Laister-Kauffman Aircraft Corp.

National Labor Relations Board - Board Decisions

Oct 3, 1945

63 N.L.R.B. 1367 (N.L.R.B. 1945)

In the Matter of LAISTER-KAUFFMANN AIRCRAFT CORPORATION and
INTERNATIONAL ASSOCIATION OF MACHINISTS, DISTRICT No. 9, AFL
Case No. C-2663
SUPPLEMENTAL FINDINGS OF FACT
AND
RECOMMENDATION
October 3, 1945
On August 28, 1943, the National Labor Relations Board, herein-
after called the Board, issued a Decision and Order in Case No.
C-2663,1 in which it found that Laister-Kauffmann Aircraft Corpora-
tion, hereinafter called the respondent, had engaged in and was en-
gaging in certain unfair labor practices affecting commerce, and
ordered the respondent to cease and desist therefrom and take certain
affirmative remedial action. The Board found, inter alia, that the
respondent had discriminated with respect to the hire and tenure
of employment of Marie Noeth by discharging her, and directed the
respondent to reinstate her with back pay.
Pursuant to the Board's petition to enforce its order of August 28,
1943, the United States Circuit Court of Appeals for the Eighth
Circuit entered its decree on August 15, 1944, enforcing the Board's
order. Thereafter the Board moved to remand to it that portion of
the cause relating to the back pay of Marie Noeth and, on April 10,
1945, in accordance with the Board's request, the Court remanded the
proceedings to the Board for the purpose of adducing evidence and
making findings on the amount of back pay due Marie Noeth and as
to whether and to what extent any deduction should be made for
willful losses.
Thereafter the Board served upon the respondent, International
Association of Machinists, District No. 9, AFL, herein called the
Union, and Marie Noeth notice of hearing dated April 26, 1945.
Pursuant to notice, a hearing was held at St. Louis, Missouri, on'
May 8, 1945, before Peter F. Ward, the Trial Examiner duly desig-
nated by the Chief Trial Examiner. The Board and the respondent
1 52 N L. R. B. 261.
63 N L R. B., No. 209.
13167
1368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were represented by counsel and the Union by a lay representative.
Full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence was afforded all parties. At the close of
the hearing the respondent and counsel for the Board presented oral
argument before the Trial Examiner. After the' close of the hearing
all parties entered into a stipulation, with respect to Noeth's gross
back pay and interim earnings, which is hereby made part of the
record herein. The Trial Examiner was not requested by the Board
to file an Intermediate Report.
Upon consideration of the entire record in the proceeding, the
Board hereby makes the following:
SUPPLEMENTAL FINDINGS OF FACT
Noeth testified that, after her discriminatory discharge of October
12, 1942, she registered with the United States Employment Service,
herein called USES, and that she thereafter reported to that agency
for 3 consecutive weeks, while eligible for unemployment compensation
benefits, without obtaining work. In April 1943, she received a card
from USES referring her to Amertorp Corporation for employment.
On April 29, 1943, Amertorp employed her and sent her to the Hadley
Vocational School for training. After 2 weeks, she left school because
the hours conflicted with her household duties. After leaving Amer-
torp, Noeth did not communicate with USES or Amertorp. Her
subsequent job hunting efforts were based chiefly upon leads furnished
by the Union business agent whom she and her husband "pestered to
death." She testified that she unsuccessfully applied for unskilled
work at six named plants. In most plants she was not given a written
application form to fill out; and she did not mention her experience
either at the Hadley School or with the respondent at any place except
where the Union had a closed-shop contract, because the reasons given
by the respondent for her discharge, if believed, would render such
reference harmful. She secured no employment thereafter until her
reinstatement by the respondent on December,12, 1944, although she
testified that she was at all times ready to work days.
The respondent contends that Noeth is entitled to back pay only
until April 29, 1943, the date on which Noeth obtained employment at
Amertorp because she did not make reasonable efforts to uncover em-
ployment opportunities after leaving the Amertorp job as she did not
consult'with a personnel counselor at Amertorp or register at USES.
Counsel for the Board contends that, as a union member, Noeth
fullfilled her obligation to make a reasonable effort to procure other
desirable employment by clearing with the Union's business agent, as
set forth above.
LAISTER-KAUFFMANN AIRCRAFT CORPORATION
CONCLUSION
1369
On the basis of the foregoing we conclude that, while the job at
Amertorp was not substantially equivalent to that in the respondent's
plant, and that Noeth was justified in terminating such employment,
she did not thereafter make reasonable efforts to uncover employment
opportunities. Her failure to register again with the USES or to
communicate with it after abandoning her employment with Amer-
torp is unexplained in the record. We have previously held 2 that in
view of the availability of USES as a medium for seeking and obtain-
ing employment during wartime, we shall regard registration with it
as conclusive evidence that an employee has made reasonable efforts to
,obtain other employment, and, where failure to register is shown, shall
permit the employer to prove that no other reasonable efforts were
made to obtain employment. We believe that the respondent estab-
lished Noeth's failure to make reasonable efforts to obtain employment
in the instant case. Her efforts to obtain employment through the
union business agent were hardly calculated to succeed because, as it
appears, his contacts were with esi ablishments which required skilled
labor of a kind for which she was admittedly unsuited. Nor does it
appear that Noeth otherwise used reasonable efforts in attempting to
secure work.3 Upon the entire record, we therefore conclude that be-
tween May 13, 1943, and December 12, 1944, Marie Noeth did not make
reasonable efforts to obtain other employment.
We have previously. held 4 that, in the context of wartime production
and its attendant expanding employment opportunities, we shall re-
gard the failure to make reasonable efforts to obtain other em-
ployment as evidence of willful sustaining of losses in earnings.
In view of the fact that Noeth made no reasonable efforts to obtain
employment, we cannot speculate as to what she would have earned
had she done so. We will therefore assume that her other employment
would have been equally remunerative and that her earnings there
would have canceled her possible earnings in the respondent's plant
-for the same period. We will therefore limit Noeth's recovery to
her gross back pay up to and including May 13, 1943, less her interim
earnings to that date, which the parties stipulate to be $768.48.
RECOMMENDATION
Upon the basis of the above supplemental findings of fact and of
the entire record in the proceeding, the National Labor Relations
s Matter of The Ohio Public Service Company, 52 N. L R B 725, 729.
Noeth testified that during the entire 18-month period in question she sought work in
only six named plants, most of which were suggested by the business agent ; and that even
on these occasions she did not disclose her Hadley School training nor, in most instances,
her employment with the respondent
' Matter of The Ohio Public Service Company, supra.
1 370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board hereby respectfully recommends to the United States Circuit
Court of Appeals for the Eighth Circuit that Marie Noeth be paid
$768.48 in back pay under paragraph 2 (b) of the Court's decree of
August 15, 1944, and that the decree be amended to incorporate that
amount as the sum payable by the respondent to Marie Noeth as back
pay.
CHAIRMAN HERZOG took no part in the consideration of the above
Supplemental Findings of Fact and Recommendation.