Intl. Union of Operating Engineers, Loc. 925

National Labor Relations Board - Board Decisions

Dec 11, 1967

168 N.L.R.B. 818 (N.L.R.B. 1967)

818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Union of Operating Engineers, Local though it would bring about a cessation of Respond-
925, AFL-CIO, and its Business Manager, H. B. ents' discriminatory preferential referral practices,
Roberts (J. L. Manta, Inc.) and Herman Dewey would not serve the public interest in making whole
Ross. Cases 12-CB-734,12-CB-743 Ross for loss of wages suffered by reason of
December 11, 1967
ORDER AMENDING DECISION AND
ORDER
Acting in the interest of clarification and in
discharge of its responsibility to fashion a remedy
tailored to the facts of this case, the National Labor
Relations Board reconsidered its Decision and
Order of August 24, 19651 in the above-entitled
proceeding. Upon reconsideration, the Board, on
June 21, 1967, issued a notice to show cause (at-
tached hereto) why the Decision and Order should
not be amended by amending the Order to provide
not only that Respondents be required to cease and
desist from the discriminatory operation of its hiring
hall, but to provide also that Respondents be
required to make whole Herman Dewey Ross for
loss of wages suffered by reason of such discrimina-
tory operation of the hiring hall. On July 7, 1967,
Respondents filed with the Board their response to
the notice to show cause. In their response,
Respondents concede that the Board has authority
to modify its Order. They contend, however, that
the proposed modification is improper on a number
of grounds.
The Board has duly considered the objections
raised by Respondents, and finds them to be
without merit for the following reasons: In its Deci-
sion and Order, the Board affirmed the finding of
the Trial Examiner-
The major offense with which the remedy must
deal if its proper purpose is to be achieved is
the pattern of continuing discrimination in the
operation of the Union's hiring hall. The record
clearly reveals a fixed determination by Busi-
ness Agent Roberts, alone in charge of the hall,
to disregard applicable statutory provisions
and to persist in his illegal treatment of Ross
through the device of the exclusive referral
system.
To deal with this "pattern of continuing discrimina-
tion," the Board, adopting the recommendation of
the Trial Examiner, ordered Respondents to cease
and desist from discriminating against employees
by discriminatory preferential hiring hall referral, to
keep permanent records of the Union's hiring and
referral operation, and to make such records availa-
ble to agents of the Board for inspection. In the
Board's judgement, enforcement of its Order,
1154 NLRB 671.
2 See for example Local 1566, International Longshoremen's Associa-
non (Philadelphia Marine Trade Association), 122 NLRB 967,980, enfd.
Respondents' discriminatory application of their
referral procedures to him from the time of the hear-
ing to the time it conformed its practices to that
which the Board's Order requires and the law com-
mands. In this respect, we believe the Order to be
deficient in furthering the policies of the National
Labor Relations Act, as amended, and we shall
therefore modify it to conform to our general prac-
tice of requiring a respondent to make whole em-
ployees for loss of pay suffered by reason of its dis-
crimination against them.2 We are satisfied that
such a modification of the Trial Examiner's Recom-
mended Order at the time the Board's original Deci-
sion and Order issued would have been well within
the Board's power to make. As we have continuing
jurisdiction in this case, and as the General Counsel
must necessarily prove that any claimed losses of
wages during the expanded backpay period resulted
from discriminatory refusals to refer Ross,3 we see
no reason to refrain from correcting a perceived de-
fect in the original Order.
Accordingly, no good cause having been shown
why the Board should not amend its Decision and
Order in the manner and respect set forth in the at-
tached Notice to Show Cause,
IT IS HEREBY ORDERED that the Decision and
Order issued August 24, 1965, be, and it hereby is,
amended as follows:
1. Delete paragraph 2(a) of the Order and sub-
stitute therefor the following:
"(a) Reimburse and make whole Herman
Dewey Ross for any loss of pay suffered because of
the discriminations practiced against him, as found
by the Board in this Decision, from the date the
record herein shows such discrimination began until
such time as the discrimination ceases or has ceased
and Respondent fully complies or has complied
with the Board's Order in all pertinent respects, by
payment to him of a sum of money equal to the
amount which, absent the unfair labor practices, he
would normally have earned as wages during the
period involved, less net earnings. Loss of earnings
shall be computed in the manner established by the
Board in F. W. Woolworth Co., 90 NLRB 289. The
backpay obligation of the Respondent shall include
the payment of interest, to be computed in the
manner set forth in Isis Plumbing and Heating Co.,
138 NLRB 716."
2. The notice is amended by deleting from the
fourth indented paragraph the words "the" and
"above."
Society of Chicago, Local No. 5 (John P. Phillips Plastenng 9_ 1 45
NLRB 1608, 1623.
3 Local 1566, International Longshoremen 's Association (Marvin
278 F.2d 883. See also Supplemental Decision and Order, 145 NLRB Gould), 145 NLRB 1417, 1425
1417, 1419-20. Accord: Journeymen Plasters' Protective and Benevolent
168 NLRB No. 129
INTL. UNION OF OPERATING ENGINEERS, LOC. 925 819
NOTICE TO SHOW CAUSE
On April 28, 1965, Trial Examiner Thomas A. Ricci is-
sued his Decision in the above-entitled proceeding, find-
ing that Respondent had engaged in and was engaging in
certain unfair labor practices and recommending that it
cease and desist therefrom and take certain affirmative
action, as set forth in the Trial Examiner's Decision.
In his Decision, the Trial Examiner found that the
Respondent Union and its agent, H. B. Roberts, caused
named employers to discriminate against a union
member, the Charging Party herein, Herman Dewey
Ross, in violation of Section 8(b)(2) of the Act; and also
violated Section 8(b)(1)(A) of the Act by fining Ross for
filing unfair labor practice charges with the Board. The
remedy formulated by the Trial Examiner required the
Respondents to make Ross whole for any loss of earnings
incurred by reason of job shutdowns instigated by the
Respondents at certain jobsites, and on account of
Roberts' refusal on six occasions to refer Ross for em-
ployment in accordance with the Union's seniority roster.
On August 24, 1965, the Board issued its Decision and
Order in the above-entitled proceeding, adopting, with a
modification, the findings, conclusions, and recommenda-
tions of the Trial Examiner.'
On February 17, 1967, the Regional Director issued
and served a backpay specification and notice of hearing.
Thereafter, on March 2, 1967, Respondent filed a motion
to strike, inter alia,those portions of the backpay specifi-
cation alleging loss of earnings for periods subsequent to
the date the unfair labor practice proceedings terminated.
In response thereto, the General Counsel submitted an
opposition. On March 20, 1967, Trial Examiner Charles
W. Schneider issued an order granting the motion in part
and striking such portions of the backpay specification.
Now, under National Labor Relations Board Rules and
Regulations, Series 8, as amended, Section 102.26, the
General Counsel requests special permission to appeal
from the adverse ruling of the Trial Examiner, and
Respondent has filed a memorandum in opposition
thereto. The General Counsel asks the Board to reverse
the Trial Examiner's ruling on the motion, or, alternative-
ly, that the Board amend and/or clarify Respondents'
obligations under the backpay provision of the original
Order.
The Board is of the view that Trial Examiner
Schneider's construction of the Decision and Order as
requiring Respondent to make whole Herman Dewey
Ross only for loss of pay suffered as the result of the
specific acts of discrimination found by the Board to be
violative of Section 8(b)(2) and (1)(A) of the Act cannot
be said to be clearly erroneous. Accordingly, the General
Counsel's application to appeal from the Trial Examiner's
ruling is hereby denied.
The Board is of the opinion, however, that its Order, as
narrowly construed by the Trial Examiner, does not fully
remedy the unlawful discrimination against Herman
Dewey Ross. Accordingly, the Board, in the interest of
clarification and in discharge of its responsibility to
fashion a remedy tailored to the facts of this case, has de-
cided to reconsider its Decision and Order.' Having duly
considered the matter, the Board reaffirms its finding that
"the major offense with which the remedy must deal if its
proper purpose is to be achieved is the pattern of continu-
ing discrimination in the operation of the Union's hiring
hall." It is now the Board's view, unless good reason is
shown otherwise, that to deal adequately with the dis-
criminatory operation of the hiring hall as it has been
shown to affect Herman Dewey Ross' employment op-
portunities and that to effectuate the policies of the Act,
Respondent should be required not only to cease and de-
sist from the discriminatory operation of the hiring hall,
but also to make whole Herman Dewey Ross for loss of
wages suffered by reason of such discriminatory opera-
tion of the hiring hall. Accordingly, the Board proposes to
modify the backpay provisions of its original Order (par.
2(a)), to require Respondent to make whole Herman
Dewey Ross for loss of wages suffered by him as the
result of the discrimination practiced against him, as
found in the Board's original Decision, from the date the
record in this case shows such discrimination began until
such time as the discrimination ceases or has ceased and
Respondent fully complies or has complied with the
Board's Order in all pertinent respects. Accordingly,
IT IS HEREBY ORDERED that the parties show cause, in
writing, filed with the Board in Washington, D.C., on or
before July 3, 1967 (with affidavit of due service of co-
pies upon other parties to this proceeding), why it should
not modify its Order in the manner and respects indicated
above.
' 154 N LRB 671.
2 There is continuing jurisdiction in the matter under Sec . 10(d) of the
Act inasmuch as the record in this case has not been filed in a court for
purposes of enforcement or review of our Decision and rder
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