Kolpin Bros. Co., Inc.

National Labor Relations Board - Board DecisionsSep 29, 1965

154 N.L.R.B. 1813 (N.L.R.B. 1965)

KOLPIN BROS. CO., INC. 1813 this decision should issue too late for the conduct of an election at that time, the 47 employees expected to be employed during the November 1965 pea-packing season, comprise a substantial portion of the comple- ment of employees that are engaged in the Employer's year-round operation. Under these circumstances, a postponement of the election until the June 1966 peak would delay those who are employed in the Employer's year-round operation in the exercise of their rights under the Act.3 Accordingly, we shall direct that the election be held on a date during the next representative season, at a time when the Regional Director determines that a representative number of employees are employed in the designated unit during the payroll period immediately preceding the date of the issuance of the notice of election .4 [Text of Direction of Election omitted from publication.] 3 Cf. The Baugh Chemical Company, 150 NLRB 1034. 4 The Board denies the Petitioner's request that eligibility to participate in the election be limited to those employees who were employed during the 1963 season. We see no reason to depart from our customary eligibility date . Libby, McNeill d Libby, supra Kolpin Bros . Co., Inc. and Textile Workers Union of America, AFL-CIO . Case No. 30-CA-36 (formerly 18-CA-1779). Sep- tember 29,1965 SUPPLEMENTAL DECISION AND ORDER On June 2, 1965, Trial Examiner Frederick U. Reel issued his Sup- plemental Decision in the above-entitled proceeding, recommending that employees Dora Jones and Leone Smoody be awarded backpay, as set forth in the attached Trial Examiner's Supplemental Decision., The Respondent 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 Brown]. 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 Supple- mental Decision and the entire record in the case, including the excep- tions and brief, and hereby adopts the findings, conclusions, and rec- ommendations of the Trial Examiner. i The Board , by Decision and Order of December 7, 1964, Kolpin Bros. Co , Inc., 149 NLRB 1378 , directed Respondent to make whole certain employees for their losses result- ing from the Respondent's unfair labor practices 154 NLRB No. 148. 1814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Supplemental Order recommended by the Trial Examiner, and orders that the Respondent, Kolpin Bros. Co., Inc., Berlin, Wis- consin, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's recommended Supplemental Order. TRIAL EXAMINER'S SUPPLEMENTAL DECISION This supplemental proceeding for the purpose of determining backpay due two employees under the terms of the Board 's Order in this case , issued December 7, 1964, 149 NLRB 1378, was heard at Berlin , Wisconsin , before Frederick U. Reel on March 23, 1965. Upon consideration of the entire record, including the briefs filed with me by General Counsel and by counsel for Respondent , and including also the record and briefs in the prior hearing in this matter, I make the following find- ings, conclusions , and recommendations: A. Procedural status of the case The Board 's Order in this matter , not as yet the subject of enforcement or review proceedings in any court , directed , inter alia, that Respondent offer reinstatement to employees Jones, Trampf, and Smoody , and make them and employee Grahn whole for loss of earnings suffered as a result of the discrimination against them. The instant backpay proceeding is concerned solely with employees Dora Jones and Leone Smoody. The Regional Director 's backpay specification issued March 5, 1965, and amended to correct an arithmetical error March 15, 1965, recited, inter alia, that Jones' back- pay period begins November 26, 1963, and "ends January 5, 1965, when she accepted reemployment ," and that Smoody 's backpay period begins November 26, 1963, and "ends January 8, 1965 when she accepted reemployment ." Notwithstanding these allegations , counsel for the General Counsel early in the hearing attempted to adduce testimony that the job which these employees accepted early in January 1965 (and which they left the following month ) were not "their former or substantially equiv- alent positions" as required by the Board 's Order, and that the backpay period had not terminated . At that time the Trial Examiner stated that he would not hear evidence as to the inadequacy of the January 1965 reinstatements . At the conclu- sion of the hearing counsel for the General Counsel moved to amend the specification to delete therefrom the concession that the backpay periods had ended , although he also made it clear that he was not at this time seeking any monetary award for the period subsequent to that embraced by the specification . The motion to amend was taken under advisement. I hereby grant the motion to amend insofar as it goes to deletion of the concession that the backpay period has ended . General Counsel 's right to amend the specifica- tion is specifically preserved in Section 102 .57 of the Board 's Rules. The effect of permitting the amendment is simply to leave open and unanswered the question whether backpay for either or both of these employees terminated in January 1965. Respondent cannot he affected by this amendment , unless General Counsel issues a new supplementary backpay specification , in which event Respondent will have full opportunity to file an answer thereto and to adduce evidence in support of its position. All that Respondent can complain of on this record is that for the period between March 5, 1965 ( the date of the original backpay specification) and March 25, 1965 (the date of the hearing ), General Counsel had led Respondent to believe that in the view of the Government , the backpay had terminated . Even aside from the rule that estoppel cannot he invoked against the Government in such circumstances, Respondent has suffered no harm from the shift of position . The question whether the backpay period terminated in January 1965 was not fully litigated before me, and I do not decide it or imply any position with respect thereto . My decision in this case embraces only the amounts to which the backpay claimants are due until January 1965 ; 1 do not decide, or imply any opinion on, the question whether back- pay terminated on that date. KOLPIN BROS. CO., INC. 1815 Insofar as the General Counsel 's proffered amendment at the close of the hearing embraces an allegation that "Employees Smoody and Jones have never been offered reinstatement to their same or substantially equivalent employment as required by the Board 's Decision and Order" the motion to amend is denied on the ground that the matter was not sufficiently litigated and that Respondent had not been put on notice that the matter was at issue . As the foregoing decision makes clear , this denial is without prejudice to the right of General Counsel to litigate this issue upon proper pleadings in a subsequent backpay or other appropriate proceeding , should any such be instituted. B. Backpay due Dora Jones from November 26, 1963, to January 5, 1965 The backpay specification alleges that Jones' net backpay for the period in question amounted to $1,969.63, plus interest. The detailed computation is set forth in the Appendix, infra. The specification reflected a deduction from gross backpay for interim earnings , and also reflects that in 1964 from February 6 to March 24 and from September 26 to November 1, Jones for reasons of health was unable to work. Respondent challenged the backpay specification on two grounds only, alleging that it had no work for Jones during the backpay period and that she was physically incapacitated throughout . These are matters on which Respondent bears the burden of proof ( see, e .g., N.L.R.B. v. Brown & Root , Inc., etc., 311 F. 2d 447, 454 (C.A. 8), and cases there cited ), and I find for reasons outlined below that it failed to sustain this burden. The contention that no work existed for Jones rests on the claim that the Company discontinued making an item , fishing reel cases, on which she had been primarily employed for several months for each year. The Company further contends that it offered Jones a job in February 1964 which was equivalent to her last employment. Even assuming a curtailment or discontinuance of work on reel cases, however (Plant Superintendent Barnhart testified that he did not know whether more or less such cases were produced in 1964 than in 1963, but Company President Kolpin testified to a drastic curtailment of that item in 1964), the record is clear that the Company's total employee complement remained relatively constant at from 56 to 58 throughout the entire period despite a constant turnover of employees at the rate of about two per month. The alleged discontinuance of reel case work did not affect total employ- ment at the plant, and the record establishes that Jones was capable of performing a variety of jobs in the plant, as prior to her discriminatory discharge the Company, as Kolpin admitted, "found other work in other departments for her" when her regular work was slack. Moreover, the record of both the original hearing in this matter and of the backpay hearing disclose that the Company had in fact hired other specific individuals to perform Jones' work. The Company's original excuse for Jones' discharge was that it was economically motivated, and the Board's rejection of this contention settles the matter, so far as I am concerned, as of the date of the layoff. In the backpay proceeding I permitted the Company to attempt to establish that at the time Jones expressed herself as fit for work in March 1964 no job was open for her, but the record shows that as of that time the Company was employing a replacement for Jones in her former job. Hence, even if the issue be deemed open as to the latter date (and the Board's decision in the original proceeding seems to establish that work was available for Jones in March 1964), the Company has fallen short of proving that work was unavailable; indeed, the record establishes the precise opposite as it shows that employees hired since Jones' discharge did work she had previously performed. With respect to Jones' physical qualifications, the record discloses that she was under a doctor's care for part of the backpay period, and the backpay specification so reflects. Indeed, the backpay specification precludes her recovery for the period February 6, to March 24, 1964, although records of the Industrial Commission of Wisconsin, which the Company introduced, indicated that her physical incapacity which existed on February 12, 1964, had ceased by March 7. On the other hand the Company produced a doctor's statement dated March 9, 1964 , advising that Jones "has been advised to discontinue her regular employment until treatment has been completed." Jones testified that she had a contrary statement from the same doctor, attesting her capacity to work, as of that date, but that she had left it with the State Industrial Commission. Jones obained employment at another plant early 1816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in May 1964 and worked there ' until June 26.1 The entire affair is shrouded in mys- tery, and the record does not explain why General Counsel used March 24 as the date on which her physical disability ended, why the Company if it felt she was physically incapacitated , offered her a job as a stitcher on March 9 , and why in the unfair labor practice hearing early in April 1964 , when this matter was explored at length , the Company failed to produce the doctor's statement . Under all the circum- stances, I deem it necessary to set forth the details of this matter in a brief chronology. Jones was discharged in November 1963. On February 11, 1964, the Company offered her a job which she was unable to accept because she was undergoing medical treatment . The State Industrial Commission so held in an unemployment compensa- tion decision dated March 19, 1964. Meanwhile, on March 7, Jones telephoned the Company to request her old job, and on March 9, she reported ready to work. On this occasion the Company told her that it had hired someone for her former job, and offered her a full-time sewing job which she declined. These matters were covered in the prior proceeding in this matter , and the Board held that , as of that date , she had not been offered reinstatement to her former or substantially equivalent employment . At the March 9 meeting , according to Jones, she had a release from her doctor in her possession but did not show it to Kolpin as he did not request it. Jones testified that the release in question is now in the custody of the State Industrial Commission , and for reasons which will be apparent at the conclusion of this chron- ological recital , I credit her testimony in this regard . Kolpin testified that after his interview with Jones on March 9, he telephoned Jones' doctor, and the next day received from him a statement dated March 9 that Jones "has been advised to dis- continue her regular employment until treatment has been completed ." This docu- ment although assertedly in the Company's hands at all times since March 10, was not introduced at the first hearing in this matter on April 8 , 1964, when the events of March 9 were otherwise quite thoroughly explored , including the fact that Kolpin had telephoned the doctor on March 9, a fact which Jones at that hearing testified she learned from the doctor . Yet the record of that hearing shows that Kolpin was present and heard Jones' testimony , which was quite detailed as to her physical ability to work on March 9 . The State Industrial Commission also either was not apprised of the doctor's March 9 note to the Company or else gave it no weight, as will appear below. As noted above , the State Industrial Commission in an unemployment compensa- tion decision dated March 19, 1964, had found Jones unable to work on February 12. In a second decision , dated April 9, 1964 , the State Industrial Commission found that as of March 7, 1964, Jones had unjustifiably refused a job offered by the Company, and was therefore ineligible for benefits beginning with that week. The Board, of course , has made a contrary determination as to the adequacy of the job offered in March , but what is significant here is that the State Industrial Commission made no reference in this determination to any physical disability existing as of March 9, 1964. In May 1964 Jones obtained work elsewhere which terminated at the end of June. Thereafter she again filed for unemployment compensation , and this time the claim was sustained in a decision dated July 28, 1964, which recited, interia alia, that "sub- sequent to week 10 of 1964 [i.e., subsequent to March 9] the employee became physically able to work ...... An appeal tribunal of the State Industrial Commission on December 8, 1964 , after a hearing on October 13, 1964 , sustained this decision, reciting the background of prior decisions by the Commission and concluding that "The employer 's offer of week 10 of 1964 had been refused and cannot , for unemploy- ment compensation purposes , be considered a continuing offer of work ." A full con- sideration of the various decisions of the Commission leads me to infer that it was satisfied that Jones ' physical inability to work to which it referred in its first decision had ceased by March 9 . This result tends to confirm Jones' testimony that she gave the Commission the doctor 's release which she testified was in her possession on March 9 , and it further suggests that the Commission either was not furnished, or did not credit , the contrary statement of the doctor which the Company assertedly had in its possession at all times after March 9. With the record in this state , I am inclined to the view that at least by March 24 (the date set forth in the specification ) Jones was able to work . If reviewing authori- ties disagree with this finding , they will presumably find that her backpay cannot start i The specification erroneously places this employment in the third quarter of 1964. I rely on the State Industrial Commission report as more accurate in this respect. KOLPIN BROS. CO., INC. 1817 to run until May 11, 1964, when by accepting other employment (at a lower rate of pay than she received at the Company) she demonstrated her physical ability to work. But I credit the testimony of Jones that she was ready to take her former job on March 9 and had in her possession at that time a medical release. I am frankly puzzled by the contrary statement of the doctor which the Company produced for this proceeding after apparently suppressing it on several prior occasions, but I am inclined, as stated above, to "go along with" the findings of the State Commission and Jones' testimony, particularly as this is an issue upon which the Company carries the burden of proof. The Company also argues that it never actually received a statement of Jones' physical ability to work until December 1964. But apart from the fact that the Company did not ask to see the statement Jones had with her on March 9, this con- tention must fall because the Company never fulfilled its obligation to offer Jones reinstatement to her former job or its substantial equivalent. The sewing jobs offered Jones were not adequate offers of reinstatement. So much, at least, is settled for purposes of the proceeding before me by the Board's approval of Trial Examiner Whittemore's finding after a hearing in April 1964, that "at no time since her dismissal has Jones been offered reinstatement to her former or substantially equivalent employ- ment." That issue is not now subject to relitigation. Cf. N.L.R.B. v. Biscayne Televi- sion Corporation, 337 F. 2d 267, 268 (C.A. 5). I therefore conclude as to Jones that she is entitled to backpay as prayed in the specification, except that her interim earnings should be credited to the second, rather than the third, quarter of 1964. The detailed computation as to Jones is set forth in the attached Appendix. C. Backpay due Leone Smoody from November 26, 1963, to January 8, 1965 In Smoody's case the Board, reversing the Trial Examiner, held that the job offered her in March 1964 was not her regular job and was not substantially equivalent employment. The Company made no further offer to her until January 1965. The Company's only contention regarding Smoody's backpay is that it had no job which Smoody could have filled as her previous specialty, turning reel cases, was no longer performed by the Company, and her trouble with her feet prevented her from taking any other jobs as they all required the employee to stand all day. The record falls far short of sustaining the Company's contention (on which it bears the burden of proof) in this regard. The testimony of Plant Superintendent Barnhart establishes that there are a number of "sitting" jobs in the plant. Smoody at the initial hearing testified to having performed a great miscellany of jobs, including some which Barn- hart described as "sitting" jobs. Although the Company claimed that Smoody's employment had been sporadic, and has been geared to the production of reel cases, the record shows that she had been employed for 14 consecutive months before her discriminatory discharge. Kolpin admitted that Smoody, and other employees of similar classification (i.e., "general" workers, not "sewers") would move from job to job within the plant as production needs varied. I cannot find on this record, which shows a high rate of turnover but a steady level of employment, that Smoody sud- denly became incapacitated for any and all jobs after her discriminatory discharge. I therefore conclude that Smoody is entitled to backpay as prayed in the specification. The detailed computation as to Smoody is set forth in the attached Appendix. CONCLUSIONS AND RECOMMENDATIONS On the basis of the foregoing findings and conclusions, and on the entire record in this case, I recommend that the Board issue the following: SUPPLEMENTAL RECOMMENDED ORDER Respondent Kolpin Bros. Co., Inc., its officers, agents, successors, and assigns shall pay to Dora Jones the sum of $1,969,63, and to Leona Smoody the sum of $2,823.91, with interest to each at the rate of 6 percent per annum, computed on the basis of the calendar quarters as set forth in the Appendix to the Trial Examiner's Decision, less the tax withholding required by Federal and State laws, as backpay due each under the Board's Order herein for the period ending with their reemployment in January 1965. This determination is without prejudice to their right of any party to assert that their respective reemployments in January 1965 did or did not achieve compliance with the reinstatement provisions of the aforesaid Order. 1818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Calendar quarter APPENDIX BACKPAY COMPUTATIONS 1. DORA JONES Hours and rate of pay Gross backpay Interim earnings Net backpay 4th-1063 ------------------------------- 200 at $1.25-------- $250.00 $0.00 $250.00 lst-1964 -------------------------------- 248 at $1 .25-------- 310.00 0.00 310.00 2d-1964--------------------------------- 520 at $1 .25-_------ 650.00 320.37 329.63 3d-1964---- ---------------- 504 at $1 .25----_--- 630.00 0.00 630.00 4th-1964 --------------------------------- 344 at $1.25____-_-- 430.00 0.00 430.00 lst-1065- -------------------------------- 16 at $1.25------ -- 20.00 0.00 20.00 Total Net Backpay 1,969.63 2. LEONE SMOODY 4th-1963_ -__ ---------------- 200 at $1.25_------- 250.00 0.00 250.00 1st-1964 --------------------------------- 520 at $1.25-------- 650.00 0.00 650.00 2d-1964--------------------------------- 480 at $1.25_------- 600.00 36.09 563.91 3d-1964 ------------------------ 528 at $1 .25-___-_-_ 660.00 0.00 660.00 4th-1964--------------------------------- 520 at $1.25-----_-- 650.00 0.00 650.00 lst-1965-- ------------------------------- 40 at $1 .25--_--__-- 50.00 0.00 50.00 Total Net Backpay 2,823.91 Sears, Roebuck and Co. and Truck Drivers , Chauffeurs & Helpers Local Union No. 100, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Petitioner. Case No. 9-RC-5691. September 29,1965 DECISION ON REVIEW AND ORDER On March 13, 1964, the Regional Director for Region 9 issued a Decision and Direction of Election in the above-entitled proceeding in which he found appropriate a unit of employees employed by the Employer in departments 8820 and 1050-W at its Lincoln Avenue building in Cincinnati, Ohio. Thereafter, pursuant to Section 102.67 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, the Employer filed with the Board a timely request for review and oral argument with respect to the Regional Director's Deci- sion on the grounds that his findings were in error and a departure from officially reported Board precedent. By telegraphic order dated April 15, 1964, the Board granted the request for review and stayed the election pending decision on review. Pursuant to the provisions of Sections 3(b) of the National Labor Relations Act, as amended, the Board has delegated its powers in con- nection with this case to a three-member panel [Members Fanning, Brown , and Jenkins]. 154 NLRB No. 151.