Center Service System Division

National Labor Relations Board - Administrative Judge Opinions

Feb 17, 2010

07-CA-046490 (N.L.R.B. Feb. 17, 2010)

JD–09–10
Burton, MI
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
CENTER CONSTRUCTION CO., INC., d/b/a
CENTER SERVICE SYSTEM DIVISION
and Cases 7–CA–46490
7–CA–46696
LOCAL 370, UNITED ASSOCIATION OF JOURNEYMEN 7–CA–46697
AND APPRENTICES OF THE PLUMBING AND PIPE
FITTING INDUSTRY OF THE UNITED STATES AND
CANADA, AFL–CIO
Sarah Pring Karpinen, Esq., (Region 7, NLRB)
of Detroit, MI, for the General Counsel.
Tinamarie Pappas, Esq., of Ann Arbor, MI,
for the Charging Party.
Hiram S. Grossman, Esq., (Daniel & Grossman, PC)
of Flint, MI, for the Respondent.
SUPPLEMENTAL DECISION
Statement of the Case
RICHARD A. SCULLY, Administrative Law Judge. On August 27, 2005, the National
Labor Relations Board (the Board) issued a Decision and Order (345 NLRB 729) in which it
found that Center Construction Co., Inc., d/b/a Center Service System Division (Respondent )
had discriminated against Wayne Rose and 12 applicants for a journeyman plumber position in
violation of the National Labor Relations Act (the Act).1 The Board ordered Respondent to offer
Rose full reinstatement to his former job, or if that job no longer existed, to a substantially
equivalent position and to make him whole for any loss of earnings and other benefits suffered
as a result of its discrimination against him. It also ordered Respondent to offer one of the 12
job applicants full instatement to the journeyman plumber position, or if that job no longer
existed, to a substantially equivalent position and to make him whole for any loss of earnings
and other benefits suffered as a result of its discrimination against him. Scott Mobilo was
selected by Respondent as the applicant it would have hired. The parties being unable to agree
on the amount of backpay due under the terms of the Board’s Order, the Regional Director for
Region 7 issued a Backpay Specification, dated January 30, 2009, and an Amended Backpay
Specification, dated April 13, 2009.

1 On April 3, 2007, the United States Court of Appeals for the Sixth Circuit entered judgment
enforcing the Board’s Order. Center Construction Co., Inc. v NLRB, 482 F.3d 425.
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A hearing on the Amended Backpay Specification was held in Flint, Michigan on June 16
through 18, 2009. Briefs submitted on behalf of the parties have been given due consideration.
Upon the entire record and my observation of the demeanor of the witnesses, I make the
following
Findings of Fact
At all times material, the Respondent was engaged in the commercial and residential
construction business, which includes the sales, installation, repair and service of heating, air
conditioning, and plumbing systems. Wayne Rose is a journeyman plumber who was employed
by Respondent from January 2003 until he was unlawfully terminated on September 29, 2003.
Rose credibly testified that when he was hired he was told he would be doing all phases of
plumbing work. During the approximately nine months of his employment, he did plumbing work
on new construction projects and renovations and performed plumbing service and repair work,
including, installation of water heaters and boilers. After Rose was terminated, Respondent
hired plumber Bradley Liddell to replace him and subsequently hired another plumber, Jeff
Blasdell, both of whom performed the same types of plumbing installation and service work that
Rose had performed. Since then Respondent has hired other employees but has not offered
employment to Rose or Mobilo.
The General Counsel has calculated the backpay due Rose and Mobilo according to the
Board’s standard formula which uses the amount the employees would have earned but for the
discrimination against them, minus any interim earnings. In the case of Rose, it is asserted that
the backpay period commences on September 29, 2003, the date he was terminated and
continues until Respondent makes an unconditional offer to reinstate him. The calculation is
based on the number of hours worked by Liddell, the plumber hired to replace Rose, from
September 29, 2003, until September 3, 2005, when Liddell resigned his position. Thereafter, it
is based on the average hours worked by Respondent’s service technicians, who it is asserted
were doing plumbing work that Rose would have done, multiplied by the wage rate of Liddell as
adjusted to reflect the annual increases given to Respondent’s service technicians. In the case
of Mobilo, the alleged backpay period commences on October 5, 2003, the date that Blasdell
was hired, and continues until Respondent makes an unconditional offer of instatement to him.
Similar to the calculation for Rose, since Blasdell resigned on August 15, 2004, from that date
forward the General Counsel used the average hours worked by Respondent’s service
technicians multiplied by Blasdell’s wage rate as adjusted to reflect the annual increases given
the service technicians.
Although Respondent raised numerous objections and alleged affirmative defenses in its
answer to the backpay specification, it has pursued only three in its post-hearing brief.
Respondent contends that in determining the backpay owed Rose and Mobilo the General
Counsel should not have considered work performed by its service technicians and that its back
pay obligation to Rose and Mobilo ended when the plumbers who had replaced them, Liddell
and Blasdell, quit their employment with it due to lack of work and were not replaced. This was
August 2004 in the case of Mobilo and September 2005 in the case of Rose. It further contends
that if backpay is awarded for periods after those dates the General Counsel’s computation is
inflated because it includes done by service technicians that neither Rose nor Mobilo would
have performed. It also contends that in computing interim earnings for Rose and Mobilo it was
unfair for the General Counsel not to take into consideration all of the overtime hours they
worked.
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Analysis and Conclusions
A backpay order is designed to vindicate the policies of the Act by making the
employees whole for losses suffered on account of the unfair labor practices. Nathanson v.
NLRB, 344 U.S. 25, 27 (1952). When loss of employment is caused by a violation of the Act,
the finding of an unfair labor practice is presumptive proof that some backpay is owed.
St. George Warehouse, 351 NLRB 961, 963 (2007); Weldun International, 340 NLRB 666, 671
(2003); Beverly California Corp., 329 NLRB 977, 978 (1999). It is the General Counsel’s burden
to show the amount of gross backpay due each claimant. The burden then shifts to the
respondent to negate or mitigate its liability. Weldun International, supra; Hansen Bros.
Enterprises, 313 NLRB 599, 600 (1993). The General Counsel is allowed wide discretion in
selecting a formula to determine the backpay due. A formula which closely approximates what
the claimants would have earned had they not been discriminated against is acceptable if it is
not unreasonable or arbitrary under the circumstances. Met Food, 337 NLRB 109, 110 (2001);
La Favorita, Inc., 318 NLRB 902, 903 (1995). A backpay claimant should receive the benefit of
any doubt rather than a respondent, the wrongdoer responsible for the uncertainty and against
whom any uncertainty must be resolved. Alaska Pulp Corp., 326 NLRB 522, 523 (1998).
Here, the backpay formula employed by the General Counsel initially used the hours
worked by plumbers employed by the Respondent, but once there were no longer any plumbers
working for it, the hours worked by service technicians were used. Moreover, the General
Counsel asserts that the backpay period for Rose and Mobilo continues to run because
Respondent has never made an offer of employment to either. The issue is whether under the
circumstances this formula was reasonable and appropriate. Respondent asserts that it was
not because the backpay period ended when its only journeymen plumbers quit their
employment due to lack of work and were not replaced.
The Respondent relies on cases in which the Board has held that backpay period had
ended where the employer established that the discriminatees would not have been employed
beyond a certain date. These cases involved situations, such as, where the employer
established that discriminatees would have been laid off for legitimate economic reasons,
including, lack of work, cessation of the employer’s business operations, and a significant
change in the nature of the employer’s business operations which resulted in a reduction of the
number of employees required. It contends that, after plumbers Liddell and Blasdell left its
employ, it was no longer doing any new construction work and that is the only work Rose and
Mobilo could have done for it.
I find that Respondent has not established that there was such a significant change in its
business operations in 2004 and 2005 as to relieve it of liability for backpay to Rose and Mobilo
or that they would have been laid off due to lack of work. On the contrary, the evidence shows
that even today there is little that is different in Respondent’s overall business than was the case
before it engaged in the unlawful discrimination against them. On its current website,
Respondent states that since 1967 it has been “a full service heating, cooling, plumbing and
commercial refrigeration company.” Its current business cards describe it as doing commercial
and residential plumbing, heating, cooling and refrigeration and it is listed in the current
telephone book Yellow Pages under “Plumbing Contractors.” Respondent’s vice president
Kristina Eagleson testified that after 2005, although the company no longer had separate new
construction plumbing and heating departments, it still continues to bid on new construction
plumbing jobs and on plumbing remodeling jobs and still does plumbing service work. As she
put it, “we haven’t changed anything besides we don’t have two departments because the
economy doesn’t bear it.” In other words, while the volume of work may have decreased
somewhat, there was no essential change in the types of work Respondent has been
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performing.
The evidence also does not support the Respondent’s claim that the only person
employed by it since Liddell and Blasdell left its employ to have done plumbing work for it was
Kristina Eagleson. Union Business Agent Mark Johnson’s credible and uncontradicted
testimony shows that in the fall of 2007 he met with Kristina and company President Robert
Eagleson who told him that nine of Respondent’s ten employees were performing plumbing
work, including, installation of water heaters and bathroom remodels and that it was interested
in signing Local 370’s current collective-bargaining agreement. He had a similar discussion with
Respondent’s representatives in early 2009. Phillip Murphy, who is currently employed by
Respondent as a service technician, described the work he has regularly performed for the past
ten years as including “lots of different types of plumbing repairs, sinks, sump pumps, water
heater change-outs, water heater repair and just about anything that comes up along the repair
lines.” He said that almost every time he replaced a water heater it required new piping and
replacement of a dielectric union.
Johnson, who is an licensed plumber with twenty years of experience in that field and
has served on a committee that drafted the Michigan plumbing statute, testified that changing
and reconfiguring piping and replacement of dielectric unions involves plumbing work as defined
in that statute. Such work requires a plumbing permit and that the work be performed by a
licensed plumber, as does anything beyond a minor repair to a plumbing system. Johnson
testified that the work shown on many of the Respondent’s service sheets during the backpay
period falls within the definition of plumbing work in the state statute. The evidence clearly
establishes that Rose and Mobilo who are journeyman plumbers were qualified to do such work.
Respondent’s argument is that when it employed plumbers they were part of its new
construction plumbing department which no longer exists. They performed only construction
and major home remodeling work and its service technicians, not its plumbers, always
performed the installation, service, and repair work described by service technician Murphy,
notwithstanding, the fact that such work may fall within the statutory definition of plumbing work.
Thus, it contends that since it no longer has a new construction plumbing department, it has no
jobs for Rose and Mobilo and the backpay period ended when the last plumber left its employ.
First, this argument is not supported by the evidence. Rose credibly testified that when
he interviewed for the job with Respondent he was told it involved “all phases” of plumbing work,
not just construction. He said that during the approximately nine months he worked for
Respondent he performed not only new plumbing construction work but plumbing service work
at commercial and residential sites as well. The Center Service truck he drove had supplies for
use in installation and service work and he was given a cell phone to use to request parts when
needed on a service call. At times, he was sent to perform service jobs and was supervised by
the service department manager Lonnie Katz. He filled out service ticket and collected money
for the service calls he made just as Respondent’s service technicians did. Some of the service
calls he recalled involved the installation or replacement of boilers, well and sump pumps, repair
or replacement of water heaters, repairing leaks, replacing pipes, and clearing drains. The
Respondent’s records corroborate his testimony that he performed a substantial amount of
service as opposed to construction work while he was employed by it. Those records do not
establish, as Respondent claims, that the only plumbing service and repair work Rose
performed involved warranty work related to new construction or major remodeling jobs. There
is also no evidence that plumbers Liddell and Blasdell did not perform the same kinds of jobs
that Rose did while employed by the Respondent.
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Second, and more important, Respondent’s argument ignores the fact that the Board’s
Order, as enforced by the Court of Appeals, requires that if the positions to which Rose and
Mobilo were ordered to be offered reinstatement and instatement, respectively, no longer exist,
they must be offered “substantially equivalent positions.” The evidence shows that throughout
the backpay period designated in the backpay specification Respondent had numerous
“substantially equivalent positions” involving plumbing installation, service, and repair work that
Rose and Mobilo were qualified to perform.2 Accordingly, I find that Respondent has not
established that its business had changed to such a degree that it was no longer doing
plumbing work similar to that performed by Rose before the discrimination against him and has
not established that that it did not have “substantially equivalent positions” that Rose and Mobilo
could have performed at all times during the backpay period. Consequently, their backpay has
not been tolled. Fluor Daniel, Inc., 351 NLRB 103, 104 (2007).3
Respondent also contends that the General Counsel should not have used the hours
worked by its service technicians in computing the backpay due after the plumbers Liddell and
Blasdell left its employ because only a small percentage of the work they performed involved
plumbing work that Rose and Mobilo would have performed. As noted above, the General
Counsel is allowed wide discretion in selecting a formula to determine the amount of backpay
due. That formula is based on evidence that its service technicians performed work that Rose
and Mobilo could have performed. Again, Respondent’s argument is based on its erroneous
premise that (1) Rose and Mobilo would only have done new construction and remodeling work;
and (2) that it had very little of that work, as evidenced by the fact that Liddell and Blasdell quit
its employ due to lack of work. First, there is no credible evidence, testimonial or documentary,
to support the hearsay assertion that Liddell and Blasdell quit due to lack of work. Moreover,
Respondent has not proved its assertion that the plumbing work that Rose and Mobilo would
have done constituted only a small percentage of its overall work. Nor, has it shown that there
was not enough work to keep Rose and Mobilo employed throughout the backpay period. As
counsel for the General Counsel points out, Respondent failed to present any evidence showing
the percentages of plumbing and non-plumbing work it performed. Such evidence would
presumably be in its own records and is failure to produce it warrants an inference that it would
not have supported Respondent’s position. Rather than producing that evidence, it seeks to
fault the General Counsel for failing to reconstruct with precision the percentages of such work
from its records. In fact, the General Counsel has made a reasonable effort to reconstruct and
approximate the economic situation of the discriminatees, but for Respondent’s illegal
discrimination against them. That is all that Board law requires. Respondent has failed to show
that the method used to compute backpay was unreasonable or arbitrary or to establish facts
that negate or mitigate its liability.
Finally, Respondent contends that the General Counsel erred in computing interim
earnings for Rose and Mobilo by not using all of the overtime hours they worked but only the

2 I see no merit in Respondent’s claims that because it may perform work under permits
obtained under its mechanical contractors license, which does not require a licensed plumber, it
was excused from offering employment to Rose and Mobilo. This has no bearing on whether or
not it had “substantially equivalent positions” positions available.
3 In connection with its argument on this issue, Respondent’s post-hearing brief refers to the
Board’s decisions in Toering Electric Co., 351 NLRB 225 (2007) and Oil Capitol Sheet Metal,
Inc., 349 NLRB 1348 (2007). These are salting cases which it apparently claims should be
applicable to the backpay claim of Mobilo. I do not agree. When it failed to raise these issues
in its answer or at the hearing, they were waived. Moreover, it has failed to establish that
Mobilo was in fact a “salt.”
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overtime hours equal to the overtime hours worked by Respondent’s employees during the
backpay period. This it says is unfair and makes the discriminatees better off than they would
have been had they been working for it. The Board has long seen it the other way around and
holds that if a diligent backpay claimant chooses to work additional overtime during interim
employment it should operate to his advantage not that of the employer required to make him
whole for a discriminatory discharge. E.g., United Aircraft Corp., 204 NLRB 1068, 1073 (1973);
Regional Import & Export Trucking Co., 318 NLRB 816, 818 (1995).
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended4
ORDER
The Respondent, Center Construction Co., Inc., d/b/a Center Service System Division,
Burton, Michigan, its officers, agents, successors, and assigns, shall pay to the employees
named below the indicated amounts of net backpay with interest as computed in New Horizons
for the Retarded, 283 NLRB 1173 (1987), less taxes required by law to be withheld:
Wayne Rose $67,267.71
Scott Mobilo 59,381.48
IT IS FURTHER ORDERED that Respondent shall take the following affirmative action:
Offer Wayne Rose immediate reinstatement to his former position or, if that job no longer
exists, to a substantially equivalent position, without prejudice to his seniority or any other rights
or privileges previously enjoyed, and make him whole for all losses he has suffered after the
backpay period computed in the backpay specification, because Respondent has not made a
valid offer of reinstatement to him.
Offer Scott Mobilo immediate instatement to the position for which he applied or, if that
position no longer exists, to a substantially equivalent position, with the same seniority and any
other rights or privileges he would have enjoyed if he had been continuously employed by
Respondent, and make him whole for all losses he has suffered after the backpay period
computed in the backpay specification, because Respondent has not made a valid offer of
instatement to him.
Respondent shall continue to be liable for backpay until such time as it makes a
sufficient reinstatement offer to Wayne Rose and a sufficient instatement offer to Scott Mobilo.
Dated, Washington, D.C. February 17, 2010
____________________
Richard A. Scully
Administrative Law Judge

4 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 purposes.