Sedgwick Furniture, Inc.

National Labor Relations Board - Board Decisions

Oct 21, 1966

161 N.L.R.B. 304 (N.L.R.B. 1966)

304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that for the reasons discussed below additional deductions should be made from
the gross backpay computed in the specification.
First, Respondent argues that Reynolds "removed himself from Detroit, an area
of job opportunity to an economically depressed area of less opportunity-West
Virginia," and such move constituted a willful loss of wages. This argument is not
sound as applied to the facts in this case. A discriminatorily discharged employee
is required to exercise reasonable efforts to mitigate his loss of earnings by seeking
other suitable employment. However, there is no requirement that his search for
employment must be limited to the geographical area where he had been working
when he was discriminatorily discharged and there is no evidence in the record
which suggests that Reynolds exercised unreasonable bad judgment in leaving
Detroit to look for work elsewhere. Furthermore, immediately following his dis-
charge Reynolds did not look for employment and after he left that city he did
not restrict his search for employment to West Virginia but also went to the State
of Ohio and ultimately returned to Detroit. In these circumstances, contrary to
Respondent, I find that the various moves Reynolds made in the course of his
search for employment do not constitute any willful loss of earnings.
Second, Respondent, referring to Reynolds' experience at Parsons Linoleum Co.,
contends that "once having found employment at a higher rate than he was earning
at Respondent's company, [Reynolds] had an obligation to continue working there
and his failure to do so can be only construed as willfully incurred loss of wages."
However, the facts of the case do not support the agrument. Reynolds obtained
a position with Parsons as a plastic laminator for which position his lack of quali-
fication immediately became manifest. He did not voluntarily quit this job but
was terminated. However, his employer offered him another position as a trainee.
Reynolds is a cabinet maker. Work in the linoleum or plastic laminating industry
was foreign to his trade and past experience. He was offered a position as trainee
in such different trade less than 2 months after he had been discharged unlawfully
by the Respondent. Such job did not constitute an offer of suitable employment.
Reynolds was not required to train in a new trade before he exhausted all reason-
able opportunities to find employment compatible with his skills and experience.
Therefore Reynolds did not willfully incur any loss of earnings by refusing to
accept a position as a trainee in an unrelated occupation so soon after his unlawful
discharge. Finally, Respondent refers to Reynolds leaving the job he had with
General Wood Products as a failure in his affirmative duty to mitigate damages.
However, Reynolds' testimony is uncontroverted that he was physically unable to
do the work. In such circumstances quitting the position did not constitute a willful
loss of earnings.
I find that Reynolds is entitled to the net backpay set forth in the specification.
Accordingly, I find that there is due to Harry Reynolds as backpay the sum of
$1,556.67 plus interest at the rate of 6 percent per annum to the date of payment,
on $250.69 from September 30, 1963; on $899.88 from December 31, 1963; and
on $406.10 from March 31, 1963. The sum due to Reynolds shall be reduced by
such tax withholdings as are required by Federal and State laws.
I direct that the Respondent make the payments, or deposit on account of the
backpay due, to the claimants in accordance with the findings above set forth.
Sedgwick Furniture, Inc. and Outlet Furniture , Inc. and General
(Drivers, Salesdrivers , Warehousemen & Helpers , Local Union
245, affiliated with International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, Petitioner.
Case 17-RC-4961. October 21, 1966
DECISION AND DIRECTION
Pursuant to a stipulation for certification upon consent election
executed on February 8, 1966, an election by secret ballot was con-
ducted on February 16, 1966, under the direction and supervision of
161 NLRB No. 25.
SEDGWICK FURNITURE, INC. 305
the Regional Director for Region 17, among the employees in the
appropriate unit. At the conclusion of the election, the parties were
furnished with a tally of ballots which showed that of approximately
15 eligible voters, 15 cast ballots, of which 6 were for and 5 against
the Petitioner, and 4 were challenged. The challenged ballots were
sufficient in number to affect the results of the election.
In accordance with the National Labor Relations Board Rules and
Regulations and Statements of Procedure, Series 8, as amended, the
Regional Director conducted an investigation and, on March 16, 1966,
issued and duly served upon the parties his report on challenged
ballots in which he recommended that the National Labor Relations
Board direct a hearing in order to resolve the issues with respect to
unit placement and voting eligibility of the four individuals whose
ballots were challenged.
As no exceptions were filed to the Regional Director's report within
the time provided therefor, the Board adopted the Regional Direc-
tor's recommendation as contained in his report and, on March 31,
1966, issued an Order remanding the case to the Regional Director
with instructions to hold a hearing with respect to the challenged
ballots.
Pursuant to that Order, the Regional Director issued a notice of
Bearing and designated R. L. DeProspero as Hearing Officer. A hear-
ing was held on April 19 and 26, 1966, at which all parties to these
proceedings were represented by counsel and were afforded full
opportunity to, be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing on the issues.
On June 10, 1966, the Hearing Officer issued his report on chal-
lenged ballots in which he recommended that the Board sustain the
challenges to the ballot of Robert E. Brickner, and that the Board
overrule the challenges to the ballots of Catherine Wilcher, Eugene
J. Blades, and Louis Williams. The Hearing Officer further recom-
mended that these three challenged ballots be opened and counted.
Thereafter, the parties filed timely exceptions to the Hearing Officer's
report.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the Board has delegated its powers in
connection with this case to a three-member panel [Chairman McCul-
loch and Members Brown and Zagoria].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act and it will effectuate the policies of the Act to assert juris-
diction herein.
2. The Petitioner is a labor organization claiming to represent
certain employees of the Employer.
264-188-67-vol. 161-21
306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. A question affecting commerce exists concerning.,the representa-
tion of the employees of the Employer within the meaning of Sec-
tions 9(c) (1) and 2(6) and (7) of the Act.
4 The parties stipulated, and we find,-that the following employees
constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All truckdrivers, helpers, finishers, warehousemen, and shipping
and receiving clerks employed by Sedgwick Furniture, Inc., and
Outlet Furniture, Inc., Springfield, Missouri, excluding salesmen,
office clerical employees, professional employees, -guards, and super-
visors as defined in the Act.
5. The Board has reviewed the rulings made by the Hearing Officer
at the hearing and finds that no prejudicial error has been committed.
The rulings are hereby affirmed. The Board has considered the
Hearing Officer's report, the Petitioner's and Employer's exceptions
thereto,' and the entire record in this case, and hereby adopts the
Hearing Officer's findings and recommendations with regard to the
challenged ballots, with the exception of his recommendation to over-
rule the challenge to the ballot cast by Catherine Wilcher.
The Petitioner challenged Wilcher's ballot on the ground that,
since she was a cleaning maid, her work category was not embraced
by any of the five classifications specifically stipulated to by the
parties for inclusion in the unit. Although the Hearing Officer found
that Wilcher was in fact performing maid's work at the time of the
election, he nonetheless further found that she should be included in
the unit. In reaching the latter conclusion, the Hearing -Officer rea-
soned that, since the parties had neither included nor excluded the
classification of maid from the stipulated unit, their failure to specify
her unit placement requires that the Board make this determination.
The Hearing Officer thereupon decided to include the maid, based
on her community of interest with other unit 'employees, and he
recommended that the challenge to her ballot be overruled. Petitioner
excepts to this recommendation, and we find merit in the exception.
The unit to which the parties stipulated and which we have found
appropriate has no generic description, but, as noted, reflects that
five specific classifications, only, are to be included, and that five
specific classifications are to be excluded. "Maid" is not specifically
included or excluded. In these circumstances, we find that the failure
of the parties to include the classification of maid clearly indicates
their intention that such a classification should not be a part of the
i The Petitioner's and Employer 's exceptions to the Hearing pfficer 's report with respect
to the challenges to the ballots of Blades, Williams, and Brickner , in our opinion , raise no
material and substantial issues which would warrant reversal of the Hearing Officer's find-
ings, conclusions , and recommendations as to these three ballots.
ELECTRO CONTROLS, INC. 307
unit complement. The Hearing Officer's contrary finding with respect
to her unit placement is thus inconsistent with the parties' intention
and would constitute a departure for their stipulation which was
approved by the Regional Director.
We find, therefore, that Wilcher is not included in the appropriate
unit, and we sustain the challenge to her ballot.
However, as we have adopted the Hearing Officer's recommenda-
tions that we overrule the challenges to the ballots of Blades and
Williams,2 we shall direct that their ballots be opened and counted
and that a revised tally of ballots be prepared.
[The Board directed that the Regional Director for Region 17
shall, within 10 days from the date of this Direction, open and count
the ballots of Eugene J. Blades and Louis Williams, and serve on
the parties a revised tally of ballots and take such steps as may be
necessary in accordance with Board Rules and Regulations, Series 8,
as amended.]
2 See Snap-Out Binding & Folding, Inc., 160 NLRB 161.
Electro Controls, Inc. and International Brotherhood of Electri-
cal Workers, Local No. 354, AFL-CIO . Cases 27-CA-1843 and
1904. October 24,1966
DECISION AND ORDER
On 'April' 28, 1966; Trial Examiner Irving Rogosin issued his
Decision in the above-entitled proceeding, finding that 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 cer-
tain affirmative action, as set forth in the attached Trial Exami ner's
Decision. The Trial Examiner also found that Respondent had not
engaged in certain other unfair labor practices and recommended that
such allegations of the complaint be dismissed. Thereafter, the Gen-
eral Counsel filed exceptions to the Trial Examiner's Decision and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with these cases to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
161 NLRB No. 26.