International Assn. of Iron WorkersDownload PDFNational Labor Relations Board - Board DecisionsSep 24, 1974213 N.L.R.B. 457 (N.L.R.B. 1974) Copy Citation INTERNATIONAL ASSN. OF IRON WORKERS 457 International Association of Bridge , Structural and Reinforced Iron Workers Union , Local 378, AFL- CIO (Judson Steel Corporation) and Robert L. Ca- stor . Case 20-CB-2245 September 24, 1974 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS JENKINS AND KENNEDY On June 6, 1974, Administrative Law Judge Irving Rogosin issued the attached Supplemental Decision in this proceeding. Thereafter, Respondent filed ex- ceptions and a supporting brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Supplemental Decision in light of the excep- tions and brief and has decided to affirm the rulings, findings,' and conclusions z of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent, International Association of Bridge, Structural and Reinforced Iron Workers Union, Local 378, AFL-CIO, Emeryville, California, its officers, agents, and representatives, shall take the action set forth in the said recommended Order. i The Court of Appeals for the Ninth Circuit entered its judgment, enforc- ing the Board 's earlier Decision and Order (192 NLRB 1069 ( 1971) ), on June 20, 1972 2 Respondent argues that the formula for computing backpay is inappro- pnate in this case because there is no evidentiary showing that discriminatee Robert L Castor would have remained in Respondent's employ had he not been discharged As found by the Administrative Law Judge, Respondent did not prove that Castor would have been terminated subsequent to his discharge We further observe from the record testimony in the original unfair labor practice case that Superintendent Harris, who hired Castor, testified that Castor had been continuously employed since the date of hire and that he was considered a permanent employee. labor practices within the meaning of Section 8(b)(2) and (1)(A) of the Act, and ordered Respondent to make Robert L. Castor whole for any losses he may have sustained as a result of Respondent's unfair labor practices. On May 15, 1972, the United States Court of Appeals for the Ninth Circuit entered its judgment enforcing the Board's Order in full. (80 LRRM 2627)' A controversy having arisen over the amount of backpay due under the terms of the Board's Order, a backpay spec- ification and notice of hearing was issued on February 27, 1974. The backpay specification alleges that Respondent is ob- ligated to pay Castor the sum of $12,292, plus accrued inter- est at the rate of 6 percent per annum, for the period commencing May 8, 1970, the date of his discharge by Judson, until July 25, 1972, the date on which Respondent notified Judson, in writing, of the withdrawal of its objec- tion to Castor's employment. Respondent's answer, as amended at the hearing, gener- ally denies the allegations of the specification; admits that the wage rates and trust fund contributions as set forth in the specification are correct; denies that interest may be assessed beyond the close of the enforcement proceedings in the court of appeals; and denies that the formula em- ployed by the General Counsel in determining the amount of backpay due is proper. For affirmative defense, Respon- dent alleges that the appropriate amount of backpay due Castor would be the amount paid to a journeyman worker hired to replace him; that the Employer's payroll records would be the only source from which such information can be obtained; and that such records are not available to Respondent. Hearing on the backpay specification was held before me on April 1, 1974, at San Francisco, California. The General Counsel and Respondent were represented by counsel, were afforded full opportunity to be heard, to examine and cross- examine witnesses , to introduce oral and documentary evi- dence relevant and material to the issues, to argue orally, and to file briefs and proposed findings of fact and conclu- sions of law. The parties declined to argue orally, reserving the right to file briefs. At the close of the hearing, Respon- dent moved to dismiss the specification on the ground that the General Counsel had failed to sustain the burden of proof with regard to the basis or reasonableness of the for- mula for computing the backpay due. Ruling on said mo- tion having been reserved, the same is disposed of by the findings and conclusions hereinafter made. The parties were granted to and including May 6, 1974, in which to file briefs. The General Counsel filed a timely brief but no brief has been filed by Respondent. No proposed findings of fact and conclusions of law have been filed by any of the parties. Upon the entire record in the case, and based upon the appearance and demeanor of the witnesses, and the General Counsel's brief, I make the following: SUPPLEMENTAL DECISION STATEMENT OF THE CASE IRVING RoGOsiN , Administrative Law Judge : In its Deci- sion and Order issued August 27, 1971 (192 NLRB 1069), the Board found that Respondent had engaged in unfair i Designations herein are as follows The General Counsel, unless other- wise stated or required by the context , his representative at the hearing; International Association of Bridge , Structural and Reinforced Iron Workers Union , Local 378, AFL-CIO, Respondent , Local 378 or the Union , Judson Steel Corporation, the Company , the Employer or Judson ; the National Labor Relations Act, as amended (61 Stat 136, 73 Stat 519, 29 U S C § 151, et seq ), the Act , the National Labor Relations Board, the Board. 213 NLRB No. 72 458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACr Castor was hired as a journeyman ironworker, at the applicable wage scale, by General Superintendent James Harris on September 22, 1969. He was discharged at Respondent's behest as of May 8, 1970. Castor was hired directly by the Employer under a contract provision permit- ting hiring without resort to the hiring hall, whenever the Union was unable to refer qualified ironworkers after a specified interval. Castor worked for Judson for nearly 8 months, 4 or 5 months at a Stanford University construction project in Palo Alto, California, under the jurisdiction of Local 377, a sister local of Respondent. Thereafter, Castor worked for Judson on the Bay Area Rapid Transit (BART) subway project in San Francisco. Judson's work on BART was com- pleted on about December 13, 1970. At the time he was discharged, Castor was told by General Superintendent Harris that he would be rehired when Respondent Union issued him a proper clearance.' To determine the amount of backpay due Castor, the General Counsel has utilized a formula based on the "repre- sentative employee group," approved by the Board in a case involving the same employer, and a sister local of Respon- dent Union, in the same industry.3 There, the General Counsel arrived at the formula by reviewing the payroll records of all field ironworkers employed by Judson during the applicable backpay period and, by eliminating foremen, superintendents and apprentices, as well as ironworkers whose earnings were exceptionally high and those whose earnings were exceptionally low, arrived at a representative group of 26 field ironworkers. By multiplying the average number of hours worked by this representative group in each calendar quarter of the backpay period by the applica- ble hourly rate then in effect, the General Counsel comput- ed the backpay due the employee. In the instant case, the period used as the basis for arriv- ing at the formula in the Bettencourt case was extended to July 25, 1972, to encompass Castor's backpay period. Anal- ysis was made of the payroll records of all field ironworkers, excluding superintendents, foremen, apprentices, and em- ployees with exceptionally high or low earnings, resulting in a group of 17 ironworkers, who were the only ones in the group of 26 (utilized in the Bettencourt case) who had worked in every quarter of Castor's backpay period. The average number of hours worked in each calendar quarter by this group was multiplied by the applicable hourly rates contained in the existing collective-bargaining agreement. Under this formula, Castor could reasonably have been expected to work a total of 3,701 hours at straight time and 37 hours of overtime at the applicable rates of pay. Respondent takes issue with the General Counsel's for- mula, and argues for the so-called "counterpart" formula, maintaining that any backpay due Castor must be de- 2 These findings are based on the decision of Trial Examiner , now Admin- istrative Law Judge , Maurice M. Miller , affirmed by the Board , in the origi- nal unfair labor practice case. 3 International Association of Bridge, etc. Local Union 377, AFL-CIO (Jud- son Steel Corporation) and Richard J. Bettencourt, 208 NLRB No. 135. termined on the basis of the length of time worked and wages earned by Castor's replacement. The "counterpart" formula was similarly advanced by the union in the Betten- court case, and rejected. Moreover, application of Respondent's proposed formula in Castor's case would re- sult in denying backpay to a victim of discrimination be- cause there was no showing that Castor was actually replaced. Respondent further maintains that even assuming that the representative employee group formula is appropriate, the result was arrived at improperly because it failed to take into account hours of work and the rates of pay of between 25 and 150 ironworkers in any given payroll period during the backpay period, and confined the analysis of payroll records to 17 field ironworkers. In arriving at a representa- tive employee group formula, Respondent would, in effect, require that the number of hours worked and the wages earned of all ironworkers, including casual and temporary employees, over the backpay period, be included. This would presumably have the effect of reducing the average number of hours worked and wages earned, and hence, affect Castor's gross backpay. Without considering the feasibility of adopting Respondent's "representative employee group" formula, it is sufficient to observe that the General Counsel's formula achieves a reasonable and equitable method of determining the amount of backpay. In a case such as this, where the amount of backpay cannot readily be ascertained by ordi- nary methods, there is no requirement that any special for- mula be employed to compute backpay. Nor is there any requirement that the formula provide a method of determin- ing backpay due with mathematical exactitude. All that is required is that the formula be reasonably designed to arrive at as close an approximation of the amount of backpay due as possible. As the court has held: Obviously, in many cases it is difficult for the Board to determine precisely the amount of back pay which should be awarded to an employee. In such circum- stances the Board may use as close approximations as possible, and may adopt formulas reasonably designed to produce such approximations. [Citations omitted.] We have held that with respect to the formula for arriv- ing at back pay rates or amounts which the Board may deem necessary to devise in a particular situation, "our inquiry may ordinarily go no further than to be satis- fied that the method selected cannot be declared to be arbitrary or unreasonable in the circumstances in- volved." N.L.R.B. v. Ozark Hardwood Co., 282 F.2d 1, 7 (C.A. 8).4 Considering the nature of employment in the construc- tion industry and the inherent difficulties in assessing back- pay, it cannot be said that the formula selected by the General Counsel is arbitrary or unreasonable. It is, there- fore, found that the formula is appropriate, reasonable and objective, and designed to produce a reasonably close ap- proximation of the amount of backpay due Castor. 4N.L.R.B. v. Brown & Root, Inc., 311 F.2d 447, 452-453 (C.A. 8). INTERNATIONAL ASSN. OF IRON WORKERS 459 Additionally, however, Respondent disputes the General Counsel's assumption that Castor would have continued in Judson's employ in the absence of Respondent 's unlawful conduct. Relying on Castor's relatively brief employment, some 8 months, in the industry and his limited training and experience, Respondent contends that, in view of the reduc- tion in employment among the ironworkers, Castor would not have been retained in Judson's employ, certainly not beyond the completion of its work on the BART project, on December 13, 1970. Michael D. Santoro, Judson's payroll supervisor, was un- able to testify whether all the ironworkers employed on the BART job were terminated upon its completion. As of May 10, the last day of Castor's final week of employment, ac- cording to Santoro, there were 32 ironworkers employed by Judson on the BART job. The number employed on that job until its completion fluctuated as follows: in May, be- tween 17 and 19; in June, between 15 and 21; in July, between 17 and 26. On August 2, 21 ironworkers were em- ployed on the job; on August 9, 18; on August 16, 22; and on August 30, 2. In September, the number fluctuated be- tween 12 and 7; in October, between 13 and 3; in Novem- ber, between 8 and 2; and in December, between 8 and 3. Based on these employment figures, Respondent con- tends that, in light of the constantly diminishing number of employees, coupled with Castor's comparative inexperience and lack of training, he would not have continued in Judson's employ. Respondent' s conclusion is based princi- pally on the completion of the BART job , and assumes, without any evidence, that Judson did not have any other jobs for which Castor was qualified. Santoro testified that the foreman on the job decided which ironworkers should be retained after completion of a job. Seniority was not a factor in this determination. So far as Santoro's testimony was concerned, the only ironworkers who could reasonably expect steady employment were foremen, who presumably were more skilled in their craft. Nevertheless, it must be assumed that Castor's employer was satisfied with his work performance as of the date of his discharge, and there was no showing that he would have been terminated if Respon- dent had not demanded his discharge. No evidence was offered to establish that Judson customarily terminated ir- onworkers on completion of specific projects or that Castor would have been terminated upon completion of the BART job. In fact, Superintendent Harris told Castor that he would be rehired when he obtained a proper clearance from the Union. Whatever the extent of his experience and quali- fications, it is evident that his employer apparently had work for him for which it considered him qualified. Con- ceivably, Judson may have been willing, for reasons of its own, to retain Castor even though he may have been less qualified than other ironworkers, and Respondent cannot be heard to complain if the Employer's standards for em- ployment did not meet with Respondent' s exacting stan- dards. Moreover, since it is undisputed that there was work for ironworkers on the BART project when Castor was dis- charged on May 10, it must be presumed that Castor would have continued to work on that job but for the discrinuna- tion against him. The burden of proving that the discrimina- tee would have been terminated at some subsequent date is on Respondent.5 And this burden is not satisfied by mere speculation or conjecture as to whether the employer would have terminated the employee in the absence of Respondent' s unlawful conduct. The record establishes that during the 8 months Castor was employed by Judson, he worked a total of 1,097 hours .6 Respondent maintains that a full-time employee, working 40 hours a week, would have accumulated 1,384 hours of employment during the period of Castor's employment. Ac- cording to this view, Castor worked 200 hours less than full-time employees, and should not be considered a full- time employee. There was no showing that ironworkers were guaranteed a 40-hour workweek, and there were occa- sions when full-time employees worked less than 40 hours due to inclement weather or shortage of materials. Further- more, no evidence was introduced to establish whether any other journeymen ironworkers were employed a greater number of hours than Castor during his term of employ- ment with Judson. Of the 17 ironworkers used as the repre- sentative employee group, only 5, according to Santoro, worked as foremen, and were consequently afforded steady employment. Respondent's contention that because of Castor' s limited experience and training it is unlikely that he would have continued in Judson's employ, was not supported by testi- mony of the Employer's foremen or superintendents. No supervisors, who presumably would have been in a position to testify as to whether Castor would have continued work- ing, were called by Respondent. Instead, Respondent sought to rely on Castor's admissions as to his limited famil- iarity with tools of the trade, and lack of broad experience, as well as the testimony of Richard L. Zampa, Respondent's financial secretary-treasurer and hiring hall dispatcher, that in his opinion Castor was not sufficiently qualified as an ironworker to have secured regular employment as a jour- neyman ironworker. Moreover, Respondent was unable to elicit from Santoro any reliable or probative evidence as to Castor's prospects for contined employment. As opposed to this are the findings of the Administrative Law Judge in the original proceeding, that Castor was hired by Judson as a qualified journeyman ironworker. Moreover, Castor was told by Judson's plant superintendent at the time he was discharged that he would be rehired when he secured a proper, clearance from the Union. It is, therefore, reasonable to assume that Judson was satisfied with Castor's qualifications for a job as journeyman ironworker by that employer's standards. There was no showing that Judson had no further jobs during the backpay period for which Castor was qualified or that Judson would not have hired him for those jobs, particularly in light of its promise at the time of his discharge. The fact that Judson assigned Castor to the BART job after employing him on the con- struction job in Palo Alto for 4 or 5 months is some indica- 5 International Association of Bridge, etc, Local Union 377, AFL-CIO (Jud- son Steel Corporation) and Richard J. Bettencourt, 208 NLRB No 135, citing Carpenters Union Local 180, United Brotherhood of Carpenters and Joiners of America, AFL-CIO (Golden State Runway and Engineering Company, et al) and Richard A Allen, 175 NLRB 927, 930 (1969) See also N L.R B v. Ohio Hoist Manufacturing Co., 86 LRRM 2135 (C A. 6, April 25, 1974) 6 The figure was inadvertently transposed in the General Counsel' s brief to read 1,907. 460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion that Judson was satisfied with Castor's work perfor- mance, and that he could reasonably expect future employ- ment . In view of the fact that work for journeymen ironworkers was available during Castor's backpay period, as is evident from Judson's payroll records, in the absence of affirmative evidence from the Employer that it would not have hired Castor during that period, Respondent' s asser- tion is mere conjecture and speculation. Although Respondent has not specifically pleaded willful loss of earnings , Castor testified that, upon receipt of the letter from the Union notifying the Employer that it had no objection to Castor's employment, he applied for work at Judson's office, and spoke to Superintendent James Harris or the "field man." Castor was told that it would be several weeks before work became available. He called Judson once afterward and, since he was already working and was told that work was slow at Judson's, did not pursue the matter. According to Castor, he told the person he spoke to that he did not want to quit his job to go to work for Judson only to find that he was still having trouble with the Union. On September 22, 1970, Castor commenced working for Lucky Stores, Inc., where he was still employed at the time of the hearing. Between May 8 and September 22, 1970, he worked 1 day at Northwestern Steel. He later worked about 2 weeks at Hunt-Wesson's cannery, and then went to work for Lucky Stores. With regard to his 1-day employment at Northwestern Steel , Castor testified that as a result of a discussion with his foreman, they both concluded that he ought not return to the job until he received clearance from the Union. In view of Respondent's action in causing his termination by Judson, Castor's conduct could scarcely be considered a voluntary withdrawal from the job market. Castor conceded that, although he went to the Depart- ment of Employment, and checked to see whether there were openings available, he found nothing for which he was suited. He did not make application for unemployment in- surance, expecting that he would be reinstated shortly. No useful purpose would have been served by filing an applica- tion for unemployment insurance under these circum- stances . Castor admitted that, except for his application to Judson, and the 1-day employment at Northwestern Steel, he made no other effort to obtain work with any steel com- pany. Castor testified, however, that he sought work outside Alameda County, in the Union's territorial jurisdiction, by purchasing a book from the Hayward Chamber of Com- merce, listing the names of employers in the construction industry, the product manufactured, the number of employ- ees, and the jobs under construction. After searching through the book, he looked for work in Oakland. In addi- tion, early in September, Castor communicated with a for- mer supervisor regarding work opportunities in the oil fields in New Mexico and Arizona, in which Castor had previous- ly worked. About a week before Castor went to work at Hunt's cannery, he was offered a job as a roughneck in the oil fields, but was unable to accept it because of his limited funds. Instead, he accepted the job at Hunt's where he worked for about 2 weeks. Thereafter, he continued his efforts to obtain further employment through numerous telephone calls until he obtained his job with Lucky Stores. To the extent that Respondent contends, on the basis of this evidence, that Castor willfully incurred a loss of earn- ings during the backpay period, Respondent has not sus- tained its burden of proof.' On the issue of contributions to the pension fund for the backpay period, Respondent contends that Castor is not entitled to such contributions because under the terms of the pension trust fund Castor could acquire no vested rights until after 15 years of service. Since, according to Respon- dent, Castor has sustained a break in service, following the termination of the backpay period, he could not thereafter become eligible for a pension. The short answer to Respondent's contention is that, but for its unlawful con- duct in causing Castor's discharge, the Employer would have been required to make contributions on his behalf during the period of his employment. According to the pen- sion plan, pension credits are based on work in "covered employment," and such credits vest after 15 years of service. Respondent's contention that since Castor has not been employed in the industry since July 25, 1972, he cannot acquire sufficient "covered employment," ignores the fact that under the pension plan, previously accumulated pen- sion credit is not lost until the employee fails to earn one quarter of pension credit in a period of 2 consecutive plan years. Castor has not been employed outside the industry for 2 consecutive years, and it cannot be assumed that he will not return to the industry, in time to acquire further pension credits. Moreover, the obligation to contribute to the pension plan on behalf of an employee during the period of his "covered employment" (or the backpay period) is not contingent on whether he may ultimately qualify for a pen- sion. It is common knowledge that many employees may leave an industry in which they have been employed before the vesting of their pension credits but this does not relieve the employer of the obligation to contribute to the plan on behalf of the employee while he is working in "covered employment." Respondent is, therefore, not relieved of the duty to contribute to the pension plan on Castor's behalf during the backpay period. Finally, as to Respondent's contention that the Board has been guilty of "laches" in filing its specification, this is no defense to the backpay determination.8 By the same token, Respondent's claim that interest on the backpay should be tolled as of the conclusion of the enforcement proceedings in the court of appeals, is rejected. ' N.L.R.B, v. Ohio Hoist Manufacturing Co., supra. 8 N.L.R. B, v. J. H. Rutter-Rex Manufacturing Company, Inc. 396 U.S. 258 (1969). INTERNATIONAL ASSN. OF IRON WORKERS As stated earlier, Respondent does not dispute the actual computations of the backpay specification. It is, therefore, found, as itemized in the "Appendix" annexed hereto, that Respondent's obligation to make Castor whole, as required by the Board Order, enforced by the court, will be dis- charged by the payment to him of the sum of $12,292, plus interest accrued at the rate of 6 percent per annum on all unpaid balances of backpay computed for each calendar quarter from the first day of the ensuing quarter until paid in full, less the required Federal, State, and local tax with- holdings, and by contributing to the pension trust fund the sum of $1,986, with directions to the trustees of said fund to credit said amount to the account of Robert L. Castor, together with interest or applicable penalties for late pay- ment, if any, claimed by said trust fund. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, issue the following recommended: ORDERS Respondent, International Association of Bridge, Struc- tural and Ornamental Reinforced Iron Workers, Riggers 461 and Machinery Movers, Local 378, its officers, agents, suc- cessors and assigns, shall pay to Robert L. Castor the fol- lowing sums of net backpay: 1. To Robert L. Castor, the sum of $12,292, plus interest at 6 percent per annum, as prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heat- ing Co., 138 NLRB 716 (1963). 2. To the pension trust fund, to the credit of Robert L. Castor, the sum of $1,986, plus any interest or applicable penalties for late payment claimed by the trustees of said pension trust fund. 3. Said payments shall be subject to any Federal, State, or local taxes required to be deducted and remitted to the appropriate authorities. 9 In the event no exceptions are filed as provided by Section 102.46 of the Rules and Regulations of the National Labor Relations Board , the findings, conclusions , and recommended Order herein shall , as provided in Section 102 48 of the Rules and Regulations , be adopted by the Board and become its findings , conclusions , and Order, and all objections thereto shall be deemed waived for all purposes 462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX Hourly Gross Net Interim Net Quarter Dates Hours Rate Backpay Earnings Backpay 2 5/8- 287 $ 6.37 $1,828 $ 53 $1,775 6/30/70 3 7/1- 245 6.37 3,510 434 3,076 9/30/70 267 7.30 J 4 10/1- 350 7.30 2,816 2,052 764 12/31/70 1 1/1- 53 7.30 3,180 2,575 605 3/31/71 338 7.98 6 (OT) 15.96 2 4/1- 448 7.98 3,607 2,811 796 6/30/71 2 (OT) 15.96 3 7/1- 187 7.98 2,781 2,625 156 9/30/71 156 8.16 1 (OT) 16.32 4 10/1- 450 8.16 4,638 2,649 1,989 12/1/71 12 (OT) 16.32 1 1/1- 230. 8.16 3,782 2,728 1,054 3/31/72 13 (OT) 16.32 201 8.34 1 (OT) 16.68 2 4/1- 417 8.34 3,511 2,266 1,245 6/30/72 2 (OT) 16.68 3 7/1- 72 8.34 1.508 676 832 7/25/72 Total net backpay $12,292 Incl. vacation pay 5/8-8/15/70, 532 hrs. at $.25 ; 8/16-9/30/70, 267 hrs. at $.50 Incl. vacation pay 10/1/70-9/30/71, 1541 hrs. at $.50 payable 4th/4 1971. Incl. vacation pay 10/1/71-2/15/72, 705 hrs. at $.60; 2/16-7/25/72, 693 hrs. at $.70. PENSION TRUST FUND Period Hours Rate Amount 5/8/70 - 8 15/70 532 $.32-1/2 $ 173 8/16/70 - 1/15/71 670 .37-1/2 251 1/16/71 - 8/15/71 981 .42-1/2 417 8/16/71 - 2/15/72 862 .62-1/2 539 2/16/72 - 7/25/72 693 .87-1/2 606 Total contributions due to trust fund $1,986 Copy with citationCopy as parenthetical citation