Laborers Local 135 (Bechtel Power Corp.)

National Labor Relations Board - Board Decisions

Feb 28, 1991

301 N.L.R.B. 1066 (N.L.R.B. 1991)

1066
301 NLRB No. 135
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 At the Respondent’s request, we have deleted from the caption Case 4–
CB–4260, which was consolidated with the captioned cases but which is unre-
lated to this backpay proceeding.
2 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence 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 ex-
amined the record and find no basis for reversing the findings.
We do not rely on the judge’s statement in fn. 7 of his decision, that the
facts in this case are ‘‘substantially undisputed.’’ We correct the first sentence
in par. 3 of part III,C,2 of the judge’s decision to end with ‘‘November [not
March 29] 1983.’’ We also note that the correct citation to Waco, Inc., (see
the judge’s fn. 6) is 273 NLRB 746 (not 714) (1984).
3 271 NLRB 777 (1984), enfd. mem. 782 F.2d 1030 (3d Cir. 1986).
4 Wilson Bradley, Andrew Huggins, Randy Huggins, George Scott, Roy
Poorman, Harold Coates, Rita McMillan, and Fred Gray.
5 271 NLRB at 781.
6 Because the referral was only for a 2-day job, Poorman’s name should
have remained on the referral register, from which he could have been referred
again at the end of his job.
7 Id. at 782.
8 Id. at 781–782.
9 See also George Scott (out-of-order referrals after November 24, 1981, un-
lawful), and Fred Gray and Rita McMillan (out-of-turn referrals since March
5, 1982, violative). 271 NLRB at 781–782.
10 271 NLRB at 783 (emphasis added).
Laborers Local No. 135 (Bechtel Power Corpora-
tion and General Building Contractors Associa-
tion) and Andrew Huggins and Judith B.
Chomsky. Cases 4–CB–4204 and 4–CB–4256
February 28, 1991
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On October 20, 1988, Administrative Law Judge
Norman Zankel issued the attached supplemental deci-
sion. The General Counsel and the Respondent1 filed
exceptions and supporting briefs. The Respondent filed
a brief in opposition to the General Counsel’s excep-
tions, and the General Counsel and the Charging Par-
ties filed briefs in opposition to the Respondent’s ex-
ceptions.
The National Labor Relations Board has delegated
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 de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions to the extent consistent with this Supplemental
Decision and Order, and to remand the case to the Re-
gional Director for the preparation of an amended
backpay specification in accordance with our findings
below.
I.
A.
This backpay proceeding was engendered by the
Board’s earlier decision,3 in which the Board found
that the Respondent, Laborers Local 135, had repeat-
edly discriminated against eight individuals,4 in viola-
tion of Section 8(b)(1)(A) and (2), by failing and re-
fusing to refer them in proper order from its hiring and
referral hall. The Board found that ‘‘literally hundreds,
if not thousands, of discriminatory referrals took
place’’ between late 1980 and the date of the hearing
in mid-1982. However, the Board did not identify any
specific out-of-order referrals that had taken place dur-
ing the relevant period; instead, it simply found that all
out-of-turn referrals during that period were unlawful.
The number of individuals unlawfully preferred, their
dates of employment and rates of pay, and other re-
lated matters were left to be determined at compliance.
The Board’s decision contained several provisions
that have significance for the computation of the
discriminatees’ backpay. First, the Board delineated for
each individual the period(s) of time during which any
out-of-order referral would be deemed unlawful. In the
case of Wilson Bradley, for example, the Board found
that he had registered for referral in June or July 1980
and on three occasions in 1981, but was not referred
until August 21, 1981. (Bradley did not reregister after
his August referral.) Accordingly, any out-of-order re-
ferrals between December 5, 1980 (the beginning of
the 10(b) period), and August 21, 1981, were deemed
unlawful.5 By contrast, Roy Poorman was found to
have registered on March 5, 1980, and June 23, 1981,
received a referral on July 13, 1981, to a 2-day job,
was improperly stricken from the register,6 and was
not referred again. All out-of-order referrals between
December 5, 1980, and July 13, 1981, and since July
16, 1981, were deemed unlawful.7 Similarly, Harold
Coates registered in December 1980 or January 1981
and was referred on June 17, 1981; he reregistered on
July 6, 1981, and was referred on July 13; he rereg-
istered again on November 24, 1981, and February 10,
1982, and was referred at some time in February 1982.
All out-of-turn referrals between at least January 31
and June 17, 1981, between July 6 and 13, 1981, and
between November 24, 1981, and at least February 10,
1982, were unlawful.8 Thus, for at least some of the
discriminatees, the underlying decision obviously con-
templated that additional unlawful referrals could be
found since, or after, certain specified dates,9 including
future dates not even covered by the unfair labor prac-
tice proceeding. In addition, the mere fact that a
discriminatee had received a referral (for example,
Coates) did not preclude the finding of additional acts
of discrimination at later times after he or she had re-
registered.
Second, the Board imposed a remedy requiring the
Respondent to make each discriminatee whole ‘‘from
the date of the discrimination until the time the Re-
spondent Union ceases its unlawful conduct by prop-
erly referring him or her to employment . . . .’’10
1067LABORERS LOCAL 135 (BECHTEL POWER CORP.)
11 Id. at 784.
12 Ibid.
13 See part III,C,4 of the judge’s decision.
14 It appears from the record that Curley was reviewing the records of the
Respondent’s hiring hall operations since the unfair labor practice hearings.
15 Curley’s methodology is discussed in detail in part IV,C,1 of the judge’s
decision. Included in that discussion are Curley’s reasons for rejecting alter-
native formulas. We shall consider those matters shortly.
16 Bradley received a referral on August 21, 1981. Randy Huggins received
no referral during the 10(b) period, but was stricken from the register on May
19, 1981, because he was working. Neither re-signed the referral book there-
after. The General Counsel does not seek backpay for Bradley after August
21, 1981, or for Huggins after May 19, 1981.
17 In the case of Andrew Huggins, the specification claims backpay on an
open-ended basis, even though the Board’s Order refers to unlawful referrals
only between December 5, 1980, and April 9, 1981. Curley testified that he
revised the specification, which originally had claimed backpay only for that
period, in response to Huggins’ complaints to him that the Respondent was
still discriminating against him, and in light of what Curley had learned about
the way the Respondent was operating its hiring hall and keeping its records.
Three things are clear from that requirement. First,
backpay would accrue only from the date discrimina-
tion against each individual was shown to have com-
menced. Second, the Board contemplated make-whole
relief until the Respondent ‘‘ceases’’ to discriminate,
whenever that event might occur; if the discrimination
was found to have continued past the date of the
Board’s decision, so be it—backpay would continue to
accumulate into the future. Third, relief would be af-
forded not simply until the discriminatees were re-
ferred, but until they were referred in the proper order.
Finally, the Board’s July 31, 1984 Order required
the Respondent to ‘‘[k]eep and retain . . . permanent
written records of its hiring and referral operations that
will be adequate to disclose fully the basis on which
each referral is made . . . .’’11 It also required the Re-
spondent—as had the administrative law judge in his
December 6, 1982 decision—to ‘‘[p]reserve. . . all
records, reports, work lists, and all other documents
necessary to analyze the amount of backpay due
. . . .’’12 Thus, by December 6, 1982, and certainly
by July 31, 1984, the Respondent was on notice that
it was required to maintain records of its hiring hall
operations that would enable the Board to calculate the
amounts of backpay due the discriminatees.
B.
The backpay specification was compiled by Compli-
ance Officer James Curley. Curley began his investiga-
tion in late 1984. As the judge discussed in detail,13
Curley’s review of the Respondent’s hiring hall
records convinced him that it was impossible to dis-
cern from those records whether referrals had been
made in or out of proper order or, indeed, whether re-
ferrals had been made at all.14 The referral book con-
sisted simply of a list of names, some of which had
been crossed out, usually at unspecified times and for
unstated reasons. Daily referral sheets showing the
names of laborers who had received referrals, along
with the dates of the referrals, the names of requesting
contractors, and specific skills requested (if any) were
no longer being kept by the Respondent.
Having determined that it was impossible to recon-
struct a record of out-of-order referrals from the Re-
spondent’s hiring hall records, Curley chose to use the
‘‘representative employee’’ approach to compute the
discriminatees’ backpay. That is, he extracted a ran-
dom sample of 49 laborers from the Respondent’s
membership list, computed the average hours worked
by the laborers in the sample during each quarter of
the backpay period, and assumed that, but for the Re-
spondent’s discrimination, each of the discriminatees
would have worked the same number of hours in each
quarter as the sample average.15 He then used the pro-
jected hours worked as the basis for computing gross
backpay for each claimant.
For all but two of the discriminatees, Bradley and
Randy Huggins, Curley concluded that the backpay pe-
riod should extend past the end of the periods for
which discrimination had been found in the underlying
unfair labor practice case.16 He based that conclusion
on the provisions of the Board’s Order, summarized in
part I, above, that the Respondent should make the
discriminatees whole ‘‘until it ceases its unlawful con-
duct,’’ even though some of the discriminatees had re-
ceived referrals.17 However, the specification does not
claim backpay for McMillan after late 1984, when she
left the area to go to college, or for Poorman and Scott
after early 1986, when they were referred to jobs at
Bechtel, which they still occupied at the time of the
backpay hearing.
C.
In the main, the judge approved the General Coun-
sel’s approach to establishing the Respondent’s back-
pay liability. Specifically, he agreed that it was proper
to extend the backpay period past the end of the hear-
ing in the unfair labor practice case for all the
discriminatees except Bradley and Randy Huggins. On
the basis of his review of the Respondent’s hiring hall
records, he agreed with Curley that those records,
standing alone, did not reveal whether the Respondent
had ceased its discriminatory conduct and had referred
the discriminatees in the proper order. He further en-
dorsed the ‘‘representative employee’’ approach that
Curley had used to estimate the amounts the
discriminatees would have worked during the backpay
period, in the absence of discrimination. And he grant-
ed the General Counsel’s request (made after the hear-
ing) that the backpay periods be kept open until the
Board issued its Supplemental Decision and Order in
this case.
The judge bolstered his finding that it was proper to
extend the backpay period past 1982 by examining evi-
dence concerning payments made into the industry’s
health and welfare fund at various dates in 1983 and
1068 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
18 See part III,C,2 of the judge’s decision.
19 The Respondent argues, inter alia, that it was prejudiced by the participa-
tion in this case of Compliance Officer Curley, who it contends was biased
against it. As evidence of that alleged bias, the Respondent cites Curley’s testi-
mony that his brother-in-law, who is a member of the Respondent and who
has signed the referral register, has never received a referral. The Respondent
also relies on Curley’s allegedly slipshod investigation of the backpay claim
of Stephen Michael Deitz, which was withdrawn by the General Counsel dur-
ing the hearing. We find no merit in the Respondent’s contentions.
In the first place, we detect no bias against the Respondent on the part of
Curley. Although Curley did testify that his brother-in-law had not received
a referral, he also testified that his brother-in-law got jobs on his own, worked
regularly in the industry, and had not complained to Curley about being by-
passed. In these circumstances, it would be as logical to infer bias on Curley’s
part in favor of the Respondent as against it. (Even the Respondent’s counsel
conceded at the hearing that Curley’s brother-in-law might want to minimize
the Respondent’s backpay liability.) Curley’s characterization of the Respond-
ent’s hiring hall records as virtually useless was seconded by the Respondent’s
own expert witness (see fn. 20, below), and is borne out by our independent
examination of the documents. And although we find, for reasons set forth
below, that the backpay model used by Curley did not yield the most accurate
estimate of the discriminatees’ actual losses, that model had a reasonable basis
in settled Board law. Finally, even if Curley’s investigation of the Deitz claim
left much to be desired, as the Respondent contends, we would not infer bias
on Curley’s part from that fact alone.
Moreover, even if Curley actually had been biased against the Respondent
and had allowed his bias to influence his investigation of the other backpay
claims and his selection of a model for the backpay specification, the Re-
spondent still would not be prejudiced, because we will not uphold the speci-
fication unless we find that the model on which it is based and the amounts
of backpay awarded are justified by all the record evidence. Cf. Redway Car-
riers, 274 NLRB 1359, 1371 (1985) (‘‘[T]he adequacy of the preliminary in-
vestigation is administratively tested, not by an investigation of the investiga-
tion, but by the General Counsel’s ability in an open hearing to demonstrate
by a preponderance of the credible evidence that the respondent has engaged
in the unfair labor practices alleged in the complaint.’’) In analyzing the posi-
tions of the parties in this regard, we are not required to consider the issue
of Curley’s credibility, because we rest our findings entirely on documentary
evidence and the testimony of other witnesses. And, as we shall make clear,
when we find that the backpay specification makes claims that are not sup-
ported by the record, those claims will be modified or eliminated.
20 Professor Ezra Krendel, testifying for the Respondent, stated that he had
reviewed the Respondent’s hiring hall records and found them to be ‘‘chaotic
. . . a totally disorganized mess’’ and ‘‘such a poorly kept record that I
couldn’t see how it could be used for any physical evidence of activity on
the part of the union or not on the part of the union.’’
21 Many names are marked out without dates or explanations. When asked
the significance of a registrant’s name having been crossed out with no date,
the Respondent’s secretary-treasurer, John Weaver, testified, ‘‘Gentlemen can
be working and not obtain the job through the hall.’’ This testimony is
unhelpful for at least two reasons. First, some crossed-out names are accom-
panied by the notation ‘‘WK’’ and dates; Weaver testified that those notations
mean that the individuals were marked out on those dates because they were
working. That other marked-out names do not bear similar notations casts
doubt on any implication by Weaver that all marked-out names were of indi-
viduals who had obtained jobs on their own. (This instance is only one of
many in which Weaver’s attempts to explain the workings of the Respondent’s
hiring hall were confusing, contradictory, or wholly inadequate.) Second, even
if all such individuals had obtained jobs without going through the hiring hall,
the absence of dates by their names makes it impossible to tell how long they
were registered for referrals before they were crossed out, and thus whether
they were passed over for referrals before they began working.
22 See part II,A, below.
23 In fact, those forms were in use at least until December 29, 1981.
24 The Respondent used forms containing similar information between No-
vember 1984 and May 1985, but then stopped. Since August 1, 1986, the Re-
spondent’s referral register contains notations of occasions on which applicants
were called and referred.
1984 on behalf of some of the laborers in the General
Counsel’s sample. By comparing the dates for which
the payments were made, the judge was able to esti-
mate the times those laborers obtained work in the in-
dustry. If one of those individuals either was not on
the register, or had signed after one or more of the
discriminatees, but went to work before the
discriminatees, the judge found an ‘‘apparent’’ out-of-
order referral. In fact, he found numerous such ‘‘appar-
ent’’ discriminatory referrals.18 However, he specifi-
cally stated that he was not making independent new
findings that the Respondent had engaged in unlawful
conduct during the backpay period.
D.
The General Counsel has excepted to the judge’s
findings of ‘‘apparent’’ bypassing of the discriminatees
during the backpay period, and to his failure to find
that out-of-order referrals actually were made. The
General Counsel further excepts to the judge’s refusal
to make independent new findings that the Respondent
continued to engage in unlawful conduct during the
backpay period. The Respondent excepts to the judge’s
decision on numerous grounds, the most substantial of
which are discussed in part II of this decision.19
II.
At the outset, we observe that many of the difficul-
ties presented by this case are the direct result of the
Respondent’s failure to keep records that would enable
the Board to determine when, or even if, discrimina-
tory referrals were made during the backpay period.
We have reviewed the Respondent’s records, and we
agree with Compliance Officer Curley, the judge, and
even the Respondent’s own expert witness20 that those
records, by themselves, do not establish whether refer-
rals were made at all during extensive periods of time,
let alone whether they were made in the proper order.
The Respondent’s records are, in the main, a vast,
trackless waste consisting primarily of page after page
of names with no indication whatsoever as to whether
any of the individuals on the list received referrals, or
when those referrals were made.21 In many instances,
it is impossible to tell even when the individuals reg-
istered for referral (though the records do at least es-
tablish the order in which they registered).
It was not always thus. Prior to the hearing in the
unfair labor practice case, the Respondent kept records
showing which individuals were referred, their dates of
referral, and the contractors for whom they went to
work. Some 1800 of those referral sheets were re-
ceived in evidence in the underlying case; they estab-
lish that, in fact, the discriminatees were bypassed fre-
quently in favor of other registrants who had signed
the referral book after the discriminatees.22 However,
John Weaver, the Respondent’s secretary-treasurer, tes-
tified that the Respondent ceased to use those forms in
‘‘approximately 1981’’23 because they ‘‘actually had
no use in the office.’’24
As we have noted, the Respondent was on notice
after December 6, 1982 (the date of the judge’s deci-
1069LABORERS LOCAL 135 (BECHTEL POWER CORP.)
25 See, for example, United Aircraft Corp., 204 NLRB 1068 (1973); NLRB
v. Miami Coca-Cola Bottling Co., 360 F.2d 569, 573 (5th Cir. 1966).
26 In this regard, we find merit in the Respondent’s exception to the judge’s
statement in part III,A of his decision that the Board found that the Respond-
ent discriminated against the discriminatees during the time periods set forth
in the Board’s decision. In fact, the Board found that the Respondent had re-
peatedly discriminated against the named individuals, but found only that ‘‘all
out-of-turn job referrals within the 10(b) period were unlawful.’’ 271 NLRB
at 781. Thus, the Board did not find that anyone had been discriminated
against in any specific time period, but instead found simply that, if any other
individual had bypassed any of the discriminatees during the applicable peri-
ods, that bypass was unlawful. The clear implication was that the General
Counsel still had to demonstrate specific acts of discrimination against each
discriminatee in order to establish a predicate for a backpay award for that
individual.
There is no merit, however, in the Respondent’s contention that an out-of-
turn referral cannot be found unlawful unless the reason for the bypass can
be shown. The Board, as we have noted, found that all out-of-order referrals
during the relevant period were unlawful. Ibid.
27 The Respondent is not prejudiced by our consideration of the exhibits in
the unfair labor practice case. Those exhibits are part of the record in this pro-
ceeding, and we may take administrative notice of them if the occasion war-
rants. McDonnell Douglas Corp., 270 NLRB 1204 fn. 1 (1984).
28 McMillan had been terminated for cause by Bechtel, and was ineligible
to return to work there. However, except for Gilliam’s referral, for which no
contractor’s name appears, all the individuals who bypassed McMillan were
referred to jobs with contractors other than Bechtel. In the absence of evidence
that Gilliam’s referral was to Bechtel, we decline to find that it was.
sion in the unfair labor practice case), that it was re-
quired to retain records that would enable the Board to
compute the amount of backpay due. And, as we have
also observed, the Board’s Order of July 31, 1984, ex-
plicitly required the Respondent to keep written
records that would disclose the basis on which each re-
ferral was made. We find the Respondent’s continued
failure to keep adequate records especially disturbing
under these circumstances. That failure inevitably has
engendered considerable uncertainty concerning both
the Respondent’s actual treatment of the discriminatees
during much of the backpay period and the extent of
its backpay liability. Under well-settled law, the Re-
spondent—the wrongdoer—must bear the burden of
the uncertainty it has created, and we therefore shall
construe the record in favor of the discriminatees
whenever such ambiguity exists.25
A.
The Respondent contends that the General Counsel
has failed to show any specific instances of out-of-turn
referrals during the period covered by the unfair labor
practice proceedings, and that the judge therefore erred
in finding any backpay liability for that period. We re-
ject that contention. Although the General Counsel in-
troduced no evidence concerning out-of-order referrals
that took place between late 1980 and mid-1982,26 we
find that backpay is due for that period, because we
have reviewed the documentary evidence introduced in
the unfair labor practice case and have found numerous
instances in which out-of-turn referrals were made.27
1. Rita McMillan. McMillan signed the referral book
on April 24, 1981, and was called for referral on June
24. On May 20, 1981, Silas Clark and C. J. Burrell,
both of whom had signed after McMillan, received re-
ferrals. McMillan registered again on August 5, 1981,
and was referred on August 26. On August 7, 1981,
Richard Jordan and Robert Brown, each of whom had
signed after McMillan, received referrals. McMillan re-
registered on October 13, 1981, and was referred on
November 19. Bernard Thompson, who had signed
after McMillan, was given a referral effective October
16. McMillan signed again on March 5, 1982, and was
not referred. Notations in the Respondent’s hiring hall
book indicate that Luther Gilliam signed and was re-
ferred on March 16, 1982. We find that McMillan was
unlawfully bypassed on May 20, on August 7, and on
October 16, 1981, and on March 16, 1982.28
2. Randy Huggins. Huggins signed the referral reg-
ister on February 27, 1981, and did not receive a refer-
ral. E. Campos and F. Fuentes, both of whom signed
after Huggins, were referred to Bechtel on March 9.
Tommy Johnson and Joe Allen, both of whom signed
after Huggins, received referrals on April 27. We find
that Randy Huggins was unlawfully bypassed on
March 9 and April 27, 1981.
3. Wilson Bradley. Bradley signed the referral book
on February 27, 1981, and was referred on August 21.
William Dunstan, James Lessen, and Lee Joyner, all of
whom signed the book after Bradley, received referrals
on March 18. John Anderson signed the book on
March 27 and was referred to Bechtel on April 7. Rob-
ert Trogdon Jr., who signed after Bradley, received a
referral on July 23. We find that Bradley was unlaw-
fully bypassed on March 18, April 7, and July 23,
1981.
4. Harold Coates. Coates signed the register in De-
cember 1980 or January 1981. Kenneth Council, who
signed in February 1981, was referred to Bechtel on
March 2. Richard Jordan, who signed after Coates, was
referred on April 27. Coates signed again on July 6,
1981, and was referred on July 13. Jimmie Harrison
signed after Coates and received a referral on July 9.
Coates signed once more on November 24, 1981, and
was not referred. Raymond Brinkley and Charles Sum-
mers signed the book after Coates and were referred
on December 29 and 23, respectively. Coates signed
the book again on February 10, 1982. Albert Raymond
signed on February 26; a notation in the Respondent’s
hiring hall register indicates that Raymond was re-
ferred to Bechtel on an undetermined date. We find
that Coates was unlawfully bypassed on March 2,
April 27, July 9, and December 23 and 29, 1981, and
on the date in 1982 when Raymond was referred to
Bechtel.
5. Fred Gray. Gray signed the book on April 24 and
June 12, 1981, and was not referred. Leonard
Lockman, who signed after Gray, received a referral
on May 11, 1981. Gray registered again on March 5,
1982. Fred Scott signed after Gray, and a notation in
the register indicates that he received a referral on
1070 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
29 Like McMillan, Gray had been fired for cause by Bechtel, and was ineli-
gible to return to work there. Lockman’s referral, however, was not to Bechtel.
The record does not indicate the identity of the contractor to whom Scott was
referred. In the absence of evidence that the latter referral was to Bechtel, we
do not find that it was. See fn. 28, above.
30 See part I,A, above.
31 See NLRB v. Operating Engineers Local 925, 460 F.2d 589, 599–602 (5th
Cir. 1972). Cf. Iron Workers Local 373 (Building Contractors), 295 NLRB
648, 650–656 (1989), (inappropriate to extend backpay period past end of pe-
riod covered by unfair labor practice hearings, in absence of language in un-
derlying Board Order indicating open-ended backpay period). The court in Op-
erating Engineers Local 925 also found significant the presence of allegations
in the backpay specification concerning specific unlawful treatment in the pe-
riod after the earlier hearings. We do not find the absence of such specific
allegations fatal in this case because, as we have noted, the sorry state of the
Respondent’s records largely precludes the identification of specific unlawful
bypasses from those records alone.
32 As the judge observed, the Board found that several of the discriminatees
had received referrals during the period covered by the unfair labor practice
hearing, and yet those referrals did not end the Respondent’s backpay liability
with regard to those individuals as of the dates of those referrals. See 271
NLRB at 781–782 (Coates, Poorman, and McMillan).
33 Except for Gray and McMillan, who were ineligible for reemployment at
Bechtel.
March 11.29 We find that Gray was unlawfully by-
passed on May 11, 1981, and on March 11, 1982.
6. Andrew Huggins. Huggins signed the register in
December 1980 and was referred on April 9, 1981.
Derrick Bullock, who signed after Huggins, received a
referral on December 9, 1980. Willie Simmons and
Glenn Bullock, both of whom signed after Huggins,
were referred to Bechtel on February 2, 1981. We find
that Huggins was unlawfully bypassed on December 9,
1980, and February 2, 1981.
7. Roy Poorman. Poorman registered on March 5,
1980, and was referred on July 13, 1981. David
Allemon and John Anderson, both of whom signed
after Poorman, received referrals on March 9 and April
7, 1981, respectively. Poorman signed again on Feb-
ruary 23, 1982. Wesley Johnson signed on March 2,
1982, and a notation in the referral book indicates that
he was referred to Bechtel on an undetermined date.
We find that Poorman was unlawfully bypassed on
March 9 and April 7, 1981, and on the date in 1982
when Johnson was referred to Bechtel.
8. George Scott. Scott signed the book on November
24, 1981, and was referred on January 4, 1982. Jeter
Lawrence, who signed after Scott, received a referral
on December 7, 1981. We find that Scott was unlaw-
fully bypassed on December 7, 1981.
We agree with the Respondent that, for each
discriminatee, the backpay period should commence,
not on the earliest date set forth in the Board’s deci-
sion in the underlying case, but on the date of the ear-
liest discriminatory referral found above. Moreover, in
those instances in which a discriminatee was offered or
received a referral, backpay shall not be assessed for
the period between the date of offer or referral and the
date the discriminatee next signed the book.
B.
We turn next to the Respondent’s contention that the
backpay period may not be extended past the end of
the time period encompassed by the unfair labor prac-
tice case (that is, mid-1982). We find no merit in that
contention. We adopt the judge’s finding that the lan-
guage of the Board’s underlying decision30 clearly re-
quires that the backpay period be extended past the
end of the period covered by the unfair labor practice
proceedings, if the evidence establishes that the Re-
spondent continued to disfavor the discriminatees in
referrals.31 We also agree with the judge that the sim-
ple act of referring one of the discriminatees does not
end the Respondent’s backpay liability to that indi-
vidual. The Board’s Order mandates backpay until
such time as the Respondent properly refers the
discriminatees; it does not contemplate an end to back-
pay liability merely because the Respondent may fi-
nally have gotten around to referring the discriminatees
out of their proper order.32
The Respondent also contends that the General
Counsel has not carried his burden of showing that
specific acts of discrimination continued to occur in
the period since the hearing in the unfair labor practice
case, and therefore has not established a predicate for
continuing backpay liability. We find no merit in that
contention.
The judge found numerous instances in which the
Respondent made ‘‘apparent’’ out-of-turn referrals, to
the detriment of the discriminatees, during 1983 and
1984. At least concerning referrals to Bechtel, we
agree with the General Counsel that those events con-
stituted actual bypasses of the discriminatees33 during
that period. The Respondent has an exclusive hiring
hall arrangement with Bechtel, under which Bechtel
obtains all of its laborers from the Respondent. Thus
it is apparent that each of the individuals whom the
judge found to have begun working at Bechtel, while
the discriminatees were awaiting referrals, received
those jobs as the result of referrals.
There is no merit in the Respondent’s contention
that it is prejudiced by the judge’s use of the health
and welfare records in finding that it continued to
make out-of-order referrals during the extended back-
pay period. We rely on those records only to find re-
ferrals to Bechtel. As we have noted, Bechtel has an
exclusive hiring hall arrangement with the Respondent,
and consequently the inference is warranted that who-
ever went to work at Bechtel did so pursuant to a re-
ferral. And although the dates on which Bechtel made
health and welfare fund contributions do not establish
precisely when each laborer worked the hours for
which each contribution was made, we are satisfied
that those records do establish that the individuals in
question actually did go to work at Bechtel after pre-
viously working for other contractors. That the records
do not show exactly when the Bechtel referrals were
1071LABORERS LOCAL 135 (BECHTEL POWER CORP.)
34 We also find no merit in the Respondent’s exception to the judge’s using
Bechtel’s logbook (G.C. Exh. 57) to find that the Respondent’s referral book
did not give a complete picture of referral activity after August 1, 1986. (See
par. 12 of part III,C,2 of the judge’s decision.) The discrepancies between the
originals and copies of exhibits alluded to by the Respondent pertained to
other exhibits, not to G.C. Exh. 57. Moreover, the judge afforded the Respond-
ent’s counsel the opportunity to cross-examine using the originals of G.C. Exh.
57, but he did not do so.
In finding that out-of-turn referrals actually did take place, we correct the
following misstatements in the judge’s decision. Contrary to the judge, Drew
Davenport did register for referral, but he did so on November 25, 1983, long
after several of the discriminatees had registered. Similarly, C. Tillar, who we
conclude is also known as ‘‘C. Luke’’ Tillar, did sign for referral, but on Janu-
ary 9, 1984, well after Coates, Scott, and Poorman had registered. Thus, even
though both Davenport and Tillar registered, their referrals were unlawful. We
do not find Willie Prince’s referral to Shoemaker around August 1, 1983, to
be unlawful, because Prince had signed the register on May 31, 1983. Finally,
we do not rely on the judge’s findings concerning referrals of M. DiCastenado,
because we have been unable to locate the health and welfare records for that
individual on which the judge based his findings.
35 We do not, of course, find that either Bradley or Randy Huggins was by-
passed during this period. Nor do we find any discrimination against McMillan
after the third quarter of 1983. McMillan received a referral on October 1,
1983, and the record indicates that job lasted more than 5 days. Consequently,
McMillan would have had to reregister to be eligible for further referrals. Be-
cause she failed to do so, there is no basis for finding that she was discrimi-
nated against after the October 1 referral, and we have tolled her backpay pe-
riod as of that date.
36 The register indicates that Coates and Scott were marked out as ‘‘work-
ing’’ on July 18 and 25, 1984, respectively. Because Whitfield’s referrals to
Bechtel are not dated, we cannot determine whether some or all of them oc-
curred after Coates and Scott’s names were marked out. This is an example
of the ambiguity created by the Respondent’s inadequate recordkeeping that
must be laid at the Respondent’s doorstep. Thus, in the absence of evidence
to the contrary, we find that the two discriminatees’ registrations were still
‘‘active,’’ and therefore that they were unlawfully bypassed by Whitfield.
37 We adopt the judge’s finding that Andrew Huggins’ backpay period
should extend past the end of the period delineated in the Board’s earlier deci-
sion. We base that finding, however, entirely on the documentary evidence dis-
cussed above and on the testimony of King, and not on Curley’s conversations
and correspondence with Huggins. There is no merit in the Respondent’s con-
tention that Huggins should be denied backpay after 1984 because he was
found to be legally blind. It is well established that it is the Respondent’s bur-
den to show that Huggins was unavailable for employment. NLRB v. Brown
& Root, 311 F.2d 447, 454 (8th Cir. 1963). The Respondent has not estab-
lished that Huggins’ visual impairment precluded his performing the kinds of
work to which it makes referrals. Indeed, the Respondent’s own records indi-
cate that Huggins received a referral as recently as November 1986. There are
no exceptions to the judge’s finding that after the first quarter of 1987 Hug-
gins was unable to continue working at his trade.
38 Also, as the judge found, Weaver admitted that the Respondent’s hiring
hall books were inadequate to establish the record of referral activity during
the backpay period.
39 NLRB v. Operating Engineers Local 925, 460 F.2d at 600.
40 Iron Workers Local 373, above at 657 (Member Devaney dissenting on
this point), citing Iron Workers Local 433 (AGC of California), 228 NLRB
1420, 1441 (1977), enfd. 600 F.2d 770, 779 (9th Cir. 1979), cert. denied 445
U.S. 915 (1980).
made is immaterial; what is material is that the refer-
rals went to other registrants instead of to the
discriminatees, who had registered earlier.34
Moreover, we have independently reviewed the evi-
dence, and we have found that the Respondent contin-
ued to bypass the discriminatees in referrals after April
1984.35 Thus, Coates signed as number 65 in the Re-
spondent’s hiring hall register in effect between April
1984 and July 1986; Scott signed as number 66,
Poorman as number 101, and Andrew Huggins as
number 162. There is no indication that any of the
discriminatees received referrals until March 1986, and
there is no record of health and welfare contributions’
having been made for any of those discriminatees dur-
ing that time. Robert Whitfield registered as numbers
261, 270, 322, 334, and 339, and the notation ‘‘Bech-
tel’’ appears by all those entries except number 322.
We find that Whitfield was referred to Bechtel on four
occasions when Coates, Scott, Poorman, and Huggins,
who had registered before him, were still awaiting re-
ferral.36
In addition, as the judge found, Lawrence King, who
had registered as number 571, received a referral in
October 1984, in preference to Andrew Huggins,37
who was registered as number 162. We also find that
King bypassed Poorman, who also had registered
ahead of him.
Finally, as we have emphasized, the Respondent has
largely failed to comply with the directions of the
judge in the unfair labor practice case, and then of the
Board itself, to retain records that would be adequate
to enable the Board to compute backpay. Instead, the
Respondent has kept records that, for the most part, do
not even reveal whether referrals were made at all, let
alone whether they were made in the proper order.
Those records were so inadequate for the purposes of
this proceeding that they were described as useless by
the Respondent’s own expert witness.38 In these cir-
cumstances, the fact that the General Counsel did not
prove with greater specificity the extent to which the
Respondent continued to disfavor the discriminatees in
referrals does not absolve the Respondent from back-
pay liability.39 As the wrongdoer here, the Respondent
must bear the burden of the uncertainty it has created,
by its failure to keep adequate records, regarding
whether it continued to make unlawful referrals after
the close of the hearing in the underlying case.
The Respondent nevertheless urges that we cannot
find that the discriminatees were bypassed unlawfully
after April 1, 1984, because, effective that date, it re-
vised its hiring hall rules to require applicants to be
present in the hall in order to receive referrals, and the
General Counsel has not shown that the discriminatees
were in the hall when they were bypassed. We find no
merit in this contention. It is true that, when such a
hiring hall rule exists, the General Counsel normally
has the burden of demonstrating that the discriminatees
were in the hall when out-of-order referrals took
place.40 Here, however, the Respondent has kept
records that, often for months at a time, do not indicate
when referrals were made. Consequently, unless he
could show that the discriminatees were in the hiring
hall every day, and thus were present no matter when
referrals were made, the General Counsel could not
possibly carry that burden in this case. To deny all
backpay under these circumstances would be intoler-
able, particularly because, as we have emphasized, the
1072 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
41 This case thus stands in stark contrast with Iron Workers Local 373, in
which the union kept meticulous hiring hall records that showed the dates each
registrant signed the book and was called for referral, and whether he was ac-
tually referred or was marked absent.
Member Cracraft agrees that under the circumstances of this case the Gen-
eral Counsel does not have the burden of establishing that the discriminatees
were present in the hiring hall when out-of-turn referrals were made. She also
agrees with her colleagues that this case is distinguishable from Iron Workers
Local 373 and thus does not pass on whether she would normally place this
burden on the General Counsel.
42 In so finding, we do not rely, as the judge did in fn. 17 of his decision,
on Andrew Huggins’ letter to Curley claiming that he had been passed over
for referral by Shelvin Oates in December 1984, because that statement was
hearsay.
43 The foregoing findings are based on the Respondent’s written hiring hall
rules and on Weaver’s testimony.
44 See, for example, East Texas Steel Castings, 116 NLRB 1336, 1337–1338
(1956), enfd. 255 F.2d 284 (5th Cir. 1958); West Texas Utilities Co., 109
NLRB 936 (1954).
45 The General Counsel’s methodology in selecting the sample is explained
in part IV,C,1 of the judge’s decision.
46 The Respondent argues that many of the 49, unlike the discriminatees,
worked as foremen or stewards (and therefore worked more regularly than the
discriminatees), or worked steadily for particular contractors (and thus seldom,
if ever, used the hiring hall). Notwithstanding that argument, however, the Re-
spondent used the 49 as the comparison group in its alternative model.
Respondent since July 31, 1984, has been under a
Board Order to keep adequate hiring hall records.41
On the basis of all the foregoing, then, we adopt the
judge’s finding that the backpay specification properly
claimed backpay past the close of the earlier hearing
for all the discriminatees except Bradley and Randy
Huggins.42 However, because, under the Respondent’s
hiring hall rules in effect since April 1, 1984, the
names of applicants who are absent from the hall when
called for referral are to be stricken from the register,
we shall deny backpay to any discriminatee whose
name was properly stricken because of his failure to
appear for referral, from the time he was marked ab-
sent until he re-signed the register. From April 1
though about October 1984, and from March 25, 1985,
through July 1986, a registrant’s name would be strick-
en if he was absent once when called. Between about
October 1984 and March 24, 1985, and since August
1986, however, a registrant’s name would not be
stricken until he was called twice and marked absent.43
Thus, for the latter two periods, a discriminatee’s name
should not be considered properly stricken unless he
had been called and marked absent at least twice.
C.
The Respondent also excepts to the judge’s approv-
ing the General Counsel’s formula for computing
backpay liability. To the extent indicated below, we
find merit in this exception.
As we have noted, the General Counsel’s backpay
specification is based on the ‘‘representative em-
ployee’’ approach, which has long been sanctioned in
Board law. Under that approach, the income a
discriminatee would have earned during the backpay
period in the absence of discrimination is estimated
from the actual income during that period of an em-
ployee (or group of employees) with similar character-
istics to those of the discriminatee.44 In this case, the
General Counsel used the average hours worked during
the backpay period by a random sample of 49 individ-
uals (‘‘the 49’’) taken from the Respondent’s member-
ship rolls as an estimate of the amount of time each
of the discriminatees would have worked during that
period in the absence of discrimination.45
The Respondent argues that the 49 are not represent-
ative of the discriminatees,46 and thus that it was im-
proper for the General Counsel simply to assume that,
in the absence of discrimination, each of the
discriminatees would have worked as much as the 49.
The Respondent introduced the records of the hours of
employment credited to each of the 49, and to each of
the discriminatees, by the industry pension fund for a
number of years before the backpay period as well as
for the backpay period itself. That evidence indicates
that the discriminatees (except for Andrew Huggins)
worked on average considerably less than the 49 dur-
ing the years 1977–1978, 1979–1980, and 1977–1980.
Thus, the Respondent urges that, no matter which of
these base periods is used for comparison purposes, it
was unreasonable for the judge to assume that each of
the discriminatees would have worked as much as the
49 during the backpay period, when they had not
worked that much before. The Respondent contends
that, if any backpay is due at all, it should be recom-
puted for each discriminatee by (1) dividing the aver-
age hours worked by that discriminatee during some
base period (say, 1979–1980) by the average hours
worked during the same period by the 49 and (2) mul-
tiplying the fraction so derived times the average hours
worked during the backpay period by the 49. Thus, for
example, if discriminatee X worked an average of
1200 hours during 1979–1980, but the 49 worked an
average of 1500 hours during those 2 years, X would
have worked 80 percent of the average of the 49 dur-
ing that time. Consequently, if the 49 worked an aver-
age of 1000 hours during 1981, under the Respond-
ent’s method the assumption would be that, absent dis-
crimination, X would have worked 800 hours (80 per-
cent of 1000) during 1981, and should be awarded
backpay on that basis.
The judge rejected the Respondent’s contentions. He
found that the General Counsel’s model was consistent
with Board precedent and was reasonable. He also
faulted the Respondent’s proposed approach for using,
as a reference period, years in which the Respondent
had been engaged in acts that would have adversely af-
fected the discriminatees’ work opportunities. To use
the periods propounded by the Respondent, the judge
reasoned, would be to estimate the earnings of the
discriminatees during the backpay period on the basis
of their work history during an earlier period during
1073LABORERS LOCAL 135 (BECHTEL POWER CORP.)
47 American Mfg. Co. of Texas, 167 NLRB 520 (1967) (emphasis added).
In this regard, we note that Fibreboard Corp. v. NLRB, 379 U.S. 203 (1964);
Bagel Bakers Council v. NLRB, 555 F.2d 304 (2d Cir. 1977); and NLRB v.
Iron Workers Local 378, 532 F.2d 1241 (9th Cir. 1976), cited in part IV,A
of the judge’s decision, do not, contrary to the judge, deal with the Board’s
scope of review of the General Counsel’s proposed backpay formula, but in-
stead with the courts’ review of backpay formulas, or other remedies, em-
ployed by the Board.
48 The ‘‘multiplier’’ approach has been used by the General Counsel, with
Board and court approval. Boyer Ford Trucks, 270 NLRB 1133, 1137–1138
(1984), enfd. in relevant part 757 F.2d 961 (8th Cir. 1985).
Our dissenting colleague objects to the ‘‘multiplier’’ approach as specula-
tive, because it is based on the assumption that, absent discrimination, the
discriminatees’ work patterns during the backpay period would have approxi-
mated their work histories during the reference period. Our approach is, of
course, somewhat speculative. It is less so, however, than the General Coun-
sel’s method, which assumes that, absent discrimination, the discriminatees as
a group would have worked as much during the backpay period as the 49,
even though they had not done so before. Judging the future by the past is
not an infallible method, but it is to be preferred over assumptions that, in
the circumstances of this case, are unsupported.
49 See 271 NLRB at 790–792.
50 Laborers Local 38 (Hancock-Northwest), 268 NLRB 167, 171 (1983),
enfd. in relevant part 748 F.2d 1001 (5th Cir. 1984), cert. denied 470 U.S.
1085 (1985). As the judge noted, Sec. 10562 of the General Counsel’s
Casehandling Manual directs that earnings and hours during periods of ‘‘tur-
moil and disturbance’’ immediately preceding an unfair labor practice must not
be used in computing averages on which backpay is to be based.
The Respondent’s argument that we cannot consider any of its actions prior
to the 10(b) period in selecting a reference period is without merit. Laborers
Local 38 (Hancock-Northwest), 268 NLRB at 171.
51 Ibid.
52 Prince, B. Whitfield, W. Johnson, Roberts, Rush, Golden, W. A. Jones,
Harris, English, Hall, Flatau, and D. Davenport.
which they may also have been the victims of dis-
crimination.
We agree with the Respondent insofar as it contends
that, once evidence had been presented that indicated
that the discriminatees had not, in the past, worked as
much as the 49, the judge should not have implicitly
accepted the General Counsel’s uncritical assumption
that each discriminatee would have worked as much as
the 49 during the backpay period. In so finding, we do
not suggest that the General Counsel’s approach was
unreasonable, per se. The judge’s task, however, is not
simply to approve the General Counsel’s formula if he
finds it reasonable, but ‘‘to consider whether [that] for-
mula is the proper one in view of all the facts adduced
by the parties and to make recommendations to the
Board as to the most accurate method of determining
the amounts due.’’47 Having considered both the Gen-
eral Counsel’s model and the Respondent’s alternative
‘‘multiplier’’ approach, we find the latter to be the
more accurate method in the circumstances of this
case.48
We emphatically agree with the judge, however, that
it would be improper to use, as a reference period for
calculating backpay ‘‘multipliers,’’ any period in
which the Respondent has been shown to bear animus
against the discriminatees. Even though no actual dis-
crimination against the discriminatees has been found
prior to the 10(b) period beginning in late 1980, the
administrative law judge in the unfair labor practice
case found that as far back as 1978, the Respondent,
through its officers, threatened to get even with certain
of the discriminatees—by denying them work opportu-
nities—because of their dissident activities.49 If we
were to use any year beginning with 1978 as a base
period, we would run the risk that the discriminatees’
hours of work during that period, and therefore the rel-
evant ‘‘multipliers,’’ would have been biased down-
ward because of the Respondent’s animus against
them, and thus that their backpay awards would be ar-
tificially reduced, ironically, because of the Respond-
ent’s earlier treatment of them. Such a result is not to
be sanctioned.50
We shall, instead, use as a reference period the years
1976–1977, which is the most recent 2-year period be-
fore the onset of the Respondent’s threats to deny re-
ferrals to the discriminatees.51 We have reviewed the
Respondent’s pension fund data, and we find that 12
of the 4952 worked no hours in either 1976 or 1977.
We therefore shall exclude them from the sample. The
remaining 37 members of the sample worked an aver-
age of 1462 hours in 1976 and an average of 1378
hours in 1977, or an average of 1420 hours per year
for the 2-year period. During the same period, the
discriminatees worked the following average hours,
and percentages of the hours worked by the 37 remain-
ing sample members:
Avg. Hrs. Percent of Sample
Bradley 1642 116
Coates 717 50
Gray 1512 106
A. Huggins 1838 129
R. Huggins 750 53
Poorman 1166 82
Scott 1117 79
We shall use the percentages in the right-hand column
to estimate the hours the discriminatees would have
worked, absent discrimination, during the backpay pe-
riod.
We shall not, however, use the ‘‘multiplier’’ ap-
proach in the case of Rita McMillan. McMillan first
worked out of the Respondent’s hiring hall in 1980,
well after the Respondent began threatening to dis-
criminate against dissident members. Thus, we are un-
able to compare McMillan’s work history with that of
other employees during a period free of animus against
union dissidents, as we have found appropriate to do
for the other discriminatees. Lacking any other objec-
tive method of estimating the hours McMillan would
have worked, absent discrimination, during the back-
pay period, we perceive no reason not to use the Gen-
eral Counsel’s ‘‘representative employee’’ approach,
1074 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
53 As we have stated, McMillan was referred on October 1, 1983, and did
not register thereafter. She is therefore not entitled to backpay for any quarter
after the third quarter of 1983. We shall revise the portion of the judge’s rec-
ommended Order regarding McMillan to eliminate claims for periods after Oc-
tober 1983.
For the reasons stated by the majority in Iron Workers Local 373 at fn. 29,
we reject our dissenting colleague’s contention that it was futile for McMillan
to shape the Respondent’s hiring hall.
54 On remand, the Regional Director also shall make certain that each
discriminatee’s backpay period begins no earlier than the first instance of dis-
crimination found in part II,A, above.
The Respondent argues that we cannot treat Gray and McMillan as we do
the other discriminatees, because Gray and McMillan were ineligible to receive
referrals to Bechtel, one of the largest employers of laborers in the Respond-
ent’s jurisdiction. We reject that argument. Although Gray and McMillan
could not have gone back to work at Bechtel, there is no evidence in the
record that, had either of those two discriminatees been at the head of the list
to be referred when a Bechtel job opened, he or she would have been stricken
from the book and required to reregister. We therefore infer that, had such
an occasion arisen, the first eligible individual on the list would have received
the Bechtel referral and (in the absence of discrimination) Gray or McMillan
would have been sent to the next job with a contractor other than Bechtel.
Thus, it appears that Gray and McMillan’s ineligibility for Bechtel positions
would have served primarily to redistribute job openings among the registrants
for referral, but (again, absent discrimination) would not have diminished those
discriminatees’ earnings potential significantly.
55 The judge relied on Florida Steel Corp., 273 NLRB 889 (1984).
and we find that, with regard to McMillan, the judge
correctly approved the use of that approach.53
Because the 12 individuals who worked no hours
during 1976–1977 have been excluded from the sam-
ple, their hours should not be included for comparison
purposes during the backpay period. Therefore, the av-
erage hours worked by the 49 during the backpay pe-
riod cannot be used in computing backpay. Only the
hours of the remaining 37 may be used for that pur-
pose. Thus, the ‘‘multipliers’’ should be applied to the
recomputed average hours for those 37 individuals in
the sample for each quarter of the backpay period.54
D.
The Respondent excepts to the judge’s finding that
the backpay periods should be kept open until the
Board issues its Supplemental Decision and Order.55
Although we agree with the judge that the Respond-
ent’s backpay liability did not end at the close of the
hearing in this case, because it has not been shown
that the Respondent has ceased to discriminate against
the backpay claimants, as a practical matter there is no
evidence in the record before us that would enable us
to compute backpay for the period following the hear-
ing. Therefore, we shall assess backpay only in accord-
ance with the amended backpay specification, with the
modifications set forth above. However, the General
Counsel may bring additional backpay claims for the
period following the hearing if, in his discretion, he
finds that such claims are warranted.
III.
In summary, we adopt the judge’s findings and con-
clusions except as indicated above. Our principal
modifications of his findings are that (1) backpay
should not begin for any discriminatee until the date
of the first proved act of discrimination against him or
her; (2) an individual who received or was offered a
referral, or was called for referral, marked absent, and
properly stricken from the register after April 1, 1984,
should not accrue backpay until he or she reregistered
for referral; and (3) the ‘‘multipliers’’ derived in part
II,C, above, should be applied only to the average
hours worked during the backpay period by the indi-
viduals in the General Counsel’s sample who also
worked in 1976 and/or 1977. Those modifications,
however, necessarily entail extensive recomputations of
each of the backpay awards. We therefore shall re-
mand the case to the Regional Director to perform the
necessary recomputations and to prepare an amended
backpay specification.
ORDER
The Respondent, Laborers Local No. 135, its offi-
cers, agents, and representatives, shall make Rita Mc-
Millan whole by paying her $27,161.73 in backpay
and $2262.65 in pension credits, plus interest on both
amounts to be computed in the manner prescribed in
New Horizons for the Retarded, 283 NLRB 1173
(1987). In all other respects, the case is remanded to
the Regional Director for Region 4 for revisions of the
amended backpay specification as indicated above.
MEMBER DEVANEY, concurring in part and dissenting
in part.
Although I agree with the majority in other respects,
I would adopt the judge’s backpay formula for the rea-
sons set forth below. Additionally, I would not impose
any requirement on the General Counsel here to estab-
lish that any discriminatees were present in the hiring
hall when passed over for referral. In this regard, as
I stated in my dissent in Iron Workers Local 373
(Building Contractors), 295 NLRB 648 (1985), I do
not believe such a limitation on backpay entitlements
is appropriate because there should be no legal burden
on the General Counsel to demonstrate that
discriminatees were in a hiring hall when out-of-order
referrals took place. On the particular facts here, my
colleagues distinguish Iron Workers Local 373 and
find that the General Counsel has no burden of show-
ing the presence of the discriminatees in this case.
Thus, I agree with my colleagues that there should be
no burden placed on the General Counsel, but for the
reasons stated in my dissent in Iron Workers Local
373.
Similarly, in Iron Workers Local 373, I further stat-
ed that I would not require the General Counsel to
show that discriminatees performed the futile act of
shaping a respondent’s hiring hall on a particular date
when they were passed over before they became eligi-
ble to receive any backpay. The facts here establish
that Rita McMillan, although referred by the Respond-
1075LABORERS LOCAL 135 (BECHTEL POWER CORP.)
1 On August 5, 1987, the hearing was not closed. Instead, it was adjourned
indefinitely to permit the backpay specification to be made current. After the
parties completed the necessary undertakings, the hearing was closed by writ-
ten order on December 1, 1987 (see A.L.J. Exh. 4). The parties’ briefs were
filed in February 1988.
ent in October 1983, had been passed on three occa-
sions. I therefore disagree with the majority’s cutting
off McMillan’s backpay after the third quarter of 1983
because she had not reregistered after the referral in
October of that year.
Finally, contrary to my colleagues, I would affirm
the judge in extending the backpay period to cover
posthearing violations. Consistent with our placing the
burden of uncertainty on the wrongdoing Union, I
would conclude, absent evidence that the Union was
complying with the original Board Order, that it was
not, and would remand to develop the record on this
issue.
As to the majority’s backpay formula, I concede that
it is reasonable. However, although the majority sets
forth a reasonable formula, they do not persuade me
that their formula is any more reasonable than that ap-
plied by the judge. In this circumstance, I am unwill-
ing to reject the judge’s formula in favor of the one
used by the majority.
Specifically, the judge applied the commonly used
representative employee formula derived from the
General Counsel’s backpay specification. Under this
method of computation, the discriminatees’ backpay is
determined simply by reference to the hours worked of
a representative sample of employees during the back-
pay period. The majority, in agreement with the judge,
does not contest the representative sample used. The
majority’s formula compares the work histories of each
individual discriminatee during the 1976–1977 period
with those of the representative group in order to ar-
rive at a multiplier to be used to determine the
discriminatees’ backpay for the period 1980–1987.
The majority’s formula is thus more specific to the
individual discriminatees’ work histories. However, it
rests on the speculative assumption that past work his-
tory is an accurate predictor of future work history.
This may be the case in some situations. But such an
assumption is not a fact. Furthermore, I believe the as-
sumption is less compelling where, as here, the time-
frame analyzed by the majority is remote in time from
the relevant backpay period of inquiry. In other words,
I am not persuaded that a discriminatee’s work history
here is useful in predicting how much that
discriminatee would have worked a decade later. In
this regard, the majority goes back beyond the period
the Respondent’s witness used in making his calcula-
tions in order to counter the argument that the
discriminatees’ work histories during the later time pe-
riod immediately preceding the backpay period were
tainted by the Respondent’s documented discrimination
prior to the 10(b) period. Thus, the majority goes back
to a period that is more remote than that requested by
the Respondent to a period that the compliance officer
testified to be too remote for effective use as a pre-
dictor of potential earnings during the post-1980 back-
pay period.
In sum, the judge’s formula is clearly not arbitrary
or based on completely unsupported assumptions, as
the majority suggests. Rather, it is based on the well-
established ‘‘representative employee’’ method of
computation that is reasonable and appropriate, espe-
cially in the circumstance of a lengthy backpay peirod.
It further has the added benefits of being simple, easy
to apply, and accurate for the reasons stated in the
judge’s decision. Finally, it has the benefit of allowing
the Board to reach a decision without remanding the
case for further computations. In contrast, the major-
ity’s revised formula would require a remand for fur-
ther recomputations. If, in fact, the majority’s formula
was clearly more accurate, I would reluctantly agree to
a remand for recalculation of backpay amounts due.
However, for the reasons stated above, I am not per-
suaded that the majority’s formula is more reasonable.
Accordingly, I respectfully dissent from my col-
leagues’ decision.
Daniel E. Halevy, Esq., for the General Counsel
Robert C. Cohen, Esq. (Markowitz & Richman), of Philadel-
phia, Pennsylvania, for the Union.
Judith B. Chomsky, Esq., of Philadelphia, Pennsylvania, for
the backpay claimants.
SUPPLEMENTAL DECISION
NORMAN ZANKEL, Administrative Law Judge. These back-
pay cases were heard on 19 hearing dates between December
1, 1986 and August 5, 1987,1 at Philadelphia, Pennsylvania.
This supplemental hearing was conducted to determine the
amount of backpay and other benefits due under a 1984
Board decision (271 NLRB 777), as enforced by the United
States Court of Appeals, Third Circuit by judgment order,
January 24, 1986 (NLRB v. Laborers Local 135, Civil No.
85-3197).
At the hearing all parties had opportunity to introduce and
meet material evidence and to argue orally on the record. All
parties filed posthearing briefs.
On the record before me, and from my observations of the
demeanor of witnesses, and after careful consideration of the
briefs, I make the following
FINDINGS OF FACT
I. THE ISSUES
Two principal issues govern disposition of the pro-
ceedings. They are:
A. For what period of time is each discriminatee en-
titled to receive backpay and other aspects of the
Board’s remedy?
1076 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 As originally issued, the backpay specification contained a fourth case (4-
CB-4311) consolidated with the three cases identified in the caption of this
decision. I approved a withdrawal request and granted General Counsel’s mo-
tion to dismiss and sever Case 4–CB–4311 from the instant cases on April
23, 1987, the 12th hearing date (see Tr. 1612–1626 and A.L.J. Exh. 1).
3 These time periods including the quoted phrases have been abstracted from
271 NLRB at 781, 782.
4 A. Huggins did not appear as a witness before me. Instead, Robert Curley,
Regional Office compliance officer, testified this discriminatee provided infor-
mation which caused the Regional Office authorities to conclude the Union
continued to pass over A. Huggins in referrals after April 9, 1981. A separate
discussion concerning A. Huggins’ backpay period is contained in section
III,C(7), below.
5 At the time of award, A. Huggins was working for Joseph A. Cornell (R.
Exh. 20).
B. What formula should be used to calculate the
backpay due each discriminatee?
I shall find the periods of time and formula proposed by
counsel for the Board’s General Counsel in the backpay
specification as finally amended (G.C. Exhs. l(d) and 59)2
appropriately establish the remedy in the cases at bar.
II. BACKGROUND
In relevant part, the Board found the Union discriminated
against Wilson Bradley, Harold Coates, Fred Gray, Andrew
Huggins, Randy Huggins, Rita McMillan, Roy Poorman, and
George Scott by engaging in a pervasive and continuing pat-
tern of unlawful conduct because of their internal union poli-
tics by failing and refusing to refer these individuals in prop-
er order from its hiring and referral hall.
The Board’s decision issued July 31, 1984. The Board also
found the discrimination continued for many months and in-
volved bypassing the eight discriminatees in favor of all
other persons registering for job referrals. Also, the Board
found that ‘‘Literally hundreds, if not thousands, of discrimi-
natory referrals took place within the time period framed by
the applicable 10(b) dates and the date of the . . .’’ under-
lying unfair labor practice hearing.
The Board issued a multifaceted remedial order. In salient
part, the Union was ordered to: (a) maintain and operate its
exclusive and nonexclusive job referral system in a non-
discriminatory manner based on objective criteria and stand-
ards; (b) keep and retain permanent records of its hiring and
referral operations for 2 years from the date of decision in
such form that will be adequate to disclose fully the basis
on which each referral is made and make those records avail-
able to the Board’s Regional Director on request; and (c)
make each discriminatee whole from the date of the discrimi-
nation until the time the Union ‘‘ceases its unlawful conduct
by properly referring him or her to employment, less net in-
terim earnings’’ (277 NLRB at 783).
Determination of the precise number of indivduals given
out-of-turn referrals in preference to the discriminatees, the
dates of their employment, rates of pay, and ‘‘related issues’’
were left by the Board to the instant compliance proceedings
(271 NLRB at 781).
III. LENGTH OF THE REMEDIAL PERIOD
A. The Board’s Order
The Board found the Union discriminated against the
discriminatees during the time periods specified as follows:
W. Bradley: Between December 5, 1980 and August
21, 1981;
H. Coates: ‘‘At Least’’ between January 31 and June
17, 1981; and between July 6–13, 1981; and between
November 24, 1981 ‘‘and at least’’ February 10, 1982;
F. Gray: Between April 24 and June 24, 1981; ‘‘and
since’’ March 5, 1982;
A. Huggins: Between December 5, 1980 and April 9,
1981;
R. Huggins: Between February 27 and May 19,
1981;
R. McMillan: Between April 25 and June 24, 1981;
August 5–26, 1981; October 13-November 19, 1981;
and ‘‘since March 5, 1982;’’
R. Poorman: Between December 5, 1980 and July
13, 1981; and ‘‘since July 16, 1981;
G. Scott: ‘‘after November 24, 1981.’’3
B. Positions of Parties
General Counsel claims the remedial period for W. Brad-
ley and R. Huggins begins and ends on the dates set forth
above. However, General Counsel asserts the compensable
time periods for H. Coates, F. Gray, R. McMillan, R.
Poorman, and G. Scott are open-ended. General Counsel’s
position is based on the Board’s use of the word ‘‘since’’ for
Gray, McMillan, and Poorman; the word ‘‘after’’ for Scott;
and the phrase ‘‘at least’’ for Coates. Such use, the General
Counsel contends, signifies the Board’s intention to keep
open the backpay periods for those five discriminatees pend-
ing evidence that the Union had stopped discriminating
against them or that any discriminatee had voluntarily done
something to make him or her ineligible for further referral.
Finally, the General Counsel seeks to expand the backpay
period of A. Huggins. As shown above, the Board defini-
tively established A. Huggins’ period as between December
5, 1980 and April 9, 1981. General Counsel claims the back-
pay period for A. Huggins should extend to April 9, 1987,
the date Mr. Huggins was declared eligible for supplemental
social security income based on a finding he is physically
disabled from performing work to which the Union makes
referrals. General Counsel’s position regarding A. Huggins is
founded on information that this discriminatee gave the
Board’s Regional Office personnel during the compliance in-
vestigation which preceded the instant hearing.4
The Charging Parties agree with General Counsel’s con-
tentions concerning the backpay periods for all
discriminatees, except A. Huggins. The Charging Parties
claim the award of supplemental social security income bene-
fits should not operate to close A. Huggins’ backpay period
in the absence of direct evidence that his physical disability
actually caused him to decline work. Specifically, the Charg-
ing Parties rely on evidence which shows that A. Huggins
was working as a laborer for a unionized contractor within
the Union’s jurisdiction at the time his disability award was
made.5 Charging Parties seek to continue A. Huggins’ back-
pay period running at least to the instant hearing.
The Union contends no backpay period for any
discriminatee can be expanded beyond the precise dates set
forth by the Board under any circumstances. The Union ar-
1077LABORERS LOCAL 135 (BECHTEL POWER CORP.)
6 This section is the Act’s statute of limitations which prohibits making un-
fair labor practice findings based on events which occurred more than 6
months before a charge is filed. I find no further need to discuss the Union’s
function 10(b) defense because the Board clearly identified time periods which
Bradley and Scott suffered discriminatory treatment (see sec. II-A, above). I
am bound by those Board findings. See Waco, Inc., 273 NLRB 714 fn. 14
(1984). In this context, I conclude the 10(b) defense is a restatement of the
Union’s position that General Counsel was required to prove specific instances
of out-of-turn referrals in the instant proceedings.
7 The operative facts are substantially undisputed. Those reported here are
a composite of witnesses’ uncontradicted testimony, documentary evidence,
admissions and precedential findings which arise from the underlying unfair
labor practice decision.
8 I conclude these findings of Judge Ricci, undisturbed by the Board, are
an important base of comparison between how the referral hall was operated
before and after the Board’s decision, in light of General Counsel’s contention
the referral records were no more amenable to reconstruction after the Board’s
decision than before its issuance. Also, the last-stated finding is germane to
the Union’s claim (discussed below) that the backpay formula is not based on
a representative sample of workers.
gues that the Board expressly left it for this supplemental
proceeding to establish instances of specific out-of-turn refer-
rals; that the burden to do so rests with General Counsel; and
that burden has not been sustained because the record is bare
of evidence of out-of-turn referrals for each discriminatee.
Also, the Union claims that if it is possible to increase the
length of any backpay period in this case beyond the dates
previously decided by the Board, all such periods must close
on April 1, 1984, when the Union changed its referral system
to require persons seeking referral to be present in the refer-
ral hall. The Union argues evidence shows that only Coates,
among all the discriminatees, registered for referral under the
new rules, but did not appear in the hall for referral (See R.
Exh. 36).
Finally, the Union asserts that Bradley and Scott are enti-
tled to no backpay at all because there is no evidence of dis-
criminatory conduct within the period prescribed by Section
10(b) of the National Labor Relations Act (the Act).6
C. Facts, Discussion, and Analysis7
The General Counsel acknowledges ‘‘the Board’s Order
contemplated a determination of the precise number of . . .
out-of-turn referrals during the backpay period’’ (posthearing
brief, p. 11, fn. omitted). However, General Counsel main-
tains the state of the Union’s recordkeeping with respect to
referrals makes this task impossible, and such a situation jus-
tifies keeping the backpay periods open-ended until the
Union could prove it ended its discriminatory conduct toward
each discriminatee.
Evaluation of this position requires recourse to some addi-
tional Board findings in the underlying unfair labor practice
case; a review of the record before me regarding the condi-
tion, and Union’s maintenance, of the referral records; and
Curley’s efforts, during the compliance investigation, to es-
tablish the extent to which out-of-turn referrals were made (if
at all) with the precision sought by the Board.
1. Prior findings
The Board found, among other things, the Union’s ‘‘own
written rules and standards governing operation of its hiring
hall at times required that . . . written records concerning
the operation of the hiring hall be kept and maintained.’’
Also, the Board agreed with Administrative Law Judge
Thamas A. Ricci’s finding concerning how the Union imple-
mented those requirements. Judge Ricci concluded the Union
‘‘simply ignored its hiring hall system and that its authorized
agents, in control of distribution of jobs, satisfied their
whims and prejudices in total disregard of Board law.’’ (271
NLRB at 795, adopted by the Board at 780).
The Board also found that the Union’s operation of its re-
ferral hall made the underlying unfair labor practice pro-
ceeding one of those ‘‘exceptional cases’’ in which a specific
finding of ‘‘widespread and pervasive’’ discrimination makes
particularized proof of each instance of discriminatory con-
duct impractical and unnecessary (271 NLRB at 781).
Certain of Judge Ricci’s findings, which the Board adopt-
ed, are relevant to an understanding of General Counsel’s
stated rationale for the claim the backpay periods are open-
ended. Judge Ricci found ‘‘There was a regular book main-
tained all the time where the members signed in after fin-
ishing any one job . . . . There was a time when, for one
reason or another, the book was kept upstairs in the union
building and the men signed what was called a yellow sheet
instead. This was a loose sheet, renewed every day or week;
the names were to be transferred by the secretaries into the
regular book, but there is no real proof that this was always
done if only because it was admitted many of the yellow
sheets disappeared.’’ (271 NLRB at 792).
Judge Ricci also found that ‘‘nothing can change the re-
ality that most of the work, as the ‘book’ and ‘yellow sheets’
. . . show was in the hands of the Union to give or with-
hold.’’ Further, Judge Ricci found the Union’s ‘‘business
manager, was really the one who decided how the referral
system should be run every day. He was literally in charge
of the entire operation.’’ (271 NLRB at 792).
Finally, Judge Ricci found that employers who used the
Union’s referral system also were free to hire ‘‘off the street,
by direct recall of older employees, or even by hiring pure
outsiders.’’ In this connection, the judge noted, however,
that, ‘‘Without question the amount of work resulting from
direct hiring as distinguished from union referral hall was
relatively very minor.’’ (271 NLRB at 792).8
2. The Union’s referral records
The referral ‘‘book’’ (C.P. Exhs. 2, 5, 7) and the ‘‘yellow
sheets’’ (C.P. Exhs. 3, 4), referred-to by Judge Ricci, contin-
ued to be the source referral documents after the underlying
unfair labor practice hearing and into the backpay periods es-
tablished by the Board. The ‘‘book’’ shows that names of
some individuals who signed up for work up to March 29,
1983, had been striken, but no notation was made to indicate
the reason; and after that date no referral activity whatever
was recorded (see C.P. 2, p. 135).
John Weaver, the Union’s secretary-treasurer, testified ex-
tensively before me concerning the referral hall operation and
use of the Union’s records after Judge Ricci’s hearing. Wea-
ver testified he was in charge of the referral hall during all
times relevant to the instant proceedings.
Weaver could not recall whether referrals ever were made
from the ‘‘book’’ after March 29, 1983. He testified that the
yellow sheets replaced the book in November 1983. Accord-
ing to Weaver, the change was necessary because the referral
book itself was removed to, and was then located in, the of-
fices of the Union’s attorney. The yellow sheets (C.P. 4)
1078 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 Of course, the Board’s findings reflect agreement with Judge Ricci’s con-
clusions that the rule reqularly was ignored.
show persons wishing referrals signed in on them through
March 28, 1984.
The Union operated under the referral rules in effect dur-
ing Judge Ricci’s hearing (which closed June 5, 1982) until
April 1, 1984. Those rules provided that referrals would be
made in the order individuals signed their names (271 NLRB
at 794).9 Nonetheless, Weaver testified he could not remem-
ber whether the Union followed that procedure in 1983.
However, Weaver did acknowledge referrals were made on
a first come, first serve basis during this period, which en-
compassed time before the effective dates of the Union’s
April 1, 1984 rule change by which those looking for refer-
rals needed to be present in the Union’s hall (see sec. III,B,
above).
Weaver first claimed the yellow sheets were ‘‘just a sign-
in sheet,’’ and that no one was referred to jobs from those
sheets. Shortly after so testifying, he equivocated and as-
serted referrals may have been made from the yellow sheets
(compare Tr. 1984 to Tr. 1987). The yellow sheets them-
selves contain no written indication whatsoever whether re-
ferrals were made from them. The sheets show only who
signed them. But they do not show who was referred or
when such referrals were made between November 1983 and
March 28, 1984. Weaver also testified that the names which
appear on the yellow sheets never were transferred to the re-
ferral book. Finally, Weaver conceded the yellow sheet (spe-
cifically, C.P. Exh. 4) could not be used to determine wheth-
er anyone was referred (Tr. 1988).
There is evidence to support a conclusion the yellow
sheets served no purpose in referrals. For example, a record
from the Union’s health and welfare fund (C.P. Exh. 37) as
to Drew Davenport shows that he changed employers be-
tween November and December 1983. Davenport’s name
does not appear on the yellow sheets. Weaver was not ques-
tioned about this matter.
Davenport’s situation tends to show that confusion sur-
rounded the referral operations between November 1983 and
March 1984. If Davenport was referred to Bechtel in Decem-
ber 1983, the referral rules were violated because his name
was not on the yellow sheets and could not have been on
the ‘‘book,’’ then absent from the Union’s hall. If Davenport
obtained his new job in December 1983 without a referral,
such condition underscores the General Counsel’s professed
inability to trace the referral operations through the backpay
period.
The Union resumed using a referral book in April 1984.
In July 1986, many of the pages in that book (C.P. Exh. 5)
were ripped out by unknown persons. (Weaver claimed the
book was damaged in April 1986. I do not consider the date
pages were ripped from the book significant). The Union re-
placed the ripped book with another (C.P. Exh. 7) on August
1, 1986. This new book continued in use into the time of the
instant hearing.
The Union also maintained a ‘‘Daily Job Referral Activity
List’’ (C.P. Exh. 6) between November 5, 1984 and May 21,
1985. The records were supposed to reflect the basis for any
out-of-turn referrals and substantiate who was present for re-
ferral in Union’s hall; yet, as implemented, contain no ref-
erences to such reasons (Tr. 2379–2380). Weaver admitted
no other record was devised to generate this out-of-turn re-
ferral information after this list was discontinued in May
1985. The Union, in its brief, argues no conclusion adverse
to it should be made from the discontinuance because the
Union advised the Board’s Regional Director of that event
and no objection was made by him. I reject the Union’s ar-
gument. Whether or not the Regional Director acquiesced in
the Union’s action is irrelevant, because the Board’s decision
makes it solely the Union’s obligation to maintain sufficient
records which would show specific instances of out-of-turn
referrals. Weaver’s testimony indicates this was not done.
The record contains the following (not necessarily all-in-
clusive) evidence of the Union’s implementation of the refer-
ral hall, and condition of its referral records, after August 1,
1986, the advent of the most current referral ‘‘book.’’
Weaver asserted that the new ‘‘book’’ (C.P. Exh. 7) was
the only document in which entries were made to reflect the
Union’s referrals after August 1, 1986. Presumably, that re-
ferral book should have been a reliable source from which
referrals could be traced.
However, a comparison of the entries in the referral book
to the entries in Bechtel’s log book of laborers referred to
it (G.C. Exh. 57) between January 13, 1986 and June 1,
1987, makes it clear the Union’s referral book did not pro-
vide a complete picture of referrals after Augsut 1, 1986. For
example, Bechtel’s log book shows referrals of the following
persons: R. Wilson, E. Garrett, and T. E. Jackson. Weaver
could not locate a record of those referrals in the ‘‘book.’’
When he tried to account for the referral book’s deficiency,
Weaver said he ‘‘cannot explain’’ (Tr. 2041) why R. Wil-
son’s referral was not reflected in the referral book; and
speculated that E. Garrett and T. E. Jackson were new initi-
ates. In this connection, Weaver testified ‘‘In order to fill the
contractor’s request, a new person may have been initiated
into the Union, and would not be required to sign the (refer-
ral) book’’ (Tr. 2044).
Weaver’s testimony provides other evidence that the most
recent union referral book is incomplete and misleading. The
name of M. A. Fisher was crossed off the referral book (C.P.
Exh. 7, no. 164). No reason appears. Weaver testified Fish-
er’s name was stricken at her own request while waiting for
a particular Bechtel job. Weaver further testified he honored
Fisher’s request until the job became available and then re-
ferred Fisher to Bechtel without recording that the referral
had been made (Tr. 2047–2048; also see testimony and
records relating to L. Samuel, Tr. 2049–2050).
As reported above in section III,C(l), Judge Ricci’s finding
that direct hiring by employers was ‘‘very minor’’ as distin-
guished from their hiring through the Union’s hiring hall re-
mains undisturbed. No evidence was offered to me to refute
this finding. Accordingly, I have used this finding to deter-
mine whether the record before me contains evidence of spe-
cific out-of-turn referrals of the type the Board had found un-
lawful.
Specifically, the dates on which discriminatees Coates,
Gray, A. Huggins, McMillan, Poorman, and Scott signed up
for referrals have been ccnpared to the dates union health
and welfare records show certain other laborers began work-
ing at Bechtel jobs. Underlying this comparison was the
unrefuted assumption that most of the Bechtel work was de-
1079LABORERS LOCAL 135 (BECHTEL POWER CORP.)
10 I recognize this assumption contains the risk of an undetermined margin
of error. However, in view of Judge Ricci’s finding, the number of persons
in the sample of those who received Bechtel work, and the incomplete and
misleading state of the referral records, I consider the assumption justified.
11 As earlier noted, General Counsel and Charging Parties disagree on the
termination date of A. Huggins’ backpay. I shall discuss this issue separately
below.
12 Information concerning employers of the nondiscriminatees whose as-
sumed referral comprised the apparent bypass was derived from health and
welfare (H & W) records (G.C. Exh. 37). The health and welfare fund is an
entity separate from the Union. Thus, the H & W records are not the Union’s.
These records, however, may be (and have been) used to identify for whom
laborers worked and approximate work dates. It is materially noteworthy that
the Union’s referral records do not show either the date when the referrals
were made or the date when the person referred actually started to work.
rived by laborers from union referral.10 The comparison
leads me to conclude the Union continued to bypass these
discriminatees for some time in the backpay period. I also
find that situation tends to support General Counsel’s claim
the backpay period for these individuals should be open-
ended.
All examples of apparent bypassing, cited below, occurred
before the Union’s first effort to change its rules became ef-
fective on April 1, 1984. Thus, there is arguable merit to the
Union’s contention that no backpay claim should be ex-
tended beyond that date. I have considered all the Union’s
evidence and argument concerning its good-faith efforts to
operate its referral hall fairly and to comply with the Board’s
directive to cease engaging in the unlawful discriminatory
conduct and establish and maintain its referral records in
such a condition as would allow accurate verification of
compliance.
Clearly, the Union’s counsel advised the Union to make
changes designed to avoid the pitfalls which gave rise to the
underlying unfair labor practice findings. However, the in-
stant record as a whole contains evidence which, in my view,
subverts those amelioration efforts. Weaver admitted the re-
ferral book, alone, was insufficient to reconstruct the actual
referral process (Tr. 2008; 2025–2026). He candidly and re-
peatedly acknowledged that task could not be done without
the background information he virtually singularly possessed
but remained unrecorded in Union records. Also, the record
is bare of any reliable evidence of the occurrence of some
event which would toll the backpay period for any of the
discriminatees apparently bypassed during the backpay pe-
riod.11 In these circumstances, I conclude the specific in-
stances of activity which took place (as shall be reported im-
mediately below) as long as 3 years after December 5, 1980,
the beginning of the backpay period, and which was identical
to the conduct the Board found unlawful override the later
legal advice designed to end the improper conduct. Inasmuch
as no direct exculpatory evidence was produced by the
Union, I reject its effort to limit the backpay period to any
time shorter than set forth in the backpay specification as fi-
nally amended.
The record reveals the following examples of apparent by-
passing of the discriminatees within the backpay period.12
(a) E. C. Webb: H & W records show a fund contribution
entry from Bechtel for this laborer on September 25, 1983.
Webb’s name does not appear on the Union’s ‘‘book’’ in use
at that time (C.P. Exh. 2).
Coates, Poorman, and Scott signed the ‘‘book’’ on July
19, 1983; Gray signed on August 3, 1983; and McMillan did
so on September 21, 1983. These discriminatees were signed
for referral before Webb apparently began the Bechtel job.
Why Webb, who had not signed the ‘‘book’’ started at Bech-
tel when the discriminatees still were waiting is unexplained.
(b) C. Patterson: H & W records show a fund contribution
entry from Bechtel for this laborer on January 1, 1984. Pat-
terson’s name appears on the yellow sheet (C.P. Exh. 3) on
January 4, 1984. However, Coates, Poorman, and Scott
signed for referral on July 19, 1983. (Coates had a 1-day job
for which H & W contributions were made on or about Janu-
ary 1, 1984. Under the referral rules, Coates was still eligible
for referral based on his July 1983 registration. Eligibility
was lost after 3 days at work after referral). Gray signed on
August 3, 1983.
Weaver claimed Patterson was referred as a steward. Such
status would have entitled Patterson to referral preference.
No supporting evidence of Patterson’s stewardship is in the
record. For this reason, and others to be discussed in sub-
paragraph (g) below relative to V. A. Corbin, I conclude re-
liance upon Weaver’s claim with respect to Patterson would
be misplaced. Accordingly, I find Patterson’s Janaury 1984
referral shows the discriminatees were bypassed within the
backpay period.
(c) E. Williams: H & W records show a fund conribution
entry beginning January 1, 1984. Williams’ name appears on
the ‘‘book’’ on November 15, 1983. At that time, as shown
above, Poorman and Scott were eligible for referral by virtue
of their registration on July 19, 1983. Williams’ referral be-
fore them remains unexplained.
(d) W. E. Johnson: H & W records show a fund contribu-
tion entry by Bechtel for February 26, 1984. Johnson’s name
does not appear on the yellow sheet in use at that time (C.P.
Exh. 3).
Coates, McMillan, and Poorman signed the yellow sheet
on January 3, 1984; Scott signed it on January 4, 1984: and
Coates and Scott signed again on February 2, 1984; while A.
Huggins signed on January 27 and on February 6, 1984. The
record contains no explanation for Johnson’s referral at a
time when the listed discriminatees appeared on the yellow
sheets at a time quite current with his February 1984 referral.
(e) C. Tillar: H & W records show a fund contribution
entry from Bechtel for February 26, 1984. Tillar’s name does
not appear on the yellow in use at that time.
Coates’, A. Huggins’, Poorman’s, and Scott’s registrations
in January and February 1984, (previously reported) reflects
they were awaiting referral at the time Tillar apparently was
referred to Bechtel in February. the record contains no expla-
nation for that situation.
(f) O. Coleman: This laborer signed the ‘‘book’’ on June
6 and August 4, 1983. H & W records show fund contribu-
tions for him from the employers between October and De-
cember 1983. Because it appears Coleman worked more than
3 days for each employer during that 3-month period, his
name should have been stricken from the ‘‘book.’’
Nothetheless, H & W records show fund contributions for
Coleman again began by yet a different employer on Feb-
ruary 29, 1984. Thus, Coates, Poorman, and Scott who had
signed for referral (as reported above) on July 19, 1983; and
Gray who signed on August 3, 1983, appear to have been
bypassed by Coleman’s presumed referral in February 1984.
(g) V. A. Corbin: This laborer signed the ‘‘book’’ on Sep-
tember 30, 1983. H & W records show fund contributions for
Corbin from an employer in January 1984. Once again, it ap-
1080 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
13 Huggins’ August 3, 1983 registration was still extant. Though he had
been referred by the Union in September 1983, that job lasted less than 3
days.
pears Coates, Gray, Poorman, and Scott were bypassed for
the January referral because they signed the ‘‘book’’ in 1983
on dates (as indicated above) before Corbin signed it.
Weaver asserted Corbin was entitled to priority referral
consideration because he was a union steward. However,
there is absolutely no documentary evidence to support that
assertion. I find Weaver’s steward testimony unconvincing
and unreliable. That testimony was imprecise. Weaver first
claimed there was only one steward on any particular job.
But he equivocated when he was confronted with the situa-
tion of J. Vaughan, whom Weaver claimed also had been re-
ferred as a steward. Apparently, Vaughan worked together
with Corbin at the job Corbin had in 1984. After learning
this during his testimony, Weaver altered his position regard-
ing stewards. Then, he opined Corbin and Vaughan may
have been stewards for different subcontractors on a single
project which was so large that multiple employers were in-
volved.
I recognize that Weaver’s explanation is not outside the
realm of possibility. However, his assertions are unsubstan-
tiated by documents or testimony of other persons. these fac-
tors, together with Weaver’s own uncertainty of the events,
lead me to conclude there is insufficient evidence to effec-
tively refute the evidence that Corbin’s January 1984 referral
shows certain discriminatees were bypassed.
(h) E. Council: This laborer signed the ‘‘book’’ on Sep-
tember 11, 1982 and May 26, 1983. H & W fund contribu-
tions are shown from one employer on May 22 and June 1,
1983 (G.C. Exh. 42); and from another employer on various
dates from September 25 until November 1, 1983.
Coates and Scott signed the ‘‘book’’ on December 13,
1982; and again on July 19, 1983, together with Poorman.
they were waiting for referral in September 1983.
Council again signed for referral, this time on the yellow
sheet, on November 21, 1983. H & W fund contributions ap-
pear on his behalf from Bechtel on February 26, 1984.
As shown in subparagraphs (c) through (e) above, Coates,
Gray, A. Huggins, Poorman, and Scott were still awaiting re-
ferral based upon their several registrations between July
1983 and February 1984. No explanation for Council’s Feb-
ruary 1984 referral over these discriminatees appears in the
record.
(i) D. Davenport: As previously reported, Davenport
changed jobs between November and December 1983. H &
W records show it was Bechtel that made a fund contribution
for him in December. Davenport’s name does not appear on
the yellow sheets. There is no apparent explanation for Dav-
enport’s November or December 1983 referral to Bechtel at
a time when at least Coates, Gray, Poorman, and Scott were
still waiting for referrals based upon their July, August, and
September 1983 registrations reported above.
(j) M. DiCastenado: H & W records show fund contribu-
tion entries for this laborer by John McQuade company from
July 31 to October 1, 1983; and by Bechtel beginning Octo-
ber 1, 1983.
As shown above, Coates, Gray, A. Huggins,13 Poorman,
and Scott had signed for referrals before McQuade stopped
making contributions and before Bechtel began to make
them.
There is no indication that DiCastenado signed for referral.
Even if he had signed, Coates, Gray, A. Huggins, Poorman,
and Scott clearly registered before DiCastenado’s Bechtel re-
ferral on or about October 1, 1983.
(k) W. Golden: H & W records show fund contribution
entries for this laborer from R. M. Shoemaker Co. in Sep-
tember and October 1983; W. L. Lotz, Inc., on October 1
and November 1, 1983; and then Bechtel beginning Decem-
ber 25, 1983. Golden signed the ‘‘book’’ on October 28 and
November 14, 1983.
Golden’s Bechtel referral appears to have bypassed Coates,
Gray, Poorman, and Scott, each of whom has been shown
above to have registered both before Golden’s October and
November 1983 registrations and the time he apparently was
referred to Bechtel.
Weaver speculated Golden’s referrals may have been as
steward. However, I consider this claim unreliable (see my
discussion concerning stewards in subparagraph (g) above).
(l) J. McKinzy: H & W fund contributions were made for
this laborer between July and November 1, 1983 by R. M.
Shoemaker Co., and immediately after that date by Bechtel.
McKinzy’s Bechtel referral appears to have bypassed
Coates, Gray, Poorman, and Scott, each of whom registered
for referral before November 1, 1983 and were still waiting
for referral on that date. This Bechtel referral remains unex-
plained.
(m) W. Prince: H & W fund contribution entries appear
on May 27, 1983 for work of this laborer at Depoli Co.; and
on intermittent dates between August 1, 1983 and February
26, 1984, at which time Bechtel reported fund contributions
for him. Later, as the records show, fund contributions once
again were made for Prince until December 1985. Prince had
registered on the yellow sheet on November 29, 1983. The
previously reported registration date of July 19, 1983 for
Coates, Poorman, and Scott which fell before Prince’s No-
vember 1983 registration shows these discriminatees appar-
ently were bypassed by Prince’s presumed referral to Shoe-
maker on or about August 1, 1983.
(n) B. Whitfield: H & W records show fund contribution
entries for this laborer on December 27, 1983 from McKin-
ney Drilling Co.; and again by a different employer, Near
Contracting Co., on December 30, 1983. Contributions by
Near Contracting continued through November 29, 1985.
Whitfield signed a yellow sheet on January 4, 1984. How-
ever, since Coates, Poorman, and Scott signed for referral on
January 3, 1983; and Gray signed on August 3, 1983, the re-
ferral of Whitfield to Near Contracting in December of that
year, and before he signed up for referral in January 1984,
comprises another example of the Union’s bypassing of
discriminatees within the backpay period.
3. Language of the Board’s Order
Resolution of the propriety of keeping the backpay period
open-ended relies, in part, on the language used by the Board
in its remedial order.
As described in section III,A above, the Board established
the backpay period for W. Bradley, A. Huggins, and R. Hug-
gins as between specific dates, but treated the remaining
discriminatees differently. Scott’s backpay period was de-
scribed as occurring ‘‘after November 24, 1981’’; Coates’
1081LABORERS LOCAL 135 (BECHTEL POWER CORP.)
14 Bradley and R. Huggins are omitted from further discussion in this sec-
tion because I conclude the Board closed their backpay periods on August 21
and May 19, 1981, respectively. The backpay period of A. Huggins will be
separately discussed in sec. III,C(7), below.
period encompassed time ‘‘at least’’ until February 10, 1982;
and the backpay period for Gray, McMillan, and Poorman in-
cluded time ‘‘since’’ March 5, 1982 (for Gray and McMil-
lan) and ‘‘since’’ July 16, 1981 (for Poorman).14
I find the Board’s use of the quoted and emphasized words
above are wholly consistent with the part of its decision
which left it to the instant compliance proceeding to deter-
mine the out-of-turn referrals with precision. Implicit in such
a task is the potential for uncovering union conduct which
would require additions to the specific periods of backpay
entitlement the Board had already identified for these five
discriminatees.
Words must have some meaning. I conclude ‘‘After’’ de-
notes some antecedent time period beyond November 24,
1981 mentioned by the Board for Scott; ‘‘At least’’ signifies
a time or times which are no less than that which the Board
specified for Coates; and ‘‘Since’’ refers to a time following
a past time or event. As used regarding Gray, McMillan, and
Poorman ‘‘since’’ means dates which, of necessity, must fol-
low the March 5, 1982 and July 16, 1981 dates found by the
Board. If (as the Union contends) the Board intended its ter-
minology to close the backpay periods of these five
discriminatees on the dates set forth in its decision, it readily
could have done so by using the phraseology it employed as
to A. Huggins, Bradley, and R. Huggins.
I conclude the qualifying words used for Coates, Gray,
McMillan, Poorman, and Scott are logical and a pragmatic
recognition of the Board-imposed task of searching for spe-
cific out-of-turn referrals during the compliance phase of
these unfair labor practice cases. In this connection, I note
the Board’s order provided its make-whole remedy should
continue until the Union ‘‘ceases its unlawful conduct by
properly referring . . . (the discriminatees) . . . to employ-
ment’’ (271 NLRB at 783). In this context, each word under
consideration inherently suggests a virtual mandate to expand
the backpay period, if warranted by the circumstances uncov-
ered during the compliance phase, to future dates not yet in
being on the date the Board issued its decision.
In sum, I find the very language of the Board’s Decision
and Order in the underlying case supports a conclusion that
the subject backpay periods were open-ended.
The Union’s brief addresses what it calls the ‘‘parameters
of the potential backpay periods applicable to each
discriminatee.’’ Its argument is based on a review of evi-
dence (adduced in the underlying unfair labor practice pro-
ceeding) which shows the Union referred the discriminatees
to work several times. The Union also points to evidence ad-
duced in the instant proceeding which shows it referred some
of the discriminatees to jobs after Judge Ricci’s hearing
closed. These referrals are asserted to foreclose the notion
that any backpay period can be considered open-ended.
It is true that there is evidence Coates was referred on Jan-
uary 1 and March 4, 1984; Gray on March 3, 1984; A. Hug-
gins on July 31 and September 1, 1983, on February 27, De-
cember 1 and 23, 1984, and March 27 and April 1, 1985;
McMillan on October 1, 1983; and Scott on March 4, 1984.
However, it is equally clear that the records do not reliably
reflect that those referrals meet the terms of the Board’s
cease-and-desist language. That language, quoted above,
clearly impels the conclusion that the Union could limit its
liability only ‘‘by properly referring’’ [emphasis added] the
discriminatees to work. The Union bears the burden of prov-
ing these referrals effectively tolled backpay liability. Doubts
are to resolved against the Union (Teamsters Local 70
(Nielsen Freight Lines), 265 NLRB 220, 224 (1982). The
state of the Union’s records creates such doubt.
My examination of the records in evidence compared to
the testimony relating to them persuades me the records, as
maintained during the times critical in this case, are not use-
ful tools to monitor, reconstruct or police the Union’s referral
hall operations. (Similar conclusions were reached by the re-
gion’s compliance officer and the Union’s own expert wit-
ness, as will be shown below.)
The condition of the referral records, and manner of im-
plementing the hiring hall, establish manifold uncertainties
that the Union abated its discriminatory conduct. Such uncer-
tainties are to be resolved against the wrongdoer; in this
case, the Union (NLRB v. Miami Coca Cola Bottling Co.,
360 F.2d 569 (5th Cir. 1966); Dodson IGA Foodliner, 218
NLRB 1263, 1265 (1975).
The Board itself, in the underlying decision, signalled that
the mere showing the Union referred a discriminatee to work
is not enough to toll the backpay period. Several referrals of
the discriminatees were enumerated by Judge Ricci. The
Board’s decision patently reflects those referrals did not
serve to foreclose continuation of the backpay period. At
most, the Board’s decision simply shows a referral caused
only an interuption, not cessation, of the backpay period (see
Board’s findings regarding Coates, Gray, McMillan, and
Poorman, whose backpay periods are expressed in segmented
portions).
Also, I have considered the Union’s argument to the effect
that any single referral after the close of Judge Ricci’s hear-
ing satisfies all requisites for closing a backpay period. Spe-
cifically, this argument relates to referrals of Coates, Gray,
Poorman, and Scott in March, 1984, to T. N. Ward Co. In
other circumstances, the Union’s position might have merit.
However, the particular situation present here negates reli-
ance on those referrals as dispositive elements regarding
backpay termination.
The condition of the referral records makes it impossible
to reconstruct data sufficient to confirm, or draw, a conclu-
sion that any of these referrals complied with the requirement
that they be ‘‘proper’’ referrals. In this context, I find such
referrals only amount to a token effort to make a proper re-
ferral. In my view, there is no way the totality of evidence
in these backpay proceedings can be used to establish that
the referrals mentioned were likely to correct the Union’s
wrongdoing, and that it unequivocally did so. The Board re-
quires clear, unequivocal action by the Union before it will
be allowed to escape liability for backpay by a mere token
act which is not surely going to correct its prior misconduct
(Iron Workers Local 377 (Judson Steel), 208 NLRB 848, 851
(1974); Iron Workers Local 426 (Tyco Steel), 192 NLRB 97
(1971). Although each of these cases was decided in a con-
text different from the case at bar, I find the stated principle
applies to the instant case).
The Union’s argument that no backpay period can be ex-
tended unless based on proof of specific out-of-turn referrals
is unpersuasive. The Union cites NLRB v. Ironworkers Local
1082 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 Formerly, the Union kept ‘‘Work Sent Out Forms.’’ Those records did
identify such things as names of laborers whom the Union referred to jobs,
referral dates, and employer to whom referrals were made. However, Weaver
bluntly testified the Union stopped using this record because, in Weaver’s
words, ‘‘The form actually had no use in the office’’ (Tr. 2358).
16 Apparently, the laborers often ignored this rule. The multiple signing does
not affect the disposition of the matter at hand, except as it is a factor which
tends to support the contention that the Union’s referral records could not be
used to reconstruct its postdecisional compliance activities.
483 & Local 11, 672 F.2d 1159 (3d Cir. 1982) in support
of its contention. Specifically, the Union asserts, ‘‘As the
Court of Appeals noted in . . . [Ironworkers Local 483] . . .
before damages are assessed . . . [the Union] is entitled to
defend itself against ‘findings of sufficient specificity so that
it is clear when a violation occurred . . . .’’’ (U. Br. 43.)
I find the Union’s argument only superficially appealing.
First, I consider Ironworkers Local 483 materially distin-
guishable from the present matter. Though the court of ap-
peals did enunciate the need for proof of specific out-of-turn
referrals in that case, such proof was being directed to the
court’s review of the sufficiency of evidence to support the
Board’s initial findings that unfair labor practices occurred.
Ironworkers Local 483 was before the court on a petition for
enforcement of the Board’s order. That is an entirely dif-
ferent context from the instant backpay proceeding.
There is another significant difference between Iron-
workers Local 483 and this case. In Ironworkers Local 483,
one of the issues was whether Local 483 had engaged in
widespread and pervasive unfair referral hall practices. In the
case at bar, the Board has already decided that very issue.
The Board here expressly found this is the type of excep-
tional case which contains widespread and pervasive dis-
crimination. Its remedial order is, in part, based on that find-
ing; and that order has been enforced by the very same ap-
peals tribunal that decided Ironworkers Local 483.
I find the present circustances present a situation which lit-
erally cries out for the application of rules which best safe-
guard the rights of the victims of the Union’s discriminatory
actions. Such a philosophy comprises the underpinnings of
the well-entrenched rule of Board backpay cases that a
‘‘backpay claimant should receive the benefit of any doubt
rather than the Respondent . . . .’’ (United Aircraft Corp.,
204 NLRB 1068 (1973), and cases cited at fn. 3).
The Union’s reliance on Ironworkers Local 483, I con-
clude, is a plea for application of rules which simply do not
fit the circumstances at hand. The rule of that case applies
to situations in which doubt of a respondent’s culpability still
exists. That is not the case here. To apply the rule to the in-
stant case would reward the Union for continuing its shoddy
operation of the referral hall—the very vice which gave rise
to these backpay proceedings. The condition of the Union’s
referral records and its recordkeeping practices set forth in
this record require rejection of the Union’s argument.
4. Compliance officer’s findings
Compliance Officer Curley’s activities began in the back-
drop of the events reported above, though many of them
were yet to be uncovered by him as his efforts progressed.
Curley began his compliance investigation in October
1984. Then, Curley’s purpose was to determine how he could
reconstruct the Union’s referrals to ascertain the precise num-
ber of out-of-turn referrals and related matters left by the
Board to the compliance stage of the case. He met, in Octo-
ber 1984, with the Union’s attorney, Cohen, Weaver, and
Union President Dan Woodall. Those union representatives
produced the referral book.
Curley testified the records he saw showed only who reg-
istered for referral. Lines were drawn through some names
in the book. There was no indication of the date the lines
were drawn through the names. Curley said he was told
those lines could signify one or more events; namely, the
person (a) had been referred to work by the Union; (b) had
obtained a job without the Union’s assistance; or (c) was
seen at work on a construction site by Weaver or some other
union agent during the course of their travels through the
Union’s territorial jurisdiction. The referral book did not re-
flect the dates of referral.
Curley stated he asked Weaver and Woodall whether the
Union maintained daily referral sheets. He was told such
records were not maintained.15 Curley testified ‘‘. . . the
problem was that there was no record of in-turn or out-of-
turn referrals. Basically, all you had was a ledger that the
members would sign and whose names would be crossed off
and wasn’t a real accurate record of people who had been
referred or not referred’’ (Tr. 60).
Curley discussed the way the book was kept with Weaver
and Woodall. They told him there was a problem because
there wasn’t enough work for all members to keep busy, so
they were trying to distribute work equitably, but that it was
difficult to keep track of the members because they could ob-
tain work on their own and frequently failed to advise the
Union they had a job.
Curley also testified that he saw no record showing which
laborers had been present in the referral hall in accordance
with the then-operative April 1, 1984 rule requiring those
looking for referral to present themselves in the referral hall.
Curely concluded the referral book did not contain sufficient
information to determine whether any particular individual
had been passed over for referral.
Curley told Attorney Cohen, Weaver, and Woodall the
Union couldn’t ‘‘maintain the status quo because that had
been found to be unlawful, and that they had to do some-
thing about the way the hall was being operated’’ (Tr. 176).
A series of written communications between the Union’s
attorneys and the Regional Office officials ensued (R. Exh.
8(a-b), 12, 46, 47). The net result was that the Union pre-
pared new, or modified, referral rules as late as June 1986.
However, Curley testified that additional visits to examine
the Union’s referral records showed the records did not yet
contain information from which the Union’s referral activi-
ties could be traced. He testified the Union had not imple-
mented the terms of its new rules. Specifically, Curley dis-
covered the Union passed the names of people who signed
for referral, but did not strike the names of those who were
absent from the referral hall. He also found that each day
Weaver started to call the names of laborers from the point
he ended on the preceding day, instead of returning to the
place where unstricken names began. Weaver confirmed this
was his procedure). Curley said he concluded this practice
was arbitrary and effectively prevented laborers from being
offered referrals indefinitely because of the Union’s long-
standing rule that an individual was not permitted to sign the
book a second time until his name from an earlier signing
had been stricken.16
1083LABORERS LOCAL 135 (BECHTEL POWER CORP.)
Curley informed the Union of his belief this practice was
arbitrary. Weaver told Curley he would change the practice
and thereafter call names of recently signed laborers (high
number in the book) one day and then call names of earlier-
signed laborers (low numbers in the book) or those whose
names were not stricken the next day. (This was an apparent
effort to rectify what Curley found to be an arbitrary sys-
tem). Curley testified Weaver’s alternate day calling system
was not satisfactory and that, in any event, Weaver’s
implementaiton of the referral system continued to be dif-
ferent from the Union’s rules and the records were still not
valuable guides for reconstruction of the actual referral.
I adopt Curley’s conclusion that the Union’s referral
records during the times critical to these proceedings were
literally useless for the necessary purpose of piecing together
the Union’s referral practices. Curley’s testimony is not the
sole source of my conclusion. My own examination of the
evidence, together with oral testimony germane to it, impels
me toward Curley’s conclusions. Likewise, Weaver’s testi-
mony about how the hiring hall was implemented during the
backpay period and his earlier reported admission that the re-
ferral book could not be used by itself to paint a true picture
of actual referrals has reinforced my opinion that Curley’s
observations should be adopted.
5. Opinion of the Union’s expert witness
Finally, one of the Union’s own witnesses characterized
the condition of the referral records. Professor Ezra S.
Krendel, an expert witness on behalf of the Union, prin-
cipally testified on the issue of what formula should be used
to compute backpay in the instant case. His pretrial prepara-
tion caused him to examine the referral book. Professor
Krendel gave the following overview of that record:
. . . I saw a book. A rather chaotic book of entries
when laborers got on the list to be called in the hiring
hall. And, I remember looking at a large document of
that nature and wondering whether there was any coher-
ence to it at all as a record . And, it was kept by dif-
ferent people, as I could see by the handwriting
changes. And, it was, I thought, a totally disorganized
mess (Tr. 2114).
I looked at the ledger of the hiring hall. And, from
what I saw there, it was such a poorly kept record that
I couldn’t see how it could be used for any physical
evidence of activity on the part of the union or not on
the part of the union (Tr. 2136-2137).
6. Recapitulation and conclusion
I conclude and find the record contains overwhelming sup-
port for the proposition that the backpay periods should be
kept open-ended as General Counsel requests. My determina-
tion is based on the following factors:
(a) The Union’s continuation of practices which ig-
nored the referral rules;
(b) The numerous bits of evidence which show the
Union neither possessed, nor maintained, referral
records in such a condition that would permit recon-
struction of its referral activities since the underlying
unfair labor practice hearing was conducted.
That evidence consists of; (1) the absence of any notations
on the yellow sheets of names of persons referred or referral
dates; (2) Weaver’s testimony that names on the yellow
sheets did not make their way into the referral book; (3)
Weaver’s admission that the yellow sheets were of no use in
determining referrals; (4) the failure of Daily Job Referral
Activity lists or any other record to reflect reasons for appar-
ent out-of-turn referrals; (5) the evidence showing the referral
book in use after August 1, 1986 contained incomplete and
misleading information; (6) Weaver’s admission the referral
process could not be reconstructed from the entries in the re-
ferral book; (7) the evidence which shows the Union contin-
ued to make discriminatory referrals during the backpay pe-
riod; (8) the language of the Board’s order which reflects a
design to keep the backpay period open-ended for some of
the discriminatees; 9) the compliance officer’s conclusion
that the referral activities could not be reconstructed from the
Union’s referral records; and (10) the opinion of the Union’s
expert witness that the referral books could serve no useful
purpose in this proceeding.
I have considered the inherent difficulty in operating a re-
ferral hall which permits employees to solicit jobs without
union intervention and also allows employers to avoid using
the referral hall. Those difficulties, however, do not govern
disposition of this backpay proceeding. What is paramount
here is the extent to which the Union’s conduct in matters
over which it clearly had control sufficiently complies with
the Board’s order to take action to end its earlier discrimina-
tory conduct and to maintain records to show that it had
done so. The record as a whole, I find, simply does not dem-
onstrate the degree of diligence in recordkeeping con-
templated by the Board.
I am appreciative of all the efforts the record reflects were
made by the Union’s attorneys to establish referral rules and
conduct which would satisfy the terms of the Board’s order.
However, the record in its totality shows far less assiduous
efforts on the part of those charged with day-to-day operation
of the referral hall.
Finally, I am sympathetic to the Union’s claim that consid-
erable sums of money emanate from my finding of open-
ended backpay periods. However engaging this claim may
be, the discriminatees’ rights to be compensated for the
Union’s unlawful conduct are equally captivating. Those
rights cannot be defeated or diminished because the Union
could not keep track of what it did to comply with the
Board’s order. Balancing all relevant elements, I am per-
suaded that there is merit to General Counsel’s request that
certain of the backpay periods should be treated as open-
ended, as appears in the most recent amendment to the back-
pay specification. My recommended order will reflect this
conclusion.
7. Andrew Huggins
Two issues relate particularly to discriminatee Andrew
Huggins. First, is it appropriate for General Counsel to re-
open this discriminatee’s backpay period in the face of the
Board’s decision which established finite parameters? Sec-
ond, if A. Huggins’ backpay period properly is considered
open-ended should it be closed, as General Counsel did on
April 9, 1987, or does it continue to run beyond that date,
as the Charging Parties claim?
1084 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
17 I have determined A. Huggins’ availability for referral by reference to the
Union’s and H & W records in evidence. I have relied on a letter from A.
Huggins to Curley (G.C. Exh. 30), a document frequently cited by General
Counsel as proof of the facts which A. Huggins wrote, only to the extent the
Union’s and H & W records make Huggins’ assertions plausible and probable.
Thus, having in mind the rules required laborer’s presence for referrals, I ac-
cept Huggins’ written statement that both he and Oates were present in the
referral hall on the date Oates was referred.
a. Reopening of A. Huggins’ backpay period
As earlier reported, the Board found A. Huggins’ backpay
period to be between December 5, 1980 and April 9, 1981.
The initial backpay specification limited the backpay claim
to that 4-month, 4-day time period. Curley testified that A.
Huggins complained several times during the compliance in-
vestigation that he had been bypassed for referral. Curley as-
serted he called those complaints to the attention of union
representatives and that, based on his conclusions concerning
the state of the Union’s referral records, the backpay speci-
fication was amended to reopen A. Huggins’ backpay period.
A. Huggins’ history of registration for referrals and jobs
held since the date the Board’s decision closed his backpay
period is contained in the instant record (See C.P. Exhs. 2–
5, 7; and R. Exhs. 20, 31-D). Those records show A. Hug-
gins signed up for referral on September 9 and December 28
1982; on August 3, 1983; on January 27, and February 6,
1984; and as No. 162 and No. 327 under the Unions’ April
1, 1984 rules; and as Nos. 233 and 382 in the new referral
book beginning August 1, 1986. H & W records (G.C. Exh.
32) and union pension records (R. Exhs. 20, 31-D) show A.
Huggins worked for several employers intermittently between
July 31, 1983 and March 29, 1986. Insofar as the records
permit such a comparison, it appears A. Huggins registered
for referral at times consistent with periods of nonemploy-
ment.
This evidence of A. Huggins’ work history, viewed in iso-
lation, suggests each of the jobs he received was a union re-
ferral in consequence of his most recent registration. But
there is no evidence to show such referrals were made in
proper order.
Indeed, there is evidence to support the conclusion that the
Union continued to bypass A. Huggins, as well as other
discriminatees, after the date the Board closed A. Huggins’
backpay period. The evidence regarding by passing of other
discriminatees is described in section III,C(2)(a-n), above. It
will not be repeated here. Some of that earlier-reported evi-
dence also applies to A. Huggins (See section III,C(2), sub-
paragraphs (d), (e), (h) and (j), above). That evidence strong-
ly supports the conclusion which I formerly made, in general,
that the burden has been cast on the Union to present con-
vincing and cogent evidence that it had stopped its unlawful
bypassing of the discriminatees during the backpay period. I
now reaffirm that conclusion specifically as to A. Huggins.
Additional evidence exists that the Union’s bypassing of
A. Huggins still continued as late as 1984. This evidence re-
lates to the referrals of Lawrence King (who testified in the
instant hearing) and Shelvin Oates.
King was laid off from Bechtel in September 1984 (G.C.
Exh. 40). He testified he then signed the referral book. His
name is designated No. 571 (C.P. Exh. 5). A. Huggins’ name
is designated No. 162 in the same referral book. King testi-
fied Weaver telephoned him and referred him to work at
Miorelli-Kirlin Co., Inc. in October 1984. Weaver was not
asked to refute this part of King’s testimony. H & W records
for King (G.C. Exh. 40) reflect that Miorelli-Kirlin made
fund contributions for him for work that month and into De-
cember 1984. King’s name is not stricken from the referral
book.
Three questions remain unexplained: (1) Why was King,
listed in the referral book with a number considerably higher
than A. Huggins, referred to a job at a time A. Huggins was
awaiting referral?; Why wasn’t King’s name stricken from
the book upon his referral in October 1984?; and why was
the referral made by telephone during a time when the rules
required laborers seeking referral to be present in the union
hall?
I find the absence of reasonably satisfactory responses to
these three questions warrants the inference, which I make,
that King’s October 1984 referral to Miorelli-Kirlin con-
stitutes a bypassing of A. Huggins as late as approximately
3-1/2 years after the Board closed his backpay period.
Regarding Oates, the referral book shows his name des-
ignated No. 687. This number is considerably higher than
King’s referral number was over A. Huggins’. Yet, the
records reflect that Oates had been referred to work at Reli-
ance Drilling, Inc. in December 1984 at a time A. Huggins
apparently was awaiting referral. Further, the book shows
Oates’ name was not stricken upon his referral.
Weaver testified the Reliance Drilling job called for a la-
borer who possessed the ability to perform specialized so-
called ‘‘caisson’’ work and that Oates was so qualified. I
cannot accept Weaver’s explanation because documentary
evidence which could have corroborated it does not do so.
In section III,C2), above, I reported that the Union’s daily
job referral activity list form (C.P. Exh. 6) was designed ex-
pressly to record reasons for out-of-turn referrals, and was in
use during the period of Oates’ referral. Those records do not
at all refer to Oates’ December 1984 referral to Reliance
Drilling. In this posture, I find Weaver’s unsupported at-
tempted justification for Oates’ referral insufficient to over-
come the adverse implications of Weaver’s acknowledgement
he referred Oates to the job at Reliance Drilling as the
records reflect; and the referral book notations which show
this occurred when the immense disparity in referral-number
designations apparently entitled A. Huggins to referral con-
sideration long before Oates.17 Accordingly, I conclude the
circumstances surrounding Oates’ referral comprise another
time the Union continued to bypass A. Huggins long after
the Board’s closing date of his backpay period. I also con-
clude this evidence entitles A. Huggins to be accorded the
same consideration as the other discriminatees whose open-
ended backpay periods have been found justified. Thus, I
find merit to General Counsel’s claim that A. Huggins is en-
titled to backpay after April 9, 1981.
b. Terminal date of A. Huggins’ backpay period
I turn now to disposition of the differences between Gen-
eral Counsel and Charging Parties regarding the date to close
A. Huggins’ backpay period. As noted previously, General
Counsel’s termination of A. Huggins’ backpay is coextensive
with his disability award. the most recent amendment to the
backpay specification extends A. Huggins’ backpay period
to, and terminates it in, the first calendar quarter of 1987.
The termination date is based on the April 9, 1987 grant of
1085LABORERS LOCAL 135 (BECHTEL POWER CORP.)
elgibility for supplemental social security income based on
A. Huggins’ blindness (see R. Exh. 29(b)).
Charging Parties have requested A. Huggins’ ‘‘backpay
period . . . be opened to include the second quarter of
1987.’’ (C.P. Br. 32). This request is based on Charging Par-
ties’ assertion that A. Huggins’ disability did not prevent him
from working at his trade. Specifically, Charging Parties
point to the uncontested evidence that A. Huggins worked
for J. S. Cornell & Son, Inc. in April 1987 (See R. Exh. 20).
Charging Parties argue ‘‘. . . the uncontroverted evidence
that . . . (A. Huggins) . . . was still working at the trade’’
(C.P. Br. 30) after he was awarded disability benefits re-
quires evidence that he actually declined work because of his
disability to cut off his backpay entitlement.
My analysis of the record persuades me that the evidence
does not sustain Charging Parties’ position. I conclude there
is insufficient evidence to say, with certainty, there exists
‘‘uncontroverted’’ proof A. Huggins actually performed work
at the trade after he was declared eligible for the supple-
mental income benefits.
The evidence shows A. Huggins did work for J. S. Cor-
nell in April 1987. His final pay stub reflects Cornell paid
him for 8 hours work during the payroll week ending April
12, 1987 (R. Exh. 29(e)). The notification of grant of dis-
ability benefits is dated April 9, 1987. This presumably is the
date the notification was mailed to A. Huggins. There is no
evidence of the date Huggins received it. However, it is fair
to assume the notice could not have been received earlier
than April 10, a Friday. For the Charging Parties to be factu-
ally correct that the evidence shows A. Huggins worked as
a laborer after the award of disability benefits, he would
have had to perform work for J. S. Cornell on Saturday,
April 11.
I consider it strained to imagine the mail delivery on April
10 would have been early enough that day for A. Huggins
to have worked the full 8 hours for which he was paid at
the end of that payroll week. Also, I have considered the
possibility he might have worked on April 12, the very day
the payroll week ended. That was Sunday. I find it unlikely
he worked that day, particularly because his pay stub indi-
cates the 8 hours’ pay was for ‘‘regular’’ hours, and contains
no reflection that payment comprised overtime earnings.
Viewed in this light, and contrary to Charging Parties, I
conclude the record does not contain the ‘‘uncontroverted
evidence’’ which forms the basis of Charging Parties’ sec-
ond-quarter 1987 backpay claim for A. Huggins. Because of
this, I find it appropriate to terminate A. Huggins’ backpay
period at the end of the first calendar quarter, 1987 as ap-
pears in the backpay specification as most recently amended.
IV. THE FORMULA
A. Applicable Decisional Precedent
The parties produced abundant testimonial and documen-
tary evidence relating to the appropriateness of the backpay
formula contained in the amended backpay specification. In
spite of the presence of this seemingly complex evidence, the
relevant court and Board decisions clearly provide the basic
principles upon which to decide what formula should be used
to calculate the backpay due the discriminatees.
The Board’s make-whole remedies entitle discriminatees to
receive what they would have earned during the backpay pe-
riod if they had not been victims of unlawful discrimination.
Of course, interim earnings are deducted from the wrong-
doer’s liability. This is a broad concept not simple in its ap-
plication. Generally, there is no universal formula that meas-
ures an exact backpay sum, because the discriminatees often
do not actually work during the backpay period, or do so on
a reducted, erratic, or under other conditions different from
those which existed before the discrimination.
The Board has wide discretion in developing procedures
and methods of backpay determination. Fibreboard Corp. v.
NLRB, 379 U.S. 203, 216 (1964); NLRB v. Seven-up Bottling
Co. of Miami, 344 U.S. 344, 346–348 (1953). The Board
‘‘may use as close approximations as possible, and may
adopt formulas reasonably designed to produce such approxi-
mations’’ (NLRB v. Brown & Root, 311 F.2d 447, 452 (8th
Cir. 1963) in performance of its backpay obligations (see
also Iron Workers Local 378 (Judson Steel), 213 NLRB 457,
458 (1974), remanded 532 F.2d 1241 (9th Cir. I976)). Once
the General Counsel’s formula has been established, it must
be accepted if it is reasonable and not arbitrary (Fibreboard
Co., supra; Bakers Council of Greater New York v. NLRB,
555 F.2d 304 (2d Cir. 1977); NLRB v. Iron Workers Local
378, supra).
Certain other court and Board decisions are especially ap-
plicable to this case. Those decisions pertain to the nature of
the General Counsel’s formula used in the instant case. This
formula uses the so-called ‘‘representative employee’’ meth-
od of backpay computation. This technique bases backpay
upon the average earnings of employees who, during the
backpay period, worked in jobs similar to the discriminatee’s
before the occurrence of the unfair labor practice. This mode
of calculating backpay has long been used by the Board and
has been judicially approved (Midwest Hanger Co., 221
NLRB 911 (1975), affd. 550 F.2d 1101 (8th Cir. 1977); Am-
brose Distributing Co., 178 NLRB 721, 723–725 (1969),
enfd. 439 F.2d 720 (9th Cir. 1971); J. H. Rutter-Rex Mfg.
Co., 158 NLRB 1414 (1966), modified on other grounds 399
F.2d 356 (5th Cir. 1968), Board decision affd. 396 U.S. 258
(1969)).
The Respondent in backpay proceedings has the burden of
showing that the ‘‘representative’’ group of employees se-
lected by General Counsel does not actually possess the ho-
mogenous characteristics contemplated by this formula (See
Honda of Mineola, 233 NLRB 81, 82 (1977) where the
Board let stand its administrative law judge’s observation
that a backpay respondent’s general burden of proving eco-
nomic defenses to the proposed backpay formula applies to
respondent’s claim that the General Counsel’s ‘‘representa-
tive’’ group actually is not valid for the intended comparative
purposes).
I have used the above-cited decisional authority as guide-
posts to determine whether or not General Counsel’s pro-
posed backpay formula is appropriate. As will be shown
below, I conclude it is.
B. Parties’ Contentions
The General Counsel contends the formula proposed in the
backpay specification is reasonable under all the cir-
cumstances of this case. It is one of the four customarily
used and recommended approaches to backpay computation
prescribed in General Counsel’s Casehandling Manual, sec-
1086 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
18 The Union claims it is error to apply the backpay formula to calendar
quarters and that annual computations are more appropriate. Because the Su-
preme Court sanctioned quarterly computations in 1953 in NLRB v. Seven-Up
Bottling Co. of Miami, supra, I find it unnecessary to discuss this contention
further.
19 I find Curley’s erroneous understanding has no negative impact upon the
reasonableness of General Counsel’s development of the random sample fi-
nally used for backpay computation. This is so because: (a) no evidence was
offered to show that the misunderstanding caused anyone to be improperly in-
cluded or excluded from the random sample; and (b) even the Union adopted
General Counsel’s sample in presenting its alternative formulas.
tions 10536 through 10544.4. Those sections are based on
court-sanctioned formulas.
In particular, General Counsel urges use of the ‘‘represent-
ative employee’’ formula uniquely fits the factual backdrop
of the instant case because it approximates, as closely as pos-
sible, what each discriminatee could have expected to earn
during the backpay period if working at the trade at that
time. Thus, the proposed formula uses the average earnings
of who General Counsel claims are comparable employees;
specifically, a random sample of the Union’s members who
worked in the construction industry during the backpay pe-
riod. General Counsel asserts the method used to develop the
backpay specification inherently adjusts for the seasonal na-
ture of the construction industry, possible periods of lack of
work, those individuals who may have obtained work di-
rectly from an employer and not through the Union’s referral
hall, those who may have had a work specialty, and those
who worked consistently for a particular employer.
The Charging Parties apparently agree with General Coun-
sel’s position. They urge adoption of the formula as con-
tained in the backpay specification.
The Union argues that no single formula is applicable to
all eight discriminatees. Alternately, the Union contends that
the General Counsel’s formula is arbitrary and unsound. Spe-
cifically, the Union claims General Counsel’s sample is actu-
ally not ‘‘representative’’ because its random nature does not
truly reflect earnings expectations.
The Union proposes a substitute backpay formula which,
it contends, more fairly predicts what the discriminatees
could have been expected to earn during the backpay period.
The Union’s formula is based on the work history of each
discriminatee for specific time periods before the discrimina-
tion. Such a method, according to the Union, would produce
a base of personal work habits and behavior which present
a more reliable source than General Counsel’s for assessing
earnings approximations of particular discriminatees during
the backpay period.
The Union does not challenge the accuracy or legitimacy
of the sums appearing in the backpay specification as interim
earnings, vacation hours, pension hours and amounts due for
vacation, pension contributions, or a medical expense claim
of Scott in fourth quarter, 1983.18
C. The Competing Computation Methods
1. The General Counsel’s method
I reported, in section III,C(4), that Compliance Officer
Curley’s first efforts to establish the sums due the
discriminatees involved an attempt to uncover specific out-
of-turn referrals during the backpay period. When he con-
cluded the condition of the Union’s records did not permit
him to accomplish that task, he resorted to application of the
‘‘representative employee’’ formula, as prescribed in the
General Counsel’s Casehandling Manual, section 10542–
10542.3
Curley obtained a list of the union members. That list con-
tained more than 1100 names. Curley’s objective was to es-
tablish the group of laborers similarly situated to the
discriminatees. This group was to comprise the base of ‘‘rep-
resentative’’ employees.
Curley eliminated those members whose ‘‘status date’’ fell
after 1980. Curley assumed the ‘‘status date’’ was equivalent
to the date an individual had been admitted to membership.
He testified that excluding people who had become members
during the backpay period would provide a group of laborers
most similarly situated to the discriminatees because the
newer members would have been working during the back-
pay period when the discriminatees did not work. As it de-
veloped, Curley’s belief that ‘‘status date’’ signified member-
ship was incorrect. Actually, that term referred to the most
recent date the Union’s members were current in dues.19
Curley systematically deleted the names of persons with
status dates after December 29, 1980. Six hundred and fifty
names remained on the membership list when the deletions
were completed. Curley then obtained wage and benefit fund
contribution data. He testified he intended to use that infor-
mation to develop past earnings as a predictor of what earn-
ings might have been expected during the backpay period.
However, he found a ‘‘drastic decline’’ (Tr. 130) in hours
worked by some of the discriminatees in the 2 years imme-
diately before the discrimination took place. This decline co-
incided with the internal conflict between the Union’s incum-
bent officials and the discriminates who actively were trying
to unseat them (See 271 NLRB 777 at 789–793). This was
the very context in which the discrimination underlying these
proceedings arose.
Also, the union officials suggested that Curley’s antici-
pated use of hours worked during the late 1970s would
present a distorted picture. They told Curley there was a
boom in the construction industry those years, but a deep re-
cession followed in 1980.
Further, Curley testified he believed the hours worked in
1975–1977 were too remote for effective use as predictors of
potential earnings during the post-1980 backpay period. Also,
he stated he considered other factors such as the fact McMil-
lan and Gray were ineligible for referral to Bechtel during
the backpay period because they had been terminated for
cause. Therefore, Curley said he was concerned that the
Union would object to the use of 1978–1980 hours worked
by Gray and McMillan as being nonrepresentative and in-
valid predictors of their expected earnings after 1980.
Because of the various considerations described above,
Curley set out to establish a single basis applicable to all the
discriminatees, particularly because ‘‘the Board has sort of
used the same language with all of them as to all out-of-turn
referrals that they didn’t receive’’ (Tr. 132). He decided to
use the average earnings of a sample from the 650 laborers
whose names remained on the membership list. Curley testi-
fied such a sampling would encompass changes in economic
conditions in the construction industry, as well as its seasonal
nature.
Curley developed his sample by use of a so-called ‘‘Ran-
dom Digits’’ table (G.C. Exh. 9). His ‘‘universe’’ consisted
1087LABORERS LOCAL 135 (BECHTEL POWER CORP.)
of the 650 names. Each name was numbered sequentially in
chronological order. Curley testified, without contradiction,
that a 5-percent sample would produce a valid indicator of
earnings predictability, but he extracted 80 names which
amounted to a sample of 12.3 percent. The 80 names were
extracted from the list of 650 according to their numerical
designation which corresponded to three-digit numbers Cur-
ley obtained from three-digit ‘‘blocking’’ of the numbers
which were contained on the ‘‘Random Digits’’ table (Tr.
137–138).
Curley next set out to determine the number of hours
worked by the 80 laborers in his sample. He eliminated 31
names: 21 because the records he examined showed the per-
sons represented showed no work hours for which laborers’
H & W fund contributions were made during the backpay
period (signifying they performed no work similar to that of
the discriminatees); and 10 additional names for whom no
earnings information had been supplied. Thus, the names of
49 union members emerged.
Curley used these 49 names as his group of ‘‘representa-
tive’’ employees. No distinction was made between individ-
uals who might have obtained their jobs directly from em-
ployers without using the referral hall or those who returned
to work because specifically requested by an employer. Also,
no effort was made to eliminate people who may have
worked during the backpay period as stewards, because they
had special qualifications for a particular job or were so-
called ‘‘company men’’ (a laborer associated with a par-
ticular contractor and who moves from job to job with that
employer). Curley testified such adjustments were impossible
because the Union’s records simply did not contain such in-
formation.
Curley then refined this formula by averaging hours of the
representative group during the backpay period on a quar-
terly basis. He also made adjustments for disability periods
of discriminatees Gray and A. Huggins, for interim earnings,
vacations, and for pension and H & W benefits.
2. The Union’s method
Professor Krendel testified he holds two positions at the
University of Pennsylvania. At the Wharton School, he is
professsor of statistics; and at the School of Engineering and
Applied Sciences, he is professor of systems engineering. He
characterized the manner in which General Counsel utilized
the random sample as naive, irrelevant, and ridiculous and
claimed General Counsel needed to consider the
discriminatees’ own work histories in the years preceding the
discrimination to compensate for fluctuations in individual
behavior patterns and changing economic cycles.
Professor Krendel was the author of the Union’s alter-
native formulas. More than one alternate computation was
presented. However, each was predicated on Professor
Krendel’s insistence that any proper formula would have to
contain adjustments for the individual differences described
above. He explained his method of computation was akin to
a stratified sample and that stratification is designed to ac-
count for individual differences. His computations, however,
did not use a stratified sample.
Professor Krendel testified that random samples are better
used for making projections as to groups more homogenous
than that found among the discriminatees. Thus, each of the
Union’s alternate formulas is based on the work histories of
each discriminatee. There is one exception; R. McMillan.
Professor Krendel testified he made no camputation for Mc-
Millan because the records he used reflected only a single
year of work history and that period of time was not enough
to establish a pattern of McMillan’s work habits.
Although Professor Krendel’s claim that General Coun-
sel’s formula does not produce accurate predictions of ex-
pected earnings during the backpay period, the professor ac-
cepted General Counsel’s random sample of 49 members as
reasonable and used it in developing the Union’ alternative
formulas.
Specifically, Professor Krendel compared the work his-
tories of the group of 49 members in particular years pre-
ceding the discrimination to the work histories of each
discriminatee (except McMillan) in those same years. This
procedure yielded a percentage of time that each
discriminatee worked compared to the average number of
hours worked by those in General Counsel’s sample in the
years selected.
Professor Krendel first chose 1979 and 1980 to make his
calculations. He explained those years were used because ac-
curacy of predictability diminishes as computations are based
on time periods more further removed from the discrimina-
tory conduct. Then, in order to meet the criticism that the
years Professor Krendel selected were too close to when the
discrimination occurred, the same camparisons were made by
the professor for the years 1977–1978 and also 1977–1980.
Professor Krendel testified the 4-year (1977–1980) com-
parison was best among the three periods surveyed because
it gave the broadest view. He acknowledged, however, that
this period of time was not necessarily more accurate than
that used by General Counsel. The net result of Professor
Krendel’s effort vastly reduced the amount of backpay from
what is claimed by General Counsel (see alternative calcula-
tions, R. Exh. 26 and Exh. 1 attached to R. Exh. 50).
D. Analysis and Conclusions
I conclude General Counsel’s method of backpay com-
putation is reasonable, not arbitrary, and proper for use in the
particular circumstances of the instant case. The calculations
are based on the approved, and commonly used, representa-
tive employee formula (see Midwest Hanger Co.; Ambrose
Distributing Co.; and J. H. Rutter-Rex Mfg. Co., supra).
Considerable, and sometimes confusing, evidence and ar-
gument has been developed on the record to extol and criti-
cize the parties’ proposed formulas. Yet, I conclude there is
only one critical question to be answered: Does the evidence
show General Counsel’s random sample of 49 individuals is
‘‘representative’’ in terms of who was included and the years
selected?
I find there is no serious dispute concerning the specific
individuals General Counsel selected to include in the group
of 49. This finding is made in spite of the ample rhetoric and
argument to the contrary because, in the final analysis, each
alternative formula proposed by the Union is predicated on
Professor Krendel’s acceptance of General Counsel’s random
sample (Tr. 2123).
Professor Krendel testified he made no judgment as to the
content, or selection method, of the random sample (Tr.
2153). In fact, the professor conceded the sample of 49 ‘‘was
a fairly broad sample . . .’’ (Tr. 2145) of the laborers’ popu-
lation. In these circumstances, I must presume the sample is
1088 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
a valid base for the necessary backpay calculations required
in this case.
If the sample were incapable of being used to establish av-
erage earnings, it was incumbent on the Union to prove that
point (Honda of Mineola, supra. Remarkably, the Union here
actually used General Counsel’s sample as an integral part of
all alternate backpay models. On the state of this record, I
find the Union has not sustained its burden.
I have considered the Union’s claim that the sample is un-
representative because it includes foremen, stewards, and la-
borers who did not use the referral hall. That claim is re-
jected because (a) the very nature of the random sample in-
herently adjusts for such contingencies, if they existed; and
(b) the claim is largely based on Weaver’s self-serving oral
testimony, unsupported by documentary evidence. See my
discusison relating to Weaver’s reliability as a witness in sec-
tion III,C(2a-2n), above.
I also have evaluated the Union’s argument that General
Counsel’s sample applies to an industrial context and should
not be used in the instant construction industry setting. The
Union asserts ‘‘The Board rejected the use of the industrial
approach as inappropriate in a construction industry case
. . . .’’ in Painters Local 277 (Polis Wallcovering), 282
NLRB 402 (1986), hereafter (and in the official transcript)
referred to as the Pygatt case. I find the Union’s reliance on
Pygatt is misplaced. It is true that Pygatt arose in the con-
struction industry, and that a statistical technique used in
straight production industry cases was used to compute
amounts claimed due in a backpay specification. It is also
true that the Board rejected the use of that technique in
Pygatt.
However, the Board’s rejection does not establish the
broad principle which the Union expounds. Instead, the re-
jection clearly is limited to the elimination of part-time em-
ployees from the ‘‘representatve’’ sample. The Board con-
cluded part-timers should be included to avoid an artificial
increase in hours claimed due the discriminatee. In all other
respects, the Board left undisturbed the use of the representa-
tive employee formula and the sample selected for computa-
tion of backpay under it. Accordingly, I reject the Union’s
plea that the Pygatt case supports the proposition that Gen-
eral Counsel’s approach in the instant case is arbitrary, un-
sound, and finds no support in prior Board cases.
I now turn to consider the propriety of General Counsel’s
use of the average hours worked by members of the random
sample during the backpay period as the approximate indi-
cator of the hours each discriminatee could have worked dur-
ing that time period. The backpay specification identifies the
average number of hours worked by the laborers in the ran-
dom sample, on a quarterly basis, beginning with the fourth
calendar quarter, 1980 and ending in the first calendar quar-
ter, 1987.
Initially, I note that use of these years conforms to the
General Counsel’s Casehandling Manual instructions (sec.
10542.1). In relevant part, the mamual provides: ‘‘earnings
in each pay period of the backpay period are used as the
measure of what the discriminatee would have earned. Where
there are several such employees, the average of their earn-
ings per pay period as a representative group may be used
as that measure.’’ (Emphasis added.)
The instruction, quoted immediately above, is derived
from Board pronouncements, with court approval (See Rice
Lake Creamery Co., 151 NLRB 1113, 1118–1119 (1965),
affd. as to backpay formula 365 F.2d 888 (D.C. Cir. 1966);
International Trailer Co., 150 NLRB 1205, 1208–1210
(1965); East Texas Steel Castings Co., 116 NLRB 1336,
1337–1138, 1353 (1956), enfd. 255 F.2d 284 (5th Cir. 1958);
West Texas Utilities Co., 109 NLRB 936 (1954).
I also note the Casehandling Manual’s observation that the
representative employee formula is especially applicable to
long backpay periods (sec. 10542.2). Thus, I find General
Counsel’s selection of average hours worked by members of
the random sample in conformity with established protocol
and is reasonable.
Another reason exists for my conclusion. I am particularly
impressed by the evidence which shows the years selected by
General Counsel studiously avoided the period of time when
the Union’s discriminatory conduct most likely adversely af-
fected the discriminatees’ work opportunities. By compari-
son, the 1977–1980 period claimed best by Professor Krendel
obviously included the periods when the work habits factor
he emphasized as necessary would have been utterly dis-
torted.
In fact, Professor Krendel conceded he had not considered
whether the discriminatees’ work opportunities might have
been different from those laborers in the random sample. He
acknowledged that he simply assumed the discriminatees had
work opportunities similar, or identical, to members of the
sample (Tr. 2154–2155). In my view, such an assumption ig-
nores the potential effects of the Union’s conduct found un-
lawful in the underlying unfair labor practice proceedings.
The impact of ongoing activity which would be declared
unlawful but for its occurrence outside the Act’s statute of
limitations is an important factor. It should not be overlooked
in this case. I have noted above that Judge Ricci observed
such activity in the instant case. In such a situation, it is ap-
propriate, and I find it emminently fair, to exclude such
stressful periods from use in development of the backpay for-
mula in the instant case (see Laborers Local 38 (Hancock-
Northwest), 268 NLRB 167 (1983).
General Counsel’s Casehandling Manual expressly directs
that earnings and hours during periods of ‘‘turmoil and dis-
turbance’’ which immediately precede an unfair labor prac-
tice ‘‘must not be used in computing averages on which
gross backpay will be based’’ (sec. 10562, Casehandling
Manual (emphasis added). This directive is consistent with
Board law. See Laborers Local 38, supra; and Hill Transpor-
tation Co., 102 NLRB 1015; 1021 (1953).
Judge Ricci noted that the discriminatees were marked for
special negative treatment in the hiring hall because of their
activity as political dissidents starting in 1978. The chronicle
of threats to deny referral opportunities to the discriminatees
appears in Judge Ricci’s decision at 271 NLRB 777, 789–
792. The Board found (271 NLRB at 781) that certain of
such threats were barred by Section 10(b) as separate unfair
labor practices. Nonetheless, those examples of the Union’s
conduct were deemed supporting evidence for the discrimina-
tory nature of the referral failures during the post-10(b) date.
I have utmost respect for Professor Krendel’s credentials
and the analyses he made in this proceeding. However, he
clearly did not consider that the Union’s 1978, 1979, and
1980 conduct toward the discriminatees had an inescapably
detrimental impact upon their work opportunities. That ef-
fect, I conclude, prevents acceptance of the Union’s effort to
1089LABORERS LOCAL 135 (BECHTEL POWER CORP.)
20 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 objec-
tions to them shall be deemed waived for all purposes.
use the discriminatees’ work habits in those years as a factor
to predict or estimate future earning expectations.
In contrast, I find the General Counsel’s formula is more
reflective of the conditions of the workplace relevant to this
case. That formula accounts for the effects of the Union’s
hostile attitude toward the discriminatees. It also seeks to
avoid and reduce artificial inflation and deflation of the aver-
age hours worked by members of the representative sample
by inclusion of laborers in a variety of categories such as
those who performed no work in a particular backpay year,
nonusers of the referral hall, stewards and ‘‘company men.’’
Also, it inherently adjusts for changes in economic condi-
tions. Finally, this formula conforms to time-honored, and
approved, backpay concepts, cited above.
I am persuaded by the record as a whole that the General
Counsel’s formula, as it appears in the amended backpay
specification, is both reasonable and most appropriate in all
the circumstances of the instant case. Accordingly, I shall
adopt it in framing the recommended order.
V. THE REMEDY
The General Counsel has requested that the order herein
contain a provision that the backpay periods be kept open
until the Board itself issues its Supplemental Decision and
Order in the instant case. Florida Steel Corp., 273 NLRB
889 (1984), is cited as authority for this request.
This request was made, for the first time, in General
Counsel’s posthearing brief. Customarily, I frown on inter-
jection of previously unmentioned theories at such a late
stage of Board proceedings. This is especially true if parties
are at risk of being prejudiced by such activity.
Here, more than 6 months have elapsed since briefs were
filed, but no other party has attempted to address this reme-
dial request. Moreover, my understanding of the above-cited
Florida Steel decision leads me to conclude a judgment on
General Counsel’s request requires a determination of a mat-
ter of law, and no additional evidence is needed to do so.
I shall, therefore, rule on this issue.
My ruling is based on two statements contained in foot-
note 12 of the Board’s decision in the Florida Steel case. the
first is that ‘‘. . . Respondent is liable for backpay for the
period between the date of the judge’s decision and this
supplmental decision and order . . . . Although it was an
employer, not a union as in the instant case, which was re-
spondent in Florida Steel, I find enough similarities between
the cases to warrant application of the quoted principle.
Thus, both cases involve situations of continuing discrimina-
tion.
I have been careful not to make independent new findings
that the Union engaged in unlawful conduct during the back-
pay period. I could have found the Union’s conduct in the
backpay period actually was discriminatory, because I con-
clude that issue was fully litigated in the instant proceedings
even though the backpay specification does not expressly
contain such allegation. NLRB v. Operating Engineers Local
925, 460 F.2d 589, 599–602 (5th Cir. 1972). Instead, I have
noted instances of actions by which the Union appears to
have continued its bypassing of the discriminatees for refer-
ral during the backpay period. It is that conduct which I find
analogous to Florida Steel.
Also, in both cases, the respondent claims that its past un-
lawful conduct has been fully remedied. My findings regard-
ing the manner in which the Union has implemented the hir-
ing hall and kept referral records during the backpay period
patently refute such an assertion in the instant case.
The scenario depicted in the two immediately preceding
paragraphs convinces me there is merit to the General Coun-
sel’s request.
The second germane statement of the Board in footnote
12, Florida Steel is that ‘‘The backpay proceeding cannot be
closed until a final determination by the Board.’’ This
quotation signifies the continuing character of such pro-
ceedings. It is warrant for accummulation of backpay beyond
that specified in the formal pleadings until a wrongdoer es-
tablishes to the Board’s satisfaction that all facets of the
Board’s remedial order in the underlying unfair labor prac-
tice case have been fully performed. My overview of the in-
stant case in its entirety reflects this case is far from ripe for
closing.
On all of the foregoing discussion concerning the recent
remedial request of General Counsel, I find it appropriate
that the backpay periods herein continue to run until the
Board issues its Supplemental Decision and Order in the in-
stant case. My recommended order below will contain such
a provision.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended20
ORDER
Laborers Local No. 135, its officers, agents, and represent-
atives, shall make whole the individuals listed below by pay-
ing to them the sums set opposite their names. The specific
calculations from which these sums are derived appear in ap-
pendices A through H, attached to this Supplemental Deci-
sion and Order.
The amounts due each discriminatee shall be paid with in-
terest computed in the manner prescribed in New Horizons
for the Retarded, 283 NLRB 1173 (1987); See generally, Isis
Plumbing Co., 138 NLRB 716 (1962).
W. Bradley: $5078.44 as net backpay; and $677.45 as pen-
sion credit.
H. Coates: $42,327.67 as net backpay; $399.33 vacation
pay; and $9152.41 as pension credit.
F. Gray: $10,694.41 as net backpay; $437.08 vacation pay;
and $8390.50 as pension credit.
A. Huggins: $35,188.48 as net backpay; $154.00 vacation
pay; and $4941.96 as pension credit.
R. Huggins: $3113.04 as net backpay; and $255.00 as pen-
sion credit.
R. McMillan: $39,326.14 as net backpay; $257.79 vacation
pay; and $3946.35 as pension credit.
R. Poorman: $50,929.56 as net backpay; $437.08 vacation
pay; and $6588.04 as pension credit.
G. Scott: $46,997.84 as net backpay; $2215.25 for medical
expenses; $437.40 vacation pay; and $6519.51 as pension
credit.
IT IS FURTHER ORDERED that the backpay periods be kept
open until the issuance date of the Board’s Supplemental De-
cision and Order in this proceeding, and all sums due as set
forth above, including interest, shall be adjusted to that date.
1090 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
APPENDIX A
WILSON BRADLEY
AVERAGE HOURS GROSS BACKPAY INTERIM EARN-INGS NET BACKPAY PENSION HOURS PENSION CREDIT
1980
4th 94 $921.20 $921.20 94 $79.90
1981
1st 260 2,548.00 1,017.44 1,530.56 198 168.30
2d 381 4,053.84 1,482.41 2,571.43 291 247.35
3d 214 2,364.70 2,309.45 55.25 214 181.90
TOTALS: $5,078.44 $677.45
APPENDIX B
HAROLD COATES
AVG. HRS. GROSS BACK-PAY
INTERIM
EARNINGS NET BACKPAY
PENSION/VA-
CATION HRS.
VACATION
PAY
PENSION
CREDIT
1981
1st 172 $1,685.60 $1,685.60 172 $146.20
2d 324 3,447.36 3,447.36 324 275.40
3d 26 287.30 287.30 26 22.10
4th 163 1,801.15 1,801.15 163 138.55
1982
1st 256 2,828.80 $176.80 2,652.00 240 204.00
2d 360 4,219.20 408.00 3,811.20 330 303.60
3d 331 331 314.45
4th 289 3,482.45 3,292.00 190.45 289 274.55
1983
1st 267 3,217.35 3,217.35 267 253.65
2d 263 3,300.65 3,300.65 263 289.30
3d 305 3,904.00 3,904.00 305 366.00
4th 289 3,650.07 3,650.07 289 $48.41 346.80
1984
1st 326 4,091.30 862.64 3,228.66 255 63.75 306.00
2d 375 4,755.00 4,755.00 375 93.75 652.50
3d 382 4,870.50 1,872.00 2,998.50 262 65.50 524.00
4th 274 3,548.30 149.92 3,398.38 274 68.50 548.00
1985
1st 174 174 43.50 348.00
2d 193 193 15.92 399.51
3d 176 176 369.60
4th 156 156 327.60
1986
1st 167 167 350.70
2d 221 221 464.10
3d 241 241 506.10
4th 244 244 512.40
1987
1st 206 206 432.60
2d 227 227 476.40
3d
4th
TOTALS: $42,327.67 $399.33 $9,152.41
1091LABORERS LOCAL 135 (BECHTEL POWER CORP.)
APPENDIX C
FRED GRAY
AVG. HRS. ADJUSTEDAVG. HRS.
GROSS
BACKPAY
INTERIM
EARNINGS NET BACKPAY
PENSION/VA-
CATION HRS.
VACATION
PAY
PENSION
CREDIT
1981
2d 251 251 $2,670.64 $2,670.64 251 $213.35
1982
1st 77 77 850.85 850.85 77 65.45
2d 360 42 492.24 492.24 42 38.64
3d 331 73 879.65 879.65 73 69.35
4th 289 289 3,482.45 $1,648.26 1,834.19 289 274.55
1983
1st 267 267 3,217.35 2,436.76 780.59 267 253.65
2d 263 263 3,300.65 2,870.80 429.85 263 289.30
3d 305 305 3,904.00 2,683.76 1,220.24 305 366.00
4th 289 289 3,650.07 2,242.50 1,407.57 289 $48.41 346.80
1984
1st 326 326 4,091.30 3,176.38 914.92 326 81.50 391.20
2d 375 375 4,755.00 3,283.95 1,471.05 335 83.75 582.90
3d 382 382 4,870.50 2,948.53 1,921.97 382 95.50 764.00
4th 274 274 3,548.30 2,015.39 1,532.91 274 68.50 548.00
1985
1st 174 174 174 43.50 348.00
2d 193 193 193 15.92 399.51
3d 176 176 176 369.60
4th 156 156 156 327.60
1986
1st 167 167 167 350.70
2d 221 221 221 464.10
3d 241 241 241 506.10
4th 244 244 244 512.40
1987
1st 206 206 206 432.60
2d 227 227 227 476.70
TOTALS: $10,694.41 $437.08 $8,390.50
APPENDIX D
ANDREW HUGGINS
AVG. HRS. ADJUSTEDAVG. HRS.
GROSS
BACKPAY
INTERIM EARN-
INGS
NET BACK-
PAY
PENSION/VA-
CATION HRS.
VACATION
PAY
PENSION
CREDIT
1980
4th 94 94 $921.20 $290.00 $631.20 94 $79.90
1981
1st 260 260 2,548.00 2,548.00 260 221.00
4th 326 326 326 277.10
1982
1st 256 256 2,828.80 445.85 2,382.95 256 217.60
2d 360 360 4,219.20 2,695.52 1,523.68 167 153.64
3d 331 331 3,988.55 2,399.63 1,588.92 135 128.25
4th 289 289 28 26.60
1983
1st 267 213 2,566.65 1,547.54 1,019.11 109 103.55
1092 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
APPENDIX D—Continued
ANDREW HUGGINS
AVG. HRS. ADJUSTEDAVG. HRS.
GROSS
BACKPAY
INTERIM EARN-
INGS
NET BACK-
PAY
PENSION/VA-
CATION HRS.
VACATION
PAY
PENSION
CREDIT
1984
1st 326 200 2,510.00 643.00 1,867.00 81 $20.25 97.20
2d 375 375 4,755.00 643.00 4,112.00 353 88.25 614.22
3d 382 142 1,810.50 643.00 1,167.50 142 35.50 284.00
1985
1st 174 160 2,088.00 1,120.00 968.00 7 1.75 14.00
2d 193 193 2,601.64 2,072.00 529.64 100 8.25 207.00
3d 176 176 2,411.20 296.00 2,115.20 160 336.00
4th 156 156 2,137.20 2,137.20 156 327.60
1986
1st 167 167 2,287.90 219.20 2,068.70 151 317.10
2d 221 221 3,138.20 3,138.20 221 464.10
3d 241 241 3,482.45 1,040.40 2,442.05 169 354.90
4th 244 244 3,525.80 3,525.80 244 512.40
1987
1st 206 206 2,976.70 1,553.38 1,423.33 98 205.80
TOTALS: $35,188.48 $154.00 $4,941.96
APPENDIX E
RANDY HUGGINS
AVERAGE HOURS GROSS BACKPAY INTERIM EARN-INGS NET BACKPAY PENSION HOURS PENSION CREDIT
1981
1st 94 $921.20 $921.20 94 $79.90
2d 206 2,191.84 2,191.84 206 175.10
TOTALS: $3,113.04 $255.00
APPENDIX F
RITA MCMILLAN
AVG. HRS. GROSS BACK-PAY
INTERIM
EARNINGS NET BACKPAY
PENSION/VA-
CATION HRS. VACATION PAY
PENSION
CREDIT
1981
2d 251 $2,670.64 $2,670.64 251 $213.35
3d 85 939.25 $442.00 497.25 45 38.25
4th 137 1,513.85 1513.85 137 116.45
1982
1st 77 850.85 850.85 77 65.45
2d 360 4,219.20 4,219.20 360 331.20
3d 331 3,988.55 3,988.55 331 314.45
4th 289 3,482.45 3,482.45 289 274.55
1983
1st 267 3,217.35 3,217.35 267 253.65
2d 263 3,300.65 3,300.65 263 289.30
3d 305 3,904.00 483.06 3,420.94 305 366.00
4th 289 3,650.07 1,821.20 1,828.87 145 $24.29 174.00
1984
1st 326 4,091.30 4,091.30 326 81.50 391.20
2d 375 4,755.00 740.75 4,014.25 375 93.75 652.50
1093LABORERS LOCAL 135 (BECHTEL POWER CORP.)
APPENDIX F—Continued
RITA MCMILLAN
AVG. HRS. GROSS BACK-PAY
INTERIM
EARNINGS NET BACKPAY
PENSION/VA-
CATION HRS. VACATION PAY
PENSION
CREDIT
3d 233 2,970.75 740.76 2,229.99 233 58.25 466.00
TOTALS: $39,326.14 $257.79 $3,946.35
APPENDIX G
ROY POORMAN
AVG. HRS. GROSS BACK-PAY
INTERIM
EARNINGS NET BACKPAY
PENSION/VA-
CATION HRS. VACATION PAY
PENSION
CREDIT
1981
1st 260 $2,548.00 $78.40 $2,469.60 252 $214.20
2d 381 4,053.84 4,053.84 381 323.85
3d 358 342 290.70
4th 326 3,602.30 2,759.00 843.30 326 277.10
1982
1st 256 2,828.80 2,828.80 256 217.60
2d 360 4,219.20 2,297.15 1,922.05 159 146.28
3d 331 65 61.75
1983
1st 267 3,217.35 2,460.13 757.22 71 67.45
2d 263 3,300.65 1,203.07 2,097.58 167 183.70
3d 305 3,904.00 3,904.00 305 366.00
4th 289 3,650.07 3,650.07 289 $48.41 346.80
1984
1st 326 4,091.30 502.00 3,589.30 286 71.50 343.20
2d 375 4,755.00 4,755.00 375 93.75 652.50
3d 382 4,870.50 4,870.50 382 95.50 764.00
4th 274 3,548.30 3,548.30 274 68.50 548.00
1985
1st 174 2,270.70 2,270.70 174 43.50 348.00
2d 193 2,601.64 2,601.64 193 15.92 399.51
3d 176 2,411.20 2,411.20 176 369.60
4th 156 2,137.20 2,137.20 156 327.60
1986
1st 162 2,219.26 2,219.26 162 340.20
TOTALS: $50,929.56 $437.08 $6,588.04
APPENDIX H
GEORGE SCOTT
AVG. HRS. GROSSBACKPAY
INTERIM
EARNINGS NET BACKPAY
MEDICAL EX-
PENSES
PENSION/VA-
CATION HRS.
VACATION
PAY
PENSION
CREDIT
1981
4th 143 $1,580.15 $1,580.15 143 $121.55
1982
1st 256 2,828.80 $501.75 2,327,05 220 187.00
2d 360 4,219.20 4,219.20 360 331.20
3d 331 3,988.55 3,988.55 331 314.45
4th 289 3,482.45 1,684.50 1,797.95 289 274.55
1983
1st 267 3,217.35 3,217.35 267 253.65
2d 263 3,300.65 3,300.65 263 289.30
1094 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
APPENDIX H—Continued
GEORGE SCOTT
AVG. HRS. GROSSBACKPAY
INTERIM
EARNINGS NET BACKPAY
MEDICAL EX-
PENSES
PENSION/VA-
CATION HRS.
VACATION
PAY
PENSION
CREDIT
3d 305 3,904.00 3,904.00 305 366.00
4th 267 3,372.21 3,372.21 $2,215.25 267 $44.72 320.40
1984
1st 326 4,091.30 401.60 3,689.70 302 75.50 362.40
2d 375 4,755.00 204.00 4,551.00 375 93.75 652.50
3d 382 4,870.50 541.51 4,328.99 382 95.50 764.00
4th 274 3,548.30 320.00 3,228.30 274 68.50 548.00
1985
1st 174 2,270.70 2,270.70 174 43.50 348.00
2d 193 2,601.64 2,316.00 285.64 193 15.92 399.51
3d 176 2,411.20 1,680.00 731.20 176 369.60
4th 156 2,137.20 1,932.00 205.20 156 327.60
1986
1st 162 138 289.80
TOTALS: $46,997.84 $2,215.25 $437.40 $6,519.51