Carlisle Lumber Co.

National Labor Relations Board - Board Decisions

May 21, 1938

7 N.L.R.B. 332 (N.L.R.B. 1938)

In the Matter of CARLISLE LUMBER COMPANY and LUMBER & SAW-
MILL WORKERS' UNION, LOCAL 2511, ONALASKA, WASHINGTON and
ASSOCIATED EMPLOYEES OF ONALASKA, INC., INTERVENER
Case No. C-93
Lumber Industry-Regular and Substantially Equivalent Employment : factors
considered : loss of seniority rights.
Mr. Thomas P. Graham, Jr., for the Board.
Mr. Theodore B. Bruener, of Aberdeen, Wash., for the respondent.
Mr. J. O. Davies, of Chehalis, Wash., for the Union.
Mr. Howard S. Friedman, of counsel to the Board.
SUPPLEMENTARY DECISION
AND
ORDER
May 21, 1938
STATEMENT OF THE CASE
On March 3, 1938, the National Labor Relations Board, herein
called the Board, issued a Supplementary Decision and Order 1 in the
above-entitled case, directed to Carlisle Lumber Company, Onalaska,.
Washington, herein called the respondent. The Supplementary De-
cision stated that there was insufficient evidence on which to make
findings of the amounts of back pay due to certain of the employees
against whom the respondent had been found to have discriminated.
On application by the Board for leave to adduce additional testimony,
the United States Circuit Court of Appeals for the Ninth Circuit,
herein called the Circuit Court, on March 28, 1938, made the
following order :
The motion of the National Labor Relations Board for per-
mission to adduce additional evidence and to make supplement-
ary findings covering the back pay of individual employees of
the Carlisle Lumber Company, who were not included in its
report heretofore made, is granted. The hearings are to be
begun as soon as possible and the evidence is to be taken and
certified within sixty days from this date. The evidence shall. be
15 N. L. R. B. 776.
332
DECISIONS AND ORDERS 333
confined to the period prior to February 1, 1938, and shall apply
only to the employees not covered by the report of the supple-
mentary hearing above referred to.
Pursuant to said order , the Board on April 7, 1938, ordered that
a hearing be held for the purpose of taking the evidence as required.
On April 11, 1938, the Acting Regional Director for the Nineteenth
Region issued a notice of hearing, copies of which were served upon
the respondent , upon its counsel , and upon the Union. Pursuant to
the notice, a hearing was held on April 18 and 19, 1938, at Chehalis,
Washington , before Thomas S. Wilson, the Trial Examiner duly
designated by the Board. The Board, the respondent, and the Union
were represented by counsel and participated in the hearing. Full
opportunity to be heard, to examine and to cross -examine witnesses,
to introduce evidence bearing on the issues was afforded all parties.
During the course of the hearing , exceptions were taken by the re-
spondent and by the Union to various rulings of the Trial Examiner
on motions and on objections to the admission of evidence. The
Board has reviewed these rulings and finds that no prejudicial errors
were committed . The rulings of the Trial Examiner are hereby
affirmed.
Upon the entire record of the case, the Board makes the following :
FINDINGS OF FACT
In our Supplementary Decision we stated that some of the employees
who testified at the supplementary hearing had apparently obtained
regular and substantially equivalent employment by the date of our
order of September 26, 1936. No findings were made for these persons.
All the employees falling within this class, who testified at the
present hearing , indicated their desire to return to their former posi-
tions with the respondent company. The evidence also indicates that
they have lost valuable seniority rights, in some cases as much as 10
years, which they would have retained had they continued in the
employ of the respondent.
We find, therefore, that these individuals did not have regular and
substantially equivalent employment at the time of the Board's order
of September 26, 1936.
At the hearing , the Board introduced in evidence a chart 2 prepared
by the respondent showing the hours of operation by the respondent
from July 29, 1935, through January 31, 1938. A further exhibit 3
introduced by the Board, also prepared by the respondent and based
on the first chart, sets forth an estimate of the number of hours each
'Board Exhibit No. 4.
3 Board Exhibit No. 5.
334
NATIONAL LABOR RELATIONS BOARD
of the Union employees would have worked and the amount each
would have earned, if working for the respondent between July 29,
1935, and January 31, 1938. For certain individuals whose names
were not on those charts introduced as exhibits, oral testimony as to
hours and rates of pay was given by an officer of the respondent.
From this testimony, we were able to compute the estimated amounts
these employees would have earned if employed by the respondent
from July 29, 1935, to February 1, 1938.
----------- For the reasons set forth in our previous Decision, deductions must
be made from the amount of estimated earnings for sums actually
earned by the employees at other jobs between July 29, 1935, and
January 31, 1938.
We find that the employees named in schedule A were employed by
the respondent on May 3, 1935, struck on that date or thereafter, were
members of the Union on July 29, 1935, and had not obtained regular
and substantially equivalent employment elsewhere at the time of our
order on September 26, 1936, which directed that they be offered rein-
statement. We find that back pay is due to such persons under the
order heretofore made by the Board, and we find that amount of back
pay due to each of such persons for the period up to February 1,
1938, pursuant to that order, is that set forth in schedule A after his
name.
Certain employees coming within the scope of our original order of
September 26, 1936, have suffered no net loss because of earnings else-
where during the period up to the time of the hearing on February 1,
1938. For those we make no findings at the present time. It is, of
course, possible that by reason of events occurring after February 1,
1938 and prior to respondent's offer of reinstatement to them back
pay may become due.
ORDER
Upon the basis of the,above findings of fact„and of the findings
of fact heretofore made in this case, the National Labor Relations
Board hereby orders that the respondent, Carlisle Lumber Company,
its officers and agents, shall take the following affirmative action,
pursuant to Section 2 (b) of the Board's order of September 26, 1936,
which the Board finds will effectuate the policies of the Act :
Make whole each of the persons named in schedule A for the loss of
pay suffered by reason of the respondent's discrimination to February
1, 1938, by payment to each of them respectively, of the sum set forth
following his name, which sum is equal to that which each would have
earned as wages from July 29, 1935, the date of the discrimination, up
to February 1, 1938, less the amount each has earned during that
period.
DECISIONS AND ORDERS
SCHEDULE A
335
Eli Backlin------------------------------------------- $55 85
Edward J. Corbett----------------- ------------------- 196 07
Meryl Duprey------------------------------------------ 395.13
J. B. Jacobsen---------------------------------------- 1,103.98
John Ketchum---------------------------------------- 3,080.16
Dewey Locke------------------------------------------ 466.13
John Markow----------------------------------------- 833.52
Pete Pinzak------------------------------------------- 1,275.26
Nick Preonas__________________________________________ 506.85
Charles Maynard Robinson---------------------------- 399.11
Ivar Runquist----------------------------------------- - 666.75
Arthur Westling-------------------------------------- 319.70
SAME TITLE
AMENDMENT TO SUPPLEMENTARY DECISION AND
ORDER
June 9, 1938
On March 3, 1938, and May 21, 1938, the Board issued Supple-
mentary Decisions and Orders in the above-entitled case.
In neither of these decisions was an award made to Steve Tsakna-
kis. The evidence presented at the hearing held from February 1 to
February 4, 1938, established that he was a member of the Union
on July 29, 1935, that he went out on strike with the other em-
ployees, and that he had not obtained regular and substantially
equivalent employment elsewhere at the time of our order of Sep-
tember 26, 1936. At that hearing he testified that he had earned-
$1,242.89 at other jobs from July 29, 1935, to February 1, 1938.
At the hearing held April 18 and 19, 1938, it was admitted by an
officer of the respondent that Tsaknakis was an employee of the,
Carlisle Lumber Company and that his name had been inadvertently
omitted from the exhibit 1 introduced at the first supplementary
hearing showing the estimated earnings of the various employees
had they been employed at Carlisle. Evidence was then presented,
showing that his estimated earnings would have amounted to $2,-
316.35. Deducting from this the sum of $1,242.89 actually earned,
there remains a loss of pay to February 1, 1938 of $1,073.46.
We find that Steve Tsaknakis was employed by the respondent
on May 3, 1935, struck on that date or thereafter, was a member of
the Union on July 29, 1935, and had not obtained regular and sub-
stantially equivalent employment elsewhere at the time of our order
of September 26, 1936, which directed that he be offered reinstate-
ment. We find that back pay is due to Tsaknakis under the order'
heretofore made by the Board, and we find that the amount of
' Board Exhibit No. 3 at the hearing of February 1 to 4, 1938.
336 NATIONAL LABOR RELATIONS BOARD
back: pay due to him for the period up to February 1, 1938, pursuant
to that order is $1,073.46.
The Board, therefore, hereby amends its Supplementary Decision
and Order of May 21, 1938, by inserting in schedule "A" thereof
the following :
Steve Tsaknakis_____________________________________ $1,073.46
MR. EDWIN S. SMITH took no part in the consideration of the
above Amendment to Supplementary Decision and Order.