Intl. Photographers, Local 659, IATSE

National Labor Relations Board - Board Decisions

Feb 19, 1975

216 N.L.R.B. 633 (N.L.R.B. 1975)

INTL. PHOTOGRAPHERS, LOCAL 659, IATSE 633
International Photographers of the Motion Picture
Industries, Local 659 of the International Alliance
of Theatrical Stage Employees and Moving Picture
Machine Operators of the United States and
Canada (MPO-TV of California Inc., Y -A Pro-
ductions, Inc.) and James N. Adler on behalf of
Joel Colman and Vilis M. Lapenleks and Associa-
tion of Motion Picture Producers, Inc., Party to
the Contract. Cases 31-CB-189 and 31-CB-198
2 We find merit in the General Counsel 's exception to the Administrative
Law Judge's recommended Supplemental Order wherein he orders that
taxes be withheld by Respondent from the backpay due as required by
Federal and State laws. As the payment of backpay by a labor organization
cannot legally be treated as wages paid by or on behalf of the Employer we
shall delete that provision from the recommended Supplemental Order.
International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers
of America, Local 249, AFL_CIO (Lancaster Transportation Company), 116
NLRB 399 (1956), enfd . 244 F.2d 292 (C.A. 3, 1957).
SUPPLEMENTAL DECISION
February 19, 1975
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS JENKINS, KENNEDY, AND
PENELLO
On September 6, 1974, Administrative Law Judge
Richard D. Taplitz issued the attached Supplemental
Decision in this proceeding . Thereafter, both the
General Counsel and the Respondent filed excep-
tions and supporting briefs, ' General Counsel and
the Charging Party also filed briefs in answer to the
Respondent's exceptions.
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 Supplemental Decision in light of the
exceptions and briefs and has decided to affirm the
rulings , findings , and conclusions of the Administra-
tive Law Judge and to adopt his recommended
Supplemental Order, as modified herein.2
SUPPLEMENTAL ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Supplemental
Order the recommended Supplemental Order of the
Administrative Law Judge as modified herein and
orders that Respondent, International Photographers
of the Motion Picture Industries, Local 659 of the
International Alliance of Theatrical Stage Employees
and Moving Picture Machine Operators of the
United States and Canada, its officers, agents, and
representatives, shall take the action set forth in the
said recommended Supplemental Order, as so modi-
fied:
Delete the words "minus any tax withholding
required by Federal and State laws" from the last
line of the recommended Supplemental Order.
1 The Respondent has requested oral argument. This request is hereby
denied as the record, the exceptions , and the briefs adequately present the
issues and the positions of the parties.
216 NLRB No. 120
STATEMENT OF THE CASE
RICHARD D. TAPLITZ, Administrative Law Judge: On
June 30, 1972 , the Board issued its Decision and Order
(197 NLRB 1187) directing that International Photogra-
phers of the Motion Picture Industries, Local 659 of the
International Alliance of Theatrical Stage Employees and
Moving Picture Machine Operators of the United States
and Canada, herein called Respondent , make whole Joel
Colman ' for his losses resulting from certain unfair labor
practices found to have been committed by Respondent.
On June 21, 1973, the Board's Decision and Order was
enforced by the United States Court of Appeals for the
District of Columbia Circuit (477 F.2d 450). On January
21, 1974, Respondent's petition for certiorari to the United
States Supreme Court was denied (414 U.S. 1157). The
parties being unable to agree on the amount of backpay
due under the terms of the Board 's Order, the Regional
Director for Region 31 issued a backpay specification
dated April 4, 1974. Respondent filed an answer and two
amendments thereto . At the opening of the hearing, an
amended backpay specification was substituted for the
original specification and Respondent 's answer was further
amended.
A hearing was held before me at Los Angeles, California,
on May 22, 23 and 24, 1974 . Briefs, which have been
carefully considered, have been filed on behalf of the
General Counsel , Respondent , and Joel Colman.
Upon the entire record 2 and from my observation of the
witnesses , I make the following:
FINDINGS OF FACT
A. The Board's Decision and Order and the
Amended Backpay Specification
The Board found that Respondent interfered with the
employment rights of Colman because Colman was not on
a certain eligibility roster. The Board held:
1 The Board also ordered that Vilis Lapenieks be made whole by
Respondent. The General Counsel in his amended backpay specification
admitted that Lapenieks has not suffered any loss of earnings as a result of
the discrimination practiced against him. No claim is made on his behalf.
2 Because of certain errors in the transcript of the record and the exhibits
that were part thereof, on August 8, 1974 , I issued a "Notice Setting Time
for the Filing of Motions ." The notice stated in part that Resp. Exhs. 8(a),
(b), and (c), 24, 25, and 28 , as well as Charging Party Exhs. 10, 14 and 21
through 26 were admitted in evidence but were not physically present
among the exhibits in the record . In addition , the notice stated that the
transcript did not indicate that Resp . Exhs. 21 and 22 were admitted in
evidence though they physically appeared in the exhibit file . An opportunity
was given to all parties to inspect the exhibits and leave was granted for all
parties to make any motion they deemed appropriate . By motion dated
August 20, 1974, Respondent moves that all its exhibits identified in the
(Continued)
634 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In determining whether an employee is eligible to be
placed on the roster, his work experience with employ-
ers other than those who signed [a contract with
Respondent and/or IATSE] is not considered. Thus,
qualifying experience is generally limited to experience
with employers having a collective -bargaining agree-
ment with Respondent and/or IATSE. [footnote
omitted.]
There can be no doubt that the actions of Respond-
ent in applying the roster restrained and coerced
employees in the exercise of rights guaranteed in
Section 7 of the Act .. .
Specifically with regard to Colman, the Board found:
Melvin Dellar of MPO-TV of California, an Inde-
pendent, in August 1966 sought permission from
Respondent to hire Colman as a director of photogra-
phy for a 2-day assignment on August 4 and 5. Alter
[Respondent's business representative ] refused, since
Colman was not on the roster , and said further that if
MPO used Colman all IATSE people would be pulled
off the stage . Colman was not hired for this assignment.
Dellar had been authorized by Arnold Kaiser,
president of MPO , to negotiate a contract with Colman
for his services as director of photography for MPO.
Dellar and Colman reached agreement on a 3-year
contract which included a salary of $750 per week,
subject to approval by Respondent.
On August 11, 1966, Dellar notified Respondent by
letter that he desired to sign the aforementioned
contract with Colman and requested that Colman be
allowed to become a member of Respondent for this
purpose. After receiving no response , Dellar again
wrote Respondent concerning this matter . On Septem-
ber 15, Respondent replied that , since Colman's name
did not appear on the roster , he could not be hired by
MPO.
The above illustrates that initial employment in a
unit represented by Respondent is based strictly on
union considerations . No matter what qualifications an
employee brings with him, if he has not in the past been
represented by Respondent , he cannot gain employ-
record except for those where a specific objection to admissibility was
sustained , be.received in evidence . The motion specifically requests that
Reap . Exh. 22(a) and (b) be received . In a response dated August 27, 1974,
the General Counsel urged that Reap . Exha. 21 and 22 be marked rejected,
because they were not admitted in evidence . Either the transcript is in error
in indicating that Reap. Exhs . 21 and 22(a) and (b) were not received in
evidence or those exhibits were not received through inadvertence. In either
case, they should be part of the record and they are received in evidence. As
indicated above, they are a part of the exhibit fle.
Respondent's motion also requests that "General Counsel be directed to
supply the Administrative Law Judge with a complete set of all exhibits and,
ment with any employer who is party to a collective-
bargaining agreement with Respondent and/or IATSE.
Accordingly, we conclude that Respondent , by apply-
ing the seniority provisions against any Association or
Independent employer as if all such employers com-
prise a single bargaining unit, and in particular by the
manner in which Respondent has applied the roster
provisions with respect to Colman and Lapenieks, has
unlawfully restrained and coerced employees in the
exercise of their statutory rights and thereby violated
Section 8(bx1)(A) of the Act.
The Board ordered Respondent to "Cease and desist
from applying its collective-bargaining contracts with the
Association of Motion Picture Producers , Inc., its member-
employers, or nonmember-employers outside the Associa-
tion in any manner which discriminates against any
employee with respect to his initial employment and/or
placement on the Industry Experience Roster on the basis
of union representation." The Board further ordered
Respondent to make Colman whole for any loss of pay he
may have suffered by reason of Respondent 's interpreta-
tion and application of the seniority provisions of the
Industry Experience Roster . The Board specified that in
making Colman whole backpay was to be computed on a
quarterly basis, plus interest at 6 percent per annum, as
prescribed in F. W. Woolworth Company, 90 NLRB 289
(1950), and Isis Plumbing & Heating Co., 138 NLRB 716
(1962).
The amended backpay specification sets forth a backpay
period beginning on August 11 , 1966, when it is alleged
Colman would have been hired for a 3-year term under a
contract with MPO-TV of California, Inc., but for the
discrimination practiced against him by Respondent, and
ending on May 7, 1968 , the date Colman was placed on the
Industry Experience Roster . The specification uses the
$750 per week salary provided for in the contract as a basis
for determining what Colman would have earned but for
the discrimination . Interim earnings , primarily derived
from self-employment, as well as expenses to be deducted
from the interm earnings are also set forth. The appendix
to the amended backpay specification sets forth the figures
upon receipt of notification from other counsel as regards copies of exhibits
not in their possession, to supply counsel with such copies." General
Counsel's response dated August 27 , 1974 (which appears to supercede a
response dated August 26 , 1974), states "I am sending today original and
xerox copies of Respondent 's Exhibits 8(a), (b), (c), 24, 25 and 28 and
Charging Party's Exhibits 10, 14, and 21-26. Xerox copies of said Exhibits
are being sent today to counsel for the other parties." As the exhibits in
question have now been received by the Administrative Law Judge and as
the General Counsel has stated that copies of those exhibits have been sent
to all parties , no further action appears needed.
INTL. PHOTOGRAPHERS , LOCAL 659, IATSE
on a quarterly basis. The total net backpay claimed to be
due is $38,659.57 together with interest at 6 percent.
B. The Backpay Period and the Gross Backpay
The amended backpay specification begins the backpay
period on August 11, 1966.3 As set forth above, the Board
found that an agreement had been reached between MPO
and Colman on a 3-year contract subject to approval by
Respondent ; that on August 11, 1966, Dellar notified
Respondent that he desired to sign the contract with
Colman and requested that Colman be allowed to become
a member of Respondent for that purpose; and that on
September 15 Respondent replied that as Colman's name
did not appear on the roster he could not be hired by
MPO. Colman credibly testified that on or about August
11, 1966, he was available to work for MPO as a staff
cameraman . Based on the Board's findings and on the
testimony of Colman, the conclusion is warranted that the
contract would have been signed on August 11, 1966, but
for the need for Respondent's approval. The fact that
Respondent waited until September 15, 1966, to notify
MPO of Respondent 's disapproval cannot be used by
Respondent to delay the beginning of the backpay period.
Respondent had refused to allow Colman to work on
August 4 and 5, 1966, because Colman was not on the
roster and had told MPO that if it used Colman all IATSE
people would be pulled off the stage . On August 11, 1966,
when MPO asked Respondent for approval of the 3-year
contract, the threat to pull employees off the stage if
Colman was hired, had not dissipated. Respondent's
silence from August 11 to September 15, 1966, was not
merely a nonaction but was a continuation of the prior
threat . Respondent's September 15, 1966, letter to MPO to
the effect that Colman could not be hired because he did
not appear on the roster , was simply a reaffirmation of its
prior position.
Respondent urges a number of arguments against
finding that the backpay period began August 11, 1966. Its
major contention is that there was no agreement as to
when a contract between MPO and Colman should begin
and more generally that there was no agreement at all
concerning a 3-year contract . Respondent was given an
opportunity to present evidence concerning the terms,
conditions, and details of the 3-year contract. Dellar
testified in that regard , but he acknowledged that all his
testimony concerning arrangements with Colman in
August and September of 1966 were predicated upon his
belief that there was no contract for $750 a week. In effect,
Respondent was attempting to relitigate matters that had
already been fully determined by the Board in its decision.
The Board specifically found that an agreement on a 3-
year contract, which included a salary of $750 per week,
had been reached subject to approval by Respondent. That
matter is not subject to relitigation in a supplemental
backpay proceeding . I am bound by the Board's findings.
Respondent also argues that its actions were related to
Dellar's August 11 , 1966, letter which requested that
Colman be allowed to become a member of Respondent
3 Though the Board found that Colman lost 2-days work on August 4
and 5 , 1966, because of Respondent's unfair labor practices , no backpay
635
and that it had no duty to allow membership. Though the
August 11 letter does mention membership, it is clear from
Respondent's September 15 response that Colman was not
to be hired because his name did not appear on the roster.
Respondent's refusal to allow Colman to be hired on
August 4 and 5, 1966, had the same thrust. The Board's
decision unequivocally finds that the unfair labor practice
was keyed to Respondent's position with regard to the
roster.
I find that the backpay period commences August 11,
1966.
Respondent argues that there was no agreement for the
payment of $750 a week. As is noted above, that matter is
not subject to relitigation in this proceeding. The Board
has found that MPO and Colman had reached an
agreement on a 3-year contract which included a salary of
$750 per week under a 3-year contract, but for the unfair
labor practice. Respondent was given full opportunity to
develop evidence which might indicate that the contract
was subject to early termination or some other condition
that would affect its length or compensation. Instead of
evidence of that nature, Respondent consistently main-
tained the position that there was no contract, despite the
fact that the issue concerning the existence of the contract
was not subject to relitigation in this proceeding.
Respondent pointed to the fact that Colman was
employed on various occasions by MPO after the August
11 date 4 and argues that backpay should be terminated as
of that first employment. That argument is without
substance. Though such employment must be considered
with regard to interim earnings the occasional employment
by MPO on a per day basis was in no way equivalent to the
employment Colman would have received under the 3-year
contract.
Based on the Board 's decision, it would appear that gross
backpay would include payment at $750 a week for the 3
year period of the contract. While the General Counsel
could have chosen to base its backpay formula on such a
criteria, he chose to end the backpay period on May 7,
1968, when Respondent granted Colman roster status.
General Counsel stated on the record that the backpay
period was ended on May 7, 1968, not only because
Colman was put on the roster but because his interim
earnings from that date were such that there would be no
more net backpay after that time . In his brief, counsel for
Colman stated that he did not fully subscribe to the May 7,
1968, date for ending the backpay period , but that he
accepted that date on -the alternative ground that after that
date, for the remainder of the relevant period, Colman's
interim net earnings equalled or exceeded the gross
backpay he would have earned absent the discrimination.
As neither General Counsel nor counsel for Colman
request a finding that the backpay period extended for a
full 3 years, I find that the backpay period extended from
August 11 , 1966, to May 7, 1968 . I also find that the figure
to be used in determining the gross backpay is $750 a week.
claim has been made for those dates.
4 The details of Cohnan's earnings from MPO are set forth below.
636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. The Legal Principles
In situations such as the instant one, where loss of
employment is caused by violations of the Act, the finding
by the Board that an unfair labor practice was committed
is presumptive proof that some backpay is owed. N.L.R.B.
v. Mastro Plastics Corporation and French American Reed
Manufacturing Company, 345 F.2d 170, 178 (C.A. 2, 1965),
cert. denied 384 U.S. 972 (1966). The General Counsel's
burden for the backpay proceedings is "to show the gross
back-pay due each claimant ." J. H. Rutter Rex Manfactur-
ing Company, Inc. v. N.LR.B., 473 F.2d 223, 230 (C.A. 5,
1973), cert. denied 414 U.S. 822 (1973). The General
Counsel has met his burden in this case. The backpay
period and the weekly pay that Colman would have
received but for the unfair labor practices has been
established as is set forth above. The General Counsel's
amended backpay specification calculates the gross back-
pay on a quarterly basis as is required by the Board Order.
In addition the General Counsel has admitted that Colman
earned a substantial amount in interim earnings during the
backpay period. After deducting expenses incurred in
obtaining those interim earnings, the General Counsel has
credited the net interim earnings against the gross backpay
claim. General Counsel called Colman to the stand in
order to allow Respondent an opportunity to cross-
examine him. That cross-examination extended over the
better part of 3 days. Colman produced, during that cross-
examination , extensive documents and records including
his income tax returns , in order to allow Respondent an
opportunity to question him concerning his interim
earnings and expenses. Many of those documents are in
the record as exhibits.
Once the General Counsel had established the gross
backpay, the burden is upon Respondent to establish
affirmative defenses that would mitigate its liability.
N. L R. B. v. Brown & Root, Inc., etc., 311 F.2d 447, 454
(C.A. 8, 1963). Respondent has the burden of establishing
such matters as unavailability of jobs because of nondiscri-
minatory factors , willful loss of earnings and interim
earnings to be deducted from the backpay award. N.L.R.B.
v. Mooney Aircraft, Inc., 366 F.2d 809, 812-813 (C.A. 5,
1966).
When there are uncertainties or ambiguities, doubts
should be resolved in favor of the wronged party rather
than the wrongdoer. As the Board held in United Aircraft
Corporation, 204 NLRB 1068 (1973): ". . . the backpay
claimant should receive the benefit of any doubt rather
than the Respondent, the wrongdoer responsible for the
existence of any uncertainty and against whom any
uncertainty must be resolved."
As is set forth in detail below, the bulk of Colman's
earnings during the backpay period came from self-
employment. As the Second Circuit Court of Appeals held
in Heinrich Motors, Inc. v. N.LRB., 403 F.2d 145, 148
(1968): "It is indisputable that self-employment is an
adequate and proper way for the injured employee to
attempt to mitigate his loss of wages . Self-employment
should be treated like any other interim employment in
measuring backpay liability." (Citations omitted.) In
Heinrich Motors, Inc., 166 NLRB 783 (1967), the Board
held that full-time self-employment could not be construed
as a withdrawal from the labor market and was not
equivalent to a willful loss of earnings. In addition, the
Board held that a claimant in that category need not seek
other employment . As is indicated below , Colman met with
a substantial degree of success in his self-employment.
However, even if he had not, "the principle of mitigation of
damages does not require success; it only requires an
honest good-faith effort ...." N.L.R.B. v. Cashman Auto
Company and Red Cab Company, 223 F.2d 832, 836 (C.A. 1,
1955). See also Lloyd's Ornamental and Steel Fabricators,
Inc., 211 NLRB 217 (1974); United Aircraft Corp., supra,
and cases cited therein.
Colman's testimony as well as his records which have
been received in evidence indicate that his bookkeeping
methods were casual and unsophisticated . However, poor
record keeping does not in itself prevent recovery by a
wronged party . In Arduini Mfg., Corp., 162 NLRB 972, 975
(1967), the Board held:
... the record shows that (the discriminatee) may
have had some difficulty in recalling past events, and
kept poor records, he nevertheless testified openly and
fully to the best of his recollection and maintained that
he had disclosed all of his interim earnings and
withheld nothing. The burden is on the Respondent to
show otherwise , and it is clear to us that this burden has
not been met . . . . [footnotes omitted.]
The Board went on to discuss certain discrepancies in the
discriminatee's records and held:
This may well disclose the inevitable frustrations of
an individual untutored in the methods of keeping
errorless business records, but certainly cannot be
taken as evidence of a plan to conceal earnings.
D. Interim Earnings and Expenses to be Deducted
Therefrom
1. The background
The amended backpay specification admits that Colman
earned a total of $60,479.18 during the backpay period.
The specifications deduct therefrom a total of $35,388.75
for expenses incurred in obtaining the interim earnings. It
alleges that Colman's net earnings but for the discrimina-
tion would have been $63,750 and that the total net
backpay due is $38,659.57. These figures are broken down
on a quarterly basis.
Figures for the third quarter of 1966 show $400 earned
from Eddie Colman and Associates. Colman credibly
testified that these earnings were from a business run by his
father, which was unrelated to his self-employment. The
figures for the first quarter of 1968 show $7,692.30 earned
from Regan Associates , Inc., and those for the second
quarter of 1968 to the end of the backpay period show that
interim earnings equalled or exceeded backpay. All of the
interim earnings except for the $400 and $7,692.30 are
attributed to self-employment. Colman began working for
Regan Associates, Inc., on January 22, 1968. That
employment was governed by a 1-year contract for salary
of $40,000 per year. The contract provided that except with
regard to leaves of absence without pay for periods not
INTL. PHOTOGRAPHERS, LOCAL 659, IATSE
exceeding 4 months for the purpose of performing services
on feature motion picture, T.V. specials, and similar work,
Colman was to devote his entire time to the business of his
employer. Colman credibly testified, however, that he was
given the opportunity to maintain a motion picture
company as long as it was for work which did not conflict
with his employer's work. His employer dealt with
commercials . Regan Associates , Inc., was one subdivision
of MPO Videotronics. MPO-TV of California was another
subsidiary of that parent. Employees often worked back
and forth between those companies. For pay and other
purposes they were all considered one company. Until he
was employed by Regan Associates, Inc., Colman was self-
employed as a sole proprietor under the name Colman
Productions.
General Counsel asserts that the figures arrived at in the
amended backpay specification were based on Colman's
tax returns , other supporting documents and consultation
with Colman, his attorney and his accountant. The
General Counsel also maintains that expenses were based
on tax returns except that there were some expenses in the
1967 returns such as legal fees that were not counted with
his expenses . The amended backpay specification indicates
that much of the expense figures were broken down into
quarterly amounts by averaging expense figures for longer
periods where quarterly expense figures were not available.
The amended backpay specification also indicates that the
figures for total earnings from self-employment for 1967
were not available on a quarterly basis so that an average
was used based on total income for that year.
During the backpay period, Colman sought work as a
director of photography, an operator, and as a packager.5
In seeking work , he advertised and entertained potential
customers. During that time he did not take any vacations
and he was generally able to find work . There was never
more than 2 or 3 weeks between jobs. He took all expenses
incurred in getting work as deductions on his income tax
returns.
Respondent contends that Colman could have obtained
status on the experience roster if he had desired to do so
even before August 11, 1966. Respondent argues that
Colman 's failure to obtain roster status constituted, in
effect, a willful loss of employment that he could have
obtained through the roster. Colman on the other hand
testified that his understanding was that in order to secure
roster status he had to have 30 days working with a
signatory to the contract but in order to get those 30 days
he had to be on the roster , so that in effect he was
ineligible . I do not believe Respondent's argument has
substance. The Board found that Respondent's require-
ment of experience with a signatory employee to obtain
status on the roster was unlawful . Experience of that nature
could not be required as a condition of employment and it
is therefore immaterial whether Colman did or did not
have such experience . Even if Colman did have 30-days
experience with a signatory employer he would have had
no obligation to come forward and claim roster status on
the basis of an unlawful standard. In any event, the record
does not reflect any willful loss of employment by Colman.
S A director of photography is traditionally referred to as a cameraman
or a first cameraman . A second cameraman, also called an operator,
637
His testimony, as well as the amount of the admitted gross
interim earnings, establish that he made a serious and
largely successful effort to find work.
2. Questions concerning interim earnings
Respondent has raised some substantial issues concern-
ing the gross interim earnings . MPO records establish that
Colman worked for MPO on three separate occasions in
1966. On September 6, 1966, he was paid $2,190.69 and on
September 6, 1966, he was paid $705.55. Although he
earned $2,896.25 from MPO on those two occasions, his
own records indicate that on September 10, 1966, he
received $2,000 and $700 from MPO for a total of $2,700.
He attempted to explain this discrepancy of $186.25 by
testifying that he used round figures for those records but
used the exact figures for tax purposes. MPO's records also
show that Colman was paid $392 on November 18, 1966.
Colman's records do not show that he received it. MPO's
records establish that Colman was paid for four separate
jobs in 1967. He was paid $261 on February 22; $7,183 on
March 13; $832 on June 26 and $575 on October 27, 1967.
That totals $8,851. However, Colman's records show that
he earned $7,000 from MPO during 1967. There is,
therefore, a discrepancy of $1,851. Colman averred that he
brought with him all of his records that were available but
that there appeared to be other documents, worksheets,
deposit slips or check stubs with exact amounts . It is noted
that the unavailable records are for 1966 and 1967, some 7
years ago. Colman claims that the tax returns , upon which
the amended backpay specification was largely based, were
made from records showing exact amounts. In support of
this contention, Colman points to the fact that the records
relied on by Respondent for 1967 income (the only full
year involved) show a total income of $43,387 while his
federal tax return for that year shows gross receipts from
business or profession of $44,537. Thus, Colman reported
for tax purposes $1,150 more than the records in question
showed. As it is uncommon for taxpayers to report more
income than they actually earn, an inference is warranted
that Colman did in fact use other records in determining
his taxable income for that year. I believe and find that the
discrepancies are attributable to poor recordkeeping rather
than attempts at concealment by Colman.
MPO's records also show that on January 23, 1968,
Colman was paid $900. There is no showing that the $900
was not included in Colman' s 1968 tax returns . However,
the amended backpay specification lists only two items
under interim earnings for the first quarter of 1968. The
first is an $800 figure for self-employment. Colman testified
that he believed that came from some Canadian company.
The other is a $7,692.30 item from Regan Associates, Inc.
There is no mention of $900 from MPO. However, Regan
Associates and MPO-TV of California were both subdivi-
sions of MPO's Videotronics. For many purposes they
were considered the same. Colman credibly testified that
he received some checks from Regan Associates and some
from MPO. It is not at all unlikely that the $900 check
from MPO can be accounted for within the $7,692.30
physically operates the camera
638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
payment by Regan Associates. The invoice date for the
$900 check was January 23, 1968, and Colman began
working for Regan Associates on January 22, 1968.
In suni , I do not believe that Respondent has met its
burden with regard to establishing interim earnings beyond
those admitted by the amended backpay specification.
3. The question of expenses that were deducted
from gross interim earnings
From the commencement of the backpay period until he
began working for Regan Associates, Inc., on January 22,
1968, Colman had interim earnings both as a cameraman
and as a packager of finished films. As part of his expenses
he hired assistant cameramen , gaffers (head electricians)
and assistants , grips (people who handle the mechanical
aspects of production) and assistants, sound men, makeup
men, drivers, wardrobe people, and production managers.
He supplied meals and transportation, rented trucks and
buses, and paid location fees. Where he received lump
sums for the finished product, he had to pay his own
expenses , including rental equipment such as lights and
camera equipment . He had expenses of advertising and
entertainment . From August 1966 until January 1968, he
maintained two offices , one at his home and another
elsewhere . There were other expenses related to the
operation of business. Many of the same type of deduc-
tions that Colman took on his 1966, 1967, and 1968 tax
returns had been taken by him in prior years. Respondent
argues in its brief that Colman admitted on the record that
in 1968 , 1969, and 1970 Regan and MPO paid all of his
expenses. That assertion is not supported by the record .6
Melvin Dellar, who at the time in question was production
manager for MPO-TV of California, testified as to that
issue . At one point in his testimony, he averred that the
company paid for everything. However, later in his
testimony, he averred that in about half of the jobs,
payment to Colman included payment for crews, camera
and similar expenses and that Colman paid such expenses
as crew assistant , cameraman , and gaffer. In his testimony
concerning particular vouchers which showed payments to
Colman, he acknowledged that in many of them payments
were made to reimburse Colman for expenses he had paid.
Still further, irk his testimony he acknowledged that
throughout the 1960's when Colman worked for him,
Colman sometimes hired his own crew and that at other
times the crew was supplied for him. In the light of the
subsequent testimony , Dellar's original assertion that the
company paid all of the expenses is not worthy of
credence. Colman credibly testified that throughout the
period in question he had various arrangements with MPO.
Dellar acknowledged as much at one point in his testimony
by averring that on some of the jobs Colman had to get his
own crew which Colman paid for. Dellar also credibly
testified that Colman 's relations with MPO with regard to
his work remained substantially the same both before
August 11, 1966, and after that, up to the time he joined
Regan Associates. Thus, it appears that throughout that
8 The brief indicates that Colman made that admission on p. 107 of the
transcript On that page , Colman testified that when he worked for MPO
and Regan in 1968 , 1969, and 1970 , Regan or MPO paid location expenses
and that during 1968, Colman did not hire employees for MPO or Regan.
entire period, Colman did have legitimate expenses. Dellar
also testified that whatever the arrangement was with
regard to the $750 a week (keyed to the August 11, 1966,
contract) it was clear that that compensation did not
include expenses . I credit that assertion.
When Colman went to work for Regan Associates on
January 22, 1968, his expenses were sharply reduced. The
amended backpay specification alleges expenses for the
fourth quarter of 1967 at $7,730.37. For the first quarter of
1968, the expenses were reduced to $2,244.43. That quarter
includes the first 3 weeks of January 1968 which preceded
Colman's employment by Regan Associates, Inc. There is
no backpay claimed for the second quarter of 1968, which
is the end of the backpay period. Schedule C of Colman's
1967 Federal Income Tax Return, shows expenses for
outside services of $10,045.33, while his 1968 return shows
expenses for outside services of $686. Colman credibly
explained this in terms of having to supply and pay for
crews in 1967, while except for the first few weeks in 1968,
his employer supplied the crews. In a similar vein, his 1967
return shows an expense of $1,925.03 for film processing
while his 1968 return shows an expense for that item of
$592. Colman's 1967 return shows $3,029.97 for props and
location expenses , while his 1968 return shows $643. Again,
Colman explained these differences in terms of his having
to pay the expenses in 1967, while the employer paid them
after January 22, 1968. Colman also credibly testified that
he is on a cash basis for tax purposes and that some of his
1968 expenses were based on payments he made in 1968
for expenses incurred in late 1967.
One of the expenses claimed by Colman does raise a
substantial issue . On February 13, 1967, Colman wrote out
a check to "cash" for $1,000 with a notation on it that it
was for "Morgan-Lites, C-711." He testified that the check
was made for "cash" because he had to rent $18,000 to
$20,000 worth of lighting equipment from Morgan Manu-
facturing Company and Morgan was willing to accept cash
payment of $1,000 to pay a bill of $1,585. The bill for
$1,585 was marked "Pd 2/13/67" in Colman's handwrit-
ing. Colman did not have available a rental agreement to
support the use to which the $1,000 was put. However, I
attribute this to either poor bookkeeping or poor business
practices, and I credit Colman's testimony that the $1,000
in cash was in fact used to pay for rented lighting
equipment that he needed to perform his work.?
As Respondent has the burden of showing interim
earnings to diminish its backpay liability, it follows that
Respondent also has the burden of showing that interim
earnings are more than is admitted by establishing that
expenses should not be deducted from the interim
earnings. I find that Respondent has not met that burden.
E. The Interest
Respondent argues in its brief that because of delays in
processing this case, because the Board disagreed with the
findings of the Administrative Law Judge, and because no
malice, animus or illegalityper se exists, interest should run
T Respondent, in its brief, asserts that Colman wrote off both the cash
payment of $ 1,000 and the bill for $1 ,585 as expenses . There is absolutely no
factual support for that assertion in the record.
INTL. PHOTOGRAPHERS , LOCAL 659, IATSE
only from the date of the Board decision . I am unable to
agree . The remedy provision contained in the Board Order
requires interest payment as is prescribed in F. W.
Woolworth Company, 90 NLRB 289 (1950) and Isis
Plumbing & Heating Co., 138 NLRB 716 (1962). The Isis
decision provides that interest at 6 percent is "to accrue
commencing with the last day of each calendar quarter of
the backpay period on the amount due and owing for each
quarterly period." I do not have authority to modify the
Order of the Board in the original proceeding.8
F. Conclusions
For the reasons set forth above, I find that the General
Counsel has established the gross backpay due Colman,
and the Respondent has failed to meet its burden to show
by credible evidence that the conduct or events it has
asserted as grounds for mitigation of its backpay liability
warrant any diminution of the amounts set forth as due in
the amended backpay specification. I further find that the
amended backpay specification correctly states the amount
of backpay due to Colman.
I find that Respondent's obligation to Colman will be
discharged by the payment to him of the sum of
$38,659.57, plus interest at the rate of 6 percent per annum
to accrue commencing with the last day of each calendar
quarter of the backpay period on the amount due and
owing for each quarterly period as set forth in "Appendix
A" of the amended backpay specification, a copy of which
is annexed hereto, and continuing until the date this
decision is complied with, minus any tax withholding
639
required by Federal and State laws .9
Upon the basis of the foregoing fmdings and conclu-
sions, and upon the entire record in this proceeding, I
hereby issue the following recommended:
SUPPLEMENTAL ORDER 10
The Respondent, International Photographers of the
Motion Picture Industries , Local 659 of the International
Alliance of Theatrical Stage Employees and Moving
Picture Machine Operators of the United States and
Canada, its officers , agents, and representatives , shall:
Satisfy its obligation to make Joel Colman whole by
payment to him of net backpay in the amount of
$38,659.57, plus interest at the rate of 6 percent, in the
manner set forth in the section of this decision entitled
"Conclusions," minus any tax withholding required by
Federal and State laws.
b In addition, I believe that Respondent's argument cannot . be sustained
under the law as established by the Courts . See N.LRB. v. J. H. Rutter-Rex
Manufacturing Company, Inc., 346 U.S. 258 (1%9).
9 As is provided for in F. W. Woolworth Company, 90 NLRB 289, and Isis
Plumbing & Heating Co., 138 NLRB 716.
10 In the event no exceptions are filed as provided by Sec . 102.46 of the
Rules and legulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
The chart below shows the computations for the total backpay due Joel
Colman , which is $38 ,659.57, for the backpay period August 11, 1966, to
May 7, 1968.
1 2 3 4 5 6 7 8
Qtrs. Wks. Earn- Otr. Qtr. Qtr. Interim Qtr. Net Qtr*
in ings Gross Expenses Earnings; Interim Net
Qtr. Backpay Employer Earnings Backpay
3d - 7 $750 $5,250 $ 848.50 $400 Eddie 4,351.50 $893.50
1966 Colman &
Assoc . , $4,800
Self
4th 13 750 9,750 1,371.94 $2,200 Self 828.06 8 ,921.94
1966
1st 13 750 9,750 7,730.97 $11,146.72 3,415.75 6,334.25
1967 Self
2d 13 750 9,750 7,730.97 $11,146.72 3,415.75 6,334.25
1967 Self
3d 13 750 9,750 7,730.97 $11,146.72 3,415.75 6,334.25
19671 -- Self
4th 13 750 9,750 7,730.97 $11,146.72 3,415.75 6,334.25
1967 Self
1st 13 750 9,750 2,244.43 I $300 Self 6,247.87 3,502.13
1968 7,692.30
Pecan Assoc
2d Interim Interim
1968 earnings earnings
to end equal or equal or
of exceed exceed
backpay backpay backpay
period
5-7-68