Brown and Root, Inc.

National Labor Relations Board - Board Decisions

Feb 24, 1965

151 N.L.R.B. 241 (N.L.R.B. 1965)

OZARK DAM CONSTRUCTORS 241
Brown and Root, Inc., Wunderlich Contracting Company, Peter
Kiewit Sons Company, Winston Bros. Company , David G.
Gordon , Condon -Cunningham Co., Morrison-Knudson Com-
pany, Inc., J . C. Maguire & Company , and Chas. H. Tompkins
Co., doing business as Joint Venturers under the name of
Ozark Dam Constructors and Fort Smith , Little Rock &
Springfield Joint Council , A.F.L. Case No. 26-CA-111. Febru-
ary 24, 1965
SECOND SUPPLEMENTAL DECISION AND ORDER
On July 31, 1961, the National Labor Relations Board issued
its Supplemental Decision and Order in the above-entitled case,'
in which it determined that a number of claimants were entitled to
specific amounts of backpay. Among such claimants were 28
individuals who had not testified at the backpay hearing. The
Board ordered that the amounts of backpay due these 28 claimants
be held in escrow by the Regional Director, and that the said
Regional Director arrange to accord the Respondents an opportunity
to examine such claimants as to their interim earnings and activities.
The Board's Order was thereafter enforced by the court of
appeals.2
Pursuant to the Board's Order, upon proper notice issued by
the Regional Director on February 25, 1964, a hearing was held
before Trial Examiner C. W. Whittemore for the purpose of
determining the amounts due 28 claimants. On December 23, 1964,
Trial Examiner Whittemore issued his Decision finding that cer-
tain of the claimants were entitled to specific amounts of backpay,
as set forth in the attached Trial Examiners Decision. Thereafter,
the General Counsel filed exceptions to the Decision and a support-
ing brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the Board has delegated its powers
in connection with this case to a three-member panel [Members
Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and brief, and the entire
record in the case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner.
1132 NLRB 480.
aN.LR.B v. Brows cC Root, /7+c, etc , 311 F 2d 447 (C A. 8.).
151 NLRB No. 29.
783-133--66-vol . 151-17
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
On the basis of the Trial Examiner's Decision and upon the
entire record in this case, the National Labor Relations Board
hereby orders that the Respondent, Brown and Root, Inc., Wunder-
lich Contracting Company, Peter Kiewit Sons Company, Winston
Bros. Company, David G. Gordon, Condon-Cunningham Co.,
Morrison-Knudson Company, Inc., J. C. Maguire & Company, and
Chas. H. Tompkins Co., doing business as joint venturers under the
name of Ozark Dam Constructors shall pay the employees named
below, as net backpay, the amounts set forth opposite their names,
as follows :
Bailey, Benj. W___ $1, 276 Lazenby, A. M_____ $1, 466
Beal, Jones P______ 367 Lynch, S. L.
Blecker, Robert R. (deceased)------ 1, 689
(deceased) ------- 81 Mashaw, J. W______ 66
Carlton, H________ 571 Mashaw, Roy______ 455
Cloven, George____ 208 Mooney, Carl______ 468
Drown, William H. Patton, H. S_______ 455
(deceased)------- 100 Pfingston, Jake_____ 307
James, John H_____ 214 Smith, Elbert C____ 345
Killian, D. E_______ 191 Stone, C. L________ 509
Kyles, Onimus_____ 4, 568 Walker, V. B.
Landry, C. C. (deceased) ------- 157
(deceased)------- 1,093
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
On July 31, 1961, the National Labor Relations Board issued its Supplemental
Decision and Order in the above -entitled case ( 132 NLRB 486 ), in which it deter-
mined that a number of claimants were entitled to specific amounts of backpay.
Among such claimants were 28 individuals who had not testified at the backpay
hearing The Board ordered that the amounts of backpay due these 28 claimants
be held in escrow by the Regional Director , and that the said Regional Director
arrange to accord the Respondents an opportunity to examine such claimants as
to their interim earnings and activities . The Board 's Order was thereafter enforced
by the court of appeals. (N.L.R.B . v. Brown & Root, Inc., etc., 311 F. 2d 447
(C.A. 8).)
Pursuant to notice issued by the said Regional Director, a hearing was held on
February 25, 1964 , at Mountain Home, Arkansas , before Trial Examiner C. W.
Whittemore . At the hearing General Counsel and the Respondents were represented
by counsel.
At the hearing 13 of these claimants , or their heirs, were called and examined
by the Respondents . The hearing was thereupon adjourned , upon agreement of
the parties , in order to permit examination of other claimants by interrogatories.
Since the date of adjournment, the Respondents have filed: ( 1) a motion to dis-
miss the claim of John H. James, dated February 27, 1964; ( 2) proposals for
severance of cases, interrogatories , and a motion for partial dismissal , dated March 5,
1964; ( 3) a series of motions based on interrogatories , dated April 16, 1964;
(4) second motions based on interrogatories and a motion to order the hearing
closed, with date to be set for filing of briefs, dated June 26, 1964; and ( 5) a sup-
plemental report and motion regarding S. L. Lynch, dated November 11, 1964.
Upon all but the latest motion regarding Lynch, General Counsel has set forth
OZARK DAM CONSTRUCTORS 243
his positions by appropriate responses, and I have ruled by orders dated,
respectively, March 10 and 20, June 18, and August 26, 1964. The hearing
was ordered closed as of the last-mentioned date, and time for filing of briefs was.
set as 35 days from the date of the order. All the above-described documents not
already so ordered by previous rulings are hereby made a part of the record in this,
case.
Briefs have been received from General Counsel and the Respondents, and have
been fully considered Disposition of the Respondents' final motion, regarding
Lynch, is made hereinafter.
Upon the record thus made, and from my observation of the witnesses at the
February 25, 1964, hearing, I make the following findings, conclusions, and
recommendations.
I. ISSUES FOR DETERMINATION
The questions for resolution here are whether, as a result of the Respondents'
examination of the claimants involved as to "their interim earnings and activities,"
the backpay of each should be reduced from the amount already awarded by the
Board's Order and if so by what amount.
H. DETERMINATIONS AS TO THE CLAIMANTS
A. Benjamin W. Bailey
In its Order above -cited the Board found that Bailey was entitled to backpay in
the amount of $1,276.
Bailey was a witness at the February 25, 1964 , hearing. The Respondents, in
their brief, urge that from his testimony he "had interim employment substantially
equivalent to his employment with Respondents ," and "he is not shown to have
suffered loss of earnings ." In essence , the Respondents ' contention seems to be
based upon the fact that Bailey's memory was not clear as to details of past events.
Since the backpay period was from December 1949 through October 1950 , some 14
years ago , an imperfect memory now seems a not unlikely development, especially
for one engaged in the type of employment as a carpenter.
In short , I do not consider that the Respondents have sustained their burden of
proving that Bailey's backpay should be reduced by any amount , other than that
already included in the original specifications.
B. Jones P. Beal
In its Order the Board found that Beal was entitled to net backpay of $367. On
the basis of replies received to interrogatories the Respondents moved, on April 16,
1964, that it be "deemed and established" that Beal made no reasonable effort to
obtain equivalent employment during the approximately 6 weeks of his backpay
period. By his order of June 18, 1964, I denied this motion, for reasons set out
in the order.
In their brief the Respondents urge that the "backpay should be abated" as to
this claimant. No new evidence having been offered since the above-noted ruling,
I reaffirm it. It is found that the Respondents have not sustained their burden
of proving that Beal's net backpay, as found by the Board, should'be reduced by
any amount.
C. Robert R Blecker (deceased)
In its Order the Board found that Blecker was entitled to net backpay of $81.
Blecker died in 1963.
At the hearing on February 25, 1964, Mrs. Ruby I. Blecker, executrix of Blecker's
estate , appeared and testified.
In their brief the Respondents contend that the backpay award should be abated
in its entirety, on the ground that Mrs. Blecker's testimony indicates that during
the backpay period of some 2 months Blecker had not been "on the labor market
and was not available for rehire."
I cannot agree with this conclusion. The Board's original Order included deduc-
tions for a substantial amount of interim earnings, an effective refutation, in my
opinion of the claim that he was not on the labor market.
It is concluded and found that the Respondents have failed to adduce the pre-
ponderance of evidence necessary to find further deductions from the backpay
award as to Blecker.
244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. H. Carlton
In its Order the Board found that Carlton was entitled to net backpay of $571,
interim earnings having been deducted for each of the three quarters of the backpay
period from January through July 1950.
Carlton was called as a witness at the February 25 hearing. In their brief the
Respondents urge that "no backpay should be awarded" as to Carlton.
I note that backpay has already been awarded by the Board, with the court's
approval. The burden was upon the Respondents to prove what deductions, if
any, should be made from the award. I do not consider that the Respondents
have sustained, to any degree, their burden. Counsel's claim that Carlton "talked
freely in private" to him is not competent evidence. That the witness' recollection
was imperfect on the stand, and after so long a period, is not surprising.
In short, I conclude and find that the Respondents have failed to show, by a
preponderance of the evidence, that any deduction is warranted from the backpay
award for Carlton.
E. George Cloven
The Board has found that Cloven is entitled to net backpay of $208 for the brief
period from January 3 to February 7, 1950. Interrogatories were served upon him
by the Respondents.
On June 18, 1964, I denied that part of the Respondents' motions of April 16
which urged a finding that Cloven had made no effort during the material period
to find interim employment.
As to this individual, in their brief the Respondents merely state their exception
to the ruling, and do "not deem it appropriate to argue further."
For the reasons set forth in the said ruling, I conclude and find that the Respond-
ents have failed to establish that any deduction should be made from Cloven's
backpay award.
F. Charles Dorrell
By my order of August 26, 1964, above referred to, I granted the Respondents'
motion to dismiss in its entirety Dorrell's backpay claim, because of his failure to
reply to interrogatories.
In his brief General Counsel "takes no exception to this ruling." It is hereby
reaffirmed
G. William H. Drown (deceased)
The Board found that Drown was entitled to net backpay in the amount of $100
He died in August 1959.
At the hearing in February 1964, his widow, Edna P. Drown, was called as a
witness. As the Respondents' observe in their brief, "nothing new was developed
pertaining to earnings" already deducted. In the same brief the Respondents also
state that the widow has "not been appointed Administratrix," but argue the point
no further. As General Counsel appropriately notes in his brief, the court has said
that "local forums" should decide questions involving administration of estates in
Arkansas, if the matters cannot be worked out by the interested parties.
Since it appears that Mrs. Drown properly made application for the backpay dis-
bursement, and that no new evidence was adduced at the hearing warranting fur-
ther deductions, I conclude and find that the Respondents have not sustained their
burden of proof.
H. Jason S. Ford (deceased)
By my order of June 18, 1964, I granted the Respondents' motion to make cer-
tain findings based upon replies to interrogatories received from Nellie Ford, sur-
viving widow of Jason S. Ford, including the finding that Ford made no effort to
obtain interim employment.
General Counsel, in his brief, states that he "does not except to the Trial Exam-
iner's ruling."
I therefore conclude and find that the backpay claim as to Ford should be dis-
missed in its entirety.
I. A. D. Freeman (deceased)
By the same order of June 18, 1964, I granted motion of the Respond-
ents to the effect that the claiming heir of A. D. Freeman (Mrs. A. D Free-
man) failed to respond to interrogatories and thereby did not cooperate in car-
rying out the Board's Order. It was ruled that, pursuant to rule 37(b), Federal
OZARK DAM CONSTRUCTORS 245
Rules of Civil Procedure, "all matters regarding which the questions were asked by
taken to be established for the purpose of this action in accordance with the claim
of the Respondents."
In his brief General Counsel states that he "does not except to this ruling."
I therefore conclude and find that the backpay claim as to Freeman should be
dismissed in its entirety.
J. John H. James
In its Order the Board found that James was entitled to net backpay amounting to
$214.
By telegraphic order of March 10, 1964, I denied the Respondent's motion to
dismiss James' claim on the ground that he had canceled his application for backpay.
By my order of June 18, 1964 , I granted the Respondents ' motion to dismiss the
claim on the ground of failure to cooperate in carrying out the Board Order, inas-
much as he had failed in the first instance to appear at the hearing, and filed a
cancellation, and had not properly verified his answers to interrogatories later
received.
In his brief General Counsel urges that the ruling of June 18 be set aside. Upon
reconsideration of the relevant facts, I find merit in General Counsel 's position.
As in the case of George Cloven, described above, I now conclude that mere
failure to verify his answers is insufficient to disqualify the claim. And as Gen-
eral Counsel notes, there is no competent evidence that proper service of a subpena
was made upon James prior to the February 25 hearing.
The ruling to dismiss the claim is hereby set aside.
Since the answers to the interrogatories fail to disclose any substantial grounds for
reducing the amount of backpay awarded James in the Board Order, it is concluded
and found that the Respondents have failed to meet their burden of proof in this
respect.
K. R.J.Jencks
By my order of June 18, 1964, I granted the Respondents' motion to dismiss the
backpay claim of Jencks on the ground that he failed to cooperate in carrying out
the Board Order, by "expressing the plain intent not to answer" interrogatories
received by him.
In his brief General Counsel "takes no exception to this finding." The granting
of the motion to dismiss the Jencks' claim is reaffirmed.
L. D. E. Killian
In its Order the Board found that Killian is entitled to a net backpay award of
$191. He was a witness at the February hearing.
I find nothing in his brief testimony to warrant either dismissing "this case" or
abating the backpay award, as the Respondents' brief urges.
In shoat, it is concluded and found that the Respondents have failed to sustain
their burden of proof as to Killian.
M. Onimus Kyles
In its Order the Board found that net backpay is due Kyles in the amount of
$4,708, covering a period from January 1950 to September 1951, excluding a brief
interim from August 1 to October 10, 1950. It appears that interim earnings of
about $1,300 were deducted from his gross backpay in arriving at the net backpay
award.
Kyles was a witness at the February hearing. In their brief the Respondents
contend that Kyles' "deliberate destruction of records after he had been requested
to bring them to the hearing should completely disqualify `him' from receiving any
backpay." The record does not support this grave accusation, and I find no merit
in it.
Without setting forth the accounting in detail here, I agree with General Coun-
sel's statement in his brief to the effect that as a witness Kyles admitted to interim
earnings of $140 over and above those apparently already included in the back-
pay specification.
It is therefore concluded and found that the backpay award due Kyles should be
reduced by $140.
246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
N. C. C. Landry (deceased)
Mrs. Donna Landry, widow of C. C. Landry, was a witness at the February hear-
ing. As counsel for the Respondents states in his brief , her testimony did not develop
"any significant facts to change the prior determination."
I therefore conclude and find that the net backpay award in this case should
remain as held by the Board.
O. A. M. Lazenby
Lazenby was a witness at the February hearing. His testimony reveals no evi-
dence other than that before the Board , apparently , at the time it made its net back-
pay award of $1,466.
I find that the Respondents have failed to sustain the burden of proving that the
net backpay award should be reduced by any amount.
P. S. L. Lynch (deceased)
In its Order the Board awarded this individual net backpay of $1,689. He died
in 1960. In their belated "supplemental report and motion" regarding Lynch, and
documents attached thereto, the Respondents show that interrogatories were answered
by Jean Hollinsworth (daughter) on March 4, 1964; by Frances Schoen (daughter)
on March 25, 1964; and by Richard Lynch (son) on March 18, 1964. It appears
that the Respondents were unable to reach two other individuals who they state are
heirs, that no will was left, and no administration has been held on his estate.
The Respondents urge that the award as to Lynch be abated in its entirety, since
there has been no reasonable opportunity "to examine him" as to relevant matters.
It appears that neither I, the Board, nor the court is in a position to make Lynch
now available for examination.
General Counsel urges , as in the case of Drown, that the daughter Hollinsworth,
having made the claim, is the proper legal representative in this case. I agree,
and it is so found.
Since the record remains as it was at the time of the Board's award, I conclude
and find that no deductions from the award are now required.
Q. J. W. Mashaw
In its Order the Board determined that net backpay was due J. W. Mashaw in the
amount of $66. He was not a witness at the February hearing nor does it appear
that interrogatories were served upon him.
The Respondents rely, apparently, upon testimony given at the hearing by Roy
Mashaw, J. W. Mashaw's brother. Review of that testimony reveals nothing, in my
opinion, which was not considered by the Board in determining its original award.
It is concluded and found that the Respondents have not sustained their burden
of showing that further deductions should be made from this award.
R. Roy Mashaw
In its Order the Board awarded this individual net backpay in the amount of
$455. He was a witness at the February 1964 hearing. As a witness he readily
and understandably admitted that after the passage of so many years his memory
was faulty as to precisely where he was and when.
I am of the opinion, and so conclude, that the Respondents have failed to establish
by what amount, if any, deductions should be made from this award.
S. Carl Mooney
In its Order the Board awarded Mooney net backpay amounting to $468, after
deducting interim earnings. He was a witness at the February hearing. No evi-
dence was adduced showing that additional interim earnings should be deducted or
that he incurred, during the material period, any willful loss of earnings.
I conclude and find that the Respondents have not sustained their burden of
showing that additional deductions from the award should be made.
T. H. S. Patton
In its Order the Board awarded this individual net backpay of $455. He was a
witness at the February 1964 hearing.
OZARK DAM CONSTRUCTORS 247
Testimony elicited from him fails to establish, in my opinion, any ground for
diminishing by any amount the backpay award of the Board. It is concluded and
found that the Respondents have not sustained their burden of proof in this
respect.
U. Jake Pfingston
In its Order the Board found that the net backpay due this individual amounted to
$307, for a period of December 23, 1949, to March 8, 1950, when he declined an
offer of reinstatement.
He was a witness at the February 1964 hearing, and admitted that he did not seek
other work in February 1950, after obtaining another job due to begin in March.
The Respondents urge that the failure to seek other interim employment was "will-
ful." I cannot agree that this conclusion necessarily follows.
Accordingly I conclude and find that the Respondents have failed to establish,
by a preponderance of evidence, that this individual's backpay award should be
reduced, as they claim in their brief, to $128.
V. Willis Rains
In my order of June 18, 1964, I granted the Respondents' motion to the effect
that because Rains had not responded to the interrogatories he had not cooperated
in carrying out the Board Order, and that therefore all matters should be taken
to be established in accordance with the claim of the Respondents.
In his brief General Counsel states that he "does not except to this ruling."
It is therefore concluded and found that the claim as to this individual should be
dismissed.
W. Elbert C. Smith
In its Order the Board found that Smith was entitled to net backpay of $345. He
was a witness at the February 1964 hearing.
I discern no new evidence as to Smith which has not already been considered
by the Board in making its award, and it is therefore concluded and found that the
Respondents have failed to sustain their burden of establishing additional deduc-
tions from the award.
X. C. D. Stamps
In my order of June 18, 1964, I granted the Respondents' motion to the effect
that upon the basis of answers to interrogatories it be found that Stamps held
public office during the backpay period and made no attempt to secure equivalent
employment.
In his brief General Counsel urges that I reconsider the matter and set aside my
ruling. The point has been reconsidered but no good reason appears warranting
reversal of said ruling. It is reaffirmed.
It is therefore recommended that the backpay claim of this individual be dismissed.
Y. C. L. Stone
In its Order the Board awarded this individual net backpay of $509. By order
of June 18, 1964, I ruled, upon motion by the Respondents, that all matters should
be deemed as urged by them, on the grounds that no answers to interrogatories
had been received. By order of August 26, 1964, I set aside the said ruling, since
it appeared that answers from Stone were received shortly after the due date.
I find nothing in the answers to the interrogatories warranting abatement of any
part of the backpay award determined by the Board.
It is concluded and found that the Respondents have not sustained their burden of
proving that further deductions should be made from this award.
Z. V. B. Walker (deceased)
In its Order the Board determined that net backpay due this individual amounted
to $157. As in the case next above, on June 18, 1964, I granted certain motions
of the Respondent on the ground that no answer to interrogatories had been re-
ceived from Walker's widow. The ruling was set aside on August 26, 1964,
upon showing by the Respondents that an answer had been received, although
somewhat late.
248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The widow's answer, in my opinion , reveals no information warranting any re-
duction in the amount of backpay awarded by the Board . It is concluded and
found that the Respondents have failed to sustain their burden in this matter.
AA. John D. Wells
In his notice of hearing the Regional Director noted that further investigation
established that Wells was not entitled to any of the backpay awarded him in the
Board Order , for reasons set forth in an appendix to the notice of hearing.
It is therefore concluded and found that the backpay claim as to this individual
should be dismissed.
BB. Russell T. Wood
By my order of June 18 , 1964, I granted the Respondents' motion and ruled, in
effect, that because no answers to interrogatories were received all matters be deemed
as urged by the Respondents.
In his brief General Counsel states that he does not except to this ruling. It is
hereby reaffirmed, and it is concluded and found that the backpay claim should be
dismissed.
Laney & Duke Storage Warehouse Co., Inc., and Laney & Duke
Terminal Warehouse Co., Inc. and United Steelworkers of
America, AFL-CIO. Case No. 12-CA-2831. February 25, 1965
DECISION AND ORDER
On November 13, 1964, Trial Examiner William Seagle issued
his Decision in the above-entitled proceeding, finding that the
Respondents had engaged in certain unfair labor practices alleged
in the complaint and recommending that they cease and desist
therefrom and take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. The Trial Examiner further
found that the Respondents had not engaged in certain other unfair
labor practices alleged in the complaint and recommended that
the complaint be dismissed with respect to the latter allegations.
The Respondents filed exceptions to that portion of the Trial
Examiner's Decision in which they were found to have violated
the National Labor Relations Act, as amended, and filed a brief in
support thereof. The General Counsel thereupon filed cross-
exceptions, with supporting brief, to the Trial Examiner' s failure
to find the remainder of the violations alleged in the complaint.
Pursuant to the provisions of Section 3(b) of the Act, the
National Labor Relations Board has delegated its powers in con-
nection with this case to a three-member panel [Members Fanning,
Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and cross-exceptions, the
151 NLRB No. 28.