Carrothers Construction Co., Inc.

National Labor Relations Board - Board Decisions

Mar 7, 1985

274 N.L.R.B. 762 (N.L.R.B. 1985)

762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Carrothers Construction Company, Inc. and Iron
Workers Local Union No. 10 . Case 17-CA-
8572
7 March 1985
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 23 September 1981 the National Labor Rela-
tions Board issued its Decision and Order in the
above-entitled proceeding i finding that the Re-
spondent violated Section 8(a)(5) of the Act by re-
pudiating its contract with the Union. The Board
ordered that the Respondent make whole "Bill
McGinnis, Pat McGinnis, and any persons as may
be identified" for any losses they may have suf-
fered by reason of the Respondent's failure to
honor and abide by the terms of the collective-bar-
gaining agreement. On 16 February 1984 the
United States Court of Appeals for the Tenth Cir-
cuit entered its judgment2 enforcing the Board's
Order.
A dispute having arisen over the amount of
backpay due the claimants and pursuant to a back-
pay specification and appropriate notice issued by
the Regional Director for Region 17, a hearing was
held before Administrative Law Judge Walter H.
Maloney Jr. for the purpose of determining the
amount of backpay due the discriminatees. On 4
October 1984 the judge issued the attached Second
Supplemental Decision in this proceeding. Thereaf-
ter, the Respondent filed exceptions and a support-
ing brief.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, and
conclusions3 and to adopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Carrothers
Construction Company, Inc., Ottawa, Kansas, its
officers, agents, successors, and assigns, shall take
the action set forth in the Second Supplemental
Order.
258 NLRB 175 The panel members here note that they did not par-
ticipate in the underlying unfair labor practice case
2 NLRB v Carrothers Construction Co, No 82-1026
3 In adopting the judge's backpay determination in this case , we specif-
ically disavow his characterizing as "frivolous" the Respondent's conten-
tion that no interest on backpay should be awarded here because of the
Board's asserted delays in processing the underlying unfair labor practice
case Rather , we simply conclude that this argument is lacking in merit
SECOND SUPPLEMENTAL DECISION
WALTER H MALONEY, JR, Administrative Law
Judge. This case came on for hearing before the me at
Kansas City, Kansas, on August 20, 1984, in a supple-
mental proceeding, upon a backpay specification, issued
by the Regional Director for Region 17 of the National
Labor Relations Board, which seeks backpay and interest
from the Respondent for some 35 former employees who
had been employed by the Respondent in its Iron Work-
ers' bargaining unit in 1978 and 1979. On June 1, 1979,
Administrative Law Judge David G. Heilbrun issued a
decision in which he found that the Respondent herein
violated Section 8(a)(1) and (5) of the Act by failing to
honor the terms of a collective-bargaining agreement
with the Charging Union. He directed the Respondent to
make whole all of the employees who had been under-
paid by virtue of this breach of the terms of the agree-
ment, with interest calculated in the normal way. In a
supplemental decision, issued on June 16, 1980, Judge
Heilbrun considered the same case on remand from the
Board and reaffirmed his earlier decision. On September
23, 1981, the Board affirmed the supplemental decision
with minor modifications. 258 NLRB 175 (1981). In a de-
cision, dated February 16, 1984, the United States Court
of Appeals for the Tenth Circuit affirmed the Board's
order and enforced it.
The backpay specification in this case was issued by
the Regional Director on July 23, 1984: The specification
alleges specific amounts due to 35 former employees of
the Respondent under the terms of the enforced order,
together with interest to the date of the hearing in this
supplemental proceeding. The discriminatees are named
in the specification and separate amounts for principal
and interest are set forth after each name. In its answer,
filed about July 25, 1984, Respondent admits the amounts
due to each named individual as principal. It denies any
liability for the payment of interest, although it does not
dispute the correctness of the mathematical computations
of interest contained in the specification.'
Respondent's only challenge to the backpay specifica-
tion is the contention that it should not be called upon to
pay any interest which has accrued on any backpay due
and owing because of asserted delays in the processing of
the original complaint case. Respondent attributes these
delays to the failure of the General Counsel properly to
plead the complaint case, and also to take action on the
part of the Board in condoning this delay by allowing
the General Counsel a second opportunity to litigate
issues in the first supplementary proceeding which had
not been litigated at the first hearing.
The contention is frivolous Respondent has produced
no facts and no argument in this proceeding which even
remotely impugn the handling of the complaint case by
the General Counsel or the Board. In order to do so, it
would have been required, in the course of the backpay
case, to litigate matters which had been previously liti-
gated in the complaint case, something no respondent to
a specification is privileged to do. Brown & Root, Inc.,
132 NLRB 486 (1961); United States Air Conditioning Co.,
I The General Counsel's motion to correct the transcript is granted
274 NLRB No. 109
CARROTHERS CONSTRUCTION CO 763
141 NLRB 1278 (1963), Interurban Gas Corp., 149 NLRB
576 (1964).
Even had the Respondent been successful in ignoring
standard procedures by establishing its original conten-
tion in this proceeding, such effort would have availed it
naught. In general, laches may not defeat the action of a
governmental agency in enforcing a public right. See
Southland Mfg. Corp. v. NLRB, 475 F 2d 414 (D.C. Cir.
1973). More particularly, the Supreme Court has held,
with respect to a similar contention in a backpay case,
that the consequences of delay on the part of the Board
in prosecuting a claim for backpay do not extinguish an
employer's obligation or diminish the rights of its em-
ployees. "Wronged employees are at least as much in-
jured by the Board's delay in collecting their backpay as
the wrongdoing employer. NLRB v. Rutter-Rex Mfg.
Co., 396 U S. 258 at 264 (1969). This view has been re-
cently reaffirmed. NLRB v. Iron Workers Local 480, 104
S.Ct. 2081 (1984).2
In light of the foregoing findings and conclusions and
entire record herein considered as a whole, I make the
following3
ORDER
It is ordered that the Respondent, Carrothers Con-
struction Company, Inc., Ottawa, Kansas, its officers,
agents, successors , and assigns , shall pay to D. H. Basile,
G L. Cheatham, R. K. Cox, F. I. Dulaney, S. S. Du-
laney, J A. Eaker, M. R. Finch, G. R. Franks, W. R.
Gillespie, J. T. Gomez Jr., J. E Grable, P. D Griffin, J.
J. Hadl, D. R Hancock, K. W. Hoffman Jr., R. S. Hook,
R. Horwitz, T. R. Jones, D. F. Kaub, T. J. Knoche, J.
M. Lujan, B. M. McGinnis, J. P. McGinnis, M. McLees,
L. W. Maloney, T. L. Markus, D. E. Mumma, R. C.
Penner , R. A. Reaves, J. D. Siders, J. L. Siders, W. A.
Skilling , D. L. Stottlemire, T. L. Weatherbee, and C. D.
2 After the close of the hearing, Respondent forwarded to the Region-
al Office checks made payable to the 35 discriminatees in the amounts
agreed upon as backpay principal However, its letter of transmittal pro-
hibits the Regional Director from disbursing these checks to the discri-
minatees until such time as the issue in this case respecting interest has
been resolved What purpose this act has served escapes me, since it does
not constitute a tender to the discriminatees of either principal or interest
9 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings, conclusions , and recommended
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 pur-
poses
Zamora the amounts of backpay and interest set forth
below, and in addition shall pay to the 35 named discri-
minatees interest accrued from August 20, 1984, until
such date that full payment of all amounts due to the 35
discriminatees is made, said additional interest to be com-
puted upon the backpay figures set forth in the backpay
specification and computed in the same manner as inter-
est that accrued prior to August 20, 1984, was calculat-
ed, less FICA, state, local, and Federal income taxes
which are required to be deducted:
NAME BA CKPA Y
INTEREST
THROUGH
AUGUST
20, 1984
D H Basile $ 101.25 $ 72.69
G L Cheatham 121 50 87 50
R K Cox 1,095 55 790 52
F. I. Dulaney 299.70 217 73
S S Dulaney 4,527.18 3,110.40
J. A Eaker 192.38 136.68
M R Finch 38 80 26 18
G. R. Franks 189.15 126.85
W R Gillespie 116.40 78.57
J T Gomez, Jr. 106.90 75.71
J. E Grable 760 98 509.85
P D Griffin 109.35 78.76
M. J. Hadl 3,691.18 2,432.09
D R Hancock 8.10 5.95
K W Hoffman, Jr. 1,148.18 823.80
R S Hook 24.25 16.00
R Horwitz 64 80 45.66
T R Jones 3240 22.32
D F Kaub 2910 19.65
T. J Knoche 143.78 103 55
J. M. Lulan 8.10 5 83
B M. McGinnis 317.93 231 13
J P McGinnis 556 88 396.83
M McKees 38 80 26.18
L W Maloney 8.10 5 83
T L Markus 12 15 8 75
D E. Mumma 2,62805 1,832.35
R. C. Penner 36 45 26.22
R. A. Reaves 508 28 364.56
J D Siders 2,19308 1,521 95
J. L. Siders 194.40 136 61
W A Skilling 1,081 55 714 21
D L Stottlemire 782 60 529.91
T L Weatherbee 202.50 145 84
C. D Zamora 10 13 744