Fruin-Colmon Corp.

National Labor Relations Board - Board Decisions

Aug 21, 1979

244 N.L.R.B. 510 (N.L.R.B. 1979)

D)Fl('ISIONS OF NATIONAL LABOR REL ATIONS BOARI)
Fruin-Colilon Corprafion and William E. Miller
alaborers International Union of North America,
AFL.-CIO, L.ocal 282 and William E. Miller and
Owen Innis. ('Cases 14 (A 8891, 14 CB 3066, and
14 (B 3078
August 21. 1979
SUPPLEMENTAL DECISION AND ORDER
BY MIMBIERS Jt.NKINS, MURPHY. ANI) TRtESI)AI.I:
On D)ecember 7. 1976, the National Labor Rela-
tions Board issued its Decision and Order in the
above-entitled proceeding' finding, inter alia, that Re-
spondent Laborers International Union of North
America. AFL-CIO, Local 282. herein called Re-
spondent Union, had violated Section 8(b)( )(A) and
(2) of the National Labor Relations Act, as amended,
by unlawfully causing Fruin-Colnon Corporation.
herein called Respondent Employer, to discharge or
to lay off employees Henry Durham. Owen Innis, Le-
Roy l.ukefahr, Tom l.ukefahr. William E. Miller, Joe
Sachse, and Jim Schoen in violation of Section 8(a)(3)
and ( 1) of the Act, and by discriminatorily refusing to
appoint Miller as a foreman under the provisions of
its collective-bargaining agreement with Respondent
Employer. The Board ordered that these individuals
be reinstated and made whole for any loss of earnings
suffered by reason of the discrimination against them.
On April 6, 1978, the United States Court of Ap-
peals for the Eighth Circuit issued its judgment2 en-
forcing the Board's Order. Thereafter, the Regional
Director for Region 14 issued and served on the par-
ties a backpay specification and notice of hearing on
August 11, 1978, 3 and an amended specification on
October 17.4 Respondent Union filed an answer on
August 22, and an amended answer on October 24:
Respondent Employer filed an answer on August 24,
and an amended answer on October 26.
At a hearing held on October 31, Administrative
Law Judge Phil W. Saunders approved a backpay
settlement agreement entered into by the parties.
Then, on November 3, the General Counsel filed a
motion with the Board requesting special permission
to appeal the settlement agreement reached at the
hearing. Respondent Employer filed a statement in
opposition to the General Counsel's motion on No-
vember 7. Thereafter, by telegraphic order dated De-
cember 5, the Board granted the General Counsel's
' 227 NLRB 59
2571 F.2d 1017
1 All dates herein are in 1978 unless otherwise indicated.
The Regional Director did not file a backpay specification with respect to
discriminatee Henry Durham.
motion to vacate the settlement agreement and re-
manded the case to the Administrative l.aw Judge for
further proceeding.
Pursuant to the Board's direction. a hearing was
held before Administrative Law Judge Phil W. Saun-
ders on February 6, 1979, fr the purpose of deter-
mining the amount of money due the discriminatees
under the backpay specification. On May 18. 1979.
Administrative Law Judge Phil W. Saunders issued
the attached Supplemental Decision in this proceed-
ing. Thereafter. Respondent Union and Respondent
Employer filed exceptions and supporting briefs, and
the General Counsel filed a brief in support of the
Administrative Law Judge's Supplemental Decision.
Pursuant to the provisions of Section 3(h) of the
National Labor Relations Act, as amended. the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Supplemental ecision in light of the excep-
tions and briefs and has decided to affirm the rulings,
findings, and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative aw Judge and hereby or-
ders that the Respondent, Fruin-Colnon Corporation,
Cape Girardeau, Missouri, its officers, agents, succes-
sors, and assigns, and the Respondent, Laborers In-
ternational Union of North America, AFL CIO, Lo-
cal 282, its officers, agents, and representatives, shall
take the action set forth in the said recommended
Order.
SUPPLEMENTAL DECISION
SIAIMENINI OF I CASFi
PuHn W. SAL:NI)I=RS, Administrative Judge: On December
7. 1976, the Board issued its decision directing Fruin-Col-
non Corporation, hereinafter referred to as Fruin or Fr-uin-
Colnon. and Laborers International Union of North Amer-
ica, AFI-CIO. Local 282, referred as I.ocal 282, and jointly
referred to as Respondents. to make hole employees l.e-
Roy Lukefahr. Owen Innis. om Lukefathr. Joe Sachse, Jim
Schoen. Henry Durham, and William E. Miller, fr the loss
of earnings resulting from Respondents' unfair labor prac-
tices. On April 6. 1978, the ('ourt of Appeals for the Eighth
Circuit entered its decree enforcing in full the backpay pro-
visions of the Board's Order, but subsequent thereto a con-
troversy arose over the amount of backpay due the above-
named employees, and the Board's Regional Director then
issued a backpay specification. and also an amended back-
244 NI.RB No. 75
5(
FRUIIN-COI NON C(ORP.
pay specification. alleging the amount of backpay due the
ahove-namled discriminatees. A hearing was held in this
supplemental matter on ebruary 6. 1979. upon the
amended back p! pacification issued on Octohber 17. 1978.
Upon the entire record. including mn observation of the
denmeanor of witnesses. I make the tilow ing:
FIN)IN(iS AND) C()ON I t SI()NS
Fruin-Colnon is a contractor engaged in the general con-
struction industry, and in 1975 was constructing a plant
addition for Procter and Gamble Company at the time of
the discrimination against seven laborers employed on this
job.'
The amended backpay specification alleges, inter alia.
that the named discriminatees are due backpay from Re-
spondents in the amounts set forth in the amended specifi-
cation, that Respondents are jointly and severally liable for
such backpay pursuant to the Board's Order in the prior
unfair labor practice cases, that Respondents are also
jointly and severally liable for contributions to the pension
and to the health and weltare funds on behalf of the alleged
discriminatees and that Local 282 is solely liable for pay-
ment to discriminatee William Miller of a foreman's differ-
ential pay which he would have received absent discrimina-
tion against him. During the course of the hearing before
me, the parties stipulated that the method used by the Re-
gional Director in arriving at the backpay figures for each
of the discriminatees was a proper method, and further
stipulated that the contractual wage rates listed for each of
the discriminatees was correct with the exception of that
listed for Tom Luketahr. However, disagreement remains
with regard to an appropriate date of layoff for each of the
discriminatees, contributions to the health and welfare fund
on behalf of the discriminatees, and the continued payment
to Miller of the foreman's differential through his backpay
period.
Counsel for Fruin-Colnon points out that the construc-
tion industry is characterized by employment of generally
short durations and that there are wide fluctuations in the
total number of jobs available from month to month and
from year to year, that construction employment is higher
during the warmer months of the year, and that few em-
ployees are considered permanent employees of any par-
ticular contractor. It is further pointed out that in the in-
stant case the construction project in question continued
through June 1978. and that least one laborer was em-
ployed continuously throughout the period, and that while
laborers were continued on the project, significant layoffs
occurred, and that on March 31, 1976, the laborers work
force was reduced to a general foreman, a steward, and one
laborer.
Counsel for Fruin-Colnon also introduced various exhib-
its and testimony through its Project Manager Lawton Dru-
ry, and through its expert witness Robert Sorensen, asso-
ciate professor of economics at the University of Missouri.
in efforts to establish layoff dates of the six discriminatees
involved herein.' It appears that exhibits A through I are
graphs which reflect the results of two approaches to estab-
lishing when each of the discriminatees involved herein
I No backpay specification was issued with respect to discriminatee Henry
Durham.
would hae been laid oft; but for the discrimination. Fruin
Exhibit A lists every individual laborer employed on the job
in question from March 31. 1975. through July 12,. 1976.
and Fruin Exhibits B through I superimposes the to stud-
ies upon the information contained in Exhibit A. The two
specific studies here involved were made on the basis of'
layoffs by "seniority" and a "probabilistic model."
Fruin exhibit B is study of layoffs using the probabilistic
model. As pointed out. Professor Sorensen testified that he
believed there were two good reasons for using the "prob-
abilistic model" for one the principle of the lotter\ has
historically been used to make difficult choices when there
exists no objective criteria for making the choice. Second,
when there is no particular criteria for selecting employees
for layoff, you have then, in fact, a random procedure.
It is pointed out by counsel for Fruin that their exhibits
A and C through I. demonstrate the lasoff of' the discrimi-
natees herein by using their seniority nothing that on Oc-
tober 10, 1975, seven employees were laid off: on October
15, 1975. two were laid off: on October 22, 1975., even were
laid off: on February 24. 1976, one was laid off: on March
9, 1976, seven were laid off: and on March 31. 1976, bour
were laid off. Counsel for Fruin argues that seniority ould
be an objective and nondiscriminating method ot' determin-
ing when each discriminatee would reasonably have left the
job ---suggesting that seniority is not biased, nor is it subjec-
tive, and thus, an appropiate criteria to be used to deter-
mine the discriminatee's "rightful place."
Counsel for Fruin further points out that both of their
studies as to when the layoffs would have occurred-- fairl
predicts the probable layoff dates for each discriminatee.
and that each method has been used historically to solve
similar problems, and both meet the criteria enounced by
the Supreme Court as being suitable for the Board's util-
ity -citing Phelps Dodge Corporation v. N. L. RB. 313 U.S.
177 (1941).)
Counsel for Local 282 argues that the General Counsel
offered no evidence on which to base its calculations. and
did not provide information with regard to the actual dis-
cri minatees.
2 Professor Sorensen estified that most of his research activitl is n the
areas of applied microeconomics and that he uses statistical techniques to
test hypothesis about economic phenomena. He testified that he had been
employed by Fruin to use some "probability theroms" in order to calculate
the probable layoff of the discnminatees. assuming the layoffs were random
Below is a companson for dates of layoffs for the discriminatee based n
both studies made by Fruin:
Probabi-
listic
Study
Wm. Miller
Henry Durham
Owen Innis
Tom Lukefahr
Joe Sachdse
James Schoen
LeRoy Lukefahr
3/9/76
11/14/75
10/22/75
10/22/75
10/22/75
10/22/75
10/10/75
Seniority
Study
3/31/76
3/31/76
10/22/75
10/22/75
10/22/75
11/14/75
10/22/75
sI I
D[)F('ISIONS OF NATIONAL I.ABOR RELAlIONS BOARD
T'he Board's compliance officer. Roy Hayden, testified
betfre me that he was responsible for the preparation of the
figures listed in the specification. and in preparation of
these amounts he rlied upon fringe benefits reports and on
the collective-bargaining agreements supplied to him by
Fruin covering members of the laborers' craft working on
the Proctor and Gamble project here in question. Hayden
testified that neither Fruin nor Local 282 was able to pre-
sent any evidence on an objective standard by which layoffs
were made on this project, and in the absence of such objec-
tive evidence. he applied the longstanding Board principle
in backpay cases, and which holds that where there is any
uncertainty as to whether or not discriminatees are entitled
to backpay, the uncertainty must be resolved against the
wrongdoer. Hayden stated that the application of this prin-
ciple resulted in the conclusion that the named discrimi-
ratees herein would have been the last employees remain-
ing on the job in the laborers' craft, with the exception of
the general foreman and the steward, who were given spe-
cial seniority according to the collective-bargaining con-
tract. Hayden further testified that in determining dates on
which each of the discriminatees would have been laid off
under this theory, he relied on the fringe benefit reports
indicating the dates when the number of laborers working
on the project in question dropped below the number of
discriminatees still remaining-other than the general fore-
man and steward--and each time the number of laborers
remaining on the project dropped below the number of dis-
criminatees plus the steward and general foreman, it was
then presumed that one or more of the discriminatees
would have been lawfully laid off, and that this resulted in
the layoff dates alleged in the specification as being the
termination points for backpay for each of the respective
discriminatees.
In differentiating between the discriminatees them-
selves-as to which of them would have been laid off first
Hayden then applied a seniority principle under which the
discriminatees who had been hired first were presumed to
be working the longest, and as discriminatee William Miller
was hired before any of the other discriminatees, it was
presumed he would have continued employment longer
than any other discriminatee. According to Hayden's com-
putations, Miller would have worked through the date
listed on the specification when he received an offer of
reemployment by Fruin as at no time during the backpay
period did the number of laborers on the project in question
drop below three. Hayden further testified that it was pre-
sumed that Miller was entitled to the foreman's differential
from Local 282 through his entire backpay period in the
absence of any evidence that Fruin eliminated the foreman
position when the number of laborers dropped below
eight-a provision in the bargaining agreement.
Hayden admitted that discussions had taken place with
counsel for Fruin and others regarding other possible meth-
ods of computing the backpay in the instant case, but stated
that each of the two methods proposed by Fruin, as afore-
stated, were rejected in that neither system was actually
used either in the industry in general or by Fruin on this
jobsite or elsewhere, and further that neither method nor
study could present any objective evidence of when the dis-
criminatees would actually have been laid off, absent dis-
crimination. Therefore, the uncertainties were resolved
against the wrongdoers in the instant case. and the theories
and studies of Fruin were rejected.
Final Conclusions
In summation, the method used by Hayden to determine
the appropriate layoff dates for the discriminatees was to
consider them to have been the last laborers working with
the exception of the general foreman and steward, and that
thereafter they would have been let go or laid off in the
inverse order of their date of hire. The General ('ounsel
submits and argues that the principle applied by Compli-
ance Officer Hayden in computing backpay set forth in the
amended specification, are based on longstanding Board
policy and that the money due the discriminatees are accu-
rate, and that conclusions and findings herein should be in
accordance therewith. I am in agreement with the General
Counsel.
As pointed out, the two theories and studies proposed by
Fruin were both rejected as there was no evidence that ei-
ther one had any specific relation to the factual situation as
it existed at this jobsite. Moreover. Fruin failed to present
any evidence showing that either theory was ever applied
by them in determining the order of layoff. Fruin's project
manager, Lawton Drury, admitted that he did not know
what criteria was used by Fruin in determining layoffs prior
to his becoming project manager in mid-1977. but agreed
that since he has been project manager, Fruin has relied on
the subjective observations of its foreman in determining
who is the best employee, and in the absence of such obser-
vations they had relied on seniority. As indicated, Fruin
also failed to present any evidence showing that during the
backpay periods here involved. they had ever applied either
a strict seniority system or a probabilistic mode to deter-
mine who would be laid off. Accordingly, as further argued
by the General Counsel, neither of the theories proposed by
Fruin has any foundation in fact or any direct relation to
the situation occurring at this jobsite. and neither study can
present any objective basis upon which to determine when
the discriminatees would have been laid off. In the absence
of such objective evidence. Compliance Officer Hayden was
justified in construing the resulting uncertainty against Re-
spondent, under a longstanding Board principle.
As further noted, the unsound basis of the alternatives
proposed by Fruin is further seen from the fact that each of
their theories or studies results in different dates for certain
of the discriminatees. After the General Counsel introduced
the backpay specification with his layoff dates setforth, the
burden was then on Fruin to prove with certainty when the
discriminatees would have been laid off, absent discrimina-
tion, if their dates differed, but their own studies reveals
that in several instances they cannot do so, and thus there is
no evidence of a definitive nature which would specifically
illustrate when the discriminatees actually would have been
laid off absent discrimination. Indeed, the probabilistic
method applied by Fruin is based. according to its expert
witness Robert Sorensen. on the basis that it was a fair
method of reaching their conclusion "particularly in light of
the fact there was apparently a random selection process
512
FRUIN-COLNON CORP.
occurring when the layoffs on the particular job were
made." Sorensen further stated that there was no objective
basis used on the project, and his conclusions were based
entirely on a hypc;hetical study of what would or could
have occurred had there been a random selection.
A corollary issue arose during the hearing regarding the
placement of discriminatee LeRoy Lukefahr in relation to
the other discriminatees. Counsel for Fruin contended that
LeRoy Lukefahr was terminated and then rehired on Au-
gust 7., 1975, thus giving him a later seniority date than
other discriminatces, and as a result entitling him to less
backpay due to an earlier layoff date. There is also some
testimony in this record to the effect that Lukefahr was
given the lower senority date because of his being a less
than exemplary employee. The General Counsel argues
that I should reject this "hoot strap" attempt to ruin to
reverse a finding established in the underlying unfair labor
practice case.
I, of course, take judicial notice of the prior unfair labor
practice case in this matter-Fruin-Colnon Corporation, 227
NLRB 59 (1976). On page 62 of this Decision, the Admin-
istrative Law Judge found that LeRoy Lukefahr was em-
ployed on June 17, 1965, "and continued to work on the
project until September 4." However, at the hearing before
me, counsel for Fruin took the position that Lukefahr's in-
terim termination and reemployment had not been liti-
gated, but, as pointed out, the Administrative Law Judge in
the prior case made the specific findings noted above re-
garding his tenure on the jobsite, and Fruin then took a
specific exception to this finding when he appealed the Ad-
ministrative Law Judge's Decision to the Board. Thus, the
Board has previously been given the opportunity to reverse
his findings, but it chose not to do so. I am in agreement
with the General Counsel that under these circumstances,
Fruin is now precluded, at this late date, in attempting to
reverse the previous finding in the prior unfair labor prac-
tice case.
Counsel for Fruin and for Local 282 also raises the ques-
tion as to whether LeRoy Lukefahr was actually in the la-
bor market subsequent to his termination because he testi-
fied that he worked more than 600 acres of farm land.
including 300 head of cattle and 300 head of hogs, and had
all of the duties and tasks associated with such an enter-
prise, and, therefore, was never in the labor market for a job
as a laborer and should be denied all backpay. I reject this
argument. Lukefahr testified that after he was let go by
Fruin in September, as aforestated, he then sought employ-
ment by signing up at the union hall and at the unemploy-
ment office, but stated that he was never sent out to any
jobs by either one. There is no evidence in this record to the
contrary, nor is there any showing that Lukefahr ever repu-
diated or withdrew from his intentions to seek work, and
which was specifically indicated when he signed up for em-
ployment at the union hall and at the unemployment office.
Turning now to the allegation that Local 282 is liable for
payment to William Miller of a foreman's differential pay
which Miller would have received absent discrimination
against him. Hayden credited Miller with receiving the
foreman's differential pay for this entire backpay period.
Fruin presented evidence that the collective-bargaining
agreement between the parties requires that presence of a
foreman at a higher rate of pas tor every eight laborers
working on the jobsite.4 Counsel tr Fruin and counsel for
Local 282 also advanced the contention that once the num-
ber of laborers on the jobsite dropped below eight, the con-
verse would be true that is, that there would he no tore-
man once fewer than eight laborers were employed.
lHoever. Hayden testified that the contract between the
parties, as aforestated. does not state that there cannot be a
foreman for less than eight, and also stated that no evidence
was presented to him indicate that, in fact, the toreman was
removed once the crew dropped below eight. Haden testi-
fied that a spot check of pertinent records further indicated
to him that the foreman's differential pas was still being
paid to individuals once the crew size did drop. I am in
agreement with the General Counsel that in the absence of
any certainty, again the ambiguity must be resolved against
the wrongdoers-in this case Local 28 2.'
The General Counsel contends that Respondents are
jointly and severally liable to make contributions to the
Construction Industry's Laborers' Welfare Fund (the fund)
for pension and welfare benefits on behalf' of the discrini-
natees. and should do so for the entire periods during which
the discriminatees are entitled to backpay. Respondents dis-
pute the period of time t)r which such payments had to be
made. The General Counsel seeks contributions under the
terms of the contractual provisions at the rates applied in
the amended specification.
With respect to the contributions for health and welfare
benefits. Respondents take the position that no contribu-
tions are necessary as the individual employees involved
herein suffered no loss of a result of Respondents' failure to
make such contributions. During the hearing Respondents
also elicited testimony from the discriminatees to the effect
that they did not rely on the health fund during the period
under which they would be eligible for backpay, and appar-
ently thus contend that any contribution ordered would
provide no benefit to the individual discriminatees. As de-
tailed and argued by the General Counsel even though
the individual discriminatees herein may not have availed
themselves of the use of the fund during their specitic back-
pay periods. nevertheless. each is in a position where the
overall financial stability of the fund is of great concern.
and further points out that had the individual discrimi-
natees been working during the backpay periods. obviously.
Fruin would then have been making contributions to the
fund on their behalf, and this would have been the case
whether or not they actually received any services or help
from the fund during that particular time. The General
Counsel further maintains that any contributions required
to be made at this date, helps to insure the future financial
stability of the fund and which is a benefit to the discrimi-
nation in that they may be forced to rely on the financial
reserves of the Fund at some time in the future. Accord-
ingly, the General Counsel urges an order requiring contri-
' See G.C. Exh. 4.
1 The General Counsel also points out that Fruin would sureIl have rec-
ords which would indicate who was or was not foreman at each time on its
project, but did not present any evidence which would indicate that it did
not pay foreman's wages once the crew dropped belw eight
51R3
D[)CISIONS OF NATIONAL LABOR RELATIONS BOARD
butions to the fund for welfare and health benefits in the
amounts set forth in the amended specification. I am in
agreement and will so order.2
Upon the foregoing findings, conclusions, and the entire
record, I issue the following recommended:
ORDER'
Respondent, Fruin-Colnon Corporation, Cape Girar-
deau, Missouri, its officers. agents, successors, and assigns.
and Respondent Laborers International Union of North
America, AFL CIO, Local 282, its officers, agents, and rep-
resentatives, jointly and severally liable, shall make whole
employees LeRoy Lukefahr, Own Innis, Tom Lukefahr, Joe
Sachse, Jim Schoen, and William E. Miller, by payment to
6 Payment to the pension fund for the discriminatees hinges on the date or
dates they would have been legally laid off had it not been for the discrimi-
nation against them. Since I have rejected the studies and dates made by
Fruin in this regard, as aforestated, I adopt the amended specification as to
pension figures set forth therein.
I In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
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 he deemed
waived for all purposes.
them of the amount set forth opposite their names below,
plus interest thereon computed in the amount and manner
prescribed in Florida Seel Corporation, 231 NLRB 651
(1977),. less the tax withholding required by federal and
state laws, and by payment to the Construction Industry
Laborers Welfare Fund of the amounts set forth opposite
the names of the employees below plus interest accrued to
the date of payment pursuant to Floril Steel, .supra.
Backpay Welfare Pension
LeRoy Lukfahr
Owen Innis
Tom Lukefahr
Joe Sachse
Jim Schoen
Wm. E. Miller
$7,629.89 $
1,419.43
3,755.96
5,829.15
5,075.33
28,824.03
322.68 $
322.68
162.68
250.71
220.59
1,740.33
415.11
39.98
108.45
167.14
147.06
1,062.69
In addition, Local 282. shall make whole employee Wil-
liam E. Miller with regard to the foreman's differential by
payment to him of $2,427.88 plus interest accrued to the
date of payment pursuant to Florida Steel, supra, less the
tax and withholding required by federal and state laws.
See, generally, Isis Plumbing & Heating Co, 138 NLRB 716 1962)
514