Superior Roofing Co.

National Labor Relations Board - Board Decisions

Nov 12, 1970

186 N.L.R.B. 542 (N.L.R.B. 1970)

542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Superior Roofing Company and Orland R. Cooley ORDER
United Brotherhood of Carpenters and Joiners of
America, Local No. 751, AFL-CIO and Orland R.
Cooley. Cases 20-CA-3460 and 20-CB-1334
November 12, 1970
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby orders that the Respondent
Employer, Superior Roofing Company , San Francis-
co, California , its officers , agents, successors, and
assigns , and Respondent Union , United Brotherhood
of Carpenters and Joiners of America , Local No. 751,
AFL-CIO, San Francisco , California , its officers,
agents , and representatives , shall pay to Orland R.
Cooley, the amount set forth in the attached Trial
Examiner 's Supplemental Decision.
On May 4, 1966, the National Labor Relations
Board issued a Decision and Order, finding inter alia,
that the Respondent Union by demanding and
securing Orland R. Cooley's discharge because he was
not a member of the Union violated Section
8(b)(1)(A) and (2) of the National Labor Relations
Act, as amended, and that the Respondent Employer
by discharging Cooley in compliance with the
Respondent Union's demand violated Section 8(a)(3)
and (1) of the Act. The Board directed that the
Respondent Union and Respondent Employer jointly
and severally make Cooley whole for any pay losses
he may have suffered hereby.'
Thereafter, on May 1, 1969, by a consent decree in
Case No. 23,322, the United States Court of Appeals
for the Ninth Circuit enforced the Order of the Board.
On January 16, 1970, the Regional Director for
Region 20 issued and on January 23, 1970, the
Respondents filed an answer and counterspecifica-
tion and served on the parties a Backpay Specification
and Notice of Hearing, to the backpay specification.
Pursuant to notice, a hearing was held before Trial
Examiner Richard D. Taplitz on February 24, 1970,
for the purpose of determining the Respondents'
backpay obligation to Orland R. Cooley.
On April 22, 1970, the Trial Examiner issued the
attached Supplemental Decision in which he found
the discriminatee herein to be entitled to backpay in
the amount specified. Thereafter, Respondents filed
joint exceptions to the Trial Examiner's Supplemental
Decision and a supporting brief. The General Counsel
has filed an answering brief in the form of a letter.
Pursuant to the provisions of Section 3(b) of the
Act, the Board has delegated its powers in connection
with this case to a three-member panel.
The Board has reviewed the rulings made by the
Trial Examiner at the supplemental hearing and finds
no prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the entire
record in this case, including the Supplemental
Decision, and the exceptions and briefs, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.
1 158 NLRB 657.
TRIAL EXAMINER'S SUPPLEMENTAL
DECISION
STATEMENT OF THE CASE
RICHARD D. TAPLITZ , Trial Examiner : This supplemental
proceeding to determine the amount of backpay due
Orland R. Cooley was tried in San Francisco , California, on
February 24, 1970, on the Backpay Specification of the
General Counsel dated January 16, 1970 , as amended at the
hearing, and an answer filed by Superior Roofing
Company, herein called the Company , and United
Brotherhood of Carpenters and Joiners of America, Local
No. 751, AFL-CIO, herein called the Union.' Orland R.
Cooley, the Charging Party , testified at the hearing but did
not enter an appearance . All parties were afforded a full
opportunity to examine and cross -examine witnesses, to
introduce evidence , to present oral argument and to file
briefs. Briefs which have been carefully considered were
filed on behalf of the General Counsel and Respondent.
Upon the entire record2 before me, and from my
observation of the witnesses and their demeanor, I make
the following:
FINDINGS OF FACT
A. The Board Order and Court Decree
On May 4, 1966, the Board adopted the findings,
conclusions and recommendations contained in the
Decision of Trial Examiner James D. Barker .3 After a
hearing, the Trial Examiner had found "that the Union
demanded and secured Cooley's discharge because he was
not a member of the Union . . ." and "that the Company
discharged Cooley not because his work was unsatisfactory,
but to comply with the unlawful request of the Union." By
this conduct , it was found that the Union violated Section
8(b)(2) and (1)(A) and the Company violated Section
8(a)(3) and (1) of the Act. To remedy the unfair labor
practices , the Company and Union were ordered jointly
and severally to reimburse Cooley for the loss of pay he
suffered by paying to him the sum of money he normally
I The Company and the Union jointly are referred to herein as
Respondent.
2 [Certain errors in the transcript are hereby corrected.]
3 158 NLRB 657.
186 NLRB No. 74
SUPERIOR ROOFING COMPANY 543
would have earned from the date of the discrimination
against him to the date of the Company's offer to reinstate
him, less net earnings. Loss of pay was to be computed in
accordance with the formula set forth in F. W. Woolworth
Company, 90 NLRB 289, together with interest at the rate of
6 percent per annum as set forth in Isis Plumbing & Heating
Co., 138 NLRB 716.
On May 1, 1969, by a consent decree in Case 23,322, the
United States Court of Appeals for the Ninth Circuit
enforced the order of the Board and ordered Respondent to
abide by and perform the directions of the Board as
contained in the Board's order.
B The Backpay Specifications, the Answer and the
Issues
The Backpay Specification issued by the General
Counsel sets forth the backpay period as November 17,
1964, through December 22, 1966. Under the backpay
formula used in the specification, it is alleged that at the
time of his discharge Cooley was the Company's second
senior roofer and that the measure of hours that Cooley
would have worked from November 17, 1964, to March 17,
1965, was the number of hours worked by the second most
senior roofer employed by the Company at its Santa Rosa
location during that period. According to the specification,
the most senior employee was terminated on March 17,
1965, and the second most senior roofing employee on that
date became the senior roofer, therefore, the appropriate
measure of hours that Cooley would have worked was
measured by the weekly hours worked by the senior roofer
from March 17, 1965, to December 22, 1966. The
appendices to the specifications set forth the weekly hours
of employment of a number of employees that fit into the
General Counsel's theory. Thus, it is alleged that on
November 30, 1964, employee D. O. Mott replaced Cooley
as the Company's second most senior roofer at its Santa
Rosa location; that on December 2, 1964, R. H. Bridges
replaced D. O. Mott as the second most senior roofer; that
on March 19, 1965, the senior roofer, B. R. Jones, was
terminated and at that time R. H. Bridges became the most
senior roofer; that during the week ending May 5, 1965, R.
H. Bridges ceased working for the Company and was
replaced by E. L. Scnvner as most senior roofer; that
during the week ending May 11, 1966, E. L. Scrivner ceased
working for the Company and was replaced as most senior
roofer by R. H. Bridges in the week ending May 25, 1966;
that E. Daniels replaced R. H. Bridges as most senior roofer
during the week ending July 6, 1966; and that A. Pimey
replaced E. Daniels as the Company's most senior roofer
the week ending September 21, 1966. The specification does
4 During the hearing, the General Counsel moved to amend Appendix
C of the specification by adding to the second quarter of 1966 an interim
earnings of $120 that Cooley received from Hedman Construction
Company The General Counsel also moved to amend the subsequent
computations to reflect the additional $120 interim earnings , particularly
changing the total on the last page of Appendix C to $7,143 , the net interim
earnings for the second quarter of 1966 on Appendix D to $1,245, the net
backpay for that quarter to $68 (incorrectly set forth in the transcript as
$67), and the total net backpay to $5,470 In the absence of any objection,
the motion was granted.
s Sec 102 54
(b) Contents of the answer to specification -The answer to the
not claim any pay for Cooley from the week ending April
14, 1965, to September 8, 1965, and for the period from
December 1 to 22, 1966, on the ground that Cooley was ill
and would not have been able to work during those periods.
The amended specification concedes that Cooley had
certain interim earnings which are set forth in detail in an
appendix to the specification.4 In addition to specifying the
theory used by the General Counsel to compute backpay,
the specifications detail the hours worked which were relied
on by the General Counsel, the rates of pay the General
Counsel thought applicable to those hours, and computa-
tions showing what the General Counsel believed to be due
to Cooley.
In response to the backpay specifications, Respondent
filed an "Answer and Counter-Specification Re Backpay"
which read as follows:
It is the contention of respondents herein that the
only replacement of Orland Cooley was D. O. Mott,
and therefore Orland Cooley is entitled to only nineteen
hours of backpay.
There is no evidence upon which a conclusion can be
based that R. H. Bridges, E. L. Scnvner, E. Daniels, or
A. Pimey were in any way replacements for Orland
Cooley.
The backpay specification is further in error since it
bases its conclusions on a concept of
seniority-seniority is not applicable under the collec-
tive bargaining agreement in this case, and roofers are
hired by the day.
Except as alleged hereinabove, each and every, all
and singular of the allegations contained in the backpay
specification and notice of hearing in the above matter
are denied.
Prior to the opening of the trial, the General Counsel filed
a motion which in part requested that the Trial Examiner
issue an order "specifying that the only issue to be litigated
is whether the backpay specification sets forth an
appropriate method for determining backpay liability."
After a hearing on the motion on February 24, 1970, I
granted the motion to limit the issues in part by finding that
the only issues raised by the answer were as follows: (1)
Whether the only replacement of Orland Cooley was D. O.
Mott thus entitling Cooley only to 19 hours of backpay; (2)
whether or not R. Bridges, E. L. Scrivner, E. Daniels, or A.
Pimey were in any way replacements of Cooley; (3)
whether the concept of seniority is applicable to the case;
and (4) the amount of interim earnings . As to all issues
other than the four set forth above, I found that
Respondent's answer did not meet the requirements of
Section 102.54(b) and (c) of the Board 's Rules and
Regulations 5 and that this failure to adequately answer was
specification shall be in writing, the original being signed and sworn to
by the respondent or by a duly authorized agent with appropriate
power of attorney affixed , and shall contain the post office address of
the respondent The respondent shall specifically admit , deny, or
explain each and every allegation of the specification , unless the
respondent is without knowledge, in which case the respondent shall
so state, such statement operating as a denial . Denials shall fairly meet
the substance of the allegations of the specification denied When a
respondent intends to deny only a part of an allegation, the
respondent shall specify so much of it as is true and shall deny only
the remainder As to all matters within the knowledge of the
respondent , including but not limited to the various factors entering
(Continued)
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to be deemed an admission of all the figures, computations,
and calculations contained in the backpay specifications
and of all other matters contained in the specifications
other than as indicated above.
As to interim earnings, based on the assertion of
Respondent that it had no knowledge of what Cooley's
interim earnings in fact were, I ruled that the answer was
specific enough to allow Respondent to adduce evidence on
the record as to interim earnings.
C. The Appropriate Formula for Determining
Backpay
As indicated above, the answer filed by Respondent puts
in issue only two matters-the appropriateness of the
formula the General Counsel has used to determine
backpay and the amount of interim earnings. The General
Counsel's formula is based on the allegation that Cooley
should be credited with the hours actually worked by the
second senior man employed by the Company at its Santa
Rosa location during a certain portion of the backpay
period and the hours of the first senior man during another
portion of that period. In applying this formula, the
General Counsel used various hours worked by D. O. Mott,
R. H. Bridges, E. L. Scrivner, E. Daniels, and A. Pimey.
Respondent answered the ° backpay specifications by
asserting that the concept of seniority was not applicable
and that only Mott should be considered a replacement for
Cooley (which would limit the number of hours lost by
Cooley to 19). In addition, in its brief the Respondent
contended that Bridges, Scrivner, Daniels, and Pimey
worked in a different category of employment than Cooley
and therefore should not be considered Cooley's replace-
ments.
1. Seniority
There is a conflict in testimony as to whether the
Company used seniority to determine which employees
were to work. During 1964 and part of 1965, Victor Jones
was a shop foreman and manager of the Company's Santa
Rosa shop.6 He left the Company's employ in 1965 but
Hayden J. Ponder, the president of the Company, testified
that employment practices at Santa Rosa were the same
during 1964, 1965, and 1966. In an affidavit that Jones gave
to a field examiner of the Board on December 12, 1966,
Jones mentioned a conversation that he had with Cooley in
January 1965 when Cooley returned to work for the
Company for a few days, in which Jones "told him that he
was the last hired so he would be the first to be let go."
After some equivocation and having his memory refreshed
by the affidavit, Jones acknowledged that he probably did
make such a statement to Cooley. However, as to the actual
practice engaged in , Jones testified that roofing trade
employees are hired and fired in accordance with their
ability to produce and that it didn't have anything to do
with how long the employee worked for a company. As to
the Company's practice, Jones' testimony was somewhat
confused as he averred that employees were kept on the
payroll "on the basis of ability more so than seniority. I
wouldn't say it's a complete rule but it's -."
The only other witness to testify concerning seniority was
Anni Hann, the Company's office manager. She was in
charge of the office in November 1964.7 She testified that
after Jones left she did the hiring and firing of employees
and she based her decisions on the abilities of the
employees.
The Union's contract with the Company does not provide
for company seniority. Section IV(b)(4)(a) of the contract
that is binding on the Company and the Union (Exh. R-I
in evidence) provides for a preference in referral from the
hiring hall to employees who had previously worked in
certain geographical areas but that provision has little to do
with company seniority as such . The Company is also
bound by a contract between various locals of the United
Slate Tile and Composition Roofers , Damp and Water
Proof Workers Association, and the Associated Roofing
Contractors of the Bay Area Counties, Inc. That contract
(Exh. R-3 in evidence) provides for a distinction between
permanent employees who had worked in an area covered
by the agreement for a certain period and temporary
employees who had not had such employment and further
provides that temporary employees are to be the first laid
off and last rehired. The contract also provides for the
preferential referral from the referral hall of permanent
employees. However, all the seniority considerations are
keyed to industry employment and not to employment with
the Company.
Jones credibly testified without contradiction that once
an employee is hired he goes from job to job without
clearing back through the Union. After reading his
affidavit, his recollection was refreshed that "the practice in
Santa Rosa at this period was generally when a man was
employed to be sure that he obtained clearance from the
appropriate union-unless as when I employed Cooley the
first time the two roofing unions had no one to send out to
jobs. The practice was that after a man was on the payroll
and cleared to continue to employ him without clearance
again as long as he continued as an employee , even if for a
period he only worked a couple of hours a week, and or
missed now and then a week's work."
into the computation of gross backpay , a general denial shall not
suffice . As to such matters, if the respondent disputes either the
accuracy of the figures in the specification or the premises 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.
(c) Effect of failure to answer or to plead specifically and in detail to
the specification . -If the respondent fails to file any answer to the
specification within the time prescribed by this section , the Board may
either with or without taking evidence in support of the allegations of
the specification and without notice to the respondent, find the
specification to be true and enter such order as may be appropriate. If
the respondent files an answer to the specification but fails to deny
any allegations of the specification in the manner required by
paragraph (b) of this section . and the failure so to deny is not
adequately explained, such allegation shall be deemed to be admitted
to be true , and may be so found by the Board without the taking of
evidence supporting such allegation , and the respondent shall be
precluded from introducing any evidence controverting said
allegation.
6 As his uncontradicted testimony establishes that he hired and fired
employees, I find that he was a supervisor within the meaning of Sec. 2(11)
of the Act.
I Hann's uncontradicted testimony establishes that she was given the
authority to hire and fire in the latter part of 1965 . 1 find that she is a
supervisor within the meaning of Sec . 2(11) of the Act.
SUPERIOR ROOFING COMPANY 545
In spite of Jones' statement to Cooley that the last hired
was the first to go, I find that the practice of the Company
with regard to the hire and lay off of employees was not
based on seniority. The applicable contract had no mention
of company seniority as such and the testimony of Jones
and Hann to the affect that they were not concerned with
seniority was not contradicted by any other witnesses.
Their testimony establishes that the Company' s general
practice, once an employee was hired, was to shift him from
job tojob as eachjob completed and when a layoff or rehire
was required to choose employees on the basis of the
Company's evaluation of their ability. However, the impact
of this lack of seniority policy on the General Counsel's
theory of backpay is yet to be considered.
The backpay specification must be reasonably designed
to obtain as close an approximation as possible of the
money the discriminatee would have received but for the
discrimination . The criteria to be applied in scrutinizing the
backpay specification is set forth in N.L.R.B v. Brown and
Root, Inc., 311 F.2d 447 (C.A. 8), where the court held:
Obviously , in many cases it is difficult for the Board
to determine precisely the amount of back pay which
should be awarded to an employee. In such circum-
<, tances the Board may use as close approximations as
possible, and may adopt formulas reasonably designed
to produce such approximations. N.L.R.B. v. East
Texas Steel Castings Co., 5 Cir., 255 F.2d 284; N.L R B.
v. Kartarik, Inc., 8 Cir., 227 F.2d 190; Marlin-Rockwell
Corporation v. N.L.R.B., 2 Car., 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 circumstances in-
volved." N.L.R.B. v. Ozark Hardwood Co., 8 Cir., 282
F.2d 1, 7.
The backpay specifications are based on the premise that
Cooley had seniority slots and that other employees who
worked in these seniority slots after Cooley's discharge
could be used to measure the hours that Cooley would have
worked had he not been discharged. This type of
"representative employee" formula in itself is neither
arbitrary or unreasonable . Carpenters Union Local 180,
United Brotherhood of Carpenters and Joiners of America,
AFL-CIO (Golden State Runway and Engineering Compa-
ny), 175 NLRB No. 150. The question presented is whether
such a formula is appropriate where the Company's
practice prior to this determination did not include the use
of seniority. In Jack G. Buncher, d/b/a The Buncher
Company, 164 NLRB 340, enfd. 405 F.2d 787 (C.A. 3), the
Board was faced with a situation where Respondent did not
have a seniority system but nonetheless the General
Counsel used a seniority standard to determine the
availability of employment for discriminatees. As in the
instant case , the Respondent maintained that its personal
evaluation of the employee 's ability was the method used in
deciding which employees were to be retained, laid off or
recalled. In these circumstances , the Respondent argued
that the General Counsel 's use of a seniority system was
arbitrary. The Board held:
... In these circumstances , any measure used to
determine backpay will be inexact and arguably
arbitrary. It is Respondent's violation of the Act which
requires the Board to apply a remedy that in its
judgment offers a reasonable basis for remedying the
violations found . The extensive use of seniority by other
employers in determining layoff and recall, the
objective nature of the seniority system , and the
complete absence of an alternative offered by the
Respondent other than personal judgment , made the
General Counsel 's utilization of seniority in framing the
backpay specification not unreasonable . The backpay
specification , in any event, did not foreclose the
Respondent from establishing a more reasonable
alternative theory on which backpay could be calculat-
ed.
2. The replacements
In this context , the alternative theory urged by Respon-
dent must be considered . Respondent contends that
employee D. O. Mott was the only employee who could be
considered a replacement for Cooley and that therefore
Mott's hours of employment , which amounted to 19, were
all that could be attributed to Cooley. Respondent urged
that there is no evidence that the other employees, whose
hours were used in the backpay computations, were
identifiable as Cooley's replacements . I cannot find merit to
this contention . The seniority slot approach is applicable to
this situation even though there was no company practice
of seniority . The "representative employee" need not have
been hired as a direct "replacement." For the reasons stated
above , the seniority system is a realistic one and
Respondent 's "replacement" theory which would limit
Cooley's backpay to approximately 2-1/2 days pay, if
adopted, would be arbitrary and unreasonable . Respondent
contends that "it cannot be reasonably argued that anyone
other than Mott could have been (Cooley's replacement)
inasmuch as there were some contemporary periods of
employment for all of the men involved . However, the
Respondent does not argue that these other employees did
not fit into Cooley's seniority slot as alleged in the backpay
specifications . There is no evidence in the record to indicate
why Mott left the Company's employment. It would be
capricious to assume that Cooley would have left the
Company's employment on the same date that Mott did.
Respondent's argument would in effect require such an
assumption.
Respondent also alleges in its brief that Cooley was a
carpenter and that therefore Bridges , Scrivner , Daniels, and
Pimey, who were hot roofers, could not be considered as
Cooley's replacements.
The Company performed different types of roofing. In
one type wooden shakes or shingles were installed and
employees to do that work were generally drawn from the
Carpenters Union referral hall. The Company also installed
composition shingles. As Jones credibly testified , there had
always been a dispute about the installation of the
composition shingles between carpenters who were referred
from the Carpenters hall and "hot roofers " who were
referred from the Roofers Union. In addition, the
Company put on "hot roofing" of hot asphalt, pitch, or
546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other adhesives. That work was performed by employees
referred by the Roofers Union. The contracts of the hot
roofers and carpenters each spelled out their claimed
jurisdiction in general terms.
Though Foreman Jones was somewhat equivocal in
recalling which employees were hot roofers and which
carpenters, he did testify that he thought Mott was a roofer.
Hann unequivocally and credibly testified that Bridges,
Scrivner, Daniels, and Pimey were all hot roofers. However,
Respondent's assertion that Cooley was a carpenter is not
supported by the record. The Board found in the initial case
that Cooley informed the Company when he was hired on
November 13, 1964, that he was a member of Local 236 of
the Roofers Union; that he was put to work and assigned to
install wood shingles; and that after the Union had
complained that he did not have a referral slip, he reported
for work on November 17 with a referral form from the
Roofers Union. Cooley had worked on composition
shingles for the Company, according to the testimony of
Jones, and according to his own testimony he has worked
for various employers doing every type of roofing. Cooley
was a hot roofer even though he had been assigned by the
Company to do work on a particular job which was
ordinarily done by carpenters. In these circumstances, I
believe it was reasonable for the General Counsel to use the
hours worked by other hot roofers as a basis for
determining the hours that would have been worked by
Cooley but for the discrimination. Such a procedure
provided a greater chance of accuracy than the use of the
hours worked by carpenters or the hours worked by the
combination of carpenters and hot roofers.8
3. Other defenses
In the pretrial ruling on the motion of the General
Counsel to limit the issues, I held that Respondent could
adduce evidence on interim earnings. However, Respon-
dent did not put in evidence any testimony on that subject
and therefore the only figures on interim earnings are those
which the General Counsel admitted in the backpay
specifications. Where Respondent wishes to add to such
admissions the burden is on the Respondent to do so.
Respondent has not met that burden and indeed makes no
contention in its brief that Cooley had interim earnings that
were not included in the backpay specifications. However,
in its brief, Respondent does raise five arguments in an
attempt to limit Cooley's backpay. None of these proffered
defenses relate to anything raised by Respondent in its
answer and therefore they are unavailable to Respondent as
defenses under Section 102.54(b) and (c) of the Board's
Rules and Regulations. These defenses are not only
defective procedurally but they lack merit substantively.
They are as follows:
(a) The Company contends that it was unable to reach
Cooley because Cooley did not give a forwarding address,
respond to telephone calls, and he did not come to the
company office.
Supervisor Jones testified that some time after January
20, 1965, he called Cooley to get him back to work.
Supervisor Hann testified that about January 30, 1965,
Cooley left an address with her; that she tried to reach him
by phone but could not do so; and that she called the Post
Office and found out that he no longer had the Post Office
box number that he had given to her. However, Jones
acknowledged that he made no special effort to get Cooley
back to work and Hann acknowledged that she did not
write to Cooley or attempt to have any communications
forwarded to him. At best, the Company's offer of
employment to Cooley was halfhearted. It was not
calculated to reach a man who might have to wander far
afield in the search of interim employment, and it would
not be a basis for ending backpay during the backpay
period.
(b) Respondent contends that Cooley went to Alaska in
March 1965 where he got into a fight which left him
physically unable to perform work since that time.
Cooley testified that he was injured in Alaska but there is
no evidence in the record that the injury was caused by a
fight. Cooley's credible testimony is uncontradicted that he
is physically able to work. The period he was unable to
work because of the injury is specifically set forth in the
specification and no backpay was claimed for that time. His
testimony is corroborated by his interim earnings which
establish that he did in fact work after the injury.
(c) Respondent contends that Cooley should be limited as
to his backpay because he did not contact the Company
after his return from Alaska and tell the Company that he
was ready for work.
Cooley had no obligation to apply to the Company for
work. It was the Company's obligation instead to offer
Cooley full reinstatement.
(d) Respondent contends that Cooley would have
continued to work in Alaska if not for his injuries and that
therefore the adding of backpay after his injuries was not
warranted.
The only evidence with regard to the Alaska work was
that of Cooley who averred that it was a temporaryjob. In
any event, Respondent has not shown that Cooley willfully
rejected any interim earnings.
(e) Respondent contends that Cooley's injuries were so
severe that he was able to become eligible for disability
retirement from the Social Security Administration and
that he should therefore be ineligible for backpay.
I find no merit in this contention. As indicated above, the
evidence in this record establishes that Cooley was only
disabled for employment for a limited period which was set
forth in the backpay specifications and since that time he
has been able to perform roofing work. Respondent,
through cross-examination of Cooley, did establish that the
injury was a serious one, but Respondent has adduced no
evidence to contest Cooley's assertion that he is able to
work. Cooley did acknowledge that he does get disability
retirement from the Social Security Administration but that
proceeding was not before me and I must make my
determination on the basis of the record of this case.
8 Neither in its answer nor its brief does Respondent propose that the carpenter-hot roofer combination.
computations be based on the hours worked by the carpenters or the
SUPERIOR ROOFING COMPANY
D. Conclusions
For the reasons set forth above, I find that the formula
adopted by the General Counsel in the amended specifica-
tions is reasonably designed to obtain as close an
approximation as possible of the amount of backpay due
Cooley and that the method selected is neither arbitrary nor
unreasonable . I further find that the amended specification
correctly states the amount of backpay due to Cooley.
Upon the entire record, I find that the Company and the
Union's joint and several obligation to Cooley will be
discharged by the payment to him of the sum of $5,470,
plus interest at the rate of 6 percent per annum to accrue
9 Net backpay by calendar quarter is as follows:
Quarter Net Backpay
1964-4th $ 27
1965-1st 766
2nd 2
3rd 387
4th 724
1966-1st 2257
2nd 68
3rd 0
4th 1239
TOTAL NET BACKPAY $5470
547
commencing with the last date of each calendar quarter of
the respective backpay periods on the amount due and
owing for each quarter as set forth in Appendix D of the
amended backpay specification9 and continuing until the
date this decision is complied with.
E. Recommendation
It is recommended that the Board adopt these findings
and conclusions and order Superior Roofing Company and
United Brotherhood of Carpenters and Joiners of America,
Local No. 751, AFL-CIO, jointly and severally, to pay
Orland R. Cooley the sum of $5 ,470 plus interest as
indicated.