Local Union No. 410, Sheet Metal Workers International Association, Afl--Cio (Inryco, Inc.)

National Labor Relations Board - Board Decisions

Sep 30, 1985

276 N.L.R.B. 1164 (N.L.R.B. 1985)

1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Local Union No . 410, Sheet Metal Workers Interna-
tional Association , AFL-CIO (Inryco, Inc.) and
Earl Ritenburgh and David Ochs . Cases 7-CB-
.4546 and 7-CB-4567
- 30 September 1985
Glen M. Price, Esq., of Grand Rapids , Michigan , for-the
General Counsel.
Paul A. Williams, Esq., of Grand Rapids, Michigan, for
the Respondent.
SUPPLEMENTAL DECISION
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON
On 6 April 1984 Administrative Law Judge Wal-
lace H. Nations issued the attached supplemental
decision. The Respondent and the General-Counsel
filed-,exceptions and supporting briefs.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the supplemental' deci-
sion and the record in light of the exceptions and
briefs and has decided to affirm the judge' s rulings,
findings, and conclusions and to adopt the recom-
mended Order as modified.' -
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified and orders that the Respondent,
Local Union No. 410, Sheet Metal Workers Inter-
national Association, AFL-CIO, its officers,
agents, and representatives, shall - make whole
David Ochs by paying him $7069.40 and make
whole Earl Ritenburgh by paying him $1086.50
plus interest computed in the manner set forth in
Florida Steel Corp., 231 NLRB 651 (1977), minus
any tax withholding required by Federal and state
laws. In addition to the amounts to be paid directly
to Ochs and Ritenburgh, the Respondent shall pay
the sum of $946.02 for Ochs and $1046.53 for Ri-
tenburgh as contributions on their behalf to its pen-
sion fund and shall take any necessary, steps to re-
store whatever rights would have accrued to them
absent the Respondent's unlawful conduct.2
i The judge inadvertently failed to include any amount for lost pension
benefits in his recommended Order Using the 25 April 1980 tolling date,
we have calculated appropriate amounts ($946 02 for David Ochs and
$1046 53 for Earl Ritenburgh)
2 Because the provisions of employee benefit funds are variable and
complex, we will not provide for a fixed rate of interest on the unlawful-
ly withheld contributions We leave to further compliance proceedings
the question of whether the Respondent must pay any additional amounts
into the pension fund in order to satisfy our Order Depending on the
circumstances of each case, these additional amounts may be determined
by reference to provisions in the documents governing the fund at issue
and where there are no governing provisions, by evidence of any losses
directly attributable to the unlawful withholding , which might include
the loss of return on investment of the portion of the fund withheld, addi-
tional administrative costs, etc , but not collateral losses See Merry-
weather Optical Co., 240 NLRB 1213, 1216 in 7 (1979)
STATEMENT OF THE CASE -
WALLACE H. NATIONS, Administrative Law Judge.
This case was heard in Grand Rapids, Michigan, on
April 6, 1983, and subsequently briefs were filed by all
parties. This proceeding is based on backpay specifica-
tions stated October 29, 1982, following court of appeals
enforcement on June 17, 1982, of a Board Decision and
Order dated June 11, 1981, adopting the findings and
conclusions of a decision of an -administrative law judge.
The Board found that Respondent Union violated Sec-
tion 8(b)(1)(A) and (2) of the :Act by causing the Re-
spondent Employer to discriminate against Earl Riten-
burgh and David Ochs by discharging them and, by in-
sisting as a condition for referral to other employment
that the involved employees withdraw charges filed with
the Board. The Respondent Employer entered into a set-
tlement agreement on April 25, 1980, wherein, inter alia,
the Respondent Employer paid the Charging Parties a
sum of money representing a portion of the backpay due
them from the date of the discharge to the date of the
settlement , and the Charging Parties waived reinstate-
ment.
Discussion and Conclusions
The issue at this stage of this proceeding is the amount
of backpay due Rittenburgh and Ochs from the Re-
spondent Union.
Backpay Formula
The backpay formula used in the backpay specifica-
tions to compute the sums due to Ritenburgh and Ochs
utilized the average earnings of a representative sampling
of employees who were working for Inryco, Inc. and
had skills comparable to those of the Charging Parties.
The Respondent Union has not challenged this method
of computation and I find that it is an appropriate
method for computing backpay in this proceeding.
Representative Employee Sampling Used in
Backpay Specifications
Respondent Union has challenged in its answer the
representative nature of the group of employees used 'in
the backpay specifications; alleging it is not proper in
view of the low skill level of the Charging Parties as
compared to the sample group. While the pleading puts
the representative nature of the sample group in issue,
the Respondent Union failed to state in either its answer
or in its evidence a more appropriate group or more ap-
propriate monetary figures. Therefore, I find that the
sample group used by the General Counsel in the back-
pay specifications is representative and appropriate.
276 NLRB No. 124
SHEET METAL WORKERS LOCAL 410 (INRYCO, INC)
Period for Which Backpay Is Due
The Respondent Union submits that work for which
the Charging Parties were qualified ceased at the Inryco,
Inc' jobsite about August 1979. There is no proof in the
record that this assertion is correct and, to the contrary,
figures submitted by the General Counsel would indicate
that approximately the same number of persons were em-
ployed in January and February at the Inryco, Inc. job-
site as were employed in August 1979. There is no proof
in the record that the makeup of the employee work
force at the jobsite, in terms of job skills, was substantial-
ly different in January and February 1980 from what
they were in August 1979.
The General Counsel asserts that the total period for
which backpay should be due from the Respondent
Union is the period from June 26, 1979, the date of dis-
charge, through the end of August 1980, the last date for
which any sample group member used in the computa-
tion of backpay was referred out for employment at
Inryco, Inc. The Respondent Union contends that the
ending date for its backpay liability should be October
23, 1979, the date which it contends an administrative
law judge found in the original proceeding that the
Union offered unconditional'referral at the same wage
and fringes that the Charging Parties had made in their
employment at Inryco, Inc. As found by the administra-
tive law judge, the Union had made several referrals to
the Charging Parties prior to October 23; however, these
referrals were conditioned on the Charging Parties with-
"drawing their charges from the Board. The Respondent
Union alternately submits that if the October 23, 1979
date is not appropriate, the appropriate date should be
the date of settlement between Inryco, Inc. and the
Charging Parties as the Charging Parties waived rein-
statement to Inryco, Inc.
The Board's decision of June 11, 1981, requires that
the Respondent Union refer the Charging Parties to em-
ployment at Inryco, Inc. or, if such employment is not
available, to substantially similar employment elsewhere.
After the Charging Parties discharge from Inryco, Inc.,
the Respondent Union never referred them to further
employment 'at Inryco, Inc. The Respondent Union has
not shown any" reason for its refusal to refer the Charg-
ing parties for work at Inryco, Inc., and the record will
only support a finding that it simply did not refer them
for employment at Inryco, Inc. for its own reasons. On
and after October 29, 1979, however, the Respondent
Union did refer the Charging Parties to work which was
substantially similar work at employers other than
Inryco, Inc. I cannot find that these referrals, absent a
showing that work was not available at the Inryco, Inc.
jobsite, are in compliance with the Board's Order of June
11, 1981. Thus, I find that the unconditional referral of
the Charging Parties to employment other than Inryco,
Inc. on and after October 23, 1980, in and of itself, did
not toll the Respondent Union's backpay liability.
However, as of April 25, 1980, 'the Charging Parties
entered into a, settlement agreement with Inryco, Inc.,
1165
wherein they waived • the right to reinstatement at
Inryco, Inc. After that date, an attempt by the Respond-
ent Union to refer the Charging Parties to further work
at Inryco, Inc. would have been a useless act. The
Charging Parties did not, on and after April 25, 1980,
take advantage 'of the Respondent Union's outstanding
offer for referral to equivalent employment. Because re-
ferral of the Charging Parties to work at Inryco after
April 25, 1980, would have been useless, and because the
Charging Parties thereafter failed to accept other refer-
rals from the Respondent Union, I find that April 25,
1980, is the most appropriate date for tolling backpay li-
ability on the part of the Respondent Union.
' Amount of Backpay Due
The General Counsel has computed net backpay, in-
cluding travel and vacation pay, for each of the Charg-
ing Parties. This backpay computation by involved
annual quarter reflects both-net interim earnings as well
as money received from Inryco, Inc. as a result of the
settlement of April 25, 1980. I find that Charging Party
Earl Ritenburgh is due backpay from the Respondent
Union as reflected in the General Counsel's schedule E-1
for the third and fourth quarters of 1979, the first quarter
of 1980, and 30 percent of the- figures shown for the
second quarter of 1980. The 30 percent of the second
quarter of 1980 should accurately reflect the wages Ri-
tenburgh would have earned in the first 25 days of April
1980. Under this finding, the net backpay due Riten-
burgh is $7086.50.
The General Counsel's schedule E-2 reflects net back-
pay due Charging Party David Ochs. As Ochs entered
the U.S. Army on February 7, 1980, and was thereafter
unavailable for referral during any relevant time, the Re-
spondent Union's backpay liability with respect to Ochs
ceased on that date.-Schedule E-2 reflects that net back-
pay due to Ochs as of February 7, 1980, is $7069.40, a
figure which I find to be appropriate and accurate.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed'
ORDER
The Respondent, Local Union No. 410, Sheet Metal
Workers International Association, AFL-CIO, its offi-
cers, agents , and representatives, jointly and severally
liable , shall make whole Earl Ritenburgh by paying him
$7086.50 and make whole David Ochs by paying him
$7069.40, plus accrued interest computed in the, manner
set forth in Florida Steel Corp., 231 NLRB 651 (1977),
minus any tax withholding required by Federal and state
laws.
' 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 iii Sec 102 48 of the Rules, be adopted by the
Board and all objections - to them shall be deemed waived for all pur-
poses -