Pugh and Barr, Inc.

National Labor Relations Board - Board Decisions

Jan 23, 1953

102 N.L.R.B. 562 (N.L.R.B. 1953)

562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tenure of employment of most of these temporary employees is meas-
ured by the duration of the project on which they are employed, which
varies from 6 months to several years. Some temporary employees
are employed for shorter periods of time, varying from several weeks
to several months, depending upon the nature and scope of the job
they are to perform. With respect to all temporary employees the
date of termination of employment is uncertain. For these reasons
we find, contrary to the Employer's contention, that the temporary
construction employees are eligible to vote in the election 3
Order
IT IS HEREBY ORDERED that the petition of the CIO (Case No. 1188)
for a separate unit of construction department employees of the Em-
ployer's Berkeley Springs, West Virginia, plant be, and it hereby is,
dismissed.
[Text of Direction of Election omitted from publication in this,
volume.]
8 Fall River Gas Works Co., 82 NLRB 962 ; Snively Groves Inc., 98 NLRB 1146.
PUGH AND BARR, INC. and BENJAMIN S. BRAMER . Case No . 6-CA-243-
January 23, 1953
Decision and Determination
On July 20, 1951, the National Labor Relations Board, hereinafter
called the Board, issued an Order in this case , adopting the findings,
conclusions, and recommendations set forth in the Trial Examiner's
Intermediate Report and Recommended Order, dated June 20, 1951.
The Board's Order provided, among other things, that the Respondent
make whole Benjamin S. Bramer in the manner set forth in section V
of the Intermediate Report and Recommended Order, entitled "The
Remedy," for any loss of pay he may have suffered because of the dis-
crimination against him. Thereafter, the Board filed a petition for
enforcement of its Order and a motion for the summary entry of a
decree upon the transcript of the record in the United States Court of
Appeals for the Fourth Circuit. On January 25, 1952, the court en-
tered a decree enforcing the Board's Order. Thereafter, the Respond-
ent and representatives of the Board were unable to agree as to the
amount of back pay due Bramer, and, on June 13, 1952, the Acting
Regional Director issued a notice of further hearing, ordering that
the record herein be reopened, and that a further hearing be held before
a Trial Examiner for the purpose of determining the amount of back
102 NLRB No. 58.
PUGH AND BARR, INC. 563
pay due Bramer. Pursuant to said notice, a hearing was held before
Trial Examiner Wallace E. Royster.
On August 15,1952, Trial Examiner Royster issued his Intermediate
Report and Recommended Order, a copy of which is attached hereto,
finding that Bramer was entitled to back pay in the amount of
$5,394.73. Thereafter, the Respondent filed exceptions to this Inter-
mediate Report and Recommended Order, and a supporting brief.
The Board 1 has reviewed the rulings made by Trial Examiner Roy-
ster at the reopened hearing and finds that no prejudicial error was
committed. The rulings are hereby affirmed. The Board has con-
sidered the Intermediate Report and Recommended Order, the Re-
spondent's exceptions and brief, and the entire record in the case,2
and hereby adopts the findings, conclusions, and recommendation of
Trial Examiner Royster, with the following modification :
The Trial Examiner based Bramer's normal gross earnings on the
earnings of one Charles Trader. However, he inadvertently calculated
Trader's earnings for the third quarter of 1949 as $542.84. The rec-
ord shows that the correct amount for this quarter is $529.51. We
therefore reduce the amount of back pay found due Bramer by the
difference between the two foregoing amounts, or $13.33, and find the
total back pay due Bramer to be $5,381.40.
Determination
Upon the basis of these supplemental findings of fact and the entire
record in the case, the National Labor Relations Board hereby deter-
mines that net back pay is due Benjamin S. Bramer in the amount of
$5,381.40.
I Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this proceeding to a three-member panel
[Chairman Herzog and Members Styles and Peterson].
' Because, in our opinion , the record and the brief adequately set forth the issues and
the positions of the parties , we deny the Respondent 's motion for oral argument before
the Board.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
On July 20, 1951, the National Labor Relations Board, herein called the Board,
issued its Order in the above-entitled proceeding adopting the findings, conclu•
sions , and recommendations contained in the Intermediate Report of Trial
Examiner Earl S. Bellman dated June 20, 1951. The Order thereafter was en-
forced in a decree entered January 25, 1952, by the United States Court of Ap,
peals for the Fourth Circuit. Pugh and Barr, Inc., the Respondent, and repre-
sentatives of the Board, having been unable to reach agreement concerning the
amount of back pay due Benjamin S. Bramer, the record has been reopened and
further hearing held for the purpose of such determination.
Pursuant to notice, a hearing was held before me, the undersigned Trial
Examiner, in Clarksburg, West Virginia, on June 30 and July 1, 1952. The Gen-
564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
eral Counsel and the Respondent were represented by counsel and were afforded
full opportunity to examine and cross-examine witnesses and to introduce evi-
dence in respect to the back pay question. Briefs have been received from each
party. Upon the basis of the evidence in the reopened hearing and on the entire
record in the case, I make the following :
FINDINGS OF FACT
Subsequent to the discharge of Bramer on June 16, 1949, the Respondent con-
tinued to operate in strip mining until about the end of June 1950. About July 1
of the latter year another corporation, Pugh and McDonald, Inc., herein called
McDonald, using the same machinery and equipment and the same work force,
began strip mining operations at another location in the vicinity of Clarksburg,
West Virginia. The General Counsel contends that absent the discriminatory
discharge, Bramer would have continued in the employ of Respondent to the
time it ceased its operations and thereafter with McDonald, as did all of Re-
spondent's employees. From this premise the General Counsel contends that
Bramer's gross earnings must be calculated as if he had been employed con-
tinuously from June 16, 1949, to April 9, 1952, when he refused reinstatement, as
an employee first of the Respondent, and then of McDonald.
The Respondent denies the validity of such a theory and offered evidence to
establish that both corporations were formed in 1946 with charter authority to
engage in practically the same type of operation, but that Respondent came into
existence primarily as a trucker of coal, while McDonald was designed primarily
to engage in strip mining. Such a division did exist for a time in 1946, but
shortly thereafter McDonald appears to have ceased any type of operation while
Respondent mined and trucked coal. About July 1, 1950, McDonald was again
activated after the Respondent had completed working a "stump and pillar"
mine. From that date until sometime in the spring of 1952 the evidence is that
Respondent has had no employees. Mark C. Pugh is now and has been the
president of both corporations and for a period of several years antedating June
16, 1949, the stock in both has been held in the same ratio by the same three
individuals. Although I recognize that for some purposes the Respondent and
McDonald may be separate entities, I find that for the purposes of the questions
raised here the operations of McDonald constituted clearly a continuation of the
operations of the Respondent ; that both were and are the business of the same
three individuals distinguishable here only by name. I find further that Bra-
mer's gross earnings for the period of discrimination must be calculated as if he
had been transferred to the payroll of McDonald on July 1, 1950, as were all
other employees of the Respondent on that date.
I credit the testimony of Bramer, buttressed as it is by records of the West
Virginia State Employment Service, that following his discharge on June 16,
1949, he made reasonable effort to obtain other employment. There is no specific
contention that Bramer suffered any willful loss in that respect, and I find that
he did not.
The problem of finding a yardstick by which to measure the amount of wages
lost by Bramer by reason of Respondent's discrimination against him is one of
some difficulty. Respondent offered evidence at the original hearing and again
before me to the effect that no one was hired to replace Bramer,' that subse-
quent to some date in the fall of 1949 only one employee, Charles Trader, re-
I However, the names of two new employees G. Hurst and D. Deems appear on the payroll
for August 31, 1949. Each was paid $1 25 an hour-the rate for laborers or truckdrivers.
Their specific work assignment is not shown.
PUGH AND BARR, INC. 565
mained in the classification of laborer. Respondent further asserts that condi-
tions which in 1949 made it advisable for it to employ laborers soon ceased to
exist, that coal sweeping, which it is asserted occupied much of Bramer' s time,
has not been necessary, except sporadically, since then, and that Bramer lacked
qualifications which would permit that he be shifted to other work. By adopting
the recommendations of Trial Examiner Bellman , the Board found that Re-
spondent's need for laborers in general had not been reduced by changes in
operations ; that Bramer was about as good a worker as the average of Re-
spondent's employees ; and, in effect, that, had not Bramer been discharged, there
was sufficient work other than sweeping coal for which he was qualified and
on which he would have been used.
Respondent's payroll records, including those of McDonald, do not indicate
with any clarity the job classifications of employees.' The evidence does, how-
ever, establish with certainty, and I find, that ever since June 16, 1949, first the
Respondent and then McDonald continued Charles Trader in his employment as
a laborer ; that Trader was one who primarily was responsible for the "high
wall" work in which he was assisted by 1 or 2 other workers; and that Harry
Downs, who worked as a laborer with Trader and Bramer , was made a dumpster
operator in 1949. There is evidence, which I believe, that the operation of a
dumpster requires no particular skill and little training. It is also clear that
for a very substantial period during the operations of McDonald and the Re-
spondent , dumpsters have not always been operated. Considering the evidence
at the reopened hearing and the findings at the first hearing in respect to the
operations of the Respondent and of McDonald, the conclusion is here reached
that both corporations employed a force of laborers; that some of them found
their principal occupation in the operation of dumpsters with occasional assign-
ment to building high walls, "popping" coal, sweeping coal, and other unskilled
tasks. From the record before me, it is not found that the Respondent or
McDonald employed any workers in jobs to be described as skilled, other than
shovel operators. I do not ignore what appears to be fact that shovel oilers
may require some period of training and that all laborers do not possess the
ability to drive trucks or operate other mechanical equipment. Bramer's testi-
mony that he has in the past been employed as a shovel oiler and that he per-
formed such work for the Respondent for a few weeks is believed. The addi-
tional testimony taken at the reopened hearing in connection with Bramer's
classification supports the findings of Trial Examiner Bellman, as adopted by
the Board, that Bramer's usefulness to the Respondent as an employee was not
limited to sweeping coal, building high walls, or coal popping.
With this in mind, it is only necessary to examine the payrolls of Respondent
and McDonald to discover what work was available to employees, from the
period of Bramer's discharge to the date when he refused reinstatement, of a
character which, it might be supposed, would have been assigned to Bramer.
The condition of the payroll records is, however, such that it is perhaps impos-
sible, absent detailed testimony in respect to each of the individuals whose names
appear thereon, to discover just what work they did. Of course no such con-
fusion arises in connection with the shovel operators, for their hourly rate
indicates their classification. However, dumpster operators, truck drivers,
and others received substantially the same pay. In consequence, and for the
lack of a better standard, I have concluded that, in these circumstances, it is
reasonable to assume that Bramer would have been afforded the same work
opportunity and have received the same wages as did Charles Trader, a laborer
who has been employed throughout the entire period in question. My recom-
2 Except for the first half of 1950.
250953-vol. 102-53 37
566 DECISIONS U,; NATIONAL LABOR RELATIONS BOARD
mendations in connection with back pay are made upon the basis of Trader's
earnings for that period.
On April 3, 1952, Respondent offered reinstatement to Bramer-an offer which
he refused on April 9. In view of the refusal, I am of the opinion that back
pay should be tolled on the date of the offer. Hence the period for which I will
recommend that Bramer be made whole will run from June 16, 1949, to and in-
cluding April 3, 1952.
The General Counsel also contends that Bramer should be made whole for
transportation expenses which he incurred in seeking employment. Such ex-
penses may be deducted from interim earnings.' A further claim is made for
living expenses away from Clarksburg during certain periods of other employ-
ment. I am of the opinion that these expenses are allowable during any period
of a bona fide search for employment or during a period of temporary employ-
ment when Bramer reasonably, it would seem, left his family at home. In
August 1951 Bramer secured permanent employment at Columbiana, Ohio, which
he still holds. As he brought his wife to Ohio in July of that year and appears
permanently to have settled there, I believe that he is not entitled to claim
reimbursement for board and lodging after his wife joined him.
The tables which follow will show, in one column, gross earnings which are
based upon the earnings of Charles Trader with the Respondent or with Mc-
Donald for the periods shown; a column designated Interim Earnings , showing
Bramer's earnings in other employment for the periods indicated ; an indica-
tion of those expenses incurred by Bramer in his search for employment for
which he is to be reimbursed ; and a final recapitulation showing the full amount
which the Respondent is to pay Bramer in order that he be made whole under
the terms of the Board's Order and the court decree.
1949
Second Quarter
(6/16 to 6/30)
Gross earnings------------------------------------------
Interim earnings----------------------------------------
$86.87
0.00
Net amount due-------------------------------------------------- $86.87
Third Quarter
Gross earnings ------------------------------------------ $542.84
Interim earnings---------------------------------------- 0.00
Net amount due-------------------------------------------------- 542. 84
Fourth Quarter
Gross earnings------------------------------------------ $415.88
Interim earnings---------------------------------------- 104.00
Net amount due-------------------------------------------------- 311.88
1950
First Quarter
Gross earnings------------------------------------------ $571.51
Interim earnings---------------------------------------- 23.00
Net amount due-------------------------------------------------- 548.51
2 Harvest Queen Mill & Elevator Company , 90 NLRB 320, 323.
PUGH AND BARR, INC. 567
Second Quarter
Gross earnings------------------------------------------ $608.25
Interim earnings ---------------------------------------- 84.00
Net amount due-------------------------------------------------- $524.25
Third Quarter
Gross earnings------------------------------------------ $745.51
Interim earnings (less expenses $8 round trip to Pittsburgh,
Pa., and $60 board and room for 2 weeks) -------------- 83.20
Net amount due-------------------------------------------------- 662.31
Fourth Quarter
Gross earnings------------------------------------------ $914.62
Interim earnings________________________________________ 0.00
Net amount due-------------------------------------------------- 914.62
1951
First Quarter
Gross earnings_________________________________________ $787.88
Interim earnings________________________________________ 0.00
Net amount due-------------------------------------------------- 787.88
Second Quarter
Gross earnings_________________________________________ $560.25
Interim earnings________________________________________ 0.00
Net amount due__________________________________________________ 560.25
Third Quarter
Gross earnings------------------------------------------ $961.50
Interim earnings (less transportation expenses 660 miles at
7 cents a mile, $46.20. No deduction for board and room)- 506.18
Net amount due--------------------------------------------------
Fourth Quarter
Gross earnings (including $25 Christmas bonus) ---------- $508.76
Interim earnings________________________________________ 931.61
Net amount due--------------------------------------------------
1952
First Quarter
Gross earnings__________________________________________ $670.88
Interim earnings________________________________________ 1,030.08
Net amount due--------------------------------------------------
Second Quarter
(4/1 to 4/3)
Gross earnings (25 hours at $1.50 per hr.) ----------------- $37.50
Interim earnings (not shown, hence no back pay awarded) __ ________
455.32
0.00
0.00
Total back pay due---------------------------------------- $ 5,394.73