Ripley Manufacturing Co.

National Labor Relations Board - Board DecisionsFeb 11, 1965

150 N.L.R.B. 1696 (N.L.R.B. 1965)

1696 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ripley Manufacturing Company and Southern Illinois District Council International Ladies ' Garment Workers Union, AFL- CIO. Cases Nos. 26-CA-1324, 26-CA-1364, 26-CA-1401, and 26-CA-1423. February 11, 1965 SUPPLEMENTAL DECISION AND ORDER On October 18, 1963, the National Labor Relations Board issued its Decision and Order in the above-entitled proceeding, 144 NLRB 1132, finding, inter alia, that the Respondent had unlawfully dis- criminated against Jean Russell, Aunita Emerson, Joseph Medile, Willie Maye Alford, Rubye Garrett, Josie Hill, and Ruth Steel- man, and ordering that they be reinstated to their former or sub- stantially equivalent positions, and made whole for- any loss of earnings attributable to their unlawful discharge. Thereafter, pursuant to a backpay specification and appropriate notice issued by the Regional Director for Region 26, a hearing was held for the purpose of determining the amounts of backpay due the dis- criminatees. On August 6, 1964, Trial Examiner Lloyd Buchanan issued his attached Supplemental Decision in which he recommended that specific amounts of backpay be awarded to five of the discriminatees and that two others be held to have nothing due and owing them. The General Counsel and the Respondent filed exceptions to the Supplemental Decision, together with supporting briefs.' 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 of the Trial Examiner made at the backpay hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed, except as noted below in connection with the Trial Examiner's rejection of testimony regarding Ruth Steelman's efforts to find employment prior to the Respondent's discriminatory refusal to reemploy her on and after June 9, 1962. The Board has considered the entire record in this case, including its Decision and the Intermediate Report of Trial Examiner Mailer in the unfair labor practice phase of this pro- ceeding, Trial Examiner Buchanan's Supplemental Decision, and the exceptions and briefs, and finding merit in the General Counsel's i No party has taken exception to the Trial Examiner's recommendations as to the amounts of backpay due four of the discriminatees, Garrett, Emerson, Medile , and Alford. We hereby adopt them pro forma. 150 NLRB No. 170. RIPLEY MANUFACTURING COMPANY 1697 exceptions, hereby adopts the findings, conclusions, and recom- mendations of Trial Examiner Buchanan only to the extent con- sistent with this Supplemental Decision and Order.2 Jean Russell: The backpay specification alleged that Russell was entitled to $396, representing the difference between what she had earned in the period June 1962 to March 1963, and the earnings of Bertie Davis in the same period. There is no dispute as to the computation of this figure, if the period selected for comparing Russell's and Davis' earnings is the proper one. The Trial Exam- iner found that Davis was Russell's replacement during the back- pay period, but nevertheless held that Russell was not entitled to any amount because in the 6-month period preceding Russell's dis- discharge she had earned less than Davis. He therefore felt justi- fied in assuming that Russell's earnings during her backpay period would bear the same proportion to Davis' as they had in the selected earlier period and, as Russell's interim earnings were more than what she would have been entitled to under such a calculation, he awarded her nothing. We agree with the General Counsel that the record does not substantiate that he stipulated or agreed in any way that Davis' earnings for the prior 6-month period should be used as a basis for determining what Russell might have earned during her backpay period if she had not been discriminated against. In adopting Trial Examiner Maller's Intermediate Report in this proceeding, we held that Respondent had in fact failed to comply with our Decision and Order in Ripley Manufacturing Company, 138 NLRB 1452, by not reinstating Russell to her former job of hand fore pressing or to a substantially equivalent job. Russell's earnings during her backpay period, beginning in June 1962, were thus adversely affected by Respondent's failure to reinstate her imme- diately to her previous job of hand fore pressing, and thereafter by switching her between machine and handpressing jobs. It seems reasonable to assume that Russell's lower earnings during the 9- month period throughout which she suffered discrimination by being deprived of a normal opportunity to work as a handpresser is attributable to the fact that she was working under less favorable circumstances than was Davis. We reject the Trial Examiner's finding that Russell's entitlement to backpay depends on a com- 2 After the Issuance of the Trial Examiner 's Supplemental Decision, the Charging Union filed a motion to reopen the record to take further testimony , concerning Steel- man's search for employment after the discriminatory refusal to reemploy her on June 9, 1962. The Respondent has filed a statement in opposition thereto. The . motion to reopen the record is denied for the reasons given in our discussion of Steelman 's diligence in seeking work. 775-692-65-vol. 150-109 1698 DECISIONS OF NATIONAL LABOR RELATIONS BOARD parison of her earnings with those of Davis during any period other than the backpay period. We shall award Russell $396, the amount alleged in the backpay specification. Ruth Steelman ; Steelman had been laid off by Respondent for 'nondiscriminatory reasons on April 28, 1961. - She applied for reemployment on June 9, 1962, and was discriminatorily rejected. In our earlier Decision and Order in this proceeding, we adopted Trial Examiner Maller's recommendation that Steelman be offered employment on handsewing, special machine operations, or any comparable operation for which she was qualified. In his Supple- mental Decision, Trial Examiner Buchanan found that Steelman was not entitled to an award of backpay because she had not shown sufficient diligence in seeking employment in Ripley, Ten- nessee, and its environs between June 1962, when she was refused reemployment, and July 11, 1963, when she was finally reinstated. He refused to admit testimony as to her efforts, to find work in the earlier part of her continuous period of unemployment, from April 1961 to June 1962, because he believed that it had no bearing on what would constitute due diligence in seeking work during her backpay period, June 1962 to July 1963. We agree with the General Counsel that in the circumstances of this case, testimony as to efforts to find work during a continuous period of unemployment was relevant to the issue of Steelman's diligence, since midway during her unemployment she was dis- criminatorily refused the opportunity of being rehired. Unsuc- cessful,efforts to find work in and around a town the size of Ripley, Tennessee, for more than a year should certainly be considered in deciding what further effort has to be shown. Although the rejec- tion of such testimony was erroneous, we find that it was not pre- judicial to Steelman because we are satisfied that her search for work during her backpay period exhibits the necessary degree of conscientious application. According to the record, Steelman con- tinued to search for work between June 1962 and July 1963 by renewing her showing of availability at the State employment office, and by applying once again to the Respondent and to at least one other employer in the area. The motion of the Charging Union, mentioned in footnote 2, supra, alleged that Steelman was confused in her testimony as to what period during her 2 years of continuous unemployment was involved in the backpay hearing. Attached to the motion was an affidavit by Steelman in which she named the plants where she had applied-between April 1961 and July 1963. The affidavit lists 36 such contacts during the entire period of her unemployment, of which 14 were during her backpay period. Although, as we have noted above, testimony as to Steelman's attempts to locate employ- RIPLEY MANUFACTURING COMPANY- 1699 ment between April 1961 and June 1962 would have been relevant in connection with her continuing search thereafter, we see no rea= son to remand the proceeding. for additional testimony on this point since the record, even as it now, stands, substantiates' Steel- man's , diligence in attempting to minimize the losses suffered through Respondent's discrimination against her. - Out of a desire to obviate a remand if the Board should disagree with his finding that Steelman had not shown due diligence, the Trial Examiner found that no machine job would have been avail- able for her, that the employee most nearly comparable to her was Jackson, and that the backpay award, based on such comparison of earnings,, should be $1,061.64, rather than the amount alleged in the backpay'specification. We note, however, that Trial Examiner Mal- ler had 'specifically found that a new employee, Pilcher, ' had been hired for a machine job about a month after Steelman had been rejected for reemployment, despite the fact that Pilcher had no experience in the garment industry, while Steelman was an experi- enced operator. It is plain that Steelman should have been given the job which Pilcher obtained. Since a machine job was available for Steelman, the earnings of a machine operator should serve as a basis for com- parison in determining Steelman's award. Jackson, whom Trial Examiner Buchanan and the Respondent agree in regarding as the employee comparable to Steelman, is a fur handsewer who had been hired at the statutory minimum a month before Steelman's backpay period began. Crawford is a machine operator who, the General Counsel contends, is more nearly comparable to Steelman since both are qualified and experienced in the same type of operation and have approximately the same 'seniority. Crawford was, indeed, Steelman's replacement. We agree with the General Counsel that Crawford's earnings during the backpay period would be more representative of what Steelman would have earned in the same period than are Jackson's earnings. We shall, therefore, award Steelman the sum of $2,320 as the amount- she would have earned absent discrimination. Josie Hilt: Trial Examiner Mailer had found that Respondent had discriminatorily refused to consider Hill for reemployment when she applied for work on June 9, 1962. He also found that there were handsewing jobs available which Hill could have performed, and that she was qualified for any machine operating job. However, Trial Examiner Buchanan found that when Hill was finally rein- stated there were no machine jobs available, and he therefore refused to consider the amount earned by Gaines, a machine operator, as representative of what Hill would have earned during her backpay period. Instead, he used- the earnings of 'another employee, Midgett,, 1700 DECISIONS OF NATIONAL LABOR RELATIONS BOARD as the basis for comparison. Midgett's job was hand felling furs, and she had never done the type of work, cleaning coats, which Hill had done before she was laid off and which Gaines was, doing during the backpay .period. Midgett, moreover, was a new employee whose earnings, during Hill's backpay period, were affected by-her frequent absences and loss of work. It appears to us that, but for the dis- crimination practiced against her, Hill's earnings would have been more nearly comparable to those of Gaines than they would have been to those of,Midgett. ORDER On the basis of the Decision and Order in 144 NLRB 1132, the Supplemental Decision of Trial Examiner Buchanan, and the entire record in this case, the National Labor Relations Board hereby orders that the Respondent, Ripley Manufacturing Company, its officers, agents, successors, and assigns, shall make the following employees whole, in the amounts specified herein, for the loss of pay suf- fered by them, with interest and minus the tax withholding required by Federal and State laws. Jean Russell______ $396.00 Aunita Emerson____ $48. 00 Ruth Steelman____ 2, 320. 00 Joseph Medile______ 49.00 Josie Hill________ 1, 358.00 Willie Maye Alford__ 692. 00 Rubye Garrett____ 36.99 TRIAL EXAMINER'S SUPPLEMENTAL DECISION The` Board having in its Decision and Order of October 18, 1963 ,1 directed the Company to make Jean Russell , Aunita Emerson , Joseph Medile , Willie Maye 2 Alford, Rubye Garrett, Josie Hill, and Ruth Steelman whole as therein indicated for loss sustained , a hearing was held before Trial Examiner Lloyd Buchanan at Ripley, Tennessee , on April 20, 1964, on the backpay specification dated March 11, 1964, as amended , and the answer thereto. Upon the entire record of this hearing, and from my observation of the witnesses, I make the following: FINDINGS OF FACT ( WITH REASONS THEREFOR) 1. GARRETT, EMERSON, AND MEDILE The Company declared at the hearing that it was submitting no testimony and raising no question concerning-the backpay specification with respect to these three discriminatees . As to these, I adopt the figures in the specification 3 and find that the backpay obligation to Garrett, Emerson, and Medile will be discharged by pay- ment to them of the amounts of $36 .99, $48, and $49, respectively , with appropriate interest and minus the tax withholding required by Federal and State laws. II. ALFORD With respect to Alford, the Company declared at the hearing that it was submit- ting no testimony concerning the backpay specification except on the issue of her interim earnings . There is no evidence contrary to the allegation that Alford had no interim earnings . The record'does show that during her 4-month backpay period Alford was available for employment and made diligent effort to obtain such in 1144 NLRB 1132. 8 Misspelled "May." S To the extent that the figures in the backpay specification are adopted as indicated, they are incorporated herein by reference . It is unnecessary to repeat them herein. RIPLEY MANUFACTURING COMPANY 1701 Ripley and the surrounding area. I adopt the figures in the specification and find that the backpay obligation to Alford will be discharged by payment to her of the amount of $692, with interest and minus withholding taxes. III. RUSSELL It was testified that Forsythe, the Company's supervisor, told a Board representa- tive that Russell was replaced by Davis, and the General Counsel claims that the latter's earnings represent what Russell would have earned. The Company on the other hand alleges that because of her low production rate,4 Russell would not have earned any more than she did; and in the alternative that Crowder, not Davis, would be a representative employee in her case. I find that Davis-replaced Russell and that Davis' earnings should be used as a measure to determine Russell's backpay. Admittedly Russell's prior earnings were less than Davis' during a prior 6-month period before the discrimination, which it was agreed could be considered as a rep- resentative period and for comparison purposes. (Had there not been agreement on that 6-month period as representative, we could have received and considered evi- dence concerning respective earnings during another and longer period.) On the basis of the evidence of comparative earnings, we are not warranted in- assuming that Russell would have earned as much as Davis or a greater proportion of the latter's earnings during the backpay period than that between their respective earlier earnings. Davis' earnings during the backpay period were $2,259.71. During the represen- tative 6-month period, she earned $1,056.86, while Russell earned $860.79. The appropriate fraction of Davis' earnings during the backpay period is slightly less than Russell's interim earnings of $1,863:93. I find that no backpay is due Russell. IV. STEELMAN Aside from any question of alleged blacklisting in Ripley, which Steelman alone -raised, the most effective testimony concerning her lack of diligence in seeking other employment was given by Alford, whose many efforts to obtain employment in Ripley and its vicinity stand in marked contrast to the single application made by Steelman during her own 13-month period in addition to her two requests made to the Respondent and her occasional appearances at the State employment office. While Steelman's efforts to obtain employment after the backpay period are irrelevant, the suggestion of such efforts to which she several times adverted may reflect her own realization of the inadequacy of her prior attempts. I find that Steelman did not use due diligence in seeking available employment, and that no backpay is due her. It thus becomes unnecessary to find that, under the terms of the Board's Order of reinstatement and backpay, she was not entitled to the job held by employee Crawford; that, as Forsythe testified without contradiction, no machine job was available for her; and that the comparable employee in her case, of the alternative cited, would be Jackson. (Should this finding with respect to Steelman be reversed, and to avoid de novo consideration of the amount due, it may be-noted that backpay due Steelman would be in the sum of $1,061.64.) V. HILL It was agreed at the hearing that, depending on whether the measure of Hill's earnings is the earnings of Gaines or Midgett, the net backpay figure for Hill is $1,358 or $654.35. As with Steelman, the Board directed that Hill be offered "imme- diate employment on hand sewing or special machine operations or on any com- parable operation ...." But as has been noted in Steelman's case, no machine job was available when Hill applied. Nor was any thereafter available. Although Hill could do the work that Gaines was doing, she was not entitled to replace Gaines. There is no basis before us for adopting any amount other than that applicable to Midgett, which amount was agreed upon, whatever her absences. Nor is there any ,basis for evaluating the possibility that Hill might have earned more than Midgett, who was a new employee. I find that the backpay obligation to Hill will be dis- charged by payment to her of the amount of $654.35, with interest and minus with- holding taxes. . I ' 41 cannot adopt the Company's argument that an employee's backpay entitlement should be less than otherwise indicated because she habitually failed to earn the guaranteed rate at which she was paid. Having nevertheless received that minimum rate, she would presumably have continued to receive it even If her production was low. 1702 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the basis of the above findings of fact and upon the entire record in this hearing, I make the following: CONCLUSION OF LAW The net backpay due from the Company is as follows: to Russell, none ; to Emer- son, $48 ; to Medile , $49; to Alford, $692; to Garrett, $36.99; to Hill, $654.35; and to Steelman, none. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusion of law, and upon the entire record in the case , I recommend that the Company, Ripley Manufacturing Company, Ripley, Tennessee , its officers , agents, successors, and assigns , shall: 1. Make Emerson, Medile, Alford, Garrett, and Hill whole for loss of pay suf- fered, by payment to them of the respective amounts of net backpay as hereinabove set forth, with interest and minus the tax withholding required by Federal and State laws. 2. Notify the Regional Director for Region 26, in writing, within 20 days from the date of this Supplemental Decision , what steps have been taken to comply here- with.5 6In the event that this Recommended Order be adopted by the Board , this provision shall be modified to read: "Notify said Regional Director , in writing, within 10 days from the date of this Order , what steps the Respondent has taken to comply herewith." Harrah's Club and International Alliance of Theatrical Stage Employees and Motion Picture Operators of the United States and Canada , Local 363, AFL-CIO. Case No. 00-CA-2839. Feb- ruary 12, 1965 DECISION AND ORDER On October 16, 1964, Trial Examiner Irving Rogosin issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor prac- tices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief, and the General Counsel filed a brief. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Jenkins]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. - 150 NLRB No. 169.