Seamprufe, Inc.

National Labor Relations Board - Board Decisions

Mar 19, 1953

103 N.L.R.B. 763 (N.L.R.B. 1953)

SEAMPRUFE, INCORPORATED 763
comprehend the same region and occupy the same office, the expenses
of which, including rent, are paid by the District Council alone.
Under all the circumstances of this case, we are of the opinion that
District 1 and District Council 1 are one and the same entity. The
District Council is clearly a labor organization," and as Pickman will
negotiate and sign contracts in behalf of the regional organization,
we find that District Council 1 has sufficient interest in the Employer's
employees so as to require its compliance with the filing provisions of
the Act on policy grounds .9 Accordingly, the holding of the election
directed herein is conditioned on the compliance of District Council 1.
If District Council 1 fails to achieve compliance within 2 weeks from
the date of the Direction, the Board's Regional Director will so advise
the Board. No election shall be held unless and until compliance has
been achieved 10
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.
4. The following employees of the Employer constitute a unit ap-
propriate for purposes of collective bargaining within the meaning of
Section 9 (b) of the Act: All production and maintenance employees
at the Employer's Dover, New Hampshire, plant, excluding office
clerical employees, professional employees, guards, and supervisors as
defined in the Act "
[Text of Direction of Election omitted from publication in this
volume.]
MEMBER STYLES took no part in the consideration of the above De-
cision and Direction of Election.
8 Metallic Building Company, 98 NLRB 386; National Clay Products Company et al., 98
NLRB 137.
Cf. Sunbeam Corporation, 98 NLRB 525.
10 Cf. Libby , McNeill & Libby, 90 NLRB 279 ; Franklim Smelting & Ruining Company, 89
NLRB 1394.
11 The parties stipulated to the appropriateness of the unit.
SEAMPRUFE, INCORPORATED and INTERNATIONAL LADIES GARMENT
WORKERS UNION, AFL. Case No. 16-CA-39. March 19, 1953
Supplemental Decision and Determination
On April 8, 1949, the National Labor Relations Board issued its
Decision and Order in this case,l which was thereafter enforced by a
decree entered on February 19, 1951, by the United States Court of
182 NLRB 892.
103 NLRB No. 84.
764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Appeals for the Tenth Circuit. The decree provided, inter alia, that
Edna Clendenon, who had been discriminatorily discharged by the
Respondent, was entitled to receive back pay from the Respondent for
the period of the discrimination against her.
On November 25, 1952, the Board received a "Stipulation of Facts"
executed by the General Counsel and by counsel for the Respondent
and the Union. In this stipulation the parties agreed that the amount
of back pay, if any, due Edna Clendenon be determined by the Board
on the basis of certain facts set forth in the stipulation and agreed to
by the parties. By this stipulation the parties waived notice of hear-
ing, answer, hearing, and oral argument before the Board, reserving
the right, however, to file objections and exceptions to the Board's
findings, conclusions, and recommendations, and order herein, and to
have such findings, conclusions, recommendations, and order reviewed
by the United States Court of Appeals. On December 18, 1952, counsel
for the Union submitted to the Board a memorandum in support of
Clendenon's claim to back pay for the entire period from the date of
her discharge on January 3, 1948, to the date of Respondent's offer of
reinstatement on November 1, 1951.
The Board has considered the foregoing stipulation and memo-
randum, and makes the following findings of fact and determination :
Edna Clendenon was discriminatorily discharged on January 3,
1948, and the Respondent on November 1, 1951, terminated any lia-
bility for back pay by offering her reinstatement. During that period,
she failed to register with the local office of the United States Employ-
ment Service, and to obtain any employment. However, she made
independent efforts to obtain employment by applying directly to vari-
ous business concerns in McAlester, Oklahoma, where she lived
throughout the period in question.
Her first such application after her discharge was made on or about
June 15, 1948, to Elsing's Manufacturing Company, the only garment
factory in McAlester or its environs other than the Respondent. She
was told that she would be called if needed and that Elsing's already
had a long waiting list of applicants. Elsing's at that time had only
11 employees.
About the same time Clendenon unsuccessfully applied for work at
the office of the McAlester Telephone Company. She next sought em-
ployment in August 1949, applying again to Elsing's and was again
told she would be called if needed. In October 1950 she applied for a
job as a nurse's aide at the General Hospital in McAlester, and was
told that she would have to take a first-aid course (without pay), and
even then would have no assurance of employment. She declined to
SEAMPRUFE, INCORPORATED 765
take the course. In July 1951 she again applied to Elsing's with the
same result as before. (Elsing's then had only six employees.) About
the same time, she applied for work at a local laundry and dry-clean-
ing establishment, but without success On November 1, 1951, she was
reinstated by the Respondent.
Acording to records of the United States Census Bureau, McAlester
had a population of 12,401 in 1940 and 17,878 in 1950. The 1947 United
States Census of Manufacturers (Department of Commerce) shows
that McAlester had 22 manufacturing establishments, which during
1947 employed a ccmbined average of 341 employees.
The Board has held that an employee's claim for back pay may be
defeated by proof by the employer that during the period for which
back pay is claimed the employee failed to make a reasonable search
for employment.'
As Clendenon failed to register with the United States Employ-
ment Service,3 it is necessary for the Board to determine in view of
the facts set forth above whether the Respondent has established
that she failed to make a reasonable effort to obtain employment in
McAlester substantially equivalent to her most recent employment
with the Respondent.' In the absence of any explanation for her
failure to apply for work before June 15, 1948, we find that she is
not entitled to back pay for the period from January 3 to June 15,
1948. On that date she applied to the only garment factory in town
other than the Respondent and about the same time applied to the
local telephone company. However, thereafter she waited more than
a year before again seeking work. The burden is on the Respondent
to establish that this was an unreasonably long interval. The only
evidence offered by the Respondent is that set forth in the stipulation.
There is no basis in the stipulation for inferring, as our dissenting
colleague does, that jobs requiring such limited skill as Clendenon
possessed were generally available during the period in question in
McAlester. On the contrary, as already stated, the parties stipulated
that the only avilable records show that during 1947 the average
number of manufacturing employees in McAlester was not more than
341. Moreover, there is no basis for determining what proportion of
the jobs filled by these employees were suitable for Clendenon or
could be performed by a woman of her qualifications. The record
2 Harvest Queen Mill & Elevator Company, 90 NLRB 320.
3 Had she so registered , that fact would have been regarded as conclusive evidence that
she made a reasonable search for employment. Harvest Queen Mill & Elevator Company,
supra, at p 321.
4 An employee is not required to accept a job not substantially equivalent to his former
employment, nor one which required him to leave his place of residence and incur trans-
portation expense. Harvest Queen Mill & Elevator Company , supra, at p. 335.
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shows only that the single garment factory in McAlester (other than
the Respondent) had only 6 to 11 employees of all types, and that she
was told at this factory that she would be called when needed. Upon
such a record, we do not believe that the Respondent has established
that Clendenon's employment prospects were such as to justify im-
posing on her the burden of a considerably more frequent search for
work than she engaged in.5 Certainly, we should not require that she
make a daily canvass of business establishments absent more evidence
than we have here that such a canvass might be fruitful. At the same
time, considering all the factors in the case, it would not be unreason-
able to expect her to make some search for work at intervals of 6
months, and any longer delay in resuming her quest for employment
we do regard as establishing a failure on her part after such 6-month
interval to make a reasonable search for work. We will, accordingly,
grant her back pay only for a period of 6 months from each date on
which she made a search for work. We find, under this formula, that
she is entitled to back pay only for the following periods :
1. June 15 to December 15, 1948.
2. August 1, 1949,6 to February 1, 1950.
3. October 1, 1950,'' to April 1, 1951.
4. July 1, 1951,11 to November 1, 1951.
We find, therefore, that Clendenon is entitled to back pay for a total
of 21 months, and, in accordance with the stipulation herein, we find
that, had she remained in the Respondent's employ, she would have
earned $27 per week during that period., Her total back pay, so
computed, is therefore $2,595.86.
5 Our dissenting colleague refers to the absence of any showing that employment oppor-
tunities were limited in the vicinity in which Clendenon lived . That such opportunities
were in fact limited may be inferred from the available data , cited above, as to employment
in McAlester factories . In any event , the burden was not on Clendenon to show that
employment opportunities were limited , but rather on the Respondent to show , in mitiga-
tioil of its liability for back pay, that there were suitable openings in :McAlester for persons
with Clendenon ' s qualifications.
6 Although the stipulation does not show on what date in August 1949 Clendenon applied
to Elsing' s for the second time , we will assume that such application was made on August 1.
Any error in this assumption would not , in any event , affect the total amount of back
pay due
' The October 1 date is assumed See preceding footnote
8 In assuming the July 1 date , we recognize that if Clendenon ' s third application to
Elsing's was in fact made later in July, Clendenon would benefit somewhat by the error
in the assumed date However , the burden in cases like this is properly on the employer
to show circumstances in mitigation of its obligation to pay back pay. As the only
evidence before us is that Clendenon applied for work in July 1951 , we will, consistently
with our rule as to the burden of proof , assume a date in July most favorable to her.
9It was stipulated that during that period she would have worked an average of 40
hours per week , less an allowance of 10 percent for absenteeism , and that she would have
been paid 75¢ an hour.
SEAMPRUFE, INCORPORATED 767
Determination
Upon the basis of this Supplemental Decision and the entire record
in the case, the National Labor Relations Board hereby determines
that the net back pay due Edna Clendenon under the terms of the
decree of the United States Court of Appeals herein is $2,595.86.
MEMBER PETERSON, dissenting :
The question here, under the Board's precedents, is whether Clende-
non failed to make a reasonable effort to obtain desirable new em-
ployment. I am unable to agree with my colleagues, on the basis of
the stipulation of facts before us, that she did.
The facts, as fully stated in the majority opinion, show that Clende-
non waited 6 months before seeking any employment; in the next 40
months she made 4 further efforts, 2 of them being reapplications at an
establishment where she had been offered no encouragement. At no
time did she register with the U. S. Employment Service or the local
State employment office, although apparently familiar with their
facilities. In sum, she applied at 4 different establishments in the 46
months between the date of her discharge and the date she was re-
employed pursuant to the Respondent's offer of reinstatement. Dur-
ing that period, she had no income other than through her husband.
I do not think these facts show a reasonable effort to find new em-
ployment, considering the fact that Clendenon was not a skilled
worker, the general availability of jobs during the period in question
in occupations requiring no high degree of skill, and in the absence of
tiny showing that employment opportunities were limited in the
vicinity where Clendenon lived.
Nor do I think the method adopted by my colleagues for calculating
back pay is warranted. It does not seem to me, in view of the negative
reception accorded her applications, that Clendenon was free to wait
6 months after each application before resuming her efforts to find
work. Especially is this true in connection with her October 1950
application, for she had no reason to believe that it might result in an
offer of employment inasmuch as she declined to take the course which
might qualify her for the job.
On the basis of the record before us, I would not find Clendenon
entitled to back pay.
MEMBERS HOUSTON and MuRnocx took no part in the consideration
of the above Supplemental Decision and Determination.