Local 294, Teamsters

National Labor Relations Board - Board Decisions

Jan 16, 1974

208 N.L.R.B. 445 (N.L.R.B. 1974)

LOCAL 294, TEAMSTERS 445
Local 294, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-
ca (August Bohl Contracting Co.. Inc., and Cooley
Contracting Co., Inc ., a Joint Venture) and Jack
Sharac and Elroy Levernois . Cases 3-CB-1268-1
and -2
January 16, 1974
SUPPLEMENTAL DECISION AND
ORDER
By CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On June 24 , 1970. the National Labor Relations
Board issued a Decision and Order in the above-
entitled case ' finding that the Respondent violated
the National Labor Relations Act, as amended, and
ordering the Respondent . inter alia, to make whole
Jack Sharac and Elroy Levernois for any loss of
earnings they may have suffered because of the
discrimination practiced against them . The Respon-
dent was also ordered to cease and desist from
causing, or attempting to cause , August Bohl
Contracting Co., Inc., and Cooley Contracting Co.,
Inc., a joint venture , to discriminate against Jack
Sharac and Elroy Levernois, or any other employee,
contrary to the requirements of Section 8(a)(3) of the
Act. Thereafter , on September 30, 1971 , the United
States Court o" Appeals for the Second Circuit
entered its decree enforcing in full the aforesaid
Board Order.2
On March 17, 1972, the Regional Director for
Region 3 issued a backpay specification and notice
of hearing for the purpose of determining the
amounts of backpay, if any, due and owing and
making whole the said Charging Parties, Jack Sharac
and Elroy Levernois . Upon appropriate notice issued
by the Regional Director , a hearing was held on May
9, August 22 , and August 23, 1972, before Adminis-
trative Law Judge John F . Funke.
On November 24, 1972 , the Administrative Law
Judge issued the attached Supplemental Decision in
which he found that the claimants were entitled to
the amounts of backpay therein set forth . Thereafter,
both the Respondent and the General Counsel filed
exceptions with supporting briefs.
`Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act , as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Supplemental Decision in light of the
exceptions and briefs and has decided to affirm the
rulings, findings, and conclusions of the Administra-
tive Law Judge as modified herein. For the reasons
which are discussed, infra, it is deemed appropriate
to remand this proceeding to an Administrative Law
Judge for the purpose of taking additional evidence
necessary for the determination of backpay liability.
Initially, it is necessary to determine whether
Respondent's backpay liability to the backpay
claimants terminated upon the dissolution of the
joint venture. The Administrative Law Judge found
that no backpay could accrue or be awarded for
calendar quarters extending past April 13, 1971, the
date when Bohl-Cooley ceased operations at the
South Mall project.3 We disagree. The Board's Order
herein prohibits the Respondent from causing the
joint venture to discriminate against Sharac and
Levernois and does not explicitly restrain the
Respondent from engaging in similar conduct
involving these individuals with "any other employ-
er." Unlike the Administrative Law Judge, we do not
find this to be of decisive significance.
After the Board's Order was promulgated, the
Bohl-Cooley joint venture commenced a gradual
process of dissolution. This fact was not evident to
any of the parties, at the time of the Board's Order.
Consequently, at that time, there was no foreseeable
need to broaden the Order to accomodate such a
fortuity. Accordingly, we believe that under the
circumstances this development does not require us
to relieve the Respondent of backpay liability for
periods extending beyond the dissolution of the joint
venture.4 Moreover, much of the work performed by
the joint venture has been taken over by Bohl
Contracting Co., Inc., which at the time of this
hearing was even contemplating the assumption of
certain assets and liabilities of the joint venture in its
role of sole survivor. Therefore, August Bohl Con-
tracting Co., Inc., is not a stranger employer.
Furthermore, the Board's Order runs directly against
the Respondent Union and prohibits it from such
coercion and restraint of employees "in any other
manner." so that the remedial sanction is not limited
t 183 NLRB 1040
2 470 F 2d 57
3 According to the uncontradicted testimony of August Bohl, president
of August Bolil Contraumg Co, Inc. and one of the heads of the joint
venture, the joint ventur° s operations at the South Mall ended on April 13,
1971, and terminated on or about the last of June 1971 at the so-called
Walsh job. At the time of the first phase of the hearing herein (May 1972),
the joint venture was in the process of dissolution and winding up its affairs
and it was contemplated that August Bohl Contracting Co. Inc., would
sun ive as the successor firm
a The Board's Order not only relates to Sharac and Levernois, but also
covers "any other employee." and it also is a broad order commanding
Respondent to cease and desist from "in any other manner restraining or
coercing employees in the exercise of their rights covered by Section 7 of the
Act," a reach which is ample to control Respondent's conduct relating to
the surviving firm of the joint venture. but also as to other employers
208 NLRB No. 69
446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to Respondent's coercion or restraint of employment
by the joint venture.5 For these reasons, we hold that
the dissolution of thejoint venture did not necessari-
ly toll the backpay entitlement of these claimants,
and we shall direct that additional evidence, as
necessary and consistent with this finding, be
adduced during the hearing on remand herein.
We turn now to the amounts of backpay due to the
claimants. The Respondent does not take exception
to the technique employed by the General Counsel in
the specification, viz, the utilization of so-called
comparable employees who were on the payrolls of
the joint venture, or August Bohl Contracting Co.,
during relevant times. However, Respondent does
except to the selection of employee Eaton as a
yardstick for Sharac, and it similarly excepts to
employee Warner as not representing a reasonable
measure for establishing the amount of backpay due
Levernois. In its amended answer to the specifica-
tion, Respondent contends that the weeks, hours,
and earnings of employees L. Bridenbeck and H.
Ward are more appropriate for comparison purposes
in determining the backpay due to Sharac and
Levernois, respectively. With reference to the deter-
mination of Sharac's backpay, the Administrative
Law Judge ruled that he believed himself bound by
the Board's telegraphic orders to fix the amount of
this discriminatee's gross backpay as being equiva-
lent to the earnings of joint venture employee Eaton
during the backpay period. This ruling came during
the hearing when the General Counsel sought (and
obtained) special permission to appeal the Adminis-
trative Law Judge's action in affording the Respon-
dent the opportunity to develop evidence concerning
the impropriety of choosing Eaton for computing
Sharac's backpay as alleged in Respondent's amend-
ed answer7 to the specification. The Respondent now
urges that we should set aside our Order reversing
the Administrative Law Judge which granted the
General Counsel's appeal as it pertains to the Sharac-
Eaton matter, and find that Eaton's earnings are not
an appropriate determinant for Sharac's backpay.
We are unable to make a finding as to which
employee is the correct measure. Therefore, we shall
permit the Respondent to engage in further and full
litigation of this issue during the hearing on remand,
if it so desires. Parenthetically, we note that our
interim order did not affirm Administrative Law
5 Also, Respondent during all relevant times has exclusively represented
the employees of August Bohl Contracting Co, Inc , who fall within its
jurisdiction under existing bargaining agreements Finally certain of the
joint venture employees were hired by August Bohl, which also adopted the
Union 's joint venture seniority list
6 This interlocutory order, pursuant to Sec 102 26 of the Board's Rules
and Regulations , as amended, and dated June 12 , 1972, was in response to
General Counsel 's earlier motion to strike certain portions of the
Respondent's original answer to the backpay specification on the grounds
that Respondent 's answer was in error because ( 1) it sought to relitigate
Judge Schneider to the extent of expressly declaring
that Eaton's earnings were the only available
appropriate gauge of Sharac's gross backpay. How-
ever, our ruling is not to be construed in any manner
as a finding on our part that Eaton's earnings are, in
fact, not appropriate as a reasonable indication of
Sharac's gross backpay.
With respect to claimant Levernois, the Adminis-
trative Law Judge, consistent with the backpay
specification, found that the earnings of employee D.
Warner are an appropriate comparison in assessing
backpay. However, his computations reflect the fact
that there are substantial voids in the record data
introduced to support this determination. Conse-
quently, the Administrative Law Judge resorted to
the earnings of employees Ward and Eaton in order
to complete his calculations of Levernois' backpay.
Although the Respondent excepts to this method, we
do not categorically reject the technique he em-
ployed. However, we feel that, under the circum-
stances, the hearing we direct should also embrace
this issue and, therefore, we will permit the Respon-
dent the opportunity to demonstrate more fully that
the earnings of employee Ward, or some other
employee, are more fitting, as a measure of Lever-
nois' backpay.
ORDER
It is hereby ordered that the record in this
proceeding be, and it hereby is, reopened and that a
further hearing be held before a duly designated
Administrative Law Judge for the purpose of taking
evidence in accord with the Board's Supplemental
Decision herein for the purpose of recomputing
backpay due the discrimina tees.
IT IS FURTHER ORDERED that this proceeding be,
and it hereby is, remanded to the Regional Director
for Region 3 for the purpose of arranging such
hearings, and that the said Regional Director be, and
he hereby is, authorized to issue notice thereof.
IT IS ALSO FURTHER ORDERED that upon the
conclusion of such hearing, the Administrative Law
Judge shall prepare and serve on the parties a second
supplemental decision containing findings of fact
based upon the testimony and other evidence
received pursuant to the provisions of this Order,
with recommendations for the backpay due and
matters previously decided in the unfair labor practice case , or (2) the
answer failed to plead with the particularity required by the Board's rules
governing backpay proceedings
7 General Counsel's original motion to strike was ruled on by
Administrative Law Judge ( then Trial Examiner ) Schneider We do not
construe his rulings on the motion, nor the Board's telegraphic order, as
necessarily foreclosing Respondent 's right to demonstrate herein that some
other employee besides Eaton would be more fitting for comparison with
Sharac in order to reasonably establish the latter's gross backpay
LOCAL 294, TEAMSTERS
owing to the discrimmatees, and that, following the
service of such second supplemental decision on the
parties, the provisions of Section 102.46 of the
Board's Rules and Regulations, Series 8, as amended,
shall be applicable.
SUPPLEMENTAL DECISION IN BACKPAY
PROCEEDING
STATEMENT OF THE CASE
JOHN F. FUNKE, Administrative Law Judge: This
supplemental proceeding was brought before the National
Labor Relations Board upon:
1. Backpay specification and notice of hearing issued
by the General Counsel on March 17, 1972, against Local
294, etc., herein Local 294, and an answer dated April 13,
1972, and an amended answer dated May 8, 1972, filed by
Local294.
2. A hearing held by me at Albany, New York, on May
9 and August 22 and 23, 1972, to determine the amount of
backpay and other benefits due Jack Sharac and Elroy
Levernois pursuant to the Decision and Order of the Board
in Local 294, International Brotherhood of Teamsters, 183
NLRB 1040.
3. Briefs received from the General Counsel and Local
294 on October 13, 1972.
Upon the record in this supplemental proceeding and
from my observation of the witnesses while testifying, I
make the following:
FINDINGS
A. Background and Issues
On February 27, 1970, Administrative Law Judge (then
Trial Examiner) Eugene E. Dixon issued his Decision in
the above-entitled cases and on June 24, 1970, the Board
affirmed the Trial Examiner's Decision, supra. In the
Remedy section of his Decision that Trial Examiner held
at 1046:
Having found that Respondent Union caused Bohl-
Cooley to discriminate against Jack Sharac and Leroy
Levernois by refusing them employment contrary to
requirements of Section 8(a)(3) of the Act, I shall
recommend that Respondent make them whole for any
loss of pay suffered by reason of the discrimination
against them, by paying to them a sum of money equal
to that which they normally would have earned from
I The Board's telegraphic order reads
GENERAL COUNSEL'S REQUEST FOR SPECIAL PERMISSION TO APPEAL TRIAL
EXAMINER 'S ORDER OVERRULING EARLIER RULING OF TRIAL EXAMINER
SCHNEIDER GRANTING GENERAL COUNSEL'S MOTION TO STRIKE CERTAIN
PORTIONS OF RESPONDENT'S ANSWER IS HEREBY GRANTED, THE APPEAL IS
GRANTED AND THE TRIAL EXAMINER IS REVERSED BY DIRECTION OF THE
BOARD
GEORGE A LEFT
ASSOCIATE EXECUTIVE SECRETARY
The Board's order is noteworthy since it is typical both of rulings on interim
appeals and the procedure followed on such appeals The Board's order
does not state the ground upon which it is based, it does not refer to either
the original decision which was cited by the General Counsel as the basis for
Trial Examiner Schneider's order nor does it refer to the substantive parts of
447
the date of the discrimination against them (which was
the date they would have been recalled to the Walsh
job in the spring of 1969 had the recall been made on
the basis of the seniority they were entitled to carry
with them to the Albany High School job from the
South Mall project) to the time that they would have
been laid off on the Walsh job or the South Mall
project as their seniority would have dictated, absent
any discriminatory motive.
Paragraph 2(a) of the Trial Examiner's order provides:
Make whole Jack Sharac and Leroy Levernois for any
loss of earnings they may have suffered because of the
discrimination against them in the manner set forth in
the section entitled "The Remedy."
In adopting the Trial Examiner's Decision the Board
issued only a short order which left the provisions of the
remedy section and the aforesaid paragraph of the order
unchanged.
Pursuant to a motion to strike filed by the General
Counsel on April 24, 1972, Administrative Law Judge
Charles W. Schneider issued an order dated May 4, 1972,
striking certain paragraphs of Respondent's answer. On
May 8 Respondent filed its amended answer. At the
hearing on May 9 the General Counsel appealed from my
ruling permitting the amended answer and the Board on
June 12 reversed my ruling and struck substantial portions
of the amended answer as requested by the General
Counsel.' On August 22, 1972, I granted General Counsel's
motion to strike all portions of the amended answer not
consistent with the Board's order.
The effect of these motions and orders was: (I) to fix the
appropriate measure of the earnings of Sharac as those of
employee Eaton during the backpay period; (2) to leave to
me the determination of the appropriate measure of
earnings of Levernois had it not been for the discrimina-
tion practiced against him; (3) to leave to me the
determination of the interim earnings of Sharac and
Levernois, including wilful loss of earnings or inability to-
work, during the backpay period; and (4) the date of
termination of the backpay period.
B. Termination of Backpay
The date when Local 294's liability for backpay was
terminated is the most troublesome of the issues and had
best be settled first . Determination must be made as to
whether: ( 1) Sharac's application for a withdrawal card
his order construing the decision On the face of the Board order there is no
indication that the Board read or considered either its own decision, Trial
Examiner Schneider's order, nor the opposition to the motion submitted
counsel for Local 294 The order is a simple ipse dixit conclusion Pursuant
to what appears to be Board procedure , although nowhere set forth in its
Rules and Regulations , the motion was referred to the office of its Executive
Secretary (an administrative and not a judicial division of the Board) where,
apparently , the decision was made and the order issued. If any Board
Member participated in the decision on appeal that fact is not disclosed by
the telegraphic order "By direction of the Board" is a very cryptic phrase It
would appear that in an adversary proceeding before a quasi-judicial agency
a respondent should be entitled to know the identity of the person or
persons ruling on a contested motion and the grounds on which the ruling
rests Not so when he appears before the National Labor Relations Board
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from Local 294 and his acceptance of the same on April 24,
1969, indicated a withdrawal from the labor market in the
trucking industry and thereby terminated Local 294's
liability as of that date; (2) the letter of Local 294, dated
March 17, 1970, to Bohl-Cooley (see infra) advising Bohl-
Cooley that it had no objection to the employment of
Sharac and Levernois terminated libility as of 5 days after
receipt of the letter; 2 and (3) liability terminated when
Bohl-Cooley terminated the South Mall job or continued
after Bohl took over the South Mall job from Bohl-Cooley
following the dissolution of the Joint Venture on April 13,
1971.
(1) I do not find that Sharac's application for and
acceptance of a withdrawal card tolled liability for
backpay. At the time Sharac made his application he was
not, according to his testimony, working and could not
afford to pay his dues. He thereafter returned to the hall on
various occasions but was unable to obtain referral. On
one of these occasions he offered to pay his reinstatement
fee (with borrowed money) but the offer was rejected
because he was not working. Since Local 294 was found by
the Board to have been operating an exclusive hiring hall it
was obligated to refer him regardless of membership.
(2) Under ordinary circumstances Local 294's letter
dated March 17, 1970, would relieve it of liability for
further backpay.3 This letter (G.C. Exh. 2), addressed to
Bohl-Cooley with copies to Sharac and Levernois read:
Please be advised that the International Brotherhood
of Teamsters, Local 294 does not now nor has it in the
past had any objection to your Company employing
Elroy Levernois or Jack Sharac. You are further
advised that if you were ever under the impression that
this Union had any objection to the employment by
your Company of Elroy Levernois and Jack Sharac,
that such impression or assumption is completely
unfounded.
If for any reason you were previously under the
impression that this Local Union or any of its
representatives had any objection to your employing
Levernois and Sharac, this letter is sent to assure you
that that is not the intention of this Union nor its
position. Any objection you assumed this Union had as
to the employment of these individuals, the Union does
not admit that there was any, nevertheless are now
withdrawn so that the record is entirely clear; and you
are free to act without objection on the part of the
Union to employ Elroy Levernois and Jack Sharac.
2 Trial Examiner Dixon found that August Bohl Contracting Company,
inc , herein Bohl. and Cooley Contracting Company, herein Cooley, were
corporations engaged in the construction business in the Albany, New
York , area In 1966 , according to the testimony of August Bohl, president of
Bohl, Bohl and Cooley formed a joint venture to engage in construction on
the vast South Mall project at Albany The consortium is referred to in this
proceeding as either Bohl-Cooley or the Joint Venture
3 Notice from a respondent union found in violation of Section 8(bX2) to
the employer concerned that it has no objection to the reemployment of a
discriminatee will toll backpay from a date 5 days after the date of the letter
The Englander Company, Inc, 108 NLRB 38, Westwood Plumbers, 131
NLRB 562, and cases cited, fn 3, M Eskin and Son, 148 NLRB 1022.
4 1 reject the argument of the General Counsel that the letter was
inoperative because there is no evidence to establish that the letter was
I find that this letter fully complies with all the
requirements of the Board' s usual 8(b)(I)(A) and (2)
remedial order.4 Nor do I accept the argument of the
General Counsel that Local 294 was obligated, in addition,
to refer Sharac and Levernois to Bohl-Cooley for employ-
ment . While Local 294 operated under an exclusive hiring
hall arrangement with Bohl-Cooley a referral situation
does not arise until there is a request for drivers. In the
absence of any such request a referral would have been
futile; all Local 294 could do at this time was notify Bohl-
Cooley that its objection to their employment was
withdrawn. The General Counsel argues, however, that the
letter of March 17 was inconsistent with conduct of Local
294's officers and agents occurring after the issuance of the
letter indicating that the discriminatory practices of Local
294 did not cease on that date. This argument is entitled to
consideration.
Levernois testified that sometime in December 1969 he
had a conversation with Anthony Carusone, a business
agent of Local 294, at the South Mall project in which he
asked Carusone for work "down there" and to which
Carusone replied "you ain't going to work." This took
place prior to the March 17 letter and prior to Trial
Examiner Dixon's decision of February 27, 1970. It does
firmly establish the attitude of Local 294 toward the
employment or referral of Levernois at that date. Levernois
testified that in March 1970 (Levernois thought it was after
he received his copy of the March 17 letter),5 he called
Carusone and spoke to him on the telephone concerning
an Albany job which needed a pickup truck operator the
next morning. Carusone told him, "You're not going on
there and you're not going to work." ... "I got a man for
that job."
After receipt of the March 17 letter Levernois applied for
work at the Bohl-Cooley location six, seven, or eight times.
The first occasion was on April 10, 1970, and at that time
he spoke to Cal Bohl who told him things were slow. He
was not hired then nor on any other occasions.
There is also evidence, taken from Local 294's records
(Resp Exh. 2-a, 2-b, and 2-c), that drivers were employed
at the Joint Venture in May, August, and October, 1969,
and in March and August 1970. The record does not
establish whether these men were referred by Local 294 but
in view of the Board's finding in the original case that an
exclusive hiring hall arrangement existed it must be
assumed that they were so I would find that this issue, as to
drivers employed by the Joint Venture, no longer litigable .6
Under these circumstances and despite the fact that the
Board's order did not provide that Local 294 take any
received by any responsible representative of Bohl -Cooley The letter was
addressed Bohl-Cooley at the place of business of the Joint Venture to the
attention of Mr Frank Zaronda, president of Cooley Contracting Co There
being no question but that the letter was properly addressed and was
received at the offices of the Joint Venture I find the obligation of Local 294
was thereby satisfied
5 On cross-examination Levernois firmly fixed this date as after the
March 17 letter
6 This is not to say that this situation could not have changed after April
1969 1 simply do not find that there is clear or credible evidence that it did
change August Bohl's testimony in the instant proceeding that he hired
only stewards from Local 294 does not refer to the Joint Venture but to
operations of Bohl Contracting Co., a separate entity Even as to the hiring
practices at that company the evidence is not conclusive.
LOCAL 294, TEAMSTERS
affirmative action seeking the reinstatement of Sharac and
Levernois I find that liability did not terminate with the
delivery of the March 17 letter. It is true, as counsel for
Local 294 points out in his brief, that Local 294 was not
required by the terms of the order to issue such a letter or
required to refer either Sharac or Levernois to the Joint
Venture. Such a narrow construction of the cease and
desist provision would permit Local 294 to remain passive
and silent and leave the discriminatees without any
effective remedy. I do not regard the order as nugatory and
I hold that Local 294, which had denied them employment,
was required to take reasonable affirmative action,
including referral, when drivers were requested, to obtain
their employment.
It can be argued, of course, that if the Board's order is
defective in providing an adequate remedy for the unfair
labor practices found herein that is the responsibility of the
Board and cannot be cured retroactively by an Adminis-
trative Law Judge. The answer to that is that this
Administrative Law Judge is not trying to correct or
expand upon the Board's order but merely give it a
reasonable construction. As Administrative Law Judge
Dixon pointed out in his decision, Local 294 was "a
sophisticated union very ably represented by counsel quite
experienced in the ramifications of charges involving
Section 8(b)(l)(A). 8(b)(2) and other sections of the Act." I
think a fair reading of the order in context with the
decision indicates that more was required than was done
here to toll backpay and that Local 294 was well aware of
that fact.7 (Cf. Reinforcing Iron Workers, Local No. 426
[Tryco Steel Corp.] v. N.L.R.B., 81 LRRM 2479 (C.A.D.C.,
1972).)
I am, however, }unwilling to stretch the Board's order any
further and to find, as requested by the General Counsel,
that it should extend to employment by Bohl Construction
Company. The Board order is expressly limited to "August
Bohl Contracting Company, Inc. and Cooley Contracting
Company, Inc.. a joint venture ...." This was the
employer named in the complaint and the only employer
involved in the discrimination alleged in the original
complaint. Had the Board desired to expand the scope of
its order to include discrimination against "any other
employer" it needed only to employ its customary
language. Its conspicuous failure to do so binds me to the
language employed. I therefore find that all liability was
tolled at a time when the discriminatees would have
normally been terminated by the Joint Venture, absent any
discrimination, as hereinafter found.
7 The record does not disclose that Local 294 made any inquiry of the
Regional Office as to whether its letter of March 17 constituted compliance
with the Board's order
8 Sharac did not give the date of his first employment with Brown nor
the length of that employment before injury No earnings were shown for
this penod
9 His testimony reads
Q You were working for D. K. Brown when you got hurt''
A 1 know that, and I went back to work again
449
C. Backpav Due Sharac
The measure of backpay due Sharac has been fixed by
the order of the National Labor Relations Board, dated
August 22, 1972, as the earnings of Eaton for the period of
discrimination against Sharac. I find that this period began
on April 29, 1969, and terminated April 27, 1971, when
Eaton's employment with the Joint Venture terminated.
Local 294 contends that Sharac should be disqualified
for a penod of 5 months during which he collected liability
insurance and was unavailable for employment. I find
merit in this contention. Sharac's own testimony is that he
was employed by D. K. Brown prior to his injury; 8 that he
collected disability insurance during this period under a
policy maintained by Brown and that he returned to work
after a period of about 5 months. Unfortunately the
General Counsel's specifications (schedule C) show that
Sharac was first employed by Brown in the fourth quarter
of 1969. It does not show prior employment by Brown and
thus it is squarely in conflict with Sharac's testimony that
he was injured after employment with Brown. The only
inference that can be drawn is that the backpay investiga-
tion did not reveal this prior employment and that the
General Counsel assumed he was first employed in the
fourth quarter of 1969. But Sharac's testimony is clear on
this point.9 On the other hand Sharac testified that he was
available for employment and could work during this
period.10 He did not, however, report to collect unemploy-
ment insurance during these months because "It's a little
ridiculous to go to the unemployment office and they ask if
you're physically able to work and you've got a bandage on
your hand." Sharac offered no explanation for not
returning to work for Brown at an earlier period if he was
in fact able to work. Considering this testimony I find that
Sharac was sufficiently disabled to preclude his working
for Brown and could not, due to his disability, collect
unemployment benefits. I shall therefore deduct from his
gross pay an amount equal to what his earnings would
have been with Brown for the months of May, June, July,
August, and September. There is no record of what these
earnings would have been except for Sharac's estimate that
his gross earnings were between $150 and $175 per week.
Splitting this in half (the Solomon formula) would provide
an estimated gross pay of $162.50 for a period of 22 weeks
(also estimated) and a setoff against gross pay of $3,575, of
which $1,462.50 (9 weeks) shall be assessed against the
second quarter and $2,112.50 against the third quarter of
1969.
Summarizing and omitting those quarters in which the
earnings of Sharac exceeded those of Eaton," I compute
Sharac's backpay claims as follows:
10 On this point he testified
Q Did you advise the National Labor Relations Board that you
were unavailable for work for five months of an accident9
A. No, because I wasn't unavailable I was available. I could work
I could drive. I just got finished telling you that
Q Then why didn't you work
A I couldn't find any work
i i These quarters were the second, third, and fourth quarters of 1970 and
second quarter of 1971, the end of the discriminatory period
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Calendar Earnings Earnings
Quarter of Eaton of Sharac l3ackpay
1969-2 $2,228.14 $1, 462.50 $ 765.64
1969-3 3,097.13 2,112.50 984.63
1969-4 2,938.51 956.25 1,882.26
1970-1 2,587.50 1,850.00 737.50
1971-1 2,519.39 --- 2,519.39
$6,889.42
I also find that Sharac was entitled to contributions
made by the Joint Venture to the pension and health and
welfare fund . As the measure of these benefits I have used
the benefits paid to the fund on behalf of Eaton , excluding
the second and third quarters of 1969 , the period of
Sharac 's disability, and the third and fourth quarter of
1971.
Calendar Pension Health &
Quarter Fund Welfare Fund
1969-4 $130.00 $130.00
1970-1 130.00 130.00
1970-2 172.80 172.80
1970-3 179.68 179.68
1970-4 182.40 182.40
1971-1 138.24 138.24
1971-2 15.36 15.36 12/
$948.48 $948.48
D. Backpay Due Levernois
General Counsel contends that the measure of earnings
for Levernois should be the earnings of Donald Warner
while Local 294 contends it should be the earnings of H.
Ward . Both were drivers employed by the Joint Venture
and received the same rate of pay as Levernois . Although
the seniority of Warner was closer to that of Levernois
than Ward's Local 294 contends that Warner operated a
special type of equipment which required a license known
as class 1. Levemois possessed such a license and there is
no evidence that he could not have operated the same type
of equipment . I have therefore used the earnings of Warner
as the measure of earnings in assessing Backpay during the
periods when Warner was employed by the Joint Venture.
This, however, presents another difficulty for the name of
Warner does not appear on all the Schedules submitted as
Respondent's 2-a, 2-b, and 2-c, which have been used by
the parties as an accurate statement of the earnings by
employees at the Joint Venture. Where these schedules do
not show earnings for Warner I have substituted the
earnings of Ward and where Ward' s name does not appear
I have substituted the name of Eaton. This improvisation
provides only a rough, but it is to hoped, substantial
justice . The name of the employee whose earnings have
been used for any given calendar quarter will be shown in
the footnotes . I have not accepted the earnings of any
employee as a measure where the earnings were made in
employment by August Bohl Contracting Co. There is no
evidence to indicate that Levernois would have been
employed by August Bohl Contracting Co., regardless of
the discrimination found as to the Joint Venture.
Counsel for Local 294 has pointed out a contradiction in
the General Counsel's specifications . Levernois' New York
State income tax return for 1969 shows total earnings of
$6,304.49.1•; Local 294 's Exhibit 2-a shows that Levernois'
earnings with the Joint Venture for 1969 were $1,027.15
(months of February , March , and May). General Counsel's
specifications show interim earnings for the last three
quarters of 1969 as $1,327; $1,627.50 and $1,000, totalling,
together with his income from the Joint Venture $5, 181.50.
This discrepancy was not explained by Levernois except to
the extent that the tax return , not prepared by himself, was
claimed to be in error. I think the burden of such an error
must fall upon the discriminatee and I shall accordingly
find that the true earnings were $6 ,304.49 and apportion
the difference of $1,222.84 between the last three quarters
adding the amount of $407.61 to interim earnings of
Levernois for each quarter.i4
Summarizing by calendar quarters I find the amount of
backpay due Levernois to be as follows:
12 Computed only to the end of the discriminatory period , April 29.
13 Resp Exh 7.
14 l.evernolc' earnings from the Joint Venture have been taken from
Local 294 's records, the accuracy of which has not been attacked.
LOCAL 294, TEAMSTERS 451
Calandar Gross Interim Net
Quarter Backpay Earnings Backpay
1969 - 2 $1,962.38 15/ $1,734.61 $ 227.77
1969 -3 2,737.03 16/ 2,035.17 701.86
1969-4 2,938.51 17/ 1,407.61 1,530.90
1970-1 NO NET
1970-2 1,915.28 18/ 1,200.00 715.28
1970-3 1,028.14 19/ 320.00 708.14
1970-4 3,527.89 2,060.00 1,467.89
1971-1 1,921.21 20/ NONE 1 ,921.21
1971-2 277.95 21/ 1,840 .00 NO NET
$7,273.05
Using the same measures of earnings as I have used for
computation of backpay I find Levernois due the following
amounts for pension and health and welfare payments:
Based upon the foregoing findings and upon the record
in this supplemental proceeding, and pursuant to Section
10(c) of the Act, I recommend issuance of the following:
Calendar Health &
SUPPLEMENTAL ORDER25
Quarter Pension Welfare Fund Res l 294 rnati nal Broth rhood ofde t Lo I tpon n , ca , n e eo
1969-2 $ 80.00 $ 80.00
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, shall make whole Jack Sharac and Elroy
1969-3 140.00 140.00 Levernois for the losses suffered by them by reason of
1969-4 130.00 130 00
Respondent's discrimination against them by payment to
1970-1 130.00
.
130.00
them of the sum of money as found due herein together
with interest at 6 percent per annum computed on a
1970-2 109.87 109.87 22/ quarterly basis.
1970-3 29.16 29.16 23/
1970-4 189.00 189.00
1971-1 138.23 138.24
1971-2 15.36 15.36 24/
$961.63 $961.63
13 Based on earnings of Ward for May and June 1969 21 Based on earnings of Eaton for April
16 Based on earnings of Ward for July, Eaton for August and September 22 Based on two-thirds earnings of Warner for quarter
17 Based on earnings of Eaton for quarter 23 Based on one -sixth earnings of Warner for quarter
is Based on two-thirds earnings of Warner for quarter (Fn. 2, 24 Based on Eaton's earnings of April 29, 1971
specifications ) 25 In the event no exceptions are filed as provided by Sec 102 46 of the
1U Based on one-sixth of the earnings of Warner for the quarter Rules and Regulations of the National Labor Relations Board , the findings,
(Specifications fn. 2 ) To this has been added the sum of $397 10 for medical conclusions , and recommended Order herein shall, as provided in Sec.
expenses which would have been paid Levernois under the terms of the 102.48 of the Rules and Regulations , be adopted by the Board and become
Joint Venture-Local 294 medical plan its findings , conclusions , and order, and all objections thereto shall be
20 Based on the earnings of Warner for quarter deemed waived for all purposes