Standard Printing Co. of Canton

National Labor Relations Board - Board Decisions

Mar 23, 1965

151 N.L.R.B. 963 (N.L.R.B. 1965)

STANDARD PRINTING COMPANY OF CANTON 963
(f) Notify the said Regional Director for Region 12, Tampa, Florida , in writing,
within 20 days from the date hereof , what steps Respondent has taken to comply
with this Recommended Order.6
6 If this Recommended Order be adopted by the Board , this provision shall be modified
to read: "Notify said Regional Director , in writing , within 10 days from the date of
this Order , what steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act , as amended , we hereby notify our employees that:
WE WILL NOT discourage membership in International Chemical Workers
Union, Local No. 667 , AFL-CIO , or any other labor organization , by failing
to recall or rehire employees because of their engaging in concerted activities
for the purposes of collective bargaining or other mutual aid or protection.
WE WILL NOT in any other manner interfere with, restrain , or coerce our
employees in their exercise of the right to self-organization , to form, join, or
assist the above-named or any other labor organization , to bargain collectively
through representatives of their own choosing , and to engage in other concerted
activities for their mutual aid or protection , or to refrain from any or all of
such activities.
WE WILL offer Spann Rountree , James Washington , and Herman Winfrey
immediate and full reinstatement to their former or substantially equivalent posi-
tions without prejudice to their seniority or other rights and privileges of employ-
ment, and make each of them whole for any loss of wages and other emoluments
he may have suffered by reason of our discrimination against them.
All our employees are free to become or remain or to refrain from becoming or
remaining members of the above-named or any other labor organization.
PLYMOUTH CORDAGE COMPANY d/b/a WILSON
& TOOMER FERTILIZER COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
NOTE -We will notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Training
and Service Act of 1948, as amended , after discharge from the Armed Forces.
This notice must remain posted for 60 consecutive days from the date of posting
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, Ross
Building, 112 East Cass Street, Tampa, Florida, Telephone No. 223-4623, if they
have any question concerning this notice or compliance with its provisions.
Standard Printing Company of Canton and International Print-
ing Pressmen and Assistants' Union of North America, AFL-
CIO. Case No. 8-CA-3175. March 23, 1965
SUPPLEMENTAL DECISION AND ORDER
On December 16, 1963, the Board issued an Order in the above-
entitled case, adopting the findings and conclusions of the Trial
Examiner that, inter alia, the Respondent had discriminated against
,certain employees in violation of Section 8(a) (3) of the Act, and
151 NLRB No. 107.
964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
adopting his recommendation that the Respondent be directed to,
offer these employees immediate and full reinstatement and to make
them whole for any loss of pay caused by its discrimination against
them.
On March 19, 1964, the Board's Regional Director for Region 8
issued and served upon the parties a backpay specification and notice
of hearing, setting forth the amount of backpay due to Leroy
Beach, the only employee whom Respondent had refused to rein-
state. Pursuant to notice, a hearing was held before Trial Examiner
C. W. Whittemore on March 31, 1964, for the purpose of determin-
ing Respondent's reinstatement and backpay obligations to Beach.
On May 13, 1964, the Trial Examiner issued his Supplemental
Decision, attached hereto, in which he found Beach to be entitled
to reinstatement and to backpay in the amount specified by the
Regional Director. Thereafter, the Respondent filed exceptions
to the Trial Examiner's Supplemental Decision, together with a
brief. On July 27, 1964, the Board ordered the record reopened
to receive additional evidence as to whether there was work available
for Beach at Respondent's plant subsequent to his discharge.
On November 30, 1964, Trial Examiner Whittemore issued his
Second Supplemental Decision, also attached hereto, in which
he found that Respondent had not sustained its burden of proving
that no work was available for Beach after his discharge. There-
after, the Respondent filed exceptions to the Second Supplemental
Decision and a brief in support thereof.
Pursuant to the provisions of Section 3(b) of the Act, the Board'
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Fanning and
Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
at both supplemental hearings and finds that no prejudicial error
was committed.' The Board has considered the entire record in
this case, including both Supplemental Decisions and Respondent's
1 In attempting to establish that Beach had engaged in various kinds of misconduct
warranting denial of reinstatement and backpay, Respondent offered to prove that Beach
had participated in obstructive mass picketing . The Trial Examiner excluded the
proffered testimony , apparently on the ground that the conduct of a single individual,
even when acting as part of a group, cannot constitute "mass" picketing and therefore
is irrelevant to the misconduct issue. We consider the Trial Examiner's ruling to be
erroneous . However , after examining the Respondent ' s offer of proof as to the substance
of the testimony it would have presented had it been permitted to do so, we conclude
that , even if the evidence had been admitted , it would not affect our ultimate determina-
tion on the misconduct defense , as discussed hereinafter . Accordingly , the Respondent
has not been prejudiced by the Trial Examiner 's ruling.
STANDARD PRINTING COMPANY OF CANTON 965
exceptions and briefs, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner, with the following
modifications.
1. One of the defenses raised by the Respondent in the backpay
proceeding was that no work was available in the plant for Leroy
Beach after his discriminatory discharge. Although we agree
with the Trial Examiner that Respondent has not met its burden
.of proving the nonavailability of work, we do not believe that
the Trial Examiner's Second Supplemental Decision has adequately
answered Respondent's argument.
Respondent's main contention is that the amount of available
work for the platen presses (the only kind of press that Beach
was qualified to operate) decreased so sharply after Beach's dis-
charge that he would not have been retained even absent the unlaw-
ful firing. The Trial Examiner, however, in his Second Supple-
mental Decision, refers only to the Respondent's total sales figures
for all presses in rejecting this economic defense. Despite the
Trial Examiner's failure to consider specifically the scant evidence
relating to the diminished need for a platen pressman, we believe
that his ultimate conclusion is sound. While Respondent asserted
generally that its income from use of its platen presses declined
in 1963, it offered no convincing documentary corroboration of the
assertion. The only particularized evidence on this point showed
a decrease in the total monthly billings for both the platen and
the Miller S-W presses for the period May 29-July 15, 1963, as
,compared to the same period in 1962. Since these figures include,
without differentiation, the total of the sales from both types of
presses, they hardly demonstrate a slump in platen press sales
alone.
The Respondent introduced testimony that one senior press
operator was averaging 5 hours of nonproductive time per day
for at least 5 months until Beach was discriminatorily discharged,
and that thereafter most of his working time was spent productively
in performing the work that Beach had formerly done. Such
evidence can as well serve to show that the Respondent was willing
to retain press operators during slack periods as to prove Respond-
ent's point, that there had been little need for Beach for some time.
As previously noted, the proper test of the defense set forth by
Respondent is whether the backpay claimant would have been
terminated by Respondent as a result of its normal nondiscrimina-
tory business practice 2 Even assuming all credibility findings
2 Biscayne Television Corporation , 137 NLRB 430 ; Goldblatt Bros. , Inc., 135 NLRB 153.
966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in Respondent's favor, we cannot conclude, on the basis of the
evidence adduced, that Respondent has met its burden on this
issue.
2. The Trial Examiner failed to deal with Respondent's con-
tention that a discriminatee who joins a strike after being discharged
is not entitled to backpay during the period in which he is engaged
in the strike. It is well settled that a discriminatorily discharged
employee does not forfeit backpay by supporting a strike.3 Accord-
ingly, we find the Respondent's contention to be without merit.
3. Witnesses for the Respondent testified to four incidents oc-
curring during the strike in which Beach was said to have been
involved. Respondent submits that each or all of these episodes
constitute the kind of misconduct which should defeat Beach's
right to reinstatement and backpay. The Trial Examiner dis-
credited the testimony of witnesses who testified to two of the
incidents, found the third incident to be "so trivial as to require
no further comment," and apparently found the forth, an alleged
assault, to be equally unimportant. The Trial Examiner further
stated, however, that even if the incidents took place as described
by Respondent's witnesses, they were not serious enough to warrant
forfeiture of reinstatement.
The Trial Examiner relied on certain objective factors for find-
ing that the first two incidents mentioned above had not occurred
as alleged. We see no need to pass upon the cogency of his reason-
ing in reaching these credibility findings, for we agree with him
that, even if full credence be given to Respondent's version of all
of the events, the conduct described should not disqualify Beach
from the customary remedies.
4. After Beach joined the strike, he received $50 a week from the
Union in strike benefits. The Respondent argues that if the benefits
are not credited against the backpay award, Beach will be unjustly
enriched at its expense.
Under the Union's constitution, members of full beneficiary locals
contribute a stated amount each month toward a strike fund. When
a strike has been sanctioned by the Union's board of directors,
paid-up members become entitled to receive $50 a week in strike
benefits for 8 weeks. Thereafter, the board of directors may, in
its discretion, authorize further payments, which it did in this case.
Neither the constitution nor the hearing testimony supports Re-
spondent's contention that benefits are paid only on the condition
that the members picket in behalf of the Union. The constitutional
requirement that members report each day to sign a strike roll
8 Knickerbocker Plastic Co., Inc., 132 NLRB 1209, 1212.
STANDARD PRINTING COMPANY OF CANTON 967
is clearly intended solely to implement the provision that a member
who becomes employed can no longer receive strike benefits.
We agree with the Trial Examiner that the Respondent should
not be allowed any set-off against backpay based on these strike
benefits. In Gullett Gin Company, Inc. v. N.L.R.B., 340 U.S. 361,
the Supreme Court held that "collateral benefits" such as unemploy-
ment compensation which employees may have received should
not be set off against reimbursement due because of discrimination.
In N.L.R.B. v. Brashear Freight Lines, Inc., 127 F. 2d 198 (C.A. 8),
the court of appeals held that only "earnings" may be deducted from
a backpay award, and that groceries given by the union to the
members in that case were not compensation for picketing. We are
equally satisfied here that the strike benefits neither resulted from
nor created an employment relationship, and that the strike benefit
scheme is in the nature of a private insurance arrangement.
The criterion by which the Board is to formulate its remedial-
policies is found in Section 10(c) of the Act, which enjoins us
"to take such affirmative action . . . as will effectuate the policies
of this Act." Respondent suggests that allowing strikers to re-
ceive both strike benefits and full backpay will only encourage
the prolongation of strikes, thus manifestly defeating the policies
of the Act.
It seems to us unlikely that this rule will have the unhappy result
predicted by the Respondent. Ordinarily, strikers cannot receive
backpay for the period during which they are on strike, and there-
fore both strike benefits and backpay will be received only in the
relatively infrequent situations where employees drawing such
strike benefits have theretofore been discriminatorily discharged.
In all, we are persuaded that the rule announced here is a fair
adjustment of the rights of employer and employee, and in line
with existing precedent.
ORDER
On the basis of the entire record in this case, the National Labor
Relations Board hereby orders that the Respondent, Standard
Printing Company of Canton, Canton, Ohio, its officers, agents,
successors, and assigns, shall reinstate and pay backpay to Leroy
Beach as set forth in the Trial Examiner's Supplemental Decision;
and that the Regional Director for Region 8 is authorized to take
appropriate steps consistent with this Supplemental Decision and
Order, without prejudice to the conduct of additional backpay
proceedings.
968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
MEMBER JENKINS , dissenting in part:
While I agree with my colleagues in other respects , I consider
that in all the circumstances here, the misconduct of Beach on the
picket line, if established ( and it is , at least in part ), is sufficient
to bar him from reinstatement.
TRIAL EXAMINER'S SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
This proceeding stems from a dispute as to: ( 1) whether or not the Respondent is
obligated to offer reinstatement, by terms of a Board Order, to one employee, Leroy
Beach , and (2 ) the amount of backpay due him.
On December 16, 1963, the National Labor Relations Board issued its Decision
and Order directing the Respondent to reinstate Beach and to make him whole for
loss of earnings. Its Decision, however, adopted without comment Trial Examiner
A. Bruce Hunt's recommendation in his Decision that the Respondent be permitted,
at compliance stage, to present evidence on a single point whether or not on the
picket line Beach had engaged in such misconduct as to forfeit his reinstatement rights.
Pursuant to the Board's Order the Regional Director for Region 8 on March 19,
1964, issued his backpay specification and notice of hearing. By its answer dated
March 31, 1964, the Respondent alleged that: (1) Beach had forfeited his reinstate-
ment rights because of misconduct commencing on July 16, 1963; and ( 2) Beach
received additional net earnings to those listed in the specification , between July 16
and December 11, 1963.
A hearing was held in Canton, Ohio, on March 31, 1963, before Trial Examiner
C. W. Whittemore.
At the hearing all parties were represented and were afforded full opportunity to
present evidence pertinent to the issues, to argue orally, and to file briefs. Briefs
have been received from all parties.
Upon the record thus made and from my observation of the witnesses, I make the
following findings and conclusions:
1. THE RIGHT -OF-REINSTATEMENT ISSUE
A. Relevant facts and evidence
The Respondent contends that Beach has forfeited his right to reinstatement by
misconduct "while on the picket line," commencing on July 16, 1963, and in its
answer alleges that such misconduct "consisted of mass picketing, profane and
abusive language, reckless operation of a motor vehicle on the public highway .. .
and other misconduct, and culminated in his harassment, assult [sic] and abuse of
female workers on August 29, 1963."
As to the "mass picketing" claim, I declined to receive evidence relating to it,
pointing out that it was, in effect , a contradiction in terms to allege that a single
individual engaged in or could engage in "mass" picketing . The other incidents
alleged are considered in chronological order.
The zipper incident. According to the testimony of Paul Bolender, head of the
Respondent Company, and Fred Griel , general manager, on some unfixed date but
apparently after July 16, these two officials were standing in the plant doorway, open-
ing upon the public street, while pickets walked along the sidewalk. Bolender took
pictures of the pickets, including Bruce Crandall, head of the Local, and Beach.
Also according to the plant officials, shortly after Bolender had taken a certain picture,
in evidence, showing a closeup of Crandall and Beach next but one behind him, the
latter suggested, in passing the doorway, that Bolender take a picture of his unzipped
trousers. No photograph was offered in evidence to show that Bolender complied
with the suggestion. Both Crandall and Beach denied that the remark was made.
The truck incident . According to the testimony of Alvin Wank, a nonstriking
employee of the Respondent , on July 23 he left the plant in a truck to make a
delivery for the Company . Beach , as a witness , admitted that he, in his own car, fol-
STANDARD PRINTING COMPANY OF CANTON 969
lowed the truck. According to Wank, on a main street of the city Beach on three
occasions "pulled around" in front of his truck and slowed down, requiring him to
apply his brakes. Wank said he was driving about 15 miles an hour, and admitted
there was no contact of the cars. Beach contended that he had to stop or slow up
on two occasions-once for a red light and again for a stop sign, and Wank admitted
that the red light was against Beach, requiring a "slight pause." It appears that the
entire course of the affair was no more than three blocks, from Sixth to Ninth Streets
crossing an avenue, and that at Ninth Street Beach, ahead of Wank, turned off and
disappeared.
The Sanor incident. On August 12 Mrs. Sanor came to the plant to apply for
work. Her husband drove her to the plant and remained in his car as she crossed
the street to enter the plant. As she started toward the door, according to her testi-
mony, Beach, on the picket line, approached her and asked if she was going to apply
for work, and when she said she was he called her a vulgar name, and "hollered over"
the same remark to "someone else" in a car. Beach was not questioned about the
incident.
The Rizzo-Stephans incident. On the morning of August 29, employees Elsie
Stephans and Alice Rizzo approached the plant to go to work. Beach and another
striking employee were picketing. As the women started up the steps to go in,
Beach stepped in front of them, and according to their testimony barred their way for
a moment or two, elbows extended and hands on his hips . Stephans stepped around
Rizzo and as she passed Beach his elbow hit her and he called her a "fink," according
to her testimony. Beach admitted being on the picket line at the time but denied
"poking" Stephans as she passed him.
B. Conclusions
I do not believe that the incident first described above occurred as told by the
plant officials. Bolender, in paiticular, impressed me as one who was intentionally
adding imaginary details to an insignificant item in order publicly to blacken the
reputation of an employee whom the Board had ordered him to reinstate.
Nor can Mrs. Sanor's claim that Beach called her a vulgar name and then repeated
it in a shout to "someone else" be credited by me. According to her own testimony
her husband was sitting in his car nearby. It is reasonable to believe either that he
would have heard the shout, or that she would promptly have informed him of the
insult, had it occurred.
On the other hand, I have little doubt that Beach did momentarily stand in the way
of Rizzo and Stephans. And he may well have "poked" Stephans as she brushed by
him.
The following of the truck, admitted by Beach, is so trivial as to require no further
comment.
However, even if it were to be found that all four incidents took place as described
by the Respondent's witnesses, their total significance would fall far short, in my
opinion, of the gravity warranting the conclusion that Beach has forfeited, as of any
date, his right to reinstatement as ordered by the Board.
In short, I conclude and find that the Respondent has failed to sustain its burden
of proving that on July 16, 1963, and thereafter Beach has lost his right to full
reinstatement.
II. THE STRIKE-BENEFIT ISSUE
The Respondent contends that the amount of backpay claimed in the specification
should be reduced by the amount of strike benefits Beach received while on strike
and on the picket line. The question is well settled against this contention.' Such
benefits as he received were provided for by the Union's constitution and were, in
effect, a type of insurance for which his dues constituted premiums. It is clear that
Beach made appropriate efforts to, and did, obtain remunerative employment else-
where, and such earnings have been deducted.
i See Gullett Gin Company, Ine v. N.L.R B., 340 U.S. 361, and N.L.R.B. v. Breshear
Freight Lines, Inc., 127 F. 2d 198 (C.A. 8).
970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In short, I find no merit in this contention of the Respondent.
III. FINAL CONCLUSIONS
I adopt in full the Regional Director's backpay specification, and conclude and
find that the obligation of the Respondent to make Beach whole under the Board
Order will be discharged by payment to him of the amount of $2,297.91 with interest
at 6 percent per annum, minus the tax withholding required by Federal and State
laws for the backpay period running to March 13, 1964, together with such net
backpay with interest at 6 percent per annum according to the computations made in
said specification from March 13, 1964, until such time as the Respondent shall offer
to Beach full reinstatement.
SECOND SUPPLEMENTAL TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding was ordered by the Board on July 27, 1964. In its remand order
the Board directed the Trial Examiner to receive evidence, at a reopened hearing,
"relevant to the issue of nonavailability of work" for backpay claimant LeRoy Beach
during a period from May through December 1963. Pursuant to notice, a hearing
was held in Canton, Ohio, on October 29, 1964, before Trial Examiner C. W.
Whittemore.
At the hearing all parties were represented and were afforded full opportunity to
present evidence pertinent to the above-described issue, to argue orally, and to file
briefs. Memorandums have been received from the Respondent and General Counsel.
Upon the record thus made and from my observation of the witnesses, and pur-
suant to the Board Order, I make the following:
FINDINGS AND CONCLUSIONS
I consider the following facts to be background relevant to the question of weight
to be accorded to the Respondent's belated claim, set forth in its counsel's memo-
randum, that "there was not sufficient work available in Respondent's letterpress
department during the period from June 3, 1963, through December, 1963, to justify
Beach's employment":
(1) Trial Examiner A. Bruce Hunt conducted the original hearing in this case, on
September 4, 5, and 6, 1963. In his Decision he found that "the Respondent seized
upon Beach's part-time employment as a pretext to discharge him," and concluded
that the dismissal was in violation of Section 8(a) (3) and (1) of the Act.
(2) By letter of December 6, 1963, counsel for the Respondent notified the Board:
The Company does not intend to file exceptions to the Intermediate Report, but
expects to go into compliance, reserving the questions as to reinstatement of
Beach as noted in the Intermediate Report.
(3) The sole question as to reinstatement, referred to by counsel, related to certain
alleged conduct on the picket line during the summer of 1963 which the Respondent,
at the hearing before Trial Examiner Hunt, urged should render him unfit for rein-
statement. Hunt declined to hear evidence on this point, but stated in his Decision:
As recited in footnote 9, the Respondent contended at the hearing that Beach
forfeited any right to reinstatement because of his conduct as a picket. To the
extent that the Respondent may oppose Beach's reinstatement upon that ground,
the recommendations in the paragraph next above are not intended to preclude
the right of the Respondent, at an appropriate time in compliance stages, to offer
evidence in support of its contention, at which time the General Counsel may
offer evidence to the contrary. If the Respondent should prevail, backpay for
Beach shall terminate as of the date that he forfeited his right to reinstatement.
(4) On December 16, 1963, the Board adopted as its Order Trial Examiner Hunt's
Recommended Order.
(5) On March 19, 1964, the Regional Director for Region 8 issued a backpay
specification as to Beach, and a notice of hearing.
(6) Said specification alleged, among other things, that "Records and information
from Respondent disclose that work was available to Beach at all times during his
backpay period and that he would have earned the same weekly amount during the
backpay period as he earned during his term of employment."
STANDARD PRINTING COMPANY OF CANTON 971
(7) The backpay hearing was held on March 31, 1964, before Trial Examiner
C. W. Whittemore . The Respondent 's answer to the specification was submitted and
received at the opening of the hearing. In its answer the Respondent merely denied
the above-quoted allegation of the specification as to the availability of work, and
gave no explanation for its failure to comply with the Board 's Rules and Regulations,
Section 102.54 (b), requiring not only a specific statement as to the basis for "dis-
agreement ," but also "setting forth in detail his position as to the applicable premises
and furnishing the appropriate supporting figures."
(8) Pursuant to Section 102 54 ( c) of the Rules ,' I declined to permit the Respond-
ent to introduce evidence on the question . It was this ruling which the Board, upon
exceptions by the Respondent , reversed , giving rise to the present proceeding.
Thus it was not until almost a year after the unlawful discharge that the Respondent
took even a passively negative position concerning the availability of work for
Beach. It was not raised as an affirmative defense before Trial Examiner Hunt in
September 1963-midway in the very period now in issue. Nor did the Respondent
make any claim on the point in its notification of compliance in December 1963-at
the end of this period.
The failure of the Respondent to raise the work-availability issue at any time during
its alleged existence casts immediate doubt, in my opinion, upon the weight to be
accorded proof now offered to support its belated claim.
The Respondent, at the latest hearing , placed in evidence documentary compilations
of monthly sales totals, covering a period from 1951 to the present. Apparently as an
exhibit of special significance it also placed in evidence a comparison of such monthly
sales from June through December of 1962 and of 1963.
I am not an accountant . I am inclined , however, to approach these compilations
with a degree of skepticism . Many years ago I witnessed one of the Nation's leading
statisticians demonstrate , before a gathering of Boston businessmen and with a
single array of digits , chalk, and a blackboard , how logically possible it is to arrive at
precisely opposite conclusions-merely by altering the initial premise.
The Respondent 's premise , it seems clear , is that it does not wish to reemploy Beach.
It urged this position before Trial Examiner Hunt, supporting it, not with a claim
of no work available, but with an accusation of misconduct . Now it says that sales
totals demonstrate that Beach was not needed and there was no work for him.
Assuming the authenticity of the figures in evidence , it is true that for the last 7
months of 1963 sales dropped off some $75,000 from the same period in 1962. It
does not necessarily follow, however , that there was no work for Beach , merely
because the sales totals were less when he was not at work than when he was
employed. During the last 6 months of his employment sales totals exceeded those of
his first 6 months by more than $50,000 . Surely the Respondent would object to the
conclusion that he was not needed , and that there was no work for him, during the
first half year of his service.
A number of contemporaneous factors make it impossible for me to accept the
conclusion sought by the Respondent . A strike was in progress from July to mid-
December 1963-a situation not existing in the same period of 1962. It is not
unreasonable to consider it likely that the strike may have caused at least a substantial
part of the reduction of sales.2 Also during July and August 1963 , the Respondent
advertised in local newspapers for employees with Beach 's qualifications . Finally,
the record establishes that during the material period a number of management
officials on many occasions performed the same work that Beach had been doing
before his unlawful discharge.
In short , I am of the opinion , and it is so concluded , that the Respondent has not
sustained its burden of proving that there was no work available for Beach during
the period from May to mid-December 1963.
I This subsection reads, In part , as follows : "If the respondent . . . fails to deny any
allegation of the specification in the manner required by paragraph ( b) of this section,
and the failure so to deny Is not adequately explained , such allegation shall be deemed
to be admitted to be true , and may be so found by the Board without the taking of
evidence supporting such allegation , and the respondent shall be precluded from in-
troducing any evidence controverting said allegation."
21t Is noted , on this point , that sales totals for the first 5 months of 1963 exceeded
those for the same period of 1962 by some .$16 ,000-a comparison of which the Respond-
ent makes no mention.