Idaho Potato Processors, Inc.

National Labor Relations Board - Board Decisions

Aug 28, 1964

148 N.L.R.B. 646 (N.L.R.B. 1964)

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 undenied 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, 1902 , 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.
IDAHO POTATO PROCESSORS , INC. 647
sidered the entire record in this case, including the Supplemental De-
cision and the exceptions, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner with the following
modification.
As noted above, the Trial Examiner recommended the payment
of interest on the backpay due Essary. We do not adopt this recom-
mendation, as the payment of interest was not required by the Board's
original order which was enforced by the court 4
ORDER
On the basis of the foregoing Supplemental Decision and the entire
record in this case, the National Labor Relations Board hereby orders
that the Respondent, Idaho Potato Processors, Inc., its officers, agents,
successors, and assigns, shall pay Ernest Essary the sum of $2,963.
after once more unsuccessfully seeking work in Idaho following his return there in Decem-
ber of 1961 . It is also significant that Essary immediately accepted Respondent' s uncondi-
tional offer of reinstatement and returned to his former job on April 4, 1962 Thus, at
best, the record shows that Essary' s statement that he would have terminated his em-
ployment voluntarily and settled in Arkansas if he had not been discharged was merely
speculative and anticipatory and, in fact , did not materialize . We find, therefore, that
the evidence offered would not have proved that, absent the unlawful discharge , Essary
would have quit
* See General Dngmeering, Inc, and Harvey Aluminum ( Incorporated ), 147 NLRB 127.
TRIAL EXAMINER'S SUPPLEMENTAL DECISION
On June 27, 1962, the National Labor Relations Board, herein called the Board,
issued its Decision and Order in the above -entitled case l directing that Idaho
Potato Processors , Inc., herein called Respondent , take certain affirmative action,
including , among other things, to make whole Ernest Essary for any loss of pay
resulting from Respondent 's unfair labor practices.
In due course , the aforementioned Board Decision and Order was reviewed by the
U.S. Court of Appeals for the Ninth Circuit and on October 17, 1963, the court
granted enforcement .2
The parties having been unable , through informal negotiations , to agree upon
the backpay due Essary, the Regional Director for Region 19 (Seattle , Washington),
on January 24, 1964, by virtue of Section 102 .52 of the Board 's Rules and Regula-
tions , Series 8, as amended , duly served upon Respondent, backpay specification as
called for by the aforesaid rule.
The specification alleged that Essary's bdckpay period began on September 26,
1961, when he was discriminatorily discharged , and ended on April 1, 1962, when
Respondent unconditionally offered him reinstatement to his former job.
The specification further alleged that an appropriate measure of the amount which
Essary would have earned is the amount earned per calendar quarter by a representa-
tive employee , Joe B . Wolf, who worked as a relief man at the rate of $2.10 per
hour from September 26 through September 30, 1961 ,3 and as a regular full-time
boiler operator thereafter at the rate of $2.15 per hour.
The specification also alleged that under Respondent 's group insurance policy,
which was in effect during the period from September 26, 1961, through April 1,
1137 NLRB 910.
2 322 F . 2d 573.
3 Essary's hourly rate as a boiler operator on the third shift, which job lie held at the
time of his discharge , actually was $2 15 The Board, as stated in the specification,
adopted wolf 's $2 10 per hourly rate for the last few days of September for simplicity in
computation .
648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1962, Essary was entitled to reimbursement in the sum of $160, which he person-
ally paid to the surgeon for performing an operation on the eye of Essary's son
in November 1961.
On February 7, 1964, Respondent duly filed an answer specifically disclaiming
any financial liability for any backpay due Essary.
At the hearing- herein, which was held, pursuant to due notice at Burley, Idaho,
on March 26, 1964, before Trial Examiner Howard Myers, the Board and Respond-
ent were represented by counsel. Full and complete opportunity was afforded
counsel to be heard, to call and to examine and cross-examine witnesses, to in-
troduce evidence pertinent to the issues, to argue orally on the record at the con-
clusion of the taking of the evidence, and to file briefs on or before April 17, 1964.
Briefs have been received from Board's counsel and from Respondent's counsel
which have been carefully considered.
Upon the basis of the record as a whole and from my observation of the witnesses,
I make the following:
FINDINGS OF FACT
On December 14, 1961, pursuant to due notice to the parties, a hearing in the
original proceedings was held before Trial Examiner Wallace E. Royster.
On February 2, 1962, Trial Examiner Royster issued his Intermediate Report
and Recommended Order in which he found that Respondent had engaged in cer-
tain unfair labor practices. He further found that, in order to effectuate the policies
of the Act, the Board should order Respondent, its officers, agents, successors, and
assigns to (1) cease and desist from engaging in the conduct found to be violative of
the Act; (2) offer Essary immediate and full reinstatement to his former or sub-
stantially equivalent position; and (3) make Essary whole for any loss of pay he
may have suffered by reason of the discrimination against him.
In addition, Trial Examiner Royster recommended that Respondent post copies
of certain notices, addressed to all Respondent's employees, at such places where
notices to its employees were customarily posted. Said notices read, in part, as
follows:
WE WILL offer to Ernest Essary immediate and full reinstatement to his former
or substantially equivalent position, without prejudice to [his] seniority or other
rights and privileges, and make him whole for any loss of pay suffered by reason
of his discharge on September 26, 1961.
Respondent filed with the Board timely exceptions to Trial Examiner Royster's
Intermediate Report and Recommended Order.
On June 27, 1962, the Board issued its Decision and Order in which it adopted,
with certain minor modifications, the findings, conclusions, and recommendations
contained in Trial Examiner Royster's Intermediate Report and Recommended
Order.
The Board's order directed Respondent , its officers, agents, successors , and as-
signs, to take, among other things, certain affirmative action which the Board deemed
would effectuate the policies of the Act, to wit: (1) to offer Essary immediate and
full reinstatement to his former or substantially equivalent position; (2) make Es-
sary whole for any loss of pay he may have suffered by reason of the discrimination
against him, in the manner set forth in "The Remedy" section of Trial Examiner
Royster's Intermediate Report and Recommended Order; and (3) post at its place
of business copies of certain notices at such places where notices to its employees
were customarily posted.
On September 17, 1963, the Court of Appeals for the Ninth Circuit handed down
its decision enforcing, without modification, the Board 's Decision and Order. There-
after, the aforesaid Circuit Court of Appeals entered its Decree ordering Respond-
ent, its officers, agents, successors, and assigns to abide by and perform the direction
contained in the Board's order of June 27, 1962.
Respondent's answer to the specification, averred, among other things, that
Essary was unconditionally offered reinstatement on February 19, 1962. With re-
spect to said averment, Respondent argues that if any backpay is due Essary it should
not be financially liable for any moneys beyond said date. This argument is with-
out substance or merit.
Essary credibly testified without contradiction that prior to leaving on January 15
or 16, 1962, his Burley, Idaho, home for Winslow, Arkansas, he informed Respond-
ent's personnel office that his new mailing address would be c/o General Delivery,
Winslow, Arkansas; that on February 27, 1962, he received a letter signed by Re-
IDAHO POTATO PROCESSORS, INC. 649
spondent's counsel, dated February 19, 1962; 4, that the same day, he received said
letter he telephoned from, Winslow and spoke to Respondent's then Personnel Di-
rector, Earl Anderson; that when he told Anderson he, received_ the letter of Feb-
ruary 19 and would be in Burley as soon as possible, Anderson said, to quote from
Essary's credible testimony,. "He- wanted to inform me . since they didn't have
a boiler operator anymore, that I would go back on the freezer- tunnel, that that
was all I was' qualified for, at $1.70' an hour"; 5 that Anderson- further said that
he would only be working 351/2 hours a week on the freezer tunnel job; that he
replied he could not.accept_the offer of -reinstatement under, such conditions because
he could not,afford to return with_his_family_ to Burley, rent a furnished place, and
live on the wages offered; that he also told Anderson when he worked on the grave-
yard shift as a boiler operator his rate of pay was $2.15 per hour adding, that when
he had worked on the freezer tunnel job he was paid $1.96 per hour; and that the
conversation-ended when Anderson requested him to write a-letter declining the
proffered job. - -
Under date of March 4, 1962, Essary wrote Anderson as follows:
Due to the cut in salary I mill have,to, refuse your offer of reinstatement.
According to Essary's credible and undenied testimony, he telephoned on March 27
or 28, 1962, from Winslow to Respondent's Burley plant and spoke to General
Manager Bohannon; he informed Bohannon what transpired during his aforemen-
tioned telephone conversation with Anderson; Bohannon stated that Eli Weston,
Respondent's attorney, was handling the matter and Respondent would be governed
by Weston's advice; that same day Weston telephoned him from either Pocatello or
American Falls, Idaho, and told him he would be reinstated to the same job he had
when he was discharged, or to a-similar job, and at $2.15 per hour; he left Winslow
within a day or two after his conversation with Weston and reported to Respondent's
plant for work on April 4, 1962, and he was put to work on his old job at
$2.15 per hour.
At the hearing, it was stipulated between counsel for the Board and counsel for
Respondent that,the appropriate measure of the amount Essary would have earned
had he been employed by Respondent during whatever period is found appropriate is
the amount earned per calendar quarter by Joe B. Wolf. The evidence discloses,
and I find, that Essary is entitled to backpay from September 26, 1961, to April 1,
1962, both dates inclusive. I further find that during the aforementioned period
Essary would have earned as wages during said period the sum of $2,843.
In support of its disclaimer of any financial liability to Essary, Respondent con-
tended at the hearing, and in its brief, that Essary did 'not make a diligent search
for work during the period in question. It would serve no useful purpose to set
forth here at length the places, the labor hiring halls, plants, and the employment
agencies visited by Essary during the period from September 26, 1961, to April 1,
1962, for I am convinced, and find, that Essary made diligent efforts to obtain
work. In fact, within a few hours of his September 26, discharge, Essary registered
with and sought work through the State employment agency-- in his home town of
Rupert, located not far from Respondent's plant.
Respondent further contended that Essary is not entitled to any backpay because he
took himself out of the labor market by engaging in self-employment. The credible
evidence establishes that Essary engaged in self-employment in addition to his regular
employment with Respondent both before and after his reinstatement. This self-
employment consisted,'with the aid 'of his wife, of hauling potatoes and grain for
neighboring farmers.
Essary and his wife also engaged in this potato- and grain-hauling enterprise even
during the backpay period in question. 'This activity, however, did not interfere with
his search for work or, with his availability for work Essary's 1960 income from the
aforementioned hauling grossed $1,441, and only $1,220 in 1961.
'The letter which was addressed to Essary's home in Rupert, Idaho, where he lived
while working for Respondent was forwarded to him in Winslow, Arkansas. It reads as
follows:
This is to inform you that pursuant to the Intermediate Report of the Trial Exam-
iner in the above case (19-CA-23061, we are offering you re-instatement as required
by the Order We'will expect you to report for work within the next two or three days.
s Anderson's statement that Respondent had eliminated the boiler operator job was
clearly false. The credited and undisputed evidence clearly shows that Joe Wolf occupied
Essary's boiler operator job.
650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Since the earnings outlined immediately above cannot properly be considered
interim earnings within the meaning of the Act because said income did not interfere
with his availability for employment , Respondent's contention with respect thereto
is without merit.
CONCLUSIONS AND RECOMMENDATIONS
Upon the foregoing findings of fact and upon the record as a whole, I conclude
that Essary is entitled to backpay as follows:
4th quarter 1961--- -------------------------------------- $ 1,503
1st quarter 1962------------------------------------------ 1,230
2nd quarter 1962----------------------------------------- 110
Total ---------------------------------------------- 2,843
Plus insurance benefits------------------------------------- 120
Gross total due------------------------------------- 2,963
I further find that Respondent is obligated to make Essary whole by payment to him
of the sum of $2 ,963, minus whatever Federal and State taxes are due on the sum of
$2,843, plus interest at the rate of 6 percent per annum beginning on the sum of
$2,963 5 days after the receipt by Respondent of this Supplemental Decision.
It is recommended that the Board adopt the foregoing findings and conclusions.
Amalgamated Lithographers of America , Local 33 and The
Standard Register Company. Case No. 9-CD-71. August 28,
1964
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding pursuant to Section 10(k) of the National
Labor Relations Act, following a charge filed by The Standard Reg-
ister Company, herein called the Company, alleging that Amalga-
mated Lithographers of America, Local 33, herein called the Litho-
graphers, had violated Section 8(b) (4) (D) of the Act. Pursuant
to notice, a hearing was held on March 24, 25, and 26, 1964, before
Hearing Officer Donald G. Logsdon. All parties appeared at the
hearing and were afforded full opportunity to be heard, to examine
and cross-examine witnesses, and to adduce evidence bearing on the
issues. The rulings of the Hearing Officer made at the hearing are
free from prejudicial error and are hereby affirmed. Briefs have been
filed by the Company, by the Lithographers, and by Dayton Printing
Pressmen and Assistants' Union, Local 54, International Printing
Pressmen and Assistants' Union of North America, AFL-CIO, herein
called the Pressmen, which appeared at the hearing as a party to the
dispute.
Upon the entire record in the case, the Board I makes the following
findings :
1. The business of the Company
The Company is engaged in the manufacture of printed business
forms. It has a plant in Dayton, Ohio, which is the subject of the
1 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 Leedom and Jenkins].
148 NLRB No. 62.