Mastro Plastics Corp.

National Labor Relations Board - Board Decisions

Apr 24, 1962

136 N.L.R.B. 1342 (N.L.R.B. 1962)

1342 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I shall also recommend that Local 560 notify Rusciano , in writing , that it has no
abjection to the employment of Frank Fiore on the George Washington Bridge
project or elsewhere and that Local 560 's liability for further accrual of backpay shall
cease 5 days after the giving of such notification.
I shall also recommend that Rusciano post an appropriate notice at its office at the
George Washington Bridge project and at any other project on which it may be
engaged in the northern New Jersey area . I recommend that, if willing, Rusciano
post , with the notice , the notification from Local 560.
Since the acts of Local 560 found herein to have constituted an unfair labor
practice were not committed at the hiring hall or in connection with the operation
thereof and there is no evidence that they were known to the members of Local 560,
I shall not recommend the posting of a notice or the notification to Rusciano there.12
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Rusciano is engaged in commerce within the meaning of Section 2(6) of the Act.
2. Local 560 is a labor organization within the meaning of Section 2(5) of the Act.
3. By discriminatorily discharging Frank Fiore on April 17 , 1961 , and, since that
date refusing to reinstate him, Rusciano has engaged in and is engaging in unfair
labor practices within the meaning of Section 8(a) (3) and ( 1) of the Act.
4. By attempting to cause , and by causing , Rusciano discriminatorily to discharge
and refuse to reinstate Frank Fiore , Local 560 has engaged in and is engaging in
unfair labor practices within the meaning of Section 8 (b) (2) of the Act.
5. By restraining and coercing employees in the exercise of rights guaranteed by
Section 7 of the Act , Local 560 engaged in and is engaging in unfair labor practices
within the meaning of Section 8 ( b)(1) (A) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and ( 7) of the Act.
7. Rusciano and Local 560 have not engaged in the other violations of the Act
alleged in the complaint.
[Recommendations omitted from publication.]
12 Compare J W. Bate8on Company , Inc, 134 NLRB 1654, where the remedial action
prescribed by the Board ' s order was similar to the foregoing but also directed the posting
of a notice by the union both at the employer ' s premises and at the union business office
and meeting hall. In that case, however, the discriminatory action was based upon a
written contract containing an illegal union-security clause known , presumably, to the
union membership.
Mastro Plastics Corporation and French -American Reeds Manu-
facturing Co., Inc. and Local 3127, United Brotherhood of
Carpenters and Joiners of America . Case No. 2-CA-1799.
April 24, 1962
SUPPLEMENTAL DECISION AND ORDER
On March 13, 1953, the National Labor Relations Board issued a
Decision and Order in the above-entitled case,' directing, inter ilia,
that the Respondent make whole certain employees discriminatorily
discharged by the Respondent. Thereafter, the Board's Order was
enforced in full by the United States Court of Appeals for the Second
Circuit on July 16, 1954,2 and subsequently, that judgment was
affirmed by the United States Supreme Court, on February 27, 1956 .'
1103 NLRB 511
2 N.L R B v. Mastro Plastics Corp , et at., 214 F. 2d 462 (C A 2).
8 Mastro Plastics Corp, et al . v. N L.R.B., 350 U S. 270.
136 NLRB No. 119.
MASTRO PLASTICS CORPORATION, ETC. 1343
On March 9, 1956, the Respondent offered reinstatement to all of the
discriminatees with the exception of Rose Amoroso and Yolanda
Flamio. On March 31, 1957, Amoroso was offered reinstatement.
On November 21, 1958, upon petition of the Board, the Respondent
was held in civil contempt by the Court of Appeals for the Second
Circuit for failure to reinstate Yolanda Flamio in accordance with
the order of said court.' Flamio was offered reinstatement on De-
cember 1, 1958.
On June 14, 1960, the Regional Director for the Second Region
issued a backpay specification. On June 28, 1960, the Respondent
moved to dismiss the specification as insufficient in law for the reason
that the specification did not allege that the Respondent had jobs
available for the claimants during the backpay period. On July 21,
1960, Trial Examiner William Seagle denied the motion, reasoning
that the Respondent had the burden of proving that jobs were not
available at its plant. Upon service of the Respondent's answer, the
General Counsel moved for an order striking the answer and for
judgment on the pleadings on the ground that the answer lacked
sufficient specificity to satisfy the Board's Rules and Regulations.
On September 20, 1960, Trial Examiner Morton D. Friedman issued
an order precluding the Respondent from submitting evidence at the
hearing, striking the Respondent's answer, and granting the General
Counsel's judgment on the pleadings unless the Respondent served
an amended answer of sufficient specificity within 10 days from the
date of said order .5 Thereafter, the time for the Respondent to serve
its amended answer was extended from time to time until, ultimately,
during the course of the hearing itself, the Respondent served a
sufficient answer.
Upon appropriate notice, a hearing was held before Trial Examiner
Morton D. Friedman, for the purpose of determining the amounts of
backpay due the claimants.
On May 1, 1961, the Trial Examiner issued his Supplemental In-
termediate Report, which is attached hereto, in which he found that
certain of the 76 claimants were entitled to specific amounts of back-
pay. Thereafter, the Respondent and the General Counsel filed ex-
ceptions to the Supplemental Intermediate Report and briefs in
support thereof.
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 McCulloch and Members Fanning and-
Rodgers].
4 N L R.B. v. Ma8tro Plastics Oorp ., et at., 261 F . 2d 147 ( CA. 2).
5Interim appeals to the Board with respect to the orders of Trial Examiner Seagle andi
Trial Examiner Friedman were denied
1344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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,
and the exceptions and briefs, and hereby adopts the findings, con-
clusions , and recommendations of the Trial Examiner with the ex-
ceptions, additions, and modifications set forth below.
1. In agreement with the Trial Examiner we find that the follow-
ing claimants are entitled to the indicated amounts of backpay :
Joseph Harris------------------------------------ $57.94
Connie Koiner 6----------------------------------- 53.07
Anthony Migliore e------------------------------- 4.36
Charles Pollina c---------------------------------- 65.99
Estate of Henry Schultz--------------------------- 34.27
Estate of Mary Kennedy-------------------------- 1, 983.10
Rose Altieri-------------------------------------- 5,285.65
Maria Joan Americo Adornetto-------------------- 1, 297.55
Rose Amoroso Vitanza---------------------------- 5,386.47
James Boyd-------------------------------------- 3,254.76
Angelo Bruno------------------------------------ 826.96
Luis Cartagena----------------------------------- 4,417.92
Michael Cascione--------------------------------- 1,334.10
Louis J. Castaldo--------------------------------- 2, 588.98
Gaetano Cheli------------------------------------ 572.24
Joseph Cirillo------------------------------------ 140.00
Rose DeMinno----------------------------------- 430.16
Michael De Turo'-------------------------------- 206. 64
Joseph Ebert------------------------------------- 1,076.04
Fred Franchi------------------------------------ 168.08
Dorothy Gheradi--------------------------------- 3,795.63
Vernal Gibson Fine------------------------------- 1,953.77
Gloria Gonzales De Turo'------------------------- 287.65
Bernard Greco----------------------------------- 283.16
Evard Green------------------------------------- 2,506.10
Louis Hernandez--------------------------------- 274.81
Lillie Maddalena--------------------------------- 5, 228.45
Ralph Maresco----------------------------------- 1,468.05
Camille Martone Vaughan------------------------- 580. 65
Agnes Messina--- -------------------------------- 5, 456.45
Mary Occino Schettino---------------------------- 1,236.39
6 These names appear in the Supplemental Intermediate Report as Kolnes, Miglidre, and
Pallina, and are hereby corrected as noted in the award
7 Claimants Michael De Turo and Gloria Gonzales De Turo testified as to their individual
searches for work at a deposition proceeding prior to the hearing herein and were not
present at the hearing. The exhibits relating to the deposition proceeding were intro-
duced into evidence at the hearing, but sometime prior to the transmission of the case to
the Board these exhibits became detached from the exhibit file ; no copies appear to be
available. However , the Respondent filed no exceptions as to these claimants other than
the general exceptions relating to the case itself . Accordingly , we adopt pro forma the
recommendation of the Trial Examiner as to the amount of backpay to which these
claimants are entitled.
MASTRO PLASTICS CORPORATION, ETC. 1345
Carmine Pastore--------------------------------- $2,770.52
Henry Paul-------------------------------------- 10,096.97
Elizabeth Petrus--------------------------------- 5,681.10
Peter Pieroni------------------------------------- 75.08
Rafael Prieto------------------------------------ 5,095.45
Antoinette Radice Cassanelli----------------------- 449.46
Patricio Rivera----------------------------------- 2, 551.85
William Sandhop--------------------------------- 610.63
Ruth Shaw-------------------------------------- 2,916.29
Estelle Sills Sanzano------------------------------ 2,044.62
Madeline Smolen--------------------------------- 231.79
Frank Tommarello------------------------------- 2,106.64
Leopold Weinberg-------------------------------- 325.11
Abraham Zimmerspitz---------------------------- 1,477.65
Michael Zinzi------------------------------------- 2,674.04
2. We find merit in the General Counsel' s exceptions as to certain
apparently inadvertent typographical or arithmetic mistakes and cor-
rect them as follows :
The Trial Examiner correctly found that Frank Ciccone is entitled
to the sum of $1,119.89 but omitted his name from the list of recom-
mended awards; we accordingly award Ciccone $1,119.89.
At the hearing the Respondent and the General Counsel stipulated
net backpay claimed in the specification for certain individuals whose
claims totaled less than $100. The Trial Examiner found that Morris
Brender is entitled to $16.87; the amount claimed for him in the speci-
fication is $61.87. Accordingly, we award Brender $61.87.8
We award Adelaide Fonagy $1,394.62 as claimed for her in her
amended specification rather than $1,394.68.
We award Lena Maddalena $3,078.91 which is the correct arith-
metical amount rather than the $3,042.90 found by the Trial Examiner
or the $3,098.91 claimed in her second amended specification.
Under the circumstances of the case we agree with the Trial Ex-
aminer that the backpay period for Richard Pellay should be limited
and find that the Trial Examiner's recommendation of four quarters
is reasonable .9 However, the correct net backpay for that period
should be $2,169.10 rather than $1,869.10, and accordingly, we award
$2,169.10 to claimant Pellay.
The Trial Examiner correctly awarded William Sandhop $610.63
and Ruth Shaw $2,916.29 but stated that the net backpay claim for
8 Although the amount recorded in the record listing is also $16 . 87, in view of the fact
that the specification computes $61.87 as the amount due , we find that the former number
is the result of an inadvertent transposition of numbers.
e Pellay had special training and it is reasonable to expect that he would search for
work within the competence of his special training . However, although one usually is not
expected to "lower his sights" if he cannot obtain a substantially equivalent job (Southern
Silk Mills , Inc, 116 NLRB 769), we adopt the Trial Examiner ' s recommendation that
after a year ' s unsuccessful search, Pellay was obliged to set his sights lower to the kind
of work he did at Mastro ; we note that the General Counsel did not except to this cutoff
period
1346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sandhop is $706.63 and for Shaw is $2,916.20. We find that the net
backpay claim is the same as correctly awarded.
We find that claimant Boyd obtained his first interim employment
with National Electrical Instrument Company on January 3, 1952,
rather than on January 3, 1953, as found by the Trial Examiner. We
also find that the date when Boyd temporarily left another job be-
cause of injury is July 1953 rather than July 1954.10
The Trial Examiner stated that no backpay was claimed for claim-
ant Fine between February 12 and March 20, 1952; the correct dates
are February 15 and March 30, 1952, and they are accordingly
corrected.
In addition to the names noted in footnote 6, supra, the Trial Ex-
aminer misspelled the name of Jean Bowerman, spelling the last name
"Bamerman." In addition, the correct net interim earnings should
be $774.20 and the net backpay figure should be $439.80. We make
these corrections and award Bowerman $439.80.
The General Counsel correctly claimed $1,207.74 in his amended
specification for James Miller, but inadvertently left off the item of
$80 for vacation pay for the third quarter of 1955 in substantiation for
that amount. During the course of the hearing the General Counsel
amended the specification to include this item. The Trial Examiner
apparently overlooked the amendment. We, accordingly, award
Miller $1,207.74.
3. The primary contention of the Respondent, upon which it rested
without going forward with evidence, is that the General Counsel
bears the burden of proof to establish that each claimant made a "reas-
onable search for work" and that there was a "job available" for each
claimant at Respondent's plant at all times during the backpay period.
The General Counsel, as a public service, examined all available claim-
ants as to their respective attempts to find work and subtracted all in-
terim earnings which they had earned or should have earned; he
produced no evidence as to "job availability" at Respondent's plant.
In this connection the Board reaffirms its long-standing rule that
while the general burden of proof is upon the General Counsel to
establish the damage which has resulted from Respondent's estab-
lished discriminatory discharge, i.e., the gross backpay over the back-
pay period, the burden of proof is upon the Respondent as to diminu-
tion of damages, whether from the willful loss of earnings by the
failure to either look for or keep a substantially equivalent job or
from the unavailability of a job at Respondent's plant for some rea-
son unconnected with the discrimination ' As for the "willful loss of
10 See Intermediate Report, section IV, 8
11 Phelps Dodge Corp . v. N L R B ., 313 U S 177; N L.R B. v . Reed & Prince Manufactur-
ing Company, 130 F. 2d 765 ( C.A. 1) ; Monroe Feed Store, 122 NLRB 1479 ; Brown and
Root , et al, 132 NLRB 486; W. C. Nabors, d/b/a W. C. Nabors Company, 134 NLRB
1347 (IR)
MASTRO PLASTICS CORPORATION, ETC. 1347
earnings" we note that that principle rests not so much on the common
law theory of mitigation of damages as on a public policy of "pro-
moting production and employment." 12 In the utilization of the prin-
ciple the Supreme Court left the matter to the wide discretion of the
Board to keep the matter within reasonable bounds and avoid remote
and speculative claims by employers. Absent a showing by Respondent
that the individual claimant acted unreasonably or willfully or that
a job would not have been available had the discrimination not oc-
curred, the General Counsel has established a prima facie case.
In the light of the foregoing, the estate of Alexander Unger is
entitled to the full amount of net backpay claimed in the amended
specification, i.e., $5,138.27. The Trial Examiner disallowed the back-
pay claim for a period of time that lasted until Unger went to live
with his son, concluding that the evidence which the son gave as to
Unger's search for work prior to that time was not sufficient to base a
finding. However, since the burden is upon the Respondent to prove
that the claimant did not make a reasonable search for work, and
since Respondent refused to either cross-examine the witness or present
other evidence that the claimant was still incapacitated by illness or
otherwise failed to search for work, we find that the claimant made
the necessary effort and award his estate the full amount claimed by
the specification. We note, in regard to this finding, that the testi-
mony as to Unger's search for work after he went to live with his son
demonstrates that he made as reasonable an effort to obtain employ-
ment as could be expected for a man of his age; there is no showing
that he acted otherwise prior to moving into his son's home.13
4. The Trial Examiner recommended that the Respondent deposit
in escrow sums of money claimed in the specification for eight persons
who could not be found and accordingly did not testify. 14 In most of
the cases the sums claimed are gross backpay. Under all circumstances
of the case, particularly the length of time that it has been in litiga-
tion, and the fact that Respondent bears the burden as to diminution
12Phelps Dodge Corp. v. N.L.R B., supra, 197-200. Even as to the common law theory
of mitigation , the generally accepted rule is that the burden of proof for an employer's
breach of an employment contract is upon the defendant to show that the plaintiff either
found, or, by the exercise of proper industry in the search , could have procured other
employment of an approximately similar nature , and that in the absence of such proof
the plaintiff is entitled to recover the salary fixed by the contract. 5 Williston, Contracts,
¢ 1360. Also note that in the Reed & Prince case , supra, footnote 10, while the court
states that the burden of proof in a contempt proceeding is upon the Petitioner, the burden
of proving no contempt on the specific ground that the job would not have been available
is upon the defendant . See also Southern Silk Mills, Inc ., supra.
is As for the other deceased claimants , Respondent stipulated that the estate of Henry
Schultz was entitled to $34.27, and the Trial Examiner awarded the correct amount to
the estate of Mary Kennedy
14 The General Counsel objects to the apparently inadvertent omission of Michael
Valentine from this list of claimants . We find that he belongs to this classification and,
accordingly , add his name and award him the sum of $12,480 86, subject to the escrow
and Regional Director determination as discussed herein
641795-63-vol. 136-86
1348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of gross backpay, we believe that an award of backpay, in the claimed
amounts, is legally proper and binding upon the Respondents. How-
ever, we desire to afford the Respondent a reasonable opportunity to
examine these claimants before the awarded backpay is turned over
to them. Accordingly, the Regional Director is instructed to hold in
escrow the amounts of backpay awarded to the nine claimants who
could not be located, and to make suitable arrangements to accord the
Respondent, together with the General Counsel's representative, an
opportunity to examine them as to their interim earnings and activi-
ties. The Regional Director shall make a determination whether any
interim earnings or other amounts, in excess of those shown herein,
are revealed which are properly deductible from a claimant's back-
pay award under existing Board precedent. Where so determined,
the Regional Director shall make such deductions and return the
amounts deducted to the Respondent. The Regional Director is fur-
ther instructed to report to the Board when these matters have been
finally resolved, and in any event no later than 1 year from the date
of this Supplemental Decision and Order, the status of these cases at
such time.",
5. In several instances the Trial Examiner discussed expenses as a
total, rather than calendar quarter, figure for the backpay period.
The rule of the Board has long been that expenses are deducted from
interim earnings on a calendar quarter basis and that no expenses are
allowed over the amount of earnings, if any, during the respective
calendar quarter.1e However, the Trial Examiner did in fact apply
the correct formula in all cases and the expenses so awarded are sup-
ported by evidence in the record, except as discussed herein.
Claimant Eskenazi was found by the Trial Examiner to have a
gross backpay claim of $10,586.15, net interim earnings admitted as
$3,352.95, making a total net backpay claim of $7,233.20. However,
on the correct calendar quarter basis, only $13.50 would have been
deducted from interim earnings as expenses since all other expenses
were incurred in quarters when Eskenazi did not have earnings to
cover such expenses. Accordingly, we disallow so much of the claim
for expenses over earnings for the quarters without sufficient earn-
ing to cover the expenses, and award Eskenazi $7,211.60.
The Trial Examiner disallowed the expenses claimed for Marie
Olker Finelli as to excessive and recomputed her net interim earnings
by granting her $1 per day expenses, or $65 a quarter, and then pro-
ceeded to recompute her specification on a total basis rather than
calendar quarter basis; the General Counsel excepted. The Respond-
ent excepted on the basis that her expenses were computed on a
11 See, Brown and Root, et al., supra; Knickerbocker Plastic Co, Inc, 132 NLRB 1209
1e See West Texas Utllitiea Company, Inc., 109 NLRB 936, 937; English Mica Company,
101 NLRB 1061, 1062.
MASTRO PLASTICS CORPORATION, ETC. 1349
basis of constant attendance whereas her earnings reflect periodic
absences. We find that the record supports a finding that she in-
curred $1 per day additional expenses over what she would have
incurred at Mastro and that the exceptions of both the General
Counsel and the Respondent have merit.17 We compute her amended
specification as follows :
Year and quarter Interim
Earnings
Hours Expenses Gross
backpay
Net inter-
Ira earnings
Net back.
pay
1952-2________________________ $562.66 520 $65 $468.00 $497.66 ------------
1962-4------------------------ 623 15 520 65
00
{{
'38 1 }
658.15 ____________
1963-1 ------------------------ 486. 80 436 42 {
174 80
264.60
} 444 80
1953-2------------------------ 465 29 452 57 474 00 408.29 $66.31
1964-1 ------------------------ 530.23 448 56 {
363.30
112.20
} 474 23 1.27
1954-2------------------------ 546 44 440 55 484 . 00 491 44 ------------
1955--1 ________________________ 420.90 440 55 484. 00 365.90 118 10
1955--3------------------------ 580.23 444 56 {
488.40
•'88.00
} 534.23 42.17
359.40
1956--4________________________ 533.99 461 58 353 . 05 475.99 92.46
•46.00
Total------------------- ------------ ------------ ------------ ------------ ----------- 320.31
Year end bonus per paragraph I, F, specification.
-Vacation pay, per paragraph I, E, specification.
Accordingly, we award Finelli $320.31.
6. As previously stated, the Board and courts require that claimants
do not willfully incur losses but make reasonable efforts to find sub-
stantially equivalent employment. However, there is no requirement
that their efforts must meet with success; a claimant who makes a
reasonable effort but cannot find a substantially equivalent job is not
thereby deprived of his claim.18 In addition, a claimant who obtains
a job but then leaves it for a justifiable reason is not deprived of all
further claim; 19 the assumption is that the reason for his quitting the
job would not have been present at Respondent's plant and therefore
the job is not substantially equivalent. Even if a claimant obtains a
so-called permanent job, he is still entitled to the difference between
what he earns at the new job and what he would have earned at Re-
spondent's plant; neither the policy nor the letter of the Act deprives
17 Finelli testified at the hearing that she suffered from a chronic ailment which periodi-
cally forced her to be absent from work . The "hours" and "gross backpay" in her specifi-
cation reflect such absences . We have computed her expenses pro rata also to reflect
these absences , using "hours " as the basis for the recomputed expense figures . Although
the Respondent pointed toward "interim earnings" as the basis for Its objection, the
differential in those figures could also embrace such amounts as incentive pay whereas the
"hours" figures would appear to be the more accurate figures to use.
18'W. C. Nabors, d/b/a W. C. Nabors Company , 134 NLRB 1078 ; N.L R.B. v. Cashman
Auto Company, at al., 223 F. 2d 832 (C.A 1).
19 East Texas Steel Castings Company, Inc ., 116 NLRB 1336, 1347-1348 , enfd . 255 F. 2d
284 (C.A. 5).
1350 DECISIONS or, NATIONAL LABOR RELATIONS BOARD
him of his claim.20 Only if the evidence supports a finding that the
claimant would have left Respondent's plant for the same reason that
he left the interim job or in order to obtain this particular new job
is his claim from that time disallowed. A claimant who goes into,
business on his own is treated similarly to one who obtains interim,
employment; in his case his net profits are treated as interim earn-
ings 21 Finally, if a claimant does willfully incur losses by either un-
justifiably quitting or refusing substantially equivalent employment,
he is not deprived of his entire claim, but only so much of it as he would
have earned had he retained or obtained the interim job22 With these
principles as a guidepost, we adopt the determinations of the Trial
Examiner as to each claimant except as herein discussed :
Flora Capers: The General Counsel claims backpay for Capers
until June 1952 when she left the labor market to become a foster
mother. Capers obtained her first employment sometime during the
first quarter of 1951 and retained it until November 1951. Her testi-
mony indicates that she left this employment when she moved with her
husband to Amityville, some 50 miles away from the Bronx, the loca-
tion of both that employment and her employment at Mastro's plant,
because the distance was too great for her to travel. Although a claim-
ant may seek a job beyond the vicinity of the labor market and still`
be entitled to backpay,23 nevertheless it appears here that her reason
for leaving the vicinity had nothing to do with seeking a job and that
she would also have left her job at Mastro. Accordingly, we disallow
so much of her claim from the time that she moved to Amityville. In
addition to disallowing her entire claim for the first two quarters of
1952, a portion of her claim for the fourth quarter of 1951 should also
be disallowed. However, the record is not clear how long she worked
during that quarter. Accordingly, we direct the Regional Director to
recompute her backpay in accordance with the conclusions of this
paragraph [see Appendix C].
Yolanda Flamio: Flamio's backpay period extends from March 12,
1951, until December 1, 1958, when, pursuant to court order finding
Respondent in contempt, Respondent offered her reinstatement. Con-
20 See Phelps Dodge Corp . v. N.L.R B., 313 U S. 177 , 189-197. The Court agreed with
the Board that, contrary to what Respondent herein contends , the reference to workers
who have "obtained regular and substantially equivalent employment " in Section 2(3)
does not limit the broad definition of "employee" with which Section 2 ( 3) begins. Re-
spondent 's argument would put the claimants on the horns of a dilemma ; on one hand
the claimant would be deprived of his claim because he did not make reasonable efforts to
find interim employment ( and, in fact , claimants who made reasonable efforts but could
not find employment over a protracted period of time should also be deprived of their
claims accordingly to Respondent ) and on the other hand the claimant would be deprived
of his total claim by obtaining the interim employment . Moreover , this treatment would
reduce the Board 's remedy to one merely of correcting private injuries rather than pri-
marily vindicating public rights.
n Self-employment does not in and of itself indicate withdrawal from the labor market.
Brown and Root, et at., 132 NLRB 486.
ii%nickerbocker Plastic Co., Inc, 132 NLRB 1209.
20 Southern Silk Mills, Inc., 116 NLRB 769.
MASTRO PLASTICS CORPORATION, ETC. 1351
sidering all the factors in her case including her lack of skill, we agree
with the Trial Examiner that she made a reasonable effort to diminish
the amount of her claim and did not willfully incur losses during the
period that she was in the labor market. However, from January 1955
it would appear from her testimony that she was only briefly in the
active labor market searching for interim employment. She testified
that she left her employment during that month because of her preg-
nancy and did not thereafter seek work until sometime after her baby
was born. The General Counsel claims backpay for her for the en-
tirety of the first quarter of 1955 and the third and fourth quarters of
1957. With respect to the third and fourth quarters of 1957 her testi-
mony indicates that she was only briefly in the labor market with short
interim employments but could not look for work constantly because
she had no one to mind her baby. Accordingly, we shall allow her
backpay claim for these three quarters only for those periods during
the quarters when she actually had some employment. Since the
record is not clear how long during each of these quarters she did
work, we direct the Regional Director to recompute her backpay in
accordance with the conclusions of this paragraph [see Appendix B]."
Joseph Matera: We agree with the conclusion of the Trial Examiner
that Matera did not willfully incur losses by the cessation of any of his
interim employments. With respect to the job at Drug Alliance,
which Matera obtained and then lost during the fourth quarter of
1955 because of absences due to his domestic troubles which required
him to appear in court during the working day, no adjustment appears
to have been computed in the specification for the 10 days he testified
that he was absent. Although we conclude that, absent evidence to
the contrary, an employer would not have fired a long-time employee
who absented himself because of such a situation, we do conclude that
he would not normally have been paid for those days. Accordingly,
we readjust his backpay award by disallowing $108 from his net back-
pay for the fourth quarter of 1955.11 We therefore award Matera
$2,284.39.
Jane Pasculli: The General Counsel only claims backpay for Pas-
culli for six quarters during the total backpay period, apparently
considering that these were the only periods when she was in the labor
market. For the fourth quarter of 1954 the General Counsel claims
backpay for only four weeks (160 hours) and the year-end bonus.
However, it would appear from her testimony that Pasculli was only
seeking part-time employment at that time and therefore did not put
herself in a labor market comparable to that of Mastro. Accordingly,
' 24 We also correct the apparently inadvertent or typographical error in the Intermediate
Report which lists Flamio's interim earnings as $9,982 28 rather than $998 28
26 Since Matera would have been earning $1 35 an hour for Mastro during December
1955, accordingly, to the backpay specification, his backpay for that quarter is readjusted
to exclude 10 days, or,80 hours, at $1.35 an hour from his gross backpay and, accordingly,
from his net backpay that quarter
1352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
we disallow her claim for the fourth quarter of 1954 and award her
$1,134.26.
John Saxton: We agree with the Trial Examiner that Saxton will-
fully quit his employment at Edy Brush and therefore incurred un-
justifiable losses. However, the Trial Examiner incorrectly disallowed
his entire backpay claim from the date he terminated that employment
instead of crediting him with the amount of money he would have
earned had he retained that job. Since the one full quarter that he
worked for Edy Brush he earned $609.05,26 we shall assume that he
would have earned that amount for the rest of the backpay period. We
also find that Saxton willfully left employment with David Linzer
Company during the first quarter of 1952. Specifically, we would
hold Saxton to his statement as to his quit, i.e., "I don't know. I get
nervous sometimes and I do things. I do a lot of quitting of my jobs."
Although his reasoning here may be a bit equivocal, it indicates an un-
justified termination of interim employment. The only quarter which
would be affected by this unjustified quit would be the first quarter of
1952 since in every quarter thereafter claimed for Saxton, he earned or
is credited with earning more than with the Linzer job. Saxton
worked three full quarters for Linzer before the quarter in which he
quit. Characteristic of the construction industry (Linzer was a con-
struction job), he earned widely different amounts in those three quar-
ters. Therefore, we have taken an average as a reasonable amount to
utilize and credit him with $316.59 for the first quarter of 1952. Be-
cause of these changes we have recomputed Saxton's backpay specifi-
cation and attach it to this Supplemental Decision and Order marked
"Appendix A."
Frank Squillante: The Trial Examiner deducted $50 from the net
backpay claim of Squillante since he found that Squillante left the job
market for 1 week between jobs at Wright Aeronautical and Aircraft
Hardware. We find that Squillante was justified leaving the Wright
job because of nightwork and travel time and that that job was not sub-
stantially equivalent to the one at Mastro. Since Squillante was prom-
ised the job at Aircraft and it was obvious that the job would com-
mence within a few days, we do not consider him to have removed
himself from the job market for 1 week; had he never had the job at
Wright he would not have been disqualified under the same circum-
stances. Accordingly, we restore the item of $50 to Squillante's back-
pay claim and award him $272.60.
ORDER
On the basis of the foregoing Supplemental Decision and Order
and the entire record in this case, the National Labor Relations Board
hereby orders that the Respondent, Mastro Plastics Corporation and
28 However, for the first quarter of 1956 we credit him with $468 50 of net earnings
since the backpay period ends after the 10th week of the quarter
MASTRO PLASTICS CORPORATION, ETC. 1353
French-American Reeds Manufacturing Co., Inc., New York, New
York, its officers, agents, successors, and assigns, shall pay to the em-
ployees involved in this proceeding as net backpay the amounts award-
ed to them in this Supplemental Decision and Order.
MEMBER RODGE, RS, concurring :
It appears that during the backpay period, claimants Joseph Ebert
and James Miller became self-employed. In other decisions, I ex-
pressed the view that one who becomes self-employed removes him-
self from the labor market and thereby disqualifies himself for back-
pay. See Cashman Auto Company, 109 NLRB 720; W. C. Nabors,
d/b/a W. C. Nabors Company, 134 NLRB 1078. I now consider my-
self bound by the contrary position of my colleagues and accordingly
concur in the decision here.
MEMBERS LEEDOM and BROWN took no part in the consideration of
the above Supplemental Decision and Order.
APPENDIX A
Backpay specification of John Saxton as amended in accordance
with paragraph numbered 6 of this Decision and Order.
Year and quarter Hourly
rate
Hours Gross
backpay
Net interim
earnings
Net back-
pay
1951-1 - ----------------------------------- $1.05 80 $84 00 $20 16 $63 84
1951-2 ----------- ------------------------- 1 05 520 546 . 00 444 26 101 74
1.05 440 46200 l
1951-3 ------------------------------------ 1.05 40 "42 00 j
^1 24 302 76
1 05 520 1 546 00
1951-4-- ---------------------------------- l 1 3291 40 16'•53
304 28 ----- -------
1952-1--------------- --------------------- 1.05 560 588 00 316 59 271 41
1953-2 ------------------------------------ 1 20 532 638 40 599 85 38.55
1 2 396 475 20
1954-1 ------------------------------------
1 25 5 132 165 00
600 25 39 95
1954-2------------------------------------ 1 25 520 650 . 00 543 63 106 37
40
4 0 00
1054-3 ----------------- ------------------- 1 25 { '7 }
445 38 174 62
56 0 00
( 520 50 006
1954-4------------------------------------ 1 25 { } 452 32 247 66
l
.
*50 00
1955-1 ------- ----------------------------- 1 25 520 650 00 609 05 40 95
1955-2------------------------------------ 1 25 520 650 00 609 95 40 95
1 25 24
5
1955-3 ------------------------------------- { " 00 }
609 05 125.951 .25 64 80
1 25 184 230 00
1955-4------------------------------------- 1 30 357 464 10 609 . 05 137 05
1.30 40 ""52 00
1956-1 ------- ----------------------------- 1 30 400 520 00 468 50 51 50
Total-------------------------------- ----------- ------------ ------------ 1,743 32
"Vacation pay, per paragraph I, E, specification
"Year end bonus , per paragraph I, F, specification.
I The figures used by the General Counsel for the computation of Saxton 's yearend bonus apparently
contain some error in either mathematics or in the figure used for the hourly rate. We direct theRegional
Director to correct the error and award Saxton net backpay in accordance with the correction and this
amended specification.
1354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX B
YoLANDA FLAmio
Backpay specification as amended in accordance with paragraph
numbered 6 of the Board's Supplementary Decision and Order.
Year and quarter Hourly
rate
Hours Gross
backpay
Net interim
earnings
Net back-
pay
1951-2 - ------- $0.90 520 $468 . 00----------------------- - ----
$150 74 $317.26
1951-3
. 90
.0
440
48
396.00
*43 20
28 80 410 40
90 520 468 00
1951-4 ------------- ----------------------- 1.1392 40 *•45.57 None 513 57
1952-1 ------------------- ----------------- .0 560 504 0 51 38 452.62
------------------1952-2------- ------- .90 520 468 00- ---
24 00 444 00
1952-3------------------ -----------------
.90
. 90
440
56
396.00
*50. 40
9 00 437.40
J .95 520 494.00
1952-4 l . 95 40 **38.00 l
11 81 520.19
.95 224 212 80
1 05 292 306. 60 None 519 40
1953-2 - ----- ----- --------- 1.05 532 558 60--- - ----- ----- -- 48 00 570.60
1.05 470 493.50
1953_3 ___ _________________________________ }
ll 1 05 64 *67.20 191 49 369.21
1.05 516 541 80
1953-4--- --------------------------------- 1.05 40 **42 00
251 78 332.02
1.05 396 415 . 80
1951____________________________________ { 1.10 132 145 20 40 09 520.91
1954-2 ------------------------------------ 1.10 520 572 00
None 572.00r 1.10 440 484 001954_3 .................................... {
1.10 80 *98 0 53 25 578.75
1.10 520 572.00
1954-4 ------------------------------------
1 10 40 **44 00 None 616.00
1955-1 ------------------------------------ 1.10 73 . 3 80.63 58. 69 21.94
1957-3 ----------------------------------- - 1.25 40 50 00 48.00 2.00
1957-4 ___ _________________________________ 1 25 20 25.00 24.00 1.00
Total-------------------------------- ------------ -------- ------------ 7,199.27
* Vacation pay, per paragraph 1, E, specification.
** Year end bonus per paragraph I, F, specification.
APPENDIX C
FLORA CAPERS
Backpay specification as amended in accordance with paragraph
numbered 6 of the Board 's Supplementary Decision and Order.
Year and quarter Hourly
rate
Hours Gross
backpay
Net interim
earnings
Net back-
pay
1951-1 ------------------------------------ $0 90 80 $72 00 $70.00 $2.00
1951-2 ------------------ ------------------ 0 520 468 00 420 00 48 00
---------------------- ----- --1951-3
90
{ 4 }
420 00 12 0-- --- --
0 40 36 00
1951-4 (to 11/15/51)*_______________________ .90 260 234.00 210 00 24.00
Total-------------------------------- ------------ ------------ ----------- ------------ 86.00
* Date estimated on basis of her earnings at Seton Hospital which was her last employment before moving
to Amityville.
MASTRO PLASTICS CORPORATION, ETC. 1355
SUPPLEMENTAL INTERMEDIATE REPORT
STATEMENT OF THE CASE
This supplemental proceeding to determine backpay, with all parties represented,
was heard before Morton D. Friedman, the duly designated Trial Examiner, in
New York, New York, on various days between September 7 and December 1, 1960,
on the specification and amended specification of the General Counsel and on the
answer and amended answer of the Respondents. Generally, the issues litigated
were what, if any, were the amounts of backpay due from Mastro Plastics Corpora-
tion and French-American Reeds Manufacturing Co., Inc;, herein called collectively
either the Respondent or Mastro, to various discriminatees. All parties were afforded
full opportunity to examine and cross-examine witnesses, to introduce evidence, to
present oral argument, and thereafter to file briefs. As hereinafter set forth in detail,
the Respondent did not offer any evidence. Briefs were received from counsel for
the General Counsel and from the Respondent.
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 ; PLEADINGS , MOTIONS ADDRESSED THERETO , RULINGS THEREON,
AND THE HEARING
On March 13, 1953, the Board issued its Decision and Order, reported in 103
NLRB 511, directing, inter alia, that the Respondent make whole 77 employees whom
the Board held had been discriminatorily discharged by the Respondent. Upon
petition for enforcement of the foregoing Board Order, on July 16, 1954, the United
States Court of Appeals for the Second Circuit entered its opinion affirming in full
the Board's finding and enforcing its Order in toto. N.L.R.B. v. Mastro Plastics Corp.,
214 F. 2d 462 (C.A. 2). After granting certiorari, the United States Supreme Court,
on February 27, 1956, affirmed the judgment of the Court of Appeals for the Second
Circuit. Mastro Plastics Corp. v. N.L.R.B., 350 U.S. 270. Thereafter, on March 9,
1956, all of the discriminatees were afforded reinstatement with the exception of
Yolanda Flamio and Rose Amoroso. On March 31, 1957, Amoroso was offered
reinstatement.
In November 1958, the Board petitioned the Court of Appeals for the Second
Circuit for an order adjudging Respondent in civil contempt of court for failure to
reinstate Yolanda Flamio in accordance with the order of said court. The petition
was granted on November 21, 1958, by the court and Respondent was held in civil
contempt.' Flamio was offered reinstatement on December 1, 1958.
Thereafter, efforts were made to resolve the backpay issue and determine the
amount of backpay due the discriminatees, if any, by means of informal negotiations.
These attempts failed, and on June 14, 1960, the Regional Director of the National
Labor Relations Board for the Second Region, pursuant to the Board's Rules and
Regulations, Series 8, issued a backpay specification and notice of hearing setting
forth in great detail the amounts alleged to be due the employees required to be
made whole under the terms of the Board's Order and the court decree?
On June 28, 1960, the Respondent moved to dismiss the specification as insuffi-
cient in law for the reason that the specification .did not allege that the Respondent
had jobs available for the claimants during the backpay period. After opposition
filed by counsel for the General Counsel, Trial Examiner William Seagle denied the
motion. His order of July 21, 1960, reasoned that the Respondent had the burden
of proving that jobs were not available at their plant.
The specification utilizes a formula traditionally applied by the Board in such
cases. Thus, the earnings of the incumbent employees who 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 compu-
tation are included periodic wage increases , vacation pay, and yearend bonus paid
to incumbent employees which, it is claimed, the discriminatees would have received
had they worked for the Respondent during the alleged backpay period. From these
amounts are deducted the known interim earnings of thQ discriminatees and to the
1 l L R B v. Mastro Plastics Corp , 261 F. 2d 147 (C.A. 2)
9 The backpay specification names only 76 employees , it having been administratively
determined that one of the individuals named as a discriminatee in the Board 's Order was
not in the employ of the Respondent at the time the unfair labor practices were committed.
1356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
amounts are added the expenses alleged to have been incurred by a discriminatee in
seeking employment during the backpay period. In sum then , the specification arrives
at the alleged net backpay due to the individual discriminatees by setting forth the
projected earnings as above described, plus the expenses, less the interim e arnings.
This computation was made for each of the 76 discriminatees.
The Respondent's answer, as modified on the record as a result of a conference held
at the outset of the hearing herein, for the most part admits the accuracy of the com-
putations with regard to the purely mathematical calculations, but denies on several
grounds the amounts allegedly lost by the discriminatees for various reasons, the
most important grounds being denial of the assumption of job availability and
identity; denial that the discriminatees would have qualified for vacation pay by
reason of the assumption of job availability and identity; and denial that bonus would
have been paid to the recipients for the same reason.
Upon service of the Respondent's answer, the General Counsel moved for an
order striking the answer and for judgment upon the pleadings on the ground that
the answer lacked sufficient specificity to satisfy the Board's Rules and Regulations.
This motion, together with the Respondent's answer thereto and the briefs of the
parties in connection therewith, were submitted to me and, on September 20, 1960,
I issued an order precluding the Respondent from submitting evidence at the hearing,
striking the Respondent's answer, and granting the General Counsel judgment on the
pleadings unless the Respondent served an amended answer of sufficient specificity
within 10 days from the date of said order.3 Thereafter, the time for the Respondent
to serve its amended answer was extended from time to time until, ultimately, the
Respondent's answer sufficient in form and substance was served. The amended
answer, in substance, was the same as the original answer of Respondent but was far
more detailed. Essentially, therefore, the Respondent's answer raises one basic main
issue and that is whether jobs were available at all times during the backpay period
for each backpay claimant.
The foregoing leads to the crux of the entire case. Upon commencement of the
hearing, the General Counsel placed in evidence the specification and the Respond-
ent's answer. He then proceeded to place on the witness stand each available dis-
criminatee who testified as to his employment activity during the interim period which
constituted the backpay period. Each of these discriminatees generally testified to
the efforts made to seek work, the periods during which each worked, the employer
or employers for whom the work was performed, the expenses involved in seeking
such work, and the amounts of interim payment earned during the backpay period.
With the exception of certain individuals, hereinafter discussed, the testimony of all
of these individuals established, essentially, that they were entitled to certain amounts
of backpay, hereinafter specified. The General Counsel made no attempt during
his case to set up in any way the facts concerning the availability of jobs at the
Respondent's plant for each discriminatee during the backpay period.
At the close of the General Counsel's case, and after each of the available
discriminatees had testified as aforesaid, the Respondent moved for dismissal of the
complaint on the ground that the General Counsel had failed to establish a prima
facie case, and more specifically upon the ground that the General Counsel had failed
to prove job availability. The Trial Examiner ruled that the burden of proof with
regard to the issue of job nonavailability was upon the Respondent and that, there-
fore, the General Counsel did not have to show affirmatively that the jobs were
available in the Respondent's plant during this period but, rather, that it was for
the Respondent to prove that jobs were not available for each discriminatee at all
times during the backpay period.
The Respondent excepted to this ruling and appealed to the Board by way of an
interim appeal. The Board denied the appeal and denied any stays based upon the
appeal. Then, after making motions as to individual claimants with regard to claimed
failure of proof as to efforts to find work and other minor issues, hereinafter dis-
cussed, the Respondent was asked if it intended to proceed with its case and it
refused to do so. The Respondent's counsel stated that since it was his opinion that
the burden of proof as to job availability was upon the General Counsel, he felt
that he was not obliged to go forward with his case but that the General Counsel
had failed to make and prove a prima facie case.
I then admonished the Respondent that unless the Respondent proceeded with
the case, I would be forced to conclude that the Respondent was resting and close
the hearing. The Respondent remained adamant in its objections and its exceptions
and refused to proceed, at which time, on December 1, 1960. I declared the hearing
closed.
3 The Respondent filed an interim appeal with the Board from this order and the order
of Trial Examiner Seagle. The Board denied the appeal.
MASTRO PLASTICS CORPORATION, ETC. 1357
II. THE ISSUES OF AVAILABILITY
The Respondent reiterates its contentions made at the hearing and renews its
motion to dismiss the General Counsel' s case on the ground that the General Counsel
has failed to state or make a prima facie case.. Primarily, of course , the issue is the
burden of proof as to job and claimant availability. In support of its contentions,
the Respondent argues that such matters as the abolition of a job classification arising
from the normal fluctuations in employment, or the elimination of a shift, or even the
termination of the entire business are encompassed by the term "job availability."
With regard to claimant availability, the Respondent asserts that the General Counsel
has to prove that each of the individual claimants has been available at all times dur-
ing the backpay period for work and/or that they would have been ready, able, and
willing to work at all times during the backpay period had they been presented
with offers of work by the Respondent. Also included in the burden of claimant
availability, according to the Respondent, are such matters as the permanent or
temporary withdrawal of the claimant from the job market by reason of death, ill-
ness , pregnancy, military service, the opening of the deer season, laziness, and sheer
cussedness . Also, according to the Respondent , the General Counsel has the burden
of proving a claimant's reasonably diligent search for other employment and his
obtaining of substantially equivalent employment elsewhere. Also, the matters of the
claimant's seniority and skills are part of this burden where they bear on whether
he would have been constructively employed in the backpay period at whatever work
was available. In sum then, the Respondent contends that all of these foregoing mat-
ters are for the General Counsel to prove, in order for the latter to make out a
prima facie case.
In support of the foregoing , the Respondent points out that in none of the back-
pay cases in which questions of burden of proof have been discussed,4 have the
Board or the courts ever eluded to the Administrative Procedure Act, Section 7, or
to the Board's Statements of Procedure, either of which, according to the Respondent,
constitutes a mandate placing the burden of proof of the issues outlined above upon
the General Counsel. The Respondent maintains that had the Board and the courts
considered these sections, their decisions would have been other than what they were.
I do not agree.
The Board's Statements of Procedure merely state that in backpay proceedings
before the Trial Examiner and the Board , the procedure is the same as in a proceeding
to determine if an unfair labor practice has been committed.5 Nowhere does the
Statements of Procedure determine the burden of proof in backpay proceedings .6
The only section, referred to by the Respondent as dispositive , which speaks of
burden of proof is Section 101.10(b) which states, in part,
The Board's attorney has the burden of proof of violation of section 8 of
the National Labor Relations Act. . . .
The short answer to this is that a backpay proceeding is not a proceeding to deter-
mine whether a violation has been committed. As to the Respondent in the instant
case, the issue of liability has already been adjudicated. The instant proceeding is
merely ancillary brought for the purpose of effectuating the remedy prescribed in the
main case. Accordingly, the quoted section has no application to the various issues
of burden of proof herein.
Nor has Section 7 of the Administrative Procedure Act.
The pertinent part of that section 7 reads as follows:
In hearings which Section 4 or 5 requires to be conducted pursuant to this
section-
(c) Except as statutes otherwise provide, the proponent of a rule or order
shall have the burden of proof.
*For example, Phelps Dodge Corp. v. N.L.R.B., 313 U.S. 177, 199-200 (willful loss)
N.L.R.B. v. Reed & Prince Manufacturing Company, 130 F. 2d 765, 768 (C.A. 1) (job
nonavailability) ; Underwood Machinery Company, 95 NLRB 1386, 1392-1393 (job non-
availability) : Deena Artwear, Incorporated, 112 NLRB 371, 373 (normal workweek) ;
N.L.R.B. v. J. G. Boswell Co., 136 F. 2d 585 (C.A. 9) (willful loss) ; Seamprufe, Inc.,
103 NLRB 763, 765 (reasonable search for work) ; Southern Silk Mills, 116 NLRB 769
(reasonable search for work) ; Ozark Hardwood Company, 119 NLRB 1130, 1135 (reason-
able search for work).
r 'National Labor Relations Board Statements of Procedure, -Series 8, Section 101.16.
6 Ibid., Sections 101.10-101.16.
7U.S.C., Section 1006(c).
1358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The thrust of the Respondent's contention is that under this section the Board
must necessarily bear the burden of proof as to job availability as well as of the
other issues hereinabove set forth because the General Counsel is the proponent of
the order for backpay.
The legislative history of Section 7 is of little value in the clarification of this
particular issue. At one point the committee reports explained: 8
That the proponent of a rule or order has the burden of proof means not only
that the party initiating the proceeding has the general burden of coming forward:
with a prima facie case but that other parties, who are proponents of some dif-
ferent result, also for that purpose have a burden to maintain.9
Assuming that Section 7 is applicable to the instant proceeding, it would seem,
from the little that can be gleaned from the above question, that while the General
Counsel has the general burden of proving the amounts due each discriminatee based
upon certain accepted formulas, the Respondent as the proponent of a different
result has the burden of proof of facts which would bring about such different result.
Accordingly, I conclude that Section 7 of the Administrative Procedure Act as
merely a reaffirmation of the common law with regard to burden of proof and that
the Board and the courts have already determined in accordance therewith the issues.
raised by the Respondent herein.10 I therefore further conclude, in accordance with
precedent, that the Respondent has the burden of proof as to job nonavailability.
It is for the Respondent to prove the time or times during which any individual
discriminatee's job at the Respondent's plant would not have been available for any
reason during the backpay period.
I do not deem it necessary to dispose here the Respondent's contention that the
General Counsel has failed to show whether each of the backpay claimants was
available for work at all times during the backpay period because the matter of claim-
ant availability will be discussed with regard to each claimant individually. Suffice
it to say, however, I have decided that where an individual has made a proper search
for work, such claimant has automatically qualified as having been available for
work. If an individual is found not to have made a good-faith effort to secure
interim employment, then his claim is defeated without the necessity of deciding
whether he was available for work.
III. OTHER ISSUES
In passing, I believe it is necessary to set forth various principles upon which the
awards hereinafter detailed were made. At this late date, it is unnecessary to restate
in detail the principles of law applicable to the determination of backpay. However,
inasmuch as certain issues here presented are present in the case of each individual,
a general discussion as to the law applied in each of these cases will save repeated
discussion later in this report.
Making the workers whole for losses suffered on account of an unfair labor
practice is part of the vindication of the public policy which the Board enforces."
Thus, an effort has been made herein to vindicate this public policy and awards have
been made with this in mind.
Although the Board in earlier decisions 12 has established that the employer has
the burden of proof as to lack of reasonable effort to obtain work, the General
Counsel at the outset of the instant hearing announced that despite this precedent,
as a matter of public service, he would present evidence as to each available dis-
criminatee to show that such discriminatee has made a reasonable and diligent
8 S. Doe. 248, 79th Cong., 2d sess., 208 , 270 (1946).
D Emphasis supplied.
15 See cases cited in footnote 4, supra. It is interesting to note that at common law the
burden of proof is usually placed upon (a) the party having in form the affirmative allega-
tion ; (b) the party to whose case the fact is essential ; and (c) the party who has peculiar
means of knowledge of a fact enabling him to prove its truth or falsity. Thus, burden of
proof generally is merely a question of policy and fairness based upon experience in the
different situations. In each of the cited cases the Board or the courts have disposed of
burden of proof, although perhaps without explication, on the basis of these criteria. See
Wigmore, Evidence, 3d ed., see. 2486, pp. 274-276; Jones, Evidence, 5th ed., vol. 1,
sec. 207 , pp. 375, at seq. See also United States v. New York, New Haven and H.R. Co.,
355 U.S. 253, 256, footnote 5; Campbell v. United States, 365 U.S. 85, 96.
n Phelps Dodge Corp. v. N.L.R.B., 313 U.S. 177, 197.
1 Phelps Dodge Corp. v. N.L.R.B., supra, 199-200; N.L.R.B. v. J. G. Boswell Co., 136
F. 2d 585 (C.A. 9) ; Southern Silk Mills, 116 NLRB 769; Ozark Hardwood Co., 119 NLRB
1130, 1135.
MASTRO PLASTICS CORPORATION, ETC. 1359
.effort to seek work during the backpay period. I believe that, generally, with the
exception hereinafter set forth, the General Counsel has presented sufficient evidence
to establish whether any individual has made a reasonable and diligent effort to find
work. The Respondent having been adamant in refusing to proceed at the close of
the General Counsel's case, presented no affirmative evidence that a reasonable
search for work was not made. Thus, the disposition of the issue of reasonable
search and willful loss is made completely upon the evidence presented by the
counsel for the General Counsel as modified by the Respondent's cross-examination,
for which ample opportunity was given.
Generally, then, what is required to show that a diligent and reasonable effort to
find interim work has been made? Concededly, the Board's discretion in this regard
has some limits. Only actual losses of earnings must be made good. Accordingly,
deductions must be made from gross backpay not only for actual interim earnings
by the workers for whom backpay is claimed but also for losses which are willfully
incurred.13 The Board is thus required to take into account the general considera-
tions applicable to mitigation of damages.14
However, the principle that a wrongfully discharged employee mitigate his losses
by seeking employment elsewhere does not require that his search meet with
"success; it only requires an honest, good-faith effort." 15 To set a definite standard
of what constitutes such good-faith effort is virtually an impossible task. The answer
depends necessarily upon the facts and circumstances in each particular case. But
it can be said that in broad terms a good-faith effort requires conduct consistent with.
an inclination to work and to be self-supporting and that such inclination is best
evidenced not by a purely mechanical examination of the number or kind of applica-
tions for work which have been made, but rather by the sincerity and reasonableness
of the efforts made by an individual in his circumstances to relieve his unemployment.
Circumstances include the economic climate in which the individual operates, his
skill and qualifications, his age, and his personal limitations.
It is in the context of the foregoing that it is determined in each case whether the
individual discriminatee made a sincere and reasonable effort to mitigate the loss of
earnings flowing from his discriminatory discharge.
As heretofore stated, at the close of the General Counsel's case, the Respondent
made a motion to dismiss the entire specification on the ground that the General
Counsel had failed to make a prima facie case. This motion I rejected. The Re-
spondent then asked for permission to submit in writing to me after the close of the
hearing, separate motions in individual cases for dismissal upon a number of grounds.
I granted permission for such motion to be made and thereafter the Respondent
submitted, in writing, a motion to dismiss as to each individual claimant. 'T'his
motion is based primarily on the Respondent's contention that the individual dis-
criminatees did not make a reasonably diligentsearch for other employment. Inas-
much as the standards for disposing of such issue have been set forth above, I
dispose of the motion as I discuss, below, the individual claims.
Another general contention of the Respondent must be dealt with preliminarily.
The Respondent contends that once an employee has gained substantially equivalent
employment, he removes himself from the job market and that, therefore, he has
ceased to be an employee of the Respondent within the meaning of the Act; that to
grant such an individual backpay subsequent to the date of his acquiring such
equivalent employment would be tantamount to transcending the statutory remedy.
I assume that, in effect, what the Respondent is contending is that should a dis-
criminatee obtain employment during the backpay period and then after obtaining
such employment lose the job which he has had for reasons beyond his control,
thereafter, until the end of the backpay period, such discriminatee is disqualified'
from receiving any backpay and the public remedy is therefore eliminated.
The Respondent relies on the definition of employees as defined in Section 2(3)
of the Act which includes the following wording: "... any individual whose work
has ceased ... because of any unfair labor practice, and who hasnot obtained any
other regular and substantially equivalent employment.. "
The Respondent argues that having adopted the statutory remedy, the Board
adopted the statutory definitions applicable to the construction of that remedy and
that for the purposes of calculating backpay the strikers remain employees only so
long as they lack regular and substantially equivalent employment. The Respondent
contends that since the Board order in this case did not indicate anything beyond
the statutory remedy in respect to backpay, that in this state of the proceedings
nothing beyond the statutory language can be imposed upon the Respondent; that
Is Phelps Dodge Corp. v. N.L.R.B., supra, at 198.
44 N.L.R.B. v. Seven-Up Bottling Company of Miam4, Inc., 344 U. S. 344, 346.
15 N.L.R.B. v. Cashman Auto Company, 223 F . 2d 832 , 836 (C.A. 1).
1360 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
the statutory definition of "employee" must be strictly construed and, if not, the
Respondent has the right to be heard on the issues raised by the departure and its
tendency to effectuate the policy of the Act and to review both elements in the
enforcing tribunal.
It is clear, as hereinabove discussed, that it is the duty of each and every back-
pay claimant to seek employment in order to mitigate the amount of backpay due.
It is elementary that a claimant who has failed to attempt in good faith to obtain
employment would thereby be precluded from recovering any backpay. The Board
has necessarily tied in the public nature of the remedy with the discriminatee's.
behavior because it has felt that the unjust enrichment of a discriminatee who has
not performed within the Board's requirement does not serve a public purpose.
However, the effect of Respondent's contention is that if a discriminatee seeks
interim employment and is successful, he thereby cuts himself off from any further
backpay in the event that such employment is lost and, therefore, he is left without
remedy because he has chosen to mitigate damages. I cannot conceive that the
Board or any court would place a discriminatee on the horns of such a dilemma
and thereby defeat the public purpose of remedying discriminatory discharges.
Such an interpretation or limitation upon the Board's ability to grant backpay
would be incongruous and would fall far short of effectuating the policies of the
Act.
Although I have been unable to find direct precedent on the point raised by the
Respondent's contention, I consider relevant the situations where discriminatees have
gone into business for themselves and where in going into business for themselves
have not made moneys equal to the amounts that they would have earned had they
remained in the employ of the discriminating employer. The Board, with court
approval,16 has seen fit in such instances to reject contentions that by obtaining
self-employment discriminatees have thereby cut themselves off from the rights to
backpay because (a) they have removed themselves from the job market and.
(b) they are no longer employees within the meaning of the Act. Similar con-
tentions having been rejected in those cases, I believe that they must be rejected
here for like reasons.
Although the answer does not raise the legal propriety of the claims in the
specification of wage increases, vacation pay, or yearend bonuses on behalf of the
discriminatees, inasmuch as the pleadings themselves do deny the amounts due, I
believe that it would be well to dispose of such issue as a matter of law even though
perhaps not directly raised by the pleadings.
It has long been settled under uniform holdings of the Board, with court approval,
that wages, as construed under the National Labor Relations Act, and independent
of the construction of that term under other legislative enactments, State or Federal,
includes emoluments of value arising out of the employment relationship in addi-
tion, or supplementary, to the actual rate of pay per hour of work or per unit pro-
duced. Thus, the term "wages" has been construed to include pension plans
(Inland Steel Company v. N.L.R.B., 170 F. 2d 247 (C.A. 7), cert. denied 363
U.S. 960), group health and accident insurance programs (W. W. Cross and Com-
pany, Inc. v. N.L.R.B., 174 F. 2d 875 (C.A. 1) ), merit increases (N.L.R.B. V.
J. H. Allison and Company, 165 F. 2d 766 (C.A. 6), cert. denied 335 U.S. 814,
rehearing denied 335 U.S. 905), and Christmas bonus (N.L.R.B. v. Niles-Bement-
Pond Company, 199 F. 2d 713 (C.A. 2) ). Here, as in the cited cases, there is no
question but that the added compensation represented by the increase in wages,
the yearend bonus, and the vacation pay derived directly from the employment
relationship and were directly related to the number of working hours put in by
the incumbent employees and distributed regularly at given times. While it is true
that the employees who now seek reimbursement for backpay were not employed
during the qualifying period so as to qualify them for these emoluments, the very
reason for the fact that they were not employed was Respondent's discrimination
against them. Of course, the Respondent's own discrimination cannot be held to
disqualify the employees from these regular emoluments of their employment.
And even though with regard to the yearend bonuses, such bonuses were granted
only as a matter of discretion, inasmuch as they were tied to the remuneration
which employees received for their work and they were, in fact, a part of it, they
were in reality wages and so within the provision of the Act.17
11N.L.R.B. v. Cashman Auto Company, at al., 223 F. 2d 832 ( C.A. 1), enfg. 109 NLRB
720. See also Efco Manufacturing, Inc., 111 NLRB 1032; Brotherhood of Painters, etc.,
Local 419 ( Lauren Burt , Inc.), 114 NLRB 295.
17 See Niles-Bement-Pond cafe, supra, at 714. See also Moss Planing Mill Company,
110 NLRB 933, 935, enforcement refused on other grounds 224 F. 2d 702 (C.A. 4) ;
119 NLRB 1733, enfd. as modified 256 F. 2d 653, 654 (C.A. 4) ; Century Cement Menu-
MASTRO PLASTICS CORPORATION, ETC. 13161
The foregoing sets forth the principles of law controlling here with regard to
the issues raised by the pleadings and by the various motions made by the Respond-
ent and the General Counsel. Subsidiary issues are considered hereafter with each
individual discriminatee's claim.
IV. THE INDIVIDUAL CLAIMS
1. The claimants whose net claims are under $100
At the hearing, the Respondent agreed that, subject to legal defenses, in those
instances where the net backpay claimed in the specification totaled no more than
$100 for an individual, the amounts were correct, the claimants were in being and
made diligent search for work. Accordingly, in accordance with this agreement, I
find that the following net backpay is due and owing to each of the following
individuals:
Morris Brender----------------------------------------------- $16.87
Joseph Harris ------------------------------------------------- 57.94
Connie Koiner------------------------------------------------ 53.07
Anthony Migliore--------------------------------------------- 4.36
Charles Pollina----------------------------------------------- 65.99
Henry Schultz-------------------------- ---------------------- 1834.27
The Respondent contends that the above claims are subject to the defense of job
nonavailability and that the claimants were not employees within the meaning of
Section 2(3) of the Act. Inasmuch as I have heretofore disposed of both of these
issues and because the Respondent has refused to come forward with evidence with
regard to job nonavailability I find and recommend that the above individuals be
awarded backpay in the sums set forth alongside each of their names.
2. Individuals who cannot be located
Another group of individuals who may be dealt with as a group are those who
did not testify at the hearing because the General Counsel was unable to locate them.
In the case of all but Katherine Crawford and Thelma Delbagno interim earnings
were specified.
Despite the nonavailability of all of these individuals to testify at the hearing,
the General Counsel refused to drop their claims from the specification. He argued
that inasmuch as the burden of proof with regard to mitigation was on the Respond-
ent, logic compelled the decision that where there is no evidence concerning
mitigation, the claimants should be awarded the full claim. He further contended
that since the Board order awarding backpay was for the purpose of making the
claimants whole, awards in their behalf should be held in escrow for a period
certain, pending the claimants' coming forward to claim the award. The General
Counsel also argues that this would not be inequitable since the Respondent has
owed backpay for almost 10 years, has delayed the procedings for almost that
period, and, to date, has not paid any sums to these individuals. He further states
that since a backpay claim is not a private right but a vindication of public policy
the personal actions of the claimants in failing to assist in the enforcement of the
claims are not material.
Moreover, he states that with the exception of Crawford and Delbagno, there
are sufficient interim earnings set forth in the specification, which interim earnings
are admitted by the Respondent, from which an inference can be drawn that each
of these individuals made a search for work and that, therefore, they were also in
being during the backpay period. Avalo was employed in 10 of the 12 quarters
claimed. Diaz was employed in 8 of the 11 quarters claimed. Golpe, however,
was employed in only 1 of the 21 quarters claimed. Smith had apparently full
employment in the eight quarters claimed. Tripolone was almost fully employed
in all the 12 quarters claimed to him. Valentine was employed in only I of the
24 quarters claimed and Vargas had some employment in all of the 16 quarters
claimed for him.
Thus, the General Counsel seeks to establish his claim. He further argues that
past experience indicates that several of the missing may be located hereafter and
facturing Company, Inc., 100 NLRB 1323, 1324-1325 ; Industrial Fabricating, Inc, et al,
119 NLRB 162, 171 , 173; Tower Hosiery Mills, Inc., 81 NLRB 658, 659, enfd . 180 F. 2d
701 (CA 4), cert denied 340 U S 811
18 Schultz died during the backpay period
1362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that this procedure would thus be the most equitable resolution of the interest of
the Respondent, the claimants, and, of course, the public.
In one case a Trial Examiner recommended that where a claimant could not be
located the amount of gross backpay claimed in the specification be placed in
escrow.19 However, in that case, by the time the case had been submitted to the
Board for review of the Trial Examiner's Recommended Order, the claimant ap-
peared and the Respondent and the General Counsel stipulated the amount due the
claimant. Thus, the Board did not rule directly upon the Trial Examiner's pro-
vision for placing the award in escrow. In other instances, the General Counsel
has abandoned the claims of those individuals who did not appear and who did not
cooperate with the General Counsel in establishing the amount of backpay due.
Thus, it must be determined here whether the equities are such that a recommenda-
tion to place the backpay awards in escrow is warranted.
I find the arguments of the General Counsel, set forth above, quite compelling.
The Respondent has offered no proof that these individuals were not in being or that
any of them failed to make a proper attempt to find interim employment. Un-
doubtedly, part of the reason for the General Counsel's inability to locate these
individuals stems from the long delay incurred by the protracted litigation which
preceded this backpay proceeding. This being so, it would seem to be inequitable to
penalize these individuals to the extent of failing to make some provision for them.
Since the amounts of the award cannot be determined at this time, some form of
deferral would seem to be the proper course to follow.
Accordingly, in the light of all of the foregoing, I make no final recommendation
as to the net amounts due these individuals but will recommend that the net amounts
claimed in the specification be placed in escrow with the Regional Director for a
period of 2 years from the date of the Board's Order or until such time as the
Board's Order is complied with, which ever is the sooner. This deposit will be
subject to defeasance in the following manner : Either that the discriminatees come
forward and a supplemental hearing is had upon which a determination of the net
backpay due can be made or until it is established administratively that these in-
dividuals are not entitled to an award.
While it may be argued by the Respondent that such a provision for an escrow
deposit will work a hardship upon the Respondent in that the Respondent will be de-
prived of the use of substantial operating capital during this period ,20 since there is
no assurance that the Respondent will still be in business at the time that the
awards become final, I can conceive of no other arrangement which can be pro-
vided which will insure ultimate payment to the discriminatees. I do not believe
that this constitutes a penalty since the Respondent will not be permanently de-
prived of the money and since the sums will be returned to the Respondent at such
times as the conditions set forth above are met, or the escrow period expires.
Accordingly, I recommend that a sum of money as set forth below for each of
these individuals be placed in escrow with the Regional Director upon the terms and
conditions outlined:
Jose Avalo------------------------------------------------- $3,293.72
Luis Diaz-------------------------------------------------- 3,874.50
Peter Golpe------------------------------------------------ 13,435.43
Isiah Smith------------------------------------------------- 1,196.33
Salvatore Tripolone------------------------------------------ 523.00
Henry Vargas ----------------------------------------------- 4,207.46
Katherine Crawford----------------------------------------- 11,405.90
Thelma Delbagno------------------------------------------- 10,914.02
3. The discriminatees who have died
Three of the discriminatees died during the backpay period. These deceased in-
dividuals were Mary Kennedy, Henry Schultz, and Alexander Unger.
As hereinabove treated, Schultz was one of those individuals whose net claim
was under $100 and no further discussion of this claim is necessary.
The other two individual claims in this category present a rather more difficult
problem. In every other instance the efforts made to search for work were evidenced
by testimony of the individuals involved. Obviously, such testimony is unavailable
in these two instances. In order to overcome this hurdle, the General Counsel of-
fered testimony from the next of kin, who had some knowledge of the activities of
19 Hill Transportation, at al., 102 NLRB 1015, 1016.
20 1 am not unmindful that the total amount to be placed in escrow exceeds $48,000.
MASTRO PLASTICS CORPORATION, ETC. 1363
the deceased claimants during the backpay period. For purposes of discussion I
will treat the two individual claims separately.
With regard to the backpay claim of Mary Kennedy, her widower, Lloyd Kennedy,
testified that he had personal knowledge of the search that his deceased wife made
for work. He also testified that Mrs. Kennedy passed away upon the birth of their
daughter but that up to a short time prior to her death she was either employed or
seeking employment from the time of the strike at Mastro Plastics up until the time
when her pregnancy became so advanced that she was forced to quit work. The
specification does detail a series of interim employments during the backpay period
and shows that Mrs. Kennedy was working and not otherwise engaged during that
period. Through the entire backpay period Mrs. Kennedy had only one quarter of
unemployment which quarter was preceded by three quarters of employment and
followed by four quarters of employment.21
Thus, I conclude and draw the inference that Mrs. Kennedy was available and in
the job market during the entire backpay period and that when she was not working
she was looking for work. This is bolstered by Lloyd Kennedy's testimony not only
as to the places where Mary Kennedy was employed but in some detail as to the
methods utilized to find employment during the quarter in which she was not em-
ployed. He testified that Mrs. Kennedy was unemployed for a short period after a
job at Electro Chemical Engraving Company and that she quit because it was a
dangerous place to work. Kennedy further testified that be accompanied his wife
to a number of places in the Bronx seeking employment, including the American
General Thermostat Corporation where she was later employed and to the Respond-
ent, Mastro Plastics, in the fourth quarter of 1951. He testified that he went to
many other places with her to seek employment but could not recall the names
of the places she visited.
The Respondent objected to any of Lloyd Kennedy's testimony as to what Mrs.
Kennedy did to find work, claiming that such testimony was pure hearsay and, ac-
cordingly, inadmissible. However, because Kennedy established that he had personal
knowledge of what his wife had done to find work, I admitted the testimony. The
Board has held that testimony as to conversations with a decedent is admissible
whether or not the witness testifying to the conversation is interested in the results,
State laws to the contrary notwithstanding.22 Further, the Board and courts have
held that a backpay award is properly owing to the estate of a deceased discriminatee
who died before the issuance of a Board order 23
Nor do I find that when Mrs. Kennedy quit her job at Chemical Engraving
Company because working conditions were dangerous, she forfeited her right to
backpay. The Board has held that the quitting of an interim job for good personal
reason does not mitigate against the eligibility of a discriminatee for backpay.24
Accordingly, and in accordance with all of the foregoing, I find that net backpay
is due to the estate of Mary Kennedy in the sum of $1,983.10. This figure, as in all
other cases, includes all increases in hourly rates which the discriminatee would
have earned had it not been for the discrimination 25
The case of Alexander Unger presents a more difficult situation. Unger's backpay
period begins March 12, 1951, and ends June 20, 1953, the date of his death. Unger's
son, Richard, his only survivor, testified that his father was hospitalized in March
1951 with a heart attack He further testified that he saw his father at the latter's
home in May 1951 after the father had left the hospital From that date until August
1952, the elder Unger had no employment However, the son testified that he spoke
to his father several times each month during that period and his father stated
that he was searching for a job The son testified in some detail as to what his
21 The term "quarter" whenever referred to refers to a quarter of a calendar year
22 N B Quarles d/b/a Quarles 3fanufacturing Company, et al . 83 NLRB 697, 699, re-
manded on other grounds 19 F. 2d 82 (CA 5) ; Chun King Sales, Inc, 126 NLRB 851;
West Texas Utilities Company, Inc, 94 NLRB 1638, 1639, enfd. 195 F. 2d 519 (CA 5).
2' Raped Roller Co v. N.L R B, 126 F 2d 452 (C A 7) , Revlon Products Corporation,
148 NLRB 1202, enfd 144 F 2d 88 (C.A 2) ; Coca-Cola Bottling Company of Asheville,
N 0, 97 NLRB 151 I have considered the "dead man's" statute (New York Civil Practice
Act, sec 347) and do not find it applicable to the situation presented here
2' See East Texas Steel Castings Company, Inc., 116 NLRB 1336, 1347-1348 enfd
255 F. 2d 284 (CA 5)
25Unless otherwise specified, the net backpay award given is the same as that set forth
in the specification and arrived at in the same manner as computed in the specification
This is true throughout this report.
641795-63-vol. 136-87
1364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
father had told him he had done to find work. However, none of these efforts were
observed by the son nor did the son have any personal knowledge of the same.
Sometime around August 1952 the elder Unger, whose wife had died in the mean-
time, moved to his son's home in New Jersey and the son observed him daily. During
this period the father helped with household chores and performed physical labor
around the house to the extent of laying concrete blocks. He was confined to bed
only 1 day during that period and that was the day before he died. The son testi-
fied that he observed his father read the want ads daily and asked his son about
job leads. The son also drove him to the New Jersey unemployment office, and
on one occasion the son drove him to a place at which the father had found a job
lead. The search was ineffectual and Unger was unable to obtain employment until
shortly prior to his death he obtained a job at New-Car Carriers, Inc., which job he
held for 2 weeks until he collapsed and was brought home. He died within 1 day
thereafter.
Also, prior to his death, Unger told his son on another occasion that he was going
to take a bus to New Brunswick for the purpose of finding a job and the son saw
him leaving the house to get the bus. Unger also told his son that the State unemploy-
ment service had informed him that a company was being formed for the purpose
of employing elderly and handicapped people and that he, Unger, had been asked
to work with this group. Thereafter he was interviewed by the person in charge about
an administrative position in the company. This was several weeks prior to the
elder Unger's obtaining his position with New-Car Carriers.
I find that the son's testimony with regard to Unger's search for work prior to the
time that Unger moved to his son's home in New Jersey in August 1952 is not suffi-
ciently detailed or certain to base a finding However, with regard to the time after
Unger moved to his son's home, I find that the testimony, although in part hearsay,
was sufficient to establish that during that period Unger was not only able to work
but was making a reasonable search to find the same. That he was unsuccessful is
explained by the fact that he had had a heart attack and was a man of advanced
years. However, his interest in finding employment was clearly established. Fur-
thermore, the success which he finally met in obtaining a position with New-Car
Carriers indicates that the man made all possible attempts, within his limitations,
to find work. Accordingly, I shall recommend that net backpay be awarded to the
estate of Alexander Unger for the quarters in which he lived at a son's house up to
including the quarter in which he died. This is computed as follows:
Third quarter, 1952----------------------------------------- $595.20
Fourth quarter, 1952---------------------------------------- 700.00
First quarter, 1953------------------------------------------ 674 20
Second quarter, 1953----------------------------------------- 598.51
Total ----------------------------------------------- 2,567.91
4. Rose Altieri
Altieri, like all of the following discriminatees, was called upon by the General
Counsel to testify as to (a) the search for work which she made during the back-
pay period; (b) the interim earnings; and (c) the expenses that she incurred in
finding work or in going to work in any employment that she might have had
which expenses she would not have had had she not been discriminated against.
As heretofore treated with, the General Counsel came forward with this testimony
which, under Board precedent, he did not have to do. However, having been present-
ed with testimony as to what efforts were made to find work generally in Altieri's
case, and in the case of all of the following discrimmatees whose backpay will be
discussed, I cannot ignore those matters which were brought out either on direct
or cross-examination 1 am, therefore, compelled to make an analysis in each indi-
vidual case as to whether the Respondent has established by a preponderance of
evidence his burden of proof that any of these discriminatees, including Altieri, had
failed to make a reasonable search for work Accordingly, unless in each of these
cases, including Altieri's, Respondent has established that the individual discriminatee
did not make a reasonable search for work, I shall make an award for backpay
and shall find that the discriminatee did, in fact, make such reasonable search for
work
The gross backpay listed for Rose Altieri 26 in the backpay specification is $8,597.67
covering a period from March 112, 1951, to March 9, 1956. These dates are the dates
=n Rose Altieri appears as "Rose Altura" In Schedule A attached to the Board's Order
in this case [103 NLRB 511, 5251.
MASTRO PLASTICS CORPORATION, ET C. 1365
between which most of the employees offered to return to work after the strike at
Mastro and the date upon which reinstatement was ultimately offered 27 This gross
backpay figure includes not only the amounts that Altieri would have earned had she
not been discriminated against with regard to her salary and regular increases in
hourly wages but also vacation pay and yearend bonuses. It should be noted here
that the gross backpay of all employees is calculated upon these same base factors.
The backpay specification also lists by date amount and source of interim earnings
in the sum of $3,312.02 which Altieri earned during this backpay period for various
named employers In Altieri's case, the backpay specification lists no interim ex-
penses. On the basis of the foregoing, the backpay specification lists a net backpay
claimed to be due Altieri in the sum of $5,285 65.
Although Altieri was unemployed from the time of the commencement of the
backpay period until sometime in December 1951, she testified that she looked
for work constantly during this period. She read the want ads each day and applied
without success at a number of factories in the Bronx, the part of New York City
where she resided. She stated, without contradiction, that she made these applica-
tions on an average of 3 days a week. However, she did not register with the New
York State Employment Service because she believed that she did not meet the
qualifications for unemployment relief. However, from December 1951, with the
exception of one quarter during 1954, Altieri worked almost continuously for several
different employers. I find nothing in the record to show that Altieri did not make
a good-faith search for work. Accordingly, I find that Altieri is entitled to net back-
pay in the amount of $5,285.65.
5. Maria Joan Americo Adornetto 28
As in all other cases , the backpay specification lists by date , amount, and source of
interim earnings for Adornetto as well as the gross backpay. These are as follows:
Gross backpay $5,466.07, which figure includes both increases in wages she would
have earned had Adornetto not been discriminated against, vacation pay computa-
tions, and yearend bonuses . The net interim earnings as set forth in the specifica-
tion totaled $4,168 52. Thus, the claimed net backpay, computed by subtracting
the net interim earnings from the gross backpay, is $1,297.55
Adornetto was employed in'I1 of the 12 quarters for which backpay is claimed for
her. She worked for a single employer during this entire period, the American
General Thermostat Corporation . At one time , about July 1952, she was laid off for
lack of work at which time 20 to 25 of the 70 employees who worked for American
General Thermostat were laid off . She was called back to work in October of the
same year . During her layoff and immediately after she was laid off, Adornetto
registered with the New York State Employment Service, where she reported each
week and received unemployment checks during her period of layoff. She addition-
ally applied in person for many jobs, registered for work with private employment
agencies , and answered newspaper ads for jobs She was able to testify with great
specificity those places she recalled visiting and applying for jobs. None of this
testimony was refuted in any manner nor did she contradict herself to any appreciable
extent on cross-examination by Respondent 's counsel There were other brief lay-
offs from American General Thermostat . However, all of these layoffs were
economic and nothing was shown by the Respondent to the effect that she in any way
willfully quit her employment
Accordingly , I find that Adornetto made a good -faith effort to find work and
should be awarded the full amount of net backpay claimed for her, the sum of
$1,297.55
6. Rose Amoroso Vitanza 29
The backpay claimed for Vitanza in the specification is computed as follows:
Gross backpay , which includes increases in wages, vacation pay, and bonuses , totals
the sum of $ 11,290.03. Vitanza had no expenses . Accordingly, according to the
specification , the gross backpay above mentioned less net interim earnings of $5,903.56
results in a claimed net backpay of $5,386 47.
When Vitanza stopped picketing at Mastro she began to search for work and at
first registered with the State employment service. For approximately the first year
r Unless other wise set forth, these dates, March 12, 1951, to March 9, 1956, mark the
backpay period
^Adornetto's name appears as "Joan Americo" in Schedule A attached to the Board's
Order in this case [103 NLRB 511, 525]
29Mrs. Vitanza is identified in the specification and in the Board's Order as Rose
Amoroso
1366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of this period she was unsuccessful in gaining work in that she sought to work at
injection molding in the plastics industry but found that other plastics manufacturers
in the area would not employ her in that capacity as they did not normally hire
women for that job. After unsuccessfully attempting to find work for a year as an
injection molder , Vitanza set her sights lower and sought other types of work.
I do not believe that the 1 -year period was such as to disqualify Vitanza for
backpay during that period. She had a right to look for work in the same skilled
occupation at which she had been employed by Mastro and was not required to lower
her sights at least for a reasonable time. I do not consider 1 year an unreasonable
time.
From the first quarter of 1952 until the end of the backpay period , Vitanza was
employed by three different employers ; from the first quarter in 1952 until the first
quarter in 1954 for Sonic-Datom Corporation ; from the fourth quarter of 1954
through the first quarter of 1955 for Columbia Broadcasting System; and for the
second period quarter of 1955 to the end of the backpay period for Fedway Stores.
During the periods of the second and third quarter of 1954 she was unemployed but
her undisputed testimony shows that during that period she used the usual methods,
including registration with the New York State Employment Service, in order to
obtain a position . Moreover , she never refused any position offered.
Accordingly, I do not find that the Respondent established by any evidence what-
soever that Vitanza did not make an adequate and good-faith search for work.
I also find that during the entire backpay period she was available for work.
Accordingly, I find that , as claimed in the specification , Vitanza should be awarded
net backpay of $5,386.47.
7. Jean Bowerman
According to the specification , Bowerman 's gross backpay, including one item of
$46 for a yearend bonus, was $1 ,214. Bowerman's net interim earnings after deduct-
ing for expenses incurred in seeking work totaled $744. 20. Deducting the earnings
from the gross backpay results in a figure of $439.88 claimed in the specification as
the net backpay for Bowerman.
Bowerman 's testimony shows that she was employed in each of the three quarters
for which backpay is claimed on her behalf . When the picketing ceased at Mastro,
she looked for work and found a job in March 1951 at another plastics concern,
Washington Plastics. However, after about 1 month she was laid off through no
fault of her own. Her next job commenced on June 5, 1951 , and continued up to
the time of the hearing in 1960 . Sometime during 1954 she was laid off from her
present job at Ward and Leonard for several months. During this period she
registered at the New York State Employment Service and asked friends about jobs
She also incurred traveling expenses looking for work in 1951. On cross-examina-
tion the Respondent brought out nothing which would show that Bowerman did not
in good faith seek work . Accordingly , I find that Bowerman made a good-faith
search for interim employment during the period for which backpay is claimed
and that, of course, she was in being and available for work.
Accordingly , I recommend that the Respondent pay to Bowerman net backpay
in the amount of $439.88.
8. James Boyd
The gross backpay listed in the backpay specification for Boyd is $ 6,195.90.30
Boyd's net interim earnings during the claimed backpay period according to the
specification were $2,941 . 14.31 Accordingly, in accordance with the specification
the amount of net backpay claimed for Boyd is $3,254.76.
Boyd's testimony and his admitted earnings lead to the conclusion that during the
backpay period he had a record of partial employment interspersed with periods of
unemployment during which he always searched for work. This is illustrated by the
fact that he began to look for work when the picketing at Mastro ended in March
1951 and continued to do so until he obtained his first employment with the National
Electrical Instrument Company on January 3, 1953. During that period in which
he was unemployed he registered with the New York State Employment Service and
reported there whenever a date was set for him to so report . In addition to the em-
30 Boyd's gross backpay claim was amended at the hearing for the fourth period of 1955
from 357 hours at $1 30 per hour to 37 hours at $1 30 per hour, thereby reducing the
amount of gross pay for that period from $464 10 to $48 10
31 At the hearing in accordance with Boyd's testimony an additional $150 of interim
earnings were added to those already in the specification by reason of the fact that Boyd
testified to additional employment during the third period of 1955 The net interim earn-
ing figure quoted above includes that $150 item.
MASTRO PLASTICS CORPORATION, ETC. 1367
ployment service he searched for work by answering newspaper ads and applying at
various private employment agencies most of them located in lower Manhattan in
New York City and also by going directly to places at which he either previously
worked or had heard that jobs might be opened. Although Boyd worked at the
National Electrical Instrument Company for only 3 or 4 weeks and quit his job vol-
untarily, the quitting was explained by the fact that he was required to work on a
plastic-molding machine which customarily required two men. Boyd testified that
he quit because of fear of being hurt by the machine and because no one was in
attendance with him in the event that he was hurt.
I do not find this to be evidence that Boyd was not at all times during the backpay
period attempting in good faith to find work and mitigate damages. It has long been
held that a discriminatee is not required to mitigate his damages by continuing in a
job which is dangerous to life and limb or because such a job is not suitable or
desirable.32 A quitting for the foregoing reason is a justifiable personal reason which
in no way tolls the Respondent's liability for backpay.33
After a period of unemployment following Boyd's employment with National
Electrical Instrument Company, he at various times obtained employment in the
New York area and also registered once again with the State employment service.
He also searched at various agencies in lower Manhattan and was able at the hearing
to name specifically the agencies at which he sought work. He also followed want
ads in the paper which directed him both directly to jobsites and to various agencies
which had jobs listed. Boyd worked at another plastics plant until July 1954 when
his work was interrupted because of an injury received on the job. Thereafter
he was unable to work until approximately the end of 1953.34 He returned to this
plastics plant in April 1954 but was laid off for lack of work in July 1954. He was
not alone in this layoff; other people were laid off at the same time. Then he obtained
a job at another plastics plant. This attempt to find jobs and losing jobs because
of economic layoffs constituted a pattern throughout the entire backpay period for
Boyd.
At one time because of lack of work in the New York area Boyd left New York
and sought employment in Cincinnati, Ohio, where he first secured employment with
with a building contractor. This job ended and he visited various plants in Cincin-
nati, Ohio, and was able, upon recall, to testify which plants he had visited to obtain
work. When he obtained work with the contractor in Cincinnati, he was troubled
with his ankle which was hurt previously as aforementioned, and was hospitalized
in the veterans' hospital in Cincinnati for about 4 weeks after which he returned
to New York. No claim is made for the period during which he was in the veterans'
hospital.
The Respondent has not established that Boyd did not search in good faith for
work merely by leaving the geographic area in which he was employed by the Re-
spondent. The law is clear that he need not remain in such geographic area 35
After returning from Ohio and recovery from his difficulties with his ankle, Boyd
resumed looking for work in New York, registered with the New York State Em-
ployment Service reporting there whenever he was told to do so. He looked for
work at the usual agencies in New York City and in the newspapers and ultimately
found jobs in Kearny, New Jersey, where he worked for sometime and then in Long
Island City where he worked for sometime. He was laid off for various periods of
time because of economic conditions. However, none of these other jobs were lost
because of his own personal quitting.
Accordingly, I find that Boyd made a good-faith attempt to find work and is
entitled to an award in the full amount claimed for him in the net sum of $3,254 76.
9. Angelo Bruno
The gross backpay claimed for Bruno is $1,315.20 He had net interim earnings,
according to the specification, of $488.24 This figure includes deduction for ex-
penses incurred looking for work totaling $38. This $38, incurred over a period of
three quarters of a year, was calculated on a basis of approximately 30 cents to $1.50
per day. I find that this amount for daily travel within the New York area is reason-
able under the circumstances. Accordingly, I would allow the expenses claimed by
Bruno. Taking the net interim earnings of $488.24 from the gross backpay claimed
sa Southern Silk Hills, Inc., 116 NLRB 772
East Texas Steel Castings Co., 116 NLRB 1336, 1347-1348
as The General Counsel made no claim for the period of Boyd ' s disablement
See East Texas Steel Castings , supra, at 1371-1372; Southern Silk Hills, supra; and
American Bottling Company, 116 NLRB 1303, 1306.
1368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the sum of $1,315.20, the specification claims a net backpay due and owing to
Bruno of $826.96.
iBackpay is claimed for Bruno for only 3 out of the 21 quarters comprising the back-
pay period. The day after picketing stopped, Bruno looked for work and after ap-
proximately 2 months found work which kept him employed for several months. He
was then unemployed until October 16, 1951, when he was given a job at the United
States post office where he has been continuously employed ever since. His claim
for backpay terminates with the obtaining of the job at the post office.
During the times when Bruno was unemployed he made applications daily at
various places, asked people about job leads, read the want ads, made telephone
inquiries of possible employers, and registered and reported at the New York State
Employment Service. I am impressed with Bruno's employment record and conclude
that the Respondent has made no showing whatsoever that this individual did not
make a good-faith search for work. Accordingly, I recommend that he be paid the
full amount of the net backpay claimed for him, the sum of $826.96.
10. Flora Capers
The gross backpay claimed in the specification for Capers was $2,232.57. The
admitted interim earnings during that period were $2,001.60, resulting in a net back-
pay claimed of $230.97. Although Capers' backpay period begins March 12, 1951,
and ends March 9, 1956, no backpay is claimed for Capers beyond mid-June 1952
at which time she left the job market to become a foster mother. Accordingly,
backpay is claimed for Capers for only six quarters in each of which she had some
employment.
Respondent admits that Capers was employed during each of these quarters for
which backpay is claimed. There were brief periods during that period during which
Capers was unemployed. Her first employment was in 1951 and in November of
that year she lost her employment with the Seaton Hospital which is located in the
Bronx when she moved with her husband to Amityville and Suffolk County, New
York, about 30 miles from her former places of employment. It took her about 2
hours to commute to Seaton Hospital, whereupon she looked for other work and
found a job 6 weeks later after making extensive efforts. She left the second job
which was with the New York Eye Protective Company also because there was no
convenient public transportation and again began looking for work in a place where
transportation from her home was convenient. She applied to three Government
employment offices, read the newspaper want ads, and then finally obtained work at
Republic Aviation in January 1952. She had to turn down one job offer during her
unemployment period because again there was no means of transportation between
the jobsite and her home. In order to earn something in the time during which she
was unable to obtain regular employment, Capers engaged in domestic work for
3 or 4 days a week earning about $24 per week during that period. This continued
until June 1952 when, as stated heretofore, she left the job market.
I find that Capers made a good-faith search for work and that at all times she was
ready, willing, and able to work within a reasonable distance of her then residence.
The mere fact that she moved from the vicinity of her former place of employment
did not affect her claim since she commenced looking for work immediately upon
arriving at her new home. The Board has held that a claimant will be awarded
backpay although moving from the area of the former job where the claimant
continued to look for work in the new area to which the claimant moved 36
Accordingly, I recommend that Capers be awarded the full amount of backpay
which is claimed for her in the specification in the sum of $230.97.
11. Luis Cartagena
The specification set forth a gross backpay claim for Cartagena in the sum of
$10,907.63. During the backpay period, Cartagena earned $6,563.30 from which
is deducted expenses which he incurred in looking for work in the sum of $73.64
so that his net interim earnings were $6,489.71 and the net backpay claimed for
Cartagena is, therefore, $4,417.92.
The record shows that Cartagena was employed in 15 of the 18 quarters for which
backpay is claimed for him. Cartagena testified without contradiction that during
the three quarters during which he was not employed, he registered with the New
York State Employment Service, that he searched for jobs in newspapers, and
visited prospective places of employment. In connection with his seeking other
work Cartagena went at night and in his spare time to an upholstery school where
NSouthern Silk Mills , Inc, 116 NLRB 769.
MASTRO PLASTICS CORPORATION, ETC. 1369
he learned the craft of upholsterer. He had started this night school at a time
when he was still employed by Mastro and after being refused reinstatement by
Mastro in March 1951, he accelerated his training to the point where he was able
to obtain work in the upholstering field. Except for two periods of unemployment
in the second and third quarters of 1951 and for shorter periods thereafter, he
worked almost continuously from January 1953 to the date of the hearing herein
for one employer, the Maywood Upholstery Corporation. Although his earnings
did not equal what he would have made had he worked continuously for the Respond-
ent, I find that Cartagena made a good-faith search for work and that the Respondent
failed to show otherwise.
Accordingly, I recommend that Cartagena be paid the sum of $4,417.92.
12. Michael Cascione
According to the specification, Cascione's gross backpay totals $4,284.20, with net
interim earnings of $2,950.10, making a total of net backpay claimed to be due of
$1,334.10.
Cascione had some interim employment in each of the eight quarters for which
claim is made for backpay. During the strike, and prior to the commencement of
the backpay period on March 12, 1951, Cascione obtained work at the Crown Wire
Company in the Bronx and was laid off by Crown after several months. Thereafter
he found other work, generally in the building trades field, as a member of one of
the building trades unions. He succeeded in getting work from time to time through
a construction union hiring hall. He also sought work through want ads that he
read in the various papers. Although he had to "shape up" for various jobs at the
union hiring hall, he finally found somewhat steady work for a period of about 11/2
years in the construction of a hospital on Welfare Island in New York City. When
that job was over, he received another job in a welding plant welding iron tanks.
However, this job proved to be too heavy for Cascione, who is rather a slight man,
and in order to avoid personal injury to himself, Cascione left this work. I do not
find that his voluntary leaving of this job cut off Cascione's right to receive backpay
for this period inasmuch as, as heretofore stated, it is not necessary for a backpay
claimant to subject himself to injury in order to qualify for receipt of backpay.
Cascione then worked for several other employers and eventually succeeded in
obtaining a permanent job at First National City Bank of New York City, where he
was still employed as of the date of the hearing.
As can be seen from the foregoing there is nothing in the record to show that
Cascione did not make a good-faith search for work during the interim period and
I find that a good-faith search was made. Therefore, I recommend that Cascione
be awarded the full amount of net backpay claimed in the specification in the sum
of $1,334.10.
13. Louis J. Castaldo
No claim is made for Castaldo beyond the first quarter of 1954 by reason of the
fact that during that quarter he obtained permanent employment with the Depart-
ment of Water Supply, Gas and Electricity of the City of New York which job he
held up to and including the date of the hearing.
According to the specification, Castaldo during the period accumulated gross
backpay of $4,398.56. His net interim earnings, which included deductions for
expenses in the sum of $150, which I find reasonable, totaled $1,809.58, so that the
backpay claimed in the specification is $2,588.98.
Castaldo was employed in six of the eight quarters for which backpay is claimed
for him. He began looking for work after the picketing at Mastro began and obtained
his first employment in April 1951. The job lasted only 1 day because he was not
capable of performing the work of papercutting and because the pay was poor,
being lower in rate than he had earned at Mastro. Thereafter, and until he went
into the Army in August 1952, Castaldo worked at numerous jobs from time to time
and always looked for work between jobs. He registered with the New York State
Employment Service and went to various agencies from some of which he has
referred to jobs which lasted for various periods of time. Most of the jobs which
Castaldo held and which were ultimately lost were jobs of a temporary or seasonal
nature or were lost for economic reasons beyond Castaldo's control.
However, on several occasions Castaldo did leave employment voluntarily. The
first voluntary quitting was the job with the Artistic Desk Pad and Novelty Company
where he had to work a papercutter and could not work fast enough. He decided
to resign because of the low pay and his belief that he could do better elsewhere.
He also left a iob with the National Biscuit Company which he obtained after leaving
the Artistic job because he had to work at night. The reason for this latter quitting
1370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was because his mother was afraid to be home alone at night, and his father was also
working at night. I find that this was a justifiable quitting for personal reasons under
the rule of the East Texas Steel Castings Co., supra.
He quit another job because it was very dangerous. This was a job in which he
stood on a thin plank at a considerable height between two ladders to clean signs
that hung from buildings. He testified that the heights made him dizzy and he quit
because the job was dangerous . I also find that this was a justifiable quit under
Southern Silk Mills and East Texas Steel Castings cases, supra.
Prior to his going into the Army he worked with a company called the Etna
Builders Material Company which job he obtained through a friend. He worked
there on a day-to-day basis, working when needed, and continued until he went
into the Army.37 When he was discharged from the Army, he also went back to
Etna and worked there until, during one of his layoffs in the third quarter of 1953,
he obtained employment at the New York City Sanitation Department, where, after
a short layoff, he transferred to the New York City Department of Gas and Elec-
tricity. As noted above he was still working there at the time of the hearing herein.
I do not find that the Respondent has brought out anything which would show that
Castaldo did not make an adequate search for work. The record shows that he was
young, inexperienced, and untrained and that these caused his interrupted work
record. I find that when jobs were offered, he accepted them and tried to improve
his position.
Accordingly, I find that Castaldo is entitled to the net backpay claimed in the
specification in the sum of $2,588.98.
14. Gaetano Cheli
The total gross backpay claimed for Cheli is $7,972.38, admitted interim earnings
were $7,400.14, making a total net backpay claim of $572.24.
Cheli was employed in each of the 13 quarters for which backpay is claimed for
him and, accordingly, the sole claim on his behalf arises completely from the fact
that his interim pay was slightly lower than his gross backpay. He began working
at a luncheonette operated by Rushan Brothers in New York City and continued in
that position when, evidently, that restaurant was taken over by Union News Com-
pany. He has been working for Union News Company since. As outlined earlier in
the report, the fact that he took permanent employment does not warrant denial of
backpay.
Accordingly, I recommend that Cheli be awarded the full net backpay claimed for
him in the sum of $572.24.
15. Frank Ciccone
Ciccone's backpay period begins November 10, 1950, the date of his discharge, and
ends March 9, 1956. However, no backpay is claimed for calendar quarters after
the first calendar quarter of the year 1951. Gross backpay claimed for Ciccone is
$1,218. During the period claimed, Ciccone made net interim earnings of $98.11.
Accordingly, the specification claims on behalf of Ciccone the net backpay of
$1,119.89.
As stated above, Ciccone's backpay period commenced the day of his discharge
on November 10, 1950, the day the strike at Mastro started. The strike was called
to protest his discriminatory discharge. Most of the claim, therefore, arises from
a period of unemployment during the time when the strike and picketing were in
progress. The record shows that a week or so after his discharge on November 10,
1950, Ciccone went to the State unemployment service and registered. Although his
claim was protested by the Respondent, he reported regularly but received no checks.
In November or December 1950 he applied for work at the Brooklyn Navy Yard,
but was unsuccessful. In December he also applied at a Sturtivant machine shop
but again was made no offer of employment. However, he was referred to the
Special Machine Tool Company where he applied in either December or January
1951. Thereafter in March 1951 Special Machine called him to work and he was
still employed there at the date of the hearing herein.
Accordingly, I find that Ciccone's employment record is exemplary He has been
unemployed for only a short time out of the last 10 years.
At the hearing Respondent sought to make a point of the fact that Ciccone's form,
No. 916,38 filled out as information for the Board, did not mention that he had
37 No baekpav claim is made for the period during which Castaldo was in the Army.
s This is a form used by the Board's Regional Offices to obtain information from dis-
criminatees as to interim earnings and expenses
MASTRO PLASTICS CORPORATION, ETC. 1371
applied at the New York State Employment Service. I do not believe that after a
period of almost 10 years such a lapse of memory could be used to discredit Ciccone's
testimony as to his attempts to gain work. Moreover, his record of employment
more than supports his statements of attempts to find work to mitigate the backpay.
Even though Ciccone might have hoped that the strike at Mastro would be successful
and he would be reinstated to his job, he did not rest on that hope. Instead, he
sought work even during the strike which he hoped would result in his reinstatement.
At one point of the hearing, the Respondent argued that Ciccone was not entitled
to backpay for the period during which the plant was closed after the strike began.
The record shows that the factory was not shut down completely because orders
were filled and shipped during the period in question. However, even assuming
complete shutdown due to the strike, Ciccone was discharged and was not therefore
cut off from backpay during the period of the strike called to protest his discharge.
Accordingly, there is nothing presented which would warrant a finding that Ciccone
was not entitled to backpay.
It should be here noted that Respondent refused at the end of the General Coun-
sel's case to go forward with its evidence. It was for the Respondent to disentangle
any question of whether the plant was closed down by reason of the strike or for
some economic reason. Since Respondent has offered nothing to explain the shut-
down beyond the conclusion that it was caused by the unfair labor practice strike, I
am compelled to find that Ciccone is entitled to backpay for the period claimed.
Accordingly, I find that Ciccone is entitled to net backpay in the sum of $1,119.89
and I recommend that the Board award him the same
16. Joseph Cirillo
The gross backpay claimed for Cirillo is $646.40, net interim earnings, admitted,
are $508 04, with net backpay claimed of $140.
While the picketing was being conducted at Mastro's plant, Cirillo was drafted
into the Army on January 3, 1951, and remained in the Army until his discharge on
December 10, 1952. He did not look for work until after the New Year's holiday
of 1953 39 when he commenced looking for work and found work in the middle of
February 1953. He worked in that job until the fourth period of 1953 and in
November or December of that year he obtained a job with the Manhattan Re-
frigerating Company which he held through the remainder of the backpay period.
While looking for work he turned down two jobs because they offered him wages
lower than he had been paid at Mastro. Inasmuch as Circillo looked for work and
found work during the first quarter of 1953 and since that is the only period for
which backpay is claimed for him, I would allow the entire claim.
I do not find any merit in the Respondent's implied contention made at the hearing
that Cirillo permanently removed himself from the job market when he went into
the Army.
Accordingly, I would award Cirillo the full $140 of net backpay claimed for him
in the specification and recommend that the Board order the same paid.
17. Rose DeMinno
DeMinno's gross backpay claim is $1,661.50, net interim earnings, which account
for expenses of $37.80, is $1,231.34. Total backpay claimed is $430 16.
DeMinno's uncontroverted testimony, which I credit, was to the effect that she
engaged in picketing until about February 10, 1951, and after that began a search
for work. She was soon employed, on February 12, 1951, by the Kenyon Trans-
former Co., Inc., and worked there for the balance of the backpay period except for
certain short layoffs. These layoffs occurred in the third quarter of 1953, the third
quarter of 1954, and the first quarter of 1955. During these layoff periods, De-
Minno registered with the New York State Employment Service, and made the
necessary callbacks to report in. She also searched for employment through private
employment agencies, read the daily want ads and answered the same, and personally
visited a number of places seeking work.
As there is nothing in the record to show that DeMinno did not make a good-
faith search for work, I recommend that she be awarded the full amount of the net
backpay claim for her, the sum of $430.16.
18. Michael De Turo
The gross backpay claimed for De Turo is $1,331.70, the net interim earnings
$1,125.16 resulting in a total net backpay claim of $206.54.
se No claim is made for the period from Cirillo's going into the Army to the date he began
looking for work in January 1953.
1372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
De Turo immediately commenced to look for work after March 9, 1951, and,
after applying at several different plants, he was employed by Peerless Mayer, In-
corporated. He was laid off in the fourth quarter of 1951 for a short time. During
that layoff he worked for a very short time during the first quarter of 1952 and since
then has been working continuously 40
On cross-examination the Respondent failed to bring out anything which would
show that De Turo did not make a good-faith search for work during the backpay
period. Accordingly, I would award and recommend that De Turo be warded the
net sum of $206.54.
19. Joseph Ebert
Before the picketing ended at Mastro, Ebert applied for work and was hired by
A. Z. Venetian Blind Co. and continued to work there until he quit to go into
business for himself about April 1, 1955. He has since been self-employed under
the name of Mid-Town Venetian Blind Co He had absolutely no periods of un-
employment during the backpay period. The specification therefore reflects only
the amounts between what he made either as an employee or when he was self-
employed and what he would have made at Mastro had he not been discriminated
against. Inasmuch as it is well established that self-employment does not remove
a claimant from the job market nor does it toll the claimant's backpay claim,41
I find that the record establishes that the Respondent has shown nothing which
would in any way modify Ebert's claim to backpay.
Accordingly, I recommend that Ebert be awarded the full amount of net backpay
claimed for him in the specification, the sum of $1,076 04.
20. Morris Eskenazi
According to the backpay specification, Eskenazi's gross backpay claim is
$10,586.15, net interim earnings claimed and admitted are $3,352.95, making a total
net backpay claim of $7,233.20.
Eskenazi testified at length. It was brought out that he was sick during most of
1951 and between November 16 and December 27, 1953, and therefore no back-
pay is claimed for him for those periods During the time that he worked at
Mastro, he worked as a clerk at the post office at night, and continued to do so until
his illness in 1953, when he resigned because his health was adversely affected by
working the night shift From the fourth quarter of 1953 until the end of the back-
pay period, Eskenazi only held intermittent jobs and worked very little. His interim
earnings during that period were quite small For example, during the first quarter
of 1954, he made $45, for the second quarter of 1954. zero; for the third quarter
of 1954. $79, and for the fourth quarter of 1954, $15, and then nothing at all
was earned from that point until the end of the backpay period. However, after that
Eskenazi once again went to work for the post office, this time as a laborer, and has
had that job ever since.
Although at first blush, it would appear that Eskenazo did not make a good-
faith search, the failure to obtain and hold jobs may be explained by his obvious
nervous illness. However, he could have performed normal physical work.
Accordingly, the type of work that he could do would be that in which there was
no mental strain such as he had in the night clerical position which he held at the
post office between 1951 and 1953 and from which he was forced to resign When
he ultimately went back to the post office, he was employed as a laborer which,
although requiring some physical work, did not require any mental strain.
Moreover, Eskenazi sought work from the time he left the post office until he
went back to the post office. He had had some earlier experience in jewelry manu-
facturing and attempted to find work in that trade. He worked for a number of
different employers in the trade but quickly lost each job because, in most instances,
his background and his skill were not sufficient to qualify him for employment.
However, although his memory was very vague as to when and where he looked,
Eskenazi testified that he did look for other work and told in some detail the
manner in which he sought to find work He tried to find work through the New
York State Employment Service and through the Disabled Veterans of which he
was a member. He read want ads and he even applied for a laborer's iob at the
post office but was not appointed until his Congressman intervened on his behalf.
40 No backpay is chimed for De Turo except for the first quarter of 1951, fourth quarter
of 1951, and first quarter of 1952
41 N L R B v. Armstrong Tire and Rubber Company, The Test Fleet Branch , 263 F 2d
680 (C A 5)
MASTRO PLASTICS CORPORATION, ETC. 1373
He testified that he spent an average of 3 or 4 days a week looking for work.42
The fact that he was not successful does not warrant a finding that he did not make a
good-faith search. Success is not the test.
In assessing what should be paid to Eskenazi, more accurately, whether he is
entitled to the amount claimed in the specification, the entire situation and the man
himself must be taken into consideration. My observation of him leads me to con-
clude that he was nervous, was easily fatigued mentally, and was emotionally upset
a great part of the time. There is nothing in the record to contradict his statements
that he did look for work and although his testimony as to where he looked for
work and the manner in which he looked to work was rather vague, there was enough,
I find, to establish that he made an attempt to find work. On the other hand, there
was nothing brought out by the Respondent on cross-examination which led to a
contrary conclusion. Therefore, I find that Eskenazi did in good faith seek work
to the best of his limited ability.
Accordingly, I conclude that Eskenazi is entitled to the entire amount of net back-
pay claimed to be due him, the sum of $7,233.20, and recommend that the Board
award the same to him.
21. Yolanda Flamio
Flamio's backpay period begins March 12, 1951, and ends December 1, 1958, a
longer period than is claimed for the other backpay claimants. The reason for
this is that she was not offered reinstatement until December 1, 1958.
The gross backpay claimed for Flamio is $9,814.67, the net admitted interim
earnings are $9,982.28, leaving a total net backpay claimed of $8,816.39.
Flamio's backpay award is difficult to determine not because of the fact that the
records are incomplete but, rather, because of the small amount of interim earnings
which can be credited to her over the 7-year period during which her backpay
claim is spread. The record shows that Flamio had some employment in the
majority of quarters comprising her backpay period. However, the amount of
earnings and the duration of her various periods of employment were very short.
For instance, her first employment after the ending of the picketing on March 12,
1951, was with an Eagle Manufacturing Company in the first quarter of 1951 during
which she earned $12. Then she worked for the Best Trimming and Novelty Com-
pany of New York and earned a total during that quarter of $138.74. To repeat
each of her employments and the amount earned at each would be unduly burden-
some, but in almost every instance her employment was so short-lived that it lends
suspicion as to whether or not she was actually trying to retain the employment.
Moreover, her testimony with regard to the atempts made between the short periods
of employment to obtain other employment was very vague To complicate matters,
Flanuo did not register with the New York State Employment Service. She ex-
plained the same by stating that she did not believe that she would be qualified be-
cause of her small earnings She could not remember where she had applied for
jobs, whom she had asked for work, what agencies she had registered at, what papers
she read, the times that she made applications for work, or many of the other
indicia of attempts to find work.
On the other hand, although her earnings were small and the duration of her em-
ployment for the various employers for whom she worked was short-lived, an
analysis of her backpay claim shows that out of the 18 quarters for which backpay
is claimed for Flamio she had some interim employment in 14. Also, in her favor,
is Flamio's own competence, or more accurately, lack of competence. From my
personal observation of this witness it was evident that she was incapable of perform-
ing any work which would require either a substantial measure of training or long
periods of mental concentration. Also, to overcome the initial impact of her small
interim earnings and the possible conclusion therefrom that she seemed not to want
to work, is the overwhelming fact that she did work in a large variety of industries
holding down all types of work, although at times she was unable to cope with her
task. Thus, she worked for an electrical manufacturer, a trimming and novelty com-
pany in the garment trade, several plastics manufacturers, a candy manufacturer, a
jewelry manufacturer, a blouse manufacturer, and a venetian blind manufacturer.
Although she admitted that she left a number of these positions for personal reasons,
for instance, on one occasion because it was strenuous to her eyes, on another
because it was too far from her home, and yet on a third because she felt that she
43 The sum of $35.10 Is claimed for Eskenazi for expenses Considering the fact that he
searched for work 3 days a week over so protracted a period, I find that this sum is
reasonable.
1374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was unequipped for the job , I do not take these instances to indicate that she was
not willing to work. I conclude, rather, that from the variety of jobs which she did
have that she was trying very hard to obtain work which would be suitable for her
own limited abilities and which would fit into her schedule as a married woman.
Additionally, it should be noted that prior to the discrimination against her, Flamio
worked for Mastro and was not discharged for incompetence. She also testified
without contradiction that she never refused a job offer.
I can find nothing in a review of the law with relation to backpay proceedings
which would deprive of backpay any individual for lack of ability to work at a skilled
trade or at a job which required long and concentrated mental effort. Nor do I think
it would effectuate the policies of the Act to conclude that such an individual should
be precluded from backpay.
Accordingly, I conclude and I recommend that Flamio should be awarded the full
amount of backpay claimed for her, the sum of $8,816.39.
22. Adelaide Fonagy
No claim is made for backpay between July 16, 1951, and August 19, 1951, and
between January 18, 1954, and March 22, 1954, during both of which periods Fonagy
was ill and unable to work and therefore was removed from the labor market. The
gross backpay claimed for Fonagy is $5,212.97; the net interim earnings (admitted)
are $3,818.29 so that a net backpay claimed for Fonagy is $1,394.68.
The specification and Fonagy's uncontroverted testimony shows that she had full
employment in almost all of the 12 quarters claimed except for the short period
during the first quarter of 1951 when she was unemployed and during the third
period and fourth period of 1952 when she had part-time work. Fonagy testified that
after the picketing ended at Mastro in March 1951, she immediately started to search
for work and in the beginning of April 1951 succeeded in locating a job at American
General Thermostat Corporation in the Bronx. Thereafter, from July 16 to
August 19, 1951, she was ill and no claim is made for that period. Then she was
unemployed for several months after which she worked for a short time in Brooklyn,
New York. She left the Brooklyn job because the travel time was excessive. She
then succeeded in getting a job in Manhattan but was forced to leave this job because
a bus strike, which lasted several weeks, cut off her only means of transportation to
the plant involved. At or about the middle of January 1953, Fonagy succeeded in
obtaining work with Simplicity Pattern Company, Inc., in Manhattan and worked
there to the date of the hearing herein.
,Fonagy's uncontroverted testimony shows that during layoff periods, she searched
for work by reading want ads, registering and reporting at the designated times at the
New York State Employment Service, following up ads with personal applications
several times a week, and asking friends and acquaintances who might know of jobs
which she could fill. The only factors which Respondent could possibly claim affect
Fonagy's qualifications for backpay are the two quits, the one in the Brooklyn job for
Radio Receptors, Inc , where she had to travel 2 hours each way and the other where
the bus strike caused her only means of transportation to be cut off In this con-
nection , it should be noted that when Fonagy worked at Mastro, her travel time
to the plant was at the most one-half hour. While the Brooklyn job might have been
substantially equivalent, in the sense that the earnings might have been somewhat
equal to those which Fonagy would have earned at Mastro had it not been for the
discrimination against her, I cannot find under the circumstances here that the job
which required 4 hours of travel a day is a substantially equivalent job. While in
the strictest sense of the term, travel to and from a job is not a term or condition
of employment; it substantially affects the desirability of a job. In the sense, there-
fore. that the travel became unduly burdensome and therefore resulted in the job
not being substantially equivalent, Fonagy's refusal to continue at the Brooklyn
position is excusable.
With regard to the other quitting, I believe that there is no question that the elimi-
nation of a reasonable means of transportation to and from the plant at which she
worked was sufficient reason for Fonagy's leaving the job and seeking employment
elsewhere.
Accordingly. I find that Fonagy is entitled to be awarded the full amount of the
net backpay of $1,394.68
23 Fred Franchi
The backpay specification sets forth a gross backpay claim on behalf of Franchi
in the sum of $3,892 60. The admitted interim earnings are set forth at $3,724.52.
The net backpay claimed in the specification for this individual is $168.08
MASTRO PLASTICS CORPORATION, ETC. 1375
Franchi testified that he did not wait for the end of the picketing but that on
January 26 , 1951 , he succeeded in obtaining employment with the Picker X-Ray
Corporation and retained the same position until the time of the hearing herein.
Thus, he was employed throughout the entire backpay period . The claim for back-
pay represents the difference between the gross backpay to which he would have
been entitled and the interim earnings . I find nothing in the record which would
support the Respondent 's burden of showing that Franchi was not entitled to the full
amount of net backpay claimed for him.
Accordingly, I recommend that Franchi be awarded the sum of $ 168.08.
24. Dorothy Gheradi
Gheradi's gross backpay claim is $10,209.37. The net interim earnings set forth
in the specification are $6,413.74. The resulting net backpay claimed is $3.795.63.
Gheradi had some employment in each quarter of the backpay period. She began
to look for work prior to the end of the strike at Mastro, and in February or March
1951 succeeded in obtaining employment in Yonkers, New York, her place of resi-
dence, with University Products Co., a firm in the garment industry. She stayed
with that company until December 1953 at which time the company moved its entire
plant to Brooklyn, New York. Commutation from Yonkers to Brooklyn required
in excess of 2 hours in each direction. Although offered the job in Brooklyn with
the company, Gheradi demurred and, instead, agreed to go to work for Petite Baby-
wear Company which moved into the factory space formerly used by University
Products Co. However, there was a period of unemployment while the machines
were changed over and the factory was set up during which time she registered with
the State employment service. As soon as Petite opened its plant, she went to work
for that firm and worked there until June 1954 at which time she left because
she was required to go from a straight salary into piecework She explained that
she was not sufficiently fast at piecework to make what she had formerly earned on a
straight salary. She then commenced to search for work and worked for another
firm as a sewing machine operator in Yonkers, but again was unable to compete
because of the type of work done. She worked for a third firm in Yonkers in 3 days
of September 1954, also as a sewing machine operator, but could not recall on her
testimony why she left that employment.
In October 1954, she succeeded in obtaining work with a greeting card company
in White Plains, New York, in which her job was to collate Christmas cards and
wrapping paper. She managed to acquire a degree of skill in this job and was
retained after the holiday season of 1954. However, shortly thereafter the collation
methods were speeded up so that she was required to collate three papers at a time
instead of two. The work became too fast for her and she was unable to cope with
it and about 15 of the 80 girls who worked along with her left their jobs because
they were unable to perform what was required of them. Gheradi testified that
thereafter she looked for work continuously and through the newspaper found a job
in a stationery store in Yonkers in the early part of 1955. She worked there until
April or May of that year and when the business was sold and the new owner
wanted her to work for longer hours and at less convenient times without any addi-
tional remuneration, she left and went to work immediately without any loss of time
at a cleaning store in the same area. There she made more money and worked
shorter hours. This last transfer, of course, benefited the Respondent in that it in-
creased her earnings and thereby mitigated to a greater extent the backpay that would
be otherwise owing.
In her testimony Gheradi stated without contradiction that she always looked for
work during periods of unemployment and never turned down a job which would
have been suitable for her. The only question with regard to Gheradi's entitlement
to the backpay award is whether she was justified in leaving the employments above
described A study of her employment record and the reasons for her leaving each
of the jobs which she left voluntarily show that none of them were substantially
equivalent to the job which she had originally with Mastro Products. In three of
the jobs she was forced to go into piecework, which she was not used to and in which
her earnings would have been less than they had been at Mastro. In the job with the
greeting card company in White Plains, the speedup was such that she was incapable
of coping with it. And when she left the stationery store in Yonkers she did so to
earn more money and thereby further assist in decreasing the amount of backpay
due her.
I conclude therefore that under settled law 43 all of the times that Gheradi quit
she did so for a good cause. It should also be noted that in her testimony Gheradi
43 Southern Silk Mills, Inc., supra.
1376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stated without contradiction that at the time she had a daughter living at home. This
helps to explain the reason that she could not take work at odd hours or at a distant
place which would be too far to come home in an emergency. Mastro had been
convenient and the hours proper for one in her position.
Accordingly, I find that there is nothing in the record to show that Gheradi was
not entitled to the full amount of backpay claimed for her. Therefore, I recommend
that Gheradi be awarded the sum of $3,795.63, the amount claimed in the
specification.
25. Vernal Gibson Fine
No backpay is claimed for Fine between February 12 and March 20, 1952, and
between September 29 and December 2, 1952, at which time Fine was not in the
labor market. The gross backpay claimed for Fine in the specification is $2,533.83,
the admitted net interim earnings were $580.06, and the net backpay claimed is
$1,953.77.
From the time of the picketing at Mastro, until about September 1951, Fine was
unemployed. When the picketing was over, Fine applied for unemployment benefits
and for job referral. She remained registered with the New York State Employment
Service and reported in to them as required In addition to this, she looked in news-
papers every day, answered want ads, consulted with friends, and made other efforts
to find jobs. She also testified without contradiction that she did not turn down any
jobs which would have been suitable to her. Fine's first job was with the New York
City Board of Education which began, as above stated, in September 1951 which job
continued until February 1952. She was then out of work from February 1952 until
December 2, 1952, during which period she again took the same attempts to find work
as hereinbefore set forth. Finally, in December 1952 she obtained a job with Federal
Television Corporation, which job she retained up to and including the date of the
hearing Her earnings at Federal Television after the fourth quarter of 1952 were
in excess of what she would have earned at Mastro. Accordingly, no claim is made
for backpay for Fine after the fourth quarter of 1952.
I find that the record is devoid of any evidence to the effect that Fine did not make
an adequate search for work. Accordingly, I recommend that Fine be awarded
the sum of $1,953.77, the amount claimed for her as net backpay in the specification.
26. Gloria Gonzales De Turo 44
Gloria Gonzales De Turo's backpay period is the same as the others beginning
March 12, 1951, and ending March 9, 1956. According to the specification Gloria
Gonzales De Turo's gross backpay is $1,537.70. She had interim earnings of
$1,250 05, and her net backpay claimed is $287.65.
Gloria Gonzales De Turo had work continuously during the entire backpay period
and the backpay claimed for her is the difference between what she would have made
at Mastro and what she actually made until the times that her earnings exceeded
what she would have made at Mastro.
Accordingly, nothing in the record being to the contrary, I recommend that the
amount of $287.65 be paid Gloria Gonzales De Turo.
27. Bernard Greco
The gross backpay claimed for Greco is $3,012.50, the net interim earnings
$2,729 34, the net backpay claimed is $283 16.
No backpay is claimed for Greco beyond the second quarter of 1952. Immediately
upon the end of the picketing at Mastro, he obtained a position with Ben-Art
Plastics Co. in Woodside, New York, and remained employed there during the entire
backpay period. Accordingly, the backpay claimed for him is the amount between
what he would have made at Mastro had there been no discrimination against him
and the amount he made at Ben-Art for the period from the first quarter of 1951
through the second quarter of 1952. Thereafter, his earnings were in excess of
what he would have made at Mastro and no claim is made for that period.
Accordingly, there is nothing in the record which would show that Greco is not
entitled to the full amount of net backpay claimed for him which is the sum of
$283 16. Therefore, I recommend that he be paid the same.
44 The Board's reinstatement order in this case [103 NLRB 511] list this individual as
Gloria Gonzales. Since then she has married
MASTRO PLASTICS CORPORATION, ETC. 1377
28. Evard Green
The revised specification sets forth as a gross backpay claim for Green the sum
of $4,622.30 , admitted interim earnings of $2,116.20 and a net backpay claim is
$2,506.10.
Green's record during the backpay period was one in which he earned sufficient
sums so that backpay is claimed for only 7 out of the 21 quarters comprising the
backpay period . He was employed in six of the seven quarters for which claim is
made. According to his testimony , which was unrefuted , Green made a requisite
search for work when he was out of work. Thus , he registered at public and private
employment agencies , he read want ads in newspapers , he asked friends and
acquaintances about jobs, and applied personally at a number of plants and other
places where employment might possibly be found. His testimony also shows that
Green was the sole support of seven dependents , none of whom earned any money
to help support the family . The testimony shows that the fact that he was unemployed
for only one quarter of a year out of the entire backpay period in itself indicates
that continuous search for work was made . Suffice it to say that he worked for
such diverse employers as the Lackawanna Railroad, a restaurant , an autolaundry,
construction firms, and other unrelated industries . Considering that this man had no
formal training whatsoever , his efforts to find work were indeed indicative of good
faith.
However, there was some indication by the Respondent at the hearing that Re-
spondent felt that Green had left several of the interim jobs without reason and
without good cause and therefore that he had forfeited his right to backpay . Accord-
ingly, I shall discuss each of these . During the first quarter of 1952 Green secured
work at an autolaundry in Queens Village, New York. However, he testified with-
out contradiction that this work was of a temporary nature and that he was being
paid for such temporary work $1 per hour. His superiors told him that if he con-
tinued on a regular basis , his salary would be reduced to less than $ 1 per hour. The
record indicates that at Mastro , his earnings would have been at the rate of a min-
imum of $1.10 an hour at first with increases during the backpay period to $1.30 an
hour Accordingly , I find that his leaving the autolaundry was justified as this was
not equivalent employment.
At another time, during the first quarter of 1952, Green was employed in a
restaurant in New York City. He had been working between 3 a.m. and 8 a m. and
then , without any explanation therefor , the owner of the restaurant sought to lengthen
Green's working hours from 12 midnight until 8 a m. without any increase in pay.
Since his earnings at the restaurant were not equal to his earnings at Mastro, the job
was not equivalent and the lengthening of his hours were certainly under the cir-
cumstances good cause to quit. Therefore , I find that this quitting did not affect
Green's right to backpay . The only other time that Green lost a position during the
entire backpay period for which a claim is made on his behalf was when he was
discharged along with eight other persons in the department in which he worked
because of thievery . There was no proof either in the record or at the time that
Green was discharged that he was in any way involved in the dishonesty . However,
the employer being unable to fix the blame , the entire department was discharged.
Therefore , I do find without merit the Respondent 's contention that Green was
disbarred from receiving the full amount of backpay claimed . Accordingly, I
recommend that, in accordance with the revised specification herein, Green be
awarded the sum of $2,506.10.
29. Louis Hernandez
Backpay is claimed for Hernandez for only three quarters during this entire time
Gross backpay claimed for Hernandez is $1,742, the net interim earnings admitted
by the Respondent , $ 1,467 . 19. Accordingly , the net backpay claimed for this indi-
vidual is $274.81.
Hernandez has one of the strongest records of employment during the backpay
period of any of the individuals whose claims are set forth in the specification herein.
His periods of unemployment were very short during the entire backpay period and,
claim is made for only three quarters of the entire backpay period After several
jobs, one in the casting industry , another for a laundry corporation , Hernandez
entered the garment trade and has been employed in the garment trade up to the
present time . His periods of employment from the time he entered the earment
industry would seem to be those which were peculiar to that industry and of a seasonal
nature. Slow periods in the garment industry lead to layoffs . However, they do
1378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not mean that the individual is not employed. Hernandez did not register with the
State employment service and the Respondent seeks to establish this as a reason
for refusing Hernandez backpay. I do not agree. Registery with such service is not
a prerequisite if other adequate search for work is shown. I find such here.
Accordingly, I would award the claim of $274.81 in full.
30. Lena Maddalena -
The gross backpay claimed for Maddalena is $8,181.47, the interim earnings for this
period $5,138.56, so that Maddalena's total net backpay claimed in the specification
is $3,042.90.
Maddalena did not picket at Mastro until the end of the picketing period because
she entered a hospital for surgery on January 26 and was not able to work until
about April 1, 1951. Thereafter, she was unemployed until February 1952 when
she obtained a job in the Bronx Terminal Market packing tomatoes. During the
period from April 1, 1951, until she obtained employment in February 1952, Mad-
dalena registered with the New York State Employment Service and reported there
whenever required. During this period, she also answered newspaper ads for various
factory jobs such as floorgirl and table worker in the garment industry or for packing
work She also inquired of friends and neighbors if they knew of any jobs for her.
She also visited various plants. She looked for work in the plastics industries but
could find none. Finally, it was through her sister-in-law that she found the job
packing tomatoes.
Maddalena left this job after a few weeks because the working conditions were
bad. She worked in a shed where it was very cold. Moreover, she was required to
work overtime on some days and not sufficient time on others. The job was irregu-
lar, difficult, and poor paying. In addition to the foregoing, the Bronx terminal
was some distance away from her home and she was forced to pay double trans-
portation After she quit that job, she immediately had work with a company
called The Mortner Co., Inc., a paper box manufacturer in New York City. This
job offered a steady, 8-hour day and paid a steady, more adequate wage, was in
a warm, clean place, and was only one busfare away from her home. While working
at this job for a period of approximately 6 or 7 months, Maddalena was embarrassed
by the entry into the plant of her husband, from whom she was separated. When
he commenced to create a disturbance because of her presence there, she quit
immediately, rather than suffer extreme embarrassment.
In a few weeks, she obtained work at the Stella D'oro Biscuit Co. in the Bronx.
After a few weeks there, Maddalena returned to the Mortner Company where she
was employed for the balance of her backpay period except for short layoffs because
of economic conditions. I find that Maddalena's quitting the tomato packing
job was for a good cause and did not in any way disqualify her from accepting
backpay.45 Also, no backpay is being claimed for Maddalena from the period
from the time that she left the Mortner Company to work at Stella D'oro and
until she went back to the Mortner Company. Although I believe that under the
circumstances her leaving the Mortner Company was understandable, since no
backpay is claimed for that period, I do not recommend an award therefor.
I find that the backpay as set forth is correct except that a mathematical error
seems to have been made in the specification (see second revised specification) and
I find that the total amount due Maddalena is $3,042.90 and not, as set forth in the
specification as $3,098.91. Accordingly, I recommend that Maddalena be awarded
the sum of $3,042.90.
31. Lillie Maddalena
The gross backpay claimed on behalf of Lillie Maddalena is $10 ,003.10. The
admitted net earnings are $4,774.55, making a net backpay claim of $5,228.45.
Like Lena Maddalena, Lillie Maddalena was unemployed during the entire
year of 1951 following the strike. She testified without contradiction, however,
that during this entire period she reported to the New York State Employment
Service and took the usual means offered in the area in which she lived to find work.
She answered newspaper ads, asked freinds about jobs, and visited possible places
of work herself.
From the first quarter of 1952 and during each succeeding quarter of the back-
pay period, with the exceptions of the fourth quarter of 1953, Lillie Maddalena had
some employment. Her work, for the most part, during the first few years of the
backpay period was in the garment industry, which is notably a seasonal industry.
46 Ozark Hardwood Company, 119 NLRB 1130; Southern Silk Mills, Inc, supra; East
Texas Steel Castings Co, supra.
MASTRO PLASTICS CORPORATION, ETC. 1379
She worked packing tomatoes as did her sister-in-law, Lena Maddalena, and quit
for the same reason, namely, that the place of work was cold and unheated and the
hours were overlong for the amount of pay involved. Moreover, each time Lillie
Maddalena left a job she did so to find a better one and in each case thereby miti-
gated the backpay to a greater extent. Evidently, because of the seasonal nature
of the garment industry, she obtained, through a meatpackers union, a job with
the A & P Super Markets in the meatcutting department and was employed there
during and after the second period of 1955 continuously to the end of the back-
pay period. This indicates that Lillie Maddalena was trying to increase her earnings
by leaving the rather seasonable garment and packaging industries in which she had
been engaged to obtain employment in an industry which would keep her employed
the year round.
Accordingly, I can find nothing in the record to show that Lillie Maddalena is not
entitled to her full backpay claimed. Therefore, I recommend that she be awarded
the sum of $5,228.45.
32. Ralph Maresco
The gross backpay claimed for Maresco is $4,933; the admitted net interim earn-
ings are $3,464.95 resulting in a total net backpay claim of $1,468.05.
Maresco had some employment during all of the nine quarters for which backpay
is claimed. His record shows a constantly improving earnings history. Maresco's
testimony shows that he did not wait until the picketing ended at Mastro, but in
the early part of January 1951 succeeded in finding work at Chic Togs Fashions in
the garment industry and worked there until sometime in April when he was laid
off together with other employees for economic reasons. Upon his layoff, Maresco
immediately sought work and within a very short time succeeded in finding work
at the Electro Chemical Engraving Co., Inc., in New York City. In between that
time he also had a short period of work on a temporary basis for Reuben H.
Donnelly Corporation but alter working there I day he was laid off. He worked foi
Electro Chemical from the end of the second quarter of 1951 to 1954 when, some-
time during the first quarter, he left to have a tonsillectomy. After recovery from
the operation Maresco did not return to the Electro Chemical job but, instead,
took a job in January, through the reference of a friend, with a P & S Glass
Corporation.
It should be noted here that sometime between his early employment with Electro
Chemical and his later employment at Electro Chemical he served in the Army but
no claim is made for that period. He was with P & S Glass for only a short time
for the reason that although he was promised that he would get steady work and
would be made a journeyman glazier and become a member of the Glazier's
Union, this turned out to be a misrepresentation and he was forced to work over-
time without overtime pay. I find that the quitting in this case was proper. Al-
though he left Electro Chemical to go to P & S to improve his status in fact he
did not improve his status because of the employer's misrepresentation. I, there-
fore, find that his quitting at P & S was not such as to warrant cutting off his backpay.
After P & S Glass, Maresco's first job was with Safeway Stores where he worked
for only a few weeks but was laid off because of economic reasons. He then ob-
tained a job with Shopwell Foods, Inc, another retail chain, in Pelham Manor,
New York, and retained his job with Shopwell to the end of the backpay period.
I find from the foregoing that Maresco made a good-faith search for work; that
the Respondent has not shown that Maresco was not entitled to full backpay, and
accordingly, award him the amount claimed in the specification, the sum of $1,468.05.
33. Camille Martone Vaughan
The gross backpay claimed for Vaughan is $684 against which there were $103.35
interim earnings , leaving a total of net backpay claimed in the sum of $580.65.
No backpay is claimed for Vaughan beyond the third quarter of 1951. Vaughan
testified to the effect that several weeks after the strike started in November 1950,
she began looking for work by reading the papers, applying at factories, stores,
and other places of business, and registering with the New York State Employment
Service. Thereafter, after a period of unemployment and unsuccessful job hunting,
she succeeded in finding, through a friend, a job as a waitress in a food shop. She
worked there for approximately 3 weeks until the advances of a coworker made it
so uncomfortable for her that she was forced to quit work. Thereafter, she searched
for work again registering at the State employment service, applying at factories,
641795-63-vol. 136-8 8
1380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stores, and other places of business, but was unsuccessful. She became pregnant
in June 1951 and in July or August of that year she ceased looking for work. She
has not gone back to work since and there is no claim for backpay from July 15,
1951, on. There is nothing in the record to show that Vaughan did not make
a good-faith search for work. I find that under the circumstances related in the
testimony, she was justified in leaving her employment at the restaurant where condi-
tions were such that she was forced to leave.
Accordingly, I find that Vaughan is entitled to the full amount of net backpay
claimed for her, the sum of $580.65.46
34. Joseph ,Maters
Backpay is claimed for Matera for only seven quarters during only one of which
he had no interim earnings. The gross backpay claimed on behalf of Matera is
$3,983.15; the net interim earnings which are admitted are $1,590.76; the net backpay
claimed, therefor, is $2,392.39.
Matera began looking for work immediately upon the strike at Mastro ending and
approximately a month or 6 weeks thereafter obtained work with the Belmar Con-
struction Company. For approximately a little over 2 years thereafter he worked
off and on in the construction industry with only very short periods of unemploy-
ment. When one contractor's job closed down, he would transfer to another.
Thereafter, because the construction industry offered only intermittent employ-
ment, Matera decided to seek employment elsewhere and was successful in obtaining
a position with the Personal Finance Company of New York. He worked for
Personal Finance Company until perhaps February or March 1952 and left that
employment because although the company had promised rapid advancement, his
base pay was very low, and the promises of increased earnings were not kept. His
salary was $45 a week whereas his hourly rate at Mastro, had he continued to work,
would have earned him a sum far in excess of that.
After leaving Personal Finance there was a short period of unemployment after
which Matera worked for Curtis Wright Corporation in Woodridge, New Jersey, doing
painting. This employment came to an end sometime during the first quarter of
1953. In the second quarter of 1953 Matera worked for a few days for Reuben H.
Donnelly distributing telephone books and then obtained work in the food industry
for the Shopwell Foods Company in Pelham Manor, New York. He worked there
until he was required to work evenings which interfered with his going to school
at night. His wife also complained about his working nights. It should be noted
here that he did not have to work at night at Mastro. Accordingly, he left that
position and went to work for a vacuum cleaner sales establishment. Vacuum sales
did not work out inasmuch as the income was too small.
Finally, after paying approximately $100 to an employment agency, he secured
employment with a firm called Drug Alliance Corporation in the latter part of 1955.
He worked there until he lost his job because of absence from work due to domestic
trouble. He testified that at that time he was having domestic difficulties and lost
perhaps 10 days out of a month in having to attend court or consult with his lawyer.
From the record it is clear that at each time that Matera lost employment, be im-
mediately set out to seek newer and better employment. Each time he quit he did so
in order to improve himself and thereby reduced the amount of backpay which the
Respondent would have had to pay. However, the Respondent at the end of Ma-
tera's testimony moved that backpay be cut off for Matera from the date upon which
he left employment with Drug Alliance on the ground that it affirmatively appeared
from the uncontradicted testimony of Matera that the employment at Drug Alliance
was terminated voluntarily by Matera.
It cannot be denied, nor does the General Counsel attempt to do so, that Ma-
tera's job at Drug Alliance as a trainee in a sales operation was, so far as the earning
possibilities were concerned, a position which would have been at least substantially
equivalent to that of the position which he held at Mastro prior to the discrimina-
tion Accordingly, if it is demonstrable that Matera did, in fact, voluntarily and
without good cause shown, leave his employment at Drug Alliance, then Respondent
is correct and the contention that Matera's backpay be cut off at this point has merit.
The issue, therefore, is whether Matera did voluntarily quit his Drug Alliance job
without good cause.
4e Vanghan' s name appears as Camille Martone in Schedule A attached to the Board's
Order in this case [103 NLRB 511, 525]
MASTRO PLASTICS CORPORATION, ETC. 1381
The General Counsel contends that Matera's absences which brought about the
discharge were beyond Matera 's control. I find this situation very similar to one
where a backpay claimant would have been discharged for absences due to illness.
A domestic problem is often as uncontrollable as illness. Accordingly, I am con-
strained to agree with the General Counsel and to find that Matera did not volun-
tarily quit as contended by the Respondent.
Inasmuch as there is nothing else in the record with regard to Matera which
would indicate that Matera was not entitled to the full amount of net backpay
claimed for him, I , accordingly , recommend that Matera be paid the sum of $2,392.39.
35. Agnes Messina
Messina had gainful employment in all but 2 of the 21 quarters for which back-
pay is claimed for her. However, the size of her backpay claim is quite substantial
due to the fact that even with her somewhat steady employment, she was unable to
earn what she would have earned at Mastro. The issue with regard to Messina is
whether these interim earnings were decreased by her own action and whether or
not she had at any time removed herself from the labor market or whether or not
Mastro was, in fact, her true employer at the time of the discrimination against her.
According to the specification, Messina's gross backpay was $10,711.62 against
which she had net interim earnings of $5,255.17 resulting in a net backpay claim of
$5,456.45.
Messina, prior to her going to work in March 1950 for Mastro, was employed
by the Coleman Carpet Mills, Inc., of Bronx, New York. This business was rather
seasonal and one in which Messina suffered frequent layoffs. Accordingly, when,
during one of her layoffs periods the opportunity came to work at Mastro, she
availed herself of the opportunity and took employment with Mastro. She worked
there until the strike which began in November 1950 and early in January 1951
returned to the employ of Coleman She testified, without contradiction, that aside
from the fact that at Coleman she suffered frequent layoffs, the work was also very
difficult in that she had to stand up and work a hand loom. At Mastro the work was
easier and steadier She also testified, without contradiction, upon cross-examina-
tion by Respondent's counsel, that when she left Coleman to go to work at Mastro,
it was with the idea that her employment at Mastro would be permanent and that
she had no idea of returning to Coleman at any time during her Mastro employment.
She further testified that it was when she was on the picket line and the owner
of Coleman saw her there and offered her her old job back at an increase in salary
that she left the picket line and went back to work for Coleman. Messina further
testified that this was brought about by necessity since her husband was disabled and
she was the sole support of her husband and two minor children at that time.
After returning to Coleman, Messina continued working there almost until Cole-
man went out of business early in 1953. Virtually no work was obtainable during
the last three quarters during which she worked at Coleman. Her earnings during
those quarters, as reflected by the specification, were very small Because of this,
Messina sought other work and remained unemployed until finally in December
1953 she went to work for Star Tag and Label Corporation, at which firm she worked
to the end of her backpay period. However, her earnings were at that firm not
equal to the earnings she would have made at Mastro.
Respondent contends, among other things, that Messina was never a true em-
ployee of Mastro, but rather always considered herself an employee of Coleman
and that she took the Mastro job merely as a fill-in at a time when there was no
work at Coleman. I think it is clear from the testimony of the claimant, which
remained untrammeled at the hearing, that this is not the case and that when she
accepted work at Mastro, she intended to stay permanently with Mastro. Re-
spondent also claims that Messina had no right to leave Coleman because the work
that she accepted at Star Tag and Label was at an hourly rate of less than she earned
at Coleman. Aside from the fact that, as contended by the General Counsel,
Messina was justified in accepting the Star Tag job after some 6 months of unemploy-
ment during which she made an adequate search for work, I also find that her earnings
at Star Tag were equal to or better than her earnings at Coleman for the simple reason
that Star Tag was a steady 40-hour a week job whereas the work at Coleman Carpet
varied according to the demand for carpet and the season of the year.
Accordingly, I can find nothing in the record on which to make a conclusion that
Messina did not make an adequate search for work Therefore, I recommend that
Messina be awarded the full amount of the net backpay claim in the sum of
$5,456.45.
1382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
36. James Miller
According to the specification, the gross backpay for Miller is $6,251.86. The net
interim earnings, which are admitted, total $5,124.12. Accordingly, the net backpay
which would be due Miller would be $1,127.74.47
Miller was employed in each of the 22 quarters constituting his backpay period,
and backpay is claimed for 10 of these. He obtained work almost immediately upon
the cessation of the picketing and was employed in this first job until June 1952
when he was laid off because the employer went out of business. His next job was
with a concern called Superb Light Alloys, which job began in the fall of 1952.
Between the two jobs he searched for work including registering at the New York
State Employment Service and reporting there weekly. He also answered want ads
and was able to testify exactly as to the employers from whom he sought work
during this interim period. Superb was a foundry and he worked there as a laborer
until sometime around January or February 1953 when, on his doctor's advice and
because of illness, he left the job, unable to stand the sulfur fumes and heat. I
find that this quitting was fully justifiable under the Board cases.48
Miller then had intermittent work for short periods at Todd Shipyards, he having
to shape up each day, then worked for a short period for Alcoa in New Jersey, where
Todd Shipyard was also located.
After leaving Alcoa, Miller took a higher-paying job with General Motors in
Tarrytown, New York. I find that he was justified in leaving Alcoa in getting the
better-paying General Motors job. The Respondent contends Miller became a
permanent employee of General Motors and therefore lost his right to backpay
at the point that he obtained this job. However, the record shows that Miller
was laid off for 6 weeks in November 1953 when 800 other people were also laid
off Even though he expected to be called back when the annual model changeover
was finished, Miller took a job during the layoff with a candy manufacturing company
in New York City. He then went back to General Motors when he was recalled
in January 1954 and worked there for about a year, after which he was laid off
for lack of work as were several hundred other people on his shift. He was not
recalled to General Motors because his shift was eliminated after this and he was
not put on any other shift.
Thereafter Miller became self-employed in the carpentry business about March
1955 and even then, when business became slow, he obtained a brief job with
Horn and Hardart, a cafeteria, in the fourth quarter of 1955. The Board has held
that self-employment does not remove a claimant from job market or in any way
diminish his eligibility for backpay.49 When carpentry business was bad, Miller
also registered with the New York State Employment Service, reporting there
weekly. At another time he worked for Horn and Hardart at night while he was
earning money as a carpenter during the day because his income from the carpentry
business was not sufficient to support his family.
Miller had a sizable expense item in his backpay claim. In the first quarter of
1953 it was $32.50; for the second and third quarters, $39 each; and the first quarter
of 1955, $13. However, in view of the fact that Miller attempted to search all
around the New York metropolitan area for work, I do not find, considering the
distances which he traveled in order to find work, that his travel expenses were
excessive Accordingly, I would allow all expenses claimed by Miller.
From all the foregoing it can be concluded that Miller made a more than rea-
sonable search for work and at all times sought to be employed. Even periods of
employment were used to search for work and sometimes he doubled his employment,
as noted above, when his earnings from one source were not sufficient to support
his family. This record of diligent search for work, as demonstrated above, entitles
Miller to the full amount of his claim of $1,127.74, and I recommend that the same
be awarded to him.
37. Mary Occino Schettino 50
The gross backpay claimed for Schettino is $5,966.32; net interim earnings total
$4,729.93, leaving a total net backpay claim of $1,236.39.
47 There is evidently an error in computation in this specification , for, according to the
specification , the net backpay due Miller is $1,207 74 . Careful check shows this to be a
mathematical error and that the amount listed above, $ 1,127 74, is correct mathematically.
+s See Southern Silk Mills , Inc, supra , Ozark Hardwood Company, supra; and East
Texas Steel Castings Co , supra
Q N L R B . v. Armstrong Tire and Rubber Company, Tire Test Fleet Branch, supra
P Mrs Schettino ' s name appears as Mary Occino in Schedule A attached to the Board's
Order in this case [103 NLRB 511, 525].
MASTRO PLASTICS CORPORATION, ETC. 1383
Except for the third quarter of 1951, during which she was unemployed, Schettino
worked during the entire backpay period. Shortly after the Mastro strike she ob-
tained work for D. Y. Learner Company but stayed only 2 weeks because the pay
was insufficient. Thereafter, in the second quarter of 1951 Schettino worked for
S & J Foods, which employment lasted only several weeks because the business was
slow. Thereupon, she was unsuccessful in finding work until January 1952 when
she obtained employment at the Hotel Waldorf Astoria where she has worked almost
continuously ever since. It should also be noted here that sometime in the fourth
period of 1951, and before the Christmas holidays, she had a short employment with
Franklin-Simon Company and Hearn Department Store, Inc., in New York, both
of which positions were temporary sales positions for the Christmas holidays.
Part of the period between the time when Schettino left S & J Foods and acquired
a permanent position with the Waldorf Astoria, she was unavailable for employment
because of an accident in which she was involved. However, no claim is made for
her during the period from the time that she received the injury until time when
she began to look for work again which was sometime in November 1951. After
her recovery from the accident, she made the usual search for work by reading want
ads and making personal applications in various places throughout New York
City. She did not apply at the New York State Employment Service because she
felt that she could obtain employment without their assistance. This, of course, does
not disqualify her from receiving backpay inasmuch as she made other efforts to find
work.
As shown above, her search for work record is excellent and, accordingly, I find
that Schettino is entitled to the full amount of backpay claimed for her in the sum
of $1,236.39.
38. Marie Olker Finelli 51
Gross backpay claimed for Finelli is $4,502.25. Interim earnings claimed are
$3,894.61 leaving a total net backpay of $607.74, which appears in the specification
as $519.73.
Finelli was employed at Camoloc Fastener Corp. in Paramus, New Jersey, in
January 1951 before the end of the strike. She has worked there ever since. The
amount of backpay claimed represents the difference between the amount she has
made at the Camoloc Fastener Corp. and what she would have made at Mastro.
The backpay claim asks for expenses of in some cases as high as $105.43, a quarter
representing the increase of travel costs from New York to Paramus, New Jersey,
over what travel costs would have been to communte from Finelli's home to the
Mastro plant. There was no exact way of computing this backpay, and it con-
stitutes just an estimate. She testified that fare was approximately 90 cents to
$1.07 per day more than it cost her to travel to Mastro. There is no indication how
the expenses are arrived at in the specification except that it shows that for two
quarters it was $105.43 each and for the other seven quarters, $92.03 each Even
the General Counsel admits that this might be excessive.
Inasmuch as I cannot determine exactly from the record what the expenses should
have been, I can only estimate on the following basis. Assuming $1 per day addi-
tional expense of traveling, the cost would be $5 a week, and, there being 13 weeks
to a quarter the total comes to $65 per quarter. Accordingly, the total allowance
that I can reasonably estimate for expenses for Finelli is $65 times the total num-
ber of quarters for which claims are made. There being nine quarters involved, the
total expense permitted to Finelli is $585 According to the revised backpav speci-
fication the expenses were approximately $855. I shall, therefore, deduct $270, the
difference between $855 and $585 from the net backpay claim of Finelli in the sum
of $607.74.
Accordingly, I recommend that the net backpay to Finelli be reduced to $337.74,
which I recommend the Board allow her.
39. Jane Pasculli
The gross backpay claimed for Pasculli in the specification is $2,678.60; the net
interim earnings, which are admitted, are $1,377.04, resulting in a total of net back-
pay claimed of $1,301.56.
Pasculli testified credibly that she made an immediate search for work as soon as
the picketing at Mastro stopped and registered with the State employment service
and was able to find a job almost immediately in February 1951 with Commercial
Decal, Inc. She worked with Commercial Decal until August 1951, when she was
laid,off for lack of work with a number of other employees. However, it was not
E1 This claimant 's name appears as Marie Olker in the Board 's Order [103 NLRB 5111.
1384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
until September 1953 that she was able to obtain another job and that was with the
S. S. Kresge Co., a dime store in Mount Vernon, New York. Thus, she had
a 2-year period during which she did not work.
Although 2 years would seem to be an inordinately long period of time not to be
working, Pasculli testified that between the Commercial Decal and Kresge lobs,
besides registering with the New York State Employment Service, she visited any
number of places looking for work in Mount Vernon, Yonkers, and the Bronx, all
within a short distance of her home. She explained this by stating that she had three
minor children and could not work a great distance from home as she had to be
able to go home at a moment's notice. She said this is why she originally went to
Mastro to work. Pasculli testified that in her search for work she looked for a job
at Kords on 239th Street in the Bronx and Farrand, optical manufacturers, on
Bronx Boulevard at 238th Street in the Bronx; that she went to another number of
factories, one on 10th Avenue in Mount Vernon and several in Yonkers, New York.
She testified that she kept going back to any number of factories within the area near
her home.
Pasculli worked at Kresges Department Store from September 1953 until Decem-
ber 1953 when she left because her youngest daughter had an appendectomy and
she was forced to stay home. No claim is made for the period during which she
was at home with her daughter during the daughter's period of recovery. There-
after, Pasculli reentered the job market about 8 months later in July 1954, when
she looked for work at the Cross County Shopping Center in Yonkers, New York,
and obtained a job in the Woolworth's store in that shopping center. She also testi-
fied that between that time she worked for a period in Alexanders, a department
store in the Bronx. However, she testified that the Alexanders job was merely a
temporary one for the Christmas holidays. She also applied for work at Gimbel's
and Wannamaker's Department Stores at the Cross County Shopping Center before
she obtained the job with Woolworth's. She testified that she did not turn down
any offers of jobs
Although out of the 4-year period Pasculli was unemployed for approximately 2
years and 9 months, even on cross-examination by Respondent's counsel, it could
not be shown that during these periods for which a claim has been made for back-
pay she was not looking for work. Her ability to specifically state where she
worked and searched for work, her reasons for confining herself to her home area,
were all reasonable. I find that she was not required to search elsewhere for work
under the circumstances.
Upon the entire record, I am constrained to find that Pasculli is entitled to the
full amount of net backpay claimed for her in the sum of $1.301 56.
40. Carmine Pastore
The gross backpay claimed for Pastore is $6,600 35. The admitted interim earn-
ings totaled $3,829.83 resulting in a net backpay claim of $2,770 52
Pastore's claim covers only nine quarters during all of which he had some work
with the exception of the second quarter of 1953 On the witness stand, Pastore
demonstrated that his memory with regard to dates and the order in which he
worked at the various places of employment was poor. However, in testimony of
his search for work, Pastore was able to state with some accuracy the names of
factories at which he applied for work during the periods of unemployment in his
backpay period. Thus, he was able to indicate that he went to a factory called
Bark Instrument Company, Empire Coil Company. Krug's Bakery. Jat-A-Metal,
American Cystoscope, General Motors, Tarrytown, and a number of other places.
Although the testimony in sum on Pastore is rather confused, I believe that for the
most part it demonstrated that Pastore did make an effort to find work. His work
record is fairly good and his testimony clearly demonstrated that during several
periods of unemployment he made all the necessary efforts to find work required by
precedent.
The only question arises as to the expenses which he said he incurred which,
upon cross-examination, he was unable to detail However the expenses claimed in
the svecification for Pastore were very modest, the largest items were incurred dur-
ing the quarter of 1952 that he was completely unemployed The total during that
quarter was only $23 40. Accordingly, although Pastore was not able upon cross-
examination to set forth in detail the amounts of expense or the exact manner in
which they were incurred, their size and the fact that they were incurred for travel
over a period of more than 3 years warrant my finding them to be reasonable. I
also note that Pastore worked from almost immediately after the strike began until
1953 without a single claim for backpay or for expenses. After that, although he
MASTRO PLASTICS CORPORATION, ETC. 1385
had difficulty finding steady work, he had some work in every quarter claimed with
the exception of one.
Accordingly, I find that Pastore is entitled to the full amount of backpay claimed
for him in the sum of $2,770.52.
41. Henry Paul
The specification claims for Paul the sum of $12,265.03 as a gross backpay and
credits the Respondent with $2,168.60 as the net interim earnings resulting a total
claimed in the specification on behalf of Paul for net backpay in the sum of
$10,096.97.
This is one of the largest claims made in the specification. Paul's record of work
is very poor when the amount of backpay is compared to interim earnings. My
observation of this witness is that although he had a certain stubbornness which
could have interfered with his keeping jobs, that nevertheless he gave the impression
of extreme honesty and sufficiently explained away each loss of position that he
suffered during the backpay period. He also had adequate reasons for quitting when
he left a job during the said period. It should also be noted at the outset that
Paul was 58 years old at the time of the strike at Mastro and at the time of the
testimony herein was a man of almost 70. However, his memory was sharp and
what he could not memorize he had in notes made at the time that the events testi-
fied from thereto occurred. He was a meticulously careful man and his testimony
was replete with decisiveness and definiteness. Accordingly, although he was given
a thorough cross-examination by the Respondent, who was allowed to explore as far
afield as possible under the circumstances, nothing in the cross-examination occurred
which causes me to doubt in any way Paul's entire testimony.
As stated above Paul's history was very spotty as to his employment record. Being
somewhat of a machinist engine mechanic, Paul decided after the strike at Mastro
to seek employment in the tugboat field and was successful in obtaining a job with
the Bronx Towing Line, Inc., beginning May 2, 1951. Prior thereto he had made
adequate search for work by applying to private employment agencies at which he
made inquiry. He left the Bronx Towing job after 2 weeks because he was on the
boat all week without a break and had to work in 16-hour shifts. It will be recalled
he was then 59 years of age and was living with his wife and children whom he was
allowed to see only on weekends as the boat was at sea on towing actively all other
times. The job, therefore, was not desirable or suitable for him and his leaving it
was a justified quit.52
Paul was unemployed then until July 11, 1951, when he received a position very
similar to his former one with the Red Star Towing and Transportation Company
of Brooklyn, New York. At Red Star he shipped on a seagoing tug and was on the
boat for 3 straight weeks. He found this to be an impossible working condition for
a man of his age and with his family background. Accordingly, he left for the same
reasons that he left Bronx Towing and I find that these were adequate reasons for
quitting.
He then went through a period of unemployment during which he registered
with the New York State Employment Service and made other search for work
which I find was satisfactory. He finally found a job with Metro Machine Works
where he was employed from September 24 to October 24, 1951. It is his discharge
from the Metro Machine Works on October 24, 1951, that gives rise to my greatest
doubt as to whether Paul continued to merit backpay. He testified that he was fired
after several altercations with a foreman who had continuously shouted at and
badgered him. He stated that when he was leaving, he was told by the owner of
the company that he was "the second good man we have lost on account of him
[the foreman]."
He further testified that when approximately a year later he went back to the shop
he saw the foreman working at a machine which indicated that be was no longer a
foreman. However, this was merely Paul's conclusion and was not established by
any fact. Since the Metro Machine job was a position which would otherwise have
been equivalent to Paul's Mastro Plastics job, and since Paul was discharged there-
from, the question is whether at that point he was cut off from backpay. Of course,
this would depend on whether Paul was discharged for a cause or whether the loss
of the position was beyond his control
Pail's story with regard to the incident was uncontroverted A suspicion, perhaps,
that Paul was discharged because for cause may arise from this testimony. How-
52 See Southern Silk Mitts, Inc, supra: Ozark Hardwood Compau,j, supra: East Texas
Steel Castings Co, supra It should also be noted that at Mastro he worked an 8-hour
day shift
1386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ever, the burden being on the Respondent , I find the testimony inadequate to prove
preponderantly that Paul was, in fact, discharged for cause . I take into considera-
tion the fact that he was not a young man and that perhaps his work, though not
unsatisfactory, might not have been rapid enough for the foreman. Thus, Paul
would not be removed from eligibility for backpay.
Thereafter, Paul was unemployed until he found work with a firm called American
Cystoscope Makers in August 1952. From the time that he left Metro until
the time that he went with American Cystoscope, he searched for work, registered
with the State employment service, and received unemployment compensation checks.
Again he testified with regard to his extensive search for work and was able to name
a number of places together with dates where he did look for work and what
he did otherwise to find work. In obtaining the American Cystoscope job, he paid
the sum of $21 as a fee to a private employment agency which fee I allow as proper
under the circumstances . Sometime in March 1953, Paul was ill for approximately
a week and when he came back he was laid off. It might have been that his illness
was the cause of the discharge but this is not made clear from the record. Accord-
ingly, I do not find that Paul was discharged through his own fault
Paul was then unemployed for several weeks during which time he again made
an adequate search for work and from the New York State Employment Service
was referred to a job at Empress Novelty Company. He was hired by that firm
but was let go a few weeks later because he was unwilling to work overtime at night
with no pay whatsoever for the extra time. In other words his hours of work were
stretched out with no increase in pay I find that his quitting under these circum-
stances was excusable and that again he was not cut off from backpay.
Paul had several other employments, some of them seasonal, during the balance
of his backpay period and the only job he turned down was one which offered a
seasonal job at $125 a month at a place too distant from New York City for him to
commute. He would have had to move there for the month for this very small
amount of pay. I do not find that Paul lost his right to backpay because of his re-
fusal to accept this job.
Accordingly, I find that on the basis of all of the foregoing, Paul did make an
adequate search for work and that each time that he quit a position which might
otherwise have been a substantially equivalent position to the one he had before
the discrimination at Mastro, he did so for good reason and, therefore, I find that
Paul is entitled to the full amount of backpay claimed for him, the sum of $10,096.97.
42. Richard Pellay
The gross backpay claimed for Pellay is $7,680.65. Having had no interim earn-
ings whatsoever during the backpay period, Pellay's claim for net backpay is the
same as the claim for gross backpay.
At the time of the strike at Mastro, in which Pellay participated, Pellay had been
employed in the injection molding department. His shift was in the evening and he
was attending the New York University College of Engineering in the daytime
hours After the strike ended, and the Respondent refused to reinstate Pellay, he
continued on with his school under the GI Bill, and did not seek any other work.
Therefore, no claim for backpay is made from the date on which Pellay's backpay
period starts until the second quarter of 1953 at which time Pellay was forced to give
up his studies because he no longer qualified for schooling under that bill.
Pellay testified, without contradiction, and I credit him, to the effect that even be-
fore he finished school or before he ended his schooling, he commenced to look for
work through interviews on the campus conducted for applicants in the Engineering
College with a view toward employment after the course was completed. He applied
to over 25 various companies during that time and specifically mentioned such com-
panies as Dupont, I.B.M., U.S. Rubber, Otis Elevator, and General Electric. He
received acknowledgment from only one company, Dupont, which stated that his
name would be kept on file. All of these applications were for professional en-
gineering jobs as contrasted to the semiskilled job which he had held at Mastro.
After leaving school, and in addition to the applications aforementioned, Pellay
made application through private employment agencies for engineering positions
and answered ads which he read daily in the New York Times, also for engineering
positions. All of these requests for jobs made by Pellay were for positions of a
professional engineering nature. None of them were for positions comparable to
the work he was doing at Mastro. In fact, Pellay testified that for the 3-year period
and the 12 quarters for which request for backpay is made on his behalf he could
remember only three applications for jobs in the plastics field at various plants
within the area of his home. These plants were located in New Rochelle and Pel-
ham, New York. Otherwise, Pellay's testimony emphasized the fact that all of
MASTRO PLASTICS CORPO1tATION, LTC. 1387
the other positions for which he sought diligently for work were for engineering
positions.
Pellay further testified that during this time he did not on any occasion apply
for assistance at the New York State Employment Service. His reasons for not
doing this were twofold. He did not believe he was entitled to any benefits and
the service did not, in his opinion, cater to professional employees. Pellay further
testified that his efforts to find work, as outlined above, continued during the entire
backpay period but he was exceedingly unsuccessful. He attributed this to the fact
that with regard to the jobs in the three plastics plants he believed, but nothing that
he testified to proved, that he was unable to get work in the plastic-molding opera-
tion or in the type of operation which he had performed at Mastro because of the
fact that he had picketed against Mastro. With regard to the engineering jobs, he
testified that this was the immediate post-Korean war period when positions in the
engineering field were very difficult to obtain and that this condition continued for
several years. He also stated that the longer he was out of work, the more difficult
it became for him to obtain work since he could not account for the time or
give good reason why he could not find work. As a result, each succeeding appli-
cation, according to Pellay, became more and more difficult and more and more un-
successful. Ultimately, the backpay period ended with Mastro offering Pellay
his job back and Pellay accepting the same. Accordingly, he went back to Mastro
to perform the same type of duties he had performed before the discrimination
against him.
From the foregoing I conclude that Pellay made diligent efforts to find work.
However, his case presents a problem for the reason that the work which he sought
for the most part was work on a far higher level than he had performed at Mastro.
In other words, he had set his sights much higher than he would have had to set
them had he deliberately set out to find the type of work which he had performed
at Mastro. While I do not believe that he should be penalized for seeking work of
a nature which was higher both in possible monetary income and social standing
than he had before or, for that matter, educating himself to such a position, neither
do I believe it equitable to fully charge the Respondent for the support of Pellay
during a period when he literally removed himself from the same labor market which
he had been in when he worked for Mastro. As noted above, the only jobs which
he sought which were equivalent to the Mastro job were the three positions applied
for in the plastic industry over a 3-year period.
While the Board recognizes no specific duty upon a discriminatee to lower his
sights in searching for work after a lengthy period of unsuccessful search in his own
field of work,53 I do believe that where he sets his sights higher than the level at
which he formerly performed he can do so for only a reasonable time at which point
he must return and make a full-scale effort to find employment in the type of work
or the grade of work which would be equivalent to the position he formerly held
What constitutes a reasonable time under such circumstances is difficult to ascertain.
As stated above, Pellay testified that in the post-Korean war period there were few
jobs available during a 2-year period following the Korean war for professional
engineers. It would seem that this being so it would be apparent to the reasonable
man that after a year's effort to seek employment at the higher professional level, he
would then be under an obligation to make a concerted effort to find other work at
a less ambitious level. Otherwise, the situation presented here would be tantainount
to the Respondent underwriting the cost of Pellay's initiation into a field of endeavor
which was very difficult with regard to getting a start when jobs in less ambitious
areas might have been available.
It should be noted that Pellay was within several credits of receiving his engineer-
ing degree when his rights under the GI bill ran out. Accordingly, he was undoubt-
edly equipped to perform any number of engineering type jobs less than of a pro-
fessional nature. Nowhere in his testimony does Pellay allude to the finding or
to the seeking of such work. Accordingly, I find that after the first year of unsuc-
cessful search for professional engineering positions Pellay should have sought
other types of employment. Therefore, I shall disallow all of the requested backpay
set forth in the specification which is not included in the first year after Pellay left
school.
Accordingly, I would award to Pellay gross and net backpay for the second quarter
of 1953 in the sum of $150, the third quarter in 1953 in the sum of $657 50, the
fourth quarter of 1953 in the sum of $695 and the first quarter of 1954 in the sum
of $666.60 for a total of $1,869.10. I would disallow the entire remaining amount
set forth in the specification for the reasons set forth above.
0 Southern Silk Mills, Inc., supra; Moss Planing Mill Company, 110 NLRB 933.
1388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
43. Elizabeth Petrus
Like Pellay, Petrus had no interim earnings during the period for which backpay
is claimed for her. Accordingly, gross backpay and net backpay claimed are the
same and total the sum of $5,681.10.
Although Petrus had no interim earnings her uncontroverted testimony showed
that she continuously searched for work from the end of the picketing at Mastro
until she became ill in the early part of 1954 and removed herself from the job
market. For the period from June 20 to August 20, 1952, she remained at home
to nurse her husband who at that time was ill. No backpay is claimed or given for
this period.
When the statutory waiting period was over, Petrus immediately registered at the
New York State Employment Service, first in Manhattan and then in the Bronx.
She reported back to the Madison Avenue office where she was referred to several
jobs at each interval that she was instructed to do so and never refused to go out
on a referred job. However, except for one position at Jasco Manufacturing Com-
pany she was never given an offer of a job by any potential employer She was
offered a job at Jasco which was located in the cellar of a building, was lit artificially,
and had a dirt floor. This suggested an unpleasant and probably unhealthy place
to work. Moreover, the job offered at J,asco paid only $24 a week whereas at Mastro
she had been earning $34 a week. Because of these varied reasons, she refused to
accept the employment offered by Jasco.
Aside from the referrals by the New York State Employment Service, Petrus made
daily attempts to find work Thus, she registered at several agencies, one of them in
the Bronx and four on Warren Street in lower Manhattan. She went to all of these
places a number of times. In addition, she personally went out to possible places
of employment that she heard about. Among them were such diversified employers
as A & T Warehouse in the Bronx, Sachs Furniture Warehouse in the Bronx, Ward
Lennord Electric Company in Mount Vernon, the New York Telephone Company
in the Bronx, a television tube manufacturer in Manhattan, the name of which she
could not remember, Alexander's Department Store in the Bronx, a Goldfob Plastics
Company in the Bronx, Arden Candy Company in New York, American General
Thermostat Manufacturing Corporation in the Bronx, Electrical and Chemical En-
gineering Company in,the Bronx, and other places which she could not remember.
She went out each day looking for work during the entire period between the end
of the Mastro strike and the time she removed herself from the job market In
addition to all of the foregoing, she read the New York Post and the New York
Journal American every day and checked the want ad section for job listings. When
she saw something that she thought she could do, she went out to the place listed.
Nevertheless, despite all these efforts, she was unable to find work.
Under circumstances such as the foregoing, where there were jobs in the market
but the applicant is unsuccessful for a period of 3 years, an inference could be made
that the requisite search for work had not been made However. a further considera-
tion at Petrus' testimony explains reasons for her failure to obtain work. Petrus
testified that she did not go beyond the eighth grade in school in her native Pennsyl-
vania and was married at the age of 17. Also, in her entire life she never did any
form of work whatsoever outside of the home until a short period of time before
she obtained her position at Mastro. Then she worked as a packer for less than a
year. After this firm moved to Brooklyn from the Bronx and she could not com-
mute to Brooklyn, she left her job and registered with the New York State Employ-
ment Service which referred her to Mastro. Mastro hired her as a packer.
Consequently, the only experience that this woman had, although by the time
of the Mastro strike she was 37 years old, was less than a year's experience as a
packer in an industrial plant. Moreover, she was probably beyond the age limit
where an employer could profitably take her on as a trainee of any sort. At her
age, without any acquired skill, the seeking of work is undoubtedly a difficult task.
With this explanation, and the fact that the Respondent on cross-examination was
unable in any way to cast doubt or reflect out upon Petrus' testimony as to the
efforts she made to seek employment, it must be concluded that her long and
unsuccessful efforts were actually made.
Respondent inferred that Petrus could have lowered her sights and perhaps sought
domestic work, for, as a mother and a housekeeper, this was a field with which she
was well acquainted. I do not find that it was necessary for Petrus to enter the
domestic servant field in order to satisfy the requirements of a reasonable search
for work. Her testimony, uncontroverted as it was, pointedly demonstrated that the
sought emplovment in any umber of industrial and retail establishments. The list
is diversified and demonstrates that there was no hesitancy upon her part to change
her line of work. Her willingness to accept work and to seek work went beyond
MASTRO PLASTICS CORPORATION, ETC. 1389
that which was necessary to establish reasonableness . The fact that one field of
endeavor was overlooked , whether deliberate or not, would not be sufficient to dis-
qualify this discriminatee from backpay.
Accordingly, on the basis of Petrus' testimony, I find that she is entitled to the full
amount of the backpay which is claimed for her in the sum of $5,681.10.
44. Peter Pieroni
The gross backpay claimed for Pieroni is $15,763.53 against which there is credited
$14,047.50 interim earnings for a net backpay claim of $1,746.03.
Peter Pieroni was employed during the entire backpay period. He testified that
a couple of weeks after he quit picketing at Mastro at the end of the strike, and
Respondent's refusal to reinstate him, he obtained a job at Machinery Builders, Inc.,
in Bronx, New York, where he was assigned to the night shift and where he earned
a salary in excess of what he would have made at Mastro. He worked at Machinery
Builders until the end of May 1951, at which time without any loss of overtime he
accepted appointment as a policeman with the New York City Police Department.
No claim is made for the second quarter of 1951 on behalf of Pieroni so it may be
assumed, although it does not appear in the testimony, that his earnings at Machinery
Builders, Inc., were at least equal to what he would have made during the same
period at Mastro Plastics. He has worked for the New York City Police Depart-
ment and was still working for the New York City Police Department from the
time of his appointment on or about June 1, 1951, until and including the date of
the hearing.
The issue as to Pieroni is whether his acceptance of the position with the New
York City Police Department cut off his backpay because the backpay claim for
Pieroni is based for the most part upon the claim that he made less as a policeman
that he would have made at Mastro Plastics.
As stated above, the General Counsel contends that Pieroni had the right to leave
his employment at Machinery Builders to accept employment with the New York
City Police Department because the Machinery Builders job was a night job and
he had worked on the day shift at Mastro. If Pieroni had left that position at
Machinery Builders to accept a job where he would have worked only days, then
there might be some merit in the General Counsel's contention. However, it is
apparent that policemen do not work only during the day. It is a fact of which
I will take cognizance that policemen not only work on a night shift for a good
part of their employment time but also work on Sundays, Saturdays, and holidays.
But above and beyond this, the item which considered in all objectivity seems to
indicate that Pieroni actually abandoned the job market is the fact that he took
the exam for the New York City Police Department some 6 months to a year prior
to the discrimination against him at Mastro. New York City Police Department
exams are not to be taken lightly. They are difficult and much study and prepara-
tions are made for them. Accordingly, I do not accept the General Counsel's theory
that Pieroni merely took the police exam to have a number of applications and to
play one employer off against another I conclude that Pieroni wanted to become
a policeman and, therefore, when he accepted the appointment which was the first
one offered him after he took the exam he ended his claim for backpay. The fact
that he left a better-paying job to accept the job on the police department is another
factor in my decision. And, as stated above, I do not find merit in the argument
that the job at Machinery Builders was a night job
Accordingly, I find that Pieroni was entitled to backpay only until such time as he
became a member of the police department and since there is no claim for the
second period of 1951. I recommend an award of backpay to Pierom for the first
quarter of 1951 only. In that quarter Pieroni had a gross backpay due him of $156
and had a net interim earning of $75.08. Accordingly, I recommend that Pieroni
be awarded net backpay in the sum of $80.92.54
45. Rafael Prieto
The gross backpay claimed for Prieto is $7,644.70. He had admitted net interim
earnings of $2,549.25. His net backpay claim is $5,095.45.
51 At the hearing I asked Pieroni the following question: "Had there been no strike at
Mastro Plastics, would you have accepted employment at the police department," His
answer was "No " Upon objection of the General Counsel that this was quite hypothetical
and conjecture, I struck the answer and the question The Respondent made no effort to
enter into the discussion on this matter Accordingly, I have not considered Pieroni's
answer in making my decision herein
1390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Of the 13 quarters comprising Prieto 's backpay period , he was gainfully em-
ployed at some time in all of the quarters with the exception of 2. However, his
periods of employment were, for the most part, very brief. Thus, between March
1951 and March 1956 , Prieto had 23 different employers . To name them all here
in chronological order and the periods during which Prieto worked for each would
unduly lengthen this report . Suffice it to say , except in one instance , Prieto's em-
ployment in no case was self-terminated . In all other cases, Prieto was let go
because he either did not have the experience to qualify for the job or because the
business of the particular firm for which he was employed had slowed down to
the point where they could no longer keep him on the payroll . In most instances,
when he was laid off other employees were laid off at the same time.
The only job which Prieto left voluntarily was the one at Rona Plastics Cor-
poration in the Bronx in which his entire earnings were only $19.80 . He left this
position during the first quarter of 1951 to take a position which he acquirPet
through a Butchers Union because the union job had a higher hourly rate of pay
and, therefore, greater earning potential.
As related above, Prieto's periods of employment were comparatively short. The
longest one was for several months. Prieto testified , without contradiction, that
during the periods of unemployment, he constantly sought work by going to the
jobs that he heard of, by registering with the New York State Employment Service
and going out on jobs to which they sent him, by reading the New York Journal
American and the New York Herald Tribune want ad sections, by going to em-
ployment agencies , and by asking from friends and acquaintances about positions.
Although the period covered was quite long and Prieto could not remember with
any exact definitiveness just as what time and where he had applied for specific
jobs, his testimony was sufficient to show that he was looking for work whenever
he was out of work.
The short periods of employment interspersed with sometimes longer periods
of unemployment are explained to a certain extent by the fact that Prieto was an
uneducated individual having reached only the fifth grade in school in his native
Puerto Rico He came to the mainland as a very young man without any ex-
perience other than as the helper on a truck which had belonged to his brother.
He had had a job as a polisher of shaving brush handles prior to his employment
with Mastro and this constituted his sole experience as an employee prior to his
Mastro employment . In addition thereto, Prieto's command of the English language
was poor. These factors, his lack of education , his lack of training in any par-
ticular fileld of endeavor, and his inability to speak English all contributed to his
periods of unemployment and explained the same It should be noted that Prieto's
employment was in a variety of industries showing that he did, in fact, try to
employment of any type he could get. Thus, he worked for a plastic firm, a
number of meat firms to which he was referred through a Butchers Union, in boat-
yards as a painter, as a polisher in a flashlight manufacturing plant , in a candy
company, at a sandwich stand, and as a drill press operator in a lock manufacturing
company. The last position he held just prior to the end of the backpay period
was a a trainee in a laundry company to work at the counter to accept clothes. But
he lost this job as a result of his inability to speak English.
Accordingly, although Prieto was eminently unsuccessful in finding permanent
employment, he nevertheless made the necessary search for work to constitute a
good-faith effort to mitigate the backpay due from the Respondent. Accordingly,
I find that Prieto is entitled to the full amount of net backpay claimed for him, the
sum of $5,095.45.
46. Antoinette Radice Cassanelli 85
The gross backpay claimed for Cassanelli is $2,031 .70. The interim earnings,
which are admitted, are $1,582.24. The net backpay claim is the sum of $449.46.
The specification claims only four quarters during the backpay period during
which it is contended backpay is due, the last being the first quarter of 1952. Pre-
sumably, thereafter Cassanelli 's earnings were greater than they were at Mastro
and, accordingly, her backpay would be cut off at that point. The four quarters
for which claim is made are the second quarter of 1951, the third and fourth quarters
of 1951, and the first quarter of 1952, during all of which she was employed at least
part of the time She found a job prior to the beginning of the backpay period at
Commercial Decal, Inc., of Mount Vernon, New York, and worked there until
she was laid off for economic reasons sometime in August 1951 . From August
55 Cassanelli ' s name appears as Antoinette Radice in the Board's Order [103 NLRB 511]
MASTRO PLASTICS CORPORATION, ETC. 1391
until October of that year Cassanelli was unemployed and then she obtained a job
at Norma Jewelry Corp. in New York City. She further testified that she was
employed at Norma for the balance of the backpay period.
Cassanelli testified that during the period she was unemployed, for which claim
is made on her behalf, she looked for work by reading the want ads in the news-
papers and answering such want ads, and also asking friends and other acquaintances.
She also registered with the New York State Employment Service and reported
there when necessary. She further testified that during the period of employment
she spent approximately 40 cents a day for fare to go places where she sought em-
ployment. The total expenses claimed were $20 for the period covered which I find
to be reasonable.
Accordingly, and in accordance with all the foregoing, I find that this claimant
made an extensive search for work during her unemployed period and that her
employment record shows that she made a good-faith search for employment.
Therefore, I find that she should be paid the sum requested in the specification,
$449.46.
47. Patricio Rivera
The gross backpay claimed for Rivera is $6,138.23; the net interim earnings which
are admitted are $3,586.38; and the net backpay claimed is $2,551.85.
The specification asks for backpay for Rivera for only nine quarters during the
entire backpay period. Of these nine quarters Rivera had interim earnings of
fairly substantial amounts in all except one, the third quarter of 1955 when he had
no interim earnings. He testified that during this period he was unemployed.
Rivera testified, without contradiction, that during and immediately after the
picketing at Mastro he sought work. He registered at the Kling Agency in the
Bronx, which agency had originally referred him to Mastro. He also applied for
jobs at several plastics companies in the Bronx and in Jamaica, New York, but
was unsuccessful in obtaining work there. Accordingly, in the first or second week
of March 1951 when he heard through a friend of a job with the Long Construction
Company in Santurce, Puerto Rico, he went back to Puerto Rico and was there only
a short period of time when he was put to work by Long, he having arranged to
work at Long before he left New York for Puerto Rico. Rivera worked at Long
Construction until the end of 1951 when he was laid off for lack of work. At that
point he immediately came back to New York and almost immediately obtained a
job with Edward Gross Corporation, a picture frame company in Manhattan. The
record does not show how long he worked for this firm but the period was lengthy.
Next he worked for a Railroad Manufacturers Company in Hoboken, New Jersey,
and also for an Olympic Container Corporation in that area.
All of these jobs were more or less in the construction field and from that point
on through the end of the backpay period, Rivera's work was in the construction field
and he was out of work only when he was laid off and was forced to apply for other
jobs
Rivera further testified that during any period of layoff he looked for work con-
stantly reporting to a street corner on Long Island at 105th Street and Liberty Avenue.
This evidently was a meeting place where individuals who desired work in the con-
crete or construction industry met with possible employers and from which appli-
cants were picked up and sent out to jobs. Rivera also testified that during periods
of unemployment he registered at the Kling Agency, at the New York State Employ-
ment Service, and even went to look for work in Connecticut when one of the jobs
be was on was closed down by a strike. He worked in the Stratford, Connecticut,
area for approximately 2 weeks and then came back to New York when the job which
was struck was reopened.56 Rivera also testified that when he registered with the
New York State Employment Service on Fulton Street in New York City, he was
referred back to his local union which evidently had a hiring hall but from which he
was never referred to work. He stated that he obtained all his jobs on his own at
the street corner or from friends.
His testimony was uncontroverted. Even on cross-examination it was brought out
that he attempted to find work every time that he was laid off. Because of his employ-
ment record, because he testified that he always looked for work, which testimony
was uncontradicted, because his claim was only for nine quarters during which he
had some interim earnings in every quarter but one, I find that Rivera made a good-
faith search for work at all times and is entitled to net backpay in the sum of
$2,551.85.
Go it should he noted that Stratford, Connecticut, Is in the Bridgeport area and is not
far from New York.
1392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
48. William Sandhop
No backpay is claimed for Sandhop until the fourth period of 1954 inasmuch as
Sandhop was in the United States Air Force from January 3, 1951, until December 15,
1954. The gross backpay claimed in the specification for Sandhop is $2,185. There
are admitted net interim earnings of $1,574.37 resulting in a net backpay claim of
$610 63.
Sandhop testified that when he left the Army he began searching immediately for
work. He applied to such firms as General Electric, Consolidated Edison, and Bell
Telephone in Manhattan. He also responded to newspaper advertisements and ap-
plied for a lob at the American Automobile Association in response to one such
advertisement. Sandhop also registered and applied for work at agencies on Warren
Street in Manhattan None of these attempts at findings jobs were successful al-
though he was offered a job in Ohio by the General Electric Corporation. How-
ever, Sandhop refused to accept this job because he did not desire to relocate in
Ohio, he having been a Bronx resident all his life.
Finally, after applying for work as testified above, Sandhop obtained a job at
the American Bank Note Company starting between January 3 or 5, 1955, and he
was still employed there at the date he testified. Actually, Sandhop was unemployed
only from December 15, 1954, until early January 1955 so that his period of unem-
ployment for which backpay is claimed is very, very slight. Moreover his testi-
mony established that he searched for work during that period. Also the only other
three periods for which backpay is claimed on Sandhop's behalf are the first three
quarters of 1955 during which his earnings at American Bank Note Company were
not as great as they would have been at Mastro had there been no discrimmation
against him.
With regard to Sandhop's refusal to leave the New York area to go to Ohio to
accept a position with the General 'Electric Corporation, I find that he was under no
obligation to do so The Board has held that a discriminatee who is unable to find
work is not under a duty to relocate in an area away from that in which he has
lived and worked for the Respondent. His duty to mitigate the backpay liability
does not extend to that extent.57
Accordingly, I find that Sandhop is entitled to the full amount of the net back-
pay claimed for him in .the specification in the sum of $610.63.
49. John Saxton
The gross backpay claimed for Saxton is $8,870.86; the net interim earnings
claimed in Saxton's case are $4,755.88 and the net backpay claimed is $4,094.98.
For some time prior to the hearing and at the time of the hearing, Saxton had
been suffering from and was being treated for a nervous disorder This apparently
affected his memory to the point where, at best, Saxton's testimony was very vague
with regard to the persons for whom he worked and the places where he sought
work. It was also somewhat vague with regard to the means which he took to find
employment.
Saxton's employment record is rather spotty although up until the third period
of 1955, in almost every quarter from the date of the discrimination against Saxton
the latter had had some interim earnings and some employment The number of
employments were for the most part of rather short duration. For instance, Saxton
worked for one firm for 1 week. That was the first job which he obtained after the
discrimination.
Saxton did testify, that he made efforts to find jobs by going out each day
during periods of unemployment and looking for work in and about the New York
metropolitan area. Sometimes he made as many as two and three trips a day to
various prospective employers spread out in various parts in the city.
Saxton also testified that he registered at a number of agencies, one of them the
Kling Agency in the Bronx, and another agency on Warren Street in lower Man-
hattan. He stated that a number of jobs such as the Edy Brush Company, the Plas-
ticite Corporation job, he "bought" from the Kling Agency He also testified that
he each day read the Journal American and the New York Times and that on 5
or sometimes 6 days a week he would go out looking for work in answer to the ads
and call upon the various agencies. Additionally, from time to time Saxton registered
and reported to the New York State Employment Service, but they never referred
him to a job which he could obtain.
Saxton could not remember during which periods of employment he registered
with the New York State Employment Service and he was unable to testify with any
54 See American Bottling Company , 116 NLRB 1303, 1306
MASTRO PLASTICS CORPORATION, ETC. 1393
specificity with regard to the dates between which he worked for any single employer.
He was in some cases able to fix the year such as the David Linzer & Sons job, which
he obtained sometime in 1951 and kept through the balance of that year into the
first part of 1952. Saxton also testified that he paid union initiation fees and dues
when he became an employee of the Plasticite Corporation and that when he lost
that job the union did send him out on a few jobs but that he was never able to
fill the job.
Accordingly, although Saxton's testimony was rather vague, since the earnings and
the employers were admitted by the Respondent, I find that there is sufficient cor-
roboration of Saxton's testimony to consider proved his attempts to find work.
However, there is another element with regard to Saxton which must be con-
sidered here in granting him or refusing to grant him backpay. As heretofore stated,
Saxton suffered from a nervous condition which evidently dated back a number of
years. For instance , when he was asked how he happened to leave the Linzer &
Sons job he stated, "I don't know. I get nervous sometimes and I do things. I do
a lot of quitting of my jobs " This would seem to indicate that even where Saxton
did procure a job equal to the job he had held at Mastro, that he might have left
the same without just cause and thereby have cut himself off from further rights to
backpay. Since the reason for the leaving of the Linzer job could not be specifically
established, I do not find that he left that position without cause.
There is also some question as to why he left the Plasticite job which may be
considered as equivalent to the job Saxton held at Mastro. He testified that he left
the employ of Plasticite when he was fired for going to the men's room without
being relieved and leaving his machine unattended. He further testified, however,
that he could remember the incident and that it had arisen out of the fact that he
had asked for relief a substantial period of time before and that the foreman had
merely laughed at him and had refused to do anything about it. Saxton testified
further that finally, in desperation, he had to leave the machine and when he returned
to the machine he was discharged. I believe that under the circumstances, it could
not be said that he was at fault or that he thereby cut off his rights to backpay.
However, I find a different situation with regard to his leaving the Edy Brush
Company job. He first obtained a job with Edy Brush Company, which he
"bought" from the Kling Agency. When asked how he happened to leave the Edy
Brush Company job, Saxton said that a foreman told him to close the door speaking
to him "as if I was a slave or something"; that, therefore, he walked out on the
job for being spoken to in that way. He left that job on April 22, 1955.
Realizing full well Saxton's nervous condition which might or might not have
dated back to the year 1955, I cannot nevertheless justify recommending backpay
to Saxton after this position. The Edy Brush job paid him almost as much money
during the first quarter of 1955 as would have his Mastro job with all the incre-
ments of pay which he might have earned had he not been discriminated against.
Accordingly, I find that the Edy Brush Company position was substantially equivalent
to the position that Saxton held a Mastro. Therefore, when he left Edy Brush Com-
pany merely because he felt he was spoken to like a slave, he did so at his own peril
and in my opinion, despite his mental and emotional condition, effectively ended his
qualification for backpay. I, therefore, allow the full amount of gross backpay
and credit Saxton for the interim earnings and the expenses which he claimed he
incurred up to and including April 22, 1955, and will not recommend that he be
awarded backpay from that date.
According to the specifications up to that date he had a gross backpay of
$5,786 42.58 The admitted net interim earnings which include the allowances for
expenses which I find reasonable under the circumstance for the period during
which I am recommending backpay for Saxton totals $4,604.47.59
Thus, the gross backpay less the net interim earnings allowed result in a net
backpay figure of $1,181.95, which I recommend that the Board order the Respondent
to pay to Saxton.
50. Ruth Shaw
The gross backpay claimed for Shaw is $3,189.10, the net interim earnings, which
are admitted, are $272. 81, resulting in a net backpay claim of $2,916.10.
58 For the second period of 1955, in which April 22, 1955, falls, I gave Saxton credit for
one-third of the gross backpay which is credited to him in the specification for that
period. The gross backpay credited in the specification is $650, and, accordingly, I gave
Saxton one-third or $216 66
6e This includes all net interim earnings up to and including the Edy Brush Company
job
1394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shaw's backpay claim extends for seven quarters beginning the first quarter of
1951 and ending the first quarter of 1954 at which time she secured employment
substantially equal to her employment at Mastro and retained the same through the
end of the backpay period. However, at the beginning of this backpay period
Shaw's employment record shows that she had difficulty m obtaining employment.
Thus, for the first year of her backpay period Shaw had only $105.81 in earnings.
Whether this indicated a lack of application for work can be determined only from
Shaw's testimony.
Thus, Shaw testified that she picketed at Mastro until the end of the strike in
March 1951 and commenced looking for work thereafter. She registered with the
State employment service as soon as she was permitted to do so She also regis-
tered at the Kling Agency in the Bronx and read the want ads of two daily news-
papers, the Post and the New York Times. The Kling Agency obtained a job for
her with Kenyon Transformer Co., Inc., in May or June 1951 and after about 3
weeks in that job she was laid off for lack of work. Thereafter for almost a full
year Shaw was out of work. She testified that all during this period of time she
answered want ads, went back to the State employment service to get referrals, and
took other steps and means to obtain employment. However, she was unable to
state a single place at which she had made application for employment during this
period of time. This is typical of Shaw's testimony with regard to her applications
for work at any time during a period during which she was laid off. She was
unable in a single instance to name an employer with whom she made application
for employment.
On the other hand, Shaw insisted that she did make trips all about the city to
look for work at least two or three and sometimes four and five times each and
every week that she was unemployed. Finally, when she found that she was
unable to get work she decided that she would go to some kind of school to learn
a trade. Ultimately, she went to the Burroughs School where she took a course in
operating business machines. This course was of approximately 5 weeks' duration
after which she was immediately sent by the school to a job which she obtained
with Jaunty Juniors, Inc., in New York City. She stayed with Jaunty Juniors until
one of the partners died and the firm' s business slowed up to such an extent that
there was no longer any need for Shaw' s service . Other employees were laid off at
the same time.
After approximately a period of 9 weeks of unemployment during which Shaw
had 1 week with a firm which she called Junioresque, she finally obtained employ-
ment with a company called Jomax Frock, Inc., and stayed at Jomax for the
balance of her backpay period. She states that she only worked at Junioresque
for a very short period of time, because she was forced to work in a windowless
alcove, away from everyone else, where it was airless , windowless, dreary, and un-
sanitary and, therefore, unhealthy. I find that she had a right to leave this position
and that she did not cut off her backpay qualifications by so doing.so
I find that from the foregoing Shaw made an adequate search for work. While
it is true that her testimony was rather vague, to a certain extent this can be ex-
plained by a lapse of time from the discrimination when she started to look for
work and the time that she testified at the hearing, a period of almost 10 years.
Moreover, it should be noted that Shaw evidently did attempt and wanted to find
work or she would not have gone to bookkeeping machines school.
In connection therewith, it should be noted that Shaw paid a $75 fee as tuition
at the Burroughs School She testified that she paid $15 to King Agency for the
Kenyon Transformer job. Thus, the $75 tuition she paid to the Burroughs School
was very little more than she would have paid for a reference to a job by a pro-
fessional employment agency. After graduation from Burroughs, her references
to jobs from Burroughs enabled her to stay almost steadily employed. This being
so, the $75 tuition is a legitimate expense, a fee for the obtaining of a position.
Because the amount is small and entirely reasonable in view of the amount of back-
pay which Respondent would have owed had Shaw not been able to obtain employ-
ment through the Burroughs School, I find that is a proper item to allow as an
expense.
Accordingly, I find that Shaw would be paid the entire amount of the net backpay
claimed for her in the specification, the sum of $2,916.29.
51. Estelle Sills Sanzano
The gross backpay claimed for Sanzano is $10,374.02, the net interim earnings are
$8,329.40 and, therefore, the net backpay claimed by the specification is $2,044.62.
00'Southern Silk Mills, Inc, supra , East Texas Steel Castings Co., supra.
MASTRO PLASTICS CORPORATION, ETC. 1395
Sanzano's only quarter of complete unemployment was the second quarter of
1951. Therefore, for the most part, her claim is made up of the difference between
her earnings during each and every quarter of her backpay quarter period, the
amounts that she would have made had she not been discriminated against by
Mastro. It is also significant to note that during the entire backpay period she
had only three employers.
The first job after Mastro was with a firm called Gaston LaPerche which job
lasted only a few days and she earned only $22.50. This was in the third quarter of
1951. Sanzano's time until then is accounted for by the fact that she was away
from the job market having had a child sometime in the period between the begin-
ning of the backpay period and the third quarter of 1951.61
Sanzano went from the Gaston LaPerche to the Woltra Company in New York
City and worked for Woltra until the fourth quarter of 1952 at which time she went
to the Dayfox Realty Corporation. After several weeks and with no loss of earn-
ings, Sanzano went back to the Woltra Company where she worked until the end of
the backpay period. Her earnings were not equal to the earnings that she would
have had at Mastro, but she was fully employed and showed that she wanted to be
employed. I find that her efforts for employment were sufficient to qualify her for
the net backpay difference between the amount she would have made at Mastro and
the amount that she actually earned.
Accordingly, I would recommend that Sanzano be paid the net backpay of
$2,044.62.
52. Madeline Smolen
The gross backpay claimed for Smolen is $1,557.57, the net interim earnings
claimed are $1,325.78, resulting in a total net backpay claim of $231.79.
After the picketing stopped at Mastro in March 1951, Smolen immediately began
to look for work and after 2 weeks of searching obtained a job at the American
General Thermostat Corp. She retained that position during the balance of her
backpay period which ends during the first quarter of 1952. She incurred about
$8.80 in expenses during the 2 weeks of search which I find reasonable.
I find that from the foregoing record Smolen made an adequate search for work
and recommend that she be paid the net backpay claim of $231.79.
53. Frank Squillante
Backpay is claimed for Squillante only for four quarters during the backpay period
and in each of those four quarters Squillante had some employment. The gross
backpay claimed for Squillante is $3,020.30; the net interim earnings total $2,747.70
and the claimed net backpay is $272.60.
Squillante was employed by the Barret Mirror Corp. before the end of the strike
and continued at this work until he was laid off after about 6 months. At that point
Squillante went to work almost immediately for Wright Aeronautical Corporation at
Woodbridge, New Jersey. He left the Wright job because it was a night job as
compared to the other jobs which he had during the day.62 In addition thereto, the
Wright job required 1 hour travel time each way whereas formerly his travel require-
ments,were only 15 minutes each way. He left Wright Aeronautical as aforesaid
and after 1 week of unemployment during the second period of 1951, Squillante
went to work for Aircraft Hardware Manufacturing Co, Inc, in New York City
and worked there for the rest of the backpay period. Actually, Squillante's back-
pay claim covers only the second quarter of 1951 and the first, second, and fourth
quarters of 1955 when Aircraft Hardware Manufacturing employees were reduced
in time. Therefore, his earnings fell below what he would have earned at Mastro dur-
ing the same period.
I find that Squillante made a sufficient search for work and had a sufficient work
record to entitle him to backpay for almost the entire period claimed. At the close
of the hearing the Respondent made a motion to delete from Squillante's backpay
1 week salary for lost time between his leaving Wright Aeronautical until he started
to work for Aircraft Hardware on the ground that Squillante should have waited
until he obtained the Aircraft Hardware job, in that he was told that he would
get such job in time. With regard to this quesition as to whether or not Squillante had
the right to leave Wright Aeronautical until work was ready to start at Aircraft
Hardware, I agree with the Respondent. It was true he had been promised work at
Aircraft Hardware but, nevertheless, he did not know exactly when it would occur
and he simply removed himself from the job market for a period of I week.
ei No claim is made for backpay for the first and second quarters of 1951
It should be noted that Squillante at that time had very young children
641795-63-vol. 136-89
1396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, I shall disallow 40 hours of gross backpay. Since at that time his rate
at Mastro would have been $1.25, I shall deduct from the net backpay claimed the
sum of $50 which will leave a net backpay in the sum of $222.60, which I recom-
mend that Squillante be paid.
54. Frank Tommarello
The gross backpay claimed for Tommarello is $3,336.63; net interim earnings,
admitted, are $1,229.99, leaving a net backpay claim of $2,106.64.
Tommarello began searching for work immediately after the backpay period began.
As a matter of fact he began to work earlier than March 12. He went to Con-
necticut where he obtained a job with Landers, Ferry, and Clark of New Britain,
Connecticut. However, he left that job after 1 week because his pay of $40 per week
was too low to maintain him at a separate home away from his Bronx home. It
should be noted that at this time he would have been making $55 to $65 per week
at Mastro.
During the next quarter, which was the second quarter of 1951, Tommarello was
unemployed. He read want ads each day in the daily newspapers, he sought informa-
tion from friends, and made personal applications at several plants which he named.
However, he could not remember if he registered at the New York State Employ-
ment Service. A friend then referred him to his next job which was at the American
Banana Company which he began in the summer of 1951 and from which he
was laid off sometime in the same quarter. He then was unemployed until the fourth
quarter of 1951 when he obtained a temporary holiday job at the United States Post
Office, Grand Central Station, New York City. During the second quarter of 1952
he worked for the Improved Ambulance Service for a short period and then obtained
a regular job at the Curtis Wright Corporation in New Jersey. There he had travel-
ing expenses of $16 and $12 for each of two quarters. These traveling expenses I
allow as reasonable. During the third quarter of 1953, Tommarello left Curtis Wright
to open up his own business and his backpay claim ended at that time.
The Respondent offered nothing to show that Tormarello was not entitled to all
of the backpay claimed for him. Accordingly, I find that the backpay claim is fair
and I recommend that Tommarello be allowed backpay in the net amount of
$2,106.64.
55. Leopold Weinberg
The gross backpay claimed for Weinberg is $3,345.20 with net interim earnings of
$3,020.09, resulting in a net backpay claim of $325 11.
Weinberg is a tool- and die-maker and was working at such for Mastro. He
obtained immediate employment after Mastro and worked during each quarter of
the backpay period. The only claims that are made are for those periods above
stated during which his employment as a tool - and die-maker earned him less
than he would have made at Mastro. He had almost continuous employment and
his record and testimony show that during those times when he was unemployed
for even a short period of time during the backpay period he searched for work
and gained almost immediate employment.
Accordingly, I find nothing in the record to support Respondent's claim that
Weinberg is not entitled to backpay as claimed. I, therefore, recommend that Wein-
berg be paid the full amount of net backpay claimed for him, the sum of $325.11.
56. Abraham Zimmerspitz
Gross backpay claimed for Zimmerspitz is $6,541.29; net interim earnings are
$5,063.64; net backpay is claimed at $1,477.65.
Zimmerspitz was employed during every period for which backpay is claimed for
him. Backpay was claimed for Zimmerspitz for nine quarters of the total backpay
period. Zimmerspitz did not testify and it was stipulated that if he had testified,
he would have testified that: 83
Zimmerspitz' first job after Mastro was at Chrystal Plastics for a short time in
the first quarter of 1951 from which job he was laid off during the second quarter of
1951. Mr. Zimmerspitz then obtained a job at Rialto Button & Wood Products Co.,
in New York and retained that job through 1953. During a short layoff he worked
for a Jane Art, Inc., and thereafter was called back to Rialto Button & Wood Prod-
ucts Co., where he remained during the entire balance of the backpay period.
63 Zimmerspitz started to testify but as shown in the record he was suffering from an
inability to hear , and because of this disability , the Respondent 's counsel stipulated that
he would have testified in accordance with the General Counsel's offer of proof which
constitutes the stipulation.
MASTRO PLASTICS CORPORATION, ETC. 1397
I find that under all of the circumstances herein, Zimmerspitz is entitled to the
sum of $1,477.65 as his net backpay and recommend that the Respondent be ordered
to pay the same . 57. Michael Zinzi
The specification claims for Zinzi $6 ,504.62 gross backpay. Net interim earnings
claimed are $3,830.58, resulting in a claimed net backpay of $2,674.04.
Zmzi was unemployed from the time of the end of the strike at Mastro until the
fourth quarter of 1951 at which time he received temporary employment with the
United Parcel Service in New York City. He worked there for the fourth quarter of
1951, the first quarter of 1952, and part of the second quarter of 1952 at which time
he was laid off. Thereafter, he had a very short period of employment with Montuoro,
Contracting Corp. and then during the same second quarter of 1952 obtained a
position with Mutual Electric & Machine Corporation in New York City at which,
work he was employed up to the time that he testified at the hearing herein. There-
fore, except for the first year and part of the second year Zinzi was employed by one.
company and the bulk of his backpay claim is made up of the difference between
what he earned at Mutual Electric and what he would have earned at Mastro.
The only actual question as to Zinzi's entitlement to backpay comes in the efforts
which he made or did not make during the year 1951 after the end of the Mastro
strike. He testified that at all times he was looking for work. Zinzi testified that he
searched in the New York Times each day for work, that he went from plant to
plant, that he asked friends to find work for him and refer him to work, and that he
also registered at New York State Employment Service. However, when asked
what jobs he went out on or what prospective employers he visited to seek jobs, the
only prospective employer which Zinzi could remember was the New York Tele-
phone Company. An assessment of his testimony, therefor, with regard to what
efforts he actually made to find work, would result in the conclusion, at least, that
either his memory was poor or that the passage of time had dulled the same. There
is nothing in the record which would show that he did not search for work during
this period of unemployment. I conclude that his inability to specify the places
where he sought work was due more or less to the passage of time. Certainly his
work record is not that of a man who was not seeking to find work, for after he did
find steady employment at Mutual Electric & Machine Corporation he retained this
job up to the date of his testifying herein. This is not the record of a man who
shirks work.
Accordingly, in view of the fact that Respondent was unable to make any showing
that Zinzi did not search for work, I conclude that Zinzi made a proper search
for employment during the periods of unemployment.
Therefore, I recommend that Zinzi be awarded the sum of $2,674.04 as net
backpay. CONCLUSION AND RECOMMENDATION
Upon all of the foregoing findings, I find and conclude that the employees listed
hereunder are entitled to payment by Respondent of the sums listed opposite their
names:
Morris Brender-------------------------------------------- $16. 87
Joseph Harris--------------------------------------------- 57.94
Connie Koines-------------------------------------------- 53. 07
Anthony Miglidre----------------------------------------- 4.36
Charles Pallina-------------------------------------------- 65.99
Estate of Henry Schultz_____________________________________ 34.27
Estate of Mary Kennedy____________________________________ 1,983.10
Estate of Alexander Unger__________________________________ 2,567.91
Rose Altieri ----------------------------------------------- 5, 285.65
,Maria Joan Americo Adornetto______________________________ 1, 297.55
Rose Amoroso Vitanza_____________________________________ 5,386.47
Jean Bamerman------------------------------------------- 439. 88
James Boyd----------------------------------------------- 3,254.76
Angelo Bruno--------------------------------------------- 826. 96
Flora Capers---------------------------------------------- 230. 97
Luis Cartagena -------------------------------------------- 4,417.92
Michael Cascione 1,334.10
Louis J. Castaldo------------------------------------------ 2,588.98
Gaetano Cheli-------------------------------------------- 572. 24
Joseph Cirillo--------------------------------------------- 140.00
Rose DeMinno ------------------------------------------- 430. 16
Michael De Turo------------------------------------------ 206. 64
Joseph Ebert --------------------------------------------- 1,076.04
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Morris Eskenazi------------------------------------------- $7,233.20
Yolanda Flamio--w--------------------------------------- 8, 816.39
Adelaide Fonagy------------------------------------------ 1,394.68
Fred Franchi--------------------------------------------- 168.08
Dorothy Gheradi------------------------------------------ 3,795.63
Vernal Gibson Fine---------------------------------------- 1,953.77
Gloria Gonzales De Turo---- ------------------------------- 287.65
Bernard Greco-------------------------------------------- 283.16
Evard Green---------------------------------------------- 2,506.10
Louis Hernandez------------------------------------------ 274.81
Lena Maddalena------------------------------------------- 3,042.90
Lillie Maddalena------------------------------------------ 5,228.45
Ralph Maresco-------------------------------------------- 1,468.05
Camille Martone Vaughan- --------------------------------- 580.65
Joseph Matera-------------------------------------------- 2,392.39
Agnes Messina-------------------------------------------- 5,456.45
James Miller---------------------------------------------- 1, 127.74
Mary Occino Schettino------------------------------------- 1,Z36.39
Marie Olker Finelli---------------------------------------- 337.74
Jane Pasculli______________________________________________ 1,301.56
Carmine Pastore------------------------------------------ 2,770.52
Henry Paul------------------------------------------------ 10,096.97
Richard Pellay-------------------------------------------- 1,869.10
ElizabethPetrus------------------------------------------- 5,681.10
Peter Pieroni______________________________________________ 75.08
Rafael Prieto---------------------------------------------- 5,095.45
Antoinette Radice Cassanelli--------------------------------- 449.46
Patricio Rivera-------------------------------------------- 2, 551.85
William Sandhop------------------------------------------ 610.63
John Saxton---------------------------------------------- 1,181.95
Ruth Shaw----------------------------------------------- 2,916.29
Estelle Sills Sanzano--------------------------------------- 2,044.62
Madeline Smolen------------------------------------------ 231. 79
Frank Squillante------------------------------------------ 222.60
Frank Tommarello---------------------------------------- 2, 106.64
Leopold Weinberg----------------------------------------- 325.11
Abraham Zimmerspitz ------------------------------------- 1, 477.65
Michael Zinzi--------------------------------------------- 2,674.04
I recommend that the Respondent deposit in escrow for the persons named below
the sum opposite each of their names under the conditions as hereinabove provided:
Jose Avalo----------------------------------------------- $3,293.72
Luis Diaz------------------------------------------------ 3,874.50
Peter Golpe ---------------------------------------------- 13, 435.43
Isiah Smith----------------------------------------------- 1,196.33
Salvatore Tripolone-------------------------------- -------- 523.00
Henry Vargas--------------------------------------------- 4,207.46
Katherine Crawford---------------------------------------- 11,405.90
Thelma Delbagno_________________________________________ 10,914.02
It is further recommended that the Board adopt the foregoing findings and con-
clusions and order the Respondent to pay to the discriminatees the amounts recom-
mended herein.
Austin Ford , Inc. and Freight Drivers, Warehousemen & Help-
ers Local Union No. 390, an affiliate of International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers
of America , Petitioner . Case No. 12-RC-1244. April 24, 1962
DECISION ON REVIEW
On August 3, 1961, the Regional Director for the Twelfth Region
issued a Decision and Direction of Election in the above-entitled pro-
136 NLRB No. 123.