Construction and General Laborers Local No. 1440

National Labor Relations Board - Board Decisions

Aug 7, 1979

243 N.L.R.B. 1169 (N.L.R.B. 1979)

CONSTRUCTION AND GENERAL LABORERS LOCAL No. 1440
Construction and General Laborers' Local No. 1440
affiliated with Laborers' International Union of
North America, AFL-CIO and Delbert A. Schultz
and William R. Erdman and Southern Wisconsin
Contractors Association; Martindale Builders, Inc.,
Parties in Interest. Cases 30-CB 995 and 30-CB
997
August 7, 1979
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PFNEI.I.)
AND TRUESDALEF
On April 16, 1979, Administrative Law Judge Jose-
phine H. Klein issued the attached Supplemental De-
cision in this proceeding. Thereafter, Respondent
filed exceptions and a supporting argument.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Supplemental Decision in light of the excep-
tions and supporting argument and has decided to
affirm the rulings, findings, and conclusions of the
Administrative Law Judge and to adopt her recom-
mended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that Respondent, Construction and General
Laborers' Local No. 1440, affiliated with Laborers'
International Union of North America. AFL-CIO,
its officers, agents, and representatives, shall take the
action set forth in the said recommended Order.
IT IS FURTHER ORDERED that the backpay specifica-
tion, insofar as it relates to Delbert A. Schultz in Case
30-CB-995 be, and it hereby is, dismissed.
SUPPLEMENTAL DECISION
JOSEPHINE H. KLEIN. Administrative Law Judge: On
September 15, 1977, Administrative Law Judge Richard L.
Denison issued a recommended Decision and Order requir-
ing, inter alia, that Respondent make employees Delbert A.
Schultz and William R. Erdman whole for any losses suf-
fered by them as a result of discrimination which Respon-
dent was found to have committed against them. Judge
Denison's Order and Decision were adopted by the Board
on December 21. 1977.' (233 NLRB 1366 (1977)). On June
A petition for judicial enforcement of the order was filed. but was later
withdrawn bh agreement of the parties. It was agreed that the only issue
27. 1978. the Regional Director issued a hackpax specifica-
tion and notice of hearing. Respondent filed an answer. in-
cluding affirmative defenses. to the backpay specitication.
1. DIBHE.RI A. S('IIL'I Z
A hearing was convened before me in Milwaukee. Wis-
consin. on January 8. 1979. At the outset, the parties
reached agreement in settlement of the claim for hackpa?
due to Schultz. As Administrative Law Judge. I approved
the settlement. That portion of the case then uwas ad-
journed, pending Respondent's ull compliance with the
settlement agreement and an appropriate motion for termi-
nation. On February 16. 1979. counsel for the General
Counsel filed a motion to dismiss portion of backpa speci-
fication. In that motion counsel states that he "is satisited
that the informal settlement has been full5 complied with."
Accordingly his request that the portion of the hackpa
specification relating to Delbert A. Schultz he dismissed is
hereby granted.
11. 'A III.IAM R. RIMAN
The remainder of the case. concerning hackpa due to
William R. Erdman, proceeded to trial on Januar!N 8 and 9.
1979. All parties were afforded full opportunity to partici-
pate, to call, examine. and cross-examine witnesses and to
present written evidence. At the close of the hearing, the
parties waived oral argument, and post-trial brietfs have
been filed on behalf of the General Counsel and Respon-
dent Union.
Upon the entire record, I make the following:
FINDINGS AND CONC'I.'SIONS
A. The Background
Martindale Builders. Inc.. a construction firm in Monroe.
Wisconsin, has a collective-bargaining relationship with
Respondent Union. Under its agreement. Martindale is per-
mitted to employ laborers directly. without first resorting to
Respondent's hiring hall. President Bruce Martindale testi-
fied that the Company prefers to hire directly employees
who have worked for it satisfactorily in the past and thus
are "known entities," as distinguished from unknown em-
ployees referred (or assigned) by the Union.
Around the beginning of August 1976, Martindale em-
barked on a rather large project. It directly hired Erdman.
who had been employed by Respondent as a laborer in the
past. Erdman began work on August 5. On the next day,
August 6. 1976, Harold Patten, Martindale's field superin-
tendent, telephoned Norman Heintz, Respondent's business
manager, and requested that a second laborer be referred
by the Union. (233 NLRB 1371.) The Union referred
Douglas Godfred. While it does not appear precisely shen
Godfred started to work for Martindale, it was probabl on
thereafter remaining was the amounl of hackpa, due to Schultz and rd-
man.
2 The transcnpt of the hearing contains many errors Howeser. none of the
errors distort the substance. Accordingl. no corrective order is being issued.
243 NLRB No. 180
1 10.9
DECISIONS OF NATIONAL. LABOR RELATIONS BOARD
August 6, since he was employed by Martindale during the
week ending August 10. 1976. As found in the complaint
proceeding, on August 12. Martindale discharged Erdman
at the wrongful behest of Respondent.
Depending on the amount of work available. Martindale
employs a varying number of laborers. Laborers are not
hired for particular jobs, but, rather, work wherever
needed. When the volume of work declines, layoffs or ter-
minations are based on the employees' ability. During the
period August 12 through December 31, 1976. Martindale
returned a minimum of two. and a maximum of four or six,
laborers. As of January 1, 1977. the laborer complement
was reduced to one position-filled by Godfred. With the
exception of a few weeks. Godfred has been employed by
Martindale continuously since he was hired in August 1976.
President Martindale testified that, while he had very little
direct contact with the employees, Field Superintendent
Patten considered both Erdman and Godfred to be very
satisfactory employees. Martindale testified that he was not
in a position to render a comparative judgment on the work
of the two laborers. He said that only Patten would be in a
position to do so, but even Patten probably could not do so
under the circumstances, i.e.. when only Godfred had con-
tinued on the job for an extended period (Erdman having
been unlawfully discharged). Thus. Martindale could ex-
press no opinion as to whether Erdman or Godfred would
have been kept on after December 31, when the laborer
complement was reduced to one. Patten did not testify.
B. Gross Backpacy
1. The General Counsel's position
The backpay specification as originally issued stated
that: "An appropriate measure of the hours discriminatee
Willie R. Erdman would have worked is to consider the
actual weekly earnings of his replacement during the re-
spective backpay period times the hourly contractual rate."
On the basis of computing gross backpay and crediting in-
terim earnings, the total claimed for Erdman between June
3, 1976, and July 24, 1977, was $8,952.33, plus interest. At
the outset of the hearing the General Counsel moved to
amend the backpay specification so as to compute the
amount of gross backpay due Erdman on the basis of the
"actual wages" earned by "his replacement, Douglas
Godfred," during the backpay period. On such calculation,
with a revision of the amount of interim earnings, Erdman's
backpay was $9,560.68. Respondent. however, maintained
that Godfred was not Erdman's "replacement," and thus it
was arbitrary and unreasonable to compute Erdman's
backpay by reference to the earnings of the alleged "re-
placement."
2. Respondent's position
At the hearing, Respondent first contended that gross
backpay should be computed by reference to Erdman's past
history.
Originally, Respondent's counsel indicated that the mea-
sure of gross backpay should be based on Erdman's past
employment by Martindale. Such measure would mani-
festly be extremely prejudicial to Erdman because, as stated
in the prior Decision (233 NLRB 1371). "Erdman had
worked for most of the employers in the southern Wiscon-
sin area, performing all types of laborers' work."
Earlier, Respondent had retreated from this rigorous po-
sition and advanced a formula based on Erdman's past ex-
perience in the construction industry. Respondent pre-
sented an amendment to its original Answer and an
amended appendix purporting to show Erdman's earnings
in the construction industry in the southern Wisconsin area
between August 1971 and July 1978. On the basis of those
figures for that period, but omitting August 1976 through
July 1977. the backpay period, Respondent arrived at a
total of 1,792.5 hours, or an average of 298.75 hours per
year. On that annual average. Respondent reached gross
backpay of $2,433.82 for the year August 1976 through July
1977 at contractual rates of pay. In these computations,
Respondent included the 2 years before Erdman went to
work for Martindale in August 1976. During those 2 years.
according to Respondent's figures, Erdman had absolutely
no earnings. Similarly, Respondent's figures at the trial in-
cluded the year August 1977 through July 1978, after the
backpay period. in which Erdman's total work is shown as
8 hours in August 1977.
At the hearing, Respondent then presented "an alterna-
tive theory." under which gross backpay would be deter-
mined by reference to "the average hours that [Erdman]
worked fr Martindale in any given period of employ-
ment." At that point I stated that, in view of Respondent's
evidence that Erdman had done no work in the construc-
tion industry for 2 years before he was hired by Martindale
in August 1976. he would be considered, in effect, a new
entrant into the construction employment market and
therefore evidence concerning his individual employment
history for the preceeding years would be rejected. Respon-
dent then offered to prove that Erdman "was always in-
volved . .. in marginally seeking employment and would at
times make efforts to seek employment, and perhaps at
times even had jobs in the labor field but they were not
recorded that we were aware of."3
In its post-trial brief, Respondent advances a new theory'
of determining gross backpay: i.e., "the average earnings of
a representative group" of employees. Respondent then
proceeds to define the "representative group" as those la-
borers working for Martindale during the backpay period,
but excluding Godfred because, in the words of Respon-
dent's brief, Godfred's "work record and special relation-
ship with Martindale Builders immunizes him from the
intermittency and fluctuations of the construction indus-
try."
As apparently a secondary position, in its brief, Respon-
dent again suggests that "Erdman's average annual earn-
ings in the industry may be used as a measure of his wage
In this connection, it appears hat the only "records" consulted by. or
available to. Respondent covered payments to the union pension and health
and welfare funds certainly an unreliable gauge of' the earnings of a man
such as Erdman. who was not a member of the Union.
1170
('ONSIRUCTION AND) GENERAl. I.ABOREIRS lOCAl. No. 1440)
loss." But now Respondent presents an "amended" comnpu-
tation of this amount based on exclusion of "the two ears
in which Erdman was not active in the industry."4
3. Discussion and (Conclusion
So far as the record shows, Erdman and Godfred were
both entirely satisfactory employees. Erdman had been the
Company's own choice: Godfred was sent by the nion.
There appears to be no room for any doubt that, at least as
long as Martindale employed two laborers, the positions
would have been filled by Erdman and Godfred. The re-
maining four laborers Martindale employed were truly in-
termittent, and their employment was strictly temporar.
Before Martindale approached the Union for referrals, ob-
viously their situation was entirely different from that of
Erdman, the first laborer hired.
In the absence of any contrary evidence, it is reasonable
to infer that, on January I, 1977. when the number of la-
borers employed by Martindale was reduced to one, Erd-
man would have been the one retained. This inference
arises from the fact that he was the only laborer affirma-
tively selected by Respondent. And in July 1977. when Erd-
man called Martindale seeking work, Patten again wanted
to hire Erdman and took the initiative to call Heintz for the
Union's consent to hire Erdman. Of course, it is conceivable
that Godfred proved himself to be superior to Erdman. But
Respondent adduced not a scintilla of evidence to establish
such fact. As previously noted, Martindale testified that it
was impossible for him to express any such opinion. And.
significantly, Respondent did not call Patten, Martindale's
field superintendent, the only person who had had direct
contact with both men and who, if anybody, would be able
to make a comparison. Although Martindale expressed
doubt that Patten could have made such a choice because
Erdman had been discharged very early, Patten would have
had to make a choice if at some time he was faced with the
necessity of hiring one laborer.
Even if there was no way Patten or anybody else could
have made an informed comparative judgment of the work
of Erdman and Godfred on January 1, 1977, Respondent
would, of necessity, be required to shoulder the burden of
such uncertainty. It was Respondent's violation of law, in
having Erdman discharged, which would have prevented
an informed judgment. See e.g., International Association of
Bridge, Structural and Reinforced Iron Workers Union. Lo-
cal 378, AFL-CIO (Judson Steel Corporation), 213 NLRB
457, 459 (1974), and authorities cited in fn. 5 (1976). As said
in International Union of Operating Engineers, Local 925
(J. L. Manta, Inc. et al.), 180 NLRB 759, 765 (1970): "'lit
was Respondent's discrimination which now prevents the
eggs from being unscrambled." Respondent cannot be per-
mitted to shift the burden of uncertainty to Erdman, the
victim of its misconduct. See Local 294, International Broth-
erhood Teamsters, Chauffeurs, Warehousemen and Helpers of
America (Rubber City Express), 222 NLRB 155. 156. fn. 6
(1976).
This was presented despite the fact that. as previously noted. Respon-
dent's counsel offered to prove that Erdman had sought construction work
during that period.
Erdman is entitled to hackpa tor "the length at timLe tr
which. but ltr the nion's actl ities. [hel. on the basis lit
[hisl abilit6 and other fIlctors. Aould ha'.c been kept ait
work hb'" Martindale. N.I.. R.B . I. locul Ao ' / he I nai'd
A4ss5 ilio I o1 Joulrnleimt' e aih -i, Iprt' it es of di Pnhiiil
and Pipefi/tintg tItst o/ tI lltd' Ilt s[ll' u t ald ( lodI.
.4AFL (10 i(Atrove Plumbing & Heain ( rp . 36) .2d
428. 434 (2d Cir. 1966). And the burden is on Respondent
to establish its affirmatis e defense that rdman would not
have remained on the emploier's pa\roll in the absence ol
Respondent's discriminators, misconduct. .lihdcst Ianger
(Co.. 221 NRB 911. 917 (1975).'
In this connection t should further be noted that Re-
spondent has adduced no evidence to support the conten-
tion that Godtredl enjoyed a 'special relationslhip sith lMar-
tindale Builders" whicih lrdnan would not ha'e enloec
absent Respondent's misconduct. I'he onl! thing "special"
about (iodfred's relationship with 1Martindlile is the act
that, as a competent and desirable emplo,\ec. he was kept
on. Erdman also wa.ss a competent and desirable emploee.
tie thus belonged in Giodfred's class. rather tharn fiith the
two to four other laborers whom 'Martiindale hired Irom
time to time during the hackpay period. I'he onl, objectie
distinctions between LErdman and Giodfrcd are that rdman
was chosen bh Martindale and then was ictimized h Re-
spondent, whereas Respondent had referred odtfred to
Martindale and had not thereafter interfered with his em-
ployment.
EquallN unsupported hb evidence is the statement in Re-
spondent's brief that: "The mere fact that [Erdmanl lorked
for Martindale Builders in the past and was not retained on
a continuous basis demonstrates that though Erdman ma,
be an adequate worker, he is not as qualified or competent
as Godfred." There is not a word of evidence that Patten or
Martindale passed an, comparative judgment on rdman
and Godfred. Respondent's conduct in having Erdiman dis-
charged precluded an> opportunity to make an) such judg-
ment. Nor is there anN evidence to support Respondent's
suggestion that in the past Erdman "was not retained" bh
Martindale because of an, deficiencies in his work. It hears
reiteration that Patten hired rdman in August 1976 and
again in July 1977 because of his work in the past.
To dispose of the new formulae advanced b3 Respondent
in its post-trial brief, it is perhaps sufficient to refer to Sec-
tion 102.54 of the Board's Rules and Regulatiots., concern-
ing Answers to Backpay Specifications. hat section pro-
vides, in pertinent part:
As to all matters within the knowledge of the Respon-
dent, including hut not limited to the various rcitors
entering into the complutation of gross back p. a gen-
eral denial shall not suffice. As to such matters. it' the
respondent disputes either the accuracy of the figures
in the specification or the premise.s on which tht' are
based, he shall specifically state the basis /ior his di agret'-
ment, setting forth in derail his position a.v to tc appli-
'The administrative law judge's decision in ;Swd.a IlHanxger adopted b,
the Board, continued "Statistical prohahilit) is not enough nd II must be
determined what would ha.e occurred regarding the employment oi each of
the claimants based on the policies of the emploerl Respondent must make
the showing and more conclusions are not sufficiell "
1171
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cabhle premi.ses and firnishing the appropriate supporting
figures. [Emphasis supplied.]
Although Respondent was permitted to amend its answer
after the General Counsel amended the backpay specifica-
tion at the outset of the hearing, Respondent did not set
forth the formula provided in its post-trial brief. No matter
how "liberally" regulations may be applied, Respondent
certainly cannot now be heard to advance positions of
which neither the General Counsel, the Charging Party, nor
the Administrative Law Judge was ever given notice before
or during the hearing. See, e.g., Airports Service ines Inc..
231 NILRB 1272 (1977).
Nonetheless. it may be well to comment briefly on Re-
spondent's new theories. As is apparent from the foregoing
discussion, it cannot be said that the temporary laborers
intermittently hired by Martindale through the Union are
in any sense a "representative group" to which Erdman
belongs.6 So far as the evidence shows, Erdman and
Godfred are the only laborers whom Martindale finds desir-
able.'
Also, as shown in the foregoing discussion, Erdman's
past history in the construction industry in the Milwaukee
area is not indicative of what he would have earned had
Respondent not demanded his discharge on August 12,
1976. Whatever his past history, the fact is that Erdman
was the first laborer hired when Martindale embarked on
the Bauman's Hardware job early in August 1976. That he
may not have worked steadily in the southern Wisconsin
construction industry in the past has no tendency to estab-
lish that he would not have continued in Martindale's em-
ploy as Godfred did. Respondent's recognition of the im-
propriety of looking to Erdman's past history is pointed up
by Respondent's eventual concession, after the trial, that
the 2 years immediately preceding his discharge must be
eliminated because Respondent's own "evidence" shows
that he did no construction work in that period. It is diffi-
cult to think of any plausible rationalization for looking to
Erdman's history of work from 3 to 7 years before and I
year following the backpay period.
Finally, it should be noted that Respondent's purported
"evidence" is insufficient to establish Erdman's employ-
ment history. Respondent apparently has presented evi-
dence only of work performed by Erdman on union con-
struction jobs in the area. Obviously, as a nonunion man.
Erdman did not so restrict the area of his possible employ-
ment.
On all the evidence, I find and conclude that the General
Counsel has presented the most reasonable method of com-
puting Erdman's gross backpay. Respondent has failed to
advance any reasonable alternative method of computation
under the circumstances created by its own misconduct.
'In the hearing, Respondent's counsel set forth the unavailability of a
"representative group" formula as follows: "The record already reflects that
there is a number of employees that were hired by Martindale and laid off
during the period of backpay and that it is not possible to determine from
the fact the number of employees, the accurate determination as to what
Erdman's wages would have been."
I As a linguistic matter. the General Counsel's referring to Godfred as
Erdman's "replacement" is perhaps unfortunate. But whatever the terminol-
ogy, the General Counsel's formula is substantively sound and particularly
well adapted to the present factual situation.
C. Respondent ' AfihrmativLe Dettnse.v
I. Wilful loss of earnings
Respondent contends that Erdman was guilty of skilful
loss of earnings. It is by now a truism that the Respondent
bears a heavy burden of proof to establish that defense. See.
e.g., DeLorean Cadillac, Inc., 231 NLRB 329 (1977).
In its brief, in support of its conclusory contention, Re-
spondent argues that Erdman "failed to exercise due dili-
gence in obtaining employment by quitting his employment
at Hough Manufacturing Corporation." Erdman's undis-
puted testimony was that, after his termination b Martin-
dale, he went to work for Hough at about $4 per hour.
Within a few weeks, however, he left Hough for a job with
Warner Brake & Electric at "over $6 an hour." Certainly
Respondent cannot seriously maintain that Erdman's trans-
fer represented poor judgment, to say nothing of its consti-
tuting a "wilful loss of earnings." There is no suggestion in
the evidence that the employment with Hough was "perma-
nent" while that with Warner was specified to he "tempo-
rary." After being laid off by Warner for lack of work.
Erdman several times sought reemployment by Hough. hut
the Company was not accepting applications.
Erdman's uncontradicted testimony, in major part cor-
roborated by Gerald Stankey, an apparently disinterested
witness, establishes that Erdman persistently sought em-
ployment. He testified that he applied for work with "prob-
ably a hundred [private employers] at least." tie produced a
list of some 18 places where he repeatedly had sought em-
ployment. He also credibly testified that such a list was far
from complete. In addition, he made contact with the un-
employment compensation authorities at least once a week
and applied, unsuccessfully, for employment at three places
to which they referred him. Despite Respondent's clear in-
dication that it would not voluntarily assist him, in Novem-
ber or December 1976, he registered on its out-of-work list.
Erdman's search for work was so conscientious that he
applied again for employment with Martindale, even
though Respondent had not shown any change of heart.
That company wanted to hire him, but Respondent inter-
fered. Undaunted when Patten reported that Respondent's
business manager, Heintz, "gave [Patten] a hard time about
putting [Erdman] back to work because [he] still wasn't a
union member," Erdman himself visited the Union. Heintz
then, on July 25, 1977, provided a referral slip, but added
that Erdman would "never get another one from this
union." (As set forth below, that employment by Martin-
dale marks the end of the backpay period.) The uncontra-
dicted evidence leaves no doubt that Erdman made a vigor-
ous and persistent search for employment during the year
following the unlawful discharge which gave rise to this
proceeding.
At the hearing, Respondent, through cross-examination.
adduced evidence that Erdman had made frequent trips to
Seattle, where he has a close friend. However, there is not a
shred of evidence that such trips in any manner or to any
degree interfered wiih his conscientious search for work or
that they prevented his accepting any available employ-
ment.
1172
CONSTRI('TION AND GENERAL ILABORERS LO<(AI_ No 1440
On all the evidence. I find and conclude that Respondent
has not carried its burden of proving that Erdman was
guilty of a wilful loss of earnings, as alleged in its Answer to
the Backpay Specification.
2. Interim earnings
Respondent further maintains that "William Erdman
failed to report all interim earnings and his interim earnings
are therefore in excess of the amounts set forth in the Gen-
eral C(ounsel's backpay specification." In support of this
contention, Respondent refers to testimony by Erdman that
in the period from November 1976 through July 1977, he
occasionally did odd jobs, such as motor tuneups. for
friends. Since Respondent did not pursue the matter fur-
ther, the record contains no indication as to the amount of
money earned by such activity. The Backpay Specification
lists interim earnings of $461.65 in the last quarter of 1976,
and during the first three quarters of 1977, Respondent
made no attempt to show that such interim earnings did not
include payment received for odd jobs.
Respondent refers to Erdman's testimony that the earn-
ings from such odd jobs were "what he] existed on." How-
ever, Respondent ignores the fact that Erdman received un-
employment compensation, including "supplemental"
compensation, at the rate of $47 per week, which ended
early in June 1974. And Erdman credibly testified that he
borrowed money to supplement his unemployment com-
pensation.
In any event, at the hearing, in submitting his proposed
calculation of backpay due Erdman, Respondent's counsel
adopted the interim earnings set forth in the backpay speci-
fication. Shortly thereafter, counsel was asked if he in-
tended to present evidence on the issue of interim earnings.
He replied: "Well, we will put on evidence, but it would go
to the issue of his willful refusal to work and in that respect
it would ... touch upon interim earnings.... As far as he
was showing that he actually earned money at a given place
that was not recorded, we will not put on any evidence of
that nature." Subsequently, in answer to a question, Re-
spondent's counsel said: "We don't question the arithmetics
employed by the General Counsel in their computation."
This then was clarified as follows:
JUDGE KLEIN: In other words, the answer to my
question is that you don't question any of [General
Counsel's], in effect, factual statements: Their figures
and so forth? You simply say that it's not the way to
run a horse show?
MR. PADWAY: Right.
Respondent produced no evidence as to Erdman's in-
terim earnings. And in the two appendixes to its brief, set-
ting forth alternative backpay computations, interim earn-
ings are shown as in the amended backpay specification.'
3. Termination of the backpay period
As previously noted, Erdman telephoned Patten seeking
reemployment. According to Erdman, Patten said he had
* i.e., This figure represents the total shown in the backpay specification;
Respondent has not presented any calculations on a quarterly basis
work available for Erdman and would call Heintz. of the
Union. concerning the matter. Sometime later, not having
heard from either Patten or Heintz. Erdman called Patten.
Patten reported that Heintz was "giving him a bad time"
about hiring Erdman because of his continuing nonmem-
hership in the Union. Thereupon. Erdman visited the union
hall. He was given a referral slip to Martindale. hut as
informed that he would never receive another. E rdman
went to work for Martindale on or about Jul, 25. 1977.
After a short time, he quit for a better pasing ob doing
carpentry.
In his recommended order, issued on September 15.
1977, Judge [)enison directed Respondent to:
Notify Martindale . .. in writing, with a cop Ito WIIl-
Ilam Erdman. that it withdraws its objection to the
employment of William Erdman h Martindale Build-
ers, Inc.. and will not oppose his reemploment.
This recommended order was adopted b the Board on )e-
cember 21. 1977.
To date, Respondent has never sent to Martindale or to
Erdman the notification specifically required b the quoted
provision of the Order. Because of the absence of ans such
notice, at the present trial, the General Counsel refused to
stipulate or agree that the backpa) period had ended.
In his brief however, the General ('ounsel retreats from
that position. The brief says that "in theory. Respondent's
obligation continued at least until" Respondent sent the
required notice, which it has not as set done. The brief then
continues:
However, the record discloses that Respondent did re-
fer Erdman to Martindale on July 25, 1977 . . . Under
the circumstances. General Counsel will concede this
action as having been sufficient notification and that
the backpay period tolled as of JulN 25. 1977....
Accepting the General Counsel's concession I deem it
unnecessary to determine whether the backpay period has
actually terminated as a matter of law. It is sufficient to
accede to the General Counsel's request for backpay only
until Erdman's reinstatement by Martindale pursuant to
Respondent's referral on July 25. 1977.9
On the basis of the foregoing findings and conclusions.
and the entire record in this proceeding. and pursuant to
Section 10(c) of the National Labor Relations Act. as
amended, I issue the tfollowing recommended:
ORDER' °
Respondent, Construction and General Laborers' Local
No. 1440, affiliated with Laborers' International Union of
I There probably would not be any further backpay due even without the
General Counsel's concession because it appears that since July 1977. Erd-
man has been steadily employed at higher wages than those paid by Martin-
dale.
'o In the event that no exceptions are filed, as provided by Sec 102.46 of
the Rules and Regulations of the National Labor Relations Board. the find-
ings, conclusions, and recommended Order herein shall. as provided in Sec
102,48 of the Rules and Regulations, be adopted b the Board and become
its findings, conclusions, and Order. and all objections thereto shall be
deemed waived for all purposes.
1 173
DECISIONS OF NAIIONAL LABOR RELATIONS BOARD
North America, AFt. '1O, its officers, agents, and repre-
sentatives, shall make William R. Erdman whole in the
amount of $9,608.18. as computed by the General ('ounsel
in "Amended Appendix A" to the backpay specification.
plus interest computed in accordance with Florida Steel
Board's Order of' December 21, 1977 (233 NI.RB 1366).12
The backpay specification is I)lSMIsshI) insofar as it re-
lates to I)elbert A. Schultz. Case 30 ('B-995.
Corporation, 231 NLRB 651 (1977).' as provided in the The General Counsel hs filed a Supplemental Briel in Support o a
Remedial Interest Rate o1'9 percent." Even if it were lwthin my province to
consider such policy change, it would he precluded h the tormer order
' See, generally. Iris Plumbing & Heaing (o., 138 NRB 716 (1962). herein
1174