International Association of Heat and Frost Insulators

National Labor Relations Board - Board Decisions

Dec 13, 1957

119 N.L.R.B. 801 (N.L.R.B. 1957)

INTERNATIONAL ASSOCIATION OF HEAT AND FROST INSULATORS 801
to join or assist United Hatters, Cap & Millinery Workers International Union,
AFL-CIO, or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or protection, or
to refrain from any and all such activities except to the extent that such right
may be affected by an agreement requiring membership in a labor organization
as a condition of employment as authorized in Section 8 (a) (3) of the Act.
WE WiLL offer employment to Seymour Carter in accordance with the
recommendations of the Intermediate Report
Wu WILL make whole Seymour Carter and Mary Lorene Carter for any loss
of pay suffered by them for reason of the discrimination practiced against them,
in accordance with the recommendations of the Intermediate Report.
All our employees are free to become, remain, or refrain from becoming members
of the above-named Union or any other labor organization except to the extent that
this right may be affected by an agreement in conformity with Section 8 (a) (3) of
the amended Act.
PARAMOUNT CAP MANUFACTURING CO.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
International Association of Heat and Frost Insulators and
Asbestos Workers, AFL-CIO, Local 31 and Prescott Jentzel, its
business agent [Rhode Island Covering Company] and John
Frank and Joseph S. Aguiar. Cage No. 1-CB-284. December 13,
1957
SUPPLEMENTAL DECISION AND ORDER
On December 29, 1955, the National Labor Relations Board issued
a Decision and Order in the above-entitled case,' finding, inter alga,
that Respondent Union had violated Sections 8 (b) (1) (A) and 8
(b) (2) of the Act by causing Rhode Island Covering Company to
discriminate against two of its employees, John Frank and Joseph
S. Aguiar. The Board therefore ordered Respondent Union to make
whole these employees for any loss of earnings they may have suf-
fered because of the discrimination against them.
Thereafter the Regional Director for the First Region issued, and
duly served, a back-pay specification, and a notice of further hearing
to determine the amounts of back pay due Frank and Aguiar. A
hearing, before Trial Examiner Sydney S. Asher, Jr., was held in
the matter on December 30, 1955. On April 5, 1956, the Trial Ex-
aminer issued his Supplemental Intermediate Report, attached hereto,
in which he found that specific amounts of back pay were due Frank
and Aguiar, and in which he recommended that Frank and Aguiar be
2 114 NLRB 1526.
119 NLRB No. 108.
476321-58---vol. 119--52
802 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reimbursed by Respondent Union in accordance with the finding of
back pay that was due them. Thereafter, Respondent Union filed
exceptions to the Supplemental Intermediate Report, and a support-
ing brief.
The Board 2 has reviewed the rulings of the Trial Examiner at
the December 30 hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed.
The Board has considered the Supplemental Intermediate Report,
the Respondent Union's exceptions and brief, and the entire record
in this case. It hereby adopts the findings, conclusions, and recom-
mendations set forth in the Trial Examiner's Supplemental Inter-
mediate Report.
ORDER
Upon the basis of the Supplemental Decision herein and the
entire record in this case, and pursuant to Section 10 (c) of the
National Labor Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that Respondent International Associa-
tion of Heat and Frost Insulators and Asbestos Workers, AFL-CIO,
Local 31, its officers, agents, successors, and assigns shall pay to John
Frank the sum of $2,770.31 and to Joseph S. Aguiar the sum of
$1,745.19 in satisfaction of the Board's previous Order herein di-
recting the said Respondent to make Frank and Aguiar whole for
any loss of earnings they may have suffered because of the discrimina-
tion against them.
2 Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board had delegated its powers in connection with this case to a three -member panel
[ Members Rodgers , Bean, and Jenkins].
SUPPLEMENTAL INTERMEDIATE REPORT
On December 29, 1955, the National Labor Relations Board , herein called the
Board , issued a Decision and Order in the above -entitled proceeding 1 finding, among
other things , that International Association of Heat and Frost Insulators and Asbestos
Workers, AFL-CIO, Local 31 , Cranston , Rhode Island , herein called the Respond-
ent Union , had violated Section 8 ( b) (1) (A) and ( 2) of the National Labor Rela-
tions Act , as amended, 61 Stat. 136 , herein called the Act . The Board found that
on June 25 , 1954, the Respondent Union caused Rhode Island Covering Company,
herein called the Company , to remove two of its employees , John Frank and Joseph
S. Aguiar, the Charging Parties, from insulating work on the Rhode Island Hospital
project on which they were then engaged, because they were not members of the Re-
spondent Union. It further found that , since June 25, 1954 , neither Frank nor Aguiar
was reassigned to the hospital job or was assigned to any other insulating work within
the geographical area over which the Respondent Union claims jurisdiction. The
Board , as part of its remedy, ordered the Respondent Union to
make Frank and Aguiar whole for any loss of earnings they may have suffered
because of the discrimination against them , by paying to each of them a sum of
money equal to the amount he normally would have earned from June 25, 1954,
the date of the discrimination against him , to 5 days after the Company receives
1114 NLRB 1526.
INTERNATIONAL ASSOCIATION OF HEAT AND FROST INSULATORS 803
notification from the Respondents that they have withdrawn their objection to
the reassignment of Frank and Aguiar as aforesaid, less his net earnings, if any,
during that period. The back pay provided for herein shall be computed on a
quarterly basis in the manner established by the Board; earnings in one particu-
lar quarter shall have no effect on the back-pay liability for any other period.
Moreover, back pay shall be abated from February 2, 1955, when the complaint
was dismissed in its entirety, to [May 27, 1955,1 the date of the issuance of this
[the] Intermediate Report. The Respondent Union shall deduct from the
amounts payable to Frank and Aguiar such sums as would normally have been
deducted from their wages for deposit with State and Federal agencies on account
of social security and other similar benefits. The Respondent Union shall pay
to the appropriate State and Federal agencies to the credit of Frank and Aguiar
and the Company, a sum of money equal to the amount which, absent discrimi-
nation, would have been deposited to such credit by the Company, either as a
tax upon the Company or on account of deductions made from Frank's and
Aguiar's wages by the Company on account of such social security or other
similar benefits.
The parties having been unable, through informal negotiations, to agree upon the
amount of back pay due Frank and Aguiar, the General Counsel 2 issued and served
upon the Respondent Union and Frank and Aguiar back-pay specifications alleging
that the Respondent Union was indebted to Frank in the sum of $3,027.77 and to
Aguiar in the amount of $1,906.43 "minus the tax withholdings required by Federal
and State laws." This encompassed the period beginning June 25, 1954, when Frank
and Aguiar were forced off the Rhode Island Hospital project on which they were
then working, and ending January 26, 1956, excluding the period from February 2 to
May 27, 1955. The Respondent Union filed an answer denying that it was under
obligation to make whole either Frank or Aguiar. Pursuant to notice, a supplemental
hearing in the matter was held before me on December 20, 1956, in Providence,
Rhode Island. The General Counsel and the Respondent Union were represented and
participated fully in the hearing. After the close of the supplemental hearing, the
Respondent filed a brief, which has been duly considered.
A. Back-pay period
The Board decided that the back-pay period should commence June 25, 1954, and
should terminate 5 days after the Company receives notice from the Respondents
that they have withdrawn their objection to the reassignment of Frank and Aguiar.
The General Counsel does not claim that the back-pay period extends beyond January
26, 1956, and the Respondent Union does not claim that it sent the required notice at
an earlier date. January 26, 1956, will therefore be taken as the terminal date. In
accordance with the Board's decision, the period from February 2 to May 27, 1955,
will be excluded.
B. Gross back pay
When Frank and Aguiar were laid off the Rhode Island Hospital job on June 25,
1954, they were both earning $2.971/2 per hour. The parties stipulated that, for the
week ending June 29, 1954, Frank and Aguiar would have earned $119 each for the
full 40-hour week, but that each of them actually worked 311/2 hours that week and
earned $93.71. It is found that the difference, $25.29, represents the amount of gross
pay lost by each of them for this period, because of the discrimination against them.
For the next 6 quarters, the General Counsel submitted a list of the earnings of 18
journeymen pipe coverers employed by the Company at its Providence office and con-
tends that Frank and Aguiar's gross earnings would have been equal to the average
of the 18 journeymen whose earnings are available. The Respondent Union opposes
this on the grounds that (1) Frank and Aguiar were not journeymen; (2) if Frank
and Aguiar had remained in Providence, they would have had reduced earnings in
several quarters due to the temporary scarcity of pipe-covering work; and (3) the
list of journeymen pipe coverers employed by the Company at its Providence establish-
ment , as submitted by the General Counsel, is incomplete.
As to the status of Frank and Aguiar, it is undisputed that they were both earning
the journeymen's rate at the time they were taken off the Rhode Island Hospital proj-
2 The designation General Counsel is intended to include the General Counsel of the
National Labor Relations Board and his representative at the hearings.
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ect. And the likelihood is very strong that they would have continued to receive the
journeymen's rate had the Respondent Union not forced them off the Rhode Island
Hospital job. Hence it is equitable to base their expectable gross earnings on the
earnings of journeymen pipe coverers on the payroll of the Company's Providence
office.
As to the scarcity of pipe-covering work, Jentzel testified that "in the latter part
of 1954 and generally in 1955, work wasn't what we would call good considering the
majority [of] the union membership as a whole." But Swanson testified that the
Rhode Island Hospital project continued to mid-1955 and that Frank and Aguiar
would have continued on that job except for the Respondent Union's "orders." He
further testified that, during the entire period in question, there was pipe-covering work
available in Rhode Island at which Frank and Aguiar could have been employed, and
that the only reason they were not so employed was the Respondent Union's threat
"that, if we employed them, the other union men would not work." At any rate, to
the extent that such work was scarce, that fact would necessarily be reflected in the
average for the other journeymen engaged in pipe-covering. There is no reason to
believe that, absent discrimination, Frank and Aguiar would not have received their
share of available pipe-covering work.
As to the Respondent Union's argument that the list of journeymen pipe coverers is
incomplete: Nelson B. Swanson, the Company's president, testified that the Com-
pany employed more than 18 journeymen pipe coverers from its Providence office.
Prescott Jentzel, a Respondent herein and a witness for the Respondent Union,
testified that during the period in question the Company employed about 40 pipe
coverers on its Providence payroll, of whom approximately half were journeymen.
He further testified that there are journeymen pipe coverers working from the Com-
pany's Providence office who do not appear on the list, and he named one. However,
the Respondent Union made no attempt to obtain or put into evidence the earnings
figures for any journeyman pipe coverer omitted from the list. Under the circum-
stances, I am convinced and find that the list, as modified hereafter, constitutes an
adequate sampling and is fairly representative of the entire class, even though one
individual has been omitted.
The list as originally submitted included the earnings for all quarters of Paul M.
Mirante. He was the foreman on the Rhode Island Hospital project in Providence
until September 1955, when he was transferred to a job in New York. Obviously
what Mirante earned thereafter is not typical of Providence wages. Indeed, the Gen-
eral Counsel concedes that Mirante's earnings for the quarters ending September 27
and December 31, 1955, should be omitted. Furthermore, the General Counsel omit-
ted the earnings of Amerigo Romano, who Jentzel testified was a helper during the
period in question rather than a journeyman. However, in the previous proceeding
Mirante testified that Romano was a journeyman, and the Board so found.3 I will not
disturb this finding merely on Jentzel's testimony in the present proceeding.
Romano's earnings should therefore be included. The list of earnings, as submitted
by the General Counsel and corrected accordingly, is adopted and attached as
Appendix A. It shows that the average earnings of a journeyman pipe coverer on
the Providence payroll was $1,302.13 for the quarter ending September 28, 1954, and
$1,428.12 for the quarter ending December 31, 1954. It is found that this repre-
sents the amount of gross pay Frank and Aguiar would have earned during these
quarters, absent the discrimination against them. The average earnings for the
quarter ending March 29, 1955, is shown as $1,355.65. This period covers 62
workdays. But Frank and Aguiar, according to the Board Order, are not entitled
to back pay from February 2, 1955. Hence they are entitled to back pay in this
quarter from January 1 to February 1, 1955, inclusive-a total of 22 workdays.
It is accordingly found that the amount of gross back pay to which Frank and Aguiar
are entitled in this quarter is 22/62 of $1,355.65, or $481.04. Similarly, the average
earnings for the quarter ending June 28, 1955, is shown as $1,145.55. This period
covers 65 workdays. But Frank and Aguiar, according to the Board Order, are
not entitled to back pay until May 28, 1955. Hence they are entitled to back pay
in this quarter for only 22 workdays. It is accordingly found that the amount
of gross back pay to which Frank and Aguiar are entitled in this quarter is 22/65 of
$1,145.55, or $387.72. The average earnings for the quarters ending September
27 and December 31, 1955, are shown as $1,341.35 and $1,442.04, respectively. It
8 See line 5, Appendix B, original Intermediate Report, adopted by the Board but not
reported in printed volumes of Board Decisions and Orders.
INTERNATIONAL ASSOCIATION OF HEAT AND FROST INSULATORS 805
is found that these figures represent the amount of gross pay Frank and Aguiar
would have earned during these quarters, had there been no discrimination against
them.
For the 4 weeks in 1956 in question, the General Counsel submitted a list of the
earnings of 16 journeymen pipe coverers on the Providence payroll, including
Mirante. With the elimination of Mirante's earnings, I consider the list an adequate
sampling and fairly representative of the group. It is attached as Appendix B.
This list shows that the average earnings for the weeks ending January 7, 14, and
21, were $79.10, $96.88, and $78.53, respectively. As previously pointed out, the
terminal date of the back pay to which Frank and Aguiar are entitled is January 26.
Thus, for the week ending January 28, they are entitled to back pay for 4 of the 5
workdays in the week. This is 4/ of the weekly average of $101.27, or $81.01. The
total gross back pay due Frank and Aguiar for this quarter is therefore computed
by adding the 3 weekly averages, $79.10, $96.88, and $78.53, and 4/s of the last weekly
average, $81.01, for a total of $335.52.
C. Interim earnings and expenses
1. John Frank
In the earlier proceeding, the Board found as follows with respect to Frank's
employment after the discrimination against him:
Frank was one of the nonunion employees laid off the hospital job on June
25 by Mirante, under circumstances described above. He reported to the
Company's shop on June 28, together with the other employees who had been
laid off, and was in the group to which Swanson announced that he could not
put them to work on any project on which union men were working because
they were not union members. For the next week or two Frank reported daily
to the Company's office but was not given any assignment. Then he was
assigned to do "odds and ends," not insulating work, at Swanson's summer
house at wages of $2.971/2 per hour. This lasted "maybe a couple of weeks."
Following that, there was a period during which Frank was not assigned to
any work. Later, he was detailed to do carpentry work (not insulating work)
and "odds and ends" at the home of another official of the Company. His
hourly rate at the beginning of this job was $2.971/2 but before the job was com-
pleted this was reduced to $2.60 or $2.40. After that, Frank was assigned to
insulating work, at a rate of $2.971/2 per hour, on projects outside the Union's
claimed territory. He has also worked in the Company's shop from time to
time. Since June 25, Frank has neither been reassigned to the hospital job nor
been assigned to any insulating work within the geographical area over which
the Union claims jurisdiction.
In the instant proceeding, Frank testified credibly and without contradiction that
he later was assigned to pipe-covering work from the Company's Worcester office
(outside the Respondent Union's claimed geographical jurisdiction) at the then
current journeymen's rate of $2.971/ per hour. This later went up to $3 or $3.05
per hour. Frank was laid off during the week of March 15, 1955, and has not since
been employed by the Company. He was then out of work until November 1955,
when he obtained a job with Rogers & Frank, Fall River, Massachusetts, installing
gas heaters. In January 1956, Frank's employment with Rogers & Frank was ter-
minated for lack of work.
The General Counsel submitted the following figures for Frank's interim earnings
and expenses:
June 25 to 29, 1954_________________________________________ No earnings----------- No expenses.
Quarter ending Sept. 28, 1954------ ----------- ------------- Earnings, $975.87______ Expenses, $50.00.
Quarter ending Dec. 31, 1954_______________________________ Earnings, $1,451.74---- Expenses, $54.75.
Jan. 1 to Feb. 1, 1955------------------------------------ Earnings, $600_________ Expenses, $18.75.
Quarter ending Sept. 27,1955______________________________ No earnings --_________ No expenses.
Quarter ending Dec. 31,1955_______________________________ Earnings, $940_________ Do.
Jan. i to 26, 1956------------------------------------------- Earnings, $229_________ Do.
The accuracy of these figures is not disputed and they are accordingly adopted.
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Joseph S. Aguiar
In the earlier proceeding, the Board found as follows with regard to Aguiar's
employment after the discrimination against him:
Aguiar was among the nonunion employees laid off the hospital job by
Mirante on June 25. In accordance with Mirante's instructions, he reported
to the Company's shop on June 28 and was among those who were told by
Swanson that they could not be put to work on any project on which union men
were working because they were not members of the Union. Three days later,
Aguiar was assigned to driving a truck for the Company at wages of $1.80 per
hour. Since that time he has been employed intermittently at laboring work,
such as cleaning up and unloading cars. During part of this time he was paid
$2 per hour. Since June 25 he has not been reassigned to the hospital job or
been assigned to any insulating work within the Union's claimed territory. But
he has done insulating work for about 2 weeks in locations outside the area
over which the Union claims jurisdiction, at the rate of $1.80 per hour.
In the instant proceeding, Aguiar testified credibly and without contradiction that
"a short while after" he was taken off the Rhode Island Hospital job he was assigned
to pipe-covering work and various other jobs from the Company's Worcester office
(outside the Respondent Union's claimed geographical jurisdiction) at a rate of
$1.80 per hour. In March 1955 he was laid off for about 4 weeks for lack of work,
but otherwise his employment with the Company has been steady. His hourly rate
increased to $2.30, then to $2.55, then to $3, then to $3.10, and finally to $3.15, the
present rate for journeymen pipe coverers. He is still employed by the Company
doing pipe-covering work from the Worcester office.
The General Counsel submitted the following figures for Aguiar's interim earnings
and expenses:
June 25 to 29,1954----------------------------------------- No earnings----------- No expenses.
Quarter ending Sept. 28,1954---------------------------- Earnings, $910.70------ Expenses, $18.90
Quarter ending Dec. 31, 1954------------------------------- Earnings, $946.30.----- Expenses. $21.52
Jan.1 to Feb. 1.1955-------------------------------------- Earnings, $441.60------ Expenses, $13.20.
May 28 to June 28, 1955---------------------------------- Earnings, $285.60------ Expenses, $10.56.
Quarter ending Sept. 27,1955------------------------------ Earnings, $724.20 ------ Expenses, $23.76.
Quarter ending Dec. 31, 1955------------------------------- Earnings, $1,478.84---- Expenses, $34.32.
Jan. 1 to 26, 1956------------------------------------------ Earnings, $446.40------ Expenses, $10.56.
The accuracy of these figures is not disputed, and they are accordingly adopted.
In accordance with the above figures, computations of the back pay due Frank
and Aguiar have been made and attached hereto as Appendices C and D, respectively.
D. The Respondent Union's defenses
1. Intervening cause
The Respondent Union maintains that, as Aguiar has remained in the Company's
employ and Frank was employed by the Company during part of the period in
question, the Company could have continued to pay them both the full journeymen's
rate they had been receiving in Providence before the discrimination against them.
It follows, the argument goes, that the Respondent Union should not be penalized
because of the Company's failure to do so, which it is contended was an intervening
act by an independent person not a party to this proceeding. Furthermore, the
Respondent Union claims that its contract with the Company required the Company
to pay the prevailing union rate to pipe coverers sent to work outside the Union's
claimed geographical jurisdiction, and that the Company's breach of this contract
obligation, rather than the Respondent Union's discrimination, caused any monetary
loss that Frank and Aguiar may have suffered.
As to the first of these arguments, the Company continued to employ the dis-
criminatees after the Respondent Union's discrimination against them, albeit in
a manner calculated to meet the Union's demands. In this respect the Company's
conduct is no more the independent intervening act of a third party than would
be the conduct of any employer who gave work to Frank and Aguiar after they
were discriminated against. The rules governing the computation of back pay are
no different when applied where the original employer continues to employ the
INTERNATIONAL ASSOCIATION OF HEAT AND FROST INSULATORS 807
workmen in question , as here , than where a new and totally different employer
engages them . The test must always be how much more money the discriminatees
may reasonably be expected to have earned , absent the discrimination against
them, than they actually did earn during the back-pay period. And this test is
applicable here, in the absence of any proof of collusion between the Company
and the discriminatees . So far as the contract is concerned , that defense also lacks
merit . For assuming that the contract did so provide and was in effect at all
material times,4 and further assuming that the Respondent Union should suddenly
become concerned for the welfare of Frank and Aguiar after having discriminated
against them , the matter of whether the Company is liable to Frank and Aguiar
and/or the Respondent Union for breach of contract is not now before me and is
completely extraneous to the issues in this proceeding , especially since the Company
is not a party herein.
2. Failure to make adequate search for work
The Respondent Union contends that Frank and Aguiar did not make adequate
attempts to secure employment during the respective periods when they were out
of work. With regard to Aguiar, the short answer is that the only substantial
period during which he was not gainfully employed was for about 4 weeks in
March and April 1955, a time not encompassed in the Board's back-pay period.
Except for the first few days, he was fully employed during the entire back-pay
period of June 25, 1954, to February 1 and May 28, 1955, to January 26, 1956.
The same may be said of Frank's unemployment from March to May 27, 1955.
As back pay was not then running against the Respondent Union, the extent of
Frank 's efforts to secure other employment during that period cannot affect the
Respondent Union's liability and is important only as background . This leaves the
period from May 28 to November 1955. Let us now examine Frank's conduct
during this period.
Frank testified that, during the week ending March 15, 1955, he finished the
job on which he was working and was told by Roy Fisk, the Company's salesman,
to call back the next day. The next morning, Frank stopped at the Providence
office and asked Fisk if it would be all right, if there was no work available around
Worcester, for Frank to apply for unemployment compensation. Fisk replied in
the affirmative. Frank then "signed up" for unemployment benefits. Although
thereafter Frank "got in touch with [Fisk] a couple of times," he was never there-
after rehired by the Company. During the next 7 or 8 months, Frank kept his
unemployment registration current , but never received any referrals from this source.
In addition , he sought work "at least once a week" at various plants. These included
the United States Naval Base at Newport, Rhode Island; Janis Manufacturing Com-
pany in Fall River, Massachusetts; a dye factory in Dighton, Massachusetts, whose
name he could not recall ; and various construction jobs in Newport , Rhode Island;
New Bedford, Massachusetts; and Taunton, Massachusetts. In July 1955 he
applied for employment at Rogers & Frank in Fall River, Massachusetts, and was
supposed to go to work for them then, but because work was slack he was not
actually employed there until November 1955.
On cross-examination by the Respondent Union's counsel , Frank admitted that
he had kept no records to indicate how many different job applications he made
while out of work. He further admitted that from time to time he raised vegetables
on a plot of land he occupied, and was helped in this work by about 15 friends
and relatives , some of whom sometimes stayed overnight . The vegetables raised
were not sold but were eaten by Frank and his family, relatives, and friends.
According to Frank, "it was more of a pastime," and he continued to seek employment.
The Board recently overruled prior cases 5 giving conclusive weight to bare regis-
tration with Government unemployment services , and now treats such registration
"as a factor to be given greater or less weight depending upon all the circumstances
in each case ." 6 More recently still , the Board held that "a condition precedent
to any award of back pay is due diligence on the part of the discharged employee
to find other work ." 7 Does the evidence here indicate that Frank has met that test?
I believe that it does. Frank not only kept his unemployment registration current
• The contract , by its terms , was to expire on October 31, 1954.
6 The Ohio Public Service Company , 52 NLRB 725 ; and Harvest Queen Mill & Elevator
Company, 90 NLRB 320.
6 Southern Silk Mills, Inc., 116 NLRB 769.
7 American Bottling Company, 116 NLRB 1303.
808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
but also continued his independent efforts, at least once each week, to obtain
employment. These efforts eventually bore fruit.
During the space of 3 months (November and December 1955 and January 1956)
Frank, through his earnings, reduced the amount of back pay due by the not-
insignificant sum of $1,169.00. Moreover, as previously noted, Jentzel testified that
"generally in 1955, work wasn't what we would call good considering the majority
[of] the union membership as a whole." Under all the circumstances, it is found
that, between May 28 and November 1955, Frank exercised due diligence in search-
ing for other employments
E. Deductions for withholdings
It will be recalled that the Board Order calls for deductions from the amounts
due Frank and Aguiar for withholdings, and the payment of equal sums to the
appropriate governmental agencies to the credit of Frank and Aguiar and the Com-
pany, This was in accord with the then-existing Board practice .9 The General
Counsel's back-pay specifications likewise provide for deductions of "tax withholdings
required by Federal and State laws." However, since the original Order of the
Board in the instant case, the Board has revised its policy on this phase of back pay,
and has said: "henceforth [we] will require the labor organization in such situations
to pay discriminatees the entire amount of back pay without making deductions
for such benefits." 10 Accordingly, the Respondent Union should be required to
pay Frank and Aguiar the full amounts shown to be due them as back pay in
Appendices C and D, respectively, without any deductions.
[Recommendations omitted from publication.]
B See East Texas Steel Castings Company, Inc., 116 NLRB 1336.
9 Pen and Pencil Workers Union, Local 19593, AFL, 91 NLRB 883.
i" International. Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of
America, Local 249, AFL-CIO (Lancaster Transportation Company), 116 NLRB 399. See
also International Union of Operating Engineers, Local Unions Nos. 18, 18A and 18B,
AFL-CIO (Hatcher Brothers, Inc.), 116 NLRB 1145.
APPENDIX A
Earnings of Journeymen Pipe Coverers on Providence Payroll Rhode Island
Covering Company, 1954 and 1955
Quarter Quarter Quarter Quarter Quarter Quarter
ending ending ending ending ending ending
9-28-54 12-31-54 3-29-55 6-28-55 9-27-55 12-31-55
Betteiieourt___________________ $1,469.65 $1,536.53 $1,666.14 $1,069.40 $1,410.64 $1,608.75
Cobb_________________________ 1,323.88 1,462.00 1,432.50 1,328.63 1,322.18 1,496.78
DiLeonardo__________________ 1,401.22 1,455.80 1,440.00 1,210.80 1,348.10 1,517.65
Fish__________________________ 1,472.63 1,408.20 1,417.50 1,351.40 1,340.47 1,475.75
Fitzsimmons__________________ 1,430.98 1,441.17 1,464.00 847.85 1,283.95 1,302.40
Gustafson_____________________ 1,059.10 1,480.00 1,452.00 1,477.10 1,500.60 1,695.80
Hartman_____________________ 1,367.02 1,424.96 1,263.00 --------- ____________ ____________
Hastings______________________ 920.76 1,369.75 1,440.00 936.30 1.224.57 1,542.92
Jesse__________________________ 1,391.20 1,467.90 1,402.60 1,021.88 1,198,18 1,243.34
Johnson______________________ 1,445.86 1,393.45 1,135.50 1,540.20 1,630.22 1,689.20
Larson________________________ 1,268.85 1,361.79 1,365.00 1,204.90 1,343.53 909.25
Nascimento___________________ 904.40 1,417.10 1,206.00 1,038.45 1,448.75 1,442.00
Mirante______________________ 1,496.43 1,603.59 1,591.50 1,552.40 _
_ 1,313.46 1,462.02 1,440.00 1,516.00 1,357.25 1,751.65
Romano______________________ 918.76 1,261.90 611.10 91.41 1,124.00 1,147.93
Sturgill_______________________ 1,436.92 1,462.15 1,350.00 1,193.95 1,323.70 1,444.70
Swinson______________________ 1,526.18 1,474.00 1,614.00 1,382.05 1,621.08 1,648.10
Vargas________________________ 1,314.00 1,354.05 1,230.50 894.00 1,105.70 1,450.90
Wilson________________________ 1,279.25 1,297.92 1,236.00 963.10 1,220.00 1,147.50
Total___________________ 24, 740.55 27, 134.28 25, 757.34 20, 619.82 22, 802.92 24, 514.62
Average---------------- 1,302.13 1,428.12 1,355.65 1,145.55 1,341.35 1,442.04
INTERNATIONAL ASSOCIATION OF HEAT AND FROST INSULATORS 809
APPENDIX B
Earnings of Journeymen Pipe Coverers on Providence Payroll Rhode Island
Covering Company, January 1956
Week end-
ing 1-7-56
Week end-
ing 1-14-56
Week end-
ing 1-21-56
Week end-
ing 1-28-56
Bettencourt-------------------------------------------- $99.20 $127.10 $99.20 $124.00
Cobb-------------------------------------------------- 62.00 124.00 52.70 124.00
Dileonardo--------------------------------- --------- --- 49.60 148.80 62. 00 93.00
Fish --------------------------------------------------- 49.60 124.00 124.00 124.00
Fitzsimmons------------------------------------------- 49.60 24.80 68.20 124.00
Gustafson---------------------------------------------- 99.20 124.00 111.60 124.00
Hastings---------------------------------- 99.20 49.60 24.80 99.20
Jesse--------------------------------------------------- 45.60 65.20 46.50 74.40
Johnson------------------------------------------------ 99.20 120.90 117.80 124.00
Nascimento-------------------------------------------- 99.20 113. 15 99.20 124.00
Mitchell ----------------------------------------------- 99.20 111.60 99.20 99.20
Sturgill ------------------------------------------------ 48.05 62.00 99.20 99.20
Swinson----------------------------------------------- 99.20 111.60 83.70 55.80
Vargas------------ ------------------ 108.50 49.60 40.30 99.20
Wilson -------------------------------------- ------------ ------------ 49.60 31.00
Total------------------------------------------- 1,107.35 1,356,35 1,178.00 1, 519.00
Average--- -------------------------------------- 79.10 96.88 78.53 101.27
APPENDIX C
Computation of Back Pay due John Frank
Period Net Back
Pay
June 25 to 29, 1954____________________ Gross back pay_ __ ----------- - $25.29
Interim earnings __________..__ _ ----------- -
Net back pay__________ _ ----------- - ----------- - $25.29
Quarter ending Sept. 28, 1954_________ Gross back pay_ ___-___
---
1 302.13
Interim earnings_____________ _ $975.87
,
----------- -
Less: Expenses__ _____________ _ 50.00 ----------- -
925.87
376.26
Quarter ending Dec. 31, 1954--------- Gross back pay_ _____________ _ ----------- - 1,428.12
Interim earnings ------------- - 1,451.74 ----------- -
Less: Expenses__ ___ 54.75 ----------- -
Net interim earnings--- - 1, 396.99
31.13
San. I-Feb. 1, 1955___________________ Gross back pay_ _____________ _ ----------- - 481.04
Interim earnings __ 600.00 ----------- -
Less: Expenses__ _____________ _ 18. 75 ----------- -
581. 25
May 28-June 28, 1955 _____ Gross back pay_
In^crim earnings
_____________ _ 387. 72
Not back pay---------- - ----------- - ----------- - 387.72
Quarter ending Sept. 27, 1955_________ Gross back pay_ _____________ _ 1, 341.35 ----------
Interim earnings ----------- - ----------- - ----------
Net back pay-__ ----------- - ----------- - 1,341.35
Quarter ending Dec. 31, 1955_________ Gross back pay_ _____________ _ 1,442.04
Interim earnings _____________ _ ----------- - 940.00
502.04
Jan. 1 to 26, 1956_____________________ Gross back pay_ _____________ _ 335. 52
Interim earnings -- ----------- - 229.00
106.52
Total back pay due____ _ ----------- - 2,770.31
810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX D
Computation of Back Pay due Joseph S. Aguiar
Period Net Back
Pay
June 25 to 29,1954____________________ Gross back pay --------------- --------- --- $25. 29
Interim earnings -------------- -------- ---- --------- --- -------- --
Net back pay----------- --------- --- ------------ $25. 29
Quarter ending Sept . 28, 1954 --------- Gross back pay _______________ _________ ___ 1,302 . 13 -------- --
Interim earnings ______________ $910. 70 --- ------ --- ----------
Less: Expenses ________________ 18. 90 _________ ___ -------- --
Net interim earnings ____ ________ ____ 891. 80 -------- --
410. 33
Quarter ending Dec . 31,1954 _________ Gross back pay _______________ _________ ___ 1,428 . 12 -------- --
Interim earnings ______________ 946. 30 _______ __ ___ -------- --
Less: Expenses ________________ 21. 52 _________ ___ -------- --
Net interim earnings ____ ____________ 924. 78 _______- __
3 3450 .
Jan.I-Feb. 1, 1955 ___________________ Gross back pay --------------- ------------ 481 . 04 -------- --
Interim earnings----- --------- 441. 60 --------- --- _
Less: Expenses _______________ 13. 20 _ ___ ________ __
Net interim earnings ____ ________ ____ 40 __ ______ __
52 64.
May 28-June 28,1955 _________________ Gross back pay____ ___________ ____________ 72
Interim earnings______________ 285. 60 ___
Less: Expenses ________________ 10. 56 _ ___ ________ __
Net interim earnings ____ ____________ 04 ________ __
1 2 68.1
Quarter ending Sept . 27, 1955______ ___ Gross back pay_ ______________ ________ ____ 35 -------- --
Interim earnings ______________ 724. 20 _ ___ ________ __
Less: Expenses ---------------- 23. 76 _ ___
Net interim earnings____ ____________ 44 ________ __
640 91.
Quarter ending Dec. 31, 1955 _________ Gross back pay_____ __________ ________ ____ 1,442 . 04 -------- --
Interim earnings ______________ 1,478 . 84 _
Less: Expenses ---------------- 34. 32 ______ __ ____ -------- --
Net interim earnings____ ________ ____ 1,445 . 52 ..........
Jan.1 to 26,1956 --------------------- Gross back pay --------------- -------- ---- 335. 52 __________
Interim earnings ______________ 446.40 _
Less: Expenses ________________ 10.56 -------- ----
.
Net interim earnings____ __ ______ ____ 435. 84
_
________ __
Total back pay due_ ____ ____________ ____________
_
1,745. 19
International Alliance of Theatrical Stage Employees and Mov-
ing Picture Machine Operators of the United States and Can-
ada, Local No. 409, AFL-CIO [Columbia Broadcasting System,
Inc.] and Amos R. Kanaga . Case No. 20-CB-486. December 13,
1957
DECISION AND ORDER
On April 4, 1957, Trial Examiner James R. Hemingway issued his
Intermediate Report in the above-entitled proceeding, finding that the
119 NLRB No. 117.