Painters Local 985

National Labor Relations Board - Board Decisions

Nov 24, 1971

194 N.L.R.B. 323 (N.L.R.B. 1971)

PAINTERS LOCAL 985 323
Painters, Decorators , and Paperhangers of America,
Local No. 985 (W. F. Sahualia & Co., Inc.) and
Herbert Lee Wallace, Sr., an Individual. Case
15-CB-929
November 24, 1971
SUPPLEMENTAL DECISION AND
ORDER
By CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On December 9, 1970, Trial Examiner Maurice S.
Bush issued the attached Supplemental Decision in
this proceeding.
Thereafter, Respondent filed exceptions and the
General Counsel filed a brief in answer thereto. The
Respondent excepted, inter alia, to the Trial Examin-
er's failure to: (1) include the period of July 1 through
July 27, 1968, in the computation of gross and net
backpay for discriminatee Luther Wallace, for the
third quarter of 1968; and (2) take into account
testimony of discriminatee Willie Young showing that
his interim earnings amounted to $375 rather than
$100 per quarter, as found by the Trial Examiner.
Upon the Board's consideration of the foregoing, its
Associate Executive Secretary issued, on March 29,
1971, an Order remanding the proceeding for the
purpose of receiving additional evidence relevant to
the issue of Luther Wallace's gross earnings during
the third quarter of 1968, his interim earnings, and net
backpay due for that period; and to consider the
testimony of Willie Young as to his greater amount of
interim earnings than those specified in the backpay
specification and to recompute his interim earnings
and net backpay based thereon, if appropriate.
Decision was reserved by the Board on other
exceptions of the Respondent.
Pursuant to such Order a further hearing was held
before Trial Examiner Maurice Bush who thereafter
issued his attached Second Supplemental Decision on
August 25, 1971. Thereafter the General Counsel filed
a brief in support of that Decision.
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 above
Trial Examiner's Decision in the light of the excep-
tions and briefs.
In the absence of exceptions to the Trial Examiner's
Second Supplemental Decision,' we adopt, pro forma,
the findings of the Trial Examiner as contained in his
Second Supplemental Decision. Accordingly, the
period July 1 to July 27, 1968, was properly excluded
from the backpay computation of Luther Wallace for
the reasons stated by the Trial Examiner in that
Decision, and Willie Young's backpay was properly
readjusted in accordance with the stipulation of the
parties.
Inasmuch as the above Order of remand reserved
decision on other exceptions of the Respondent we
have now considered these exceptions. Upon consid-
eration thereof, we find no merit therein, and
accordingly adopt the findings, conclusions, and
recommendations of the Trial Examiner as contained
in his first Supplemental Decision as modified by his
findings, conclusions, and recommendations con-
tained in his Second Supplemental Decision.
SUPPLEMENTAL ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Painters, Decorators, and Paperhangers of America,
Local No. 985, its officers, agents, and representa-
tives, shall pay to the employees involved in this
proceeding, as net backpay herein determined to be
due, the amounts set forth below:
Herbert Lee Wallace, Sr. $1,175.00
Willie Young 2,965.00
Luther Wallace 725.00
In addition to the above amounts the Respondent
shall pay interest at the rate of 6 percent per annum
computed on the basis of each quarterly amount of
net backpay due, less any tax withholding required by
law.
1 The Order of remand specifically provided that, following the service
of such Decision upon the parties, the provisions of Section 102.46 of the
Board's Rules and Regulations, Series 8, as amended , would be,apphcable.
No exceptions were filed to this Decision by any party herein. '
TRIAL EXAMINER'S SUPPLEMENTAL
DECISION
STATEMENT OF THE CASE
MAURICE S. BUSH, Trial Examiner : This backpay
proceeding stems from an unfair labor practice case tried
before Trial Examiner Frederick U. Reel. By decision dated
May 13, 1969, Examiner Reel found the above-named
Union in violation of Section 8(b)(1)(A) and (2), of the
National Labor Relations Act by its refusal to refer Negro
employees from its hiring hall for work as painters to jobs
with contractor W. F. Sahualla , hereinafter called Sahualla,
solely because of the fact of their race. The Charging Party
in that proceeding was Herbert Lee Wallace, Sr. He was the
only Negro specifically identified by name as a victim of
racial discrimination in Trial Examiner Reel's decision. All
other such racially affected employees are identified in the
decision generically as Negroes "similarly situated."
As here pertinent to the instant backpay proceeding,
Trial Examiner Reel in his decision recommended an order
194 NLRB No. 49
324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
requiring the Union not only to make Wallace whole for any
loss he sustained because of the discrimination against him
due to his race but also required the Union to make whole
"any other employees similarly situated for losses they
sustained as the result of the Respondent's [the Union's]
discrimination against them" for, the same reasons of race.
These heretofore unidentified employees are identified for
the first time in the "Backpay Specification" herein.
The Board on June 17, 1969, in the absence of exceptions,
adopted Trial Examiner Reel's decision and recommenda-
tions and accordingly ordered backpay by the Union for
Wallace and "any other employees similarly situated."
On February 17, 1970, the United States Court of
Appeals for the Fifth Circuit entered its judgment enforcing
in full the Board-adopted decision of Trial Examiner Reel,
including the backpay provision for Wallace and any other
employees similarly situated.'
On August 4, 1970, the Acting Regional Director for
Region 15 of the Board issued a "Backpay Specification"
for the said Herbert Lee Wallace, Sr., and in addition for
those individuals determined to be similarly situated,
namely, Luther Wallace and Willie Young.
On August 13, 1970, the Respondent Union filed its
answer to the "Backpay Specification." General Counsel
filed a motion to strike the answer and for judgment on the
pleadings which was referred for ruling to Trial Examiner
Charles W. Schneider. Trial Examiner Schneider, in an
order dated September 16, 1970, denied the motion but
issued an order deeming paragraphs 4, 5, 6, and 7 2 and the
beginning date of the backpay periods stated in paragraphs
9(A), 10(A), and 11(A) of the "Backpay Specification," as
admitted, despite denials, on the ground that the
"correctness of those allegations is a matter within the
knowledge or opinion of the Respondent; no explanation is
offered to support the Respondent's general denials in such
respects and the Respondent states no counter premises or
formulae." The order further precluded the Union "from
introducing any evidence controverting" such paragraphs.
However, with respect to certain other allegations of the
"Backpay Specification," Trial Examiner Schneider ruled
that the Union's denials thereof on the ground of lack of
knowledge was "now considered to be adequate to raise
issue in those respects."3 These issues will be identified in
the next section of this Decision.
The case was tried before the Trial Examiner on
October 1, 1970. A brief filed by General Counsel on
October 26, 1970, has been carefully reviewed and
considered. The Respondent Union did not file a brief.
Upon the entire record and from his observation of the
witnesses , the Trial Examiner makes the following findings,
conclusions, and recommendations:
1 Trial Examiner Reel's decision , the Board's order, and the Sixth
Circuit's judgment enforcing the Board order are set forth in General
Counsel's Exhibits 1(a), (b), and (c), respectively.
2 Par 8 of the "Backpay Specification" reads, "Luther Wallace and
Willie Young have been added to the list of discriminatees in conformity
with the Board's order enforced by the Court that Respondent make whole
not only Herbert Lee Wallace, Sr., but any other employees similarly
situated." In his order , Trial Examiner Schneider states that this paragraph
is also deemed admitted by the Union , but this appears to be an obvious
typographical error because in an earlier part of Trial Examiner
A. The Issues
The issues herein as determined from the pleadings and
Trial Examiner Schneider's aforementioned order are as
follows:
1. Whether the Board's order of June 17, 1970, which
directs backpay for Herbert Lee Wallace, Sr., and for "any
other employees similarly situated" is applicable to Luther
Wallace and Willie Young as "similarly situated" employ-
ees. This in turn involves the factual question of whether
Luther and Willie Young, like Herbert Lee Wallace, Sr.,
were discriminated against by the Union in the matter of
job referrals to a Sahualla painting project because they are
Negroes:
2. Whether the termination dates of the backpay period
for each of the three above-named employees is March 31,
1969, as alleged in the "Backpay Specification" (It should
be noted that, under Trial Examiner Schneider's aforemen-
tioned order on motion to strike answer to backpay
specification and for summary judgment, the beginning
dates' of the backpay periods for the three employees are
deemed admitted as of certain dates as set forth in the order
and that the Union was precluded by the order from
introducing any evidence controverting said dates. These
dates are July 1, 1968, for the two Wallaces, and October 1,
1968, for Willie Young.)
3. Whether the earnings of the four selected and named
painters for indicated quarters, as set forth in the "Backpay
Specification," are accurate and correct for the purposes of
determining the backpay due the two Wallaces and Young
in the backpay period here involved under a formula
deemed admitted by the Union under Trial Examiner
Schneider's order for such purposes.
4. Whether the amounts of gross and net backpay due
the two Wallaces and Young as set forth in the "Backpay
Specification" are correct.
B. Applicability of the Board's Order to Luther
Wallace and Willie Young4
As heretofore found by Trial Examiner Reel, the Union,
a labor organization under the Act, represents painters in
the construction industry in the area of Alexandria,
Louisiana. Among the employers with whom it has
contracts is the aforementioned W. F. Sahualla Company,
Inc., a Louisiana corporation with headquarters at Lake
Charles, Louisiana, where it is engaged in business as a
painting contractor.
As stated by Trial Examiner Reel, Sahualla, at the times
here pertinent, was engaged in painting the Proctor and
Gamble plant in Pineville, Louisiana, near Alexandria. The
job involved painting industrial steel, and the rate of pay
was substantially higher than that paid for painting other
Schneider's order he states that "the applicability of the Board's order to
Luther Wallace and Willie Young. . is now considered to be adequate to
raise issue . ." Thus the allegations of par 8 will be deemed in issue
herein
3 G.C. Exh. 1(q) is a copy of TX Schneider's "Order on Motion to
Strike Answer To Backpay Specification for the Summary Judgment."
4 Official notice is taken of the findings , conclusions , and orders of Trial
Examiner Reel in his aforementioned decision which was adopted in full
by the Board under its order of June 17, 1969, and enforced in full by the
Fifth Circuit in its judgment dated February 17, 1970.
PAINTERS LOCAL 985 325
surfaces . Under the wage schedule prescribed in the
Union's standard contract, the scale for ordinary painting
was $3.25 per hour for the year commencing June 13, 1967,
and $3.40 for the next 6 months, whereas the hourly rates
for painting industrial steel were $4.50 and $4.75,
respectively.
Under the terms of the collective-bargaining agreement,
Sahualla agreed in effect to hire all its I painters with
exceptions not here pertinent by referrals from the Union.
The painting jobs on the Proctor and Gamble plant were
sought after by painters because of the high rate of pay.
During the backpay period here involved, employment
opportunities for painters in the Alexandria area were high.
Although Herbert Lee Wallace, Sr., made a number of
requests to the Union for referrals to the Sahualla project at
the Proctor and Gamble plant, he was not referred for work
on that project until after he had filed an unfair labor
charge against the Union which lead to the issuance of a
complaint and the eventual hearing before Trial Examiner
Reel and his decision thereon as above described which in
due course became the decision of the Board. `
In his decision, Trial Examiner Reel found that, "The
ultimate facts, therefore, are that the Union, although
admitting Wallace to membership, ... deliberately refused
to -refer him or any other Negro to the Sahualla job, and
indeed warned Sahualla when Wallace and other Negroes
were ready for referral. . . ." (Emphasis supplied.)
Under his "Conclusions of Law," Trial Examiner Reel
found that the "Union, by refusing to give job referrals to
Negroes in the course of administering its contract with
Sahualla, restrained or coerced them in the exercise of their
right under Section 7 to be fairly represented, and caused or
attempted to cause Sahualla to discriminate against them in
violation of Section 8(a)(3), thereby engaging in unfair
labor practices affecting commerce within the meaning of
Section 8(b)(1)(A) and (2), and Section 2(6) and (7) of the
Act." (Emphasis supplied.)
Thus Trial Examiner Reel's Board-adopted decision
establishes that the Union unlawfully discriminated against
all Negroes applying for referrals to the Sahualla project at
the Proctor and Gamble plant by refusing them referrals
solely because they are Negroes.
To remedy this situation, Trial Examiner Reel ordered
the Union to make all such Negroes whole for any losses
they sustained as a result of racial discrimination although
their identities were not established in the record before
him and remained to be established in a backpay
proceeding. This requirement was imposed on the Union in
addition to the requirement that it make Herbert Lee
Wallace, Sr., the Charging Party, whole for the losses he
sustained as a result of the racial discrimination against
him. The precise wording of the Order requiring backpay
for Herbert Lee Wallace, Sr., and all other Negroes refused
referrals to Sahualla is as follows:
Make whole Herbert Lee Wallace, Sr., and any other
employees similarly situated, for losses they sustained as
the result of the Respondent's discrimination against
them, computing the amounts due in the manner set
5 However, under Trial Examiner Schneider's aforementioned order, the
Respondent Union is deemed to admit that Young's backpay period began
forth in the portion of the Trial Examiner's Decision
entitled "The Remedy." (Emphasis supplied.)
Similarly the notice which the Union was required to post
to all of its members and "to all persons applying for job
referrals" states:
WE [the Union] WILL pay Herbert Lee Wallace, Sr., any
sum due him arising out of our failure to refer him, until
February 1969, to a job at W. F. Sahualla & Company,
Inc., and WE WILL similarly pay any other persons for
losses they suffered from failures to refer them for
similar reasons . (Emphasis supplied.)
In the "Backpay Specification" herein , the Acting
Regional Director for Region 15 identified the persons
described in Trial Examiner Reel's decision as "any other
persons similarly situated" as Luther Wallace and Willie
Young. The identification was established by an investiga-
tion conducted by the Office of the Regional Director for
Region 15 as evidenced by the testimony of Sloan
McCloskey, an attorney for the Region . The investigation
produced affidavits taken from Luther Wallace and Willie
Young. The testimony of these two men show that they are
black men. The Union does not deny that they are Negroes.
Luther Wallace, a painter, is a brother of Herbert Lee
Wallace, Sr. Luther, like his brother, had been a member in
good standing of the Union at all times here pertinent. His
undenied testimony shows that he applied to the Union for
referrals to Sahualla for work on the Proctor and Gamble
plant "quite a few times because I really wanted to go out
there," but was not successful in getting a referral until
February 20, 1969.
The Union offered no testimony to rebut the allegations
of the "Backpay Specification" (par. 8) and the testimony
thereunder that Luther Wallace had "been added to the list
of discruninatees in conformity with the Board's order
enforced by the Court that Respondent make him whole"
as an employee "similarly situated" to his brother Herbert
Lee Wallace, Sr., who as found was a victun of racial
discrimination in the matter of referrals by the Union to
Sahualla. In other words the Union offered no defense that
it refused Luther Wallace referrals to Sahualla a number of
times because he is a Negro prior to February 20, 1969,
when it finally gave him a referral to that contractor.
With respect to Willie Young, another painter, the Union
also failed to offer any testimony to rebut the allegations of
the "Backpay Specification" and the testimony thereunder
(par. 8) that Young had "been added to the list of
discriminatees in conformity with the Board's order
enforced by the Court that Respondent make him whole"
as an employee "similarly situated" to Herbert Lee
Wallace, Sr. Young is a second cousin .to the two Wallace
brothers.
Young's uncontroverted and credited testimony shows
that starting with mid-October 1968,5 he requested referrals
from the Union to Sahualla's project at the Proctor and
Gamble plant, but never received a referral to that project.
Respondent does not deny refusals to refer Young out to
the Proctor and Gamble plant, but asserts the following
defenses under its answer for such refusals:
Willie Young applied for membership in the respondent
on October 1, 1968.
326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union on August 13, 1968 but was never admitted
because he never paid the initiation fee and/or dues;
that nevertheless he was referred on two occasions, on
August 23, 1968, and on September 6, 1968, but could
not stay on the job to which he had been referred
because he was unable, through inability, to perform the
work. Willie Young never applied for referral any place
subsequent to September 6, 1968, and has never become
a member of the respondent union.
With respect to the defense that Young "never applied
for referral any place subsequent to September 6, 1968," the
Union's own records (G.C. Exh. 4) show the contrary. The
evidence herein shows that as late as October 16, 1968,
which was after Young first applied for a referral to the
Proctor and Gamble project, the Union instead sent him to
a lower-paying paint job on a new high school in
Alexandria. In addition, Young's uncontradicted testimony
shows that after being laid off from that job he kept going
to the union hall every day for referrals, but never received
a referral to the Proctor and Gamble plant.
The record also fails to sustain the Union's contention
that it had properly refused to refer Young, a nonunion
applicant, to Sahualla's Proctor and Gamble project
because under its bylaw he had not taken the qualifying
steps towards membership in the Union. The bylaws of the
Union provide that an applicant for membership in the
Union can qualify for membership, subject to the final
approval of its Examining Board, by making an initial
payment of $20 towards the Union's initiation fee of $150
for membership. The bylaws further provide that upon
initial approval of the examining board an applicant is
eligible for referrals by the Union to jobs "provided he had
given an order on employer for Three Dollars ($3.00) per
day each day he works until fee is 'paid in full." An
applicant has 90 days from the date of his application to
pay the entire initiation fee unless given an extension of
time. If he is rejected, the applicant forfeits the sum paid
working on permit.
It is established through the testimony of the Union's
current business agent, John B. McNeal, that Young paid
his initial $20 towards the Union's initiation fee on August
8, 1968 , and thereafter paid an'additional $51 towards the
fee by payments of $3 per day for 17 days of referrals to
employers, or a total of $71 on the $150 initiation fee before
the 90-day period for the payment of the full initiation fee
would have lapsed on November 8, 1968, unless extended
by the examining board. The referrals were to employers
other than Sahualla at its Proctor and Gamble project.
These facts clearly show that Young was eligible for
referrals under the Union's own bylaws. Thus the Union's
contention that Young was not eligible for referrals under
its bylaws is similarly without merit.
The Union's final defense for not giving Young referrals
to the Proctor and Gamble project is that he "could not stay
on the job to which he had been referred because he was
unable, through inability, to perform the work." As set
forth in the Respondent's answer, this defense appears to
6 G C. Exh. 4, a letter by the Union' s business representative to the
Board, shows that sheetrock taping is not a common skill possessed by all
otherwise qualified painters. In pertinent part that letter reads, "On
September 9, 1968, Herbert Wallace, Luther Wallace, Jr., and Willie Young
[the here involved discriminatees] were referred to ... the England Air
assert that Young was generally incompetent to perform the
work expected of a painter. The record, however, shows
that this defense relates only to one particular phase of the
work a painter may be called upon to do. This is putting
tape over the cracks of sheetrock panel walls, prior to the
painting of the sheetrock, so that when painted the cracks
between the sheetrock panels would not appear and the
wall would look like one continuous surfaces The evidence
shows that Young was assigned to one such assignment and
found to lack the skill and experience required for the job
and, therefore, sent home after being on the job only 2
hours. However, it is' common knowledge that the great
bulk of a painter's job is painting and not taping sheetrock.
Moreover, the referral, Young requested to the Sahualla
Proctor and Gamble project was a painting job, not a
taping job. No claim is made by the Union and no evidence
was adduced to show that Young was not a competent
wielder of the paint brush. On the contrary the record
shows that upon referral by the Union he was assigned to a
painting job on the United States Post Office at Alexandria
for the painting of its exterior for a period of some 4 or 5
weeks until the job was completed, with no apparent
complaints about his work. Similarly he had a referral to
the Alexandria High School to paint metal frames; he was
laid off from that job at the end of 2 days only because that
painting job had been completed. Thus there is no evidence
that Young was not reasonably competent to paint for
Sahualla on the Proctor and Gamble project if he had had a
referral to Sahualla.
In summary, the record shows that the three reasons
advanced by the Respondent Union for not referring
Young to the Proctor and Gamble project are spurious. As
the Union has not adduced any evidence to controvert the
Regional Director's identification of Young as one of the
Negroes discriminated against in the matter of job referrals,
that identification is here affirmed and found.
C. The Termination Date of the Backpay Period in
each Case
The "Backpay Specification" sets forth both the begin-
ning and ending dates of the backpay period for each of the
three discriminatees here involved.
Under Trial Examiner Schneider's aforementioned order
on the motion to strike the answer and for summary
judgment, the beginning dates of the backpay period are
deemed admitted as alleged in _ the "Backpay Specifica-
tion." These dates are July 1, 1968, for the two Wallaces,
and October 1, 1968, for Young.
Trial Examiner Schneider, however, ruled that the
termination dates of the backpay period for each of the
discriminatees are in issue under the pleadings. These are
alleged by the "Backpay Specification" to be March 31,
1969, for each of the three discriminatees.
The Union does not contest the evidence that the Proctor
and Gamble job was finished on March 31, 1969, but it
appears to contest that date as the termination date of the
Force Base . . as sheetrock finishers . . . . The company was using the
Ames tools, to do this work, none of the above-named three had any
working knowledge of these tools but the company agreed to teach them
their use and pay them the journeyman scale of $3 .40 while doing so. . .
PAINTERS LOCAL 985 327
backpay period for Willie Young and Herbert Lee Wallace,
Sr.
The Union's varying positions with respect to the
backpay termination date for Young has been disposed of
above. Summarized, the record is clear that Young's
backpay period began on October 1, 1968, and ended on
March 31, 1969, when the painting job on the Proctor and
Gamble plant was finished.
With respect to Herbert Lee Wallace, it appears that the
Union is contending that his backpay period ended on
December 27, 1968, based upon a letter (Resp. Exh. 1)
dated February 5, 1969, by the Union's then business agent
James Nugent to Wallace, reading as follows:
Dear Mr. Wallace:
Mr. Jess B. Worthington advised me on December 27,
1968, that he called you about returning to work at the
housing units at England Air Force Base on December
27, 1968, but that you did not return because your
attorney advised you not to.
Mr. Worthington has indicated to me that when you
are physically able he is willing to take you back on that
job When your attorney and your physical condition
permit, if you will come by my office I will give you a
referral slip to return to that job, or whatever job-that is
available at that time or becomes available thereafter.
As the Board's Order clearly requires the Union to refer
Herbert Lee Wallace, Sr., to Sahualla's Proctor and
Gamble project and the above-noted offer completely fails
to meet this requirement, it is found that the letter does not
have the effect of tolling the backpay period for Herbert
Lee Wallace, Sr., prior to March 31, 1969, when the Proctor
and Gamble paint job was finished.
In summary it is found and concluded that the
termination date of the backpay period for each of the three
discriminatees is March 31, 1970, as alleged in the
"Backpay Specification." Although the backpay period for
the two Wallaces are from July 1, 1968, through March 31,
1969, it should be noted that under the computation of their
backpay in the "Backpay Specification" they are not given
backpay for periods within the backpay period in which
they were "either unavailable for work or otherwise exempt
from backpay."
D. The Factual Issue as to the Accuracy of the
Earnings of Selected Employees Whose Experience
During the Backpay Period were Considered Typical
The formula for determining the backpay due to each of
the three discriminatees here involved is set forth in the
"Backpay Specification" as follows:
1. An appropriate measure of the quarterly earnings
each of the discriminatees would have earned in the
average weekly wage computed by the calendar year
quarter for the painters referral by Respondent to the
W. F. Sahualla & Company, Inc., job at the Proctor and
Gamble plant located in Pineville, Louisiana.
calendar quarter basis in accordance with the policy expressed in F W
Woolworth Company,
2. Because of the large turnover involved, the
following four painters were selected to compute the
aforementioned average based upon their employment
in the three calendar quarters involved .* They are: Paul
J. Sands, Tommy Maxwell, Obie Edward and Grady
Tullis.
*These employees were employed during the entire backpay.
3. The average weekly wages earned by the four
aforementioned painters in the third ' and fourth
quarters of 1968 and the first quarter of 1969 are set
forth in Appendix A [of the "Backpay Specification"].
4. The quarterly gross backpay* for eachdiscriminatee
was determined by multiplying the average weekly wage
as set forth in Appendix A [of the "Backpay
Specification"]. by the number of weeks they were
discriminated against in their employment.
*Gross backpay is the amount of money the discnminatees would
have earned from employment through referrals from Respondent
Union if the discrimination had not occurred This includes wages,
bonuses and any other elements of reimbursement to employees which
are paid to employees by the employer. [This is an edited footnote from
the "Backpay Specification "I
5. 'Calendar quarter net backpay is the difference
between calendar quarter gross backpay and calendar
quarter net interim earnings.
6. The total net backpay due each discriminatee is the
sum of the calendar quarter amounts of the net backpay
due him.
7. The total net backpay due does not include interest
at the rate of 6 percent per annum as set forth in Isis
Plumbing & Heating Co., 138 NLRB 716.
Except for the allegations of paragraph 3 above, the
Respondent Union by its pleadings admits, or under Trial
Examiner Schneider's aforementioned order , is deemed to
admit all of the above constituent elements of the formula
for determining the backpay due to the three discrimina-
tees.
As the Union denies the allegations of paragraph 3, the
only issue under the formula is the correctness or accuracy
of the earnings of the four typical painters in the third and
fourth quarters of 1968 and the first quarter of 1969 as
ascribed to them in Appendix A of the "Backpay
Specification."
The record shows that earnings of the four typical
painters for the involved quarters as set forth in Appendix
A were taken from the books and records of Sahualla. The
Union offered no evidence to show that these earning
figures were not correct. The Trial Examiner accordingly
finds and concludes that such earning figures are correct
and accurate.
E. The Net Backpay Due to the Discriminatees
Based on the above-described formulae , the "Backpay
Specification" alleges net backpay due 7 to the discrrnina-
tees as follows:
*In accordance with the Board's order enforced by the Court, the
backpay of the persons to be made whole has been computed on a
7 The details of the computations showing the above amounts of net
backpay due to each of the discriminatees are shown in Appendices B, C
Herbert Lee Wallace, Sr. $1,175.00
Luther Wallace 725.00
and D of the "Backpay Specification."
328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Willie Young 3,515.00 circumstances involved.' National Labor Relations
TOTAL $5,415.00 Board v. Ozark Hardwood Co., 8 Cir., 282 F.2d 1, 7.
plus interest accrued to the date o1 payment, minus the tax
withholding required by Federal and State laws.
The three discriminatees, Herbert Lee Wallace, Sr.,
Luther Wallace, and Willie Young, testified in behalf of
General Counsel with respect to their interim earnings and
other matters pertinent to the computation of the net
backpay due to each. Their testimony affirmed the backpay
computations 'in all particulars as detailed in the "Backpay
Specification" and its appendices.
After testifying for the General Counsel, the three
discriminatees were then made available to the Union for
cross-examination on all issues of this backpay proceeding.
The Respondent Union failed to adduce, any testimony
through the three discriminatees or other witnesses which
would require any changes in the computation of the gross
and net backpay, or any periods considered excepted for
backpay, nor did the Union adduce any additional interim
earnings or other deductions from gross backpay not
already known and allowed by the Regional Director in the
computation of the backpay as set forth in the "Backpay
Specification" and detailed in its attached appendices.
SUMMARY
Respondent failed in any way to produce any evidence to
mitigate the backpay liability of any of the discriminatees
other than that admitted by General Counsel as interim
earnings and excepted periods in which claims for backpay
were not made.
It is similarly well settled that the burden of proof to
mitigate the losses of backpay discriminatees rest on the
Respondent. In the New England Tank Industries, Inc., 147
NLRB 598, the Board stated:
... 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 conduct, , 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.
Although Luther Wallace and Willie Young are not
specifically identified by name under the Board's afore-
mentioned Order as discriminatees, the record establishes
that they are both racial discriminatees under the generic
applicability provisions of the Board's aforementioned
Order and with the same force and effect as Herbert Lee
Wallace, Sr., who is specifically identified by name in the
Order as a racial discriminatee.
General Counsel has demonstrated that the formula
applied is reasonable and the computation of the gross
backpay is accurate.
It is well settled that there is no specific formula that
General Counsel must follow in computing gross backpay,
if the formula used is not unreasonable or arbitrary. Thus
as stated by the Eighth Circuit in N.L.R.B. v. Brown & Root,
Inc., 311 F .2d 447:
In solving the problems which arise in back pay cases
the Board is vested with a wide discretion in devising
procedures and methods which will effectuate the
purposes of the Act . Labor Management Relations Act
of 1947, § 10(c), 29 U.S.C.A., § 160(c); National Labor
Relations Board v. Seven-Up Bottling Co., supra;
Phelps Dodge Corp. v. National Labor Relations
Board , supra.
Obviously, in many cases it is difficult for the Board
to determine precisely the amount of backpay which
should be awarded to an employee . In such circum-
stances the Board may use as close approximations as
possible , and may adopt formulas reasonably designed
to produce such approximations . National Labor
Relations Board v. [East Texas Steel Castings Co., C.A.
5, 255 F.2d 284 ; ] National Labor Relations Board v.
Kartarik, Inc., 8 Cir., 227 F.2d 190 ; Marlin-Rockwell
Corporation v. National Labor Relations Board, 2 Civ.,
133 F.2d 258. We have held that with respect to the
formula for arriving at back pay rates or amounts which
the Board may deem necessary to devise in a particular
situation, `our inquiry may ordinarily go no further than
to be satisfied that the method selected cannot be
declared to be arbitrary or unreasonable in the
RECOMMENDED ORDER
On the basis of the foregoing Supplemental Decision and
the entire record in this case, it is recommended that the
Respondent Union, Painters, Decorators & Paperhangers
of America, Local No. 985, be ordered to pay the claimants
the following amounts of backpay:
Herbert Lee Wallace, Sr. $1,175.00
Luther Wallace 725.00
Willie Young 3,515.00
with interest at the rate of 6 percent per annum to be
assessed on each of the quarterly sums found due from the
end of each quarter8 (as shown in the appendices of the
"Backpay Specifications"), minus withholding taxes re-
quired by Federal and State laws.9
8 Computed in the manner set forth in Isis Plumbing & Heating Co,
supra Local 138, International Union of Operating Engineers, AFL-CIO, et
al, 151 NLRB 972.
9 Southern Silk Mills, Inc., 116 NLRB 769.
TRIAL EXAMINER'S SECOND
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
MAURICE S. BusH , Trial Examiner : On December 9,
PAINTERS LOCAL 985
1970, the Trial Examiner issued a Supplemental Decision
in the above-entitled Backpay, Proceeding in which he
found after a full hearing at Alexandria, Louisiana, thdta,
the discriminatees therein identified as Herbert Lce-
Wallace, Sr., Luther Wallace, and Willie Young, were
entitled to net backpay in the amounts of $1,175, $725, and
$3,515, respectively, from the above-named Respondent
Union. Thereafter, the Respondent Union filed exceptions
to the Trial Examiner's Supplemental Decision and the
General Counsel filed an answering brief.
By a remand order dated March 29, 1971, the Board
reopened the proceeding and directed a further hearing be
held before the Trial Examiner for the limited purposes
herein stated as hereinafter set forth. Pursuant to this
direction, a further hearing was conducted on May 20,
1971, at Alexandria, Louisiana, before me, pursuant to
arrangements made by the Regional Director for Region
15, as directed in the Board's Order. Thereafter counsel for
General Counsel filed a brief which has been carefully
reviewed and considered. The Respondent Union again
failed to file a brief with the Examiner as it did in the
original hearing herein.
Upon the entire record and from his observation of the
witnesses, the Trial Examiner makes the following findings,
conclusions, and recommendations:
PROBLEM RE DISCRIMINATEE WILLIE YOUNG
The Board's remand order reopened the hearing herein
for two purposes only. One of these relates to discriminatee
Willie Young. The Board noted that the Respondent Union
"excepts to the failure of the Trial Examiner to take into
account testimony by Willie Young showing that his
interim earnings amounted to $375 rather than $100 per
quarter, as found by the Trial Examiner." The Board
accordingly ordered the Trial Examiner "to consider the
testimony of Willie Young as to his greater amount of
interim earnings than those specified in the backpay
specification and to recompute his interim earnings and
net backpay based thereon, if appropriate."
The testimony at the original bearing on Young's
estimated earnings per quarter for the quarters here
involved from employers other than Employer Sahualla
was conflicting. At the rehearing the parties resolved this
conflict by stipulating that the net backpay due to Young
should be $2,965 in lieu of the $3,515 found by the
Examiner in his original Supplemental Decision, subject,
however, to Respondent's reservation of its other pending
exceptions to the Examiner's findings in favor of Young.'
This breaks down to estimated interim earnings of $375 per
quarter in lieu of the $100 estimated interim earnings per
quarter as set forth in the "Backpay Specification" and
found in the original Supplemental Decision herein.
Accordingly the Examiner amends his original Supple-
mental Decision to show that the total net backpay due to
Willie Young from Respondent Union is $2,965 and
recommends that the said Respondent Union be ordered to
pay said amount of backpay to Willie Young, with the
prescribed interest.
PROBLEM RE DISCRI IINATEE LUTHER WALLACE
329
The only other matter, before the Examiner under the
remand relates to discriminatee Luther Wallace. In its
remand order the Board paraphrases the Respondent's
exceptions to the Examiner's findings in favor of Wallace as
follows: "As to Luther Wallace, the back pay specification
improperly excluded from the gross backpay period for the
third quarter of 1968, July 1 through 27, as Wallace testified
that he was employed during such period by Rust
Engineering Company as a painter, and that the failure to
include such period of employment in the gross backpay
period and to offset interim earnings for that period against
gross backpay for the entire quarter was prejudicial." To
determine if there is any merit to Respondent 's contentions
under these exceptions, the Board ordered a further hearing
before the Trial Examiner "for the purpose of receiving
additional evidence relevant to the issue of Luther
Wallace's gross earnings during the third quarter of 1968,
his interim earnings, and net backpay due for that period."
The facts with reference to Luther Wallace's employment
with Rust Engineering Company as a painter in the third
quarter of 1968 are clear and not in dispute, but their
relevancy is contested by General Counsel. The transcript
of the original hearing herein shows that Wallace had such
employment with Rust as a painter during most of July
1968. The rehearing supplied the details of that employ-
merit. There it was established by stipulation of General
Counsel and the Respondent Union that Wallace's
employment with Rust lasted from July 1 through July 26,
1968, and that Wallace's total earnings by way of wages
from Rust during that period of employment was in the
amount of $1,379.88. The parties also stipulated that
Wallace was terminated by Rust on Friday, July 26, 1968,
for lack of work.
Turning now to the testimony of Wallace at the
rehearing, his testimony shows that while he was working for
Rust he made no application to the Respondent Union for a
referral to painting contractor Sahualla, for employment as a
painter at its Proctor & Gamble paint job at Pineville,
Louisiana, but that he did so for the first time on Saturday,
July 27, 1968, the very next day after his job with Rust
ended for lack of work. As shown in the original
Supplemental Decision herein, Wallace, although he made
numerous applications in person to the Union from and
after July 28, 1968, for referrals to Sahualla's Proctor &
Gamble project, was discriminatorily denied a referral until
February 20, 1969, when he finally received a referral to the
project and put in his first day of work thereon as a painter.
It is manifest from the above undisputed facts that there
was no discrimination against Wallace by the Union in the
matter of referrals to Sahualla's Proctor & Gamble project
during the 4 weeks between July 1 and July 26, 1968, that he
worked for the Rust Engineering Company as he had made
no application to the Union .for a referral for such
employment during that 4 week period. Since the Union's
discrimination against Wallace by reason of the fact that he
is a black man started only after his period of employment
with Rust ended on July 26, 1968, it, of course, follows that
i A footnote to the Board's remand order states , "The Board defers
decision on other exceptions of the Respondent "
330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent Union has no backpay liability to Wallace
for the 4-week period he worked for Rust between July 1
and 26, 1968, inclusive.
The "Backpay Specification" herein takes cognizance of
this fact by specifically excepting the period between July 1
and July 27, 1968, from the computation of both the
quarterly total gross backpay and the quarterly total net pay
due to Luther Wallace for the third quarter of 1968, which
constitutes the difference between his gross backpay and
his interim earnings for the said quarter.2 (See "Backpay
Specification," particularly at par. 10(b), and appendix C-1
which has a box reading, "Excepted Period(s) 7/1-7/27,"
under another box reading "Year 1968.")
Under the now famous case, F. W. Woolworth Company,
supra, a discnminatee's gross backpay, interim backpay,
and net backpay must be computed on a quarterly basis,
beginning with the quarter in which the unfair labor
practice began. The general practice of the Board prior to
the Woolworth holding had been to issue orders for backpay
"determined by computing the difference between (a) what
the employee would have earned in the position which was
discriminatorily terminated and (b) what he actually earned
in other employment during the entire period commencing on
the date of the discrimination and ending with the date of offer
of reinstatement." (See p. 291.) (Emphasis supplied,) The
Board in the Woolworth case noted that the cumulative
experience of many years had shown that its then prior
backpay orders fell short of effectuating the basic purposes
and policies of the Act, in that in numerous cases it was
found "that employees, after having been unemployed for a
lengthy period following discriminatory discharges, have
succeeded in obtaining employment at higher wages than
they would have earned in their original employments."
This, the Board found, often "resulted in progressive
reduction or complete liquidation of back pay due." The
Woolworth holding was designed to avoid such inequities by
placing the computation of backpay on a quarterly basis.
Thus, under the Woolworth case, "Earnings in one
particular quarter shall have no effect upon the backpay
liability for any other quarter." (See F. W. Woolworth
Company, supra, pp. 291 to 293.)
It is at once evident under the quarterly system of
computing backpay inaugurated by the Woolworth case
that the beginning date of a backpay period must begin
with the first day of the first month of the quarter of the
year in which the involved discriminatory discharge took
place, but that it would be only by rare coincidence that
such a discharge would actually occur or take place on the
first day of the first month of the quarter. The chances are
thus about 90 to 1 that any given unlawful discharge would
take place on some day other than the first day of the first
month of the 'quarter in which the employee was
terminated. In that event the Employer cannot be charged
with beginning gross backpay on any date earlier than the
date on which the employee was actually discharged
2 "Gross backpay" is the amount of money a discrimmatee would have
earned from his Employer if the discrimination had not occurred "Interim
earnings" is the amount of money the discrimmatee earned from other
employers during the period of his discriminatory discharge, less expenses
in getting such employment "Net backpay" is the difference between the
gross backpay due to the dtscnmmatee and his interim earnings. (See fn 3
although the backpay period must take in the full quarter
under the Woolworth ruling.
The difficulty with the Respondent Union' s exceptions is
that the Respondent is confusing the beginning date of the
backpay period for Luther Wallace, to wit, July 1 , 1968, as
described above under the Woolworth holding, with the
beginning date of the actual discriminatory period which
commenced on July 27, 1968, when the Respondent first
discriminatorily denied Wallace a referral to Sahualla
because of his race. This appears from the following
discourse at the rehearing:
MR. CHAMPAGNE [counsel for General
Counsel]: Mr. Examiner, General Counsel will stipulate
that the backpay, that the act of discrimination [began]
on the date Mr. Luther Wallace applied for work at
Sahualla is July 28, 1968.
TRIAL EXAMINER: Do you so stipulate?
MR. -KRAMER [counsel for Respondent Union]:
I decline to stipulate.
TRIAL EXAMINER: Well, you understand that
[from] Mr. Wallace's testimony, I could find possibly it
[the act of discrimination] started as early as the 26th or
27th. And if I do so find, then he will be entitled to an
extra day or two of back pay, which would not occur if
you agreed to stipulate that the discrimination occurred
on July 28.
MR. KRAMER: I prefer to stipulate, it's just like
in the charge, it began on July 1. [Emphasis supplied.]
TRIAL EXAMINER: Now he [Luther Wallace]
made no application for employment to the union until
his job at Rust Engineering ended. He made no
application on July 1.
MR. KRAMER: Mr. Examiner, I decline to
stipulate. [Transcript at pp. 140-141; see also transcript
of first hearing at pp. 65, 94-97.]
As heretofore noted, the "Backpay Specification" herein,
while necessarily computing the total net backpay due to
Wallace on a quarterly basis under the requirements of the
Woolworth case, expressly excepts the period July I to July
27, 1968, from the computation of both the gross pay and
the net pay due to Wallace for the third quarter of 1968.
The "Backpay Specification" was based on the facts
uncovered by an investigation made by Sloan McCloskey, a
Board attorney for Region 15, who drafted the "Backpay
Specification" as approved and issued by the Acting
Regional Director for that region. It is an admitted fact3
that the average wage for painters on the Sahualla Proctor
& Gamble job for the third quarter of 1968 was $161 per
week. Utilizing this fact, McCloskey, testifying in behalf of
General Counsel at the original hearing, explained how in
arriving at the gross backpay due to each discnminatee
(which includes Luther Wallace) as set forth in the
"Backpay Specification," he excluded from such gross
backpay of each discriminatee the weeks within the quarter
prior to the commission of the discriminatory unfair labor
practice against the discriminatee, as follows:
of "Backpay Specification" herein and Board's decision in F. W
Woolworth Company, 90 NLRB 289, at p. 293 and fn 8.)
3 See Trial Examiner Schneider 's order herein entitled "Order on
Motion to Strike Answer to Backpay Specification and For Summary
Judgment" See also par . 3 and appendix A of the "Backpay Specification."
PAINTERS LOCAL 985
A, I took the number of weeks in the third quarter
of 1968 that were not excepted and multiplied those
weeks by the figure of $161 and would come up with the
figure . . . of [the gross pay due the discriminatee.]
[Emphasis supplied.]
Q. (By Mr. Champagne): In other words, the
number of weeks the person was entitled to backpay
during the period whether it be 6 weeks, 10 weeks or 13
weeks, multiplied by $161 and would give you the gross?
[Emphasis supplied.]
A. That's right and I used the same figure [$161 ] for
all individuals [all discnmmatees]." [Original transcript,
p. 24.]
The "Backpay Specification" at appendix C-1 shows an
aggregate of $1,449 due to Luther Wallace from the
Respondent Union as "quarterly total gross back pay" for
the third quarter of 1968, without the inclusion of any gross
backpay for the first four weeks of July (July 1 through 27), as
the "Backpay Specification" specifically states that that 4
week period is an "Excepted Period," or, in other words,
excluded from the computation of gross backpay due
Wallace for the third quarter of 1968. McCloskey's
testimony shows that these 4 weeks were excluded from the
backpay computation because the Respondent Union's
discrimination against Wallace began after the expiration
of that 4 week period. Thus the Respondent Union is not
being charged with any gross backpay for that period. By
the same token, McCloskey's testimony shows that the
"Backpay Specification" by "Excepting" the same 4 week
period from the backpay computation, does not take into
account Wallace's earnings of $1,379 from Rust for the
same 4 week period because those earnings were likewise
accrued and paid to him prior to the commencement of
Respondent Union's discrimination against him. Accord-
ingly, counsel for General Counsel is much to the point
with his comment in his brief that, "To allow Respondent
to prevail in its position would [be to] punish Wallace for
earnings achieved by him prior to the commission of
Respondent's unfair labor practices against Wallace."
As the Respondent has not filed a brief, it is assumed that
its "legal position " on the remand is the same as stated by
its counsel at the original hearing at the time Respondent
offered in evidence Wallace's W-2 form to show his
earnings from Rust for the period July I to 27, 1968, and as
reiterated at the rehearing. The following colloquy shows
the Respondent's position at the original hearing:
MR. CHAMPAGNE (counsel for General Coun-
sel): ". . . I object because it is completely irrelevant.
We have excepted the time as part of the excepted
period, through July 27. There is no backpay claimed
for that period and I just don't see where it is material.
MR. KRAMER: This is part of the time on a
quarterly basis, the amount of money that he [Luther
Wallace] earned during that quarter and Respondent is
entitled to mitigation for it.
MR. CHAMPAGNE: Not before the 27th. The
first through the 27th. We allowed all the way through
4 Respondent's reference is to Trial Examiner Schneider's "Order on
Motion To Strike Answer to Backpay and For Summary Judgment "
Respondent 's interpretation of that order is erroneous . The order does not
find that the Union's discrimination against Luther Wallace began on July
1, 1968. It merely finds that the "beginning date of the backpay penod" for
331
the 27th as an excepted period in July. In fact, it doesn't
start until the 28th of July.
MR. KRAMER : Nevertheless, the computations
are on a quarterly basis . It is the contention here that we
don't get any credit for this quarter when part of this
money was earned during that quarter when they claim
there was discrimination.
MR. CHAMPAGNE: I say it is not part of that
quarter. We are not claiming the entire quarter. We are
only claiming the part from July 27 through September
30. Not from July 1, therefore, it,is not material.
MR. KRAMER: I offer it [W-2 form showing
Luther Wallace's earnings from Rust for July 1 through
27, 1968 ] into evidence and ask for a ruling on it.
TRIAL EXAMINER: The objection is sustained
... [Transcript of original hearing , pp. 65-66.]
At the rehearing, the Respondent Union through its
counsel reiterated its position as follows:
TRIAL EXAMINER: [to counsel for the Respon-
dent Union after General Counsel made his opening
statement ] Do you want to make an opening statement?
MR. KRAMER: I want to point this out in this
opening statement . I alleged on this exception that the
computation is prejudicial and its unfair and actually
mistakes the back pay awardage to be made.
TRIAL EXAMINER: Do you agree that [the]
discrimination, with reference to Luther Wallace, began
on July 28th rather than July 1 of 1968?
MR. KRAMER : It's alleged and it's a part of the
things I came here to contest, that it began July 1st,
1968. It has been made a finding of facto that I was
bound by that all the way through the proceedings. But
I just want to show you the way the computation was
made . I said that the method of computation was
unfair, and that's why that this additional evidence
should have been admitted. Mr. McClosekey .. .
TRIAL EXAMINER: What additional evidence are
you referring to?
MR. KRAMER: Right now I'm talking about the
additional earnings of Luther Wallace from July 1st
until July 26th of 1968. [Transcript of rehearing at pp.
127-128.]
In short, the Respondent Union's position appears to
remain that it is entitled to a credit for Luther Wallace's
earnings from Rust for the period July I through 27, 1968,
against the total net backpay due him for the third quarter
of 1968, although the "Backpay Specification" specifically
excepts that period from the computation of the net
backpay due to Luther Wallace for the third quarter of
1968, for the reason as shown by the testimony of
McCloskey that Respondent's unfair labor practice against
Wallace did not commence until on or about July 28, 1968.
The Trial Examiner' s foregoing summary and analysis of
the facts herein and the applicable law compels the
conclusion that the Respondent Union's position is wholly
without merit.
The Trial Examiner refinds and reconcludes that the
Luther Wallace was July 1, 1968, as is required under the Woolworth case,
supra See discussion above as to distinction between "the beginning date
of the backpay penod" and "the beginning date of the actual
discriminatory period."
332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"Backpay Specification" herein for Luther Wallace, subject
to a possible minor modification, is correct in all of its
particulars and that the total amount of net backpay due
him is in the amount of $725, as shown in the "Backpay
Specification" and the original Supplemental Decision
herein, with interest at the proscribed rate. Although the
"Backpay Specification" shows the "Excepted Period" for
Luther Wallace to be July 1 through July 27, 1968, the
record at the rehearing shows that the "Excepted Period"
should be and is hereby found to be July 1 through July 26,
1968, inclusive, as Wallace's job with Rust ended on
Friday, July 26, rather than on Saturday, July 27, 1968,
when he first applied for a referral to the Respondent
Union for employment as a painter at the Sahualla Proctor
& Gamble job and was turned down because he was a black
man. Under these facts the backpay for Wallace should
start on July 27, rather than on July 28, as would appear
from the "Backpay Specification" and McCloskey's
testimony, but inasmuch as these two dates fall on a
Saturday and` Sunday, the Respondent is given the benefit
of a doubt that the Proctor & Gamble job did not work on
that weekend and that accordingly the Respondent's
discriminatory refusal of a job referral to Luther Wallace
on Saturday July 27 did not become effective until Monday
July 29, 1968, which is a normal workday. This finding may
require a slight adjustment of the total net backpay due to
Luther Wallace which is difficult to determine on the
present record and is therefore left to the parties to work
out in good faith by stipulation.