Hod Carriers' Local 300

National Labor Relations Board - Board Decisions

Jun 23, 1966

159 N.L.R.B. 1128 (N.L.R.B. 1966)

1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hod Carriers ' and Construction Laborers ' Union , Local No. 300,
AFL-CIO (Desert Pipeline Construction Co.) and Dennis R.
Murray. Case 21-CB-2096. June 23,1966
SUPPLEMENTAL DECISION AND ORDER
On February 11, 1964, the National Labor Relations Board issued
a Decision and Order in the above-entitled case, finding, inter alia,
that the Respondent had caused an employer, Desert Pipeline Con-
struction Co., to discriminate in employment against Dennis R.
Murray and Phillip J. Dalton, in violation of Section 8(b) (2) and
(1) (A) of the National Labor Relations Act, as amended, and
directing that Respondent make Murray and Dalton whole for any
loss of pay resulting from the discrimination against them.,
On May 27, 1965, the Regional Director for the Board for Region
21 issued a backpay specification and notice of hearing and the
Respondent filed an answer thereto. Upon appropriate notice issued
by the Regional Director, a hearing was held before Trial Examiner
Maurice M. Miller for the purpose of determining the amounts of
backpay due the claimants.
On April 7, 1966, the Trial Examiner issued his Supplemental
Decision, attached hereto, in which he found that the claimants
were entitled to the amounts of backpay therein set forth and that
payments to certain "fringe benefit" funds should be made in their
behalf. Thereafter, the Respondent filed exceptions to the Supple-
mental Decision and a supporting brief.
Pursuant to the provision of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
_member panel [Chairman McCulloch and Members Jenkins and
Zagoria] .
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no- prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Trial Examiner's Supplemental Decision, the exceptions and brief,
and the entire record in this case, and" hereby adopts the findings,
conclusions, and recommendation of the Trial Examiner.
[The Board ordered that the Respondent pay to the employees
involved in this proceeding as net backpay, and pay to "fringe
benefit" funds, the amounts determined to be due in the Trial
Examiner's Supplemental Decision.]
1 145 NLRB 1674
159 NLRB No. 103.
HOD CARRIERS' LOCAL 300 1129
TRIAL EXAMINER'S SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
On February 11, 1964, the Board issued its Decision and Order with respect to
this case. 145 NLRB 1674. Therein, Respondent Union was found to have vio-
lated Section 8(b)(2) and (1) (A) of the National Labor Relations Act by causing
Desert Pipeline Construction Co. to discharge Dennis R. Murray and Philip J. Dal-
ton for discriminatory reasons. The Board's Order, inter alia, directed that Murray
and Dalton be made whole for any loss of pay they may have suffered by reason of
their discharge . On May 27, 1965 , the Regional Director for Region 21 issued a
backpay specification which detailed the sums due Murray and Dalton for backpay,
plus certain further sums payable on their behalf; these sums were specified as due
through the calendar quarter which ended March 31, 1965, reserving for further
determination Respondent Union 's backpay obligation for subsequent calendar
quarters. Respondent Union's answer to the backpay specification was filed June 24,
1965; therein , Respondent Union challenged the Board 's jurisdiction of the subject
matter and further denied backpay liability.
Pursuant to notice , a hearing with respect to the issues was held in Los Angeles,
California, on July 27, and August 2, 1965, before Trial Examiner Maurice M. Mil-
ler. The General Counsel and Respondent Union were represented by counsel.
Each party was afforded a full opportunity to be heard , to examine and cross-
examine witnesses , and to introduce evidence pertinent to the issues . When their
respective testimonial presentations were complete , counsel waived oral argument,
but declared their intention to file briefs . General Counsel has submitted a brief,
which has been duly considered.
The Motion to Dismiss
Counsel for Respondent Union herein-when the hearing convened-proffered a
motion to dismiss based upon several grounds. The motion , taken as a whole, was
denied. The record reveals , however, that-with respect to several contentions prof-
fered by counsel-my disposition of the motion was bottomed upon a belief that
Respondent Union's arguments were premature . My determinations in this respect,
therefore , realistically placed Respondent Union 's counsel on notice that certain con-
tentions proffered to support his motion to dismiss might be renewed , when the rec-
ord was fully developed . The motion was, subsequently , renewed. Fairness , there-
fore, would seem to require its reconsideration . Substantially , the motion presented
five contentions:
1. The Board lacks jurisdiction regarding the subject matter, since : (a) The
contract which Business Representative Murdock sought to enforce was priv-
ileged under Section 8 ( f) of the statute ; (b) Murray was , concededly , properly
subject to layoff, pursuant to certain valid requirements specified within the
contract in question ; and (c ) the Board 's determination that Respondent Union
had violated Section 8(b) (2) of the statute, therefore, must be considered con-
stitutionally proscribed.
2. The Board lacks jurisdiction to hear and determine backpay and reinstate-
ment questions before the entry of a court decree confirming the Board 's statu-
tory determination with respect to violations and enforcing its prior order.
3. The Regional Director's backpay specification cannot be considered well-
founded , since the calculations set forth therein derive from Desert Pipeline
payroll records from which General Counsel can draw nothing more than a
speculative presumption that Murray and Dalton would have maintained work
and pay records paralleling those maintained by Desert Pipeline laborers who
remained at work.
4. The backpay specification should be considered legally deficient since it
fails to state , positively, that Murray and Dalton sought to mitigate their Day
losses by registering for work or seeking job referral through Respondent
Union's hall, or that they were denied such referral.
5. The backpay specification should be considered legally deficient-consist-
ently with the principles which Republic Steel Corporation v. Maddox, 379
U.S. 650 , laid down regarding federal labor policy-since it contains no state-
ment that Murray and Dalton ever sought to pursue , but without success, avail-
1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
able contractual remedies, specifically those defined within article V of the
Southern California Master Labor Agreement between the Southern California
Chapter of the Associated General Contractors of America and the Southern
California District Council of Laborers, which establishes a procedure for the
settlement of grievances and disputes.
Counsel's first contention, since it purported, superficially at least, to raise ques-
tions regarding the propriety of the Board's prior determination that Respondent
Union had violated Section 8(b)(2) of the statute was denied. Since, however,
Respondent Union's motion could further be construed to raise a question with
respect to Respondent Union's backpay liability, bottomed upon the conceded
"possibility" that Desert Pipeline would have voluntarily terminated one or both
of the workers concerned under "normal nondiscriminatory" reduction-in-force
standards, counsel's contention was characterized as germane but premature. My
ruling with respect to counsel's motion, thus construed, was deferred; the present
Decision will reflect a determination with respect thereto. Counsel's second con-
tention, proffered in support of his motion, was rejected; my ruling in this respect
is reaffirmed. Section 10(c) of the Act does not proscribe proceedings to determine
the amount of backpay due pursuant to Board orders, prior to court decree. Sec-
tion 10(d) of the statute, rather, specifically provides that the Board may, prior
to the inception of court proceedings, modify its orders. Section 6 of the Act
permits the Board to promulgate rules and regulations which it deems necessary
to effectuate statutory provisions. And Section 102.52 of the Board's Rules and
Regulations, Series 8, as amended, specifically permits Regional Directors to
initiate backpay proceedings following the entry of Board orders directing the pay-
ment of backpay or the entry of court decrees enforcing such Board orders. Coun-
sel for Respondent Union further contended, inter alia, that the Board's Rules and
Regulations improperly permit Regional Directors to issue and serve "non-verified"
backpay specifications while requiring respondents to file "sworn" answers thereto.
My attention was, therefore, directed to the fact that Respondent Union's counsel
had challenged the propriety of such disparate requirements by filing a response
which was not "sworn to" by Respondent Union herein, or its counsel. Since the
General Counsel's representative, however, has raised no question regarding the
formal propriety of Respondent Union's answer, no justiciable issue seems to be
presented.
Respondent Union's third and fourth contentions, so far as I could determine,
raised no significant issue, preliminarily cognizable under Board decisional doctrine,
with respect to the legal sufficiency of the Regional Director's backpay specification.
Counsel's third contention merely challenged the relevancy and materiality of cer-
tain data presumptively relied on by the Regional Director to establish the sums
due Murray and Dalton as backpay; without a developed record, clearly, no dispo-
sition of the contention could conceivably be deemed warranted. The contention
will be resolved within this Decision. With respect to counsel's fourth contention,
my denial of his motion was predicated upon well-established Board doctrine; pur-
suant thereto General Counsel bears no burden of proof-and therefore need not
declare or prove as a condition precedent to backpay determinations-that the
workers subjected to discrimination have tried to mitigate their pay losses. I. Pos-
ner, Inc., 154 NLRB 202; Mastro Plastics Corporation and French-American Reeds
Manufacturing Co., Inc., 136 NLRB 1342, 1346, and cases therein cited. My
rejection of counsel's contention, therefore, stands reaffirmed.
Counsel's final contention, proffered to support his motion, was first denied
since, superficially at least, whatever question it raised could have been litigated
within the original proceeding herein; I concluded that the contention constituted
an effort to relitigate Respondent Union's liability for a statutory violation . Since,
however, such a contention, reconsidered with due regard for the developed record,
can further be construed to raise a question regarding Respondent Union's back-
pay liability, bottomed upon certain post-discharge developments, some ruling with
respect'to this portion of Respondent Union's motion would seem to be warranted.
The question presented will, therefore, be discussed further, within this Decision.
FINDINGS OF FACT
Upon the entire testimonial record, documentary and other evidence received,
and my observation of the witnesses, I make the, following findings of fact:
HOD CARRIERS ' LOCAL 300 1131
1. BACKGROUND
Reference has been made to the Board's determination, within its Decision and
Order previously noted, that Respondent Union herein, through Joseph Murdock,
its business representative, caused Desert Pipeline to discharge Murray and Dalton
for statutorily proscribed reasons. Regarding its remedial order, however, the
Board noted, within a footnote p. 1675, that:
However, as Respondent [Union] had the right to insist that two of the five
"key men" employed by Desert, among whom were Dalton and Murray, be
discharged under the terms of the understanding with that company, it is
possible that in complying with the lawful demand, Desert would have volun-
tarily terminated one or both of these employees under its normal nondis-
criminatory reduction-in-force standards. This possibility was not litigated
at the hearing. Accordingly, the Trial Examiner's remedy recommendation
is here modified so that this possibility will be considered in determining the
amounts of backpay, if any, due to Dalton and Murray, and their right to
reinstatement.
The possibility thus suggested for consideration, together with its conceivable
impact on Respondent Union's backpay liability, was fully canvassed within the
present record. Questions regarding the designated possibility together with its
policy consequences present the principal factual and legal issues with which this
case is concerned.
II. RESPONDENT UNION'S BACKPAY LIABILITY
A. Issues
For reasons which I propose to discuss further, within this Decision, Respond-
ent Union's liability for Phillip J. Dalton's backpay, based upon determinations pre-
viously made with respect to his discriminatory termination, has not been seriously
challenged. Nor has any substantial question been raised with respect to General
Counsel's backpay computation for this discriminatee, detailed within the
specification.
With respect to Dennis R. Murray, however, Respondent Union strenuously con-
tends that reinstatement with backpay cannot reasonably be considered necessary
to effectuate statutory policy. My review of the record suggests that Respondent
Union's challenge presents three significant questions:
1. Since a determination may be warranted that Desert Pipeline herein, con-
fronted with a contractually justified demand that two members of its five-man
crew should be terminated, would voluntarily have terminated Murray consistently
with its normal nondiscriminatory reduction-in-force standards, should a backpay
award for him, running from the date of his termination, be considered necessary
or proper?
2. Assuming, arguendo, that the statute's remedial purposes would not be served
by backpay for Murray payable from the date of his discharge, would a determina-
tion be warranted, nevertheless, that backpay liability developed thereafter, based
upon certain subsequent developments chargeable to Respondent Union's
representatives?
3. Assuming, arguendo, that positive responses with respect to either of these
questions would be warranted, how should Murray's backpay be computed?
Should a determination be made that Respondent Union's payment of some back-
pay to Murray would nominally effectuate statutory policies, consideration would
then have to be given Respondent Union's contention, previously noted, that such
payments should nevertheless be withheld, no proof having been produced that
Murray ever sought to pursue whatever remedy might have been available to him
under Respondent Union's contractually specified grievance procedure. These
questions we must now consider.
B. The challenged termination
1. Background
Murray, so the record shows, began work for Desert Pipeline in June'1962; for
some months his employment record ' was somewhat spotty. By January 1963,
-however, having gained some seniority, he was receiving practically- "steady" work
1132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with Foreman Harry Richardson's crew. Murray's testimony-proffered without
contradiction-warrants a determination, that, between June 1962, and the date of
his Desert Pipeline worktime, including ost of his time during 1963's first calen-
dar quarter, was spent on jobs within Respondent Union's geographic jurisdiction.
The record, however, provides no clue as to whether Murray, during this period,
served on laborer crews consisting of three men or more; nor does.the record show
whether any crews with more than three laborers; with which-he may have worked,
included laborers dispatched through Respondent Union's hall.
While serving with Foreman Richardson's crew on Desert Pipeline's -Rexford Drive
project, which had been running for some 2 weeks before the terminations chal-
lenged herein, Murray was working with four other laborers. Two of these, Gon-
zales and Lopez, were classified, specifically, as pneumatic tool operators and were
being paid $3.47 per hour. Three crew members, Dalton, Murray, and Rodriguez,
were classified merely as laborers, receiving $3.26 per hour. Murray's testimony,
-proffered without contradiction, reveals that his Desert Pipeline employment record
included previous periods of service as pneumatic tool operator; with respect to.
Desert Pipeline's Rexford Drive project, however, while performing various types of
work, he was classified a laborer. The record warrants a determination that these
five laborers-beginning with the worker having most seniority-ranked as follows
Dalton, Lopez, Gonzales, Murray, and Rodriguez. Desert Pipeline's payroll records
show Dalton, Lopez, and Gonzales with the same October 1959, month of hire.
Murray's seniority date, previously noted, was June 1962; Rodriguez, so the record
shows, was hired later, during August of the latter year.
2. The discriminatory layoffs
Foreman Richardson, Desert Pipeline supervisor for the crew which Murray and
Dalton were working when they were terminated, declared, for the present record,
that, when required to make layoffs pursuant to a normal reduction-in-force for lack
of work, he generally selects workers for layoff "from seniority, or from job quali-
fication" pursuing a discretion conferred by his superiors.- His testimony was consist-
ent with that which he provided during the original hearing. Then, questioned
with respect to the circumstances under which Murray and Dalton were terminated,
Richardson testified as follows:
Q. Well, will you tell us what Mr. Murdock said and what you said?
A. Mr. Murdock said that I could only have three laborers from Local 507.
Q. And what did you say or do?
A. I said I would like to use the oldest men that worked on my crew, the
ones with the most seniority.
Q. Did you mention the names?
A. Yes, I mentioned the names of the three men that had been with me
the longest, that had seniority on my crew.
Q. What names did you mention?
A. I mentioned Lopez, Gonzales, and Dalton.
Q. And what, if anything, did Mr. Murdock do or say?
A. Mr. Murdock said, "The job will not be resumed under those conditions."
Q. Did he say anything else?
A. I said, "Under what conditions can we resume the job?"
Q. What did he say?
A. "As long as Dalton and Murray are not working."
Q. And as a result of that did you lay off Murray and Dalton?
A. Yes, I told the rest of the laborers to go back to work.
Q. And Murray and Dalton did. not go back to work?
A. Not on that job.
This testimony warrants a determination that, had Murdock limited himself to
demanding that Desert Pipeline satisfy its conceded contractual commitment by lay-
ing off two of the five men "imported" to work within Respondent Union's geo-
graphic jurisdiction, Richardson would have voluntarily terminated Murray, together
with Rodriguez presumably, pursuant to his firm's normal nondiscriminatory
reduction-in-force standards. I so find. Dalton, clearly, would have been retained.
The Board's decision, with respect to this case, states that the possibility of Mur-
ray's termination "was not litigated" during the prior hearing. My review of that
hearing's record-with respect to which I have taken official notice-reveals, how-
ever, that Richardson's quoted testimony, then proffered in direct examination (pp.
HOD CARRIERS' LOCAL 300 1133
23-24), was recapitulated in cross-examination (pp. 30-31), and redirect examina-
tion (pp. 40-41, 42-43) principally in response to the Trial Examiner's questions.
Richardson's testimony-that Murdock was told, inferentially, Murray would be
terminated if he (Desert Pipeline's foreman) were left free to exercise his discretion
in complying with Respondent Union's contractually justified demand-was corrobo-
rated by Dalton in direct examination (pp. 52, 56-57), cross-examination (p. 70),
and redirect examination (p. 71). Murray provided further corroboration (p. 82)'
in direct examination. Murdock, summoned as Respondent Union's witness, sub-
stantially conceded the correctness of Richardson's testimony, regarding this portion
of their conversation, when queried in direct examination (pp. 121-122), cross-
examination (pp. 126-127), and redirect examination (pp. 129, 135-136) prin-
cipally by the Trial Examiner then presiding. Further testimony-proffered during
the prior hearing with respect to Murdock's complete conversation with Desert Pipe-
line's foreman-left Richardson's testimony, specifically the portion with which we
are now concerned, unchallenged. See the testimony of Floyd Smith (pp. 153, 157-
160) and Murdock (p. 167) in this connection. Finally, the so-called "possibility"
that Richardson would have voluntarily terminated Murray, had Murdock conceded
his discretion to select two men for layoff pursuant to Desert Pipeline's normal
reduction-in-force standards, was a subject of discussion and argument before the
Trial Examiner; both the General Counsel's representative (pp. 168-170) and
Respondent Union's counsel (pp. 105, 170-172) participated. Since the testimony
presented before me, during the present hearing, fully corroborates Richardson's
prior testimony regarding the relevant portion of his conversation with Respondent
Union's business, representative, the so-called "possibility" that Murray would have
been terminated nondiscriminatonly, had Murdock not dictated his selection, may be
considered a certainty.
When laid off, Murray and Dalton had each worked one-half hour. Desert Pipe-
line's payroll record reveals, however, that Gonzales, Lopez, and Rodriguez worked
seven hours that day. The record, considered as a whole, clearly warrants a further
determination that-but for Murdock's demand that two men, Murray and Dalton,
be terminated-they would likewise have worked that day, and would have contin-
ued work for Desert Pipeline with Foreman Richardson's regular crew, first at Rex-
ford Drive and then some other projects, thereafter.
3. Subsequent developments
Following his April 5 termination, Dalton remained without work until April 10,
1963; on-the date designated, the record shows he was rehired by Desert Pipeline
for laborer's work, resuming his post on Richardson's crew at the firm's Rexford
Drive project.
The record contains a stipulation that Rodriguez, one of three "imported" labor-
ers left on Richardson's crew after the April 5 terminations, transferred into
Respondent Union from Local No. 507 on April 10, 1963. Desert Pipeline, there-
fore, was left with only two "imported" laborers on Richardson's crew, plus one
laborer, Rodriguez, then working within the territory of his new "home" local,
respondent labor organization herein. Presumably, this left Richardson free to
rehire Dalton as his third "imported" keyman. Whether this change in the situation
motivated Dalton's April 10 rehire, however, we can merely surmise, since Dalton
did not testify.
On Tuesday, April 9, Murray had registered for work with Hod Carriers' Local
Union No. 507, Long Beach, California, with which he then held membership
On April 11, however, pursuant to regular procedures he transferred his member-
ship from that local to Respondent Union herein. When he reported at Respondent
Union's hall, seeking transfer, he told a union representative-presumably Rentena
Manuel, secretary-treasurer-that he needed a job clearance. He was referred
"upstairs" to see another union representative. While a witness, Murray could not
recall the name of this latter person, but declared that he was a "Spanish [looking]
fellow," that his office was located "upstairs" within Respondent Union's hall, and
that he (Murray) had to pass through a secretary's office to see him. Murray testi-
fied that the respondent labor organization's "head man" was the person to whom
he was referred. The record, apart from Murray's testimony, warrants a determi-
nation that his membership transfer was recorded by a person who signed himself
as "Lupe" and that the so-called "upstairs" office within which he spoke to Respond-
ent Union's "head man" was the business manager's office. The business manager
then was Ray Waters. I so find.
1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Murray, I find , told Respondent Union's representative that he desired a job
clearance . He was asked to designate the job, and named Desert Pipeline's Rexford
Drive project . The Respondent Union 's representative then told Murray that he
(Murray ) would have to present a written request for dispatch , within which he
would have to be designated by name, from Desert Pipeline's superintendent.
Murray promptly called on John Roberts , Desert Pipeline's superintendent, per-
sonally procured such a written request, and returned to Respondent Union 's hall. He
delivered Roberts' written request to the person with whom he had previously spoken.
As Respondent Union 's representative was reading the request , however, Business
Representative Murdock, who had been responsible for Murray 's April 4 termi-
nation, chanced to enter the office. ( Murdock's own desk, I find, was then located
within another nearby office , designated as the field office, which he shared with a
secretary .) Murdock sought words with the union representative who was then
considering Roberts' written request for Murray's referral ; the two men retired to a
corner of the room, where they held a brief conversation which Murray could not
hear . When their conversation ended, however , the union representative who had
been presented with Roberts' request told Murray that he "couldn 't have" the
desired job clearance.
Murdock, currently Respondent Union 's business manager, when summoned as
Respondent Union's sole witness categorically denied that he had seen or spoken to
Murray at Respondent Union 's hall during April 1963, he further denied that he
had seen Murray on any jobsite , or talked with him, following their April 5 con-
versation . He denied that he had ever seen a letter written by Superintendent
Roberts wherein Respondent Union was requested to dispatch Murray for Desert
Pipeline work . Finally, he denied that he had ever spoken to Ray Waters, then
Respondent Union's business manager, concerning Murray. Considered with due
regard for its total context, however , Murray's testimony , despite Murdock's denial,
struck me as credible . His recitals comport with logical probability ; his description
of the setting within which his request for clearance was denied conforms with
Murdock's description of the office which Respondent Union's business manger
used. Though Murray may have confused the "Spanish [looking] fellow" who
confirmed his' membership transfer , or'recorded it, with Respondent Union's "head
man" the record will, in my opinion , sustain a conclusion that the conversation now
under consideration , between the discriminatee and respondent labor organization's
"head man" or business manager did really occur . I so find.
Murray, I find, then left Respondent Union's - hall without further incident. The
record warrants a determination , however, that he was then registered for work
with Respondent Union; that he renewed his registration weekly thereafter; that
he responded . to weekly "roll calls" of registered men; that, however, he found
"almost 400" men were registered before him ; that he saw registered workers being
dispatched thereafter ; but that he (Murray ) was never called for dispatch since his
high registration number was never reached.
Sometime thereafter , presumably during the week ending April 21, 1963, Murray
returned to work with Desert Pipeline without Respondent Union's job clearance;
the record does , not show for which project he was hired . Once, during this period
of employment , he worked , briefly with a -Desert Pipeline crew which Foreman
Buford Lill, . supervised . Murray was not certain of the precise day or days on
which , he ,worked with Lilly's crew, but testified that this was' 'sometime in April
`1963, shortly after his April 5 termination . I so find. One day, while 'he was
working with Lilly's crew, a person who showed an I.D. card and described him-
self ;as Respondent Union 's business agent visited the jobsite and' accosted Murray
by,narne. Murray 's testimony , which I credit in this connection , reveals that the
visitor merely asked for his union membership book ; he did not , however, request
Murray to show a job clearance or referral . While a witness , Murray could not
recall the ' name of Respondent Union' s putative representative , but testified that
one of his fellow workmen later identified the purported business agent by nickname
as "Bee Bop or Ditty Bop or something like that " Murdock, while a witness, con-
ceded,that , during this period , Respondent Union had employed a business agent
known as "Jitterbug" Jackson. Though Murray 's testimony-with respect to agency
declarations made in his presence by Respondent Union's self -proclaimed repre-
sentative-cle'arly-cannot be considered sufficient , itself, to bind . Respondent Union
herein, -Murdock's concession , that his organization had then employed a business
agent ;witli a nickname which ' I find "something like" those Murray recalled, pro-
videssufficient ' support for a determination that the, person who accosted Murray
was really Respondent Union's representative.
-0,
HOD CARRIERS' LOCAL 300 1135"
Following his verification of Murray's identity, Respondent Union's representative -"
told Foreman Lilly, who was nearby, that Murray would have to be laid off. Lilly,
I find, replied that if the business agent wanted Murray off the job, he would have
to tell him to get off, because he (Lilly) would not do so. Respondent Union's
agent then declared that, should Desert Pipeline's foreman fail to lay off Murray,
he would shut the job down. Lilly persisted in his refusal, Respondent Union's
business agent repeated his declaration. Murray then asked Respondent Union's
agent whether, if he (Murray) left, Lilly's job would be permitted to continue.
When the business representative agreed, Murray left the jobsite.
Thereafter, between April 28, 1963, and February 12, 1964, Murray procured
work elsewhere, under circumstances which have not-been detailed for the record.
During• the paay period which ended February 16, 1964; Desert Pipeline reemployed
him-presumably on February 12-for work within his regular classification. Pay-
roll records, which were proffered and received without dispute, reveal his continued
employment with Desert Pipeline and its successor, Cabildo Corporation, more or
less regularly thereafter.
C. Conclusions
1. Backpay would effectuate statutory policies.
Within his previous Decision herein, Trial Examiner Wilson recommended that
Respondent Union be required to make both Murray and Dalton whole for what-
ever pay losses they have suffered by reason of their discriminatory termination,
between April 5, 1963, and the date of Respondent Union's written notice to Desert
Pipeline that it has no objection to their ieemployment and requests their reinstate-
ment. The Board's Decision and Order (p. 1675), however, contains a finding that:
. . . [A]s Respondent had the right to insist that two of the five "key men"
employed by Desert, among whom were Dalton and Murray, be discharged
under the terms of the understanding with that company, it is possible that in
complying with the lawful demand, Desert would have voluntarily terminated
one or both of these employees under its normal nondiscriminatory reduction-
in-force standards . . . .
The Board, therefore, modified the Trial Examiner's remedy recommendation,
directing'that this "possibility" be considered in determining what backpay, if any,
would be due Dalton and Murray, and their right to reinstatement. Determination
has now been made that Desert Pipeline's project foreman, had he been left dis-
cretion to designate workers for termination pursuant to his firm's normal non-
discriminatory reduction-in-force standards, would have terminated Murray volun-
tarily while complying with Respondent Union's lawful demand, though Dalton
would have been retained.
The backpay specification, however, reflects General Counsel's contention that
backpay for both Murray and Dalton should be computed from April 5, when
Desert Pipeline's foreman terminated them pursuant to Business Representative
Murdock's demand.
With due regard for well-established decisional doctrine, this contention must be
rejected. Confronted with'discriminatory'discharge cases, this Board' has frequently
noted the possibility, that,some of the workers purportedly subjected' to statutorily
proscribed discrimination, might have been discharged or separated from work in
connection with'a reduction in force, even though the respondent firm's management
had selected candidates for' termination on some nondiscriminatory basis.- In such
cases, the Agency has routinely directed'that this possibility be "taken into con-
sideration" when' subsequent determinations must be made regarding the backpay
due such workers The Bedford-Nugent Corp., 151 NLRB 216 (Trial Examiner's
Decision); E V. Prentice Machine Works, Inc., 120 NLRB 417, 418, Akin Products
Company, 99 NLRB 1270, 1278; Deena Products Company, 93 NLRB 549, 554-
555, enfd. as mod 195 F.2d 330 (C.A. 7); Carolina Mills, Inc., 92 NLRB 1141 ,
1145-46, Harold'V. Utterback and David A. Schatz d/b/a U and S Lumber Com-
pany, 92 NLRB 163; 164-165, H. Paul Prigg, an individual, doing business under
the name and style of Piigg Boat Works, 69 NLRB 97, 98-99; The Sandy Hill Iron
& Brass Works, 69 NLRB' 355,'380-381,'Wright-Hibbard! Industrial Electric Truck
Co.,.Inc.,.67 NLRB •897; Beinite Powder'Com'pany, 66 -NLRB 678, 686-687; Carl
E. Brown, et al.,'d/b/a Brown's Tier&-LumbernCompany. 66 NLRB 637, 642-643;
Adel Precision Pioducts Corporation, Division of Huntington Precision Products,
65 NLRB 1439,,11446-47.., The circumlocution noted, however,' has consistently
been considered.a direction that backpay be denied or cut off for particular workers
1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from the date or dates on which they would have been terminated, or their con-
ditions of work modified, nondiscriminatorily. N.L.R.B. v. Carolina Mills, Inc.,
190 F.2d 675 (C.A 4), Corning Glass Works v. N.L.R.B., 118 F. 2d 625 629-630
(C A. 2); Frank P. Slater, an individual, d/b/a Acme Equipment Company, 102
NLRB 153, 154; cf. National Freight, Inc., 154 NLRB 621; Newspaper & Mail
Deliverers Union of New York (New York Herald Tribune, Inc.), 93 NLRB 419,
421, in this connection For example- Where a determination was made that cer-
tain positions had been abolished, and certain workers, discharged, for business
reasons, but that the respondent firm had timed such decisions to discourage union
membership, that respondent was directed to rehire the workers concerned, sub-
sequently, without reference to discriminatory standards of selection; no backpay,
however, was directed. Luckenbach Steamship Company, Inc., 12 NLRB 1330,
1344-45. Consistently, where the Board had found that respondent's pay scales
were modified for nondiscriminatory reasons, concurrently with certain discrimi-
natory discharges, backpay computations based upon the modified pay scale were
directed. Brotherhood of Painters, Decorators & Paper Hangers, Local Union No.
419 (Spoon Tile Company), 114 NLRB 1171, 1174. These cases reflect the
decisional doctrine previously noted.
Such determinations with respect to backpay clearly derive from Board recognition
that its mandate must serve merely remedial, rather than punitive, purposes. Con-
sistently, workers granted backpay from the very date of their discriminatory dis-
charge have had such backpay cut off from the date or dates when, for nondiscrimi-
natory reasons, particular respondent firms would have ceased to employ them. The
Bedford-Nugent Corp., supra; J. C. Boespflug Construction Co., 118 NLRB 550;
Mount Hope Finishing Company, 106 NLRB 480, 500; The Stilley Plywood Co.,
Inc., 94 NLRB 932, 934-936 (Neal Hunt). Cf. W. C Nabors, d/b/a W C Nabors
Co. v. N.L.R.B., 323 F.2d 686 (C.A. 5); N L.R.B v. Transamerican Freight Lines,
Inc., 275 F.2d 311, 314-315 (CA. 7); Salmon and Cowin, Inc. v. N.L R.B, 148
F.2d 941, 943 (C A. 5); N.L.R.B. v. New York Merchandise Company Inc., 134
F.2d 949 (C.A. 2); International Brotherhood of Boilermakers, District No. 2
(The Babcock,& Wilcox Company), 121 NLRB 26, 28. Workers subjected to dis-
crimination , though woik for them may not have been currently available, have
been found not entitled to backpay until work became available with some firm
which they could perform. N L.R B. v. Local 776, International Alliance of Theat-
rical and Stage Employees (Film Editors), 303 F.2d 513 (C.A. 9), National
Freight, Inc., supra; Falarski Sausage Company, 128 NLRB 506, 507; Acme Equip-
ment Company, supra; see also A. B. Swinerton, Richard Walberg and Howard
Hassard, d/b/a Swinerton & Walberg Company, 94 NLRB 1079, 1080, in this con-
nection.
Consistently with these principles , determination seems warranted , contrary to
General Counsel's contention , that Respondent's liability to make Murray whole for
pay losses should not really begin April 5, 1963, when Desert Pipeline's foreman
terminated him pursuant to Business Representative Murdock's demand. (In Local
57, International Union of Operating Engineers, M. A. Gammino Construction Co.
108 NLRB 1225, 1226-28, the Board majority' s stated rationale for the full back-
pay award therein made, conceivably, might suggest the propriety of comparable
conclusions in this case . Due consideration has, nevertheless, persuaded me that
the cited decision rests on factually distinguishable grounds.) When Murray's sub-
sequent contacts with Respondent Union are considered, however, determination
would seem justifiable that Respondent Union's April 11 refusal to grant him pref-
erential dispatch-pursuant to Desert Pipeline's written request for his referral-
created a situation with respect to which this Board could, legitimately, find sub-
sequent backpay both necessary and proper.
The master labor contract between Southern California General Contractors and
the Southern California District Council of Laborers, with which Respondent Union
concededly must comply, requires it to maintain a nondiscriminatory "employment
facility" from which qualified and competent registrants for work will be dispatched
pursuant to requests from contractors. With respect to preference in referral, the
contract provides that:
.... The order of preference in the dispatchment of applicants for employ-
ment is as follows: Group A: Applicants whom a Contractor requests by name
who have been laid off or terminated from employment of the type covered by
this agreement and in the area served by the employment facility within 270
calendar days before a request from the same Contractor who, laid off or ter-
minated them, provided they are available for employment ... .
HOD CARRIERS' LOCAL 300 1137
By April 11 Murray had, clearly, satisfied these conditions for preferential dispatch.
His testimony, which has been found credible, shows that, without regard to his
union membership transfer, he was then registered for work through Respondent
Union's hail; that Desert Pipeline's project superintendent had requested him,
specifically, for dispatch, that he had previously been "laid off or terminated" from
contractually covered work, in the area which Respondent Union's employment
facility served, within 270 calendar days before Superintendent Roberts' written
request was presented for the consideration of Respondent Union's representative;
that Desert Pipeline was the contractor responsible for his most recent layoff or
termination; and, finally, that he was then available for work.
Despite this, Respondent Union's counsel presently suggests that Murray could
not, legitimately, have claimed group A preference, since such preferences-con-
sistently with a longstanding consensus regarding the master labor contract's con-
struction-have routinely been granted workeis only when they could prove a work
history comprising 270 calendar days, presumably within the geographic area served
by some particular local's employment facility, with the specific contractor
wno had last laid oft of terminated them, but was currently requesting their
dispatch
This contention fails to persuade, for several reasons First, within the context
of the present record, determination would seem to be warranted that counsel's
sugge,tion reflects afterthought merely. So far as the record shows, when Murray
was told Desert Pipeline's pioject superintendent could piesent a written request for
his referral, the possibility that he would have to satisfy some further condition prec-
edent for preferential dispatch was never mentioned. When he returned with
Superintendent Roberts' letter. Respondent Union's representative said nothing
whatever regarding his Desert Pipeline work recoid. Counsel's contention, there-
fore, reflects nothing more than a belated suggestion that Respondent Union's
April 11 refusal to dispatch Murray, for some reason never stated, should not be
found probative of persistent discrimination since Murray could not have qualified
for contractual group A preference anyhow. Secondly, the relevant contract pro-
vision, previously noted, simply will not-with due regard for the plain meaning
of language-bear the construction which Respondent Union's counsel presently
propounds. Clearly, group A preference in dispatch must be granted applicants
who have been laid off or terminated some time within 270 calendar days before
the contractor responsible for their layoff or termination proffers a written request
for their referral. Counsel's argument that contractual dispatch preference, rather,
may be granted only workers laid off or terminated following 270 calendar days
spent working for such a contractor makes no sense. Pursuant to the master labor
contract's plain language, job seekers within Respondent Union's hall can, conceiv-
ably, qualify for preferential dispatch with work records for particular contractors,
regardless of their length, developed some time within 270 calendar days before
such contractors proffer contractually required requests for their referral. Coun-
sel's variant construction, however, would leave this purported contractual prerequi-
site for dispatch preference completely vague. Pursuant to his view, workers could,
conceivably, be required to prove: (1) work records which show work on 270 con-
secutive calendar days immediately preceding their layoff or termination; (2) work
records which show work performed on every working day within 270 calendar
days immediately preceding their separation from work; (3) work.records which
show work on 270 consecutive working days immediately preceding their separa-
tion; or (4) work records which show at least 270 days of work, sporadic or con-
tinuous, within some calendar period not contractually specified, before their lay-
off or termination. Which view would be proper, counsel has not said. Since his
suggested construction of Respondent Union's master labor contract, thus, neces-
sarily creates crucial ambiguities, without providing a guide or standard for their
resolution, counsel's suggestion may reasonably be rejected.
During a record discussion, Respondent Union's counsel did declare that his sug-
gested construction with respect to work-record prerequisites for preferential dis-
patch, nevertheless, reflects a consensus which signatory contractors and the Southern
California District Council of Laborers share; he contends that, when con-
fronted with grievances or disputes which stem from hiring hall dispatch proce-
dures the contractually created Joint Adjustment Board competent to decide such
matters renders decisions consistent with the construction noted. No specific cases,
however, were cited. Respondent Union's counsel was told, by me, that he would
be permitted to proffer specific documentation for his statement within a brief; he
243-084-67-vol. 159-73
1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
has, however, submitted none. And several Board decisions , with respect to which
trial examiners may take official notice, would seemingly warrant a conclusion that
counsel's statement really lacks justification . Within prior contracts which Respond-
ent Union's parent district council has negotiated for various Southern California
locals, dispatch preference was provided for workmen "recently" laid off or termi-
nated, regardless of the length of their work history, by specific contractors "now
desiring to reemploy the same workmen" within some local's work and geographi-
cal jurisdiction.. Mason Contractors Exchange of Southern California, Inc., 132
NLRB 839, 841; Petersen Construction Cotp., 128 NLRB 969, 922. Further, within
a case which directly concerned a purported discriminatory refusal to dispatch, the
Board has most recently found, inter alia, that a business representative for one of
Respondent Union's sister Southern California locals-committed to follow specific
contractual provisions , governing group A preference in dispatch, exactly like the
one which we are concerned-suggested to the complainant therein, though his
work history could not have totaled more, chronologically , than 146 days for his
then current employer, that, since he lacked a hiring hall clearance for continued
work, he should visit the union hall and sign the out-of-work list. The business
representative , so the Board found, further stated:
that if Worley wanted him, Worley could request him by name, and Respond-
ent would give him a clearance.
Concurrently, Worley, the contractor who wished to rehire the complainant, was,
so the record showed , given a similar directive . Hod Carriers', Building & General
Laborers' Union of America, Local No. 652, AFL-CIO (Earl C. Worley), 147
NLRB 380 , 384-385 . These factual determinations , with respect to a business
representative 's construction of the specific language with which we are presently
concerned , belie counsel 's present contention that Murray could not have satisfied
Respondent Union 's condition precedent for preferential dispatch.
When Murray transferred his membership to Respondent Union from his former
"home" local , following this with a registration for work , questions could be no
longer be raised , legitimately , regarding his work eligibility for Desert Pipeline's
Rexford Drive project. Through his April 11 course of conduct , this discriminatee
had effectively eliminated whatever grounds Respondent Union may previously have
had for considering him so-called "imported" laborer, with respect to projects within
its geographical jurisdiction . His referral back to work on Desert Pipeline's proj-
ect, therefore , could no longer be considered, reasonably, foreclosed by those con-
tractual limitations which concededly would have motivated the project foreman to
direct his April 5 termination nondiscriminatorily . It would seem to follow, and I
find, that Respondent Union's April 11 refusal to grant him group A dispatch pref-
erence, when he presented Superintendent Roberts' written request for his referral,
really reflected a persistence in discrimination , so far as he was concerned.
Superintendent Roberts' letter , in short, presented Respondent Union with a
chance to procure this discriminatee 's prompt "reinstatement" within his former
position, or some substantially equivalent position ; the chance was rejected. With
due regard for decisional precedents which I consider persuasive , determination is
made, therefore , that Murray became entitled to backpay following Respondent
Union's refusal to give him a referral back to work despite Desert Pipeline's
request . Cf. National Freight, Inc., 154 NLRB 621, and cases therein cited.
2. General Counsel's backpay computations require revision
Though Respondent Union 's counsel has refused to concede the propriety and
reasonableness of General Counsel 's proposed "formula" purportedly used to deter-
mine the total net backpay due Murray and Dalton , respectively , the record does
reflect a stipulation that the basic payroll data which General Counsel has relied,
together with his mathematical calculations based thereon, may be considered cor-
rect for backpay determination purposes . Despite this, my review of General
Counsel 's presentation has persuaded me that certain figures which he proffers as
relevant, pursuant to formula, reflect miscalculation . Without regard to counsel's
stipulation , therefore, various "figures and mathematical calculations " set forth in
General Counsel's backpay specification have been given detailed consideration.
a. Dalton
General Counsel contends that Dalton 's backpay period should be found to have
begun April 5, 1963, when he was terminated discriminatorily ; that backpay for
HOD CARRIERS' LOCAL 300 1139
him should be tolled from April 10, 1963, through March 31, 1965, during which
time he was employed by Desert Pipeline Construction Company or Cabildo
Corporation, Desert Pipeline's parent corporation and successor; further, that a
determination regarding the possibility of Respondent Union's backpay liability
to Dalton within a period subsequent to March 31, 1965, should be considered
specifically reserved. Though such a reservation, with respect to Respondent
Union's possible current backpay liability may, finally, prove without significance,
it would seem to be justified. The record warrants a determination, consistently
with General Counsel's contention, that Respondent Union has not yet notified
Desert Pipeline or Cabildo Corporation, in the form which the Board's Order
requires, that it has withdrawn its previously pressed objections to the continued
employment of Murray and Dalton; nor has Respondent Union requested either
of these companies to rehire them. Regarding Dalton's backpay, General Counsel
contends that his gross earnings during the period with which we are presently
concerned-namely, the period between his April 5, 1963, termination and his
April 10 rehire-may properly be measured by multiplying his hourly rate of pay
by the number of hours of work he lost.
This formula is conventional; clearly, statutory purposes would be served by
reliance thereon. Counsel for Respondent Union, despite his formal challenge
with respect to the propriety of the formula stated, has proffered no proof or legal
argument which would warrant its rejection.
General Counsel contends, and Respondent Union's counsel concedes, through
his stipulation previously noted, that Dalton had no interim work or earnings dur-
ing the brief period for which backpay is presently claimed. Since, clearly, he
would have been retained by Desert Pipeline on and after April 5, 1963, absent
Business Representative Murdock's discriminatory demand for his termination,
determination is found warranted that he lost 6r/2 hours' pay on the date desig-
nated, 8 hours on Monday, April 8, and 8 hours on the next day, for a total of
221/2 hours. Since his rate of pay was then $3.26 per hour, he lost $73.35 gross
pay because of the discrimination to which he was subjected. General Counsel's
specification claims that Dalton lost 231/2 hours' work. Desert Pipeline's weekly
job report for the week ending April 7, 1963, however, shows that three laborers,
retained on the firm's Rexford Drive project April 5 for a full day's work, worked
only 7 hours that day. Since Dalton and Murray were terminated after 1/2 hour,
they lost only 61/2 hours' work that day.
Dalton would have been the beneficiary of certain "fringe benefit" payments.
Respondent Union, therefore, must be held liable for the sums which Desert Pipe-
line would have paid to various funds in his behalf. General Counsel contends
and Respondent Union does not deny, that, under the collective-bargaining contract
effective during Dalton's backpay period, Desert Pipeline would have paid 121/2
cents per employee hour worked to the Laborers' Health and Welfare Fund for
Southern California, and 10 cents per employee hour worked to the Joint Pension
Trust Fund, in his behalf. With matters in this posture, I find Respondent Union
further liable to pay $2.81 to the Laborers' Health and Welfare Fund and $2.25 to
the Joint Pension Trust Fund, in Dalton' s name.
b. Murray
Determination has been made, previously, that Murray's backpay period should
not, despite General Counsel's contention, be considered as beginning April 5, 1963;
for reasons previously stated, backpay for this discriminatee, in my opinion, should
be found to have begun to run April 12, instead. Though the record does show that
Murray became qualified for preferential dispatch to his former job on April 11,
there seems reason to conclude that, pursuant to conventional business practice, he
would not have been directed by Desert Pipeline to resume work that very day,
had he presented Respondent Union's referral. Rather, he would most probably
have been directed to report the following morning. Consistently with this view,
I have found that he should be made whole for pay losses beginning with the April
12 working day. Further, for reasons previously noted, Murriay's backpay period,
like that of Dalton herein, should be considered "terminated" for present purposes
March 31, 1965, with the Board's right to determine Respondent's possible addi-
tional backpay liability, thereafter, specifically reserved.
General Counsel, according to his backpay specification, would have the Board
measure the quarterly gross earnings which Murray would have received, during the
backpay period, by the quarterly gross earnings during that period of Rudolfo P.
1140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gonzales, one of Murray's fellow laborers on Desert Pipeline's Rexford Drive proj-
ect, except for 1963's third quarter, within which Gonzales did not work full-time.
For that quarter, General Counsel would have the Board measure Murray's possible
gross earnings by comparison with the quarterly gross earnings of Raymond D.
Lopez, likewise employed by Desert Pipeline and Cabildo Corporation, within
the labor classification, during the backpay period. With respect to these workers,
General Counsel's specification declares that each received the same hourly rates
and other benefits, during the backpay period, which Murray would have received.
The record, however, shows that, during the week when Murray and Dalton were
terminated discriminatorily, they were "Laborers-General or Construction" being
paid $3.26 per hour, the contractual rate for this classification, while Gonzales
and Lopez were classified as pneumatic tool operators, receiving $3.47 per hour
pursuant to contract.
General Counsel's Regional Compliance Officer, while a witness, testified finally-
though his first comments were contrary-that these rate differentials were con-
sidered when he calculated the quarterly gross earnings Murray would have received
during the packpay period. My review of the record, however, has led me to con-
clude that, though he so testified, this was not really done. So far as I can determine,
Murray's gross backpay, as detailed within General Counsel's packpay specification,
derives from calculations whereby the higher hourly rate which Gonzales and Lopez
received was multiplied by their hours worked within the backpay period.
For this reason, despite Respondent Union's willingness to stipulate the correct-
ness of General Counsel's relevant payroll data and the propriety of his calcula-
tions, Murray's gross backpay has been recomputed for each of the calendar quar-
ters within his backpay period, previously noted.
Though General Counsel's formula for computing Murray's backpay has been
formally challenged, Respondent Union has proffered no testimony or documentary
material calculated to persuade me that General Counsel's basis for computing this
discrimmatee's backpay should be rejected. The record shows that "Laborer's
General or Construction" and pneumatic tool operators, when on pipeline crews, do
work comparable hours and perform similar tasks; further, Murray's testimony,
which Foreman Richardson corroborated and which stands without contradiction,
warrants a determination that these classifications are, routinely, interchangeable
Workers performing tasks within both classifications are paid the higher contractual
rate, set for pneumatic tool operators, provided they spend more than a specified
minimum time working within the classification designated. With matters in this
posture, General Counsel's determination to fix the number of hours which Murray
would have worked through a reference to Gonzales' and Lopez' work record can-
not be deemed lacking in rational justification. True, General Counsel could con-
ceivably have used the work records which Dalton and Rodriguez compiled within
the backpay period for comparison purposes. Respondent Union's counsel, how-
ever, has made no such suggestion; with matters in their present posture, such a
choice could hardly be said to provide any more likely or realistic picture of Mur-
ray's work prospects.
One further factor, however, should be noted. Desert Pipeline's compensation
record for Richardson's crew reveals that, during 1963's second calendar quarter,
compensation rates for "Laborers-General or Construction" were modified. Cal-
culation shows that pay for this classification was raised from $3.26 to $3.36 per
hour. The Southern California Master Labor Agreement, by which Respondent
Union is bound, reveals that this change became effective May 1, 1963. Though
the contract was not made part of the present record, it was, so I later found, part
of the record in the main case herein. Copies were available during the hearing
before me; Respondent Union's counsel made several references to the contract, in
the course of various record discussions. The contract's currency within the back-
pay period has not been disputed, regarding rate-of-pay determinations, the docu-
ment's relevance can hardly be questioned. I have, therefore, taken official notice
that, pursuant to its terms, the change in laborer's wage rates previously noted
became effective on the date designated. With these considerations in mind, quar-
terly gross backpay for Murray has been recomputed. The results of my calcula-
tion will be summarized herein.
During 1963's second calendar quarter, Gonzales worked a total of 481.50 hours.
His record may be broken down as follows.
From April 1 to 30______________________________________ 167. 00 hours
From May ito June 30__________________________________ 314. 50 hours
481. 50 hours
HOD CARRIERS' LOCAL 300 1141
From this "hours" total , several deductions must be made. The record shows that
Murray worked for Desert Pipeline, during the month of April , for 79 hours.
Within this Decision , determination has been made , further, that Murray following
his April 5 termination , should not be considered entitled to backpay forthwith, but
that he later qualified for rehire or reinstatement which Respondent Union's repre-
sentative discriminatorily denied him . Such reinstatement could have been granted
effective April 12, Murray, therefore, should be denied backpay for 6.50 hours on
April 5 and 32 hours from April 8 through April 11 inclusive Murray's disqualifi-
cation for backpay, in short, covered 38.50 hours. From the total number of hours
which he could have worked during April 1963, 117.50 hours should be deducted.
Calculation shows Murray would have worked 49 . 50 additional hours between
April 1 and 30, 1963, but for the discrimination to which he was subjected; fur-
ther, he would have worked 314 50 more hours within the calendar quarter. Mur-
ray's gross backpay for this quarter , therefore , may be calculated as follows:
$3.26X49.50= $161.37
$3. 36 X 314. 50=$1, 056. 72
Total Backpay-$l, 218. 09
Regarding 1963's third calendar quarter the relevant documents show that Lopez'
work record-relied by General Counsel for comparison purposes since Gonzales'
work record was truncated-reflects 399 hours of work. For such hours Murray
would have received $1,340.64, computed at the rate of $3.36 per hour.
For 1963's final quarter, Gonzales worked 456 hours. Working comparable
hours, I find , Murray would have received $ 1,532.16 gross compensation . Within
1964's first calendar quarter, Gonzales worked 201.50 hours between January 1 and
February 9. During the following week he worked 40 hours. Murray, who returned
to work with Desert Pipeline within the latter week, worked 25 hours, leaving a
net 15 hour deficit. Calculation shows, therefore, that Murray lost 216.50 hours
within the calendar quarter His pay losses, I find, total $727.44, computed at the
$3.36 rate previously noted.
Respondent Union has not questioned General Counsel 's concession regarding
Murray's interim employment and earnings during the calendar quarters for which
backpay is claimed. When his undisputed net interim earnings , during each of the
several calendar quarters with which we are concerned , are set off against his gross
backpay claims for such quarters , Murray's backpay claims per calendar quarter
may be summarized as follows:
Calendar quarter Gross backpay Net interim
earnings
Net backpay
1963-2-------------------------------------------------- $1,218 09 $729 76 $488 33
1963-3-------------------------------------------------- 1,340 64 1,150 20 190 44
1963-4------------------------------------------------ 1,532 16 1,303 05 229 11
1964-1 ---- ------------------------------ 727 44 299 25 428 19
4,818 33 3,482 26 1,336 07
Respondent 's obligation to make Murray whole requires , further, payment of
those "fringe benefits" which would have been paid on his behalf to the Laborer's
Health and Welfare Fund for Southern California and the Joint Pension Trust
Fund. With Respondent Union's liability measured by the number of hours worked
by Gonzales and Lopez during the backpay period, the total "fringe benefits" pay-
ment to be made in Murray's behalf has been recomputed as follows:
Calendar quarter Hours worked Health and
welfare
Pension fund
1963-2------------------------------------------------ 364 $49 50 $36.40
1963-3------------------------------------------------- 399 49 88 39 90
1963-4-------------------------------------------------- 456 57.00 45 60
1964-1 ------------------------------------------------- 216 50 27.06 21 65
179.44 143.55
1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
To summarize the revised calculations previously set forth, Respondent Union's
obligation to make whole both Murray and Dalton through March 31, 1965, will
be discharged by payments to them of the backpay sums set forth below, plus
"fringe benefit" payments on their behalf as noted.
Discrimmatee Net backpay Health and
welfare
Pension fund
Dennis It . Mutray-_------------------------------------ $1,336 07 $179.44 $143.75
Philip J. Dalton---------------------------------------- 73.35 2.81 2 25
The sums found due should bear interest at the rate of 6 percent per year, com-
puted in the manner set forth in Isis Plumbing & Heating Co. 138 NLRB 716.
From the total sum payable to or on behalf of each discriminatee, there should be
deducted any tax withholding required by Federal and State law.
3. Murray's failure to pursue the contractual grievance and arbitration
procedure should not affect Respondent Union's liability
Reference has been previously made to Respondent Union's present contention
that whatever backpay might be found required to make Murray whole should be
withheld, since General Counsel has failed to show that he ever sought to pursue
whatever remedy might have been available to him pursuant to the specified griev-
ance procedure of Respondent Union's master labor contract. With due regard for
relevant decisional doctrine, however, counsel's contention in this respect must be
rejected. Several reasons for my determination should be noted.
Respondent Union's relevant master labor contract, though not part of the record
made before me, was proffered and received for the record previously made in the
case; with respect to its contents, I have taken official notice, Article V, within the
document in question, defines the procedure to be followed for settling grievances
and disputes. I note a contractual provision that grievances and disputes, without
limitation, must first be discussed, with a view to possible settlement, between union
representatives and the contractor concerned or his representative. The contract
further provides that:
If the grievance or dispute is not satisfactorily adjusted by the business agent
and the Contractor or his representative, either party may refer the matter to
the Joint Adjustment Board, provided that the Union and the Contractor, or
his representative, have met at least once in an effort to settle the grievance or
dispute. [Emphasis supplied.]
This contractual grievance procedure, clearly, provides no direct, personal right to
grieve, for workers or job applicants claiming to have been disadvantaged through
Respondent Union's purported maladministration of the contractually specified
"employment facility" which it must maintain. Thus, Murray herein-had he
wished to "attempt" reference to the contract procedure agreed upon by his last
employer and Respondent Union as their method for settling purported grievances-
would, realistically, have had to persuade Desert Pipeline to grieve in his behalf,
regarding the disparate treatment which he received April 11 at Respondent Union's
hand. Counsel can hardly contend, persuasively, that aggrieved workers or appli-
cants for work confronted with a situation of the sort with which we are concerned,
should be considered remediless, absent proof that they have requested the contrac-
tor who sought their referral to file and pursue a contractual grievance on their
behalf. Though a contractor so situated might, conceivably, be willing to process
a grievance directed to a union's conduct, pursuant to some aggrieved job applicant's
complaint, such a course of conduct clearly could not be legally compelled. Nor
could a contractor's refusal to prosecute such a grievance be legally questioned.
Respondent Union's reliance on Republic Steel Corporation v. Maddox, 379 U.S.
650, must, therefore, be considered misplaced. Federal labor policy can hardly be
said to require workers to solicit such uncertain cooperation, upon possible pain of
losing their right to pursue noncontractual remedies should they fail to procure their
prospective employer's voluntary help.
HOD CARRIERS' LOCAL 300 1143
Further, no determination would be warranted, upon the present record, that
Murray knew, or reasonably could have known, that Respondent Union's April 11
refusal to refer him pursuant to Desert Pipeline's written request really deprived
him of some contractually guaranteed dispatch preference. The record shows, and
I have found, that Respondent Union's representative, when he refused to confirm
Murray's dispatch, gave no reason; nor did he show Murray contractual language
upon which his refusal was based: With matters in this posture-even assuming
arguendo, that Murray had a so-called "right to grieve" with respect to hiring hall
maladministration, and that he was cognizant or should have been cognizant of that
right-he can hardly be faulted for his failure to realize that he might have some
real cause for complaint.
Should the Board presume for the sake of argument, however, that Respondent
Union's master labor contract, properly construed, did give Murray some right to
grieve with respect to his April 11 treatment, and that he was aware, or reasonably
should have been aware, of his rights in that respect, counsel's contention would
still merit rejection.
This Board has consistently declined to withhold its remedial processes in situa-
tions where arbitration could have been sought to resolve some dispute, but either
was not sought, or had been sought with no award rendered, prior to the time of
Board consideration With respect to one such case (Aerodex, Inc., 149 NLRB
192, 199), the Board adopted a Trial Examiner's Decision which noted that:
Section 10(a) of the Act explicitly provides that the power of the Board with
respect to unfair labor practices "shall not be affected by any other means of
adjustment or prevention, that has been or may be established by agreement,
law or otherwise. ... Nothwithstanding the foregoing, the Board, for reasons
of policy, has seen fit in appropriate circumstances to withhold or limit the
jurisdictionally permissible scope of its powers in cases where a prior arbitration
award has been made (Spielberg Manufacturing Company, 112 NLRB 1080),
while reserving to itself the right to scrutinize the award as to fairness and
regularity, whether all the parties had agreed to be bound by the award, and
whether the award was not repugnant to the purposes and policies of the Act
. However, the Board has never shunned jurisdiction merely because a
party had the contractual right to go to arbitration but has never exercised the
option.
The Trial Examiner, following the material quoted, cited a number of relevant
precedents. Milk Drivers and Dairy Employees Union, Local No. 546 (Minnesota
Milk Company), 133 NLRB 1314, 1329-30; International Union, United Automo-
bile Workers (John I. Paulding, inc.), 130 NLRB 1035, 1044; Newspaper Guild of
Buffalo, Local #26, American Newspaper Guild (AFL-CIO) (Niagara Falls
Gazette Publishing Corporation), 118 NLRB 1471, 1479. Other prior cases could
have been cited. Smith Cabinet Manufacturing Company, Inc., 147 NLRB 1506,
1508-09; Cloverleaf Division of Adams Dairy Co., 147 NLRB 1410, 1414-16.
Since the decision quoted, the Board's position has been reaffirmed; Aetna Bearing
Company, a Textron Division, 152 NLRB 845; cf. The Flintkote Company, 149
NLRB 1561, 1562-63, footnote 1. Most significantly, however, this Board has held,
with respect to a case possibly stronger than the one with which we are presently
concerned, that the failure of particular grievants to invoke or exhaust a contractual
appeals procedure available to them, set forth within a collective-bargaining con-
tract between the particular employer and union concerned, did not divest the Board
of its primary jurisdiction over whatever unfair labor practice had been charged;
Lummus Company, 142 NLRB 517, 518, footnote 2. The contract with which the
cited case was concerned contained a provision which permitted job applicants who
believed they had not received fair treatment at the hiring hall to file written
appeals with a joint hiring committee composed equally of employer and union
representatives. In the event of committee deadlock with respect to any such
grievance, the grievant could then take his appeal to an impartial umpire whose
decision would be final. The Board majority found that the grievants in the cited
case did not have "actual knowledge" with respect to the availablity of this appeal
procedure. Comparably, the record in this case likewise fails to show that Murray
had actual "knowledge" with respect to whatever tenuous "right to grieve" he may
conceivably have had pursuant to Respondent Union's master labor contract.
Further, two Board members noted, with the partial concurrence of a third, that
1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the contractual provision with which they were there concerned would, in effect,
have required the aggrieved parties to submit their grievance before a private tri-
bunal composed , partially at least, of those who had, purportedly , perpetrated the
unfair labor practice found therein . With matters in such a posture , the Board
members in question did not feel that discriminatees should be penalized for their
conceded failure, or lack of willingness , to pursue such a doubtful remedy. See
Twenty-Ninth Annual Report of the National Labor Relations Board, pp. 40-42,
for a further discussion of recent cases.
This body of decisional doctrine-which persuasively suggests that Respondent
Union 's present contention should be rejected-would, indeed , seem to compel
such a result with respect to the particular "remedy" question now under consider-
ation . Respondent Union 's counsel, so far as this case is concerned , would have
the Board do more than withhold judgment regarding a purported statutory viola-
tion ; the agency is requested , further, to stay its remedial hand because Murray, so
it is claimed , could have sought, through contractual grievance procedure , to chal-
lenge the propriety of Respondent Union 's conduct herein found sufficient to create
or revive a backpay liability. The mere possibility , however, that some contrac-
tually provided grievance procedure might suffice to settle a backpay claim cannot
reasonably be considered sufficient to divest the Board of primary jurisdiction with
respect to such matters.
Whether the designated Joint Adjustment Board-set up pursuant to Respondent
Union 's master labor agreement-could have required that organization to give
Murray backpay sufficient to make him whole for whatever pay he lost through
its representative 's April 11 refusal to grant him preferential dispatch , or whether
such a board would, within its discretion , do so if it could, seems doubtful. Thus,
Murray's prospect for complete relief through reliance on the contractual grievance
procedure can hardly be considered more than conjectural.
Within a landmark case regarding the Board 's remedial powers , the United States
Supreme Court held that the relation of remedy to policy is peculiarly a matter for
administrative competence . Phelps Dodge Corp. v. N.L.R .B., 313 U.S. 177, 194.
Further, within a subsequent decision which dealt with the Board's power to fash-
ion remedies (N.L.R.B. v. The Seven-Up Bottling Company of Miami, Inc., 344
U.S. 344, 346-347), the Supreme Court declared that:
Section 10 (c) of the Taft-Hartley Act . . . charges the Board with the task
of devising remedies to effectuate the policies of the Act . Of course the rem-
edies must be functions of the purposes to be accomplished , and in making
back pay awards , the Board operates under a further limitation . It must have
regard for considerations governing the mitigation of damages ; it must, that is,
heed "the importance of taking fair account , in a civilized legal system, of
every socially desirable factor in the final judgment." Phelps Dodge Corp. v.
Labor Board , 313 U.S. 177, 198. Subject to these limitations , however, the
power, which is a broad discretionary one, is for the Board to wield, not for
the courts . In fashioning remedies to undo the effects of violations of the Act,
the Board must draw on enlightenment gained from experience . When the
Board, "in the exercise of its informed discretion ," makes an order of restora-
tion by way of back pay , the order "should stand unless it can be shown that
the order is a patent attempt to achieve ends other than those which can fairly
be said to effectuate the policies of the Act." Virginia Electric & Power Co.
v. Labor Board, 319 U.S. 533, 540.
These considerations , capping those previously noted, I find persuasive . Respond-
ent's motion to dismiss , consistently with the principle which Republic Steel Cor-
poration v. Maddox, 379 U.S. 650, laid down regarding Federal labor policy, must,
therefore, be denied.
RECOMMENDED ORDER
Upon the basis of the foregoing findings and conclusions, and pursuant to Section
10(c) of the National Labor Relations Act, as amended , it is recommended that the
National Labor Relations Board issue a supplemental order that Respondent Union
forthwith make whole Dennis R. Murray and Phillip J. Dalton by payments to them
directly of the sums found due them within this Decision , and by payments on
their behalf to various "fringe benefit" funds of the sums previously found payable
within this Decision.