Underwood Machinery Co.

National Labor Relations Board - Board Decisions

Aug 27, 1951

95 N.L.R.B. 1386 (N.L.R.B. 1951)

1386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
UNDERWOOD MACHINERY COMPANY and INTERNATIONAL UNION, UNITED
AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS' OF
AMERICA (C. I. 0.)
UNDERWOOD MACHINERY COMPANY and INTERNATIONAL UNION, UNITED
AUTOMOBILE, AIRCRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF
AMERICA (C. I. 0.). Cases Nos. 1-C-2629 and-1-C-2767. August
27,1951
Supplemental Decision and Recommendation
On July 30, 1947, and December 15, 1948, respectively, the National
Labor Relations Board, herein called the Board, issued a Decision
and Order 1 and an amended Decision and Order 2 in Case No.
1-C-2629, and on October 12, 1948, a Decision and Order 3 in Case No.
1-C-2767. On December 20, 1949, the United States Court of Appeals
for the First Circuit enforced all provisions of said Orders.' The de-
cree provided, inter alia, that the Respondent make whole employees
George Murphy and John Donnelly, herein called the claimants, who
had been discriminatorily discharged by the Respondent, for any losses
of pay suffered by reason of the Respondent's discrimination against
them.
On October 12, 1950, the Board ordered that the record in this case
be reopened, and remanded the case to the Regional Director for the
First Region for the purpose of conducting a further hearing to deter-
mine the amount of back pay due the claimants. Pursuant to said
remand, a hearing was duly held before Trial Examiner William F.
Scharnikow.
On April 5, 1951, the Trial Examiner issued a Supplemental Inter-
mediate Report, a copy of which is attached hereto, finding that the
claimants are entitled to certain specific amounts of back pay. There-
after, the Respondent filed exceptions to the Supplemental Inter-
mediate Report and a supporting brief.
The Board 5 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 Supple-
mental Intermediate Report, the exceptions and brief filed by the Re-
spondent, and the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the Trial Examiner
1 74 NLRB 641.
2 80 NLRB 1264.
8 79 NLRB 1287.
4 N. L. R. B. v. Underwood Machinery Company, 179 F. 2d 118.
Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three-member panel [ Chairman Herzog and
Members Houston and Reynolds].
95 NLRB No. 179.
UNDERWOOD MACHINERY COMPANY 1387
except''-for minor changes in the computation of the amount-of back
pay due s
Upon the basis of the foregoing, we conclude that the amounts which
the claimants would normally have earned as wages during the periods
set forth in the Board's Orders of July 30, 1947, as reaffirmed Decem-
ber 15, 1948, and October 12, 1948, as enforced by the Court's decree
of December 20, 1949; the amounts which the claimants earned during
said periods; and the net back pay required to be paid to each claimant
pursuant to the Board's Orders as enforced by the Court's decree, are
those set forth in Appendix A, attached hereto and made a part hereof.
Recommendation
Upon the basis of the above supplemental findings of fact and of
the entire record in the proceeding, the National Labor Relations
Board hereby respectfully recommends to the United States Court of
Appeals for the First Circuit that its decree, issued on December 20,
1949, in this proceeding, be amended to incorporate therein, as the
amounts payable by the Respondent as back pay, the respective
amounts set forth in Appendix A as the net back pay required to be
paid to each of the claimants.
Appendix A 7
COMPUTATION OF BACK PAY DUE TO JOHN DONNELLY
GROSS LOSS OF EARNINGS
3/27/46 to 4/17/46, inc., 164 hrs. -@ $1.15 per hr. (48 hr. wk., no
holidays, nolost days)______________ ______________ *$188.60
4/18/46 to 8/26/46, inc., 924 hrs. @ $1.25 per hr. (48 hr. wk., 4
holidays , no lost days )________________________________________ *1, 155. 00
8/27/46 to 4%8/47, inc., 1410 hrs. @ $1.25 per hr. (44 hr. wk., 5
holidays, 2 half holidays, 1 day lost) -------------------------- 1, 762.50
4/9/47 to 6/4/47, inc., 320 hrs. @ $1.25 per hr. (40 hr. wk., 1 holiday,
`nolostdays ) ------------------------------------------------- 400.00
6/5/47 to 9/4/48, inc., 2512 hrs. @ $1.32 per hr. (40 hr. wk., 9 holi-
days, 4 lost days )-------------------------------------------- *3,315.84
9/5/48 to 9/15/50, inc., 4072 hrs. @ $1.39- per hr. (40 hr. wk., 18
holidays, 3 lost days )_________________________________________ 5,660.08
Christmas bonuses, 1946 , 1947, 1948, and 1949 ---------------------- 52.00
Gross loss of earnings------------------------------------- * 12,534.02
6 In the absence of any exceptions to the Trial Examiner ' s findings that interim earnings
to be credited against the claimants' gross loss of earnings should include ( 1) compensa-
tion for working periods with later employers during which the claimants would have
received paid vacations from the Respondent , and (2 ) in the case of Donnelly , compensa
.tion for working holidays for which he was paid during his last employment by Swende-
man, for which he would not have been paid by the Respondents , we adopt these findings.
T The items marked with an asterisk show chknges made in the Trial Examiner's
computations.
I
1388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERIM EARNINGS
From :
Joseph Beal & Co----------------------------------------- $184.00
Modern Die & Machine Co----------------------------------- 274.50
Pneumatic Scale Corp-------------------------------------- 76.68
S. A. Woods Machine Co------------------------------------ 4,738.98
Deran Confectionery Co------------------------------------ 5.00
• Barbour Stockwell---------------------------------------- 1,191.06
Swendeman Inc-------------------------------------------- 4,209.99
Total interim earnings------------------------------------ 70,680.21
Net back pay due to John Donnelly------------------------- *1, 853. 81
COMPUTATION OF BACK PAY DUE TO GEORGE MURPHY
GROSS LOSS OF EARNINGS
As a third-class mechanic
12/20/45 to 2/6/46, inc., 340 hrs. @ $0.85 per hr. (48 hr. wk., 2
holidays, no lost days)---------------------------------------- 289.00
As a first-class helper
6/27/46 to 8/26/46, inc., 436 hrs. @ $0.90 per hr. (48 hr. wk., 1 holi-
day, no lost days) ------------------------------------------- *392.40
8/27/46 to 10/30/46, inc., 414 hrs. @ $0.90 per hr. (44 hr. wk., 1 holi-
day,1 half holiday,1 day lost) --------------------------------- *372. 60
As a third-class mechanic
10/31/46 to 4/8/47, inc., 996 hrs. @ $0.95 per hr. (44 hr. wk., 4
holidays, 1 half holiday, 1 day lost) ---------------------------- *946.20
4/9/47 to 6/4/47, inc., 312 hrs. @ $0.95 per hr. (40 hr. wk., 1 holiday,
1lost day) ---------------------------------------------- ----- 296.40
6/5/47 to 9/5/48, inc., 2472 hrs. @ $1.02 per hr. (40 hr. wk., 9
holidays, 9 days lost) ----------------------------------------- *2,521.44
9/6/48 to 10/30/49, inc., 2304 hrs. @ $1.07 per hr. (40 hr. wk., 11
holidays,1 day lost) ------------------------------------------ - *2, 465. 28
As a second-class mechanic
10/31/49 to 9/15/50, inc., 1776 hrs. @ $1.12 per hr. (40 hr. wk., 7
holidays,1 day lost)------------------------------------------ *1,989.12
Christmas Bonuses, 1946, 1947, 1948, and 1949--------------------- 52.00
Gross loss of earnings----------------------------------- *9,324.44
UNDERWOOD MACHINERY COMPANY 1389
INTERIM EARNINGS
From:
Yanofsky, West End Iron Works__________________________ *$223.60
Brown Lumber Company____________________________________ 94.20
Oxford Paper Company__________________________________1,356.53
American Writing Paper Company___________________________ 121.94
Martin Rubber Corporation_________________________________ 14.88
Parsons Paper Company___ _______________________________ 101.36
Philip Hano Company______________________________________ 459. 61
Holyoke Wire & Cable Corporation___________________________ 239.43
Savage Arms Corporation________________________________"___ 834.13
Cole-Hersee Company_______________________________________ 502.65
S. D. Hicks and Son------------------------------ _----- --__ 1,885.08
Magnesium Castings Company_______________________________ 83.20
Albany Bronze Foundry_____________________________________ *158.40
*6, 075. 01
Less expense in securing interim employment___________________98.00
Interim earnings credit___________________________________ *5,977.01
Net back pay due to George Murphy________________________ *3,347.43
-Supplemental Intermediate Report and Recommendations
On July 30, 1947, and December 15, 1948, respectively, the National Labor
Relations Board (herein called the Board) issued a Decision and Order' and
an amended Decision and Order' in Case No. 2629; and, on October 12, 1948,
a Decision and Order' in Case No. 1-C-2767, which Orders were thereafter
enforced in • a decree entered on December 20, 1949, by the United States Court
of Appeals for the First Circuit, herein called the Court'
The Board found in Cases Nos. 1-C-2629 and 1-C-2767, respectively, that the
Respondent discriminatorily discharged George Murphy, a third-class mechanic
in the plate shop on December 19, 1945, and John Donnelly, a first-class machinist
in the machine shop, on March 26, 1946. The Board accordingly issued its
orders, which the Court has adopted in its enforcing decree, directing the Re-
spondent, upon terms which are hereinafter set forth, to reinstate Murphy and
Donnelly, and to make them whole for any losses of-pay they may have suf-
fered by reason of the Respondent's discrimination against them.
. On October 12, 1950, the Board issued an order reopening the record in Cases
Nos. 1-0-2629 and 2767, and remanding the proceeding to the Regional Director
for the First Region (Boston, Massachusetts), with a direction that a further
hearing be held before a duly designated Trial Examiner for the purpose of
determining the amount of back pay due to the discriminatees, George Murphy
and John Donnelly.
Pursuant to a notice of further hearing issued by the Regional Director and
served on the charging Union and the Respondent, respectively on December
5, 1950, and December 6, 1950, a hearing was held at Boston, Massachusetts, on
December 18,. 19, and 20, 1950, before the undersigned Trial Examiner, duly
..174 NLRB641.
' 8,0 NLRB 1264.
8 79 NLRB 1287.
4 N. L. R. B. v. Underwood Machinery Company, 179 F. 2d 118.
1390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
designated by the Chief Trial-Examiner. The General Counsel for the Board .
and the Respondent were represented by counsel. Full opportunity to be heard,
to examine and. cross-examine witnesses, and to introduce evidence was afforded
all parties.
At the opening of 'the hearing, the General Counsel and counsel for the Re-
spondent stipulated that, on September 15, 1950, the discriminatees, Murphy and
Donnelly, had informed the Respondent through the General Counsel that they
waived their right to reinstatement.
In the course of the hearing, the undersigned, over the objection of the General °
Counsel, permitted the Respondent's' counsel to question the discriminatees
concerning payments received by them from the Massachusetts Unemployment
Compensation Commission. Murphy was able to testify as to the amounts re-
ceived by him, but Donnelly could not furnish the information. With the
General Counsel continuing his objection to the relevance of this evidence,
counsel agreed nevertheless that, after the close of he hearing, they would
endeavor to ascertain, and would submit to the undersigned, a stipulation setting
forth the amounts-of unemployment compensation received by Donnelly. Such
a stipulation has'-been, received "by the undersigned and- has been marked .as ._
Trial Examiner's Exhibit 1. However, in view of the decision of the Supreme
Court in N. L. R. B. v. G"allett Gin Company, Inc. (340 U. S. 361), which was
rendered on January 15, 1951, and thus since the hearing in the present case,
the undersigned now sustains the objection of the General Counsel to the
admission of this stipulation and also to the evidence of such payments to
Murphy which was received at the hearing. He therefore rejects Trial Ex-
aminer's Exhibit 1, for identification, and strikes Murphy's testimony on this
subject. matter.
When the General Counsel and counsel for the Respondent had concluded
their presentation of evidence at the hearing, they waived oral argument. Both
of them, however, submitted briefs on February 5, 1951.
Upon the entire record and from his -observation of the witnesses, the under-
signed makes the following findings and recommendations :
Z. JOHN DONNELLY " .
(Case No. 1-C-2767)
A. The issues and the principles applicable to the case
The Board found in Case No. 1-0-2767, that the.Respondent discriminatorily
discharged John Donnelly, a first-class machinist, on March 26, 1946. Therefore,
the Board in its order,5 and the Court in decreeing its enforcement, directed the
Respondent to
(a) Offer to John Donnelly immediate and full reinstatement to his for-
mer or substantially equivalent position without prejudice to his seniority
or other rights and privileges ;
(b) Make whole John Donnelly for any loss of pay he may have suffered
by reason of the Respondent's discrimination against him by payment to him
of a sum of .money equivalent; to the amount which he normally would have
earned as wages from the date of such discharge to the date of the Re-
spondent's offer of reinstatement, less his net earnings during said period.
Until September 15, 1950, when Donnelly informed the Respondent that he,
no longer wished to be reinstated, the Respondent had made no offer to reinstate
5 79 NLRB at 1291, paragraphs 2 -(a) and (b).
UNDERWOOD MACHINERY COMPANY 1391
him to his "former or substantially equivalent position." Although Donnelly
is no. longer entitled to be reinstated, there remains the question of the amount
of back pay to which, he is entitled under the Board's order and the Court's de- -
cree, for loss of earnings until September 15, 1950.
Because of its bearing .upon the availability of, work for Donnelly in his
"former or. a substantially equivalent position," evidence was taken in detail,
not only as to the identity and periods of service of various employees as first-
class. machinists in the machine shop, but also concerning (1) the fluctuating
over-all composition of the: Respondent's staff in_the,machine shop and of each
operating job classification therein, and (2) the nature of the work performed
by, and the skills required of the first, second, and third-class machinists and
machine operators in the machine shop.
The chief point of disagreement; between the General Counsel and the Re-
spondent concerns the significance of,this evidence concerning the nature of the
work done by these employees. The General Counsel contends that the work
done by employees in all the machinists' and machine operators' classifications
was the same, and that these classifications represented merely differences in
rated skill and speed in the same work, resulting in small differences in wage
rates. The General Counsel argues, therefore, that the employment. by the Re-
spondent of newly-hired or promoted employees, not only'in Donnelly's classifica-
tion but also.in the other operating classifications in.the machine shop, demon-
strates the continuing availability of work for Donnelly in his "former position"
until September 15, 1950; and the Respondent's continuing obligation to reinstate
him, and, having failed to do so, to indemnify him for loss. of earnings, not merely
at the former wage, rate of his classification but at such increasing wage rates
as the evidence indicates he would have received through general wage increases
if he had not been discharged.
Upon its view of the same evidence, however, the Respondent equates the term,
"former position," as it is used in the Board's order, with "former classification."
For it denies that employees in any of the other job-classifications have per-
formed the same work as the first-class machinists in the machine shop. It also
denies that any of their positions have been substantially equivalent to the
position of first-class machinist. It asserts, finally, that the evidence shows that
Donnelly's "former position" as a first-class- machinist in the machine shop was.
never available after his discharge, because "the Respondent did not replace
Donnelly immediately after his discharge and has not employed an all-around
machinist first, other than those employed at the time of Donnelly's discharge."
Applying these arguments to its version of the facts, the Respondent would have
the Board conclude that Donnelly is entitled to no back pay.
Although there are other arguments as to details, the foregoing are the pri-
mary, opposing arguments of the General Counsel and the Respondent, which
each urges the Board to follow in evaluating the evidence. For this purpose,
however, they do not express as fully as seems desirable, certain general prin-
ciples and considerations which underlie reinstatement and back-pay orders,
which govern compliance with such orders, and which apply particularly to
respondents' pleas, by way of full or partial avoidance of the literal terms of
these orders, that subsequent to the discrimination, neither the discriminatee's
"former position" nor a "substantially equivalent position" has been available.
In cases of discriminatory discharges, the remedy necessary and proper for
the effectuation of the purposes of the Act is one which not only prevents repe-
tition of the discrimination, but also brings about "a restoration of the situation,
aeinearly as possible, to that which would have obtained but for the illegal
1392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discrimination ." a Therefore, by directing a cessation by the Respondent of its
discrimination and the immediate and full reinstatement and indemnity of Don-
nelly "without prejudice to his seniority .and other rights. and privileges," the
Board's order, and the Court's decree in which it has since been approved and
incorporated, properly required the Respondent to correct its discrimination
against Donnelly by restoring to him all the rights and privileges which he
would have continued to enjoy as an employee of the Respondent, had it not been
.for his unlawful discharge. In other words,_ the Respondent was required to,
treat Donnelly as if he had never been discharged but had continued in the Re-
spondent's employ without further discrimination against him.
It is true that under such an order the employer is relieved of the reinstate-
went and back-pay obligation whenever it appears that there is no work avail-
able for the discriminatee in his "former or substantially equivalent position,"
unless such a situation is contrived by the employer for the purpose of evading:
his obligations under the order.? The Respondent would thus clearly have been
,relieved of its obligation to reinstate and indemnify Donnelly if it had abolished
or eliminated the work performed in. Donnelly's former position for business
reasons and without intent to evade the Board's order, and there was 'no other
substantially equivalent work available.
But the terms of the Board's reinstatement and back-pay order clearly imposed
reasonable restrictions upon any decision by the Respondent not to reinstate
'Donnelly because of a mere reduction in available work. For Donnelly's right
to continuing employment uninterrupted by discrimination, which is preserved
by the Board's order, embraces (1) the absolute right to be reinstated to, and
to continue without further discrimination in, his former or a substantially
.equivalent position, as against employees hired for, or promoted into, such po-
sitions after his discharge; and (2) also the right to compete on a nondiscrim-
inatory basis for continuing employment in identical or substantially equivalent
work, with those of his fellow-employees who had held positions identical to his
own at the time of his discharge.
Therefore, if, as the General Counsel contends, the instant case presents a
situation in which, at most, there was a reduction in the amount of available
work for men in Donnelly's former position or substantially equivalent positions,
the release of the Respondent from its obligations to reinstate and indemnify
Donnelly under the Board's order and the Court's decree, depends upon a show-
ing by the Respondent that it actually considered him for the remaining work
of this type, but that, for nondiscriminatory reasons, decided not to reinstate
him but to use other employees instead. Only thus could the Respondent show,
as the Board's order and the Court's decree required, that even if Donnelly
had continued in the Respondent's employ, he would not have been -retained
for this work but would have been laid off.'
The Respondent's plea for release from the obligations imposed by the Board's
order and the Court's decree is obviously not an assertion that it has complied,
" Phelps Dodge Corp. v . N. T,. R B., 313 U . S. 177, 194.
°N. L. R. B. v. Reed & Prince Mfg. Co., 130.F. 2d 765 (C. A. 1) ; N. L. R. B. V . Cape-
County Milling Co., 140 F. 2d 543, 546 (C. A. 8) ; Salmon and Cowin v. N. L. R. B.,
148 F. 2d 941 , 942-943 (C. A. 5) ; N. L. W. B. V. Lightner Pub. Corp., 128 F. 2d 237, 241
(C. A. 7) ; N. L . R. B. v. Vail Mfg . Co., 158 F. 2d 664, 667 (C. A. 7) ; N. L. R. B. V, Belt
,Oil & Gas Co., 98 F. 2d 405 (C. A. 5) ; N. L. R . B. v. New York Merchandise Co., 134 F. 211
449 (C. A. 2). See also J. A. Bentley Lumber Co ., 83 NLRB 803, 804.
s See N. L. R. B . v. Reed 4 Prince Mfg. Co., 130 F. 2d 765, 768 (C. A. 1).
UNDERWOOD MACHINERY COMPANY 1393
,in which event the burden of proof would be upon the General Counsel. Instead,
it constitutes a confession of noncompliance, and a plea of facts which it con-
tends shows its justification. The burden of proof as to the unavailability of
work for Donnelly in his former or substantially equivalent positions should,
therefore, be upon the Respondent! Certainly,*since "knowledge'[of the material
facts] is peculiarly within its possession," the Respondent has at least the burden
of coming forward with "adequate evidence," fully and satisfactorily explaining
its failure to reinstate Donnelly in spite of the Board's orders and the Court's
decree.10
These, then, are the general principles and considerations which must be kept
in mind while assessing the evidence and the contentions of counsel
B. Donnelly's gross back pay
1. The work performed in the various job-classifications in the machine shop
At and since the time of Donnelly's discharge as a first-class machinist on
March 26, 1946, the employees operating the machines in,the Respondent's ma-
chine shop have been classified, in the order of descending wage rates, as first,
second, and third-class machinists, and first, second, and third-class machine
operators." On March 26, 1946, the difference between the hourly wage rates
paid . to employees in each of these classifications and those in the next lower
classification was only 5 cents, and this difference has been maintained in gen-
eral wage increases granted by the Respondent on April 18, 1946, June 5, 1947,
and September 5, 1948.32
' The first, second, and third-class machinists were all required to operate, within
close tolerances, all the machines in the shop, i. e., lathes, press drills, radial
drills, shapers, milling machines, key-seating machines, arbor presses, boring
mills, and bench drills. According to Respondent's secretary, George Cormack,"
the primary difference between first-class machinists and the other machinists
was that only the first-class machinists were also required to be able to perform
tool and die work at a bench. The amount of this work, however, was so small
that the Respondent has never employed a full-time tool-and-die man. Otherwise,
the first-, second-, and third-class machinists were rated according to their ability
0 See Salmon and Cowin, 57 NLRB 845 , enfd. 148 F. 2d 941 (C. A. 5).
10 N. L. R. B. v. Reed h Prince Mfg. Co., 130 F. 2d 765, 768 (C. A. 1).
11 Although the Respondent has also had lower classifications for first-, second-, and
third-class helpers in the machine shop, no men were employed in these classifications
on March 26 , 1946, and, since then , only one has been briefly employed, i . e., as a first-class
helper from November 6, 1946 , to November 21, 1946.
12 Although the record furnishes hourly rate ranges for first and second class-machinists,
they all have been paid the top rates . The uniform, hourly rates actually paid to the
employees in the machine shop since March 26 , 1946 have been the following :
Mar. 26,1946 Apr. 18,1946 June 5,1947 Sept. 5,1948
Machinists, first ______________________ $1.15 $1.25 $1.32 $1.39
Machinists, second___________________ 1.10 1.20 1.27 1.33
Machinists, third_____________________ 1.05 1.15 1.22 1.28
Operators, first________________________ 1.00 1.10 1.17 1.23
Operators,second_____________________ .05 1.05- 1. 12 None
Operators,third_______________________ .90 1.00 1.07 1.125
13 Cormack had been promoted from personnel manager since the time of the original
hearings.
1394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD,
to set up the machines, the speed and ability with which they operated them, and
their ability to work without help or guidance from the foreman"
From these facts it appears clear, and the undersigned finds in accordance
with the General Counsel's contention, that the amount of tool and die work was
extremely small ; that a reduction or even the elimination of this work would,
therefore, not in itself have reduced to any appreciable extent the general volume
of work in the machine shop ; that the machine-work, which constituted the great
bulk of the first-class machinists' work, was actually the same as the work of
the second- and third-class machinists; that these three machinists' job classifi-
cations represented merely differences in rated skill and speed in the, same work
which justified 5-cent. differences in hourly wage rates ; and that,' if there was
it reduction in the general work done in the machine shop after Donnelly's dis-
charge, as the Respondent contends there was, the remaining work available for
,the machine-shop employees was work of the type performed by first-class machin-
ists such as Donnelly, as well as by the second- and third-class machinists.
2. Availability of work for Donnelly
That there was an over-all, general reduction of work for the machine shop
at some time after Donnelly's discharge, as Secretary Cormack testified, appears
clear from the decrease in the number of operating employees in the shop.
When Donnelly was discharged on March 26, 1946, the operating machine shop
force consisted of 14 men, including Donnelly, and was divided equally between
machinists and machine operators. As has been noted, three of them, including
?*.These findings are based upon the testimony of Cormack. For the most part, they
rest particularly upon the following portions of his testimony :
A first-class all-around machinist cannot only operate any machine we have in
the plant, he can also setup the machine, and he can produce on the machine at the
particular rate of speed if production is necessary. He can do bench work, he
can do, to a considerable extent, tool and die work, although to say that he is a tool
and die man is not strictly a fact because we do not have enough tool and die work
in our plant to warrant paying the cost of a tool and die man. However , there is a
limited amount of it to be done.
We recognize that we would get it done better and faster by hiring a tool and
die man but it is not economic to do so, therefore, we hire an all-around machinist
who can do fairly well at it, and he would be classified as a first-class all around
machinist.
A second-class all-around machinist would probably not be able to do tool and die
work and would not be required to do tool and die work. That is the major
differential between the first and second class, plus the fact that in any of his
operations, a first-class all-around machinist would be able to work faster, to produce
quicker, or to setup the machine or to produce on the machine after it was set up.
A third-class all-around machinist would have most of the elements of a second-
class all-around machinist, but he would probably be somewhat slower and there
may be, for example many more things he would have to go to the foreman to be
certain about.
w e s w s s r
The second-class machinist would probably be able to set up most any kind of
a job but not necessarily the more difficult jobs. . . . I [will give] you an-example
which did occur in our plant. We needed to do some internal boring. It is.possible
to set up a milling machine, plain miller, so that you can bore internally, within
limits, small work, and we had such a case in our plant, and I know that the
foreman ' had to choose a man who was most capable in order to do that ; in fact,
he had to work with him in part. Some of our second and third-class all- around
machinists would have spent so much time on it even with a foreman working on
it with him, that it would not be economical to put them on it. "
Third class machinist also does setup work. He is merely less adept at setting
up work and would not be given the more complicated kinds of work to set up.' There
are loads of simple ' things going through any. shop but every now and then a
complicated job comes along and it requires a better man to do it.
UNDERWOOD MACHINERY COMPANY' -1 . 1395
Donnelly; were first-class machinists . From March 26, 1946,' until September 15,
1950 , as shown by information supplied by the Respondent from its records
and summarized in Appendix A to- this Report, the operating machine shop,
force decreased until it finally consisted only of one first-class machinist and'
2 -second-class machinists.
. The ultimate reduction of the Respondent 's machine shop staff to this low-
level does not show , however , that , if-Donnelly had not been discharged,'he'
would nevertheless have been laid off either on, or shortly after , March 26, 1946, or
even at any time thereafter . No such suggestion was made to Donnelly at the
time of his discharge nor to the Trial Examiner during the original hearing
between June 3 and June 5, 1946. Nor does the imminence of Donnelly 's lay-off
appear from the Respondent 's employment records. For , as shown on Appendix
A; the downward trend of work and employment in the shop did not begin im-
mediately after Donnelly 's discharge, - but started waveringly and slowly in
February 1947; and only after several periods of partial recovery later in 1947
did it finally enter a constant downward movement from September 1947 to
March 25; 1950 . Furthermore , throughout the entire period from March 26,
1946, to - September 15, 1950, the numbers of first- and second-class machinists
were almost constant , and showed the least numerical and proportional effects
from fluctuations in the work load of the shop , in contrast with the early numeri-
cal rise and later sharp drop and eventual disappearance of employees in all
the lower ' classifications.
One further , general observation should be made concerning the manner In
which the Respondent 's. machine shop staff was ultimately reduced . The only
evidence bearing upon this point is Cormack 's testimony and an exhibit, which
was prepared by the Respondent from its personnel records. Although the
exhibit shows in tabular form the employee turnover and the periods of service
of every operating employee in the machine shop, including in each case of
a separation "the date [the individual ] left employ," it does not show that any
of the separations were layoffs due to a reduction in work rather than "quits,"
nor, consequently , that the Respondent , by layoffs, planned and effected a de-
crease in any particular job-classifications because of the decreasing amount
of work. Nor did the testimony of Cormack furnish any examples of selective
layoffs for the purpose of reducing either the over-all number of machine shop
employees or the number of employees in particular classifications .'5 In view
of the Respondent 's failure to show a considered , selective reduction in force
by layoffs , it must be assumed, and the undersigned accordingly finds, that the
reduction was accomplished by the Respondent 's refraining from filling such
jobs as became vacant when employees voluntarily left the Respondent's employ,
regardless of job-classifications.
Turning now to a consideration of the few changes in the composition of the
first-class machinist group from the time of Donnelly 's discharge, it should
first be noted that Donnelly had been hired by the Respondent as a first-class
machinist on January 279 1943, after two or three previous periods of service with
the Respondent beginning in 1936, and that on March 26, 1946, when he was dis-
charged , he had 38 years of experience as a machinist, 9 of which were gained
in the employ of the Respondent . Both of the other first -class machinists,
S: Hall and 'A . Wiencko, were also apparently men with considerable experience,
and, in addition , had slightly longer periods of continuous service with the
. 15 Cormack testified- only as to two layoffs or discharges, of J. Alm, a third-class '
machinist on April 12, 1948, and of S. Hall, a first-class machinist on January 15, 1949.
In each of these instances, according to Cormack, the employee was laid off because of
his failing capacity to do his work.
I 961974-52-vol. 95-89
1396. DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent , having been hired on November 2, 1942, and January 21, 1943, respee-'
Lively. However, as Secretary Cormack testified, the Respondent, in dealing with
employees in the same classification and department , considered their seniority ,
only when their abilities were equal 1°
Wiencko has continued in the Respondent 's employ as a first-class machinist
until the present time but Hall , although senior to Wiencko in service , was laid
off on January 15, 1949, because, as Cormack testified, he "was an elderly man
whose capabilities had declined ." As a matter of fact, since Donnelly was
discharged , Hall and Wiencko have been the only, first-class machinists in the
Respondent 's employ except for an employee named Mednick , who ha'd originally
been hired as a second-class machinist on January 7, 1946, and who was pro-'
moted to become a first-class machinist on June 6, 1946, but quit the same day.
Cormack testified that Mednick had been hired on January 7, 1946, "because
of his knowledge of [assembling] machinery to close tolerances," i. e., work on
machine parts at a bench "which was the equivalent of tool and die work;" that'
he had been promoted, to become • a first-class machinist on June 6, 1946 , because
he showed himself to be "capable at his job," and "had all the qualifications
of a first-class all -around machinist plus some special qualifications, for the
particular job he was on ;" that, although Mednick quit on the day he was
thus promoted, the Respondent had intended his, promotion to first-class to be
permanent and Mednick to continue as afirst-class machinist ; and, finally, that
"We try not to put on first-class all-around machinists unless we expect to keep
them."
Although Cormack testified that Mednick was better than Wiencko at assem-
bling within close tolerances and thus justified his being rerated to become an
additional first-class machinist, the Respondent proffered no evidence that Don-
nelly was either incapable . of performing this type of work or, that his ability
in this respect was inferior to Mednick's ability. On the contrary, there is,an,
intimation in Cormack's testimony, consistent with the evidence as to the.gen-
eral high skill and particular qualifications- required for all first- class ma-
chinists such as Donnelly to do tool and die work within close tolerances, that
Donnelly was qualified to do the work for which Mednick was hired and then
promoted. For, when the undersigned asked Cormack whether Donnelly had also
done this type of work, Cormack replied, "He didn't on this particular job.
(Emphasis supplied.)
The Respondent has offered no comparison of the abilities of Donnelly and
those of Hall and Wiencko, nor has it made any contention (much less offered-
any proof) that, had Donnelly not been discharged, it would have reduced its
complement of first-class machinists rather than employees in the lower classif -
cations, or that it would have chosen-to lay off Donnelly rather than Hall or
Wiencko because the latter two were at least equal to Donnelly in ability as well as
senior to him in continuous service. On the contrary, the Respondent contends
in its brief merely that "since it did not replace Donnelly immediately after his
discharge and has not employed an all around machinist first, other than those
employ'ed at the time of Donnelly's discharge, Donnelly's former position was
not available , . .' And, consistent with this limited position, .and -also
ignoring Mednick's short-lived but permanently intended promotion, Cormack•
testified only that the two. first-class machinists remaining after Donnelly's dis-
charge were thereafter able to do all the work required of first-class machinists.
in the shop "because . . . [otherwise] the foreman would have come to me.
and. said, `We have need for another first-class machinist, will you hire one for
me?' " .
"See the consistent finding of the Board in Case 'No. 1-C-2629 (74 NLRB at
657, footnote 7).
UNDERWOOD MACHINERY COMPANY
3. Conclusions
1397
It is apparent from what has already been said that,, throughout the present
stage of .the proceeding involving Donnelly, the Respondent has relied upon, and
continues to rely upon, its assertion that Donnelly was never replaced with
another first-class machinist, as the ground for relieving it of its obligation to-
reinstate and indemnify Donnelly, whereas, under the circumstances of the case
and the principles applicable thereto, it is actually the Respondent's burden to
show that, if Donnelly had not been discriminatorily discharged, he would never-
theless have been selected for layoff on a nondiscriminatory basis, because of the
decline in the work of the machine shop.
Not only has the Respondent failed to show this, but the evidence impels
exactly the opposite conclusion. For, to summarize the pertinent facts and con-
siderations which have been discussed, it appears to the undersigned that :
(1) The great bulk of the first-class machinists' work was the same as the
work of the second- and third-class machinists and that the three machinists' job
classifications represented merely differences in rated skill and speed in the
same work;,
(2) During the decline of machine shop work. after Donnelly's discharge;.
the work still available for machine shop employees was, therefore, work of the
type performed by first-class machinists such as Donnelly, as well as by second.-
and third-class machinists;'
. (3) The decline of work and employment in the machine shop did not begin at
the time of Donnelly's discharge on March 26, 1946, but started and was reflected.
in decreases in the staff, only in February, 1947, at the earliest;
(4) Contrary to the Respondent's contention that there was no work available
for an additional first-class machinist after Donnelly's discharge because
Donnelly was not immediately replaced and no additional first-class machinists:
were thereafter employed, Mednick was promoted to a first-class machinist's jobs.
on June 6, 1946, upon qualifications which the Respondent does not deny that
Donnelly also possessed ;
(5) The Respondent effected its ultimate, drastic reduction of its machine
shop staff, not by the layoff of men in particular classifications, but rather by its
omission to Jul vacancies in the lower-classified positions when the employees
quit their jobs ;
(6) It was the Respondent's practice to retain its higher-classified, pre-
sumably more capable employees as the permanent nucleus of its staff and to
expand, contract, and even completely dispense with employees in its lower,
and only slightly lower paid, machine shop classifications, as is indicated by. the;
almost unaffected constancy of. the numbers of first and second-class machinists
and the complete elimination of the lower-classified employees during the decline
in machine shop work, as well as by Cormack's statement in his testimony that
"We .try not to put on first-class all-around machinists unless we expect to keep,
them" ;
(7) Had Donnelly not been discharged, he would have continued as a first-
class machinist in the Respondent's employ, unaffected by the staff-reduction
in the lower classifications ; and
(8) Even assuming an intention on its part to reduce its complement of first-
class machinists, the Respondent has offered no comparison of the abilities of
Donnelly with those of the other two first-class machinists, Hall and' Wiencko,
to justify the retention of the latter two men and the continued exclusion. of.
Donnelly, although it admittedly honored seniority only when abilities were
equal.
Upon these considerations, the undersigned concludes that if Donnelly hadnot
been discharged, he would have been retained in the Respondent's. employ in. spite
1398 DECISLONS QF NATIONAL LABOR RELATIONS BOARD
of the reduction in the machine shop staff, and that, by reason of his discrimina-
tory discharge, Donnelly has therefore suffered a gross loss of earnings equal
to the sum which he would have earned if he had continued to work for the
Respondent as a first-class machinist between March 26, 1946, and September 15,
1950. .
The Respondent, however, has interposed one additional argument for shorten-
ing Donnelly's back-pay period. It contends that, in view of his ultimate waiver
of reinstatement on September 15, 1950, Donnelly's right to reinstatement and
back pay must be held to have terminated on May 4, 1946, when, according to the
Respondent, he first -became "fairly steadily employed" at work which "was very
much like his work for the Respondent," or at-least on September 15, 1948, when,-,
according to the Respondent, Donnelly "began the employment be held at the
time he refused reinstatements 14 The undersigned cannot accept this argument
that Donnelly's waiver of reinstatement on September 15, 1950, should be given
retroactive effect to the date of Donnelly's acquisition of similar or even sub-
stantially equivalent employment.
The remedial obligation of an employer under a Board order to reinstate and
make whole an employee whom it has discriminatorily discharged is not only
one which the employer itself has created by its unlawful act, but one which
it should immediately discharge, and could in any event clearly and definitely
terminate at any time, by making a simple' offer of reinstatement. Furthermore,
until and unless the required offer of reinstatement is made, the discriminatee'
is obviously under no compulsion at any time to compare his current employment
with his former employment, to estimate and appraise his comparative prospects,
or to make any decision on these or any other bases, as to whether he would
accept reinstatement if it were offered. On the contrary, he is perfectly free
not only to wait for the required offer of reinstatement before deciding, but
also to make his decision, then or before, on any basis which appeals to him
whether reasonable or unreasonable according to another person' s standards.
Therefore, when the employer claims, as does the Respondent, that, although
it made no offer of reinstatement, it was. nevertheless relieved of its obligation
by the discriminatee's waiver, not merely at the time of the waiver but for
several years before that time, then the waiver should be given no more effect
or significance to the advantage of the employer, than is warranted by the
language in which it was expressed.
Of course, it is now well settled that the discriminatee's acquisition of* sub-
stantially equivalent employment does not terminate the reinstatement and back-
pay obligation.18 And waivers of reinstatement, such as that made by Donnelly
on September 15, 1950 (or for that matter, any voluntary statements made by
discriminatees to their former employers or in their testimony at a Board hearing
that they no longer desire, or would not accept reinstatement), have the effect
17 The phrases which are quoted in the text are taken from the Respondent 's brief.
Stating the same contention during the course of the hearing, Counsel for the Respondent
said, "Where a person refuses reinstatement, the terminal. point [of back pay to which
he is entitled ] is the time he began on the job he was working at the time -he refused
reinstatement."
In making this contention , counsel for the Respondent has ignored the fact 'that,
although Donnelly began working for Swendeman , Inc., his last interim employer; on
September 15, 1948, he was laid off for 5 months beginning in April, 1949, and that his
continuous employment by Swendeman , Inc., began only in August 1949.
1s Phelps Dodge Corp. v. N. L. R. B., 313 U. S. 177, 192-197 ; Phelps Dodge Corp.,
35 NLRB 4i8, 420-421 ; Ford Motor Company, 31 NLRB 994, 1099=1100 ; N. L. R. B. v.
Blanton Co.; 121 F: 2d 564, 570-571 (C. A. 8) ; N. L. R. B. v. Keystone Freight L°ines,.
126 F. 2d 414, 418 (C. A. 10) ; N. L R. B. v. Weirton Steel Co., 135 F. 2d 494, 498-499
(C. A. 3).
UNDERWOOD MACHINERY COMPANY 1399
of tolling back pay, only because the discriminatees have thereby "voluntarily
removed themselves from the labor market of their employers," and cannot
be said thereafter to have suffered any further losses of earnings as a result
of their discriminatory discharges and the employers' continuing failure to re-
instate them.' The employer's back-pay obligation is therefore terminated by,
and at the time-of, the discriminatee's decision not to accept reinstatement, and
not by the discriminatee's possible previous acquisition of similar or substantially
equivalent employment 20
Therefore, when the discriminatee, like Donnelly in the present case, has simply
waived reinstatement without giving any reason or any other indication that
he might previously have reached such a settled decision, the Board properly
requires the employer to make the discriminatee whole up to the time of his
waiver or disclaimer, even though he may have previously acquired substantially
equivalent employment 21 Only when the discriminatee, unlike Donnelly in the
present case, has indicated in his waiver that it is based upon his satisfaction
with, or preference for, his existing employment has the Board found that his
decision not to accept reinstatement was reach when he secured such em=
ployment, and has therefore terminated the respondent-employer's back-pay
obligation at the time such employment began.22 These latter decisions of the
Board, upon which the Respondent relies, are inapplicable to the situation in the
present case. The undersigned therefore concludes, contrary to the Respondent's
contention, that Donnelly is entitled to back pay up to the time of his waiver
of reinstatement on September 15, 1950.
In computing the amount of this gross loss of earnings in Appendix B, the
undersigned has taken into account-the decreasing length of the Respondent's
workweek since Donnelly's discharge,23 and the fact that, according to his
testimony, Donnelly lost 8 days of work because of illness since' his discharge,
and would therefore not have been able to work for the Respondent on these
days. The undersigned also has omitted the 11 holidays which the Respondent's
plant has observed without pay,24 but has included the amounts of Christmas
bonuses received by the employees. As shown on Appendix B, Donnelly' s gross
loss of earnings amounts to $12,519.26.
C. Donnelly's interim earnings
From the time of his discharge until he advised the Respondent on September
15, 1950, that he no longer wished to be reinstated, Donnelly worked successively
for seven other employers and received wages totalling $10,630.21 28 Having regis-
tered with the Massachusetts Unemployment Compensation Commission after
his discharge by the Respondent, Donnelly secured the first of these jobs with
Joseph Beal and Company where he worked 44 hours a week at $1.00 an hour.
10 English Freight Company, 67 NLRB 643, 644, 658.
20 English Freight Company , supra; Borg-Warner Corporation , 44 NLRB 105, 117, 118 ;
E. A. Laboratories, 80 NLRB 625, 627 ; Granite State Machine Company, 80 NLRB 79,
81-82 ; Kaplan Bros., 45 NLRB 799 , enfd. 138 F. 2d 884 (C. A. 2).
21 See the cases cited in the preceding footnote.
22 Leanngton Telephone Co., 39 NLRB 1130 , 1157 ; Kopman-Woracek Shoe Mfg. Co.,
66 NLRB 789, 800; Fred F. Knipsehild, 45 NLRB 1027; Illinois Tool Works, 61 NLRB
1129, 1134, 1135.
23 Until August 27, 1946,. the Respondent's workweek was 48 hours ; on August 27,
1946, it was reduced to 44 hours ; and on April 9, 1947, it was finally reduced to 40
hours. All time in excess of 40 hours was paid at one and one half times the regular
wage rate.
24 January 1, February 22, April 19, May 30, June 17, July 4, Labor Day, October 12;
November 11, Thanksgiving Day, and December 25.
-26 See Appendix B.
1400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He secured the last of these seven jobs with Swendeman, Inc. on September 15,
1948, where he began work on a 40-hour week at $1.25 an hour.
From May 4, 1946, until September 15, 1950, Donnelly was unemployed only
for three periods, i. e., from May 26, 1946 (when he was laid off by Beal- & Com-
.parry), to approximately July 15, 1946; from August 27, 1946 (when he quit a job
because the hours were too long), to sometime in September 1946; and from some-
time in April 1949 to August 10, 1949, a period of layoff by his last employer,
Swendeman, for whom he resumed work on the latter date. At the beginning
of each of these periods of unemployment, Donnelly registered with the. United
States Employment Service.
The General Counsel contends that the amount of the interim earnings of
Donnelly, which should be credited against his gross loss of earnings in com-
puting the Respondent's -net liability, should exclude compensation (a) for
working periods with his later employers during which he would have received
a paid vacation from the Respondent, and (b) for nonworking holidays for
which he was paid during his last employment by Swendeman, but for which
he would not have been paid I the Respondent.
Vacation wages constitute a part of an employee's compensation which he
has earned by his work during the rest of the year and not during his vacation
period. As a general proposition, therefore, an employee's loss of vacation
wages due to a discriminatory discharge is allocable to the portion of the year
during which he would actually have been at work for the employer if he had not
been discharged, and should not be subject to reduction by the employee' s earn-
ings for any vacation period during which he would not have been working for,
nor compensated by, his former employer. There is no difficulty in applying
this argument to a case in which the discriminatee after his discharge has been
able to secure and retain other employment, but without equivalent paid vacation
periods. For, in such a case, the discriminatee in earning the full amount of his
interim compensation, has clearly worked through vacation periods during which
he would not have been working for his former employer. Part of his interim
compensation is therefore attributable to working time in excess of the time
he would have spent in his former job.
Donnelly's case, however, presents a different situation. For Donnelly,
although through no fault of his own, was unable to secure continuous em-
ployment and was consequently unemployed and uncompensated for periods
the total of which exceeded the paid vacation periods he would have enjoyed in
the Respondent's employ. True, he was at work during several summers and
his several periods of unemployment did not coincide in time nor in duration
with the vacations he would have received from the Respondent. But the im-
portant fact remains that no portion of his interim earnings was the product
.of working time in -excess of the total time he would actually have worked for
the Respondent. For this reason and since the Respondent is required by the
Board's order to make Donnelly whole for his loss of earnings including those
suffered during his periods of unemployment as well as during his periods of
employment, it appears to the undersigned that it should also receive credit
:against its liability, for Donnelly's full earnings during the back pay period..
.The undersigned accordingly rejects the General Counsel's claim that there should
be a deduction from Donnelly's interim earnings of amounts earned by him
:during periods when he would have been. on paid vacation if he had remained in
the Respondent's employ.
The undersigned also rejects the General Counsel's claim that the Respondent's
credit based on Donnelly's interim earnings should not include holiday wages
received by him from his later employers. For compensation for idle holidays
UNDERWOOD MACHINERY COMPANY 1401
is not earned by work on these holidays, but is paid to the employee because he
has been on the payroll and has workedfor the employer, on the days immediately
preceding and following the holidays. Consequently, although Donnelly would
not have been "paid" for the holidays by the Respondent as he was by Swende-
man, his "holiday wages" from Swendeman did not constitute compensation for
work on holidays, nor, therefore, for work on` days when he would not have been
working- for, nor paid by, the Respondent. In computing the deductible interim
earnings of Donnelly in Appendix B, therefore, the undersigned hh included
"holiday wages" received by him from Swendeman.
As computed in Appendix B, the undersigned finds that the interim earnings
which are to be credited against Donnelly's gross loss of earnings is the sum
of $10,680.21.
II. GEORGE MURPHY
(Case No. 1-C-2629)
A. Introduction
The Board found in Case No. 1-0-2629 that the Respondent discriminatorily
discharged George Murphy, a third-class mechanic in the plate shop, on December
19, 1945. In the Intermediate Report issued on May 13, 1946, Trial Examiner
James R. Hemingway, who conducted the original hearing between March.4 and
March 16, 1946, noted that there "was evidence that the respondent had no work
for third-class mechanics in the plate shop after February 6, 1946, other than
for a reinstated service man." " The Board in its,order, 7 and the Court in its
enforcing decree, directed the Respondent to
(b) Offer George Murphy, when work is available for another third-class
mechanic in the plate shop or in a substantially equivalent position, full
reinstatement to his former or a substantially equivalent position, without
prejudice to his seniority and other rights and privileges;
• s s s m s •
(d) Make whole George Murphy for any loss of pay he may have suffered
by reason of the respondent's discrimination against him, by payment to
him of a sum of money equal to the amount he would normally have earned
as wages during the period from December 19, 1945, the date of the re-
spondent's discrimination against him, to February 6, 1946, and during the
period between the date on which the respondent, subsequent to the date
of the Intermediate Report, has had or may have work available for another
third-class mechanic in the plate shop or in a substantially equivalent
position and the date of its offer to reinstate him, less his net earnings
during such periods. Payments of the sum for the first period shall be made
at once and shall not await the time when there may be sufficient work to
require the respondent to offer reinstatement to Murphy.
Until September 15, 1950, when Murphy informed the Respondent that he no
longer wished to be reinstated, the Respondent had made no offer to reinstate
him to his "former or substantially equivalent position." Although Murphy is
no longer entitled to be reinstated, there remains the question of the amount of
back pay to which he is entitled under the Board's order and the Court's decree,
for loss of earnings until September 15, 1950.
1174 NLRB at 671.
27 74 NLRB at 649-650 , paragraphs 2 (b) and (d).
1402 DECISIONS OF NATIONAL -LABOR RELATIONS BOARD
Murphy is clearly entitled to a computation and payment of any net loss
of -earnings suffered by him between December 19, 1945, and February 6, 1946.
,The dispute between the General Counsel and the Respondent is whether any
back pay is also due to Murphy for the period between-May 13, 1946, the date
of the Intermediate Report, and September 15, 1950.
The General Counsel contends that during this period there was always work
available for a third-class mechanic in the plate shop or work available, in a
substantially equivalent position. He further contends that Murphy, if not
discharged, would have earned promotions to the positions of second-class me-
chanic and first-class mechanic, and therefore urges the Board to compute Mur-
phy's loss of back pay not only at the rate of a third-class mechanic, but at the
rates of pay of a second-class mechanic and a first-class mechanic from such
times as it appears from the evidence that, he would have received promotions.
The Respondent denies that any of the other job-classifications represent posi-
tions substantially equivalent to that of a third-class mechanic in the plate
shop. It also asserts that, at the most, Murphy's "former position" as a third-
class mechanic in the plate shop was available between October 31, 1946, and
December 11, 1947, and between September 28, 1948, and January 8, 1049, the
only periods during which newly hired or promoted employees filled this job
classification.
B. Murphy's gross back pay
1. Work performed in the various job-classifications in the plate shop
Except for motors (which the Respondent purchases), and the milling and
machining of certain parts to fine tolerances in the machine shop, the Respond-
ent's plate shop, starting with steel plate and stock, builds and assembles the
materials-handling machinery which the Respondent produces and sells. The,
machines used for this work are power shears, punch presses, drill presses, a
brake (for bending metal stock), a roll machine, a grey machine or nibbler (for
chopping stock to pattern or template), and a welding machine. In addition to
layout men and welders, the employees in the plate shop are classified as first-,
second-, and third-class mechanics, and first-, second-, and third-class helpers.
The wage rate ranges for. each of these classifications on December 19, 1945, and
on and after the dates of four subsequent general wage increases, are set forth in
the footnote.28 -
There are also first-, second-, and third-class mechanics in what the Respondent
calls its erection and maintenance department, which not only does the mainte-
nance work in the plant, but erects and repairs machinery at the premises of
customers of the Respondent. At times, these mechanics from the erection de-
partment work as mechanics in the plate shop under the plate shop foreman.
Obviously, the cleaning of the plate shop, the storing and handling of the plate
and stock before, during, and after its shaping, burning and cutting on the ma-
chines, and the assembly of the parts, require a large amount of physical labor
is See following table.
Dec. 19, 1945 Apr. 18, 1946 June 5, 1947 Sept. 6, 1948
Helpers,third ------------------------- $0.60-$0.70 $0.70-$0.80 $0.77-$0.87 $0.81-$0.92
Helpers,second ----------------------- 71- 75 81- 85 88- 92 93- 97
Helpers, first ------------------------- 76- 80 86- 90 93- 97 98- 1.02
Mechanics,third ---------------------- 81- 85 91- 95 98- 1.02 1.03- 1.07
Mechanics,second -------------------- - 86- 90 96- 1.00 1.03- 1.07 1.08- 1.12
Mechanics, first----------------------- 91- 1.00 1. 01- 1.10 1.08- 1.17 1.13- 1.23
UNDERWOOD MACHINERY COMPANY 1403
aside from that involved in the direct operation of the machines. The bulk of
this purely physical labor is performed by the helpers who are, however, also
given the opportunity, so far as seems warranted by. their intelligence and in-
creasing manual ability, to assist in the machine operations, first by handling the
plate or stock with a mechanic while the mechanic operates the machine, then,
occasionally to help the mechanic on the simpler machines and jobs, and, finally,
when needed, to do some cutting and burning -similar to that done by a third-
class mechanic. If he developed in this fashion, a man without previous experi-
ence would normally progress through the third and second helpers' classifica-
tions into the first-class helpers' classification, and then into the mechanics'
classifications, assuming, of course, that the work load continued to justify his
retention as an employee.
The first-, second-, and third-class mechanics are required to operate all the
machines in the plate shop, to do some tack welding, and also to do some forge
work. They are classified, however, as first, second, or third class in accordance
with the shop foreman's rating of their comparative abilities in the general per-
formance of these tasks. Here, as in the case of the helpers, a third-class me-
chanic might expect normally to'progress to a first-class mechanic's job, if his
abilities developed and the work load continued to justify his. retention as an
employee.
From the testimony of Plate Shop Foreman Atkins, upon which the foregoing
findings of fact have been based, it appears that the differences in abilities and
work performed by a first-class helper, a third-class mechanic, and a second-class
mechanic which the Respondent recognized with 5-cent per hour wage differ-
entials, were not considerable. For, as Atkins testified, the cutting , burning,
and welding which a first-class helper and a third-class mechanic performed
were similar, although a third-class mechanic was better at it. And Atkins also
testified that both the third-class mechanic and the second-class mechanic
operated all the machines, did tack welding, burning, and some forge work, and
that, although the second-class mechanic was rated as superior in ability, it
would be "drawing the line a little bit close" for him to say that there was some
work which he would give to a second-class mechanic that he would not give
to a third-class mechanic. . Furthermore, as the Respondent's records show,
the Respondent has had no third-class mechanics in its employ since January
8, 1949, and on August 21, 1949, ignoring the existence of that intermediate
classification, promoted a man named Flaherty, who had then been a first-class
helper for only 2 months, directly to a second-class mechanic's job.
It appears from this evidence, and the undersigned accordingly finds, that (1)
the work of a first-class helper and a third=class mechanic in the plate shop, and
of a third-class mechanic in the erection department were substantially the same,
and certainly that a third-class mechanic in the plate shop was capable of per-
forming any work that a first-class helper in the plate shop or a third-class
mechanic in the erection shop could perform; and (2) there being but slight
differences between the work and abilities required of a second-class mechanic in
the plate shop and those required of a third-class mechanic in the same shop, that
if a third-class mechanic of normal, intelligence and ability were given the op-
portunity of continued employment and experience, he would eventually merit
and receive promotion to a second-class mechanic's classification.
2. Availability of work for Murphy within the meaning of the order and decree
The question posed under the Board's order and the Court's decree is whether,
ofter May 13, 1946, the date of the Intermediate Report, there became available
1404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"work for another third-class mechanic in the plate shop or in a substantially
equivalent position." If. so, the Respondent was obligated to place Murphy in
the job for which such work became available and to treat him without further
discrimination, or, failing so to place him, to make him whole for his loss of
earnings.
'There is no dispute as to when, and for what periods, there were men working
in the plate shop as third-class mechanics after May 13, 1946. On that date,
there were no. men in that classification in the plate shop.29 Thereafter, except
for a returned service man,80 there were no third-class plate shop mechanics in
the Respondent's employ until, on October 31, 1946; two first-class helpers, T.
Hansen and T. Walsh, were promoted to become third-class mechanics. From
October 31, 1946, until September 28, 1948, there were also six hirings of new
employees as third-class plate shop mechanics. As a result, at all times between
October 31, 1946, and December 11, 1947, and again between September 28, 1948,
and January 8, 1949, there was at least one and sometimes as many as four and
five third-class mechanics in the shop, all of whom had become third-class.me-
chanics by hire or promotion after May 13, 1946. On the other hand, from May
13, 1946, to October 31, 1946, from December 11, 1947, to September 28, 1948, and
from.January 8, 1949, to September 15, 1950, there were no employees listed on
the Respondent's payroll as third-class mechanics in the plate shop. -
The General Counsel contends that it appears from the Respondent's records
that there was work available for Murphy (1) in the substantially equivalent
position of third-class mechanic in the erection shop on and after May 13, 1946,
since an employee named O'Brien had been hired on January 9, 1946 (and thus
.after Murphy's discharge), and had continued to serve as a third-class mechanic
both in the erection department and in the plate shop under Foreman Atkins ;
and (2) in the substantially equivalent position of first-class helper in the plate
shop, beginning with the Respondent's promotion of T. Hansen to that position
on June 27, 1946, and continuing until Hansen's already-noted, further promo-
tion to third-class mechanic on October 31, 1946.
In the opinion of the undersigned, the language of the Board's order on its
face did not require the Respondent to displace an employee in either a third-
class mechanic's position or in a substantially equivalent position, which such
employee held on May 13, 1946, even though he may have been hired in, or
promoted into, the position after Murphy's discharge on December 19, 1945. The
undersigned therefore holds that O'Brien's continued tenure of the third-class
mechanic's job after May 13, 1946, does not warrant a finding that the_ work
done by him was work available for Murphy after May 13, 1946, within the
meaning of the Board's order and the Court's decree.
However, the promotion of Hansen to a first-class helper's job on June 27, 1946,
and his retention of that job until October 31, 1946, does show that the first-class
helper's job should have been regarded by the Respondent as available for Murphy
under the order and decree. As has been found, the work of a first-class helper
was substantially equivalent to that of a third-class mechanic. The undersigned'
21 The Respondent 's records show a "separation date" of February 6, 1946, for P.
'Buonopane , the only other employee who was working with Murphy as a third-class
mechanic on the date of Murphy's discharge. The Respondent's records also show only
one other third-class mechanic in the plate shop between December 19, 1945, and May 13, ,
1946, 1. e., P. Atkins, a veteran who returned on December 31, 1945, but who served
as a mechanic third-class only until March 6, 1946.
$0 J. Carr, who returned on June 14, 1946, and served as a third -class mechanic until
October 23, 1946. The General Counsel makes no contention that the job 'thus filled by
Carr was available 'for Murphy under the Board's order.
UNDERWOOD MACHINERY COMPANY 1405
accordingly finds that there was available for Murphy under the Board's order,
work as a first-class helper from June 27, 1946, until October 31, 1946.
It is also clear that beginning with October 31, 1946, the Respondent had' work
available for Murphy as a third-class mechanic in the plate shop. Although
there were subsequent periods from December 11, 1947, to September 28, 1948,
and from January 8, 1949, to September 15, 1950, during which there were no
third-class plate shop mechanics on the Respondent's payroll, the undersigned
notes that, as in the machine shop situation involving Donnelly, the work of
the mechanics was the same regardless of their classifications, and that the
information supplied by the Respondent from its records does not show that the
absence of third-class mechanics from the payroll during these periods was the
result of layoffs because of lack of work for third-class mechanics. The under-
signed, therefore, finds that if Murphy had been reinstated, as the Board's order
required, he-would not have been laid off but would have continued in the Re-
spondent's employ until September 15, 1950.
More than that, however, the undersigned is also persuaded that Murphy, as a
normally intelligent mechanic with previous experience, would have secured a
promotion to a second-class mechanic's job if he had received the opportunity of
continuing to work for the Respondent as the Board's order required. The
General Counsel argues that he would have received this promotion when
Hansen was promoted to the third-class mechanics' classification on December
11, 1947. While this argument seems, reasonable, the undersigned, in order to
eliminate any possibility of error, fixes the date when Murphy would have been
promoted to become a second-class mechanic as not later than October 30, 1949,
when the Respondent, ignoring the intermediate classification of third-class
mechanic, promoted M. C. Flaherty, who had been a first-class helper only 2
months, directly to the job of second-class mechanic.
Upon the foregoing considerations, the undersigned concludes that Murphy Is
entitled to gross back pay from the Respondent under the Board's order and the
Court's decree (1) for the period from June 27, 1946, until October 31, 1916, as a;
first-class helper;' (2) for the period from October 31, 1946, to October 30, 1949,
as a third-class mechanic; and (3) for the period from October 30, 1949, to
September 15, 1950, as a second-class mechanic. # -
For the reasons set forth in the consideration of the same argument in Don-
nelly's case, the undersigned rejects the Respondent's argument that Murphy's
waiver of reinstatement on September 15, 1950, should be given retroactive effect
to the date of Murphy's acquisition of similar or substantially equivalent employ-
ment.
As in the case of Donnelly, the undersigned, in computing Murphy' s gross loss
of earnings on Appendix C, has taken into account the decreasing length of the
Respondent's workweek since his discharge, and the fact that, according to his
testimony, Murphy lost 14 days of work for personal reasons including illness,
and would therefore not have. been able to work for the Respondent on these
days. The undersigned has also omitted the 11 holidays which the Respondent's
plant has observed without pay, but has included the amounts of Christmas
bonuses received by the employees. As shown on Appendix C, Murphy's gross
loss of earnings amounts to $9,321.58.
C. Murphy's interim earnings
From the time of his discharge on December 19, 1945, until he advised the
Respondent on September 15, 1950, that he no longer wished to be reinstated.
1406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Murphy worked for 13 other employers 91 He began working for the first of
these employers about a week after his discharge and worked there until some-
time in March 1946 , or roughly a month after his first period of back pay from
the Respondent had terminated. Although he then registered with the United
States Employment Service, he secured his next job only on or about March 20,
1947, with the Brown- Lumber Company at its lumber camp at Berlin, New
Hampshire,, where he worked 3 or 4 weeks before going directly to work for 6
months at the Oxford Paper Company's plant at Rumford , Maine. Then followed
employment with 6 employers in Holyoke , Massachusetts , about 90 miles from
Boston, where he worked from October 1947 until sometime in September 1948.
In September 1948 he quit the last of these Holyoke jobs to return to Boston
because of his mother 's illness . In less than a week, he secured his next job in
the Boston area, where he worked for 2 employers with a gap of a week between
the 2 jobs, until he was laid off in August 1949. Although he then registered
with, and thereafter reported regularly to, the United States Employment Service,
he secured his next job only on August 12, 1950. Between August 12, 1950, and
September 15, 1950, he had 2 jobs, without losing working time between them.
The General Counsel contends that during the period from December 19,
1945, to September 15, 1950, Murphy incurred "expenses , such as for transporta-
tion, room, and board . . . in connection with obtaining work and working else-
where than for the Respondent, which would' not have been incurred but for
his unlawful discharge and the consequent necessity of his seeking employment
elsewhere" ; ' that the amount of these expenses should, therefore, be deducted
from the amount of Murphy's interim earnings ; and that only the balance should
be credited against Murphy's gross loss of earnings in computing the net back
pay due to Murphy.
Two of these claims are not justified . The undersigned disallows a claim for
an item of $31.20 , which Murphy was charged by the lumber company for 3
weeks' board and room, since Murphy was a single man , was not maintaining a
home elsewhere for himself or dependents, and would have paid at least this
amount for his board and lodging even if he had remained in. the Respondent's
employ in Boston.
The undersigned also r5jects the General Counsel 's claim for an allowance
of a difference between Murphy's living expenses and commuting carfare while
at work with the Respondent and those which he incurred after his discharge.
This claim was based upon the fact that, while working for the Respondent,
Murphy lived with his mother within walking distance of the Respondent's plant.
However, Murphy testified that, in the summer of 1946, his mother went to work
in a home for crippled children where she received her lodging and, as a result,
gave up her apartment and was no longer able to provide living accommodations
for Murphy.
The undersigned , however, does allow the General Counsel's claims for the
following items of expense incurred . by Murphy in connection with his securing
work at the lumber camp in Berlin, New Hampshire, at the plant in Rumford,
Maine, and in his first employment at Holyoke, Massachusetts :
31 See Appendix C.
12 See 74 NLRB at 671, footnote 41.
WAFFORD.CABINET COMPANY 1407
Train fare to Rochester, N. H____________________________________ $2.00
Hotel in Rochester, N. H.-1 night_________________________________ 2.50
Bus fare, Rochester, N. H. to Berlin, N. H__________________________ 4.00
Hotel in Berlin, N. H.-, 2 nights____________________________________ 5.00
Auto-100 miles to logging camp_ ___________________ ______________ 8. 50
Boots for logging camp job_______________________________________ 13.50
Woolen pants for logging 'camp job_________________________________ 16.00
Woolen shirt for logging camp job________________________________ 7.00
Woolen Socks for logging camp job__---------------------------------- 4. 50,
Auto-Togging camp to Berlin, N. H________________________8. 50,
Hotel in-Berlin , N. H.-1 night____________________________________ 2.50
Bus fare, Berlin, N. H. to Rumford, Maine_________________________ 1.50
Hotel in Rumford, Maine-2 nights_______________________________ 5.04
Bus fare, Rumford, Maine to Manchester, N. H______________________ 3.00
Hotel, Manchester, N. H.-1 night__________________________________ 3.00
Bus fare, Manchester, N. H. to Holyoke, Mass_______________________ 4. 00
Hotel, Holyoke, Mass.-3 nights_______________________________7.50
$98.00
As in the case of Donnelly and for the reasons expressed in connection there-
with, the undersigned rejects a claim by the General Counsel that the amount
of the interim earnings of Murphy, which should be credited against his gross
loss of earnings in computing the Respondent's net liability; should exclude
compensation received by Murphy for working periods with his later employers
during which he would have received paid vacations from the Respondent.
As set forth in Appendix C, the undersigned computes the net interim earnings
credit to which the Respondent is entitled in the case of Murphy, as being
$5,997.26.
III. CONCLUSIONS AND RECOMMENDATIONS
Upon the foregoing findings and the computations made in accordance there-
with in Appendices B and C, the undersigned makes the following determinations,
as directed by the Order of the Board entered on October 12, 1950, and recom-
mends their adoption by the Board:
(1) That back pay in the sum of $3,324.32 is due to George Murphy from the
Respondent, Underwood Machinery Company, under the Board's Order in Case
No. 1-C-2629 and the Decree of the United States Court of Appeals for the First
Circuit enforcing said Order on December 20, 1949.
(2) That back pay in the sum of $1,839.05 is due to John Donnelly from the
Respondent, Underwood Machinery Company, under the "Board's Order in Case
No. 1=C-2767 and the Decree of the United States Court of Appeals for the First
Circuit enforcine the said Order on December 20, 1949.
JOHN WAFFORD D/B/A WAFFORD CABINET COMPANY and FURNITURE
WORKERS LOCAL UNION No. 2081, UNITED BROTHERHOOD OF CAR-
PENTERS AND JOINERS OF AMERICA, AFL. Case No. 32-CA-130.
August P28,1951
Decision and Order
On May 8, 1951, Trial Examiner Charles W. Whittemore issued his
Intermediate Report in the above-entitled proceeding, finding that the
95 NLRB No. 190.