Charles T. Reynolds Box Co.

National Labor Relations Board - Board Decisions

Oct 28, 1965

155 N.L.R.B. 384 (N.L.R.B. 1965)

384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the above findings of fact, and upon the entire record in the case, I make the
following:
CONCLUSIONS OF LAW
1. Master Transmission Rebuilding Corporation & Master Parts, Inc., herein called
the Company or the Respondent, is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. International Association of Machinists, AFL-CIO, District Lodge No. 87, is
a labor organization within the meaning of Section 2(5) of the Act.
3. By interrogating its employees and threatening them with reprisal if they
indulged in union activities, the Company has violated Section 8(a)(1) of the Act.
4. By cutting the hours of employment of the employees because they had engaged
in union activities, the Company has also violated Section 8(a)(3) and (1) of the
Act.
5. The unfair labor practices enumerated above are unfair labor practices affect-
ing commerce within the meaning of Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]
'Charles T. Reynolds, Sr., doing business as Charles T. Reynolds
Box Company, and Reynolds Pallet & Box Co. and Local 637,
United Brotherhood of Carpenters and Joiners of America,
AFL-CIO. Case No. 9-C21-0461. October 28, X965
SUPPLEMENTAL DECISION AND ORDER
On October 25, 1962, the National Labor. Relations Board issued a
Decision and Order in the above-entitled case, funding that the
Respondents had discriminated against certain named employees in
violation of Section 8(a) (3) and (1) of the National Labor Rela-
tions Act, as amended.' Thereafter, the Board's Order was enforced
by the United States Court of Appeals for the Sixth Circuit,' and a
decree was entered on December 27, 1964, against the Respondents.
The decree provided, mater alia, that Respondents make whole the
employees named therein for any loss of pay suffered by reason of the
Respondents' discrimination against there.
On November 2, 1964, the Regional Director for the National Labor
Relations Board for Region. 9 issued a backpay specification, and the
Respondents filed an answer and amended answer thereto. Upon
appropriate notice issued by the Regional Director, a, hearing was held
before Trial Examiner Thomas S. Wilson for the purpose of deter-
mining the amounts of ba.ekpay clue the claimants.
On August 13, 1965, the Trial Examiner issued the attached Sup-
plemental Decision, in which he found that the claimants were enti-
tied to the amounts of backpay set out in the backpay specification,
2 139 NLRB 519.
2 Rey old8 Pallet d Box Co. v. N.L.R.B., 324 F. 2d 833.
155 NLRB No. 44.
CHARLES T. REYNOLDS BOX COMPANY 385
with certain modifications contained in his Decision. Thereafter, the
Respondents filed exceptions to the Supplemental Decision and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Supplemental Decision, the exceptions and brief, and the
entire record in this case, and hereby adopts the findings,3 conclu-
sions, and recommendations of the Trial Examiner, with the modifica-
tion below.4
ORDER
On the basis of the Trial Examiner's Supplemental Decision and the
entire record in this case, the National Labor Relations Board hereby
orders that the Respondents, Charles T. Reynolds, Sr., doing business as
Charles T. Reynolds Box Company, and Reynolds Pallet & Box Co.,
their agents, successors, and assigns, shall pay to the employees involved
in this proceeding as net backpay the amounts set forth in the backpay
specification, with the modifications made by Trial Examiner Wilson in
his Supplemental Decision.
3 We correct the Trial Examiner's inadvertent reference to employee Arthur G. Chestnut
as Chester G. Chestnut.
4In view of employee Vernal French's admission that he ceased looking for work upon
receipt of his notice of induction into the armed services , we shall end his backpay
period as of that date, rather than upon his entry into the armed services on May 17, 1962.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
On October 25, 1962, the National Labor Relations Board, herein referred to as
the Board, issued its Decision and Order, 139 NLRB 591, against Respondents here
finding that Respondents had discriminated against 30 named employees and order-
ing said Respondents to offer reinstatement to said named employees and to make
each of them whole for any loss they may have sustained as a result of said dis-
crimination against them.
On November 8, 1963, the United States Court of Appeals for the Sixth Circuit
granted enforcement of the Board's said Decision and Order, 342 F. 2d 833, and
entered its decree on December 27, 1964, enforcing in full the backpay provisions
of said Board Decision and Order.
Thereafter a controversy having arisen over the amount of backpay due under
said Board Decision and Order, the Regional Director of the Board for Region 9
issued backpay specifications and notice of hearing thereon on November 2, 1964,
which were duly served upon Respondents.
After one purported answer of Respondents had been stricken as not being in
compliance with the Board's Rules and Regulations, Series 8, as amended, Respond-
ents duly filed an amended answer to said backpay specifications admitting certain
allegations therein but denying that any backpay was due to any of the discriminatees
386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in general because they had "removed themselves from the labor market" and had
thus sustained "wilful losses." In its answer Respondents also alleged in certain
individual cases other reasons it claimed that no backpay was due, such as an
11-month illness in the case of Loy Branstetter 1 and in another instance removal
from the labor market by reason of incarceration in jail.2
A hearing thereon was held at Cincinnati, Ohio, before Trial Examiner Thomas S.
Wilson on May 24 and 25, 1965. All parties were represented by counsel and given
the opportunity to present any and all evidence to the issues. At the conclusion of
the hearing the parties waived oral argument. A brief was received from Respond-
ent on June 30, 1965.
Upon the basis of the record made herein and from my observation of the wit-
nesses, I make the following:
A. Findings
1. Gross backpay
As this case is determined in large measure by the pleadings herein, it is necessary
to discuss them for the moment.
In its answer Respondents denied the correctness and reasonableness of the formula
used by the Regional Director in computing the weekly hours of work of the dis-
criminatees'and also the various wage rate increases used in the backpay specifications.
At the opening of the hearing Respondents withdrew its denial of the correctness of
the formula used and admitted its reasonableness and fairness. Subsequently
Respondents also admitted that the wage rate increases used in the specifications
were also correct. With these two admissions by Respondents, it was acknowledged
that computations of gross backpay contained in the specifications were correct.
I so find.
During the hearing it was also agreed that discriminatee Ray Reynolds had been
discharged by Respondents on October 14, 1961 (instead of on November 13, 1961,
as indicated in said specifications). This admitted change in the termination date of
Reynolds increases the number of hours lost by him due to the discrimination by
132 7 hours which at his hourly rate of $1.75 per hour increases the backpay due
him by $232.42 thereby making the backpay due and owing to Ray Reynolds the
total sum of $546 72. I so find.
2. Interim earnings
Respondents' answer naturally admits all the interim earnings listed in the backpay
specifications for each discriminatee.
In addition thereto the testimony adduced from discriminatee Charlie M Robinson
showed that he received $20 per week for a period of 7 months for cutting timber
for an uncle during his backpay period for a total of $560. As these earnings were
not indicated in said specifications for this discriminatee but amounted to deductible
interim earnings , I will deduct that sum from the backpay due Robinson which makes
the correct backpay due and owing to Robinson the sum of $2,233.99.
The testimony of Roland Robinson also proved that during his backpay period in
1963 Roland Robinson earned a sum of $300 by raising a crop of tobacco which is
not listed among his interim earnings in said specifications.3 This additional interim
earnings reduces the backpay owing to Roland Robinson to the sum of $5,719.40.
The testimony further proved that discriminatee Mitchell Goss was paid $4 per
day for 2i days worked per week over a 6-month period for a sum total of $240.
It was also proved that Goss received interim earnings of $112 51 from Monticello
Wood Products Company during his backpay period. Neither of these interim earn-
IIn the case of Loy Branstetter the evidence showed that Branstetter became infected
by the paint he was handling at Field Container Corporation, Elk Grove, Illinois, which
caused him to have to take leave of absence from that employei. But this would not
have affected his working ability at a job not involving this paint As this allergic con-
dition was caused by or resulted from the discrimination against Branstetter and would
not have occurred except for that discrimination, I find that this will not abate the
backpay due him
2 As the evidence produced in this instance indicated that this so-called incarceration
in jail was over the weekends for drunkenness on one or two occasions , I must find that
this individual was not removed from the labor market so as to abate his backpay
3 During the year 1964 Robinson earned $1,200 from the sale of another tobacco crop
But as this was earned after the end of Robinson's backpay period, this will not affect
the backpay clue and owing to him in the specifications
CHARLES T. REYNOLDS BOX COMPANY 387
ings are listed in said specifications. Accordingly, I will charge Mitchell Goss with
interim earnings of $352.51 and thus reduce the backpay due and owing him from
Respondents to the sum of $5,858.87.
The evidence showed that discriminatee Alfred Combs bought a truck about May
1963, and that for a period of 9 months during his backpay period he used that
truck to make one or two trips per week selling coal and that from each of such
trips he realized a profit of $15 or $20. I will therefore find that during this period
Allied Combs made interim earnings amounting to the sum of $1,260 which was
not noted in said specifications. Accordingly, I find that by reducing the amount
of backpay due to Combs by the sum of $1,260 the total backpay owing by Respond-
ents to Combs is the sum of $4,472.26.
3. Expenses
A number of the discriminatees made claims for certain expenses allegedly incurred
while seeking work after the discrimination against them. In large part these claims
consisted in estimated increased expenses for food, living quarters, or transportation
at some of the interim jobs over and beyond the expenses for the same items while
working for Respondents. The testimony regarding these claimed expenses was so
indefinite, inadequate, and speculative or else the pioof showed the claims to be
for such unjustifiable purposes as personal pleasure trips to their homes in Kentucky
so that I must strike all claims for the added expenses claimed in the specifications
except in the instances noted below.
The proof showed that claimant Chester G. Chestnut secured interim employment
in Indianapolis, Indiana, which he had to quit because he proved allergic to the
paint required on his job, then he got work in London, Kentucky, and thereafter in
Mundelein, Illinois. In order to secure this employment and thus reduce the back-
pay owing him from Respondents, Chestnut was required to travel from Cincinnati
to Indianapolis (108 miles), from Cincinnati to London, Kentucky (158 miles), and
from Cincinnati to Mundelein, 330 miles.4 Thus Chestnut was required to drive a
total of at least 1,198 miles in his successful efforts to secure interim employment
which, at the regular figure of 10 cents per mile, entitled him to $119.80 for car
expenses. As each of these trips would have required at least 1 day of traveling for
a total of 6 days in travel at $15 per day for a total $90, these obvious and necessary
expenses are even greater than the $186 expenses claimed in the specifications for
Chestnut. Contrary to Respondents' answer, there is nothing "arbitrary and capii-
cious" about the allowance of these necessary traveling expenses in securing interim
employment and thereby reducing the backpay due to claimant. Accordingly, I
hereby approve the $186 expenses claimed in the specifications for Chestnut.
The same reasoning applies to the $63 expenses claimed by discrimmatee Marvin
French, who the record proves had traveled from Cincinnati, Ohio, to London,
Kentucky (158 miles) and from Cincinnati to South Bend, Indiana (230 miles) in
his successful efforts to reduce the backpay owning him through interim employment.
The mileage alone involved here at 10 cents per mile more than justifies the $63
expense claimed in the specifications for French. Accordingly I approve the $63
expense item claimed in the specifications for French.
4. Claybourne North
The backpay specifications as related to discriminatee Claybourne North contained
the following footnote: "We have not been able to contact Claybourne North
regarding his interim employment, earnings and expenses."
The record further shows that Respondents have been unable to locate North since
the discrimination against him. Nor does his brother-in-law have any information
as to North's whereabouts.
In this state of the record, I will dismiss the claim made on behalf of North with-
out prejudice to its being reopened when and if North is located and available to
give testimony.
5. Respondents' defense
As stated in Respondents' brief, Respondents' general defense to the backpay
specifications is as follows:
The mass exodus of discriminatees from Hamilton, Ohio, a highly developed'
industrial area, to various rural, depressed areas in Kentucky in itself leads to
'All mileage figures herein were secured from Standard Highway-Mileage Guide, Rand
McNally Company ( 1962).
212-809-6 6-vol. 155-26
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
but one conclusion-these men wilfully and intentionally removed themselves
from any opportunity for employment. They did not want to find employment.
They wanted to go home and enjoy a 26-weeks vacation.
Twenty-one of the 28 discriminatees immediately returned to Kentucky
where each of them remained during the full course of their unemployment
benefits.
*s
To really have a complete understanding of the attitude of the discriminatees
one must have a true concept of the underlying philosophy which motivates
them.
The basic, rudimentary and unique feature of these Kentucky hill people is
that the Kentucky hills are and will forever be their home The one driving
force behind them is the constant and never varying desire to return home. It
is not a nostalgic rememberance of things past but a current and continuing goal
to be obtained at the first moment of opportunity.
Those of us who have not been born or raised to adulthood in Kentucky really
have no true concept of this native feeling in kindled in these people We do not
understand, although it is elementary to them, and that the great variance in the
standard of living to which we are accustomed and the standard of living in
their part of Kentucky enables a dollar for spending in the Kentucky hills to do
the work of $10 in Washington, D.C., or Cincinnati, Ohio.
From the standpoint of the discriminatees the worst thing that could have
happened to them would have been an offer of employment before the expira-
tion of their unemployment benefits.
Respondents contends, and this contention is clearly supported by the evi-
dence, that the action of these men returning home effectively removed them
from the Labor market. That under the circumstances the backpay order should
not begin to run until there is some clear demonstrable action by each of these
individuals to show a return to the Labor market.
The migration of these men was equivalent to nuclear physicist moving to the
Belgian Congo and then claiming backpay because there was no demand for
his service in the new location.
Many, if not most, of the facts cited in Respondents' argument are true and
accurate. I accept them. From these facts Respondents draw the conclusion that
these discriminatees "withdrew from the Labor market" by moving back to or near
their homes in the rural, depressed, and nonindustrial areas of Kentucky for what-
ever reason and thereby incurred "wilful losses" so that no backpay is due them.
This conclusion I am unable to draw.
Although it may be true that Hamilton and Butler Counties in Ohio may have had
more industrial job opportunities than Kentucky, it is likewise true that those counties
also would have more job applicants as well. The record shows that those dis-
-criminatees who remained in the aforementioned counties after the discrimination
had no greater success at securing interim employment there than those who returned
to Kentucky. In fact the record shows that several of those who remained in Ohio
were forced to go into the States of Indiana and even to Mundelein, Illinois, 333
miles away, to secure interim employment. The record further shows that several of
those who returned to Kentucky were successful in finding interim employment even
in those allegedly "rural and depressed" areas of Kentucky. In fact it is worth
noting here that one such discriminatee at least was successful in finding work in a
place with the well known name of Dogpatch, Kentucky-as well as in other places
in that State. Jobs are where one finds them. This record effectively refutes the
conclusion drawn by Respondents. Accordingly, I am unable to adopt the per se
conclusion that by returning to Kentucky these discriminatees "removed themselves
from the Labor market."
Respondents ' argument implies at least that those of the discrimmatees who
received 26 weeks of employment were enjoying a vacation of that length from which
they refused to permit themselves to be disturbed. The record here proves the con-
trary-although it is true that many of the discriminatees did receive the full 26 weeks
of unemployment compensation prior to finding interim employment . There is no
evidence in this record that any discriminatee rejected any work opportunity. The
5 Quotations from N L R B. v Brown & Root, Inc., etc., 311 F. 2d 447 (C.A. 8), and
Mastro Plastics Corporation and French-American Reeds Manufacturing Co, Inc., 136
NLRB 1342, are omitted.
LEAS & McVITTY, INCORPORATED 389
record shows that each of these men registered for unemployment compensation,
complied with all the requirements therefor including that of making an independent
search for employment, and that none was ever refused a compensation check for
any reason, including the failure to make such an independent search for work. The
record here shows that each discriminatee made a search for work over and beyond
mere registering for unemployment compensation. Consequently, I must find that
none of the discriminatees suffered any willful loss.
At the hearing Respondents made the contention-not repeated in its brief-that
all these discriminatees had to do to secure employment, as they well knew, was to
.apply at Respondents' Reynolds Pallet and Box Company at Maude, Ohio. How-
ever, the evidence showed that several did in fact attempt to make such applications
there only to find the gate to the plant locked with a sign thereon reading "No Work
Available"-which may account for the absence of this contention in the brief.
B. Conclusions
Therefore, I accept the aforementioned backpay specifications with the changes
mentioned heretofore in its entirety.
Leas & MeVitty, Incorporated and International Union of Dis-
trict 50, United Mine Workers of America. Cases Nos. 5-CA-
2994 and 5-RC--4873. October 28,1965
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
On Time 25, 1965, Trial Examiner George A. Downing issued his
Decision in the above-entitled proceedings, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor practices
within the meaning of the National Labor Relations Act, as amended,
'and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. He also found that Respondent had not engaged in other unfair
labor practices alleged in the complaint and recommended dismissal of
those allegations. In addition, he recommended the overruling of the
objections to the election in Case No. 5-RC-4873. Thereafter, the
Respondent filed exceptions, and the International Union of District
50, United Mine Workers of America, herein called the Union, and
the General Counsel filed exceptions and supporting briefs to certain
findings and conclusions in the Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
these cases to a three-member panel [Members Fanning, Brown, and
Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and the briefs, and the entire rec-
155 NLRB No. 43.