286 N.L.R.B. 1328 (N.L.R.B. 1987)

Iron Workers Local 480 (Building Contractors)

National Labor Relations Board - Board DecisionsNov 30, 1987

286 N.L.R.B. 1328 (N.L.R.B. 1987)

1328 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD International Association of Bridge , Structural & Ornamental Iron Workers, Local 480, AFL- CIO and John A. Craner and Building Contrac- tors Association of New Jersey , Party to the Contract . Case 22-CB-3432 30 November 1987 SUPPLEMENTAL DECISION AND ORDER By CHAIRMAN DOTSON AND MEMBERS BABSON AND STEPHENS On 9 May 1978 the National Labor Relations Board issued its Decision and Order in this pro- ceeding ' in which it found that the Respondent, Ironworkers Local 480, violated Section 8(b)(1)(A) and (2) of the Act by discriminating against non- members in its hiring hall referral practices. The Board ordered Local 480 to compensate the five named discriminatees as well as other "similarly sit- uated" nonmember applicants for earnings lost due to the discrimination. On 11 May 1979 the Court of Appeals for the Third Circuit enforced the Board's Order.2 On 21 December 1982 the Regional Office issued its backpay specification, which was amend- ed on 11 March 1983. The reasons for the lengthy interval between enforcement and the issuance of the specification and for the associated subsequent litigation before the court of appeals are set forth in the Supreme Court's per curiam opinion of 14 May 1984.3 Pursuant to the Supreme Court's deci- sion the court of appeals remanded the case to the Board for a hearing on the backpay specification as amended. The hearing was held before Administra- tive Law Judge Howard Edelman, who issued the attached supplemental decision on 5 April 1985. The Respondent filed exceptions and a supporting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the supplemental deci- sion and the record in light of the exceptions and brief and has decided to affirm the judge' s rulings,4 1 235 NLRB 1511 $ 598 F 2d 611 (mem) NLRB v. Iron Workers Local 480, 466 U S 720 4 In arguing that the claims in the backpay specification made on behalf of 66 of the 135 named discriminatees should be dismissed , the Re- spondent offered to introduce individually executed affidavits from them indicating that they had not and would not cooperate with the Board in the backpay proceeding nor would they accept any backpay should it be awarded We agree with the judge 's ruling in rejecting this offer of proof However, we do not find it necessary to rely , as did the judge, on Michael M Schaefer, 261 NLRB 272 (1982), because there is no conten- t1on that the "waivers" were made in the context of private settlements proporting to bind the Respondent Furthermore, as the judge correctly explained, the Order operates only against the Respondent It must offer payment to the discnminatees of the specified amounts, but the discnmin- findings, and conclusions only to the extent consist- ent with this Supplemental Decision and Order. The Board agrees with all but one of the judge's findings concerning the operational definitions de- vised by the General Counsel in the backpay speci- fication in her effort to implement the Board's backpay remedy set forth at 235 NLRB 1511, 1513-1514. Specifically we agree with the judge that the criteria used to calculate "overall earn- ings" is appropriate and that the specification accu- rately identifies the discriminatees "similarly situat- ed" to the five discriminatees named in the Board's Order in the underlying decision. We further agree that it is the Respondent's burden, not the General Counsel's, to establish interim earnings. However, we disagree with the finding that the specification correctly set 31 December 1978 as the end of the backpay period. The Board's 1978 deci- sion in this proceeding found that the record "re- veals a generalized preference for member stewards over nonmember stewards which cannot be justi- fied by nondiscriminatory considerations." As noted in that decision, during the second quarter of 1977 that preference operated at over a 5-to-1 ratio. The record developed in this backpay proceeding reveals that on a quarterly basis since then the Re- spondent's unlawful conduct of giving preference to its own members has been reflected in ratios ranging from 2 to 1 to 4 to 1 from the third quarter of 1977 through the third quarter of 1978. During the fourth quarter of 1978, a period in- cluded in the backpay specification, the record, as found by the judge, shows no difference in the rate of referrals between members and nonmembers. We do not agree with the judge that in light of the Respondent's past practices it can be "fairly pre- sumed" that any of these referrals were discrimina- tory in the absence of any disproportionate pattern of referral. Accordingly we shall modify the rec- ommended Order to delete those backpay amounts for each claimant attributable to the fourth quarter of 1978.5 ORDER The National Labor Relations Board orders that the Respondent, International Association of Bridge, Structural & Ornamental Iron Workers, Local 480, AFL-CIO, its officers, agents, and rep- resentatives, shall make whole the employee claim- ants named below by paying each the amount fol- lowing his name , plus interest, computed in the atees, whatever view of the matter they expressed earlier through the "waivers," when specific amounts were not known, remain free to accept or reject the Respondent 's tender of payment as they wish 5 We also shall require that contributions due the various benefit funds be paid directly to the respective funds on the claimant's behalf 286 NLRB No. 127 IRON WORKERS LOCAL 480 (BUILDING CONTRACTORS) manner prescribed in New Horizons for the Retard- ed6 accrued to the date of payment, minus tax withholdings required by Federal and state laws, except that the payments to the vacation, annuity, welfare, and pension funds shall be made on the employees' behalf to the respective funds.7 Net Vacation Annuity Welfare Pension Claimant Net Back- Vaca- tion An- nuirp Wel- fare Pen- sion pay Fund Fund Fund Fund Akesson, Francis $2,021 $203 $243 $142 $223 Andren, Clifford H. 3,212 315 373 251 380 Antol, Maurice J . 1,954 195 234 137 215 Arminas, Larry 5,736 574 688 402 632 Balko , Martin 1 ,129 114 135 86 119 Banach , Ralph 1,262 126 151 101 133 Bellach , Robert 3,120 312 375 246 329 Benfield , Ronald L. 1,235 124 148 86 136 Bergacs , John, Jr. 53 5 6 4 7 Brewster, Richard W. 1,154 116 139 92 121 Brown, Charlie 336 34 4D 24 37 Brown, John 2,891 2.89 347 202 318 Bruhn , James R. 284 28 34 20 31 Cabarle , Roger P . 4,120 412 496 304 445 Cafaro, Anthony 0 Cameron , William N. 4,256 419 496 315 505 Campbell, Donald J . 4,824 482 578 338 530 Campbell, Terrance J. 7,450 739 884 557 834 Campion, James J. 440 43 50 34 55 Capraro, Frank J. 261 26 31 21 27 Caracus , Tony 583 58 71) 47 61 Cheety, Paul K. 0 Ciparis, Vito, Jr. 2,325 228 269 173 281 Cron, Horace 10,500 1,047 1,251 787 1,156 Cron, Ronald H. 5,109 510 613 358 563 Dailey, Robert M. 3,668 368 441) 274 394 Dalton , John H. 0 Dering , Robert J. 5,314 524 623 413 611 Diaz, Joseph 0 Dickovitch, Donald 1,043 101 111) 80 131 Dietz, Daniel 1 , 589 158 190 117 172 Edel, Donald 2,687 264 311 209 320 Edison, John 1,801 178 210 141 208 Englert, Charles P., Jr 1,469 147 176 118 155 Fedorischak, Mike 728 11 83 56 92 Fetynra, George 801 78 91 62 101 Fiigen, Kenneth P. 824 82 99 58 91 Fleming , Bernard 0 Frega, Frank 2,829 275 324 218 354 Glinka, Gary 33 3 4 2 4 Gougeon , Richard J. 4,118 411 493 298 447 Griffin, Joseph 569 57 613 46 59 Gural, Stanley 1,748 175 210 140 174 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 ( 1987), interest on and after 1 January 1987 shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U S.C Â§ 6621 Interest on amounts accrued prior to 1 January 1987 (the effective date of the 1986 amendment to 26 U S C Â§ 6621 ) shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977). 7 Any interest or other additional amounts owed with respect to these fund contributions shall be calculated in the manner set forth in Merryweather Optical Co, 240 NLRB 1213 (1979) 1329 Net Vacation Annuity Welfare Pension-Continued Claimant Net Back- Vaca- tion An- nuity Wel- fare Pen- sion pay Fund Fund Fund Fund Hajeski , James W. 148 15 18 10 16 Halifko, Richard J. 0 Harlan , James E. 0 Hasnik, Ronald 3,516 352 420 264 378 Hirsch, Edward W . 1,222 122 147 86 134 Hoffman , Joseph 0 Irvine, John J. 0 Irwin , Albert J. 0 Johnson, David T. 2,815 282 337 205 306 Kakstys, William P. 1,724 171 207 122 189 Kane, Hugh T. 4,901 489 589 374 524 Kellum , Larry W., Jr. 2,072 201 237 160 258 Kelly, Ronald J. 3,384 338 406 236 372 Kesello, Emery 5,911 593 707 437 638 Korab, Edward F. 0 Ladzinsky, Robert J. 0 Latawiec, Joseph H. 386 37 44 30 49 Leonard , Richard w . 2,734 273 328 217 288 Lene, Adam M. 4,480 447 535 320 501 Lindgren, Roy 1,785 173 203 137 225 Linkevich, Alphose J. 1,010 102 121 70 111 Liquori, Joseph N. 5,149 515 616 395 549 Littlehales, Kenneth R. 99 10 12 7 11 Locatelli, Angew R. 0 Lombardo, Rosario A. 4,696 470 563 347 511 Loukides, Gus 958 95 112' 70 112 Maier, Robert 0 Marsh, Frank L. 437 44 52 31 48 McCafferty, Patrick L. 5,862 588 704 433 634 McCann, Martin J. 5,585 560 670 420 601 McDonough, Thomas J. 2,172 218 260 152 238 McFadden, John 305 31 37 21 34 Meehan, Michael T. 12,382 1,240 1,488 912 1,342 Miller, Jack R. 5,216 523 627 377 567 Miller, William J. 9,697 970 1,163 730 1,042 Mundy, Robert E. 0 Murray, Frank J. 13,928 1,385 1,654 1,050 1,556 Myers, John W. 1,767 177 212 142 185 Namotka, Peter 2,249 218 256 173 283 Navickas , Edward 0 O'Connor , Bernard M. 1,162 116 140 86 125 O'Hearn, Frank 258 26 31 18 28 Olsen, Harry A. 8,923 884 1,055 643 1,024 O'Neil, Charles J. 15 2 2 1 2 Orban, John R. 842 84 101 59 92 Palus, Joseph P. 1,872 188 224 141 201 Peterson , Bernard J. 1,708 172 204 124 184 Potts, Richard L. 2,075 206 245 157 236 Roberts, James C. 0 Rojewski, Helmut 2,572 256 308 192 278 Rokita, Thomas J. 3,499 347 474 270 387 Roman, John W. 6,610 655 780 499 750 Roman, Ronald E. 1,720 172 206 120 189 Rosanio , Victor 302 30 36 21 34 Rosko, A. 935 94 112 65 103 Roxbury, Theodore T. 2,686 268 322 215 282 Ryan, William J. 1,551 155 186 124 163 Sake , Robert K. 0 Savasta, Dominic, Jr. 1,143 115 137 80 126 Savicki, Stanley A. 6,005 596 719 449 661 1330 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Net Vacation Annuity Welfare Pension-Continued Claimant Net Back- Vaca- tion An- nuity Wel- fare Pen- sion pay Fund Fund Fund Fund Scalon, John M. 0 Serafm, Walter J. 4,479 447 538 314 493 Shovlin, Joseph 3,768 377 452 300 396 Skanks, David L. 2,891 289 347 202 318 Smith, John P., Jr. 169 17 20 12 18 Spoder , Edwin P. 0 Spanks, Fred J. 114 11 14 8 13 Spiegel , George C. 498 50 60 35 55 Stahnke, Kenneth W. 0 Steinmete, Walter F. 5,097 510 612 381 548 Stepich, Boris 2,767 268 315 213 349 Sunkunda , John 9,245 916 1,092 721 1,031 Szary, Stanley F., Jr. 3,500 350 420 245 385 Thomas, Joseph 1 ,299 126 148 100 164 Tighe, John 704 68 80 54 89 VanBlarcom , William J. 3,111 302 355 240 392 Vas, Ardad 1,789 179 215 125 197 Vuococu, Charles J., Jr. 3,253 325 390 228 358 Wade, Mathew 0 Wade, Richard A. 4,333 433 521 325 467 Wall, Bernard S. 2,949 295 354 207 325 Ward , Richard E. 7,719 771 926 567 843 West, Richard J . 5,084 509 609 394 540 West, Robert J. 1,230 121 147 87 136 Whiteaker, Glenn 3,496 350 419 259 378 Whiteaker, Robert J. 4,668 467 560 355 499 Wilbert, Jack M. 4 0 0 0 0 Witkowski, Stanley 13,118 1,312 1,573 982 1,412 Yackwack , Peter 0 Yates, George 5,835 585 699 428 632 Yurick, Richard 1,334 132 158 101 151 Zdunek, Lee 258 27 30 20 27 The total backpay due to the discriminatee claimants shall be paid to the Regional Director for Region 22 and will be held in escrow for a period not exceeding 1 year from the date of this decision. See Starlite Cutting, 280 NLRB 1071 (1986), as amended, 284 NLRB 620 (1987). In the event any or all of the above-named discriminatees appear to collect this backpay, the Respondent will be of- fered an opportunity by the Regional Director to produce evidence and/or examine such discrimina- tees about their interim earnings. Bernard S. Mintz. Esq., for the General Counsel. John J. Mulvihill, Esq. (Nolan, O'Neill & Moore), for the Respondent. John A. Craner, Esq. (Craner & Nelson, P.A.), for the Charging Party. SUPPLEMENTAL DECISION STATEMENT OF THE CASE HOWARD EDELMAN, Administrative Law Judge. This case was tried before me on October 1, 3, and 4, 1984, in Newark, New Jersey. On May 9, 1978, the Board issued its order in the above-captioned case directing Respondent to make whole discriminatees Walter Serafin, Edward Korab, Ronald Cron, Robert Dailey, Daniel Dietz, and all other nonmember applicants who were similarly situated for any loss of earnings they may have suffered by reason of the discrimination practiced against them in the manner set forth in the decision, and described in detail in this Supplemental Decision as set forth below. On May 11, 1979, the United States Court of Appeals for the Third Circuit enforced in full the Board's decision. On May 13, 1982, the Third Circuit denied Respondent's motion for partial relief from the Third Circuit's May 11, 1979 order. On November 12, 1982, pursuant to a second motion filed by Respondent, the Third Circuit modified the Board Order by placing a termination date of De- cember 1982 on the proceedings to obtain backpay. On December 1, 1982, the Third Circuit amended and clari- fied its November 12, 1982 order so that the December 31 termination date would apply only to the Board's en- tering of a formal backpay specification. On December 21, 1982, the Regional Director for Region 22 issued a backpay specification. Thereafter on March 11, 1983, the Regional Director issued an amended specification. On July 27, 1983, the Third Circuit, pursuant to a motion by Respondent, modified the Board's Order to eliminate from the Board's remedial provisions, backpay for "all other non-member applicants who were similarly situat- ed." On May 14, 1984, the Supreme Court of the United States granted the Board's petition for certiorari and re- versed the Third Circuit and remanded the case to that court for proceedings consistent with its opinion. The effect of the Supreme Court's decision was to reinstate the "all other non-member applicants . . . similarly situ- ated" provision of the Board's backpay order. On July 9, 1984, the Third Circuit pursuant to the Supreme Court's remand, remanded the case to the Board for further pro- ceedings. I. RESPONDENT'S ANSWER During the course of this hearing the General Counsel moved to strike significant portions of Respondent's answer on the basis that the answer failed to comply with the Board's Rules. Section 102.54 of the Board's Rules and Regulations, provides in pertinent part: (b) . . . The respondent shall specifically admit, deny, or explain each and every allegation of the specification, unless the respondent is without knowledge, in which case the respondent shall so state, such statement operating as a denial . . . . As to all matters within the knowledge of respondent, including but not limited to the various factors en- tering into the computation of gross backpay, a gen- eral denial shall not suffice. Regarding such matters, IRON WORKERS LOCAL 480 (BUILDING CONTRACTORS) 1331 if the respondent disputes either the accuracy of the figures in the specification or the premises on which they are based, he shall specifically state the basis for his disagreement setting forth in detail his posi- tion concerning applicable premises and furnishing the appropriate supporting figures. (c) . . . If the respondent . . . fails to deny any allegation of the specification in the manner re- quired by subsection (b) of this section, and the fail- ure so to deny is not adequately explained, such al- legation shall be deemed to be admitted to be true On December 21, 1982, Region 22 issued its initial backpay specification. This specification is virtually the same as the pending March 11, 1983 amended specifica- tion, except that the amended specification reflects in some instances lower net backpay calculations as to cer- tain claimants based on newly acquired information. On January 5, 1983, Respondent submitted its answer to the December 21, 1982 specification. On a regional review, it was concluded that Respond- ent's answer substantially failed to comply with the Board's Rules (Sec. 102.54). On January 27, 1983, the Regional Director, Arthur Eisenberg, sent Respondent a four-page letter' setting forth in detail those portions of Respondent's answer that were deemed not to comply with the Board's Rules. Notwithstanding the above letter, Respondent took no steps to amend its answer. On March 11, 1983, the Region issued its amended specification, which as set forth above, was substantially identical to its December 21, 1982 specification. Thereaf- ter, Respondent requested and received two extensions of time to file an answer , the second extension extending the time to July 25, 1983. On July 25, 1983, Respondent served its answer. Not- withstanding the Regional Director's January 27, 1983 letter and the two extensions of time to file an answer, Respondent 's answer to the amended specification was virtually identical to its January :5, 1983 answer. An examination of Respondent 's answer establishes an obvious failure to comply with the Board's Rules (Sec. 102.54), in that Respondent's answer totally fails when necessary to provide alternative formulas and appropri- ate calculations concerning the backpay claimants. Rather, Respondent's answer merely sets forth a few iso- lated examples concerning areas in the specification with which its disputes. When Respondent's attorney was questioned by me during the hearing concerning the General Counsel's motion to strike, his reply was that Respondent had neither the manpower nor funds to set forth appropriate formulas and calculations. Accordingly, the General Counsel's motion to strike Respondent 's answer was granted as to paragraphs IA, B, and C, 3 through 8, and 10 through 12 and Respond- ent's affirmative defenses 4 through 6 and 9. As a result the only issues in dispute concern the interpretation of the Board's gross backpay formula, the number of discri- 1 G.C. Exh. 3 minatee claimants , the date discrimination ended, and in- terim earnings. H. THE GROSS BACKPAY FORMULA The Board in this case adopted the gross backpay for- mula set forth in Iron Workers Local 373 (Building Con- tractors), 232 NLRB 504 (1977), a companion case to the instant case . The gross backpay formula provided in both cases is set forth as follows: The overfall earnings [emphasis added] of all appli- cants , members and nonmembers, seeking employ- ment through its referral system would be divided by the total number of ironworkers who worked out of the hiring hall, taking into account the net earnings of the individual discriminatees during the relevant period and providing for the inclusion of interest, as provided in Florida Steel Corp., 231 NLRB 651; Ironworkers Local 480, 235 NLRB 1511, 1514. The General Counsel contends the "overall earnings" of applicants seeking referral out of Respondent's hiring hall include the total earnings of such applicants from all the five locals including Local 480, comprising the Iron Workers District Council, which has a collective-bar- gaining agreement with the Building Contractors Asso- ciation of New Jersey. Respondent contends the formula utilized by the Board refers to overall earnings secured as a result of referrals out of Respondent Local 480's hiring hall only. The evidence established that the only records in exist- ence that reflect the earnings of applicants obtaining re- ferrals through Respondent's hiring hall are the District Council records. These records reflect the overall earn- ings of applicants from all the five locals comprising the District Council. There are no records maintained by the council or the locals that reflect earnings secured by re- ferrals out of the five local hiring halls. Thus, if the Dis- trict Council's records show that an applicant earned $10,000 in a year, there are no records to establish what percentage of such total income was derived from refer- rals through Respondent's hall. The $10,000 income could have resulted exclusively from referrals through Respondent's hiring hall or any combination of referrals through the five locals comprising the District Council. A careful reading of Judge Ricci's decision, the admin- istrative law judge who wrote the underlying decision and recommended remedy that was adopted by the Board in Iron Workers Local 373, supra, and in the in- stant case , establishes that it is the overall earnings re- flected by the District Council records that he was refer- ring to when he set forth his recommended remedy. Thus on page 519 of Judge Ricci's decision, in a sample calculation of the overall wages of a member of Local 373 compared with a nonmember applicant obtaining re- ferrals from Local 373's hiring hall, he used the District Council records to make such calculations. Nowhere in his decision , or in the Board's decision in Iron Workers Local 373, or in the instant case does the Board refer to earnings secured solely as a result of referrals from Re- spondent 's hiring hall when discussing the gross backpay 1332 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD formula to be utilized. If the Board intended the gross backpay to be calculated solely from earnings secured as a result of referrals from Respondent's hiring hall such intention could have, and in my opinion would have been so stated by the Board. In any event, Respondent, notwithstanding its contention, has not produced such records or provided the necessary calculations to support such contention. Accordingly, I reject Respondent's contention and I conclude that the "overall earnings" intended by the Board in its remedy refer to the earnings reflected by the District Council. Accordingly, the Board's backpay formula was cor- rectly applied in the following manner. By examining the District Council's records, the gross backpay for each member using Respondent's hiring hall during the years 1976 through 1978 was listed on an annual earnings basis. These tabulations are set forth in Appendix B of the specification . In the same manner, similar calculations were obtained for nonmember applicants, whether they were discriminatees or not, using Respondent's hiring hall during the same period. These tabulations are set forth in Appendix C of the specification.2 Then for the years 1976 through 1978 the total earnings of the mem- bers and nonmembers utilizing Respondent's hiring hall were added together, and a separate total earnings for members and nonmembers for each year was obtained. These totals were then divided by the total number of members and nonmembers utilizing Respondent's hiring hall each year and a gross backpay per applicant was calculated. These calculations are set forth in Appendix D of the specification. The gross backpay per applicant per year figure was then divided by four and quarterly gross backpay figures were obtained for the years 1976 through 1978. The 10(b) period began on July 12, 1976, and therefore gross backpay was due only after this date. Accordingly, the gross backpay figure for the third quar- ter of 1976 was prorated. Thereafter, using Appendix A that sets forth the quarters each backpay claimant is enti- tled to, a new appendix, Appendix E, was prepared for each claimant. This appendix sets forth the gross back- pay on a quarterly basis the claimant is entitled to. From this amount is subtracted the claimant's earnings as re- flected in the District Council's records, and set forth in Appendix C of the specification. This figure as set forth in Appendix E, represents the claimant's adjusted gross backpay for the quarter. From this figure is subtracted any known interim earnings from other sources per quar- ter that equals the net quarterly backpay due. To the net quarterly backpay due, each claimant was added appro- priate quarterly vacation, annuity, welfare, and pension contributions required by the collective-bargaining agree- ment and provided for in the Board's Order. This pro- vides the total quarterly sum due per each applicant ex- cluding interest. The quarterly totals are then added that 2 In Appendices B and C the symbol "no reg" appearing next to an applicant 's name means the applicant did not utilize Respondent 's hiring hall that year Therefore, his overall earnings for that year were not listed . Similarly, the symbol "appr" appearing next to an applicant's name was used to designate an apprentice worker who is covered by different hiring rules . The earnings of applicants who registered as apprentices were also not listed provide the grand total sum due per applicant excluding interest . Appendix E of the specification sets forth a sep- arate page reflecting these calculations for each backpay claimant. III. IDENTIFICATION OF OTHER DISCRIMINATEES SIMILARLY SITUATED AND PERIODS OF DISCRIMINATION In addition to five individuals who filed charges against Respondent, the backpay specification alleged 130 other discriminatee claimants who were "similarly situated" as described in the Board remedy. The following is an explanation setting forth how the claimants were determined and the manner in which the periods of discrimination of all claimants were calculat- ed. Respondent's referral registers were examined through a computer. The computer was instructed to look at each referral of a nonmember of Respondent in Respond- ent's referral registers for the entire backpay period, and then to search these registers for each referral of a member of Respondent who signed the register after a nonmember . This search resulted in a list of names con- siderably more than the 135 claimants set forth in the specification. This printout list was then manually exam- ined against Respondent's referral registers and only those nonmembers who were passed over by a member who was referred as a "steward" were listed. This list re- sulted in the named 135 discriminatee claimants listed in the specification. It had been determined by the Board in the instant case and in Iron Workers Local 373, supra, that the mem- bers of the District Council, of which Respondent is a member, had consistently discriminated against non- members by referring members who had signed the local referral register after a nonmember over such non- member, using the "steward" designation in their regis- ters as a justification for such passover. Based on such Board analysis , the Region in preparing its specification concluded that each time a nonmember was passed over by a member who was designated as a "steward" in Re- spondent register, an incident of discrimination occurred. Accordingly, the 135 names set forth in the list described in the paragraph above were set forth in the specification as discriminatee claimants.3 It was determined by the Region, and set forth in the specification that the backpay period for each claimant started on the first date within the 10(b) period, where Respondent's registers indicated that such nonmember applicant had been passed over by a member applicant designated as a "steward." Thereafter, such discriminatee claimant was entitled to backpay on a continuing basis, but only for those calendar quarters wherein Respond- ent's registers indicated that at least one instance of dis- crimination, as described above, had taken place. In ac- cordance with established Board procedure, backpay cal- culations were computed on a calendar quarterly basis. 2 G C Exhs 5 through 12 are copies of Respondent's registers for the period of April 6, 1976, through January 2, 1979. IRON WORKERS LOCAL 480 (BUILDING CONTRACTORS) 1333 In reviewing Respondent's registers, in those quarters when the registers indicate that the nonmember was not passed over, he was not entitled to any backpay. A review of Appendix A of the specification is helpful in understanding the backpay periods for which discrimina- tee claimants are entitled to backpay. Appendix A sets forth the names of the 135 claimants in the extreme left- hand column. In the next column, the claimants starting backpay date is set forth. The subsequent columns desig- nate the calendar quarters from the third quarter in 1976 through the fourth quarter in 1978, when it was deter- mined that further discrimination had ended. An "X" was placed in the appropriate calendar quarters opposite the claimants name when an examination of Respondent's registers established a discriminatory passover had taken place in the manner described above. An "0" was placed in the appropriate calendar quarter opposite the claimants name when an examination of Respondent's registers had established no discriminatory passovers had taken place within the quarter. However, in the first quarter in which discrimination took place, such discrim- ination was pinpointed by subtracting the date discrimi- nation actually took place from the end of that calendar quarter and crediting the claimant for backpay entitle- ment with such number of days." Once backpay started to run, the claimant was given full quarter credit for each subsequent quarter in which at least one instance of a discriminatory passover took place. Respondent contends that it is unfair to credit a claim- ant with a full quarter where, for example, a single in- stance of a discriminatory passover took place near the end of the quarter. However, Compliance! Officer Burke testified the reason the claimant was given full quarter credit was there were no records to establish why the claimant had not registered at the beginning of the quar- ter-i.e., he might have been working on some job he was referred to by another local in the District Council. In any event, any apparent unfairness was compensated by deducting his earnings in that quarter as reflected by the District Council records or other interim earnings earned in that calendar quarter from that gross calendar quarter backpay. It was determined that the backpay period for all dis- criminatees ended on December 31, 1978. This determi- nation was based on a review of Respondent's referral registers that indicated a negligible number of "steward" referrals after this date, and as to such few "steward" re- ferrals that did occur there did not appear to be a pattern that would indicate further discrirnination.5 IV. RESPONDENT'S CONTENTIONS Respondent contends that any discrimination by Re- spondent in referring members over nonmembers by des- ignating such preferred members as "stewards" ceased at least as early as the first quarter in 1978. Respondent * For purposes of these and all other backpay calculations, calendar quarters have 90 days with 30-day months. 5 An analysis of the General Counsel's review of Respondent's referral registers in connection with establishing the entire penod over which it is alleged discrimination took place is set forth in detail in G C Exh 148 and Compliance Officer Burke's testimony on pp 124-130 of the trial record. bases its contention primarily on a statistical analysis that establishes that at the time of the underlying unfair labor practice trial the ratio of members referred as "stewards" to nonmembers so referred was about 5 to 1. Respondent contends that by the end of the first quarter in 1978 this' ratio had dropped to 2 to 1; in the second quarter the ratio remained at 2 to 1; in the third quarter the ratio climbed to 3 to 1; and in the fourth quarter the ratio was about 1 to 1.6 Respondent further contends that the dis- proportionate ratio in favor of member "stewards" desig- nations is explained through the testimony of Francis Amy, Respondent' s business agent who testified that members are generally more qualified to act as "stew- ards" than nonmembers for a variety of reasons. He thereafter went through the list of 135 discriminatees and testified why in his opinion he felt that most of them were unqualified to be appointed to a steward position. I find the subjective and unsubstantiated testimony of Amy most unreliable and unpersuasive. As the counsel for the General Counsel correctly points out in his bnef,7 the Board did not predicate its finding that Respondent discriminated against non- members by a statistical analysis. Rather, the Board merely used such analysis that showed a 5-to-1 ratio of members referred as "stewards" over nonmembers so re- ferred, to conclude that Respondent was using the "steward" designation as a pretext and a means to prefer members over nonmembers. Thus the "steward" designa- tion was merely a code word for discrimination. Even reviewing Respondent's statistical analysis for 1978 with the exception of the last quarter, the discrimination ratio varied from 3 to 1 to 2 to 1. The most that can be said for such analysis is that it showed that the instances of discrimination had decreased somewhat since the trial, although as late as the third quarter in 1978 the ratio was as high as 3 to 1. Although the records show the ratio during the fourth quarter of 1978 were 1 to 1, it could be fairly presumed in view of Respondent's past practices, that many of these referrals were discriminatory. Com- pliance Officer Burke testified that an examination of Re- spondent's referral registers established that there were very few referrals with the designation "steward" noted in Respondent's registers after December 31, 1978, and regarding those few listed there did not appear to be a discriminatory pattern. Such analysis would appear to be consistent with the Board opinion that the "steward" designation applied to the referral of a member over a nonmember was merely a means to achieve an unlawful preference. Accordingly, I reject Respondent's contention and conclude that the discriminatory period ended on De- cember 31, 1978. Respondent contends that the Board is required to gather interim earnings as part of its burden in connec- tion with the backpay specification. The General Coun- sel attempted to contact all 135 discriminatee claimants 6 Respondent 's calculations are set forth in his brief on pp 5-7. Re- spondent's figures and calculations appear to be accurate although some of his figures are slightly different from those supplied by the General Counsel in G C Exh 148. 7GCBr9 r 1334 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and obtained interim earnings, excluding those earnings reflected in the District Council's records, from 7 of these claimants. The General Counsel did supply Re- spondent with the last known addresses of all claimants. Respondent contends that in view of the General Coun- sel's failure to obtain such interim earnings or to produce the claimants at the backpay hearing, their claims should be dismissed. The General Counsel contends it is Re- spondent's burden to establish interim earnings and that it has no duty to produce the backpay claimants for ex- amination by Respondent concerning the issue of interim earnings. The Board has held that although the General Counsel has customarily, as part of its backpay investigation, pro- vided the employer in its specification with the interim earnings of the claimants, the General Counsel is not le- gally required to do so. It is Respondent's burden to obtain interim earning figures and to prove the net back- pay is less than the gross backpay alleged in the specifi- cation. Flite Chief, 258 NLRB 1124, 1127 (1981); NLRB v. Brown & Root, 311 F.2d 447 (8th Cir. 1963). The Board has also held that it is under no duty to produce the discriminatee claimants for examination by Respond- ent about interim earnings. Steve Aloi Ford, 190 NLRB 661 (1971); Brown & Root, supra; Florence Printing Co., 376 F.2d 216 (4th Cir. 1967), cert. denied 389 U.S. 840 (1967); Mooney Aircraft, 366 F.2d 809 (5th Cir. 1966).8 Accordingly, based on the above-cited and well-settled authority, I reject Respondent's contentions. Respondent contends that various backpay claimants are not entitled to backpay, or that their backpay should be substantially reduced because of their unavailability for work. In this connection, Respondent contends that its referral registers reflect absences for claimants who were called for referral but were not present when called.9 The burden is on Respondent to establish facts that would mitigate liability. NLRB v. Brown & Root, 311 F.2d at 454. Any uncertainties or ambiguities should be resolved against Respondent. United Aircraft Corp., 204 NLRB 1068 (1973); J. H. Rutter-Rex Mfg. Co., 194 NLRB 19 (1971); NLRB v. Miami Coca Cola Bottling Co., 360 F.2d 569 (5th Cir. 1966). Although there is no dispute about the accuracy of Respondent's referral reg- isters, i Â° such registers reflect only those instances when a claimant was called by Respondent and was unavail- able and therefore marked absent. There are no records reflecting these claimants availability at a time when they would have been referred had there been no discrimina- tion. Business Agent Arny admits the absence of such records. It is this referral time that would fairly reflect unavailability. Respondent can hardly expect applicants to sit idly by in its hiring hall while they blatantly dis- criminate against them and then profit by their unavail- ability when Respondent finally got around to referring them. Moreover, such unavailability undoubtedly reflects substantial absences due to the fact that the applicant 8 Mastro Plastics, 354 F.2d 170 (2d Cir. 1967), placed the requirement of producing claimants for examination by the employer concerning the issue of interim earnings on Board 8 See Respondent's analysis of its referral registers attached to its brief 10 G C Exhs 5-12 was working, in many cases probably through referrals from other locals in the District Council, or through out- side employment. Therefore, Respondent would not be penalized as such unavailability would be reflected in the applicant's earnings as reflected by the District Council, or in other interim earnings, all of which would be de- ducted from the claimant's gross backpay. Accordingly, I find Respondent's contention without merit. Respondent contends that it obtained affidavits from 66 of the 135 discriminatee claimants indicating that they did not wish to participate in backpay proceedings against Respondent and waiving their claim to backpay and made an offer to prove this at the instant hearing. Such offer of proof was rejected. The Board was not a party to any purported waiver by backpay claimants, as described above. To the extent that the affidavits offer are construed as a private settle- ment between Respondent and the claimants, it is well established that "an individual may not waive, bargain away or compromise any backpay which might be due him since it is not a private right which attaches to the discriminatee , but is, indeed, a public right which only the Board or the Regional Director may settle." Michael M. Schaeffer, 261 NLRB 272, 273 (1982). Further, the circumstances under which the purported waivers were obtained by Respondent are strongly sus- pect. It is highly doubtful that claimants who are entitled to substantial backpay would voluntarily waive such payment. The simple answer is that they can refuse pay- ment when such is tendered by Respondent. There will undoubtedly be a substantial period of time between the date they executed such affidavit and the date the money is to be paid to them. They may well have a change of mind. Respondent further contends on this same issue, that since these 66 claimants did not file charges, but are part of those claimants "similarly situated" the waiver rules described above are not applicable. The Supreme Court, as set forth above, concluded the "similarly situated" aspect of the Board's remedy was appropriate in this case . I therefore conclude that all claimants have equal rights under the Board's remedy and the Board's waiver principals set forth above, are as applicable to them as to those five claimants who filed charges. I therefore reject Respondent's contention. Respondent further contends the inclusion of the "similarly situated" provision in the Board's Order is pu- nitive and does not effectuate the policies of the Act. The Supreme Court in reversing the Third Circuit set forth: It is not entirely clear that the order of the Court of Appeals was premised simply upon the Board's delay. The test of the order only hints at the court's reasoning . Respondent had argued before the Court of Appeals that the Board's long delay further dem- onstrated the impossibility of identifying the em- ployees who had been subject to discrimination and of performing the calculations required by the Board's backpay formula. Respondent also had con- tended that the Board's specification of December IRON WORKERS LOCAL 480 (BUILDING CONTRACTORS) 1335 21, 1982, showed that the Board's order was "puni- tive" and "confiscatory." App. to Pet. for Cert. 63a. We do not consider whether the Court of Appeals on these grounds may modify its original judgment enforcing the Board's order. Nor do we foreclose challenges that might be raised to the conduct or outcome of the supplemental backpay proceedings. Respondent submitted no evidence to support its con- tention that the Board's remedy was "punitive" or "con- fiscatory." The Board's remedy is an attempt to make whole, and no more, those discriminatees who specifical- ly filed charges, and those discriminatees who are "simi- larly situated" and have suffered great monetary loss as a result of Respondent's flagrant and widespread discrimi- natory hiring hall practices. Contrary to Respondent's contention , anything less, would not effectuate the poli- cies of the Act. [Recommended Order omitted from publication.]