Iron Workers Local 15

National Labor Relations Board - Board Decisions

May 7, 1990

298 N.L.R.B. 445 (N.L.R.B. 1990)

IRON WORKERS LOCAL 15 445
Northern District of Connecticut Iron Workers
Local Union No . 15, Joint Apprenticeship Com-
mittee and its co-Respondents , the International
Association of Bridge , Structural and Ornamen-
tal Iron Workers , Local No. 15 , AFL-CIO, The
Associated General Contractors of • Connecticut,
Inc., and the Iron Workers' Locals 15 and 424
Apprentice Training Fund and Bruce Gilbert.
Case 39-CA-2434
May 7, 1990
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On November 1, 1989, Administrative Law
Judge Robert T . Snyder issued the attached supple-
mental decision. Respondent, the International As-
sociation of Bridge , Structural and Ornamental
Iron Workers, Local No. 15, AFL-CIO (Local 15),
and Respondent , the Associated General Contrac-
tors of Connecticut, Inc. (AGC) filed exceptions
and supporting briefs , and the General Counsel
filed a reply brief to their exceptions. The General
Counsel filed exceptions and a supporting brief,
and Respondent Local 15 and Respondent, Iron
Workers' Locals 15 and 424 Apprentice Training
Fund (Fund) filed reply briefs to the General
Counsel's exceptions.
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,2 find-
'Respondent AGC requested oral argument The request is denied as
the record , exceptions, and briefs adequately present the1 issues and the
positions of the parties.
2 The judge found, and we agree, that Respondent Local 15 and Re-
spondent AGC, as well as Respondent Joint Apprenticeship Committee
(JAC), are liable for the backpay due discriminatee Bruce Gilbert. How-
ever, in so finding, we do not rely on Morrison-Knudsen Co. Y. NLRB,
275 F 2d 914 (2d Cir. 1960), cited by the judge, nor do we adopt any-
thing in the judge 's decision that could be read as indicating that Re-
spondent Local 15 and Respondent AGC are each liable simply because
they established Respondent JAC. In Wolf Trap Foundation , 287 NLRB
1040 (1988), the Board rejected the theory of strict liability set out in
Morrison-Knudsen, 275 F.2d at 917 . The Board agreed instead with the
Lummus Co. v NLRB, 339 F.2d 728, 737 (D.C. Cir. 1964), rationale that
in labor relations, findings of liability through the doctrine of respondeat
superior must take into account specific circumstances of the agency rela-
tionship . In Wolf Trap, the Board found that one employer was not liable
for violations committed through the exclusive hiring hall established
under its collective-bargaining agreement with the union because it did
not have actual knowledge or notice of the union 's discriminatory refer-
ral policy See also Wolf Trap Foundation , 289 NLRB 760 (1988). Here,
however, both Respondent Local 15 and Respondent AGC through their
separate representatives on Respondent JAC not only knew of , but actu-
ally effectuated , Gilbert's unlawful discharge.
ings,3 and conclusions4 as modified and to adopt
the recommended Order as modified.
The judge found that in February 1988, when
Bruce Gilbert went to Key West, Florida, for his
honeymoon, he was out of the jurisdiction and un-
available for interim employment or to accept rein-
statement. The judge then excluded the 3-week
period in computing the backpay award. We dis-
agree with this exclusion.
Prior to his termination , Gilbert received 3
weeks' paid vacation as coordinator . If he had con-
tinued working for Respondent JAC, it is likely
that he would have used his paid vacation instead
of taking unpaid leave for his honeymoon. Al-
though Respondent JAC adopted bylaws in March
1986, after Gilbert's unlawful discharge , which pro-
vide for 2 weeks' paid vacation for the coordinator,
Respondent has not shown that Gilbert's replace-
ment , Thomas Milne, lost any vacation benefits at
the time that the bylaws were written or adopted.
It appears that Respondent JAC simply listed
3 Respondent Local 15 has excepted to some of the judge's credibility
findings. The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance of
all the relevant evidence convinces us that they are incorrect Standard
Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir.
1951 ). We have carefully examined the record and find no basis for re-
versing the findings
4 We correct the following errors in the judge's decision.
In sec II, par. 7 of his decision, the judge inadvertently stated that
early coordinator Ernest Duford's salary as a part-time coordinator was
initially paid equally by union and, Federal contributions In fact, union
and Federal funds paid Kenny King's salary as the first part-time coordi-
nator. Later, Duford was hired as a full-time coordinator, then worked
part-time, and eventually was laid off. Employer contributions paid Du-
ford's salary.
In sec II, par. 47, the judge inadvertently found that Respondent JAC
sought advice from Respondent Fund over implementing a drug testing
program . The Southern District Local 424 JAC actually sought this
advice.
In the "Analysis and Conclusions" section, par. 33, the judge stated
that as in Brockway Motor Trucks, 251 NLRB 29, 33 fn. 19 (1980), allega-
tions of control and direct participation in the unfair labor practice have
been made against Respondent Local 15 and Respondent AGC Respond-
ent AGC contends that there are no allegations that it directly participat-
ed in the unfair labor practice. However, the General Counsel does
allege such participation in that he contends that Respondent Local 15
and Respondent AGC, each through its own representatives on Respond-
ent JAC, were involved in and voted for Bruce Gilbert's unlawful dis-
charge.
In the "Analysis and Conclusions" section, par 42, the judge found
that the bulk of the $28,000 settlement, $24,412, represented compensa-
tion for the injury itself, which was the 10-percent permanent loss of
function in the knee . However, the $24,412 figure represented the insur-
ance adjuster's calculation for expected "lost earning capacity" in the
next year. The insurance adjuster determined that for the 10-percent per-
manent "loss of function," Gilbert was entitled to 23.8 weeks of $381 spe-
cific payments . The, judge stated that the "loss of function" under Con-
necticut law compensates the employee for the handicap of being without
the full use of the member and is not for impairment of earning power.
We agree with the judge that the specific payments for loss of function
are therefore not deductible from backpay. We further agree that the
$28,000 settlement, including any amount representing diminished earning
capacity, is not deductible from backpay because it was for future losses.
Further, the judge found that 8 weeks ' unpaid specific payments were in-
cluded in the $28,000 settlement However, at the time of settlement only
4.8 weeks were unpaid.
298 NLRB No. 63
446 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Milne's terms and conditions of employment in the
bylaws. To the extent that there are any uncertain-
ties on this question, we resolve them in favor of
the injured employee and against the wrongdoer,
Kansas Refined Helium Co., 252 NLRB 1156, 1157
(1980), enfd. 683 F.2d 1296 (10th Cir. 1982). Ac-
cordingly, we find that it is reasonable to conclude
that if Gilbert had not been unlawfully terminated,
his terms and conditions of employment, including
3 weeks' paid vacation, would have been contin-
ued. Therefore, the Respondents have not met their
burden to show that Gilbert removed himself from
the jurisdiction and would not have used his 3
weeks' paid vacation for his honeymoon. As vaca-
tion benefits are normally included in backpay, we
find that the 3 weeks spent in Florida should not
be excluded from the backpay period. Continental
Insurance, 289 NLRB 579 (1988). We shall modify
the recommended Order accordingly.
The judge properly found that Gilbert's unreim-
bursed medical expenses should be included in the
backpay amount. However, the judge inadvertently
failed to include the unreimbursed medical ex-
penses in his recommended Order, and we shall
modify it accordingly.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Northern District of Connecticut Iron
Workers Local Union No. 15, Joint Apprenticeship
Committee, Hartford, Connecticut; the Respond-
ent, the International Association of Bridge, Struc-
tural and Ornamental Iron Workers, Local No. 15,
AFL-CIO, Hartford, Connecticut; and the Re-
spondent, the Associated General Contractors of
Connecticut, Inc., Hartford, Connecticut, their offi-
cers, agents, and representatives, shall take the
action set forth in the Order as modified.
The following amounts shall be added to the net
backpay for Bruce Gilbert's unreimbursed medical
expenses:
Year/Qtr. Amount
1987/3 $282
1987/4 577
1988/1 748
1988/2 280
1988/3 28
$1,915
The following amounts shall be added to the
amounts set forth in the judge's recommended
Order for the first quarter of 1988:5
5 The judge inadvertently stated that these amounts were deducted
from the second quarter of 1988. However, the deductions were made
Net Backpay-$3,191
Extended Benefit Fund-$370
Annuity Fund-$300
Pension Fund-$318
Apprentice Training Fund-$18
Accordingly, the following amounts are due for
net backpay and for fund contributions, plus inter-
est on amounts due Bruce Gilbert as set forth in
the judge's decision:6
Net Backpay-$103,268
Unreimbursed Medical Expenses-$1,915
Extended Benefit Fund-$13,998
Annuity Fund-$13,146
Pension Fund-$14,728
Apprentice Training Fund-$861
from the first quarter of 1988, which is when Gilbert went to Florida for
his honeymoon.
6 Any additional amounts due the funds on Gilbert's behalf shall be
computed in the manner set forth in Merryweather Optical Co., 240 NLRB
1213, 1216 (1979).
Michael A. Marcionese, Esq. and Gary W. Shinners, Esq.,
for the General Counsel.
Burton S. Rosenberg, Esq., for Respondents JAC and
Local 15.
Michael N. LaVelle, Esq., for Respondent AGC.
Lawrence H. Lissitzyn, Esq., for Respondent Fund.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
ROBERT T. SNYDER, Administrative Law Judge. This
proceeding arises as a proceeding supplemental to the
Board's Decision and Order in Iron Workers Local 15,
278 NLRB 914 (1986), to determine the backpay, if any,
due and owing to Gilbert as a consequence of the
Board's conclusions in the underlying proceeding that
the aforesaid Joint Apprenticeship Committee (JAC or
Northern District JAC) unlawfully discharged Gilbert in
violation of Section 8(a)(1) and (3) of the Act and its
Order requiring the JAC to make Gilbert whole for any
loss of earnings and other benefits suffered as a result of
the discrimination against him.
In the underlying proceeding, the Board affirmed the
rulings, findings, and conclusions of Administrative Law
Judge Harold B. Lawrence and adopted his recommend-
ed Order including the make-whole remedy. The Board's
Order was enforced by the United States Court of Ap-
peals for the Second Circuit on October 14, 1986. In a
further proceeding brought on by the Board seeking to
hold the JAC in civil contempt for its failure to comply
with the court's order to reinstate Gilbert with backpay,
the court of appeals, by order of March 21, 1988, held
the JAC in contempt and ordered it to purge itself by,
inter alia, reinstating Gilbert as provided in its original
order and by paying him all lost earnings and benefits he
may have suffered by reason of his unlawful discharge.
Subsequently, by order of September 15, 1988, the court
of appeals remanded the proceeding to the Board for a
IRON WORKERS LOCAL 15 447
determination of the amount of backpay owed to Gilbert
under prior Board and court orders and the liability of
other entities, including those named as co-Respondents
in the instant proceeding, to pay any backpay awarded
to Gilbert.
The specification was amended at the opening of hear-
ing to include the other entities claimed to be derivative-
ly liable for the backpay obligation as named co-Re-
spondents and to reduce the total amount of backpay due
Gilbert to reflect his receipt of disability and workers
compensation payments. In paragraph 1, it alleges that
co-Respondent International Association of Bridge,
Structural & Ornamental Iron Workers, Local No. 15,
AFL-CIO (Local 15 or the Union), and co-Respondent
Associated General Contractors of Connecticut, Inc.
(AGC), jointly created and controled the JAC, and are
co-principals of the JAC who was acting as an agent of
Local 15 and the AGC at the time the JAC committed
its unfair labor practices and are accordingly jointly and
severally liable for the backpay claimed. In paragraph 2,
it alleges that Iron Workers Locals 15 and 424 Appren-
tices Training Fund (the Fund), was jointly created by
Locals 15 and 424 and the AGC for the purpose, in part,
of providing the operating funds for the JAC and the
Fund is the sole source of funding for the JAC and is
thereby responsible for the expenses incurred by the JAC
and liable for the backpay.
In its answer, the JAC admitted General Counsel's cal-
culations as to increases in Gilbert's hourly rate of pay,
denied, inter alia the backpay period alleged, that Gilbert
was entitled to any expense money, that contributions in
the amounts claimed were owed to the contractual fringe
benefit funds on Gilbert's behalf and that unreimbursed
medical expenses as claimed were due Gilbert. The JAC
also denied the allegation of liability of the other co-Re-
spondents. The JAC also claimed that the net backpay
should be reduced by an additional amount of interim
earnings Gilbert received as workers' compensation pay-
ments and that Gilbert failed to mitigate damages by de-
clining offers of comparable employment.
In an amended answer and special defenses, Local 15
admitted and denied the same paragraphs as the JAC but
also provided a detailed listing, of the offers of compara-
ble employment allegedly, declined by Gilbert. In sepa-
rately stated special defenses, Local 15, inter alia, plead-
ed that the Regional Director is barred from proceeding
against it under the principles of res judicata and collater-
al estoppel because he approved the withdrawal by
Charging Party Gilbert of a charge against Local 15 or
an amendment of the :charge removing Local 15 as a
party and, further, that the Regional Director has violat-
ed Local 15's due-process rights under the constitution
by seeking relief from it although it was not a party to
the proceedings on the merits.
The Fund filed an answer, which it later amended,
also disputing the backpay period, denying Gilbert's enti-
tlement to any expense money and the accuracy of cer-
tain contributions alleged to have been made on Gilbert's
behalf to the benefit funds and asserting that Gilbert
failed to mitigate his damages by declining referrals of
comparable employment as set forth in detail in Local
15's answer. The Fund admitted that Local 15 and the
AGC jointly created the JAC as well as itself for the
purpose, in part, of providing the operating funds for the
JAC, but denied liability for Gilbert's backpay. The
Fund asserts, affirmatively, that the effort to hold it re-
sponsible for backpay based on a determination of liabil-
ity arising out of a proceeding to which it was not a
party violates its due-process rights.
The AGC, by answer, denies liability, jointly with
Local 15 or severally for Gilbert's backpay, denying that
it controlled or was a co-principal of the JAC and avers
that once created, the JAC is an independent entity re-
sponsible for its own administration, and is controlled by
its committee members without participation or influence
from the AGC. The AGC denies knowledge or informa-
tion sufficient for a belief as to General Counsel's back-
pay calculations, but adopts the answer of whichever of
its co-Respondents possesses such knowledge. The AGC
also asserts denial of its due-process rights by the Gener-
al Counsel's claim for relief from it after having failed to
join it as a party to the liability phase of the proceeding.
All Respondents except Local 15 relied on their earlier
answers in answering the allegations of the amended
specification, orally on the record, and Local 15 specifi-
cally denied the accuracy of the workers' compensation
awards which General Counsel alleges in the amendment
constitute interim earnings deductible- from backpay and
stated its reliance on proofs it planned to submit to show
the accurate deductions. Local 15 also later filed an
amended answer asserting, inter alia, that by fraudulently
withholding his receipt of workers' compensation from
the Board and by fraudulently collecting disability pay
from the 'Respondent's health fund at the same time he
was-receiving workers' compensation,, Gilbert should be
denied any backpay for the period covered by his receipt
of workers' compensation. Local 15's amended answer
also seeks to reduce Gilbert's backpay by the sum of
$28,000 which he received in payment of lost wages for
lost earning capacity. In a further oral amendment to its
answer, Local 15 asserted an additional claim of failure
to report all interim earnings and General, Counsel fur-
ther amended the specification to revise the calculations
for unreimbursed medical expenses owed Gilbert.
This proceeding was heard by me on November 16,
17, and 18 and December 5, 6, 7, 21, 28, and 29, 1988, at
Hartford, Connecticut. All parties were afforded a full
opportunity to be heard, to introduce, evidence, and to
examine and cross-examine witnesses.:, Pursuant to a pre-
arranged schedule, main posthearing briefs ,were filed by
General Counsel, Respondents Local 15, Fund, and
AGC, which also filed proposed findings and conclu-
sions, and reply briefs were filed by Respondents Local
15, Fund, and AGC. All briefs have been carefully con-
sidered.
On the entire record, including my observations of the
demeanor of the witnesses, I make the following
FINDINGS OF FACT
1. THE UNDERLYING PROCEEDING
The various issues raised by the pleadings make it es-
sential that before presenting the evidence adduced in
448 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
this proceeding, the elements in the underlying proceed-
ing, on which the administrative law judge and Board
relied in concluding that the JAC engaged in the unfair
labor practices found, be summarized.
After many years as an ironworker and member of
Local 15, in 1979 Gilbert was selected to be coordinator
of the JAC. The JAC, an unincorporated association, es-
tablishes and overseas the operations of training pro-
grams for apprentices and journeymen ironworkers pur-
suant to collective-bargaining agreements negotiated by
Locals 15 and 424 and the AGC. The JAC is supposed
to have three management and three labor members,
who serve noncompensated 3-year terms. Gilbert, as co-
ordinator, conducted the routine day-to-day operations
of the apprenticeship program, overseeing all aspects of
it including procuring supplies, placing apprentices for
on-the-job experience, and performing various adminis-
trative functions.
At a meeting of the JAC held on the evening of Tues-
day, July 31, 1984, Gilbert was fired by a unanimous
vote of the Committee, a decision which Judge Law-
rence concluded was motivated unlawfully by antago-
nism against Gilbert because of his internal union activi-
ties. At the time, the JAC was composed of three union
and three management members , but one management
member did not attend this meeting. Judge Lawrence
concluded that union member Lloyd Etkin, who had
been defeated in a close vote a month before in a bid to
continue as Local 15 president in a campaign in which
Gilbert had supported his opponent and run unsuccess-
fully for reelection as vice president, used his influence
on the JAC over the two other union members whom he
had previously appointed and exerted influence over the
two management members present as well, including
Chairman Carl Johnson, to remove Gilbert as coordina-
tor. The evidence showed that Johnson, as well, prob-
ably harbored his own hostility toward Gilbert because
of his prior testimony in support of a protest by a losing
candidate for union business agent and financial secretary
in the June 15, 1984 election, to Johnson's voting and
active campaigning against the candidate as a union
member although he was an officer and part owner of an
industry employer. The timing of Gilbert's discharge
showed that at the time of his removal from the JAC,
one of the union member's terms was about to expire and
it could be anticipated that the new Local 15 president,
Wayne Arey, would probably appoint himself to fill the
vacancy, thus lessening Etkin 's influence over the JAC.
Judge Lawrence rejected as pretextual asserted reasons
advanced by the JAC for Gilbert's discharge that he had
failed to comply with instructions of the full JAC and,
further, concluded that other reasons advanced subse-
quent to his discharge regarding Gilbert's submission of
excessive expense vouchers did not play a role in his dis-
charge.
II. THE EVIDENCE REGARDING THE CO-
RESPONDENTS' RELATIONSHIP TO AND ALLEGED
CONTROL OVER AND MAINTENANCE OF THE JAC
By collective-bargaining agreement running from July
1, 1960, to June 30, 1963, Locals 424 and 15, represent-
ing employees in the ironworkers trade employed by
contracting employers, within their territorial jurisdic-
tions of New Haven and Hartford, Connecticut, respec-
tively, and the AGC, on behalf of its respective members
who authorized its representation of them "and/or other
associations, Corporations or Companies wishing to be
part of this Agreement," provided, in a separate appren-
ticeship clause, that "the parties signatory hereto agree to
establish and maintain joint apprenticeship committees in
accordance with the provisions of the `Iron Workers Ap-
prenticeship and Training Standards' as approved by the
Connecticut State Apprenticeship Council . Said commit-
tees shall formulate and operate an apprenticeship pro-
gram in the jurisdiction of Locals 15 and 424."
Under this provision two separate Joint Apprentice-
ship Committees were established, the Northern District
of Connecticut Iron Workers Local Union No. 15 Joint
Apprenticeship Committee (JAC) and the Southern Dis-
trict of Connecticut Iron Workers Local Union No. 424
Joint Apprenticeship Committee, to administer training
of apprentices within their respective territorial jurisdic-
tions.
The identical contractual provision has continued in all
subsequent agreements to present date.
According to Frances Mazza, executive vice president
of AGC since 1981 , the AGC is a trade association
which provides a variety of service to its members, in-
cluding collective-bargaining services, bargaining on
behalf of those members who, for each successive con-
tract, authorize it to do so, with unions which represent
their employees. The members of the AGC are both gen-
eral and subcontractors, only some of whom directly
employ ironworker, although those which do are among
the largest ironworkers employers in Connecticut. Mem-
bers who have assigned their bargaining rights to the
AGC have varied between 45 to 50 in 1981, to as few as
23 for the current agreement which commenced in 1987.
Over the years, the collective-bargaining agreements
with Locals 15 and 454 have included, in addition to the
AGC, as employer association signatories, other employ-
er associations, including the Connecticut Steel Fabrica-
tors and Erectors Association, Inc., which dissolved in
1981, and currently includes the Connecticut Iron Work-
ers Employers Association, a group of about 20 employ-
er subcontractors which only employ ironworkers, some
of whom, maybe a dozen, are also members of the AGC.
As related by Mazza, the majority of ironworkers are
employed by subcontractors. Within the last 10 years,
the general contractors have begun subbing out the iron-
worker work rather than employing ironworkers directly
presently, there are over 100 employers, both general
and subcontractors who are either not members of the
AGC, or have not assigned it bargaining rights, but
which have or may employ ironworkers, and who adopt
the Union AGC agreement. As testified by AGC
Member Carl Johnson, and confirmed by Local 15 Fi-
nancial Secretary Dennis Foley and Local 424 Business
Agent Joseph Egan, the AGC is the Association with
which the Unions negotiate successor agreements other
associations and employees sign the agreement and
agreed to be bound by its terms. Thus, it has been the
AGC which has negotiated the basic terms of the agree-
IRON WORKERS LOCAL 15 449
ments with Locals 15 and 424 over-the years and which
has been responsible , in the main , for the institution and
maintenance by agreement of the JAC, among other
terms and conditions of the agreement.
Unlike all other apprenticeship training arrangements
for other crafts with which he is familiar through bar-
gaining with other unions, on behalf of the AGC, Mazza
testified that the ironworkers are unique in maintaining
separate operational and funding entities. The JAC, both
Northern and Southern Districts, have no funds of their
own. As testified to by Ernest Duford, an early coordi-
nator of the Northern District JAC, his salary as a part-
time coordinator of the JAC was initially funded equally
by union and Federal contributions. Effective January 1,
1967, an Iron Workers Locals Nos. 15 and 424 Appren-
ticeship Training Trust Fund (Fund) was established by
agreement and declaration of trust, to which employer
members of the AGC as well as all other employer sig-
natories of the agreement started contributing for the
purpose of providing operating funds to maintain the ap-
prenticeship training conducted by the Northern and
Southern JACs. Pursuant to Section 302(c)(6) of the
Labor Management Relations Act, such moneys paid by
employers to a trust fund for the purpose, among other
purposes, of defraying the cost of apprenticeship training
programs are an exception to the restrictions imposed by
Section 302(a) upon payments by an employer to repre-
sentatives of his employees. The 1983 to 1985 collective-
bargaining agreement between the parties in effect at the
time of the unfair labor practices found contains under a
provision entitled "Fringe Benefit Funds" a requirement
for contributions by covered employers to the Fund,
among others, in a specified amount for each hour
worked or paid by covered ironworker employees.
These contributions constitute the sole funding of the
Locals 15 and 424 JACs. Fund Trustee and Local 424
Business Agent Joseph Egan testified, without contradic-
tion, that, in reality, the amount of contributions to the
Fund is set unilaterally by the Unions. As a result of the
negotiation process, the AGC agrees to an overall pack-
age of, increased benefits which is left to the two Unions
to divide up among wage and other benefit increases, in-
cluding any increases in contributions to the Fund,
among other fringe benefit funds.
It was not until 1969 that the Fund had reached a suf-
ficient size to permit the employment of a paid full-time
coordinator. At that time, the funding by the Depart-
ment of Labor ceased.
The 1983 to 1985 agreement is typical of the parties'
agreements in also covering apprentices' terms and con-
ditions of employment relating to their payscales over
time, length of their probationary period, certification by
the JAC of their advancement, and satisfactory comple-
tion of their apprenticeship and their referral to jobs.
The training function delegated by the parties' agree-
ment to the JAC was characterized as extremely impor-
tant with respect to the construction companies' ability
to employ trained workers by JAC Chairman Johnson,
and because of the AGC's commitment to this function
in providing for the future of unionized construction,
there has never been a dispute with the union over an
increase in funding according to AGC's executive vice
president, Mazza. The training function was also de-
scribed by more than one witness as educating the ap-
prentices to become good union members, and includes
instruction in labor and union history.
The Iron Workers Apprenticeship and Training Stand-
ards to which the JACs shall conform by the terms of
the collective-bargaining agreement in maintaining and
operating apprenticeship training programs require also
that the JACs shall abide by the Local 15 bylaws as well
as the Reference Manual and Guide for Establishing and
Operating Iron Workers Apprenticeship Programs (the
Guide).
The Standards in evidence were revised September 17,
1985, and note their formulation in accordance with the
basic standards recommended by the_U.S. Department of
Labor, Bureau of Apprenticeship and Training, and their
approval by the Connecticut Labor Department, Office
of Job Training and Skill Development. A forward notes
they were formulated by and between the Iron Worker
Employers of Connecticut and Local 15. AGC Official
Mazza denied that he or anyone associated with the
AGC had anything to do with the approval of these re-
visions. A document affixed to the revised Standards and
addressed to the Connecticut State Apprenticeship Coun-
cil lists the Labor and Management Members, including
their employer affiliations, is dated August 10, 1987, in-
cludes apprentice and journeymen wage schedules, and is
signed by Thomas J. Milne, the coordinator of the JAC
who succeeded Gilbert, and Willard H. Guiel, State di-
rector of the Bureau of Apprentice Training. It thus ap-
pears to evidence JAC recognition of and adherence to
the Standards. The Standards appear to be comprehen-
sive in scope, covering such matters as apprentice appli-
cant qualifications , recruitment, selection, employment
and training procedures, term of apprenticeship, appren-
ticeship agreement, wages, hours, and conditions of
work, apprentice to journeyperson ratio, related instruc-
tion, safety, apprentice responsibilities, certificate of com-
pletion, complaint procedures, modification (of stand-
ards), program deregistration and reinstatement, and the
responsibilities of the Joint Apprenticeship and Training
Committee. The Standards also include a work training
schedule, related instruction guidelines , wage scale, and a
sample apprentice agreement.
The Guide, published by the International Union, as of
August 1966, is described on its heading page as present-
ing practical illustrations, methods, and procedures for
establishing and operating ironworker apprentice training
programs . It provides detailed information regarding the
advantages of establishing formal apprenticeship training
programs, the Union's, management's, and Joint Commit-
tees' roles, the Government's regulatory function, and
the nature and kinds of jobsite and related training pro-
vided by such a program Excerpts of Federal statutes,
regulations, and forms are appended.
The Standards provide that JAC membership shall be
comprised of at least three management and three union
representatives to be selected by the group "they repre-
sent." In discussing the Union's role and procedures to
follow in establishing an apprentice program, the Guide
provides that the local union president should select the
450 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
union representatives, and that the chairman of the Em-
ployer's Association, if one exists, should be contacted
and requested to appoint three employer members to
serve on the joint apprenticeship committee. To ensure
joint participation and equality of representation, the
Standards also provide that the office of-chairman alter-
nate between employer and union representatives and the
secretary be selected from the group not represented by
the chairman.
The duties imposed on the JAC by the Standards in-
clude determining apprentice need, establishing minimum
standards of education and experience, placing appren-
tices under agreement with the employer's agent for the
apprenticeship term, determining the quality and quantity
of experience apprentices shall obtain on the job, hear
and adjust all complaints of violation of apprenticeship
agreements , arrange tests for determining apprentice
progress, maintain individual apprentice records, certify
those apprentices who have successfully completed their
apprenticeship, in general , be responsible for the success-
ful operation of the Standards, and, in cooperation, with
the Fund, employ the services of a coordinator to imple-
ment the duties and obligations of the Committee con-
tained in the Standards. The Guide provides that training
funds may be used to pay the coordinator's salary. As
noted-by the Guide, reliance must be placed on the coor-
dinator to provide immediate training and supervision of
apprentices.
In carrying out these responsibilities of the JAC and
coordinator, both labor and management have input into
the successful operation of the training program. Thus,
the coordinator provides forms for the general foreman
and union steward to evaluate the progress and perform-
ance of the apprentice on the job, which, when complet-
ed, becomes part of the apprentice's file. Aside from the
classroom setting , at the jobsite, it is the foreman who
supervises the apprentice. As discussed, infra, since 1984,
Local 15 has directly assumed the responsibility for plac-
ing apprentices on jobs, and both Local 15 business
agents and company officials monitor the progress of ap-
prentices, reprimand them, where appropriate, and have
brought complaints about their work performance to the
JAC for its consideration.
To aid in testing applicants and, apprentices, the Guide
contains an aptitude test, a system for rating apprentices,
interview evaluation forms, and guidelines. The Stand-
ards set forth the progressive discipline the JAC may
impose on an apprentice. Testimony elicited at the hear-
ing from JAC Chairman Carl Johnson show that the
JAC has followed the Standards and guidelines in oper-
ating_its training program for apprentices.
The Guide further dictates that each apprentice shall
sign an individual apprenticeship agreement with the
JAC, rather than the individual employer, in order to
provide flexibility and give the Committee freedom to
transfer apprentices between 'contractors and construc-
tion jobs in order to provide diversity of work experi-
ence and maximize employment opportunities.
While the Standards provide that "no member of the
joint committee, nor any organization of employees or
employers represented thereon may be held liable for
any consequences resulting from certain specified actions
taken by the JAC, excluded from such specified actions
is the termination of a JAC employee (sec. XVII The
Joint Apprenticeship and Training Committee, par. K. p.
10).
AGC Executive Mazza testified, without contradic-
tion, that although under the contractual format, the
AGC would be responsible for appointing the manage-
ment members of the JAC, he has never been asked to
appoint a member to the Northern'District JAC' and he
did not know how Carl Johnson became its chairman.
However, according to the uncontroverted testimony of
Ernest Duford, JAC coordinator, from 1969 until his' re-
tirement in 1979, Frank White, the then AGC vice presi-
dent, was contacted to appoint replacements to fill va-
cancies among management members of the JAC for that
period of time. The AGC's claim, at page 23 of its reply
brief, that at least since ' 1960 the management member-
ship has been self-perpetuating is thus incorrect. Two of
the three current management members of the JAC,
Joseph Riley and James Needham, are employed by em-
ployers First Pre-Cart Co. and Brunali Construction Co.,
respectively, who are not members of the AGC, Chair-
man Carl Johnson is employed by Berlin Steel Co., an
AGC member. At the time of the underlying unfair labor
practice in 1984, management member Robert McDer-
mott was employed by Thames Valley Steel, also a non-
AGC member. Mazza was unfamiliar with the employ-
ment affiliation of the third management member, Mi-
chael Conte. Management representatives to the JAC
have always held supervisory positions in the companies
with which they are affiliated. Although Mazza also tes-
tified he does not have any interaction with the Northern
District JAC, and has never attended its monthly meet-
ings , on at least two occasions he has had contact. In
1985, he met with Dennis Foley, union -business agent
and secretary-treasurer, and Tom Milne, JAC coordina-
tor, regarding an unsuccessful effort to have the JAC re-
locate its training facility to a building the AGC was
considering purchasing to house its own offices. In 1987,
the AGC invited the JAC, as well as all other appren-
ticeship committees in the construction industry through-
,out the State, to participate in a program of meetings
with State and AGC officials to discuss particular prob-
lems affecting apprenticeship training, including attend-
ance, alcohol, and drug abuse.
From all that appears, the management members of
the JAC are currently a self-perpetuating group, whose
successors are sought out and selected by the current
management members based on knowledge as to their
current interest in becoming members and their availabil-
ity. Carl Johnson testified that his present management
colleagues on the JAC were sought out and asked to
serve' by JAC management members when their names
come up as management personnel who had expressed
some interest in serving.
In contrast, Local 15 has maintained a continuous con-
trol over the membership composition of its representa-
tives on the JAC, successors being selected by the Local
' Mazza has appointed at least one management member of the South-
em District (Local 424) JAC. When a vacancy arose in 1984 or 1985, he
appointed Greg Selfridge, director or Manpower Services for the AGC.
-IRON WORKERS LOCAL 15 451
president as positions became available. The Union also
has a close functional relationship to the JAC which
manifest itself in various ways.
Gilbert testified that up until approximately 6 months
before his discharge, he exercised the responsibility of
placing apprentices on jobs as part of their training. At
that time, before his firing, Gilbert was relieved of this
duty by Business Agent Foley and Local took over this
aspect of the apprenticeship training. When Gilbert
raised questions about the Union's direct assumption of
this responsibility, then JAC Chairman Etkin told him to
go along with Foley. At all times material, the-coordina-
tor's pay and expense reimbursement had been made by
checks drawn on the Local 15 bank account, which ex-
penses of the JAC operation have been regularly reim-
bursed by the Fund. At the October 2, 1984 monthly
meeting 20 of the Fund Trustees, Chairman Carl John-
son commented that the Northern JAC would set up a
separate checking account and not comingle the money
(representing normal operating expenses of the JAC)
with Local 15. No further mention appears of this matter
in the minutes in evidence through November. 26, 1985.
Until sometime in 1984, the JAC rented office space
from Local 15 at their offices in Hartford. In that year,
the JAC moved to another location. The JAC employs
part-time the secretary employed by Local 15 and pays
the Union a flat rate per week for her services.
At the time that Gilbert was terminated, according to
Foley, Gilbert contacted his office seeking a layoff slip.
Foley spoke with Carl Johnson who told him he had no
layoff slips available and could he, Foley, see to it that
Gilbert got one and to list the reason for layoff which
appears on the slip. Since Foley had meetings out of his
office that day, he instructed his secretary to prepare a
slip for Gilbert and to stamp his signature as the issuing
officer. The layoff slip received in evidence, dated
August 3, 1984, lists Local 15 as the issuing Company,
the reason for Gilbert's unemployment as work unsatis-
factory, and contains Foley's stamped signature certify-
ing that the information contained in this -notice is true
and correct. It was Foley who handed Gilbert the slip
on August 4, 1984. Foley also attended Gilbert's unem-
ployment compensation hearing as a representative of
Local 15. Subsequently, in 1988, when Gilbert was rein-
stated and Thomas Milne, his replacement, was relieved
of the position of coordinator, again at Carl Johnson's re-
quest, Local 15 issued Milne a layoff slip. It was Local
15 Business Agent and Secretary-Treasurer Foley who,
as trustee in attendance at the January 31, 1985 monthly
meeting of the Fund trustees, requested that Local 15
cease to be the employer of the Local 15 apprentice
training coordinator.
In 1979, the JAC sought to hire a full-time coordinator
to replace Ernest Duford, who by then had retired after
working part-time for a number of years, and then as a
nonpaid volunteer when a recession in the industry re-
sulted in a cessation of funding for the apprenticeship
program. Gilbert was ultimately selected as the success-
ful candidate. In seeking to recruit applicants, a letter
dated April 6, 1979, and signed by the JAC was circulat-
ed to all Local 15 members soliciting applications from
interested members. The letter expressed the view of the
JAC regarding permanency of the position, exclusion of
any other responsibilities, the salary scale and arrange-
ment for reimbursement of expenses, and the necessity of
special qualification in basic first aid and requested all
those interested to return completed applications to the
local union office.
Prior to his hire as coordinator in 1979, Gilbert was
provided with a document listing the duties and responsi-
bilities of the apprenticeship coordinator. The paper
stressed the requirement that the coordinator command
the confidence, respect, and cooperation of union offi-
cials, contractors, general- foremen,' journeymen and
school officials. The paper concludes with the following
paragraph:
He must also recognize that his position is non-po-
litical, that he is an employee of both Management
and Labor, and in this capacity may not actively
participate in contract negotiations or labor contro-
versy. In addition, while an employee of the Ap-
prenticeship Training Funds, he may not engage in
political activity within the Union.
Gilbert, who was then the union vice president, at a
meeting with the Union's executive board, sought and
obtained a waiver of the prohibition on holding political
office within the Union. Gilbert was subsequently re-
elected vice president in 1981 and remained in office
until defeated for reelection in the 1984 election.
According to Union Business Agent Foley, Gilbert, as
JAC coordinator, from time to time reported on various
aspects and the status of the apprenticeship training pro-
gram to the general membership at Local membership
meetings . Gilbert testified that Michael Blackburn, then
business agent of Local 15 and Labor member of the
JAC, informed him in 1981 during his tenure as coordi-
nator that it was his responsibility to report to the gener-
al membership at their meetings on JAC • activities.
Blackburn confirmed that in 1981 he told Gilbert to start
giving some reports at local membership meetings so as
to award questions being raised. about his performance of
duties as coordinator by.-political factions opposed to
him. After this discussion, according to Blackburn, these
reports were given at a majority of the monthly meetings
held over a year. They included a rundown on the
progress of apprentices, their number, and any problems
which had arisen with the program. Although not re-
flected in minutes of membership meetings held between
October 28, 1982,_ and July 31, 1984, various witnesses
confirmed that the minutes are not comprehensive. Based
on the corroborative nature of the testimony regarding
these reports, I find that the coordinator did make peri-
odic reports which may have been informal in nature. In
this connection, I do not credit Business Agent Coyne's
testimony that Gilbert reported to the membership only
2 or 3 times a year, or the implication arising from his
testimony that while Blackburn and 'Gilbert were busi-
ness agent and vice president and friends to the point
where Blackburn would tailor his testimony regarding
Gilbert's reports to strengthen the JAC's relationship to
the Union, Blackburn was a responsive, thoughtful, and
an articulate witness. I credit his denial of any special re-
452 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
lationship with Gilbert and his recollection of his con-
tacts with Gilbert while serving as business agent and
labor member of the JAC and Gilbert's reports as coor-
dinator to the Local 15 membership.
At a meeting of the general membership of Local 15
held on March 28, 1985, a motion, as amended, was
adopted requiring that the minutes of the JAC meetings
be read at the Local 15 monthly meetings and that a
report be provided as to the JAC from a labor member.
Thereafter, successor Coordinator Milne reported at the
Local 15 monthly membership meetings on a regular
basis. Blackburn also confirmed and is credited that the
JAC document describing the duties and responsibilities
previously reviewed was a guide to the JAC during the
process of interviewing for replacement of Duford as co-
ordinator in 1979.
Blackburn was also firm in the conviction that while
serving as labor member of the JAC in the early 1980s,
he was an advocate for the Union. In selecting and certi-
fying apprentices, the labor members were looking for
people who were not only in such good physical and
mental condition as to be competent ironworkers, but
were also good union people who could be expected to
carry out the principles that the Union endorses. By the
same token, in addition to seeking well-qualified iron-
workers, the management members served as advocates
for their position of seeking to contain costs by voting to
limit and withhold increases in apprentice pay rates.
Such positions were expressed during JAC consider-
ations of the periodic advancing (upgrading) of appren-
tices based on their demonstrated ability which the JAC
was required to certify under the salary provision of the
collective-bargaining agreement. See, e.g., the "Appren-
tices" paragraph of the "Wage Rates" article of the
1983-1985 agreement in evidence.
Another fact which deserves mention in connection
with the issue of the JAC's relationship to the Union is
the JAC and Local 15 retention of the same attorney to
represent them in the instant proceeding, a proceeding in
which the General Counsel is seeking to impose liability
on Local 15, among other co-Respondents, for the unfair
labor practices committed by the JAC. Attorney Burton
S. Rosenberg stated on the record that he had discussed
with both his clients this dual representation and the po-
tential or possibility of a conflict of interest on his part in
undertaking to represent clients with the differing inter-
ests described, and both had consented that he continue
to do so. To this extent, at least, these entities may thus
be deemed to consider their basic interest to be aligned
rather than diverse.
The Fund's role and relationship to the JAC will now
be considered. As earlier noted, the Fund was created by
Agreement and Declaration of Trust as of January 1,
1967, for the purpose of financing training and related
programs, and since the 1969 collective-bargaining agree-
ment has been the sole source of funding of the JAC. At
least since 1981, the sole signatories to the Agreement
and Declaration of Trust have been Locals 15 and 424
and the AGC. Both Carl Johnson and Fund Trustee
Joseph Egan testified that the term "Association" as used
in the Agreement and Declaration of Trust2 has referred
only to the AGC since the Steel Fabricators Association
dissolved by 1981.
The 1976 fully revised agreement and Declaration of
Trust provides that no amendments may be made which
conflict with the parties' collective-bargaining agreement
(sec. 8.2) and that all contributions to the Fund shall be
made in accordance with the agreement (sec. 5.2).
Pursuant to the collective-bargaining agreement, the
Fund is administered jointly by an equal number of rep-
resentatives designated and appointed by the Association
and the Union. The Association (AGC) may even ap-
point a full-time employee as trustee. AGC Executive
Vice President Mazza testified that he has personally ap-
pointed all the management trustees to the Fund since
1981. Two of the trustees he appointed to the Fund as
representatives of the employers in the Southern District
he also appointed to the Southern District (Local 424)
JAC.
The Local 15 president appoints Local 15 representa-
tives to be its trustees of the Fund. They have either
been Local 15 business agents or the Local 15 financial
secretary. Blackburn testified that he served simulta-
neously as a Fund trustee and a Local 15 JAC member
and that such multiple appointments were not an unusual
occurrence in his experience.
As noted earlier, the Fund constitutes the sole source
of funding of the activities of the Locals 15 and 424
JACs. The JAC has no assets or funds of its own. As
provided in section 1.2 of the third amendment and Dec-
laration of Trust; "The Trust Fund shall be used for the
purpose of financing training and related programs for
eligible trainees, apprentice Iron Workers and Journey-
men Iron Workers, as determined by the Trustees, and
shall further provide the means for financing the ex-
penses of the Trustees and all costs incurred in connec-
tion with the establishment, operation and administration
of the Trust Fund, in accordance with the Agreement
and Declaration of Trust." As also noted, those funds are
raised by contributions imposed on all employees pursu-
ant to the terms of the collective-bargaining agreement
negotiated between Locals 15 and 424 and the AGC.
Among other expenses of the JAC which the Fund fi-
nances have been the salary and related expenses of the
JAC coordinator. The parties to the proceeding also stip-
ulated that part of the compensation for the coordinator
of the JAC is payment by it to the various contractual
funds, at the contractual rate, for all hours worked by
the coordinator.
However, not all JAC requests for reimbursement of
expenses incurred or for funding activities of the com-
mittee members have been approved by the Fund.
a In a third amendment to the original Agreement and Declaration of
Trust executed January 1, 1976, by the Union Trustees and Association
Trustees as successors to the original trustees under the agreement of
January 1, 1967, completely revising the original document, the "Associa-
tion Trustees" are defined as the trustees designated by both the AGC
and the Connecticut Steel Fabricators and Erectors Association, Incorpo-
rated, which, as noted, ceased operating within 5 years thereafter A
fourth amendment adopted October 7, 1982, added remedies to those al-
ready exlstmg, to obtain payments from an employer in default of his ob-
ligations to make contributions to the Fund.
IRON WORKERS LOCAL 15
A number of times a majority of Fund trustees have
voted in writing not to reimburse the JAC for the ex-
penses it has incurred in connection with this proceed-
ing, in particular, the JAC's legal expenses in defending
the underlying and related court proceedings as well as
the backpay award.
After unanimously adopting for the first time a set of
bylaws governing its operations on March 19 , 1986, and
forwarding them to the Fund , by letter dated May 22,
1986, addressed to the Fund , the JAC requested the
status of the bylaws it had "forwarded to you for ap-
proval." Among other subjects , the bylaws provided for
a coordinator 's employment contract of 4 years' dura-
tion . No response was received to this request. The
bylaws were merely filed as information received from
the JAC. By letter dated August 3, 1987 , the JAC re-
quested a meeting with the Fund , noting their agenda
concerns the status of the former apprentice training co-
ordinator of the Northern District . A meeting with the
Fund trustees was held . Attending were several JAC
members as well as JAC Attorney Byrton Rosenberg
and Fund Attorney Lawrence Lissitzyn . JAC Chairman
Carl Johnson ' testified that as a result of the trustees'
denial of requests for payment of legal fees in this case as
well as its ignoring the JAC's request regarding review
of its bylaws, the JAC was seeking to clarify its relation-
ship with the Fund . In an informal discussion with a
trustee of the Fund , Johnson learned that at least some
of the trustees had expressed the view , which was con-
firmed at this meeting , that the JAC should not have
acted to fire , Gilbert without consulting them . According
to Johnson , the meeting, however, did not resolve any of
the questions of the JAC concerning their relationship.
While Johnson testified that the Fund never refused to
pay any expenses of the JAC other than those associated
with this case , he later clarified that he was referring to
expenses incurred prior to Gilbert's discharge in 1984
and later testified that recently the Fund had refused
without explanation to pay certain expenses for attending
a convention for which JAC committee members had
sought prior approval.
Local 424 Business Agent and Fund Trustee Joseph
Egan testified that during the 1970s because of fiscal
problems , funding of the coordinator position was dis-
continued for a period of time. Egan noted that bills
from both Southern and Northern District JACs are re-
ceived and approved for payments at the trustees'
monthly meetings. Since Gilbert's termination , the Fund
trustees requested the Local 15 JAC to justify its contin-
ued use of a truck it owned used by its coordinator. As a
consequence of its review of the matter, the trustees
ceased funding the truck's use, it was sold and the pro-
ceeds from the sale went into the Fund.
In the fall of 1985, the Fund trustees considered, but
did not pass upon , the purchase of errors and omissions
insurance covering and protecting the members of the
JAC from liability arising from lawsuits against them
brought by an apprentice or any third party for actions
arising in the course of their duties.
The Fund has also conducted its own audit of ex-
penses related to use of the truck submitted for reim-
453
bursement by Gilbert at the request of the JAC covering
the period prior to his discharge.
The JAC had also sought advice from the Fund in
1987 concerning liability arising from the implementation
of a drug testing program for apprentices . The legal
counsel for the Fund has provided such advice. Accord-
ing to Egan, the Fund's interest in providing such advice
was a concern for the potential liability of both the JAC
members and trustees of the Fund.
With respect to the Fund trustees involvement in the
JAC relations with its coordinator, Carl Johnson testified
that the trustees were not consulted before Gilbert's
hiring or firing or the hiring of his successor , Milne.
Johnson did have conversations with trustees before re-
hiring Gilbert and did write the board of trustees inform-
ing them of Gilbert's rehire shortly after the JAC had
done so. As testified by Egan, the trustees of the Fund
had nothing to do with the preparation of the document
describing the duties and responsibilities of the coordina-
tor. Neither has the Fund participated in the preparation
on the apprentice training curriculum nor has it played
any role in overseeing the coordinator's functioning,
placing apprentices on jobs or disciplining them.
The Fund also has regular communications with the
parties who created the JAC and the Fund. The Agree-
ment and Declaration of Trust provides that once each
year the Fund trustees shall render a written report of
the Fund's financial condition and its transactions to the
"Union and Associations" and they may file objections
to the report. Trustee Egan testified that to his personal
knowledge the trustees had provided such reports annu-
ally to the Unions. Former Trustee Blackburn testified
that he periodically gave reports at the Local 15 general
membership and executive meetings concerning Fund
matters of particular significance . One set of minutes, for
November 21, 1988 , reflect that "member Joe McGloin
made a motion that the Trust Agreement of the North-
ern District Joint Opp. Com. be read before the body. It
was passed ." A marginal note connected by arrow to
this motion reads: "This was read and voted on accord-
ing to the new By Laws."3
Both Local 15 and 424 JACs reported to the Fund
their agreement to become trustees and to continue as
JAC members in an apparent effort to resolve the prob-
lems created by the underlying proceeding and the sepa-
ration of apprenticeship funding and administration re-
sponsibilities. At its May 26, 1987 meeting, the Fund
trustees voted to postpone action on this request to com-
bine trustee and JAC functions in the JAC members until
the instant proceeding is resolved.
9 These references remain ambiguous . General Counsel 's assertion that
the reference is to a reading of the Agreement and Declaration of Trust,
the fourth amendment to which was adopted 3 years earlier in October
1982 cannot be credited The reference probably related to the JAC
bylaws which bear a date on their face of November 1985, although they
were not signed by the JAC members until March 19, 1986.
454 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
III. THE GENERAL COUNSEL'S CLAIM-FOR BACKPAY
ON BEHALF OF GILBERT
A. The Evidence Supporting the Calculations of
Gross Backpay
Regional Compliance Officer Howard Neidig testified,
without contradiction, to a backpay period commencing
to the date Gilbert was terminated, August 4, 1984, and
ending on the date he was reinstated, May 2, 1988. In
their answer, Local 15 and the JAC assert that the back-
pay period did not commence until August 25, 1984,
based on Gilbert having received payment for 120 hours
in August 1984. Gilbert received pay for these hours on
his termination. These hours, however, reflect accrued
vacation pay Gilbert had earned previously while work-
ing as coordinator. Accordingly, this factual defense is
rejected. Local 15 and the JAC also dispute the end of
the backpay period, arguing that when Gilbert obtained
employment with Thames Valley Steel as a journeyman
ironworker on September 4, 1984, that was an accept-
ance of comparable employment and thus served to cut
off any further backpay. As a journeyman, Gilbert, in
contract to his administrative job with the JAC, worked
with tools at a construction site. Unlike the guaranteed
40-hour-a-week pay Gilbert received as coordinator
without regard to actual hours worked, journeymen iron-
workers are only paid for actual hours worked and, at
most, for the length of the construction project. Those
hours vary, and will be fewer than 40 hours a week
when weather conditions, lack of materials, and other
conditions on the job prevent work from taking place.
Gilbert's hourly rate of pay as coordinator at the time
was $20.70 as contracted with $18.50 for a journeyman
ironworker. Gilbert's coordinator position continued to
exist and was performed by his successor, Milne, until his
eventual reinstatement. Thus, in accepting the Union's
referral of the Thames Valley job, Gilbert was litigating
the backpay due him but was not relieving the JAC from
its obligation to offer him reinstatement to his former job
as required by paragraph 2(a) of the Board's Order.
The evidence disclosed that by letter dated April 4,
1988, Carl Johnson for the JAC advised Gilbert he was
reinstated effective April 11, 1988, and directed him to
report to the new JAC office in East Hartford at 10 a.m.
on that date. Gilbert arrived hours earlier at his usual
starting time, and left when, after a 35- to 40-minute
wait, he could not obtain access to the locked office. In a
subsequent letter to him from the JAC dated April 13,
1988, Johnson notified Gilbert he was being suspended as
coordinator without pay pending further investigation
because of his failure to report for work as directed and
his misuse and/or misappropriation of Apprentice Fund
moneys. Johnson recounted that he and JAC member
Wayne Arey were at the JAC office on April 11 from
10:05 to 11 a.m. and Gilbert failed to report for work.
Johnson also enclosed copies of audits conducted by the
Funds and requested Gilbert's response in writing within
7 days to the expenses reflected in them. His failure to
respond would result in further discipline including ter-
mination. Gilbert, for his part, had written Johnson on
April 11 recounting his experience on that date when he
arrived at the JAC office and noted his willingness to
resume his position as coordinator and to report on the
receipt of a certified letter stating the date and time.
In its order of March 21, 1988, the court of appeals re-
fused to consider the JAC's misappropriation allegations
until it had purged itself of contempt by discharging its
backpay and interest obligations and reinstating Gilbert.
In his testimony, Johnson confirmed that it had been the
JAC's intention to terminate Gilbert a second time on
April 11 when he arrived at work pursuant to its April 4
offer of reinstatement. Thus, the apparent misunderstand-
ing of April 11, and Gilbert's failure to report timely in
response to the offer played no part in the JAC's deci-
sion and refusal to reinstate Gilbert at the time. As its de-
cision was based on grounds which the court of appeals
had already rejected in the contempt proceeding result-
ing from the Respondent's failure to comply with the
Board's Order, the Local 15 and JAC argument made at
hearing that backpay should be tolled as of April 4, 1988,
the date of its offer of reinstatement, is rejected.
The Respondents admitted that Gilbert's weekly pay
as coordinator was equivalent to the hourly rate for gen-
eral foreman set forth in the collective-bargaining agree-
ment between the AGC and Local 15, multiplied by 40
hours, and further, that this rate would have increased in
accordance with the contractual increases received by
general foremen during the backpay period as claimed in
the specification. Gilbert testified without contradiction
that he was paid for 40 hours each week and was not
paid for overtime worked. As earlier noted, the parties
stipulated that Gilbert's compensation included contribu-
tions made on his behalf to the contractual fringe benefit
funds at the rates set forth in the collective-bargaining
agreement.
In addition to the wages Gilbert received, Neidig testi-
fied that he included as compensation due Gilbert
weekly expense money which he received on a regular
basis without any requirement to account for expenses
incurred. Gilbert testified that he received a separate
check for $125 every Friday. When he started the job as
coordinator in 1979, he was informed he would receive
this amount for expenses and did not have to file any re-
ceipts to receive it. Neither was he required to return
any portion of the $125 in excess of his actual weekly ex-
penses . When his expenses exceeded $125, he submitted a
request in writing for the difference and it was invariably
paid.
Gilbert later acknowledged during cross- examination
that approximately a year before his termination, the
JAC had purchased a pickup truck and that thereafter in-
stead of receiving $125 expense money, he was reim-
bursed for gas and related miscellaneous expenditures
based upon his submission of receipts for such purchases.
Such expenditures ran about $75 to $80 per week. As
earlier noted, the truck was sold following an audit of its
use conducted by the Fund. Following the sale of the
truck, for the period beginning June 21, 1985, and con-
tinuing thereafter to date, expenses for the coordinator
have reverted to the $125-a-week figure without the ne-
cessity of submitting receipts.
From August 4, 1984, to June 21, 1985, Thomas Milne,
Gilbert's successor as coordinator, received a total of
IRON WORKERS LOCAL 15
$1900 in expense money which was generally described
by JAC invoices routinely paid by Fund checks to cover
monthly expenses of operations, as "gas and miscellane-
ous expenses." Those invoices and canceled checks show
that Milne received amounts per month in the period be-
tween September 1984 and April 1985, varying between
$200 and $600. On only one occasion was reference
made to gas receipts which the JAC had already paid in
cash, presumably as reimbursement to Milne. In all other
instances , there is only an invoice reference and a can-
celed check payable to Milne for, the expense amount
claimed.
Based on the foregoing evidence, and absent any sub-
mission by the JAC showing that Milne's expense reim-
bursement was conditioned on submission of paid re-
ceipts, I'will include $125-per-week expense moneys as
backpay due Gilbert, except for the period August 4,
1984, to June 21, 1985, when I shall provide Gilbert with
the amount of expense moneys Milne received while oc-
cupying the position of coordinator.
Gilbert testified that he remarried on February 4, 1988,
in Key West, Florida, and for a period of 3 weeks there-
after was in Florida on his honeymoon. Since Gilbert
was out of the jurisdiction and unavailable for either
ironworkers employment, any other interim employment,
or to accept an offer of reinstatement to his former job
as coordinator for this period of time, I shall exclude this
period in computing Gilbert's backpay award.
B. Gilbert's Unreimbursed Medical Expenses
In a second amendment to the specification offered
and received at the opening of hearing, General Counsel
claimed certain additional amounts of backpay based on
medical -expenses Gilbert incurred during the backpay
period which would have been covered by the Locals 15
and 424 extended ' benefit plan. The amount totaled
$1915, extending over quarters in 1987 and 1988. The fig-
ures wee calculated by Neidig from records submitted by
Gilbert. The records submitted in evidence show ex-
penses incurred by Gilbert for prescriptions and doctor
visits for himself and members of his family during the
period between August 1, 1987, and August 1, 1988. The
parties stipulated that during this period Gilbert was not
covered under the extended benefit plan. During the
period, apparently, the JAC had not made contributions
to the Fund on his behalf.
C. Evidence as to Gilbert's Interim Earnings
1. Worker's compensation payments
Gilbert suffered a work-related injury in February
1985 while working for Standard Structural Steel during
a period of interim employment. He testified he fell on
rocks while working as general foreman supervising a
crew of ironworkers, rebuilding catwalks underneath a
bridge. Gilbert had' two operations on his knee which
had been injured, the first in January 1986 and the
second in May 1987. Gilbert received disability payments
from Liberty Mutual Insurance Company, the workers'
compensation carrier for Standard Structural, to com-
pensate him for the injury, for part of the backpay
period. Compliance Officer Neidig testified that, after
455
consultation with representatives of Liberty Mutual, he
made deductions, as interim earnings, from Gilbert's
gross backpay, of only payments which represented com-
pensation for lost wages.
According to Gene Johnkoski, a senior adjustor for
Liberty Mutual, Gilbert received three kinds of pay-
ments recognized under the Connecticut workers' com-
pensation statute. They were temporary partial, tempo-
rary total disability, and specific payments. Temporary
partial and temporary total disability payments both rep-
resent compensation for wages lost as a result of a find-
ing by the employee's doctor which is accepted by the
carrier that the employee is incapable of returning to his
regular duties. On the other hand, the specific award is
an amount determined by state statute to compensate for
loss of function of a certain limb.
The records in evidence show that Gilbert first re-
ceived a workers' compensation payment on May 29,
1985, retroactive to March 30, 1985. Payments continued
on a weekly basis until August 14, 1985, when they
ceased based on the carrier's understanding that an inter-
vening nonwork-related injury Gilbert had sustained at a
department store in the spring of 1985 had totally dis-
abled him. Following a hearing before the workers' com-
pensation commissioner, Gilbert's compensation benefits
were restored and on January 29, 1986, he received tem-
porary total disability payments retroactive to August 22,
1985. These payments continued on a weekly basis until
Gilbert was released for work by his doctor on April 4,
1986. Gilbert did return to work on that date as a jour-
neyman ironworker for White Oak Construction.
All the disability payments Gilbert received between
May 1985 and April 1986 were deducted from his gross
backpay as interim earnings as set forth in the specifica-
tion.
As a result of his second knee operation performed in
May 1987, which was casually related by his compensa-
tion doctor to the 1985 injury, the carrier resumed total
disability payments to Gilbert from May 8, 1987, until
January 7, 1988. The specification also deducts these
payments as interim earnings from Gilbert 's gross back-
pay.
On January 8 , 1988, as a result of his attending sur-
geon and physician having assigned a permanency rating
of 10-percent loss of function in his knee, having con-
cluded he had reached the point of maximum physical
improvement, the carrier commenced payment of specif-
ic amounts to Gilbert. Using a statutory formula, John-
koski determined that Gilbert was entitled to 23.8 weeks
of specific payments. These payments, unlike disability
payments, do not include cost-of-living adjustments or
dependent benefits. These payments were not deducted
from Gilbert's gross backpay because they did not repre-
sent payment to compensate for lost wages.
When Gilbert began receiving specific amounts, he
was also referred to vacation rehabilitation to assist him
in finding alternate employment because of 'his doctor's
conclusion that Gilbert was not capable of returning to
work as an ironworker. Even from the time of the first
operation on his knee in January 1986, Gilbert had
learned from his doctor that he would not be able to per-
456 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
form such normal physical functions required of an iron-
worker as climbing stairs and ladders and heavy lifting.
These considerations led Gilbert to reject certain refer-
rals for interim employment as an ironworker made by
Local 115. As Gilbert explained, he was never totally
disabled at anytime in the 4-year period between termi-
nation in 1984 and reinstatement in 1988 . He was ready
to go back to work at certain phases of the trade, which
he was capable of doing even with the bad knee, includ-
ing as a foreman or general foreman, or steward and cer-
tainly as apprentice coordinator. But he was not called
by the Union to any of the latter work, except on one
occasion when he was referred as general foreman and
he took the job.
Johnkoski testified that Gilbert complied with the job
search for the most part and finally got a job with a
Midas Muffler shop (formally titled Baco Corp. in the
specification) on March 2, 1988.
The specific payments continued until May 10, 1988, 8
days after his reinstatement, when Gilbert received a
final payment of $28,000 in full and final settlement of all
claims arising out of his injury. According to Johnkoski,
this figure was a compromise arrived at after negotia-
tions with Gilbert's attorney. A substantial portion of
that figure, $24,412, represented Gilbert's diminished
earning capacity based on the application of a formula
taking into account Gilbert's normal earnings as an iron-
worker at the time of his injury ($900 weekly) and his
earnings while employed by Midas Muffler ($200
weekly). Johnkowski later explained that this figure of
$24,412 represented the carrier's calculation of its possi-
ble financial exposure to compensate Gilbert for his
future diminished earning capacity over the following
year. The remaining portion of the $28,000 consisted of
the remaining 8 weeks of Gilbert's specific award that he
hadn't been paid at the time of the settlement. Thus, it is
evident that none of the sums included in this compro-
mise settlement represented payments to Gilbert for lost
earnings for any period covered by the amended back-
pay specification. General Counsel appropriately ex-
cluded this final payment from its calculations of back-
pay due Gilbert.
Various Respondents have argued that Gilbert's with-
holding of information regarding his receipt of workers'
compensation moneys constitutes a wilful concealment of
interim earnings which should serve to disqualify Gilbert
from receiving any backpay award for the quarters in
which he received compensation representing lost wages.
Gilbert failed to inform the Regional Office about his
receipt of workers' compensation payments until ques-
tioned by Compliance Officer Neidig shortly before the
hearing following Neidig's being informed of the pay-
ments by JAC and Local 15 Attorney Rosenberg. Gil-
bert credibly testified that he was unaware that these
payments were deductible as interim earnings. As soon as
he was, questioned by Neidig, he provided all informa-
tion in his possession relating to his injury. This informa-
tion formed the, basis for General Counsel's notice of
intent to amend the backpay specification dated Novem-
ber 10, 1988, which was received in evidence as an
amendment to the specification at the opening of hear-
ing. Until Neidig was made aware of the payments, he
had no reason to believe that an injury had been sus-
tained and therefore no reason to question Gilbert. The
evidence is therefore lacking that Gilbert intentionally
withheld information concerning interim employment
before the hearing and when questioned about earnings
during the hearing itself. Thus, the rationale of the Board
underlying American Navigation Co., 268 NLRB 426
(1983), disqualifying a discriminatee for willful conceal-
ment of interim employment in order to discourage
claimants from abusing the Board's processes for their
personal gain, is inapplicable to the present situation in
which Gilbert's lack of disclosure was inadvertent and
soon corrected prior to hearing.
2. Gilbert's effort to obtain interim employment
Gilbert's position as apprentice coordinator required
him to administer, on a day-to-day basis, the program of
training of apprentices. He oversaw the training facilities
and arranged for the materials and tools used in their in-
struction. He worked in office and classroom but also
visited the jobsites periodically to monitor their progress
and to evaluate the apprentices. While at the jobsite, Gil-
bert was not expected to nor did he work with the tools
of the trade.
Prior to his becoming coordinator, Gilbert had worked
for 8 to 10 years as general foreman at construction sites
performing very little physical labor.
Only the general foreman, foreman, and at some jobs,
depending on the contractor, steward positions, could be
considered comparable to that of coordinator. None re-
quired extensive work with the ironworker tools and
each were paid for 40 hours' work weekly regardless of
the actual number of hours worked. However, during
the 4-year period between his termination and reinstate-
ment as coordinator, Gilbert was referred by the Union
only once to a comparable job, as general foreman.
Contrary to the assertion at page 11 of the Local 15
brief, the Union operated an exclusive hiring hall, requir-
ing contracting employers to seek ironworkers on refer-
ral from it. The "Territory" clause of the 1983 to 1985
collective-bargaining agreement requires in subparagraph
(b) that "all requests by employers for referrals of appli-
cants for employment shall be made to the Referral
Office of Local 15." Section 3(b) of the recognition
clause refers to the parties' agreement to a referral plan
attached and made a part of the agreement. That plan is
set forth later in the agreement in a separate clause
which, in paragraph (1), gives the Employer the right to
employ directly a minimum number of key employees
who may consist of a superintendent, general foreman,
and foreman, as well as 50 percent of the employees re-
quired on jobs located inside, or 40 percent of such em-
ployees on jobs located outside, the locality in which the
employer maintains his principal place of business pro-
vided in both cases they are regular employees employed
50 percent of the time during the prior year. Paragraph
(2) provides that "All other employees required by the
Employer shall be furnished and referred to the Employ-
er by the Union." Paragraph (9) of the referral clause
provides that apprentices shall be hired and transferred
in accordance with the apprenticeship provisions of the
IRON WORKERS LOCAL 15
agreement between the Employer and the Union. While
the standards the JAC is obliged to follow make the
committee responsible to place all apprentices with em-
ployers and, by agreement with the apprentices, to trans-
fer them from one employer to another, as noted earlier,
supra, starting in early 1984, Local 15 exercised the ex-
clusive right to refer all apprentices under the collective-
bargaining agreement. There is no evidence that these ar-
ticles did not continue in effect between 1985 and 1988.
In accordance with these articles, Gilbert did obtain
interim employment directly with one employer as a
general foreman and, apparently, contrary to their terms,
Gilbert also obtained at least one other job, as a journey-
man, directly from an employer. On all other occasions
in which he obtained journeyman ironworker jobs, Gil-
bert, who held himself out as available for work in the
trade as a journeyman albeit with certain limitations on
the kinds of work he could perform due to his job-relat-
ed injury, registered with, sought work, and was referred
to jobs through the Union's referral system.
In practice, the Union followed a procedure of requir-
ing out of work members to call the business agent to be
placed on an out-of-work register. As employers called
the hall daily to fill jobs, the business agent went down
the list and called members in order of this registration,
bypassing names of those who the business agent knew
would not accept the referral because of distance to the
job, or their noninterest or lack of qualification in the
type of job available, whether structural, ornamental,
rod, or welding, for example, or other limitation related
to their age or health. Where jobs had to be filled quick-
ly and members could not be reached by phone, the busi-
ness agent would seek out nonmembers, in order of reg-
istration, gathered daily in a separate room registered for
referral on a separate, subordinate list. Employers could
also ask for individuals by name and these requests
would also be honored. Members did not lose their place
on the list for refusing a job. Some of these practices de-
viated from the procedure set forth in the collective-bar-
gaining agreement.
The Friday following his termination as coordinator in
August 1984, Gilbert registered with the Union for refer-
ral and was eventually referred out as a journeyman
ironworker to Thames Valley Steel on the Charter Oak
Bridge in East Hartford in ' September 1984. After a
month, he was called by Standard Structural Steel, an
employer for whom he had worked in the past, for a
General Foreman's position on another bridge job on the
Rousatonic River. It was while on this job in February
that Gilbert suffered his knee injury, yet he continued to
work as general foreman until laid off on March 30,
1985. Gilbert again called Local 15 and was placed on
the referral list.
Gilbert was apparently not offered another job by
Local 15 until later in the year. Even before his layoff,
Gilbert sought medical aid from orthopedic surgeons for
his injury. After seeing a Dr. William Jones a number of
times between February and April, he was referred to
Dr. Eric Thompson who filed medical reports in support
of Gilbert's workers' compensation claim. Subsequently,
Gilbert started receiving disability payments retroactive
to the end of March 1985 based on a finding that he was
457
unable to perform his regular employment as a journey-
man ironworker, which disability continued until April 4,
1986, when Dr. Thompson released him to return to
work as an ironworker. In spite of this condition, Gilbert
sought work through the union hall.
He recalled being offered a series of jobs with C.N.
Flagg at the nuclear power plant in Haddam Neck, Con-
necticut, which he refused because they were "hot"
jobs-involving work near radiation. While Union Busi-
ness Agent Connor disputed Gilbert's recollection, sup-
ported by notes, that he was first offered this job in De-
cember 1985, and that subsequent C.N. Flagg offers were
"hot," Connor, testifying to a July offer only to this site,
confirmed Gilbert's rejection of the initial offer because
of radiation as well as his declination of other jobs for
the same reason and, further, that members from time to
time declined such jobs on health grounds.
After Gilbert was released for work as an ironworker
by Dr. Thompson on April 4, 1986, Gilbert immediately
obtained a job, on his own, as a journeyman ironworker
for White Oak Construction on the Putnam bridge in
Wethersfield, Connecticut. According to Gilbert, he had
previously contacted Business Agent Coyne about refer-
ral to this job, but was informed there was no hiring
being done at the time . Gilbert remained on this job to
its completion. He was later called by the Union to an-
other job with White Oak to a bridge on Interstate 395
near his house after initially asking unsuccessful requests
to Business Agent Conner for the referral. Gilbert had
interim earnings of over $11,000 from White Oak in the
second and third quarters of 1986.
Gilbert testified he left the second White Oak job
before its completion because he could not perform cer-
tain welding work the foreman had asked him to do un-
derneath the bridge. In an affidavit, Gilbert provided the
Board in support of a charge of discrimination on refer-
ral he had filed against the Union in Case 39-CB-926
and later withdrew. Gilbert stated that he had quit the
job 1 or 2 days before his anticipated layoff in order to
have a long weekend. Gilbert later explained that he
asked for the layoff rather than giving the foreman
grounds to fire him for refusing to do the welding. Gil-
bert also noted without contradiction that employees
often volunteered for layoff when jobs were winding
down in order to get ' a head start on being listed on the
Union's out-of-work register.
Gilbert was again referred and performed other jobs as
an ironworker until disabled again on his second orthros-
copic surgery on his knee in May 1987. Gilbert acknowl-
edged declining referral to a number of jobs to which
Local 15 had referred him. Among them were "hot"
jobs which involved proximity to radiation and rod jobs
which required bending and lifting. Gilbert, who normal-
ly declined such jobs, believed they were also harmful to
the condition of his knee . Business Agent Conner called
Gilbert for such jobs in spite of his knowledge of Gil-
bert's dislike for them. Conner also acknowledged it was
not uncommon for members to decline offers of them.
One job offer from the Union which Gilbert declined in
the period from August 18, 1986, to February 3, 1987,
was to a job for an employer in Bristol, Connecticut. He
458 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
explained that he had learned from his brother-in-law,
Ruel Ellis, also an ironworker, that a group of members
associated with Secretary-Treasurer Foley's faction
within the Union were employed there. Gilbert ex-
pressed fear that he might be harassed or physically in-
jured on the job because of his earlier charge against the
Union.
Among the jobs Gilbert held between April 1986 and
May 1987 was one with Combustion Engineering, to
which he was only referred in March 1987 after filing in
February 1987, and then withdrawing, the unfair labor
practice charge previously described, naming Combus-
tion Engineering as the employer. The employer was the
contractor on a trash to energy plant being built in Hart-
ford. Gilbert had been unsuccessful in obtaining referral
from the Union's business agents to that employer earli-
er. Gilbert testified he voluntarily left the job after some
weeks there because of safety concerns. Those concerns
were shared by other employees and corroborated on the
record by Business Agent Coyne and General Foreman
Daniel M. O'Shea. They also became the subject of an
OSHA inspection.
As to the charge Gilbert had filed, that became the
subject of a discussion before the Union's executive
board before which Gilbert was asked to appear on May
7, 1987, and where he was reprimanded for not having
raised directly with the Union his concerns and com-
plaints regarding the Union's alleged refusal to refer him.
As earlier noted, Gilbert resumed total disability status
in May 1987 after his second surgery and remained dis-
abled until released by his doctor to return to work with
a 10-percent disability on January 7, 1988, With the dis-
ability, Gilbert could not perform normal ironworker
work requiring heavy lifting, squatting, and climbing
and, as earlier noted, he was referred to vocational reha-
bilitation. While Gilbert's search, for alternate employ-
ment was hampered by his limited education and experi-
ence outside construction work, he did seek other work
he could perform with his knee problem, such as dis-
patching and driving. Such jobs, however, paid substan-
tially less than journeymen ironworkers.
One job Gilbert obtained after January 7, 1988, was
with an air-conditioning and heating company, Continen-
tal Air. However, his first assignment involved climbing
a 40-foot ladder at the jobsite. Gilbert declined to per-
form the work and left the company's employ before
performing any services. Subsequently, 'Gilbert obtained
a job with Baco Corporation, delivering Midas muffler
parts to retail stores, as needed. The nature of the job did
not entail a fixed work schedule, so that Gilbert's pay,
well below that of a journeyman ironworker to start
with, was less than that for a full week's work.
After he stopped receiving total disability payments,
Gilbert received 'only one referral from the Union. Gil-
bert declined the job because it was to a rod job for
Fusco Corp.
All of Gilbert's interim earnings reflect ironworker
jobs, except for his limited pay from Baco Corporation.
All, except two, were on referral from the union hiring
hall. One referral, according to Gilbert's final recollec-
tion, which was hazy at best, was to a foreman's job for
Carlson Industries in November 1986. The Union had
initially referred a minority member and executive board
member, Lamar Burt, for the foreman's job, even though
his name appeared after Gilbert's on the out-of-work list.
After Burt declined the foreman's position the first day
on the job, Gilbert was referred, accepted the position,
and remained on the job to its completion weeks later.4
During the period prior to his reinstatement, Gilbert
testified that his failure to obtain steady and substantially
equivalent interim employment led to his house being
foreclosed, suits by creditors, and a claim by his ex-wife
for nonpayment of child support.
D. Testimony by Respondent Local 15 Witnesses
Alleging Willful Loss of Earnings
Local 15 Business Agents Michael Coyne and Robert
Connor testified to offers of over 40 jobs to Gilbert
which they claim he declined. In doing so they basically
testified from handwritten notes they had made in prepa-
ration for the hearing after reviewing the Union's refer-
ral register listing jobs available and its signup sheets on
which members are listed for referral. Testimony re-
vealed that under normal practice the Union does not
maintain a record of member rejections of particular re-
ferrals. In the case of Gilbert, certain penciled handwrit-
ten notations did appear in its records, including "no" or
"no answer" followed by a date intended to signify Gil-
bert's declination of a referral or the business agent's in-
ability to reach Gilbert by phone. Such notations in only
certain limited instances as well as the listing of Gilbert's
name on a particular date on one register and the listing
of available jobs on the same date on another register, do
not constitute conclusive documentary evidence that a
particular job was offered to Gilbert on a specific date
which he declined. The notations themselves were not
offered in evidence. They would not have been receiva-
ble as a business record under Rule 803(b) of the Federal
Rules of Evidence since they lacked, in my judgment,
sufficient trustworthiness required by the rule. See Allied
Lettercraft, 280 NLRB 979 fn. 7 (1986).
The agents' testimony was based exclusively on these
handwritten summaries . Coyne acknowledged he had no
present recollection regarding any particular referral of
Gilbert or any other member to a job but relied strictly
on memory. Coyne noted that he sometimes spoke to as
many as 50 individuals a day regarding referrals. As
many as 450 members, 200 retirees, and an individual
number of additional out-of-towners and nonmembers
have access to the union referral service. Yet, according
to Coyne, someone like Gilbert stood out in his mind be-
cause of the unfair labor practice charges he had filed
against the JAC and Local 15.
Later, on cross-examination, Coyne now testified that
the first time he started to make his shorthand notations
on the out-of-work lists was when Gilbert first filed a
charge with the Board claiming discriminatory nonrefer-
ral. The charge was filed on February 3, 1987. An earlier
4 Gilbert had initially testified that he had been hired as a journeyman
and then took over the foreman 's job when Burt declined the job and
recommended hum for it . Later, on cross-examination, Gilbert recalled
that the Union probably referred hun out as foreman the day before, but
that he was nonetheless introduced to the employer by Burt.
IRON WORKERS LOCAL 15
charge Gilbert filed in December 1985 accused Local 15
of disseminating to members a letter falsely accusing him
of dishonesty in retaliation for having engaged in pro-
tected concerted activity. Coyne did not go back to ear-
lier referral records once he started making the nota-
tions. Yet, notations do appear next to Gilbert' s name on
referral records for as early as 1985.
Even the short hand-penciled "no" next to Gilbert's
name, when they do appear, fail to show which jobs Gil-
bert declined. The referral records themselves are no
help in pinpointing such information.
Business Agent Connor acknowledged referring Gil-
bert to both "hot" and rod jobs in spite of being aware
of Gilbert's inclinations to decline them, a not uncom-
mon attitude among some members. Connor further
agreed that while Gilbert was selective in the type of
work he would do, it was his choice to be selective as it
was any member's.
The testimony of both Coyne and Connor regarding
particular offers of jobs made to Gilbert during the back-
pay period show the degree to which the accuracy of
their recollections and attempts to pinpoint the particular
jobs Gilbert refused, are suspect . Thus, on a number of
jobs for which they claimed to have called Gilbert, the
employer had already made specific requests for the em-
ployees who were referred. As to certain such specific
instances, Coyne and Connor denied that they had made
the markings appearing opposite members' names show-
ing their selection by employers on the Union' s original
out-of-work lists, claiming, without any basis, that the
records had been tampered wiilh while in General Coun-
sel's possession.
In other instances, claimed to show Gilbert's rejection
of job referrals, Coyne and Connor admitted that Gilbert
bad been the only member on the Union's out-of-work
list who had been called for the job in issue, a job which
had then been given to nonmembers in the dayroom at
the same time that other out-of-work members, in addi-
tion to Gilbert, had not been called for the job. On cer-
tain other occasions, when Gilbert allegedly declined the
job offer, a member whose name appeared much later on
the out-of-work list was purportedly referred ahead of
other members whose names were listed after Gilbert's
and before the referents'.
Connor readily acknowledged that the listing of avail-
able jobs on a number of occasions was extensive, yet
among as many as seven or eight employers who had
called with jobs he was able to recall with precision the
particular employer for whom Gilbert declined employ-
ment on a particular date. Connor also acknowledged
some mistakes in dates of calls to Gilbert or messages left
for him for particular jobs. On one job, for the Dick
Corporation, after Gilbert allegedly declined a referral,
100 men were later referred yet Gilbert admittedly was
never contacted again , Connor's explanation, without
any documentary support, was that "its possible Bruce
didn't want to go to work there." (Tr. 971.) Connor had
also submitted on direct examination a list of the names
of these members who worked when Gilbert declined a
February 10, 1988 referral. Cross-examination disclosed
that Connor was using a list of members who accepted a
459
night job, the less desirable job to which Gilbert had
been referred and which he had declined.
As to one job both Coyne and Connor-claimed Gilbert
declined on August 13 or 14, 1986, with Hamco Erectors
at Bradley Field, the man they referred, a Pat Blackburn,
was listed ahead of Gilbert on the out-of-work list. Con-
nor's explanation, that "there is a possibility" (Tr. 954)
he called Blackburn first and received no answer before
moving to later names on the- list, was not supported by
any documentation. Neither was there any record show-
ing which job Gilbert allegedly declined.
In one instance, Coyne's testimony as to a referral Gil-
bert allegedly declined was contradicted by a pretrial
writing which Local 15's attorney had submitted to the
Region. Coyne testified that on January 2, 1987, he re-
ferred Gilbert to a job with Westmount Engineering at
the resource recovery plant in Hartford. Coyne identified
the six employees who he referred to the job. Coyne
agreed that two of them had been requested by the em-
ployer. The other four were identified in a statement of
position Attorney Rosenberg forwarded to the Region as
having signed the out-of-work list 3 days before Gilbert.
This letter was submitted in response to Gilbert's ]Febru-
ary 3, 1987 unfair labor practice charge filed against the
Union in Case 39-CB-926, companion to charge in Case
39-CA-2434. If Rosenberg's facts are accurate, there
would have been no reason to call Gilbert since all job
openings had been properly filled before his name was
reached on the list. This inconsistency is glaring. Gil-
bert's charge had protested his failure to have been re-
ferred to this job. Before filing his charge, Gilbert had
questioned Foley at the union hall about the Union's fail-
ure to refer him and was told the men referred had been
requested.
None of the jobs which Coyle and Connor offered to
Gilbert during the backpay period with the exception of
the foreman's position at Carlson Industries5 had a guar-
anteed 40-hour workweek or included the payment of
expense money. All of them except for the Carlson job
involved heavy lifting and climbing among the regular
ironworker construction site duties.
Gilbert also adequately explained one instance when
Coyne claimed he accepted a job but left the worksite
without performing any work. On this occasion, he ac-
cepted a referral to a job for McGrath and Davis, on
October 30, 1986, but when he arrived at the jobsite he
could not, in spite of diligent efforts, locate the foreman
in charge, and finally left after spending considerable
time at a gate conferring with a guard and paging the
foreman over a loudspeaker.
S Connors claimed that he called Gilbert's home and left a message
with a lady on October 26, 1987, to have Gilbert call him about a job.
She said he would be back in an hour but he never called. The job in
question was for C N. Flagg at the Hartford Hospital On cross-examina-
tion for the first time, Connor testified they were looking for a foreman.
Connor was somewhat confused about the date of this offer The original
records from which he made his summary refer to an employer request
made weeks later, on November 19, 1987. Further, the original records
do not reflect that Connor made a phone call to Gilbert on the October
26 date. There is no evidence that Gilbert ever received notice of the
offer or that it was for a foreman position.
460 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
During certain periods of time, between May 1985 and
April 4, 1986, and from May 8, 1987, to May 2, 1988,
when Gilbert was receiving compensation for his work-
related injury, Gilbert was not capable of performing the
ironworker jobs to which the Union claims to have re-
ferred him. Thus, even assuming the credibility of the
testimony of the two Local 15 business agents relating to
Gilbert's declinations of offers during those periods, Gil-
bert's physical limitations precluded his full assumption
of journeyman duties called for in these jobs. Even after
his release by his doctor in January 1988 to resume em-
ployment with 10-percent loss of use of his knee, having
reached the point of maximum recovery, Gilbert's physi-
cal limitations restricted him to jobs which did not re-
quire climbing, bending, or heavy lifting. All through
these periods, Gilbert was certainly capable of perform-
ing the duties of apprentice coordinator.
During that period between April 4, 1986, and May 8,
1987, when Gilbert was released by his doctor to return
to regular employment as an ironworker, the evidence
shows he did accept a series of offers of referrals to jobs
from Local 15. Among the employers were White Oak
Corp.,6 General Elevator Co., Inc., Riverside Corpora-
tion, Carlson Industries, Globe Steel Erectors, Architec-
tural Steel Const. Co., Inc., Southern N. E. Steel Erec-
tors, and Combustion Engineering, Inc.
That the Local 15 referral agents were made aware of
Gilbert's disability and later changes in his physical con-
dition, permitting heavy physical activity, is also estab-
lished by the record. Business Agent Coyne acknowl-
edged that sometime in 1985, Gilbert informed him that
he was having his knee looked at, but that he still
wanted Coyne to continue to call him. A notation on the
September 30, 1985 out-of-work list states under Gil-
bert's name , "Sick Pay, Weekly Disability." At some
point in time, Gilbert asked Coyne to place his name on
the "Will Call" list. Normally, this meant that the
member was not presently available but would advise the
hall when he was again available for general referrals.
Coyle, however, was aware that Gilbert, even with his
disability, still wanted to be called if a good job came in,
one in which Gilbert had previously expressed interest.
According to Coyle, Gilbert during this period turned
down a long-term job that would have lasted a year,
with overtime, in favor of a 1-day stand, but it was Gil-
bert's option to take either one.
The Union's out-of-work list also shows that before al-
legedly offering Gilbert the White Oak referral on
March 31, 1986, Gilbert had informed the hall that he
was "ready for work." A notation, later erased, to this
effect, was still visible on the Union's register. Gilbert's
call to the Union was made at the time his doctor had
released him to return to his regular employment.
6 The job with White Oak Corp was one Gilbert actually obtained on
his own, with the Union's knowledge on April 4, 1986, after unsuccess-
fully requesting union referral, supra . Connor's testimony that he called
Gilbert on March 31, 1986 , only for this job when requests for ironwork-
ers had been received from seven other employers for the same date, two
of the employers having made multiple requests, and when Gilbert only
attained the job with White Oak when he sought it on his own a few
days later is not credible.
During its rebuttal presentation, the Union produced
records of 25 telephone calls it had made to Gilbert's
home telephone between August 21, 1986, and February
18, 1988 , to rebut Gilbert's testimony and notes showing
the more limited number of calls he had received offer-
ing referrals to ironworker jobs. Neither Coyne nor
Connor testified to making calls to Gilbert on 15 of the
dates listed . As to the remaining 10 calls, only 6 were
made during the period between April 4, 1986, and May
8, 1987, when Gilbert was released to perform work as
an ironworker. At least one of these six calls resulted in
Gilbert's acceptance of a job referral to Carlson Indus-
tries on November 3, 1986. A second call, on February
3, 1987, probably resulted in Gilbert's referral to the
Hotz Company (also known as Architectural Steel Con-
struction Co.). As to four of the calls made on August
25, 1986, October 13, 1986, January 2, 1987, and March
9, 1987, the telephone records show no followup calls to
other members immediately following Gilbert' s alleged
declination. While a toll-free WATS line was also avail-
able to the Union for long-distance calls, it is striking
that only Gilbert's telephone number is listed on the
normal long-distance listings for these dates on which
Local 15 was seeking to fill openings for ironworkers.
These telephone records are not corrobative of Respond-
ent Local 15's defense and not convincing that Gilbert
declined sufficient Local 15 job referrals to jobs which
he was physically capable of accepting so as to constitute
a willful refusal to seek interim employment disqualifying
him from receiving backpay for the period claimed in
the specification.
Apart from their suspect testimony regarding Gilbert's
rejection of referrals, Local 15 Business Agents Coyne
and Connor attributed remarks to Gilbert intended to
show he felt no obligation to mitigate his backpay
award. Coyne testified that after Gilbert informed him he
had gone on the local disability because of his knee and
declined a later offer, when Coyne then asked him about
his availability for future referrals, Gilbert told him "the
meter 's running on the JAC so I'll be getting my job
back anyway; it doesn't make any difference if I work or
not." Gilbert repeated these remarks in substance on an-
other occasion. Coyne said he still attempted to refer
Gilbert, telling him at one point "if you are going to
pursue things through the Courts, why not just work and
then fight it out through the system and go to work like
the rest of the ironworkers." Coyne later added during
one of these talks after advising Gilbert to go to work
and fight the matter through the court system, Gilbert
said that the judgment rendered by the NLRB was that
the JAC had to make him whole, and provide him with
an equivalent job, which would have been a general
foreman's job. Coyne could not fix the date of these
comments and, in spite of Gilbert standing out in his
mind because of his litigation and claims of nonreferral
by the Local, he made no notes of these exchanges.,,
Connor testified that in August 1987, after offering
Gilbert a job, Gilbert said he wasn't going to take, a job
because "I'll be getting my money, from the NLRB at
the end of August, so what's the sense of working I'm
getting paid everyday anyway."
IRON WORKERS LOCAL 15
Gilbert denied these remarks attributed to him and,
further, denied that he ever had any individual conversa-
tions with either Coyne or Connor about the problem in-
volving his termination and efforts to get his job back
through the Board and courts.
Gilbert placed both Coyne and Connor at the Local
15 executive committee meetings at which he com-
plained about his treatment and when he was summoned
for having pursued cases against the Union before the
Board. It is also evident that the hostility which was ex-
hibited during the hearing between Local 15 and JAC
Attorney Rosenberg and Gilbert is reflected to a certain
extent by the degree to which both Coyne and Connor
sought to portray Gilbert as unwilling to seek interim
employment. In addition, at least since 1986 and at the
time of the hearing, Coyne was serving as one of the
union ,members of the JAC, whose counsel was seeking
payment from the Fund of legal fees incurred by the
JAC in connection with this litigation. On one occasion,
in late 1986 at the Carlson Industries jobsite, Coyne com-
plained to Gilbert that he was trying his case against the
JAC in the newspapers and Gilbert said he would short-
ly include Coyne as an individual defendant. There is
little question in my mind that both business agents, in
spite of their denials of harboring resentment against
him, hold Gilbert responsible for the current legal pre-
dicament facing both the JAC and Local. Gilbert's ef-
forts to obtain employment in spite of his job-related
injury reflects an understanding of his obligations at
complete variance with the statements attributed to him.
Gilbert's precarious financial situation also is in conflict
with an alleged attitude that he could hold out without
earnings until his case was resolved. Gilbert's acceptance
of numerous journeyman positions also shows that re-
gardless of his thoughts on the matter, which are consist-
ent with the position of the General Counsel in this pro-
ceeding, he did not wait for offers of general foreman
positions or only approach companies for such jobs. I do
not credit the remarks Coyne and Connor attributed to
Gilbert.
Local 15 Attorney Rosenberg's effort to impeach Gil-
bert by means of statements contained in his affidavit
were unsuccessful. That affidavit was ordered produced
for use by Local 15 during its cross-examination of Gil-
bert even though it was not taken by the Board in con-
nection with this supplemental proceeding. It was sub-
mitted by Gilbert on his February 3, 1987 unfair labor
practice charges and since it relates to union referrals
and union practices on referral, which were subject of
his direct examination in this proceeding, due process
and the Board's rules required its production.
After Gilbert had an opportunity to review certain
matters contained in the affidavit which he had not seen
for over a year and did not anticipate becoming part of
this proceeding, Gilbert admitted that his affidavit did
not contain the second reason for his leaving the White
Oak Construction job in 1986 to which he had earlier
testified nor did his testimony conform to the paragraph
in his affidavit in which he stated that the Union had re-
ferred him to the Carlson Industries job after Lamar
Burt ; declined the foreman's job. (See fn. 4, supra.) Nei-
ther does the affidavit make reference to his earlier testi-
461
mony that Business Agent Foley had told him "pay-
back's a bitch" when he complained to Foley about a
month after his firing in September 1985 at the union hall
about Local 15's refusal to refer him out to jobs. Howev-
er, it was a second conversation with Foley held more
than 2 years later, just before he filed the charge on Feb-
ruary 3, 1987, that was set forth in paragraph 14 of the
affidavit. During this conversation, Gilbert complained
about not being called for work on a Combustion Engi-
neering trash-to-energy jobsite in Hartford to which his
brother-in-law, Ruel Ellis, and other ironworkers had
been referred ahead of him. Gilbert did not attribute to
Foley the phrase omitted from his affidavit during this
latter conversation. Thus, there was no discrepancy be-
tween Gilbert's testimony and the affidavit which both
concerned this second conversation. I find that Gilbert's
failure to include the matters I have alluded to in his affi-
davit do not constitute a serious conflict in testimony nor
are they of sufficient weight so as to discredit the sub-
stantial portion of Gilbert's testimony regarding his effort
to seek work, his conversations, and relations with the
Local 15 officials and the facts and circumstances relat-
ing to the injury he suffered, his operations, and medical
care, which were generally corroborated by his doctors
and documentary evidence.
E. The Facts Relating to Local 15's Claims of
Disqualifying Misconduct by Gilbert
According to Gilbert's recollection, in the summer of
1985, but more likely on about April 22, 1985,7 he sus-
tained an injury to his back resulting from a fall in his
driveway. Gilbert filed for and received disability bene-
fits of $230 a week starting August 9, 1985, from the ex-
tended benefit fund. The payment covered the period
April to September 30, 1985.8 General Counsel deducted
all of these payments as interim earnings in the specifica-
tion. While he was, receiving these payments, Gilbert re-
ceived no payments under his workers' compensation
claim because his benefits had been terminated by the
carrier, Liberty Mutual, as of August 14. It was not until
January 29, 1986, that Gilbert's workers' compensation
claim was restored retroactive to August 22, 1985.
Gilbert recalled calling John Crown, the Fund manag-
er, and receiving and filing the application. No one con-
nected with the Fund or the Union for that matter raised
any questions about his receipt of these benefits. On the
application, Gilbert swore he did not claim his knee
injury as the disabling injury making him eligible for ex-
tended benefits.
Neither was the fund manager called nor Gilbert's ap-
plication produced to counter Gilbert's testimony.
The summary plan description of the extended benefit
fund provides for a payment of a weekly benefit for dis-
ability absences during which the ' member is preventing
from working as an ironworker as, a result of a nonoccu-
pational accidental bodily injury or disease.
7 On that date Gilbert consulted both Drs Jones and Thompson.
S Gilbert also sustained a third injury to his hip due to a fall from a
bench in Bradlee's Department store in March 1985 after he had already
sustained the work-related knee injury in February. He received a check
for $6500 from Bradlee's insurer to compensate hum for the injury
462 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
None of the injuries, to his knee, hip, or back prevent-
ed Gilbert from performing his old job as coordinator.
He could even perform certain phases of work in the
ironworker trade which required no heavy lifting or
bending or extensive climbing.
Dennis Foley, Local 15 agent and officer, as well as
trustee of the training fund and extended benefits fund,
testified that he did not believe it was possible for a
member to collect disability pay at the same time he is
receiving workers' compensation benefits. Yet, he also
testified he was not aware of any provision of the ex-
tended benefit fund that provides that a member is not
eligible to receive a disability payment if he's receiving
workers' compensation. Nothing in the extended benefit
fund's description appears to preclude an otherwise eligi-
ble applicant from receiving benefits at the same time he
is eligible for workers' compensation as a result of a sep-
arate injury. The facts also show Gilbert's ineligibility
for workers' compensation during the period of time he
applied for and received disability payments.
A further claim of misconduct is grounded on evi-
dence of Gilbert's failure to file income tax returns for
1985, 1986, and 1987. None of the evidence subsequently
submitted supports the bare claim made by Local 15 and
JAC Attorney Rosenberg that this failure to file shields
the receipt of income during these years which Gilbert
failed to disclose to the Board. Certain canceled checks
produced by Gilbert's bank show only that Gilbert con-
verted to cash certain funds contained in an account to
which Gilbert had access for the purpose of paying
tradesmen who had performed construction services on a
cottage belonging to his brother. The checks were en-
dorsed by the tradesmen. Gilbert adequately explained
that the source of the funds was money loaned to his
brother by their mother. While Gilbert borrowed some
money from the account for his marriage, 'he later paid
most of it back with the proceeds of the insurance check
compensating him for the fall in the department store.
Analysis and Conclusions
The first issue which must be addressed is whether the
record evidence supports the allegation in the specifica-
tion that the co-Respondents may be held liable for
making whole the discriminatee, Gilbert. I will deal first
with the alleged responsibility of Local 15 and the AGC.
The specification alleges that these parties jointly cre-
ated and control the JAC and are its coprincipals, the
JAC having acted as their agent at the time it terminated
Gilbert's employment.
In determining whether a principal-agency relationship
exists so as to hold the principal responsible for the acts
of the agent, the Board applies the "ordinary law of
agency." Bio-Medical of Puerto Rico, 269 NLRB 827
(1984). As agency is a contractual relationship, it derives
from the consent of the principal and agent. But that
consent may be implied from the conduct of the princi-
pal which shows that he actually intended to confer the
authority of the agent to act in a given manner. Sunset
Line Co., 79 NLRB 1487, 1508 (1948). The effect of Sec-
tion 2(13)9 of the Act is to make a principal responsible
e Sec . 2(13) provides that:
for the act of his agent within the scope of the agent's
general authority even though the principal has not spe-
cifically authorized or even may have specifically forbid-
den the act in question. Id, at 1509. "In other words, it is
enough if the principal empowered the agent to repre-
sent the principal within the general area in which the
agent has acted." Bio-Medical of Puerto Rico, supra at
828. See also Holiday Inn-Glendale, 277 NLRB 1254,
1261 (1985).
In the context of labor cases, the Supreme Court has
also enjoined that in determining whether a principal-
agency relationship has been established, strict applica-
tion of the rules of respondent superior should not be re-
quired. In such a setting, the paramount consideration is
the recognition of "a . . . clear legislative policy to free
the collective bargaining process from all taint of an em-
ployer's compulsion, domination or influence." Machin-
ists Local 35 v. NLRB, 311 U.S. 72, 80 (1940). See also
Jays Foods v. NLRB, 573 F.2d 438 (7th Cir. 1978). Con-
siderations of public policy thus favor a liberal interpre-
tation of the agency principles under the Act.
A starting point for applying these principles of law to
the facts presented on the record must be the collective-
bargaining agreement between Locals 15 and 424 and the
AGC. The 1960 agreement between them established the
JAC to administer an apprenticeship program within the
Locals' jurisdictions. The JAC has continued to exist and
function only by virtue of successive collective agree-
ments . In their 1967 agreement, the parties created a
funding mechanism which shortly became the sole means
of supporting and financing the apprenticeship training
program. Since 1981, the sole parties to the Agreement
and Declaration of Trust of the Fund have been the two
locals and the AGC.
In jointly administering apprenticeship training and
making decisions about the size , scope and nature of the
program, the members of the JAC are performing collec-
tive bargaining duties and, indeed, have been found by
the Board, in a case involving a training ' committee simi-
lar to the instant committee in terms of its creation,
duties, and method of appointment, to be collective-bar-
gaining representatives within the meaning of Section
8(b)(1)(B) of the Act. Asbestos Workers Local 27 (Master
Insulators), 263 NLRB 922, 923 (1982). Just as with re-
spect to the instant JAC, the committee there was com-
posed of three union and three employer association rep-
resentatives, and was established by the parties' collec-
tive-bargaining agreement to operate an apprentice train-
ing program. The Board noted that the provision of the
agreement "essentially delegates to the JAC responsibil-
ity for flushing out the collective-bargaining agreement
by formulating, adopting, and administering an appren-
ticeship program." Id. at 922-923. In reaching this con-
clusion, the Board distinguished the status of trust funds
authorized by Section 302(c)(5) of the, Act which are
not, by virtue of their fiduciary capacity, collective-bar-
gaining representatives within the meaning of the Act.
[I]n determining whether any person is acting as an "agent" of an-
other person so as to make such other person responsible for his acts,
the question of whether the specific acts performed were actually au-
thorized or subsequently ratified shall not be controlling.
IRON WORKERS LOCAL 15
Amax Coal Co., 238 NLRB 1583 (1978), enfd. as modi-
fied 614 F.2d 872 (3d Cir. 1980), modification revd. 453
U.S. 322 (1981).
Those collective-bargaining functions involve replen-
ishing the supply of qualified ironworkers and renewing
the skills of journeymen ironworkers to the end that the
industry employers may continue to perform quality
services in the construction industry. The adequate train-
ing of new apprentices is of vital importance to both the
employer and their bargaining representative as well as
to those other employers who have adopted the collec-
tive agreement with all of its terms, as well as to the
Unions. As noted by the court, in the course of conclud-
ing, inter alia, that a joint apprenticeship committee is an
agent for the employer participants, "the Joint Appren-
ticeship Committee was formed to rid the individual par-
ticipants of the administrative burdens that accompany
the training program while garnering for each participant
the cost advantage of apprentice labor." Export Electric
v. Levine, 554 F.2d 1227 (2d Cir. 1977). The JAC thus
performs a vital service for the parties to the agreement.
Those employees who adopt the Local 15 and 424 and
AGC collective-bargaining agreement without having
authorized the AGC to be its representative and thereby
agree to contribute to the fund which supports the train-
ing program and the JAC which administers it on their
behalf are bound by the results of the Union-AGC nego-
tiation process without having any responsibility or li-
ability for the conduct of the parties in implementing the
program. The independent employers' financial support
of the Fund and their adoption of the contract including
the provision for JAC administration of the apprentice-
ship training program does not give them any role in se-
lecting Fund trustees or JAC members. The collective
agreement and trust documents preclude their participa-
tion in this regard, there is no evidence that they have so
participated, and their financial contributions do not enti-
tle them to such a role so long as there is, as in this case,
equal employer-employee representation. See Denver
Metropolitan Assn. v. Journeymen Plumbers, 586 F.2d
1367, 1373-1375 (D.C. Cir. 1978). The AGC remains
then the sole contracting employer representative re-
sponsible for the creation and implementation of appren-
tice training.
The record bears out the degree to which the appren-
ticeship program furthers, and the parties acknowledge
that the program furthers, their respective institutional
interests.
Aside from the testimony of the witnesses affirming
these concerns, the collective-bargaining agreement itself
contains provisions dealing with apprentice payscales,
apprenticeship terms; and their referral to jobs, in addi-
tion to the provision establishing the Fund and rates of
contribution required to finance the program. The day-
to-day responsibilities for designating, training, employ-
ing, examining, upgrading or disciplining, and certifying
apprentices have all been delegated to the JAC. Thus,
just as with regard to the JAC created by the parties in
Asbestos Workers, supra, the JAC here has been delegated
the responsibility for "flushing but the collective bargain-
ing agreement" in its adoption and administration of the
apprenticeship programs.
463
In delegating employment-related functions so central
to the continued viability of the building construction in-
dustry, the contracting parties must take care that the
functions are then carried out by the deputy or agent in
a nondiscriminatory manner. On a number of occasions,
the Board has held employer associations and individual
employers liable for the discriminatory manner in which
committees jointly established by themselves and their
contracting union carried out the delegated functions. In
so ruling, the Board has held the contracting parties
liable as principals for the exercise of the authority they
jointly created. In Pacific Maritime1Assn., 209 NLRB 519
(1974), the Board affirmed the findings and conclusions
of an administrative law judge who found the Union and
employer association jointly liable for the discriminatory
acts of a union business agent who acted as a referral
agent of a committee they established to oversee the op-
eration of a jointly financed hiring hall. The judge com-
mented that "having created his authority, the joint prin-
cipals must accept the responsibility if it is wrongly
used." Id. at 525.
In Morrison-Knudson Co., 275 F.2d 914 (2d Cir. 1960),
the Court enforced that portion of the Board order
grounded on the Board's conclusion that the employer
had violated the Act by the discriminatory acts of the
union in the operation of an exclusive hiring hall estab-
lished by agreement with the union. In responding to the
employer's defense that it lacked knowledge of the
local's discriminatory practices, the court noted , "But re-
gardless of the extent of their knowledge, we agree with
the Board that an employer may not avoid liability for
violations of the Act by the hiring hall when he has
turned over to it the task of supplying the men to be em-
ployed. The Local acted as agent for the petitioners in
selecting the men to be hired. Its discriminatory acts,
which unlawfully encourage membership in Local 545,
are properly chargeable to the agent's principal as dis-
criminatory acts by it." Id. at 917 [citations omitted].
The function of selecting, training, referring to em-
ployment, supervising, and disciplining apprentices is no
different from the function of referring unit employees
when those functions are evaluated in terms of the
degree to which the party exercising the function acted
without discrimination and whether or not the party ex-
ercising the function has delegated the authority to do so
by others pursuant to contract. In both instances, the
party with'the ultimate contractual responsibility for the
function may be held accountable as a principal for the
manner in which the function is exercised . It therefore
follows that both the Union and AGC as the responsible
contracting parties may be held accountable for the
-manner in which the JAC it created and to which it del-
egated apprentice training functions deals with the coor-
dinator it employed to oversee its administration. See
Plumbers Local 375, 227 NLRB 1191 (1977); and Sandle-
ben Plumbing Co., 220 NLRB 850 (1975), both discussed
infra.
Local 15 in its reply brief asserts, however, that since
the claim of delegated authority was not raised in the
pleading, due process requires that the General Counsel
is estopped from raising it in its posthearing memoran-
464 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
dum of law. Local 15 misconstrues the argument present-
ed by General Counsel in its brief. As my analysis and
discussion of the cases makes evident, the government's
claim that the two co-Respondents are legally responsi-
ble for the manner in which the authority they delegated
to the JAC is implemented, is but a way of establishing,
through evidence, the facts that a principal-agent rela-
tionship was created and the normal consequences of the
principal's responsibility flowing from that relationship.
Both Pacific Maritime Assn. and Morrison-Knudson Co.
recognize this by specifically relying on the creation of a
principal-agent relationship by virtue of the delegation of
authority to another entity. As General Counsel clearly
pleaded the existence of a principal-agent relationship,
Local 15's argument is without merit.
The fact that the AGC has not appointed successor
management members since Mazza 's appointment as ex-
ecutive vice president in 1981 is not legally significant on
the issue of agency. As Mazza testified, the AGC has
continued to maintain the contractual right of selection
although not exercised. Under Mazza's predecessor,
Frank White, the AGC was asked to select management
designees . Thus, Carl Johnson, its chairman since 1983,
but first appointed as a management member in 1976,
owes his original JAC designation to the AGC appoint-
ing authority. In this respect, successive management ap-
pointees since 1982, while selected by Johnson in consul-
tation with other management members, may also be
found to be linked to the AGC exercise of its right to
select management members. The AGC is the only em-
ployer party to the successive collective-bargaining
agreements which have continued to maintain and sup-
port the JAC and the Respondents have not adduced
any evidence that any employer or other association has
appointed management members.
Pursuant to the parties' collective-bargaining agree-
ment, the apprenticeship program is not only implement-
ed by the JAC but also by the representatives of the par-
ties on the job. Here, stewards representing the Union
and foremen representing the employer-members of the
AGC as well as those who adopted its agreement, evalu-
ate apprentice performance, discipline them where ap-
propriate, and present complaints about them to ' the
JAC.
Furthermore, the collective-bargaining agreement, by
requiring that the apprentice training be conducted in ac-
cordance with the Iron Workers Apprenticeship Train-
ing Standards, which also require adherence to the Inter-
national Union Reference Manual and Guide and Local
15 bylaws, shows the degree to which the Union, with
the assent of the AGC, controls the actual implementa-
tion of the training.
The evidence shows that Local 15 has been particular-
ly closely identified with the administration of the JAC
training program. Since early in 1984, Local 15 has as-
sumed direct responsibility for placing apprentices on
jobs. Its secretary performs services for the JAC and,
until 1984, it rented office space to the JAC. Local 15
pays the coordinator, secretary, and related expenses and
is reimbursed monthly for these expenditures, leading to
a comingling of Local 15 and JAC funds. Minutes of
JAC monthly meetings are read and the coordinator re-
ports apprenticeship matters at Local 15 general mem-
bership meetings. It also appears that a motion was
adopted to read the draft bylaws of the JAC at a Local
15 membership meeting. Gilbert also negotiated a waiver
of the job requirement that the coordinator not engage in
union political activity with the Local 15 executive
board rather than with the JAC.
The Union's involvement with the coordinator posi-
tion is particularly striking. Aside from paying the coor-
dinator and permitting him to engage in internal political
activity, Business Agent Foley's involvement in prepar-
ing and presenting Gilbert's layoff slip on his termination
in 1984 shows the Union acting, at least nominally, as his
employer, Foley's denials to the contrary notwithstand-
ing. Foley's explanations hardly dissipate the inference
that the Union shared or exercised authority as Gilbert's
supervisor by providing a slip listing Local 15 as em-
ployer, containing Local 15's employer identification
number and bearing Foley's signature, and by personally
presenting it to Gilbert. Significantly, Foley did not testi-
fy about his presence on behalf of the Local at Gilbert's
unemployment compensation hearing. Local 15 later also
supplied Milne with his layoff slip when Gilbert was re-
instated. Given these facts, it is not surprising that Foley,
as Fund trustee, requested in January 1985, that Local 15
cease to be the coordinator's employer.
By virtue of their authority arising from the collective-
bargaining relationship, agreement, and terms creating
the Fund and JAC and controlling its operation, as de-
scribed above, I conclude that the JAC in administering
the apprenticeship training program does so as the col-
lective-bargaining agent of Local 15 as well as the AGC.
Bio-Medical of Puerto Rico, cited supra. Cf. Asbestos
Workers, supra. See also Plumbers Local 375, 228 NLRB
1191, 1195 (1977), and Sandleben Plumbing Co., 220
NLRB 850 (1975). In these two cases, the Board held
joint apprenticeship committees established pursuant to
collective bargaining to be agents of the contracting
unions. In the former case, Local 375, the administrative
law judge relied on the terms of the collective-bargain-
ing contract establishing the JATC, requiring that the
training program operate according to procedures set
forth by the U. S. Department of Labor, and specifying
the JATC's responsibilities for implementing the training
by dispatching, approving their employment, and pro-
scribing the course of study of, the apprentices. The con-
tract provided for an equal number of representatives
from the employer association and respondent union, the
JATC employed a coordinator whose conduct in dis-
charging an apprentice was at issue, and the JATC was
financed through a trust fund to which employers signa-
tory to the contract were required to contribute. All of
these factors are present in the instant proceeding.
In the latter case, Sandleben Plumbing, the administra-
tive law judge was affirmed in concluding that the joint
apprenticeship committee 'was "an adjunct of the hiring
procedure" which gave the local the exclusive right for
referrals of journeymen and apprentices to contractors.
While the original apprenticeship committee was a crea-
ture of the respondent's constitution, it later was recon-
stituted as a joint apprenticeship committee by agreement
IRON WORKERS LOCAL 15
with the employers, but as a joint committee it was
named in the local's bylaws as one of its standing com-
mittees. The local's business manager has the right to ap-
point and remove the three union representatives to the
Committee. The local had the exclusive right to refer all
apprentices under the supervision of the joint committee
to employees who sought their services but in practice
referred them to employers recommended by the com-
mittee. Based on the foregoing, the administrative law
judge concluded and the Board affirmed that the com-
mittee in carrying out its duty to administer the appren-
ticeship program, did so as the agent of the local as well
as that of the employers.10 Here, the JAC is required to
comply with Local 15 standards and bylaws and Interna-
tional union guides, and just as in Sandleben, Local 15
exercises the exclusive right to refer apprentices to jobs.
Other factors not present in Sandleben, such as the
Union's close relationship to the coordinator position, as
well as the other involvements, such as Local 15's initial
payment of JAC expenses, providing the JAC secretary,
and, for a time, its office space, and preparing and sign-
ing Gilbert's layoff slip, support, to an even greater
extent than Sandleben, a finding that the JAC administers
the program as Local 15's agent. Even more significant
is the fact that not only is the JAC an "adjunct of the
hiring procedure" as it was in Sandleben, but the func-
tions the JAC performs encompass the full range of re-
sponsibilities of selecting, training, evaluating, and certi-
fying the apprentices, delegated to it by the contracting
parties.
The facts relating to Gilbert's termination in 1984
show, in graphic detail, the manner in which the ex-
Local 15 President Etkin, motivated by internal political
interests, was able to manipulate the JAC so as to bring
about a replacement of the coordinator, the only full-
time paid position created to carry out its responsibilities
for training and supervision of apprentices. In so acting,
in his dual role as former president of Local 15 with the
power of appointment of labor members serving.his in-
terests, and influential member of the JAC, Etkin exer-
cised such control and influence over the JAC that the
identity of principal and agent appeared to merge and, at
the least, Local 15, through its power of appointment of
and'and control over its labor members, authorized and
approved the JAC's conduct as its agent in discharging
Gilbert. In this action, the influential role of Carl John-
son, an AGC appointee as member and nonchairman of
the JAC, and part-owner of an AGC employer-member,
in voting to oust Gilbert because of hostility arising from
Gilbert's presumed role in opposing his participation in
the Union's election, should not be overlooked.
General Counsel in its brief, and the AGC in its reply
brief, discuss General Building Contractors Assn. v. Penn-
10 To this extent, the reply brief of the AGC is in error at 21 when it
asserts that neither Local 375 nor Sandleben considered the issue of em-
ployer relationship to the joint apprenticeship committee. The facts in
both decisions would also appear to support a finding of liability against
the employers in one case and the employer association in the other as
parties to the collective-bargaining agreements creating and delegating
responsibility to the committees to administer the training programs.
However, in neither case were the employers charged with violations of
law under the Act
465
sylvania, 458 U.S. 375 (1982), where the Court held an
employer association was not vicariously liable for the
racial discrimination practiced by the union and the joint
apprenticeship and training committee (JATC) composed
of trustees, half of whom were appointed by the associa-
tion and half by the union. The General Counsel seeks to
distinguish its facts and the AGC seeks to apply the prin-
ciples it enunciates.
With respect to the claim that the employer groups
could be held vicariously liable for the discriminatory
conduct of the joint apprenticeship and training commit-
tee (JATC), the Court concluded that the facts of record
were inadequate to sustain such liability. In order to
impose such liability the right of control over the activi-
ties of the JATC must be present and the record did not
support such a funding. The Court then noted, "Neither
is a right of control inferable merely from the power of
the associations to appoint half of the JATC's trustees. It
is entirely possible that the trustees, once appointed, owe
a fiduciary duty to the JATC and the apprentices en-
rolled in its programs, rather than to the entities that ap-
pointed them. Cf. NLRB v. Amax Coal Co., 453 U.S.
322, 101 S. Ct. 2789, 69 L. Ed 2d 672 (1981)." Thus, the
Court was concerned with both the absence of record
evidence supporting the employer association's right to
control the activities of the JATC and the possibility that
the JATC had a fiduciary duty akin to benefit fund trust-
ees. The opinion does not indicate whether the commit-
tee, which the Court characterized as "a body of trust-
ees." was a Section 302(c)(5) trust fund which received
directly contributions by employer for the purpose of de-
fraying the costs of apprenticeship but it is entirely possi-
ble such was the case. In any event, it is clear that the
JAC in the instant proceeding, unlike Fund trustees, do
not have fiduciary duties, Asbestos Workers, cited supra,
at 922. Further, the facts previously summarized as to
the AGC's control over the JAC, jointly with Local 15,
provide a more than adequate record basis upon which
to conclude that , the AGC enjoys a right to control the
JAC's activities such that it may, indeed, be held vicari-
ously liable. That the Court recognized further facts
might justify such a conclusion is borne out in the con-
curring opinion where it was noted that nothing in the
Court's opinion prevents the respondents from litigating
the question of the employer's liability under the statute
by attempting to prove the traditional elements of re-
spondent superior, id. at 404.
In weighing the vicarious liability of the Fund, the
starting point for analysis is the Supreme Court's reason-
ing in General Building Contractors Assn. v. Pennsylvania,
cited supra. There the Court was faced with ,a contention
that the petitioners, the contractors and employers trade
associations, could be held vicariously liable for the dis-
criminatory conduct of the JATC in the operation of an
apprenticeship program as their agent (and that of the
union) because their' appointees administer the program
and -their employer-members fund it through mandatory
contributions. The Court commented:
The facts emphasized by respondents, standing
alone, are inadequate . That the employers fund the
activities of the JATC does not render the JATC
466 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the employers' servant or agent any more than an
independent contractor is rendered an agent simply
because he is compensated by the principal for his
services . [Id. at 394-395.]
Yet, in their brief, co-counsels for the General Counsel
rely, to a great extent, on the funding authority as basis
for their claim that the Fund should be held responsible
for remedying the unlawful conduct of the JAC in dis-
charging Bruce Gilbert.
The facts indeed show that the Fund is the sole source
of funding of the JAC. Further, the fund has control
over the use of the funds it approves for the JAC. Well
before Gilberts' termination, during an economic down-
turn, the Fund suspended employment of a coordinator.
Since Gilbert 's termination and the commencement of
the instant litigation, the Fund has disapproved contin-
ued funding of a truck by the JAC, authorized an audit
of the coordinator's expenses to determine if they were
improper or excessive , and considered the purchase of
errors and omissions insurance to protect members of the
Committee and provided legal advice regarding a drug
testing program being considered by the Southern JAC
for apprentices. None of these facts, however, show a re-
lationship to the JAC such that the Fund may be said to
control its activities. Furthermore, by virtue of their
status as Trustees of a Taft-Hartley jointly administered
trust fund, these trustees owe a fiduciary duty to the
Fund and the apprentices enrolled in its program, rather
than to the entities, the Union and AGC as parties to the
collective-bargaining agreement, that appointed them.
See NLRB v. Amax Coal Co., 453 U.S. 322 (1981); Gen-
eral Building Contractors Assn. v. Pennsylvania, cited supra
at 395.
While the standards which govern the operation of the
apprenticeship program under the collective agreement
provide for the JAC to employ a coordinator "in coop-
eration with the Fund" that phraseology has not given
the Fund any control over the decision to hire a coordi-
nator, the nature of the coordinator's duties, or the
tenure of the coordinator. The underlying proceeding is
devoid of any evidence showing the involvement of the
Fund in any way, in the deliberations which led to Gil-
bert's discharge, or the employment of his successor, the
preparation of the document outlining the coordinator's
duties and responsibilities , or in monitoring the coordina-
tor's job performance, other than its review of his ex-
penditures. Such a review, in a significant but limited
area of the coordinator's duties and functioning, can
hardly be equated with the nature of the overall control
of the coordinator exercised by the Union and AGC
through the medium of the collective-bargaining agree-
ment and other documents approved by the parties
which regulate and control every facet of the JAC's and
coordinator's activities.
Neither of the cases cited by General Counsel pro-
vides support for its contention. In Regal Knitwear Co. v.
NLRB, 324 U.S. 9 (1945), the Court agreed with the
Board and the reviewing circuit court that it was appro-
priate for the Board to include "successors and assigns"
within the scope of its remedial order in order to reach
those identified with the named respondent in interest, in
"privity" with them, represented by them, or subject to
their control, even though not parties to the original pro-
ceeding. The case never discussed whether a Section
302(c)(6) Taft-Hartley Fund may be found to be an
"aider or abettor" of a JAC's unlawful actions, such as
its actions against Gilbert in the instant proceeding. To
suggest, as General Counsel does, that the Fund is "nulli-
fying" the Board's Order by refusing to provide the
moneys to pay Gilbert's expenses, without first establish-
ing the Fund's right of control over the JAC's activities,
is unwarranted.
In Jacobs Transfer, 227 NLRB 123 (1977), also cited by
General Counsel, the trusts against whom the Board,
inter alia, imposed liability were found to be agents of
the principals to the collective-bargaining agreement for
the purposes of accepting contribution and administering
the trusts in accordance with the agreements . In reject-
ing contributions tendered on behalf of the discriminatee,
the trusts were found to have denied employment bene-
fits to the discriminatee at the urging of the Union, thus
violating Section 8(b)(1)(A) and (2) of the Act by caus-
ing the discriminatee 's employer to discriminate against
him in violation of Section 8(a)(3) of the Act. There is
no suggestion on the record before me, and General
Counsel does not contend, that the Fund is refusing to
make Gilbert whole because of pressure applied by
Local 15. Furthermore, the act of receiving contributions
on behalf of employees was clearly among the duties and
responsibilities of the trustees pursuant to both the trust
and collective-bargaining agreements and was found by
the Board to be consistent with their fiduciary duties
owed to the trust. In contrast, there is no provision of
the trust or collective -bargaining agreements in the in-
stant proceeding which imposes on the trustees a duty to
remedy the JAC's unlawful conduct in terminating its
coordinator. Without the nexus required to be shown,
whether as principal of, joint actor with, or aider and
abetter of, the JAC in its administration of the appren-
ticeship program, including its employment relationship
with its coordinator, the Fund may not be held responsi-
ble for carrying out the Board's Order against the JAC
to make Gilbert whole in this case.
One other argument , principally advanced by the
AGC in its reply brief, must now be addressed. The
AGC contends that while the Board occasionally allows
the issue of responsibility for payment (of a backpay
award) to be litigated on a compliance proceeding, the
Board does not rely on concepts such as respondent su-
perior or agent-principal to establish such' liability. Nei-
ther say a new respondent be joined at the compliance
stage of a proceeding if it could have been'found'to have
committed the underlying unfair labor practice, since it
would not have fair notice and an opportunity to defend
against the unfair labor practice allegations, citing and
relying on Brockway Motor Trucks, 251 NLRB 29 (1980),
and George C. Shearer Exhibitors Delivery Service, 246
NLRB 416 (1979).
In Southeastern Envelope Co., 246 NLRB 423' (1979),
the Board, in resolving an apparent conflict in precedent,
and reaffirming its adherence to Coast IL elivery Service,
198 NLRB 1026 (1972), ruled that "permitting the Gen-
IRON WORKERS LOCAL 15
eral Counsel to litigate issues of derivative liability in a
compliance proceeding, even when those issues could
have been pleaded and litigated in the original unfair
labor practice proceeding , will better insure effectuation
of the remedial purposes and policies of the Act without
denying procedural fairness to any party alleged to be
derivatively liable." Id. at 424. In Brockway Motor Trucks
and Shearer Exhibitors, the General Counsel sought, be-
latedly, in its posttrial brief in the former case, and by
way of an answer to respondent 's exceptions in the latter
case, to bring a new respondent into the proceeding to
remedy the unfair labor practices. In both cases, the
Board ruled that the new respondent was not afforded
notice and an opportunity to defend against the unfair
labor practice allegations or to litigate the questions of its
relationship with, or control over, the respondent but
that General Counsel may yet plead and litigate these
questions during the compliance stage of the proceeding,
citing and relying on Southeastern Envelope Co. and Coast
Delivery Service, cited supra. In Shearer Exhibition, the
General Counsel alleged the new respondent as an alter
ego of respondent . But in Brockway Motor Freight, the al-
legation was that respondent 's parent company, Mack
Trucks, Inc., controlled respondent and directly partici-
pated in the unfair labor practice. 251 NLRB 29, 33 fn.
19. In noting that General Counsel could still litigate the
question of Mack Truck 's derivative liability during the
compliance stage of the proceeding , the Board , contrary
to the AGC's contention , was recognizing that a new re-
spondent may be introduced at the compliance stage
even though it could have been found liable in the initial
unfair labor practice phase and, further , that derivative
liability may be based on doctrines other than those of
identity (such as alter ego, single -employer status, or
successorship) to establish derivative liability . Indeed,
Brockway Motor Freight teaches that control and direct
participation in the unfair labor practice (by virtue of
principal-agent relationship), the same allegations made
in this proceeding against the Union and AGC, may be
utilized to determine derivative liability during the com-
pliance stage.
The analysis now considers whether General Counsel
has sustained its burden of proving the elements of its
claim for gross backpay and whether the Respondents
have shown that General Counsel's final claim, taking
into account Gilbert's interim earnings , should be re-
duced on the basis of the defenses they have raised.
General Counsel 's burden is to establish the gross
amount of backpay due the claimant . The Respondents
then incur the burden of seeking to establish facts which
would mitigate their backpay liability. A & T Mfg Co.,
280 NLRB 916 (1986). In seeking to meet its burden, the
General Counsel is only required to adopt a formula for
calculating gross backpay which will give a close ap-
proximation of the amount due. NLRB Y. Brown & Root,
Ina, 311 F.2d 447, 452 (2d Cir. 1977). In establishing the
backpay 'due, any doubts and ambiguities shall be re-
solved in favor of the wronged party and against the
wrongdoer. Kansas Refined Helium Co., 252 NLRB 1156,
1158 (1980),' enfd. 683 F.2d 1296 (10th Cir. 1982). The
General Counsel 's discretion extends to the choice of
methods in calculating the backpay award . See Bagel
467
Bakers Council of Greater New York v. NLRB, 555 F.2d
304, 305 (2d Cir. 1977).
I conclude that General Counsel has met its obligation
of establishing the backpay period, the specific salary,
unreimbursed medical expenses and expense moneys Gil-
bert would have received, by quarter, had he not been
terminated , during the period until he was offered and
accepted reinstatement to his former position as coordi-
nator. I also conclude that General Counsel also appro-
priately calculated the net backpay due after making de-
ductions for his receipt of workers' compensation awards
representing lost earnings and interim earnings he re-
ceived for all work he performed in the ironworker
trade, mostly on referral by the Union, and other earn-
ings performed subsequent to his receipt of the lump-sum
workers' compensation settlement . See Section 102„55(a)
of the Board's Rules and Regulations.
The Respondents' claim that the backpay period com-
menced on August 25 rather than August 4 , 1984, was
rejected in the factfinding portion of this decision, supra.
As to the argument that Gilbert's claim should have been
cut off on September 4, 1984 , with his acceptance of a
job with Thames Valley Steel on referral from the Union
has also been rejected. It remains to note here that so
long as Gilbert 's job as apprentice coordinator remained
in existence and available, the Respondents ' backpay li-
ability continued unabated until a bona fide offer of rein-
statement was made to him. Rikal West Inc., 274 NLRB
1136 fn. 2 (1985). The JAC's responsibility to offer to re-
instate Gilbert and that of the JAC and the two coprinci-
pals to make him whole for his losses does not terminate
in the event he were to obtain substantially equivalent
employment elsewhere. Daniel Construction Co., 276
NLRB 1093 fn . 3 (1985). In any event, I have previously
found that the journeyman ironwork which was avail-
able to Gilbert on referral by the Union was not compa-
rable or substantially equivalent to his former position as
coordinator . It is also clear , and was previously , found,
that the JAC's April 4, 1988 offer of reinstatement was
not legitimate as the JAC was prepared to terminate Gil-
bert, immediately for alleged misconduct which it was
precluded from asserting prior to complying fully with
the Board's Order. I therefore conclude that General
Counsel's selection of the backpay period claimed in the
specification was appropriate and well within the ambit
of its discretion.
As to General Counsel 's inclusion of weekly expense
money in Gilbert's gross backpay calculation, it is evi-
dent that payment of those expenses, which required no
accounting on the part of the coordinator during the
period he did not have the use of a JAC-supplied vehi-
cle, were part of the coordinator's regular compensation
which Gilbert would have continued to receive as well
as his salary were it not for his unlawful termination.
Even prior to the removal of the truck from the coordi-
nator, from August 4, 1984, to June 21, 1985, the evi-
dence shows only that Milne , Gilbert's replacement as
coordinator, received gas money totaling $1900 without
any obligation to account or provide evidence of actual
gasoline or related expenditures . Subsequent to June 21,
1985 , on removal of the vehicle , the expense arrange-
468 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ment for the coordinator reverted to the $125 weekly
payment to cover gasoline and other related expenses in-
cidental to the carrying out of the coordinator's duties.
Such payments are part of the make whole remedy as
emoluments of value arising out of the employment rela-
tionship apart from the actual wages received. Electrical
Workers IBEW Local 401 (Stone & Webster), 266 NLRB
870, 873 (1983), enfd. mem. 758 F.2d 656 (9th Cir, 1985);
W. C. Nabors Co., 134 NLRB 1078, 1086 (1961), enfd. as
modified 323 F.2d 686 (5th Cir. 1963), cert. denied 376
U.S. 911 (1964). Such subsistence payments may be in-
cluded in gross backpay even where the discriminatee
did not incur the expenses the payments were intended
to cover. See Electrical Workers Local 401, supra; see
also Iron Workers Local 118 Y. NLRB, 804 F.2d 1100 (9th
Cir. 1986).
The unreimbursed medical expenses incurred by Gil-
bert for himself and his family which would otherwise
have been covered under the parties' extended benefits
plan are also appropriately included in the calculation of
gross backpay, as representing fringe benefits which Gil-
bert would have received in the absence of the unlawful
discrimination practiced against him. Mohawk Steel Fab-
ricators, 289 NLRB 1193 (1989); Teamsters Local 164, 274
NLRB 909, 911 (1985).
As to Respondent's efforts to seek to mitigate or to
avoid backpay liability, I have previously considered and
rejected the defense that Gilbert should be penalized for
an alleged willful concealment of workers' compensation
payments, supra. Inasmuch as his disability occurred as a
direct result of his interim employment as an ironworker
and would not have taken place had Gilbert not been un-
lawfully removed from his position as coordinator, pay-
ment of backpay may not be tolled for the period of his
disability. American Mfg. Co. of Texas, 167 NLRB 520,
522 (1967). While the portion of Gilbert's workers' com-
pensation award representing lost wages is deductible as
interim earnings, the portion of the award constituting
reparations for physical damage suffered is excludable
from interim earnings. Id, at 523.
The injury Gilbert suffered at the construction site
while employed by Standard Structural Steel occurred
while Gilbert was engaged as a general foreman per-
forming interim employment and would not have been
sustained had he continued as apprentice coordinator.
While the coordinator visited jobsites from time to time
to check on the work progress of apprentices, the injury
occurred while Gilbert was supervising a crew of iron-
workers, work not comparable to that of coordinator.
Thus backpay should not be disallowed for Gilbert's sub-
sequent periods of disability. Even during such periods,
Gilbert was capable of performing fully his duties as co-
ordinator.
General Counsel has appropriately deducted from Gil-
bert's backpay the $35,620 in payments he received from
the workers' compensation carrier to compensate him for
wages lost during the periods of his partial and total dis-
abilities. The $35,239 in payments Gilbert received as
specific payments after January 8, 1988 , including the
$28,000 final payment, representing Gilbert's anticipated
future diminished earning capacity subsequent to the
babkpay period as well as 8 weeks' worth of accrued but
unpaid specific amounts due Gilbert were not deducted
by General Counsel and this formulation is also appropri-
ate. The bulk of the $28,000 ($24,412) represented com-
pensation for the injury itself-the 10-percent permanent
loss of function in Gilbert's knee. See Connecticut Gen-
eral Statute, section 31-307 and section 31-308. The per-
manent partial loss of function for which Gilbert was
paid by voluntary agreement pursuant to section 31-308,
has been held by the Connecticut Supreme Court, in in-
terpreting the predecessor to this section of the statute,
to mean deprivation and is intended to compensate the
injured employee for the handicap of being without the
lost member and not for impairment of earning power.
See Franko v. Schollhorn Co., 93 Conn. 13 (1918); Panico
v. Sperry Engineering Co., 133 Conn. 707 (1931). Thus,
Jankowski's testimony, that in agreeing to the compro-
mise figure in negotiations with Gilbert's attorney, he, as
the carrier's adjustor, took into account, an estimate of
Gilbert's future lost earning capacity, is not legally sig-
nificant.
Neither was it separately broken down on the docu-
ment in which the $28,000 figure was recited. Even if it
had been, impairment of future earning capacity has been
recognized by the Board as not being a substitute for lost
wages which may be offset against backpay due a claim-
ant as a result of his unlawful discharge. Canova Moving
& Storage Co., 261 NLRB 639 (1982). In any event, this
future period was outside the backpay period and, there-
fore, the payment may not diminish the backpay owed
from the date of Gilbert's termination until the date his
reinstatement cut off further liability. See American Mfg.
Co. of Texas, supra at 523.
The credibility of Gilbert's due diligence, in spite of
his interim employment-related disability, in seeking in-
terim employment, has been discussed at length. In deter-
mining whether the discriminatee neglected to make rea-
sonable efforts to find interim work-a burden which the
Respondent must affirmatively establish in order to miti-
gate its liability, NLRB v. Miami Coca-Cola Bottling Co.,
360 F.2d. 575 (5th Cir. 1966)-the discriminatee is held
"only to reasonable exertions in this regard, not the high-
est standard of diligence." NLRB x Arduini Mfg Co., 394
F.2d 420, 422-423 (1st Cir. 1968). There is no question
that Gilbert registered timely with the Union's hiring
hall and remained on the Union's out-of-work list
throughout the backpay period. By registering and there-
after remaining on the list, Gilbert satisfied his duty to
make reasonable efforts to seek interim employment.
Evans Plumbing Co., 278 NLRB 67, 69 (1986); Big Three
Industrial Gas Co., 263 NLRB 1189, 1198 (1982).
Gilbert sought work as a journeyman ironworker at a
wage rate $2.20 less than his rate of pay as coordinator.
After accepting an early referral as journeyman and then
being called by an employer to another job as general
foreman, Gilbert suffered his work-related injury, but
continued to seek referrals through the hall after comple-
tion of that job, but was not offered a job by the Union
for a period of approximately 4 months, from March to
July 1985. Gilbert's first period of disability, continuing
from spring of 1985 to April 1986, may be properly dis-
counted, even though he was available for referrals as
IRON WORKERS LOCAL 15
foreman or for journeymen positions which did not in-
volve heavy lifting, climbing, or bending. Immediately
upon his release for work by his doctor in early April
1986, Gilbert obtained a journeyman ironworker job
with White Oak Construction. Between April 4, 1986,
and May 7, 1987, while Gilbert was not receiving work-
ers' compensation, he had interim earnings in each quar-
ter, totaling over $20,000 in all. The Board has viewed
similar efforts as sufficient to satisfy the claimant's obli-
gation to mitigate his damages. See, e.g., Imco/Inter-
national Measurement Co., 277 NLRB 962, 963 fn. 9
(1985); Rikal West, supra at 1138.
Most of these jobs were referrals by the Union to posi-
tions as journeyman ironworker, heavy-duty construction
jobs; only one was a referral as general foreman after the
initial referent, a minority executive board member, had
declined the position after a day on the job.
While Gilbert declined certain job referrals during this
period, most, if not all were "hot jobs" near radiation or
were offers to perform rod work, which Gilbert had de-
clined in the past and which he believed were inimical to
the condition of his injured knee. Since members could
and did decline employment offers from Local 15 agents
which they deemed undesirable without losing their
place on the out-of-work list under a practice recognized
by the Union, Gilbert's rejection of other proffered jobs
because of dislike of the work involved does not consti-
tute a willful loss of earnings. Electrical Workers Local
401, supra at 870 fn. 2.
Gilbert also left two interim jobs after being referred
by the Union, the White Oak Construction job and the
Combustion Engineering trash plant, for reasons related
to unsuitability for the work of welding and concerns
about safety which have been found justifiable by the
Board. OX Machine dt Tool Corp., 279 NLRB 474, 478
(1986 Lord Jim's, 277 NLRB 1514, 1516 (1986). To the
extent that the journeyman ironworker jobs were not
substantially comparable to the coordinator position Gil-
bert had held before: his unlawful discharge, he also had
no obligation to remain employed in such a position.
Chem Fab Corp., 275 NLRB 21, 24 (1985); Big Three In-
dustrial Gas, 263 NLRB 1189, 1211 (1982).
From May 7, 1987, to January 7, 1988, following his
second knee operation while Gilbert again received
workers' compensation payments, he was again restricted
from performing work as a journeyman ironworker, but
could have assumed his prior duties as apprentice coordi-
nator or could have worked as a foreman or general
foreman. The Union did not offer him any such jobs
during this period,
During the period beginning in May 1987, when Gil-
bert started receiving specific amounts to compensate
him for the loss of function in his knee, he cooperated in
vocational counseling and sought alternate employment,
finally obtaining a position with Baco Corporation
paying substantially less than his prior position as coordi-
nator. However, neither evidence of lack of success in
obtaining interim employment nor low interim earnings
alone establish that an employee has failed to make rea-
sonable efforts to find interim work. NLRB v. Cashman
Auto Co., 223 F.2d 832, 836 (1st Cir. 1955). Given his
permanent disability,, lack of formal education, and expe-
469
rience outside the construction industry , it is apparent
that Gilbert made a reasonable effort to obtain interim
employment once he started receiving specific amounts
and met with the rehabilitation counselor . See Mastro
Plastics Corp., 136 NLRB 1342, 1359 ( 1962).
During the periods of his disability , the Union be-came
aware of Gilbert's condition generally . Even if not
always precisely aware of Gilbert's condition and his
limitations in performing journeyman work, Gilbert had
every right to maintain his name on the Union 's out-of-
work list and, in accordance with the selective practice
of members , accept those jobs which he could perform
and wanted to perform , given his preferences and physi-
cal handicap . I have previously severely discounted the
value of testimony offered by Local 15 Business Agents
Coyne and Connor relating to Gilbert's rejection of nu-
merous job offers and conclude that Respondents have
failed to satisfy their burden of proving that Gilbert en-
gaged in a willful loss of earnings which would permit
mitigation of their liability.
Finally, having previously rejected claims of disquali-
fying misconduct on the part of Gilbert in collecting dis-
ability payments from the extended benefit fund while he
was eligible (but not receiving) workers' compensation,
failing to file income tax returns for 1985, 1986, and 1987
during the backpay period, and allegedly shielding
income earned in this period, I now conclude that none
of this asserted behavior rises to the level of egregious
misconduct warranting a reduction of the backpay
award . See Standard Materials, 286 NLRB 609 (1987);
see also Terperung Trucking Co., 283 NLRB 444 (1987).
THE R);MEDY
For the reasons described above, I find that the obliga-
tions of Respondents JAC, Local 15, and the AGC to
the discriminatee Bruce Gilbert will. be discharged by
the payment to him of the respective amounts as set
forth in the following recommended Order. Such
amounts shall be payable, plus interest on those sums, as
computed in New Horizons for the Retarded, 283 NLRB
1173 (1987).11 I shall also recommend that the amended
paragraph 2 of the specification alleging that the Re-
spondent Fund is liable for the backpay set forth therein
be dismissed.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
edtz
ORDER
Respondents Northern District of Connecticut Iron
Workers Local Union No. 15, Joint Apprenticeship
I 1 Under New Horizons, interest is computed at the "short-term Federal
rate" for the underpayment of taxes as set out in the 1986 amendment to
26 U.S.C. § 6621 . Interest accrued before January 1, 1987 (the effective
date of the amendment), shall be commuted as in Florida Steel Corp., 231
NLRB 651 (1977).
12 If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations , the findings , conclusions, and recommended
Order shall, as provided in Sec . 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
470 DECISIONS OF THE NATIONAL LABOR -RELATIONS BOARD
Committee and its co-Respondents, the International As-
sociation of Bridge , Structural and Ornamental Iron
Workers, Local No. 15, AFL-CIO, and The Associated
General Contractors of Connecticut , Inc., their officers,
agents, successors, and assigns , jointly and severally,
shall make Bruce Gilbert whole by payment to him, and
to the,following described Funds on his behalf, the fol-
lowing-sums, listed by quarter, and totaled, together with
interest as set forth in the remedy section of this deci-
sion, but minus tax withholdings required by Federal and
state laws:
Year Qtr. Net Backpay Extended BenefitFund Annuity Fund Pension Fund
Apprentice Training
Fund
1984 3 $5,664 $344 $498 $458 $25
4 6,166 292 352 465 21
1985 1 434 91 0 126 9
2 6,245 822 1,040 1,144 78
3 4,622 1,230 1,056 1,267 79
4 11,889 1,230 1,056 1,267 79
1986 1 776 1,193 1,024 1,229 77
2 4,217 361 309 371 23
3 7,447 650 630 668 38
4 7,422 739 716 759 43
1987 1 9,267 944 885 970 55
2 8,801 1,259 1,220 1,293 73
3 7,088 1,362 1,320 1,399 79
4 7,533 1,362 1,320 1,399 79
1988 1 8 ,310 1,232 1,000 1,060 60
*2 8,310 1,232 1,000 1,060 60
4,187 517 420 445 25
$100,007 $13,628 $12,846 14,410 843
* It was during this quarter that Gilbert was on his honeymoon in Florida for a 3-week period and not available for interim
employment.
IT IS FURTHER RECOMMENDED that the specification be Locals' 15 and 424 Apprentice Training Fund liable to
dismissed insofar as it seeks to hold the Iron Workers make whole Bruce Gilbert.