Everspray Enterprises, Inc.

National Labor Relations Board - Board Decisions

Dec 22, 1980

253 N.L.R.B. 922 (N.L.R.B. 1980)

I):(CISIO'NS ()F NA1O()NAI. .AlOR RELATIONS BOARI)
Everspray Enterprises, Inc. and Road Sprinkler Fit-
ters, Iocal Union No. 669, affiliated with
United Association of Journeymen and Appren-
tices of the Plumbing and Pipe Fitting Industry
of the United States and Canada, AFL-CIO.
Case 13-CA- 16102
December 22, 1980
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN FANNING ANI) M.MI1RS
PENI.I () ANDI) TRUISI)AI.E
On January 24, 1980, Administrative Law Judge
Claude R. Wolfe issued the attached Supplemental
Decision' in this proceeding. Thereafter, Respond-
ent filed exceptions and a supporting brief, and the
General Counsel filed a response and opposition to
Respondent's exceptions. On April 17, 1980, the
National Labor Relations Board issued an Order
Reopening Record and Remanding Proceedings for
Further Hearing. After the further hearing, Admin-
istrative Law Judge Claude R. Wolfe, on Septem-
ber 18, 1980, issued the attached Second Supple-
mental Decision. Thereafter, Respondent filed ex-
ceptions and a supporting brief, and the Charging
Party filed a response and opposition to Respond-
ent's exceptions.
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 Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,2 and conclusionsa of the Administrative Law
Judge and to adopt his recommended Order.
()it March 15. 1178. thu Nallona;l I ithor Rlalionis Bhoard ilised its
l)Decislorl anld Order i this prot'edling at 235 Nl RB 120
2 Rpslponidelil has excepted t, celtaliln rt'libility findigs 1;lade h titi
Admilillmratlse I a Jige anld hits aissetl d tlhat tic Adunillistr.atls I xv
Judge cxihllt ti bias ;ig;lill R spodeit It is tie 1toard, est;ablished
policy not to o; rrule .1an a.iitiistralive law udge's resolitimis wilth re-
specil Io credilhity unle's Ihe cla1a prepoltdcrae lli (1f all il tIhe rlevsaint
evideclle Clll nitIs U t Ilial tile rsoluillon ale illncorrect Stndiurdl )rO ,
Wall Proinui I . 91 NI RI 544 (195(O), tifd 188 F12d 3h2 (3d (dir
1951) \IWe lia' Lcarefull Cexaritred tilhe rectrd .11nd find not basis flr re
ersing his finldings and irld i t idcllcte il bias hby hc Adillisrratisve
I.as Jdge
Ruspitilt has cxcCptId I1 tile fornitila used to computt e gross back-
pay. arguinlg that it i arbitrrary ansd unlreas lltable Specificall. KR espond-
enl has argued that it is Illploipcr to hase grss .backpay figures Ii Rc-
,polrltrll's gross receipts Illring til backpas perloids sitCe iIis wl rk al-
legedly woruld iot hase beenl aailabl t tlie dlis'rinlllatees, hail they
been reinstated. because il plcketillg anid ther actilons takenl against Re-
spondtent by the Charging PI'rti Urllnl alnd/or a sister local durillg Ihi
period this case was remilnded for the taking of further usille ccIf-
fered by Respontdenl to prove tlc amillr of work, If arly, whic h wuld
not hase bhen available i I the discrinlilnatees hbad tile) behen retllstit'd
l)esptlc the taking iof;tidliona l evidenlce. Responldenlt has failed til sup-
port its assertiois 'e findll t lt reao r t concliudu tlhat tie swork per-
forniedl by Resplonident r it conltracltrs would nolt haile bhtee asailable
253 NLRB No. 127
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Everspray En-
terprises, Inc., Des Plaines, Illinois, its officers,
agents, successors, and assigns, take the action set
forth in said recommended Order.
To tle llririnaltee, had theyv been iffered rcutalt.Imllt their t frmer
polt O.ts. Ve lurlhier findl that, although RespoIdent hiai aaked tile
gsro h;ackpa Irriiula i ot her respecls, the meanls f co mputing hack-
1pa herein i reliahle, reasonable, and de qute RespIonidelnt has failed I
its ;ariltu attacks oii the hackpa tco nlputatloill ii pro, ide an dequale
dtlertantv frmula or computail n. We affilr il t finditgs of the Adminr-
I ralilc l.aw Judge in this regard
Respoildelt has .xcepted to the finding (f the Adlllllliirlaliic as
Judge that the letter selllt I the dilcrilnllllltaees n Septemher 11 1978.
tert toI alid offtlers of retinlstaltcicitl sutficiIt toll hackpay I he Ad-
Illlliltii. [.aU Judge frllld that hbeCilClS the letter i tftIt ffered
ruturrl iotly to layolf status. they were in aliid As e xplalrltd ahou . Rc-
,ponlenti h failed Io prole that there , is ri uork a, alable lor Ihli dis-
crimitiatees We rind that the letters w: erc InI alid offers for tile furth
reasoll that the offers were Ilt nade in gooi failt as i detnced h Rc
spontlent's refusal Ito reinstate Clp and 1 itch whei hct rspoItded to
the tters In addition, Ihe letters ffered rell;lltement ,iil, "at ysour
irrler hourly rate" despite pay raises Respoi lcnt's cplotces since
the discharges.
SUPPLEMENTAL DECISION
Cl ,Iu t. R. Woi l I Administralive aw Judge: This
backpay proceedinlg was heard before me at Chicago. fI-
linmeis on July 3() alnd 31, 1979.' Upon the record as a
whole, my ohser-vations of the , ilnssesss as hey testified,
and the post-trial briefs and a the hearing argumels of
coulsel, I make the followving.
INDIN(S (IF 1Xt I NI) Ci')N( I uSI()NS 01 L,,\Xw
I. HIISTORY OF1- II (CASI
Administrative Las Judge Rohert . Mullin issued his
Decision in the underlying unfair labor practice case on
November 30, 1977, finding, inter ulia, that Respondent
had unlawfully discharged Michael Culp. Robert
Dadabo, Charles Fitch, and Mark Schmitz on O()ctoher 8,
1976. Administrative Law Judge Mullin ordered "imme-
diate and full reinstatement" and the payment of loss of
earnings to these four men. On March 15, 1978, the Na-
tional Labor Relations Board affirmed the Administra-
tive Law Judge's Decision and adopted his recommend-
ed Order. Thereafter Respondent agreed to a Consent
Judgment enforcing the Board's Order, and said Judg-
ment was entered by the United States Court of Appeals
for the Seventh Circuit on November 22, 1978.
The Regional Director for Region 13 of the Board
issued a backpay specification and notice of hearing on
April 9, 1979. Prior to and during the hearing before me
Ihe (iLtinral CIoulIsCl's request that I rclldltdlr ly deltial f her
at10on1 ;l the hearing to strike Respondeutl's ;nitiltld arlswer is denied
Ie t et(rlral Cunsel's motlion t amend hakpay specificatiln is graitlcIe
922
EVERSPRAY ENTERPRISES, INC.
there were various motions and amendments which have
now been duly disposed of.
II. REINSTATEMENT AND HACKPAY
Respondent neither seriously disputed nor proffered
any substantive evidence to dispute the figures advanced
by the General Counsel showing the dollar value of Re-
spondent's sales before and after the discrimination, the
number of hours worked by its installation employees
prior to the discrimination, the interim earnings of Culp,
Dadado, Fitch, and Schmitz, or the wage rates which
would have been received by these four men had they
continued to be employed by Respondent.
A. The Reinstatement Issues
A basic contention of Respondent is that the discrimin-
atees would never had been called back to work, even
had there been no discrimination, because continuing
poor economic conditions and conditions brought about
by actions of the Charging Party forced Respondent to
use the services of individual independent contractors
and a union contractor after the discharges. Respondent
also argues that all discriminatees were given valid offers
of reinstatement.
With respect to the economic argument, Respondent
points to findings of Administrative Law Judge Mullin in
the underlying case that its business had seriously de-
clined. Respondent neglects to mention that Administra-
tive Law Judge Mullin also found that Respondent con-
tinued to perform a substantial amount of installation
work in months subsequent to October 1, 1976; that sub-
sequent to October 1, 1976, four employees were al-
lowed to remain on the payroll and worked considerable
overtime after the discriminatees were discharged; that
individual independent contractors were paid more than
four times as much for their work during the 3 months
following the discharges as they had been paid in the 3
months prior; and that Respondent's revenue for the 3
months following the October I layoff of the employees
who were subsequently discharged was higher than the
revenue for the 3-month period prior to the layoff.
Mullin concluded that it was apparent from this data that
the economic conditions which caused the October 1
layoff ended sometime thereafter. Respondent has prof-
fered no probative evidence that the economic condi-
tions which pertained prior to October 8, 1976, contin-
ued to date. Inasmuch as Respondent proffers no evi-
dence other than argument to support its economic
theory, I find that this defense must fall.
With regard to the claim that union acts made rein-
statement of the discriminatees impossible, I denied Re-
spondent's offer to prove at the hearing, restated in its
post-trial brief, that its efforts to use its own employees,
"such as the discriminatees" since October 8, 1976, met
with threats of picketing and work stoppage to its cus-
tomers and other contractors from the Charging Union.
In substance, Respondent's argument is that union pres-
sure marred it from rehiring its laid-off employees at all
times until the date of the hearing, and that it was there-
by prevented from giving work to the discriminatees.
Assuming arguendo that there have been threats of the
nature alleged, I do not believe that Respondent can rea-
sonably contend that there is any likelihood that the
Charging Union, which seeks a remedy for the four dis-
criminatees, would be roused to actions of the type Re-
spondent alleges by the implementation of the remedy in
this case. Moreover, Respondent concedes that its instal-
lation work has been done by individual independent
contractors and Service America Incorporated, a union
contractor, since 1976 in spite of alleged union picketing
and threats. I am not persuaded that the reinstatement of
the four employees would have exacerbated the situa-
tion, and I am persuaded that the admission that others
were contracted to do the installation clearly implies that
there was work for the discriminatees to do of the very
nature they have previously done. Michael Wellek, Re-
spondent's vice president, concedes that the installation
work that Respondent contracted out was work similar
to that which had been previously performed by laid-off
employees. Michael Wellek further testified that from
September 11, 1978, until November 13, 1978, the dates
of the offers of reinstatement in question, Respondent
had work for the four discriminatees to do. This latter
admission illustrates that Respondent's contention that it
was unable to employ the discriminatees from the time
they were originally laid off until the time of the hearing
is without merit. Consideration of the various arguments
and what evidence there is in the record on the matter
persuades me that Respondent's attempt to show that it
has at all times been unable for the reasons mentioned
above to reinstate the four discriminatees is not only
without merit, but also is an effort to enjoy the fruits of
unfair labor practices without paying the price therefor.
That others are now performing work previously per-
formed by the discriminatees does not excuse Respond-
ent from reinstatement. The work is there to be per-
formed and it is up to Respondent to retrieve it, if in fact
it is necessary and I am not convinced that it is, from the
individual independent contractors and/or Service
America. Respondent has not shown that it is impossible
to do so. The Board has in the past ordered the dismissal
of newly hired employees, where necessary, to make
way for the reinstatement of discriminatees, 2 and the dis-
missal of employees is, in my view, a more serious meas-
ure than severing contractual relationships. That this
may cause Respondent some financial hardship, or strain
its relationship with these contractors, cannot be used to
defeat its obligation to give "immediate and full reinstate-
ment" to the four discriminatees as the Administrative
Law Judge, the National Labor Relations Board, and the
court have ordered.
Respondent has not met its burden of showing that
work was not available for the four discriminatees on the
date of their discharge for reasons unrelated to the unfair
labor practices. Moreover, Respondent's records show
that at least three independent contractors worked
during the week ending October 15, 1976. The very fact
that Respondent terminated the discriminatees on
2 See, e g, E Prentice Machine Works. Inc, 120 NLRB 417 (1958);
Jerry J. Buckley, d/b/a Buckley Development Company and WesL Side
Lumber and Coal Company, 126 NLRB 1171, 1174 1960); Doavw Whole-
sale Co,,.. Inc., 16 NIRB 999, 1006 (1967)
923
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Octcber 8, 1976, indicates to me that there was some
work available for them. If there were no work available
on October 8, 1976, there is no explanation, other than
the unlawful reason found by the Board, why it was on
that date necessary to terminate employees who were al-
ready on layoff. In summary, I am persuaded and find
that the backpay computation period for all four employ-
ees commenced on October 8, 1976, because these men
would likely have returned to work on the next workday
in the normal course of events absent the unfair labor
practices.
The parties stipulated that Respondent mailed a letter
to all four discriminatees on September 11, 1978, and
that it was received by Schmitz and Dadabo on Septem-
ber 14, and by Culp on September 12. Fitch did not re-
ceive his copy of the letter, and it was returned to Re-
spondent because Fitch had changed his address from
the time he was actively employed with Respondent.
The letter sent to these four employees reads as follows:
This letter is to advise you that we are hereby of-
fering you reinstatement to your former position at
Everspray at your former hourly rate. This offer of
reinstatement is contingent upon your accepting this
offer by the close of business Monday, September
25, 1978. If you are interested in accepting this
offer, please sign the enclosed copy of this letter
where indicated, and return it in the enclosed
stamped envelope by the above date.
At the bottom of the letter was the phrase "Accepted
the foregoing reinstatement September-,1978," with a
space for the signature of the recipient. The only one
who replied in writing was Culp who signed the letter
on September 12, 1978, and returned it to Respondent.
Respondent agrees that it received the reply in the
normal course of the mail. Respondent did not request
Culp to come hack to work until it mailed a letter to him
on November 16, 1978. 3 Culp received the letter on No-
vember 20. This letter reads:
Please consider this letter as formal notification to
report for work at our office at 9250 Golf Road,
Des Plaines, Illinois on Monday, November 20,
1978 at 8:(0) am.
At that time you will be given your work assign-
ment.
The parties stipulated that the same was sent to Fitch,
at the address where Fitch actually resided, and that it
was not sent to either Dadado or Schmitz. I credit
Fitch's testimony that he never received the November
letter.
I find that the September 11, 1978, letter is not suffi-
cient to toll the backpay and reinstatement entitlement of
the discriminatees. On its face, the letter asks the recipi-
ent to advise whether or not he is interested in accepting
reinstatement. Moreover, Respondent's brief, which con-
tends that when Culp replied to the letter of September
11 he was reinstated to his original status, plainly sets
forth that the November letter was sent to Culp at the
I The letter is dated November 13, hut Respolndent's presidnlt con-
cedes it was not mailed urtil November 16.
time a job became available. It appears that Respondent
takes the position that Culp was reinstated, by virtue of
his response to the September letter, to the position of a
laid-off employee and was not recalled until November
because there was no work for him to do. I conclude
that the September letter was not an offer of immediate
reinstatement, but was a solicitation of interest aimed at
producing a preferential hiring list at most.
Apart from the fact that I have already found thai
there was work to do for the discriminatees throughout
the backpay period, Respondent's Vice President Mi-
chael Wellek testified that there was work available
throughout the period from September 11 until the letter
of November. Charles Fitch was advised by a Board
agent, about the end of October 1978, that Respondent
was trying to contact him. I credit his testimony that he
called Michael Wellek during the first week of Novem-
ber 1978, told Wellek that he had been advised to con-
tact him about work, and was told by Wellek that the
only work available was that done by contractors and
Fitch should call back. Inasmuch as Wellek concedes
there was work available for the discriminatees it appears
to me that his statement to Fitch was designed to avoid
reinstating him, and confirms my conclusion that the
September letter was only a solicitation of interest and
Respondent was not then in fact contemplating immedi-
ate reinstatement.
Solicitation of interest in employment is not an out-
right offer of reinstatement, and I know of no require-
ment that an employee entitled to immediate and full re-
instatement is required to reply to a mere inquiry into his
interest in that which is his right. Accordingly, I find
that the letters dated September II and mailed Septem-
ber 16 were not valid offers of reinstatement. That Culp
chose to reply to the inquiry regarding his interest, and
Fitch chose to contact Respondent with regard to going
to work after he heard of the letter do not make a bad
offer good.
Culp received the November 13 letter, mailed on No-
vember 16, on November 20, 1978. Thereafter, he drove
his pickup truck to the premises of the Welleks at 3 a.m.
on November 21, parked, and went to sleep. I credit his
testimony that he did so in order to be present at the
start of work the next morning. There is no evidence of
any other reason advanced for this action of Culp, and
the fact that he so acted in order to insure his appear-
ance gives weight to his testimony that he intended to
return to work on November 21. The Welleks detected
the pickup truck parked outside their dwelling and called
the sheriff, who came to the premises. After the sheriff
arrived, the Welleks went out to the truck. Upon seeing
it was Culp, they advised the officers that it was alright
and went back to bed. The only evidence advanced by
Respondent in support of its contention that Culp was in-
toxicated when the officers awoke him at 3 a.m. on No-
vember 21 is that he smelled of beer. Although this was
probably an indication that he had indeed been drinking
beer, it is insufficient upon which to base a conclusion
that he was actually intoxicated. In any event it has no
bearing on the offer of reinstatement and the events that
occurred on November 21 after he reported in.
924
EVERSPRAY ENTERPRISES. INC.
On November 21, between 7 and 8 a.m., Culp reported
to the two Welleks. It appeared to me he was testifying
honestly in regard to what happened, and I credit his tes-
timony that he asked George and Michael Wellek what
he would be doing that day, and was told he would be
going out to dig down with a shovel to a fire main.
Culp's testimony in this regard is inferentially corrobo-
rated both by Michael Wellek's testimony that he did tell
Culp what work he would be doing, and his further testi-
mony that Culp had never done that specific work. Culp
was advised that George Wellek would meet him at the
jobsite. It was agreed to among the three that Culp
would first go home and change into other clothes for
working. According to Culp, whom I credit on this
point, he did not report to the jobsite because they were
makinq him dig down to the fire main by hand, which
was something he had never done and was not done by
installers at Everspray. Dadado corroborates Culp by
testifying that he had never worked on fire mains and
had never done any digging for more than a few inches
deep for Everspray. The Welleks confirmed that the dig-
ging out of fire mains is a job requiring the use of a me-
chanical digger, but I find that on November 21 they
told Culp he would be doing it by hand. It appears that
as of November 21, 1978, Culp was the only installer
who was ever told to work on a fire main, and I think it
more than coincidence that Respondent, at the hearing
on July 31, 1979, after tendering Fitch a written offer of
reinstatement requesting him to report to work on
August 6, told him that his first assignment would be the
installation of a fire hydrant, and asked him if he would
be willing to come back to work on that. The fact that
Fitch agreed that he had no objection to that assignment
does not establish its validity. I am convinced that this
mention, on the official record, of immediate assignment
to working on a fire hydrant was designed to illustrate
that Culp's decision not to do such work was unreason-
able, and to indicate to Fitch that he was to be assigned
to work that Culp had found unacceptable. I find that it
does not in any way show that Culp's action was unrca-
sonable, and I find further that the announcement of this
task, which Culp had rejected, to Fitch was reasonably
calculated to dissuade him from accepting his job back
and to establish a precedent for Respondent assigning
such work to its installers, even though it appears that
such work had never been assigned to the installers
before. 4 I do not think that the July 1979 offer of rein-
statement to Fitch, although the written letter appears to
meet the requirements of a valid offer on its face, is what
is required by the court order, i.e., reinstatement to his
former employment, because that type of work was not
part of his former employment and there is no showing
that work of the type he previously performed was un-
available.5 For essentially the same reason, I find that
the written offer of November 13, 1978, to Culp, al-
though on its face appearing to be valid, was not. The
4 There was no apparent reason, other than those I have found, to spe-
cifically advise Fitch of the exact ork to which he would he aslgnctl
s It has long heen the law" that employees are ito he relstated to their
former job if it still exists lh, Chao . alt, wtl tna tt ,' /he ( ili ! E .n
York, 65 NL.RB 27 (1946). and the wlrk comprising Fitch's former ioh
still exists
assignment to more onerous duties which he could rea-
sonably be expected to refuse testifies to the invalidity of
the offer.
I further find the letters of November 13, 1978, mailed
on November 16. a Thursday. requiring a report to work
on the following Monday do not give the employees a
reasonable time to reply in the circumstances. They
would not have been received in the normal course of
the mails before Friday, November 17, at the earliest,
and it is more likely that they might reasonably be ex-
pected to be delivered on Saturday, November 18. If de-
livered on November 17. it is probable that Culp and
Fitch, both employed elsewhere, would have first seen
the letters on the evening of that day when they re-
turned home fromwork. Culp did not in fact receive the
letter until November 20. At most, they would have
had only Friday night, Saturday, and Sunday to reflect
on the letter, arrive at a decision, and make necessary ar-
rangements incident to changing employment and prepa-
ration to report on Monday. The weekend is hardly the
most propitious time to make such arrangements. There
is no absolute rule as to what amount of time constitutes
a reasonable notice period,7 but I do not think that the
time afforded by the November letters meets the stand-
ard of reasonableness. Moreover, there is no showing of
necessity for such short notice.
For the foregoing reasons, I find that the various Re-
spondent letters to the discriminatees did not meet Re-
spondent's offer of reinstatement obligation and did not
toll backpay.
B., Backpa Frmula and Computation
The General Counsel posits a formula derived from di-
viding Respondent's total sales during the I -motnth
period prior to the unfair labor practices by the total
number of hours worked by installer employees during
that period, arriving at a factor of $27.16, as the amount
of sales dollars required to generate 1 hour of employ-
ment. This factor is then divided into Respondent's total
quarterly sales amounts during the backpay period to
reach the number of hours of employment during each
quarter that would have been worked by employee in-
stallers but for the unfair labor practices. The available
quarterly hours were then divided by the number of in-
stallers who would have worked8 resulting n the quar-
terly hours to which each discriminatee was entitled.
The individual hours were then multiplied by the appro-
priate wage rate' resulting in quarterly gross backpay for
each discriminatee.
Respondent protests that the General Counsel's formui-
la is hypothetical and arbitrary, does not properly take
into account the actual hours worked by individual inde-
pendent contractors and employees of a subcontractor
during the backpay period, and does not allow for infla-
H It casne to pass that delivsry took that long is unexplained
' Irredrnaon' Cuhlusw, u .ocki .Ship r In .p 28i NI RB s,: 1i l74)
[ Tle (icillclll C'olilul nss c.nrpllnlllp i was has e d .on a ti 1 riiplclTI1cnl
wS C lln stiler,. hull (I parti s lpti lal t ha ni is lic aippr,'rldat
' rh s.lt ,,t.- prHected h tt (c ri ( nnstln r tC t i co ntrtcrt-
925
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion which means that "one hour of work might need
two or three times $27.16 in sales."
In addition to its attack on the General Counsel's for-
mula, Respondent presents an alternative formula based
on the hours worked by subcontractors performing in-
staller work during each calendar quarter of the backpay
period divided by nine to arrive at the number of quar-
terly hours to which each discriminatee is entitled.
Running through the various contentions and argu-
ments made by Respondent is a basic misconception of
the burden of proof to be borne by the respective parties.
The General Counsel has the burden of establishing the
gross backpay due each discriminatee, but it has long
been recognized that this is an inexact science not readily
lending itself to specific formulas for each and every sit-
uation. Accordingly, the Board "may use as close ap-
proximations as possible, and may adopt formulas reason-
ably designed to produce such approximations," so long
as the selected formula is not arbitrary or unreasonable
in the circumstances. It is Respondent's burden of proof,
not the Board's, to establish facts in mitigation of its
backpay liability. The Board certainly does not have the
burden of negativing matters of defense or mitigation
that have not been proven by Respondent.'°
The I l-month period prior to the unfair labor prac-
tices can be fairly characterized as representative for
purposes of ascertaining what a continuation of the pat-
tern of earnings before Respondent committed its unlaw-
ful acts would have been but for those acts. The ratio be-
tween sales and hours worked during that II months is
an arithmetical fact, rather than hypothetical. The only
real question is whether or not it is arbitrary or unrea-
sonable to project a continuation of that ratio throughout
the backpay period. I find that it is neither arbitrary nor
unreasonable.
It may be that the amounts of sales required to gener-
ate an hours work will fluctuate from calendar quarter to
calendar quarter, or over even shorter periods, and the
work generated by sales in one quarter may be per-
formed in a later quarter. These possibilities are compen-
sated for by the averaging out process over a period of
months, as the General Counsel has done, resulting in a
reasonably reliable sales to homes factor. The argument
that this ratio does not allow for spiralling inflation, and
therefore may not be used here, is just that, an argument.
The general fact of inflation is well known, but Respond-
ent has adduced no evidence showing to what extent, if
any, it renders the General Counsel's formula suspect. A
general argument in a post-trial brief that "one hour of
work might need two or three times $27.16" in sales is
no substitute for persuasive substantive evidence.
Similarly, the alleged failure by the General Counsel
to fairly treat with the hours worked by contractor em-
ployees during the backpay period has not been shown
to exist. As the General Counsel contends, the hours al-
legedly worked by these persons are not a reliable meas-
ure of hours available to the discriminatees. Respondent
followed a practice of maintaining a steady work force
of its own installers who worked overtime as necessary
and were not laid off when work was temporarily un-
'o NL.R.B. v. Brown & Root. Inc., etc., 311 F.2d 447 (8th Cir. 1963).
available. Contractor employees work only those hours
required for completion of the particular job they are
then working on. The different treatment accorded con-
tractor employees is illustrated by the fact that Lucido, a
regular installer retained for a time after the unlawful
discharges, worked more hours than the contractor em-
ployees. The postdischarge employment situation, where-
by Respondent employed no employees of its own but
contracted all work out, is a departure from its normal
practice prior to the discharges, resulted in major part
from the unlawful separation of four full-time installers,
and is clearly not a normal unfair labor practice free rep-
resentative picture of Respondent's employment prac-
tices which obtained in times free from violations of the
Act. Moreover, I agree with the General Counsel that
the employment data relied on by Respondent, which it
contends the General Counsel has not fairly treated,
must be approached with caution. Respondent's compu-
tation submitted July 13, 1979, showed 15,237 hours
available from the fourth quarter of 1976 through the
fourth quarter of 1978. Its computation submitted at
hearing shows 17,371 hours for the same period, and its
records show 18,266.50 hours attributable to installer
work during the same calendar quarters. Inexplicably,
Respondent, in its post-trial brief, presented a computa-
tion purporting to be an application of its proposed for-
mula based on "actual hours worked by Respondent's
subcontractors in each calendar quarter," but actually
adopting the same hours of work available that the Gen-
eral Counsel derived from his application of the $27.16
factor. This figure adopted by Respondent is 25,379
hours for the period from the fourth quarter of 1976
through the fourth quarter of 1978. Apart from all this
numbers play, Respondent proffered no record evidence
or persuasive testimony of the amount of hours worked
by the Welleks, and did not proffer its journal entries
purportedly showing the actual hours of independent
contractors on which Respondent based an estimate
which it proffered at the hearing.
There is no purpose in further belaboring the inade-
quacies of either Respondent's formula or its computa-
tion. The deficiencies therein are obvious. I am persuad-
ed that Respondent has neither presented a reliable back-
pay computation, met its burden of establishing facts
mitigating its liability, or successfully attacked the prima
facie validity of the General Counsel's formula and com-
putation or shown it to be arbitrary or unreasonable.
Indeed, taken at face value it would appear that Re-
spondent has now agreed with the General Counsel's
formula and basic computation of hours of work availa-
ble by adopting the General Counsel's calculations of
work available in the computation made part of Re-
spondent's post-trial brief.
The General Counsel has shown that the formula set
forth in the backpay specification is reasonable, and the
calculation of total available hours in the amended speci-
fication appears to be accurate. The computation of
backpay in the amended specification requires modifica-
tion because the parties stipulated that nine, rather than
seven, was the number of full-time installer employees at
the time of the discharges involved herein. Accordingly,
926
EVERSPRAY ENTERPRISES, INC.
an adjustment of the General Counsel's computation on
the basis of nine, rather than seven, installers results in
the following computation of net backpay due through
the second quarter of 1979. 1
Average Hours of Work Available per
Discriminatee for Each Quarter
Mike Culp-Continued
Qtr. Gross Backpay Interim Earnings Net Backpay due
4-1978
1-1979
2-1979
3,946.98
1,318.68
3,732.30
1,421.00
0
3,142.00
2,525.98
1,318.68
590.30
Quarter and Year
4-76
1-77
2-77
3-77
4-77
1-78
2-78
3-78
9-78
1-79
2-79
Average Hours
203.31
189.86
219.52
303.88
207.13
301.51
265.65
447.56
657.83
219.78
622.05
Individual Computations'2
The following individual computations are:
Mike Culp
Robert Dadabo
Qtr.
4-1976
1-1977
2-1977
3-1977
4-1977
1-1978
2-1978
3-1978
4-1978
1-1979
2- 1979
Gross Interim et
Backpay Earnings kp dueyngs
$1,062.20
1,044.78
1,273.68
1,823.28
1,242.78
1,809.06
1,593.90
2,685.36
3,946.98
1,318.68
3,732.30
$2,215.36
3,383.78
3,424.16
3,202.21
3,763.14
4,522.29
4,669.23
3,004.80
3,197.00
3,607.00
4,082.00
S 0
0
0
0
0
0
0
0
749.98
0
0
Charles Fitch
Qtr. Gross Backpay Interim Earnings Net Backpay due
4-1976
1-1977
2-1977
3-1977
4-1977
1-1978
2-1978
3-1978
S 813.24
835.56
1,076.04
1,671.34
1,144.25
1,809.06
1,593.90
2,685.36
S 901.61
1,607.28
3,421.50
1,024.00
1,905.25
2,601.27
1,259.25
3,770.13
$ 0
0
0
647.34
0
0
334.65
0
Qtr. Gross Backpay Interim Earnings
4-1976
1-1977
2-1977
3-1977
4-1977
1-1975
2-1978
3-1978
4-1978
1-1979
2-1979
S 813.24
759.44
958.92
1,480.44
1,139.22
1,668.30
1,593.90
2,685.36
3,946.98
1,318.68
3,732.30
$ 91.50
2,593.82
2,941.83
2,561.89
2,724.03
2,993.83
2,757.38
3,214.19
3,438.29
2,827.50
3,046.88
Net Backpay due
721.74
0
0
0
0
0
0
0
508.69
0
685.42
Mark Schmitz
Qtr. Gross Backpay Interim Earnings
4-1976 S 734.50 S 1,981.02
1-1977 759.44 2,272.99
2-1977 907.68 2,410.25
3-1977 1,512.55 2,403.31
4-1977 1,089.05 1,900.57
1-1978 1,658.31 2,594.80
2-1978 1,531.05 1,039.68
3-1975 2,685.36 4,095.24
4-1978 3,946.98 4,436.00
' Inasmuch as backpay liability continues until Respondent makes
valid offers of reinstatement, computation of additional backpay due in
the interim shall be performed by the General Counsel, in accordance
with the formula herein adopted, at the time the backpay period is termi-
nated for each discrnminatee by such a valid offer.
" Utilizing the uncontroverted wage rates employed by both parties in
their respective computations.
Net Backpay due
$ 0
0
0
0
0
0
491.37
0
0
927
D)}:CISI()NS OF NATIONAL LABOR RELATIO)NS 3()ARD
Mark Schmitz-Continued
Qtr. Gros Backpa,
I - 1979
2-1979
1,318X 68
3,732.30
Interim, Earnings
3,08207.(X00
4,)8 2.( )
Upon the foregoing findings of fact and calculations, I
issue the following recommended:
ORDER ':'
The Respondent is hereby ordered to make the follow-
ing named employees whole, in conformity with the
Court Judgment and Board Order herein, by paying each
of them the amounts set forth opposite his name, togeth-
er with any additional amounts of backpay accruing pur-
suant to the formula utilized herein after the second cal-
endar quarter of 1979, with interest computed thereon in
the manner prescribed in the Board's Order. The Re-
spondent shall make the appropriate deductions from
said amounts of any tax withholding required by state
and Federal laws.
Mike Culp
Robert Dadabo
Charles Fitch
Mark Schmitz
$5416.95
749.98
1915.85
491.37
:' I [ the event that tiis Order is enforced by a Judgrlietit of a Ulited
States (Court of Appeals the words in the notice reading "Posted by
Order of the National Lahbor Relalii,is hBoird shall read "'o ted Pursu-
anrt to a Judgment of the United States Court of Appeals I fiforcing an
Order of the National l.abor Relations Board"
SECOND SUPPLEMENTAL DECISION
CLAUDE R. WOI.FE, Administrative Law Judge:
During the original backpay hearing in this matter on
July 31, 1979, I denied Respondent's offer to prove that
acts of the Charging Union, Road Sprinkler Filters,
Local Union No. 669, affiliated with United Association
of the Plumbing and Pipe Fitting Industry of the United
States and Canada, AFL-CIO, herein called Local 669,
caused customers of Respondent to cancel contracts with
Respondent. On April 17, 1980, the Board issued an
order reopening record and remanding proceedings for
further hearing "for the purpose of receiving the evi-
dence outlined in Respondent's offer of proof, including,
specifically, evidence of the amount and type of work
that was or was not available to the discriminatees
during the respective quarters, because of economic con-
ditions or other factors cited in Respondent's offer of
proof."
Accordingly, further hearing was held before me at
Chicago, Illinois, on June 9 and 10, 1980, wherein all
parties had the opportunity to call, examine, and cross-
examine witnesses, and proffer other evidence with re-
spect to the subject of the remand.
After careful consideration of the entire record,' in-
cluding the demeanor of the witnesses as they testified,
I Certain errors in the transcript are hereby noted and corrected
and the post-trial briefs of all parties,2 I make the follow-
ing:
IINI)INGS ANt) CONCI USIONS
I. VID)I.N( ADI)UCEI) ON RMANI)
A. Stipulated Facts
During the entire backpay period the Charging Party,
Local 669, and Local 281 of the Sprinkler Fitters Union
maintained a policy of stopping Everspray from perform-
ing sprinkler system installation by the following con-
duct: (a) By picketing three jobsites, and (b) by conduct-
ing a surveillance program of attempting to seek out
Everspray contract sites and where such sites were
found warning the customers that dealing with Evers-
pray would lead to labor problems.
Union agents had the following conversations with
Respondent's customers wherein said agents protested
the use of Respondent on the job:
In June 1978 on the Lubri-tech job in Gurney, Illinois,
Mike Eads of Local 669 had a conversation with Carmen
Consalvo. There was picketing of that job and it was
completed by Everspray using Service America contrac-
tors.
On July 20, 1977, on the Prairie Materials Company
job in Bridgeview. Illinois, Tom Reilly of Local 281 had
a conversation with Jack O'Remus. There was no picket-
ing on the job and it was completed using independent
contractors.
On April 17, 1979, at the McKesson-Robbins job in
Romeoville, Illinois, Tom Reilly of Local 281 had a con-
versation with Lee Bergstrom and Chuck Sellers. There
was no picketing on the job and it was completed by
Everspray using Service America.
On August 2, 1976, at the Midwest American Hospital
Supply Company job in Des Plaines, Illinois, Tom Reilly
of Local 281 had a conversation with Ben Solus. There
was no picketing on the job and the stipulation does not
say whether the job was completed by Everspray.
2 n) July 29, 1980, the General Counsel filed a motion to strike por-
tionils of Respondent's brief which (1) accuse the Charging Party) of fraud-
ulent and contemptuous conduct, with the unwitting cooperation f the
General Counsel, in prosecuting a claim for backpay where none is due,
and (2) urge that the Charging Party be held in contempt of court and
the General Counsel be reprimanded for being invlved in Respondent's
conduct Respondent filed a response to the General Counsel's motion as-
serting that its accusation does not indicate a lack of respect fir the Na-
iional l.abor Relations Board's processes, and again accusing the Charg-
ing Party and the counsel for the General Counsel of maintaining a spuri-
ous application without support of fact Although Respondent's remarks
complained of may have resulted from excessive zeal, they are beyond
the limits of fair argument and ought not he condoned Accordingly, the
General Counsel's motion to strike is granted Cf Miami Foundry Corpo-
ration, 252 NLRB No. 2, fn. 1 (1980).
Resp.ondent's motion at hearing to strike certain testimony is denied
Net Hackpav due
(
0
EVERSPRAY ENTERPRISES, INC.
In April 1978 at the W. W. Granger job in Bellwood,
Illinois, Tom Reilly of Local 281 had a conversation
with someone on the site, who was probably a job super-
intendent. There was no picketing on the job and the
stipulation does not state whether the job was completed
by Everspray.
On November 19, 1979, at the Woodfield Lanes job in
Chalmberg, Illinois, Tom Reilly of Local 281 had a con-
versation with Joe Ficarra. There was no picketing on
the job. The job was finished by Everspray using Service
America.
On October 25, 1979, at the Distribution Center, build-
ing 4, in Bridgeview, Illinois, Tom Reilly and Este
Lemon of Local 281 had a conversation with John
Ewald. There was picketing on the job and the job was
completed using Service America.
On October 24, 1977, at the Distribution Center, build-
ing 3, in Bridgeview, Illinois, Charles Schwab of Local
281 had a conversation with Phil Abbinati. There was no
picketing on the job. Everspray did not finish the work.
B. Other Evidence
Charles Schwab, financial secretary-treasurer of Local
281 (a sister local of Charging Party), estimates that he
asked about 30 contractors not to do business with Re-
spondent because it pays its employees less than the area
standard wages, benefits, etc., and further estimates Re-
spondent lost "maybe 15" contracts from October 1978
to date due to Local 281's efforts. He agrees with the
parties' stipulation that Local 281 picketed a job at Brid-
geview, Illinois, in October 1979.
Thomas Reilly, president of Local 281, told Respond-
ent's customers at Woodfield Lanes in Chalmberg, Illi-
nois, on November 19, 1979, that Respondent was nei-
ther using Chicago sprinkler fitters, which I construe as
meaning members of the Sprinkler Fitters' Union, nor
paying area standard wages. Reilly concedes that he
might have said, and I find he did say, that Local 281
would picket if Respondent's services were not dispensed
with.
Bendic Solus, representative of the general contractor
on the Midwest American Hospital Supply job in Des
Plaines, credibly testified that he terminated his contract
with Respondent for sprinkler work about a month after
he was told, in August 1976, by a Midwest representa-
tive to do so. This occurred after Reilly of Local 281
visited the jobsite on August 2, 1976, and told Solus that
Respondent was not acceptable to the Union. The loss of
this work before the backpay period, after it was 99-per-
cent complete, has no impact on the issues of backpay
and reinstatement before me.
On June 9, 1978, Local 669 wrote Carmen Consalvo,
plant manager of Lubri-Tech Products, stating its inten-
tion to picket Respondent while it was working on
Lubri-Tech's Gurney, Illinois, premises because of a dis-
pute generated by Respondent's unfair labor practices
against Local 669 adherents. Shortly before the letter
was sent, Consalvo talked to Local 669 Business Agent
Eads, who told him that if he persisted in keeping Re-
spondent on the job the Union would picket, stop all
truck traffic, and thus close the project down. Eads ex-
plained the Union was picketing all jobsites Respondent
was on because of continuing labor differences. Consalvo
replied that the dispute between the Union and Respond-
ent was not his problem, and refused to comply with
Eads' request to remove Respondent from the job.
Everspray finished their work on the job in spite of pick-
eting commencing a couple of days after Consalvo re-
ceived the union letter and continuing daily for about a
month and a half. Trucks crossed the picket line and the
job was not shut down. The only employees who left the
job after the union efforts against Respondent com-
menced were Respondent's inside shop employees who
delivered pipe to the job. The actual installation was per-
formed by Service America.
In addition to the Lubri-Tech job, the Barron Compa-
ny jobsite in Mundelein, Illinois, was picketed by Local
669 in August 1977 because Respondent was a subcon-
tractor on that job. In a letter to Barron's attorney dated
August 26, 1977, Local 669's attorney advised Barron's
attorney that the picketing was intended to protest Re-
spondent's unfair labor practices against employees se-
lecting Local 669 as their representative. Eads concedes
that he also sent a message to a tavern owner that the
Union would probably not patronize his establishment if
he used Respondent's services. Eads' approach to the
Union's dispute with Respondent is best illustrated by his
own words during an exchange with Respondent's coun-
sel at the hearing:
Mr. Libit, after you guys fired eight people that
signed cards and before you get straight, I am going
to get you everywhere I can find you.
Respondent's Vice President Michael Wellek's testimo-
ny that "approximately 50 contracts" were lost by Re-
spondent during the backpay period due to actions of the
Union is not persuasive because (1) he was only present
on two occasions when the Union spoke to customers,
one of which was the Distribution Center, building 3,
conversation stipulated to above; (2) there is no convinc-
ing showing as to how Michael Wellek knew all these
jobs were cancelled because of union actions; and (3) Re-
spondent made no effort to proffer any of the canceled
written contracts which Michael Wellek testified were in
existence or any other company records to support his
testimony. In addition to the adverse inference arising
from Respondent's failure to proffer these records, Mi-
chael Wellek's testimony suffered from lack of specifics
to support his conclusions, and a degree of evasion when
pressed to provide these specifics. Accordingly, I give
no weight to Michael Wellek's estimate that Respondent
lost 50 contracts due to union acts.
George Wellek, Respondent's president, testified that
the work available to employees is roughly the same
now as it was in September 1978.
C. Conclusions
I find, as the General Counsel concedes, that Respond-
ent did lose work as a result of union efforts. The evi-
dence adduced, however, falls far short of meeting the
Board's suggestion that specific evidence of the amount
and type of work that was or was not available to the
929
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discriminatees should be proffered. No such specific evi-
dence was proffered.
The record of the remand proceeding shows that
Local 281 asked a number of contractors not to do busi-
ness with Respondent because it was nonunion and paid
less than the area standard. I find Local 281 also threat-
ened at least one of these employers with picketing. Of
these contractors, seven were specifically identified. One
was approached on August 2, 1976, and canceled its as-
sociation with Respondent within a month thereafter
when 99-percent of the work was complete. As hereto-
fore noted, this took place outside the backpay period
and is therefore irrelevant, except for background pur-
poses. Of the six other identified contractors: one was
approached in July 1977, one in October 1977, one in
April 1978, one in April 1979, one in October 1979, and
one in November 1979. Only one of the seven was in
fact picketed. Schwab's estimate that his contacts with
about 30 contractors on behalf of Local 281 resulted in
the loss of "maybe 15" contracts by Respondent is un-
supported by any evidence other than that relating to
these seven jobs discussed.
Local 669 picketed one jobsite in August 1977, another
in June 1978, and threatened an employer with picketing
on an unknown date, because Respondent was doing
work for these employers and Local 669 was protesting
its 1976 unfair labor practices. Local 669's policy, as
voiced by Business Agent Eads, is one of picketing Re-
spondent wherever found until the unfair labor practices
are remedied and the Union gets a National Labor Rela-
tions Board election and a contract with Respondent.
Although it is apparent that the picketing by both
Union Locals has indeed caused Respondent some loss of
work, and this was apparently work of the type per-
formed by the discriminatees, Respondent has not pro-
duced evidence of the exact or even closely approximate
amount of such work made unavailable by the Union's
actions. Moreover, it has not been shown that the discri-
minatees could not have been employed doing the work
performed by Service America or other independent
contractors during the backpay period. Respondent's
contention that other trade union members on jobsites
where Respondent performed work "would have refused
to work alongside employees of non-union Respondent
because of the charging party's actions" is speculation, as
is Respondent's further contention that the discriminatees
were never available for work because they would have
honored union picket lines and campaigned for work
stoppage. These speculative contentions as to what
would have happened had the discriminatees been rein-
stated stand unsupported by any probative evidence, and
Respondent has therefore not met its burden of proving
such contentions.
Respondent's basic argument that it never had work
available for the discriminatees during the period since
October 8, 1976, due to the actions of the Unions is, as I
pointed out in my earlier decision, undermined by the
admission of its vice president, Michael Wellek, in the
July 1979 hearing that Respondent did have work availa-
ble for the discriminatees from September 11, 1978, to
November 13, 1978. In the instant proceeding Respond-
ent's President George Wellek testified that the availabil-
ity of work at that time, June 10, 1980, was about the
same as it had been in September 1978, thus further erod-
ing Respondent's argument.
Summing up, Respondent has shown the Unions have
tried, and succeeded to a degree, to place economic pres-
sure on it by causing its customers to sever or avoid
business relationships with it, but Respondent has prof-
fered no persuasive evidence in this hearing on remand
that it could not have employed the discriminatees to
perform work actually done by Service America and
others after their unlawful termination by Respondent.
CONCLUSIONS OF LAW
I conclude and find that Respondent has not met its
burden3 of adducing substantial evidence to support its
affirmative defense that union actions made it impossible
for Respondent to reinstate the discriminatees involved
herein.
Pursuant to the Board's Order on remand, I hereby
issue the following recommended:
ORDER4
The Respondent is hereby ordered to make Mike
Culp, Robert Dadabo, Charles Fitch, and Mark Schmitz
whole in the amounts and manner set forth in the Sup-
plemental Decision issued in this case by the Administra-
tive Law Judge on January 24, 1980.
3 See, e.g., NL.R.B. v. Brown & Root. Inc., etc., 311 F.2d 447 (8th Cir
1963); N.L.R.B. v Miami Coca-Cola Bottling Company, 360 F.2d 569, 576
(5th Cir. 1966).
'In the event no exceptions are filed as provided by Sec. 102.46 of
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 by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
930