Biscayne Television Corp.

National Labor Relations Board - Board Decisions

May 31, 1962

137 N.L.R.B. 430 (N.L.R.B. 1962)

430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
warranting a finding that the Estrellita comes within the jurisdiction
of the Act, we defer to the law of the flag , which is itself a substantial
contact ,10 and find that we are without jurisdiction to proceed. We
shall , therefore , dismiss the petition.
[The Board dismissed the petition.]
MEBIBER RoDGERs , concurring :
This is yet another one of those cases in which the Board has been
asked to assert jurisdiction over vessels owned by American ship-
owners, but registered under the flags of foreign nations and operated
almost entirely by foreign citizens.11-
While I am not persuaded that the so -called jurisdictional factors
here are essentially different from those in a number of cases where
the Board has justified an assertion of jurisdiction , I concur in dis-
missing the instant petition-but for the reasons I asserted in my
dissenting opinions in the other cases.'2
10 See Lauritzen v. Larsen. 345 U.S. 571, 584.
11 West India Fruit and Steamship Company, Inc., 130 NLRB 343; Pen insular d Occi-
dental Steamship Company, Inc., 132 NLRB 10; Hamilton Bros., Inc., 133 NLRB 868;
Eastern Shipping Corporation, et at., 132 NLRB 930; United Fruit Company, 134 NLRB
287; Owens-Illinois Glass Company , 136 NLRB 389. See also Grace Lind, Inc., 135
NLRB 775.
19 See Sociedad National de Marineros de Honduras (United Fruit Company) v. Frank
IV. McCulloch, Chairman, 300 F. 2d 222 (D.C.D.C.) ; Empressa Hondurena De Vapores
(United Fruit Company) v. Ivan C. McLeod, Regional Director, 201 F. Stipp. 82 (C.A. 2).
Owens-Illinois Glass Co. v. McCulloch, et at., 50 LRRDM 2041 (D.C.D.C.), April 13, 1962,
enjoining representation election order in Board Case No. 12-RC-1293.
Biscayne Television Corporation and Local No. 666, Interna-
tional Alliance of Theatrical Stage Employees and Moving
Picture Machine Operators of the United States and Canada,
AFL-CIO
Biscayne Television Corporation and Local 780, International
Alliance of Theatrical Stage Employees and Moving Picture
Machine Operators of the United States and Canada, AFL-CIO
Biscayne Television Corporation and Motion Picture Film Edi-
tors, Local 780, International Alliance of Theatrical Stage
Employees and Moving Picture Machine Operators of the
United States and Canada, AFL-CIO and National Associa-
tion of Broadcast Employees and Technicians , AFL-CIO.
Cases Nos. 10-CA.-.4.94.x, 12-CA-587, and 12-RC-318. May 31,196?
SUPPLEMENTAL DECISION AND ORDER
On November 30, 1959, the Board issued its Decision and Order in
the above-entitled cases,' finding that the Respondent interfered with,
1125 NLRB 437.
137 NLRB No. 43.
BISCAYNE TELEVISION CORPORATION 431
restrained, and coerced its employees in the exercise of their statutory
rights in violation of Section 8 (a) (1) of the Act, and that it dis-
charged newsroom employees Cal Marlin, Charles Filer, and Joseph
Lipari and demoted Hal Weand on August 12, 1958, for union activity
in violation of Section 8 (a) (3). With respect to the 8 (a) (1) viola-
tion, the Board provided the usual remedy, ordering that the Respond-
ent cease and desist from its 8 (a) (1) conduct and post a notice to that
effect.
With respect to the 8(a) (3) violations, the Board's remedy ordered
immediate and full reinstatement of the discriminatees to their former
or equivalent positions with backpay, dismissing, if necessary, all
persons hired subsequent to the date of discrimination. It was also
provided that if there was not then sufficient work available for the
discriminatees, the Respondent was to distribute all available posi-
tions among all of the eligible employees on a nondiscriminatory basis
and place the discriminatees on a preferential hiring list. The remedy
further stated that since the date of the discrimination, the Respond-
ent may have permanently reduced its newsroom operation for non-
discriminatory economic reasons, and that one or more of the dis-
criminatees might have been discharged in the work-force reduction
even if the selection had been made on a nondiscriminatory basis.
The Board stated that this possibility was to be taken into considera-
tion in determining the amounts of backpay due them.
On April 21, 1961, following a petition by the Board for enforce-
ment of its Decision and Order, the United States Court of Appeals
for the Fifth Circuit handed down its opinion, in which it affirmed the
Board's findings with respect to the 8(a) (1) and 8(a) (3) violations,
but found the Board's remedy improperly left the issue of economic
management changes to the compliance stage of the instant proceed-
ing and ordered the instant case remanded for further proceedings
with regard to that issue.2
On February 10, 1962, following a supplemental hearing held pur-
suant to the court's remand decree, Trial Examiner John H. Dorsey
issued his Supplemental Intermediate Report, a copy of which is
attached hereto, finding, in effect, that the discriminatees herein had
not been discriminatorily discharged or demoted and recommending
that the Board find that they are not entitled to reinstatement or back=
pay. Thereafter, the General Counsel filed exceptions to the Inter-
mediate Report and a supporting brief.
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 [Members Rodgers, Leedom, and Fanning].
The Board has reviewed the rulings made by the Trial Examiner
at the supplemental hearing and finds that no prejudicial error was
2 N.L.R.B. v. Biscayne Television Corporation, 289 F. 2d 338 ( C.A. 5).
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
committed. The rulings are hereby affirmed. The Board has con-
sidered the Supplemental Intermediate Report, the exceptions and
brief, and the entire Supplemental record in this case, and finds merit
in the exceptions of the General Counsel and accordingly adopts the
findings, conclusions, and recommendations of the Trial Examiner
only to the extent consistent herewith.
In accord with the court's opinion, which is the law of the case, we
reject the Trial Examiner's findings that the Respondent discharged
Marlin, Filer, and Lipari and demoted Weand on the basis of com-
parative ability, and we reaffirm the Board's 8(a) (3) findings with
respect to them.
With respect to the remedy, it was stipulated that on June 6, 1960,
Filer died; that on October 17 and 20, 1960, respectively, Marlin and
Lipari declined offers of reinstatement; and that on January 6, 1961,
Weand resigned. We therefore find, in accord with the Trial Ex-
aminer, that the Respondent has been thereby relieved of its obliga-
tion to offier these discriminatees reinstatement to their former or
equivalent positions. We further find that Respondent's backpay
obligation with respect to each employee terminated no later than the
dates set forth above.
The question remains as to whether the Respondent's current back-
pay obligation terminated at any time before the above dates. The
primary purpose of the remand and the supplemental hearing was to
afford the Respondent the opportunity to establish that subsequent
to the August 12, 1958, discriminatory discharges and demotion, it
made economic management changes of such a nature as to relieve it
of some or all of its backpay obligation, as set forth in the Board's
remedy. The Respondent thereupon sought to show that during the
nearly 3-year period since the original hearing in this proceeding, it
successfully operated its newsroom with 2 to 3 employees, as compared
with the 6 employees employed before the date of discriminations.
The record, however, fails to establish the Respondent's claim. Thus,
there is an unexplained increase in the Resl;,ndent's total newsroom
expenditures for stringer, or free-lance, story purchases from $690
in 1958 to $750 in 1961, together with a daily average increase in ex-
penditures for that purpose of from $1.89 in 1958 to $2.90 in 1961.
There is also the omission from the Respondent's newsroom labor
costs of any expenses chargeable to James Jenkins and Roger Burn-
ham, who the Respondent conceded had assisted in newsroom opera-
tions during this period.' Additionally, there is no evidence that the
Respondent made any significant economic management changes
subsequent to the date of the discharges. In these circumstances, we
3 The Respondent ' s only explanation for the omission of Jenkin 's expenses was that he
was apparently only a temporary employee . The Respondent described Burnham as a
night editor who from time to time assisted the newsroom in camera assignments.
BISCAYNE TELEVISION CORPORATION 433
conclude that the Respondent has failed to establish, and there is no
basis in the record for finding, that absent the discriminations, the
Respondent would have terminated Filer, Marlin, or Lipari, or de-
moted Weand, at any time after August 12, 1958, and before the
respective dates of Filer's death, Marlin's and Lipari's refusal of rein-
statement, and Wand's resignation. We therefore find that the Re-
spondent has failed to establish that its backpay obligation terminated
at any time before such dates.
Accordingly, we fund that the estate of Charles Filer is entitled to
backpay from August 12, 1958, to the date of his death, on June 6,
1960; that Cal Marlin is entitled to backpay from August 12, 1958, to
October 17, 1960, the date of his refusal of reinstatement; that Joseph
Lipari is entitled to backpay from August 12, 1958, to October 20,
1960, the date of his refusal of reinstatement; and that Jay Weand
is entitled to backpay from August 12, 1958, to January 6, 1961, the
date of his resignation.
It is hereby ordered that the Board's Order in the above-entitled
case be, and the same hereby is, amended by striking paragraph 2(a)
thereof and by inserting in lieu thereof the following :
(a) Make Cal Marlin, the estate of Charles Filer, Joseph Lipari,
and Jay Weand whole for any loss of pay suffered by these em-
ployees by reason of the discrimination against them, in the
manner set forth in the section in the Intermediate Report entitled
"The Remedy," as modified by the Board's Supplemental Decision
and Order.
It is further ordered that the Appendix to the Board's decision in
the above-entitled case be, and the same hereby is, amended by striking
the fifth paragraph of the "Notice to All Employees" therein set forth
and by substituting in lieu thereof the following :
WE WILL make Cal Marlin, the estate of Charles Filer, Joseph
Lipari, and Jay Weand whole for any loss of earnings resulting
from the discrimination against these employees.
SUPPLEMENTAL INTERMEDIATE REPORT PURSUANT TO BOARD
ORDER UPON REMAND FROM THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
STATEMENT OF THE CASE
The Board issued its Decision and Order on November 30, 1959 (125 NLRB 437),
in which it held, inter alia, that Biscayne Television Corporation, herein called Re-
spondent, had, on August 12, 1958, discharged Cal Marlin, Charles Filer, and Joseph
Lipari; and demoted Jay Weand in violation of the Act. It ordered Respondent to
offer the four employees:
immediate and full reinstatement to their former or substantially equiv-
alent positions without prejudice to their seniority or other rights and privileges
previously enjoyed and make each whole for any loss of pay each has suffered
by reason of the discrimination against him , in the manner set forth in the section
in the Intermediate Report entitled "The Remedy" as modified herein.
649856-63-vol. 137-29
434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"The Remedy" which the Board found necessary to effectuate the policies of the Act
relative to the discriminatory discharges and demotion is (125 NLRB at pp. 438, 439) :
We have found, in agreement with the Trial Examiner, that the Respondent
unlawfully discriminated against Cal Marlin, Charles Filer, and Joseph Lipari
by discharging them, and against Jay Weand by demoting him. However, it
appears that since the date of the discharges and the demotion the Respondent
may have permanently altered its method of operations, so that it no longer
requires the same number of employees in its news department as it did prior to
the discharges and the demotion. It is therefore possible that some of these
employees might have been affected in such a curtailment of operations, absent
the Respondent's unfair labor practices. The record, however, furnishes no
basis for determining the order in which these employees might have been dis-
charged or demoted. Under these circumstances, we shall order the Respondent
to offer these employees immediate and full reinstatement to their former or
substantially equivalent positions, without prejudice to their seniority and other
rights and privileges, and in the event that there is insufficient work for Marlin,
Filer, and Lipari, or in the event that Weand's former position has been dis-
continued, we shall order the Respondent to dismiss, if necessary, all persons
newly hired after the Respondent's discrimination If there is not then sufficient
work available for them, all available positions shall be distributed among all
of the eligible employees without discrimination against any employee because
of concerted activities, in accordance with the system of seniority or other non-
discriminatory practice heretofore applied by the Respondent in the conduct of
its business. The Respondent shall place those employees, if any, for whom
no employment is available, on a preferential list, with priority in accordance
with such system of seniority or other nondiscriminatory practice heretofore
applied by the Respondent in the conduct of its business, and thereafter offer
them reinstatement as such employment becomes available and before other
persons are hired for such work.
We shall order the Respondent to make whole those employees against whom
it has discriminated for any losses that they may have suffered because of the
Respondent's discrimination, by payment to each of them of a sum of money
equal to the amount that he normally would have earned as wages from the
date of such discrimination to the date of the offer of reinstatement, or place-
ment on a preferential list, as the case may be, less his net earnings during said
period, the backpay to be computed on a quarterly basis in the manner estab-
lished by the Board in F. W. Woolworth Company.. .
As it is possible, however, that one or more of these employees might have
been discharged in the reduction of the work force even if the Respondent's
selection has been made on a nondiscriminatory basis, this possibility will be
taken into consideration in determining the amounts of backpay due to these
employees, in compliance with our Order herein.
The Board petitioned the United States Court of Appeals for the Fifth Circuit for
enforcement of its Order. The opinion of the court issued on April 21, 1961 (289
F. 2d 338 C.A. 5).i The court enforced the Board's Order except as to "The Remedy"
which it modified. The court held:
We think this [The Board's Remedy] is artificial. It is fraught with much
uncertainty which will provoke more controversy, not less. What, and all,
these employees are entitled to is the right each would have enjoyed under
employment policies and practices customarily followed by this Employer had
they not been discriminatorily discharged or demoted. Neither the status as a
victim of discrimination nor union membership affords any added rights of
any kind. The discriminatee is neither better, nor worse, off. If under the
Employer's [Respondent's] established employment practices, a discriminatee, at
the time of the layoff, had a right to displace another person in the same job,
or in some other job, or had a right to priority in filling vacancies or new posi-
tions occurring subsequently in such job or some other jobs or had any other
such priorities, then the Employer must offer reinstatement (and back wages)
in such jobs for such times as such employment practices would accord. The
obverse is equally plain. Under the Act, discrimination by the Employer does
not compel it to make work for these persons. Such discrimination does not
require the Employer to discharge or layoff others to provide jobs for these
discriminatees. Nor does it compel the Employer to give a priority right in
1 N.L R.B. v. Biscayne Television Corporation
BISCAYNE TELEVISION CORPORATION 435
rehiring as old jobs become vacant or new positions are created. What the Act
does in this situation is twofold: first, it prohibits altogether anti-union discrim-
ination; second, it requires the Employer to accord to these persons whatever
rights, privileges and priorities-but no more-they would have had under the
nondiscriminatory employment customs, practices and policies followed and
applied by this particular Employer in the exercise of its management preroga-
tives. NLRB v. American Steel Building Co., 5 Cir., 1960, 278 F. 2d 480.
It is obvious from the Board's decision and what we have briefly stated that
further proceedings before the Board are essential. It could be most unfair to
leave some or all of these contingent uncertainties to coercive compliance pro-
ceedings where mistaken action runs the risk of contempt. The further pro-
ceedings will determine whether these economic management changes have been
made, and if so, with respect to each discriminatee the right, if any, to reinstate-
ment, back wages and related problems in accordance with the principles here
announced. Consequently, while thus modified, we approve the order and in
effect enforce it, the matter is remanded for further proceedings.
The remedy as specified by the court in its opinion is the law of the case. '
Pursuant to the court's remand the Board issued its Order reopening the record
and remanding the proceeding to the Regional Director for further hearing. The
hearing was held before John H. Dorsey, the duly designated Trial Examiner, at
Miami, Florida, on October 3, 1961. Respondent and the General Counsel were
each represented by counsel, and each filed a brief.2
1. THE DETERMINATIONS TO BE MADE
Counsel for the General Counsel contended during the course of the hearing
and argues in his brief that the rights of the discriminatees to reinstatement and
backpay, as provided for in the Board's Order, are modified by the court's opinion
only if Respondent made "economic management changes after the discriminatory
change of August 12, 1958" (emphasis supplied); s or, after the close of the hearing
on the issues raised by the pleadings. I do not so construe the court's opinion.
According to the court, "the Board acknowledges that reinstatement and conse-
quent reimbursement of backpay of the discriminatees cannot be forced on the
Employer [Respondent] if the job of these persons has been abolished by reduction
in forces"; and "the Employer was free to establish that by virtue of these economic
nondiscriminatory reasons [reduction in forces], the job of such discriminatee was,
or has become, no longer available. In such event the reinstatement (and backpay)
would cease as of such moment" 4 [emphasis supplied]; and "The further proceedings
[on remand] will determine whether these economic management changes [reduc-
tion in forces] have been made, and if so, with respect to each discriminatee the
right, if any, to reinstatement, back wages and related problems in accordance with
the principles here announced." 5
There is nothing in the court's opinion which makes the application of the prin-
ciples enunciated therein dependent on a finding that Respondent "had permanently
changed its method of operation." 6 [Emphasis supplied.] A finding that a change
is "permanent" could only be founded on speculation.
II. FINDINGS OF FACT
The findings of fact in the Board's Decision and Order (125 NLRB 437) are
res judicata. They are incorporated herein by reference thereto. Suffice to say:
insofar as here material, the Board found that Respondent had, on August 12, 1958.
discharged Marlin, Filer, and Lipari and demoted Weand in violation of the Act;
and, as remedial action ordered reinstatement and backpay for each of them in the
manner set forth in the section of its Decision captioned "The Remedy" (125 NLRB
at 440 and 438-439). The court, as stated, supra, enforced the Board's Order except
as to "The Remedy" which it modified?
2 Counsel for the Charging Party entered an appearance subsequent to the hearing. He
did not file a brief.
3 Quoted from the General Counsel's brief.
* 289 F 2d at p. 339.
6 289 F 2d at p. 340.
6 Quoted from the Board's Order Reopening Record and Remanding Proceeding to
Regional Director for Further Hearing, Issued July 24, 1961.
7 289 F. 2d at 340.
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. Facts adduced at hearing on remand
Immediately prior to the discriminatory discharge-demotion occurrence Respond-
ent employed in its news department five photographer-reporters-Ben Silver, Dick
Lobo, and discriminatees Weand, Marlin, and Filer; also, one laboratory technician
not qualified as a photographer-reporter, discriminatee Lipari. On August 12, 1958,
it discharged Marlin, Filer, and Lipari; and demoted Weand from chief photographer
to photographer-reporter-laboratory man and reduced his salary from $110 per
week to $95. Respondent contends that the discharges-demotion were brought about
due to a reduction in force resulting from a change in the format of its newscasts,
described in the Board's opinion; and the discharges-demotion would have been
effectuated, as they were, absent the unfair labor practices.
Since Filer died on June 6, 1960; Weand resigned on January 6, 1961; and Marlin
and Lipari rejected offers of reemployment on October 17 and 20, 1960, respectively,
the rights and entitlements of each, under the Board's Order, terminated as of the
date specified for each of these occurrences.
From August 12, 1958, to the date of the hearing on remand, October 3, 1961-a
period of more than 3 years-Respondent has continued the same newscast format
and has operated with three photographer-reporters except for 6 months (September
3, 1958, to March 10. 1959) during which period Dick Lobo, a photographer-
reporter, was in the military service. In Lobo's absence Respondent operated with
two photographer-reporters. Respondent adduced evidence that public acceptance
of its newscast has improved as a result of the change of format initiated in 1958.8
I find this to be persuasive evidence that Respondent substantially altered its oper-
ations when it changed the format of its newcast and having done so it no longer
required the same number of employees in its news department as it did prior there-
to. There remains to be determined whether under Respondent's employment poli-
cies and practices, customarily followed, the dischargees, or any of them, had a
"right" to continuation of employment in place of the employees retained; and,
whether Weand had a "right" to be continued in the job of chief photographer
and/or the pay he had received for that job.
1. Contentions of the parties
Respondent contents that the two photographer-reporters (Marlin and Filer) and
the laboratory technician (Lipari) were, and would have been absent its unfair labor
practices, selected for discharge on the basis of comparative ability and Respondent's
requirements; and Weand was demoted since due to the reduction in force it did not
need a chief photographer. The reasons given by Respondent are a defense to rein-
statement and backpay provided the "rights," if any, of dischargees-demotee, under
employment policies and practices customarily followed by Respondent, were not
abrogated.
The General Counsel contends that: (1) Marlin, on the basis of ability and senior-
ity, should have been retained in place of Lobo; (2) Weand should be made whole
for the difference in pay between what he received as chief photographer prior to
August 12, 1958, and as photographer-reporter-laboratory man from that date to the
date of his resignation (January 6, 1961); and (3) the reduction in force was
not "economic management changes." 9
2. Respondent's employment policies and practices
Eugene Strul, Respondent's news director since 1957, testified that it has always
been his objective to staff the news department with photographer-reporters who had
a degree, or its equivalent, in journalism. The job of the photographer-reporter
entails the shooting of the film of a newsworthy event and reporting the story of
the event. Respondent had some problems arising because a well-qualified pho-
tographer did not have the ability to report the story-discriminatee Marlin was
cited as an example. This testimony was corroborated by Zeke Segal, a witness
called on behalf of the General Counsel. Segal had been Respondent's new assign-
ment editor from 1958 until October 1960. He was the immediate supervisor of
the photographer-reporters.
There is nothing in the record which proves that Respondent had any established
employment policies and practices, with relationship to the news department, which
s American Research Bureau Rating
9 General Counsel's contention that the Board's remedy was modified by the court only
if Respondent had made permanent changes after the hearing on the merits is disposed
of, supra.
BISCAYNE TELEVISION CORPORATION 437
it customarily followed . Specifically , there is nothing in the record which proves
that a discriminatee, at the time of layoff , had a "right" to displace another person
in the same job, or in some other job , or had a "right" to priority in filling vacancies
or new positions occurring subsequently in such job or some other job or had any
other such priorities , or that a demoted employee had a "right " to continue to receive
the rate of pay he had received in an abolished job.
The General Counsel raised an issue concerning seniority rights. The only rele-
vant evidence is that in a reduction in force in the news department , made in June
1957, two employees were discharged without regard to seniority . I find that the
discriminatees had no "rights " by reason of seniority.
The issue as to whether the discriminatees had a priority "right" in filling vacancies
or new positions is moot . The only vacancy for a photographer -reporter occurring
after August 12, 1958, was occasioned by the promotion of Lobo in November 1960.
In anticipation of the vacancy Respondent offered it to Marlin and Lipari in October;
both rejected it.iO There is no evidence of creation of new positions.
In his brief the General Counsel says:
If one thing is clear from the record , it is that Respondent evidently can expand
or contract its work force at will , depending apparently on the quality of the
service it decides to offer the public, or the whims of News Director Strut.
I so find."
There being no established employment policies and practices which vested job
retention "rights" in any of the employes in the news department, there remains the
question as to whether the criteria-ability in the light of Respondent's require-
ments-was adhered to by Respondent in selecting the employees to be discharged
and demoted in effectuating the August 12, 1958, reduction in force.
3. With respect to each discriminatee the right, if any, to reinstatement and
back wages
Filer: Zeke Segal, Respondent 's news assignment editor and immediate supervisor
of the photographer-reporters who was called as a witness on behalf of the General
Counsel, testified that Filer was incompetent. I find he was selected for discharge
on the basis of comparative ability.
Lipari: Segal testified that Lipari was a laboratory technician not qualified as a
photographer-reporter and upon reduction of the staff was properly selected for
discharge because of his limited ability. The laboratory work, after Lipari's discharge
was performed by the demoted Weand who was also a qualified photographer-
reporter. I find that Lipari was selected for discharge on the basis of comparative
ability.
Marlin: Segal testified that: ( 1) in his opinion Marlin was "a cracker-jack camera-
man" and should have been retained ; ( 2) Strul , Respondent 's news director and
Segal's superior, had aimed since 1958 to staff the photographer-reporter jobs with
persons having the equivalent of a college degree in journalism; (3) Lobo had the
equivalent of a college degree in journalism and was a better reporter than Marlin;
(4) he did not have the right to hire or fire; and (5) he had not been consulted by
Strul about the selections for discharge but he and Strul often discussed the respective
abilities of the photographer-reporters.
Strul's uncontradicted testimony is that Segal "complained on a number of oc-
casions about his [Marlin's] inability to bring in the facts and information with the
story that he filmed."
Since the ultimate decision as to ability and selection for discharge was vested in
Strul; and, it having been proven that Lobo was possessed of the qualifications which
Strul sought, I find that Marlin was discharged rather than Lobo on the basis of
comparative ability.
There is no contention by the General Counsel that discriminatees Filer, Lipari, or
10 Filer had died on June 6, 1960
11 The General Counsel argues that Respondent should have placed , at least, one of the
discriminatees in Lobo ' s job while he was in military service. That it did not replace
Lobo during the period of his military service was, I find, the exercise of a prerogative of
management not in derogation of any "right " of the discriminatees.
Strut, Respondent ' s news director , testified that he "felt that it was wise to have three
men overall , it was not impossible to operate with just two, and we gave it a whirl and
we found that it worked."
The court held that the discrimination did not require Respondent to provide jobs for
the discriminatees 289 F. 2d at 340.
438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Marlin should have replaced Ben Silver or Weand , the other two photographer-
reporters retained after the August 12 , 1958 , reduction in force.
Weand: Segal testified that: (1) up to August 12, 1958, Weand carried the title of
chief photographer and after that date he became a combination laboratory man and
photographer-reporter; (2) as chief photographer the duties of Weand were to over-
see the technical side of the film work done by other photographer -reporters plus
"filming shots himself" ; ( 3) after August 12, 1958 , to the date of his resignation,
Weand's "duties were strictly in the lab to take care of the laboratory and to go
out and film stories"; (4) there was no job of chief photographer after August 12,
1958; and (5) it would have been "ridiculous" to have a chief photographer after
August 12 , 1958 , since "I had two reporter-photographers including Weand and I
think it was just Weand and Silver while Lobo was in service ." I find this uncon-
troverted testimony of a witness called on behalf of the General Counsel convincing
that due to the reduction in force , made on August 12, 1958 , Respondent had no
need for and abolished the job of chief photographer and demoted Weand to a job as
described in Segal 's testimony , supra . Also, no evidence having been adduced to the
contrary , I find that Weand had no "right" to continue to receive the pay of chief
photographer after August 12, 1958.
Applying the law of the case, set forth in the court's opinion , I find : ( 1) Filer
from the date of his discharge to the date of his death had no "right" to reinstate-
ment and consequently is due no backpay ; (2) Lipari and Marlin from the date of
their discharge to the date each was offered reinstatement had no "right" to rein-
statement and consequently neither is due backpay ; and (3) Weand had no "right" to
the wages of chief photographer after that job was abolished and is due no back-
pay.
4 The "economic management change"
,In his brief the General Counsel appears to argue that the August 12, 1958, re-
duction in force was not an economic change. He compares labor costs for the
photographer-reporters and the costs for "stringer" films before and after August
12, 1958. If by "economic management changes" is meant a reduction in labor
costs, I find the record does not support the General Counsel's contention. The
record shows that Respondent substantially reduced its labor costs for photographer-
reporters after August 12, 1958. The General Counsel implies that this was accom-
plished by "the total expenditures for stringer story purchases increased from $690
in 1958 to $750 in 1961, with an intermediate high of $930 in 1960 ... also that the
average daily expenditure has increased from $1.89 in 1958 to $2.90 in 1961."
The amount of Respondent's total biweekly payroll (the total biweekly amounts
include base pay, overtime, and time worked on documentary films) for each pay-
roll period from January 4, 1958, to August 2, 1958, shows a mean of approxi-
mately $1,000; and, after August 30, 1958, to the end of the year a mean of less
than $500. After 1958 through the payroll period immediately preceding the hear-
ing on remand the mean has been about $700. In the light of this reduction in labor
costs the increase in the costs of purchase of stringer stories from $690 to $750 per
year, an increase of $60 a year, plus about $1 per day increase in expenditures for
such stories, does not prove that the reduction in force was not an economic change;
nor, does it show justification for the need of one or more additional photographer-
reporters on Respondent's staff after August 12, 1958.12
RECOMMENDATIONS
Under the law of the case as specified in the court's opinion (289 F. 2d 338) it is
recommended that the Board issue its Order that: (1) Filer had no "right" to re-
instatement in the period from the date of his discriminatory discharge (August 12,
1958) to the date of his death and is due no backpay; (2) Marlin had no "right"
to reinstatement in the period from the date of his discriminatory discharge (August
12, 1958) to the date he rejected Respondent's offer of reinstatement (October 17,
1960) and is due no backpay; (3) Lipari had no "right" to reinstatement in the Period
from the date of his discriminatory discharge (August 12. 1958) to the date he re-
jected Respondent's offer of reinstatement (October 20, 1960) and is due no back-
pay; (4) Weand from the date of his discriminatory demotion (August 12, 1958) to
the date he resigned (January 6, 1961) had no "right" to the difference in pay from
that he received and what he would have received had he continued in the job of
chief photographer and is due no backpay; (5) Filer's entitlements under the Board's
v While the record does not divulge the exact basic weekly salary of a photographer-
reporter, it appears to be about $90 per week.
LOCAL 1070, UNITED BROTHERHOOD OF CARPENTERS 439
Order terminated as of the date of his death (June 6, 1960); (6) the entitlements of
Marlin and Lipari, under the Board's Order terminated on the date each rejected
Respondent's offer of reinstatement (October 17 and 20, 1960, respectively); and (7)
Weand's entitlements under the Board's Order terminated as of the date of his resig-
nation (January 6, 1961). Further, that the Order recommended herein, if affirmed
by the Board, or, such Order as the Board may determine to issue after consideration
of exceptions, if any, to this Supplemental Intermediate Report, be filed with the
United States Court of Appeals for the Fifth Circuit and copies be served upon the
parties to this proceeding Further, if any party is aggrieved by the Board's Order
which issues pursuant to these proceedings it shall initiate appropriate action in
the United States Court of Appeals for the Fifth Circuit within 20 days after the
filing of the Board's Order in that court.
Local 1070 of the United Brotherhood of Carpenters and Joiners
of America ( B. W. Horn Company ) and Ray Marruffo. Case
No. 21-CB-1619. May 31, 190,
DECISION AND ORDER
On March 6 , 1961, Trial Examiner Wallace E. Royster issued his
Intermediate Report in the above -entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter , the Respondent filed
exceptions to the Intermediate Report and a supporting brief.'
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The Board has considered the Intermediate Report and the entire
record in this case, including the exceptions and brief , and hereby
adopts the findings, conclusions , and recommendations of the Trial
Examiner.2
ORDER
The Board adopts the Recommended Order of the Trial Ex-
aminer as its Order with the following changes :
1. Paragraph 2(d) of the Recommended Order shall be modified
to read: Notify the Regional Director for the Twenty-first Region,
in writing, within 10 days from the date of this Order of the steps
the Respondent has taken to comply herewith.
1 The Respondent's motion to reopen the record to introduce additional evidence is
denied Respondent seeks to establish that the Employer, by a memorandum agreement in
1956, adopted the terms of the Southern California General Contractors agreement dated
May 1, 1954 From the Respondent's own testimony it is clear that the 1954 agreement
(not in evidence) has been superseded by the 1959 General Contractors agreement which
is in evidence Further, even if we assume that the Employer is bound by the 1959 agree-
ment, the agreement contains nothing that would justify or excuse Respondent's conduct
herein.
'In addition to Insulation Contractors of Southern California, Inc, et at, 110 NLRB
638, which the Trial Examiner cited, we also rely on Brunswick Corporation (Local
Union 65, United Brotherhood of Carpenters and Joiners of America, AFL-CIO), 135
NLRB 574, and Falstaff Brewinq Corporation (Brewers and Malt8ters Local Union No. 6,
etc ), 128 NLRB 294, enfd. 301 F. 2d 216 (CA. 8)
137 NLRB No. 52.