Local Union No. 38, Sheet Metal Workers

National Labor Relations Board - Board Decisions

Nov 9, 1971

194 N.L.R.B. 76 (N.L.R.B. 1971)

76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local Union No . 38, Sheet Metal Workers' Interna-
tional Association, AFL-CIO (Mid-Hudson Sheet
Metal Inc.) and Robert John Green , Jr. Case
3-CB-1295
November 9, 1971
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND KENNEDY
On August 3, 1971, Trial Examiner Benjamin K.
Blackburn issued the attached Supplemental Decision
in this proceeding. Thereafter, the General Counsel
and Respondent filed exceptions and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings, conclusions, and recommendations
with the clarification set forth herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Local Uniori No. 38, Sheet Metal Workers' Interna-
tional Association, AFL-CIO, its officers, agents, and
representatives shall make whole Robert John Green,
Jr., by payment to him of the amounts set forth in the
attached Trial Examiner's Supplemental Decision. In
addition to the amounts to be paid directly to Green,
Respondent shall pay the sum of $868.52 as a
contribution on Green's behalf to its pension fund,
and shall take such steps as may be necessary to
restore whatever rights under the pension plan would
have accrued to Green if his employment had
continued without interruption during the period
covered by said contribution.
TRIAL EXAMINER'S SUPPLEMENTAL
DECISION
STATEMENT OF THE CASE
BENJAMIN K. BLACKBURN, Trial Examiner: The backpay
specification in this matter was issued on April 28, 1971.
The hearing was held in Poughkeepsie, New York, on June
15.
The Board's Order, issued on June 9, 1970, required
Respondent to make the Charging Party, Robert John
Green, Jr., whole for any loss of pay suffered by reason of
Respondent's discrimination against him from June 20,
1969, until the date on which Respondent notified Mid-
Hudson that it had no objection to Green's employment by
Mid-Hudson. There is no dispute that the latter date
1971, the United States Court of Appeals for the Second
Circuit enforced the Board's Order.
The controversies which have given rise to this supple-
mental proceeding to determine how much backpay is due
Green concern (1) the basic formula used by the General
Counsel in drafting the backpay specification; (2) the
General Counsel' s contention that Green is entitled to have
paid to him the sums which Mid-Hudson would have
contributed to Respondent's pension fund on his behalf
during the backpay period; (3) Respondent's contention
that Green failed to mitigate damages by seeking compara-
ble work elsewhere; (4) Respondent's contention that
Green was guilty of a willful loss of interim earnings
beginning in March 1970, and (5) Respondent's contention
that the value of Green's personal use of Mid-Hudson's
truck during the backpay period should be added to his
interim earnings. As developed in the sections which follow,
I find for the General Counsel on the first, third, and fifth
issues, for Respondent on the fourth. As to the second issue,
I find that Green is not entitled to receive pension
contributions in cash but is entitled to have Respondent
make such credits to his account in its pension fund.
Upon the entire record,' including briefs filed by
Respondent and the General Counsel, and from my
observation of the demeanor of the witnesses while
testifying under oath, I make the following:
FINDINGS AND CONCLUSIONS
1. THE FORMULA ISSUE
When Mid-Hudson discharged Green on June 20, 1969,
at the behest of Respondent, he was one of three leadmen
employed by Mid-Hudson who received extra compensa-
tion in the form of expenses. His working partner was John
Versace. Mid-Hudson immediately promoted Versace to
leadman to fill the vacancy created by Green's departure
and gave Versace the extra compensation which Green had
been receiving. It assigned another employee to work with
Versace. Mid-Hudson rehired Green in the week ending
July 16, 1969, as an estimator. The Regional Director has
used the earnings of Versace, including overtime, from June
20, 1969, to July 1, 1970, as the measure of the gross
backpay due Green. He has used Green's earnings from
Mid-Hudson as an estimator as the measure of his interim
earnings. Respondent contends that the proper measure of
gross backpay is the average earnings of all journeymen
sheet metal workers other than permit men employed by
Respondent during the backpay period. The differences in
gross backpay under the two systems are substantial.
The Regional Director's formula prevails over Respon-
dent's for two reasons. First, Versace replaced Green on an
individual basis, as his accession to Green's leadmanship
evidences. Therefore, Versace did the work Green would
have done and earned the money Green would have earned
but for the discrimination against Green. Versace's
earnings are a better measure of what Green would have
earned even if Respondent's formula did not contain a
basic flaw.
Second, Respondent's formula is based on an invalid
assumption. Versace worked through the entire backpay
subsequently turned out to be July 1, 1970. On March 5 , 1 The General Counsel's motion to correct transcript is hereby granted
194 NLRB No. 17
LOCAL UNION NO. 38, SHEET METAL WORKERS
period. Respondent would average the earnings of
journeymen sheet metal workers who were hired after a
quarter began or left before it ended with those who worked
a full quarter. There is no reason to find that Green would
not have worked through the entire backpay period if he
had not been discriminated against. Therefore, there is no
reason to penalize him by comparing his constructive
earnings with those of men who worked less.
I find that the Regional Director's formula for computing
gross backpay is proper insofar as it does not include sums
which Mid-Hudson would have paid into Respondent's
pension fund on Green's behalf.
II. THE PENSION ISSUE
Mid-Hudson pays to Respondent 5 percent of each
employee's earnings , less vacation pay, as a contribution to
Respondent's pension fund. At the hearing, the backpay
specification was amended to increase gross backpay by the
sums which Mid-Hudson paid on Versace' s earnings, as
follows:
Increase in Gross
tr. Backpay For Pension
1969-2 $ 20.77
1969-3 185.68
1969-4 207.36
1970-1 178.15
1970-2 276.56
Total 868.52
The Regional Director contends that this sum should be
paid to Green on the theory that it was part of the total sum
he would have earned if he had not been discriminated
against because it was, in fact, part of the total Versace
earned during the backpay period.
That contributions to a pension fund by an employer on
behalf of an employee who has been discriminated against
are properly included in backpay is settled. Fibreboard
Paper Products Corporation, 180 NLRB No. 33 (TXD);
Finishline Industries, Inc., 181 NLRB No. 118. That the
contributions should be paid to the discriminatee and not
to the fund in the situation where the union whose fund is
involved is the party who has been ordered to make the
discriminatee whole is not settled.
Both Fibreboard and Finishline, supra turned on the
details of the pension fund involved. There are no details in
this record about how Respondent's fund is administered or
employees obtain a vested interest in it. Finishline, supra
involved the pension fund of another local of Respondent's
international union. There, the decision that payments
must be made into the fund on behalf of all four
discriminatees turned on the fact that three had not yet
suffered a break in employment in the industry sufficiently
long to cancel their interest in the fund and the conclusion
that permitting the employer to escape his liability to the
fund for any of the four, including the one who had
suffered such a break, would place a premium on delay.
The coincidence that the same international union is
involved in both cases does not justify an inference that
Respondent's pension fund is identical with the one in
77
Finishline. Even though more than 2 years have elapsed in
which Green has not worked as a journeyman sheet metal
worker and he has made no effort to be reinstated as a
member by Respondent, it may well be that he has not yet
lost all prospects, present or future, of qualifying for
benefits under Respondent's plan. On the other hand, if he
no longer has any such prospects, it does not follow that he
should receive, in cash, from Respondent the sums that
would have been paid into the fund on his behalf. If he had
not been discriminated against, had worked for Mid-
Hudson during the backpay period with contributions in
the amount at stake made to the fund on his behalf, and
had thereafter lost his interest in the fund because he failed
to meet its provisions for qualifying as a beneficiary, the
sums paid on his behalf would have been lost to him. If he
has, in fact, lost his interest in Respondent's pension fund,
requiring Respondent to add a credit to his nonexistent
account is an exercise in paperwork futility. However, the
record here permits no findings either way. Therefore, I
find that Respondent is liable for the sum of $868.52, not to
Green but to its own pension fund as' a credit on Green's
behalf.
III. THE FAILURE TO MITIGATE ISSUE
Respondent argues that Green is entitled to no backpay
because he failed to seek work as ajourneyman sheet metal
worker with some employer other than Mid-Hudson.
Respondent's position misconceives the rule relating to a
discrimmatee's duty to mitigate damages by seeking work.
Green returned to Mid-Hudson's payroll as an estimator
with no unreasonable delay after Respondent's discrimina-
tion against him at an hourly rate of pay higher than he had
been receiving as a leadman working in the sheet metal
trade. If Green had not taken this job, he might well have
been justified in limiting his search for a job to his own
trade. The Madison Courier, Inc., 180 NLRB No. 118. By
taking a job outside his trade, Green did more than the rule
required and thus did, in fact, mitigate his damages.
IV. THE INTERIM EARNINGS ISSUE
This is the only phase of this case in which a credibility
conflict arose. Green's rate of pay as an estimator was $7 an
hour. Arthur Wigand, president of Mid-Hudson, testified
that Green came to him in March of 1970 and requested
Wigand to reduce his rate to $4.50 an hour and to pay $2.50
an hour to Mrs. Helen Mullen. Green explained that he was
going to have Mrs. Mullen help him with the paperwork
,involved in his job. Green denied having any such
conversation with Wigand. Mid-Hudson's pay records
reveal that Green's hourly rate was cut from $7 to $4.50 and
that Mrs. Mullen was added to the payroll at $2.50 an hour,
both in the week ending March 18, 1970. Green's
explanation for the coincidence in the records was:
The only explanation I would have for that fact is,
the same time this corporation status was set up and
Helen Mullen was appointed about the same time to the
corporation and why mine went down-as an estima-
tor, I was putting so many hours into the shop and then
Mr. Wigand had told stones around that I had bid a
couple of jobs that went sour, so I refused to estimate
jobs and therefore, my salary was reduced to $4.50 an
hour at that time.
Green's reference to "this corporation status" relates to
78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the undisputed fact that Mrs. Mullen became Respondent's
corporate secretary sometime in late April 1970. Also
undisputed are the fact that, as secretary of the corporation,
Mrs. Mullen was given authority to do corporate acts such
as sign checks in conjunction with other officers and the
fact, testified to by Wigand, that Mrs. Mullen did no work
for Mid-Hudson and came to Mid-Hudson's office but
once.
As to the crucial conversation between them in March
1970, I credit Wigand over Green. I do so, primarily,
because of the fact that Mrs. Mullen did not become
secretary of the corporation in March but in April. On the
basis of Wigand's credited testimony, I find that Green
earned $4.50 an hour rather than $7 during the last 2 weeks
of the first quarter and the entire second quarter of 1970 at
his own request. The efforts to prove, on Green's behalf,
that Mrs. Mullen was being paid by Respondent in her
capacity as secretary of the corporation thus become
immaterial. Even if true (and I do not find it to be true), it
would not gainsay the fact that Green's failure to earn $2.50
more per hour from the week ending March 18, 1970,
through the end of the backpay period was his own doing
and, therefore, a willful loss of interim earnings. Conse-
quently, I have added $2.50 per hour to Green's earnings
for the week ending March 18, 1970, and thereafter through
June 30, 1970, to determine the proper interim earnings,
VI. THE AMOUNT OF BACKPAY DUE
In summary, the proper computation by quarters of the
amount of backpay due Robert John Green, Jr., before
interest is as follows:
Gross Net Interim Net
Quarter Backpay Earning Back a
1969-2 $ 448.58 $ 62.11 $ 386.47
1969-3 4318.79 3108.00 1210.79
1969-4 4170.96 3535.00 635.96
1970-1 4388.79 3274.50 1114.29
1970-2 5920.26 3605.00 2315.26
Total
with the following results:
$5662.77
Qtr
RD's
Inter.
Earnings
Proper
Inter.
Earnings
I find that the sum of $5662.77, plus interest at the rate of
6 percent per annum computed in the manner set forth in
Isis Plumbing & Heating Co., 138 NLRB 716, until the date.
1969-2 $ 62.11 $ 62.11
of payment of all backpay, is due Green from Respondent.
Payment of this sum shall be less any taxes required to be
withheld by Respondent under Federal, state, and local
1969-3 3108.00 3108.00 law.
1969-4 3535.00 3535.00 I also find that Respondent must credit the sum of
1970-1 3089.50 3274.50 $868.52 to Green's account in its pension fund in order to
1970-2 2272.50 3605.00
comply with the Board's Order in this case.
V. THE TRUCK ISSUE
As an estimator, Green used Mid-Hudson's pickup truck
in his work. He had exclusive use of the truck. He drove it
between his home and Mid-Hudson's office. He kept it at
his home overnight. Prior to his discharge, when he was a
leadman, he used the truck an estimated 85 percent of the
time . Other employees used it the other 15 percent. In that
period, also, he used the truck for transportation between
his home and work. Since there is no substantial difference
in the amount of personal benefit which Green got from use
of the truck in the two periods, the fact that Green was able
to drive to and from work in it does not constitute
additional compensation to him as an estimator. If he had
not been discriminated against, he would have used the
truck in essentially the same manner as a journeyman sheet
metal worker throughout the backpay period. Therefore,
Respondent's contention that the fair value of Green's use
of the truck in driving to and from work during the backpay
period must be added to his interim earnings is without
merit.