W. L. Miller Co.

National Labor Relations Board - Board Decisions

Mar 30, 1992

306 N.L.R.B. 936 (N.L.R.B. 1992)

936
306 NLRB No. 190
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The judge was presented with a backpay formula by the General
Counsel and an alternative backpay formula from the Charging Party
Union. The Respondent did not propose an alternative formula.
When faced with alternative backpay formulae, the judge must deter-
mine which is the ‘‘most accurate’’ method to determine backpay.
East Wind Enterprises, 268 NLRB 655, 656 (1984). In view of the
fact that the backpay theory formulated by the Union would have
required the Respondent initially to discharge its then-existing work
force and hire from the hiring hall, conduct the Board found to be
unlawful in Austin & Wolfe Refrigeration, 202 NLRB 135 (1973),
we find the formula accepted by the judge—i.e., that formulated by
the General Counsel—to be the ‘‘most accurate.’’
W. L. Miller Company and Eastern Missouri La-
borers’ District Council. Case 17–CA–9854(B)
March 30, 1992
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On September 30, 1991, Administrative Law Judge
William L. Schmidt issued the attached supplemental
decision. The Respondent filed exceptions and a sup-
porting brief, and the Charging Party filed cross-excep-
tions and an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the supplemental decision
and the record in light of the exceptions and briefs and
has decided to affirm the judge’s rulings, findings,1
and conclusions and to adopt the recommended supple-
mental Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended supplemental Order of the administrative
law judge and orders that the Respondent, W. L. Mil-
ler Company, Kirksville, Missouri, its officers, agents,
successors, and assigns, shall pay to the individuals
specified the amounts set forth in the supplemental
Order.
Stephen E. Wamser, Esq., for the General Counsel.
Jack L. Whitacre, Esq. (Spencer, Fane, Britt & Browne), of
Kansas City, Missouri, for the Respondent.
Jerald A. Hochsztein, Esq. (Feldacker & Cohen, P.C.), of St.
Louis, Missouri, for the Charging Party.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
WILLIAM L. SCHMIDT, Administrative Law Judge. In
W. L. Miller Co., 284 NLRB 1180 (1987), the National
Labor Relations Board (Board or NLRB) found that W. L.
Miller Company (Company or Respondent) repudiated a
binding collective-bargaining agreement between the Eastern
Missouri Laborers’ District Council (Union) and the Associ-
ated General Contractors of Missouri (AGCM)—a multiem-
ployer association to which Respondent belonged—in viola-
tion of Section 8(a)(1) and (5) of the National Labor Rela-
tions Act (Act). The Board entered a ‘‘make whole’’ reme-
dial order described in more detail below.
Thereafter, the Board’s Order was enforced, as modified,
by the Eighth Circuit Court of Appeals, 871 F.2d 745 (8th
Cir. 1989). The court’s modification was designed to pre-
clude interest on sums due the contractual trust funds for the
period from the expiration of the contract at issue, April 30,
1983, until July 23, 1987, the date the Board’s Order issued.
A dispute has now arisen between Respondent and the Re-
gional Director for Region 17 concerning backpay due cer-
tain individuals. Accordingly, the Regional Director issued a
compliance specification and notice of hearing on August 31,
1990.
The Respondent filed a timely answer to the compliance
specification denying the liability claimed to be due and
owing thereunder.
The Charging Party filed an appeal from the Regional Di-
rector’s decision regarding Respondent’s backpay liability
with the General Counsel. That appeal was denied on De-
cember 6, 1990. The Union then filed a request for review
of the General Counsel’s action with the Board as permitted
by the Board’s Rules. On February 25, 1991, the Board
granted the Union’s request for review saying that it ‘‘raised
factual issues that are best resolved by an administrative law
judge after a formal hearing’’ and remanded the matter to the
Regional Director for further action consistent with its Feb-
ruary 25 Order.
I heard this matter on August 13, 1991, at Kirksville, Mis-
souri. After considering the record and the posthearing briefs
filed by the General Counsel, Respondent, and the Union, I
now issue the following
FINDINGS OF FACT
I. THE SCOPE OF THE REMEDIAL ORDER
The Board’s July 23, 1987 Order required, inter alia, that
Respondent ‘‘make its employees whole . . . for losses they
may have suffered as a result of the Respondent’s failure to
adhere to the [Union] contract from [May 1, 1980 through
April 30, 1983], with interest.’’
On November 10, 1987, the General Counsel filed a mo-
tion for clarification with the Board and served a copy there-
of on all parties. This motion sought to have the Board clar-
ify its Decision and Order ‘‘to specifically require Respond-
ent to pay backpay to employees who would have been re-
ferred out of the Union’s hiring hall if Respondent had fol-
lowed the hiring hall provisions of the [applicable] collective
bargaining agreement.’’ Among other matters, the General
Counsel called specific attention to the fact that the Union
in its answering brief to Respondent’s exceptions (to the ad-
ministrative law judge’s decision) specifically requested that
the Board clarify the judge’s remedial language to insure that
Respondent was required to make whole ‘‘not just Respond-
ent’s actual work force, but any other employees in the bar-
gaining unit who have suffered a loss of pay or . . . benefits
by reason of Respondent’s refusal to implement [the union
contract].’’ Respondent filed a written opposition to the Gen-
eral Counsel’s motion.
937W. L. MILLER CO.
1 John Deklewa & Sons, 282 NLRB 1375 (1987).
2 This letter, appended to the General Counsel’s brief, was first
called to my attention with the filing of the brief. I deem it to be
part of the official record in the underlying proceeding.
3 In his brief, the General Counsel claims that the April 6, 1990
judgment was entered by the clerk sua sponte.
The Board denied that motion on July 8, 1988, for want
of jurisdiction because petitions for enforcement and review
had been filed in the meantime with the Eighth Circuit Court
of Appeals. In so doing, the Board stated: ‘‘Since the case
is pending before the Court, Section 10(d) of the Act divests
the Board of jurisdiction to modify its Order.’’ (Emphasis
added.)
However, before the Board had ruled on the motion for
clarification, oral argument was presented before the Eighth
Circuit on June 18, 1988, and the court thereafter issued its
opinion on March 29, 1989. In its opinion, the court, noting
in effect that the Board’s decision in this matter had ap-
peared to have been delayed pending the Board’s Deklewa
decision,1 held that it would be manifestly unjust to add in-
terest to the required union benefit fund contributions for the
period from the contract termination until issuance of the
Board’s decision, and modified the Board’s remedial order
accordingly. The modification focused on the union benefit
funds because, according to the court, ‘‘[t]he parties made
clear in argument that the live issue before us is not under-
payment of the employees, but rather Miller’s failure to
make contributions to the Union’s benefit fund.’’ 871 F.2d
at 749.
On April 19, 1989, a deputy clerk of the court, in the
clerk’s name, transmitted to the Board’s counsel before the
court a document purporting to be a copy of the court’s judg-
ment under cover of a letter which states: ‘‘Enclosed please
find copy of judgment entered today.’’ (Emphasis added.)
The purported court judgment enclosed bears no date, no
court seal, and no attestation of authenticity by the court’s
clerk. The face of the deputy clerk’s letter reflects that a
copy was sent to all other parties.2
The General Counsel filed a second motion for clarifica-
tion dated May 19, 1989. Respondent filed a written opposi-
tion; the Union filed a brief in support. In an unpublished
order dated June 15, 1989, the Board granted the General
Counsel’s motion as follows:
IT IS ORDERED that the General Counsel’s Motion for
Clarification is granted as the standard make-whole
remedy encompasses any employee who would have
been referred from the hiring hall pursuant to the col-
lective-bargaining agreement in the absence of Re-
spondent’s unlawful conduct. E.g., Wayne Electric, Inc.,
226 NLRB 409, fn. 3 (1976).
On April 6, 1990, a court judgment issued which bears
that date, the court’s seal, and the clerk’s attestation.
In its answer to this compliance specification, Respondent
alleges that the Board’s 1989 order granting the General
Counsel’s second motion for clarification is invalid because
it was entered at a time when the petitions for enforcement
and review were still pending before the court inasmuch as
the court’s judgment had not yet been properly entered and,
hence, the Board lacked jurisdiction to act at that time.
During a prehearing conference, I sought clarification of
Respondent’s claim. At the time, counsel seemed to be in
agreement that entry of the court’s judgment in 1990—more
than a year after the court’s opinion—was due primarily to
a clerical oversight as no dispute existed concerning the form
of the court’s judgment. The parties did differ, however, on
its import. Respondent maintained that the delayed judgment
nevertheless served to deprive the Board of jurisdiction to
enter its 1989 clarification order.
Following that conference, I issued a written notice to the
parties that at the outset of the hearing, argument would be
heard as to why I should not recommend to the Board in this
supplemental decision that it rescind its 1989 order for the
same reason that the Board denied the General Counsel’s
original motion for clarification in 1988. The notice further
provided that in the event I concluded following that argu-
ment that such a recommendation was appropriate, the Gen-
eral Counsel would have the burden of establishing that the
compliance specification in its present form is a reasonable
effectuation of the Board’s 1987 Order as enforced by the
1990 court judgment.
Following argument at the hearing, I announced that I
would recommend to the Board that it rescind its 1989 Order
for want of jurisdiction to act on the case in any fashion
while the case remained pending before the court.
Based on the April 19, 1989 letter of the deputy clerk and
the Rule 36 of the Federal Rules of Appellate Procedure, the
General Counsel now argues that the parties in the court pro-
ceeding were entitled to rely on the notice that judgment in
the court case had been entered on April 19, 1989. For this
reason the General Counsel claims that the Board in fact had
jurisdiction when it entered its clarification in July 1989. I
agree.
Rule 36, cited by the General Counsel, provides:
The notation of a judgment in the docket constitutes
entry of the judgment. The clerk shall prepare, sign and
enter the judgment following receipt of the opinion of
the court unless the opinion directs settlement of the
form of the judgment, in which event the clerk shall
prepare, sign and enter the judgment following final
settlement by the court. If a judgment is rendered with-
out an opinion, the clerk shall prepare, sign and enter
the judgment following instructions from the court. The
clerk shall, on the date judgment is entered, mail to all
parties a copy of the opinion, if any, or of the judgment
if no opinion was written, and notice of the date of
entry of the judgment.
Based on the content of the deputy clerk’s April 19, 1989
letter, Rule 36, and the fact that the court’s opinion does not
indicate that settlement on the form of the judgment is re-
quired, I am satisfied that the April 6, 1990 judgment is es-
sentially a nunc pro tunc action involving form rather than
substance.3 For these reasons, I conclude that jurisdiction to
act in this case effectively reverted to the Board with the
deputy clerk’s April 19, 1989 letter announcing that judg-
ment had been entered on that day.
II. THE COMPLIANCE SPECIFICATION
The compliance specification is premised on the theory
that the make-whole remedial order adopted by the Board
938 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Art. III of the collective-bargaining agreement provides for an
exclusive hiring hall.
5 No one seriously disputes the facts disclosed by Fetsch’s inves-
tigation. The dispute here centers around the conclusions derived
from those facts.
6 Because the Respondent’s Kirksville jobs were subject to ‘‘pre-
vailing wage’’ regulations under which the laborers’ prevailing wage
was the same as provided in the collective-bargaining agreement, the
employees who actually worked appear to have been paid the con-
tractual wage rate.
7 The original compliance specification reflects that three individ-
uals were not available in the third quarter. The compliance speci-
fication was amended at the hearing after it was learned that one of
the three was in fact available.
8 However, in accord with the policy of the General Counsel’s of-
fice, all registrants were made available at the hearing for examina-
tion by any of the parties concerning interim earnings. Only one,
called as a witness for other purposes, was examined on this subject.
He had no interim earnings in the relevant period.
9 As Respondent has already made the union benefit funds whole
with the required interest, the compliance specification does not deal
with that aspect of the remedy.
and enforced by the court encompasses those employees who
would have been referred from the Union’s hiring hall pursu-
ant to the collective-bargaining agreement absent the Re-
spondent’s unlawful conduct.4
Robert A. Fetsch, the Region 17 compliance officer, con-
ducted an investigation leading to the formulation of the
compliance specification.5 Fetsch found that during the term
of the agreement, Respondent, an asphalt paving contractor,
performed work on three largely overlapping projects in the
Kirksville, Missouri area.
Work on one of the Kirksville projects actually com-
menced in 1979. With the onset of inclement weather, work
on this project ceased and nine employees were laid off.
Work on this project commenced again in the spring of
1980. Prior to May 1, 1980, the effective date of the collec-
tive-bargaining agreement, seven of the nine employees from
the 1979 crew were recalled to work by Respondent. The
two remaining employees from the 1979 crew were recalled
for work shortly after May 1.
After the collective-bargaining agreement became effec-
tive, seven additional employees were employed who had not
previously worked for Respondent in the area. These 16 em-
ployees (9 from the 1979 crew and 7 new employees) rep-
resented all the employees employed by Respondent within
the geographic jurisdiction of the collective-bargaining agree-
ment during its term. At any given time, Fetsch said, the Re-
spondent’s payroll records disclosed that crews ranging in
size from 2 to 12 employees worked on the three projects
until all of the work was completed in July 1981.
Based on this information, Fetsch said that a conclusion
was made that the Respondent could have lawfully continued
to employ the seven employees from the 1979 crew who
were recalled prior to the effective date of the collective-bar-
gaining agreement as well as the two other from the 1979
crew recalled to work shortly after the agreement went into
effect on the ground that all these employees had a reason-
able expectancy of recall. For this reason, the hours worked
by these employees were excluded from the calculation of
any potential backpay liability.
A further conclusion was reached, according to Fetsch,
that the seven new employees hired for the first time fol-
lowing the effective date of the collective-bargaining agree-
ment would have been hired from the Union’s hiring hall had
Respondent complied with the terms of that agreement.
Hence, the hours worked by this group of employees was
deemed a reasonable measure of the hours the hiring hall
registrants would have worked absent Respondent’s unfair
labor practice.
Applying the applicable contractual pay rates, those seven
employees first employed by Respondent in 1980 earned
$7525.08 in the third quarter of 1980 and $11,875.94 in the
fourth quarter.6 They had no other earnings which would
have been subject to the collective-bargaining agreement.
Fetsch’s investigation disclosed that Laborers’ Local 954
in Kirksville maintained a hiring hall during the relevant pe-
riod but records reflecting the relative placement of hiring
hall registrants on the out-of-work list at that time no longer
existed. For this reason, Fetsch located and interviewed
known registrants in an effort to identify those who may
have availed themselves of the hiring hall service in 1980.
In addition, Fetsch caused a series of advertisements to be
placed in the local Kirksville paper seeking to identify others
who had used the hiring hall service at that time. Using these
methods, Fetsch was able to identify 26 individuals who
were able to establish that they had utilized the Local 954
hiring hall in the third and fourth calendar quarters of 1980.
Two of the 26, it was determined, were not employed in the
area or the industry during the third calendar quarter.7
As no means existed to determine the relative order of the
hiring hall registrants on the out-of-work list, the Regional
Director for Region 17—the official responsible for issuing
the specification—determined that for purposes of the com-
pliance specification, the available backpay, as measured
above, should be distributed equally among all available reg-
istrants. Consequently, the amended specification allocates
the $313.55 to each of the 24 registrants available in the
third quarter of 1980 and $456.77 to each of the 26 reg-
istrants available in the fourth quarter. In total sums, the
compliance specification provides that 24 registrants are due
$770.32 each and 2 are due $456.77 each.
Because the amount of backpay allocated to each reg-
istrant translates roughly to 30 hours of work in the third
quarter and roughly 50 hours of work during the fourth quar-
ter, no interim earnings offset was applied against these sums
on the ground that the registrants would have likely had
other earnings in each of those quarter in any event.8
Finally, the compliance specification makes a general re-
quest that interest be added to the amounts due the reg-
istrants thereunder. At the hearing, the General Counsel
modified the interest request to conform to the interest peri-
ods provided by the court judgment for union benefit funds.9
III. POSITIONS OF THE PARTIES
A. The Union
The Union agrees with the fundamental approach taken to
calculate the backpay as reflected in the compliance speci-
fication but argues that the Regional Director failed to apply
the collective-bargaining agreement in determining the appro-
priate pool of funds available for distribution to the hiring
hall registrants.
939W. L. MILLER CO.
10 The General Counsel argues that all nine employees from Re-
spondent’s 1979 crew should be treated as already employed by Re-
spondent when it became bound to the 1980–1983 contract on the
ground that all had a reasonable expectancy of recall when laid off
in 1979.
11 Taylor’s pertinent testimony is found at Tr. 86. It reads as fol-
lows:
Q. Now if he [meaning a contractor] is signatory to the agree-
ment for the first time, what happens?
A. If somebody would come in organized, we would have to
take his existing people in.
In preparing this decision, I listened to the official reporter’s tape
recording of Taylor’s answer at the hearing. I am satisfied that Tay-
lor’s answer should read: ‘‘If somebody would come in and orga-
nize, by law we would have to take his people in.’’ I hereby correct
the transcript to reflect this change. In doing so, I am satisfied that
the integrity of the transcript is not otherwise subject to question.
12 In fn. 7 of its brief in this proceeding, Respondent appears to
request reconsideration of the retroactive application of Deklewa to
this case. I find that issue is now resolved and cannot be reconsid-
ered in this compliance proceeding.
More specifically, the Union points to article III, section
2 of the agreement (R. Exh. 1, pp. 7 and 8) which provides
in effect that the first man employed on a job must be reg-
istered with the local union. Thereafter, the contract provides,
a contractor is permitted to man crews from sources other
than the hiring hall only to the extent that the number of em-
ployees obtained from outside sources does not exceed two
employees, or 25 percent of the crew, whichever is greater.
The contract provides that these limitations may, in effect, be
waived by agreement between the contractor and the local
union business agent but, the Union points out, as Respond-
ent unlawfully failed to apply the agreement, the limitations
were never waived.
Because the compliance specification excludes the hours
of outside-source employees in numbers beyond those per-
mitted to be employed under the contract, the Union feels the
pool of backpay available for distribution to the hiring hall
registrants located by Fetsch is too small. The Union sub-
mitted an alternate calculation with its brief. Under that cal-
culation, backpay would be due in the last three quarters of
1980 and the second quarter of 1981. One additional reg-
istrant would receive backpay. The Union’s computation pro-
vides that one registrant is due $170.05; two are due $645.54
each; two are due $1031.48 each; and the remaining 22 reg-
istrants are due $1232.23 each. The Union does not propose
any interim earnings offset.
The General Counsel argues that the Union’s position
would, in effect, countenance unlawful conduct. To adopt the
Union’s contention, the General Counsel claims, would re-
quire one to assume that when the Respondent became sub-
ject to the contract on May 1, 1980, it was obliged to lay
off its then-current employees down to a number which
would satisfy the ‘‘2 or 25%’’ rule and obtain new employ-
ees at the hiring hall.10 Such action, the General Counsel
contends, would contravene the holding in Austin & Wolfe
Refrigeration, 202 NLRB 135 (1973). In that case, the Board
found the employer violated Section 8(a)(3), and the union
violated Section 8(b)(2), when the employer acquiesced in
the union’s demand that its current crew be discharged and
replaced with a crew from the union’s hiring hall as a condi-
tion for contracting with the employer.
Moreover, the General Counsel argues that Myrl Taylor,
the union representative who negotiated the relevant collec-
tive-bargaining agreement, conceded that when a new em-
ployer became bound to the contract for the first time—as
here—the contract would not require that the employer dis-
charge or displace its current employees.11
The Union argues that the import of Taylor’s testimony is
that if an employer becomes a signatory to the contract for
the first time or bound through a multiemployer group (as
Respondent did), the contractor is obliged to comply with the
contractual hiring procedures regardless of who was hired or
when they were hired. Only if an employer was organized
through NLRB procedures, the Union argues, would the em-
ployer’s existing laborers be accepted.
B. The Respondent
Respondent asserts that: (1) the ‘‘hiring hall remedy’’ as
formulated in the compliance specification is not encom-
passed by the court’s judgment; (2) that the hiring hall in-
volved was not operated in a nondiscriminatory fashion and
hence should not be used as a basis for a remedy in this
case; and (3) the ‘‘double payment’’ hiring hall remedy
would be improper and manifestly unjust in view of the ret-
roactive application of the Deklewa decision in this case and
the scope of the earlier proceedings. For these reasons, Re-
spondent believes the compliance specification should be dis-
missed in its entirety.
As to its first and third points, the Respondent contends
that the literal language of the Board’s remedy provided that
Respondent was ‘‘to make its employees whole.’’ This lan-
guage, Respondent contends, does not encompass a hiring
hall remedy. The make-whole remedy was essentially pro-
vided for in the administrative law judge’s original decision
and no exceptions were filed as to that remedy. Not until
months after the Board’s decision, Respondent notes, did
General Counsel and the Union become concerned for the
first time about the lack of a hiring hall remedy and sought
to cure that oversight with the first motion for clarification
which the Board declined to entertain because it lacked juris-
diction. And, Respondent further notes, the Eighth Circuit
correctly observed in its opinion that ‘‘the live issue before
us is not underpayment of employees, but rather Miller’s
failure to make contributions to the Union’s benefit fund, and
the sole issue presented involved payments into the Union’s
benefit fund.’’12
With respect to its claim that the Local 954 hiring hall is
not operated on a nondiscriminatory basis, Respondent refers
to evidence in the original proceeding when Business Agent
McNabb confronted Respondent’s superintendent, Livingston,
concerning the employment of his son. Specifically, Re-
spondent cites McNabb’s testimony in the original transcript
at page 124 where McNabb recalled telling the elder Living-
ston:
Well, under the negotiated agreement or security clause,
he [the younger Livingston] hasn’t reported to the
union hall and I will have to ask for his dismissal.
Respondent notes that McNabb later told the elder Living-
ston that the contractual requirements ‘‘wouldn’t necessarily
be that he couldn’t work on the job.’’ McNabb then went on
to testify:
940 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I tried to explain to him that if W. L. Miller would ac-
cept the contract as it was agreed upon and his son be-
came a member of my local that it didn’t mean he
couldn’t work on the project, that I was handling it as
if the contract was legal and binding and it was my ob-
ligation to ask for a dismissal of anyone that refused to
come to the union hall and report to me.
This evidence shows, Respondent claims, that McNabb in
fact was conditioning employment on the job on union mem-
bership—either hiring union members or requiring that those
who sought to ‘‘transfer in’’ to either become a union mem-
ber, or register with him, before going to work.
McNabb, it was reported, has now moved to California
and was not available to testify in the present hearing.
Fetsch testified that all the individuals he located who had
been registered on the Union’s out-of-work list at times rel-
evant here were union members but no evidence was ad-
duced as to when they became union members.
The General Counsel introduced the hiring hall rules of
Local 954 prepared in 1979. The rules have been revised
since only to reflect changes in the dues and initiation fees
shown thereon. Larry Richardson, the current Local 954
business agent who originally transferred into Local 954 in
1975, testified that at the present time he maintains the out-
of-work register and in 1980, McNabb maintained the reg-
ister. Richardson said the Union’s hiring hall is available to
members and nonmembers alike.
Dale True, a member of Local 954 since 1952 and the
local business agent before McNabb, testified that both mem-
bers and nonmembers used the out-of-work register and that
nonmembers were referred for employment. He said that if
a member from another local is transferred to work in the
area with his employer, such individuals must ‘‘clear through
the hall.’’ True said this simply means that the worker must
notify the local business agent that he is working in the area.
Basil Walker, a Local 954 member since 1972, testified
about the operation of the hiring hall in 1980 and 1981. He
said that there was no prohibition against nonmembers using
the out-of-work list. He likewise said there was no prohibi-
tion against using the list based on gender, race, age or na-
tional origin. He recalled some nonmembers and some
women used the list when he was business agent in the mid-
80s.
IV. FURTHER FINDINGS AND CONCLUSIONS
I am satisfied that the approach taken by the compliance
specification in this case is reasonable under the cir-
cumstances. In reaching this conclusion, I find the objections
raised by the parties lack merit.
As reflected in Wayne Electric, cited by the Board in its
clarification of the remedial order here, a make-whole order,
issued in the context of a case involving an employer’s re-
fusal to abide by a collective-bargaining agreement, encom-
passes those employees who would have been referred but
for the employer’s misconduct. Consequently, it should have
come as no surprise to Respondent that this approach was
adopted in the compliance proceeding. The only surprise in
this case is that ‘‘the parties’’ would have represented to the
court during argument that the only ‘‘live issue’’ involved
the union benefit funds especially where, as here, the General
Counsel’s original motion for clarification involving the hir-
ing hall matter was still pending a ruling by the Board. Re-
gardless, I am bound by the Board’s subsequent clarification
which, for reasons outlined above, I now find the Board had
jurisdiction to issue.
I concur in the General Counsel’s argument that the Union
could not have lawfully required Respondent to replace the
1979 crew it had already recalled in 1980, or obviously in-
tended to recall, when the 1980–1983 agreement went into
effect. Similarly, I construe Taylor’s testimony to mean that
crews employed at the time any employer becomes ‘‘orga-
nized’’ are, in practice, permitted to continue working under
the collective-bargaining agreement. The Union’s claim in its
brief that this practice is followed only where an employer
is organized through NLRB election procedures reads far
more into Taylor’s testimony than is there. Consequently, I
reject the Union’s alternate backpay theory.
Nor am I satisfied that Respondent has shown that the hir-
ing hall practices at Local 954 were discriminatory. The hir-
ing hall rules shown to be in effect fail to support Respond-
ent’s position and the testimony in this proceeding reflect
that the hiring hall operated over the years on a nondiscrim-
inatory basis.
Respondent’s conclusions from McNabb’s testimony in the
prior proceeding are, in my judgment, unwarranted. No testi-
mony establishes how long the younger Livingston had been
working in the area covered under the agreement and hence,
whether or not he was already subject to the union-security
provisions. True, McNabb alluded to Livingston becoming a
‘‘member of my local.’’ However, because Respondent’s re-
pudiation of the agreement to which it was bound precluded
evidence as to how McNabb administered the agreement, it
cannot now be heard to claim that McNabb was insisting by
those words that the younger Livingston had to become a
‘‘full’’ union member as opposed to a ‘‘financial core’’
member.
Moreover, the hiring hall procedures specifically require
that outside employees must register with the ‘‘local union
office prior to employment on the job site.’’ Any suggestion
that McNabb’s efforts to secure compliance with this require-
ment is evidence of a discriminatory hiring hall is unjusti-
fied. Clearly, this provision is a justifiable aid in the admin-
istration of both the hiring hall requirements as well as the
union-security provisions of the agreement.
Respondent’s claim that the remedial action required under
the compliance specification will result in a ‘‘double pay-
ment’’ is obviously correct. That is always the case when an
employer is found to have unlawfully rejected an applicant
for employment and, instead, hired another individual to ac-
tually perform the work. Respondent’s claim that such an ap-
proach demonstrates that the remedial action here is mani-
festly unjust is simply at odds with thousands of other simi-
lar cases.
The argument by Respondent that this remedial action fur-
ther demonstrates the impropriety of the retroactive applica-
tion of Deklewa also lacks merit. As the court’s opinion in
this proceeding seems to make clear, Respondent would have
been subject to the same remedial order under the prior con-
version doctrine. For this reason, the remedial action required
by this compliance specification neither adds to, nor detracts
from, Respondent’s already rejected claim that the retroactive
application of Deklewa was manifestly unjust.
941W. L. MILLER CO.
13 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
As no records exist which would allow the compliance of-
ficer to reconstruct the priority of the registrants on the out-
of-work list, I find the equal distribution of backpay to all
identifiable registrants is reasonable. Because the amounts of
backpay allocated to each registrant represents but a small
portion of the worktime in each calendar quarter and because
of the intermittent nature of laborer’s work generally, I fur-
ther find that the Regional Director’s refusal to adjust the
gross backpay by the registrants’ interim earnings is also jus-
tified.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended13
ORDER
In accord with the calculations set forth in the compliance
specification, Respondent, its officers, agents, successors, and
assigns, shall pay the following sums, less appropriate Fed-
eral and state taxes, with interest for the periods provided by
the court judgment in connection with the union benefit
funds, to each of the following individuals:
1. Lawrence Anthony, Bernard Clark, Charles Daniels,
Donald Douglas, Loren Dyer, Rodney Ferguson, Clifford
James, Elbert Johnson, Charles Kessler, David Lewis, Don-
ald Noyes, Daniel Patterman, Larry Richardson, Harvey
Rufener, Burney Ruggles, Jerry Ruggles, Dale True, William
Tolson, Basil Walker, Harley Walker Jr., Glen Sears, Robert
Spooner, David Stockamp, and Larry Stockamp:
III. 1980 IV. 1980 TOTAL BACKPAY
$313.55 $456.77 $770.32
2. Terry Simpson and Leonard Whittum:
III. 1980 IV. 1980 TOTAL BACKPAY
0 $456.77 $456.77