Intl. Assn. of Iron Workers, Local 377

National Labor Relations Board - Board Decisions

Jan 31, 1974

208 N.L.R.B. 848 (N.L.R.B. 1974)

848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Association of Bridge , Structural and
Ornamental Reinforced Iron Workers , Riggers &
Machinery Movers, Local Union 377, AFL-CIO
(Judson Steel Corporation ) and Richard J. Bet-
tencourt . Case 20-CB-2211
January 31, 1974
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On October 4, 1973, Administrative Law Judge
James T. Rasbury issued the attached Supplemental
Decision in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief, and counsel
for the General Counsel filed a brief in support of the
Administrative Law Judge's Supplemental Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions 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
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that Respondent , International Associ-
ation of Bridge , Structural and Ornamental Rein-
forced Iron Workers , Riggers & Machinery Movers,
Local Union 377, AFL-CIO, Emeryville , California,
its officers, agents, and representatives , shall take the
action set forth in the said recommended Order.
SUPPLEMENTAL DECISION
BACKPAY PROCEEDINGS
STATEMENT OF THE CASE
JAMES T. RASBURY, Administrative Law Judge: This
matter was heard in San Francisco, California, on August
15, 1973. The backpay specification and notice of hearing
was dated July 2, 1973, issued pursuant to a Decision and
Order of the Board dated March 18, 1971,1 enforced by a
judgment of the United States Court of Appeals for the
Ninth Circuit dated February 17, 1972.2 The Board's
Decision and Order as enforced by the circuit court
i 189 NLRB 68.
2 454 F 2d 1175
directed the Respondent to make Richard J. Bettencourt
whole for any loss of pay which he may have suffered as a
result of Respondent's discrimination against him, "by
payment to him of a sum of money equal to that which he
would have earned as wages from the date of the
discrimination against him to the date of his reinstatement
or the date Respondent notifies Judson Steel Corporation
that it has no objection to his reinstatement to any existing
or future jobs or projects of said Employer, whichever is
the earlier date," said backpay to be computed in a manner
consistent with the Board's policies as set out in F. W.
Woolworth Company, 90 NLRB 289, and Isis Plumbing &
Heating Co., 138 NLRB 716.
Respondent's answer admitted the backpay period
commenced April 23, 1970 (which is an error; the backpay
period is to commence April 28, 1970), but contended that
the backpay period should end on September 22, 1970,
instead of August 1, 1971, as contended by General
Counsel; questioned the formula proposed by General
Counsel and contended the only, " legitimate , reasonable
and appropriate method of determining Bettencourt's
backpay is to determine who was his replacement and the
amount of wages paid to his replacement"; denied that
Bettencourt would have worked the hours set forth by
General Counsel; contended that Bettencourt failed to
mitigate damages by applying for work and seeking
employment elsewhere; and after a general denial of
General Counsel's conclusionary allegations, alleged "that
no interest should be due Bettencourt because the National
Labor Relations Board is responsible for not processing
the backpay proceedings and did not produce a specifica-
tion until July 2, 1973."
All parties were afforded full opportunity to examine
and cross-examine witnesses, to introduce evidence, to
present arguments and thereafter to file briefs. A helpful
brief was filed by the General Counsel.* Upon my
observations of the witnesses, and careful consideration of
all the proceedings, testimony, exhibits, and the entire
record in the case, I make the following:
FINDINGS AND CONCLUSIONS
A. Background and Pleadings
The General Counsel contends that the total amount of
backpay due Bettencourt from Respondent is $14,154 plus
interest and that Respondent should be required to pay to
the pension trust fund on behalf of Bettencourt the amount
of $794 which is the sum that would have been paid by the
Employer covering the same period of time and for the
hours of work claimed. This sum of money was determined
by examining the pay records of field ironworkers
employed by Judson Steel Corporation in every quarter of
the alleged backpay penod (April 28, 1970, to August 1,
1971), after deleting foremen, superintendents, and appren-
On the same date this Supplemental Decision was completed and ready
for release. it came to my attention that Respondent's brief in this matter
had been timely, but incorrectly, tiled with Region 20 of the Board
A copy of the brief was promptly obtained and carefully read and
considered While the brief would have been helpful and time-saving in the
preparation of this Decision, nevertheless, I find nothing contained therein
which has not been carefully considered and evaluated through my own
search of the record and the relevant case law
208 NLRB No. 135
INTL. ASSN. OF IRON WORKERS , LOCAL 377
tices, and after further deleting from the remaining list the
highest five wage earners and the lowest five wage earners
during this period of time. The remaining representative
list of ironworkers numbered 26. At the time of the
wrongful discharge Bettencourt was a field ironworker.
The average number of hours worked in each calendar
quarter by the representative list of employees was then
multiplied by the applicable hourly rate as set forth in the
849
Union's labor agreement with the Judson Steel Corpora-
tion. The resulting figure provided the gross backpay due
Bettencourt. Net interim earnings by Bettencourt, less
expenses incurred in seeking employment, was then
subtracted from the gross backpay on a quarterly basis,
resulting in a net backpay for each quarter during the
alleged backpay period. The chart shown below reflects the
net backpay due Bettencourt, as claimed by General
Counsel, for each quarter during the backpay period:
HOURLY GROSS INTERIM NET
DATES HOURS RATE RACKPAY EARNINGS EXPENSES BACKPAY
4/28/70--
6/20/70 291 $ 6.37 $1,854 None None 81,854
7/1/70--
9/30/70 248 6.37
263 7.30 3,499 None None 3,499
10/1/70--
12/31/70 322 7.30 2,351 None None 2,351
539 .25 Vacation pay
as provided
263 .50 266 in contract
covering
266
4/28--9/30/70
11/1/71--
3/31/71 53 7.30
347 7.98
4-1/2 15.96 3,228 $ 452 $63 2,839
4/1/71--
6/30/71 452 7.98
1-1/2 15.96 3,631 1,210 None 2,421
7/1/71--
7/31/71 89 7.98 710 430 10 290
1,269 .50 634 Vacation pay
as provided
in contract
covering
634
10/1/70-9/31/71
Total Net Backpay
514,154
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In addition to the sum shown above, the General Counsel
also requested that Respondent pay into the pension trust
fund on behalf of Bettencourt the sum of $794. This sum
was calculated as follows:
PERIOD HOURS RATE TOTAL
4/28/70--
8/15/70 539 32-1/3C
per hour
$175
8/16/70--
11/5/71 638 37-1/20,
per hour
239
11/6/71--
7/31/71 894 42-1/3c
per hour
380
Total Due Trust Fund $794
B. ` Testimony and Evidence
Alfred Whitacre, Jr., the paymaster for Judson Steel
Corporation at Emeryville, California, credibly testified
that he was familiar with General Counsel's Exhibit 5 and
identified it as a portion of a quarterly report submitted by
Judson Steel to the United States Treasury reflecting the
taxable wages under the Federal Insurance Contribution
Act for each employee shown. That portion shown pertains
to the division of the company that employs field
ironworkers. General Counsel's Exhibit 4 was prepared
from the company records and data reflected in General
Counsel's Exhibit 5 and reveals the names and earnings of
field iron workers who worked during the alleged backpay
period. General Counsel's Exhibits 6 and 7 were prepared
under the direction of Whitacre and indicate the number
of hours worked each month by each of the field
ironworkers that worked each quarter during the alleged
backpay period. (The 26 employees on the representative
list referred to above.) General Counsel's Exhibit 3,
represented by counsel to have been prepared by the
compliance officer for the Regional Office from the
company records provided to him, indicates the hours
worked by each of the 26 employees by month; and the
average hours worked each quarter by the representative
group of employees. The average quarterly hour figure is
then multiplied by the applicable rate to produce an
average quarterly earning figure for the representative
group. The pension trust fund calculations as well as the
accrued vacation pay were also shown on General
Counsel's Exhibit 3. I have carefully studied and checked
the information contained in General Counsel's Exhibits 3
through 7 and considered same in light of Whitacre's
testimony and herewith find the support data for the
specification to be reasonable and accurate.
Bettencourt credibly testified to the receipt of his copy of
the Union's letter to Judson Steel advising that the Union
had no objection to the employment of Bettencourt by
Judson Steel. (G.C. Exh. 8) The letter was dated July 29,
1971, and Bettencourt was rehired by Judson Steel on
August 1 , 1971. Bettencourt testified that he sought work
of any type during the period between April 28, 1970, and
August 1, 1971, but only managed to work as follows.
From February 4 to March 12, 1971 as a custodian for
Olsten of Santa Clara County, during which time he earned
$352. The job was a temporary vacation relief job and he
was released when the regular employee returned. Betten-
court testified that he worked for Performance , Speed and
Auto Center from March 22 to July 17, 1971, earning a
total of $1,310 ($ 100 of which was credited to the first
quarter of 1971). This job Bettencourt quit because the
company's paycheck was not honored. (The uncontrovert-
ed testimony revealed that 2 weeks after Bettencourt quit,
the company went out of business .) Thereafter , Betten-
court worked for Davis Steel Company earning $100 a
week , but only worked I week because he received the
letter from the Union (G.C. Exh. 8) and then he returned
to work for Judson Steel.
The net interim earnings for each quarter of the alleged
backpay period is shown in the appendix attached to the
backpay specification and notice of hearing served on
Respondent (G.C. Exh 2(c)). The net interim earnings
column shown in the appendix makes provision for $63
"seeking work expense" during the first quarter of 1971
and $10 "seeking work expense " for the third quarter of
1971. No claim was made for "seeking work expense"
during the second, third, or fourth quarters of 1970 or the
second quarter of 1971. While the total money claimed as
"seeking work expense" is a modest one, it will not be
allowed. The testimony by Bettencourt was that this money
was paid to go back and forth to work . Had Bettencourt
continued to work for Judsc Ti Steel, he would have had
daily commuting expenses that would have been equal to
or greater than those expenses claimed Interim expenses to
be deductible from interim earnings must be expenses
incurred in seeking and/or finding employment and such
additional expenses associated with the interim job as
would not ordinarily have been incurred had the individual
continued working at his regular job. While it might be
reasonable to assume that Bettencourt had incurred
substantial expense in seeking interim employment, the
record is barren of proof. The amounts claimed are, by
Bettencourt 's own testimony , nothing more than expenses
incurred in going to and from work which are not in excess
of normal commuting expenses that he would otherwise
have been required to bear. Interim expenses are to be
considered , but they must be proven by something more
than appears in this record.
C. Respondent's Defenses
Mr. Fenton , the business representative for Respon-
dent, testified that during the initial trial of this matter
(September 22, 1970) he advised Mr. James Harris,
superintendent for Judson Steel , and the attorney for the
INTL. ASSN. OF IRON WORKERS, LOCAL 377
National Labor Relations Board, that he had no objection
to clearing Bettencourt for work . He testified he did this at
his attorney's suggestion . There was no proof offered to
indicate that either Harris or the Board attorney either
heard or responded in any manner to the offer.
Mr. Michael Roger, an associate of Respondent's
counsel, testified that he was present during the initial trial
and recalled that at one point Respondent's counsel, Mr.
Van Bourg , advised the National Labor Relations Board
attorney that if Bettencourt "wants to go to work, all he
has to do then is to go down and clear out . Nobody is
going to stop him."
On the basis of this testimony Respondent contends that
the backpay period should only run from April 28 to
September 22, 1970. While such oral statements may very
well have been made during the heat of the trial, they
hardly rise to the level of a bona fide offer to the necessary
parties that would permit Bettencourt to return to work.
Moreover, the current backpay hearing is a direct result of
the Board's decision, as enforced by the circuit court,
which ordered notification by Respondent to Judson Steel
in writing. The same decisions ordered that the backpay be
tolled on the date Bettencourt "is reinstated by Judson
Steel Corporation or the date Respondent notifies Judson
Steel Corporation that it has no objection to his reinstate-.
ment." (And, as indicated earlier herein, notification was
required to be in writing .) Respondent's argument that an
earlier offer of "no objections to reinstatement" is rejected.
The Board requires clear unequivocal action by the Union
and will not permit it to escape liability by virtue of a token
act ;3
Respondent questioned the General Counsel's formula
and argued that the only reasonable and appropriate
method of determining Bettencourt's backpay was to
determine Bettencourt's replacement and ascertain the
wages and period of time worked by the replacement. The
Board considered this argument in Carpenters Union Local
180,4 and rejected it. In that case the Board stated:
The Union argues that, in place of the "representative
employee" backpay formula used by the General
Counsel, a "counterpart" formula should be used.
Under the Union's formula, backpay should be based
on the hours worked by the employee who obtained the
specific job which would have gone to the millwright
had the Union not discriminated against him. The
employee who obtained the job which otherwise would
have gone to the millwright worked from August 30,
1965 to October 4, and the Union argues that since
there is no evidence that he was discharged or quit, it
must be assumed that he was laid off for lack of work.
... The General Counsel has established that
during the backpay period millwright work was being
performed on the project, and this is prima facie
evidence that the millwright in question would have
worked had he not been discriminated against. Once
discrimination has been found the Union has the burden
of proof with regard to its contention that the employee
3 Reinforcing Iron Workers, Local Union No. 426 (Tryco Steel Corpora-
tion), 192 NLRB 97.,
4 Carpenters Union Local 180, United Brotherhood of Carpenters and
851
discriminated against would have been separatedfrom his
employment at some later date. [Emphasis supplied.]
Administrative Law Judge Corenman's decision, which
was approved without change by the Board, contained the
following language : "General Superintendent Harris who
authorized the hiring of Bettencourt testified credibly and
without contradiction that Bettencourt was one of approxi-
mately 100 iron workers comprising his permanent work
force, and that he retained Bettencourt in his employ from
the date of his hire on September 12, 1969 , to the date of
his discharge , at the Union's demand, on April 28, 1970.
Harris further testified credibly and without contradiction
that Bettencourt was one of his best workers, testifying
additionally 'I would say he would be in the top of what
I've seen, and I 've seen a lot of men in my time .' " In light
of this language in the original decision it cannot be said
that the formula selected by the General Counsel is either
unreasonable or unfair to the Respondent . The specifica-
tion . has been prepared on the basis of average hours
worked by a reasonable and representative group of the
permanent field iron workers employed by Judson Steel
during the backpay period.
In an opening statement Respondent . indicated that it
felt the completion date of the particular construction job
being worked on at the time of the wrongful discharge
should be its terminal date of the backpay period. This is
not an unsound argument and, had it been supported by
some evidence that Judson Steel always terminated all of
its employees upon the completion of a particular
construction job, might very well have raised a strong
doubt as to the reasonableness of the specification.
However, in light of the above-quoted language from
Judge Corenman 's decision relating to Bettencourt being a
part of the permanent work force and in the absence of any
proof to the contrary, I find the specification to be
reasonable and accurate.
Respondent's arguments that Bettencourt did not ade-
quately seek other work to mitigate damages during the
backpay period and in particular that Bettencourt was at
fault in not making application for the apprenticeship
program is rejected . There was no proof offered that
Bettencourt would have been employed by anyone even if
he had enrolled in the apprenticeship program . Nor is he
required to accept work as an apprentice after having
worked as a journeyman. I find that Bettencourt made a
reasonable and diligent search for work during the
backpay period and all interim monies earned have been
reported and considered in the specification.
Conclusions
After a careful analysis of all the evidence and a
consideration of Respondent's arguments as culled from
the record , I find and conclude that Richard J. Bettencourt
made reasonable efforts to find employment during the
backpay period, which I find to run from April 28, 1970, to
Joiners of America, AFL-CIO (Golden State Runway and Engineering
Company), 175 NLRB 927.
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
August 1, 1971, and did not wilfully incur the losses for
which . reimbursement is sought .5 Making a worker whole
for losses suffered because - of an unfair labor practice is
part of the vindication of the public policy which the Board
eaforces.6
The record is void of any evidence that would provide a
basis for ,disputing the computations of the specification
prepared by the General Counsel , except for the interim
work-related expenses which I have heretofore indicated
will rat be . allowed . I therefore find that the sum due and
owing to Richard J . Bettencourt by Respondent is $14,081
with interest at 6 percent per annum less the required
Federal and/or state tax withholdings . Respondent is also
directed to pay the sum of $794 to the applicable pension
trust fund with directions to the trustees of said fund to
credit said $794 to the account of Richard J.'Bettencourt,
together with any interest or applicable penalties for late
payment claimed and not waived by the trust fund.
Upon the foregoing findings of fact, conclusions of law,
and the entire record , and pursuant to Section 10(c) of the
Act, there is hereby issued the following recommended:
ORDER7
Respondent, International Association of Bridge , Struc-
tural and Ornamental Reinforced Iron Workers, Riggers
and Machinery Movers, Local 377, its officers, agents,
assigns, and successors , shall pay to Richard J. Bettencourt
or to his pension fund trust account the following sums of
net backpay:
(1) To Bettencourt directly , the sum of $14,081 with
interest at 6 percent per annum calculated as provided in
F. W. Woolworth Company, 90 NLRB 289, and Isis
Plumbing & Heating Co., 138 NLRB 716.
(2) To the pension fund trust account to be credited to
Richard J. Bettencourt the sum of $794 plus any interest or
applicable penalties for' late payment claimed and not
waived by the trustees of said fund,
Said sums of money to be less any required Federal,
state, or local taxes required to be deducted and paid to the
appropriate authorities.
S Cf. N.LR.B. v. Miami Coca-Cola Bottling Company, 360 F.2d 569 (C.A. ad supplemental Order herein shall, as provided in Sec . 102.48 of the said
5, 1966). Rules and Regulations, be adopted by the Board and become its findings,
B Phelps-Dodge Corporation v. N.LR.B., 313 U.S. 177. conclusions, and order, and all objections thereto shah be deemed waived
r In the event no exceptions are filed as provided by Sec. 102.46 of the for all purposes.
Board's Rules and Regulations , the findings, conclusions, and recommend-