Castleman and Bates, Inc.

National Labor Relations Board - Board Decisions

Apr 14, 1977

228 N.L.R.B. 1504 (N.L.R.B. 1977)

1504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Castleman and Bates , Inc. and Robert J. Shillinsky,
Ernest W . Lagasse, Jr., and Francis I. Redman.
Local 17, Sheet Metal Workers International Associa-
tion, AFL-CIO and Robert J . Shillinsky, Ernest
W. Lagasse , Jr., and Francis I. Redman . Cases 1-
CA-7879-1, 1-CA-7879-2, 1-CA-7879-3, 1-CB-
1887-1, 1-CB-1887-2, and 1-CB-1887-3
April 14, 1977
SECOND SUPPLEMENTAL DECISION
AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND JENKINS
On October 18, 1976, Administrative Law Judge
Sidney J. Barban issued the attached Decision on
Remand in this proceeding. Thereafter, the Charging
Parties filed exceptions and a supporting brief.'
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,2 and
conclusions of the Administrative Law Judge and to
adopt his recommended Supplemental Order.
On November 28, 1972, the Board issued a
Decision and Order in the above-named proceeding
in which it found that Respondent Union violated
Section 8(b)(1)(A) and (2) of the Act by causing
Respondent Employer to discharge the Charging
Parties, and that Respondent Employer violated
Section 8(a)(3) and (1) of the Act by so discharging
the Charging Parties.3 Respondents were ordered,
inter alia, to jointly and severally make the Charging
Parties whole for loss of wages "between May 8
[1971] and such time, if any, as their employment
with [Respondent Employer] would have been
terminated absent the discrimination herein found."
The instant backpay proceeding concerns the subse-
quent dispute over the proper termination date of the
backpay period for each Charging Party.
During the compliance stage, Respondent Employ-
er and the Regional Office entered into an agree-
ment, which was acceptable to Respondent Union,
providing that the backpay period for the Charging
Parties should terminate as of September 7, 1971.
The Charging Parties, protesting the terms of the
' The Charging Parties' request for oral argument is hereby denied as the
record , including exceptions and briefs , adequately presents the issues and
positions of the parties
2 The Charging Parties have excepted to certain credibility findings made
by the Administrative Law Judge It is the Board's established policy not to
overrule an Administrative Law Judge 's resolutions with respect to
228 NLRB No. 199
agreement, contended that the backpay period
should extend to February 7, 1972, whereupon the
Regional Director issued a backpay specification
alleging that the backpay period should terminate on
February 15, 1972.
In his first decision, issued on February 6, 1976, the
Administrative Law Judge determined that the
backpay period should terminate on September 7,
1971, as provided in the compliance agreement. On
June 14, 1976, the Board issued a Supplemental
Decision and Order4 remanding the case to the
Administrative Law Judge for additional testimony
and consideration of the objective evidence present-
ed at the hearing since, in the Board's view, the
Administrative Law Judge improperly relied on the
provisions of the compliance agreement in reaching
his decision without evaluating the objective evi-
dence.
In the remanded proceeding, the Administrative
Law Judge invited the parties to submit additional
evidence and briefs. The Charging Parties, who
submitted the only additional evidence, reported
their interim earnings since February 15, 1972. The
only supplemental brief was filed by the General
Counsel who submitted a copy of the brief he had
previously filed with the Administrative Law Judge.
In his Decision on Remand, the Administrative Law
Judge concluded that the objective evidence in the
record indicated that the Charging Parties would
have been terminated at some point during the week
of September 5, 1971, when the Employer's work
force declined to what it had been prior to the week
of April 28, 1971, when the Charging Parties were
hired. The record indicated that, by the week of
September 5, the employee complement in the shop
in which the Charging Parties worked declined to
two regular longtime employees, the normal employ-
ee complement for shopwork, and that in general the
work force had steadily declined. Furthermore, the
employees whom the Charging Parties claimed to be
their replacements performed primarily field work
rather than the shopwork for which the Charging
Parties were hired. Thus, the duration of their
employment was not the appropriate measure of the
Charging Parties' backpay period. Since it was
impossible to ascertain the specific day during the
week beginning on September 5, 1971, on which the
Charging Parties would have been terminated for
economic reasons, the Administrative Law Judge
recommended that the termination date be Septem-
ber 7, 1971. We find that the Administrative Law
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect Standard Dry Wall Products,
Inc, 91 NLRB 544 (1950), enfd 188 F 2d 362 (CA 3, 1951) We have
carefully examined the record and find no basis for reversing his findings.
3 200 NLRB 477 (1973)
4 224 NLRB 785
CASTLEMAN & BATES, INC. 1505
Judge has carefully assessed the objective evidence in
the record and we agree with his factual findings.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Castleman and
Bates, Inc., East Providence, Rhode Island, its
officers, agents, successors, and assigns, and Respon-
dent Local 17, Sheet Metal Workers International
Association, AFL-CIO, Providence, Rhode Island,
its officers, agents, and representatives, shall take the
action set forth in said recommended Order.
DECISION ON REMAND
STATEMENT OF THE CASE
SIDNEY J. BA "AN, Administrative Law Judge: I original-
ly heard this matter at Providence , Rhode Island, on
October 6, 7, and 8, 1975, upon a backpay specification
issued by the Regional Director for Region I of the
National Labor Relations Board on July 22, 1975. My
Decision on the backpay specification issued on February
6, 1976 . The Board 's Decision remanding the matter for
further proceedings issued on June 14, 1976.
The Prior Proceedings
The Board , on November 28, 1972 , issued a Decision
and Order in this proceeding (200 NLRB 477) finding, inter
alia, that Respondent Local 17, Sheet Metal Workers
International Association , AFL-CIO (hereinafter called
the Union) caused Respondent Castleman and Bates, Inc.
(hereinafter called the Company), to discharge Robert J.
Shillinsky , Ernest W. Lagasse , Jr., and Francis I. Redman
(collectively the Charging Parties), in violation of Section
8(b)(1)(A) and (2) of the Act, and that the Company, by
discharging the Charging Parties in the circumstances,
violated Section 8(a)(1) and (3 ) of the Act . The Board
ordered Respondents , inter alia, to jointly and severally
make the Charging Parties whole for their losses resulting
from the unfair labor practices . As discussed in more detail
hereinafter , the Board 's Order required the Respondents to
make the Charging Parties whole for loss of wages
"between May 8 and such time , if any, as their employment
with [the Company ] would have been terminated absent
the discrimination herein found ." The parties are in dispute
as to when the Charging Parties would have been
terminated absent the discrimination against them.
In negotiations with the Company for compliance with
the Board's Order , agents of the Regional Office of the
Board agreed that the backpay period for the Charging
Parties , beginning on May 8 , 1971, should terminate on
September 7, 1971, and computed the amount of backpay
due for that period. The Union assented to the backpay
amounts agreed by the Company and the Regional Office,
and the Company and the Union each paid in 50 percent of
the amount agreed , which was distributed to the Charging
Parties . Charging Parties, who were not parties to the
compliance agreement between the Regional Office and
the Respondents , protested to the Regional Office that the
backpay period extended to February 7, 1972.
Thereafter , on July 22 , 1975, as noted , the Regional
Director for Region I issued a backpay specification, as
amended at the hearing , alleging that the proper date for
termination of the backpay period was February 15, 1972.
In my Decision on the backpay specification , I found that
the proper termination date for the backpay period was
September 7, 1971.
The Board , in its Supplemental Decision and Order,
issued on June 14, 1976 (224 NLRB 785), stated:
The main issue determined by the Administrative
Law Judge was the proper termination date of the
backpay period for the Charging Parties under the
Board's Decision and Order . In arriving at September
7, 1971, as the date upon which Respondents ' backpay
liability terminated , the Administrative Law Judge
found that he was unable to determine with absolute
certainty when each of the three Charging Parties
would have been terminated absent discrimination. He
therefore held that the Respondents and agents of the
Board, after reviewing all the circumstances, agreed
upon September 7, 1971, as the termination point of the
backpay period. The Administrative Law Judge further
held that where such agreements have been made they
should not be overturned unless it can be shown that
they were , or have become , repugnant to the purposes
of the Act. Since neither the General Counsel nor the
Charging Parties showed that the agreed -upon date was
clearly wrong or inconsistent with the purposes and
policies [of the Act], he accepted the September 7 date.
We believe that the standard relied on by the Adminis-
trative Law Judge is clearly improper . The record
evidence adduced at the hearing shows that none of the
parties contended that September 7, 1971, was the
proper termination date . Rather than basing his
decision on the objective evidence as presented at the
hearing, the Administrative Law Judge placed principal
reliance on the stipulation of compliance entered into
by the Respondent Employer and the General Counsel.
This reliance so colored the Administrative Law
Judge 's determination that he failed to evaluate other
objective evidence in order to arrive at a proper
formul. for the termination date of backpay . Accord-
ingly, we shall remand this proceeding to [the Adminis-
trative Law Judge] to reevaluate the record evidence or
take additional testimony if need be in order to
determine the proper termination date of the backpay
period for each of the Charging Parties and the amount
due each of them in light of our determination herein.
Additional Evidence
Since July 2, 1976 (all dates in 1976 in this section), I
have engaged in correspondence with the parties to this
proceeding with respect to adducing additional evidence
on the issue remanded to me by the Board. I am issuing a
1506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
separate order identifying the various letters and receiving
them into the formal file.
On July 7, counsel for the Union replied that it did not
believe it necessary to reopen the record to establish the
proper termination date of the backpay period, but stated
that if the backpay period were extended beyond that
sought in the backpay specification, or beyond that set for
the Company, the Union desired the record reopened to
adduce evidence limiting its liability for that period. In a
response, I rejected the Union's conditional request.
On July 9, 1976, counsel for the Charging Parties advised
that the only evidence he would desire to adduce related to
the interim earnings of the Charging Parties since February
15, 1972, and certain documents which have been included
in the record as Administrative Law Judge's Exhibits 1-5.
On July 13, the General Counsel, and on July 30, the
Company, responded that they did not think it necessary,
or did not desire to adduce further evidence in this matter.
In reply to my inquiry as to the availability of certain
records which I indicated might be useful, counsel for the
Company responded, "please be advised that the respon-
dent company has been out of business since December
1975. In the process of moving . . . the records were
misplaced and we have not been able to locate them since
that time."
On August 9, I advised the parties that I would not
reopen the record in this matter. Time for filing supplemen-
tal briefs was set at August 30. The only brief received was
that of counsel for the Charging Parties, which was a copy
of his brief to the Board in support of his exceptions to my
original Decision. It has been duly considered.
The Positions of the Parties
In order to understand the positions of the parties as to
the termination date of the backpay period, brief reference
must be made to the Board's Decision on the merits in this
proceeding, and to its discussion of the remedy for the
violations found.
A. The Board's Original Decision and Order
The Charging Parties were hired by the Company on
April 28, 1971, to do work in the Company's shop
operations. They were not members of the Union. They
were discharged on May 7, 1971. The Company hired three
union members (Francis Riley, Chester Aldrich, and Paul
Homer) just before the Charging Parties were discharged,
and two more (Paul Hassell and Hugh Moore) within a
week after they were discharged. The Board found that the
Charging Parties were discharged as a result of pressure
from the Union which insisted on the placement of its
unemployed members. The Company's contention that the
Charging Parties were discharged solely because they were
not qualified or competent to perform the work available
i There were clearly three union members hired between the time the
Charging Parties were hired and the time they were discharged, and two
more union members hired 5 days after the discharge As will be noted, a
number of such discrepancies in numbers add to the difficulty herein.
Y It may be noted that the records introduced in this proceeding show
only one employee, Hugh Moore, employed after the Charging Parties, was
still employed at the time of the original hearing on the merits lam aware that
an exhibit received in this proceeding (Charging Parties Exh 1), said to have
was discredited. It was found that "[i]n effect, the three
nonunion Charging Parties were replaced by four union
members [possibly referring to Aldrich, Homer, Hassell,
and Moore] who had just become unemployed."' In
discussing the remedy for the unfair labor practices, as has
been noted, the Board's Decision states that backpay shall
run from the date of the discharge of the Charging Parties
until "such time, if any, as their employment with [the
Company] would have been terminated absent the discrim-
ination...." (200 NLRB at 484.) In the following
paragraph, there appears this language, particularly relied
on by General Counsel: "As of the time of the hearing
[which ran from February 10 through February 12, 19721,
there were in [the Company's] employ two employees who
had been hired after the Charging Parties. Thus, it is
reasonable to assume that, absent the discriminatory
discharges, at least two of the Charging Parties would have
continued in [the Company's] employ. Accordingly, [the
Company] will be ordered to offer the Charging Parties
reinstatement to the extent that there would have been jobs
available absent the discrimination." 2
B. The Contentions
General Counsel's basis for asserting February 15, 1972,
as the termination date for the backpay period is the last-
quoted statement from the Board's Decision, which he
claims constitutes a finding that two of the Charging
Parties would have still been employed to February 15,
1972. He does not attempt to explain, nor does the record
show, for which two of the three Charging Parties the
backpay period would end on that date, or what would be
the appropriate date for the third Charging Party. (If, as I
am inclined to believe, only one such subsequently
employed employee was still working at the time of the
original hearing, the problem is further compounded.) Nor
does General Counsel adequately explain why, after the
Regional Office agreed with the Company and the Union
that September 7, 1971, was the appropriate date to end the
backpay period for all three Charging Parties, the Regional
Director later issued a backpay specification claiming the
later date. However, the record indicates that this was done
to afford the Charging Parties a hearing on their protest.
The date selected, February 15, 1972, obviously has no
relation to the Board's instruction that backpay should
cease as of the time the Charging Parties would have been
terminated absent the discrimination against them.
In my original decision I rejected General Counsel's
assertion that February 15, 1972, should be the terminal
date of the backpay period. The part of the Board's
Decision he relies on was clearly intended to apply to the
remedy of reinstatement, not to backpay; the language
relied on is not a certain or definite finding; 3 and the date
he relies on does not meet the criteria set forth in the
Board's backpay description, and is impossible to apply
been received in the original hearing , shows three such employees It seems
apparent that two of these, Crowley and John, were employed outside of the
unit involved , John as a clerical and Crowley as a truckdnver
3 It is noted that though the first sentence states that "it is reasonable to
assume" that at least two of the Charging Parties would have been employed
at the time of the hearing, if they had not been discriminated against, the
next sentence, somewhat inconsistently , only orders that Charging Parties
CASTLEMAN
rationally in the circumstances . I am still of the opinion
that the date urged by General Counsel is not the proper
date for termination of the backpay obligation.
As has been noted , it appears that the Charging Parties
originally took the position that the terminal date for
backpay should be February 7, 1972. At the hearing,
Charging Parties first joined General Counsel in urging
February 15, 1972, as the proper termination date. In his
original brief, counsel for the Charging Parties contended
that the backpay period for Shillinsky should terminate on
January 11, 1973, the occasion on which the Company
offered Shillinsky reemployment ; that the backpay period
for Redman should terminate on October 30, 1972,
"because . . . it is more than likely that Hassell would have
continued beyond February 15, 1972 , if he had not left of
his own volition"; 4 and that the backpay period for
Lagasse should terminate as of November 28, 1971,
"because records indicate that the third employee who
replaced him was laid off on November 28, 1971 .115 These
contentions were rejected in the original decision on the
backpay specification as being without merit . I continue to
consider these contentions without merit as discussed in
more detail hereinafter.
The Company and the Union took alternate positions
with respect to the appropriate termination date for
backpay. The Company contended first that the Charging
Parties were employed as helpers in the shop , were not
qualified journeymen and could not be used in the field, on
jobsites , without close supervision ; that the Company laid
off two other employees (Farnas and Lassonde ) of a like
character on May 14, 1971 (5 days after the discharge of
the Charging Parties), and would have laid off the
Charging Parties at the same time if they had not
previously been discharged . This contention was rejected
because this contention would , I thought , have required
me, in effect , to reverse basic findings made in the Board's
Decision on the merits , and because the contention was
inconsistent with the Company 's agreement with the Board
that September 7, 1971, should be the backpay termination
date . However , without relying on the compliance stipula-
tion , as I have been instructed by the Board, I am less
confident of the point .6 Nevertheless , it is a defense that
was or could have been litigated in the original hearing on
the merits , and I continue to believe that the point was
decided against the Company in the Board's original
Decision and Order . The Company 's alternative position
was that the proper cutoff date was the date the Regional
Office had originally agreed on after studying the Compa-
ny's payrolls and discussing the personnel with company
management . This is the position with which I agreed in
my original decision.
be offered reinstatement "to the extent that there would have been jobs
available absent the discrimination "
4 Hassell , who was hired 5 days after the Charging Parties were
discharged , quit on January 21 , 1972, and was later rehired in January 1973
The reference to October 30 as Redman's cutoff date is not clear
5 Counsel does not specify " the third employee" referred to Aldrich,
hired on May 4, 1971, was terminated on November 28, 1971 Riley, hired
on April 29, 1971, was terminated on November 28, 1971 However , Homer,
one of the employees who may have replaced the Charging Parties , was let
go on September 1, 1971.
6 Thus , inter ala, the summary of the Company' s payroll , discussed in
& BATES , INC. 1507
The Union's position as to the cutoff date coincided with
that of the Company with certain alternative contentions
that are unnecessary to consider herein.
The Objective Evidence
The chief item of objective evidence in the record, which
was referred to in my original decision , is a summary of the
Company's payroll records for the years 1971 and 1972,
showing the dates of employment of all the employees in
the unit with which we are here concerned. These show
significant trends in the Company's employment . As noted
in my first decision , the numbers of employees built up to a
total 12 in the week ending April 24 , 1971 (all dates in 1971
in this section unless otherwise noted). During the next
week , ending April 31, when the Charging Parties were
hired , the total was 16 employees . The following week
when the Charging Parties were discharged , the total was
18 employees . The week following , when Farrias and
Lassonde were let go , the total dropped to 17 employees.
From that point on, until the week of September 5-11, the
total complement of employees never rose above a total of
16, and in 4 weeks dropped to 15. During the week of
September 5-11, the employment total dropped to 13, and
with one adjustment noted below never went above a total
of 13 thereafter .? The employment total for the week of
February 13-19, 1972, in which General Counsel contends
backpay should be cut off, was seven.
These figures show that, after Farrias and Lassonde were
let go on May 14, the next significant change in the
Company's employee complement occurred during the
week of September 5-11. During this week , the total
employee complement dropped to 13, approximately what
it had been before the Charging Parties were hired , and, as
previously discussed, the employee complement as adjust-
ed never thereafter rose above that figure . I have no doubt
that the Charging Parties would have been let go at that
time if they had not been laid off prior to that time. The
record shows that after that time , for the most part, only
two regular long-time employees were used in the shop,
which was the normal complement for shopwork.
Charging Parties argue , in essence, that the Charging
Parties would have been retained as long as their
replacements . These are not easy to specifically identify,
but are three of the following : Hassell , Aldrich , Riley,
Homer, and Moore. Of these Homer was terminated on
September 1,8 while the others continued working for
various periods thereafter. However , each of the remaining
(Riley, Hassell, Aldrich, and Moore) were competent, or
very competent journeymen , who worked exclusively or
mostly in the field during the time involved . The Charging
Parties were employed to do only shopwork . I credit
more detail below, shows that after the layoff of Farnas and Lassonde the
number of employees employed never again reached the totals of the 2
weeks when the Charging Parties and Lassonde and Farnas were employed
together This indicates to me that the five helpers were not replaced and
thus the Company might not have had further need of them
7 From September I I to November 1, Thomas Doyle worked 6 weeks
and Edward Murphy 4 weeks, in the field, rather than the shop, and
apparently were let go for lack of work I have excluded these very short
time workers from the analysis being made.
8 Another sheet metal worker, Place, employed in the field, was also
terminated on September 1.
1508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company Manager Dumas' testimony to the effect that the
Charging Parties did not have the competence of the other
men in field work, and his assertion that the Company did
not lay off on the basis of seniority, but on the competence
of the available workers to do the work available. There is
no evidence in the record to the contrary, and that layoff
policy is fairly common in the construction industry. Nor
does this finding conflict with previous findings which
related only to the competence of the Charging Parties to
do shopwork. In these circumstances, I find that the
retention of Riley, Aldrich, Hassell, and Moore does not
indicate that the Company would have retained the
Charging Parties beyond the week of September 5-11. It is
impossible for me to ascertain on what date in that week
the Charging Parties would have been let go. I therefore
accept the date that the General Counsel and the
Respondents agreed to, September 7, 1971, as the terminal
date of the backpay period.
For the reasons set forth in my original Decision in this
matter, I hereby recommend the following:
ORDER
Respondent Castleman and Bates, Inc., and their
successors and assigns, and Respondent Local 17, Sheet
Metal Workers International Association, AFL-CIO, and
their officers, agents, and representatives, shall jointly and
severally pay to each of the individuals named below the
amounts set opposite their names, with interest thereon at
the rate of 6 percent per annum computed in accordance
with Isis Plumbing & Heating Co., 138 NLRB 716 (1962):
Robert J. Shillmsky, $492.80
Francis I. Redman, $514.36
Ernest W. Lagasse, Jr., $531.30