I. Posner, Inc.

National Labor Relations Board - Board Decisions

Aug 3, 1965

154 N.L.R.B. 202 (N.L.R.B. 1965)

202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
taurants of of Renaissance, and that we shall refrain from picketing for any pur-
pose between 8 a.m. and 12 p.m. and 2:30 to 5 p.m., when deliveries are nor-
mally made.
FOR THE FOLLOWING AFFILIATES OF HOTEL & RESTAURANT
EMPLOYEES AND BARTENDERS INTERNATIONAL UNION,
AFL-CIO,
(1) LOCAL 89, CHEFS AND COOKS UNION OF N.Y.,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
(2) LOCAL 15, BARTENDERS UNION OF N. Y. C.,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
(3) LOCAL 1, DINING ROOM EMPLOYEES UNION,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Fifth
Floor, Squibb Building, 745 Fifth Avenue, New York, New York, Telephone No
751-5500, if they have any questions concerning this notice or compliance with its
provisions.
I. Posner, Inc., Posner Distributing Corp ., and Posner Beauty and
Barber Supply Corp .' and District 65, Retail , Wholesale and De-
partment Store Union , AFL-CIO. Case No. 29-CA-14 (formerly
2-CA-7270). August 3, 1965
SECOND SUPPLEMENTAL DECISION AND ORDER
On October 30, 1961, the National Labor Relations Board issued a
Decision and Order in the above-entitled case, finding that the
Respondent had discriminated against certain named employees in
violation of Section 8(a) (1) and (3) of the National Labor Relations
Act, as amended.2 Thereafter, the Board's Order was enforced by
the United States Court of Appeals for the Second Circuit, and a
decree was entered on July 3, 1962, against the Respondent.' The
decree provided, inter alia, that Respondent make whole the employ-
ees named therein for any loss of pay suffered by reason of Respond-
ent's discrimination against them.
On December 21, 1962, the Regional Director for the National Labor
Relations Board for Region 2 issued a backpay specification and the
Respondent filed an answer and amended answers thereto. Upon
1 Hereinafter referred to collectively as Posner or the Respondent.
2 133 NLRB 1567.
3 A* L.R B. v I Posner, Inc, et al , 304 F 2d 773 (C A 2).
154 NLRB No. 15.
I. POSNER, INC ., POSNER DISTRIBUTING CORP ., ETC. 203
appropriate notice issued by the Regional Director, a hearing was held
before Trial Examiner James F. Foley for the purpose of determining
the amounts of backpay due the claimants.
On August 15, 1963, the Trial Examiner issued the attached Supple-
mental Intermediate Report in which he found that the claimants were
entitled to specific amounts of backpay. Thereafter, Respondent and
General Counsel filed exceptions to the Supplemental Intermediate
Report, and supporting briefs.
On February 17, 1964, the Board issued its Order reopening record
and remanding proceeding to Regional Director for further hearing,
in order that the Trial Examiner might issue certain subpoenas druces
tecum applied for by the Respondent and for such further proceedings
dealing with related matters as might become necessary.
Said subpenas were issued and a hearing pursuant thereto was con-
ducted by the above-named Trial Examiner on May 11, 12, 14, and 15,
1964. A further hearing was held on February 10, 1965, on Trial
Examiner Foley's own motion.
On March 30 , 1965, the Trial Examiner issued his attached Supple-
mental Decision and Recommended Order. Thereafter, Respondent
and General Counsel filed exceptions thereto, and briefs in support of
said exceptions.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has
delegated its powers in connection with this case to a three -member
panel [Members Fanning, Brown , and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
at the hearings , and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the entire
record in this case, including the Supplemental Intermediate Report,
the Supplemental Decision and Recommended Order, the exceptions,
and the briefs, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, except as modified below.
1. For the reasons fully set forth in the Supplemental Intermediate
Report and Supplemental Decision and Recommended Order, we adopt
the Trial Examiner's recommendations concerning the backpay due
discriminatees Ronald Bell, Robert Bell, Freddie Allen, and Gerald
Mussenden.
2. The Trial Examiner recommended certain diminutions of back-
pay in the case of discriminatee James Johnson . Thus , in his Supple-
mental Intermediate Report, the Trial Examiner recommended a
reduction of Johnson's backpay in the amount earned by another indi-
vidual on a job secured through the Union hiring hall, which job John-
son presumably would have obtained had he been in attendance at the
hiring hall on certain specified days early in April 1961. In his Supple-
204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mental Decision and Order, the Trial Examiner recommended a fur-
ther reduction in Johnson's backpay for the period he was out of work,
concluding that Johnson should have gone to the hiring hall three
times weekly, rather than once and hence that 2 days' pay a week (or
40 percent) should be deducted from his net backpay for each week he
was out of work with the exception of the period covered by the above-
mentioned diminutions. We do not agree.
The record reveals that on February 23, 1960, almost immediately
after the inception of the backpay period, Johnson secured a job
through the aid of Union Organizer Doswell at the Pur-All Paint
Products Co., Inc., where he worked until November 24, 1960, when he
was laid off for lack of work. He was out of work for approximately
9 months until September 5, 1961, when through the Union, he was
recalled by Pur-All, where he remained through the end of the backpay
period.
During his period of unemployment, Johnson went to the New York
State Unemployment Office each Thursday morning, and to the af ore-
mentioned Union hiring hall once or twice each week. Three times he
was sent by the State to its employment office but was not dispatched to,
or assigned, a job. He sought work at Roulette Records, Seaboro
Trucking, and Ansonia Shoe Stores, and made inquiries about jobs
through friends and a cousin. He visited, and on several occasions
called, Pur-All to ask for work but was told that no work was available
and that they would notify him through the Union when he might
return to work.
All the circumstances bearing upon the adequacy of Johnson's search
for employment must be evaluated against the Board's longstanding
rule in these cases that "while the general burden of proof is upon the
General Counsel to establish the damage which has resulted from
Respondent's established discriminatory discharge, i.e., the gross back-
pay over the backpay period, the burden of proof is upon the Respond-
ent as to diminution of damages, whether from the willful loss of earn-
ings by the failure to either look for or keep a substantially equivalent
job or from the unavailability of a job at Respondent's plant for some
reason unconnected with the discrimination." 4 Upon careful exam-
ination of this record, we do find that Respondent has shown that
Johnson acted unreasonably or that he willfully incurred loss of earn-
ings during the backpay period in question. Accordingly, we find that
Johnson made the necessary effort in his search for work and that he is
4 Mastro Plastics Corporation, et al., 136 NLRB 1342, 1346.
6 We do not believe that such laxity appears from the fact that Johnson was not at
the hiring hall on any specific day or that he did not utilize the hiring hall more fre-
quently. See Brown and Root, Inc., et al., doing business as joint venturers under the
name of Ozark Dam Constructors , 132 NLRB 486 , 501, 540-543; Bonnar-Vawter, Inc.,
135 NLRB 1270, 1274.
I. POSNER , INC., POSNER DISTRIBUTING CORP., ETC. 205
entitled to backpay on account of the discrimination against him in the
amounts set forth in the General Counsel's specifications, as amended,
to wit :
GROSS BACKPAY
1st quarter 2d quarter 3d quarter 4th quarter
1960
$248.19 $600 11 $628 80 $667 85
1961
709 82 713 75 771 . 36 373 27
LESS INTERIM EARNINGS
1st quarter 2d quarter 3d quarter 4th quarter
1960
217.21 734 19 761 38 I 487.77
1961
000 00 20 30 230 72 421 28
Accordingly, on the basis of the foregoing facts, the Supplemental
Intermediate Report, the Supplemental Decision, and the entire record
in this case, the National Labor Relations Board hereby orders that
the Respondent I. Posner, Inc., Posner Distributing Corp., and Posner
Beauty and Barber Supply Corp., their officers, agents, successors, and
assigns, shall pay to the employees involved in this proceeding as net
backpay the following amount: 6
Ronald Bell __________________________________ $1,766.80
Robert Bell__________________________________ 356.78
Freddie Allen________________________________ 807.49
Gerald Mussenden____________________________ 45.55
James Johnson_______________________________ 2,154.97
5,131.59
0 We further direct that the addition of interest at the rate of 6 percent per annum
shall accrue from the date of this Order on the respective amounts that have herein been
determined to be payable to each discriminatee. Nassau and Suffolk Contractors' Asso-
ciation, Inc., 151 NLRB 972 ; Isis Plumbing and Heating Co., 138 NLRB 716.
SUPPLEMENTAL INTERMEDIATE REPORT
STATEMENT OF THE CASE
On December 21, 1962, the Regional Director of the National Labor Relations
Board's Region 2 issued a backpay specification in the above case alleging that I.
Posner, Inc., Posner Distributing Corp., and Posner Beauty and Barber Supply Corp.,
herein collectively called Respondent , owed backpay to five employees adjudged dis-
criminatees under Section 8(a)(3) and (1) of the National Labor Relations Act,
as amended ( 61 Stat. 136, 73 Stat . 519), herein called the Act , by the Board on
206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
October 30, 1961,1 and the United States Court of Appeals for the Second Circuit on
July 3, 1962.2 Respondent filed an answer on January 14, 1963, and amended
answer on February 6, 1963, and a later date
A 9-day hearing on the backpay specification and last amended answer was held
before Trial Examiner James F. Foley during the period between February 20, 1963,
and April 5, 1963. General Counsel and his Regional Director and Respondent
were represented by counsel. They and the Charging Party were afforded an oppor-
tunity to be heard, make oral argument, and file briefs. General Counsel and
Respondent, by counsel, offered oral testimony and documentary evidence, exam-
ined and cross-examined witnesses, and made objections, motions, and oral argument.
Counsel for General Counsel filed a brief after the close of the hearing.
FINDINGS AND CONCLUSIONS
I. PRELIMINARY FINDINGS
The five discriminatees for whom the General Counsel seeks backpay are Ronald
Bell, Robert Bell, Freddie Allen, Gerald Mussenden, and James Johnson. The Gen-
eral Counsel seeks backpay for the period from February 23, 1960, to November 21,
1961. Respondent offered them reinstatement on November 21, 1961.3 The Board
ruled in its decision (supra, at 1567, footnote 1) that the defense of replacement to
the remedies of reinstatement and backpay was not available to Respondent at the
compliance stage since it had not asserted it during the unfair labor practice pro-
ceeding. I read the decision of the Second Circuit (supra, at 774) as affirming this
ruling.4 The Board did not decide whether the strike engaged in by these discrim-
inatees from September 1, 1959, to February 23, 1960, was an economic strike or
an unfair labor practice strike. However, in view of the Board's ruling that the
Respondent is estopped from asserting the defense of replacement it is not material
for the purposes of this proceeding whether the strike was an economic strike or an
unfair labor practice strike.
Respondent is a manufacturer of cosmetics, a distributor of its own products and
those of other manufacturers, an installer of beauty and barber equipment, and a
supplier of beauty and barber materials It manufactures cosmetics, those with a
petrolatum base, such as hair greases and straighteners, and creams and liquids. On
November 11, 1962, a fire destroyed the building in which Respondent manufactured.
Since that time it has had its products made by other companies under contract
II. THE BACKPAY SPECIFICATION
A. The backpay formula
General Counsel's specification alleges backpay due premised on a formula con-
sisting of gross backpay by quarterly periods that the five discriminatees would have
earned from February 23, 1960, the date when they would have returned to work,
1133 NLRB 1567.
2 N L R.B. v I. Posner, Inc., et al., 304 F. 2d 773 (C. A. 2).
a The Board found that these five employees were discriminated against in violation of
Section 8(a) (3) and (1) of the Act by the refusal of Respondent to reinstate them upon
their unconditional offer on February 19, 1960, to return to work on February 23, 1960
These employees had participated in a strike from September 1, 1959, to the date they
offered to return to work. The strike was in connection with the efforts of District 65,
Retail, Wholesale, and Department Store Union, AFL-CIO, herein called the Union, to
organize Respondent 's employees.
See also I Posner, Inc, et at., 140 NLRB 1313.
The Board found discrimination against four employees in addition to those named
in the backpay specification The four others were Vernon Butler, whose interim earn-
ings exceeded his backpay claim, and employees Morales, Moore, and Simpson Respond-
ent's reinstatement offer of November 21, 1961, included Morales but not Moore and
Simpson. The Second Circuit did not enforce the Board's Order insofar as it related to
Morales, Moore, and Simpson because of the Board's finding in a separate proceeding (133
NLRB 1555, 1562, 1564) that they engaged in misconduct during the strike It remanded
the case to the Board insofar as it affected these three employees to permit Respondent
to assert the strike misconduct as a defense. The Board on the remand (140 NLRB
1313), found the misconduct a defense to the charge of discrimination for refusal to
reinstate Moore and Simpson. Respondent did not claim Morales' misconduct as a
defense to reinstatement
I. POSNER, INC., POSNER DISTRIBUTING CORP., ETC. 207
to November 20, 1961, the date on which Respondent offered to reinstate them, less
interim earnings in the respective quarterly periods of which General Counsel has
knowledge adjusted by any expenses occurring in connection with the interim employ-
ment responsible for the earnings. General Counsel's position is that he had met his
burden of proof upon proving the gross backpay due, and that it is the burden of
Respondent to show diminution of damages, whether from interim earnings, willful
loss of earnings by the failure to either look for or keep a substantially equivalent
job, or the unavailability of a job at Respondent 's plant for some reason unconnected
with the discrimination. The interim earnings admitted by General Counsel are for
the convenience of Respondent but not part of General Counsel's burden of proof.
Respondent attacks the formula with the contention that in addition to a showing
of gross backpay due it should provide for the General Counsel assuming the burden
of showing that the discriminatees were available for employment, that jobs were
available for them at Respondent's plant, their interim earnings, and earnings that
discriminatees would have received had they diligently sought employment and had
been available for employment, and ready and willing to perform the same. Respond-
ent relies on the Administrative Procedure Act 6 to support its position.
This issue between General Counsel and Respondent can be disposed of at the
threshold. It is clear from Board and Court decisions that the General Counsel has
met his burden upon showing the gross backpay due. It is the Respondent's burden
to furnish the evidence showing diminution of gross backpay whether by way of
interim earnings, loss of earnings by willful idleness, unavailability of the discrimi-
natees for interim employment, or unavailability of jobs in Respondent's plant for
some reason unconnected with the discrimination.? Moreover backpay may be com-
puted on a quarterly basis.8
B. The gross backpay
General Counsel's specification alleges that the appropriate measure of the gross
backpay of each discriminatee during the backpay period is the average of the earnings
during the backpay period of general factory employees whose rate of pay at the
beginning of the backpay period was the same as that of the discriminatee immediately
prior to the strike, and who remained in Respondent's employment throughout the
backpay period, and where there were no such employees, an appropriate measure is
the average earnings of those general factory employees who were most nearly com-
parable to the discriminatee with suitable adjustments.
The gross earnings averaged by quartely periods as gross backpay of Ronald Bell,
a $65-a-week employee, are the average gross earnings for the period February 23,
1960, to December 31, 1960, of employees Yberra and Kemp, who worked in
Respondent's manufacturing department through 1960, and received $65 a week at
the beginning of the backpay period, and the gross earnings for 1961 up to Novem-
ber 20 of Gordon and Willis, general factory employees who worked throughout the
backpay period and who received $60 a week at its beginning, adjusted upward (by a
factor of 104 percent) to reflect the higher weekly rate Ronald Bell was receiving
when discharged. Yberra and Kemp were employed by Respondent for only a part
of 1961.
The gross earnings for the backpay period averaged by quarterly periods as com-
parable gross backpay of Robert Bell, a $60-a-week employee, are the average gross
earnings of employees Gordon and Willis for the complete backpay period As stated
above, they received $60 a week at the beginning of the backpay period and worked
throughout this period. The gross earnings for the backpay period by quarterly
periods alleged as the gross backpay of Freddie Allen are the gross earnings of
employee Miranda, the only general factory employee receiving $55 a week at the
beginning of the backpay period who worked throughout this period. The averaged
earnings of Yberra, Kemp, Gordon, Willis. and Miranda include increases and over-
time, sick leave, and vacation payments.
The gross backpay showed by quarterly periods for discriminatees Johnson and
Mussenden is based on earnings of $50 a week employees averaging at least 13 weeks.
They are employee T. Bell who worked only during the third and fourth quarters of
1960, employees Garcia and Montijo who worked during the third and fourth quarters
of 1960 and the four quarters of 1961, employee Sanchez who worked during the
fourth quarter in 1960, and the four quarters in 1961, employees Martin and Cuellar
who worked during the four quarters of 1961, employees Pinero, Otero, and Gonzalez
65 U.S.C. section 1006(c).
4 Mastro Plastics Corporation, et al, 136 NLRB 1342, 1346-1347, 13.57-1358; N L.R B
v. Brown & Root, Inc, etc, 311 F. 2d 447, 454 (C.A. 8), and cases cited therein
SN.L.R.B. v. Seven-Up Bottling Company of Miami Inc, 344 U.S. 344, 350-351
208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
who worked during the third and fourth quarters of 1961, and employee Birch who
worked only during the fourth quarter of 1961. These are the employees who worked
during the backpay period at $50 a week, and who worked an average of at least 13
weeks. Since Respondent had no $50-a-week employees during the first and second
quarters of 1960, the earnings of these employees for the first and second quarters of
1961 were used. They were the applicable portion of the 1961 first quarter earnings
of Garcia, Montijo, Sanchez, Martin, and Cuellar,9 and the full 1961 second quarter
earnings of these employees.
The average number of hours worked per employee per quarter was determined by
computing the average number of hours worked in a week by the employees working
in the particular quarter and multiplying this figure by the number of weeks in the
quarter. These quarterly hours were multiplied by the hourly rate paid these employ-
ees in the particular quarter adjusted to reflect an increase of $2.50 per week Johnson
and Mussenden would have received both on July 1, 1960, and January 1, 1961, in
view of length of service.
For the third quarter of 1960, Respondent paid employees Garcia, Montijo,
Sanchez, and Martin, four senior $50-a-week employees, who worked in that quarter,
total sick leave payments amounting to $89.01. General Counsel computed the
average sick leave payment, which is $22.25, and added it to the gross earnings for
that quarter. Also included in the earnings of these comparables are payments for
overtime worked in the third and fourth quarters of 1961. No vacation payments or
increases are included as they did not receive any. As stated above, Johnson's and
Mussenden's hourly rate premised on a $50 weekly wage for 40 hours was adjusted to
reflect the increases General Counsel contends they would have received in view of
length of service.
By use of the formula outlined above, General Counsel arrived at the gross back-
pay figures alleged in the backpay specification as amended. They are as follows:
1960
Name
1st quarter 2d quarter 3d quarter 4th quarter
Ronald Bell---- -------------------------------- $333 15 10 $873 97 10 $927 50 10 $857 88
Robert Bell------------------------------------ 302 63 784 13 841 00 811 25
Freddie Allen--------------------------------- 275 14 785 18 773 00 780 00
Gerald Mussenden ____________________________ 248 19 648 86 676 77 673 88
James Johnson _________________________________ 248 19 648 86 676 77 673 88
1961
Ronald Bell ----------------------------------
11 86111 90 1,015 30 1,016 51 534 24
Robert Bell ------------------------------------ 828 75 976 25 977 42 513 66
Freddie Allen---------------------------------- 777 00 874 88 765 35 477 76
Gerald Mussenden _____________________________ 305 77 0 00 414 33 396 65
________________________________James Johnson --------------------------------- 709 82 713 75 769 43 12 396 65
C. The issues dealing with gross backpay
Respondent does not attack either the method of computing gross backpay for
Ronald Bell, Robert Bell, and Freddie Allen or the method of computing it for John
6 The backpay period did not begin until February 23.
10 Ronald Bell's gross backpay figures for the second, third, and fourth quarters of
1960 were amended to correct a mechanical error. They show an addition of $9.76 for
the second quarter, and a reduction of $9.76 for the third quarter and $9.51 for the
fourth quarter.
"This figure was reduced by amendment during the hearing (infra) to $287.30 as
Ronald Bell was unavailable for employment during January and February 1961.
12 General Counsel was permitted to amend these figures for Johnson for the second,
third, and fourth quarters of 1960, and the third and fourth quarters of 1961, to $600.11,
$628.80, $667 85, $771.36, and $373.27, to delete compensation for leave without pay
during his interim employment over compensation for such leave for his comparables.
I. POSNER, INC., POSNER DISTRIBUTING CORP., ETC. 209
and Mussenden 13 However, it contends that neither the discriminatees nor the com-
parables were general factory employees, and the latter were selected as comparables
on the basis of their earnings only instead of on the basis of the same or most equiva-
lent duties, that the employees selected as comparables are not comparables as their
jobs during the strike and thereafter were in no way the same or equivalent to the
jobs of the discrimmatees immediately prior to the strike, and that increases, overtime
work, and vacations were within the discretion of Respondent, and earnings premised
on such factors should not have been included. Respondent admits that it compen-
sated employees during reasonable periods of sick leave
D. Findings on gross backpay factors in issue
In August 1962, Compliance Examiner Altman, a Regional Office employee,
visited President Hamilton Posner of Respondent in his office at Respondent's plant.
Altman stated to Posner that the purpose of his visit was to secure evidence to enable
him to make the backpay computations for employees whom the Board and the
Second Circuit had held were discriminated against by Respondent. He explained to
Posner that he computed backpay by using the earnings of employees comparable to
the discriminatees in terms of skill or pay during the backpay period. Posner sug-
gested to Altman employees as comparables to the discriminatees He suggested
Miranda for Robert Bell, Gordon for Ronald Bell, Martin nad Melendez for Mussen-
den and Johnson, and Presnow for Butler.14 He also offered Yberra and Kemp as
comparables. The testimony does not show the discriminatee for whom the latter two
were suggested by Posner. Posner suggested other comparables but neither the testi-
mony of Altman nor Posner disclose who they are
Altman rejected Miranda as a comparable for Robert Bell as Miranda's weekly
wage was $55 while Bell's was $60, and rejected Gordon as a comparable to Ronald
Bell as Gordon's weekly wage was $60 while Ronald Bell's was $65. The rejection
was proper. Obviously, if the public rights under the Act are to be vindicated the
discriminatees have to be restored financially as near as possible to where they would
have been had they not received discriminatory treatment at the hands of Respond-
ent 15 The use of Mirando and Gordon as suggested by Respondent would have been
for the benefit of Respondent, the wrongdoer, rather than in behalf of the public's
rights under the Act.
The General Counsel used Martin's earnings for computing gross backpay for
Mussenden and Johnson under the Board's adjusted average hours formula, long
established by Board and Court precedent 16 to the extent that Martin worked during
the backpay period. I credit Altman's testimony that in the adjusted average hours
formula the earnings of all of Respondent's factory employees earning $50 per week
during the backpay period were included. The record does not show what weekly
wage Melendez was earning during the backpay period.
In the course of Altman's conversation with President Posner, he asked for and
received Respondent's payroll records. From these records he selected the com-
parables and their earnings as stated above. About 2 weeks later, Altman had another
conversation with President Posner. He furnished him with the list of the employees
he had selected and asked him to let him know if there was any reason why they
should not be used as comparables. Posner did not respond to this request at that
time or at a later date except to comment that no one did all the work that Butler,
a bookkeeper, did. As previously stated, no claim is made for Butler. He asked
Posner at this time for the classifications of the employees he had selected, and
Posner replied that they did not have any, as the employees in the manufacturing
department were general factory or all around employees.17
"These methods have the approval of the Board and the courts. Mastro Plastics
Corporation, et al, 136 NLRB 1342, 1355; Brown & Root, Inc., et at., 132 NLRB 486; enfd.
311 P. 2d 447, 542-543 (C A. '8), and cases cited therein. See Phelps Dodge Corp. V.
N.L R B., 313 U.S. 177, 198-200
14 As previously stated, Butler's interim earnings exceeded his gross backpay. No
backpay is claimed for him.
15 Phelps Dodge Corp v. N.L.R.B., 313 U.S. 177; N.L R B v. Brown & Root, Inc., 311
F 2d 447, 452.
16 N.L R B. v Brown & Root, at 453, and cases cited therein.
171 have premised these findings on Altman's testimony. Any conflicts between it and
President Posner's testimony have been resolved in favor of it I consider and find
Altman to be a more credible witness than Posner.
206-446-66-vol. 154-15
210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On October 23, 1962, the Regional Office sent to Respondent by regular mail over
the signature of Sidney H. Levy, acting compliance officer, a letter and attachments
giving in detail the formula for the computation of the backpay as stated subse-
quently in the backpay specification issued on December 21, 1962. No reply to this
letter was received by the Regional Office. President Posner denied he ever received
the letter, but admitted it may have been received by Respondent or the attorney
then representing it. A copy of the letter was sent to Murry Frank, Esq., attorney
for Respondent at that time. I find that the letter was received by Respondent and
is binding on it.
Altman, in view of President Posner's statement to him that Respondent's factory
employees were not classified, but were general factory employees, computed the
gross backpay on the basis of earnings. However, he knew from the reporting forms
submitted to the Regional Office by the discriminatees what they considered the
classifications of their jobs to be. Ronald Bell reported his job prior to the strike
as mechanic's helper and machine operator. Robert Bell, Allen, Johnson, and Mus-
senden reported their jobs as mixer, filling machine operator, general helper, and
general worker, respectively.
Discriminatees Ronald and Robert Bell, Allen, and Johnson testified at the hearing,
as did President Posner, regarding their duties 18 Ronald Bell first mixed cosmetics
with a petrolatum base for about a year and a half, and for the last year of his
employment he adjusted labeling, capping and filling machines to take the different
size glass containers that were being filled, capped, or labeled. President Posner
testified that Respondent had one conveyor and cooling line prior to the strike and
the automatic and semiautomatic machines that had to be used with that line. Accord-
ing to Posner, another line was added during the strike and one after the strike. It
is clear from the evidence that the machines Ronald Bell adjusted were, in part, the
automatic and semiautomatic machines operated in connection with this assembly
line. He assisted William Robertson, the mechanic who repaired and maintained
the machines and other equipment in additions to making the adjustments.
The first year and a half, Ronald Bell, as a compounder or mixer, dipped some of
the petrolatum, a grease with the trade name or trademark of Vaseline, out of the
drum in which it was brought to the third floor from the basement by a stockboy,
and mixed certain ingredients with the remainder in the drum to form a hair grease.
He heated the petrolatum, a solid jelly substance while cold, in the drum to convert
it to a liquid. He mixed the ingredients with the petrolatum under the supervision
of Grant the "floorlady." The ingredients were other greases, oils, and lanolin. Grant
poured in the coloring and the perfume. Bell had knowledge of the amount of each
ingredient, except the latter two Bell pumped the mixture to an overhead container.
It then flowed down through a tube controlled by a faucet to be drained off by hand
by other employees and placed in jars.
When Ronald Bell was given the assignment of adjusting the filling, capping, and
labeling machines to take the different size jars, his brother Robert Bell was given
the compounding or mixing job he had performed for a year and a half. Robert
was doing this work at the beginning of the strike. Both Ronald Bell and Robert
Bell were high school graduates As witnesses, they were articulate and forthright.
Their demeanor testimony and other testimony showed them to be intelligent per-
sons and possessing the capacity to adjust themselves to changes in work methods
From an evaluation of their testimony and the testimony of President Posner dis-
cussed infra, I find that both Ronald Bell and Robert Bell were qualified to do any
job that was available in Respondent's manufacturing department during the strike
and thereafter which Respondent entrusted to $65-a-week hourly wage employees.
Yberra, who along with Kemp are the comparables for Ronald Bell for the 1960
part of the backpay period, was a compounder. An elderly gentleman, who died
in July 1961, he manufactured two of Respondent's products entirely except for
supervision of Grant. He knew the quantity of all the ingredients that went into
products he manufactured. Kemp manufactured greases that were hair straighteners.
He did nothing else. He, like the Bells, knew the quantity of most of the ingredients,
and worked under the supervision of Grant, the chemist, and President Posner. No
testimony was offered as to the extent of the education of Yberra or Kemp.
Gordon compounded petrolatum products during the backpay period He and
Willis are the comparables for Robert Bell, and for Ronald Bell for the 1961 portion
of the backpay period. He did the work that Robert Bell did and that Ronald Bell
did when he was a compounder. Prior to being placed in this job, he was a general
18 Respondent did not contest the backpay claim for Mussenden. The amount of the
claim is $45.55.
I. POSNER, INC., POSNER DISTRIBUTING CORP., ETC. 211
helper in one of the other departments. Willis, like Kemp, made a grease hair
straightener during the strike. Like Gordon, he was a general helper prior to the
strike. The record is silent as to the extent of Gordon's or Willis' education.
Allen compounded liquids prior to the strike. It was a three-man operation. Allen
was in charge and had two assistants. His comparable is Miranda. Miianda prior to
the backpay period was used in the making of creams. During the backpay period
and thereafter, he was also used in the manufacture of new cream products, and the
liquids which Allen had made prior to the strike. He was Allen's replacement. The
record is silent as to the extent of Allen's and Miranda's education.
Johnson and Mussenden were $50-a-week factory helpers prior to the strike.
Johnson filled jars with grease and capped them by hand. He took jars and bottles
off the machines where they were capped and placed them in cartons. He also
stacked cartons of bottles or jars on skids, and did other manual labor.»
Respondent does not contest the mechanics of the adjusted hourly wage formula
used in computing Johnson's gross backpay. However, it does contend that after
the end of the strike on February 23, 1960, jobs that were the same or equivalent to
the job Johnson held prior to the beginning of the strike in September 1960 were
no longer available in Respondent's plant. Respondent claims that the jobs were
eliminated by the mechanization of certain of its manufacturing operations during
the strike period, which ran from September 1, 1959, of February 23, 1960. It
makes the same contention with respect to work for discriminatees Ronald and
Robert Bell, and Allen.
Respondent makes this defense on the testimony of President Posner. He testified
that prior to the strike the manufacturing part of his business was a pot and pan
affair. In the case of cosmetics with a petrolatum base, drums of solid petrolatum
were brought to the manufacturing department on the third floor by manual labor
from the basement where they were stored. The drums were heated, and when the
petrolatum became a liquid, a certain amount was dipped from the drum and
certain ingredients (other greases, oils, lanolin, perfume, and coloring) were added.
Then the mixture was pumped overhead into an overhead batch or container, and
allowed to flow into containers through a tube, controlled by a faucet, which ran
from the overhead container. The jars were filled by hand.
Posner testified that during the backpay period two 2,000 gallon tanks containing
heating coils were installed in the basement for storage of the petrolatum. It was
kept in a liquid form through heating by the coils. Pipes were run from the tanks
up to the third floor into vats with heating facilities through which the petrolatum
was forced by an electric pump and electric cutoffs. Jacketed kettles for mixing
liquids and creams were also installed, eliminating the pot-and-pan method for
making these products. He also testified that a conveyor line with automatic and
semiautomatic filling, capping, and labeling machines was installed during the
strike. One was in operation before the strike and another was installed after the
strike. According to Posner, a total of two employees could do the work required
on each conveyor line with its fillers, tappers, and labelers in contrast to a much
larger number who were required when the operations were performed by hand.
He also stated that less employees were needed to mix the petrolatum and liquid
and creams than formerly.
Posner admitted that with an increased productive capacity, Respondent increased
considerably the number of products in the cosmetics line which it manufactured.
He conceded that the reduction in the manual labor requirements for bringing drums
of petrolatum to the third floor from the basement, or of moving drums on the
third floor to be heated, and removing part of their contents, was offset at least to
some extent by the need for additional manual labor in connection with Respond-
1e Johnson had very little schooling Both counsel for General Counsel and Respond-
ent as well as President Posner of Respondent assumed he could not read or write.
Johnson testified he could not write well or read well . Organizer Doswell of the Union
who was close to Johnson during the 20-odd weeks the employees were on strike testified
he did not read or write well. As a witness , Johnson appeared to the examiner to be a
person who had some reading and writing ability . His testimony showed he had no
difficulty in understanding and responding to the letter from the Union which he received
on September 1, 1961 , informing him that a job was available to him at the plant of
Pur-All Manufacturing Co, Inc ., herein called Pur-All, a former employer . General
Counsel makes much of the fact that Doswell accompanied him to the Pur-All plant in
March 1960 when he was first employed there, and assisted him in making out some
employment forms However , difficulty in making out employment forms is not con-
clusive evidence of inability to read and write. One adept at reading and writing could
well encounter such a difficulty. I find from the evidence that Johnson had a limited
knowledge of reading, writing, and counting.
212 DECISION S OF NATIONAL LABOR RELATIONS BOARD
ent's increased production. Additional cartons with containers had to be stacked
in preparation for use, and a greater number of cartons of filled containers had to
be loaded on skids to be brought to the shipping room, and more compounders or
mixers were required to make the new lines of cosmetic products. Posner also testi-
fied that he was able to train employees working in the plant whether in manufactur-
ing or elsewhere to perform the new work resulting from the mechanization of
manufacturing operations.
Posner testified that at the time of the strike Respondent had about 80 employees-
15 to 17 to 20 were in the manufacturing department. At the time of the fire on
November 11, 1962, Respondent had 150 employees-30 were in the manufacturing
department. According to Posner, the number of employees in the manufacturing
department remained the same during the backpay period. He stated that the manu-
facturing of the additional products with the same number of employees was pos-
sible because of the mechanization of many of the manufacturing operations.
Posner also stated that the installation of tanks in the basement began in September
or October 1959, and were ready for operation about the latter part of January 1960.
He said that the other installations took place during the backpay period and
subsequently.
Posner could not recall the company or person from whom he purchased the
tanks. He had no records because they were destroyed in the fire. He was of the
opinion they were purchased at auction. General Counsel's witnesses Salgado and
Santiago who worked in the manufacturing department during the strike, the back-
pay period and subsequently until the fire on November 11, 1962, testified that the
tanks were not installed in the basement until November 1960, and may have been
brought in later. Witness Delgado testified that at the time the tanks were brought
into the building there were 23 employees in the manufacturing department. Posner
testified he had no knowledge with respect to employees hired for the manufacturing
department during the backpay period.
I reject Respondent's position that mechanization or automation eliminated work
for Ronald and Robert Bell The evidence of record discloses them to have had
more education than any of the other factory employees, receiving $65 per week or
less, and to have the capacity to learn new duties attendant on the mechanization.
Ronald Bell had already worked with the new machinery installed by Respondent.
For 1 year he worked with the conveyor and cooling line with its automatic filling,
capping, and labeling machines that had been installed at least by September 1958.
Certainly Allen who supervised two others while making liquids by the pot-and-pan
method could readily adapt himself to the use of the automatic machinery that made
his work easier to perform and increased his productive capacity There is no evi-
dence in the record of educational or other background to show that Miranda, who
made the liquids Allen had been making, was any more adaptable to the mechaniza-
tion than Allen would have been.
I also reject Respondent's position that no job was available for Johnson because
of the mechanization. Jobs of moving cartons of containers for storage on the third
floor, to the assembly line for the filling, capping, and labeling of the containers,
and of taking the cartons of filled containers from the conveyor and cooling line to
be packed on skids for movement to the shipping room, were available. The evidence
does not support Respondent's contention that Johnson was unable to count the
number of cartons that were placed on skids. I have found that Johnson had a
limited capacity to count. Absent evidence, to the contrary, it is presumed he could
count to 25, a condition precedent, according to Posner, to holding this type of job.
General Counsel properly included increases, and overtime, sick leave, and vaca-
tion payments in the gross backpay. They are part of employee's earnings 2° I
credit Altman's testimony that all factory employees receiving $65 a week or less
received an increase after a year of employment. And that 60 percent of these
employees worked overtime in the third and fourth quarter of 1961. President
Posner testified that Respondent compensated its employees for all reasonable periods
of sick leave. Yberra, Kemp, Gordon, Willis, and Miranda and other employees
received 2-week vacations in 1960 and 1961. There is nothing in this record that
discloses that the Bells and Allen would not receive vacations in 1960 and 1961 had
they been working for Respondent during those years.
I find General Counsel's gross backpay figures, as amended, to be proper except
to the extent I recommend they be modified.
E. Interim earnings and other diminutions of gross backpay
In the specification, General Counsel admitted earnings earned by the discrim-
inatees during the backpay period. It alleged the difference between gross backpay
20 Mastro Plastics Corporation , et at., 136 NLRB 1342, 1360.
I. POSNER, INC., POSNER DISTRIBUTING CORP., ETC. 213
and the interim earnings as the amount of backpay owed the discriminatees During
the hearing, General Counsel was given leave to amend the backpay specification to
reduce the gross backpay and net backpay of Ronald Bell by $574 60, increase the
interim earnings of Freddie Allen by $36, and to reflect in the gross backpay and
net backpay of Johnson uncompensated leave he took during his interim employment
Testimony by Ronald Bell disclosed that he was unavailable to the labor market
in a 2-month period in the first quarter of 1961 when he was learning to be a
presser. The testimony of Freddie Allen disclosed that $18 deducted for carfare
expense from his earnings in the fourth quarter of 1960 and the same amount from
his earnings in the first quarter of 1961 should have been allocated to other quarterly
periods. Testimony by Arnold Chaleff. office and general manager of Pur-All Paint
Products, Inc., herein called Pur-All, showed that Johnson had uncompensated leave
during his employment with that company beyond that reflected in the earnings of
the comparables. The evidence showed that this additional uncompensated leave was
39 hours, 36.4 hours, and 4.6 hours in the second, third, and fourth quarters of 1960,
respectively, and 17 hours in the fourth quarter of 1961. He had 1 4 less hours of
uncompensated leave than his comparables in the third quarter of 1961 There was
no adjustment in the backpay of the second and third quarters of 1960 as his earnings
exceeded his gross backpay for those quarters. His gross backpay and net backpay
were reduced $6 03 for the fourth period of 1960, and increased $1.93 for the third
quarter of 1961. There was no change for the fourth quarter of 1961 as his earnings
exceeded his gross backpay for that quarter.
In his brief of May 31, 1963, General Counsel moved to further reduce the back-
pay claim of Ronald Bell by $61. Bell earned this amount at miscellaneous jobs in
March and April of 1961 as a presser. The motion of the General Counsel is
hereby granted. The granting of it is to the benefit of Respondent and not to its
prejudice.
1. The interim earnings of Ronald Bell
Ronald Bell had interim earnings in every quarter except January and February
1961, when he was learning to be a presser. As stated above, Geneial Counsel
amended the specification to exclude any gross backpay for him for these 2 months
as he was unavailable to the labor market. As a consequence, no backpay is claimed
for these 2 months. And General Counsel has amended the specifications to add
$61 to his interim earnings, and thereby reduce the backpay claim by that amount,
to reflect earnings in this amount Bell made in March and April 1961, when he was
starting out as a presser, following the learning period of the prior 2 months.
Following the unconditional offer to Respondent to return to work on February 23,
1960, Ronald Bell registered at the hiring hall of the Union. He was dispatched
by the hiring hall to a job at Atlantic Container Corporation, which he obtained on
February 26. He worked for 1i/2 days when he was laid off for lack of work. At
the beginning of March, he was dispatched by the Union to a job at Miles Shoe
Store where he worked 5 weeks. During this 5-week period, he failed to earn
seniority status by his work performance.
Following the layoff by Miles Shoe Store, Bell registered at the New York State
Unemployment Office. He went there on Mondays to receive a weekly compensa-
tion check That office sent him to its placement or dispatching office once or twice
a month. He went to the hiring hall of the Union 4 days a week. He applied for
any job called out over the loud speaker system he thought he could fill. He was
either not qualified or other applicants had seniority. He also applied for work at
the Halsey Drug Company, a drug manufacturer. He did not find work until July 19,
1960, when the Union hiring hall dispatched him to a job at Glass Laboratories.
He obtained the job.
Robert Bell worked at Glass Laboratories until November 24, 1960 Shortly
thereafter he was dispatched by the Union hiring hall to a general helper's job at
Schrantz & Bieber. This job was a temporary one.21
After 21/2 to 3 weeks, about the middle of December, Bell left Schrantz & Bieber
to take a higher paying temporary job for 10 days at the U.S. Post Office. He was
2 'When a dispatcher at the Union hiring hall dispatched Bell to this job he told him
that it was a temporary job A salesman at Schrantz & Bieber also told him the job
was temporary This is Bell's testimony. I credit it His failure to report to the
Regional Office his miscellaneous earnings of $61 in March and April 1961, when he was
starting out as a presser does not affect appreciably his credibility disclosed by his
demeanor and other testimony. He readily disclosed the earnings in his testimony.
They were obtained from temporary small jobs in March and April 1961, in which he
tried his newly acquired skill as a presser. I credit his testimony that it did not occur
to him to report them.
214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
laid off December 24, 1960. Ronald Bell, as stated above, was unavailable to the
labor market in January and February 1961, when he was learning to operate a
clothes pressing machine. In March and April 1961, he secured through the New
York State Unemployment Office the miscellaneous pressing jobs. In May 1961, he
obtained a job as a presser at Sarr One Hour Cleaners where he worked the remainder
of the backpay period ending on November 20, 1961.
I do not accept Respondent's position that Ronald Bell should not have left employ-
ment at Schrantz & Bieber to accept the higher paying temporary job with the
U.S. Post Office. He had good reason to believe that the job with Schrantz & Bieber
was temporary like the job with the post office. I credit Ronald Bell's testimony that
while looking for work as a presser he also went to the Union hiring hall looking
for work.
I find that the interim earnings stated in the specification, as amended, for Ronald
Bell are proper, and recommend that they be adopted. I also find that he made a
reasonable effort to obtain work during the backpay period.
2. Interim earnings of Robert Bell
Robert Bell had employment in each quarter of the backpay period. Over half
of his total claim of $356.78 is for the first quarter of the backpay period. After he
unconditionally offered to return to work for Respondent on February 23, 1960, he
began looking for employment. He registered with the New York State Unemploy-
ment Service. Its dispatching office sent him to two companies. He did not obtain
work at either of these two places.
The hiring hall of the Union dispatched him to Old Dutch Mustard Co. in the
first or second week of March 1960 22 He obtained a job there and worked for
about I week and was laid off. He thereupon registered at the hiring hall 23 and
was dispatched the same day to National Shoes. He obtained a job there loading
and unloading trucks, and as a warehouse clerk and a warehouse helper. His
employment continued throughout the remainder of the backpay period.
I find that Robert Bell made a reasonable effort to obtain employment, and that
the statement of his interim earnings included in the backpay specification, as
amended, is proper. I recommend that they be adopted.
3. Interim earnings of Freddie Allen
After offering Respondent to return on February 23, 1960, Freddie Allen began
looking for employment elsewhere. He registered at the State Unemployment Office.
He received a check from that office weekly. He scanned the help wanted ads in
newspapers. He informed the State Unemployment Office of these jobs. The State
Unemployment Office dispatched him to a job at the Harlem Hospital on or about
April 1, 1960. He began employment at the hospital on April 2, 1960. Prior to
February 23, 1960, Organizer Doswell of the Union told Allen that the hiring hall
could dispatch him to a job. However, he did not go to the hiring hall. Allen had
interim earnings in every quarter of the backpay period except the first quarter of
1960. His rate of pay at the hospital was slightly less than what he received when
working for Respondent. He had three leaves of absence during the backpay period
for which he was not compensated. One was on April 30, 1960, because of illness
in the family, one was on Independence Day, July 4, 1960, because of a death in
the family, and one was on July 30, 1960, because of personal illness. All other
leaves of absence during the backpay period were compensated. The evidence
shows that Allen would have received compensated leaves of absence on April 30,
July 4, and July 30, 1960, if he had been working for Posner. It was not necessary,
therefore, for General Counsel to adjust the gross backpay to delete an allowance
for these 3 days.
Allen testified that while employed at the Harlem Hospital he would have lunch
at its cafeteria 3 days out of every 7-day week at a savings of 50 cents a lunch over
"The hiring hall of the Union dispatched Ronald Bell, Robert Bell, and Johnson to
jobs following the unconditional offer the Union made to Respondent on their behalf to
return to work on February 23, 1960. Morris L. Doswell, who was organizer for the
Union and handled the Union's strike activity from September 1959 to February 19, 1960,
in testifying as a witness for the Respondent, stated that the Union felt obligated to
assist the discriminatees in obtaining at least their first jobs after the strike ended
23Bell did not register with the hiring hall until after this layoff I do not consider
his failure to register immediately as material as the Union was seeking to dispatch him
and the other discriminatees to jobs as soon as possible. He was aware of this effort
by the Union.
I. POSNER, INC., POSNER DISTRIBUTING CORP., ETC. 215
its cost when he was employed by Respondent . He also had dinner at the hospital
cafeteria 15 times out of a 30-day month at a savings of $1.10 a dinner over its
cost when he was employed by Respondent. Counsel for Respondent contends that
these savings are interim earnings and should be included therein. I find that the
cafeteria at the hospital is operated for the benefit of the hospital and not employees.
The cafeteria operation permits the hospital to have the employees available when
they would be elsewhere if the cafeteria was not operated. The savings, therefore,
between what he paid for lunches and dinners while employed by Respondent and
by the hospital are not earnings. In any event, no consideration is given to the
quality of the meals he ate when he was employed by Respondent and the quality
of those he ate at the cafeteria.24
I find that the interim earnings stated in General Counsel's specification, as
amended, are proper, and recommend that they be adopted. I further find that
Allen made a reasonable effort to find employment in the period between February 23
and April 1, 1960, and at all other times during the backpay period when he was
not working. While he did not report to the union hiring hall between February 23
and April 1, 1960, he made other reasonable efforts to obtain employment In any
event, Doswell would have communicated with him if the union hiring hall had
been able to locate a job for him.
4. Interim earnings of James Johnson
After Johnson had offered through the Union to return to work at Respondent's
plant on February 23, 1960, he went to work for Pur-All on March 1, 1960. The
Union obtained this job for him. As stated, supra, Morris L. Doswell, organizer for
the Union who conducted the strike operation, against Respondent, testified that the
Union felt obligated to provide jobs for the employees who ceased work at Respond-
ent's plant to assist the Union in its strike activity.25
21 See Internal Revenue Code of 1954 , 26 U.S CA . sec. 119 ( 1955 ) ; 1 Fed Tax Regu-
lations, sec 1. 119 (1963)
ti The Union has collective -bargaining contracts with some 1 , 500 employers or shops
in the New York City metropolitan area It operates a hiring hall in connection with
its activities pursuant to its collective -bargaining contracts . The hall accommodates
approximately 300 persons seeking employment. Jobs are called out over a public address
system from 9 a.m. to 12 noon daily. Special jobs are called out and assigned in the
afternoon An applicant is required to register or reregister every 2 weeks When the
job is called out he feels he can fill, he applies to a dispatcher for it. There are four
dispatchers under Director Pete Evanhoff , who heads the hiring hall operation. There
are also a number of clerical employees who do the clerical work that the dispatching
operations require . The hiring hall provisions in the collective - bargaining contracts pro-
vide preferences for applicants having seniority because of prior employment with the
company seeking employees, or seniority by reason of prior experience in the particular
industry the employer is in who is seeking employees . To have seniority , the applicant
must have 4 weeks of satisfactory work performance
The union hiring hall, on requests made to it by companies having collective-bargaining
contracts with it, dispatches applicants to these employers from Monday to Friday each
week. A job may be filled directly by the employer by rehiring a former employee with
seniority. Or it may be filled by an applicant who is a friend of an employee of the
applying employer. The hiring hall records jobs filled in this manner as well as jobs
filled by dispatching applicants.
If a person is registered with the hiring hall and has seniority as stated above, he
will be called by telephone or communicated with by letter or telegram , and informed
that a job is available . The job will not be called out over the public address system
until he is contacted However , preferences are given to the persons in the hiring ball
when the jobs are called out. The particular employer has the right to accept or reject
the applicant who is dispatched.
Doswell testified for the Respondent regarding the union hiring hall and its dispach-
Ing of applicants to jobs He is an organizer for the Union and in charge of the admin-
istration of a number of collective -bargaining contracts for the Union , He does not
have duties involving the operation of the hiring hall, and clearly disclosed by his testi-
mony that he lacked the knowledge of these operations from which he could give testi-
mony that could be considered as probative evidence He brought summaries of hiring
hall records to the hearing and testified regarding them to the extent his limited knowl-
edge permitted . He was a cooperative witness. These records were received in evidence
Pete Evanhoff , hiring hall director , and the four dispatchers were the persons who
could have furnished the type of testimony Respondent had to furnish in connection with
its position that Johnson or any other of the discriminatees for which backpay is sought
216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Johnson's job at Pur-All has been filling cans with paint. His starting wages were
$59 per week. He and employees Alamo, Lester, and Pugues were laid off on
November 24, 1960, for lack of work. The Union sent him a letter which he
received on Friday, September 1, 1961. The letter either dispatched him to Pur-All
or let him know a job was available to him there. He reported for work on
September 5, 1961, was rehired, and was working there at the time of the hearing.
Johnson registered at the hiring hall on November 28, 1960, following his layoff on
November 24, and went there about 8:30 a m. and left at 11.30 a m once a week
and sometimes twice a week. He testified he was told he had to go there only once
a week, but did not say who told him. Johnson's testimony does not indicate whether
he reregistered every 2 weeks. Doswell, Respondent's witness, was not asked whether
he reregistered. Nor do the records in evidence through Doswell disclose this
information. Johnson testified the first time he was on the witness stand that he
visited the hiring hall on Monday. He later testified that he made the visit on
Monday, Wednesday, or Friday.
Johnson went each Thursday to the New York State Unemployment office at 8
a in. to receive his unemployment compensation check He left there about 9:30
a.m. On thiee occasions, that office sent him to their dispatching office at which
applicants for employment were assigned jobs. He was not dispatched or assigned
to a job. In March 1961, he sought work at Roulette Records and at Seaboro
Trucking, and in April 1961, at Ansonia Shoe Store on a lead from his uncle. John-
son also testified that he inquired about jobs of his friends, including Asbury Thomas
and his cousin "Artie." In March 1961, he visited the Pur-All plant and asked
Arnold Chaleff, the general manager, about returning to work, but the latter told
him that a job was not available. He telephoned Pur-All about a month later,
probably in April, and talked to Arnold Chaleff who told him that work was still
slow. He called again in June and talked to Chaleff's father, known to him as Pop.
Pop told him that work was still slow but that he would let the union hiring
hall know when he needed him.
Johnson had less seniority in employment at Pur-All than Alamo who was laid
off with him on November 24, 1960 26 However, he had more seniority than Lester
and Pugues who weie also laid off with him. Alamo was rehired on December 24,
1960. Sometime in March 1961, Pur-All asked the union hiring hall to send it
some new employees. This request was made to the hiring hall through the shop
steward at the Pur-All plant. The hiring hall dispatched applicants to Pur-All.
Pugues was rehired on March 24, 1961, to work in the shipping department as well
as in the manufacturing department. He worked from March 24 to about January 1,
1963. Discriminatee Johnson was not qualified for a job in the shipping depart-
ment in view of his limited knowledge of reading and writing. Simpson, who worked
2 weeks, was employed on March 31 to work in the shipping department. Roosevelt
Grosvenor was also hired on March 31, 1961, to work in the shipping department.
Richard Johnson and Pedro Rosado were hired en April 4 and April 6, respectively,
to work in the manufacturing department. Richard Johnson worked about 9 weeks
and Rosado about 81/2 or 9 weeks. Pur-All hired two truckdrivers, one in April and
one in May, and a worker for the shipping department on August 11. Two other
employees were hired on August 18 and August 26, respectively. Arnold Chaleff
who testified regarding the employment of these workers by Pur-All, had no record
of the type of work for which they were hired or worked. In any event, the first
employee worked 2 weeks, and the second one worked 1 day. The next employee
to be taken on was discriminatee Johnson. He was rehired on September 5. He
reported to Pur-All on that date aftei receiving the letter on September 1 from
the Union.
Johnson testified that he never heard jobs for Pur-All called over the public address
system while he was present at the hiring hall. He also testified that he never heard
a number of jobs called out for the cosmetic manufacturing firms of Miradel (Theon),
Nestle Le Mur, Paris Cosmetics, and Helen Neuschaefer, which Doswell testified
did not make a reasonable effort to obtain employment by reason of failure to utilize the
facilities of the hiring hall. The hearing was adjourned from February 27, 1963, to
March 13 , 1963 , to afford Respondent an opportunity to obtain probative evidence dealing
with the availability of jobs to the five discrnninatees thiough the union hiring hall. Then
the hearing was further adjourned until March 27, 1963, to permit Mr. McCreery of counsel
for General Counsel , to respond to a call to 2 weeks' active military service . During this
period , Respondent did not make any timely requests to the Regional Office, counsel for
the General Counsel or me for assistance in obtaining probative evidence regarding the
union hiring hall
26 The findings relating to employment at Pur-All are based on the testimony of Arnold
Chaleff, Pur-All's general manager. He was a witness for the Respondent.
I. POSNER, INC., POSNER DISTRIBUTING CORP., ETC. 217
were on the records of the hiring hall as jobs for which dispatch slips were issued
during the year 1961. Doswell also testified that dispatch slips for an equal number
of jobs for these companies were issued during the year 1960. He also stated that
the Union had contracts with four additional cosmetics manufacturers.
Doswell further testified that in his opinion there were only three jobs of all the
jobs listed that Johnson could fill in view of his limited capacity to read and write.
Those were two porters' jobs at Miradel (Theon) at $48 per month to which appli-
cants were dispatched on May 17, 1961. and October 11, 1961, and a porter's job
at Nestle Le Mur at $48 per month, to which an applicant was dispatched on
September 7, 1961. Moreover, he did not know whether Johnson would have been
hired had he applied for the jobs. Johnson was working for Pur-All from Septem-
ber 5, 1961, so would have been unavailable in any event for the Nestle Le Mur job
of September 7, 1961, and the Miradel (Theon) job of October 11, 1961. Doswell
also testified that an applicant may wait days, weeks, or months before obtaining
employment through the hiring hall of the Union. In some instances they have not
been assigned at all.
From an analysis of the above-evidentiary findings, it appears to me that John-
son could have made a greater effort to find employment during the period from
November 28, 1960, to September 1, 1961, when he was on layoff from Pur-All
than the effort he made, by going to the union hiring hall more frequently than he
did. I credit his earlier testimony that he was at the hiring hall 1 day a week and
sometimes twice. If he had been in attendance at the hiring hall on April 3 or 4,
1961, or April 5 or 6, 1961, he would have been dispatched to a job in the manu-
facturing department at Pur-All and rehired because he had seniority over Richard
Johnson and Pedro Rosado who were dispatched to those jobs. I do not find from
the testimony of Doswell or the documents received in evidence through him any
of the jobs in the cosmetics industry to which Doswell testified applicants were dis-
patched by the union hiring hall during the backpay period. Doswell, Respond-
ent's witness, testified that he would have the qualifications for only the three
referred to above. As stated above there is no evidence that he would have been
given any one of these three jobs even if he were dispatched to them.
I recommend that Johnson be charged with the earnings of Richard Johnson who
was hired on April 4, 1961, by Pur-All and worked 9 weeks. Richard Johnson's
first week was only 4 days. He received $1.45 per hour and $2.21 per week cost
of living. So he received $48.16 for the first week and $60.21 for each of the other
8 weeks, or a total of $529.84. In accordance with this recommendation, the gross
backpay alleged in the specification for discriminatee Johnson for the second quarter
of 1961 ($713.75) should be reduced by $529.84 to become $183.91, to deduct
what he would have earned had he been at the union hiring hall in April when the
jobs at Pur-All that were given to Johnson and Rosado were dispatched. I make
this recommendation to give effect to the objective of the remedy, namely, to vindi-
cate the public rights under the Act, but at the same time to promote production
and employment.27
Counsel for Respondent argues that the union hiring hall is the agent for the
discriminatees, and, therefore, any failure on its part to assign the discriminatees to
available jobs during times of unemployment in the backpay period, when under its
rules they were eligible for such jobs, is chargeable to the discriminatees under the
principle of respondeat superior.
While the Union was the agent of the discriminatees on February 19, 1960, when
it notified Respondent that they offered to unconditionally return to work on
February 23, 1960, this agency relationship did not grow into one whereunder the
union hiring hall became the agent for the discriminatees with respect to Respond-
ent for all purposes. Moreover, there is no probative evidence that the union hall
failed to assign any of the discriminatees to available jobs when they were eligible
under the hiring hall rules.
The union hiring hall in terms of dispatching applicants to employers in accord-
ance with applicable provisions of a collective-bargaining contract enjoys the status
of an employment agency which brings together employers and employees. With
respect to referrals and requests therefor, the employer and the Union may be liable
to each other for breach of performance. It may even be argued that the employer
may have a right of action against a referred applicant as a third party beneficiary
under the agreement between the hiring hall and the applicant who seeks employ-
ment through it, and that the applicant may have a right of action against the
2' "See N L.R B. v Deena Artware, Inc, 361 U S . 398, 411-412 ( concurring opinion) ;
Waterman Steamship Corporation v. N.L R .B., 119 F 2d 760 , 762, 763 ( C A. 5) ; Phelps
Dodge Corp . v. N.L R B, 313 U. S 177, 197-200 ; Mastro Plastics Corporation, et at., 136
NLRB 1342, 1347.
218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employer as a beneficiary of the latter's contract with the hiring hall. However, the
hiring hall provisions of a collective-bargaining contract do not extend to an
employer not a party to the contract to give him rights against former employees
he discriminated against because of failures by the parties to the contract to whom
he is a total stranger.
5. Summary of interim earnings
The interim backpay earnings which I find proper are as follows:
1960
Name
1st quarter 2d quarter 3d quarter 4th quarter
Ronald Bell $266 81 $130 64 $633 52 $899.42
Robert Bell 118 40 1,019 40 997 48 1,023 52
Freddie Allen--------------------------------- 0 00 623 63 762 62 656 65
G erald Mussenden----------------------------- 202 64 708 63 805 40 834 20
JamesJohnson--------------------------------- 217 21 734 19 701 38 487 77
1961
Ronald Bell------------------------------------ 45 00 672 90 975 50 496 80
Robert Bell ------------------------------------ 789 12 1,173 84 876 00 482 16
Freddie Allen---------------------------------- 789 72 678 84 854 84 436 73
Gerald Mussenden-------------------- 364 91 0 00 451 80 521 70
James Johnson--------------------------------- 0 00 20 30 230 72 421 28
CONCLUSIONS AND RECOMMENDATION
Upon all of the foregoing findings, I find and conclude that discriminatees Ronald
Bell, Robert Bell, Freddie Allen, James Johnson , and Gerald Mussenden are entitled
to backpay payments in the amounts listed below:
Ronald Bell___________________________________________ $1,766.80
Robert Bell___________________________________________ 356.78
Freddie Allen_________________________________________ 807.49
James Johnson________________________________________ 1,625.13
Gerald Mussenden------------------------------------- 45. 55
4, 601.75
I recommend that the Board adopt the foregoing findings and conclusions, and
order Respondent to pay to the discriminatees the amounts recommended.
SUPPLEMENTAL TRIAL EXAMINER'S DECISION
AND RECOMMENDED ORDER
STATEMENT OF THE CASE
On February 17, 1964, the Board reopened and remanded this backpay proceed-
ing for the issuance by the Trial Examiner of subpoenas duces tecum requiring the
production of evidence by Revlon Corporation, Miradel Theon Company, Nestle
Le Mur, Paris Cosmetics, Inc., and Helen Neuschaefer, showing the employees they
hired through the Union's hiring hall during the backpay period, and their weekly
wage rates, and for further hearing limited to the taking of this evidence, and other
evidence that became material and relevant by its inclusion in the record.
Subpoenas duces tecum were issued to officials of the above-named companies,
and they appeared and testified at a hearing in New York City on May 11, 12, 14,
and 15, 1964.1 Also taken was evidence dealing with the operation of the union
hiring hall during the backpay period in connection with the dispatching of workers
of Nestle Le Mur, Helen Neuschaefer, Paris Cosmetics, and the Theon Company
which was absorbed by the Miradel Company. It consisted of documentary evi-
1 These witnesses were William Gregory, office manager and personnel manager, of
Nestle LeMur ; Albert A. Plaster, consultant to The Miradel Company, and president of
the Theon Company before its assets were acquired by Miradel ; John R Englert, comptrol-
Ier of Helen Neushaefer; M Roy Spitalney, vice president of Paris-Cosmetics, Inc , and
William E. Brothers, personnel director of Revlon, Inc.
I. POSNER, INC., POSNER DISTRIBUTING CORP., ETC. 219
dente, and the oral testimony of Peter Evanoff, the director of the hiring hall during
that period. On February 10, 1965, further hearing was held in New York City in
regard to the capacity of discriminatee Johnson to read and write , and distinguish
shades and colors, and discriminatee Ronald Bell's efforts during the part of the
backpay period from April 7, 1960, to April 19, 1960, to obtain employment through
the Union's hiring hall.
FINDINGS AND CONCLUSIONS
1. Nestle Le Mur
It is undisputed that Nestle Le Mur hired male general factory workers through
the hiring hall during the period March 29, 1960, through December 31, 1960, and
during the period January 1, 1961, to November 21, 1961. During the 1960 period,
77 were hired and 142 were hired during 1961. The Company has had collective-
bargaining contracts with the Union since March 29, 1960. None of the employees
hired had any "seniority" status.`` Of the 77 jobs and of the 142 jobs 74 and 137
jobs, respectively, paid $48 or $48.50 per week. Four jobs (beginning March 29
and July 25, 1960, and July 12 and July 20, 1961) paid $52 per week; one (begin-
ning April 26, 1961) paid $58 per week; two (beginning May 15 and June 5, 1961)
2 Under the hiring hall rules, there are plant seniority , Industry seniority, and overall
seniority. Plant seniority is acquired by 4 weeks of satisfactory employment with an
employer serviced by the hiring hall Industry seniority is acquired by service exceeding
3 years since January 1934, in an industry serviced by the hiring hall. Time less than
2 years spent in an industry immediately prior to the date of registration is deducted
from length of service. Wartime service in the Armed Forces is credited in the industry
in which the worker was employed 1 year or more immediately prior to entrance into
the service. Overall seniority is the cumulation of the years of seniority in each of the
industries serviced by the hiring ball. Names of workers with seniority are listed on a
board maintained for each specific industry serviced, and on a board kept for overall
seniority . Any worker of "good character and competence" is eligible to register at the
hiring hall , regardless of membership or nonmembership in the Union He is registered
on the industry board of each of the industries serviced by the hiring hall in which he
has seniority, in accordance with his length of service in the respective industry. He is
registered on the "Central Seniority Board" in accordance with his overall length of
service in all industries serviced by the hiring hall. Where he does not have any seniority,
he is registered on a board identified as the Extra Board in the order in which he registers.
Workers laid off or unemployed must register between 8.30 a in. and 1 p in., Monday
through Friday of each week Workers with seniority still seeking employment after
2 weeks following registration must check in after each 2 weeks to show they are still
seeking employment, and to keep their names on the seniority lists Workers who put
in 5 days or less on a job maintain their original registration dates. Every worker dis-
patched to a job by the hiring hall or recalled to a job by an employer must secure a
dispatch slip before reporting for work to guarantee observance of shop seniority and
hiring hall rules. Workers may not solicit or accept jobs in any firm under a contract
with the Union to which they have not been duly dispatched. This is to insure fair and
equitable dispatching of jobs according to seniority in the industry.
Each registrant with industry or overall seniority, or both, is given a pamphlet en-
titled "Employinent Office Guide " It has thereon the hiring hall's address of 13 Astor
Place, New York 3, New York, and contains the rules of the hiring hall, the name of the
registrant, his address, his book number if he is a member of the Union, and the date
of his registration , as well as a record of his seniority in the industry and his overall
seniority. A space is provided for the recording of his "Check-in Record" in compliance
with the rules The rules are silent, and so is the record, as to what, if anything, is
given to a worker without industry or overall seniority who is registered on the Extra
Board Jobs are called out over a public address system, three times at 2 hour intervals
from 9 a in until 1 p in. (Footnote 25 p 13, of Supplemential Intermediate Report
issued August 15, 1963, is corrected accordingly ) Workers must apply for the job at
the time of dispatching in order to be eligible for it. The exception is where a worker
has plant seniority. He is notified before the job is called out or posted When a job
is called out, it is posted on a bulletin board in the hall outside the hiring hall The
board can be seen by the registrants in the hiring hall
A job is first dispatched to the worker with the greatest length of service of 5 years
or more in the specific industry , second, to the worker with the greatest length of service
of 5 years or more on the Central Seniority Board ; third, to the worker with the
greatest length of service of 3 to 5 years in the specific industry ; fourth to the worker
with the greatest length of service of 5 years or less on the Central Seniority Board;
and finally, to the worker registered longest on the Extra Board.
220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
paid $62 per week, and one (beginning March 29, 1960) paid $64 per week. Of
the 77 jobs 19 were packers' jobs. The remainder consisted of 52 floor boy, 2
factory worker, and 3 porter jobs. The classifications of the $64 per week job is
not disclosed by the record. Of the 142 jobs 26 were packers' jobs. The remainder
were 41 floorboy and 75 factory worker jobs.
The packers work at the end of the assembly line packing the assembled products
in cartons, and placing the cartons on pallets. A packer is expected to be able to
count to at least the number 88, and to distinguish at least 25 to 30 shades. Floor-
boys, factory workers, and porters move goods and supplies to and from the assembly
lines , and throughout the factory.
A worker referred to Nestle Le Mur by the hiring hall is asked to fill out an
application. He is required to indicate on the application his name, address, sex,
social security number, date of birth, citizenship, marital status, schooling, physical
defects, prior job experience, and criminal background, if any. Some of this informa-
tion is furnished by placing a "Yes," or "No," a check r v") or an "X" in applicable
boxes following the words identifying the question. An example is Male [ ],
Female [ ]. Certain information, however, has to be written in by the applicant.
This would include name, address, social security number, and date of birth, and
possibly physical defects and prior job experience If the applicant is not able to
fill out the form because he is unable to read or write, he is not hired. The meaning
of a question will be explained to an applicant who does not understand it. The
need for the explanation does not handicap the applicant. The referred applicant
is hired if he is able to complete the application form except where the interview
he has with a representative of the personnel office reveals characteristics or limita-
tions which would make it difficult for him to become a member of the employee
group. If the applicant can fill out the application, Nestle Le Mur assumes he can
read, write, and distinguish colors sufficiently to hold a job even as a packer.3
None of the 219 workers hired through the hiring hall referral procedure during
the backpay period were employed by Nestle Le Mur at the time the hearing was
resumed on May 11, 1964. Most of them were laid off after a short period of
employment, well below the 30-day probationary period The layoff was due in
some instances to lack of ability to do the required work, but largely because the
workers requested were needed only for a limited number of days to get out specific
production orders. When the need for additional workers again arose, they were
secured through the hiring hall referral procedure.
Records of the hiring hall disclose that 24 of 27 requests for referrals to fill
packers' jobs in 1961 included the requirement that they be able to read and write.
Only three requests for factory workers in 1961 included the requirements of
reading and writing .4
2. Miradel (Theon) Company
It is undisputed that Theon Company. a manufacturer of cosmetics, hired employ-
ees during the backpay period through the hiring hall of the Union. Theon had a
collective-bargaining contract with the Union, which provided for the hiring of
employees through the hiring hall. The Miradel Company subsequently purchased
the assets of Theon, and retained Albert A. Flaster, who had been its president, as
a consultant. Flaster testified for Respondent on May 11, 1964, in response to a
subpoena duces tecum.
Flaster did not have with him the personnel records showing employees Theon
hired during the backpay period although he appeared on behalf of the Miradel
Company in response to the subpena. He testified that Theon's records had been
3I do not give weight to General Counsel 's questions and answer on cross-examination
intended to give the inference that an extended interview at the employer 's plant is given
each general factory referral This flies in the face of the reality that the hiring hall
is part of the hiring procedure , and any extensive screening at the employer 's plant would
duplicate work of the hiring hall and with attendant unnecessary overhead cost Nor
do I draw any inference that a number of workers are referred for one job There is
only one referral absent unsuitableness of the worker referred and notice of the unsuitable-
ness given to the hiring hall. While an interviewer at the plant has his eye open for a
referral with potential for promotion , he accepts the referrals for the general factory
worker jobs when they fill out the applications satisfactorily , absent disclosure of the
unsuitableness previously mentioned.
4 Evanoff, the hiring hall director , testified that unless the request from the employer
included the reading and writing requirement , it would not be attached to the description
of the job called out or posted . He testified , however, that where the dispatchers were
familiar with the requiremnts of employers for the classifications of workers , they would
aim to meet them in the course of selecting and dispatching.
I. POSNER, INC., POSNER DISTRIBUTING CORP., ETC. 221
put aside in storage for tax purposes, that Theon had furnished to Miradel any records
pertaining to labor it required, and that he was not familiar with any Theon records
Miradel may have taken from the place where they were stored. He responded
to the subpena since he was the only one in Miradel's office when it was served, and
he had been Theon's president Mr. Flaster was then questioned with respect to
Theon's relationship with the Union hiring hall during the backpay period.
It was Flaster's recollection that 75 to 100 maintenance and production workers
were hired by Theon through the hiring hall during the backpay period. There were
times when the hiring hall did not have workers registered who could be dispatched
in response to Theon's requests. Theon would request five workers when they needed
only two. It would try out the first two dispatched to find if they could do the
particular jobs well. If they could, there was no need for the other three. On the
other hand, if one or both of the first two arrivals could not qualify, a replacement
or replacements from the remaining three were given work until Theon had two
satisfactory workers.
Flaster recalled that between 75 and 80 factory workers were employed during
the backpay period. Of those employed 10 to 15 were male and the remainder weic
female.a One male employee was a porter and another was an assistant to the mixer.
Four worked in the shipping department, and approximately six worked as general
factory employees. These six moved supplies and other materials about the plant
as needed, and did routine assembly work.
Those working in the shipping department had to be able to read and write and
count to avoid making mistakes when filling out orders. General assembly work
consisted of the assembling of component parts for a complete unit to be packaged,
and the packaging of the unit. In the case of liquids and powders, there would be
the bottle, a cap, and other matter to go in the package. There were other compo-
nents that made up clips and cards and other products produced and sold. Routine
assembly work consisted of routine assignments such as gold stamping, cementing
washers together to make heads for mechanical pencils, and putting together plastic
and metal parts of other Theon products. The work of operating the filling machines
was done by female workers. Servicing the assembly line for all operations was
part of the duties of the male general factory worker charged with moving supplies
and materials.
Flaster recalled that Theon endeavored to obtain a good type of employee, prefer-
ably one who understood English and could read and write and count, a little Theon
had difficulty in meeting its preference as most of its employees were Spanish.
There were many jobs open to workers who could not read or write. On many
occasions, Theon hired a worker who could not read or write. If he showed ability
and a desire to woik he was given an opportunity to show he could do the work.
A worker almost "moronic" but "nice and clean" who was good at a particular job,
would be kept on it.
Flaster also recalled that a general assembly worker who placed a pencil on a
card would ordinarily be able to do this work "blind" as the boxes came through
in the color of the pencil. However, on occasions cards for one color were in
the boxes of another color. The worker had to be able to read the description of
the color both on the card and on the pencil to be sure they matched. He had to
know, for example, that he was placing a pencil, marked black on a card marked
black.
Records of the hiring hall disclose that male general factory workers dispatched
by it and hired by Theon in 1961 were one in February, eight in May, two in June,
and one in July. They were paid $48 per week. In May, June, October, and
November, porters were dispatched and hired. They were one each in May, June,
and October at $48 per week, four at $50 per week in October, and one at $50 per
week in November. A packer was dispatched and hired at $50 in June. The gen-
eral factory workers dispatched in May were in response to a request for workers
who could read and write.
3. Helen Neuschaefer
Helen Neuschaefer normally employs 70 to 100 factory workers, most of whom
are women. The women are employed on the assembly lines and in the shipping
department. This Company had a collective-bargaining contract with the Union
during the backpay period, which ran from February 23, 1960, to November 21, 1961,
and hired all its factory workers through the union hiring hall in accordance with
the contract.
G It appears that of the 75 to 100 workers hired through the hiring hall, 15 to 20 male
workers, and 60 to 80 female workers, were dispatched and hired at least temporarily.
222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In the period from February 23 to December 31, 1960, the Company hired 44
male factory workers, and during the period from January 1 to November 21, 1961,
it hired 17 male factory workers. The first hire in 1960 was in May. In 1961
there were three in March, one in April, two in June, four in July, five in August,
and two in September. The evidence does not show the number of workers by
classification. Helen Neuschaefer classifies factory workers as general factory,
assembly, shipping, and maintenance workers. However, the evidence does show
that there are normally 23 male factory workers employed-12 are general factory
workers, 4 are assembly workers, 3 are in the shipping department, and 4 are mainte-
nance workers. During the peak season, which normally runs from May to October,
the general factory workers are doubled, and the assembly and shipping workers
are each increased by three. There is no increase in the number of maintenance
workers.
It can be estimated on the above figures that the 44 hires in 1960 approximated
30 general factory, 7 assembly, and 7 shipping room workers, and the 17 hires in
1961 approximated 11 general factory, 3 assembly, and 3 shipping room workers.
The wages of those hired approximated $55 per week except in the case of two jobs
in 1960 (one in October and one in November) which paid $64 and $70, respectively,
and four jobs in 1961 (one each in March, June, July, and September) which paid
$62. General factory workers did all manual labor work such as bringing materials
into the assembly rooms (like bottles, caps, and labels), and after the assembly line
work was completed, bringing the finished products away from the lines to the next
operation. They loaded and unloaded trucks. As part of work of servicing the
assembly lines, they would fetch boxes of labels.
Helen Neuschaefer had no reading or writing requirements for male workers with
the exception of the few who worked on the assembly line In the shipping depart-
ment, the women filled the orders and put the labels on the packages or cartons.
The male workers only packed the packages. The Company had products with 50
to 70 shades. The workers who obtained supplies for the assembly line were expected
to be able to comply with requests for materials of a certain shade of color by
recognizing its identification on the carton. If he was requested to bring a carton
of brown labels to an assembly line, he had to go to the storage area and find the
carton of labels with the word "brown" printed or written on it. They would also
have to be able to count to 60 or 70, in order to be able to fetch to the line the
quantity of supplies requested.
Hiring hall records disclose that of 16 requests for factory workers by Helen
Neuschaefer in 1961. 6 had the reading and writing requirement attached. They
were for two general factory and one porter in January, a packer in June, and two
general factory in August. The 10 requests which were silent in regard to reading
and writing were for 2 general factory in January, a porter in February, 3 general
factory in March, 2 general factory in July, and 2 in September.
4. Paris Cosmetics
Paris Cosmetics, Inc c a manufacturer of cosmetics, had collective-bargaining con-
tracts with the Union from May 1960 to November 21, 1961, and hired workers
through the Union's hiring hall during that period. Paris hired 6 workers in this
manner during the 1960 period, and 17 in the 1961 period. The weekly wage was
$50 for the 1960 hires and $54 except in a few instances for those hired in 1961.
Five of the hires in 1961 were engaged at $50 per week, and one was paid $42 for
a week's work. None of these employees had any seniority at the times they were
dispatched and hired.
The workers hired through the hiring hall operated the feeder machines, assembly
line conveyers, packed merchandise at the end of the conveyer, stacked finished
goods on a pallet or skid, loaded and unloaded trucks, cleaned up, and did any other
work of a related nature necessary to the normal transaction of business. The
worker dispatched from the hiring hall was required to complete an application form.
He was required to furnish his name, address, social security number, education,
experience, marital status, dependents, previous employment, and reason for leaving
9 Spitalney , Respondent 's witness, admitted in response to Respondent's counsel 's ques-
tioning that he refused to talk to an attorney for the Respondent prior to the hearing,
saying he would see him at the hearing, but did permit an attorney for the General Coun-
sel to interview him prior to the hearing , and signed a statement for him Spitalney
was a credible witness His testimony stands unrebutted. I have credited both his
demeanor and other testimony If his credibility were in issue , I would weigh the differ-
ence in treatment accorded counsel for Respondent and counsel for General Counsel. In
this context , however , it is not material, and I gave it no weight
I. POSNER, INC., POSNER DISTRIBUTING CORP., ETC. 223
his previous employment. Generally, to be hired the worker had to be able to fill
out the application. However, exceptions were made when a dispatched worker
appeared to have the potential of a good worker by his experience, appearance or
some other factor that appealed to the interviewer, in spite of his difficulty in com-
pleting the application form. There were no specific requirements for reading and
writing. He was hired or not hired on the basis of his ability to fill out the form,
with the exception stated above.
A worker who stacked finished goods on a skid or pallet at the end of the con-
veyor line had to be able to make a mark on a sheet of paper for each unit he stacked
(whether it was pieces, cartons, or skids or pallets), and to count the number of
marks he made on the paper. This means he had to be able to count sufficiently to
be able to do this work. These totals were used by the Company to determine the
number of pieces produced in a particular production line in connection with its
cost analysis. A worker who stacked cartons had to be able to count in order to
keep track of them. There were jobs that called for moving and lifting only.
Reading, writing, and counting were not necessary for those jobs.
The Company is a contract manufacturer, and in its contract work colors and
shades of colors may or may not be involved. Where there were colors and shades
of colors involved, the worker who went to the stockroom for labels had to be able
to read to obtain the boxes of labels he was sent to obtain. On occasion he may
have had to read "the name of the product, the name of the manufacturer, fragrance,
color or shade, size occassionally." If he had to place a label on a carton he was
shown by the foreman or forelady what label to apply. Any repetition of this same
unit of work was done independently by the worker. Assembly line workers worked
on one product at a time and on one shade at a time
5. Revlon
There were a considerable number of production and maintenance workers hired
by Revlon during the backpay period. Revlon has plants in Edison and Passaic,
New Jersey, which manufactures cosmetics, and a plant in Irvington, New Jersey,
that makes cutlery products which, like cosmetics, contribute to a woman's appear-
ance. They are scissors, nail clippers, and files. It has another plant at North
Bergen, New Jersey, which manufactures clothing; a subsidiary, Komack Manu-
facturing Company, Brooklyn, New York, which manufactures Esquire shoe polish,
a research laboratory in New York City; a distribution center in Los Angeles, and
general offices at 666 Fifth Avenue, New York City.
Revlon has contracts with the Union for some of its operations. It is clear from
the evidence of record that it does not employ through the Union hiring hall workers
for its cosmetic plants at Edison and Passaic, New Jersey, and the record is silent as
to whether it hires through the hiring hall workers for any other of its operations
In these circumstances, I rejected an exhibit showing the number of porters that
were hired by the Edison plant during the backpay period, and the dates of hire.
This and evidence that may be in the record regarding workers hired for its other
operations is not material or relevant to the remand hearing, since it was limited
to employment through the facilities of the Union's hiring hall. I have, therefore,
given this evidence no weight in reaching my Supplemental Decision and Recom-
mended Order.
6. James Johnson
Discriminatee Johnson was born in New York City but spent his boyhood in
Abbeville, South Carolina, where his father was a tenant farmer.7 He attended four
grades of Gillmore grammar school in Abbeville between the ages of 5 and 16. He
was absent from school on many occasions when it was in session. He helped his
father with the farm when he was absent. Johnson learned to read, write, and count
during the 11 years, or parts thereof, that he spent in grammar school.
When 16, approaching 17, he volunteered twice for duty in the U S. Army,
he was turned down the first time, but was accepted the second time. He served 2
7 Witnesses who gave testimony for Respondent in the backpay proceedings regarding
Johnson's capacity to read and write were Hamilton Posner owner and official of Respond-
ent ; Morris L. Doswell, organizer for the Union, the Charging Party, who represented
the Union in the organizational activity, including the picketing from September 1959 to
February 24, 1960 ; Johnson himself, and Evanoff, the hiring hall director during the
backpay period. Posner testified Johnson was illiterate; Doswell, who had been closely
associated with Johnson in the picketing activity, and said he knew him well, testified he
was deficient in reading and writing; Johnson testified he did not read or write well, and
Evanoff testified that Doswell told him that Johnson was illiterate
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
years. He testified he was discharged after 2 years because he had a low IQ. When
he first volunteered, which was at the recruiting office in Abbeville, he filled out a
form for the recruiting sergeant. He wrote in his name and address. The remainder
of the form was a questionnaire with a box to be filled in after each statement. He
placed an X in the box following the applicable statement. One stated "male,"
another stated "female." He marked male.8 One other was "married" or "single."
He marked single. In the space alloted for a statement of what he was doing at
the time, he wrote he was going to school. He checked or placed a circle around
the number "4" to show he attended four grades of grammar school. Johnson took
a literacy test the first time at Fort Jackson, Columbia, South Carolina. He went
there in an Army bus from Abbeville with about 40 others. Johnson was handed
a paper which included problems in arithmetic such as dividing and subtracting
He failed this test. Johnson recalled that the second time he volunteered at Abbe-
ville, he answered questions asked by the recruiting sergeant . He did not recall
writing anything down. The sergeant took him and three others in a passenger
automobile to the Army location at Atlanta. He passed the literacy test he took
there.
Johnson testified that when he was employed by Posner he knew at least 10 colors.
He said further he had knowledge of the colors he was required to know in connec-
tion with taking jars off the assembly line after they were automatically filled and
capped, placing them in cartons, sealing the cartons, and placing the cartons on
skids or pallets. Johnson answered "Yes" to Respondent's counsel's question whether
he knew a Posner color by the name of "bergamot." It is the color of an orange
which is shaped like a pear. Johnson also testified that during the first period he
worked for Pur-All, which was from March 1, 1960, until he was laid off on
November 24, 1960, for lack of work, he had knowledge of 30 to 40 colors and
shades in connection with his job of filling cans with paint He knew the commonly
known colors when he was in grammar school.9 He testified that while working
at Pur-All he tried to help himself and learn something.'° Johnson disclosed he
8 Johnson took occasion at the hearing on February 10, 1965, to indicate he was offended
at the remarks and questioning of counsel for both General Counsel and Respondent, at
the hearing in the spring of 1963 and the remand in the spring of 1964 . that suggested
he did not understand an inquiry as to whether he was male or female He did not have
this problem. The evidence shows he understood such an inquiry whenever made, and
answered readily and correctly by checking the box after "male " At the outset of the
backpay hearing, counsel for Respondent strove to show that Johnson was of low mental
capacity , such as being unable to understand the inquiry as to whether lie was male or
female , and thinking the inquiry was whether he did work in connection with the "mail "
The purpose was to show that Respondent did not have a job in which to reinstate him
General Counsel, at that time, strove to rebut such a position. He defended Johnson by
the objection that the question asked was misleading And it was Later when the
evidence was related to the issue whether Johnson made a reasonable effort to find em-
ployment, or engaged in willful idleness, Respondent's counsel strove to show mental
capacity by Johnson to fill jobs dispatched through the Union's hiring ball, in seeming
contradiction of his prior contention that Johnson was of low mental capacity. Gen-
eral Counsel, on the other hand, at this stage of the proceeding, was seemingly engaged
in an effort to show Johnson of low mental capacity, such as being unable to understand
an inquiry to whether he was male or female , in contradiction of his prior position, to
support General Counsel's position that Johnson should not be held accountable for fail-
ure to appear at the hiring hall more than 1 day a week to apply for general factory jobs
which were available, because of mental incapacity to hold the general factory fobs called
out or posted. The strategy of counsel left the record with only limited evidence of
Johnson's capacity to hold the jobs that were available through the hiring hall. For
this reason, the record was reopened on February 10, 1965.
0 The primary colors are the colors in the spectrum . Newton's seven were red, orange,
yellow, green , blue , indigo, and violet . Then there is white which is usually the color
of the light thrown upon an object which reflects equally all rays thrown upon it. It
is usually, viewed by white light. Black is the color of an object which has very little
capability for reflecting rays. Webster's New International Dictionary (1933 Ed ),
P. 400.
10I find from Johnson ' s demeanor testimony that his comprehension was good, and that
generally, lie understood readily questions counsel and I asked him The questioning of
Johnson with respect to his knowledge regarding the meaning of an oath and the obligation
to tell the truth while under oath arose not from Johnson's testimony, but rather fioni
the efforts of counsel to make him appear a person of low mental capacity Johnson readily
indicated by his answers to my questions that lie was aware of his obligation to tell the
truth under oath.
I. POSNER, INC., POSNER DISTRIBUTING CORP., ETC. 225
could read the figures "100," and "1000," and could count slowly. He could add
500 and 500, 50 and 50, 54 and 54. He stated, however, that 13 and 13 were 24.11
Johnson also testified that he read the sport pages of a newspaper, that he could
recognize the name of players, having seen then many times. He also testified
that when he was laid off by Pur-All on November 24, 1960, he registered at the
hiring hall. According to him, he did not receive a copy of the rules of the hiring
hall when he registered, or any other document showing industry or overall seniority.
He testified, however, that he received a paper saying that he had to register every
2 weeks and appear at the hiring hall once a week.
Counsel for General Counsel gave Johnson three word-reading tests. One was
identified as General Counsel's Exhibits No. 2A and 2B, each page being identified;
another was identified as General Counsel's Exhibit No 3, and the third was identi-
fied as General Counsel's Exhibit No. 4. In the first and third tests, Johnson selected
a word from four words associated with a picture as the word describing the picture,
by placing an X in the circle after the word he selected. He quickly marked the
two tests.
In the first test, he correctly selected the words basket, paint, fish, paper, saw,
road, meat, foot, radio, women, city, camp, river, dollar, teacher, stairs, desk, chief,
speaker, wall, carry, sea, machine, half, dad and card, and incorrectly selected the
word early instead of world, turtle instead of cave, danger instead of dance, towel
instead of village, trying instead of hit, swing instead of save, and did not select a
word for the picture of a lake, a bucket "filled" with sand, and a boy running
"behind" other boys. His exact score in this quick test was 26 out of 35. I find
that in each of the instances where there was an incorrect selection or no selection,
the error could have been due to Johnson's misunderstanding or lack of under-
standing of the picture rather than inability to read the words associated with the
pictures, or lack of knowledge of the meaning of the words.
In test three, Johnson correctly selected the words chief, sharp, cut, engine, burn,
net, soft, soap, meet, follow, and fingers. He incorrectly selected the word five
instead of hide for the picture of a little girl of five hiding behind a chair; into instead
of find for the picture of a little girl about to find two companions who had gone into
a closet to hide; the word try instead of the word lady for a lady walking; the word
tent instead of the word last for a picture of six youngsters and another in the dis-
tance. He made no selection from the words against, lie, blanket, and lake for a
picture of a "lake," or from the words agree, path, pleasant, and coffee for a picture
of a "path." I find, however, that Johnson's incorrect selections, or failure to make
a selection, could have been due to a misunderstanding or lack of understanding of
the pictures, rather than inability to read the words associated with each of these
pictures. In any event, his exact score was 11 out of 17.
In the second test, Johnson readily recognized and read the words, am, big, run,
dog, up, to, me, it, good, look, all, cake, how, from, into, that, wanted, milk,
another, cry, gate, snow, next, bunny, running, clang, fruit, music, cannot, addition,
compound, and grateful. He did not recognize or read the words, story, playing,
hopped, thought, well, quick, sound, teach, often, straight, dark, cheek, reason,
plain, inch, freeze, moment, knife, president, shovel, whale, blizzard, embrace, groove,
introduce, magic, nonsense, permanent, scratch, accomplish, commotion, decorate,
essential, marvelous, grateful, population, remarkable, suggestion, and territory.
7. Ronald Bell
As previously found, Ronald Bell was laid off by Miles Shoe Store about April 7,
1960, and was unemployed from that date until July 19, 1960, when he was employed
by Glass Laboratories through the hiring hall.12 Bell repeated the testimony he
previously gave regarding his efforts to obtain employment through the hiring hall
after his layoff by Miles Shoe Store and before his employment by Glass Laboratories.
11 Johnson, whose comprehension was good, knew from the colloquy of counsel that he
had to appear somewhat slow in thinking in order to collect the maximum amount of
backpay The thought occurred to me that Johnson in the course of responding to this
type of question may well have deliberately answered incorrectly to keep the backpay
figure at the highest possible level.
13 Bell had 2 years seniority in the cosmetics industry by reason of his 5 years employ-
ment by Posner. Since he worked 11/ days for Atlantic Container Corporation he did
not have plant seniority with that company. He lacked the minimum of 4 weeks or
30 days employment. He failed to obtain plant seniority at 'Miles Shoe Store by 5 weeks
employment there from March 1, 1960, because of poor work performance.
206-446-66-vol. 154-16
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
My findings on this testimony are set out on page 11 of the Supplemental Inter-
mediate Report issued August 15, 1963 I particularly noticed Bell 's demeanor testi-
mony at the reopening on February 10, 1965. I again credit his demeanor testimony
as well as his testimony of his efforts to obtain employment . I also credit his testi-
mony that he did not hear any general factory or general helper jobs at or about
$65 per week called out, or see any such jobs posted . The jobs offered in evi-
dence through hiring hall records and the testimony of officials of Miradel, Nestle
Le Mur, Helen Neuschaefer , and Paris Cosmetics corroborate Bell's testimony. I
also credit Bell's testimony that he applied for any jobs he thought he would be able
to fill, regardless of the employer , and lost out to other applicants either because of
insufficient seniority or lack of experience.
8. Analysis and concluding findings
Preliminary to my stating my conclusions of fact and law and recommendations
that are premised on the foregoing , I feel it appropriate to state some material prin-
cipals of law that are binding on me by statute or Board and Court decisions.
Backpay proceedings are not newly instituted primary actions , but rather supple-
mentary proceedings to compute the amounts which constitute reimbursements as
ordered and decreed. They are the fulfillment "of the Board 's duty to complete or
make final what it properly left undecided in its first order. " 13 The Board's backpay
orders are entered and enforced not "to vindicate the private rights of the men" but
"to discourage discharges of employees contrary to the Act." 14 They are reparation
order[s] designed to vindicate the public policy of the statute." 15
A backpay order, therefore , is part of the remedy to vindicate the public right to
have labor free from the discouragement of membership in a labor organization by
the discharge of employees for engaging in union activity . The formula is roughly
the sum of the earnings the discharged employee would have earned had he not
been discriminated against, less his earnings during the backpay period , and less
amounts he would have earned had he made a reasonable effort to find employment.is
While the policy of allowing deductions from gross pay that reflect failure to make
reasonable efforts to find employment resembles the mitigation of damages in private
law suits, it is not primarily intended to save harmless the violating employer, but
to discourage idleness, and encourage production and employment , although, as in
the mitigation of damages , the employer benefits. A draconian application of the
policy of deductions that reflect lack of effort to find employment could wipe out
the earnings the discriminatee would have earned had he not been discriminated
against, with the result that the remedy to vindicate the public right would be an
empty one , and there would be no deterrent to a recurrence of the employer's
illegal conduct . On the other hand, the public right would not be vindicated if willful
idleness of the discriminatee were ignored , and, as a result , production and employ-
ment were discouraged instead of encouraged . So while the discriminatee must
make a reasonable effort to minimize his losses , he is not required to make the
maximum effort , in order to be eligible to receive backpay . 17 This is in accord with
the general rule for breach of employment contracts.18
The evidence clearly shows that the hiring hall of the Union is not only the
medium for the vital communication between employers in the New York City area
seeking workers of the type of Johnson and these unemployed workers, but is also
the first stage of the hiring process by which employers hire workers who use the
facilities of the hiring hall. The evidence also shows that approximately 1,500
employers have bargaining contracts with the Union, and that many of them by
contract and otherwise obtain workers through the Union's hiring hall facilities.
1J N L.R B. v . C C C Associates , Inc, 306 F 2d 534, 540 (C.A. 2)
14 Waterman Steamship Corporation v. N L R B ., 119 F. 2d 760 , 762, 763 (C.A. 5).
15 MacKenzie Coach Lines , Trustee in Bankruptcy of Nathansen v N.L R B , 344 U S
25, 27; N.L.R.B . v Deena Artware, Inc, 361 U S . 398, 412, footnote 3. (Frankfurter,
J., concurring opinion).
16 Mastro Plastics Corporation , et al, 136 NLRB 1342 ; Brown & Root, Inc, etc 132
NLRB 486 , enfd 311 F 2d 447 ; N L R B . v. Deena Artware , Inc., 361 U . S 398 , 411-412
(Frankfurter , J., concurring opinion ), Waterman Steamship Corporation v N L R B , 119
F. 2d 760 , 762, 763 ( C A. 5) ; Phelps Dodge Corp . v. N L.R B. , 313 U S 177 , 197-200.
17 See W. C Nabors d/b/a W . C. Nabors Company, 134 NLRB 1078 , enfd. as modified
323 F 2d 686 (C.A. 5) cert denied 376 U S 911
15 See Emery v. Steckel, 126 Pa. 171, 17 AtI . 601, 602 ( Pa Sup . Ct.) ; McCormick Dam-
ages § 159 (Hornbook ed , 1935 ) ; 1 Sedgwick , Damages § 206 ( 9th ed., 1912).
I. POSNER, INC., POSNER DISTRIBUTING CORP., ETC. 227
The evidence further shows that during the backpay period Theon, Nestle Le Mur,
Helen Neuschaefer, and Paris Cosmetics hired many general factory workers and
porters through the hiring hall. I believe the evidence of the use of the hiring hall
by these manufacturers, and Pur-All and Atlantic Container, justifies an inference,
which I hereby make, that similar use of the hall was made by other manufacturers,
including additional cosmetic manufacturers, as well as employers at wholesale and
retail levels having collective-bargaining contracts with the Union.
I further find on consideration of the evidence of the use of the hiring hall by
Theon, Nestle Le Mur, Helen Neuschaefer, and Paris Cosmetics, and Johnson's testi-
mony, including his demeanor testimony, that Johnson was qualified to hold many
of the jobs for which workers were hired through the hiring hall by these companies,
including the jobs having simple reading and writing requirements, and the require-
ment of capacity to recognize colors and shades of colors that have been under
scrutiny here. Johnson attended school for 11 years, even if only in four grades. He
can read and write. His comprehension is good. He has the ability to improve him-
self to meet the challenge and requirements of a job. After Johnson's employment
with Pur-All, he could recognize 30 to 40 colors and shades of colors. These are
more colors and shades than average persons of higher education than Johnson can
recognize and identify. As he stated on the witness stand, he increased his knowledge
of colors on the job. If the opportunity were afforded Johnson to acquaint himself
with 88 colors or shades required by a job, he would acquire that knowledge without
difficulty As it is, with his knowledge of 30 to 40 colors or shades of colors, he very
likely has more knowledge of colors and shades than the average worker hired
through the hiring hall. From my observation of Johnson, he could adapt himself
to many general factory jobs including those with simple reading and writing require-
ments with the minimum of prejob or on-the-job training.
While the jobs of the type that Johnson could fill were available through the hiring
hall from Monday through Friday of each week, a reasonable effort would be made
by a person like Johnson to find employment, in the context of this case, if he went
to the hiring hall, and made an effort to be dispatched to a job, at least 3 days a week.
This finding is made with recognition of Johnson's weekly visit on Thursday to the
State unemployment office. It was to pick up his weekly relief check, and, by request,
occasionally to check with the dispatching branch of that office. He could complete
this visit by 9.30 a.m. I consider this finding to be in accordance with the evidence
of the remedy to vindicate a public right by providing a deterrent to future employer
violation, but at the same time encouraging production and employment rather than
willful idleness.19 It is recognized by the Board and the courts that a remedy to
effectuate the purposes of the Act cannot be fashioned with preciseness or by adher-
ence to strict formula 20 The Board, however, has broad discretion to fashion a
remedy to effectuate the purposes of the Act.21
On the foregoing findings, I conclude that there should be a reduction in the
amount of net backpay I recommended for Johnson in my Supplemental Report
issued August 15, 1963. This reduction should represent estimated earnings he would
have made had he gone to the hiring hall and applied for work an additional 2 days a
week during the last 5 weeks of the fourth quarter in 1960, starting with November 28,
1960, following his layoff on November 24, 1960, by Pur-All, 2 days of each of
the 13 weeks in the first quarter of 1961, 2 days of each of the weeks of June 1961, in
the second quarter of 1961; and 2 days of each of the weeks of July and August in
the third quarter of 1961. He was rehired by Pur-All on September 5, 1961. No
deduction is made for the period from April 3, 1961, to June 3, 1961, as I had made
a deduction for this period in my Supplemental Report of August 15, 1963. See page
17 of my August 15 report.
The amounts deducted were determined by multiplying the number of hours of
the 2 days of each week of each quarter for which a deduction was made by the
hourly rate for the particular quarter, as found on page 16 of Appendix D-1 of the
specification. The additional deductions by quarters are as follows:
1960-4th Quarter------------------------------------------- $103. 65
1961-1st Quarter------------------------------------------- 283.93
2d Quarter------------------------------------------- 87.85
3d Quarter------------------------------------------- 206.91
680. 34
See cases cited footnote 16.
N.L R.B. v. Brown & Root, Inc., et at., 311 F. 2d 447 (C.A. 8).
z' Phelps Dodge Corp. v. N.L.R B., 313 U.S. 177 , 194; Regal Knitwear Company V.
N.L R B., 324 U S. 9, 13; and N.L.R B. v. Seven - Up Bottling Company of Miami, Inc., 344
U.S. 344, 346-347.
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The revised recommendation of backpay by quarters and by total for Johnson is:
1960-1st Quarter------------------------------------------- $30.98
2d Quarter------------------------------------------- 0.00
3d Quarter------------------------------------------- 0.00
4th Quarter------------------------------------------- 76.43
1961-1st Quarter------------------------------------------- 425.89
2d Quarter------------------------------------------- 75.76
3d Quarter------------------------------------------- 333.73
4th Quarter------------------------------------------- 0.00
942. 79
I have reviewed the evidence of Ronald Bell's efforts to obtain employment during
the backpay period, including the testimony he gave on February 10, 1965, as well as
the evidence dealing with jobs available in the plants of Theon, Miradel, Nestle
LeMur, and Helen Neuschaefer, and I am satisfied that he is entitled to the backpay
recommended on page 218 of my Supplemental Report of August 15, 1963. I am
also satisfied from a review of all the evidence that discriminatees Robert Bell,
Freddie Allen, and Gerald Mussenden are also entitled to the backpay I recommended
for them on page 218 of my August 15, 1963, Supplemental Report.
RECOMMENDED ORDER
Upon all of the foregoing findings, I find and conclude that discriminatees Ronald
Bell, Robert Bell, Freddie Allen, James Johnson, and Gerald Mussenden are entitled
to backpay payments in the amounts listed below:
Ronald Bell------------------------------------------- $1,766.80
Robert Bell------------------------------------------- 356.78
Freddie Allen----------------------------------------- 807.49
James Johnson---------------------------------------- 942.79
Gerald Mussenden------------------------------------- 45.55
223,919.41
I recommend that the Board adopt the foregoing findings and conclusions, and
order Respondent to pay to the discriminatees the amounts recommended.
22 Since it is Respondent 's wrongdoing , which, under the circumstances , has made it
"impossible to do more than approximate the conditions which would have prevailed"
(F. W. Woolworth Company v. N.L.R.B., 121 F. 2d 658, 663 (C.A. 2) ), Respondent cannot
complain because the amount of backpay cannot be measured with precision. It is its
wrongdoing that has given rise to the involved state of facts in this proceeding. See
Story Parchment Co. v. Patterson Parchment Paper Co ., 282 U.S. 555 , 563; N.L.R.B. v.
Kartarik, Inc., 227 F. 2d 190, 129-193 (C.A. 8 ), and Eagle-Picher -lining and Smelting
Company v. N.L.R.B., 119 F. 2d 903, 914 (C.A. 8).
The Rose Company and International Union, United Automobile,
Aerospace and Agricultural Implement Workers of America,
AFL-CIO. Cases Nos. 30-CA-19 (formerly 13-CA-5728) and
30-CA-41 (formerly 13-CA-6234). August 4, 1965
DECISION AND ORDER
On April 28, 1965, Trial Examiner Stanley N. Ohlbaum issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations Act, as amended,
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
154 NLRB No. 19.