Electrical Workers Ibew Local 453 (Sachs Electric)

National Labor Relations Board - Board Decisions

Dec 18, 1985

277 N.L.R.B. 1129 (N.L.R.B. 1985)

ELECTRICAL WORKERS IBEW LOCAL 453 (SACHS- 'ELECTRIC)
International Brotherhood of Electrical Workers,
Local 453 (Sachs Electric Co .) and Donald W.
Jones . Case 17-CB-1921
18 December 1985
SUPPLEMENTAL ]DECISION AND
ORDER
IBY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 23 February 1984 Administrative Law Judge
Martin J. Linsky issued the attached decision. The
Respondent filed exceptions and a supporting brief,
the Charging Party filed cross-exceptions and a
supporting brief to which the Respondent filed a
reply brief, and the General Counsel filed a reply
brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings,' findings,2
and conclusions and to adopt the recommended
Order as modified.
The judge concluded that Samuel Miller is enti-
tled to backpay through 1 May 1978, the date he
refused a referral from the Respondent's hiring
hall. The Respondent contends in its exceptions
that Miller declined an earlier opportunity to work,
' We agree with the judge's dental of the Charging Party ' s motion for
allowance of fees to be paid from fund , created for discrimmatees in this
action . The motion by the Charging Party , an attorney , constitutes a re-
quest that the Board enforce an agreement between it and the discrimina-
tees , who are its clients , regarding the payment of legal fees While the
Board has , in circumstances not present here , ordered one party to pay
an opposing party 's legal fees, the performance of a promise between an
attorney and client is not within the Board's province
2 The Respondent excepts to the judge 's finding that Larry Nolen's
quitting of his interim employment at Carl Pons Electric did not consti-
tute a failure to mitigate damages We find no merit in this exception It
is well settled that the General Counsel 's burden is to establish the gross
amounts of backpay due, and that the Respondent then has the burden to
establish facts which mitigate its liability See Kansas Refined Helium Co.,
252 NLRB 1156 ( 1980), and cases cited therein. It is equally well settled
that a discriminatee does not incur a willful loss of earnings by quitting
an interim job for a justifiable reason East Texas Steel Castings Co, 116
NLRB 1336 ( 1956), Mastro Plastics Corp , 136 NLRB 1342, 1349-1350
(1962), enfd , in pertinent part 354 F 2d 170 (2d Cir 1965), cert denied
384 U S. 972 (1966), Florida Steel Corp , 234 NLRB 1089 ( 1978) Further,
where there are uncertainties or ambiguities in calculating backpay,
doubts are resolved in favor of the backpay claimant rather than the Re-
spondent who committed the unfair labor practices United Air Craft
Corp, 204 NLRB 1068 (1973) The record reveals that in late April 1978
Notion walked off his interim job at Pons , along with over 100 other elec-
tricians , as part of a labor dispute It appears from the recoid that the
walkout was immediately followed by layoffs. As noted by the judge,
there was no evidence that the walkout was not protected concerted ac-
tivity and Nolon returned to the union hall for the purpose of signing its
referral books . There is no contention by the Respondent that Nolon re-
moved himself from the job market by participating in the walkout
Under these circumstances , we cannot say that Nolon ' s participation in
the walkout , which resulted in the termination of his employment, was
unreasonable or that he was engaged in a "willful" loss of employment
Florida Steel, supra
1129
in March 1978. We find `1xrehrin `(he Respondent's
position. Thus, Miller testified on, direct examina-
tion that he was asked by the Respondent' in March
1978 if he could take a job at "Fart Leonard Wood
and he replied that he was without transportation.
Although he later testified there was no specific re-
ferral offer made to him, on cross-examination
Miller testified that he thought he had refused a
job referral to Fort Leonard Wood around 21
March 1978. The judge's decision does not discuss
the March 1978 referral. In view of the judge's
finding that all discriminatees registered on the Re-
spondent's referral books would have been referred
out by 21 March 1978 and that Miller was regis-
tered for referral in March, and in view of the fact
that Miller refused the 1 May referral for reasons
which existed in March (lack of transportation), we
find the record establishes that Miller first declined
an opportunity to work about 21 March, which
tolled the Respondent's backpay liability to him at
the time. Recalculation of the dollar amounts in-
volved produces a total backpay figure of $7931.30,
which figure consists of the following: net back-
pay, $6929.18; pension $302.25; health and welfare
contributions $284.12; vacation $415.75. We will
modify the judge's recommended Order according-
ly.3
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, International Brotherhood of Electrical
Workers, Local 453, Springfield, Missouri, its offi-
cers, agents , and representatives, shall take the
action set forth in the Order as modified.
Substitute the following for paragraph 3.
"3. The Respondent, its officers, agents, and rep-
resentatives, shall satisfy its obligation to make
whole Samuel Miller for backpay due him by
paying him net backpay in the amount of $7931.30,
plus interest thereon accrued to date of payment,
computed in the manner prescribed in Florida Steel
Corp., supra, minus any tax withholding required
by Federal or state law."
3 We find no merit in the Respondent's exception that Miller's backpay
claims be rejected because he willfully concealed interim earnings re-
ceived from two employers, Southern Sun and Roper Electric. Miller's
employment at Southern Sun in May 1979 was not concealed, but was
revealed in a pretrial affidavit he proffered to the Board. Further, the
record shows that Miller's employment at Roper apparently was first re-
vealed during general questioning on cross-examination regarding interim
employment during the backpay period when Miller volunteered that he
was employed there I or 2 days in December 1977, for which the judge
reduced the net backpay amount. We find no basis here to conclude that
Miller willfully concealed his brief employment at Roper
Lyn R. Buckley, Esq., for the General Counsel.
277 NLRB No. 122
1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Benjamin J. Francka, Esq.,` of Springfield , Missouri, for
the Respondent.
Donald W. Jones, Esq., of Springfield , Missouri , for the
Charging Party.
SUPPLEMENTAL DECISION
MARTIN J. LINSKY, Administrative Law Judge. In a
backpay specification, dated March 4, 1983, the Regional
Director for Region 17 alleged that Local 453, Interna-
tional Brotherhood of Electrical Workers (Respondent)
had failed to pay backpay due under Order of the Na-
tional Labor Relations Board, 248 NLRB 669 (1980),
which was affirmed by the United States Court of Ap-
peals for the Eighth Circuit in 668 F.2d-991 (1982). Trial
was held before me on August 29-31 and September 1,
1983, in Springfield, Missouri.
I. JURISDICTION
Respondent appeared by counsel at the time and place
prescribed by the Regional Director for the trial. Fol-
lowing the trial, briefs were filed by the General Coun-
sel, Respondent, and the Charging Party.
II. BACKGROUND
On March 26, 1980, the Board found, inter alia, that
Respondent had violated the Act by unlawfully request-
ing "travelers" to quit their jobs at the Sachs Electric
Co. site in Fort Leonard Wood, Missouri, in favor of
members of Respondent. "Travelers" are members of
locals of the International Brotherhood of Electrical
Workers other than Local 453 who were referred to the
Sachs Electric Co. job at Fort -Leonard Wood from
Local 453's hiring hall. The Board found and the court
of appeals agreed that such "requests" to a traveler to
quit his job in favor of the members of the Local violat-
ed the Act because it unlawfully discriminated against
employees on the basis of union membership Such re-
quests, the Board found, were inherently coercive. The
Board and court ordered that Bill Rodman and Larry J.
Nolon, two travelers who were requested to quit by Re-
spondent and did so, and any other similarly affected em-
ployees be made whole for any loss of earnings they may
have suffered as a result thereof. Respondent failed to do
so and, on March 4, 1983, the Regional Director for
Region 17 issued the backpay specification which was
the subject of these proceedings. In the backpay specifi-
cation, as amended, six other "travelers" are alleged to
have been similarly affected by Respondent's unlawful
request that they quit the Sachs job at Fort Leonard
Wood in favor of members of Respondent, i.e., Samuel
Miller, Harold Calk, Dennis Jolley, Elmer Murray,
Charles N. Robinson, and Damon Rutledge. All six were
members of IBEW Locals other than Local 453 and all
six had been referred to the Sachs job at Fort Leonard
Wood by Respondent's hiring hall. All six plus Rodman
and Nolon were journeymen wiremen.
III. ISSUES
The issues to be decided in this case are how much are
Rodman and Nolon entitled to receive to make them
whole and are any of the six other travelers properly
named as discriminatees and, if so, how much are they
entitled to receive to make them whole.
The Charging Party is an attorney and has filed a
pleading entitled "Charging Party's Motion For Allow-
ance of Fees to be Paid From Funds Created For Discri-
minatees in This Action." The gravamen of the motion is
that if the Charging Party had not filed a charge on
behalf of both his original clients, Rodman and Nolon, as
well as other similarly affected travelers and, if he had
not filed exceptions to the original administrative law
judge's decision limiting backpay to Rodman and Nolon,
then the similarly affected travelers, six of whom are
named in the backpay specification, would not be enti-
tled to any backpay. Therefore, according to the Charg-
ing Party, it is only just and proper that a fund be cre-
ated consisting of all moneys ordered to be paid to the
discriminatees and that the Charging Party be paid one-
half of what each discriminatee is entitled to receive and
the remainder disbursed to the discriminatees. Seven of
the eight discriminatees, i.e., Rodman, Nolon, Miller,
Calk, Jolley, Robinson, and Rutledge, have filed affida-
vits in which they state that they have no objection to
the granting of the Charging Party's motion. The Gener-
al Counsel takes no position on the motion. Respondent
opposes the motion. The eighth discriminatee, Elmer
Murray, is deceased. Neither he nor his widow, Jean
Murray, who testified at the trial of the backpay specifi-
cation, have taken a position on the motion. It is recom-
mended that the motion be denied. The Charging Party's
motion is without precedent. No persuasive authority has
been presented to justify the granting of this extraordi-
nary motion . This is not a class action. Neither the trial
of the original unfair labor practices nor this trial of the
backpay specification are class actions. Seven of the
eight discriminatees (all except Murray) in'their affidavits
in support of the Charging Party's motion state that the
Charging Party is their attorney for these proceedings.
The Charging Party should look to his clients for the
payment of his legal fees and not employ the Board or
its agents as a collection agency.
There is no dispute concerning the applicable wage
rate In determining the hours worked per week the
General Counsel's position is adopted. The formula of
using the number of hours worked by a substantial
number of journeymen wiremen to determine the
number of hours the discriminatee would have worked is
a better formula than the average number of hours
worked per week by the journeymen wiremen on the job
because the latter method fails to properly account for
employees who were newly hired during the week, quit,
were off sick, or absent for some other reason. The back-
pay figure represents the net difference between the
earnings the discriminatee would have received, less the
interim earnings, calculated quarterly. Expenses incurred
in connection with interim employment which would not
have been incurred but for the discrimination were, of
course, used to reduce the amount of interim earnings.
All eight discriminatees were laid off from the Sachs
Electric Co. payroll for job 314 at Fort Leonard Wood,
Missouri. Job 314 was the so-called enlisted men's bar-
racks job. Sachs Electric Co. was also employing jour-
ELECTRICAL WORKERS IBEW LOCAL 453 (SACHS ELECTRIC)
neymen electricians on job 717, the so-called surveillance
job. The record is unclear whether an employee would
have automatically transferred from 314 to 717, or vice
versa, if work was light at one but not at the other, or if
an employee would have been referred from one or the
other only by going back through the hiring hall. It is
rioted that Bill Rodman in transferring from the barracks
job to the surveillance job went back through the hiring
hall. There was,' however, a short hiatus of several days
between jobs for him
The backpay period commences on the discriminatees
being "requested" by Respondent to quit their jobs in
favor of local members. The backpay period commenced
on December 1, 1977. The General Counsel and Charg-
ing Party contend that the backpay period should end on
July 1, 1979, at which time the number of a journeymen
electricians working at Sachs Electric Co. two jobsites
(jobs 314 and 717) fell below eight in number. 'Their
theory is that it should be presumed that the last eight
electricians to be laid off from the job would be the
eighth discriminatee listed in the backpay specification.
Their theory is defective for several reasons. First, it ig-
nores the reality of the coniruction business. Like most
construction jobs, this one also had a large turnover, e.g.,
every single journeyman electrician who was either kept
on the job after the travelers were "asked to leave" or
who replaced the travelers who "quit" were themselves
off the job by the end of June 1978 as a result of reduc-
tion in force or voluntary quits. Throughout the project,
bad weather or other factors resulted in layoffs. It is un-
realistic to suggest that these eight discriminatees were
so elite that they would not have left the job at some
point prior to July 1979. Second, approximately 32 trav-
elers quit at Respondent's request in December 1977.
Only eight are pressing claims for backpay. It strains cre-
dulity to suggest those eight discriminatees would be the
last eight employees on the job. It is more realistic to
find that these eight named discriminatees may have
worked up to the point where the complement of jour-
neymen electricians fell below 32, rather than 8. All 8
left job 314 in December 1977 and, according to payroll
records, for only 3 weeks in October 1978 were there as
many as 32 electricians on job 314 and for only 1' week
in February 1979 were there more than 32, i.e., 34 (G.C.
Exhs. 3 and 4). On job 717 payroll records were intro-
duced only for the period of April 1978 to January 1980
and at no time did as many of 32 work at that job'' (G.C.
Exh. 5). The total number of journeymen electricians
working on both job 314 (EPvl barracks job) and job 717
(surveillance job) did not total 32 in number until the
week ending August 5, 1978.
The General Counsel relies on Fruin-Colnon Corp,, 244
NLRB 510 (1979), which tends to support her position.
However, this case is factually distinguishable from the
facts in Fruin-Colnon Corp. In the instant case we had 32
travelers leave the Sachs job in December 1977 but only
Hare pressing claims. To apply the principle of Fruin-
1131
Colnon Corp. to the case would .unjustly enrich the eight
discriminatees. For example, seven of the eight dropped
their claims for one reason or another; the last discrimin-
atee should not be entitled to have his backpay period
extend to a time when the number of employees left on
both jobs fell below one in number.
Credible evidence at trial reflects that as of March 21,
1978, all journeymen electricians current on book I and
book II had been referred out by Respondent's hiring
hall. Any of the discriminatees current on the books at
that time would have been referred out by Respondent's
hiring hall thereby terminating the backpay period. The
Board had found that Rodman and Nolon were unlaw-
fully refused permission to sign book I and were not per-
mitted to sign book II under protest. It was not until
July 5, 1978, that they were permitted! to sign book I.
Accordingly, the backpay period ends for Rodman and
Nolon when they secured gainful employment after July
5, 1978. The backpay period ends for the other six discri-
minatees when they obtained gainful employment subse-
quent to March 21, 1978. If they had been current on
book II as of March 21, 1978, they would have been re-
ferred out and quite probably back to Sachs Electric at
Ft. Leonard Wood. It will not necessarily terminate on
March 21, 1978, since the discriminatees may either have
been working elsewhere and not available to be referred
out by Respondent's hiring hall or were seeking employ-
ment in another area to which they moved seeking em-
ployment after they left Sachs in December 1977.
Individual backpay amounts will be discussed below
for each of the eight discriminatees separately.
A. Bill Rodman
Bill Rodman was referred out for employment to Da-
meron Electric Co. and Meyer Electric Co. by Respond-
ent's hiring hall on July 6, 1978, and July 11, 1978, re-
spectively, after finally being permitted to sign book I on
July 5, 1978. The backpay period for him ends at the end
of the second quarter of 1978. Rodman's expenses associ-
ated with his interim employment at Carl Pons Electric
Co., Gentry, Arkansas, are reasonable and allowable.
Rodman quit his interim employment but this quit will
not count against him. I credit Rodman's testimony that
he quit his interim employment at Carl Pons Electric on
the good-faith belief (based on receipt of an attorney's
letter) that he would be treated fairly if he returned to
Local 453. Rodman honestly believed lie would be per-
mitted to sign book I but was unlawfully refused.
Rodman was also refused permission to sign book II
"under protest." Under the circumstances Rodman's
quitting Carl Pons Electric and his refusal to sign book
II unless he was allowed to note that it was "under pro-
test" were not willful failures to mitigate damages.
According to the backpay specification, as amended,
Rodman's gross and net backpay by calendar quarters is
as follows:
1132
1977 - 4th Qtr.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
GROSS
,BACK-
PAY
INTER-
IM
EARN-
INGS &
EX-
PENSES
NET
BACK-
PAY
Gross Backpay (160 hrs. at
^51 L595 per hr.). _ ' $185520
Interim Earnings $1380.20
Carl Pons Electric Co. Ex-
penses-
Motel 158.00
Food 10400
Net Backpay $ 737.00
1978 - 1st Qtr.
Gross Backpay (508 5 firs. "at
$11 595 per hr ) $5896 06
Interim Earnings $3941.23
Carl Pons Electric Co Ex-
penses.
Motel 435.60
Food 20600
Net Backpay $259643
1978-2dQtr.
Gross Backpay (424 hrs, at
$11 595 per hr.) $4916.28
Interim Earnings
Expenses
Net Backpay
None
None
$491628
Total Net Backpay Due Rodman
PEN-
HEALTH
& VACA-BACKPAY SION WEL- TION
FARE
$824971 $ 315.50 $296.57 $43999
Total $9300.07
B. Larry J. Nolon
The only issue in Nolon's case is how much backpay
he is entitled to receive to,be made whole. As noted
above, Nolon was unlawfully prohibited by Respondent
from signing book I until July 5, 1978. He was also
denied the right to sign book II under protest and, there-
fore, as Rodman, did not sign book II. Subsequent to
July 5, 1978, Nolon was referred out by Respondent's
hiring hall and, therefore,, the backpay period for him
ends after he was referred out, on July 6, 1978. During
the backpay period Nolon incurred reasonable and al-
lowable expenses in copnection with his interim employ-
ment. He incurred 'no willful loss of earnings. Respond-
ent's argues that Nolon and Rodman should have signed
book II if they had done so then on March 21, 1978,
they would have been referred out since everyone cur-
rent on book I or book II was referred out at that time.
Therefore their failure to sign book II was tantamount to
a willful loss of earnings. This argument is without merit.
If Respondent had obeyed the law and let Rodman and
Nolon sign book I, there would be some merit to their
argument but since they did not the failure of Rodman
and Nolon to sign book II because they were not permit-
ted to write in "under protest" is not a willful .loss of
earnings caused by them.
During the backpay period Nolon quit his interim job
at Carl Pons Electric Co. when he and other electricians
on, the job engaged in a general walkout. The walkout
was followed by a layoff at Carl Pons Electric. There
was no evidence that the general walkout was not pro-
tected concerted activity and therefore Nolon's joining
in the walkout was not a willful loss of earnings or a fail-
ure to mitigate damages. After leaving Carl Pons Elec-
tric at Gentry, Arkansas, Nolon returned to Springfield
and attempted to sign book I.
According to the backpay specification, as amended,
Nolon's gross and net backpay by calendar quarter is as
follows:
INTER-
IMGROSS EARN- NETBACK- INGS & BACK-PAY BACK- PAY
PAY
1977 - 4th Qtr.
Gross Backpay (160 hrs at
$11 595 per hr ) $1855.20
Interim Earnings $1545.00
Carl Pons Electric Co. Ex-
penses:
Motel and Food 36000
Mileage (600 miles at $ 10) 6000
Net Backpay $730 20
1978 - 1st Qtr.
Gross Backpay (508.5 hrs at
$11.595 per hr.) $589606
Interim Earnings $5347.40
Carl Pons Electric Co Ex-
penses
Motel and Food 936 00
Mileage (1950 miles at $ 10) 195 00
Net Backpay $1679 66
1978 - 2d Qtr.
Gross Backpay (424 hrs at
$11.595 per hr.) $4916.28
Interim Earnings $1320.00
Carl Pons Electric Co Ex-
penses:
Motel and Food 28800
Mileage (600 miles at $.10) 6000
Net Backpay $3944 28
Total Net Backpay Due Nolon
BA CKPA Y PEN-
HEALTH VACA-
SION `t` TION
WEL-
FARE
$6354.14 $ 191.50 S18001 $26646
Total. $6992.11
C Samuel Miller
Samuel Miller qualifies as a discriminatee because I
credit his testimony that Respondent's steward J. C.
ELECTRICAL WORKERS IBEW LOCAL 453 (SACHS ELECTRIC)
Danner asked Miller , who was a traveler , to quit the
Sachs job in favor of members of Respondent Local and
be did so. After leaving the Sachs job, Miller looked for
work as an electrician in Springfield , Missouri , where he
lives, and kept current on the books at Respondent's
hiring hall. On May 1, 1978, Miller refused a referral
from Respondent to a job at Fort Leonard Wood. His
stated reason was that he had transportation problems
but since he would have had transportation problems at
the time, whether he had been unlawfully requested to
leave the job in December 1977 or not, his refusal to
take a referral back to that same job terminates the back-
pay period for Miller. Later that month Miller accepted
a referral to O'Byrne Electric. Between December 1977
and May 1978 Miller made reasonable efforts to secure
employment and incurred no willful loss of earnings.
According to the backpay specification , as amended,
Miller 's gross and net backpay by calendar quarter is as
follows:
GROSS
BACK-
PAY
INTER-
IM
EARN- NET-
INGS & BACKPAY
EX-
PENSES
1977 - 4th Qtr.
Gross Backpay (160 hrs at
$11.595 per hr) $1855.20
Interim Earnings
Pat Roper Expenses
$80.00
None
Net Backpay $1775 20
1978 - 1st Qtr.
Gross Backpay (508.5 hrs. at
$11.595 per hr.)
Interim Earnings
Expenses
$589606
None
None
Net Backpay $5896.06
1978 - 2d Qtr.
Gross Backpay (424 his at
$I L595 per hr.) $4916.28
Miller is entitled to 1-month pay up to May 1, 1978, or
$1229.07 . On May 1, 1978, he refused a referral from Re-
spondent ' s hiring hall back to Fort Leonard Wood.
Total Net Backpay Due Miller
BACKPAY
$8900.33 $ 542.75
Total- $10„708.49
HEALTH
PEN- & VACA-
SION WEL- TION
FARE
$510.18 $755.23
D. Harold Calk
Harold Calk qualifies as a discriminatee because I
credit his testimony that he left the Sachs job when re-
quested to do so by Steward J. C. Danner so that jobs
could be available for members of Respondent Local. On
March 21, 1978 , Calk was referred back to the Sachs job
at Fort Leonard Wood by Respondent's hiring hall. This
1133
referral terminates the backpay period for him. Calk was
terminated on May 13, 1978, for cause and the termina-
tion will not revive the backpay period . Calk incurred no
willful loss of earnings during the backpay period since
he kept current on the books at Respondent 's hiring hall
and he kept in contact with another IBEW hiring hall in
Little Rock , Arkansas.
According to the backpay specification , as amended,
Calk's gross and net backpay calendar quarter is as fol-
lows:
INTER-
GROSS IM
BACK EARN- NET-
PAY INGS & BACKPAYA.X-
PENSES
1977 - 4th Qtr.
Gross Backpay (160 hrs. at
$11.595 per hr.)
Interim Earnings
Expenses
$1855.20
None
None
Net Backpay $1855.20
1978 - 1st Qtr.
Gross Backpay (412 5 hrs. at
$11.595 per hr.)
Interim Earnings
Reinstated to Sachs Electric
on March 4, 1978
$4782.94
None
Net Backpay $4782.94
Total Net Backpay Due Calk
HEALTH
PEN- & V4CA-BACKPAY SION WEL-
FARE
TION
$6638 14 $ 286.25 $269.07 $398.29
Total- $7591.75
E. Dennis Jolley
Dennis Jolley is properly named in the backpay speci-
fication as a discriminatee since I credit his testimony
that he "drug up" or quit at Sachs Electric at the request
of Jim Hensley , Respondent 's business manager. Jolley's
backpay period ends when he was referred to Trans-Dyn
Corp. in March 1978 . Between December 1977 when he
left Sachs at Respondent 's "request" in favor of members
of Respondent 's Local and March 21, 1978, when re-
ferred to other work, Jolley acted in a reasonable
manner to mitigate damages by keeping current on the
books at Respondent's hiring hall. -
According to the backpay specification , as amended,
Jolley's gross and net backpay by calendar quarter is as
follows:
1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
77 4th Qtr.
INTER-
IM
GROSS EARN-
BACK- INGS &
PAY EX-
PENSES
NET
BACK-
PAY
77 - 4th Qtr.
GROSS
BACK-
PAY
INTER-
IM
EARN-
INGS &
EX-
PENSES
NET-
BACKPAY
Gross Backpay (160 hrs. at
Gross Backpay (160 hrs. at
$11.595 per hr) $1855.20
er hr )$11 595 $1855 20.p Interim Earnings None
Interim Earnings None Expenses None
Expenses None Net Backpay $1855.20
Net lackpay $1855.20 1978 - 1st Qtr.
1978 - 1st Qtr. Gross Backpay (508 5 hrs at
Gross Backpay (508 5 hrs at $11.595 per hr) $5896.06
$11595 per hr) $5896.06 Interim Earnings
Interim Earnings $ 846 67
Bechtel Power Corp $2158 27
Sonmer Electric Co., Inc. 84.83
Trans-Dyn Corp. Expenses
Net Backpay
None
$5049.39
Industrial Electrical Con-
tractors 737 00
Expenses None
Net Backpay $191596
Total Net Backpay Due Jolley 1978 - 2d Qtr.
Gross Backpay (424 hrs. at
HEALTH $11 595 per hr.) $4916.28
PEN- &
BACKPAY SION WEL-
VACA-
TION
Interim Earnings
Newton Assoc $3381.69
FARE Watson-Flagg 578.40
$690456 $ 297.50 $279.65
Total. $7895 68
$41394
Expenses
Net Backpay
None
$956 19
1978 3d Quarter expenses of
F. Elmer Murray
Elmer Murray died of natural causes on March 31,
1979. His widow, Jean Murray, testified. Murray is ap-
propriately designated as a discriminatee. I credit the tes-
timony of Harold Calk, another discriminatee, that he
and Murray were asked by Respondent's steward J C.
Danner to quit the Sachs job to make room for members
of Respondent Local. Calk and Murray left the next day.
No backpay for Murray is claimed after the second quar-
ter of 1978 because he worked steady thereafter. His
widow credibly testified and was not contradicted that
she and her late husband incurred medical expenses of
$1114 in connection with an emergency appendectomy
performed on their daughter during the third quarter of
1978. If Murray had remained at Sachs and had not left
in December 1977, he would have worked the required
number of hours by the time of his daughter's medical
problem so that his IBEW health insurance would have
covered all medical bills and not left him and his wife
with $1114 in uncovered medical bills. Murray took rea-
sonable and prudent steps in an effort to obtain employ-
ment after December 1977. Mrs. Murray testified that
her husband was out of work less then 2 months before
he found employment. After leaving Sachs the Murray
went home to Jonesboro, Arkansas, and Murray sought
employment through the local hiring hall. He had fairly
steady interim employment till his backpay period ended
at the second quarter in 1978.
According to the backpay specification, as amended,
Murray's gross and net backpay by calendar quarter is as
follows:
$1114 medical bills
Total Net Backpay Due Murray
BACKPAY
$4727.35
Total including medical ex-
penses:
HEALTH
PEN- & VACA-
SION WEL- TION
FARE
$ 203 50 $191 29 $283 14
$6519.28
G. Charles N. Robinson
Charles N. Robinson qualifies as being "similarily af-
fected" because he was asked to leave the Sachs job by
Respondent's steward J. C. Danner because Robinson
was a traveler. Robinson's testimony, which I credit,
supports the reasonableness of his quitting his job at Carl
Pons Electric Co. in the fourth quarter of 1977. Robin-
son quit because the job required him to work out of
doors 80 or 90 feet in the air. It was winter and there
was no warmup room at the site. Robinson, who is 65
years old, felt that these conditions, which were different
and harsher than the conditions at the Sachs job, were
too much for him at his age and he quit. There was no
evidence of willful loss of earnings and his claims for ex-
penses are reasonable and allowable. The backpay period
for Robinson ended when he was referred to Overhead
Electric Co. by Respondent in March 1978. Robinson
was laid off by Overhead Electric and referred out to
AFB Contractors with no loss of earnings between those
ELECTRICAL WORKERS IBEW LOCAL 453 (SACHS ELECTRIC)
two jobs. Robinson was thereafter fired for cause from
that job but that firing will not revive the backpay
period. At the time Robinson was referred to Overhead
Electric he could have been referred back to the Sachs
job which he had left in December 1977. I credit Jim
Hensley's testimony that he offered both jobs to Robin-
son and Robinson chose Overhead Electric rather than
Sachs. Robinson denied that he was offered a job back at
Sachs. It is possible that Robinson might have forgotten
that he was offered the job at Sachs.
According to the backpay specification, as amended,
Robinson's gross and net backpay by calendar quarter is
as follows:
GROSS
BACK-
PAY
1977 - 4th Qtr.
Gross Backpay ( 160 hrs. at
$11 595 per hr .) $ 185520
Interim Earnings
James P. Driscoll, Inc.
Expenses
1135
INTER-
IM
EARN- NET-
INGS & BACKPAY
ET_
PENSES
$112320
Mileage 68.00
Rent 100.00
Food 2'30.00
Net Backpay
77 - 4th Qtr
Gross Backpay (160 hrs. at
GROSS
BACK-
PAY
INTER-
IM
EARN-
INGS &
EX-
PENSES
NET-
BACKPAY
31978 - 1st Qtr.
Gross Backpay (508.5 hrs at
$11.595 per hr)
Interim Earnings
LK Comstock, Co.
James P. Driscoll, Inc.
Expenses
Mileage (James P. Dris-
$589606
$11.595 per hr.)
Interim Earnings
$185520 coll, Inc)
Rent
Carl Pons Electric Co. $1091 90 Food
Expenses None Mileage (LK Comstock)
Net Backpay $ 763.30 Motel
Food
1978 - 1st Qtr.
Gross Backpay (508.5 hrs at
Net Backpay
$115915 per hr.) $5896.06 1978 - 2d Qtr.
Interim Earnings $294.98 Gross Backpay (424 hrs. at
Overhead Electric Expenses None $11 595 per hr)
Interim Earnings
$4916.28
Net Backpay $5601 08
LK Comstock Co
Mack-Obyrne
Expenses
Total Net Backpay Due Robinson Mileage (LK Comstock)
Rent
HEALTH
Food (9 days at $10)
PEN-BACKPAY
SION
&
WEL-
FARE
VACA-
TION
Net Backpay
$6364.38 $ 278 50 $233 65 $380.54
Total. $7257.07
H. Damon C. Rutledge
Damon C. Rutledge is properly named as a discrimina-
tee in this case as I credit his testimony that Respond-
ent's steward J. C. Danner asked Rutledge to quit the
Sachs job along with other travelers for the benefit of
members of Respondent Local and Rutledge did so. His
backpay period ends on July 5, 1978. Rutledge took rea-
sonable steps to find interim employment and incurred
no willful loss of earnings.
According to the backpay specification, as amended,
Rulledge's gross and net backpay by calendar quarter is
as follows:
$2773.80
126900,
68.00
100.00
28000
288.00
150.00
270.00
$1198.20
1855.20
96 00
:50.00
90.00
$1130.00
$3009 26
$2098.88
Total Net Backpay Due Rutledge
BACKPAY
HEALTH
PEN- & VACA-
SION WEL- TION
FARE
$6238.14 $ 156.50 $10974 $21776
Total $6722.14
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed'
ORDER
1. Respondent, its officers, agents, successors, and as-
signs, shall satisfy its obligation to make whole Bill
i 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 to Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Rodman for backpay due him by paying him net back-
pay in the amount of $9300.77, plus interest accrued to
date of payment, computed in the manner prescribed in
Florida Steel Corp., 231 NLRB 651 (1977),2 minus any
tax withholding required by Federal or state law.
2. Respondent, its officers, agents, successors, and as-
signs, shall satisfy its obligation to make whole Larry J.
Nolon for backpay due him by paying him net backpay
in the amount of $6992.11, plus interest accrued to date
of payment, computed in the manner prescribed in Flori-
da Steel Corp., supra, minus any tax withholding required
by Federal or state law.
3. Respondent, its officers, agents, successors, and as-
signs, shall satisfy its obligation to make whole Samuel
Miller for backpay due him by paying him net backpay
in the amount of $10,708.49, plus interest accrued to date
of payment, computed in the manner prescribed in Flori-
da Steel Corp., supra, minus any tax withholding required
by Federal or state law.
4. Respondent, its officers, agents, successors, and as-
signs, shall satisfy its obligation to make whole Harold
Calk for backpay due him by paying him net backpay in
the amount of $7591.75, plus interest accrued to date of
payment, computed in the manner prescribed in Florida
Steel Corp., supra, minus any tax withholding required by
Federal or state law.
2 See generally Isis Plumbing Co, 138 NLRB 716 (1962) The request
of Respondent to waive the accrual of interest is denied in the absence of
any good and sufficient reasons being advanced to justify it
5. Respondent, its officers, agents, successors, and as-
signs, shall satisfy its obligation to make whole Dennis
Jolley for backpay due him by paying him net backpay
in the amount of $7895,68, plus interest accrued to date
of payment, computed in the manner prescribed in Flori-
da Steel Corp., supra, minus any tax withholding required
by Federal or state law.
6. Respondent, its officers, agents, successors, and as-
signs, shall satisfy its obligation to make whole the estate
of Elmer Murray for backpay due him by paying him
net backpay in the amount of $6519.28, plus interest ac-
crued to date of payment, computed in the manner pre-
scribed in Florida Steel Corp., supra, minus any tax with-
holding required by Federal or state law.
7. Respondent, its officers, agents, successors, and as-
signs, shall satisfy its obligation to make whole Charles
N. Robinson for backpay due him by paying him net
backpay in the amount of $7257.07, plus interest accrued
to date of payment, computed in the manner prescribed
in Florida Steel Corp., supra, minus any tax withholding
required by Federal or state law.
8. Respondent, its officers, agents, successors, and as-
signs, shall satisfy its obligation to make whole Damon
Rutledge for backpay due him by paying him net back-
pay in the amount of $6722.14, plus interest accrued to
date of payment, computed in the manner prescribed in
Florida Steel Corp., supra, minus any tax withholding re-
quired by Federal or state law.
9. The Charging Party's motion for attorney's fees is
denied.