Mastro Plastics Corp.

National Labor Relations Board - Board DecisionsFeb 12, 1964

145 N.L.R.B. 1710 (N.L.R.B. 1964)

1710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All our employees are free to become, to remain, or to refrain from becoming or remaining members of a labor organization of their own choosing. BIG THREE WELDING EQUIPMENT COMPANY, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 6617 Federal Office Building, 515 Rusk Avenue, Houston 2, Texas, Telephone No. Capitol 8-0611, Extension 271, if they have any question concerning this notice or compliance with its provisions. Mastro Plastics Corporation and French-American Reeds Manu- facturing Co., Inc. and Local 3127, United Brotherhood of Carpenters and Joiners of America . Case No. 2-CA-1799. Feb- ruary 12, 1964 SECOND SUPPLEMENTAL DECISION AND ORDER On March 13, 1953, the National Labor Relations Board issued a Decision and Order in the above-entitled case,' directing, inter alia, that the Respondent make whole certain employees discriminatorily discharged by the Respondent. Thereafter, the Board's Order was enforced in full by the United States Court of Appeals for the Second Circuit on July 16,1954,2 and subsequently that judgment was affirmed by the United States Supreme Court on February 27, 1956.3 On June 14, 1960, the Regional Director for the Second Region issued a backpay specification, and, after several procedural diffi- culties, the Respondent filed a sufficient answer. Upon appropriate notice, a hearing was held before Trial Examiner Morton D. Friedman for the purpose of determining the amounts of backpay due the claimants. On April 24, 1962, the Board issued its Supple- mental Decision and Order,4 adopting, inter alia, the Trial Examiner's recommendation that the amounts of backpay specified as to nine employees who could not be located I be held in escrow until such time as the Respondent and the General Counsel were afforded a reasonable opportunity to examine these claimants. Pursuant to the Board's Order of April 29, 1963, a second supple- mental hearing was held before Trial Examiner Morton D. Friedman on July 17 and 18, 1963, to examine the nine claimants. The testi- 1103 NLRB 511. 2 N.L R.B v. Mastro Plastics Corp., et al , 214 F 2d 462 (C.A. 2). 3 Mastro Plastics Corp., et al. v. N.L.R B., 350 U.S. 270 4 136 NLRB 1342. 1 Jose Avalo, Luis Diaz, Peter Golpe, Isiah Smith, Salvatore Tripolone, Henry Vargas, Katherine Crawford Rall, Thelma Delbagno Fisher, and Michael Valentine. 145 NLRB No. 158. MASTRO PLASTICS CORPORATION 1711 mony was submitted to the Trial Examiner in the form of exhibits constituting, for the most part, the transcripts of oral examinations of the claimants taken in the presence of Respondent and the General Counsel.6 On October 23, 1963, the Trial Examiner issued the attached Supplemental Decision, in which he found that all the claim- ants except Peter Golpe were entitled to specific amounts of backpay. Thereafter, 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 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 entire record in this case, including the Trial Examiner's Supple- mental Decision and the Respondent's exceptions, and hereby adopts the findings, conclusions, and recommendations of the Trial Ex- aminer with the modification set forth below. We disagree with the Trial Examiner's recommendation as to claimant Thelma Delbagno Fisher. Her backpay period begins March 12, 1951. She found employment with National Biscuit Company in the Bronx in September 1951, and sometime in October 1951 moved to Stamford, Connecticut, with her husband. She was unwilling to commute the approximate 30 miles to the Bronx, and gave up her job with National Biscuit at that time. In our earlier supplementary proceeding where we were confronted with a similar situation in the case of claimant Flora Capers, we stated as to her : Although a claimant may seek a job beyond the vicinity of the labor market and still be entitled to backpay, nevertheless it appears here that her reason for leaving the vicinity had nothing to do with seeking a job and that she would also have left her job at Mastro. For that reason we disallowed Capers' claim from the time she left the vicinity of the labor market, and so we do likewise in the case of Fisher. However, since the record does not show the exact date when Fisher moved to Stamford, we direct the Regional Director to re- compute her backpay in accordance with the conclusions of this Decision (see Appendix A for tentative computation). Â° Claimant Peter Golpe refused to appear for examination as ordered by the Board Although Isiah Smith did not appear at the hearing to be examined , the Respondent stipu- lated that It had no evidence to contradict the facts, as stated in the specificaion , with re- gard to Smith. 1712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER On the basis of the foregoing Second Supplemental Decision and Order and the entire record in this case, the National Labor Relations Board hereby orders that the Respondent, Mastro Plastics Corpora- tion and French-American Reeds Manufacturing Co., Inc., New York, New York, its officers, agents, successors, and assigns, shall pay to the employees involved in this proceeding as net backpay the amounts awarded to them in the Trial Examiner's Supplemental Decision, with the exception of Thelma Delbagno Fisher, who shall be paid the amount awarded to her in this Second Supplemental Decision and Order, as stated above. APPENDIX A Backpay specification of Thelma Delbagno Fisher as amended in accordance with the above Second Supplemental Decision and Order. Year and quarter Hourly rate Hours Gross backpay Net interim earnings Net back- pay 1951-1 ------------------------------------- $0.90 80 $72 CO None $72.00 1951-2-- ---------------------------------- 90 520 468 00 None 468 00 9C 440 396 00 ------------ ------------ 1951-3__________________ 1 90 48 143 20 $144 18 295 02 1951-4 (to 10/31/51)2----------------------- 90 176 157 40 110 10 47 30 Total---------------------------------- ------------ ----------- ------------ ------------ 882 32 1 Vacation pay, per paragraph I, E, specification 2 Date estimated on basis of her earnings at National Biscuit Company, which was her last employment before moving to Stamford This is subject, as stated above, to the fixing by the Regional Director, if possible, of an exact date upon which Fisher left her employment with National Biscuit Company TRIAL EXAMINER'S SUPPLEMENTAL DECISION STATEMENT OF THE CASE This is a Second Supplemental proceeding heard before Trial Examiner Morton D Friedman in New York, New York, on July 17 and 18, 1963, held pursuant to an order of remand by the Board dated April 29, 1963, and the Board's Supplemental Decision and Order,' for the purpose of affording the Respondent an opportunity to examine nine claimants who did not testify during the First Supplemental hearing, as to their interim earnings and activities and to determine the amounts of interim earnings of each claimed to be deducted from the awards of gross backpay, heretofore determined to be due the claimants in the Board's Supplemental Decision and Order. The testimony was submitted to the Trial Examiner in the form of exhibits constitut- ing, for the most part, the transcripts of oral examinations of the claimants taken at various times from the date of the Board's Order of remand to the date of the hearing. In those examinations all parties were afforded full opportunity to examine and cross-examine witnesses and to introduce evidence.2 131astio Plastics Corporation and French-American Reeds Manufacturing Co, Inc, 136 NLRB 1342 2 Claimant Luis J Diaz was located in Puerto Rico and his deposition was taken before an officer of the Board's Twenty-fourth Regional Office This deposition, together with a stipulation that it be admitted in evidence, was submitted to the Trial Examiner after the hearing was adjourned for the purpose of the taking of the deposition. This deposition was taken upon written interrogatories determined and settled by the General Counsel and counsel for the Respondent Accordingly it is accepted and given the same weight by the Trial Examiner as though it were taken orally. Claimant Isiah Smith was not examined nor was he requested to submit a deposition. MASTRO PLASTICS CORPORATION 1. THE INDIVIDUAL CLAIMS A. Jose Avalo 1713 Avalo's backpay period begins March 12, 1951, and ends March 9, 1956. Ac- cording to the specifications , Avalo 's net backpay is $3,293.72. Avalo was employed in 19 of the 21 quarters comprising the backpay period. Dur- ing the periods of unemployment he registered with the New York State Employ- ment Service or with the National Maritime Union hiring hall. Moreover , he also made efforts to find jobs and did in fact find one job through a private employment agency. On the whole , Avalo's record shows that he made a conscientious effort to work or find work during the entire backpay period. The Respondent contends that at several times Avalo incurred willful loss of earnings due to his own fault. Thus , at one time , Avalo was referred to a job by the New York State Employment Service but he did not accept that job be- cause it required that he be left alone to operate a molding machine from approxi- mately 5 p.m. in the evening until 12 midnight with no one else in the plant. He testified he was afraid that if a machine broke down he would be blamed for it. I find that on this basis the job offered him was not equivalent to the job that he held at Mastro where he was always working with other people, including his supervisors. I find, accordingly , that his refusal to take this job was not equivalent to incurring willful loss. The Respondent also contends that he left his position with Schaeffer Company, which employment he secured through a private employment agency, without good cause. However work that he performed at Schaeffer 's was out-of-doors work and he was required to report at his own expense every day regardless of the weather. If the weather was bad, he was sent home without compensation . Finally, upon one occasion when the weather was bad Schaeffer called and asked why he did not report. Avalo instructed his daughter , who answered the telephone , to hang up. Because of these prevailing conditions I do not find that the job with Schaeffer was equivalent to the job that Avalo held at Mastro. Accordingly , I find the condition imposed upon him at the Schaeffer Company was such as to give him good cause to quit. Additionally , the Respondent claims that Avalo left, without cause, his position on board a ship of the American Export Line where he worked as a steward. Avalo testified that he left because of an argument with the ship's cook . However, the record shows that this occurred at a period when Avalo's interim earnings exceeded the gross backpay due him and , therefore , no claim is made for this period. Ac- cordingly , this quitting did not in any manner affect the amount claimed. There is one other issue with regard to Avalo. The Respondent contends that Avalo received board and room while working aboard ship during that period when he went back to sea. However, the Respondent , whose burden it is to establish interim earnings , offers no evidence as to the monetary value of the room and board but merely argues the fact that room and board constitutes additional pay. Since no evidence is offered I shall disregard this contention? Accordingly I recommend that Avalo be awarded the amount claimed in the specification. B. Katherine Crawford Rall4 Rail's backpay period begins March 12, 1951 , and ends March 9 , 1956. Accord- ing to the revised specification , the net backpay claimed is $2,224.90. Rail was employed in 19 of the 21 quarters comprising the backpay period. For the first and second quarters of 1951 , directly after the strike at Mastro ended, she was employed as a packer by a toy company . Her husband died in June 1951 and for obvious reasons she ceased working for 2 weeks after his death . After the 2 weeks, she went back to her job at the toy company and was refused employment. Under the circumstances, I find that the quit of 2 weeks was justified . After that Rail made a diligent search for work by looking in the want ads of the New York Times and Herald Tribune and answered about three ads a week . She also visited local department stores and factories and constantly looked for work. Her efforts at direct canvassing were successful , and in the first quarter of 1952 she obtained s It might also be argued that because living on board ship was for the convenience of the employer , the room and board furnished was not a part of Avalo's compensation. I This individual is identified in the specification as Katherine Crawford . She has since remarried and her name is now as shown above. 734-070-64-vol. 145-109 1714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employment with Schieffelin & Co. Her employment with Schieffelin lasted through the remainder of the backpay period. The Respondent offers no testimony or other evidence to show that Rall incurred willful loss, or that she had interim earnings other than those shown in the specifi- cation. Accordingly, I find that Rall is entitled to the amount of net backpay claimed for her in the specification. C. Thelma Delbagno Fisher 5 Fisher's backpay period begins March 12, 1951, and ends March 9, 1956. Ac- cording to the revised specifications , the net backpay due Fisher is $3,594.43. Fisher was employed in 13 of the 16 quarters comprising the backpay period. After the strike at Mastro she worked for the National Biscuit Company in the Bronx and then left her job to move with her husband to Stamford , Connecticut. She began immediately to look for work by reading the newspapers and asking friends and relatives for information as to jobs. After 4 weeks of living in Connecti- cut, she found employment with a Sorenson & Company in Stamford . She left this position after being refused a second raise at a time when she would have received a periodic raise had she continued to work at the Respondent 's plant. After leaving the Sorenson position , Fisher searched for a job through reading the want ads in the Stamford , Connecticut , newspaper but was unable , despite her search , to find employment for 6 months . Finally, she found employment at a hotel but left that job when she was embarrassed by the kitchen manager who super- vised her work as sandwich girl and pie baker. Even though her quitting at this time may not have been completely justified, there is no showing that she did not immediately have employment as she went to work for the Stanley Home Products Company of Westfield, Massachusetts . Her job was to solicit customers for the Stanley products in her home area . This job consisted of making demonstrations and parties at peoples ' homes, thereby selling the product. She purchased the prod- uct from Stanley , and then resold the product to her customers . In this work, she operated her own automobile at her own expense. The Respondent claims that the employment at Stanley was self-employment and, therefore , Fisher removed herself from the job market . Without deciding whether Fisher was self-employed at the time , the Board has already held in its Supplemental Decision in this case 6 that self-employment does not remove a claimant from the job market nor does it toll a claimant 's backpay . Accordingly , if Mrs. Fisher's employment was self-employment and she did not earn as much as she would have earned at Mastro, it is found that the amount of backpay due Mrs. Fisher for that period is nevertheless not reduced? Accordingly, I find that Fisher made diligent search for work and is entitled to the amount claimed for her as net backpay in the specification. D. Luis Diaz Diaz' backpay period begins March 12, 1951, and ends March 9, 1956. Accord- ing to the specification, the net backpay due Diaz is $3,874.50. Diaz was employed during each quarter of the backpay period with the exception of three and was available for work at all times during the backpay period. Although he was ill at one time when he worked for Plastic Fabricators Corporation in 1955 and lost his position because of such illness, he nevertheless earned more during that quarter than he would have earned at Mastro and no claim is made for him during the quarter in which he was ill and unavailable for work. The record further shows that 2 days after the strike at Mastro, Diaz registered at the New York State Employment Service and also registered with employment agencies located at Warren Street, West Farms Road, and other locations within the city of New York. Diaz was even able to name a number of these agencies. One of these agencies sent him to a job at Plactisite Corporation which he held until he was laid off due to lack of business sometime in June 1951. Thereafter Diaz had periods of employment and periods of no employment. Often during the periods of unemployment Diaz worked for his father-in-law in a liquor store. But this job was not always available to Diaz. However, whenever he was unemployed, Diaz 5 This is the individual listed in the specification as Thelma Delbagno. She also has recently remariied and now goes by the name listed above. 136 NLRB 1342 c See also N.L R l3 v. .tnn,strong Tire and Rubber Company, The Test Fleet Branch, 263 F. 2d 680 (C.A. 5). MASTRO PLASTICS CORPORATION 1715 made conscientious efforts to find employment. On the whole I find nothing in Diaz' record and the Respondent has offered no evidence to show that Diaz did not at all times make a bona fide effort to find work. Accordingly, I recommend that Diaz be granted the full amount of net backpay due him according to the specification. E. Peter Golpe This individual, although subpenaed by the General Counsel, refused to testify at the Supplemental hearing as ordered by the Board. The iecord shows that every effort was made to have Golpe come in to be heard and at various times the taking of his testimony was postponed for his convenience. Nevertheless, on the day of the hearing herein, the General Counsel reported that, though he had spoken to someone at Golpe's home on the night before, Golpe had indicated that he did not intend and did not care to pursue the backpay claim in his own behalf. At the hearing, the Respondent moved that Golpe's backpay claim be dismissed and I granted that motion. Accordingly, I do not find that there is any backpay due to Golpe and recommend that he not be given any award. F. Isiah Smith Smith's backpay period begins March 12, 1951, and ends March 9, 1956. Ac- cording to the specification, the net amount of backpay claimed for Smith is $1,196.33. Smith was not subjected to examination. The Respondent and the General Coun- sel stipulated that the Respondent had no evidence to offer that Smith was not self- employed in the practice of law in the State of Florida from the fourth quarter of 1954 through the first quarter of 1956. Nor does the Respondent have any evidence to show that Smith's employment or earnings were other than is set forth in the backpay specification. Nor does the Respondent have any evidence to offer regard- ing Smith's search for employment or availability for work. According to the specification, Smith was employed dui ing the second quarter of 1951, the first quarter of 1952, the first quarter of 1953, and from 1954 on he was self-employed, evidently as an attorney, in the State of Florida. Inasmuch as the Respondent has offered no evidence to show otherwise, I find that the claim for Smith is reasonable and that he has made a reasonable search for work. The Respondent contends, as in the case of claimant Fisher, that Smith's self- employment disqualifies him for backpay. I make the same resolution here that I did in the case of Fisher and find that self-employment does not remove the in- dividual claimant from the labor market so as to disqualify him from a backpay award. Accordingly, I recommend that Smith be paid the amount of net backpay claimed in the specification. G. Salvatore Tripolone Tripolone's backpay period begins March 12, 1951, and ends March 9, 1956. According to the specification, the net backpay owed to Tripolone is $523 Tripolone was fully employed in each of the quarters comprising the backpay period. From the first quarter in 1952 until the end of the backpay period Tripolone was employed by the New York City Housing Authority. The Respondent con- tends that the amount paid into the New York City Employees Pension Fund by the city should be added to Tripolone's interim earnings. He cites as a basis for this con- tention a section of the New York State Constitution,8 which states that member- ship in any pension or retirement system of the State or of a civil division thereof shall be a contractual relationship the benefits of which shall not be diminished or impaired. The Respondent contends that this section of the New York State con- stitution demonstrates that the moneys paid into the retirement fund by the State are additional earnings and must be reflected as such. However, the Respondent did not come forward to offer evidence to demonstrate what these amounts were. Accordingly, without deciding whether or not the New York State constitution sets up a fund which must be credited to Tripolone's interim earnings, inasmuch as there is no evidence of what the amount was paid into the fund by the city, I have no alternative but to find no merit in the Respondent's contention. Accordingly, I recommend awarding to Tripolone the full amount of net backpay set forth for him in the specification. 8 Article 5, section 7 1716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD H. Michael Valentine Valentine's backpay period begins March 12, 1951, and ends March 9, 1956. According to the specification, the net backpay due Valentine is $12,480.86. Valentine was unemployed, except for a short period in the second quarter of 1952, during the entire backpay period. However, the record shows that Valentine worked as a polisher in the shoe form department at Mastro Plastics. This work was done sitting down. Valentine was a victim of polio whose left leg was crippled. He is forced to wear a brace on the leg and is unable to walk very long or very far or stand for an extended period. He was unable to keep the job he had in 1952 with a firm called Perlman Plastics because it involved too much standing. The record further shows that during the entire period from 1951 to 1956 Valentine was never sick or out of town on a vacation. He was on home relief for a period of time after he lost his position at Perlman Plastics and finally, in 1953, he supported himself and his family by taking a superintendent's job in an apart- ment house. He and his wife took care of the house and they were assisted by his two sons. He received for this $20 a month plus an apartment. He remained as superintendent of this apartment until sometime in 1956 or 1957. His sole duty was to take care of the heat He did not have to do any of the repairing and his wife cleaned the halls. Taking care of the heat required that Valentine be on his feet only about 10 minutes each hour. However, during all of this time he actively sought employment. Each time he was referred to a job he was turned down for employment because of his physical condition. Accordingly, I would find that Valentine is entitled to the net backpay claimed for him in the specification. The Respondent maintains, however, that Valentine would not have earned any moneys after the strike because the shoe form department in which he worked at Mastro and the work which he was doing as a polisher was not available after the strike was ended. The Respondent, however, did not offer any evidence to support this claim. Therefore, I find that the Respondent did not meet its burden of going forward with proof as to the claim that there was no employment available at Mastro for Valentine. Accordingly, I recommend that Valentine be paid the full amount claimed for him in the specification. 1. Henry Vargas Vargas' backpay period begins March 12, 1951, and ends March 9, 1956. Accord- ing to the specification Vargas' net backpay is $4,222.42 which includes a $15 agency fee incurred during the fourth quarter of 1951. Vargas was employed at sometime during each of the 18 quarters comprising the backpay period. In 3 of the 18 quarters his interim earnings exceeded his gross back- pay and no claim is made for these quarters. During the entire backpay period, Vargas searched for employment whenever he was unemployed by reading and answering want ads in several of the New York papers and by registering with the New York State Employment Service. The Respondent claims, however, that Vargas quit a number of his jobs and lost a number of them through his own fault and that, therefore, he incurred willful loss. However, the record shows that those jobs he quit, he quit after being refused a raise and that, therefore these jobs were not substantially equivalent to the job he held at Mastro since at Mastro he would have received periodic raises. With regard to those jobs which he lost, the record shows that he was discharged, for example, from the Montano Express Company because he was in jail for 10 days and was refused reemployment when he applied for work. He was fired from several jobs, for instance the jobs at Gerace's Express and Cappy's Express Company, because he did not have sufficient experience for the work. He quit his employment at Tudor Mirror Company because the job was hazardous and because the company refused to pay him overtime which he earned He was discharged from one job be- cause he did not telephone that he was ill. However, the record shows that he was living in a place where there was no telephone at the time and was too ill to go out to make the call. Under the circumstances I find that such a discharge cannot result in willful loss. At one time Vargas went to Chicago to look for work but was unable to find it. This covered a period of about 4 weeks. However, the Board has held that a claimant may seek work beyond the vicinity of the labor market and still be entitled to backpay.9 The record shows that Vargas went to Chicago because he thought the opportunities for work were going to be better than they were in the New York 9 Southern Silk Mills, Ino., 116 NLRB 769. UTICA-HERBRAND TOOL DIV. OF KELSEY-HAYES CO. 1717 area. Upon finding that they were no better, he returned to New York after actively seeking work during his entire period in Chicago. At another time Vargas lost a job because his driver's license was revoked, but he almost immediately found work in another position. It is evident that each time Vargas lost employment he immediately set out to seek better employment and each time he quit he did so in order to improve him- self and thereby reduce the amount of backpay. While it may be true that Vargas was not the ideal employee and while it may also be true that he had a great number of jobs and seemed unable successfully to hold on to many of them, I find that Vargas always made bona fide attempts to keep himself employed. I also find that , although Vargas was jailed, he is nevertheless entitled generally to receive backpay. I shall , however, recommend that the amount of backpay which he would have received during the period he was in jail be deducted from the net backpay computation . I therefore recommend that the sum of $70 be deducted from the net backpay claimed in the specification . This figure is arrived at by assuming that Vargas would have made at least $35 each week at R. Montano during the approximate 2-week period he was in jail . Accordingly, I recommend that the Board award Vargas the sum of $4,222.46 less the $70 which he would have earned had he not been jailed resulting in a net award of $4,152.46. II. SUMMARY OF RECOMMENDATIONS On the basis of all of the foregoing , I recommend that the Board award to the claimants the amounts set alongside each of their names as follows: Jose Avalo------------------------------------------ $3,293.72 Katherine Crawford Rall------------------------------ 2, 224.90 Thelma Delbagno Fisher ------------------------------ 3, 594.43 Luis J. Diaz----------------------------------------- 3,874.50 Isiah Smith------------------------------------------ 1,196.33 Salvatore Tripolone---------------------------------- 523.00 Michael Valentine------------------------------------ 12, 480. 86 Henry Vargas --------------------------------------- 4,152.46 I further recommend that so much of the specification as refers to Peter Golpe be dismissed. Utica-Herbrand Tool Division of Kelsey-Hayes Company and International Association of Machinists, AFL-CIO, Petitioner. Case No. 11-RC-1780. February 12, 1964 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION Pursuant to a Decision and Direction of Election issued by the Regional Director for the Eleventh Region on April 18, 1963, an elec- tion by secret ballot was conducted on May 13, 1963, under his direction and supervision, among the employees in the appropriate unit. Upon the conclusion of the balloting, the parties were furnished with a tally of ballots which showed that, of approximately 460 eligible voters, 418 cast ballots, of which 171 were for, and 245 against, the Petitioner and 2 were challenged. The challenges were insufficient in number to affect the results. The Petitioner filed timely objections to conduct affecting the results of the election. In accordance with the Board's Rules and Regulations, the Regional Director conducted an investigation, and thereafter issued and served 145 NLRB No. 165.