New England Tank Industries, Inc.

National Labor Relations Board - Board Decisions

Jun 23, 1964

147 N.L.R.B. 598 (N.L.R.B. 1964)

598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
New England Tank Industries , Inc. and Independent Union of
Plant Protection Employees in the Electrical and Machine
Industry and Oil, Chemical & Atomic Workers International
Union, AFL-CIO, Local 14-366. Cases Nos. 1-CA-3.302 and
1-CA-3313. June 23, 1964
SUPPLEMENTAL DECISION AND ORDER
On September 15, 1961, the National Labor Relations Board issued
a Decision and Order in the above-entitled case,' which was enforced
by the United States Court of Appeals for the First Circuit by a
decree entered on April 27, 1962.2 Thereafter, pursuant to a back-
pay specification and appropriate notice issued by the Regional Di-
rector for the First Region, a hearing was held for' the purpose of
determining the amounts of backpay due the discriminatees.
On December 17, 1963, Trial Examiner Eugene E. Dixon issued
his attached Supplemental Decision and on January 10, 1964, he issued
his attached Amended Supplemental Decision, in which he recom-
mended that specific amounts of backpay be awarded to the discrimi-
natees. Thereafter, the Respondent filed exceptions to the Trial
Examiner 's Supplemental and Amended Supplemental Decisions and
a supporting brief.
The Board 2 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 Sup-
plemental and Amended Supplemental Decisions, the exceptions and
brief, and the entire record in this case, and hereby adopts the find-
ings, conclusions, and recommendations of the Trial Examiner, with
the following modifications and additions.
In its Decision the Board found that Respondent had violated Sec-
tion 8 (a) .(1) and (3) by refusing to employ or reemploy 49 individuals
for reasons relating to their union membership and activities 4 The
Board ordered that Respondent offer employment to the discriminatees
with backpay. The current dispute revolves about the General Coun-
sel's backpay specification and the methods employed by the General
1 133 NLRB 175.
302 F. 2d 273, cert . denied 371 U . S. 875.
Pursuant to the provisions .of Section 3(b) of the National Labor Relations Act, the
Board has delegated its powers in connection with this case to a three-member panel
[ Chairman ' McCulloch and Members Fanning and Jenkins].
4 Three other individuals accepted employment , but then declined to work because of
Respoddent ' s refusal to hire their coworkers . The Board found that the three were un-
fair labor practice strikers , entitled to immediate employment upon unconditional offer to
abandon the strike . Thus the scope of the backpay proceeding includes a determination
of the backpay; if any, to which the three strikers are entitled.
147 NLRB No. 70. -
NEW ENGLAND TANK INDUSTRIES, INC. 599
'Counsel in determining the amount of gross backpay and the identity
of the claimants to whom backpay is due.'
The Board has the power to order "such affirmative action including
reinstatement of employees with or without backpay" as will effectuate
the purposes of the Act,' and it is authorized to effect "a restoration of
the situation, as nearly as possible, to that which would have obtained
,.but for the illegal discrimination."' Thus, in fashioning any remedy,
-the Board must look to the nature of the unfair labor practice and the
facts upon which it is premised.
The facts of the case, briefly stated, are as follows : Respondent
operates tank farms and pipelines for purposes of petroleum distribu-
tion. For the 2-year period starting October 1, 1960, it operated a
"Government-owned fuel pipeline in Maine supplying fuel to an airbase
under contract with the U.S. Government. In spite of Respondent's
usual practice of hiring employees of the predecessor operator when
taking over a pipeline,' Respondent refused to hire the employees of
the former operator of the pipeline, who were represented by the two
`Charging Unions herein, because Respondent did not want to pay
'union scale and because it was antiunion. The only defense offered
'by Respondent was that it decided not to hire the individuals working
for its predecessor because the previous operator had experienced
"losses" of fuel flowing through the line and it did not want to en-
--counter similar losses. As indicated, the Board found no merit to this
defense.
The Trial Examiner found that gross backpay should be computed
on the basis of what the discriminatees were earning as employees
,of Respondent's predecessor rather than on the basis of what they
would have. earned if they had been hired by Respondents He also
found that all of the discriminatees are entitled to backpay. Re-
spondent excepts to these findings on the basis that, if it had. hired
the discriminatees, it would have done so:at a lower rate of pay, and
that, in fact, it paid employees hired instead of the discriminatees at
the lower rate. Respondent further contends that under its contract
with the Government it did not require a complement of 52 employees
to operate the pipeline and that it, in,fact; utilized a lesser.number.
s Since Respondent no longer operates the pipeline , there is no issue in the case regard-
ing reinstatement.
8 Section 10(c) of the Act.
7 Phelps Dodge Corp. v. N.L. R.B., 313 U.S. 177, 194.
8 "Respondent admitted that it was 'normal procedure ' both for the preceding con-
,tractors operating the pipeline at issue, and for itself at its other operations , to retain
the personnel of the prior contractor." N.L.R.B. v. New England Tank Industries, Inc.,
.302F. 2d 273, 276 (C.A. 1).
9 The record shows that Respondent's predecessor paid approximately 50 cents to $1
,more per hour to the same classification of employee.
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thus it contends that backpay should be computed on the basis of the
rates it paid its employees, and that not all 52 discriminatees are en-
titled to backpay. For the reasons stated by the Trial Examiner,
which we expressly adopt, we find no merit in the Respondent's
exceptions.
We find additionally that the nature of the Respondent's unlawful
acts requires a similar conclusion. The Respondent determined that it
was not going to operate the pipeline with union labor at their current
rates and refused to hire the discriminatees for those reasons. It did
this in' spite of the fact that it was Respondent's normal procedure and
the normal procedure of previous operators of the pipeline to retain
the employees of the prior contractor. If the discriminatees had been
employees of the Respondent and it had discharged them for the same
reasons, there is no question that it would be required to pay backpay
at the higher rate. Though Respondent in actuality refused to hire
the discriminatees, its actions were tantamount to an unlawful dis-
charge designed to avoid dealing with the majority representative of
the individuals it would normally have utilized to operate the pipe-
line. The device utilized by Respondent was a refusal to hire-its
effect was to discharge 52 individuals from jobs they were performing
and to unilaterally change the rates of pay without notifying their
representatives and offering them an opportunity to bargain.lo
Had it not been for Respondent's unlawful acts, the discriminatees
would have continued working at their then current rate. Under these
circumstances, in order to restore the discriminatees to the situation
which would have obtained but for the discrimination against them,
we find that the backpay specifications prepared and introduced into
evidence by the General Counsel properly computed gross backpay
at the rates of the predecessor employer.
As for Respondent's contention that not all of the discriminatees are
entitled to backpay because Respondent operated the pipeline with
fewer than '52 employees, we note first that this defense is not now
available to it on the issue of discrimination. That issue has already
been determined against Respondent; Respondent had ample op=
portunity to defend on that ground in the original Board case en-
forced by the First Circuit; and the facts are that Respondent did
discriminate against all of the claimants, not merely against those for
whom it would have had jobs, had it not refused to hire any of them
because of. their union affiliation. Even assuming, as Respondent
argues, that it had less than 52 jobs; its failure to offer those jobs to an
equivalent number of discriminatees did not discharge its obligation
to the others. In bypassing them to hire nonunion employees, Re-
spondent discriminated against all. We, therefore, conclude that each
of the claimants is eligible for backpay.
10 See Barney Wilkerson Construction Company, 145 NLRB 704.
NEW ENGLAND TANK INDUSTRIES, INC. 601
Secondly, we note that while the general burden of proof is on the
General Counsel to establish for each discriminatee the loss of pay
which has resulted from Respondent's established discriminatory con-
duct, i.e., the gross backpay over the backpay period, the burden of
proof is on Respondent to show diminution of that amount, whether
such diminution results from the claimants' willful loss of earnings, or
from the unavailability of a job at Respondent's operation for some
reason unconnected with the discrimination." The fact that the
General Counsel, in an effort to narrow the issues, has preliminarily
examined claimants as to their attempts to find work and the amounts
of their interim earnings, and has prepared a backpay specification
attempting to fix the amounts of net backpay, does not shift the burden
of proof as to diminution of the amount of gross backpay. Much less
does it shift Respondents' burden of proving that the net backpay
claimed is erroneous.12
The evidence introduced by the Respondent in support of its con-
tention that the backpay specifications are erroneous was not such
as to satisfy its burden of proof. The record shows that during the first
year of operation of the pipeline, the maximum number of employees
working during any single payroll period was 46; that its employees
worked considerable amounts of overtime; and that it employed
73 different individuals during the course of its first year of operation,
52 of whom were hired by the end of the third month.
While this evidence shows that Respondent's working force num-
bered less than 52 employees, it does not prove that Respondent did
not have jobs for all of the 52 discriminatees. Indeed, this evidence
tends to disprove any exact correlation between the number of jobs
available and the number of employees on the payroll. Thus, the
varying number of employees from one pay period to the next, the
fact that a considerable number of employees worked overtime, the
amount of turnover, the difficulty experienced by Respondent in find-
ing qualified employees, as was brought out in the earlier proceeding,
and the fact that Respondent's predecessor engaged all 52 claimants
for basically the same work all tend to undermine the assumption
which might otherwise obtain, that the number of employees on the
payroll at any particular time is the true measure of the number of
jobs available for purposes of computing backpay. Furthermore, Re-
spondent's evidence does not permit any conclusion as to which, if
any, of the discriminatees would have been denied work because of
lack of sufficient jobs, had Respondent followed lawful procedures of
'N.L.R.B. v. Reed & Prince Manufacturing Company, 130 F. 2d 765 (C.A. 1) ; Monroe
Feed Store, 122 NLRB 1479; Brown and Root, Inc., et al., 132 NLRB 486; W. C. Nabors,
d/b/a W. C. Nabors Company, 134 NLRB 1078, 1085.; Mastro Plastics Corporation and
French-American Reeds Manufacturing Co., Inc., 136 NLRB 1342.
12 Mastro Plastics Corporation and French-American Reeds Manufacturing Co., Inc.,
supra.
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
filling available positions with the claimants, placing the others on a.
preferential hiring list for employment when turnover or other cir--
cumstances made jobs available. In this connection it is noteworthy
that Respondent, by the end of the third month of its operation, had.
52 opportunities to offer employment to the claimants, thereby reduc-
ing its backpay liability. Respondent did not make bona fide offers:
of employment to any of the discriminatees, but continued its practice-
of discriminating against them. This circumstance negates Respond-
ent's argument that the loss of pay suffered by some of the claimants
was due to lack of work rather than to the discrimination practiced
against them. The burden on Respondent to prove, as to each back-
pay claimant, that he would not have had work for reasons uncon--
nected with the discrimination practiced against him, is not met by the,
sort of general evidence introduced herein, which at best permits only
conjecture that some claimants would not have had work for some-
part of the period for which backpay is claimed. Accordingly, we-
conclude that Respondent has not shown that the net backpay claimed'
in the backpay specifications is erroneous.
In his Amended Supplemental Decision the Trial Examiner found'
that discriminatee Elwood Webster is entitled to $465.30 in backpay._
He made this finding by assuming that Elwood Webster is the same-
person as R. Webster, an individual who worked briefly for Respond-
ent in 1961. As there is nothing in this record to definitely establish,
that Elwood Webster and R. Webster are the same person, and in view
of the fact that no backpay is claimed for him in the backpay specifi-
cation, we find merit in Respondent's exception and find that Elwood:
Webster is not entitled to backpay.
On the basis of the foregoing, we conclude that Respondent's excep-
tions to the General Counsel's practice in this case of computing the-
backpay amounts on the basis of the rates obtaining at the time Re-
spondent took over operation of the pipeline and of including all
discriminatees in his computations are without merit. Accordingly,,
we conclude that the claimants, except for Elwood Webster, are en-
titled to the amounts of backpay set forth in the Trial Examiner's
Supplemental Decision.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as-
amended, the Board hereby orders that Respondent, New England'
Tank Industries, Inc., its officers, agents, successors, and assigns, shall'
pay backpay- (less any amounts required by law) to the claimants, ex-
cept Elwood Webster, in the amounts set forth by the Trial Examiner-
in his Supplemental Decision.
NEW ENGLAND TANK INDUSTRIES, INC. 603
TRIAL EXAMINER'S SUPPLEMENTAL DECISION
This is a proceeding on a backpay specification issued by the National Labor Rela-
tions Board's Regional Director of the First Region, Boston, Massachusetts, on
April 26, 1963, pursuant to Section 102.52, et seq., of the Board's Rules and Regula-
tions, Series 8, as amended. The purpose of the proceeding is to determine the
amounts of backpay which will make whole certain individuals in the manner
directed by the Board in its Decision and Order herein, 133 NLRB 175, enfd. 302 F.
2d 273, cert. denied 371 U.S. 875.
On May 9, 1963, Respondent filed an answer to said specification which in effect
was a general denial and not sufficient under the Board's Rules to meet the allega-
tions in the specifications.' At the hearing held before Trial Examiner Eugene E.
Dixon in Belfast, Maine, on June 24 and 25, 1963,2 Respondent asked leave to be
permitted to file an amended answer raising in substance two defenses: (1) that
certain of the positions held by the discriminatees under the predecessor contractor 2
had been eliminated by Respondent, and (2) that "any backpay determination must
be based upon the rate of pay employees of Respondent were receiving."
The General Counsel did not object to the filing of the amended answer but moved
to strike all of it except such part as pertained to the elimination of certain jobs by
Respondent. On the basis of the General Counsel's motion, I allowed the amended
answer to stand only insofar as it raised the defense regarding the number of rank-
and-file positions with which Respondent performed its contract.
In his brief the General Counsel, while conceding that the question here is a novel
one (the usual situation involving discharges where there is little or no question
as to the wage rates or positions involved), nevertheless contends that neither Re-
spondent's own wage rates nor its job classifications should have any consideration
in determining the amounts of backpay due here. I agree.
As the General Counsel points out, a careful analysis of the Board Decision and
the Trial Examiner's Decision herein as affirmed by the court shows that the reason
Respondent did not hire the discriminatees (which was contrary to the practice gen-
erally and to its own practice elsewhere in assuming similar contracts) was because
of its purpose to "destroy the union" and avoid paying union rates. To permit Re-
spondent to raise the defenses it attempts now to raise would be to impugn the basic
finding of discrimination by the Board and permit Respondent in effect to relitigate
the issues. This it cannot do. The matters of the number of rank-and-file employees
it would have hired and the rates it would have paid them but for its discrimination
against them has been determined and is res judicata. To honor Respondent's con-
tentions would allow Respondent "To profit by its own wrongdoing."
Accordingly I take no cognizance of the matters raised by the answers in this
connection and the evidence Respondent offered in support thereof,4 and make the
following findings and conclusions on the basis of the specification as submitted by
the General Counsels which, in order to avoid undue length and detail herein, I
adopt by reference. -
'Section 102.54(b) of the Board's Rules and Regulations provides, in part,'
.. . As to all matters within the knowledge of the respondent, including but not
limited to, the various factors entering into the computation of gross backpay, a gen-
eral denial shall not suffice. As to such matters, if the respondent disputes either the
accuracy of the figures in the specification or the promises on which they are based,
he shall specifically state the basis for his disagreement, setting forth in detail his
position as to the applicable premises and furnishing the appropriate supporting figures.
2 The hearing was reopened at Hartford, Connecticut, on November 22 to take additional
evidence.
$ On October 1, 1960, Respondent took over the operation of a U.S. Air Force pipeline
and supporting facilities pursuant to a contract with the Government obtained in competi-
tive bidding. Immediately. prior to that date the facilities had been operated by the F: H.
McGraw Co. under a similar contract. The discrimination found herein was'Respondent's
failure "to employ,, or reemploy" the rank-and-file personnel which had been used by McGraw
in the prosecution of the work under its contract.
e Respondent did adduce evidence showing offers of employment on various dates to 12 of
the discriminatees at hourly rates ranging from. $1.40 to $1.55. Since the lieople in ques-
tion had been receiving hourly rates ranging from $1.95 to $2.45 at the time of the dis-
crimination, I find that Respondent's offers did not constitute offers of reinstatement to the
discriminatees' former or substantially equivalent employment and thus did not toll Re-
spondent's liability for backpay.
Subject to some minor arithmetical corrections.
604 DECISIONS . OF NATIONAL LABOR RELATIONS BOARD
CONCLUDING FINDINGS
No issue having been raised as regards the formula (or method) used in the
specification to determine the amount of backpay due,6 I find it to provide a fair
and proper basis for determining the amount of backpay due here.? Based upon
this formula and as provided in the specification I find that the discriminatees are
entitled to the following amounts of backpay (less tax withholding required by law)
and recommend that the Board adopt the foregoing findings and conclusions:
Allen, Robert---------------------------------------------
Austin, Thornton------------------------------------------
Bossie, Joseph--------------------------------------------
Brown, Harry---------------------------------------------
Canning, Wilbert------------------------------------------ 3,898.03
Cawood, Lewis-------------------------------------------- 6,477.79
Cox, Dana------------------------------------------ ----- 4,687.04
Crosby, Durwood ----------------------------------------- 3,842.92
Crosby, Franklin---------------------------------- ----- 4,978. 15
Currie, Edward---------------------------------- ( No backpay claimed)
Dakin, Emery--------------------------------------------- 436. 16
Dall, Robert---------------------------------------------- 3,272.52
Davis, Heyward------------------------------------------- 2,671.20
Davis, John A--------------------------------------------- 990.24
Edgecomb , Hugh------------------------------------------ 4,696.35
Edgecomb , Raymond--------------------------------------- 6,238.43
Gallagher, James---------------- -------------------------- 1,351.61
Grant, Theodore------------------------------------------ 2,824.05
Grant, Howard -------------------------------------------- 1,631.70
Gray, Harry---------------------------------------------- 3,992.76
Haskell , Evan--------------------------------------------- 3,680.01
Haynes, Jerome--------- ---------------------------------- 196.79
Hendrick , Richard, Sr-------------------------------------- 5,319.34
Herson , David-------------- ------------------------------ 4,590.04
James, Raymond------------------------------------------ 2,140.32
Johndro, Herman , Jr--------------------------------------- 3,692.19
Kennedy, Ernest--------------------------------- ( No backpay claimed)
Kennedy, Albert------------------------------------------- 510.60
Libbey, Herbert S ., Jr-------------------------------------- 2, 772.85
Martin, Philip--------------------------------------------- 4,018.06
Moody, Frederick----------------------------------------- 3,207.09
Moulton , Harold------------------------------------------ 4,009.39
Murray, Edward------------------------------------------ 3,096.32
Myers, Edwin --------------------------------------------- 4,968.34
O'Callahan , John------------------------------------------ 2,239.45
Pease, Omar---------------------------------------------- 1,332.47
Perkins, Arthur------------------------------------------- 5,722.64
Perkins, Reuben------------------------------------------- 5,919.53
Rich , Lewis----------------------------------------------- 2,733.27
Rogers, Charles------------------------------------------- 3,737.57
Po-x, Grenory-------------------------------------------- 2,625.05
Rokes, William-------------------------------------------- 2,991.13
Rooney, John--------------------------------------------- 3,721.27
e The question of what factors should be used in making the calculations of the formula
has, of course , been disposed of. -
7 In substance of the formula provided as follows:
(1) The average weekly earnings of the discriminatees for the year preceding October 1,
1960 (the date Respondent took over the Air Force contract), are determined by their
earnings during that period divided by the number of weeks that they worked in that period.
(2) Their quarterly gross backpay is determined by multiplying their average weekly
earnings as determined above by the number of weeks in the backpay period allocable to
the calendar quarters of the backpay period.
(3) Calendar quarter net interim earnings is the differnce between calendar quarter
earnings and calendar quarter expenses.
(4) Calendar quarter net backpay is the difference between calendar quarter gross back-
pay and calendar quarter net interim earnings.
(5) The total net backpay due each discriminatee is the sum of the calendar quarter
amounts of net backpay due him.
$4,380.71
6,328.55
782. 17
1,921.55
NEW ENGLAND TANK INDUSTRIES, INC. 605
Sarnacki, Stanley------------------------------------------ 700.54
Seekins, David-------------------------------------------- 3,977.02
Stockford , Stuart------------------------------------------ 5,987.84
Stone, Irving---------------------------------------------- 1,743.72
Watts, Malcolm------------------------------------------- 3,150.22
Webster, Elwood--------------------------------8 (No backpay claimed)
Webster, John--------------------------------------------- 2,433.85
White, James E------------------------------------------- S,801.12
Whiting, Frank-------------------------------------------- 6,972.85
8 As to this employee the specification states that "Tnasmvch as Webster had been re-
instated by Respondent and had left Respondent ' s employ voluntarily on September 13,
1961, no backpay is claimed for him." The record shows that Webster was 1 of the 12 men
offered reemployment by Respondent by means of a letter dated July 13, 1961. Webster
had been earning $2.321/2 per hour before the discrimination against him. The offer to
reemploy him was at a rate of $1 . 50 per hour . As indicated this was not a bona fide offer
of reinstatement . As I consider myself bound by the specification I make no further find-
ings regarding his case.
TRIAL EXAMINER'S AMENDED SUPPLEMENTAL DECISION
Having recently reread my Supplemental Decision released herein on December
17, 1963, I have come to the conclusion that I was mistaken in the position that I took
regarding discriminatee Elwood Webster for whom no backpay was claimed by the
General Counsel in his specification.'
As I previously indicated, Webster had been paid $2.321/2 per hour before the
discrimination against him. By letter of July 13, 1961, Respondent offered to re-
employ him at a rate of $1.50 per hour. This I found in my prior decision not to be
a bona fide offer of reinstatement such as would toll Respondent's liability to him
for backpay. Nevertheless, I made no recommendation as to Webster since no
backpay was claimed.
The record shows one "R. Webster" was employed by Respondent at $1.50 per
hour for 4 weeks in the early spring of 1961, and from the middle of July 1961
until about the middle of September. In all he worked a total of 564 hours. As-
suming this to be the Elwood Webster referred to in the specification it is clear that
at the very least he is entitled to the difference between the $ 1.50 he was paid per
hour and the $2.321/2 he had received before the discrimination against him. This
difference amounts to $465.30. Accordingly, I hereby amend my original decision
by finding and recommending that Elwood Webster is entitled to the sum of $465.30
( less tax withholding required by law).
1 The specification stated that " inasmuch as Webster had been reinstated by Respondent
and had left Respondent 's employ voluntarily on September 13, 1961, no backpay is
claimed for him."
M. J. McCarthy Motor Sales Co. and International Vehicle
Salesmen 's Union of America (Independent ). Cases Nos. 13-
CA-4198,13-CA-4198-2,13-CA-4198-3,13-C A-4262, and 13-CA-
4305. June 23, 1964
SUPPLEMENTAL DECISION AND ORDER
On February 5, 1962, the Board issued a Decision and Order in the
above-entitled proceedings,' finding, inter alia, that Respondent had
discriminatorily discharged Merlin Griffith, James Marzano, Leonard
Pechtold, and Walter Zion in violation of Section 8(a) (3) and (1)
of the Act and directing that Respondent make whole the above-
mentioned employees for loss of pay resulting from the discrimination.
1 135 NLRB 828.
147 NLRB No. 74.