.
During the period of time involved herein Cummiskey was registered with the State
unemployment office (The State of Rhode Island and Providence Plantations Depart-
ment of Employment Security) and visited that office "a couple of times a month"
in an effort to obtain employment. He was not referred to a job. In addition Cum-
miskey made individual efforts to get work. He testified:
I went to Chandler-Evans after we were out on strike We went on strike
March. We were on strike. I went back in the summer of that year [1952].
I went back later on in the summer, maybe early fall. Then, at the same time,
I applied at Allenton Mills, Allenton, Rhode Island, for a job. I applied three
or four different times.
Cummiskey further testified that at Chandler-Evans he (Cummiskey) was told that
Chandler-Evans desired to employ people who would probably be available for
employment for a longer period of time than it then appeared Cummiskey would
be available in view of his draft status. Cummiskey was not offered a job.
At Allenton Mills, Cummiskey was told that no help was needed.
Cummiskey also sought, unsuccessfully, laborer's work at the Elm Grove Ceme-
tery in Allenton, which was about a quarter of a mile from his home, and, through
his father (a "boss" at Ideal Windlass in East Greenwich), sought, unsuccessfully,
work at Ideal Windlass.
During the period of time involved herein the Providence, Rhode Island, news-
papers carried help wanted advertisements. Nevertheless, Cummiskey did not avail
himself of the opportunities afforded by these advertisements. He testified that he
did not normally receive these newspapers, that he would have had to walk 2 miles
to get them, and that the reason he did not get them was "maybe I didn't want to
take the walk for 2 miles." He further testified he did examine the classified ad-
vertisements in the local newspaper-a weekly published under the name of Wick-
ford Standard-but did not find any "help ads" that he "followed up." There is no
evidence that the advertisements in this newspaper sought persons having the back-
ground and experience which Cummiskey possessed.
Respondent contends that instead of repeated visits to Chandler-Evans and to
Allenton Mills, Cummiskey should have sought more fertile territory, that Cum-
miskey should have capitalized upon the opportunities afforded by the classified
advertisements in the Providence newspapers, and that Cummiskey's failure to do
these things amounts to a lack of diligence to find employment. While a more pru-
dent person might have done these things, the Trial Examiner cannot, in the light
of this record as outlined in this report, conclude that Cummiskey failed to use due
diligence. Bearing in mind Cummiskey's age and draft status, Cummiskey's experi-
ences at Chandler-Evans because of his draft status; Cummiskey's registration with
the State unemployment office and Cummiskey's individual efforts to get work, in-
cluding his search through local newspapers, the Trial Examiner believes that Cum-
miskey made reasonable efforts to secure desirable employment.
Under all the circumstances, the Trial Examiner concludes and finds that the total
back pay due Cummiskey amounts to $1,473.58.
EFCO MANUFACTURING, INC. 1037
E. Albert Leduc
The Board Decision and Order of April 15, 1954, and the record of the hearing
before the Trial Examiner reveal, and the Trial Examiner finds, that the period of
time involved in computing the back pay due Leduc is from August 27, 1952, to
October 14, 1952. At the hearing before the Trial Examiner it was agreed that on a
quarterly basis Leduc would have earned from Respondent
For the quarter ending September 30, 1952_____________________________ $ 468. 16
For the quarter ending December 31, 1952______________________________ 167. 20
Between August 27, 1952, and September 29, 1952, Leduc unsuccessfully sought
employment from Milburn Mills, Bryant Finishing, P. V. Dye, Pantex, and Apponaug.
In addition, he was registered with the State unemployment office (The State of
Rhode Island and Providence Plantations Department of Employment Security).
Between September 29, 1952, and October 14, 1952, Leduc worked 2 weeks for the
Greenwich Printing and Dyeing Company and earned $118.40.
On the basis of the record in this matter the Trial Examiner concludes and finds
that the total back pay due Leduc amounts to $516.96. The table set forth below
reveals the method used by the Trial Examiner in determining this sum.
Quarter ending
Gross
earnings
Interim
earnings Net due
September 30, 1952 ------------------------------------------------------
$468 16 0 $468 16
December 31, 1952 ---------------------------------------------------- 167 20 $118.40
48 80
Total---------------------------------------------------------------
516.96
F. Joseph A. Trudell
At the hearing before the Trial Examiner it was agreed that the period of time
involved in computing back pay due Trudell is from August 27, 1952, to September
22, 1952. It was also agreed that during the period of time involved herein Trudell
would have earned from Respondent $307.04.
During the weeks ending September 6 and 13, 1952, Trudell was employed by
M. A. Gammino Construction Company and earned $94.78. After being laid off
by M. A. Gammino, Trudell sought employment from Textron, a concern he had
applied to for employment prior to going to work for Gammino, but did not secure
employment there. Prior to August 27, 1952, Trudell registered with the State
unemployment office but during the period of time involved herein he did not claim
unemployment compensation. There is no evidence that the unemployment office
referred him to a job.
The Trial Examiner concludes and finds that the total back pay due Trudell
amounts to $212.26 (gross earnings are $307.04 less interim earnings of $94.78).
[Recommendations omitted from publication.]
Appendix A
Charles Arnold
Quarter ending September 30, 1952
Gross earn in gs ------------------------------------------------------------ $453 00
Interim earnings ------------------------------------------------------------------ -------
Net due ---------------------------------------------------------------------------------- $453 00
Quarter ending December 31, 1952
Gross earnings ----------------------------------------- ---------------------------- 753 74
Interim earnings ------------------------------------------------------------------ 998 79
Quarter ending March 31, 1953
Gross earnings ---------------------------------------------------------------------- 760 00
Interim earnings ($41141 plus $280 00 estimated at $40 per week for 7 weeks ) --------- 691.41
Net due---------------------------------------------------------------------------------- 88 59
Quarter ending June 30, 1953,
Gross earnings ---------------------------------------------------------------------- 760.00
Interim earnings (estimated at $40 per week for 13 weeks)------------- ---------- ---- 520 00
Net due----------------------------------------------------------------------------------- 240.00
1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Charles Arnold-Continued
Quarter ending September 30, 1953
Gross earnings---------------------------------------------------------------------- $820 50
Interim earnings (estimated at $40 per week for 13 weeks)___________________________ 520 00
Net due---------------------------------------------------------------------------------- $300 50
Quarter ending December 31, 1953.
Gross earnings---------------------------------------------------------------------- 895 50
Interim earnings (estimated at $40 per week for 13 weeks)--------------------------- 520 00
Net due------------------------------------------------------------------------------- - 375 60,
Quarter ending March 31, 1954:
Gross earnings-------------------------------------------------------------------- 835.75
Interim earnings (estimated at $40 per week for 13 weeks)___________________________ 520 00
Net due----------------------------------------------------------------------------------- 315.75
Quarter ending June 30, 1954•
Gross earnings-------------------------------------------------------------------- 422 25
Interim earnings (estimated at $40 per week for 5 weeks)---------------------------- 200 00
Net due--------------------------------------------------------------------------------- 222.25
Total due 1,995 59
Appendix B
John Joseph Clancy
Quarter ending September 30, 1952
Gross earnings-------------------------------------------------------------------- $362 SO
Interim earnings (Mauolakos, Ocean Cafe)------------------------------------------ 50 Co
Net due--------------------------------------------------------------------------------- $312.40
Quarter ending December 31, 1952.
Gross earnings-------------------------- --------------------------- 603 00
Interim earnings (L F. Pease Cc ) -------------------------------------------------- 587 39
Net due------------------------------------------------ ----------------------- 15 61
Quarter ending March 31, 1953.
Gross earnings------------------------------------------------------------------- 624 00
Interim earnings (L F Pease Co )-------- ------------------ -- ______________________ 507.34
Net due 116 66
Total due------------------------------------------------------------------------------ 444.67
INDUSTRIAL STAMPING AND MANUFACTURING COMPANY, DIVISION OF
VINCO CORPORATION, PETITIONER and INTERNATIONAL UNION,
UNITED AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT
WORKERS OF AMERICA (UAW-CIO)
INDUSTRIAL STAMPING AND MANUFACTURING COMPANY, DIVISION OF
VINCO CORPORATION and INTERNATIONAL UNION, UNITED AUTOMO-
BILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMER-
ICA (UAW-CIO), PETITIONER. Cases Nos. 7-RM-133 and 7-RC-
2601. March 21, 1955
Decision and Direction of Election
Under separate petitions duly filed under Section 9 (c) of the Na-
tional Labor Relations Act, a consolidated hearing was held before
111 NLRB No. 177.