Continental Can Co., Inc.

National Labor Relations Board - Board Decisions

Aug 28, 1964

148 N.L.R.B. 640 (N.L.R.B. 1964)

640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Continental Can Company , Inc. and International Brotherhood
of Pulp , Sulphite and Paper Mill Workers , AFL-CIO. Case
No. I-CA-4417. August 28,1964
DECISION AND ORDER
On May 8, 1 1964, Trial Examiner Herbert Silberman issued his
Decision in the above case, finding that the Respondent had not en-
gaged in the unfair labor practices alleged in the complaint and recom-
mending that the complaint be dismissed, as set forth in his attached
Decision. Thereafter, the General Counsel filed exceptions to the
Trial Examiner's Decision and a supporting brief. Respondent filed
an answering 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 [Chairman McCulloch and Members Fanning 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 Decision
and the entire record in this case, including the exceptions and brief,
and hereby adopts the findings, conclusions, and recommendations of
the Trial Examiner.
[The Board dismissed the complaint.]
1 Respondent also filed a motion to strike the General Counsel ' s brief. The motion is
denied
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed December 20, 1963, by International Brotherhood of Pulp,
Sulphite and Paper Mill Workers, AFL-CIO, herein called the Union, a complaint
was issued on January 29, 1964, alleging that Respondent , Continental Can Company,
Inc., herein sometimes called the Company , has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 ( a)(1) and ( 3) and Section 2(6)
and (7 ) of the National Labor Relations Act, as amended , herein called the Act.
The complaint alleges that Respondent on December 6, 1963, unlawfully discharged,
and thereafter has refused to reinstate , Albert G. Pinard, and since December 9,
1963, has engaged in other conduct which interfered with , restrained , and coerced
employees in the exercise of the rights guaranteed in Section 7 of the Act. Re-
spondent's answer to the complaint, as amended at the hearing , in substance denies
that it had engaged in the alleged unfair labor practices . A hearing in this proceed-
ing was held before Trial Examiner Herbert Silberman in Middletown and Port-
land, Connecticut, on various days between February 19 and March 5, 1964. Briefs
have been received from the General Counsel and from Respondent
Upon the entire record in the case and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent , a New York corporation , is engaged in business in various States in
the United States. The instant proceeding concerns Respondent 's plant in Portland,
Connecticut , where it is engaged in the manufacture , sale, and distribution of cor-
rugated boxes and related products and from which plant annually it sells and ships
148 NLRB No. 75.
CONTINENTAL CAN COMPANY, INC. 641
to points outside the State of Connecticut , products having a value in excess of
$50,000 . Respondent admits, and I find, that it is engaged in commerce within the
meaning of Section 2 (6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The discharge of Albert Pinard
The principal issue in this case is whether Respondent on December 6, 1963, unlaw-
fully discharged Albert Pinard.1
Pinard was hired in 1959 as a stockhandler and was assigned to work under the
supervision of George A. Hurlbert . Approximately 6 months later he was ad-
vanced to .the position of catcher on the sidekmfe . Following this promotion Pinard
adopted an attitude , which characterized his employment relationship until the date
of his discharge , of indifference toward his work and insubordination and insolence
toward his supervisors . Thus, he frequently reported late to his work station, he
spent too much time away from his work station , he was inattentive while at work,
and he did not cooperate with his supervisors and fellow employees . Hurlbert,
who found that he was unable to control Pinard, eventually arranged to have him
transferred to another shift supervised by Leone A. Baroni . This change produced
no improvement . Pinard's performance and attitude became worse . According
to Baroni, whenever he corrected Pinard in one respect , Pinard would begin to do
something else wrong so that there was a never-ending cycle of complaints . Baroni
testified that he reprimanded Pinard on an average of twice a week.2 Pinard's reac-
tion to these reprimands tended to be insolent and insubordinate .3 The relationship
between Barons and Pinard deteriorated to such an extent that they engaged in
many angry arguments and even addressed profanities at one another . On at least
a half dozen occasions Pinard challenged Baroni to fire him. Baroni's explanation
as to why these challenges were not accepted was that Pinard had a family to support
and after each such incident he hoped Pinard would improve if given another
chance .4
In 'early September 1963, after an incident where Pinard failed to return to the
plant to work overtime as he had promised he would, Baroni asked General Foreman
Roger Edwards to take Pinard off his shift or to get rid of him . Edwards transferred
Pinard to the press department to work on the day shift as a stockhandler under the
supervision of Joseph P. Whalen . This was a demotion for Pinard which involved a
substantial reduction in his pays Pinard 's work continued unsatisfactory , although
there were no arguments with Whalen such as he had with Baroni.
Shortly after his transfer to Whalen's department Pinard let it be known about the
plant that he intended to move to Florida and he had occasion to inform Roger Ed-
wards that his house was for sale and he intended to move to Florida when it is sold.
'The complaint pleads alternative reasons which allegedly motivated the Company to
discharge Pinard , Including that "he refused to join or assist the Union ." However, in his
opening statement at the hearing , the General Counsel asserted that Pinard was dis-
charged as a result of his substantial , open , and notorious activities in support of the
Union 's organizational drive As the testimony adduced by the General Counsel and as
the argument advanced in his brief regarding the discharge of Pinard are consistent with
the position adopted in his opening statement , I assume that General Counsel , since issu-
ance of the complaint , has determined to his satisfaction that Pinard was,not discharged
for his refusal to join or assist the Union and does not rely upon such reason to support
the alleged violation of Section 8(a) (3) herein
2 Pinard testified that Barons complained to him about his work "just about every day "
3 For Instance, Barons testified that when he reprimanded Pinard for not reporting to
his work station on time, Pinard ' s response would be, "I don ' t get paid until 7 o'clock "
4 Pinard admitted that he was constantly reprimanded by Barons, that they had frequent
arguments , and that he challenged Barone to fire him on a number of occasions . There is
nothing in the record suggesting any reason for Pinard not having been discharged other
than , as testified by Barons , the latter ' s reluctance to take such drastic action Pinard
testified that when he taunted Barons with the question , "why don't you fire me,"
Baroni ' s reply was , "One of these days I will "
5 The evidence shows that discharges Were infrequent at the Company's Portland plant
Edwards testified that during the 5i/ years he has been general foreman no other em-
ployee was demoted.
760-577---G5-----vol. 148-42
642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In October 1963, David Unikewicz, a stockhandler on Baroni's shift, requested a
transfer to a job which would not involve night work. In order to accommodate
Unikewicz, Baroni suggested to Roger Edwards that Pinard and - Unikewicz ex-
change jobs. This was done and Pinard again was transferred to work under the
supervision of Baroni. This time his job was not catcher on the sideknife but the
lower paid position of stockhandler. Both Edwards and Baroni expected that Pinard
voluntarily would leave the employ of the Company during the month of November.
Thus, Pinard admitted that at the time of his transfer to Baroni's shift, Edwards ex-
plained that it was being made "Because you are only going to be here five or six
weeks, I don't want to lose Dave (Unikewicz)."
In October 1963, about the time Pinard was transferred to Baroni's shift, Pinard
contacted Joseph Petretti, a field representative of the Union
According to Pinard, he asked Petretti how to go about organizing a union in the
plant and was advised to talk to the employees and see if they are interested. Pinard
testified that he followed this suggestion and spoke with employees about the Union.
There is no indication in the record that any supervisor had any knowledge of
Pinard's union activities at this time. On November 30, 1963, Pinard had another
meeting with Petretti at which time he was given authorization cards. Pinard
testified that on December 3, 4, and 5 he discussed the Union with various employees
and passed out approximately 30 cards. Between 15 to 20 signed cards were returned
to him. According to Pinard, he passed out cards "on my coffee breaks, cigarette
breaks-all during the day" and, in addition, he passed out cards during the evening
of December 5 at a restaurant frequented by employees of the plant. There is no
direct evidence that any supervisor observed Pinard passing out union cards 6
According to Respondent, the decision to discharge Pinard was made by his
supervisor, Leone A. Baroni, and was approved by General Foreman Roger Edwards
and Plant Manager John W. Daniels. Three or four days after Pinard was re-
turned to his shift, Baroni asked Pinard what he came over for and Pinard replied
that Edwards had told him he was to do his job and Baroni was to leave him
alone and not bother him. Pinard's work continued to be unsatisfactory. The
week before Pinard was discharged Baroni asked him a second time why he had
come to his shift and Pinard answered, "Mr. Edwards said that he could come over
there and do as little as possible, and he was going to do less if he could get away
with it." Baroni responded, "If you are lying to me, brother, you have had .it." 7
Baroni waited until Wednesday, December 4, to speak with Edwards about the re-
mark attributed to him by Pinard. After satisfying himself that Pinard had lied,
Baroni determined to discharge Pinard. Accordingly, with the concurrence of
Edwards and Daniels, Pinard was discharged by Baroni on Friday, December 6.
At the time of his discharge Pinard was told by Baroni and later by Edwards that
he was discharged because of his unsatisfactory performance and because he was
unable to get along with Baroni. Neither Baroni nor Edwards told Pinard that
he was discharged because he had lied to Baroni. Both men also told Pinard that
they would give him a favorable recommendation.
Except for the first 6 months of his employment, Pinard was an unsatisfactory
employee who displayed an arrogant disregard of his obligations toward his work
and an aggressive insolence toward his supervisors. This is not a case where the
Company had to dredge through the work record of an employee to dig up a myriad
of trivial complaints and grievances to which it might point as cause for the em-
ployee's discharge, because here justification for discharging Pinard was ever present.
Despite the many legitimate reasons and valid occasions the Company had for
discharging Pinard, the issue is not whether Pinard was an unsatisfactory employee, as
6 Pinard testified that when he passed out cards in his own department and other depart-_
ments the supervisors were present on the floor. However, this testimony does not estab-
lish that he was observed passing out cards by any supervisor and Baroni, Edwards, and
Daniels credibly testified that they had no knowledge of Pinard's union activities prior to
December 9, 1963
7 The foregoing is based upon Baroni's testimony which I credit Pinard testified that
on the day he returned to Baroni's shift, he told Baroni "that Roger (Edwards) said for
me to do my lob and not to bother him (Baroni)." Baroni replied, "I am going to check
with Roger (Edwards) and see if it is right, and if it isn't right, you're done." I do not
credit Pinard' s version of the incident. Among other things, in his testimony, Pinard
was prone to distort the facts in order to present his case in its most favorable light as
was evident by several instances where he was compelled to correct his testimony upon
being referred to statements contained in an affidavit previously submitted by him and by
other instances where his answers on cross-examination contradicted testimony given by
him on direct examination.
CONTINENTAL CAN COMPANY, INC . 643
to which there is no question, but whether on December 6,1963, he was discharged
for that reason rather than because, of his. activity on behalf of the Union. Cf.
Edward G. Budd Manufacturing Co. v. N.L.R.B., 138 F. 2d 86, 90 (C.A. 3) (1943);
N.L.R.B. v. Sunnyland Packing Co., 211 F. 2d 923 (C.A. 5) (1954). It is the
Company's indulgence of Pinard 's poor performance and tolerance of his insolence
and contemptuous behavior toward his supervisors over a span of more than 3 years
which cast suspicion upon Respondent's assertion that the incident which it claims
precipitated its decision to discharge Pinard in fact was the motivating reason for
Respondent's action rather than Pinard's contemporaneous union activities.
General ' Counsel 's position regarding the discharge of Pinard , as stated in his
terse brief, is:
Looking to Edwards' and Baroni 's statements to Pinard upon his discharge
and, also, Baroni 's testimony that he would recommend Pinard for employ-
ment at Respondent's-Florida plants (Tr. p. 272). The evidence clearly and
conclusively demonstrates that Respondent's explanation was not only implau-
sible but, also, inconsistent and contradictory.
From this he argues , quoting from N.L.R.B. V. Tex-O-Kan, 122 F. 2d 433, 438-439,
that union activity "may have been the cause, for the Union was not welcomed by
the persons having authority to discharge and employ. If no other reason is ap-
parent, union membership may logically be inferred."
The foregoing quotation is inapposite to the instant case because there is no proof
of union animus on the part of the Company. Contrary to General Counsel's argu-
ment, absence of valid grounds for discharging an active union protagonist alone
is not sufficient to sustain a violation of Section 8(a)(3) because an employer may
discharge an employee for "a poor reason , or no reason at all, so long . as the terms
of statute are not violated."' N.L.R.B. v. Condenser Corporation of America, et al.,
128 F. 2d 67, 75 (C.A. 3) (1942). To prove the complaint's allegation that
Respondent discriminatorily discharged Pinard, General Counsel must establish
by direct or circumstantial evidence that the Company, because of hostility toward
the organization of its employees or other reason , was predisposed to discriminate
against union supporters and knew or believed that Pinard was engaged in such
activities. Only after proof of such discriminatory purpose has been offered does
Respondent's asserted reason for discharging Pinard weigh upon the balance that
points to whether the evidence as a whole preponderates on the side of legality or
illegality. Neither in his brief nor in his oral argument at the hearing has the
General Counsel advised me upon what evidence he relies to prove the Company's
union animus or knowledge of Pinard's organizational activities, and I find that
General Counsel has proved neither fact. Furthermore, I do not agree that, under
all the circumstances in this case, Respondent's asserted reason for discharging
Pinard was implausible, inconsistent, or contradictory.
It is not clear from General Counsel's brief what he claims to be implausible, in-
consistent, and contradictory in Respondent's explanation for Pinard's discharge.
Referring to the paragraph from his brief, quoted above, it would seem that he bases
such contention upon the fact that Edwards and Baroni, while discharging Pinard
for incompetence, promised to give him a favorable recommendation. Although to
have made such promise may have been unfair to whomever should later hire Pinard,
it nevertheless was not inconsistent with the fact that Pinard was discharged for
his poor work performance and bad attitude. The evidence here is overwhelming
that Pinard was an unsatisfactory employee so that any ameliorative promise made
to Pinard in order to minimize the effect of his discharge upon him cannot disturb
the conclusion that at all times material herein the Company had justifiable rea-
sons for terminating his employment . General Counsel also seems to rely upon
the fact that neither Baroni nor Edwards "informed Pinard that the aforementioned
`lie' was the reason for his discharge ." In advancing such argument General Coun-
sel misconstrues Respondent's position . Respondent does not contend that Pinard
was discharged because he lied to Baroni . Its position is that Pinard was discharged
because he was an unsatisfactory employee and the so-called lie was the incident
which finally precipitated the 'decision to take action which was long overdue.
Thus, the reasons given Pinard for his discharge were valid, amply supported by
the record, and in nowise implausible.
Baroni, Edwards, and Daniels, as well as other supervisors, testified that they
had no knowledge of union activities at the plant before Pinard was discharged.
No evidence was adduced on behalf of the General Counsel to impeach this testi-
mony. Furthermore, the Company is party to 233 collective- bargaining agreements,
including 16 contracts with the Charging Party, and its relations with the Union
are very good . These facts tend to demonstrate absence of union animus and
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
malice toward union adherents, although the Company may prefer that the em-
ployees at its Portland plant continue without union presentation . In the circum-
stances, despite the coincidence that Pinard was-discharged during the week he was
actively engaged in distributing union authorization cards, I find that General Coun-
sel has not established by a preponderance of the evidence that such conduct on the
part of Pinard was the motivating reason for his discharge rather than, as claimed by
Respondent, his long history of unsatisfactory performance on his job.
B. Interference, restraint, and coercion
General Counsel contends that following Pinard's • discharge, between Decem-
ber 9 and 14 various supervisors, by interrogating employees concerning their union
sympathies, threatening employees with reprisals for engaging in union activities,
and similar conduct, violated Section 7 of the Act. These alleged violations will be
discussed in the same order as they are treated in General Counsel's brief.
George A. Hurlbert. .ioseph Serra testified that on December 9, 1963, when
Hurlibert came out of "the office," Serra engaged him in conversation and inquired
what was the matter. Hurlbert said that somebody was trying to start a union.
During the ensuing conversation each -one asked the other whether he was in favor
of the Union. They agreed that the Union was desirable. Serra further testified
(his testimony is not clear as-to whether this conversation occurred at the same time
as the conversation already referred to) that Hurlbert said "I should watch my
step because I,was considered an instigator and that one instigator was fired already
and that that would prevent or help to throw the rest of them off the Union
idea . He didn't mention names. Only just one name-Al Pinard-and
he said the two Rebels, but there is only two Rebels on the night shift that I know
of that would be Paul Mounts and Gene Modlin." Serra also testified that in
another conversation Hurlbert said, "Al (Pinard) was fired for union reasons" and
that he was told this by Roger Edwards. Finally, Serra testified that Hurlbert
"told me I should watch my step and not talk about- it [the Union] too much be-
cause the instigators were to be fired if caught."
Hurlbert acknowledged that he had a conversation with Serra concerning the
Union, but denied making any of the incriminatory remarks attributed to him by
Serra. Specifically, Hurlbert denied telling Serra that Pinard had been discharged
for his union activity or that Serra or other employees were known as instigators of
the Union and that the instigators were to be fired if caught. Hurlbert denied that
Edwards told him that Pinard had been discharged for union activity and Edwards
corroborated Hurlbert by testifying that he never told Hurlbert that Pinard had been
fired because of his union activity.
I credit Hurlbert's testimony. As a witness in this hearing he answered all ques-
tions address to him, both on direct examination and on cross-examination, clearly,
directly, without hesitation and with no apparent attempt at evasion. Moreover,
Serra testified that another employee, Billy Piasecci, was present during some of his
conversations with Hurlbert. However, General Counsel did not call.Piasecci as a
witness to corroborate Serra's testimony, which gives rise to an inference that if
Piasecci had been called his testimony would have been adverse. Furthermore, Serra
testified that during the week of December 9 he was caught "goofing off" by Roger
Edwards .8 Nevertheless, despite Serra's testimony that as an instigator of the Union
he was marked for discharge, he was not disciplined for this misconduct.
Richard J. Wallett. General Counsel contends that, the following establishes
violations of Section 8 (a) (1) :
(a) Testimony by Alfred A. DeCarlo that on December 9, 1963, his foreman,
Wallett, asked him how many members the Union has; to which he replied that he
heard it has about 40 members '
(b) Further testimony by DeCarlo that the same evening in the men's room in
the presence of employees Luistro, Wenzel, and another, Wallett said, "Gees, you
guys are crazy. What do you want a union in here for? You've got a chance of
losing your hospitalization, pension plans and stuff like that."
(c) Alleged testimony by Foreman Wallett that he interrogated Wenzel as to
whether or not the latter had signed an authorization card and ascertained that Wenzel
had done so.
General Counsel did not call employees Luistro and Wenzel to corroborate De-
Carlo's testimony or to testify regarding the alleged interrogation of Wenzel by
Wallett. Wallett denied that he had any conversation in the men's room with De-
Carlo. He further denied that at any time while alone with DeCarlo he questioned
s Edwards found Serra stretched out on an empty truck Edwards sent Serra back to
work with the admonition that he could be discharged for such conduct.
CONTINENTAL CAN COMPANY, INC. 645
him concerning the number of members the Union had. Wallett testified that one
evening during the week of December 9 while some of the men on his shift, including
DeCarlo and Wenzel, were kidding him about attending a union meeting he asked,
"How many members have you got now?" and Wenzel replied that he did not know .9
Wallett further testified that on the night of December 9 he joined Luistro, DeCarlo,
and Wenzel while they were talking about the Union. One of the employees asked
him how they would benefit from the Union and Wallett responded that Eddie
Glinski had said that if the Union came into the shop, "we would have to fight for
some of our benefits" and "we were getting top wages now." Glinski joined the group
and in the course of the conversation said, "I don't know what the hell you guys want
the Union for. You're getting the benefits now." Wallett denied that he made any
mention about pensions in this conversation.
Wallett, who answered all questions put to him by counsel in a direct and forthright
manner, impressed me as.being a reliable and credible witness, while DeCarlo, whose
testimony was somewhat disjointed and confused and whom General Counsel had to
lead into giving the answers for which he was looking, impressed me as being con-
siderably less reliable. Accordingly, I credit Wallett's version of the events described
above. Although Wallett admitted having asked employees how many had joined
the Union and also told them that if the Union got in "we would have to fight for
some of our benefits," in the circumstances described where these remarks were made
during a friendly conversation with a group of employees who were accustomed to
"kid" with Wallett, I do not find that these statements had any coercive impact. Re-
garding Wallett's alleged interrogation of Wenzel, the testimony upon which the
General Counsel relies is as follows:
Q. (By Mr. COFFEY.) Isn't it a fact on the week of December 9 you
asked Steve Wenzel how many guys were signed up in the Union and he
replied that he honestly didn't know?
A. That is true. That also was in jest.
Similarly, I find that the foregoing uncontradicted testimony of Wallett does not es-
tablish a violation of Section 8 (a) (1) of the Act.
Roger Edwards. Gene Modlin testified that on the night of December 13, while
he and other employees were in a tavern, Roger Edwards made an appearance and
bought all the employees a drink at the bar. When they were leaving about 1 a.m.
the next morning, Modlin asked Edwards for a lift to the home of DeCarlo where
the employees were going to play a game of cards. While walking to Edwards' car,
according to Modlin, "I asked Roger why don't he want the Union in, and at this
time he told me that he had been down there twenty-some-odd years, and there was no
goddamn rebel going to come in and mess them up. If it was the last thing he
wanted to do, he was going to fire my Edwards' version of the incident is
that Modlin initiated a conversation about the Union, during which Edwards asked
what the employees wanted. Modlin replied they were looking for security. Edwards
responded that there were employees who had been working for 5, 10, or 40 years
and he did not know what more security they wanted than that. Edwards commented
further that he had been with the Company many years and had advanced himself to
a better position with more money and good security, while Modlin and his friend
(referring to another employee) had been here only a few months and wanted to run
things.
Modlin testified that on the night in auestion he had been at the tavern drinking
beer from 10.30 to 11:15 and from midnight to 1 am and had a whisky chaser
before he left the place. Regarding his physical condition at the hearing, Modlin
stated, "I haven't had any sleep now for three nights, and I can't think right. I have
had a terrible cold." As Edwards impressed me as being a truthful witness and as
Modlin's condition on the morning of December 14 as well at the hearing was such as
might have affected his ability to recall accurately the conversation with Edwards.
I credit Edwards' testimony regarding the incident rather than Modlin's conflicting
version.
CONCLUSIONS OF LAW
Respondent has not violated Section 8(a)(1) and (3) of the Act as alleged in the
complaint.
6 On crows-examination DeCarlo testified that Wallett, who was close to some of the
employees in the department, and was accustomed to kid with them, during a conversa-
tion with the employees was asked whether he was going to join the Union and also
whether he was going to attend a union meeting
646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and upon
the entire record in the case, I recommend that the complaint be dismissed in its
entirety.
Idaho Potato Processors , Inc. and American Federation of
Grain Millers , AFL-CIO. Case No. 19-CA-2306. August 28,
1964
SUPPLEMENTAL DECISION AND ORDER
On June 27, 1962, the Board issued its Decision and Order in the
above-entitled proceeding' finding, inter alia, that the Respondent
had unlawfully discriminated against employee Ernest Essary and
ordering that he. be reinstated to his former, or a substantially equiv-
alent, position and made whole for any loss of earnings attributable
to his unlawful discharge. The U.S. Court of Appeals for the Ninth
Circuit granted enforcement of the Board's Order on October 17,
1963.2
On March 26, 1964, a hearing was held before Trial Examiner
Howard Myers for the purpose of determining the amount of backpay
due employee Essary. On May 11, 1964, the Trial Examiner issued
a Supplemental Decision, attached hereto, finding that Essary was
entitled to backpay in the amount of $2,963. and recommending that
the Respondent be required to pay interest at the rate of 6 percent per
annum on this sum beginning 5 days after receipt by the Respondent
of his Supplemental Decision. The Respondent filed exceptions to
the Supplemental Decision.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Fanning and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner
at the supplemental hearing and finds that no prejudicial error was
committed.' The rulings are hereby affirmed. The Board has con-
1137 NLRB 910.
2 322 F. 2d 573.
3 Respondent contends that the Trial Examiner erroneously rejected its offer of proof to
the effect that, shortly after Essary's discharge on September 26, 1961, he stated that he
was planning to obtain a farm in Arkansas and to move there and that, if Respondent had
waited a while and not fired him, he would have quit. We find it unnecessary to pass upon
the correctness of the Trial Examiner's ruling, for, even assuming that Essary stated that
he had intended to quit in the future, the record herein fails to support Respondent's posi-
tion that the backpay period should be shortened. Essary's undenled testimony reveals
that he began seeking to trade his Idaho property for an Arkansas farm in March 1961,
approximately 6 months before his unlawful discharge, that he did not sell the Idaho
property until July 1, 1962, approximately 3 months after his reinstatement, at which
time he did obtain property in Arkansas ; that he has offered the Arkansas property for
sale since he obtained it; and that he traveled to Arkansas to seek employment at the end
of November 1961, only after failing to find work in Idaho, and again in January 1962,
148 NLRB No. 63.