Bonnar-Vawter, Inc.

National Labor Relations Board - Board Decisions

Feb 26, 1962

135 N.L.R.B. 1270 (N.L.R.B. 1962)

1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
..CONCLUSIONS OF LAW
1. Hotel and Restaurant Employees and Bartenders Union , Local 4, Hotel and
Restaurant Employees and Bartenders International Union , AFL-CIO, is a labor
organization within the meaning of Section 2(5) of the Act:
2. Howard Johnson Company is an employer within the meaning of Section 2(2)
of the Act.
3. All waiters , waitresses , cashiers , counter employees , cooks, porters , kitchen
help, and gift shop employees employed at Respondent Maryland Corporation's
Milltown , New Jersey (New Jersey Turnpike 8N ), restaurant but excluding all office
clerical employees , hostesses , guards , professional employees , and supervisors as
defined in the Act constitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9 ( b) of the Act.
4. The above-named labor organization was on April 11, 1961, and at all times
since has been the exclusive collective-bargaining representative of all the employees
in the aforesaid appropriate unit for the purposes of collective bargaining within the
meaning of Section 9(a) of the Act.
5. Respondent Howard Johnson Company from July 6 , 1961, and at all times
thereafter , by refusing to bargain collectively with the aforesaid labor organization
as the exclusive collective -bargaining representative of all employees in the appro-
priate unit, has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a) (5) of the Act.
6. By the aforesaid refusal to bargain ,,Respondent Howard Johnson Company has
interfered with, restrained , and coerced its employees in the exercise of the rights
guaranteed by Section 7 of the Act and has thereby engaged in unfair labor prac-
tices within the meaning of Section 8 (a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and ( 7) of the Act.
(Recommendations omitted from publication.]
Bonnar-Vawter, Incorporated and Rockland Printing Specialties
& Paper Products Union , Local 643, a/w International Print-
ing Pressmen & Assistants' Union of North America, AFL-
CIO. Case No. 1-CA-2896. February 06, 1962
SUPPLEMENTAL DECISION AND ORDER
On September 29, 1960, the Board issued a Decision and Order in
the above-entitled case, finding that the Respondent had discriminated
against certain named employees in violation of Section 8(a) (1) and
(3) of the Act. Thereafter, the Board's Order was enforced by the
United States Court of Appeals for the First Circuit and the decree
was entered on April 26, 1961. The decree provided, inter alia, that
the Respondent make whole the employees named therein for any
loss of pay suffered by reason of Respondent's discrimination against
them. On August 18, 1960, the Regional Director for the First Re-
gion issued backpay, specifications and on September 25, 1961, the
Respondent filed an answer thereto. Upon appropriate notices issued
by Regional Director, a hearing was held before Trial Examiner Phil
Saunders for the purpose of determining the amounts of backpay due
tho claimants.
On December 8, 1961, the Trial Ekaminer issued his Supplemental
Intermediate Report, which is attached hereto, in which he found the
135 NLRB No. 125.
BONNAR-VAWTER, INCORPORATED 1271
claimants were entitled to specific amounts of backpay. Thereafter,
the Respondent filed exceptions to the Supplemental Intermediate
Report and a supporting brief. A brief in support of the Supple-
mental Intermediate Report was filed by the General Counsel.
Pursuant to the provisions of Section 3(b) of the At, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman McCulloch and Members Rodgers and
Fanning].
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 Supplemental Intermediate Report,
the exceptions, and briefs, and hereby adopts the findings, conclu-
sions, and recommendations of the Trial Examiner.
ORDER
On the basis of the foregoing Supplemental Decision and the en-
tire record in this case, the National Labor Relations Board hereby
orders that the Respondent, Bonnar-Vawter, Incorporated, its agents,
successors, and assigns, shall pay the employees involved in this pro-
ceeding as net backpay the following amounts :
Christy Alex---------------------------------------- $3,288
Mary Kalloch--------------------------------------- 1,697
Eleanor F. Robinson--------------------------------- 2,410
Richard A. St. Clair--------------------------------- 3,442
SUPPLEMENTAL INTERMEDIATE REPORT
STATEMENT OF THE CASE
This supplementary proceeding to determine backpay, with all parties represented,
was heard before the duly designated Trial Examiner in Rockland , Maine, and
Boston , Massachusetts , on October 4 and 6 , 1961 , on the specification of the General
Counsel and the answer of the Respondent . Generally, the issues litigated were the
amounts of backpay due , if any, from Bonnar-Vawter , Incorporated , herein called
the Respondent or the Company , to Christy S. Alex and Mary Kalloch . All parties
were afforded full opportunity to examine and cross -examine witnesses, to introduce
evidence , and to present oral argument . Briefs were duly received from both
parties and have been fully considered herein . Upon my observation of the witnesses,
and upon consideration of the pleadings , the testimony , the exhibits , and the entire
record in this case , I make the following findings and conclusions:
1. BACKGROUND AND PLEADINGS
On September 29, 1960 , the Board issued its Order affirming the Intermediate
Report issued by its Trial Examiner on February 25, 1960 , directing , inter alia, that
the Respondent make whole four employees who the Board held had been discrimina-
torily discharged by the Respondent . On April 26 , 1961 , the United States Court
of Appeals for the First Circuit issued its decree affirming the Board 's findings and
requiring that Eleanor F. Robinson , Mary Kalloch, Christy Alex , and Richard A.
St. Clair be reimbursed for wages lost by them , because of their discharges by the
Respondent . On August 18, 1961, the Regional Director issued backpay specifica-
tions naming the four above as claimants , and on September 25, 1961, the Respond-
ent filed its answer.
The specification by the General Counsel utilizes a formula traditionally applied
by the Board in backpay cases. Thus , the earnings of the incumbent employees who
1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
worked in equivalent jobs constitute the measure for computing the alleged gross
backpay lost by the discriminatees as a result of the Respondent's discriminatory
activity. In this computation are included periodic wage increases, vacation pay,
and other benefits paid to incumbent employees, which, it is claimed, the discrimina-
tees would have received had they worked for the Company during the alleged back-
pay period. From these amounts are deducted the known interim earnings of the
discriminatees, and to the amounts are added the expenses alleged to have been
incurred by a discriminatee in seeking employment during the backpay period.
II. WITH RESPECT TO ROBINSON AND ST. CLAIR
The Respondent stated for the record at the hearing that the Company agreed with
the General Counsel that no issue exists with respect to the amount of backpay
claimed for employees Eleanor F. Robinson and Richard A. St. Clair. In accordance
with the above, I therefore find and recommend that Robinson be paid the full
amount of net backpay claimed for her, the sum of $2,410; and that St. Clair be paid
the full amount of the net backpay claimed for him, the sum of $3,442.
III. THE ISSUES LITIGATED
The issues in this proceeding were narrowed to the following:
(a) Whether or not Christy Alex willfully incurred a loss of earnings, within the
meaning of Board decisions, when he voluntarily quit a higher paying job at Potter
Press Company in Waltham, Massachusetts, and returned to Rockland, Maine, where
he was unemployed for several months.
(b) Whether or not Mary Kalloch used reasonable diligence in seeking interim
employment to mitigate the alleged backpay damages.
IV. THE INDIVIDUAL CLAIMS LITIGATED; FINDINGS AND CONCLUSIONS
A. As to Christy Alex
As alleged in the specification, Alex's backpay period begins July 2, 1959, and ends
June 9, 1961, and it is alleged that the amount of backpay due Christy Alex under
the Board's formula totals $3,288. -
It is undisputed that Christy Alex was employed at the Potter Press Company in
Waltham, Massachusetts, from early October 1959 until about January 1, 1960, and
that his rate of pay while at Potter Press was $2.60 per hour. The record also reveals
that Wilson Tarble, personnel director of the Potter Press Company, interviewed Alex
and several others in Rockland, Maine, before hiring them, and afterward made
certain efforts to locate housing for them in the Waltham area.'
Christy Alex credibly testified that in his interview in Rockland with Personnel
Director Tarble of Potter Press Company, he was promised a foreman's job after a
brief breaking-in period of a week or two. Alex also testified that after accepting
employment with the Potter Press Company, Personnel Director Tarble further told
him that the three other employees, coming in with Alex from the Rockland area,
would be working in the press department, but that Alex did not have to worry,
because he "was going to have a foreman's job." It is undisputed that Potter Press
Company never promoted Alex to a foreman's job during the time of his employment
with them.
In addition to the above, the record established that during the period of employ-
ment with Potter Press, Alex commuted back and forth from Rockland, Maine, to
Waltham, Massachusetts, each weekend together with the three other Rockland resi-
dents also employed by Potter Press. Each of the four drove his car 1 week a month,
and each contributed $3 toward the transportation expenses. Also, while in Waltham,
Monday through Friday of each week, the four shared an apartment, and with utili-
ties, and heat the cost was approximately $25 to $30 a month for Alex in paying his
share of the housing expenses. It was also -established that two out of the four,
sharing the apartment and transportation costs, subsequently decided to move their
families to the Waltham area, and in accordance with the above Alex credibly testi-
fied that he then could no longer share housing and transportation costs. Alex
further credibly testified that in late December personnel director of Potter Press,
Tarble, informed him of a pay cut from $2.60 to $1.70 per hour, and that he would
not get the foreman's job .2 In summary, Alex verified that the reasons for terminat-
i Waltham, Massachusetts, Is in the Boston area, and approximately, 200 miles from
Rockland , Maine, where Christy Alex had his family located, and had worked for the
Respondent.
2Alex stated that he_could not move his wife and baby to Waltham because -of expenses,
and his cut in pay.
BONNAR-VAW.TER, INCORPORATED 1273'
ing his employment at Potter Press were - the following : he-was promised a foreman's
job which he did not get, that his wages were cut, that he was no longer able to share
transportation and housing expenses due to the aforestated reasons, and that under
the circumstances then prevailing he could not move his family to the Waltham area.3
In several respects the credited testimony given by Alex was substantially corroborated
by Ronald Kennison-one of the four who shared transportation and housing ex-
penses in Waltham.4 The record establishes that after Alex terminated his em-
ployment with Potter Press on about January 1, 1960, he returned to Rockland, and
filed an application with the State unemployment office. In February of 1960 Alex
made application and took an examination for work with the Maine State Prison,
and after waiting for results was hired for this job during the last part of March 1960.
It has been a long-standing policy of the Board not to toll backpay for discrimina-
tees who quit interim employment for good cause. In consideration of the testimony
I have credited as aforestated, and in light of the Board's decisions, I conclude and
find that Christy Alex did not willfully incur a loss of earnings when he voluntarily
terminated his employment at Potter Press,' but that he quit his job for justifiable
reasons.
From the record in this case it appears to me that Alex was initially promised a
foreman's job at Potter Press, and that after being employed he was not only denied
such a position, but was informed of a pending pay cut from $2.60 to $1.70 per hour.
The credited testimony further shows that Alex had definite costs for his monthly
living and transportation expenses at Waltham, but through no fault of his own
these arrangements were altered so as to place further financial burdens on him.
In Greenville Steel Car Company, 54 NLRB 608, the Board found that a backpay
claimant who had quit his job because it was 21 miles from his hometown, and he
could no longer ride to work in another worker's car or find other means of trans-
portation, was not willfully idle. While the Board in Ozark Hardwood Company,
119 NLRB 1130 at 1139, held that there was no adequate reason for the particular
quit therein involved, nevertheless, the Board did state, inter alia, that the absence
of housing may justify the quitting of employment, but this factor had not entered
into the situation there. In the instant case under consideration the factual cir-
cumstances involving housing, as aforementioned, did play a part and was a factor
in the decision'by Alex to quit his job at Potter Press, and the corroborated testi-
mony I credit in this respect is demonstrative thereof.
The Respondent argues that if the spurious reasoning behind Alex's purported
justification for quitting his job is laid aside, the plain truth is that Alex simply
wanted to return to the hometown, and cites as legal authority Ozark Hardwood
Company, supra, and American Bottling Company, 116 NLRB 1303. While there
are some similarities in events and circumstances in these cases with the present
proceeding, nevertheless, it appears to me that the specific and particular factual
circumstances are distinguishable. At least one claimant in Ozark Hardwood was
denied a portion of backpay on the basis of his own testimony that he would rather
be in his hometown, and other claimants denied on the grounds that they did not
detail any search for living quarters. In the instant, case there is no credited testi-
mony that Alex preferred Rockland over Waltham, and certainly the sudden pending
reduction of wages and the discontinuance in the sharing of housing and trans-
portation accommodations and expenses were not specific factors which the Board
had to consider in Ozark Hardwood. In American Bottling Company, supra, the
Board held that a claimant, having voluntarily gone to Chicago where he obtained
a higher paying permanent job, willfully incurred loss of earnings by quitting it.
The pertinent part of the Board decision here was based on a prolonged and un-
explained absence of the claimant from his employment in Chicago, and he was
then discharged because of absences for which the claimant was alone to blame.
In the case under consideration we have no absences involved, or like circum-
stances, and also no credited testimony whatsoever that any of the prevailing con-
ditions or circumstances were the making of Christy Alex.
While the instant case , in its broad aspects, might fall within the general legal
framework of the Board's decisions in American Bottling and Ozark Hardwood,
as cited by the Company, nevertheless, the individual circumstances in numerous
9 While employed at Potter Press Alex worked in the bindery department.
* Wilson Tarble, personnel director of Potter Press, testified that in his interviews and
conversations with Alex he may have mentioned that if Alex could meet the job qualifica-
tions , and perform his duties satisfactorily, Tarble could possibly have a foreman's job
opening for him. Tarble admitted that he had informed Alex of his impending pay cut,
but stated that a reduction from $2 . 60 to $1 . 70 an hour would be unlikely, and may have
mentioned that _the cut was temporary.
1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
instances are distinguishable , coupled with the fact that in the instant proceeding
we have a 'termination of employment based on at least four different factors, and
all of which I find to have adequate and credible testimony in support thereof.
As far as I am able to determine, the Board has never held that once you move
out of your home locality and acquire a job elsewhere, this happening then re-
quires a permanent removal, and that under no circumstances can a claimant ever
relinquish his new employment. As I read the Board's rulings, each backpay case of
this nature must ultimately hinge on the credited testimony which underlies the
individual situations and circumstances in each particular case, and then the estab-
lished facts as so determined fitted within the pertinent legal principles as established
by the Board, and I have endeavored to do so here.5 It is also noted that had
Alex continued to work for Potter Press within the implementation of the pending
pay cut, his earnings would have been $1.70 an hour. While he was working for
the Respondent, Alex received $1.86 per hour, so in actual reality he did not quit
a higher paying job, as did claimants-in several former cases involving backpay
proceedings.
Under the conditions as stated above, I am convinced that Alex quit his job at
Potter Press for necessity, and not for mere personal convenience or accommodation,
and therefore meets the qualifications for backpay as established by the Board.
In addition to the main issue here, the Respondent further argues that the Com-
pany should not be liable for Alex's lost wages for the 3 months of unemployment
upon his return to Rockland. During this period the record shows that Alex regis-
tered and reported weekly to the local State unemployment office to renew his
registration for work and in addition applied to the Maine State Prison for employ-
ment. Alex credibly stated that he had every reason to believe that he would be
employed by the State prison. Under these circumstances I find that Alex made a
good-faith search for work and that the Respondent failed to show otherwise.
In accordance with the above I recommend that Christy Alex be paid the sum
of $3,288 as alleged in the specification by the General Counsel.
B. As to Mary Kalloch
In the specification -concerning the backpay due this claimant, the General Coun-
sel alleges that Mary Kalloch is entitled to backpay from July 2, 1959, through Janu-
ary 15, 1960, in the amount of $1,697.6 Kalloch was earning $56.40 per week at the
Company prior to her discharge, and had been employed with bindery inspection
and packing duties while working at the Respondent's plant. Kalloch lived in the
town of Thomaston, Maine, several miles from Rockland and other surrounding
towns. The record established that Kalloch registered for work at the local State
unemployment office in Rockland and during the backpay period, up to the middle
of January 1960, reported on a weekly basis to the unemployment office making
herself available for work. During this period the unemployment office was able
to refer her to only two jobs, the first to Fyler's Fish Plant, an odious job for which
the Respondent concedes that she was not required to apply, and the second to
Moody's Diner at Waldoboro, Maine, as a waitress from 12:30 midnight until
7:30 a.m. at $18 per week.?
The Respondent argues that the failure of Kalloch to report to the unemployment
office after the expiration of benefits, raises a serious doubt as to her motive in re-
porting at all, and this, coupled with the evidence later adduced, fairly resolves the
doubt against her. However, the backpay period runs from July 1959 to January
1960 and it is undenied that in this period Kalloch did report each week to the
unemployment office, and therein made herself available for work. Furthermore,
the presumption and contention of the Respondent that failing to report after the
benefits expired destroyed the true intention and motive of the claimant, cannot be
supported by the credible testimony which I have hereinafter set forth, and in so
doing full recognition is given to all the circumstances involved herein.
In further conjunction and preliminary to the allegation of Kalloch's backpay,
the Respondent argues that the Board's compliance officer, Thomas E. McDonald,
6East Temas Steel Castings Company, Inc, 116 NLRB 1336 at 1347
6 The record established that with the exception of a short period of time when the
claimant was reemployed by the Respondent, Kalloch had not otherwise obtained any
employment between July 2, 1959, and June 1961 It is also noted that Kalloch was
not offered reinstatement by Respondent until nearly 2 years after she was discriminated
against. However, the General Counsel seeks backpay only for the approximate 6-month
period as set forth above
7The record shows that Kalloch's unemployment compensation expired during the
middle of January 1960, and that she did not report to the unemployment office thereafter.
BONNAR-VAWTER, INCORPORATED 1275
should have been permitted to testify at the hearing after the Company issued a
subpena for him .8 In the final stages of the Respondent 's case, Paul H . Farrell,
counsel for the Company , took the stand , and when the question was asked as to
the recommendation McDonald had made to Respondent 's counsel in respect to
Kalloch 's backpay , the General Counsel then objected , and this objection was sus-
tained , and the Company then made an offer of proof .9 The Respondent contends
in its brief that it was error to quash the subpena and to sustain the General
Counsel's objection to the question asked of Attorney Farrell , on the basis that the
testimony of McDonald was vital to the Respondent 's case, that the disclosure was
made by an expert in backpay matters, that the disclosure constituted an admission
by a duly appointed representative of the Government who was the chief party in
interest , and that the ruling denied the Respondent a full and fair hearing in viola-
tion of the fifth amendment of the Constitution . In support of the above the
Company cites the recent decision of the Court of Appeals for the Fifth Circuit in
N.L.R.B. v. Capitol Fish Company, 294 F. 2d 868 (C.A. 5).
The Board has consistently held that the refusal to permit one of its agents to
testify is not prejudicial , since Section 102.118, Series 8, of the Board 's Rules and
Regulations makes it clear that the General Counsel may not be compelled to
authorize a Board employee to testify . J. E. Plastics Mfg. Corp., 131 NLRB 299.
Moreover , it appears to me that the decision in Capitol Fish, supra, has distinguish-
ing features which are not present in the instant case. In Capitol Fish the decision
of the Court of Appeals for the Fifth Circuit, stated , inter alia, that the employer
therein contended that the Board attorney 's testimony would have shown that he
carried partiality to the charging party beyond proper limits, and to the point of
attempting to persuade prospective witnesses to "twist the facts," and that these im-
proper activities affected the entire case because they cast doubt on the credibility
of all the witnesses against the employer. The Fifth Circuit decision in Capitol
Fish, went on to say that cases upholding regulations , such as the one under con-
sideration here, do not purport to grant an absolute freedom to the executive to
present use of department papers as evidence , and thereby concluded that the
Board's investigating attorney 's testimony was material , was not privileged, and was,
therefore , erroneously excluded.
In the instant case under consideration , we have no issue or argument that an
agent of the Board underhandedly attempted to persuade or twist any of the wit-
nesses, nor are there present any other similarly related or highly unusual circum-
stances, but merely the contention by the Company that had the statement of
McDonald been received , or the compliance officer allowed to testify , the investi-
gative agent of the Board would have recommended only 1 month of backpay for
claimant Kalloch . However , even assuming here, arguendo , the admission and
relevancy of the above statement by McDonald , the recommendations of an in-
vestigative field agent goes only to the Board 's Regional Director who then eventu-
ally makes the specific decisions in consideration of all the factors involved. In
this respect the field agent's recommendation might be accepted , modified , or totally
rejected, as apparently happened here, but most assuredly the final decision does
not lie with the field investigator . Ultimately his recommendations , whatever they
might be, play only a part in the overall evaluation by a superior as to definite and
final determinations in any case pending before the various Regions of the Board.
It is also further noted that to expedite and accelerate the Board 's functions,
settlement negotiations and agreements between the parties are constantly attempted,
and sometimes even executed , but statements and suggestions made by field agents
in these situations are not in any way binding on the final and overall disposition of
the case. In this respect the Court of Appeals for the Fifth Circuit , in N.L.R.B. v.
Armstrong Tire and Rubber Company, The Test Fleet Branch, 263 F. 2d 680, held
that the Board , in determining the amount of backpay due a claimant , was not
bound by a compromise settlement which was reached pursuant to negotiations be-
tween the Board 's Regional Office and the employer , since the Act vests in the
Board itself the sole authority to determine the amount of backpay , and that this
authority had not been , and could not be, validly delegated to subordinates so as to
bind the Board . The decision in Armstrong Rubber, supra ,' as noted above; even
goes further than the contention made here by the Respondent , and yet the court
8 At the start of the hearing'the Trial Examiner granted the General Counsel's petition
to revoke a subpoena ad testificandum as to McDonald. The record shows that McDonald
was the field agent of the Board appointed to investigate the question of the backpay that
was due and owing in this proceeding.
8 The offer of proof showed that had the question been allowed, Attorney Farrell's testi-
mony would have been that McDonald recommended 1 month of backpay for Kalloch.
1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
held that the settlement proceedings were merely preliminary negotiations which had
not culminated in a binding settlement. It appears to me that the factual circum-
stances in the instant case do not fall within the pronouncement of Capitol Fish,
supra, and that testimony of Compliance Officer McDonald was properly excluded
under the present existing and controlling Board law.1e
I will now consider the main issue here as to whether or not Kalloch used reason-
able diligence in seeking interim employment. In addition to registration at the
unemployment office as aforestated, Kalloch also sought work at numerous other
places subsequent to her discharge. Kalloch credibly testified that she looked for
work in Rockland at Van Baalen's, the Bell Shop, Senter Crane, Newberry's, and
Woolworth's but was unable to obtain employment at any of these places, and
further stated that she di3 not turn down any jobs.
Kalloch also credibly testified that she could not undertake waitress work in
restaurants and cafes because, in addition to being too "shaky" carrying the trays,
she also had a back problem for about the past 3 years and had been advised by a
doctor not to lift heavy objects, and that she was inexperienced in this type of work.
In addition to the above, there is credited testimony by Kalloch that she was not
qualified to do office work because she did not have the training to type or take
shorthand.
In making inquiries for employment at several business establishments in Rock-
land, as previously set forth, Kalloch testified that she did not file any written
application at the Bell Shop, but credibly stated that in August 1959, she did talk
with the store manager, Ruth Hoch, about a job, and that Hoch then informed
Kalloch that if the Bell Shop needed someone she would call her. Hoch testified that
she could not remember Mary Kalloch's applying for work during the period in
question, but on cross-examination Manager Hoch recalled speaking to Kalloch
on numerous occasions during the period and having discussed in general many
subjects. However, Hoch was unable to state whether she recalled talking about
Kalloch's employment situation during any of these conversations. Hoch also
stated that the first time she was asked whether Mary Kalloch applied to her for
work in the summer of 1959 was a week or so before the hearing in October 1961.
Kalloch later testified that after talking with Hoch at the Bell Shop about a job she
reported this to the State unemployment office, and that the unemployment office
had a record of her asking for work at the Bell Shop. Hoch admitted in her testi-
mony that she could not remember all the girls applying for work, that application
forms are not always used, and further stated that "usually" the girls would come
into the store and ask for employment, and then relying on her memory Hoch would
call them if needed. I credit the testimony of Kalloch, and accordingly find that
Kalloch did contact the Bell Shop in search of employment.
Louis Yodeno, production manager of Van Baalen Company, and the person
responsible for hiring employees, admitted in his testimony that Kalloch could have
applied for employment at Van Baalen's, but that orders had been issued not to
hire anybody unless they were experienced in stitching work. Kalloch stated that
she had no "stitching" experience, and that when she applied for work at Van
Baalen was informed that they were not hiring unless applicants had some ex-
perience. Yodeno went on to state in his testimony that from July through De-
cember 1959, 53 female employees were hired by Van Baalen Company, and that
a good portion of the 53 hired were inexperienced. However, when Production
Manager Yodeno was asked if Kalloch applied for employment, he replied, "Mary
Kalloch seems to be a familiar girl, but I did not see her, and I don't remember.
No; I don't know." From the above testimony by Yodeno, it seems to me there
existed considerable fluctuation in the hiring policy of the Van Baalen Company.
In the period in question 53 female employees were hired with a good portion of
them inexperienced; and yet we apparently also have an interwoven and over-
lapping policy wherein instructions were given not to employ anyone who was
inexperienced. Moreover, in the final analysis, Yodeno admitted that he could not
remember if Kalloch applied for work, and then further stated that he actually did
not know. On the basis of the above I credit the testimony of Kalloch, and find
that she did inquire as to employment at Van Baalen Company.
11 It is also noted that in Capitol Fish the exclusion of the investigating attorney's
testimony was explicitly based on the Board's Rules and Regulations (102 11S), while
in the instant case the record shows that the exclusion of the testimony in question was
based not only on the Board's regulation, but also on the basis that the proposed testi.
mony would not be binding, controlling, or even relevant in the final disposition of this
case.
BONNAR-VAWTER, INCORPORATED 1277
The record contains no testimony by any witnesses that Kalloch did not apply for
employment at Senter Crane, Newberry 's, and Woolworth 's. Since I have tound
Kalloch to be a reliable and truthful witness in the two prior incidents in her search
for employment, I also credit her testimony that she applied for work at the above
establishments . Kalloch's testimony in this respect stands undenied.
Counsel for Respondent produced all of the editions of the Rockland Courier
Gazette newspaper for the period July through December 1959, and pointed out to
Kalloch several "Help Wanted " advertisements , including waitress , clerical, local
movie theater, cashier, and office work , a position at the Van Baalen Company, and
repeats of advertisements pertaining to the above positions . Kalloch credibly
testified that she followed the want ads, but could not undertake waitress work, for
the reasons aforestated . As for the movie theater advertisements , Kalloch had once
worked at one of the local theaters , and there is credible testimony that all of them
had a reciprocal policy of not rehiring past employees . The record also shows that
Kalloch did not respond to the advertisement for work at the Van Baalen Company,
inasmuch as when she had made application there earlier , she had been told that it
did not accept inexperienced help. There is also credible testimony to the effect
that Kalloch would not accept employment wherever liquar was served , this being
a matter of delicacy and sincere conviction which entered into her judgment. Fur-
thermore , she could not perform any telephone work, being hard of hearing, and
was not qualified as a seamstress or for office or secretarial work as aforementioned.
Moreover , other than accompanying her husband from their residence in Thomaston
to the Rockland area during his working hours and limited bus service between
the two towns , Kalloch had no other available means of transportation , and there-
fore was available for work or could accept employment only in the Thomaston or
Rockland areas during the daytime hours.
The record in this proceeding also contains the testimony of several witnesses for
the Respondent , bearing on the general employment situation in the Rockland and
other surrounding areas during the period in question.
The acting manager of the State of Maine Employment Service Commission,
Jack Townsend , testified that in the month of February 1960 there were 1,321
applicants for work of whom but 60 were referred to jobs and only 15 ultimately
placed in positions . This brings into sharper focus the fact that during the 6-month
period from July 1959 through January 1960, the Employment Service Commission
could refer Kalloch to only two jobs.
Nathan Berliawsky, proprietor of the Thorndike Hotel in Rockland, testified that
from July through December 1959, he had hired 14 women in conducting his hotel
operations . 11 Of the 14 hired , and some were repeats who had formerly worked, 6
were chambermaids-and they are ordinarily elderly women-5 were waitresses, and
the remaining 3 were bar waitresses . In view of the fact that Mary Kalloch was
physically unable to do the work of a waitress , and that chambermaids are usually
elderly ladies , in which category Kalloch does not fall , it appears to me that there
was no lack of reasonable diligence in failing to make application with Mr.
Berliawsky.
Joseph Sawyer , production superintendent at Tibbetts Industries, located in
Camden and approximately 8 miles from Thomaston, testified that from July
through December 1959 , his company hired 14 women , and that 90 percent of the
help have no previous experience . Sawyer stated he did not do any newspaper
advertising for help during this interval in question , and the General Counsel con-
cedes that Kalloch did not apply for work at Tibbetts Industries.
The Respondent also introduced testimony through Charles Sewall, supervisor
of personnel of Sylvania Electric, Waldoboro, Maine, to the effect that from July
through December 1959 , Sylvania Electric hired 54 women, and there was no
demand that these employees be experienced . The Sylvania plant is approximately
12 miles from Thomaston , and it appears from the record that work at this plant
necessitated a certain amount of welding during the assembling of small electronic
components . There is no testimony that Kalloch was in any way suited for such
employment , and certainly was entirely inexperienced in this type of work. Sewall
admitted that Sylvania Electric does have an antipathy toward unions , and further
stated that he had examined the records of Sylvania, and in doing so did not ascer-
tain whether or not any of the Respondent's employees were hired by his company
during the period in question.
In the final analysis and conclusion here, it is noted that the Board has taken
n The General Counsel conceded that Kalloch did not apply for work at the Thorndike
Hotel. . ,
1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
into consideration the physical capabilities of claimants in determining whether or
not they exercised due diligence in seeking work. American Bottling Company, 116
NLRB 1303 at page 1319. The Board has further held on numerous occasions that
claimants need not accept interim employment where such employment necessitates
burdensome or unusual conditions.
The undenied and credible testimony shows that Kalloch was not qualified for
numerous types of employment, and physically unable to engage in other forms of
employment. However, the record established that despite these factors, the claim-
ant, during the backpay period, registered with the State unemployment office, and
made the necessary reports so as to be available for work. She also searched for
employment on her own, read the want ads, and personally visited several business
establishments seeking work. The Board's decisions concerning an adequate search
for work, generally hold that an independent search for employment coupled with
registration at a State unemployment office is regarded as sufficient for the purpose
of backpay qualification. la In accordance with the above I find that Mary Kalloch
did exercise reasonable and due diligence in seeking work during the backpay period,
and I recommend that she be awarded the full amount of the net backpay for her
the sum of $1,697.
CONCLUSION AND RECOMMENDATION
Upon the foregoing findings , the Trial Examiner finds and concludes that the
employees listed hereunder are entitled to payment by Respondent of the sums
listed opposite their names.13
Christy Alex-------------------------------------------------- $ 3,288
Mary Kalloch------------------------------------------------- 1,697
Eleanor F . Robinson------------------------------------------- 2,410
Richard A . St. Clair------------------------------------------- 3,442
It is recommended that the Board adopt the foregoing findings and conclusions.
'- I am unable to find any Board or court decision which requires that a claimant maize
an Inquiry or application for each and every job possibility that might exist, or eventually
Is shown to have existed , and there appears to be no contention of the same here.
13 Minus any tax withholdings required by Federal and State laws.
Publishers Printing Company and Louisville Printing Specialty
& Paper Products Union Local No. 561 , International Print-
ing Pressmen and Assistants ' Union of North America, AFL--
CIO. Case No. 9-CA-2354. February V, 196
DECISION AND ORDER
On November 17, 1961, Trial Examiner John P. von Rohr issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent has engaged in and is engaging in certain unfair labor
practices, and recommending that it cease and desist" therefrom and
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. He also found that the Respondent had not engaged
in certain other alleged unfair labor practices and recommended dis-
missal of the complaint with respect thereto. Thereafter, the Re-
spondent filed exceptions to the Intermediate report and a supporting
brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
135 NLRB No. 131.