Venetian Blind Workers' Union

National Labor Relations Board - Board Decisions

Nov 4, 1954

110 N.L.R.B. 780 (N.L.R.B. 1954)

780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the discrimination by payment to her of a sum of money equal to the amount
she would have earned from July 15, 1953, to the date of the offer of reinstatement,
less her net earnings during that period . The computation shall be made on a
quarterly basis in the manner established by the Board in F. W. Woolworth Company,
90 NLRB 289, 291-294. Earnings in one particular quarter shall have no effect
upon the back-pay liability for any other such period. It will also be recommended
that the Respondent make available to the Board upon request , payroll and other
records to facilitate the checking of back pay.
Having found that the Respondent has engaged in surveillance over the protected
activities of its employees , has unlawfully interrogated an employee , and has prom-
ised them benefits should they refrain from seeking representation by the Union,
it will be -recommended that the Respondent be required to cease and desist from
such conduct.
Upon the basis of the foregoing findings of fact , and the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. Metal Trades Council of Southern California is a labor organization within
the meaning of Section 2 (5) of the Act.
2. By engaging in surveillance over the protected activities of its employees and
by promising them benefits should they refrain from seeking union representation and
by discharging Stanton and Schroeder , the Respondent has interfered with, restrained,
and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act
and has thereby engaged in and is engaging in unfair labor practices within the mean-
ing of Section 8 (a) (1) of the Act.
3. By discriminating in regard to the hire and tenure of employment of Pearl R.
Stanton and Betty J. Schroeder , thus discouraging membership in, activity in behalf
of, and support for the Union , the Respondent has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (a) (3) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
VENETIAN BLIND WORKERS' UNION LOCAL No. 2565, AFFILIATED WITH
THE UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA,
AFL and VIOLA DODD . Case No. 2O-CB-73. November 4, 1954
Supplemental Decision and Order
On February 23, 1954, Trial Examiner Maurice M. Miller issued
his Supplemental Intermediate Report, finding that the total net back
pay due Viola Dodd from the Respondent was $2,536.65, as set forth
in the copy of the Supplemental Intermediate Report attached hereto-
Thereafter, the Respondent filed exceptions to the Intermediate
Report and a supporting brief.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Sup-
plemental Intermediate Report, the exceptions and brief, and the
entire record in the case' and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner.
' The Respondent 's request for oral argument is denied as the record and the excep-
tions and brief , in our opinion , adequately present the issues and the positions of the
parties.
110 NLRB No. 117.
VENETIAN BLIND WORKERS' UNION 781
[The Board ordered the Respondent, Venetian Blind Workers'
Union Local No. 2565, affiliated with the United Brotherhood of
Carpenters and Joiners of America, AFL, and its successor, Miscel-
laneous and Woodworkers Union No. 2565, pay to Viola Dodd the
following amount of net back pay : $2,536.65.]
Supplemental Intermediate Report
STATEMENT OF THE CASE
- On December 26, 1950, the National Labor Relations Board issued a Decision
and Order in the above-entitled case and it found, inter alia, that the Respondent
had committed an unfair labor practice within the meaning of Section 8 (b) (2)
of the Act, as amended, in that it had attempted to cause and had caused the
Ambassador Venetian Blind Company and Consolidated Interiors, Inc., to discrim-
inate against Viola Dodd in violation of Section 8 (a) (3) of the statute. The
Respondent was ordered to make Viola Dodd whole for any loss of pay suffered
as a result of this discrimination. On September 18, 1953, the United States Court
of Appeals for the Ninth Circuit granted the Board's petition for enforcement of
this order. N. L. R. B. v. Venetian Blind Workers' Union Local 2565, UBCJ, AFL,
207 F. 2d 124. The case was remanded to the Board for a computation of the
amounts payable to the discriminatee.
Pursuant to due notice, a further hearing was held on January 21, 1953, at San
Francisco, California, before me as a duly designated Trial Examiner, to determine
the amount of back pay to which Viola Dodd would be entitled. Counsel filed
appearances for the General Counsel and an organization designated as the Mis-
cellaneous and Woodworkers Union, No. 2565. All parties participated in the hear-
ing and were afforded full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence pertinent to the issues. At the outset, counsel
for the labor organization noted moved that the matter be dismissed on the ground
that the Respondent named in the case had surrendered its charter and ceased to exist,
to be succeeded by a newly chartered organization with an expanded jurisdiction and
a substantially different membership; it was argued that the new organization, with
its new members, ought not to be held responsible for the unsettled back-pay liability
of its predecessor, the original Respondent in the case. A decision on the motion
was reserved; my disposition of it will appear in this report.
At the close of the testimony, the Union's counsel reserved the right to file a brief.
One was submitted, tardily, but it has nevertheless been considered.
Upon the entire record in the case, and my observation of the witnesses, I make
the following:
FINDINGS OF FACT
1. THE LIABILITY ISSUE
In support of the motion to dismiss, previously mentioned, evidence was adduced
to establish that the Respondent labor organization lost a number of members after
the events detailed in the original Intermediate Report issued herein. As of August
1950-after the issuance of the original Intermediate Report, but before the Board's
Decision and Order-the organization appears to have had only 125-135 members;
and it appears, also, to have been delinquent in the payment of its per capita obliga-
lions to the United Brotherhood of Carpenters and Joiners. For a number of months,
possibly as much as six, it had apparently been unable to pay the salary of its business
agent. After an investigation by a Brotherhood representative, a decision was
reached that the charter of the Respondent ought to be surrendered in order to permit
the Brotherhood to charter a new organization with wider jurisdiction. (Mrs. White,
the former business agent of the Respondent, was somewhat unclear as to the manner
in which this decision was reached, and the identity of those who reached it. Her
testimony, taken as a whole, would seem to indicate that the decision was reached
by the International representative of the Brotherhood responsible for the investiga-
tion, the executive secretary of the Brotherhood's district council for the bay area
counties, and various responsible officials of the Brotherhood itself. There is no
indication, whatever, of any vote on the matter by the membership of the Respond-
ent, or any discussion of the matter at a membership meeting before the charter was
actually surrendered.) The charter was, accordingly, taken to the headquarters of
782 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Brotherhood and surrendered. By appropriate action, the general executive
board of the Brotherhood then issued a charter for the Miscellaneous and Wood-
workers Union, No. 2565, with jurisdiction in five bay area counties over various
types of work related to wood processing or fabrication, not limited to work on
venetian blinds. At the next regular membership meeting of the Respondent in the
above-entitled case, held pursuant to appropriate notice, the action of the Brother-
hood's executive board was explained to the members. When advised that they
would be entitled, under the new charter, to several additional "beneficial" rights and'
privileges as Brotherhood members, the membership of the Respondent, I find, ex-
pressed approval of the change.'
Under the new charter, the old constitution and bylaws of the Respondent ceased
to have any force and effect; the newly chartered organization appears to be governed
by the constitution and bylaws of the district council of Carpenters for the five bay
area counties. Nevertheless, the record shows, there was no new election of officers,
those with unexpired terms, elected under the old charter, appear to have continued
in office under the new charter-except possibly, for individual resignations. The
Respondent's members continued to hold membership in the newly chartered organi-
zation, at a slight increase in dues. And the funds of the Respondent-which ap-
proximated only $250 at the time-appear to have been transferred to the new
organization's treasury only by common consent, never formalized by any member-
ship vote. I so find.
The newly chartered organization continued to administer contracts with about 27
venetian blind manufacturers, negotiated and executed by the Respondent. Its juris-
diction and membership have since been expanded, however; it now admits to mem-
bership, I find, workers in a number of industries which utilize, process, or fabricate
wood, in addition to the venetian blind trade. Of its present membership, which
approximates 245-250 in number, about 75 are former members of the Respondent
labor organization.2
Rose M. White, the former financial secretary-business representative of the Re-
spondent, serves the Miscellaneous and Woodworkers Union in the same capacity.
Her claim for back salary, unpaid by the Respondent, has been satisfied by the newly
chartered organization.
On these facts, Miscellaneous and Woodworkers Union, No. 2565, presses its mo-
tion to dismiss Although notice of hearing in this matter was addressed to the-
Respondent labor organization-at its supposed present address-and named the-
Respondent as the party in interest, Rose M. White and the Respondent's original
counsel appeared for the newly chartered group. No question is raised, however,.
with respect to the propriety, at this time, of the Respondent's designation as the
party in interest, or the legal adequacy of service addressed to that organization.
Counsel for the Miscellaneous and Woodworkers Union-in effect assuming,
arguendo, the propriety of its presence in response to the notice as issued-raises only
the question of its liability under the Board's order as a "successor" of the labor
organization judicially declared to be liable for Viola Dodd's back pay. To that
question, then, we must now turn.
The question, insofar as I can determine, is one of first impression under the Act,
as amended. As a guide to its disposition, counsel for the labor organization now
involved referred, at one point, to a case which dealt with the obligation of a labor
union, or an unincorporated association, to respond in damages for any civil wrong
committed by its representatives or those of a "predecessor" organization. I have
found none of the latter type reported. In Corpus Juris Secundum a summary of
the available cases with resl3ect to "Associations" suggests that such organizations
will be held liable to creditors for their own torts, and their own contractual obliga-
tions validly incurred, in the event of any duly authorized and effective reorganiza-
tion, consolidation or dissolution, claimants in tort or contract would appear to be
entitled to follow any association assets distributed at the time of the change. Noth-
ing I can find, however, suggests any clearly defined rule as to the right of a judgment
creditor or any other claimant to look to the assets of a true "successor" organization
1 No motion of concurrence appears to have been presented, however, and the record
contains no substantial or reliable evidence that a vote was taken. In the absence of any
vocal dissent, acceptance of the new charter would seem to have been effected by "tacit"
acquiescence
2 The fact that 75 of the Respondent's old members now hold membership in the Mis-
cellaneous and Woodworkers Union appears in the record as part of a rejected offer of
proof ; in the interest of a complete record, I have reversed my ruling and cite the fact
for whatever value it may have , if any.
VENETIAN BLIND WORKERS' UNION 783
for satisfaction . See Crawford v. Athletic Assoc. of University of Nebraska, 111
Iowa 736, 82 N. W 944 (1900); cf. Citizens Mutual Fire and Lightning Ins. Society
v. Schoen, 105 S. W. 2d 43; Port of Mobile v. Watson, 116 U. S. 289, 6 S. Ct. 398,
403, and the cases therein cited. Although the available cases, therefore, may suggest
certain standards of judgment useful in the resolution of questions relative to the
status of any labor organization as the "successor" of another, nothing I have been
able to find in this field of inquiry provides any clear guide to the disposition of the
Union's basic contention.
In this posture of the matter, our attention must then, necessarily, be directed to
the Act, its basic objectives, and the cases under it which have dealt with the liability
of so-called "successor" employers; in these cases, perhaps, may be found the criteria
of judgment which will suffice to dispose of the question which the instant case
presents.
Ever since the Act's original enactment, the Board has operated under a statutory
mandate to require any "person" guilty of an unfair labor practice to take affirmative
action calculated to "effectuate the policies" of the legislation. Very early in its
history, however, the Board determined that effectuation of the Act's objectives would
require the issuance of remedial orders directed to the "successors and assigns" of
any respondent found guilty of unfair labor practices. Hill Bus Company, 2 NLRB
781, 800. Its orders in this respect became the subject of the Supreme Court's judi-
cial scrutiny in 1942, for the first time. Southport Petroleum Co. v. N. L. R. B., 315
U. S. 100, at 106-107. The respondent employer in that case alleged, in response
to a petition for the enforcement of a Board order, that it had been dissolved and
succeeded by a "separate and distinct entity" with jurisdiction over the plant at which
the alleged unfair labor practices had occurred; it applied for leave to adduce addi-
tional evidence before the Board in support of these allegations and appealed the
enforcement order of the circuit court of appeals which, in effect, had denied the
application. With respect to the issue thus raised, the Supreme Court declared that.
If there was merely a change in name or in apparent control there is no reason
to grant the petitioner relief from the Board's order of reinstatement; instead,
there is added ground for compelling obedience. Whether there was a bona fide
discontinuance and a true change of ownership-which would terminate the
duty of reinstatement created by the Board's order-or merely a disguised
continuance of the old employer, does not clearly appear, and accordingly is a
question of fact properly to be resolved by the Board on direct resort to it, or
by the court if contempt proceedings are instituted.
The additional evidence was immaterial for the further reason that the Board's
order ran not only to the petitioner , but also to its "officers , agents, successors,
and assigns." Granting the truth of every one of petitioner's allegations, it still
is possible that the Board's order may yet be the basis-and the indispensable
basis-of liability on the part of any of these persons regardless of any present
incapacity of petitioner to perform , or liability on its part for failure to perform,
its duty of reinstatement. . . .
The petitioner's allegations are immaterial with respect to the back pay provi-
sion in the Board 's order for like reasons and because some liability in this
respect unquestionably exists, although for a disputed period of time. [Emphasis
supplied.)
It has since been pointed out in a number of cases, generally , that the Act was in-
tended to prevent, in the public interest, industrial strike which tends to burden inter-
state commerce ; that it was not enacted to enforce private rights ; and that the
remedies which the Board is authorized to prescribe have little analogy to the com-
mon law remedies for the collection of debts. N L. R B. v. Adel Clay Products Co.,
134 F. 2d 342, 346 (C. A. 8); N. L. R. B. v. Colten, 105, F. 2d 179, 182-183 (C. A.
6); see National Licorice Co. v. N. L. R B., 309 U S. 350, 363. In 1945, however,
the Supreme Court had further occasion to consider, specifically, the sweep of the
Board's remedial orders Regal Knitwear v. N L R. B, 324 U. S. 9, at 13-15. In
this case, the Court delared that:
The Federal Rules of Civil Procedure provide that- "Every order granting an
injunction and every restraining order . . . is binding only upon the parties to
the action , their officers , agents, servants , employees , and attorneys , and upon
those persons in active concert or participtation with them who receive actual
notice of the order by personal service or otherwise ." [ Rule 65 ( d).] This is
derived from the common-law doctrine that a decree of injunction not only
binds the parties defendant but also those identified with them in interest, in
"privity" with them , represented by them or subject to their control . In essence
784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it is that defendants may not nullify a decree by carrying out prohibited acts
through aiders and abettors , although they were not parties to the original
proceeding.
The term "successors and assigns " in an enforcement order of course may not
enlarge its scope beyond that defined by the Federal Rules of Civil Procedure.
Successors and assigns may, however, be instrumentalities through which de-
fendant seeks to evade an order or may come within the description of persons
in active concert or participation with them in the violation of an injunction.
If they are, by that fact they are brought within scope of contempt proceedings
by the rules of civil procedure. We have indicated that Labor Board orders are
binding upon successors and assigns who operate as "merely a disguised continu-
ance of the old employer." Southport Petroleum Co. v. N. L. R. B., 315 U. S.
at 106. We have also said of an injunction to restrain violation of the Fair
Labor Standards Act, which is somewhat analogous to Labor Board orders, that
"Not only is such an injunction enforceable by contempt proceedings against the
corporation , its *agents and officers and those individuals associated with it in
the conduct of its business , but it may also, in appropriate circumstances, be
enforced against those to whom the business may have been transferred, whether
as a means of evading the judgment or for other reasons." Walling v. Reuter
Co., 321 U. S. 671, 674. In both of these cases the reference is not merely to
succession, but to a relation between the defendant and the successor which
might of itself establish liability within the terms of Rule 65.
it is apparent from Rule 65 , . . . that whether one brings himself in
contempt as a "successor or assign " depends on an appraisal of his relations and
behavior and not upon mere construction of terms of the order. [Emphasis
supplied.]
It is within the frame of reference established by the language quoted, in my opinion,
that a rationale sufficient to justify disposition of the present case must be found.
In fairness to the Miscellaneous and Woodworkers Union, it should be noted at
the outset that the Board 's order in this case went only to the Respondent and its
agents; its successors and assigns were never specifically designated as subject to the
order. The Board's order was issued on December 26, 1950. Within 3 days, on
December 29, 1950, the Board issued its first order against a respondent union, its
officers, agents , successors , and assigns . The Electric Auto-Lite Company, 92 NLRB
1073, 1081. No reason for the change was stated
This fact however , in my opinion , ought not to be considered dispositive of the
case. If the Miscellaneous and Woodworkers Union, on the facts, may properly be
characterized as a "disguised continuance " of the Respondent , in active concert or
participation with it, and identified with it in interest , the relatonship between these
organizations would seem to be sufficient to establish the liabilty of the newly char-
tered group , under the Board's original order , even in the absence of language direct-
ing the Board's mandate to the Respondent 's successors and assigns . See the South-
port Petroleum and Regal Knitwear cases. As the Supreme Court declared in the
last-cited matter:
It is apparent from Rule 65 that whether one brings himself in contempt
as a "successor or assign " depends on an appraisal of his relations and behavior
and not upon mere construction of the terms of the order.
In deference to this principle, therefore, we must look to the circumstances which
surrounded the formation of the Miscellaneous and Woodworkers Union, the better
to appraise correctly its relationship to the respondent labor organization.
Upon the entire record, I am satisfied that the Miscellaneous and Woodworkers
Union is nothing more than a reorganized and "disguised continuance " of the Re-
spondent in this case. It seems to be well settled , as a principle of general law, that
the reorganization of an association under a new name , with nothing more than a
partial change in the identity of its officers and members, will not suffice to destroy
the old association , if the objectives and purposes of the reorganized group are iden-
tical, or substantially identical, with those of the old organization. Corpus Juris
Secundum, "Associations," section 6; Crawford v Athletic Association of the Univer-
sity of Nebraska, supra. It also seems to be clear, as a matter of general law, that a
subordinate body does not cease to exist if its membership is changed by enlarge-
ment and its methods of internal administration are altered as the result of a con-
stitutional change affecting its parent society-or as the result of a change in its
charter. Corpus Juris Secundum , supra. Certainly , nothing more seems to have
been involved in the instant case.
The stated conclusion would seem to be warranted in this case , a fortiori, since
the Respondent 's dissolution , and the organization of the present union under its new
VENETIAN BLIND WORKERS' UNION 785
,charter , appear to have involved notably irregular procedure . Without attempting to
hold that conformity with regular constitutional requirements , in connection with a
.dissolution and reorganization , may be sufficient to create a new organization im-
mune from liability for the obligations of a predecessor , I believe, nevertheless, that
irregularity of procedure in connection with such a change certainly ought to be
entitled to some weight in connection with a determination as to whether the change
was real , or merely formal . See, e. g., R. C. Williams if Company, Inc., 107 NLRB
993.
Upon the entire record, then, there would seem to be no reason , in this case at
least , to conclude that the Board is confronted with any question as to the liability
,of a bona fide successor to the respondent labor organization-and there would seem
to be no need, therefore, to determine whether, as such a successor , Miscellaneous
and Woodworkers Union succeeded to the assets and contracts of the Respondent
with knowledge of the pendency of this unfair labor practice case. In an earlier case,
The Alexander Milburn Company , 78 NLRB 747, the Board held a bona fide suc-
cessor to be responsible for remedying the unfair labor practices of its predecessor,
,even though there was no showing that the successor was, in any sense, an alter ego
or "disguised continuance " of the predecessor , or that it had participated with the
predecessor in its violations of the Act. There, as in the instant case, the transfer
had occurred after the issuance of an Intermediate Report finding that the prede-
cessor had engaged in unfair labor practices , which findings were affirmed by the
Board after the transfer . And one ground for the Board's decision in the case found
expression in its finding that the bona fide successor had acquired the business of its
predecessor with knowledge of the pendency of the unfair labor practice case. See
also, Autopart Manufacturing Company, 91 NLRB 80; 92 NLRB 120; but cf.
Birdsall-Stockdale Motor Company, 101 NLRB 305, enfd . denied 208 F. 2d 234
,(C. A. 10). This problem, however, is clearly not before us.
It would seem to be sufficient to find, and I do find, that the Miscellaneous and
Woodworkers Union is merely a disguised continuance of the Respondent labor
organization, however bona fide the motives which led to its formation may have
been. As such , I find, it must answer for the back-pay liability of the Respondent
in this case , just as it answered Mrs. White 's own back-pay claim , for her unpaid
salary as the Respondent 's business agent. Cf Symns Grocery Co., et al., 103 NLRB
,622; Joseph E. Cote, et al., 101 NLRB 1486; L. B. Hosiery Co., Inc., et al., 88 NLRB
1000, enfd . 187 F. 2d 335 (C. A. 3); Rome Lincoln-Mercury Corp., 86 NLRB 397;
National Garment Company, 69 NLRB 1208. N. L. R. B. v. Hopwood Retinning
Co., 104 F. 2d 302 (C. A. 2). And its liability cannot be limited, as counsel for
the Union would argue in his brief, to the funds of the Respondent "taken over" by
the Miscellaneous and Woodworkers Union. I so find.
II. THE BACK PAY DUE
In its original decision , the Board found that the Respondent, on October 27,
1948, had caused the Ambassador Venetian Blind Company and Consolidated In-
teriors, Inc., to discriminate against Viola Dodd in regard to her hire and tenure of
employment to encourage union membership , and that the organization, since that
date, has caused and continues to cause the Ambassador Venetian Blind Company
and Consolidated Interiors , Inc., discriminatorily to refuse reinstatement to the
named dischargee . On the present record , however , the General Counsel officially
declared that the Respondent , on April 3, 1950 , had dispatched a letter to the Ambas-
sador Venetian Blind Company and Consolidated Interiors , Inc., advising them that
the organization had withdrawn any further objection to the reinstatement of Viola
Dodd and to her continued employment , except to the extent that such rights might
be affected by an agreement requiring membership in a labor organization as a con-
dition of employment , pursuant to the Act , as amended . Under the Board's order,
and general decisional doctrine , this action on the part of the Respondent terminated
its back-pay -liability ; the Board 's order directed that Dodd's loss of pay be computed
from the date on which the Respondent caused her discharge by the Ambassador
Venetian Blind Company and Consolidated Interiors , Inc. to a date 5 days after the
day on which the Respondent dispatched written notice that it had withdrawn its
objection to her reemployment . Upon the record , therefore , Dodd would appear to
be entitled to back pay for the period from October 27 , 1948, to April 8, 1950, less
certain deductions to be noted, including her net earnings , if any, in other employ-
ment during that period. I so find. _
338207-55-vol. 110 51
786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The record shows that Dodd was employed as a taper , 1 of 4, in the Ambassador
Venetian Blind Company's assembly department. At the time of her discharge, that
department had a total staff of "10 or 12" employees.3
The record shows that field examiners for the Board checked the payroll records
of the Ambassador Venetian Blind Company and Consolidated Interiors, Inc., to
determine the identity of their assembly department employees during the back-pay
period; that the payroll records of nine regular assembly department employees were
selected for detailed analysis; that their regular and overtime hours of work, as re-
corded for payroll purposes, were averaged on a monthly basis for the entire back-
pay period (contrary to the union counsel's contention); and that the rate of pay
which Dodd would have received as a taper if she had continued in the employ of the
firms involved was applied to the average monthly hours worked in the assembly
department by the employees selected for comparison, throughout the back-pay
period. The figures which resulted were offered in evidence to establish the gross
amount of back pay which Dodd could have earned, absent discrimination, if she had
continued in the employ of the firms previously named, throughout the back-pay
period, at established rates, and worked the average number of hours recorded for
the assembly department in each of the months involved. A copy of the computation
is appended to this Supplemental Intermediate Report marked "Appendix." It shows
that Dodd would have earned the gross amount of $3,168.46, as a taper in the employ
of the Ambassador Venetian Blind Company and Consolidated Interiors, Inc., during
the back-pay period. I so find.
Counsel for the Miscellaneous and Woodworkers Union has attacked these com-
putations as grounded in hearsay. And there can be no doubt that the summary
offered by the General Counsel to epitomize his investigation does have a hearsay
character; specifically, it represents a summary affirmation, under oath, based upon
material embodied in selected company records, chosen for analysis as substantially
all-inclusive , on the basis of material embodied in the records themselves and infor-
mation provided by A. E. Latham, a former partner in the Ambassador Venetian
Blind firm. I have been entirely satisfied, however, as to the reliable and probative
character of the summary. The field examiner who prepared it testified with respect
to the nature and extent of his investigation; counsel for the Miscellaneous and
Woodworkers Union has raised no question with respect to his ability or accuracy.
The record shows that the examiner's investigation covered the entire back-pay
period; that his calculations of the average time worked each month in the assembly
departments of the firms involved were based upon accurate payroll records main-
tained in the usual course of business by each company, for each of the regular em-
ployees in their respective assembly departments; and that the wage rates applied
to each monthly average figure, thus derived, equaled the rates which Dodd would
have been receiving had she remained in this type of work. I find, accordingly, that
the original payroll records utilized in the preparation of the summary would have
been admissible in evidence, under an exception to the hearsay rule, as regular busi-
ness entries ; that a sufficient number of the relevant and material records were physi-
cally consulted by the General Counsel's investigators; that the summary of their
investigation offered in evidence is a complete and accurate one; and that expedition
in the conduct of the public business warranted its receipt in evidence in lieu of the
voluminous original records otherwise admissible. At the time it was offered, I over-
ruled the objections of the Respondent; that ruling has been reconsidered, and is
hereby reaffirmed. See The Great Atlantic & Pacific Tea Co., 81 NLRB 1052.
In passing, it should be noted that the actual payroll records of the Ambassador
Venetian Blind Company and Consolidated Interiors, Inc., were available for inspec-
tion at the hearing and that they were, in fact, consulted by the Union' s counsel on at
least one occasion during his cross-examination of a witness.
Dodd's testimony, which I credit, establishes-contrary to the assertion of the
Union's counsel in his brief-that she registered for work at the California State
Employment Service office in Berkeley, and applied for unemployment compensation
benefits on November 19, 1948, approximately 3 weeks after her discriminatory
layoffs as previously found. Thereafter, I find, she reported to the employment serv-
ice office in connection with her search for work, and to renew her unemployment
compensation claims, on a number of stated occasions in December 1948, and Janu-
ary, February, March, April, and May 1949. Her last report in this series, on
May 28, 1950, coincided with the exhaustion of her unemployment compensation
benefits.
3 Dodd recalled four tapers, herself included, and "about seven" other persons, as com-.
prising the entire assembly department of the Ambassador Venetian Blind Company at the
time of the challenged discrimination.
VENETIAN BLIND WORKERS' UNION 787
In the light of well-established principles , it may be taken as datum in these cases
that a discriminatorily discharged employee, to be eligible for back pay, must have
made a reasonable attempt to obtain new employment during the period of discrimi-
nation. Accepted decisional doctrine has established, however, that the employee's
registration with the employment service will be accepted as conclusive evidence of
a reasonable search for employment, absent a showing that the employee, without
good cause, rejected or gave up desirable new employment, in fact. Harvest Queen
Mill & Elevator Company, 90 NLRB 320; Ohio Public Service Co., 52 NLRB 725,
enfd. 144 F. 2d 252 (C. A. 6).
' There is no evidence whatever, in the present record, that Dodd, at any time dur-
ing the period in which her employment service registration was active, or even during
the back-pay period as a whole, gave up or rejected desirable new employment, for
any reason.
Her testimony, which I credit, establishes that she sought work, independently, as
a dishwasher in a number of small restaurants in five named east bay communities
during November and December 1948, and that she renewed her search for this type
of work, in the Richmond area, during February, March, and April 1950.
The Respondent's counsel sought, earnestly, to impugn the veracity of her testi-
mony with respect to these efforts to find work by questioning her failure to seek work
as a waitress, her failure to seek Christmas employment in various department stores,
and her failure to testify that actual written applications had been left at any restau-
rant she visited. I am, however, entirely satisfied that Dodd's failure to make an
active search for waitress work or department store work ought not to deprive her
testimony that she actively sought work as a dishwasher of the weight which it would
otherwise deserve. Her inability to report that any restaurant took a written applica-
tion from her, likewise, ought not to be held against her. Such instances would, nor-
mally, be quite rare. Her testimony was given in a straightforward manner. I ob-
served no indication of guile in her demeanor or the statements she made. Her state-
ments as a witness, in my opinion , are entitled to credit , particularly in the absence
of any direct attack.
Dodd's testimony also establishes, to my satisfaction, that she sought, independ-
ently, to procure general factory work with seven named employers in the east bay
area during the 5-month period from January to May 1949. At some of the firms
named, she was encouraged to leave a written application; at others she was told that
it would be of no avail to do so. Her testimony indicates that she followed the advice
of the employment interviewer in each case. It also shows that 4 of the 7 employers
involved were revisited by her on one or more occasions during the period in question.
None, however, were able to offer her employment.
It is contended that Dodd never made a "diligent" effort to find a position . In view
of her employment service registration , no additional showing of personal diligence
can be required, as a matter of law. But even if it could be, her credible testimony
with respect to her own efforts would seem to be sufficient to satisfy the require-
ment . The Union 's counsel offered as evidence five letters from firms named by
Dodd , which indicated that they could find no record of her employment during the
back-pay period, or any application by her for employment. Over strenuous objec-
tion, I received the letters as exhibits. They were clearly subject to objection as hear-
say, and the Respondent made no attempt to show that the letter writers were not
available to give testimony in person . In the interest of expedition , however, I re-
ceived the exhibits as a summary , in effect , of the testimony they would have given
if called; it would clearly have been relevant , but, in my opinion , insubstantial and
hardly probative . Several letter writers explained the absence of any application in
their files with the statement that their application files for the back-pay period had
been destroyed . Under the circumstances , a present inability to find an application
could hardly counter positive testimony that one was made, oral or written. The
absence of evidence that Dodd was "employed" proves nothing, since she never said
she had been; and the inability of a foreman , in one case , to remember her, among
many, is hardly entitled to significant weight . Thus, even if the contents of the dis-
puted letters had been presented in legally admissible form, I would have been con-
strained to dismiss the evidence as of no legal significance.
In September 1949 , Dodd moved from Berkeley to El Sobrante , a suburb of Rich-
mond . At or about this time, also, she secured employment as a general houseworker
for a Mrs. Irene Hamilton of Richmond ; she appears to have been in the service of
Mrs. Hamilton, more or less on a part-time basis, continuously thereafter until June
1950 , subsequent to the end of the back -pay period . A summary of her earnings as
a houseworker during the period in issue will also be found at the end of this report,
marked "Appendix."
In January 1950, Dodd declared she reregistered for employment with the Cali-
fornia State Employment Service, affiliated with the United States Employment
788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Service, at its Richmond office. She was unable to produce the registration card
which she received at the time, and declared , as a witness , that it had either been
delivered to a Board field examiner or mislaid . Her testimony in this connection was
not challenged on cross-examination . Despite the absence of documentary evidence
to support it, I find it worthy of credit.
In this posture of the record I find , as a matter of fact and law, that Dodd was
engaged in a reasonable effort to find work subsequent to her discriminatory layoff or
discharge , at least up to the end of May 1949 , when her unemployment compensation
benefits were exhausted . Under established Board principles , as previously noted,
her registration with the California State Employment Service as of November 19,
1948, may be taken as conclusive evidence of the fact that she was so engaged. Har-
vest Queen Mill & Elevator Company, 90 NLRB 320, 321. In addition , however, as
I have previously found, she appears to have made a number of efforts, during the
period in question , to secure general factory work or restaurant employment. There
is no indication that she limited her search for work to positions which involved the
use of any special skill; such inferences as may be drawn from her testimony would
warrant , in fact , a contrary conclusion . And in four instances , at least , she reapplied
for work at firms previously contacted . Cf. Seamprufe , Incorporated, 106 NLRB
1143. There has been no evidence offered to show that she ever refused a specific
offer of desirable new employment . Contrary to the implied contention of union
counsel , there is no requirement in law, or decisional doctrine , that Dodd-in order
to establish a right to back pay-must show that she applied for the same type of
work as that from which the Respondent 's action had excluded her.
In the face of the evidence to which reference has been made, counsel for the
Miscellaneous and Woodworkers Union has continued to assert with vigor, neverthe-
less, his contention that Dodd actually "withdrew" from her customary field of work,
and, in effect, took a "very pleasant vacation " for which she now expects reimburse-
ment at the expense of the Respondent 's successor . For the period from October 27,
1948, to May 31 ; 1949, I have found this contention , in its unqualified form, to be
without merit . Insofar as the months of June, July, and August 1949 are concerned,
however, it warrants further examination.
In the Harvest Queen Mill & Elevator case the Board declared that it would regard
registration with a State employment service office as "conclusive evidence" that a
reasonable search for employment had been made. It went on to say that if evidence
showing a "failure of registration" were adduced , additional evidence could then be
presented to prove that no other reasonable effort to obtain desirable new employment
had been made . In Dodd's case , throughout the period of her continued reports to
the employment service office in connection with the unemployment compensation
claim she filed there could obviously have been no failure of registration ; her applica-
tion for employment would necessarily have remained in the Service 's "active" file,
and she would have been at all times, subject to a job referral . With the exhaustion
of her benefit rights, however , a different situation arose. In this connection, I find,
official notice may be taken of the conventional practice in State employment service
offices operated under the guidance of the United States Employment Service-and
in the California State Employment Service in particular-pursuant to which regis-
trants for employment not currently filing unemployment compensation claims, are
urged, nevertheless , to visit the employment service office at stated intervals, while
unemployed , to keep their registration "active" and to assure their consideration for
available work . Failing such registration renewals, applications are relegated, ordi-
narily, to "inactive" files, and receive no review in connection with employer orders.
I so find. Dodd's registration card, for example , bore a stamped admonition to "Re-
new Every 30 Days"; I have taken official notice, therefore , that the employment
service intended to instruct her, thereby , to revisit an employment service office every
30 days as long as her unemployment continued , if she wished her registration for
work to remain in the service 's "active" file.' Within the intent of the Harvest Queen Mill & Elevator case, it would certainly
seem that failure to keep one 's registration "active" with the employment service
ought to be considered a "failure" of registration . Such was the case with Dodd, in
the summer months to which reference has already been made-at least insofar as
the months of July and August were concerned . And although the Respondent pro-
duced no "additional evidence" to negate the inference that reasonable efforts to
obtain desirable new employment were made by Dodd during those months, the dis-
criminatee herself was silent with 'respect to her efforts to secure employment during
the months in question . I find that she made no "reasonable " effort to find work
during this period. Her registration , which would have remained "active" in the em-
ployment service office during June, would have lapsed in July and August. In so
holding, however , I have given no weight to the contention of union counsel that
VENETIAN BLIND WORKERS' UNION 789
Dodd 's back-pay rights should be limited to the maximum period for which unem-
ployment compensation is payable under California law; my conclusion , as noted, is
based upon Dodd 's failure to "maintain" her registration as an active one.
With the advent of September , Dodd secured employment as a general house-
worker. The work appears to have been undertaken in good faith , and her earnings
were not insubstantial.
The Respondent sought to elicit an admission from Dodd that she and her em-
ployer had made no tax remittances to the United States Treasury in the course of
this employment , as a result of the recent amendments to the Social -Security Act with
respect to the payment of taxes in connection with domestic employment; the amend-
ments, however, did not become effective until January 1, 1951, and the first tax
payments were due for the first quarter of that year . They would have had no appli-
cation to Dodd's 1949-1950 employment , and failure to pay them , obviously , cannot
impugn the effectiveness of her declaration that her gross interim earnings approxi-
mated a certain figure, shown in the record. The Union 's counsel also contended that
Dodd 's estimate of earnings was inaccurate , since it included no allowance for lunches
occasionally furnished by her employer . Dodd admitted receiving occasional
lunches, but the record provides no criteria by which to judge their value or the total
amount involved . Counsel , I find , has not established , by substantial evidence that
Dodd's interim earnings as a houseworker were greater than she admitted in specific
terms.
Dodd's testimony that she reregistered for work at the Richmond office of the State
employment service in January 1950, and that she had sought reemployment as a
candy packer with a previous employer, unsuccessfully , sometime earlier in that year,
has not been controverted . I find that Dodd reentered the labor market in September
1949 and engaged in a reasonable search for employment , successful in part , there-
after.
111. CONCLUSIONS
Upon the entire record , I find that Dodd , absent any discrimination , would have
remained in the employ of the Ambassador Venetian Blind Company and Consoli-
dated Interiors , Inc., from October 27, 1948, to April 8, 1950 , both dates inclusive;
that she was engaged in a reasonable search for alternative employment between the
date of her discharge and June 30 , 1949 ( the end of the month after the one in which
she made her last visit to an employment service office in connection with an unem-
ployment compensation benefit claim ), and from September 1, 1949 , to the end of the
back-pay period . In this posture of the case , she would appear to be entitled to back
pay as follows:
1948-4th Quarter--------------------------------------------- $353.91
1949- 1st Quarter--------------------------------------------- 477.24
1949-2nd Quarter--------------------------------------------- 589.24
1949-3rd Quarter:
Gross Back Pay----------------------------------- $ 591.80
--Deduct : Gross Back Pay for July and August------ 376. 81
Total Back Pay-3rd Quarter ------------------ 214. 99
Interim Earnings------------------------------- 40.00
Net Back Pay-3rd Quarter--------------------------------- 174. 99
1949-4th Quarter:
Gross Back Pay-- --------------------------------- $ 593.80
Interim Earnings ------------------------------- 130.00
Net Back Pay-4th Quarter--------------------------------- 463. 80
1950-1st Quarter:
Gross Back Pay----------------------------------- $ 517.64
Interim Earnings------------------------------- . 70.00
Net Back Pay-1st Quarter--------------------------------- 447.64
1950-2nd Quarter (4/1-4/8):
Gross Back Pay--------------- =------------------- $44.,83
Interim Earnings (5/20th X$60.00) -------------- 15.00
Net Back Pay-2nd Quarter--------------------------------- 29. 83
Grand Total-Net Back Pay------------------------------ 2,536.65
[Recommendations omitted from publication.]
790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Appendix
1. GROSS BACK PAY COMPUTATION
1948 : Average Hours Quarterly
Ambassador Venetian Blind Co .: Reg. OT Rate Gross Total
10/27-11/16 ------------------------------------- 1 70.5 ------ $1.125 $79.3
11/17-11/30------------------------- -------- 70 ------ 1.175
1
82. 25 $353.91
12/1-12/31-------------------------------------- 164 . 3 ----- -------- 192.35
1949:
1/1-1/31 - --------------------------------------- 136.5 ------ -------- 160.39
2/1-2/28------------------------------------- 131.2 ------ -------- 154.16 477.24
3/1-3/31 ---------- - - ----------------------- 132.8 ------ 1.225 162.69
4/1-4/30 -------------------------------------- 171 ------ -------- 209.48
5/1-5/31 --------------------------------------- 147 ----- -------- 180
. 08 589.24
6/1-6/30 --------------------------------------- 163 ----- -------
199.68
7/1-7/31 -------------------------------------- 156.6 ------ --------
191.8
8/1-8/31 --------------------------------------- 151 ----- --------
4
184. 97 591.86
9/1-9/30 ---------------------------------------- 175.5 ------ --------
214. P9
10/1-10/24------------------------------------- 105.3 ------ -------- 129.00
Consolidated Interiors , Inc.: 59.3.80
10/25-11 /30------------------------------ ---- 2 210 . 3 11 -------- 257.69
12/1-12/31 -------------------------------------- 153 . 25 8.9 -------- 207.11
1950:
1/1-1/31 ---------------------------------- ----- 150.7 - ---
1.225 187.6
2/1-2/28------------------------------------- 125.4 ------ --------
7
156.08 517.64
3/1-3/31--- ---------------------------------- - 141 ------ --------
173.99
4/1-4/8----- -----------------------------------
36.3 ------ -------- 44 . 83 44.83
Total -----------------------------------------------------------------------------
3,168.46
1 Employees: Beatrice De Weese, Minnie Freeze, Katherine Irvin, Meta Possin, Pauline Real, Jean
Sheppard, Bonita Walden San Fillipo, Kathleen Zeppa, June White (did not later transfer to Consolidated
Interiors).
2 Beatrice De Weese, Minnie Freeze, Katherine Irvin, Meta Possin, Pauline Real, Jean Sheppard,
Bonita Walden San Fillipo, Kathleen Zeppa, Kathryn Walberg (had worked for Ambassador Venetian
Blind Co. until October 1948).
11. INTERIM EARNINGS
Mrs. Irene Hamilton, 6090 Arlington, Richmond, California
September 1949----------------------------------------------- $40.00
October 1949------------------------------------------------- 25.00
November 1949----------------------------------------------- 25.00
December 1949----------------------------------------------- 80.00
January 1950------------------------------------------------- 20.00
February 1950------------------------------------------------ 25.00
March 1950--------------------------'=----------------------- 25.00
April 1950--------------------------------------------------- 60.00
NEw JERSEY PORCELAIN COMPANY, PETITIONER and INTERNATIONAL
UNION OF ELECTRICAL , RADIO AND MACHINE WORKERS, CIO
NEW JERSEY PORCELAIN COMPANY and INTERNATIONAL UNION OF
ELECTRICAL , RADIO AND MACHINE WORKERS, CIO . Cases Nos.
4-RM-161 and 4-RC-2486 . November 4, 1954
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Alan Zurlnick, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
110 NLRB No. 119.