Intl. Operating Engineers, Local 925

National Labor Relations Board - Board Decisions

Jan 16, 1970

180 N.L.R.B. 759 (N.L.R.B. 1970)

INTL. OPERATING ENGINEERS , LOCAL 925
International Union of Operating Engineers, Local
925, AFL-CIO, and Its Business Manager, H. B.
Roberts (J. L. Manta, Inc., et al.) and Herman
Dewey Ross . Case 12-CB-734; 743
January 16, 1970
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On August 24, 1965, the National Labor
Relations Board issued a Decision and Order in the
above-entitled proceeding,' finding, inter alia, that
the Respondents unlawfully caused or attempted to
cause certain employers to remove Herman Ross
from his job because of his union activities, and
unlawfully caused or attempted to cause certain
employers not to employ Ross because of his union
activities, and directing that Respondents reimburse
and make whole Ross for any of these
discriminations. On June 21, 1967, the Board issued
a notice to show cause why this Order should not be
amended. On December 11, 1967, the Board issued
an amended Order Requiring Respondents to make
Ross whole for any loss of pay from the date "such
discrimination began until such time as the
discrimination ceases or has ceased and Respondent
fully complies or has complied with the Board's
Order in all pertinent respects."'
Backpay specifications and notices of hearing
were issued by the Regional Director of Region 12,
and pursuant thereto a hearing conducted by Trial
Examiner Robert L. Piper on various dates from
May 7, 1968, through November 13, 1968, for
determination of the amounts of backpay owing
under the Board's Order as amended. On June 11,
1969, the Trial Examiner issued the attached
Supplemental Decision in which he found that Ross
was entitled to the amounts of backpay therein set
forth. Thereafter, the Respondents and the General
Counsel filed exceptions to the Supplemental
Decision and supporting briefs.
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.
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 Trial
Examiner ' s Supplemental Decision , the exceptions
and briefs , and hereby adopts the findings,
conclusions , and recommendations of the Trial
Examiner.
'154 NLRB 671
'168 NLRB No. 129
SUPPLEMENTAL ORDER
759
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondents,
International Union of Operating Engineers, Local
925, AFL-CIO, its officers, agents, and
representatives, and Respondent's Business
Manager , H. B. Roberts, his agents and
representatives, shall pay to the lawful heirs of
Herman Dewey Ross as net backpay the amounts
determined to be due by the Trial Examiner in the
attached Supplemental Decision.
TRIAL EXAMINER'S SUPPLEMENTAL
DECISION
STATEMENT OF THE CASE
ROBERT L. PIPER, Trial Examiner: On August 24,
1965, the National Labor Relations Board issued its
Decision and Order,' finding that Respondents had caused
various employers to discriminate against Herman Dewey
Ross in violation of Section 8(b)(2) of the Act, and
ordering Respondents to make Ross whole for any loss of
pay suffered by reason of the specific acts of
discrimination found therein. A controversy having arisen
over the amount of backpay due under the terms of the
Board Order, on February 17, 1967, the Regional Director
of the Board for Region 12 issued a Backpay
Specification and Notice of Hearing, claiming backpay
ftom the date of the original discrimination (July 30,
1963) to February 17, 1967, and thereafter until
Respondents fully complied with the Board's Order. After
various procedural steps, including motions to strike and
appeals to the Board, on December It, 1967, the Board,
after notice to show cause and responses thereto, issued its
Order Amending Decision and Order (hereinafter called
the Board's Order)' amending its prior Decision and
Order to require Respondents to make Ross whole for any
loss of pay suffered by reason of the discrimination by
Respondents against him from the date "such
discrimination began until such time as the discrimination
ceases or has ceased and Respondent fully complies or has
complied with the Board's Order in all pertinent respects."
By this amendment the Board encompassed continuing
discrimination by Respondents against Ross, in addition
to the specific instances of prior discrimination to which
the Board's "make whole" remedy originally was limited.
On February 6, 1968, the Regional Director issued an
amendment to the Backpay Specification and Notice of
Hearing, subsequently again amended at the hearings.
Respondents filed their answer April 22, 1968,
subsequently amended May 10, 1968. Hearings were held
on various dates from May 7 to November 13, 1968. At
the conclusion of the case in chief, Respondents made
various motions to dismiss various allegations of the
Backpay Specification including an overall motion to
dismiss. Respondents' motions to dismiss paragraphs 4(c)
and 40) of the Specification were granted. The balance of
Respondents' motions were denied, were renewed at the
conclusion of the hearings, and are disposed of by the
findings and conclusions hereinafter made.
1154 NLRB 671
'168 NLRB No 129.
180 NLRB No. 117
760 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Both parties were represented by counsel and afforded
all rights of due process. The General Counsel and
Respondents filed briefs. Upon the entire record in the
case and from my observation of the witnesses, I make
the following findings, conclusions, and recommendations
A. The Issues
1. The most important and controversial issue in this
proceeding is the proper construction to be given to the
Board 's Order as amended December 11, 1967. The
General Counsel contends that the Board's Order makes
Respondents continuously liable for backpay to Ross from
the original discrimination found until they comply fully
with all of its terms, independently of any continuing
discrimination against Ross. In other words, it is the
General Counsel's position that the Board's Order
requires that Ross be made whole for any loss of earnings,
even though there is no showing of continuing
discrimination against him, until Respondents fully
comply with the other provisions of the Order, including
those requiring them to operate their hiring hall referral
system in a nondiscriminatory manner and to keep and
make available for Board inspection permanent records of
the hiring hall referral operations adequate to disclose
fully the basis on which each referral is made.
Respondents contend that the Board's Order clearly
provides that Respondents shall make Ross whole for any
loss of earnings only as a result of their prior
discrimination and any continuing discrimination against
him after the incidents of discrimination found in the prior
Decision. (Respondents also contend, with much less
persuasiveness, that legally the Board's Order may not
encompass even continuing discrimination against Ross,
because of the provisions of Section 10(b) of the Act with
respect to the filing of charges and the fact that such
alleged discrimination occurred after the incidents found
in the prior Decision.)'
2. Whether the settlement agreement in Case
12-CB-734, approved January 29, 1964, and later set aside
by the Regional Director because of continuing
discrimination by Respondents in violation thereof, bars
backpay to make Ross whole for the discriminations
occurring prior thereto.
3. Whether Respondents' "offer" of employment to
Ross during said settlement negotiations in January 1964
tolled further liability of Respondents for backpay
resulting from their discriminatory failure to refer Ross to
the Manta job on December 2, 1963.
4. Whether the "actual replacement" earnings formula
used by the General Counsel to determine Ross' loss of
earnings , as a result of the discriminatory failures to refer
Ross to the Foster-Wheeler job commencing July 30,
1963, and the Manta job commencing December 2, 1963,
was appropriate and reasonable.
5. Whether the "representative replacement" earnings
formula, based upon the average earnings of five
"representative" operating engineers , used by the General
Counsel to determine Ross' loss of earnings during the
'The contrary has been established by decisions of the Board , affirmed
by the Court of Appeals - Local 1566, International Longshoremen's
Association (Maritime Ship Cleaning and Maintenance Co.), 122 NLRB
967, enfd 278 F 2d 883 (C A 3), Supp. Dec, 145 NLRB 1417, Local 138,
International Union of Operating Engineers , AFL-CIO (Nassau and
Suffolk Contractors Assoc . Inc ), 123 NLRB 1393, enfd . 293 F.2d 187
(C.A. 2), Supp. Dec, 151 NLRB 972, reversed and remanded , 380 F.2d
244 (C.A 2). Moreover , the Board 's Order, which admittedly covers
continuing discrimination against Ross, is binding upon me.
period of alleged continuing discrimination after the
termination on January 10, 1965, of Ross' replacement on
the Manta job, was appropriate and reasonable.
6. Whether Ross, during the relevant period of backpay
liability, incurred willful loss of employment so as to
eliminate such periods from Respondents' liability for
backpay or terminate all liability thereafter
7. Whether Respondents have engaged in continuing
discrimination against Ross since the discrimination found
in the prior Decision by, inter alias
(a) Continued discriminatory failures to refer and
referrals of Ross.
(b) Strike action and work stoppages on March 29 and
April 5, 1965, resulting in the termination of Ross'
employment.
(c) The referral of Ross to employment on May 10,
1965, allegedly resulting in his loss of overtime, coverage
under Respondents' Welfare and Pension Funds, and his
being required to work without the assistance of an oiler
(d) Ross' failure to receive positions as a steward or
foreman.
(e) Ross' loss of coverage under Respondents' Welfare
and Pension Funds.
(f) The termination of Ross' employment at the
Riley-Stoker job on August 24, 1966.
(g) Ross' disparate income after January 10, 1965,
vis-a-vis the average earnings of the General Counsel's
"representative" group.
8. Whether, without regard to Ross, Respondents
continued their discriminatory preferential hiring hall
referrals and failed to maintain records adequate to
disclose fully the basis on which each referral was made.
9. Whether Roberts, the Union's business manager and
a named Respondent, should be a party to any backpay
order.
B. Background Facts
Respondents operate an exclusive hiring hall referral
system for operating engineers by agreement with the
various employers in Respondents' geographic area. In its
prior Decision the Board found a pattern of continuing
discrimination by Respondents against Ross, commencing
with the original discriminatory failure to refer Ross on
July 30, 1963, through Respondents' strike on or about
October 26, 1964, resulting in Ross' loss of employment,
the last incident litigated in the prior hearings. The
detailed findings of fact in the prior Decision encompass a
period from 1962 through and including the strike on or
about October 26, 1964, and will not be repeated herein.
However, because of the General Counsel's contention
herein of continuing discrimination both against Ross and
generally, based upon the Board's Order requiring that
Ross be made whole for loss of pay suffered as the result
of Respondents' prior and continuing discriminations, and
Respondents' contention that during the backpay period
encompassed by the prior discriminations, Ross was guilty
of willful loss of employment and earnings
notwithstanding the Board's finding of continuing
discrimination by Respondents, a review of the highlights
of the previously found discrimination and other acts of
discrimination not specifically found but occurring during
the same period of time is considered appropriate and is
herein made for the purpose of background with respect
to such contentions.
The prior Decision reveals a long history of personal
animosity between Ross and Roberts because of
intraunion disagreements and rivalry. During 1962, Ross
INTL. OPERATING ENGINEERS, LOCAL 925
was one of the leaders of the opposition to Roberts'
reelection as the Union's business manager. Roberts was
reelected. During 1963, Ross accused the union treasurer,
Clark, of misuse of funds. As a result, intraunion charges
of violating union rules were filed against Ross. Thereafter
Ross filed intraunion charges of misconduct in office
against Roberts. On July 30, 1963, the first instance of
specific discrimination against Ross found in the prior
Decision occurred, when McCrae was discriminatorily
referred to a job instead of Ross. In August 1963, Ross
was tried and found guilty on the intraunion charges, fined
$200 and placed on 2 years' probation. This was
subsequently reduced by the International to a $50 fine
only. In September of 1963, Roberts was tried on Ross'
charges and acquitted.
On November 29, 1963, as found in the prior Decision,
Lucas was discriminatorily sent to a job commencing
December 2 instead of Ross. On December 4, 1963, Ross
filed unfair labor practice charges against Respondents.
During January 1964, settlement negotiations took place
culminating in a settlement agreement approved by the
Regional Director January 29, 1964. That same day
intraunion charges were filed, accusing Ross of violating
the Union's rules by filing the charge with the Board,
which ultimately resulted in the substantial negation of the
settlement agreement and its being set aside by the
Regional Director. On February 3, 1964, Ross filed
another unfair labor practice charge with the Board
because of the intraunion charges. On March 3, 1964,
Ross was found guilty of the intraunion charges and fined
$1,025 by Respondents, which action was found a
violation of the Act in the prior Decision. Thereafter
Respondents rejected Ross' union dues during the months
of April, May and June 1964 because he had not paid this
fine. Under Respondents' by-laws, the failure to pay dues
for 3 months resulted in complete suspension of
membership. During June 1964, Roberts advised Bushnell,
Ross' then employer, of Ross' fine and impending
suspension as of July I and that Bushnell would probably
encounter union trouble if Ross were employed after July
1. On June 25 and 29, 1964, as found in the prior
Decision, Respondents discriminatorily referred McRae
and Mobley to jobs instead of Ross.
On July I, Ross was suspended from union membership
because of 3 months ' unpaid dues . Respondents'
membership was so advised at the monthly meeting July
3, 1964. That same day Ross was removed from the
out-of-work list, used by Respondents to register
employees for referral to employers pursuant to their job
requests, allegedly for failure to check in by telephone as
required by Respondents ' rules. Although Respondents'
hiring hall agreement contained a provision requiring
registrants to report once a week to remain on the
out-of-work list,, the record establishes that such weekly
requirement was not observed , no records of such checkins
were maintained , and no other registrant had ever been
removed from the out-of-work list for failing to check in
in less than 2 weeks . Respondents contend that this
removal of Ross from the list for failing to check in
constituted one of his alleged periods of willful
unavailability for employment. On the contrary, the
record establishes that this was another instance of
discrimination against Ross , by removing him from the
list and causing him to be on the bottom when he
reregistered thereby diminishing his chances of job
referral. Ross had checked in on June 23 and thus July 3
was only 10 days thereafter. Roberts admitted that he
never dropped an employee from the list for failure to
761
check in in less than 2 or 3 weeks and more probably a
month, and that no records were maintained of those who
had checked in. Roberts' assistant and secretary admitted
that she kept the only informal and unofficial record of
who had checked in, would notify Roberts only if a
registrant had not checked in for 2 or 3 weeks, and the
decision whether he should be dropped from the list was
thereafter made by Roberts. On July 10, 1964, Ross,
having learned that he had been removed from the
out-of-work list, registered again. On July 20 Respondents
again removed Ross from the list for failing to check in,
again establishing discrimination against him rather than
willful loss of employment as contended. Ross reregistered
July 21.
On July 24, 1964, as found in the prior Decision,
Respondents referred Ross to a Bushnell job and were
responsible for the resulting strike and walkoff causing
Ross' discriminatory discharge. On July 28 and again on
August 3, 1964, as found in the prior Decision,
Respondents discriminatorily referred Guess to jobs
instead of Ross. Later on August 3, Ross left town and
drove to the Carolinas and Tennessee seeking
employment, without success, primarily because he did not
have a validly stamped union membership book because
of his suspension. On August 11, Respondents again
removed Ross, who had checked in July 31, from the
out-of-work list for failing to check in within 1 week,
again discriminating against him by causing him to be on
the bottom of the list when he next registered. On August
21, Ross reregistered. On August 26, 1964, as found in the
prior Decision, Respondents again were responsible for a
strike and walkoff discriminatorily causing Ross'
termination. Between June 1964, when Roberts warned
Bushnell of Ross' impending suspension from the Union
and possible labor trouble, and October 1964, nine
different employers informed Roberts that they did not
want Ross referred to any of their jobs, many because
Roberts had advised them of the possibility of "labor
troubles" if Ross was hired and the others because of
Respondents' strikes on July 24 and August 26. On
September 28, 1964, Ross was referred to employment
with J. S. Stephens. On or about October 7, 1964,
Roberts warned Stephens of possible labor trouble by
Respondents' members both on that project and on any
other Stephens might have because Ross was working for
them. On October 19, 1964, by order of the International
Union, Respondents accepted Ross' dues and validated his
union book. Nevertheless, between October 21 and 26,
1964, as found in the previous Decision, Respondents were
again responsible for striking and walking off the
Stephens job, causing Ross' discriminatory termination
October 26, 1964. This was the last incident litigated in
the prior proceeding.
On December 4, 1964, Ross filed an amended charge
with the Board. On December 9, 1964, the Regional
Director set aside the settlement agreement of January 29,
1964, and issued the complaint and notice of hearing.
Hearings were held between February 23 and March 2,
1965. Trial Examiner Ricci issued his decision April 28,
1965, which the Board affirmed, with a modification of
the Order, August 24, 1965.
'Article III , Sec 18.
762 DECISMNS OF NATIONAL LABOR RELATIONS BOARD
C. The Board 's Amended Order
As hereinbefore noted, the General Counsel contends
that the Board ' s Order requires that Respondents make
Ross whole for any loss of earnings from the date of the
original discrimination , July 30, 1963, until Respondents
fully comply with all other provisions of the Order,
specifically those requiring them to operate their hiring
referral system in a nondiscriminatory manner and to
keep and make available for Board inspection permanent
records of the hiring hall referral operations adequate to
disclose fully the basis on which each referral is made,
independently of any continuing discrimination by
Respondents against Ross . On the other hand,
Respondents contend that the Board's Order requires
them to make Ross whole only for any loss of pay
resulting from the previously found discrimination and
any established further discrimination against him,
contending that the other provisions of the Board Order
are unrelated to any loss of earnings incurred by Ross
sans any showing of continued discrimination against him.
A careful consideration of the Board's Order, as
amended December 11, 1967, as well as obvious logical
considerations, leads clearly to the conclusion that the
Board's Order was intended to require Respondents to
make Ross whole for any loss of earnings suffered as a
result of their prior and continuing discrimination against
him, and that their liability for such reimbursement
terminates upon their cessation of such discrimination
against Ross . The original Order, with respect to backpay,
was limited to making Ross whole for any loss he had
suffered as a result of the three specific strikes and the six
specific failures to refer found in the original Decision.
Upon reconsideration after notice to show cause and
appropriate responses , the Board amended that portion of
the Order, stating:
In the Board's judgment, enforcement of its Order,
though it would bring about a cessation of
Respondents' discriminatory preferential referral
practices , would not serve the public interest in making
whole Ross for loss of wages suffered by reason of
Respondents' discriminatory application of its referral
procedures to him from the time of the hearing to the
time it conformed its practices to that which the Board
Order requires and the law commands . In this respect,
we believe the Order to be deficient in furthering the
policies of the Act, and we shall therefore modify it to
conform to our general practice of requiring a
Respondent to make whole employees for loss of pay
suffered by reason of its discrimination against them.
[Emphasis supplied.]
The Board also observed that it had found in its
original Decision:
The major offense with which the remedy must deal if
its proper purpose is to be achieved is the pattern of
continuing discrimination in the operation of the
Union' s hiring hall. The record clearly reveals a fixed
determination by Business Agent Roberts , alone in
charge of the hall, to disregard applicable statutory
provisions and to persist in his illegal treatment of Ross
through the device of the exclusive referral system.
Thus , it cannot be disputed that the Board found a
pattern of continuing discrimination by Respondents
against Ross . In connection with its modification of the
Order, the Board further noted: "As we have continuing
jurisdiction in this case , and as the General Counsel must
necessarily prove that any claimed loss of wages during
the expanded backpay period resulted from discriminatory
refusals to refer Ross, we see no reason to refrain from
correcting a perceived defect in the original Order." The
Board thereupon amended its original Order as follows:
Reimburse and make whole Herman Dewey Ross for
any loss of pay suffered because of the discriminations
practiced against him , as found by the Board in this
Decision, from the date the record herein shows such
discrimination began until such time as the
discrimination ceases or has ceased and Respondent
fully complies or has complied with the Board's Order
in all pertinent respects, by payment to him of the sum
of money equal to the amount which, absent the unfair
labor practices, he would normally have earned as
wages during the period involved, less net earnings ....
[Emphasis supplied.]
From the foregoing, it seems clear, and I find, that the
Board's Order was designed to make Ross whole for all
discrimination against him by Respondents , including that
continuing after that found in the original Decision. As
noted above, all of the Board's references to making Ross
whole for loss of wages specifically referred to
discrimination against him. The General Counsel's
contention that Respondents are required to make Ross
whole for any loss of pay he may have suffered until
Respondents fully comply with all provisions of the
Board's Order, independently of any continuing
discrimination against Ross, is based primarily upon that
portion of the Board's Order above quoted, stating: "until
such time as the discrimination ceases or has ceased and
Respondent fully complies or has complied with the
Board's Order in all pertinent respects." (Emphasis
supplied.) In spite of the conjunction used, the inclusion of
the qualifying phrase, "in all pertinent respects," makes
clear that the General Counsel's construction is incorrect.
Otherwise, such qualification would have been redundant
and the Order would no doubt have read: "Until . .
Respondent fully complies or has complied with the
Board 's Order." Logically, there would appear to be no
causal connection between requiring Respondents to make
Ross whole for loss of earnings and compliance with some
of the other provisions of the Order, e.g., maintaining
records adequate to disclose fully the basis on which
referrals are made, as distinguished from continuing
discrimination against Ross.
I conclude and find that the Board's Order requires
Respondents to make Ross whole for any loss of pay
suffered as a result of the previously found discrimination
and any continuing discrimination against him until such
discrimination ceases or has ceased.
D. The Prior Settlement Agreement
On January 29, 1964, Respondents entered into a
settlement agreement approved by the Regional Director
disposing of the charge in Case 12-CB-734, under the
terms of which Respondents agreed, inter alia , to post
appropriate notices, pay Ross $200 in backpay, and place
him on top of the out-of-work list. That same day
Respondents filed intraunion charges against Ross for
filing that charge with the Board, ultimately resulting in
his being fined $1,025 in violation of the Act and
suspended from membership, thus continuing their
discrimination against Ross and substantially negating the
effect of the settlement agreement . On December 9, 1964,
the Regional Director set aside the settlement agreement
and issued the complaint herein. Nevertheless,
INTL. OPERATING ENGINEERS , LOCAL 925
Respondents contend that the $200 in backpay agreed to
in the set-aside settlement, admittedly a negotiated figure
less than Ross' actual loss of earnings at the time, bars
any backpay under the Board's Order for Ross' loss of
earnings as a result of not being referred to the Manta
job, the subject of the charge and settlement agreement.
In fact, as the findings hereinafter demonstrate, Ross' loss
of earnings as a result of being discriminatorily deprived
of the Manta job ran into thousands of dollars.
Respondents' contention that the prior negotiation of
backpay under the settlement agreement which was set
aside now bars ordering the payment of the actual loss
incurred as a result of their discrimination is without
merit. Respondents' previous motion, to dismiss this
allegation of the Backpay Specifications for the same
reasons, was denied by the Trial Examiner to whom it was
referred. As he pointed out in his order, the established
Board policy of setting aside a settlement agreement
which is violated by postsettlement conduct permits the
reevaluation of backpay, with a credit for the amount paid
under such settlement should an increase in backpay be
warranted. As the Board has stated: "It is well settled that
independent or continuing violations of the Act constitute
a breech of the Settlement Agreement and justify the
Regional Director in setting aside the agreement and
proceding with a complaint which covers both
pre-settlement and post-settlement violations."' It is of
course patent that the $200 paid by Respondents under
the set-aside settlement must be credited to them as an
offset against any loss of earnings suffered by Ross as a
result of their discrimination.
E. The Alleged "Offer of Reinstatement" to the
Manta Job
Respondents contend that during the settlement
negotiations in January leading up to the settlement
agreement of January 29, 1964, thereafter set aside for the
reasons noted above, they offered Ross the same or
similar type of crane job with Manta which he had been
discriminatorily denied December 2, 1963, and was the
subject of the charge in Case 12-CB-734. Respondents
contend, by analogy with the doctrine applicable where
employers offer employees unconditional reinstatement to
jobs of which they have been discriminatorily deprived,
that their "offer" likewise tolled the further running of
backpay. During the settlement negotiations Respondents
made several proposals of employment of Ross in other
jobs at Manta, which were part and parcel of
Respondents' offers of settlement conditioned upon the
acceptance of a lower and negotiated amount of backpay
and Ross' withdrawal of the charge against Respondents.
The record establishes that at no time did Respondents
make Ross an unconditional offer of reinstatement or
employment to the same job which he had been
discriminatorily denied, which is the sine qua non for the
tolling of liability for backpay after discrimination. As a
matter of fact the record reveals that Respondents never
offered Ross personally any employment at Manta, let
alone employment in the actual job which he would have
had absent Respondents' discrimination. Respondents'
brief concedes that offers of employment conditioned on
settlement and withdrawal of charges are not
unconditional offers and do not toll liability for backpay.
'Southeastern Stages, Inc., 174 NLRB No. 85, and cases cited therein.
763
However, they contend that one unconditional offer was
made, although the record clearly establishes the contrary.
Lucas was referred to the Manta job commencing
December 2, 1963, instead of Ross, who was above Lucas
on the out-of-work list and should have been referred, as
found in the prior Decision. On or about December 18,
1963, Manta transferred Lucas to another job operating a
wheelabrator and as a result Respondents referred
Heritage to Manta to operate the overhead bridge crane
previously operated by Lucas. On January 16, 1964,
Respondents' attorney advised the Regional Office by
letter that Heritage was willing to step down from that job
and that Respondents would refer Ross to it if Ross
would withdraw his charge with the Board. Respondents'
brief concedes that this offer did not constitute an "offer
of reinstatement" valid to toll the running of backpay.
On or about January 20, 1964, Manta commenced the
operation of a second or night shift, resulting in the need
for additional crane operators. On January 23,
Respondents' attorney advised the Regional Office in
writing that Respondents had received a request from
Manta for a bridge crane operator and that they would be
willing as part of a settlement of the case, including the
withdrawal of the charge and the acceptance of a reduced
amount of backpay, to refer Ross to that position. On
January 24, 1964, Respondents' attorney called Ross at
his place of employment in Sebring and at his home later
that evening in an attempt to convey such offer to Ross.
Ross was never contacted and no message was left
conveying such offer. It is clear that no offer was made to
Ross personally at the time. Although this Manta job was
not the job to which Lucas had been sent, Respondents
contend that this job would have been as a bridge crane
operator on the first shift, because another operator had
indicated a desire to be transferred from the first to the
second shift. The record establishes that that operator
changed his mind after learning that there would be no
overtime on the second shift and in fact did not transfer to
the second shift. This "offer" of January 23 and 24, 1964,
constitutes Respondents' alleged unconditional offer of
employment to the same job which Ross would have had
but for the discrimination. Clearly this was not an offer of
employment to the same job, was not conveyed to Ross,
was part of the settlement negotiations, and was
conditioned upon acceptance of the other elements of the
settlement and withdrawal of the charge.
On or about January 31, 1964, Roberts offered Ross an
overhead crane job at Manta on the third shift, after Ross
had already accepted another job from Respondents at
Lakeland. Ross declined, because he was unable to sleep
during the day. Respondents again concede that this offer
did not toll their liability for backpay on the Manta job.
The record establishes, and I find, that at no time did
Respondents make Ross an unconditional offer of
employment to the job which he would have had but for
Respondents' discrimination, thereby tolling their liability
for further backpay.
Respondents' related contention that Ross' acceptance
of the settlement agreement and the Regional Director's
approval thereof placed Respondents in a position where
they were unable thereafter to do anything for him with
respect to the Manta job is even less valid. Any
deletorious effects upon Respondents' position thereafter
were caused by Respondents' violation of the settlement
agreement and continued discrimination against Ross.
764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
F. The "Actual Replacement" Earnings Formulae
Used With Respect to The Foster- Wheeler and
Manta Jobs
1. The Foster-Wheeler Job
The first discrimination against Ross found in the prior
Decision was the referral of McCrae instead of Ross to
the Foster-Wheeler job commencing July 30, 1963. With
admitted periods of unavailability of Ross because of
illness, the General Counsel used the actual replacement
earnings of McCrae until the commencement of the
Manta job on December 2, 1963, as the appropriate
measure of what Ross would have earned absent
discrimination. Respondents do not seriously contend that
this actual replacement formula with respect to the
Foster-Wheeler job is incorrect. Respondents do contend,
without merit, that because McCrae's employment
continued until December l t and thus overlapped the
Manta discrimination, the claim for backpay from the
Manta job commencing December 2 is punitive. The
Backpay Specification does not claim earnings from the
Foster-Wheeler job after the commencement of the Manta
job and thus there is no overlapping backpay claimed. In
fact, although McCrae earned more than the Manta job
paid during this 10-day period, the latter earnings were
claimed. Respondents also claim, without merit, lower
weekly wages on the Foster-Wheeler job than those set
forth in the Backpay Specification, in spite of stipulating
at the hearings herein the accuracy of the computations of
both backpay and interim earnings in such Specification.
In one respect Respondents' contentions with respect to
the General Counsel's backpay claims for Ross' loss of
pay with respect to the Foster-Wheeler job are correct.
The General Counsel conceded Ross' unavailability for
employment on this job from its inception July 30 to
September 30 because of Ross' illness, and thus claimed
backpay only for the fourth quarter of 1963, minus an
additional 3-day period of unavailability in December.
Respondents contend that the record establishes that Ross
in fact was unavailable because of illness until October 21,
1963, and thus that this additional period should also be
deducted from any loss of earnings with respect to the
Foster-Wheeler job. Although there was considerable
dispute in the record about this matter, the signed
statements of Ross and his physician establish that
Respondents' contention is correct. It is undisputed that
Ross was unavailable for employment and under the care
of a physician because of a heart condition until at least
September 30, 1963. Ross testified that on September 23
Dr. Suarez, his physician, advised him that he would be
able to return to work September 30. Thereafter Ross
presented Roberts with a signed statement of Dr. Suarez
to this effect. Upon the advice of Respondents' attorney,
because Ross' employment from time to time required
him to operate a truck crane on public thoroughfares and
the danger and possible liability inherent therein, Roberts
requested Ross to get additional clearance from a heart
specialist. Apparently Respondents also conveyed this
request to Dr. Suarez. On October 14, such additional
examination was made and further clearance secured. The
report from the consulting heart specialist stated that
Ross was available to return to work at that time. Thus,
the General Counsel contends that Ross was available on
and after September 30, 1963, and that Respondents'
requirement that Ross secure additional clearance from
his heart specialist was merely further discrimination and
did not establish that Ross was unavailable for
employment October I.
This position however overlooks the written insurance
statements signed by both Ross and Dr. Suarez, which
stated that Ross was unavailable for employment and
incapacitated until October 21, 1963. Ross' disability was
covered by Respondents' Welfare Fund. Ross' and Dr.
Suarez' written statements were required by the insurance
company covering Respondents' Welfare Fund, and
admittedly Ross received payment for disability from
October 1 through October 21, in addition to the prior
period. Respondents' request, upon advice of counsel, for
an additional cardiologist consultation does not appear
unreasonable or discriminatory under the circumstances.
More significantly, Ross' and Dr. Suarez' written
statements, contrary to their testimony, clearly admit that
Ross was unavailable for employment because of illness
until October 21. On September 23 Dr. Suarez signed a
statement that Ross was physically qualified to return to
work on September 30. On September 27 Dr. Suarez
signed a statement to the insurance company that Ross
was still disabled and should be able to return to work on
October 31. On September 30 Ross signed a statement to
the insurance company that he would be able to return to
work October 31. On October 24 Dr. Suarez signed a
statement to the insurance company that Ross had been
continuously disabled and unable to work from July 15 to
October 20, 1963, and was able to return to work October
21. On the same day Ross also signed a statement to the
insurance company that he was first able to return to
work October 21. Dr. Suarez' testimony, when confronted
with his conflicting signed statements, was anything but a
model of clarity. Under the circumstances, I conclude and
find that Ross was unavailable for employment from on
or about July 30 to October 21, 1963. Accordingly, this
additional period of time will be deducted in computing
Ross' gross backpay during the fourth quarter of 1963. I
further conclude and find that the utilization of the actual
replacement formula based upon McCrae ' s earnings to
determine Ross ' gross loss of earnings prior to the Manta
job was reasonable and appropriate.
2. The Manta job
As found in the previous Decision, on December 2,
1963, Respondents discriminatorily referred Lucas instead
of Ross to employment with the Manta Company as an
overhead bridge crane operator. Lucas was continuously
employed by Manta until January 10, 1965. The General
Counsel again used the actual replacement earnings
formula to compute what Ross' gross backpay would have
been absent discrimination . McCrae ' s earnings on the
Foster-Wheeler job were used to establish Ross' gross loss
of earnings until December 2, 1963 . Aside from their
contention of termination of liability with respect to the
Manta discrimination, already considered , Respondents
contend that Lucas' earnings do not represent a proper
actual replacement formula , i.e., what Ross normally
would have earned absent discrimination , because on
December 18, 1963, Manta transferred Lucas from the
overhead bridge crane to operating a wheelabrator, a
different type of equipment , and on March 2 promoted
him to the position of foreman , or master mechanic.
Under the terms of the contract between Respondents
and the various area employers , employers on
construction jobsites were required to appoint a foreman,
previously called a master mechanic , whenever the number
of operating engineers employed totaled five. Apparently
this provision was not applicable to Manta because Manta
INTL. OPERATING ENGINEERS, LOCAL 925
was engaged in a plant maintenance project rather than a
construction project After Manta had approximately 31
operating engineers in its employ, Roberts advised Manta
that it was required to appoint a foreman. There is
nothing in this record to establish what contractual
requirements, if any, existed concerning the employment
of foremen on plant maintenance jobsites as distinguished
from construction jobsites Manta selected Lucas as the
foreman primarily because he was the first operating
engineer employed by Manta on that project. Under the
existing contract, foremen received 50 cents an hour more
than the top or crane operators' scale Respondents point
out that these changes were made by Manta and that
Ross had never operated a wheelabrator or been employed
as a foreman However, the record establishes that Lucas
likewise had never operated a wheelabrator and had never
previously been employed as a foreman
Throughout these proceedings the General Counsel
contended that Respondents alone selected and/or cleared
individuals for employment as foremen and that such
selection was not made by the employers The record
establishes the contrary Both the contract between
Respondents and the area employers and the contract
between the International union and interstate employers,
also received in evidence, provide that the selection of
foremen shall be done by the employers Numerous
employers testified that they selected the individual to be
the foreman when one was required by the terms of the
contract Numerous members of Respondent Union
corroborated this fact The record establishes that many
employers, particularly those from outside the geographic
area who were unfamiliar with the local employees,
requested recommendations from Respondents as to men
they considered qualified as foreman Although the
appointment of a foreman by Manta was required by
Roberts, nevertheless the record establishes that Manta
and not Roberts selected Lucas to be the foreman
Lucas' rate of pay was unchanged as a result of his
transfer December 18, 1963, to the job of operating the
wheelabrator Although Manta's original agreement with
Respondent had provided that the pay scale for
wheelabrator operator should be lower than crane or top
scale, nevertheless Manta continued Lucas at the crane
scale. Thus, prior to his transfer on March 2, 1964, to the
position of foreman, his rate of pay was the same as a
crane operator The record establishes that Lucas, like
Ross, was a skilled crane operator but certainly no more
qualified or expert than Ross It further establishes that
the operation of the wheelabrator was a simple matter,
consisting mostly of pushing buttons, and easily learned in
a day or two by any experienced equipment operator A
well qualified expert from the wheelabrator manufacturer
testified that in his opinion Ross would have F ,id no
difficulty whatsoever in learning to operate the
wheelabrator in short order. Lucas himself admitted that
the operation of the wheelabrator was a simple matter,
and that the only difficulty in connection with the job was
the maintenance of minor parts which he performed
Manta, his brother and repairmen from the wheelabrator
manufacturer handled maintenance of the major parts.
The record establishes that Lucas' duties remained
substantially unchanged after his promotion to foreman
Unlike the construction jobs where the foremen were
specifically required by the contract not to perform the
work of operating engineers except in an emergency,
Lucas continued to perform substantially the same work
and duties for Manta as he had performed prior to his
promotion to foreman, and in general exercised no
765
supervisory authority.
Respondents contend that Lucas' earnings after he
became a wheelabrator operator and later a foreman do
not represent an appropriate replacement formula to
establish what Ross would have earned because Manta
selected Lucas for transfer to the wheelabrator and
promotion to foreman. The record establishes that but for
the discriminatory referral of Lucas in place of Ross,
Ross undoubtedly would have experienced the same
opportunities Lucas was the first crane operator referred
by Respondents to Manta, as Ross would have been
absent the discrimination Manta testified that when his
company started the project on or about December 2,
1963, Manta planned to use his brother as the
wheelabrator operator He stated that on December 18 he
decided to transfer Lucas to the wheelabrator instead
because he figured Lucas might be able to run it, and in
any event Manta and his brother, both of whom were
experienced in its operation and maintenance, would be
there in the event of any difficulties. Manta said that
during the first 2 weeks of Lucas' employment Manta
observed that he was a skilled crane operator, seemed to
be interested in the operation of the wheelabrator and
Manta decided to give him a chance to run it Manta
conceded that its operation was a simple matter which any
engineer could be trained to do in a short period of time,
and that the only difficulty was its maintenance or the
mechanical problems encountered He stated that during
Lucas' period of employment he learned to handle the
minor mechanical difficulties but that Manta, his brother
and the ironworkers handled all major repairs
While there is now no way of telling with certainty,
because of Respondents' discriminatory failure to refer
Ross to this job, whether his experience would in fact have
been exactly the same as that of Lucas, it seems clear and
I find that Ross, as the first expert crane operator hired
and therefore the oldest employee on the project, would in
all probability have enjoyed the same experience. The
record establishes that Manta appointed a foreman on
March 2 because Roberts instructed him to do so
pursuant to their arrangement While it is clear that
Manta did not want to appoir. a foreman, telling Roberts
that he, Manta, acted as foreman himself and did not
need one, nevertheless it is equally clear, as Manta
testified, that he, not Roberts, selected the foreman.
Manta testified that he selected Lucas as foreman because
he was the oldest employee on the job, was familiar with
the equipment and should be able to handle it better than
any of the other employees It seems significant that
Lucas never before worked for Manta, operated a
wheelabrator or was employed as a foreman. I am
satisfied and find that but for the discrimination against
Ross he would have enjoyed substantially the same
employment experience as Lucas, and that the utilization
of the actual replacement formula based upon Lucas'
earnings to determine Ross' gross loss of earnings until
the termination of Lucas' employment was reasonable and
appropriate. It is of course correct as Respondents point
out that Lucas earned more as a foreman than a top scale
operating engineer However, it was Respondents'
discrimination which now prevents the eggs from being
unscrambled
G. The "Representative Replacement " Earnings
Formula Used After the Termination
of the Manta Job
Because a specific replacement for Ross was not readily
identifiable after the termination of the Manta job on
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
January 10, 1965, the General Counsel used a so-called
representative replacement earnings formula, based upon
the average earnings of five expert crane operators, to
compute Ross' gross loss of earnings allegedly caused by
Respondents' continuing discrimination. The General
Counsel selected five specific crane operators from a
group of fifteen The record establishes that approximately
60 or more crane operators, as distinguished from over
100 operating engineers, used Respondents' hiring hall
referral procedures from time to time The record further
establishes, as found in the prior Decision, that Ross was
one of the most expert crane operators using Respondents'
referral system The General Counsel admittedly selected
five of the highest earning crane operators because of
Ross' found and conceded outstanding ability as a crane
operator, and apparently limited the selection to 5 instead
of 10 or 15 because of the additional time and effort
required to assemble the earnings of such larger groups
Respondents, in their answer and from the inception of
the hearings, objected to such "representative" group on
the grounds that the earnings of the five were not in fact
representative of what Ross' earnings normally would
have been absent discrimination because the group was
composed of full-time employees with guaranteed higher
weekly incomes not using the referral system during the
relevant period and foremen whose earnings admittedly
were substantially greater than crane operators, who under
Respondents' contract were paid the top scale for
nonsupervisory employees Although Respondents' answer
did not set forth any alternative representative group,
allegedly because of the failure of the Specifications to
specify the claimed continuing discrimination against
Ross, and the General Counsel selected only five because
of the difficulties inherent in collecting and computing the
earnings of a larger group, during the course of the
hearings the General Counsel placed in evidence the
earnings of eight additional expert crane operators for the
years 1965 through 1967, and approximately 30 additional
alleged expert crane operators for the same years. In view
of the finding hereinafter made that Respondents'
discrimination against Ross terminated on or about April
30, 1965, and that the last job lost by Ross as a result of
such discrimination terminated June 30, 1965, we are here
concerned actually with only the appropriate average
earnings for the first two quarters of 1965
Respondent's contention that the "representative"
group of five crane operators selected by the General
Counsel is not appropriate and reasonable is valid. The
five so-called representative crane operators set forth in
Appendix B of the Backpay Specifications were David
Ashmore, Duane Cavey, James Collette, George White
and Jospeh Zorn. Appendix B, as subsequently amended,
set forth their quarterly earnings for the yc.ais 1965
through 1967 Of the five, only Zorn during 1965 was a
"representative" crane operator obtaining employment
through the use of Respondents' hiring referral procedures
and not receiving either a guaranteed weekly wage in
excess of the scale paid crane operators or working as a
full-time foreman. During 1965, foremen received $.50 an
hour in excess of the top, or crane operator's, scale The
record establishes that Ashmore and Cavey were
employed as foremen throughout 1965, and thus their
earnings exceeded those of expert crane operators During
1965, Collette and White were both permanently
employed by their respective employers with 40 hours
guaranteed weekly at a rate per hour above the top-scale
paid crane operators. The General Counsel contends that
because Ross admittedly was one of the most, if not the
most, expert crane operator using the hall, his earnings
should be comparable with those of any other crane
operator This is patently unsound when the comparison is
with crane operators employed as foremen or with
guaranteed full-time weekly employment at a rate higher
than that paid crane operators As previsouly found
herein, foremen were selected and appointed by the
employers and not by Respondents, contrary to the
General Counsel's contention Moreover, the record
establishes that Ross had never been employed as a
foreman. Foremen, although regularly selected from
among the crane operators, were selected on the basis of
many factors other than their skill as crane operators,
including their knowledge of equipment, ability to evaluate
workloads and the prospective daily need for employees
and equipment, ability to hardle men and get along with
the operating engineers under their supervision, prior
experience as foremen, and the ability to exercise the
attributes of supervision, including the power to transfer
and discharge men These same considerations, advanced
by Respondents in connection with the use of Lucas'
earnings while a foreman on the Manta job as a
"replacement" for Ross, were not valid there because the
record establishes that Lucas, as Ross would have been,
was selected by Manta merely because he was compelled
to appoint a foreman and Lucas was the senior employee
most experienced with the equipment, whose duties
thereafter remained substantially unchanged and did not
include actual supervision and the other duties customarily
exercised by a foreman on construction jobs
The record also establishes that while there were
approximately 60 or more crane operators who used
Respondents' referral system, many of them were not
expert crane operators in a class with Ross, able to handle
all kinds of cranes, particularly the large cranes with long
booms, and thus their availability to fill jobs and earnings
were necessarily less than the expert crane operators.
Some of the same deficiencies applicable to the five
"representative" crane opL ators also apply with respect
to the earnings of the additional eight crane operators
placed in evidence by the General Counsel and the 30
placed in evidence by Respondents, including the fact that
some of them were employed as foremen during the
period in question and others were not expert crane
operators comparable to Ross The various crane
operators named by Respondents and the General Counsel
testified as to their experience and ability as well as their
earnings. Of the eight additional crane operators whose
annual earnings were presented by the General Counsel,
the record establishes that during 1965 Heritage, Kersey,
Lucas and Snyder were expert crane operators comparable
to Ross whereas Raulerson, Hickey and Peacock were
employed full time as foremen, and McCardle was a
full-time employee with a guaranteed weekly income and
accordingly cannot be considered representative
Of the 30 crane operators called by Respondents
(excluding four who were also included in the additional
eight named by the General Counsel), the record reveals
that 17 were well qualified expert crane operators not
employed as foremen or at a guaranteed weekly wage or
at higher pay than top scale, and that the other 13 were
either not expert crane operators comparable to Ross
because of lack of ability to handle all types of cranes,
employed as foremen, or receiving guaranteed pay in
INTL. OPERATING ENGINEERS, LOCAL 925 767
excess of top scale. As hereinafter found, 75 percent of the
crane operators, including substantially all of the real
experts, would not accept low-scale employment. The 13
crane operators found not to be representative , with the
reasons in parentheses , are: Plaskiewicz ( not expert),
Graham (primarily heavy construction and low scale
work), McLeod (primarily low scale work), Wetterington
(primarily low scale work), Nichols (on probation and low
scale work), Surrency (foreman), Worley (disabled),
Hampton (low scale work), Roberts (employed outside
jurisdiction), Via (no 1965 earnings available), McCoy
(guaranteed excess earnings ), Lee (low scale work), and
De Mountmollin (low scale work). Thus the record reveals
a group of 22 expert crane operators (one of the original
5, 4 of the additional 8, and 17 of the additional 30)
whose average earnings are appropriate and reasonable for
use in determining Ross' gross loss of earnings as a result
of Respondents ' continued discrimination after January
10, 1965.
H. Alleged Willful Loss ofEmplovment
Respondents contend that during certain portions of the
claimed backpay period Ross incurred willful loss of
employment and earnings by not being available when
Respondents called for job referrals, by being removed by
Respondents from the out-of -work list, and by refusing
certain jobs offered by Respondents. The first
discrimination found in the prior Decision occurred July
30, 1963, and the claimed period of backpay ran to
December II, 1967. In support of their contention that
Ross incurred periods of willful loss of employment,
Respondents ' answer included three attachments,
designated No. 1, 2A and 2B. No. 1, derived from
Respondents ' out-of-work lists, tabulated the dates of
Ross' employment through the referral system from
December 27, 1963 to the end of 1967, with a
corresponding tabulation of the dates Ross checked back
in on the out - of-work list . In other words, the first column
listed the dates that Ross actually commenced
employment on the jobs to which he was referred by
Respondents , and the second column listed the dates on
which he checked back in on the out-of-work list after
each job. Respondents' 2A purports to be a list of their
contacts and attempted contacts with Ross for job
referrals , including those occasions when Respondents
allegedly called Ross but were unable to contact him,
from July 1964 through 1967.
Respondents' 2A, commencing immediately after Ross
was suspended from union membership , also disclosed
each instance when Ross either accepted or rejected
offered employment. Unlike No. I, it did not cover the
period prior to July 1964, because Respondents did not
begin keeping a record of their contacts and attempted
contacts with Ross until then . Respondents ' 2B, from
December 13, 1964, through 1967, purports to be a list of
their unsuccessful attempts to contact Ross, including the
time of day, the employer , the employee sent instead of
Ross, and the duration of the job . Respondents contend
that such periods of employment of others should be
deducted from Ross ' backpay because Ross was
"unavailable" for such jobs. Although 2A commences
with July 3, 1964, 2B does not commence until December
13, 1964, and thus Respondents offered no proof of any
such jobs being filled by others before December 13, 1964.
Under Respondents ' hiring hall procedure , prospective
employees were supposed to register on the out-of-work
list and be referred out in the order of their registration.
When originally registered they were on the bottom of the
list As hereinabove found, they were supposed to check in
by telephone periodically when they were not working.
When they were referred to a job, the date of the job was
entered on the out-of-work list. When they completed the
job, they checked back in on the list, although frequently
not the same day. The date of such check-in was entered
on the list. If a job referral resulted in more than 40 hours
employment, except when in relief of another employee,
the registrant's name was stricken from the list and he
was required to again register on the bottom when his
employment terminated When an employee who had not
worked 40 hours checked in from a job, his position on
the out-of-work list remained unchanged. In other words,
he retained his original registration date.
Respondents' brief, as well as the absence of any
evidence in the record, demonstrates that Respondents do
not claim any willful loss of employment by Ross prior to
1964, i.e , from July 30, 1963, to January 1964. Inasmuch
as Attachment 2A does not commence until July 1964,
there is no proof in the record of Respondents' contention
that there was willful loss of employment by Ross during
the first 6 months of 1964. Although Attachment No. I
shows the dates of Ross' referrals and check-ins from
January to July 1964, there was no proof offered that
Ross failed to check in promptly after the termination of
each job. The record reveals that customarily and
normally many of the registrants would check back in a
day or 2 after the termination of their employment. This
was the normal "in and out" process followed in the
operation of the hiring hall, and thus cannot properly be
found to be a willful loss of employment or unavailability
(This customary procedure, as well as the ensuing lapse of
time of varying amounts while awaiting job referrals, is an
additional reason why employees with permanent jobs
could not be considered as representative in determining
the earnings that Ross or any other regular user of the
referral system would average )
Respondents' contention of Ross' unavailability for jobs
between July 3 and December 13, 1964, is without merit.
This period of time is considered separately because
Respondents' 2B, listing jobs filled by others , commences
December 13, 1964. The record fails to establish any
occasions when Ross was unavailable for employment
during this period except as a result of Respondents'
discrimination. It will be recalled that Ross was suspended
from membership on or about July 1, 1964, and that, as
found in the prior Decision, Respondents were guilty of
continuing discrimination against Ross from July 30, 1963
to and including October 26, 1964. Between July 3 and
December 13, 1964, Respondents called Ross for only
eight jobs. Respondents allegedly were unable to contact
Ross for only one of these eight jobs. Of the other seven
jobs , three resulted in the strikes and walkoffs causing
Ross' discriminatory termination , as found in the prior
Decision , and one was a low scale job which Ross
accepted as a favor. The record establishes that crane
operators , the top rated engineers using Respondents'
referral system, were entitled to reject all jobs which did
not pay crane or top scale, and in fact some 75 percent of
them had advised Respondents that they did not want
referrals to anything but top scale positions. Although not
set forth in the hiring hall contract or Respondents' rules,
Roberts admitted that this was the standard practice and
perfectly proper procedure. Although there is considerable
conflict in the testimony of both Ross and Roberts, I am
satisfied and find that Ross advised Roberts as early as
1963 that Ross did not wish to be called for and would
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not accept low scale jobs Ross was an expert crane
operator and desired employment on cranes. The low scale
work consisted primarily of shipyard, heavy and highway
construction and equipment of lesser complexity than
cranes, such as winch trucks, material hoists, etc. There
were a few other jobs, such as derricks and double-drum
hoists, which also paid top scale, or the so-called crane
rate, which the crane operators, including Ross, who had
rejected low scale work would accept.
As set forth in Respondents ' 2A and previously
discussed , Ross was removed from the out -of-work list on
July 3, July 20 and August 11, 1964, for not reporting in
within I week . Respondents claim these periods of
removal as "willful unavailability" which should be
deducted from backpay. On the contrary, as found above,
these were instances of continued discrimination by
Respondents against Ross, by unjustly removing him from
the list contrary to the established practice, thus
preventing his referral and requiring him to reregister at
the bottom of the list. The first employment offered and
accepted by Ross after July 1, 1964, was the Bushnell job
on July 24, 1964, where Respondents were responsible for
the immediately ensuing strike and walkoff causing Ross'
discriminatory termination . On July 28 and August 3,
1964, Respondents discriminatorily failed to refer Ross to
jobs, as found in the prior Decision. On August 3, Ross
left Tampa and drove to the Carolinas and Tennessee
seeking work , his union membership having been
suspended and having experienced the strike and resultant
discharge on July 24. Primarily because of his lack of a
valid union membership book , Ross was unsuccessful in
this attempt . He returned to Tampa on or about August
15 He had previously checked in with Respondents July
31 Respondents offered no proof that they attempted to
contact him for work between then and August II, when
they again discriminatorily removed him from the list.
After returning to Tampa and again registering, the next
job offered and accepted by Ross was the Azarelli job on
August 25, 1964, which again resulted in an immediate
strike and walkoff and Respondents were found
responsible for discriminatorily causing Ross' termination.
Ross checked back in on the list the same day. On
September 1, he was offered and accepted a job which
lasted for l week , checking in September 8.
On September 15, Roberts called Ross for a job, but
did not advise Ross that it was low scale When Ross
asked where and what the job was Roberts would not tell
him. Ross asked Roberts if the men were going to strike
again . Roberts replied that he did not know . Ross then
refused the job which he had a right to do because it was
low scale . Ross told Roberts that Ross had appointments
the following Friday and Monday , September 18 and 21,
and not to call him for jobs on those days. This was the
normal and customary practice , and thus not "willful
availability ." Furthermore , there was no showing of any
job Ross otherwise would have been called for on those
days. He was not called for September 16 and 17 when he
was admittedly available. On September 22, Roberts
again called Ross for a low scale job, which Ross accepted
as a favor to Roberts because he said he couldn't get
anyone else , upon the condition that Roberts send out
relief as soon as possible On September 27, Ross was
offered and accepted the Stephens ' job, which resulted in
the previously found discriminatory walkoff and strike on
October 26 again causing Ross' termination . On October
28 and 29, 2 days after Ross' discriminatory termination
on the Stephens' job, Respondents allegedly called Ross
for one job without success five times, all at hours when
the registrants were not expected to be at their telephones
and in fact, as hereinafter found, the first instance of
continuing discrimination after the incidents litigated in
the previous Decision. On November 6, Ross was called
for and accepted another Stephens' job from which he
checked in on December 11. Thus it can be seen and I
find that Respondents' contention that Ross was willfully
unavailable for employment between July 3 and December
13, 1964, is without merit.
Commencing with December 13, 1964, to and including
1967, Respondents' 2B contains a list of the dates and
times of day when Ross allegedly was called without
success for employment, together with a corresponding list
of the employees actually sent to the jobs and the duration
of their employment, which periods Respondents contend
should be excluded from any computation of backpay for
Ross. The record establishes that Respondents' normal
and customary practice, known to all of its regular
registrants, including Ross, who was specifically told by
Roberts, was to call for job referrals between 3:30 and 5
p.m. each day. The only usual exception was the "at
once" job calls from employers, which necessarily were
called for referral immediately upon their receipt.
Inasmuch as most of the "at once" requests came in early
in the morning each working day, the registrants knew
that most of such calls were made before 10 a.m. As
Lucas, an experienced crane operator and one of
Respondents' officers, testified, when he was near the top
of the out-of-work list and could reasonably expect
referral, he did not leave his home until about 10 a.m and
made it a point to get back about 3 p.m. so that he would
be available during the usual and customary period from
3:30 to 5 p.m. Lucas further testified that when he was
not near the top of the list he went fishing and there was
no way for Respondents to get in touch with him because
his wife also worked Jordan, one of Roberts' assistant
business managers , and Curry, another expert crane
operator and experienced registrant, testified to the same
effect. Roberts testified that he did not regularly call for
job referrals until 3.30 p.m. because working registrants at
the top of the list who checked back in the same day and
had not lost their position on the list because of having
worked 40 hours were entitled to be called first.
On January 11, 1965, Respondents again removed Ross
from the out-of-work list, allegedly for violating the rule
in Respondents ' hiring hall contract that a registrant
called for three or more jobs and failing to answer his
telephone may be removed from the list provided that the
first call was made at least l week before the last.'
Respondents contend that they called Ross for
approximately 13 different jobs between December 13,
1964, and January 11, 1965. As a matter of fact the
record reveals that every one of those calls, many more
than 13 inasmuch as several calls were made for different
individual jobs, were made at times outside the normal
and customary hours, 3.30 to 5 p.m., when the registrants
were expected to be available, as found hereinabove, and
thus that Respondents' removal of Ross from the
out-of-work list on January 11, 1965, again consituted
further discrimination against him . Instead of
demonstrating periods of unavailability which should be
deducted from the computation of Ross' backpay, this
series of calls demonstrated continuing discrimination
against Ross
During this period of time and later, a number of the
calls by Respondents to Ross were for employers who, as
'Article III , Sec. 14
INTL. OPERATING ENGINEERS, LOCAL 925 769
found above , had advised Roberts that they did not want
Ross at any time because of possible " labor troubles."
The General Counsel contends that such calls, if actually
made, demonstrated bad faith on the part of Respondents
However, the record establishes , and I find , that after the
issuance of the complaint on December 9, 1964,
Respondents decided to call Ross for all job referrals
regardless of such prior instructions from the employers.
Between December It, 1964, and January 11, 1965,
Respondents in fact actually offered Ross only one job, a
I-day below scale assignment which Ross was not required
to accept and which Roberts knew Ross did not want but
which Ross nevertheless accepted . On December 13, at
9.40 p . m., Respondents called Ross for a job the following
day. On December 14, at 8:35 a.m ., Respondents called
Ross for a I-day job the next day, were advised that Ross
was not home, and allegedly called again at 10:30 and
11.05 a.m . for another I-day job the following day. As
hereinafter found , the calls at 10:30 and 11:05 a.m. were
another specific instance of discrimination against Ross.
On December 15, at 9 : 30 a.m ., Respondents made one
call to Ross allegedly to offer two different jobs, neither
of which was subsequently filled and one of which was
allegedly cancelled by the employer 15 minutes later. On
December 17, Ross accepted the l-day low scale winch
truck job. On December 20, Respondents called Ross at
12.50 and 6 : 35 p.m . (on each side of the customary calling
time). Respondents 2B alleges that Ross was "reported
out-of- town ." In fact Respondents were told during the
second call that Ross was in Brooksville , where he
regularly visited relatives, 46 miles from Tampa, less than
an hour ' s drive, which patently did not make him
unavailable for job referrals at the correct time. On
December 21, Respondents allegedly called Ross at 5:05,
7:30, and 7:55 p . m. On the last call they were advised that
Ross had taken his children Christmas shopping. These
calls were for a job with Stephens, who had specifically
requested Ross at 11:55 a.m ., which employers had the
right to do under the hiring hall contract if the employee
had worked for them in the previous 90 days, which Ross
had. Although Stephens had specifically requested Ross
that morning for a job the following day , Respondents did
not attempt to call Ross until after the customary time
when he was expected to be available , and again at 8:05
the following morning . As a result , Respondents referred
another employee to this job.
On December 22, at 11:40 a.m ., Respondents allegedly
called Ross for a shipyard job, which Respondents knew
Ross did not want and was not required to accept. On
December 29, at 6 : 55 p.m ., the following day at 10 a.m.,
12:05 p . m,, 3:05 p.m., and 5:05 p.m., and again at 8:40
a.m. December 31, Respondents allegedly called Ross six
times for a job commencing the morning of December 31.
On December 29, Roberts admittedly informed Mrs. Ross
that the union office customarily closed at 5 p.m. and that
Ross was not expected to sit by his telephone 24 hours a
day to receive job referrals . With all this time available
for this job referral , Respondents did not make a single
call during the customary time registrants were expected
to be available. Respondents ' 2B inadvertently alleges that
Ross reported that he could not run this rig. In fact it was
Hogue , another operator . On January 6, 1965,
Respondents called Ross for referral at 5:20 and 6:10 p.m.
and were advised that he was at the Board ' s Regional
Office and his time of return was not known . At 7:45
p.m., Ross was called again . On January 7, Ross allegedly
was called at 5:30 and 5:50 p . m. for referral . On January
8, at 6:35 p.m., Respondents called Ross for a job
commencing the following Monday, January 11. On
Sunday, January 10, at 6.15 p.m ., Roberts called Ross
again for this same job and was told by Mrs. Ross that he
was not home . Roberts then informed Mrs Ross that
under the contractual provision the next time he called
Ross for a job and he was not home, Roberts was going
to remove him from the out-of-work list. Mrs. Ross
asked Roberts if that meant entirely and Roberts replied,
"yes, until he checks in again ." No doubt as a result of
this statement , Ross checked in by phone the following
morning at 8:40 a.m. Shortly thereafter , Respondents
allegedly called Ross at 9, 9.15, 9:25, and 9:40 a.m. for a
job request which had been received at 8.30 a.m , and the
line was busy. At 5.50 p.m that evening, Respondents
called Ross for another job, he was not home and as a
result Respondents removed him from the out-of -work list
as threatened the day before. As hereinafter discussed in
detail and found , this removal was another instance of
continuing discrimination against Ross because he was not
in violation of the contractual rule relied upon for his
removal from the out -of-work list . Thus the record
demonstrates and I find that from December 13, 1964, to
and including January 11, 1965, there were no instances of
willful unavailability for employment by Ross which
should be excluded from any computation of backpay, but
on the contrary the record demonstrates continued and
repeated discrimination against Ross
The next period of time considered herein during which
Respondents alleged willful unavailability for employment
by Ross is from January 11 to April 30, 1965. While
Respondents ' 2B continues throughout the entire backpay
period claimed by the General Counsel , to and including
December 11, 1967, as hereinafter found Respondents'
discrimination against Ross ceased and terminated as of
April 30, 1965. Accordingly , consideration of the alleged
periods of willful unavailability is terminated with that
date, inasmuch as Ross was admittedly employed from
April 20, 1965, to April 6, 1966.
Having been removed from the register January 11,
1965, Ross reregistered on the bottom January 14. On
January 19, 1965, Respondents allegedly called Ross at 8
and 9 a.m . for a job. On January 20, at 8:45 a.m.,
Respondents allegedly called Ross for a job . On January
21, Ross checked in at 8 a.m. and Respondents allegedly
called him for a job at 8:05 a.m. On January 24, at 6.15
p.m., Roberts called Ross and when he answered offered
him a job on a half track at the shipyard , low scale work
which Roberts knew Ross did not want and was not
required to accept. Ross rejected this job, and again
informed Roberts that he wanted only crane - rate work.
The following day, at 8.10 a.m., Respondents called Ross
for a Job. On January 27, Respondents called Ross twice,
at 5:50 p.m. and a few minutes later , for the same job. On
January 28, Respondents called Ross at 5:45 and 6.25
p.m. On February 1, Respondents called Ross at 5:15
p.m. for a crane job which he accepted . Ross next
registered on March 16, 1965. On March 18, at 5.02 p.m.,
Respondents called Ross for a crane job which he
accepted . He next checked in March 23. On March 23, at
1:30 p.m ., Tampa Steel specifically requested Ross for a
crane job the following day. Between 5:35 p. m. and 7:05
p.m., Respondents allegedly made four calls to Ross for
this job, although the request for him had been received at
1:30 p.m.
On March 27 , at 12:20 p.m., Roberts called Ross for a
job at Dorr Oliver commencing March 29, which Ross
accepted . As hereinafter found , on March 29, 1965,
shortly after Ross ' arrival on the job, Respondents were
770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
responsible for a strike and walkoff causing Ross'
termination , another specific instance of continuing
discrimination against Ross. Ross thereafter checked in at
the hall in person the same morning . After this strike,
exactly like those found in the prior Decision, Ross
proceeded to the Board ' s Regional Office. That same day
Respondents allegedly called Ross for a job six times
between 3 : 30 and 6 : 10 p.m. It will be noted that from
December 11, 1964, to then two of these March 29 calls
were the only calls made to Ross during the customary
hours when registrants were expected to be available. In
view of the strike which occurred that morning,
Respondents could well have expected Ross not to be
available that afternoon . On March 31 , at 4:28 p.m.,
Respondents called Ross for a job which he accepted. He
next checked in April 2 . On Sunday , April 4, at 9 a.m.,
Ross was called and accepted a crane job with Bushnell
on April 5 , 1965. As hereinafter found , when Ross
reported to work , Respondents again were responsible for
a strike causing Ross ' termination , another specific
instance of discrimination against him . As on March 29,
Ross checked into the hall personally that same morning
and reported the strike incident . Later that same day, at
4:45, 5:25 and 6:20 p . m., Respondents allegedly called
Ross for a job , under circumstances like those of March
29, when Respondents had reason to believe that Ross
might not be available.
On April 6, Weigel , one of Bushnell ' s officials , called
Roberts for an operator to replace Ross , who had been
discharged the day before because of the strike, and
informed Roberts that Bushnell did not want Ross for
that reason . The following day, April 7, Weigel requested
another crane operator . In spite of Weigel 's statement the
day before , Respondents allegedly called Ross for this job
at 12:50 and 1:10 p.m., although earlier that same day
Respondents had sent an employee below Ross on the list
to a crane job received before the request was received
from Weigel , without attempting to contact Ross , another
specific instance of continuing discrimination against Ross
hereinafter found . On April 12, Respondents called Ross
at 5:25 p . m. for a winch truck j ob, which he refused. As
hereinafter found , this was another instance of continuing
discrimination against Ross . Winch truck jobs were
customarily low scale jobs and as a result Ross had
consistently refused them , which was his right under
Respondents ' rules. However , Ross was willing to and had
informed Respondents that he would accept top scale jobs,
yet Roberts failed to inform him of this fact.
Respondents ' 2B claims this job as a period of Ross'
"unavailability" for employment which should be
deducted from the computation of Ross ' backpay
apparently because it was a high scale job.
On April 13, Ross was arrested on criminal charges
filed by one of Respondents ' members who participated in
the strike at Bushnell on April 5, because of profanity
addressed by Ross to him and the other striking
employees after they had caused Ross to be fired. On
April 13, at 8:40 a . m., Respondents allegedly called Ross
for a job and called again at 4:55 p. m. for another job.
Ross answered the second call (between the established
calling hours ) and advised Roberts that Ross had been
arrested and could not work until he was able to
straighten the matter out, and that he would let
Respondents know as soon as he was available . Although
this was clearly an acceptable excuse for refusal under
Respondents ' established practice , and Roberts tacitly so
conceded in their conversation , nevertheless Respondents'
2B claims this as another period of "unavailability" to be
deducted from Ross ' backpay. Although in conflict with
the provisions of Respondents hiring hall contract, under
Respondents ' established practice as found in the prior
Decision and admitted by Respondents , a registrant called
for job referral may, in addition to low scale jobs, refuse a
job if he has a reasonable excuse such as illness, lack of
transportation because his car won ' t run , inability to
operate the specific equipment involved, marriage or
divorce proceedings , funerals, anniversaries, other
important family affairs, and many other reasonable
excuses. It seems clear and I find that being arrested was
certainly a reasonable excuse. At 8:10 a.m. on April 16,
Ross called Roberts and advised him that Ross was
available for work. At 7 p .m. that evening, Respondents
contacted Ross and offered him his choice of two jobs,
one where he would be working alone without other
members of Respondent Union. Because of the strikes on
March 29 and April 5, causing his termination, Ross
accepted the job where he would be the only operator
employed . Respondents ' 2A alleges that on April 16 Ross
refused the other job, but inasmuch as he was offered his
choice of two jobs and accepted one, such can hardly be
characterized as a job refusal . Ross checked in on May 7,
1965, and the same day was called and referred to a job
which lasted until April 7, 1966.
The foregoing facts establish that from January 11,
1965, to April 16, 1965, as during the prior period from
December 11 , 1964, to and including January 11, 1965,
substantially all of Respondents' actual and alleged calls
to Ross for job referrals were made at times when the
registrants were not expected or required to be available
for job referrals . The only exceptions to this apparently
constant practice of Respondents with respect to Ross
during this period of time were the calls made to him later
on the same days that the two strikes causing his
termination occurred , and the afternoon of the day he had
been arrested on a complaint by one of Respondents'
members arising from the April 5 strike. Ross testified,
and I credit him, that with the exception of the periods of
unavailability because of illness conceded in the
Specifications , he was available and willing to work at all
times and refused no job assignments except those that he
was entitled to refuse under Respondents ' hiring hall rules
and practice . Thus, the record establishes and I find that
during this period from January 11 until April 16, 1965,
after which Ross was continuously employed until 1966,
Ross did not incur any willful loss of employment and was
not willfully unavailable for employment at any time.
1. Alleged Continuing Discrimination Against Ross
As hereinabove noted , the Board in its prior Decision
found that Respondents had engaged in continuing
discrimination against Ross from June 30 , 1963, to and
including his discharge on October 26, 1964, caused by the
strike for which Respondents were responsible, the last
incident considered in the prior Decision . The Board's
Order , as hereinabove construed , requires that Ross be
made whole not only for that discrimination but for any
continuing discrimination thereafter against him. In
addition to the General Counsel ' s contention of liability
for backpay until Respondents comply fully with the other
provisions of the Board's Order regardless of continuing
discrimination against Ross, the Specifications contain
various allegations of continuing discrimination against
Ross , including discrimination in the operation of the
hiring hall referral system with respect to Ross and other
INTL. OPERATING ENGINEERS, LOCAL 925 771
specific allegations of continued discrimination next
considered.
1. Continued discriminatory failures to refer and
referrals of Ross
As hereinabove noted, the record contains complete and
specific details of Respondents' job referrals of Ross and
alleged calls to him for referral from October 26, 1964,
the date of the last discrimination found in the prior
Decision, to and including 1967. Between October 28,
1964, Respondents' first alleged attempt to refer Ross for
employment after his discharge October 26, to March 29,
1965, when the first of two additional strikes causing
Ross' discharge occurred, all of Respondents' alleged calls
to Ross for job referrals were made at hours other than
when the registrants, as they and Ross had been
specifically informed, were expected to be available at
their telephones for referral, namely, between 3.30 and
5:00 p.m. daily. This consistent and uniform practice of
calling Ross during this period for job referrals at a time
when he was not expected to be available is in itself
evidence of continuing discrimination, and I so find.
On October 28, Respondents allegedly made four calls,
all after 5 p.m., and another on the morning of October
29 at 6:25 a.m. to Ross for the same job. The record
establishes that three crane operators were above Ross on
the out-of-work list, none of whom were called. I conclude
and find that this attempt to refer Ross out of order
constituted continuing discrimination against him. On
November 6, Ross was offered and accepted a Stephens
job, next registering December It. On December 14, at
8:35 a.m., Respondents called Ross and were advised that
he was not home. Respondents allegedly called Ross at
10:30 and 11:05 a.m. the same morning for a 1-day crane
job with Florida Power. The record establishes that
Anderson, a crane operator, was above Ross on the list
but was not called for this job until after Ross. I conclude
and find that this was another instance of continuing
discrimination against Ross. On December 17, Ross
accepted a 1-day low scale job. At 11:55 a.m., December
21, Stephens specifically requested Ross for a crane job
the following day. Respondents waited until after the time
that registrants were expected to be available for referral
calls, calling Ross at 5:05, 7:30 and 7:55 p.m. and 8.05
a.m. the following morning. With a specific request in the
morning and the entire afternoon available, Respondents
offered no explanation of their failure to call Ross during
the established time period. I conclude and find that this
was another instance of continuing discrimination. On
December 22, at 11:40 a.m., Respondents allegedly called
Ross for a shipyard job which Respondents knew he did
not want and was not required to accept. On December
29, 30, and 31, Respondents allegedly made six calls to
Ross, all outside the customary time, for the same job
commencing December 31. Between then and January 10,
1965, Respondents called Ross at off hours for three other
jobs.
On Sunday, January 10, 1965, at 6:15 p.m., Roberts
called Ross for a job at Florida Power the following day
and, when advised that he was not home, informed Mrs.
Ross that the next time Roberts called Ross for a job
Roberts was going to remove him from the out-of-work
list if he was not available. When Mrs. Ross asked
"entirely," Roberts replied, "yes, until he checks in
again ." At 8:40 a.m. the following morning , Ross checked
in by telephone. Shortly thereafter, Respondents allegedly
called Ross four times, with the line busy each time, for a
job they received at 8:30 a.m. That evening at 5:50 p.m.,
Poynter called Ross for another job, he was not home and
as a result Poynter, with Roberts' approval, removed Ross
from the out-of-work list. Respondents contend that this
removal was in accordance with the hiring hall contract
which provided that: "if the Union calls an applicant for a
referral to three (3) separate jobs and the applicant is
neither present in the Union Hall nor answers to his
telephone contact, such applicant shall be dropped from
the list, provided that no applicant shall be dropped from
the list for this reason within a period of less than one (1)
week from the first call for a referral."' Respondents
allegedly called Ross for 13 different jobs between
December 13, 1964 and January 11, 1965. As a matter of
fact, Ross' removal was not in accordance with the
contract and practice because not a single call for a job
referral, let alone three or more as required, was made at
the time when the registrants were expected to be
available for calls for fob referrals. Patently, by calling for
jobs at hours when the registrants were not expected to be
available, it would be a simple matter to develop a record
of three or more calls for different jobs in a period of a
week or more with respect to any registrant
Respondents also contend that because their action of
removing Ross from the out-of-work list was affirmed on
February 1, 1965, by the Joint Grievance Committee of
the parties to the contract after a hearing pursuant to a
grievance filed by Ross, their action was justified and
approved. The Joint Grievance Committee consisted of
Roberts, a representative of the Associated General
Contractors and a third party impartial chairman from
the Florida Administrators. The written decision of the
Joint Grievance Committee demonstrates that either the
correct facts were not presented to the Committee or it
misunderstood the applicable provision quoted above.
According to its decision, signed by the impartial
chairman, Section 14 of Article III of the hiring hall
contract provided: "I.. a man may be dropped when
he has turned down three consecutive jobs after one week
from the time of the initial call." (Emphasis supplied.)
Patently this is not what Section 14 provides, nor did
Ross "turn down" any jobs between December 13, 1964,
and January 11, 1965, but on the contrary accepted the
only job offered him, a I-day low-scale job. The decision
of the Committee further stated:
It was determined by all parties concerned that the
interpretation under I above [quoted above] was that a
man shall be dropped if he does not comply with this
section. Such was the case in this matter. It was noted
that Mr. Ross had turned down 13 jobs in the period of
time in question, and thus the Local was justified in
handling as they did. [Emphasis supplied.]
It is apparent that both the provision and the facts were
not correctly understood by the Joint Grievance
Committee and that its decision affirming the action of
Respondents was based upon a misinterpretation of both.
If the provision and facts had been correctly presented,
they would have established both that Ross did not turn
down any jobs during the period in question and that all
calls unanswered by him were made at times when the
registrants were not expected to be available. As a result
of this removal from the out-of-work list, Ross was again
required to register on the bottom of the list. I conclude
and find that Respondents' removal of Ross from the
out-of-work list on January 11, 1965, was another instance
of continuing discrimination against him.
'Article III, Section 14
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ross reregistered on January 14, 1965, after Poynter
advised him that he had been removed from the
out-of-work list pursuant to Article III, Section 14 of the
contract for failure to respond to numerous calls for fobs.
On January 19, 20, and 21, Respondents allegedly made
several calls for job referrals to Ross, all early in the
morning. On January 23 and January 24, Respondents
referred Maas and Hickey, both of whom were below
Ross on the out-of-work list, to crane jobs but did not call
Ross. I conclude and find this was another instance of
continuing discrimination against Ross. Later on January
24, after referring Maas and Hickey to these jobs,
Respondents called Ross at 6:15 p.m. and offered him a
low-scale shipyard job which Respondents knew that he
did not want and had a right to reject and which he
refused. That same evening at 8:15 p.m , Respondents
referred Lucas to a crane job with Beasley. Lucas was
below Ross on the out-of-work list but Ross was not
called. Respondents' records reveal that Beasley requested
Lucas for that job. However, the record establishes that
employers were not entitled to request specific employees
unless they had worked for the employer within the past
90 days. Lucas completed his employment of over a year
at Manta January 10, 1965, registered on the list January
19, this was his first referral thereafter, and thus obviously
had not worked for Beasley in more than a year I
conclude and find that this was another instance of
continuing discrimination against Ross
On February I, Ross accepted a job with Southern
Erecting Company and next registered March 16, 1965.
On March 18, Ross accepted a Tampa Steel crane job,
checking back in on the morning of March 23. At 1:30
p m. that day, Tampa Steel specifically requested Ross for
a crane job the following day. Respondents allegedly
called Ross for this job four times between 5.35 and 7:05
p.m., all outside the customary time, and then referred
another employee to the job. I conclude and find that this
was another instance of continuing discrimination against
Ross. On March 29, Ross was sent to Dorr Oliver, at
which job occurred the first of two strikes, next
considered, causing Ross' discharge. On April 1, Ross was
employed by Tampa Steel for l day. On April 5, the
second of two strikes, next considered, causing Ross'
discharge, occurred at Bushnell Steel. On April 6, Weigel,
an official of Bushnell, requested a replacement for Ross
and informed Roberts that Bushnell did not want Ross
because of the strike the day before. On April 7, at 8:20
a m., Respondents referred Kahnert, below Ross on the
out-of-work list, to a top scale job without calling Ross,
yet allegedly at 12:50 and 1:10 p.m. called Ross for
another job at Bushnell, the day after Weigel had said he
did not want Ross. Respondents' hiring hall procedure
required that the first qualified operator on the
out-of-work list be called for the first job request received,
as recorded on the job request sheets. I conclude and find
that this was another instance of continuing discrimination
against Ross.
On April 12, Respondents offered Ross another winch
truck job which he refused. Respondents knew that Ross
did not want low scale winch truck jobs. However,
Respondents continued their discrimination by failing to
inform Ross that this, unlike other winch truck jobs, was
a top scale job. On April 13, Ross was arrested on a
criminal complaint filed by one of Respondents' members
who participated in the April 5 strike. As hereinafter
discussed, I do not find this to be an instance of
continuing discrimination by Respondents. On April 16,
Ross accepted employment commencing April 20, next
registering May 7, 1965. On May 7, 1965, Ross was
referred to employment which lasted until April 6, 1966.
Thus, from April 20, 1965, until April 6, 1966, Ross was
continuously employed and patently there was no misuse
of the referral system by Respondents with respect to
Ross. On April 28, 1965, Trial Examiner Ricci issued his
Decision in the prior case, finding Respondents had
engaged in continuing discrimination against Ross by
reason of the out-of-order referrals and strikes found
therein and ordering Respondents, inter alia , to cease and
desist engaging in such discrimination. On or about April
30, 1965, counsel for Respondents at a meeting of the
membership informed them of the Trial Examiner's
decision, advised them that they were to abide by it, that
they should not engage in any strikes or walkoffs on jobs
where Ross was employed, that Ross was to be referred
from the out-of-work list in proper order at all times, and
that all forms of discrimination against Ross must be
stopped. The record establishes that thereafter
Respondents engaged in no discrimination against Ross.
Thus, I conclude and find that Respondents' continuing
discrimination against Ross, as distinguished from their
failure to comply fully with the Board's Order in other
respects, terminated as of April 30, 1965.
2. The March 29 and April 5, 1965 strikes and
walkoffs
The Specifications alleged, as continuing discrimination
against Ross, that on March 29 and April 5, 1965, a
group of Respondents' members, including the union job
stewards, engaged in work stoppages and walkoffs on two
respective jobs causing the termination of Ross'
employment. The record establishes that these strikes and
walkoffs were substantially the same as those found by the
Board in its prior Decision. For the same reasons detailed
therein, I conclude and find that Respondents were
responsible for and caused such walkoffs, in turn causing
Ross' discriminatory termination It is unnecessary to
repeat herein all the details relied upon by the Board to
establish the responsibility of Respondents for the strikes.
Substantially the same type and degree of evidence was
produced in the instant proceeding, and Respondents do
not seriously contend the contrary.
After the continuing discrimination from October 26,
1964, to March 23, 1965, hereinabove found, on March
27, Respondents referred Ross to a Dorr Oliver cherry
picker job commencing the morning of March 29 at Fort
Meade, some 50 miles from Tampa Cavey and Snyder,
members of Respondents' Union, were the foreman and
steward respectively. When Ross reported to work that
morning, Cavey signed him on, assigned him his machine
and Snyder checked his union book, which was then valid
Immediately thereafter, Cavey, Snyder and the other 10
or l l operating engineers employed at the jobsite ceased
working and walked off the job. Shortly thereafter, Cavey
handed Ross his check, advising him that he was fired
because the engineers had walked off. As soon as Ross
left the jobsite, the operating engineers, including the
foreman and steward, returned to their jobs. Ross went to
Respondents' hall and reported the incident.
Cavey, the foreman and a permanent employee of Dorr
Oliver since 1956, testified that as soon as Ross came on
the job and Cavey had signed him on, he decided to quit
because Ross was not in good standing with the Union
and did so without discussing the matter with anyone else.
According to Cavey, he was then persuaded to wait near
the jobsite for a couple of hours by Dorr Oliver's
INTL. OPERATING ENGINEERS , LOCAL 925
superintendent. Cavey admitted that the steward and all of
the other operating engineers quit working at the same
time. On the contrary, Snyder, the steward, testified that
he immediately told Cavey that he would not work with
Ross and quit. Thereafter, according to Snyder, Cavey
advised him and the other operating engineers who had
left their jobs not to go home because Ross was going to
be laid off. They all waited and returned to work as soon
as Ross left. There is no dispute in the record that Ross
was terminated within an hour or two because of the
strike and walkoff by Respondents' members. Cavey's
testimony was further contradicted by Respondents'
written record of its contacts with and concerning Ross,
which revealed that Cavey had not waited for instructions
from the superintendent for 2 hours but at 8:15 a.m.
called Roberts at the union hall to secure replacements for
the men who had walked off because of Ross'
employment.
On Sunday, April 4, Respondents referred Ross to
employment at a Bushnell project in Lakeland,
approximately 40 miles from Tampa, the following
morning. As soon as Ross reported on this jobsite, the
operating engineers , including the steward, again walked
off and caused Ross' termination. The three operating
engineers on this job were Scarborough, the steward,
Masterson and Kries. Ross was signed on by the
ironworkers' foreman, the operating engineers not having
a foreman because less than five were employed on the
jobsite. Just after the foreman did so, he advised Ross
that Bushnell could not use him because the other
operating engineers would not work if he was there. Ross
then turned the form he had signed over to Weigel, one of
Bushnell 's officials, and asked him for 2 hours pay for
showing up. As Ross left the jobsite, he told the three
operating engineers who were waiting on the parking lot
for him to leave and immediately thereafter returned to
work, "now you S.O.B.'s can go to work." Ross again
went to the hall and reported this incident as he did
M arch 29.
The record establishes that Ross was again terminated
because of the walkoff and refusal to work by the other
members of Respondent Union. Kries, the only operating
engineer other than Ross who testified concerning this
incident, stated that he, Kries, did not even go to his
machine that morning because he refused to work as soon
as he saw that Ross was present. Shortly thereafter,
Weigel asked him not to leave until the matter was
straightened out. Immediately thereafter, Ross was
terminated and as he left passed the three striking
employees in the parking lot, whereupon they returned to
work. Weigel admitted that Ross was terminated because
of the strike by the other three operating engineers . Kries,
who participated in the Bushnell walkoff on July 24, 1964,
found discriminatory in the prior Decision, testified, as he
did in the prior proceeding and was not credited, that it
was "his own decision" not to work with Ross. However,
when asked if he had worked with Ross after
Respondents' attorney' s announcement on April 30, 1965,
that Respondents' members should no longer walk off or
strike any jobs where Ross was employed, Kries admitted
that he had and frankly stated that he did so because to
him such advice from Respondent was law. Based upon
the foregoing facts and the detailed facts and evidence
found by the Board in the prior Decision, and for the
same reasons stated therein, I conclude and find that
Respondents were responsible for the strike actions on
March 29 and April 5, 1965, thereby causing Ross'
discharge and engaging in continuing discrimination
773
against Ross.
The Specifications also alleged that the arrest of Ross
on April 13, 1965, on a criminal complaint by Kries based
upon the profanity Ross addressed to the three strikers
after he was fired from the Bushnell job on April 5,
constituted continuing discrimination by Respondents
against Ross. This allegation was dismissed at the
conclusion of the case-in-chief both for want of proof and
legal insufficiency. The criminal complaint was filed by
Kries and not the steward, who with Masterson were
named as witnesses. It resulted in Ross' arrest, booking
and his posting $50 cash bail on April 13. It was
ultimately dropped with a "no bill" finding. Without
going into all of the details, admittedly, although there is
some dispute as to the balance of the conversation, Ross
addressed the three strikers as "S.O B 's" immediately
after he had been discharged. Although Kries' criminal
complaint appears to be something of a tempest in a
teapot, in view of the fact that the record establishes that
such language is not uncommon on construction jobs,
although normally used in jest rather than anger,
nevertheless the record contains no reliable, probative or
substantial evidence that Respondents were responsible for
Ross' arrest. More importantly, assuming arguendo that
Respondents were responsible for Ross' arrest, the
General Counsel suggests no basis upon which such action
by Respondents could be construed as causing or
attempting to cause an employer to discriminate against
Ross in regard to hire and tenure of employment or any
term or condition of employment in violation of Section
8(b)(2) of the Act.
3. Ross' employment from May 10, 1965, to April 6,
1966
The Specifications alleged further discrimination by
Respondents against Ross as a result of referring him to
employment as a crane operator with Southern Erecting
Company, which job lasted from May 10, 1965, to April
6, 1966, because Ross was "required" to work without an
oiler and was denied "his share" of overtime and other
benefits of employment contained in Respondents'
contract with the employers. The alleged "other benefits
of employment" referred to Respondents' Welfare and
Pension Funds, under which the employer parties to the
contract with Respondents made contributions on behalf
of their employees based upon their hours of work,
specified minimums of which were necessary for them to
maintain coverage under the Funds. The record establishes
that on May 7, 1965, the same day that Ross checked in
on the out-of-work list from his prior job, Respondents
called Ross and he accepted a crane job with Southern
Erecting commencing May 10. There is no evidence in the
record that referring Ross to this job was discriminatory.
On the other hand, as Respondents' brief points out, their
failure to call Ross for this job would have been continued
discrimination.
The record establishes that Ross worked from May 10,
1965, to April 6, 1966, without an apprentice, also called
an oiler. Respondents' contract with the employers
required the employment of an apprentice, or oiler, on
cranes." However, the record establishes that Ross never
advised Respondents that Southern Erecting had failed to
furnish him with an apprentice, and there is no reliable
evidence in the record that Respondents were otherwise so
advised.9 Ross did not suffer any loss of earnings as a
'Article X, Section 22
'In this connection , I do not credit any of the testimony of Buchanan,
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
result of Southern Erecting Company's failure to hire an
apprentice
The record also establishes that during Ross' period of
employment Southern Erecting Company failed to make
the required payments to Respondents' Welfare Fund,
which was administered by an independent agency called
Florida Administrators. Contrary to the contention of the
General Counsel, there is no reliable evidence in the
record that Southern Erecting Company was not a party
to the contract between Respondents and the area
employers. On the contrary, the record establishes that
Lewis, owner of Southern Erecting Company, agreed with
Respondents to make the necessary employee
contributions to Respondents' Welfare and Pension Funds
provided in the contract. The record establishes that
employees, including Ross, were promptly notified by the
Florida Administrators whenever employer contributions
failed to cover them during the preceding quarter of the
year, upon which coverage was based, and that the
customary practice was that an employee so notified
would in turn advise Respondents. Ross never so advised
either Respondents or the Florida Administrators.
Shortly after Ross completed his employment at
Southern Erecting April 6, 1966, the office of the
Regional Director advised Respondents' attorney that it
had been informed by Ross of his lack of coverage under
the Welfare Fund while employed by Lewis. Respondents'
attorney in turn conveyed this information to Roberts
This was the first time Respondents became aware of any
failure of contribution by Lewis. Roberts thereupon
contacted Lewis concerning this matter, who stated that
he would straighten the matter out promptly, although
there is no evidence in the record that he ever did so. A
representative of the Florida Administrators testified that
employee coverage under the Welfare Fund was not
dependent upon whether or not the contributions had
actually been made by an employer, but on whether or not
an employee had actually worked the requisite period of
time during the qualifying quarters, irrespective of
whether such contributions were made by the employer.
As hereinafter found, Ross had no monetary claims
against either the Welfare or Pension Funds until after his
disability commencing December 11, 1967, the end of the
backpay period claimed in the Specifications.10 There is no
proof in the record in support of the allegation that Ross
lost overtime work by reason of this employment. I am
satisfied and find that Respondents' referral of Ross to
the crane job at Southern Erecting Company did not
constitute discrimination against Ross.
4. Lack of appointments as steward or foreman
The Specifications alleged as further discrimination
against Ross that Respondents never referred him to a
position as a union steward or a foreman, thus denying
him added emoluments incidental thereto. The record
establishes that in 1962, prior to any of the incidents or
discrimination found in the prior Decision, Ross informed
Respondents that he never wanted to be appointed as a
steward, and accordingly Respondents never did so. As
discussed in detail and found hereinabove, under the terms
of the contract and in fact, Respondents did not appoint
or select foremen, but merely recommended individuals
when requested to do so by employers. Contrary to the
who was substantially impeached both during cross examination and by his
affidavit taken by a Board agent.
"Unfortunately, on November 22, 1968, 9 days after the termination of
the hearings herein , Ross died.
contentions of the General Counsel, the employers had the
sole and exclusive power to select and appoint foremen,
although admittedly Respondents, pursuant to the
provisions of the contract, required employers to select
and appoint foremen whenever five or more operating
engineers had been employed I conclude and find that
this allegation of continuing discrimination is without
merit.
5 Loss of coverage under Respondents' Welfare and
Pension Funds
In addition to the period of time encompassed by Ross'
employment at Southern Erecting Company from May
10, 1965 to April 6, 1966, the Specifications also alleged
that Ross was denied coverage under Respondents'
Welfare and Pension Funds because of lack of sufficient
employment needed for coverage thereunder caused by
Respondents' continuing discrimination. This allegation is
of course a conclusion based upon continuing
discrimination by Respondents against Ross which, as
hereinabove found, did not occur after April 30, 1965. The
record establishes that Ross was not covered in both
Funds during certain periods of time after his employment
with Southern Erecting ended April 1966. The Pension
Fund did not come into effect until January 1, 1966, hence
there was no contention of lack of coverage prior thereto.
The Backpay Specifications, as amended, conceded that
there was no claim of liability for past contributions to or
loss of coverage under the Welfare Fund prior to
December ll, 1967, at which time and thereafter Ross
incurred certain medical and hospital expenses which were
claimed. Thus any loss of coverage under the Welfare
Fund prior to April 30, 1965, is without monetary
significance. Inasmuch as I have heretofore found that
Respondents did not engage in any discrimination against
Ross after April 30, 1965, I conclude and find that any
loss of coverage of Ross in Respondents' Welfare and
Pension Funds was not caused by any continuing
discrimination against him.
6. Ross' termination at Riley Stoker on August 24,
1966
Although not specifically alleged in the Specifications,
the General Counsel contended early in these hearings
that Ross' termination of employment at the Riley Stoker
job on August 24, 1966, was a constructive discharge
caused by Respondents. Respondents were apprised of this
contention early in the hearing given full opportunity to
meet it, including substantial recesses before the
presentation of Respondent's defense, and the issue was
fully litigated by both parties. On July 8, 1966,
Respondents referred Ross to the job of operating a
stiff-legged derrick, a crane type top scale job at Riley
Stoker. Mel Madderom, Respondents president, was the
foreman on that job. The job required a skilled operator,
Ross being one of the few available among Respondents'
members, and he succeeded the prior operating engineer
who was unable to perform the job satisfactorily. In
addition to paying top scale, the job also included 13
hours overtime, or double time, a week, consisting of I
hour each weekday plus 8 additional hours on Saturdays.
The derrick was a stationary piece of equipment
mounted on the top of the framework of the building
under construction, several hundred feet in the air, used to
hoist heavy materials from the ground to the various
levels at which the employees, including boilermakers,
were working. Riley Stoker and Stone and Webster, the
principal contractor, were engaged in constructing the
building and both had a number of employees at the
INTL. OPERATING ENGINEERS , LOCAL 925
jobsite . Riley Stoker had constructed an elevator to carry
employees to their various jobs at various levels of the
building . Ross was required to take this elevator to the
top floor of the building and then climb two flights higher
to get to his job station at the derrick. In order to prevent
congestion on the elevator in the mornings , Riley Stoker
employees reported for work at 7 a.m. and had priority
use of the elevator, and Stone and Webster's employees
reported at 7:30 a.m. Nix, another operating engineer, was
employed to operate the elevator . Pursuant to established
practice, each morning before work started the operating
engineers gathered at the jobsite in the engineers ' shack,
where they would wait until the 7 a. m. whistle blew to
start work. At that point of time Nix would begin
operating the elevator to carry Riley Stoker' s employees
to the various levels of the building , giving them
preference and requiring the Stone and Webster
employees to wait until 7:30 a.m. The elevator carried 11
men, including the operator, and Riley Stoker had
approximately 40 employees to transport to their jobsites,
requiring approximately four trips up and down, each
consuming from 5 to 7 minutes. Thus it is apparent that
the Riley Stoker employees on the last elevator trip would
not be leaving the ground until about 7:20 a.m.
If Ross took the first elevator, he would get to his
derrick about 7:05 a. m. In fact , because of the crowded
conditions on the elevator and the line of employees
waiting to use it each morning , Ross frequently did not
take the first elevator and was sometimes as much as 20
to 25 minutes late in arriving at his working position. The
record establishes that on several occasions prior to
August 24, 1966, Ross was late in arriving at his derrick
because of taking one of the later elevator trips to the top.
Because some of the employees, particularly the
boilermakers who were also employed by Riley Stoker,
could not start work until the derrick lifted materials to
their respective floors, their time of starting was
correspondingly delayed. Overstreet was the boilermaker
general foreman , and Clark was Riley Stoker's
superintendent , with two assistants , Broyles and Davis.
Ross quit his employment at Riley Stoker on the morning
of August 24 before work began . In addition to Ross,
Clark, Broyles , Overstreet, Madderom , Whipple, Nix and
Herndon testified as to the incidents leading up to Ross'
quitting . Clark, Broyles and Overstreet were not
connected with Respondents and had no apparent reason
to harbor any animosity toward Ross.
A day or two before August 24 Davis , the assistant
superintendent , complained to Overstreet that the
boilermakers were not starting work on time , observing
that Ross was sometimes as much as 35 minutes late in
getting the derrick started . Overstreet asked the
boilermaker foreman under him what the problem was.
He replied that the boilermakers were not starting work
on time because of a lack of materials as a result of the
derrick not starting to operate on time . Overstreet
testified that he was not certain whether he talked to Ross
thereafter , but Overstreet thought that he asked Ross to
catch an earlier elevator in order to start the derrick
sooner . Overstreet could not recall discussing the matter
with Madderom, Ross ' foreman . According to Ross, he
did not talk to Overstreet until the morning of August 24.
Although Overstreet could not recall, he stated in his
affidavit that he also reported the matter to Clark. The
record establishes that Nix, the elevator operator for Riley
Stoker, was instructed to give the operating engineers
priority on the first elevator and did so. Nevertheless, on
several occasions Ross elected not to take the first
775
elevator because of the crowded conditions and line
waiting for the elevator after the starting whistle blew.
On or about August 22, Davis asked Nix to see if he
could get Ross to take the first elevator . According to
Nix, he asked Ross to do this the next morning but he did
not. Clark testified that on or about August 23
Madderom and Broyles informed him of the problem with
respect to Ross not getting to his derrick on time. Clark
stated that when he talked with Broyles and Madderom
Ross had still not gone to his derrick . Clark said that
Broyles' knowledge of the incident was firsthand
Madderom told Clark that Overstreet had complained
about Ross not starting on time and holding up the
boilermakers . Clark told Madderom to get Ross
straightened out or Riley Stoker would have to terminate
him. The next day Clark again heard about this matter
from Broyles and Madderom who informed him that Ross
had quit . Contrary to Clark , Broyles testified that he did
not report the matter to Clark but was present during the
discussion about it between Clark and Madderom Broyles
corroborated that Clark told Madderom to get it
straightened out. Contrary to his affidavit , Broyles stated
that Madderom had not complained to him about Ross.
Broyles admitted having heard Overstreet complain about
Ross' delay in starting the derrick.
It is clear from the record that on August 23 and
possibly August 22 Madderom reported to Ross the
complaint about his holding up the work of the
boilermakers by not getting up to the derrick early
enough. It seems clear that Madderom received this
complaint from Overstreet or one of Riley Stoker's
superintendents , inasmuch as Madderom , as he pointed
out, had nothing to do with the boilermakers and knew
nothing about their work . Ross admitted telling
Madderom that Ross was not going to push ahead of the
other men in the morning trying to get on the elevator just
to get to his derrick on time. Nix testified , and it was
undenied , that Ross said he was not going to ride in the
elevator like a herd of cattle, he did not see why he had to
run to it ahead of anybody else, and he was going to wait
until the rest of the men got up. Madderom testified that
on August 22 Clark asked him to see about getting Ross
to the derrick earlier . Madderom then informed Ross of
this complaint . The next day, August 23, Clark repeated
the complaint and Madderom again conveyed it to Ross
at his jobsite. Madderom stated that he thought Clark
complained to him but that it might have been Davis.
The following morning, August 24, Ross arrived at the
jobsite shortly before 7 a.m. Herndon , another operating
engineer , testified that as he arrived he met Ross, who
stated that he was going to quit because Riley Stoker
wanted him to take the first elevator and he did not like
it. Ross and Herndon proceded to the engineers' shack to
wait for the whistle to blow . Ross also told Nix that Ross
was going to quit because he was mad about being told to
take the first elevator to his job . When the whistle blew,
Ross remained seated. Madderom asked him what was
wrong and if he was going to go work . Ross replied that
he was not, that he was quitting and asked Madderom to
get his pay check . Madderom went to Clark , informed
him of Ross' quitting , and delivered the pay check to
Ross , whereupon he left . Nix, Whipple and Madderom,
all present in the shack , substantially corroborated this.
Whipple also testified that he asked Ross not to quit
because Whipple would have to operate the derrick
temporarily and did not like the job but that nevertheless
Ross quit . Madderom replaced Ross with Whipple on the
derrick and later the same day secured another derrick
776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
operator from the union hall. This job lasted for many
months thereafter running into 1967. Ross admitted telling
Madderom that he was quitting and wanted his time.
While there is some confusion in the record as to the
exact sequence of events and who reported what to whom,
it seems clear and I find that Riley Stoker complained
about Ross not getting to his derrick on time and holding
up the work of the boilermakers, that such complaint was
conveyed to Ross, that Ross was unwilling to take the
first elevator because of crowded conditions, and that
Ross became angry about such complaint and instructions
to take an earlier elevator and for these reasons quit. I am
satisfied and find that Ross was not constructively
discharged and that this did not constitute further
discrimination by Respondents against Ross.
7. Ross' disparate earnings after January 10, 1965,
compared with the average of the so-called
representative group
While the motion to dismiss Paragraph 4(j) of the
Specifications was granted at the conclusion of the
case-in-chief because it constituted merely legal argument
or a conclusionary allegation, the Specifications in other
respects alleged that Ross' disparate income during the
years 1965, 1966, and 1967, as compared with that of
other comparable expert crane operators as well as the
representative group, in itself was evidence of continuing
discrimination by Respondents. This argument consists
somewhat of a bootstrap operation inasmuch as it
amounts to contending that, because Ross' earnings were
less than those of other crane operators of comparable
skill using the referral system, it follows that such was
caused by Respondents' discrimination, instead of
establishing such discrimination which in turn would cause
Ross' loss of earnings . As hereinabove found, there is no
independent evidence in the record of any continuing
discrimination by Respondents against Ross after April
30, 1965, whereas the record reveals that Ross' lower
earnings resulted from causes other than discrimination by
Respondents, including illness, strikes and Ross' retaining
of jobs where there were substantial periods of inactivity
and unemployment without reregistering on the
out-of-work list. As hereinabove found, as a result of
Respondents' referrals, Ross was permanently employed
from April 20, 1965, to April 7, 1966. Ross' earnings
during 1965 and 1966 while lower were not substantially
lower than those of other expert crane operators obtaining
employment by referral through the hall. On the other
hand, Ross' earnings in 1967 were substantially lower than
the average of other expert crane operators using the
referral system. However, the record establishes that this
was primarily due to a strike, Ross' employment with
General Crane Service for a major part of the year during
which there were extended periods of unemployment when
Ross elected to remain with that employer and not
register on the out-of-work list, and Ross' disability
commencing December It, 1967. 1 am satisfied and find
that any disparate earnings experienced by Ross during
1965 after April 30 and during 1966 and 1967 were not
caused by any discrimination by Respondents.
The Backpay Specifications computed Ross' loss of
earnings after January 10, 1965, based upon the average
earnings of the so-called representative group. The
earnings of said representative group were found
hereinabove not to be appropriate and reasonable, but the
average earnings of an alternative group of 22 expert
crane operators were found to be an appropriate and
reasonable basis upon which to determine any loss of
earnings by Ross after January 10, 1965. Respondents'
continuing discrimination against Ross terminated April
30, 1965. The last two incidents of discrimination prior
thereto were the strikes on March 29 and April 5 causing
Ross' discriminatory discharges. As a result of such
discharges caused by Respondents' discrimination, Ross is
of course entitled to backpay for the loss of those jobs.
Like the Foster-Wheeler and Manta jobs, but for
Respondents' discrimination Ross would have enjoyed the
same earning experience as his actual replacements. The
record reveals Ross' actual replacement on each job. Ross
was replaced on the Dorr Oliver job from which he was
discriminatorily discharged March 29, 1965, by Arthur
Howell, who remained on that job through June 30, 1965.
Ross was replaced on the Bushnell job from which he was
discriminatorily discharged April 5, 1965, by Roy
Watkins, who remained on that job until April 29, 1965.
Thus it follows, and I find, that as a result of
Respondents' discrimination Ross was entitled to backpay
until July 1, 1965, coincidentally the first two quarters of
1965.
8. Additional contentions of discrimination after
April 1965
In addition to the General Counsel's contention that the
referral of Ross to the Southern Erecting job on May 10,
1965, was discriminatory and that Ross was constructively
discharged from the Riley Stoker job on August 24, 1966,
above considered, the General Counsel points to other
instances which he contends establish continuing
discrimination against Ross after April 1965, primarily in
connection with Respondents' operation of the referral
system, based upon Respondents' records including their
daily job request sheets, their weekly out-of-work lists,
their diary of all contacts with and concerning Ross, and
their tape recordings of many conversations between Ross'
home and the union hall. The record establishes that the
many instances of referrals relied upon by the General
Counsel after Ross returned to the out-of-work list April
7, 1966, when the Southern Erecting job ended, all
involved instances where Ross was referred to a job ahead
of other qualified applicants on the unemployment list but
no unexplained instances where qualified applicants below
Ross were referred out without Respondents' having
contacted or attempted to contact Ross for such job,
which admittedly would have been discriminatory as found
in the prior Decision. With respect to the numerous
occasions where Ross was referred ahead of qualified
applicants above him on the list, Respondents in each
instance testified that they called the prior registrants
without success before referring Ross. Admittedly
Respondents maintained no permanent or adequate
records of such attempted contacts of others and the
General Counsel contends that such out-of-order referrals
of Ross were designed to remove Ross from the register
and preserve the better jobs for more favored registrants,
but the record contains no substantial evidence that such
referrals of Ross were made out of order, as distinguished
from records establishing that they were made in proper
order. The record contains literally hundreds of job
request sheets and out-of-work lists but no instances of
unexplained referrals of registrants below Ross on the
unemployment list instead of him.
On October 24, 1967, Respondents again removed Ross
from the out-of-work list, this time for failing to accept
referral to a crane job. Unlike the prior instances, the
record establishes that this removal was for proper cause
and was not another instance of discrimination as
contended by the General Counsel. Respondents' contract
INTL. OPERATING ENGINEERS , LOCAL 925
contains a provision that a registrant may be placed on
the bottom of the out-of-work list for refusing to accept a
job referral for which he is qualified." Although not set
forth in the contract, this provision was modified by the
established practice of accepting reasonable excuses for
refusal, such as illness and other excuses hereinabove
found. Unlike the contract provisions concerning reporting
in periodically and being unavailable for three or more job
calls, this provision resulted in being dropped to the
bottom of the unemployment list rather than total
removal. On this occasion Roberts called Ross for referral
to a crane job with Mills and Jones Company at Crystal
River, Florida. Roberts' uncle, Raulerson, was the
foreman. Some years previously Ross and Raulerson had
a run-in on a job where Raulerson was the foreman and,
as a result of certain orders he gave Ross, Ross quit.
When Roberts called, as soon as he told Ross where the
job was Ross said that he would not accept it because of
his prior run-in and antagonism with Raulerson. Roberts
replied that if Ross would not accept the job Roberts
would have to put him on the bottom of the list. Ross said
that was all right. Ross then, as an obvious afterthought,
stated that his car would not make it back and forth to
Crystal River, which is approximately 83 miles from
Tampa. Ross admitted that he refused the job before he
said anything about his car not being able to make it to
Crystal River. Concededly this was a good excuse and had
been accepted by Respondents previously both with
respect to Ross and other registrants. After Ross made
this statement Roberts offered to secure him a ride with
an apprentice who was working at the same job location.
However, Ross continued to refuse the assignment. As a
result, Roberts placed him on the bottom of the
out-of-work list. Four days later Ross received a job
referral as the result of an employer request for him. The
General Counsel contended that another employee had not
been placed on the bottom of the out-of-work list for
refusing an assignment to Crystal River because of the
distance involved. However, the record established that he
had refused the assignment not because of the distance
involved but because he was involved in divorce
proceedings, which the record established was one of the
valid excuses. I conclude and find that Ross did not have
a valid excuse for rejecting this job referral, and that
Respondents' placing Ross on the bottom of the
unemployment list as a result thereof did not constitute
continuing discrimination against Ross.
J. Continued Discriminatory Preferential Hiring Hall
Referrals, Without Regard to Ross, and Failure to
Maintain Records Adequate to Disclose Fully the
Basis on Which Referrals Were Made
In addition to continuing discrimination against Ross,
the Specifications alleged continuing discriminatory hiring
hall referrals independently of Ross and Respondents'
failure to keep permanent records of the hiring and
referral operation adequate to disclose fully the basis on
which each referral was made as required by the Board's
Order. While the General Counsel's contention that the
Board's Order required that Ross be made whole for any
loss of earnings until Respondents complied fully with the
Board's Order independently of any continuing
discrimination against Ross has been found to be without
merit, the record clearly establishes and I find numerous
instances of Respondents' continued out of order and
discriminatory hiring hall referrals independently of Ross
and their failure to maintain records adequate to disclose
"Article III, Section 8.
777
fully the basis upon which each referral was made.
Respondents' records, primarily their job request sheets
and out-of-work lists, disclose numerous out-of-order
referrals of registrants.
The operation of the referral system was based
primarily upon the independent judgment of Roberts and
his assistants in selecting registrants for referral. All of the
operating engineers were listed on the same out-of-work
list in the order of their date of registration. Many of
them were not qualified to perform crane work, and many
crane operators had limited skills and were unable to
work on certain types of cranes. In addition, many other
factors entered into the determination of which registrants
were qualified for a particular job referral, none of which
were revealed in Respondents' records or shown on the
unemployment list. The registrant's age, physical
condition, ability to judge distance, ability to handle
cranes with long booms, speed of production, illness and
numerous other factors were considered by Respondents
in making referrals. While the record reveals that
Respondents maintained a file of qualification cards from
some of the registrants which had been filed prior to the
incidents in the prior proceeding, in many instances these
qualification cards were incomplete and inadequate, some
being entirely blank, and Roberts and his assistants
testified that in substantially all referrals they made no
reference to the qualification cards because they knew the
qualifications of the registrants The first qualified person
on the unemployment list was supposed to be referred to
the first job request received. The list and in many cases
Respondents' records did not reveal which registrant was
qualified for what job and hence it depended entirely upon
the knowledge and judgment of the person making the
referral. If in the judgment of Roberts or his assistants a
registrant was too old, too ill or too slow to perform a
certain job, then he was not called even though otherwise
qualified. Moreover, with respect to crane jobs it was
impossible to tell from the registration list which
registrants were crane operators and in turn which were
qualified to work on particular types of cranes and which
were not. Thus there can be no question, and I find, that
Respondents have failed to maintain records adequate to
disclose fully the basis upon which each referral was made
as required by the Board's Order.
In addition to the fact that Respondents' records reveal
numerous out-of-order referrals among registrants who
were qualified for a particular job, the record establishes
that under the system used it was a simple matter for
Respondent to manipulate the job referrals at will.
Inasmuch as no records of referral calls were kept, it was
a simple matter to refer a favored registrant who was not
on top of the list to a particular job by claiming that those
above him had been called and could not be contacted. In
the same manner, a favored registrant at or near the top
could be passed over for an undesirable job by claiming he
had been called unsuccessfully. In the absence of adequate
records it is impossible to determine who should have
been called and who in fact was called with respect to any
particular job referral. In short, the system lends itself to
easy and undiscoverable manipulation if so desired.
K. Roberts' Liability Under Any Backpay Order
Respondents contend that Roberts, Respondent Union's
business manager and a named Respondent, as an
individual should not be liable for any backpay as
distinguished from Respondent Union. Inasmuch as the
Board's Order clearly and specifically requires the named
Respondents, including Roberts, to make Ross whole for
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
any loss of pay suffered because of the discrimination
practiced against him, I conclude and find that this
contention is without merit.
L Backpay Calculations
The General Counsel's Backpay Specifications,
including Appendices A-1 through 17 and B, calculated
Ross' gross backpay or loss of earnings, excluding
conceded periods of unavailability, his interim earnings,
with expenses incurred in seeking and retaining interim
employment deducted in 1964, and his resulting net
backpay upon the customary quarterly basis. The
Appendices commenced with the last calendar quarter of
1963, because of Ross' conceded unavailability from July
30 to September 30, 1963, and included 1964, 1965, 1966,
and 1967 to December 11, when Ross concededly became
unavailable for further employment because of illness. The
"actual replacement" formula used in the Specifications
to determine Ross' gross backpay from the
Foster-Wheeler and Manta jobs, by using the earnings of
his replacement on the Foster-Wheeler job until December
2, 1963, and the earnings of his replacement on the Manta
job thereafter until its termination January 10, 1965, was
found to be appropriate and reasonable. Thereafter the
Specifications calculated Ross' quarterly gross backpay on
the basis of the so-called representative group, found not
appropriate and reasonable.
As found above, Respondents' backpay liability
terminated June 30, 1965, the termination date of Ross'
actual replacement on the Dorr Oliver job. Because the
record contains the 1965 earnings of some 22 expert crane
operators using Respondents' referral system and
reasonably comparable to Ross in ability and earning
power, their average earnings will be used herein to
compute Ross' gross backpay for the period from January
10, 1965, to and including the second quarter of 1965.
Without conceding liability or their other contentions,
Respondents conceded the accuracy of the calculations of
gross backpay and interim earnings in the Specifications.
In addition to the customary gross backpay and interim
earning computations set forth in the Appendices, the
Specifications claimed expenses incurred by Ross only
during 1964 in seeking and retaining interim employment,
roughly the period of time encompassed by the Manta
job. Such expenses were not claimed after 1964 because it
was not possible to identify a specific job or replacement
for Ross after the termination of the Manta job.
Respondents contend that the expenses claimed for Ross
in seeking and retaining employment during 1964 were
unreasonable and improper, particularly with respect to
the claimed expense of Ross' trip to Tennessee and the
Carolinas from August 3 to August 15, 1964, seeking
employment. In general , Ross' expenses consisted of the
excess mileage which he was required to drive to his
interim employment instead of employment at Manta, and
certain expenditures for room and board necessary in
connection with seeking and retaining his employment.
Respondents contended that Ross' absence from the city
between August 3 and 15, 1964, was a vacation rather
than a work- seeking trip. However, as found above, after
Respondents had suspended Ross from union membership
on July l and discriminatorily caused his discharge on
July 24, Ross decided to try to find employment elsewhere
and with his wife drove to the Carolinas and Tennessee
because he had heard of a large interstate highway project
and hoped to secure work. Because of rainy conditions
and more specifically because his union book had been
suspended by Respondents, he was unsuccessful in this
effort. Ross testified, and I credit him, that he made the
trip solely for the purpose of seeking employment.
Respondents contend that because Ross was unable to
produce any receipts for his lodging or meals while on this
trip such expenses should not be allowed. Such argument
goes to the weight rather than the reliability of the
evidence. Ross' claimed expenses seem extremely modest,
$5 a day for motels and $3.75 a day for meals His other
interim expenses during 1964 consisted of excess mileage
at the rate of 10 cents per mile, parking fees and room
and board while employed at Sebring, some 94 miles from
Tampa. I am satisfied and find that the expenses claimed
on behalf of Ross in seeking and retaining employment
during 1964 were both reasonable and appropriate.
1. The fourth quarter of 1963
The Specifications commenced with the fourth quarter
of 1963 instead of July 30 because of Ross' conceded
unavailability from July 30 to September 30, 1963.
However, as found hereinabove, Ross in fact was
unavailable for employment because of disability until
October 21, 1963. Accordingly, the remaining period for
backpay computation in the fourth quarter of 1963 totals
10 weeks, 6 consisting of McCrae's employment on the
Foster-Wheeler job until December 2 and 4 consisting of
Lucas' employment on the Manta job for the balance of
the year. As set forth in Appendix A-l, McCrae earned
$189 30 a week on the Foster-Wheeler job. Thus his
earnings for 6 weeks ending December 2, 1963, totaled
$1,135.80. As further set forth in Appendix A-1 and
stipulated, Lucas' earnings for the balance of the fourth
quarter of 1963, excluding 3 days when Ross was
admittedly unavailable , totaled $500 58, or a total gross
backpay of $1,636.38 for the 10 weeks. Ross' conceded
interim earnings during the same period of 1963 were
$581.10, leaving $1,055.28 net backpay for the quarter.
2. 1964 backpay
As found above, the utilization of the actual
replacement formula based upon Lucas' earnings to
determine Ross' gross backpay until the termination of
Lucas' employment was reasonable and appropriate. Since
Lucas remained in Manta's employ until January 10,
1965, his actual earnings for the entire calendar year of
1964 were used in Appendices A-2, 3, 4, and 5 to calculate
Ross' quarterly gross backpay for the year. As also found
above, Ross' interim earnings for the corresponding period
were reduced by the expenses he incurred in seeking and
retaining interim employment. Thus the calculations,
concededly correct, resulted in a total net backpay for the
four quarters of 1964 of $11,489.88. Apparently by
oversight, the General Counsel failed to credit
Respondents with the payment of $200 made to Ross as
part of the January 29, 1964, settlement agreement
subsequently set aside. Accordingly, Respondents' net
backpay liability for 1964 totals $11,289.88.
3, The first two quarters of 1965
As hereinabove found, Respondents' liability for
backpay because of continuing discrimination against
Ross terminated as of June 30, 1965, the termination date
of the longer of the last two jobs of which Ross was
discriminatorily deprived, coincidentally the end of the
second quarter of the year. Lucas remained on the Manta
job as Ross' actual replacement until January 10, 1965.
INTL. OPERATING ENGINEERS , LOCAL 925 779
Lucas' conceded earnings for the first 10 days of 1965, set
forth in Appendix A-6, were $436.50. Thereafter the
Appendices computed gross backpay on the basis of the
average earnings of the "representative" group not found
appropriate. Inasmuch as the record establishes the 1965
earnings of 22 expert crane operators herein found to be
representative and appropriate for the purposes of
computing Ross' gross loss of earnings during the first
two quarters of 1965, 1 include herewith the necessary
tabulation to ascertain the average earnings of these 22
expert crane operators for such period:
of 1965. However, Lucas' actual 1965 earnings to January
10 were $436.50. Appendices A-6 and B conceded that
such earnings represented 2 of the 13 weeks of the quarter
and that 11/13 constituted the remainder of the quarter.
Eleven-thirteenths of $2,302 is $1,947.77 That plus the
$436.50 totals $2,384.27 gross backpay for the first
quarter of 1965. Deducting Ross' conceded interim
earnings, $556, leaves a net backpay liability of $1,828.27
for the first quarter of 1965.
Ross' gross backpay for the second quarter of 1965 is
$2,302, the quarterly average found above. Deducting his
conceded interim earnings of $1,712.75 leaves a net
backpay liability of $589.25 for the second quarter of
1965.
1965 Earnings," 22 Expert Crane Operators 4. Summary
Zorn, Jos.
A tH i
$ 9,423
8 309 The following tabulation summarizes the aboveer r .tage,
Kersey, R. C.
,
10,535 calculations:
Lucas, H. C. 8,018
Snyder, W. G. 9,855
Perry, Wm. 9,01013
Short, R. L. 9,053 Calendar Gross Net Interim Net
Clark, J. D. 10,341 Quarter Backpay Earnings Backpay
Curry, J. H. 9,160
Sherouse, H. D. 8,101" 1963-4 1,636.38 581.10 1,055.28
*1964-1 3,177.50 901.14 2,076.36
Simcoe, A. 9,109- 1964-2 2,908.50 820.20 2,088.30
Ashmore, B. 10,129 1964-3 4,950.00 ---- 4,950.00
Nix, Void 9,178 1964-4 3,600.00 1,424.78 2,175.22
Vaughn, G.F. 9,510 1965-1 2,384.27 556.00 1,828.27
Watkins, R.R. 9,407 1965-2 2,302.00 1,712.75 589.25
Casteel, H.K. 9,004 Total Net Backpay $14,762.68
Wilson, A.G. 8,824
8 69Norris, T.A. , 3
Carter, H. 9,759
Shoemake , V. 9,580
Walker B A 8 407 "5200 deducted for amount paid under the set -aside settlement, . .
Nix, L.U.
,
11,381 agreement.
TOTAL $204,786
Average $ 9,208
M. Conclusions and Recommendations
The foregoing tabulation reveals that the average of the
earnings of the 22 expert crane operators comparable to
Ross was $9,208 for 1965, an average of $2,302 aquarter.' I
While the actual quarterly earnings in 1965 of the 22
expert crane operators are not available in the record, in
view of the broad cross section used herein to ascertain
the 1965 average , it seems reasonable to conclude, and I
find, that one-quarter, $2,302, of such 1965 average is a
reasonable and appropriate basis to calculate Ross'
backpay or loss of earnings during the first two quarters
"Rounded to the nearest dollar for easier calculation
"Proration of 7 months earnings.
"The average of the 1965 earnings of the four excluded "representative"
operating engineers was $11,572 , or $2,893 a quarter . The other operator,
Zorn , is included in the 22 listed above.
It is concluded and found that the net amount of
backpay due to Ross from the date Respondents'
discrimination began, July 30, 1963, to June 30, 1965, is
$14,762.68, plus interest at the rate of 6 percent per
annum on each quarterly amount as provided in the Board
Order, less any tax withholding required by law.
Upon the basis of the foregoing findings and
conclusions, and upon the entire record in this case, I
recommend that the Board issue the following:
ORDER
Respondent , International Union of Operating
Engineers , Local 925, AFL-CIO, its officers, agents, and
representatives, and its Business Manager , Respondent H.
B. Roberts , his agents and representatives , shall forthwith
780 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pay to the lawful heirs of Herman Dewey Ross the sum of annum computed on the basis of the quarterly amounts of
$14,762. 68, with interest at the rate of 6 percent per net backpay due, less any tax withholding required by law