Prigg Boat Works

National Labor Relations Board - Board Decisions

Dec 7, 1951

97 N.L.R.B. 290 (N.L.R.B. 1951)

290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8. All employees of Wyatt engaged in its logging operations in and about Flag-
staff, Arizona, excluding office and clerical employees and supervisors, as defined
by the Act, constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
9. Northern Arizona District Council of Lumber and Sawmill Workers, United
Brotherhood of Carpenters and Joiners of America, affiliated with the American
Federation of Labor, was on June 5, 1950, and at all times thereafter has been,
the exclusive representative of all the employees in the aforesaid appropriate
unit for the purpose of collective bargaining within the meaning of Section 9
,(a) of the Act.
10. By refusing on June 8, 1950, and at all times thereafter, to bargain col-
lectively with the Union, as the exclusive representative of all employees in the
appropriate unit, Respondent Wyatt has engaged in, and is engaging in, unfair
labor practices within the meaning of Section 8 (a) (5) of the Act.
11. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, Respondent Wyatt has engaged
in, and is engaging in, unfair labor practices within the meaning of Section 8
(a) (1) of the Act.
12. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
13. Respondent Wyatt did not discriminatorily lock out its employees, as
alleged in the complaint.
[Recommended Order omitted from publication in this volume.]
Appendix A
Flano Apadaca Jesus Pozas
D. L. Berryhill Claude Sanders
Samson Brue Sidney M. Stewart
Gilbert Holden A. C. Everett
H. PAUL PRIGG, AN INDIVIDUAL, DOING BUSINESS UNDER TIIE NAME
AND STYLE OF PRIGG BOAT WORKS and INDUSTRIAL UNION OF MARINE
AND SHIPBUILDING WORKERS OF AMERICA, C. I. O. Case No. 10-C-
1660. December 7, 1951
Amendment to Supplemental Decision and Recommendation
On October 31, 1950, the Board issued its Supplemental Decision
and Recommendation in the above-entitled case.' Upon further con-
sideration it appeared to the Board that said Supplemental Decision
and Recommendation should be amended. Accordingly, on Novem-
ber 9, 1951, the Board issued a Notice to Show Cause, returnable on
or before November 23, 1951, why the proposed amendment attached
to said notice should not issue as an amendment to Supplemental
Decision and Recommendation. None of the parties has responded
to said notice.
IT IS HEREBY ORDERED that the said Supplemental Decision and Re-
commendation be, and it hereby is, amended by substituting for the
191 NLRB 1379.
97 NLRB No. 56.
PRIGG BOAT WORKS 291
last paragraph on page 1379 and "Recommendations" on page 1380,
the following :
The Board has reviewed the rulings made by the Trial Exami-
ner at the hearing and finds that no prejudicial error was com-
mitted. To the extent here consistent, the rulings are hereby
affirmed. The Board has considered the Supplemental Inter-
mediate Report, a copy of which is attached hereto, the excep-
tions and briefs filed by the parties, and the entire record in the
case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the following modifica-
tions, exceptions and additions :
1. In concluding that four of the claimants were actually en-
titled to back pay under the applict ble provisions of our original
back-pay order, the Trial Examiner ruled, in accordance with his
interpretation of the remand order, that he would consider only
the possibility that the claimants might have been selected for
nondiscriminatory release at sometime after the date (February
7, 1945) on which they were discharged. This approach neces-
sarily compelled a finding that all claimants were entitled to
some back pay for the period commencing on about February 7,
1945. We do not agree with the Trial Examiner.
In our original Decision we expressly found that the "general
reduction [of force on February 7, 1945] was itself not discrimi-
natorily motivated," but that the discrimination "took the form
of the selection" of the claimants for separation because of unlaw-
ful considerations. Thus, in a remedial context, we in effect
found that economic considerations required the Respondent to
discharge six employees on February 7, explicitly reserving for
future consideration the question of when the claimants, absent
discriminatory motivation, would have been normally separated
during the course of the general reduction in force.2 In these
circumstances, we think it clear that both our Decision and the
remand order of the court contemplated the possibility that some
or all of the claimants might normally have been included in the
February 7 reduction of force as well as in subsequent reductions.
Our findings as to back pay shall be made accordingly.
2. We next turn to the question of when the claimants would
have normally been released under the Respondent's reduction
of force program. We agree with the Trial Examiner in prin-
ciple that under the circumstances of this case, length of service
by classification is a reasonable and practical criteria for making
such determination.
2 The original Decision stated . "It is possible that one or more of the six employees
might have been discharged in the general reduction of the work force , even if the Respond-
ent's selection had been on a nondiscriminatory basis This possibility will be taken into
consideration in determining the amount due to the employees in compliance with our order
herein."
292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
To. the extent here material, the record shows that the re-
duction of force program required terminations on dates, as
follows :
February 7, 1945, four first-class carpenters and two second-
class carpenters.
March 30, 1945, one second-class carpenter.
May 4, 1945, one first-class carpenter.
May 18, 1945, one first-class carpenter.
August 17, 1945, two first-class carpenters -and one second-class
carpenter.
The following tables show the original employment dates of
the six claimants and other similarly classified employees :
Name
First-Class Carpenters
Employment
Date
*Belknap 12/12/44
Jarrell 11/ 2/44
Woods 11/ 1/44
Bond 10/18/44
*Craig 10/10/44
*D. H. Wood 11/27/43
*Watton 11/22/43
Worthington 5/22/42
Seconul-Class Carpenters
Employment
Name Date
*J. P. Wood 11/ 1/44
*Berry 6/12/44
Owens 12/11/43
Di Lorenzo 6/ 2/43
*The claimants are designated with asterisks.
On the basis of the foregoing, we find that Belknap, J. P. Wood,
and Berry would have normally been discharged on February 7,
1945, and therefore are entitled to no back pay. We further find
that Craig would have been normally discharged on May 4, 1945;
D. H. Wood on May 18, 1945; and Watton on August 17, 1945,
and that their back-pay periods would normally terminate on
these respective dates. Notwithstanding, we shall, for reasons
assigned by the Trial Examiner, award no back pay to Craig. In
the absence of exceptions, we also adopt the Trial Examiner's
finding that D. H. Wood's back-pay period terminate as of the
date he quit his employment with the Merrill Company.'
' The record does not establish the exact date on which Wood severed his employment with
the Merrill Company. However , we have administratively ascertained by a letter from that
employer that Wood's employment there terminated on March 10 , 1945, and, in the absence
of a showing of cause to the contrary , we shall rely on the information so obtained for the
purpose of terminating his back -pay period as of March 10, 1945.
PRIGG BOAT WORKS 293
3. In arriving at a formula for computing the gross earnings
of the claimants, the Trial Examiner relied to some extent upon
an absentee factor. Any question as to the projection of past
absenteeism into the gross back period is not sufficiently impor-
tant under the particular facts of this case to warrant considera-
tion of a different method of computation. We shall therefore
adopt the Trial Examiner's formula. However, in determining
gross earnings under the formula, we shall compute hours in ex-
cess of 40 a week at one and one-half times the prevailing rate,
in accordance with the Fair Labor Standards Act.
Net Back-Pay Calculation
P G. Watton D. II. Wood
A. Gross Back Pay4----------------------- $1802.59 $253 73
B. Interim Earnings----------------------- b 1052. 43 6 285 46
C. Expenses------------------------------
D. Net Interim Earnings------------------- 1052. 43 285. 46
E. Net Back Pay-------------------------- 750.16 $0
Recommendations
Upon the basis of this Supplemental Decision and the entire
record in the case, the National Labor Relations Board hereby
respectfully recommends to the United States Court of Appeals
for the Fifth Circuit :
(a) That paragraph 2 (a) of the original Order herein (relat-
ing to reinstatement) be denied enforcement.
(b) That paragraph 2 (b) thereof be enforced only as to
P. G. Watton.
(c) That the Respondent be required to pay P. G. Watton
the sum of $750.16 as back pay.
MEMBERS REYNOLDS and STYLES took no part in the consideration
of the above Amendment to Supplemental Decision and Recommenda-
tion.
4 For method of computation , see appendices A and B, attached hereto.
5 Computed as follonns
$ 199 65-1st quarter 1945 earnings.
643 01-2nd quarter 1945 " earnings.
804 10-last half 1945 earnings.
Claimant 's back-pay period ends on August 17, 1945 . Claimant earned $804 10 in the last
half of 1945 , a period of 184 days , 48 of which are within the back -pay period.
484X$80410 =$209.77, I. e. interim earnings from July 1 , 1945, to August 17, 1945.
Total Interim Earnings =$199.65
643 01
209 77
$1052 43
6 Representing $ 12 unreported income , $ 110 56 from the Merrill Company of Miami,
Florida , and $16290 from the American Boat Building Corp ., as set forth in the Inter-
mediate Report.
986209-52-vol. 97--20
294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Appendix A
Calculation of Gross Back Pay
hours worked by weeks
before discharge
Period: 4-7-44 through 2-2-45 P C Watton D H Wood
5700 4400
5700 4750
5700 5700
5700 5700
5700 5700
5700 4600
5700 4100
4750 3800
5700 5700
5200
5200
5200
1900
2850
4750
2850 5200
5200 4250
5200 5200
5200 950
3675 1900
4750 1900
5700 4750
5200 5200
5700 5700
4750 5700
4750 4200
5200 2800
4750 4750
2850 950
5700 1400
5200 4250
950 4750
5700 3800
5200 5500
5200 1200
5200 5600
5200 2850
5200 4600
4250 1900
5200 5550
5150 5200
5200 4500
5200 2850
Total hours worked_____________________________ 184675 176950
Total No. of weeks worked__________________________ 37 43
Weekly average hours_______________________________ 5000 4125
THE GREAT ATLANTIC & PACIFIC TEA COMPANY
Appendix B
Calculation of Gross Back Pay
295
A. Gross back pay before 2/16/45 P 0 Watton D. H Wood
1. Daily Average Hours (Weekly Avg. Hours 6)------ 8.25 7.00
l.a. Date of.Discrimination-------------------------- 2/8/45 2/8/45
2. No. of Working Days; date of discrimination to
2/16/45-------------------------------------- 7 7
3. Hourly Rate of Pay Before 2/16/45--------------- 1.05 1.00
3.a. Total Hours Before 2/16/45---------------------- 57. 75 49. 00
4. Gross Back Pay Before 2/16/45------------------- $60.64 $49.00
5. Straight-time. Overtime Gross Back Pay before
2/16/45 A------------------------------ ------ $7.35 $.88
B. Gross back pay after 2/16/45
1. Weekly Average Hours (From Table A) ----------- 50. 00 41.25
2. Hourly Rate of Pay After 2/16/45----------------- 1. 18 1. 18
3. Date--End of Back Pay------------------------- 8/17/45 3/10/45
4. Number of Whole Weeks in Back-Pay Period After
2/16/45-------------------------------------- 26 3
5. Number of Odd Days in Back-Pay Period after
2/16/45-------------------------------------- 0 1
6. Total Hours in Whole Weeks--------------------- 1300. 00 123. 75
7. Total Hours in Odd Days------------------------ 0 7. 00
8. Grand Total Hours of back pay in period after 2/16/45- 1300. 00 130 75
9. Straight-time. Gross Back Pay After 2/16/45------ $1534. 00 $154. 29
10. 40 Hours Vacation Pay-------------------------- $47. 20 $47. 20
11. Overtime Gross Back Pay After 2/16/45----------- $153.40 $2 36
C. Grand total-Gross back pay n-------------------- $1802. 59 $253 73
A Computed by multiplying the number of hours over 40 for every week in the back period (including
parts of week by one-half of the claimant's pay rates)
B Addition of lines A4, A5, B9, B10, and Bll.
THE GREAT ATLANTIC & PACIFIC TEA COMPANY and LOCAL 474,
NATIONAL FOOD CHAIN STORE EMPLOYEES, CIO, PETITIONER and
RETAIL FOOD CLERKS UNION, LOCAL 1500, AFL. Case No. 2-RC-
2119. December 7,1951
Decision and Order Setting Aside Election
On September 27, 1950, pursuant to a stipulation for certification
upon consent election, an election by secret ballot was conducted
under the direction and supervision of the Regional Director for the
Second Region among the employees in the appropriate unit.' Upon
completion of the election, a tally of ballots was issued and duly
1 The stipulated unit was composed of all employees of the Employer ' s supermarkets
and service stores serviced by the Bronx warehouse in the counties of New York , Bronx,
Westchester, Putnam and Dutchess , including dairy department heads, produce depart-
97 NLRB No. 29.