Electrical Workers IBEW Local 3 (Fischbach & Moore)

National Labor Relations Board - Board Decisions

Jan 11, 1995

315 N.L.R.B. 1266 (N.L.R.B. 1995)

1266
315 NLRB No. 166
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 309 NLRB 856.
2 All dates hereinafter refer to 1990 unless otherwise noted. 3 We adopt the judge’s decision in all other respects.
Local 3, International Brotherhood of Electrical
Workers, AFL–CIO (Fischbach and Moore,
Inc.) and Norman B. McMichael Sr. Case 29–
CB–7625
January 11, 1995
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS STEPHENS
AND TRUESDALE
On December 16, 1992, the Board issued its Deci-
sion and Order in this case finding, inter alia, that the
Respondent had violated Section 8(b)(1)(A) and (2) of
the Act by causing Fischbach and Moore, Inc., the
Employer, to terminate Norman McMichael, the
Charging Party, on April 2, 1990.1 The Board ordered
the Respondent to make whole McMichael for any loss
of wages or other rights and benefits he may have suf-
fered as a result of the discrimination against him.
The Respondent and the General Counsel disagree
about the backpay amount owed to McMichael and
about whether the Respondent is required to make cer-
tain payments to the Pension Fund, the Dental Plan,
the Annuity Plan, the Vacation Holiday Plan, and the
Educational Fund (collectively referred to as the
Funds). On July 29, 1994, Administrative Law Judge
Joel P. Biblowitz issued the attached supplemental de-
cision. Subsequently, the General Counsel filed excep-
tions and a supporting brief and the Respondent filed
an answering brief and cross-exceptions and a brief in
support of dismissal of the backpay specification.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the judge’s supplemental
decision and the record in light of the exceptions,
cross-exceptions, and briefs and has decided to affirm
the judge’s rulings, findings, and conclusions only to
the extent consistent with this Supplemental Decision
and Order.
The judge found that the Respondent is required to
make the payments to the Funds, as set forth in the
backpay specification; that the backpay period is from
April 2, 1990,2 through September 30; that backpay for
McMichael was properly calculated at the rate of $27
through June 13 and the rate of $28 thereafter; and that
during the second quarter McMichael would have
worked 3.07 hours of weekly overtime, and during the
third quarter he would have worked .80 hours of week-
ly overtime. The judge, however, concluded that
McMichael should be denied backpay for the entire
backpay period because he found that McMichael did
not make a good-faith effort to obtain interim employ-
ment. The General Counsel has excepted to the judge’s
latter finding and argues that McMichael exercised rea-
sonable diligence in searching for work. We agree with
the General Counsel.
The Employer discharged McMichael on April 2. In
April, McMichael inquired about work with an em-
ployer who installs car sound systems and about work
with a mattress company. In May, McMichael inquired
at J. Rosenberg Electric and, in June, he inquired at an
auto collision shop. None of the establishments hired
McMichael. On June 4, McMichael reported to the Re-
spondent’s employment department and registered for
referral for work. The Respondent referred McMichael
to a job at Coyne Electric Contractors from June 18
to July 20 and to a job at Allran Electric from July
24 through November 19.
It is well established that a discriminatee must make
reasonable efforts to secure interim employment in
order to be entitled to backpay. Mastro Plastics, 136
NLRB 1342 (1962), enfd. in relevant part 354 F.2d
170 (2d Cir. 1965), cert. denied 384 U.S. 972 (1966).
The burden, however, is on the Respondent to establish
that the discriminatee failed to exercise reasonable dili-
gence in searching for work. Arlington Hotel, 287
NLRB 851 (1987), enf. denied 876 F.2d 678 (8th Cir.
1989). We emphasize that the standard is that of rea-
sonable diligence, not the highest diligence. Id. Fur-
ther, the sufficiency of a discriminatee’s efforts to
mitigate backpay are determined with respect to the
backpay period as a whole and not based on isolated
portions of the backpay period. I.T.O. Corp. of Balti-
more, 265 NLRB 1322 (1982). In addition, a
discriminatee is not required to seek work instantly. Id.
Examining the entire 6-month backpay period as a
whole, we find that the record establishes that
McMichael worked for 3-1/2 months of the period and
inquired about work with four employers during the
other 2-1/2 months of the period. Contrary to the
judge’s statements, it is immaterial that the four em-
ployers were located in different parts of New York or
that the employers are engaged in different types of
work. The important consideration is that McMichael
made an effort to find work and actually found other
work for more than half of the backpay period, thereby
mitigating the Respondent’s backpay payment. We find
that, in these circumstances, the Respondent has failed
to show that the discriminatee’s search was not reason-
ably diligent. The Respondent’s showing of the mere
existence of potential employers is not sufficient to
show that McMichael willfully eschewed employment.
Thus, we reverse the judge’s finding regarding this
issue and order the Respondent to pay the amount set
out in the backpay specification to make McMichael
whole for the discrimination practiced against him.3
1267ELECTRICAL WORKERS IBEW LOCAL 3 (FISCHBACH & MOORE)
1 Unless indicated otherwise, all dates referred to relate to the year
1990.
2 The General Counsel’s motion to reopen the record to receive
Respondent’s fund contribution reports, dated July 8, 1994, is grant-
ed.
ORDER
The National Labor Relations Board orders that the
Respondent, Local 3, International Brotherhood of
Electrical Workers, AFL–CIO, its officers, agents, and
representatives shall make whole Norman B.
McMichael Sr. by paying him $15,283.71, plus interest
accrued to the date of payment, less the tax
withholdings required by law. Interest shall be com-
puted in the manner prescribed in New Horizons for
the Retarded, 283 NLRB 1173 (1987). In addition, the
Board orders the Respondent to make the payments to
the Funds as set forth in the second amended backpay
specification.
Jonathan Leiner, Esq., for the General Counsel.
Norman Rothfeld, Esq., for the Respondent.
SUPPLEMENTAL DECISION
JOEL P. BIBLOWITZ, Administrative Law Judge. This sup-
plemental proceeding was initiated by a second amended
backpay specification, which issued on April 14, 1994. Re-
spondent filed a timely answer, and this matter was heard by
me on May 5 and June 9, 1994.
In the underlying case, at 309 NLRB 856, the Board found
that Local 3, International Brotherhood of Electrical Work-
ers, AFL–CIO (the Respondent) violated Section 8(b)(1)(A)
and (2) of the Act by causing Fischbach and Moore (the Em-
ployer) to terminate Norman McMichael on April 2, 1990.1
It is admitted that the backpay period begins on April 2;
the backpay specification alleges that the backpay period
continues until September 30, when the project to which
McMichael had been assigned was completed, but Respond-
ent denies this, alleging that McMichael would have been
terminated (or laid off) from the project prior to this time.
In its answer, Respondent also defends that McMichael is not
entitled to any backpay because he did not make ‘‘a real and
sincere offer to obtain work.’’ Finally, Respondent, in its an-
swer, denies that it is responsible for contributions to the
funds because the funds have made no claims for money, the
Board may not force the funds to accept money, and that
payments to the funds would not benefit McMichael.2
Gross Backpay
McMichael was a journeyman A electrician during the pe-
riod in question. The Employer was bound by a collective-
bargaining agreement with the Respondent for the period
June 8, 1989, through June 11, 1992 (the contract). The con-
tractual wage rate for journeymen A electricians was $27 an
hour for the period June 8, 1989, through June 13. The rate
for the period June 14 through June 12, 1991, was $28 an
hour. The contract also provides that all hours worked in ex-
cess of 7 hours shall be paid at the rate of time and a half.
McMichael began working for the Employer the work-
week ending March 16. He began on the third day of that
workweek and worked for the remaining 3 days of that
week, 7 hours each day. He worked 35 hours regular time
for each of the following two workweeks and 4 days of 7
hours each day on his final week, when he was fired prior
to his fifth day of work that week. The backpay specification
alleges that McMichael averaged 35 regular hours a week
and is therefore entitled to 35 hours at $27 an hour through
June 13, and 35 hours at $28 an hour for the remaining
backpay period. As McMichael worked 7 hours a day for the
Employer every day from March 16 until his termination,
there can be no question as to the merits of this allegation.
McMichael worked 16 overtime hours during his third
week of employment with the Employer and one-half hour
of overtime during his final week of employment. The back-
pay specification alleges that during the backpay period,
‘‘employees similarly situated to McMichael earned average
weekly overtime hours’’ of 3.07 for the second quarter of
1990, and .80 in the third quarter. Richard Epifanio, the su-
pervisory compliance officer for Region 29, testified to the
manner that the Region employed in arriving at that conclu-
sion. First, since McMichael worked 16 overtime hours in
one pay period and a half hour in another period, the Region
determined that the Employer was willing to give him over-
time work, and that he was willing to work overtime. Since
he was unlawfully terminated early in the backpay period,
they had to determine how much overtime work he would
have worked if he had not been fired. In order to determine
similarly situated employees, the Region examined the Em-
ployer’s payroll records for the period and divided each of
the employees gross regular earnings by the number of regu-
lar hours employed and thereby determined who was earning
$27 and $28 an hour—journeymen A electricians. After ar-
riving at this ‘‘pool’’ of employees, the Region dropped any
of these employees who were employed for 14 hours or
fewer per month, as not being properly representative. They
then took the number of employees remaining and divided
that number into the total monthly overtime hours that they
worked and thereby determined the average number of over-
time hours that these employees worked, and that McMichael
would have worked. Counsel for Respondent, in his brief, re-
fers to this method of computation as ‘‘bizarre.’’ I find that
it is a reasonable method of determining the amount of over-
time that McMichael would have worked during this period
if Respondent had not caused him to be terminated unlaw-
fully.
Counsel for Respondent, in his answer to backpay speci-
fication, denied the allegation that the backpay period ex-
tends to September 30, when the project to which
McMichael was assigned to, and terminated from, was com-
pleted. Respondent’s answer states:
Denies that the backpay period for McMichael contin-
ued until September 30. The assumption that
McMichael would have been the last person terminated
from the project is erroneous for many reasons.
McMichael was terminated by 54 employers between
1981 and 1989, while there was a great shortage of
construction electricians in New York City, 18 of which
terminations were for absenteeism. McMichael showed
evidence of drug abuse on a date during the backpay
period.
1268 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
At the hearing, counsel for General Counsel moved that Re-
spondent be precluded from presenting evidence at the hear-
ing regarding the backpay period because this answer did not
comply with Section 102.56(b) of the Board’s Rules and
Regulations. Because the answer lacked the required specific-
ity, and because Respondent had the payroll records nec-
essary to be specific (the documentation accompanying the
Employer’s fund contributions), I granted General Counsel’s
motion.
I find that the backpay period is from April 2 through Sep-
tember 30 at the rate of $27 (through June 13) and $28 an
hour, and that during the second quarter McMichael would
have worked 3.07 hours of weekly overtime, and for the
third quarter, he would have worked .80 hours of weekly
overtime.
Fund Payments
The contract also required the Employer to contribute to
the Pension, Hospitalization and Benefit Plan of the Elec-
trical Industry (the Pension Fund), the Dental Benefit Plan of
the Electrical Industry (the Dental Plan), the Annuity Plan of
the Electrical Industry (the Annuity Plan), the Additional Se-
curities Benefits Plan of the Electrical Industry (the Addi-
tional Securities Benefit Plan), the Vacation-Holiday Expense
Plan (the Vacation Holiday Plan), and the Educational and
Cultural Trust Fund (the Educational Plan). The contract pro-
vides that for each of these plans the Employer (and others
similarly situated) was to send to each fund a specified per-
centage of its payroll with the caveat that it was to be ‘‘paid
on straight time and on the straight time portion of overtime
only.’’ The percentages are as follows: for the Pension Fund,
14.6 percent through June 13 and 16.8 percent effective June
14. For the Dental Plan, 2 percent. For the Annuity Plan, $4
a day. For the Annuity Plan, an amount equal to the employ-
ee’s weekly payroll deduction for FICA (Social Security,
7.65 percent). For the Vacation Holiday Plan, 10.5 percent
through June 13 and 11.2 percent beginning June 14, and for
the Educational Plan, 0.4 percent.
As the contract provides for these payments, and as Re-
spondent admits that McMichael was a journeyman A elec-
trician, Respondent would be responsible to make these pay-
ments during the backpay period. In his answer, counsel for
Respondent defends that it is not obligated to pay to the
funds because the Joint Industry Board, which administers
the funds, ‘‘has not made any claim for such funds, and the
Board may not force the JIB to accept moneys it has not re-
quested and the receipt of which would not benefit
McMichael.’’ In this latter regard, in his brief, counsel for
Respondent states that the fact that the Employer did not
contribute to these funds did not affect the amount of vaca-
tion that he received from the Vacation Holiday Plan, did not
affect his eligibility for dental benefits or educational bene-
fits under the Dental Plan or the Educational Plan, and will
not affect his pension, under the Pension Fund.
After it has been determined that an employee has been
unlawfully discharged, it is the Board’s function to determine
the amount of backpay required to make the discriminatee
whole for all his/her losses. It is clear that this make-whole
remedy is not simply limited to wages, but includes fringe
benefits and other emoluments of employment as well. Rich-
ard W. Kasse Co., 162 NLRB 1320 (1967). It is also clear
that this make whole remedy applies equally to unions as
well as employers. Sheet Metal Workers Local 38, 194
NLRB 76 (1971). In Carpenters Local 1913, 213 NLRB 363
(1974), the Board, inter alia, ordered the union to pay to the
pension fund the required amount, and further ordered that
the trust and the trustees accept payments of this amount and
credit it to the discriminatee’s account. On appeal to the
court, at 531 F.2d 424 at 427 (9th Cir. 1976), the trustee in-
tervenors alleged that the Board had no authority to order it
to accept the union’s contribution on behalf of the
discriminatee, because to do so would violate Section 302 of
the Labor Management Relations Act. The court stated:
Section 302 was intended to regulate payments by em-
ployers to employee representatives, and was aimed at
forestalling practices Congress considered injurious to
the collective-bargaining process such as bribery of em-
ployee representatives by employers, extortion by em-
ployee representatives, and the potential abuse of power
by union officials armed with sole control of welfare
funds. The case at bar involves a payment by a union
to an existent trust account as part of a Board ordered
backpay award. The mischief which Section 302 was
designed to eliminate is clearly not present under these
circumstances, and there is no need to invoke the safe-
guards of this statute.
As stated, Respondent also defends that it should not be
required to make these payments to the funds because
McMichael’s rights to the funds had already vested and he
therefor was not affected by the Employer’s failure to make
these contributions during the backpay period. However, as
stated in Acme Wire Works, 251 NLRB 1567 at 1571 (1980):
‘‘Moreover, the right of an employee to a pension benefit
also implies, of necessity, the right to a viable pension
fund.’’ It is reasonable to assume that the amount of fund
contributions and fund benefits is determined by actuaries
taking into account all covered employees. Even if
McMichael’s benefits had vested prior to the backpay period,
it is possible that the benefits of others had not and the funds
needed the Employer’s contributions during the backpay pe-
riod to cover these contingencies. Finishline Industries, 181
NLRB 756, 760 (1970). Respondents cannot be permitted to
litigate in backpay proceedings whether discriminatees will
ever receive moneys that went into the funds. If this were
allowed, these supplemental proceedings would be greatly
expanded by a trial within a trial of a speculative nature.
Iron Workers Local 378, 213 NLRB 457 (1973). I therefore
reject Respondent’s defenses regarding the fund payments,
and I find that it is required to make the payments to these
funds as set forth in the backpay specification here during
the backpay period.
The Search for Interim Employment
McMichael obtained employment with two employers dur-
ing the backpay period; he was employed at Coyne Electrical
Contractors, Inc. (Coyne), from June 18 through July 20
earning $4,568.55 and at Allran Electric Corp. (Allran), from
July 24 through November 19, earning $12,418. Respondent
referred him to both of these jobs. In determining interim
earnings for the backpay specification, the Region allocated
two-fifths of McMichael’s earnings at Coyne ($1,827.42) to
the second quarter of the year, and the remaining three-fifths
1269ELECTRICAL WORKERS IBEW LOCAL 3 (FISCHBACH & MOORE)
($2,741.13) to the third quarter. As for McMichael’s earnings
at Allran, it covered 17 weeks of employment, 10 of which
occurred during the backpay period. Therefor, the Region
took ten-seventeenths of $12,418, or $7,305.11, and allocated
this amount as interim earnings in the third quarter. These
determinations were, of course, fair and reasonable and Re-
spondent does not appear to argue otherwise. The sole ques-
tion remaining is whether McMichael made an adequate
search for work during the backpay period. This breaks down
into two areas: his search for work through the Respondent
and the search on his own.
On direct examination McMichael testified that he called
Respondent’s Joint Industry Board, (JIB), on six or seven oc-
casions between April 2 and June, apparently when he ob-
tained employment with Coyne. On these occasions he spoke
to John McCormick, the secretary, who was in charge of em-
ployment. McMichael asked him if he would be sent out to
work and McCormick told him that it would be several
weeks. On cross-examination his testimony became some-
what confused. He testified that the procedure is for individ-
uals to go to the JIB on the third floor of Respondent’s
building where they fill out an orange colored card to apply
for employment through the Respondent. He originally testi-
fied that he went to the JIB on April 2 at about 7:30 a.m.
He then testified that he first went to the Employer’s jobsite
that morning and did not go to the JIB until about 10:30.
From there he went to see William Blain, Respondent’s fi-
nancial secretary. He testified that Blain took his card away,
presumably, his union membership card. He told Blain that
he was going to fill out a card at the JIB for employment
and Blain told him that ‘‘as of that moment I was not a
member of Local 3.’’ He further testified that he next went
to the JIB on about June 1. However, shortly thereafter, his
testimony changed. He testified that when you fill out the or-
ange card at the JIB, you have to turn in your termination
notice. He received his termination notice from the Employer
on about April 6:
Q. When did you give it to the receptionist at the
Joint Board?
A. After I got it through the mail, sir...
Q. After you got the termination notice?
A. Yes.
Q. And was that the first or the second time that you
went down to the Joint Industry Board to fill out the
orange card?
A. No, that was the first time, sir.
Q. So, it’s after you got it in the mail?
A. Yes.
Q. Was that sometime after April 6?
A. Yes, sir.
Q. So, you did not see Bill Blain that day, did you?
You went straight to the Joint Board?
A. No.
Administrative Law Judge: No what? You did see
Mr. Blain or you did not see Mr. Blain?
A. No, I didn’t see Mr. Blain.
Q. The only thing you did in the building that day
is you got the termination notice and you went to the
Joint Board/
A. Yes.
Q. And filled out the orange card?
A. Yes
Q. You did not speak to Mr. Blain at all?
A. No.
In addition, he testified that in his telephone calls to the Re-
spondent’s employment department, he gave his name, social
security number, and job classification. The person he spoke
to told him approximately when he could anticipate getting
a job. Blain testified that he saw McMichael at Respondent’s
office on about April 2, and did not see him again until
about a year later. Joseph Mandel, employment director for
the JIB, testified that Respondent’s records state that the first
time that McMichael reported to Respondent’s employment
division after being terminated by the Employer was on June
4. After being terminated by Coyne, he again reported to the
employment office on July 23.
McMichael testified that in April he visited a company,
‘‘M and A’’ in Valley Stream, Long Island, and had them
install a sound system in his car. While he was there, he
asked them if they had a job available. He was told that they
could not hire him because work was slow due to the econ-
omy. Also in April, he visited ‘‘P and E,’’ a mattress com-
pany in the Bronx. He was not purchasing a mattress, but he
was in the area and stopped and asked if they had a job
available. They told him that they could not hire him because
they were firing staff. In May, he visited J. Rosenberg Elec-
tric in Brooklyn; they told him that they couldn’t hire him
because he did not have a union card. This was the only
electrical contractor, union or nonunion, that he visited dur-
ing this period. In June, he visited Lewin Collision in
Springfield Gardens, Queens, New York, which was per-
forming some work on his car. He asked if they had any
work available and was told that they could not hire him be-
cause work was slow. In addition, as stated above, he con-
tacted the JIB to obtain employment.
Respondents bear a heavy burden in backpay cases. In
order to mitigate its backpay liability, Respondents have the
burden of establishing that the discriminatee ‘‘willfully in-
curred’’ losses by ‘‘clearly unjustifiable refusal to take desir-
able new employment.’’ Phelps Dodge Corp. v. NLRB, 313
U.S. 117, 199–200 (1941). The test of the sufficiency of a
discriminatee’s search is not the success of that search; rather
the law ‘‘only requires honest good faith effort.’’ NLRB v.
Cashman Auto Co., 223 F.2d 832, 836 (1st Cir. 1955); NLRB
v. Arduini Mfg. Corp., 394 F.2d 420, 423 (1st Cir. 1968). As
stated in Otis Hospital, 240 NLRB 173 at 175 (1978):
‘‘While the evidence may leave a question of whether [the
discriminatee] could have been more diligent in seeking
other employment, the highest standard of diligence is not re-
quired and doubts must be resolved against Respondent.’’
I did not find McMichael to be a credible or a believable
witness. His testimony was often confusing and exasperating.
Without crediting or discrediting McMichael’s testimony on
his telephone calls to the Respondent’s Employment Depart-
ment, I find that in order to register to be referred to work,
an employee must report to Respondent’s office. I credit
Mandel’s testimony, as supported by Respondent’s records
that McMichael did not report in person until June 4, and
was referred to Coyne 2 weeks later. McMichael testified
that he visited four potential employers looking for work be-
tween April 2 and June 18, when he began working for
Coyne. Even were I to credit McMichael, and find that these
1270 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 If no exceptions are filed as provided by Sec. 102.46 of the
Boards 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.
were good-faith efforts to find work, I would still find that
he did not exercise sufficient diligence in finding work and
mitigating backpay. American Bottling Co., 116 NLRB 1303,
1307 (1956). Of the four places he visited over the 11 weeks
before he began working at Coyne, two (M and A and
Lewin) were for personal reasons. Although one might argue
that an employer who installs car sound systems might have
some use for a licensed electrician, no such argument could
be made for an auto collision shop or a mattress company.
Considering McMichael’s skills, the only appropriate com-
pany that he visited during this period was J. Rosenberg
Electric. EDP Medical Computer Systems, 302 NLRB 54
(1990). Additionally puzzling is the fact that the four compa-
nies that he visited were all over the place: Queens, Long
Island, Brooklyn, and the Bronx. I therefore find that
McMichael did not make a good-faith effort to obtain interim
employment after he was terminated on April 2, and I there-
fore recommend that he be denied backpay for the entire pe-
riod. NLRB v. Mercy Peninsula Ambulance Service, 589 F.2d
1014 (9th Cir. 1979); Arlington Hotel Co. v. NLRB, 876 F.2d
678 (8th Cir. 1989).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended3
ORDER
It is recommended that the backpay specification be dis-
missed in its entirety.