Iron Workers Loca 433 (Rpm Erectors)

National Labor Relations Board - Board Decisions

Aug 27, 1985

275 N.L.R.B. 1539 (N.L.R.B. 1985)

IRON WORKERS LOCA 433 (RPM ERECTORS)
International Association of Bridge , Structural and
Ornamental Iron Workers, Local No. 433
(RPM Erectors, Inc.) and Waldo F. Kusterns.
Case 21-CB-7122
27 August 1985
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 5 February 1985 Administrative Law Judge
Earldean V. S. Robbins issued the attached supple-
mental decision. The Respondent filed exceptions
and a supporting brief, and the General Counsel
filed an answering brief, limited cross -exceptions,
and a supporting brief.'
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge 's rulings, findings, and
conclusions only to the extent consistent with this
Supplemental Decision and Order.
On •11 February 1983 the Board issued its Deci-
sion and Order2 finding , inter alia , that the Re-
spondent violated Section 8(b)(1)(A) and (2) of the
Act by failing to refer Waldo F. Kusterns for em-
ployment at RPM Erectors because he refused to
pay dues he was under no obligation to pay to
obtain RPM employment . The Board ordered the
Respondent to make Kusterns whole for any loss
of pay and benefits he may have suffered because
of the discrimination against him , plus interest. On
26 January 1984 the United States Court of Ap-
peals for the Ninth Circuit enforced the Board's
Order in an unpublished decision .' On 18 May
1984 the Acting Regional Director issued a back-
•pay specification , and the Respondent filed an
answer , contending , inter alia , that Kusterns made
himself unavailable for work during the • backpay
period by refusing to tender dues required of all
members as a condition of employment , and there-
fore he was ineligible for referral to most jobs. The
backpay period in issue extends from 20 November
1979 to 28 February 1980.
From late July 1978 to 2 February 1979, Kus-
terns , a Respondent member , worked on a job cov-
ered by the District Council Agreement , a multi-
. i The General Counsel excepts only to that part of the judge's recom-
mended Order directing the Respondent to deduct "tax withholdings re-
quired by federal and state law" from Kusterns' backpay award In light
of our dismissal of the backpay specification, we find it unnecessary to
pass on this exception
2 266 NLRB 154 (1983) -
3 Docket No 83-7252
1539
employer collective-bargaining agreement. The Re-
spondent is party to the District Council Agree-
ment, which requires employees of signatory em-
ployers to pay supplemental dues of 15 cents for
each hour worked. Kusterns declined to pay the
supplemental dues and, with other employees,
brought a lawsuit challenging the dues' legality.4
The Respondent refused to dispatch employees
who were not current in their supplemental dues
payments. Kusterns took the position that employ-
ees should be dispatched first and then pay the
dues.
The Respondent operates an exclusive hiring
hall. On 20 November 1979 the Respondent's busi-
ness agent, Joe Ward, suggested that Kusterns bid
on a job at RPM Erectors, Inc. Kusterns should
have been dispatched to the RPM job, but Ward
refused, because he determined that Kusterns was
in arrears in his supplemental dues payment. On 21
November 1979 the Respondent again refused to
dispatch Kusterns to RPM and instead dispatched
Rudy Berci. Because RPM was party to the Inter-
national " Agreement, not the District Council
Agreement, and was not included in the District
Council multiemployer unit, the Board found that
the Respondent violated Section 8(b)(1)(A) and (2)
of the Act by refusing to dispatch Kusterns to
RPM for nonpayment of supplemental dues.
Kusterns testified that on three separate occa-
sions between 21 November and 2 December he
bid on jobs, but was refused dispatch because of his
failure to pay supplemental dues. According to
Kusterns, he did not bid on any job after 2 Decem-
ber because the Respondent would not dispatch
him until he paid the supplemental dues, which he
refused to do until after he was dispatched.
During the backpay period, there were over 400
dispatches from the hiring hall and, except for
RPM, all of the dispatches were to employers who
were party to the District Council Agreement.
Kusterns' number was such that he could have
been dispatched to any of these jobs if he had.paid
the supplemental dues.5
On • 10 December 1979 Kusterns told C. W.
Landsford, the Respondent's secretary-treasurer
and business manager, that he. could not pay his
dues because he was prohibited by law from doing
4 The lawsuit was settled before the original unfair labor practice hear-
ing without impairing the Respondent's supplemental dues-collection re-
quirement
s An employee is assigned a number when he signs the out-of-work
book Employees bid on jobs and the employee with the lowest number
in the appropriate classification is dispatched In June 1979 Kusterns
signed the book, and in November 1979 his position was approximately
number 3 The parties stipulated that all the employees dispatched during
the backpay period had higher numbers than Kusterns
275 NLRB No. 216
1540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
so since he had filed a bankruptcy petition.6 He
asked Landsford to dispatch him and then request
his employer to lay him off because he could make
the payment under those circumstances. When
Landsford offered to loan Kusterns the money to
pay the dues, Kusterns refused, stating that he did
not-want a loan, but wanted to be dispatched and
pay the dues on his own. On 28 February 1980
Kusterns was dispatched to RPM after Landsford,
according to Kusterns, advanced the money or
otherwise made arrangements to take care of the
dues. Kusterns paid the dues 31 March.
The judge found that Kusterns' obligation to
make reasonable efforts to find new employment
did not require that he abandon his position as to
the legality of the requirement that the supplemen-
tal dues be paid before he could be dispatched to
employment within the multiemployer bargaining
unit. The judge, observed that there was no evi-
dence that Kusterns' position was unreasonable or
taken in bad faith. The judge found it significant
that the Respondent could have tolled its backpay
liability at any point by abandoning its own legal
position. The judge found that to require 'Kusterns
to abandon his position, when the Respondent
could have done the same, would not advance the
public interest, as the wrongdoer bears the burden
of any uncertainty resulting from its unlawful con-
duct. The judge concluded that Kusterns did not
willfully incur any loss of earnings-that would miti-
gate the Respondent's damages, and that Kusterns
was entitled to-the backpay set forth in the back-
pay specification, as amended at the hearing.
The Respondent excepts to the. judge's finding
that because Kusterns' legal position was a reasona-
ble one, he did not have to abandon it to mitigate
damages -by seeking work. The Respondent con-
tends it should not be held liable for failing to give
up a legal position that proved correct. The Re-
spondent asserts that if it had dispatched Kusterns
without payment of supplemental dues, it could' not
have lawfully 'enforced the dues as to any other
employee. The Respondent claims it uniformly ap-
plied the supplemental dues obligation to, Kusterns,
but'he chose to ignore it because of'his'lawsuit and
.thus willfully took _himself out of the,, job market..
The General Counsel,argues that absent, evidence
that Kusterns' -legal position was taken in bad- faith
or in order to avoid employment, he was. not re-
quired to abandon' his position= on the legality of
the dues requirement tb obtain interim. employ-
ment. . , - _ . .,u
An employee has a duty to mitigate a respond-
ent's backpay liability by making reasonableefforts
6 No other evidence was presented at the hearing that the Bankruptcy
Court in fact-had prohibited Kusterns from paying the dues
i
to find new employment which is substantially
equivalent to the position from which he was dis-
charged. NLRB v. Miami Coca-Cola- Bottling Co.,
360 F.2d 569 (5th Cir. 1966). A 'respondent may
mitigate its liability by showing that the employee
has willfully incurred losses by a "clearly unjustifi-
able refusal to take desirable new employment."-
Phelps Dodge Corp. v. NLRB,' 313 U.S. 177, 199-
200 (1941). An employee may not voluntarily"with
draw from the labor market and insulate himself
against employment, thereby willfully incurring
losses for which he seeks to be compensated. Keller
Aluminum Chairs Southern,' 171 NLRB 1252, 1256
(1968).
There is no dispute that if Kusterns had paid the
supplemental dues he would have been eligible to
be dispatched to his choice of over 400 jobs. Al-
though no evidence suggests that Kusterns' legal
position was not asserted in good faith, the Re-
spondent contends, and the G eneral Counsel con-
cedes, that, as to all these potential employers
except RPM, Kusterns' position was-wrong. Kus-
terns was required to pay the supplemental dues
before he could be dispatched to any-job covered
by the District Council Agreement. - -
The judge found that Kusterns should not be re-
quired to abandon his good-faith legal position
where the Respondent could • have mitigated its
own liability by abandoning its legal position. We
find, however, that Kusterns would , not, as he be-
lieved, have been -required to abandon his legal `po-
sition by paying the supplemental dues. There are -a
number of possible ways Kusterns could have met
the dues obligation while' preserving -his position.
Kusterns ' could have paid the dues under protest
and recovered them later if the lawsuit was suc--
cessful. He,also could have requested the Respond-
ent allow, him to pay the dues into escrow. Kus-
terns could have also accepted the Respondent's 10
December `offer of a, loan, to be paid back after
being dispatched. This seems to be, the type of ar-
rangement worked out :28 February _1980 when the
Respondent's -business manager paid' the dues or
otherwise took care of the matter. Kusterns was
dispatched and later paid dues.
..We disagree with the judge that the Respondent
should have been required' to compromise its own
legal position and dispatch Kusterns without pay-
ment of supplemental dues. The Respondent is re-
quired to enforce its dues obligation. uniformly, and
it could not lawfully, , under ' the.. union-security
clause in the District Council Agreement and Sec-
tion 8(b)(2) of the Act, allow Kusterns to work
without paying the-dues unless it did the same for
IRON WORKERS LOCAL 433 (RPM ERECTORS)
All other employees. 7 We do not believe that under
the circumstances of this case the Respondent was
required to stop enforcing its lawful dues provision
in order to mitigate its backpay liability to Kus-
terns.
We find that, by refusing to pay the required
supplemental dues, Kusterns essentially took him-
self out of the job market, making himself ineligible
for dispatch to over 400 jobs. Because Kusterns
could have paid the dues without compromising his
good-faith, but incorrect, legal position,,-we con-
clude that Kusterns incurred a willful loss of earn-
ings and is therefore not entitled to backpay.-
' ORDER
The backpay specification is dismissed.
MEMBER HUNTER, concurring.
I. agree with - my colleagues' 'dismissal of the
backpay specification for the following reasons.
The judge found that Kusterns should not be re-
quired to abandon his good-faith legal position
where the Respondent could have mitigated its
own liability by abandoning its legal position. In es-
sence, the judge placed on the Respondent the
burden of changing' its legal position and conse-
quently also placed, on the-Respondent the'burden
to mitigate its backpay liability.-
I find this allocation of the burdens misplaced.
Neither the Respondent nor Kusterns had a duty to
abandon any legal position regarding the payment
of supplemental dues. Kusterns, however,, did not
have a duty to mitigate the Respondent's damages
by accepting job referrals available to him. Kus-
terns did not establish that acceptance-of any refer;'
rals would necessarily require him to abandon his
legal position. -
Under 'these circumstances, I find 'that the Re-
spondent was not -required to, stop enforcing its
lawful dues provision and that by refusing to pay
the required supplemental dues, Kusterns-essential-
ly took himself out of the job market, making him-
self ineligible for dispatch to- over 400 jobs. Ac=
cordingly, I conclude . that Kusterns :incurred -a
willful loss of earnings and is therefore not entitled
to backpay.
-' See Radio Officers Y NLRB, 347 U S 17, 40 ( 1954), ,Actors' Equity-
Assn , 247 NLRB 1193 (1980), enfd 644 F 2d 939 (2d Cir 1981) (an
8(b)(1)(A) and (2).violation found where a'union maintained and enforced
a disparate dues structure 'under which , non'resident aliens were required
to pay higher dues than resident actors) r _
- J . - - -
SUPPLEMENTAL DECISION
EARLDEAN V: S. ROBBINS, Administrative Law Judge.
On February 11, 1983, the National Labor Relations
1541
Board issued its • Decision and Order' in this matter in
which it directed.the International Association of Bridge,
Structural and Ornamental Iron Workers, Local No 433
(Respondent), inter alia, to make Waldo F Kusterns
whole with interest for, any loss of pay and benefits he
may have suffered by reason of the discrimination prac-
ticed against him. On January 26, 1984, the United States
Court of.Appeals for the Ninth Circuit entered its judg-
ment granting enforcement of the Board's Order
A controversy having arisen over the amount of back-
pay due Kusterns under the terms of the judgment and
the-Order, the Acting Regional Director for Region 21
of the Board issued a backpay specification and notice of
hearing on May 18, 1984, alleging the backpay due under
the Board's'Order, as enforced by the Court's judgment,
for a backpay period commencing on November 20,
1979, and ending on March 2, 1980, to which Respond-
ent, filed a timely answer . The matter was heard before
me in Los Angeles, California, on November 1, 1984.
During.the course of the hearing the backpay specifica-
tion was amended to allege, inter alia, that the backpay
period ended on February 28,-1980. The principal issue
herein is whether Kusterns, by failure to pay his supple-
mental dues to Respondent, removed himself from the
job market and thus incurred a willful loss of earnings
which precludes him from receiving backpay.2
On the entire record, including my observation of the
demeanor of the witnessess , and after due consideration
of the briefs3 filed by the parties, I make the following
FINDINGS OF FACT
Kusterns has been a member of Respondent since
1973 From late July 1978 to -February 2, 1979, he
worked on a job covered 'by a multiemployer collective-
bargaining agreement. (the District Council Agreement).
Respondent is a member of the District Council and a
party to the District Council Agreement. This agreement
contains a union-security clause requiring employees of
signatory employers to become members on the eighth
day of their employment It also contains a provision re-
quiring the payment of supplemental dues in the amount
of 15 cents, an hour for each hour worked. Kusterns,
among others' ,refused to pay the supplemental- dues and
joined with others in challenging the legality of such
dues. The Union took the position that it would not dis-
patch employees who were not current in- the payment
of their supplemental'dues.-Kusterns and others took the
positions that theycshould be 'dispatched first and then
pay the'dues This matter was apparently settled prior to
the unfair labor p-ractice hearing 'herein. '
- Respondent operates an exclusive hiring hall. Employ-
ees who sign the out-of-work' book are assigned a
number and, when- the dispatcher announces the avail-
able jobs; the individuals in the hiring hall can bid on the
jobs The bidder-with the lowest number in-the appropri-
ate classification is dispatched to the job. Kusterns as-
1266 NLRB 154
2 There is no dispute as to the backpay computation set forth in the
backpay specification in the event I find that Kusterns is entitled to re-
ceive backpay
The General Counsel's motion to strike Respondent's brief is denied
1542 DECISIONS OF NATIONAL LABOR -RELATIONS BOARD
signed Respondent's out-of-work book in June 1979. By
November 1979' his position thereon was approximately
number 3 On November 20, at the urging of Respond-
ent's business agent-dispatcher, Joe Ward, Kusterns bid
on, and should have been dispatched to, a job at RPM
Erectors, Inc. (RPM). However, in the process of going
through the dispatch procedure, Ward ascertained that
Kusterns was in arrears in his supplemental dues pay-
ment. Respondent therefore refused to dispatch Kusterns
to the RPM job on-that date, despite the fact that RPM
was a party to-the International agreement, not the Dis-
trict Council Agreement ,- and thus was not included in
the same multiemployer unit as was the employer for
whom Kusterns was working when he incurred the sup-
plemental dues obligation . Kusterns was again refused
dispatch to RPM on November 21. Instead, Rudy A.
Berci was dispatched to the job. The parties stipulated
that • Berci replaced Kusterns and that the gross backpay
amounts contained in the backpay specification are-accu-
rate about the amount earned by Berci during the back-
pay period
The Board adopted the administrative law judge's
finding that Respondent violated Section 8(b)(1)(A)-and
(2) of the Act by refusing to refer Kusterns to employ-
ment with RPM • without affording him the. lawful con-
tractual grace period in which to become current in his
supplemental dues. Kusterns testified , without contradic-
tion , that on three separate occasions between November
21 and December 2 he bid on jobs and was refused dis-
patch because of his failure to meet his supplemental
dues obligation. After December 2 until the end of the
backpay period Kusterns did not bid on any job. Ac-
cording to him, he did not do so because of the Re-
spondent's position that he would not be dispatched until
he paid - the supplemental dues.
The parties stipulated that the dispatch slips during the
backpay period reflect dispatches of individuals to in
excess of 400 jobs. It was further stipulated that during
the entire backpay period Kusterns ' number was 3 or 4
and never higher. Ward testified, without contradiction,
that except for RPM all these dispatches were to em-
ployers party to the District Council Agreement. The
parties also stipulated that all of the individuals dis-
patched during the backpay period had numbers higher
than Kusterns, and Ward credibly testified that the only
reason Kusterns was not dispatched . during this period
was his refusal to pay his supplemental dues.
Kusterns testified without contradiction, that on De-
cember 10 he had a conversation with C. W. Landsford,
then the secretary -treasurer and business manager of Re-
spondent, concerning the payment of supplemental dues.
According to Kusterns' undenied testimony,5 he told
Landsford that he could not pay his_ supplemental dues
because he was prohibited by law from doing so since he
had filed a bankruptcy petition, and showed Landsford
some court documents that he claimed supported this
statement. He asked Landsford to dispatch him and then
request his employer to lay him off, stating that under
" All dates hereinafter in September through December are in 1979
and in January through March are in 1980
5 Landsford did not testify
those circumstances he could make the supplemental
dues payment. However, when Landsford offered to
loan Kusterns the money to pay the supplemental dues,
Kusterns said he did • not want a loan, he wanted to be
dispatched and pay his supplemental dues on his own.
On February 28 Kusterns was dispatched to a job at.
RPM under an arrangement whereby Landsford ad-
vanced the money or otherwise made arrangements, to
take care of Kusterns' supplemental "dues. Thereafter
Kusterns did pay his supplemenial'duesidii Mai•cii 3
Respondent argues that throughout the backpay period
there were hundreds of jobs available to Kusterns
through its hiring hall if he had paid his supplemental
dues; that the requirement of payment of supplemental
dues is a valid hiring hall rule and by choosing not to
pay those dues Kusterns removed himself from the job
market , and Respondent should not be liable for' any
backpay. Respondent concedes that there are legitimate
occasions when an employee may."pick and choose" be-
tween available jobs, including circumstances where_an
employee chooses not to accept certain dispatches while
awaiting a better job. However, Respondent urges that
Kusterns was not awaiting a better job, that he was one
fo the top people on the out-of-work list and could have
successfully bid on any of the jobs.
The General Counsel argues that there is no evidence
that Kusterns was not willing to work , or that he sought
to avoid work in order to enjoy the full fruits of Re-
spondent ' s unlawful conduct and that , in the absence of
evidence that Kusterns' legal posture was taken-in bad
faith or with an eye to avoiding employment , he was not
required to abandon his position on the legality of the
supplemental dues requirement in order to obtain interim
employment so that Respondent 's backpay obligation
would be reduced.
It is well established that a respondent may mitigate its
backpay liability ,by showing that the discnminatee has
willfully incurred losses by a "clearly unjustifiable refusal
to take desirable new employment." Phelps Dodge Corp.
x NLRB, 313 U.S. 177, 197-200 (1941). However, al-
though an employee must make reasonable efforts to find
new employment which is substantially equivalent to the
position for which he was discharged.and is suitable to a_
person of his background and experience , he is held only
to reasonable exertion in this regard, not the highest
standard of diligence."NLRB v. Miami Coca Cola Bottling
Co., 360 F.2d 569 (5th Cir. 1966); Florence Printing Co. v.
NLRB, 376 F.2d 216 (4th Cir. - 1967), cert. denied 389
U.S. 840 (1967). Thus he may refuse to accept other em-
ployment which is. dangerous, distasteful , essentially dif-
ferent from that for which he is employed, of short dura-
tion, without the benefit of health, welfare, and pension
contributions made into the union trust funds, or is more
onerous than his previous position. Florence Printing Co.,
supra; NLRB Y. Madison Courier, 505 F.2d 391 (D.C. Cir
1974); Electrical Workers IBEW Local 401 (Stone & Web-
ster Engineering Corp.), 266 NLRB 870, 875-876 (1983); -
Big, Three Industrial Gas Co., 263 NLRB 1189 (1982);
Flite Chief Inc., 258 NLRB 1124 (1981); J. S. Alberici
Construction Co., 249 NLRB 751, 752-753 (1980).
IRON WORKERS 'LOCAL 433 (RPM ERECTORS)
The question here is whether Kusterns ' obligation to
make reasonable efforts to find new employment requires
him to abandon his position about the legality of the re-
quirement that his supplemental dues be paid before he
could be dispatched to employment within the multiem-
ployer bargaining unit . There is no evidence that this
legal position was taken . in bad faith or that it was an,un-
reasonable one. Further , the rules of Respondent 's hiring
hall do not require a -person on the out-of-work book to
accept any ,dispatch . Rather-it, was, the practice for per-
sons to refrain from bidding on jobs, without loss of po-
sition on the out-of-work book, until'a job became avail-
able which would fit the employees ' personal require-
ments.
I find that Kusterns ' duty to mitigate Respondent's
damages did not require him-to abandon his legal posi-
tion where , as here, the job to which Respondent unlaw-
fully refused to dispatch him would not have required
such abandonment , particularly when Respondent could
have tolled its backpay at any pont during the backpay
period by abandoning its legal position in its dispute with
Kusterns The purpose of the backpay remedy is not
1543
only to reimburse the innocent employee, for actual
losses suffered as a result of the discrimination but also to
further the public interest advanced by the deterrence of
such illegal acts. NLRB v. Madison Courier, 472 F.2d
1307, 1316 (D.C. Cir 1974). To allow Respondent miti-
gation of damages because Kusterns refused to abandon
his legal position in his dispute with Respondent when
Respondent could easily have achieved the same results
by abandoning its legal position in that same dispute
would not advance the public interest . This situation is
analogous to those where the Board and the courts have
held that the wrongdoer is the one who bears the burden
of any uncertainty arising as a result of its unlawful con-
duct, NLRB v. Miami Coca Cola Bottling Co., supra;
Southern Household Products , 203 NLRB 881 (1973), or
the burden of loss from protracted litigation . Servair, Inc.
v. NLRB, 726 F.2d 1435 (1984). Accordingly f find that
Kusterns did not willfully incur any loss of earnings
which would mitigate Respondent 's damages , and that
he is entitled to backpay in the amount set forth in the
amended backpay_ specification.
[Recommended Order omitted from publication.]