Carpenters Local 1456 (Underpinning Constructors)

National Labor Relations Board - Board Decisions

Feb 8, 1995

316 N.L.R.B. 257 (N.L.R.B. 1995)

257
316 NLRB No. 52
CARPENTERS LOCAL 1456 (UNDERPINNING CONSTRUCTORS)
1 The underlying decision is reported at 306 NLRB 492 (1992).
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
3 The Respondent has excepted to the number of hours set forth
by the judge in his Order. At the hearing in this matter, the Re-
spondent stipulated to the method of calculation and amount of
hours set forth by the General Counsel in his compliance specifica-
tion. Those numbers were relied on by the judge in determining
backpay for the discriminatee. The Respondent’s attempt to contest
those figures to which it stipulated at the hearing is untimely and
barred by its earlier stipulation.
The Order is modified to clarify those amounts payable to the
discriminatee himself and those amounts payable on his behalf to
various fringe benefit funds.
Dockbuilders Local Union No. 1456 of the United
Brotherhood of Carpenters and Joiners of
America, AFL–CIO (Underpinning and Foun-
dation Constructors, Inc.) and Robert Heaney.
Case 2–CB–13323
February 8, 1995
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS BROWNING, COHEN, AND
TRUESDALE
On September 2, 1994, Administrative Law Judge
Steven Davis issued the attached supplemental deci-
sion.1 The Respondent and the General Counsel filed
exceptions and supporting briefs. The Respondent and
the General Counsel also filed answering briefs and the
Respondent filed a reply brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions and to adopt the recommended Order as
modified.3
ORDER
The National Labor Relations Board orders that the
Respondent, Dockbuilders Local Union No. 1456 of
the United Brotherhood of Carpenters and Joiners of
America, AFL–CIO, New York, New York, its offi-
cers, agents, and representatives, shall make whole
Robert Heaney by the payment to him of the amounts
of backpay set forth below, less tax withholding re-
quired by Federal and state laws. Interest shall be com-
puted and paid in accordance with New Horizons for
the Retarded, 283 NLRB 1173 (1987). Further, the Re-
spondent shall make whole Robert Heaney by pay-
ments of contributions on his behalf into fringe benefit
funds in the amounts set forth below, plus any addi-
tional amounts due as set forth in Merryweather Opti-
cal Co., 240 NLRB 1213 (1979).
Backpay
Period/Qtr. No. ofWeeks
Hourly
Total
Pay Rate
Total
Wkg.
Hrs.
Wages
1990/2d .4 $23.66 16 $378.56
1990/3d 10.5 24.66 516 12,724.56
Total Backpay: $13,103.12
Benefit Funds
Period/Qtr. Rate Hrs. of Work Amount
Welfare Fund
1990/2d $3.10 16 $49.60
1990/3d 4.04 438 1,769.52
Total: $1,819.12
Annuity Fund
1990/2d $1.85 16 $29.60
1990/3d 1.85 438 810.30
Total: $839.90
Vacation Fund
1990/2d $2.10 16 $33.60
1990/3d 2.10 438 919.80
Total: $953.40
Leah Z. Jaffe, Esq., for the General Counsel.
William D. Frumkin, Esq. (Law Offices of Donald L. Sapir),
of White Plains, New York, for the Respondent.
Daniel E. Clifton, Esq. (Lewis, Greenwald, Kennedy, Lewis,
Clifton & Schwartz), of New York, New York, for the
Charging Party.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
STEVEN DAVIS, Administrative Law Judge. On February
28, 1992, the National Labor Relations Board (Board) issued
its Decision and Order in Case 2–CB–13323, published at
306 NLRB 492, directing that Dockbuilders Local Union
1456, of the United Brotherhood of Carpenters and Joiners
of America, AFL–CIO (Respondent or Union) make whole
Robert Heaney for any loss of pay and other benefits suf-
fered by him resulting from Respondent’s unlawfully causing
Underpinning and Foundation Constructors, Inc. (Employer)
to refuse to hire Robert Heaney.
Thereafter, Respondent filed with the Board a motion for
reconsideration and reopening, which was denied on July 2,
1992. On April 15, 1993, the Second Circuit Court of Ap-
peals granted the Board’s petition for enforcement of its
Order.
On December 1, 1993, a compliance specification was
issued. Respondent filed an answer, and on June 1, 1994, a
hearing was held before me in New York City, at which the
specification was amended. Briefs were filed by the General
Counsel and Respondent.
258 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Respondent disputes the backpay period, the General
Counsel’s use of the ‘‘replacement employee’’ theory, the
amount of gross backpay, and the amount of interim earn-
ings.
Background
A brief summary of the underlying decision is necessary
in order to properly analyze certain defenses of Respondent.
Robert Heaney was a member of Respondent for about 35
years until 1990. On June 25, 1990, he was expelled from
Respondent for refusing to pay a fine imposed for violating
certain provisions of Respondent’s constitution.
Heaney’s son, William, was a foreman for the Employer
at a construction site on West 4th Street in New York City.
On June 28, 1990, upon learning that a drill rig was to arrive
at the jobsite, he decided to hire his father ‘‘to perform work
in relation to that machine.’’ 306 NLRB at 493. William ad-
vised Respondent’s business agent that he intended to hire
his father for that job. He told the agent that ‘‘there was a
drill rig coming in and I wanted to put my father on it.’’ Id.
The agent told him that he could not hire his father because
Robert was no longer a member of the Union. As a result
of this conversation, William did not hire his father for that
job.
Gross Backpay
I. REPLACEMENT EMPLOYEE
The General Counsel used the ‘‘replacement employee’’
theory in determining the amount of gross backpay. Follow-
ing Heaney’s unsuccessful attempt to become hired by the
Employer, the Employer assigned employee Owen Quinn to
work on the drill rig. The Board agent testified that Quinn
was used as the model to ascertain the hours Heaney would
have worked, and the wages and benefits he would have re-
ceived but for his failure to be hired.
Respondent stipulated that the formulas, pay rates, and
hours of work set forth in the specification were accurate.
Respondent denied that Quinn was the appropriate person
to use in order to determine the amount of money Heaney
was entitled to. It asserts that Quinn was already on the job
when he was assigned to work with the drill rig, and was
not specifically hired for that job, as Heaney would have
been. This distinction is without merit, as the issue is the
hours of work engaged in by the person who performed work
on the drill rig, not whether that individual was already on
Respondent’s payroll. The replacement employee theory is
recognized by the Board as an acceptable measure in deter-
mining the gross backpay due a discriminatee. 3 States
Trucking, 252 NLRB 1088 (1980).
II. THE BACKPAY PERIOD
The start of the backpay period, June 28, 1990, the date
that Heaney would have begun his employment, is undis-
puted. However, Respondent denies that the backpay period
should end on December 2, 1990, as set forth in the speci-
fication.
Respondent contends that Heaney would have been dis-
charged immediately upon his hire, and therefore the back-
pay period should end on June 28, because it would have be-
come immediately apparent that he was not qualified to per-
form work in relation to the drill rig.
As support for this proposition, Respondent refers to the
Dockbuilder Referral Registration form completed by Heaney
in April 1994. The form asks the registrant to initial those
boxes of the form which list ‘‘skills that you possess.’’
Heaney did not initial the box listing ‘‘churn drill rig,’’
which was the type of drill rig his son sought to hire him
for. However, he did initial two other types of drill rigs, and
other types of work.
Respondent argues that by not initialing the churn drill rig
box Heaney admitted that he did not possess skills as to the
churn drill, and thus reasons that (a) he was not qualified to
perform work on the churn drill, (b) his lack of qualifications
would have become immediately apparent, and (c) he would
therefore have been summarily discharged on the first day of
his employment.
I find this argument to be without merit. The referral card
was completed nearly 4 years following the events at issue.
Heaney credibly testified that he is qualified to work on
churn drills, and has done so hundreds of times in the past.
However, he did not initial that box because he no longer
wanted to perform work on churn drills, as the work is dirty
and strenuous. Indeed, Peter Thomassen, Respondent’s offi-
cial, testified that work on the churn drill is the most de-
manding of the drill rigs in that it requires strength in carry-
ing timbers, and is a ‘‘very dirty, messy job.’’ Thomassen
conceded that an individual may not initial a particular box,
indicating that he did not wish to be referred to such work,
even if he was qualified to perform that work.
Accordingly, I cannot find, based on the referral registra-
tion form completed in 1994, that Heaney was unqualified to
perform work on the churn drill in 1990.
As set forth above, the specification sets forth December
2, 1990, as the cutoff date for backpay. Quinn, the replace-
ment employee, worked at the West 4th Street jobsite until
September 20, and was then transferred to other jobs oper-
ated by the Employer until his layoff on December 2. The
General Counsel argues, therefore, that Heaney, following
the completion of the West 4th Street job, would have been
similarly transferred to other jobs, and laid off on December
2.
Respondent argues that the proper cutoff date is September
18, 1990, when the drill rig was removed from the jobsite.
Quinn’s last day of work at the jobsite was September 20.
The General Counsel argues that it would have been likely
that Heaney would have been transferred to other jobs based
on the fact that of 21 employees employed at West 4th
Street, 16 were in fact so transferred. She argues that the five
not transferred worked only briefly for the Employer on the
West 4th Street project: Howard, 1 day; Coggins, 2 days; and
Dean, 2 days. As to the other two, Seda worked 14 days on
the project, and Secor retired in late June. Accordingly, the
General Counsel argues that since Heaney would have been
employed from June 28 until the end of the project on Sep-
tember 18, a period of 82 days, he would also have been
transferred to other jobs.
259CARPENTERS LOCAL 1456 (UNDERPINNING CONSTRUCTORS)
1 The following are the 16 employees transferred and the number
of days they worked at West 4th Street: Caldiero 63; Doncaster 1;
Evans 70; Flanagan 49; Fredericks 20; Haut 49; W. Heaney 98;
Martin 70; McCarthy 43; Minsky 1; Murphy 43; Nylund 1; Bruce
Olsen 49; Robert Olsen 70; Quinn 91; and Stewart 14.
The work records of the 16 who were transferred reveal
that they were employed on the West 4th Street job from 1
to 98 days.1
The General Counsel thus argues that the critical factor in
determining whether an employee would have been trans-
ferred was the length of time he had been employed at West
4th Street, and since Heaney would have been employed
there the same number of days as Quinn, 82, he would have
been transferred. She explains that Howard, Coggins, and
Dean were not transferred because they were employed a
maximum of only 2 days.
Respondent disputes that that is the correct standard, and
correctly notes that other employees, Doncaster and Minsky,
were transferred even though they worked only 1 day each.
Respondent further notes that Seda, who was employed for
14 days at West 4th Street, was not transferred.
Respondent proposes a different theory in order to deter-
mine whether Heaney would have been transferred to other
jobs of the Employer. It argues that only those employees
who were regular employees of the Employer were trans-
ferred to other jobs following West 4th Street, and since
Heaney was not employed at all by the Employer in 1990,
he would not have been transferred. Thus, all 16 employees
who were transferred were employed at least during the pe-
riod from January to May 1990 for the Employer with the
exception of Doncaster, who was employed for only 3 days
in March 1990; Flanagan, who was employed for 10 hours
in April; and William Heaney and Bruce Olsen, who were
not employed by the Employer at all in 1990 prior to the
West 4th Street job.
Accordingly it appears that the General Counsel’s and Re-
spondent’s theories are equally plausible but subject to ex-
ceptions. I accept neither.
In this supplemental proceeding, I am bound by the
Board’s findings, particularly as to the position Heaney was
to occupy. In this regard, I believe that the only appropriate
finding that may be made is that inasmuch as Heaney was
hired specifically to perform work on the drill rig he would
have been laid off on September 18 when the drill rig was
removed from the West 4th Street jobsite.
Thus, Heaney was hired for a particular job—to perform
work on the drill rig at the West 4th Street jobsite. As set
forth above, the Board found that (a) William Heaney de-
cided to hire his father ‘‘to perform work in relation to that
machine,’’ (b) William advised Respondent’s business agent
that he intended to hire his father for that job, and (c) Wil-
liam told the business agent that ‘‘there was a drill rig com-
ing in and I wanted to put my father on it.’’ Similarly, at
the instant hearing, the Board agent who prepared the com-
pliance specification testified that the Board found that
Heaney ‘‘would have been hired to perform a particular job.
That is to operate the drill rig on this particular job.’’
There is no evidence that Heaney was hired to perform
any work other than work in relation to the drill rig at the
West 4th Street site. It is too speculative to assume that, fol-
lowing his employment on the drill rig, the Employer would
have transferred him to other jobs. Indeed, there is no show-
ing that a drill rig of any type was used on jobs to which
other employees, including Owen Quinn, were transferred to.
The use of Owen Quinn, as the replacement employee, to
prove what hours Heaney would have worked had he been
employed to work on the drill rig was appropriate. However,
it is inappropriate to use Quinn to show that Heaney would
have been transferred because Quinn was so transferred.
Quinn was a longterm employee of the Employer, having
been employed, virtually on a full-time basis, every week
from January 1 through December 2, 1990.
In this regard, a proper comparison between him and
Heaney cannot be made. As a steady, longterm employee of
the Employer, it is likely that the Employer would have been
more inclined to retain Quinn at the West 4th Street job fol-
lowing the removal of the drill rig, and to transfer him to
its other jobs. Further, because Quinn was not hired specifi-
cally to work on the drill rig, he worked on other jobs at the
West 4th Street site both before the arrival of the rig and
after its removal.
It cannot be said, with certainty, that Heaney would have
experienced the same treatment, especially in light of the
facts that he had not been employed by the Employer at all
in 1990, and he was hired specifically to perform work on
the drill rig.
I accordingly find and conclude that the backpay period
ends on September 18, 1990, the date the drill rig was re-
moved from the West 4th Street jobsite.
III. INTERIM EARNINGS
Heaney did not work at all during the backpay period. He
testified that during the backpay period he searched for em-
ployment by visiting Respondent’s premises about three or
four times per week, waiting to be assigned to work. He also
registered at the New York State Employment Service, and
called that office about two times per week. Heaney received
unemployment compensation from the beginning of the back-
pay period until November 20.
Heaney wrote resumes to about two contractors and ad-
justers and was interviewed by one company. However, he
was not hired, Heaney sent one or two resumes in response
to newspaper advertisements. He received no interviews from
that endeavor.
Heaney testified that he did not seek work from any union
contractors in the industry because he did not have a union
card. He conceded that although he could have solicited such
employment, he would not have been hired when he revealed
that he was expelled from the Respondent. This explanation
is consistent with his experience in the unfair labor practice
case where he was refused hire by a union contractor be-
cause he was not a union member.
Respondent contends that Heaney worked during the back-
pay period. In evidence are certain W-2 forms for 1990,
which state that Heaney worked in that year, but do not give
the dates of employment. Heaney testified that he worked for
all five such companies prior to the beginning of the backpay
period in June 1990. Respondent questions Heaney’s credi-
bility in the following regard. In April 1994, Heaney submit-
ted a document to Respondent which stated that he last
worked in May 1990. However, Heaney admitted working
for Terra Drilling in 1992. He testified that he did not men-
tion that job on the form because he worked as a nonunion
employee, having been able to get the job because his son
260 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 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.
was the foreman, and he believed that the question referred
only to work performed as a union member.
Based on the above, Respondent has not met its burden of
proving any diminution of the gross backpay based on in-
terim earnings, or a willful failure to seek or hold interim
employment. Churchill’s Supermarkets, 301 NLRB 722, 725
(1991).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended2
ORDER
The Respondent, Dockbuilders Local Union No. 1456 of
the United Brotherhood of Carpenters and Joiners of Amer-
ica, AFL–CIO, New York, New York, its officers, agents,
and representatives, shall make whole Robert Heaney by the
payment to him of the amounts set forth below, less tax
withholding required by Federal and state laws. Interest shall
be paid, and shall be computed in accordance with New Ho-
rizons for the Retarded, 283 NLRB 1173 (1987).
Gross Backpay
Period/Qtr. No. ofWeeks
Hourly
Total
Pay Rate
Total
Wkg.
Hrs.
Wages
1990/2d .4 $23.66 16 $378.56
1990/3d 10.5 24.66 516 12,724.56
Total Gross Backpay: $13,103.12
Benefit Funds
Period/Qtr. Rate Hrs. of Work Amount
Welfare Fund
1990/2d $3.10 16 $49.60
1990/3d 4.04 438 1,769.52
Total: $1,819.12
Annuity Fund
1990/2d $1.85 16 $29.60
1990/3d 1.85 438 810.30
Total: $839.90
Vacation Fund
1990/2d $2.10 16 $33.60
1990/3d 2.10 438 919.80
Total: $953.40