J. C. Boespflug Construction Co.

National Labor Relations Board - Board Decisions

Jul 9, 1957

118 N.L.R.B. 550 (N.L.R.B. 1957)

550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
J. C. Boespflug Construction Co. and Fred W. Hagel . Case No.
1.9-CA-1153. July 9, 1957
SUPPLEMENTAL DECISION AND ORDER
On July 27, 1955, the Board issued its Decision and Order in the
above-entitled case,' finding that the Respondent had unlawfully dis-
charged Fred W. Hagel on June 9, 1954, in violation of Section 8 (a)
(3) and (1) of the Act. The Board, as part of its remedy, ordered the
Respondent to make Hagel whole for any loss of pay which he may
have suffered as a result of the discrimination against him. The
Board further directed, however, that the Respondent's financial lia-
bility to Hagel should in no event continue beyond the completion date
of the Anchorage, Alaska, project 2 from which Hagel was discrim-
inatorily discharged.
The Respondent's Anchorage project thereafter having been com-
pleted, and the parties having failed, through informal negotiations, to
agree on the amount of back pay due Hagel, the General Counsel moved
the Board on February 24, 1956, for an order directing a back-pay
hearing to be held in accordance with the procedure set forth in Sec-
tions 102.51a to 102.51h, inclusive, of the Board's Rules and Regula-
tions, Series 6, as amended. On March 13, 1956, the Board issued an
order directing the Regional Director for the Nineteenth Region to
serve upon the parties a back-pay specification as provided in Sec-
tions 102.51a and 102.51b of the Board's Rules and Regulations, and
thereafter to proceed in accordance with Sections 102.51c to 102.51h
of the Rules and Regulations.
On May 23, 1956, the General Counsel filed back-pay specifications
claiming a total of $5,410.40 to be due Hagel for the period from the
date of his discriminatory discharge on June 9, 1954, to the completion
date of the Anchorage project on September 25, 1955.3 On June 11,
1956, the Respondent filed an answer disclaiming liability for most of
the back pay claimed by the General Counsel. Pursuant to due notice
to all parties, a hearing was held on November 15 and 16, 1956, before
Trial Examiner Howard Myers. On December 14, 1956, the Respond-
ent filed a brief in which it contended that the maximum amount of
back pay due Hagel, if any, was $923.74. On January 9, 1957, the
Trial Examiner issued his Supplemental Intermediate Report attached
1113 NLRB 330.
2 This project consisted of the construction of the Elmendorf Air Force Base hospital
near Anchorage, Alaska.
' At the hearing, the General Counsel was permitted to amend the specifications by al-
leging that the Anchorage project was not completed until November 14, 1955, when the
last carpenter on the job was terminated . The General Counsel also adduced evidence at
the hearing showing Hagel 's intermediate earnings for the period from September 25 to
November 14, 1955.
118 NLRB No. 65.
J. C. BOESPFLUG CONSTRUCTION CO. 551
hereto, in which he recommended, in agreement with the Respondent's
contention, that Hagel be awarded the sum of $923.74 for loss of pay
by reason of the Respondent's discrimination against him. Thereafter,
the General Counsel filed exceptions to the Supplemental Intermediate
Report and a brief in support of its exceptions, and the Respondent
filed a reply brief.
Pursuant to the provisions of Section 3 (b) of the Act, as amended,
the Board has delegated its powers in connection with this proceeding
to a three-member panel [Chairman Leedom and Members Rodgers
and Bean].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
Board has considered the Supplemental Intermediate Report,4 the
exceptions and briefs, and the entire record in the case,' and, except
as noted below,6 hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
ORDER
Upon the entire record in this case, the National Labor Relations
Board hereby orders that the Respondent, J. C. Boespflug Construc-
tion Co., its officers, agents, successors , and assigns shall pay to Fred
W. Hagel net back pay in the amount of $923.74.
4 The Supplemental Intermediate Report contains inadvertent errors which do not affect
our conclusions herein. Thus , the Trial Examiner states that Wayne Edsall was rehired
in March 1953 rather than March 1954 , concludes that Hagel would not have been re-
tained as a carpenter after October 14, 1954, instead of October 17, 1954.
6 We have also considered the General Counsel 's motion to strike portion of (Respond-
ent's ) reply brief and comment upon case cited therein. We find nothing , however, in said
document to affect our determination of the issues presented in this case.
6 The Trial Examiner found, inter alia, that Hagel did not make a diligent attempt to
obtain employment between November 11, 1954, and May 16, 1955. As this period is sub-
sequent to the date when , as found by the Trial Examiner , Hagel would in any event have
been terminated , we find it unnecessary to pass upon , and therefore do not adopt, the Trial
Examiner's finding of a lack of diligence in seeking employment.
SUPPLEMENTAL INTERMEDIATE REPORT
On July 27, 1955 , the National Labor Relations Board , herein called the Board,
issued a Decision and Order r in the above-entitled proceeding finding, among other
things, that J . C. Boespfiug Construction Company, herein called Respondent or
Company, had violated Section 8 (a) (3) and ( 1) of the National Labor Relations
Act.
The Board , as part of its remedy, ordered Respondent, to reinstate Fred W. Hagel
to his former or substantially equivalent job and make him whole for any loss of
pay he may have suffered during the period of the discrimination against him, less
his net earnings during that period. It further ordered that the back pay due Hagel
was to be computed in accordance with the formula enunciated in F. W. Woolworth
Company, 90 NLRB 289. The Board, however, limited the back-pay direction by,
(1) eliminating any reimbursement to Hagel during the period he would normally
have been out of work due to seasonal layoffs; and ( 2) by restricting Respondent's
financial liability to Hagel to the date of the completion of the Anchorage , Alaska,
project which Respondent was then performing.
1 113 NLRB 330.
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
. The parties having been unable, through informal negotiations, to agree upon
the amount of back pay due Hagel,2 the General Counsel for the Board moved the
Board on February 24, 1956, for an order directing a back-pay hearing to be held
in accordance with the procedure set forth in Sections 102.51a through 102.51h of
the Board's Rules and Regulations, Series 6, as amended. On March 13, 1956,
the Board issued an order directing the Regional Director for the Nineteenth Region
to serve upon Respondent back-pay specifications and to proceed thereon.
On May 23, 1956, the aforesaid Regional Director duly served upon Respondent
and Hagel back-pay specifications alleging that Respondent was indebted to Hagel
in the sum of $5,410.40 for the period from June 9, 1954, the date when Hagel was
discriminatorily discharged, to September 25, 1955, the date when Respondent
completed its project at Elmendorf Air Force Base, at Anchorage, Alaska.3
At the instant hearing, which was held pursuant to due notice at Anchorage,
Alaska, on November 15 and 16, 1956, Board's counsel contended that, absent
discrimination, Hagel would have been continuously employed by Respondent as a
carpenter until the project upon which he was employed was completed by Re-
spondent. Respondent contended at the hearing and in its brief 4 that Hagel, in the
normal course of events, would have been laid off on or before the week ending
October 17, 1954, when a reduction in the carpenter force reduced the number of
carpenters then working to 10; that this group of 10 carpenters was later reduced
to 8 on November 3, 1954; and that it was further reduced on January 17, 1955,
to 4.
Respondent further contended that since Hagel did not make a reasonable effort
during the period of his unemployment, November 11, 1954, to May 16, 1955, to
obtain other work, he is not entitled to any back pay during said period.
A. The pertinent facts
Hagel testified, and the Trial Examiner finds, that: prior to World War II and
until about 1943, he was in the employ of Lockheed Aircraft Corporation, doing
"tool liaison work and jig and fixture work all with precision tools"; about in 1943,
he entered the carpentry field; he entered Respondent's employ in 1952; he lived
in the Anchorage, Alaska, area since March 29, 1952; at the time of his discharge
by Respondent on June 9, 1954, he was a journeyman carpenter; he had performed
rough as well as finished carpentry work for Respondent; on June 15, he registered
for employment with the Alaska Territorial Employment Service, and at the same
time requested unemployment compensation, and asked for a job; he reported to
the unemployment service on July 2 and 9; on the latter date he informed the
unemployment service that he had procured employment; on June 9 and 10 he
went to Carpenters Local Union 1281, of which he was a member, seeking work;
on or about June 11, he went to Seward, Kenai, and Homer, Alaska, in quest of
work but obtained none; on either June 12 or June 14 he went to Valdez, Alaska,
seeking a job but was unsuccessful; sometime between June 20 and 25, he made
unsuccessful job hunting trips to Big Delta and Fairbanks, Alaska; upon returning
from Fairbanks, on or about June 26, he asked Grover Fisher, business agent of
Carpenters Union Local 1281, for a job; almost daily thereafter he asked Fisher
to find him a job; and on July 6, Fisher secured carpenter employment for him
with Morrison-Knudsen Company; he worked for Morrison-Knudsen from July 6,
until August 4, 1954; and he worked for Patti-MacDonnald & Associates from August
6 to September 30, for L. E. Baldwin from October 4 to October 22, and for
J. B. Warwick Co. from November 1 to November 11.
The credited evidence further discloses that: Hagel reported regularly, and as
often as required, to the Alaska Territorial Employment Service between November
11, 1954, and May 16, 1955; he was unable to obtain a job through that agency;
during the aforesaid period he weekly spent from 30 to 60 minutes at the union
hall inquiring for employment without success and about once or twice a week he
spent. approximately 2 hours at the union hall when the morning "open calls" for
carpenters were made; that Hagel was not gainfully employed from November 11,
2 Respondent having prior to February 1956, completed all its Alaskan operations, the
only portion of the Board's affirmative order now left to be enforced is the back-pay pro-
vision thereof.
3 At the hearing Board's counsel moved to amend the back-pay specifications by alleging
that the project was not completed until November 14, 1955, and hence an additional sum
was due Hagel. The motion was granted over Respondent's objection.
4 Respondent's counsel filed a brief on December 14, 1956, which has been carefully
considered.
J. C. BOESPFLUG CONSTRUCTION CO. 553
1954, through May 16, 1955; and Hagel did not seek employment other than
through the Alaska Territorial Employment Service, through Carpenters Local
Union 1281, and through a few individual carpenter friends.
In his oral argument, heard at the conclusion of the taking of the evidence in
the instant proceeding, Board's counsel stated that it was incumbent upon Re-
spondent to show, by substantial credible evidence, that the 10 carpenters retained
by Respondent after October 17, 1954, were so retained on a nondiscriminatory
basis. In support of this argument, relying mainly on Underwood Machinery Com-
pany, 95 NLRB 1386, Sifers Candy Company, 92 NLRB 1220, and Kartarik, Inc.,
111 NLRB 630, Board's counsel points to Hagel's long, continuous employment with
Respondent, the various breaks in employment of the 10 carpenters retained, Hagel's
good workmanship, the discriminatory manner in which Hagel was fired in June
1954, and that Hagel's status as job steward at the time of said discharge entitled
him to the maximum preference of employment retention.
To refute these contentions, Respondent relies mainly, but not solely, upon the
testimony of Richard T. Mayer.
Mayer testified that: he is presently Respondent's Alaskan representative; during
the period Respondent was performing the Elmendorf Air Force job he was the
assistant to the project manager; during the period in question it was Respondent's
reduction-in-force policy to retain those carpenters who not only excelled in gen-
eral ability and compatibility but who (1) had performed similar type of work for
the Company, (2) had more or less specialized in the work then being performed,
and (3) had previously been a Respondent supervisory employee; 5 that seniority
was not the determining factor when a reduction in force was necessary; and he,
Project Manager William C. Miller, and Job Superintendent John A. Fellerhoff de-
cided which carpenters were to be retained after October 17, 1954.
Mayer further testified that in the fall of 1954, the outside construction on the
Air Force project had been substantially completed, and the remaining work con-
sisted predominantly of so -called "finishing" and interior work, including installa=
tion of hardwood doors, windows , trim , and general completion of the interior, and
as this phase of the work approached Fellerhoff, Miller, and he decided that only
10 carpenters would be needed after October 17; 8 after November 3; and 4 after
January 17, 1955.
Mayer's testimony 6 regarding the individuals retained after October 17, 1954, and
the reasons therefor , are discussed seriatim.
Grady Ward and James P. Thommason were retained until November 3, because
(a) Ward was not only an excellent carpenter with considerable service with
Respondent , but he was the last Negro carpenter employed on the project, and
it was Respondent 's policy to keep at least one Negro carpenter as long as possible
in order to avoid possible charges of racial discrimination , ( b) Thommason had
been working with Andrew Clemmeson installing stairs, and Respondent did not
want to separate this team until the work had been completed.
Charles Olson was originally hired by Respondent on January 29, 1951, over
a year prior to Hagel 's employment , and worked continuously until November 15,
1952; Olson was rehired for finishing work on the Alaska Native Service Hospital,
another 1954-55 Respondent project and herein called ANS, where he had worked
under Foreman Augustine ; Respondent considered Olson a specialist at hanging
doors; the finishing work on the Air Force project was identical to the ANS
finishing work ; the carpenters under Augustine 's supervision on the ANS job were
favored to be retained on the Air Force job; Hagel had never worked under
Augustine and had never worked on "hardwood finishing" for Respondent , although
he had done some good "softwood interior" work on industrial type buildings,
such as on the laundry and maintenance sheds?
William Rauscher had worked for Fellerhoff for many years, had gone to Alaska
from Montana at the special request of Fellerhoff with the understanding that he
would be given work until the project was completed ; Respondent considered
5 Mayer testified, and the Trial Examiner finds, that it was Respondent's policy to retain
carpenter foremen, or persons who had been such, in preference to nonsupervisory carpen-
ters so that it would have "a group of people who we [could] use as a nucleus for future
crews on new work."
9 The stipulation [Board's Exhibit No. 2] entered into by Board's counsel and counsel
for Respondent also has been taken into consideration.
7 The credited evidence discloses that Hagel was rated "good" by Fellerhoff and rated
"excellent" by Jack Boyd, the foreman who discharged him in June 1954; each of the eight
carpenters retained after November 3 had been rated "excellent " on Respondent 's records
at one time or another.
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rauscher one of its very best carpenters and he had been a Respondent foreman in
1953. Although Rauscher started work after Hagel, Rauscher' s long association
with Fellerhoff, his good workmanship, and his former foreman job enabled him to
continue work through the winter of 1954-55.
C. C. Call was first employed in 1951, a year prior to Hagel; worked under
Augustine on the ANS job as a finishing carpenter; and served as carpenter fore-
man during the summer of 1952.8
Andrew Clemmeson was first hired in 1950, and had the longest continuous
employment of any Respondent carpenter, having worked from July 5, 1950, until
December 11, 1953. Clemmeson was a Respondent carpenter for 3 years on the
ANS project where he worked as a finishing carpenter under Augustine's supervision.
Wayne Edsall started his Alaskan employment with Respondent in June 1952 9
and worked continuously until December 1953. He was rehired in March 1953
and worked until January 28, 1955. He worked on the ANS and Air Force jobs
and was in charge of saw yard during most of his employment on the latter job.lo
Raymond Kays was first hired by Respondent in February 1951; was terminated
in September 1951; rehired February 1952, terminated May 1952; hired again
in April 1953, terminated in November 1953; rehired in March 1954, terminated
January 17, 1955; last hiring was from March 8, 1955, to September 22, 1955.
Olie Edsall was not only an excellent carpenter, but was a 20-year employee
of Respondent; worked in Alaska as project manager and as superintendent from
1949 until ill health caused him to resign in August 1953. Edsall returned to the
Air Force job in 1954 as part of his recovery therapy.
Paul Breeding was first hired in 1951. During his employment he worked as a
finishing carpenter on ANS job under Augustine and Respondent considered him a
specialist on jobs requiring mechanical ability."
Upon the entire record in the case, the Trial Examiner finds Mayer's testimony,
as epitomized above, to be substantially in accord with the facts. Mayer impressed
the Trial Examiner as a straightforward, honest witness and to be a person who
is meticulous in not enlarging his testimony beyond his actual memory of what
occurred. In addition, Mayer's testimony is, in the main , corroborated by Respond-
ent's books and records, the accuracy of which has not been challenged.
The credited evidence of Grover C. Fisher, business agent for Carpenter's Local
Union 1281 from July 1953 to July 1955, and Vernon Ingram, said Union's business
agent since July 1955, clearly discloses. that Local 1281, at least since July 1953,
.has continuously maintained a system of rotation of employment opportunities
through a "list" or "call" system, which works as follows: When a carpenter mem-
ber of Local 1281 is out of work, he requests said Union to place his name on the
bottom of the list and his name works up as other carpenters above him on the
list are dispatched to jobs; that when employers call the Union to supply car-
penters, without designating a particular carpenter by name, it is termed an
"open call." Each day, at about 10 a. in. and 2 p. m. the person in charge of the
open calls proceeds to call out the available jobs and those jobs are assigned
to the carpenters present at the "call" in the order their names appear on the list.12
Hagel testified, and the Trial Examiner finds, that he never requested to have
his name placed on the above-described unemployment list; that he did not regu-
larly appear at "call time" to obtain whatever employment was available; and
that he only presented himself about once or twice a week at the morning calls.
B. Concluding findings
Upon the record as a whole, including the record of the original hearing,13
the Trial Examiner finds that ( 1) Hagel would not have been retained as a carpenter
e Just prior to being fired in June 1954, Hagel was removed as job steward by his fellow
carpenters and replaced by Call. Hence, Board counsel's contention that Hagel's status
as job steward entitled him to maximum employment preference is without merit.
9 Edsall had worked for Respondent in the summer of 1944, and in the summer of 1947,
on some Montana jobs.
10 This employment was from March 3 to December 23, 1953, and from March 8, 1954,
to January 28, 1955.
"From June 27, 1953, to October 30, 1953, Breeding was on loan to Electric Smith
Company.
s9 Fisher testified without contradiction, and the Trial Examiner finds, that on one oc-
casion in the winter of 1955, he called approximately 75 names before he was able to fill
a request for 10 carpenters.
"At the specific request of counsel, the Trial Examiner has carefully read the entire
record of the original hearing, including the stenographic transcript thereof.
JOSLIN DRY GOODS COMPANY 555
on the Air Force job after October 14, 1954, and ( 2) Hagel did not make a
diligent attempt to obtain employment between November 11, 1954 , and May 16,
1955. Accordingly, the Trial Examiner finds that the gross back pay due Hagel
amounts to $923.74 which sum is arrived at in the following manner:
Gross back-pay due from Respondent from 6-10-54 to 10-17-54------ $3, 487.07
Interim Gross Earnings 14---------------- -------------------------- 2, 563.33
Total back pay due--------------------------------------- 923.74
13 From Morrison-hnudsen $843.16; from Patti-MacDonnald & Associates $1,404.05;
from L. D. Baldwin $316.12.
[Recommendations omitted from publication.]
Joslin Dry Goods Company and International Brotherhood of
Teamsters , Chauffeurs, Warehousemen , and Helpers of Amer-
ica, Local No. 452, AFL-CIO. Case No. 30-CA-419. July 9,1957
DECISION AND ORDER
On April 9, 1956, Trial Examiner Henry Salim issued his Inter-
mediate Report in the above-entitled proceeding finding that the
Respondent, Joslin Dry Goods Company, had engaged in certain
unfair labor practices and recommending that it cease and desist
therefrom and take certain affirmative action as set forth in the copy
of the Intermediate Report attached hereto. The Trial Examiner
found further that the Respondent had not engaged in certain unfair
labor practices alleged in the complaint, and recommended dismissal
of these allegations of the complaint. Thereafter, the Respondent and
the Charging Party, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen, and Helpers of America, Local No. 452,
AFL-CIO, hereinafter referred to as the Union, filed exceptions to
the Intermediate Report and supporting briefs.
The Board has reviewed the rulings made by the Trial Examiner
and finds that no prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Intermediate Report,
the exceptions, and briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner with the following additions , modifications , and exceptions:
1. Respondent is a retail department store with main and branch
stores located in Denver, Colorado, and environs. On June 29, 1954,
the Respondent received a letter from the Union in which the Union
claimed to represent a majority of the employees who work at the
Respondent's warehouse as truckdrivers, truck helpers, warehouse-
men, appliance servicemen and installers, and television service repair-
men, and requested the Company to bargain with it for these
employees. Upon receipt of the Union's demand for recognition, Store
Superintendent Jordan, telephoned the Respondent's New York
118 NLRB No. 58.