McKenzie Engineering Co.

National Labor Relations Board - Board Decisions

Sep 28, 2001

336 N.L.R.B. 336 (N.L.R.B. 2001)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 336
McKenzie Engineering Co. and Carpenters Local
Union 410, United Brotherhood of Carpenters
and Joiners of America, AFL–CIO. Case 33–
CA–11408
September 28, 2001
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN HURTGEN AND MEMBERS
TRUESDALE
AND WALSH
On July 20, 2001, Administrative Law Judge Marion
C. Ladwig issued the attached supplemental decision.
The Respondent filed exceptions and a supporting brief,
and the General Counsel filed a brief in support of the
administrative law judge.
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 decided to
affirm the judge’s rulings, findings, and conclusions and
to adopt the recommended Order.
ORDER
1. The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, McKenzie Engineering Co.,
Fort Madison, Iowa, its officers, agents, successors, and
assigns shall take the action set forth in section (a) of the
Order by paying the discharged union employees the
amounts listed next to their names for a total of
$130,515.79, plus interest, and in section (b) of the Order
by paying the nonunion replacement employees the
amounts listed next to their names for a total of
$70,091.06, plus interest.
2. Backpay and loss of benefits shall continue to ac-
crue for, and on behalf of Fred Arnold, Donald Patterson,
and Mark Spiekemeier until such time as Respondent
McKenzie Engineering, Co. makes a valid offer of rein-
statement to them.

Deborah A. Fisher, Esq., for the General Counsel.
David J. Lauth and Matthew E. Klein, Esqs. (Dorsey & Whit-
ney), of Minneapolis, Minnesota, for the Respondent.
Marc M. Pekay, Esq., of Chicago, Illinois, for the Charging
Party.
SUPPLEMENTAL DECISION
MARION C. LADWIG, Administrative Law Judge. This
compliance proceeding (in which the compliance specification
and notice of hearing was issued December 1, 1999, and a hear-
ing was held November 6–7, 2000) involves solely an appro-
priate remedy in the current case, referred to below as
McKenzie 1.
Therefore, the decision by the Federal circuit court in the
subsequent ERISA case, discussed below, and the next subse-
quent decision by the Board in McKenzie 2, also discussed
below, are irrelevant to the issues in this proceeding.
1. Current case remedial issues
In McKenzie Engineering Co., 326 NLRB 473 (1998)
(McKenzie 1), enfd. McKenzie Engineering Co. v. NLRB, 182
F.3d 622 (8th Cir. 1999), the Company—previously a long-
standing union contractor—discriminatorily discharged four
members of Carpenters Local 410 on November 1, 1995, in
violation of Section 8(a)(3) and (1) of the Act and hired nonun-
ion replacements. The union members were journeymen Fred
Arnold Jr., Donald Patterson, and Mark Spiekermeier and ap-
prentice Steven Perry. They were performing marine construc-
tion work, assisting two operating engineers and a boilermaker
on a project to repair an icebreaker structure on the Union Elec-
tric dam in the Mississippi River near Keokuk, Iowa. The
Board (326 NLRB at 474) ordered the Company to offer them
full reinstatement and make them whole for lost earnings and
other benefits.
To remedy the violations of Section 8(a)(5) and (1), the
Board (326 NLRB at 474) ordered the Company to

Honor the collective-bargaining contract . . . including
paying contractual wage rates, making contractually re-
quired contributions to fringe benefit funds . . . and make
whole all employees . . . and fringe benefit funds, with in-
terest, for any losses they may have suffered as a result of
the failure to honor the collective-bargaining agreement.

Enforcing McKenzie 1, the 8th Circuit Court (182 F.3d at
625–626) rejected the Company’s contention that its collective-
bargaining agreement with Local 410 did not include the type
of construction work involved in the Keokuk icebreaker pro-
ject.
The court concluded, based on the Board’s credibility find-
ings (182 F.3d at 627–628), that sufficient evidence existed to
support NLRB’s finding that the Company fired the four union
members “in furtherance of a plan to withdraw recognition
from the union,” violating Section 8(a)(1) and (3). The court
rejected the Company’s contentions that it fired Arnold and
Perry “because they failed to show up for work” on the morn-
ing of November 1, 1995, and fired Patterson and Spiekermeier
“because they engaged in a ‘work stoppage’ at the construction
site that same [rainy] day.” It held (at 629) that “At the compli-
ance proceeding, [the Company] will have a full opportunity to
litigate the appropriateness of the NLRB’s remedy and to avoid
the reinstatement obligation altogether by showing that the
union carpenters would not have been hired for work on subse-
quent projects,” citing Dean General Contractors, 285 NLRB
573, 573–575 (1987).
In this compliance proceeding, the Company admitted that it
“moved employees from job to job,” its counsel emphasizing,
“[L]et me be absolutely clear. That is undisputed.” (Tr. 121.)
The Company, in Fort Madison, Iowa, is a small marine con-
struction company, working along the Mississippi River. Presi-
dent Robert McKenzie testified that he usually has five to seven
employees and that about 98 percent of the time he has only
one project. Since becoming incorporated in 1986, the Com-
pany “has been a party to several successive collective-
336 NLRB No. 26
MCKENZIE ENGINEERING CO. 337
bargaining agreements with the union.” (Tr. 172; 182 F.3d at
626.)
The most recent of these 8(f) agreements was with the
“Northwest Illinois & Eastern Iowa District Council [now
Heartland Regional Council] of Carpenters (Union), for and on
behalf of Carpenter Local Union 410,” in force from May 1,
1994 through April 30, 1997 (GC Exh. 4, 5 and Exh. 11 p. 2 fn.
3, 333 NLRB 905, 909 fn. 3 (2001)).
Local 410 Business Agent Jim Decker, whose office is also
in Fort Madison, credibly testified that his 60 or 70 members
work “Quite a bit” in the Quad Cities and “all over where the
work is to be had.” He also credibly testified that when contrac-
tors in his area do work in the other areas (in the jurisdiction of
other regional council locals), “they take local people” with
them and pay the fringe benefits back in his area—indicating
that the Local 410 members continue to work under Local
410’s collective-bargaining agreement when working in the
Quad Cities area. In practice, as Decker further credibly testi-
fied, there was no “limitations on carpenters . . . working at a
different area within the regional council.” (Tr. 267–269.)
The $2.27 an hour in fringe benefits ($2.15 for the pension
fund and 12 cents for the apprentice fund) are sent by Local
410 to the Carpenters Fringe Benefit Funds in Chicago (Tr.
268; GC Exh. 22). All dues are sent by Local 410 to the re-
gional council (Tr. 157).
McKenzie testified that he has worked with members of Lo-
cal 410 for “Most of my career, off and on,” that he has been
associated with Local 410 “certainly . . . in the Quad Cities
area,” and “I’ve done 15, 20 percent of my work in my lifetime
in the Quad Cit[ies] area or about north of there” (Tr. 211–212).
In the ERISA case (the first subsequent case, discussed be-
low), President McKenzie testified at the Federal district
court’s trial (GC Exh. 10 in this compliance proceeding) about
the work performed by the four Local 410 members on the
Keokuk icebreaker project. Although McKenzie testified that
laborers and ironworkers also perform such construction work,
he employed only union carpenters to assist the operating engi-
neers and a boilermaker. (Tr. 19–21; GC Exh. 10, pp. 85, 89,
122, 124.)
When McKenzie was asked whether Local 410 Business
Agent Jim Decker ever said he “didn’t think his people should
be doing the work because it wasn’t covered by the [Local 410]
contract,” McKenzie admitted (GC Exh. 10 p. 125):

A. No, I didn’t discuss it in those terms. Originally
when I met with Jim Decker, I told him what
the job consisted of, how people had to work
together as a team, that it would behoove both
of us not to bring in a whole bunch of different
unions . . . four unions is unbearable. . . . I
don’t need to have a whole bunch of guys
claiming work, and the business agent for the
ironworkers is up in Burlington. I don’t even
know his name. And the laborers’ business
agent I don’t know, so you sort of go with who
you know. [Emphasis added.]

McKenzie testified that the three journeyman carpenters did
“a little of everything” and the apprentice “did the same work
basically that everyone else did” (GC Exh. 10, pp. 85, 88).
McKenzie admitted in the district court (GC Exh. 10 pp.
125–126) that he would have “used these [Keokuk-project un-
ion] people on the Crescent Bridge job” in Davenport, Iowa
(one of the Quad Cities), contrary to his contention in this com-
pliance proceeding that the Quad Cities area was too far from
Fort Madison (where the Company’s office is located) for them
to travel there to work, as discussed below.
I note that (a) after McKenzie admitted in the district court
that he would have used the union carpenters on the Crescent
Bridge job and (b) after testifying in this proceeding, as dis-
cussed above, that he had been associated with Local 410 “cer-
tainly . . . in the Quad Cities area,” having done “15, 20 per-
cent” of his work in his lifetime in that area or about north of
there, he then gave conflicting testimony.
When asked “was there ever a member of Local 410 who
traveled that far to work on a project for you?” he first gave the
evasive testimony, “I don’t believe so, no.” Then when asked if
he was saying that “no members of Local 410 ever worked in
the Quad Cit[ies] area,” he positively answered, “For me? Yes,
that’s what I’m saying”—despite his preceding testimony about
been associated with Local 410 certainly in the Quad Cities
area. (Tr. 212.)
The Company ignores in its brief this conflicting testimony
and gives no explanation how the Company would be associ-
ated with Local 410 in the Quad Cities area, in the jurisdiction
of Local 166, unless Local 410’s members were assigned there.
I discredit McKenzie’s denials.
2. Court Ruling in ERISA Case Irrelevant
In Carpenters Fringe Benefit Funds of Illinois v. McKenzie
Engineering, 217 F.3d 578, 580–581 (8th Cir. 2000) (the
ERISA case, R. Exhs. 3 and 13)—in which the General Coun-
sel of the Board was not a party—the Carpenters’ Benefit
Funds, Local 410, and Local 166 in Rock Island, Illinois (one
of the Quad Cities), brought an action in the Federal district
court under ERISA and Section 301 of NLRA for unpaid con-
tributions to the pension fund and the apprenticeship training
fund.
That case arose after the Company on November 23, 1996,
assigned its nonunion replacement crew to work on the Cres-
cent Bridge job in Davenport (across the Mississippi River
from Rock Island). That was a year after the Company dis-
criminatorily discharged its union carpenters on November 1,
1995, from the Keokuk icebreaker project and hired nonunion
replacements (as held in McKenzie 1, above).
The replacement employees, working in the jurisdiction of
Local 166, were neither union carpenters represented by a sister
local (Local 410) in the Carpenters’ Heartland Regional Coun-
cil, nor members of Local 166 or any other union. When Heart-
land Regional Council Business Agent Paul Delcourt was ad-
vised on December 12, 1996 that the Company’s replacement
employees were nonunion, he sought on behalf of Local 166 to
apply the Carpenters’ 1996–2001 highway and heavy construc-
tion contract to the work. See GC Exh. 11 pp. 9–10, cited in the
Company’s brief (at 5).
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 338
The circuit court in that ERISA case, emphasizing that it was
relying on the record before it, held (217 F.3d at 584–585):

[W]e conclude the record will not support a finding that any
Crescent Bridge work was covered by a collective bargaining
agreement with the Carpenters, as opposed to the Operating
Engineers. . . . Local 150 [of the Operating Engineers] was
willing to cover those workers under its collective bargaining
agreement, using a work permit mechanism. On this record,
[the Company] was contractually free to assign the Crescent
Bridge work to either union, or part of the work to each union.

Thus, as the court emphasized, it was ruling solely on the re-
cord in that case (in which the Board was not a party). The
court was therefore ruling on an issue whether the Company
was contractually free to assign the nonunion replacements’
work on the Crescent Bridge job to either Carpenters Local 166
or Operating Engineers Local 150, “or part of the work to each
union.”
That clearly is not an issue in this compliance proceeding.
In this proceeding, the assignment of nonunion replace-
ments’ work is irrelevant. In the absence of the unlawful dis-
charge of the Local 410 members, the issue of assigning work
of nonunion replacements on the Crescent Bridge job to other
locals would never have arisen.
As President McKenzie admitted, he would have used the
Local 410 members on the Crescent Bridge job.
The evidence is clear that (a) in the absence of the unlawful
discharge of the Local 410 members, these union carpenters
would have been assigned to work on the Crescent Bridge job,
in the jurisdiction of the sister Local 166 of the Carpenters’
Heartland Regional Council and (b) they would have worked
under Local 410’s May 1, 1994, to April 30, 1997, collective-
bargaining agreement with the Company.
In practice, as found, there was no limitations on carpenters
working anywhere within the regional council. When local
contractors in Local 410’s geographic jurisdiction assigned
Local 410 members to work in the jurisdiction of other regional
council locals, the contractors would work under Local 410’s
contract and pay the fringe benefits back in Local 410’s area.
Local 166 had never claimed jurisdiction over work performed
by Local 410 carpenters in the Quad Cities.
The circuit court’s ruling on the Benefit Funds issue is also
irrelevant.
Reversing the judgment of the district court, the circuit court
ruled (217 F.3d at 585–586) that the Benefit Funds “failed to
prove that [their] audit report as modified by the district court
establishes a claim for contributions contractually owed by [the
Company] under collective-bargaining agreements with the
Carpenters and it local unions” and that the auditor’s “bare
report is insufficient to establish breaches of the collective bar-
gaining agreements.”
In footnote 2 (217 F.3d at 585), however, the court specifi-
cally ruled that its decision was irrelevant to the issues in this
compliance proceeding regarding the Company’s contractual
obligation to make Benefit Fund contributions for work cov-
ered by the Local 410 Agreement, ruling as follows:

We note that our decision rejecting the claim for con-
tributions to the Funds is narrow. The NLRB [in McKenzie
1] has determined that [the Company] committed an unfair
labor practice in firing four Local 410 carpenters from the
Keokuk project. The Board’s compliance proceedings,
which are not yet complete, will no doubt result in a back-
pay award for those employees, and that award may well
include pension contributions to the Funds on their behalf.
Unlike the Funds’ overbroad claim in this case, that type
of award would clearly be consistent with McKenzie’s
contractual obligation to make contributions for work
“covered by [the Local 410] Agreement.”
3. Board ruling in McKenzie 2 case irrelevant
In McKenzie Engineering Co., 333 NLRB 905 (2001)
(McKenzie 2), the Board also ruled on contractual coverage of
the nonunion replacement employees who worked on the Cres-
cent Bridge project—not on contractual coverage of the Local
410 members on that project if they had not been unlawfully
discharged.
Based on the record in that case, the Board held (id. at 906)
that by virtue of the Company’s 1988 Section 8(f) “[memoran-
dum] collective-bargaining agreement with the Northwest Illi-
nois and Eastern Iowa District Council of Carpenters (the Car-
penters Union)” (GC Exh. 15 p. 29), it was “bound by the
1996–2001 heavy and highway construction contract between
the Associated General Contractors of Illinois and the United
Brotherhood of Carpenters and Joiners of America and that this
agreement was applicable to the Crescent Bridge repair pro-
ject.” The Board therefore held that the Company “violated
Section 8(a)(5) and (1) of the Act by failing and refusing to
honor this collective-bargaining agreement with respect to the
Crescent Bridge project.”
The Board (id.) ordered the Company to “Honor all terms of
the [1988] memorandum agreement and its incorporated collec-
tive-bargaining contracts” and “Make whole all employees,
Heartland Regional Council . . . and fringe benefit funds . . . for
work performed on the Crescent Railroad Bridge Sheer . . .
between December 9, 1996 and March 26, 1997, with interest
on amounts owing.”
That Board decision, of course, is irrelevant to the issues in
this compliance proceeding.
As indicated, this proceeding involves an appropriate remedy
after the Company unlawfully discharged the Local 410 mem-
bers and failed to assign them to work on the Crescent Bridge
job under the Carpenters Local 410 contract.
Compliance Specification
The amended paragraph 3 of the compliance specification
(GC Exh. 19) states that the number of hours the four union
employees would have worked “is based on the number of
hours worked by the employees who replaced them.” It alleges
that because of the Company’s employment practice of retain-
ing or rehiring employees from job to job, they would have
continued to work. It further alleges that in the absence of valid
offers of reinstatement, (1) contributions for their fringe bene-
fits continued to accrue through April 30, 1997, (2) backpay for
Steven Perry continued to accrue through the date of his death
on October 21, 1999 (Tr. 43; GC Exh. 20), and (3) backpay for
Fred Arnold Jr., Donald Patterson, and Mark Spiekermeier
continues to accrue through the present.
MCKENZIE ENGINEERING CO. 339
In the compliance hearing on November 6–7, 2000, the
Company stipulated—subject to its defenses (Tr. 36, 38) that
backpay should not be awarded for various periods of time—

(1) that the methodology used in calculating the com-
pliance specification was reasonable (Tr. 24–25, 29),
(2) to the gross backpay numbers, interim earnings, net
backpay, and fringe benefits for the four discharged union
members (Tr. 24, 27; GC Exhs. 16A–D),
(3) to the net backpay (computed by subtracting gross
nonunion backpay from the contractual backpay) and
fringe benefits for the nonunion replacements (Tr. 25, 27;
GC Exh. 17), and
(4) that the General Counsel has met the burden of
showing the gross backpay (Tr. 28–29).

The compliance specification is summarized in General
Counsel exhibit 21 for the backpay and fringe benefits of both
the four discharged union employees and the total of 19 nonun-
ion employees shown in the compliance specification to have
replaced them through April 30, 1997 (Tr. 43, 182; GC Exh.
17).
For the union employees, GC Exh. 21 summarizes GC Exhs.
16A-D, showing the compliance specification of backpay (Tr.
49–50, 57, 74–75) through the last quarter of 2000 (the fourth
quarter being merely an agreed estimate, subject to later verifi-
cation, Tr. 33–38), as well as fringe benefits to the second quar-
ter of 1997 (until the Sec. 8(f) union contract terminated April
30, 1997).
The total backpay due the four discharged union employees
(the net backpay after deduction of the net interim earnings,
plus $22,506.35 in interest to November 6, 2000) are shown in
GC Exh. 21 as follows:

Fred Arnold Jr. $9,730.38, Donald Patterson $75,695.49,
Mark Spiekermeier $44,182.06, and Steven Perry $7, 771.52,
totaling $137,379.45.

The total fringe benefits through April 30, 1997, payable to
the fringe benefit funds on behalf of the three union journey-
men, are shown in GC Exh. 21 to be $15,642.68. This brings
the total backpay and fringe benefits to $153,022.13.
The total backpay due the 19 nonunion replacements, as
shown by GC Exh. 21, summarizing GC Exh. 17 covering the
period through April 30, 1997, amounts to $61,833.96 (includ-
ing $13,431.64 in interest to November 6, 2000). The total
fringe benefits for the same period amount to $21,688.72, total-
ing $83,522.68 (Tr. 39–41, 51, 56, 58–59, 62; R. Exh. 1).
Thus the stipulated methodology used in calculating the
compliance specification, meeting the General Counsel’s bur-
den of showing the gross backpay, produced the compliance
specification of backpay and fringe benefits of $153,022.13 for
the four discharged union members and $83,522.68 for their 19
nonunion replacements, totaling $236,544.81 through 2000—
but of course not any amounts accruing after that date.
The Company contends in its brief (at 3 and 9) that “The
remedies sought by the General Counsel are unreasonable in
light of the issues and evidence at the hearing,” that the “back-
pay and back benefit contribution awards should be signifi-
cantly reduced,” and that the remedies sought reach “results
that are more punitive than remedial.”
Company’s Defenses
1. Work Performed by nonunion replacements on lock 19
The Company contends in its brief (at 17–19) that “[b]ecause
the Company would not have hired carpenters to perform” the
work, the discharged union carpenters are not entitled to back-
pay for work performed by nonunion replacements on the
Army Corps of Engineers lock 19 project for the weeks ending
February 24 to March 16, 1996 (GC Exh. 18 p. 1). That was
during the time that the Company’s icebreaker project near
Keokuk was shut down from December 7, 1995 to March 19,
1996, because of freezing of the river. The Company does not
contend that the union carpenters were unqualified to perform
the work assisting the operating engineer, boilermaker, and
President McKenzie on that project.
The Company contends in its brief (at 18) that “the vast ma-
jority of the work performed on the Lock 19 job was not the
kind of work traditionally claimed by union carpenters.” Even
if true, the Company completely ignores the evidence, dis-
cussed above, that McKenzie did not hire union carpenters on
the Keokuk icebreaker project to perform “the kind of work
traditionally claimed by union carpenters.” That was not his
criterion for employing workers to assist the two operating
engineers and the boilermaker on that project. McKenzie admit-
ted that he hired only union carpenters to assist them, and not
members of the Iron Workers and Laborers unions, because “I
don’t need to have a whole bunch of guys [from different un-
ions] claiming work.”
Moreover, McKenzie admitted (Tr. 184) that the “hardest
part of that project was getting the ice out of the work area.
Huge amounts, I mean, ice bigger than the quantity in this
room.” He later admitted (Tr. 227–231) that various jobs per-
formed by the nonunion replacements on the project were the
same or similar to jobs on the Keokuk icebreaker project and
unskilled jobs “that we all did.”
Instead of assigning union journeymen Patterson and
Spiekermeier—whom the General Counsel alleged (Tr. 45–46,
186; GC Exh. 18 p. 1) would have been assigned—McKenzie
reassigned nonunion replacements David Clawson and Tod
Schenck, who were working on the Keokuk icebreaker project
before the December 7, 1995 layoff during the winter shutdown
(Tr. 173–176.) There is no evidence that the replacements had
any previous experience in performing the so-called “vast ma-
jority” of work that was not “the kind of work traditionally
claimed by union carpenters.”
I reject, as unfounded, the Company contention that union
employees Patterson and Spiekermeier should be denied back-
pay for the work performed by Clawson and Schenck.
2. Work in Quad Cities area
The Company contends in its brief (at 19) that because of the
distance of about 100 miles from the Local 410 hiring hall in
Fort Madison to the Crescent Bridge project in the Quad Cities
and because other projects in that area continued for another
year and a half, “none of the discriminatees [unlawfully dis-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 340
charged union carpenters] would have been willing to make
that 200-mile-plus daily round trip to work on [the] projects.”
The Company ignores President McKenzie’s testimony at
the Federal district court trial in the ERISA case (Tr. 19–21;
GC Exh. 10, pp. 125–126) that he would have “used these [four
discharged union members] on the Crescent Bridge job”—
indicating that he had expected them to be willing to work
there. The Company also ignores Local 410 Business Agent
Decker’s credited testimony (Tr. 268) that his members work
“Quite a bit” in the Quad Cities and “all over where work is to
be had”—indicating a shortage of work for his members in the
geographic jurisdiction of Local 410.
The Company’s records (Tr. 202, 232; GC Exh. 18 pp. 3–4)
show that the Company’s nonunion crew (Michael Dooley,
John Rea, Randall Rea, Tod Schenck, Jamey Sweeden, and
Andrew Weir), who worked on the Keokuk icebreaker project,
were reassigned first on November 1, 1996, to the Santa Fe
bridge project in Fort Madison and then on November 23,
1996, to the Crescent Bridge job in Davenport, Iowa—
indicating their willingness to work that far away.
Regarding work on the Company’s other projects in the
Quad Cities area, I note that the Company introduced in evi-
dence an incorrect Chronology of Work Projects (R. Exh. 2).
That exhibit indicates that upon conclusion of the Crescent
Bridge job in Davenport on March 26, 1997, the work resumed
on the Rock Island Arsenal job in the Quad Cities area on June
22, 1997. To the contrary, the Company’s records (R. Exh. 18
p. 4) shows that the work resumed on April 7, 1997 (the week
ending April 12), with nonunion replacements who had worked
on the Keokuk icebreaker, Santa Fe, and Crescent Bridge pro-
jects.
The Company has attempted no explanation for nonunion
replacements being willing to work that distance from where
they were hired, but not the discharged union members.
In its brief the Company also ignores Local 410 Business
Agent Decker’s credited testimony that when contractors in his
area do work in the jurisdiction of other locals in Carpenters’
Heartland Regional Council, “they take local people” with them
and pay the fringe benefits back in his area—indicating that the
Local 410 members continue to work under Local 410’s collec-
tive-bargaining agreement when working in the Quad Cities
area. The Company also ignores Decker’s credited testimony
that in practice, there was no “limitation on carpenters . . .
working at a different area within the regional council.” (Tr.
268.)
The Company conjectures in its brief (at 19) that “the dis-
criminatees would have needed to apply to Local 166 or work
out an arrangement with Local 166 to permit them to work in
the Quad Cities territory.” In doing so, the Company ignores
the lack of evidence that any Local 410 member employed by
either the Company or any other contractor in the area had ever
been required to join or get a permit from Local 166 to work in
the Quad Cities area. It was only when the Company sent non-
union replacements into the Quad Cities area that Local 166
claimed jurisdiction over work performed by the Company’s
employees.
The Company does concede in its brief (at 19 fn. 8) that Fred
Arnold (one of the four discharged union employees) did work
in the Quad Cities area for Allied Construction after his dis-
charge, but contends—without any record support—that Arnold
performed only “a small amount of work in that area. . . . [for a]
brief stint.” The Company’s own evidence (R. Exhs. 5–6)
shows that after Arnold was discharged, he worked for Allied
Construction a total of about 40 months (nearly 3½ years).
When asked if this work was in the Quad Cities, he merely
answered, “Some of it was, some of it was local” and “I don’t
know” for what period of time in the Quad Cities (Tr. 133,
135). The Company offered no evidence to support its conten-
tion that Arnold worked in the Quad Cities area only “a small
amount” or for only a “brief stint.”
The Company further contends in its brief (at 20) that “the
discriminatees’ actions indicate that they had no interest in
working regularly in the Quad Cities.” It cites the irrelevant
evidence that they failed to look for work and register with
Local 166 and the unemployment office in the Quad Cities—
outside the jurisdiction of Local 410, where they were regis-
tered both at the union hiring hall and at State unemployment
offices (R. Exhs. 5, 7, 9). The Company contends that a “vast
majority” of their work after their November 1, 1995 discharge
was within 30 miles of the Local 410 hiring hall in Fort Madi-
son, “although they did travel as far as 50 to 60 miles to one or
two jobsites within the Local 410 geographic jurisdiction.”
There is no relevant evidence that the discharged Local 410
members would have refused employment in the Quad Cities
area if offered by the Company.
I find reject this unsupported defense.
3. Demolition work on Crescent bridge job
The Company contends in its brief (at 21–22) that during the
demolition work on the Crescent Bridge job from January 6 to
February 5, 1997, the discharged union carpenters should not
be awarded backpay because it “simply was not carpenters’
work” and “the Company would not have hired carpenters” to
perform the work.
As found above, however, that was not the criterion for
McKenzie’s hiring employees to assist the operating engineers
and boilermaker in performing the work on the Keokuk ice-
breaking project. He had hired only union carpenters—and not
ironworkers or laborers—because “I don’t need to have a whole
bunch of guys [from different unions] claiming work.” More-
over, nonunion replacements were already assisting the operat-
ing engineers (including operating engineer Jerry Russell, hired
December 15, 1996, Tr. 195; R. Exh 12) and the boilermaker
who were performing the demolition work that began in De-
cember 1996 (Tr. 237–239, 241, 248).
On November 23, 1996, the Company (after completing the
Keokuk icebreaker project on November 1 and the Santa Fe job
in Fort Madison on November 23) had reassigned its crew of
six nonunion replacements to work on the Crescent Bridge job
(GC Exh. 18 pp. 3–4). For about the first 2-1/2 or 3 weeks they
assisted the operating engineer and boilermaker in moving the
Company’s barges and construction equipment, behind a tow-
boat, upriver through the ice to the Crescent Bridge and in re-
pairing the ice damage to the boat and barges. The Company
then began performing the demolition work, but little progress
MCKENZIE ENGINEERING CO. 341
was made because of the “bitterly cold” weather, forcing a
shutdown on December 18, 1996. (Tr. 203, 237–239, 256–257.)
On December 14, 1996, as discussed below, President
McKenzie raised from $12 to $15 the wage rate of nonunion
replacements Daniel Oliver, Randall Rea, Jamey Sweeden, and
Andrew Weir, who were then assisting the operating engineer
and boilermaker who were performing the demolition work.
When the demolition work resumed—not on January 6 (as
incorrectly shown on the Chronology of Work Projects, R. Exh.
2), but on January 13, 1997 (the week ending January 18, GC
Exh. 18 p. 4)—nonunion replacements Daniel Oliver, Randall
Rea, and Jamey Sweeden, as well as Andrew Weir, continued
assisting the work of the operating engineers and boilermaker,
who were operating the “clam shells, excavators and big, heavy
equipment” (Tr. 203–204).
Although a company exhibit (R. Exh. 12) shows that Weir
continued working until July 12, 2000, his earnings since the
December 18, 1996 weather shutdown are not included for
backpay purposes in the compliance specification (GC Exhs.
17, 18), because he joined the Laborers union (Tr. 194). The
stipulated methodology for calculating gross backpay was to
exclude “employees who are affiliations with other unions” (Tr.
46–47). When asked what the Laborers rate of pay was,
McKenzie testified he thought $18, “something like that” (Tr.
201).
Regarding the type of work the three nonunion replacements
and laborer Weir were performing, McKenzie testified that
“there’s a lot of ice formation when you do this operation,” that
the crew was “cleaning the barges off” to prevent machines
from slipping off the barges, that “there’s a lot of debris around
there [that would fall off] and they’re continually shoveling this
ice and debris back into the river.” McKenzie testified that this
work required no particular skills, “Just muscle and eyesight.”
(Tr. 241–242.)
Thus, there is no evidence indicating that the discharged un-
ion members would not have continued to be employed in
January 1997 to assist the operating engineers and boilermaker
who were performing the demolition work. Nonunion re-
placements had already been assisting them in December, and
the work merely involved laborers’ work, which the discharged
union carpenters had also performed on the Keokuk icebreaker
project.
I reject, as unfounded, the contention that “no backpay or
benefit contributions should be awarded to the discriminatees”
for the unskilled work performed by the nonunion replacements
during the January demolition work through February 5, 1997.
4. Backpay after addendum to operating
engineers’ contract
a. The contention
The Company contends in its brief (at 22–25):

The Discriminatees should not be awarded backpay or
back benefits for the period from February 6, 1997
through the end of the Crescent Bridge Project [in March
1997] because the Discriminatees would not have worked
on the project after the Company assigned the work to the
operating engineers union.

Concerning this contention, the Company points out (at 5)
that when President McKenzie was asked to use Local 166
carpenters on the job, the “Company decided not to use Local
166 carpenters and, on February 6, 1997, the Company as-
signed the work instead to Local 150 (Rock Island) of the oper-
ating engineers union, a union with which the Company had a
longstanding (more than 30 years) relationship.”
b. The work assignment
As found, on December 12, 1996, after the Company began
attempting to perform demolition work on the Crescent Bridge
job, Heartland Regional Council Business Agent Delcourt was
advised that the Company’s replacement employees were non-
union. Delcourt sought on behalf of Carpenters Local 166 to
apply the Company’s adopted 1996–2001 contract between the
AGC of Illinois and the Brotherhood of Carpenters (GC Exh.
15) to the work being performed by the nonunion replacements.
As part of President McKenzie negative response, he took
four actions:
(1) On December 13, 1996, he attempted to terminate prema-
turely the Company’s May 1, 1994 to April 30, 1997 contract
with the Carpenters’ District Council on behalf of Local 410,
under which the Company had paid $18.65 an hour to union
foreman Donald Patterson, $17.65 to union members Fred Ar-
nold and Mark Spiekermeier, and $8.33 to union apprentice
Steven Perry (Tr. 49–50). The letter to Local 410 Business
Agent Jim Decker (GC Exh. 2a) read:

By this letter, McKenzie Engineering Co. terminates
any and all agreements with Carpenters Local 410 and its
affiliates as of the above date.

(2) On December 14, 1996, when four nonunion replace-
ments being paid $12 an hour (Daniel Oliver, Randall Rea,
Jamey Sweeden, and Andrew Weir) remained on the Crescent
Bridge job, McKenzie raise their wage rate to $15 an hour,
retroactive to the beginning of the week, December 9 (GC
Exhs. 17 pp. 1, 4 and 18 p. 4).
(3) After the December 18, 1996, weather shutdown,
McKenzie employed as a member of the Laborers union one of
the nonunion replacements, Weir, who continued working until
July 12, 2000 (Tr. 194; R. Exh. 12).
(4) On February 6, 1997, according to McKenzie, he signed
an addendum to Operating Engineers Local 150’s dredge main-
tenance agreement, to remain in effect until the end of the
Crescent Bridge project, which was completed by March 26,
1997 (R. Exh. 2).
Without explanation, the Company failed to produce and
place in evidence the addendum. Local 150’s dredge mainte-
nance agreement is in evidence (GC Exh. 12), but the only
addendum to the agreement in evidence (GC Exh. 13) is the
one McKenzie signed a year earlier on January 8, 1996. There
is no evidence to corroborate McKenzie’s testimony that the
February 6, 1997 addendum was actually in writing.
c. McKenzie’s conflicting testimony
At the compliance hearing, President McKenzie gave differ-
ent versions of what the addendum provided. On direct exami-
nation—in the absence of the addendum in evidence—he testi-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 342
fied in response to the following questions by company counsel
(Tr. 204–205):

Q. [BY MR. LAUTH] Mr. McKenzie, is it accurate
that as of February 6, 1997, the remaining work at the
Crescent Bridge project was assigned to the operating en-
gineers?
A. Yes it was.
Q. And, you signed a contract with the operating engi-
neers at that time?
A. Yes, I did.
Q. Was the remainder of the work on that project paid
at the Operating Engineers’ Contract rate?
A. Correct, yes.
Q. And, for all of the remaining work on that project,
did you make all benefit contributions that were required
under the Operating Engineers’ Contract.
A. Yes, I did.

In fact, the evidence shows that the work assisting the
operating engineers and boilermaker, who were performing the
remaining construction work after February 6, 1997, was as-
signed to the nonunion replacements, Daniel Oliver, Randall
Rea, and Jamey Sweeden, and to Andrew Weir, who had joined
the Laborers union (Tr. 248–249). The work performed by the
three nonunion replacements continued to be paid at their pre-
vious nonunion rate, which McKenzie had raised from $12 to
$15 an hour on December 14, 1996. All benefit contributions
required by the Operating Engineers contract were not paid. It
is stipulated that the contributions were made for only one of
the three nonunion replacements, Sweeden. (Tr. 258, 264; GC
Exhs. 17 p. 2 and 18 p. 4.)
McKenzie then gave conflicting testimony on cross-
examination.
McKenzie claimed that he paid nonunion replacement Ran-
dall Rea $12 an hour after signing the Operating Engineers
addendum on February 6, 1997. But when asked about the $15
rate (shown on GC Exh. 17 p. 1–2), he admitted (Tr. 258),
“That’s correct. They were given a raise” (but in December, not
on February 6).
Although McKenzie admitted that Rea’s wage rate went
back down to $12 an hour in April 1997 (after completion of
the Crescent Bridge job in March), McKenzie claimed, “I
wouldn’t know,” when asked if Rea ever joined the Operating
Engineers. He next testified, “I don’t believe he did” and
“That’s my understanding” that he did not. Only then did
McKenzie admit knowledge that Rea did not work as an operat-
ing engineer. He admitted that Rea worked as a permit em-
ployee under the Operating Engineers’ contract. (Tr. 258–259.)
Earlier at the compliance hearing (Tr. 251), before McKenzie
made this admission, he testified that when he signed a contract
with the Operating Engineers on February 6, 1997, Sweeden
became an apprentice operating engineer and was still paid $12
an hour.
This testimony is clearly false. Sweeden was not paid $12
an hour on the Crescent Bridge job after February 6. The record
(GC Exhs. 17 pp. 1–2, 4 and 18 p. 4) shows that like Daniel
Oliver and Randall Rea, Sweeden’s nonunion wage rate had
been raised from $12 to $15 an hour on December 14, 1996.
Also, Sweeden’s $15 rate shows that McKenzie’s claim that he
hired Sweeden as an apprentice operating engineer was like-
wise false. Instead, like Oliver and Rea, Sweeden worked as a
permit employee under the Operating Engineers contract—not
as either an apprentice or a member of the Operating Engineers.
The $15-an-hour nonunion earnings of Oliver, Rea, and
Sweeden are shown on the company records (GC Exhs. 17 p. 2,
4 and 18 p. 4, on which the stipulated compliance specification
of gross backpay is based) for the weeks ending December 14,
1996, to March 1, 1997. Their earnings on the Crescent Bridge
job (as well as the earnings of then laborer Weir) for the weeks
after March 1, however, are not shown on GC Exhs. 17 and 18
for backpay purposes.
The apparent reason is that when the Company made benefit
contributions in March to the Operating Engineers on behalf of
Sweeden, it undoubtedly reported (as McKenzie falsely testi-
fied) that Sweeden was an apprentice member of the Operating
Engineers. I note that there is no provision in the Local 150
contract for an apprenticeship program, for apprenticeship
rates, or for making benefit contributions on behalf of appren-
tices (GC Exhs. 12, 13).
As found, the stipulated methodology for calculating gross
backpay was to exclude “employees who had affiliations with
other unions” (Tr. 46–47). Evidently, the Company’s record of
the report to the Operating Engineers benefit fund after March
1, 1997, that Sweeden was a member of the Operating Engi-
neers (although false) was considered sufficient to show on the
company records in March that the three replacements “had
affiliations” with Local 150.
The Company makes no attempt to reconcile McKenzie’s
different versions of what the February 6, 1997 addendum pro-
vided. Whether the addendum was oral, or in writing and not
produced at the hearing, the evidence is clear that the arrange-
ment was for nonunion replacements Oliver, Rea, and Sweeden
to continue performing the work for the remainder of the Cres-
cent Bridge job, with no change is their nonunion $15 wage
rate, and for the Company to make benefit contributions on
behalf of only one of them, Sweeden, whom McKenzie falsely
claimed to be an apprentice operating engineer being paid $12
an hour.
Thus, the nonunion replacements remained on the job after
the Company purportedly “assigned the work” to the Operating
Engineers on February 6, 1997. There was no change in their
conditions of employment, except that the Company in March
made fringe benefit contributions on behalf of one of the re-
placements, Jamey Sweeden, to the Health and Welfare and
Pension Fund (GC Exh. 12 p. 1) of the Operating Engineers,
although he was not a member.
d. Irrelevant defense
In support of its defense that no “backpay or benefit contri-
butions” should be awarded to the discriminatees after the
Company “assigned the work” on February 6, 1997, to the Op-
erating Engineers, the Company contends in its brief (at 22)
that the Federal circuit court “has held that the Company prop-
erly assigned the remainder of the work” on that date to the
Operating Engineers, and the union members’ “claim for back-
MCKENZIE ENGINEERING CO. 343
pay and back fringe benefits is therefore barred by the doctrine
of res judicata.”
To the contrary, as found above, the circuit court’s decision
in the subsequent ERISA case, as well as the Board’s decision
in the subsequent McKenzie 2 case, is irrelevant to the issues in
this compliance proceeding.
I reject the Company’s unsupported defense.
5. Union members working after expiration of
Local 410 contract
The Company contends in its brief (at 26–27):

The Discriminatees should not be awarded backpay for
work performed by the Company in Local 410’s jurisdic-
tion after April 30, 1997 because the Company’s contract
with Local 410 expired and the Discriminatees would not
have worked for the Company on a nonunion basis. [Em-
phasis added.]

As worded, this defense is not that the unlawfully discharged
union members would have refused to work for the Company
on a nonunion basis after April 30, 1997. It does not refer to
them working after that date in the Quad Cities, outside the
jurisdiction of Local 410.
The apparent reason is that at the time Carpenters Local 410
contract expired on April 30, 1997, carpenter journeymen Fred
Arnold Jr., Donald Patterson, and Mark Spiekermeier were all
unemployed. Arnold was unemployed from February 3 until
May 27, 1997 (R. Exh. 7). Patterson was unemployed from
November 25, 1996 until July 3, 1997 (R. Exh. 5). Spiekermeier
was unemployed from December 17, 1996 until May 27, 1997
(R. Exh. 9). The Company’s own exhibits show that they were
seeking work (R. Exhs. 5, 7, 9), and there is no evidence that
the union members would have refused to work for the Com-
pany after April 30, 1997, if the Company had offered them
employment.
The Company is instead contending in its brief (at 26–27)
that the union members would have refused to work for the
Company on a long-term job over a year later after the April
30, 1997 contract expiration and after completion of the Com-
pany’s Phillips Oil job in Bettendorf, Iowa, one of the Quad
Cities, during the week ending May 30, 1998 (Tr. 211; GC Exh.
18 p. 5; R. Exh. 2).
The Company’s next job, which was in Local 410’s jurisdic-
tion, was its second project at the Union Electric Dam in Keo-
kuk, a long-term job nearer the employees’ homes. The project
began the week ending June 6, 1998, and was still in progress
over 2 years later at the time of the compliance hearing on No-
vember 6–7, 2000 (Tr. 209; GC Exh. 18 p. 5–14).
Of course, it is merely a conjecture that the discharged union
employees would have refused an offer to work nonunion on
that long-term project.
In making this contention, the Company assumes that in the
absence of its unlawful discharge of the union members on
November 1, 1995, McKenzie would still have sent Local 410
the Company’s February 13, 1997 letter (GC Exh. 2b) terminat-
ing the Local 410 contract on its April 30, 1997 expiration date,
instead of following its previous longstanding practice of oper-
ating as a union contractor. The Company also assumes that
after the assumed expiration of the Local 410 contract, it would
not have assigned the union members to work in the Quad Cit-
ies area, contrary to the above findings.
I find that in the absence of supporting evidence and particu-
larly because of the shortage of work for the union journeymen
in the jurisdiction of Local 410 after their unlawful discharge
(R. Exhs. 5, 7, 9), the Company has failed to prove that the
discharged union members would have refused to work long-
term for the Company on a nonunion basis.
I therefore reject this unsupported defense.
6. Calculating union members’ backpay
The Company contends in its brief (at 27):

Even if the Discriminatees should be awarded backpay
for work in the Local 410 jurisdiction after the expiration
of the contract, the backpay should not be calculated at
contract rates.

The Company’s own exhibit (R. Exh. 14) shows that it was
paying as high as $18 to $20 to the following nonunion re-
placements: Richard Murphy ($18 and $20), Keith Sowers
($18, $18.50, and $19), and Anthony Stevenson ($18, $19, and
$19.50). Furthermore, President McKenzie testified (Tr. 201)
that $18, “something like that” was the wage rate being paid
members of the Laborers union, employees Marvin Tripp (Tr.
219), Steward (Tr. 194), and Andrew Weir (Tr. 194).
Yet the Company contends in its brief (at 27–28) that “any
backpay for this period [after the April 30, 1997 contract expi-
ration] should be calculated using the average wage rate that
the Company paid its nonunion employees—$15.80 per hour,”
citing Respondent Exhibit 14. That exhibit shows that the non-
union wages included wage rates as low as $7, $8, $10, $12,
$12.50, and $13.50 an hour.
Thus, the Company is contending that the wage rate used to
determine backpay for the experienced union journeymen
($18.65 for Donald Patterson who was employed as foreman,
and $17.65 for Fred Arnold Jr. and Mark Spiekermeier) should
not be calculated in relation to the higher wage rates being paid
experienced nonunion replacements and members of the Labor-
ers union. Instead, the Company is contending that the backpay
rate must be lowered by averaging in the wages of inexperi-
enced, unskilled, and less skilled nonunion replacements.
In view of the evidence that the Company was paying as
high as $18 to $20 for nonunion replacements and had begun to
employ Laborers at a rate higher than the Carpenters’ journey-
man rate, I find that the Company has failed to show that the
$18.65 rate for the journeyman foreman (Tr. 74–75) and the
$17.65 rate for the other union journeymen were unreasonable.
Therefore those rates in the Compliance Specification “cannot
be declared to be arbitrary or unreasonable in the circumstances
involved.” NLRB v. Brown & Root, Inc., 311 F.2d 447, 452
(8th Cir. 1963).
I reject this company defense.
7. Limiting backpay to average tenure
The Company contends in is brief (at 12–17):

The Discriminatees should only be awarded backpay
and back benefit contributions for a period of 31 weeks
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 344
[from November 1, 1995 until June 6, 1996], which is the
average tenure of a nonsupervisory employee at McKenzie
Engineering.

That is, the Company is contending that the backpay for the
unlawfully discharged union members should end over a year
before Local 410’s contract expired on June 30, 1997.
The Company cites no authority to support such an extreme
position of limiting backpay to average tenure, under the exist-
ing circumstances. The position fails to take into account the
very high turnover of the lower paid nonunion replacements. In
fact, most of the nonunion replacements worked very few
weeks and 11 of them worked only 1 week or less, including 5
who worked only 1 day, Ronald Berry, Steven Cullen, Brian
Holvet, Riordan, and Todd Simons (Tr. 196, 218–220; GC Exh.
17; R. Exh. 12).
The Company erroneously contends in its brief (at 10–11)
that the General Counsel’s seeking “more than five years of
backpay for the discriminatees” is based on “the assumption
that each of the discriminatees would have worked for [the
Company] on each of its projects for the entire five year pe-
riod.” To the contrary, the General Counsel seeks backpay only
for the union members who would have worked on the Com-
pany’s jobs (GC Exhs. 17, 18; R. Exh. 2).
Of course, there is no certainty, even considering the poor
employment opportunities for the union employees in the area
after their discharge, that they would have accepted all assign-
ments to work (GC Exhs. 17, 18; R. Exh. 2)

(a) on the Keokuk icebreaker project at the Union
Electric dam for the weeks ending November 8 to Decem-
ber 21, 1995,
(b) on the Army Corps of Engineers Lock 19 project
for the weeks ending February 24 to March 16, 1996,
(c) on the Keokuk icebreaker project for the weeks
ending March 23 to November 2, 1996,
(d) on the Santa Fe job in Fort Madison for the weeks
ending November 9 to November 23, 1996,
(e) on the Crescent bridge job in Davenport (in the
Quad Cities) for the weeks ending November 30 to De-
cember 21, 1996,
(f) on the Crescent bridge job for the weeks ending
January 18 to March 1, 1997,
(g) on the Rock Island (Quad Cities) Arsenal job for
the weeks ending April 12, 1997 to March 21, 1998 (the
weeks ending July 5, 1997 to March 21, 1998 being omit-
ted from the Compliance Specification, without explana-
tion),
(h) on the Phillips Oil job in Bettendorf (in the Quad
Cities) for the weeks ending May 9 to May 30, 1998, and
(i) on the second Keokuk project at the Union Electric
dam for the week ending July 7, 1998 through the date of
the compliance hearing on November 6–7, 2000.

On the other hand, none of the discharged union members
was given an opportunity to work on the projects, and there is
no way to positively determined whether they would have re-
fused to accept assignments on the projects.
By hiring only replacements since the discharges, the Com-
pany created uncertainty whether the union members would
have performed the available work on the Company’s projects
if they had not been discharged. It is well established that in a
backpay proceeding when uncertainty exists, the uncertainty
should be resolved in favor of the wronged party rather than the
wrongdoer. Cobb Mechanical Contractors, 333 NLRB 1168
(2001); and Atlanta Limousine, Inc., 328 NLRB 257 fn. 3
(1999).
I reject the Company defense that the unlawfully discharged
union members should be awarded backpay and benefits for
only 31 weeks, which is less that 1 year.
Regarding adequacy of the remedy, I note that the stipulated
methodology for calculating gross backpay—excluding the
earnings of “employees who had affiliations with other un-
ions”—has precluded the inclusion of earnings, for backpay
purposes, of members of the Laborers union who, like the non-
union replacements and also the union members before their
unlawful discharge, were employed to assist the operating en-
gineers and boilermaker.
After Carpenters Local 166 sought to apply its contract to
work being performed in December 1996 by the nonunion re-
placements on the Crescent Bridge job, as found, the Company
began employing members of the Laborers union as replace-
ments. For example, Andrew Weir worked as a nonunion re-
placement from August 18 to December 18, 1996 (the week
ending December 21, 1996). He joined the Laborers union and
worked until July 12, 2000—a total of 206 weeks (nearly 4
years) until July 12, 2000. His earnings while working as a
Laborers member have not been included in the compliance
specification. (GC Exh. 17; R. Exh. 12.)
Thus, the General Counsel does not seek any remedy for the
worked performed by members of the Laborers union after
December 21, 1996.
8. Efforts to seek interim employment
The Company contends in its brief (at 29–31) that union
journeyman Mark Spiekermeier was unemployed a total of 12
months in a 16 month period, showing that he “did not make
reasonable efforts to seek interim employment” to “adequately
mitigate his damages.”
In making this contention the Company ignores evidence in-
dicating a shortage of work also for the two other discharged
union journeymen.
Spiekermeier was unemployed for 5 1/2 months from De-
cember 29, 1995 to June 14, 1996. During that time, journey-
man Donald Patterson was unemployed over 4 months, from
January 17 to May 24, 1996. Journeyman Fred Arnold Jr. was
unemployed 2 1/2 months from January 22 to April 9, 1996. (R.
Exhs. 5, 7, 9.)
Spiekermeier’s next long period of unemployment was for
5½ months from December 16, 1996 to May 27, 1997. Patter-
son was unemployed (1 1/2 months longer) for 7 months from
November 25, 1996 to July 3, 1997. Arnold was unemployed
for 3 3/4 months from February 3 to May 27, 1997. (R. Exhs. 5,
7, 9.)
There is no contention that journeymen Patterson and Arnold
were not diligently seeking work, despite their long periods of
unemployment.
MCKENZIE ENGINEERING CO. 345
In the meantime, Spiekermeier applied regularly at both Car-
penters Local 410 hiring hall and the State unemployment of-
fice. Being referred by Local 410, he worked on a short job
with Graham Construction before his first long period of unem-
ployment. He worked for employer Willard Jackson until his
next unemployment, which lasted 5 weeks, and for Allied Con-
struction until his second long period of unemployment. After
that, he worked twice for Allied Construction, and also worked
for employers Menefee Drywall, Frank Millard, and Greystone.
After that he worked for Allied Construction for a whole year
before working for Lankford Construction and Allied Construc-
tion for short times, then for Allied Construction for most of
2000.
The Company failed to prove that Spiekermeier was not dili-
gently seeking work or that he refused any available employ-
ment. Clearly, after the General Counsel had shown the gross
amount of backpay due Spiekermeier, the Company did not
sustain it burden “to establish facts which would negative the
existence of [the employer’s] liability to [the] employee or
which would mitigate that liability.” NLRB v. Brown & Root,
Inc., 311 F.2d 447, 454 (8th Cir. 1963).
I reject the Company unsupported defense.
9. Court ruling in ERISA case
Concerning the Compliance Specification for the payment of
fringe benefits, the Company again contends in its brief (at 33–
35) that the General Counsel’s request for back fringe benefit
contributions is barred by res judicata and should be barred.
To the contrary, as found above, the Eighth Circuit Court’s
decision in the ERISA case is irrelevant to the issues in this
compliance proceeding.
10. Backpay and back benefits for all employees
As discussed above, the Board (326 NLRB at 474) ordered
that the Company both (a) offer full reinstatement to the dis-
charged Local 410 members and make them whole for lost
earnings and other benefits, to remedy the Section 8(a)(3)
violations, and (b) honor the Local 410 agreement, “including
paying contractual wage rates, making contractually required
contributions to the fringe benefit funds” and “make whole all
[emphasis added] . . . and fringe benefit funds” to remedy the
Section 8(a)(5) violations.
The Company contends in its brief (at 35, 37):

Backpay should not be awarded to all of the [nonunion
replacements] and all of the discriminatees because such
an award will result in overpayment by [the Company].

. . . .

It is inappropriate to order the Company to pay back-
pay to all of the discriminatees and all of the [nonunion
replacements] because, absent the illegal discrimination,
many of the [replacements] would not have worked for the
Company at all. Instead, the award of backpay to the [re-
placements] should be limited to those employees who
would have been hired even if the discriminatees were
working for the Company. Thus, in a week in which [the
Company] employed six [replacements] on its crew, back-
pay should be awarded to the four discriminatees and two
[replacements].

To the contrary, the Board has long held that when an em-
ployer unlawfully discharges union employees and replaces
them with nonunion replacements, the employer is required to
give backpay not only to discharged employees but also to all
the nonunion replacements. Blumenfeld Theatres Circuit, 240
NLRB 206, 207, 218–219 (1979), enfd. mem. 626 F.2d 865
(9th Cir. 1980).
Relying on Blumenfeld, the Board held in Ad-Art, Inc., 290
NLRB 590, 590–591, 611 (1988), that “[a]ll replacements”
performing the work must be made whole, ruling that “Deter-
mination of the identity of any replacement employees who are
not included in the arbitrator’s remedy [granting backpay to the
union employees] may be made in the compliance stage of this
proceeding.”
The Board went further in J.R.R. Realty Co., 301 NLRB 473,
473–474 fn. 2, 481–482 (1991), enfd. mem. 955 F.2d 764 (D.C.
Cir. 1992), cert. denied 506 U.S. 829 (1990). In that case the
Board ruled that the employer must not only give backpay to
the discharged union employees and all the nonunion replace-
ments, but must also make contributions to the benefit funds for
“six positions,” even though “there were at any time no more
than four replacements employed.” Six union employees had
been employed, and the union contract provided that before
reducing its force, the employer “must provide the Union with
4 weeks’ written notice.”
11. Calculating nonunion replacements’ backpay
Article 15, section 2 of the Local 410 contract provides that
when four or more journeymen are employed, one must be an
apprentice “when available,” and that the assignment of appren-
tices “shall be determined and governed by the Joint Apprentice
Committee” (GC Exh. 4 p. 11).
Although the Company had no apprentice program, none of
the nonunion replacements was an apprentice, and no appren-
tices were available, the Company contends in its brief (at 37–
39) that backpay for some of the replacements should be calcu-
lated at an apprentice rate, because several of them had “ap-
prentice-level” skills. This, of course, does not qualify them as
apprentices. Therefore, the Local 410 contract required that all
the nonunion replacements of the unlawfully discharged union
members must be paid at the journeyman rate.
I reject this contention as unfounded.
CONCLUSIONS OF LAW
Having stipulated that the methodology used in calculating
the compliance specification was reasonable and that the Gen-
eral Counsel has met the burden of showing the gross backpay,
the Company has failed to meet its burden of establishing facts
in this compliance proceeding that would negative the existence
of its liability for
1. The unlawful discharge on November 1, 1995, of mem-
bers of Carpenters Local 410 in violation of Section 8(a)(3) and
(1) of the Act, failing to offer them reinstatement and make
them whole for lost earnings and other benefits, and failing to
make contributions on their behalf to the fringe benefit funds.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 346
2. Not honoring the Local 410 collective-bargaining contract
in violation of Section 8(a)(5), failing to pay the nonunion re-
placements the contractual wage rate and to make them whole,
and failing to make contributions on their behalf to the fringe
benefits funds.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended1
ORDER
The Respondent, McKenzie Engineering Co., Fort Madison,
Iowa, its officers, agents, successors, and assigns, shall make
the following payments in accordance with the National Labor
Relations Board’s Decision and Order in 326 NLRB 473, 474
(1998), plus interest on all payments as computed in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987):
(a) Make whole discharged union employees Fred Arnold,
Donald Patterson, Mark Spiekermeier, and Steven Perry by
paying the following amounts for backpay that accrued from
November 1, 1995, through the first 3 weeks of October 2000,
and additional backpay that will have accrued from then until
the Respondent offers them full and immediate reinstatement
(excepting Perry who died October 21, 1999), and make whole
the fringe benefit funds by paying them the total fringe benefits
that accrued from November 1, 1995, through April 30, 1997:

1 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
Employee Backpay Fringe Benefits

Fred Arnold $8,757.56 $4,264.87
Donald Patterson 64,106.43 5,951.94
Mark Spikermeier 36,298.02 5,425.87
Steven Perry 5,711.10 0.00

(b) Make whole the following employees hired as nonunion
replacements by paying them the following amounts for back-
pay and make whole the fringe benefit funds by paying them
the total fringe benefits:

Employee Backpay Fringe Benefits

Ronald Berry $45.20 $18.16
John Briggs 2,535.10 1,011.29
David Clawson 0.00 506.21
Lester Click 392.20 335.96
Steven Cullen 45.20 18.16
Michael Dooley 6,257.90 2,472.03
Brian Holvet 45.20 18.16
Jack Landes 477.00 404.06
Carl Leggett 226.00 90.80
James Leggett 135.60 54.48
Michael McCarl 406.80 163.44
Daniel Oliver 6,739.20 3,066.77
John Rea 1,685.61 620.85
Randall Rea 8,713.01 3,744.37
Tod Schenck 7,925.66 3,674.00
Kevin Siemens 1,247.24 489.19
Todd Siron 45.20 18.16
Jamey Sweeden 7,505.99 3,352.79
Andrew Weir 3,974.21 1,629.86