Metealf Excavating

National Labor Relations Board - Board Decisions

Nov 10, 1986

282 N.L.R.B. 92 (N.L.R.B. 1986)

92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jimmy Metcalf, d/b/a Metcalf Excavating and
Local 164, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers
of America . Case 7-CA-22378
10 November 1986
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 30 June 1986 Administrative Law Judge
Elbert D. Gadsden issued the attached supplemen-
tal decision. The Respondent filed exceptions and a
supporting brief, and the General Counsel filed an
answering brief.
The National Labor Relations Board has delegat-
ed 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, fmdings,1 and
conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Jimmy Met-
calf, d/b/a Metcalf Excavating, Jackson, Michigan,
its officers, agents, successors, and assigns, shall
take the action set forth in the Order.
1 The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence 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 examined the record and find no basis for reversing
the findings
Jerome E. Schmidt, Esq., for the General Counsel.
George J. Brannick, Esq., of Jackson, Michigan, for the
Respondent.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
ELBERT D. GADSDEN, Administrative Law Judge. On
15 January 1985 the National Labor Relations Board
issued its Decision and Order directing Jimmy Metcalf,
d/b/a Metcalf Excavating (the Respondent), to take cer-
tain actions, including that of making whole employees
for the losses suffered as a result of Respondent's unlaw-
ful conduct, to make contributions to the health, welfare,
and pension benefit funds, and to pay the contractual
wage rates pursuant to the collective-bargaining agree-
ment with Local 164, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America (the Union or the Charging Party); -retroactive
to 2 May 1983.
On 19 July 1985 the United States Court of Appeals
for the Sixth Circuit issued its decision in-Case No. 85-
5320, enforcing the Board's Order. Because a controver-
sy currently exists over the amount of backpay due the
discriminatee employees and the contributions due the
health, welfare, and pension benefit funds under the
terms of the Board's Order, as enforced, the Regional
Director for Region 7 of the Board issued a backpay
specification and notice of hearing on 14 August 1985,
alleging the amount of the backpay due under the
Board's Order.
Respondent filed an answer on 29 August 1985, setting
forth a general denial and affirmatively alleging that the
discriminatee employees Kenneth F. Johnson and Charlie
M. Scott, did not at all times perform work under any
collective-bargaining agreement with the Union; that
they were not members of the Union but, in fact, were
members of another labor organization; and that the
amount of backpay set forth in the backpay specification
for Johnson and Scott should be reduced because neither
of them performed bargaining unit work the majority of
the time on the job. Johnson performed bargaining unit
work less than 25 percent and Scott less than 10 percent
of the time and, therefore, they should be paid at a re-
duced wage rate.
The hearing in the above matter was held before me in
Jackson, Michigan, on 19 February and 5 May 1986.
Briefs have been received from the General Counsel and
counsel for the Respondent, respectively, which have
been carefully considered.
On the entire record in this case and from my observa-
tion of the witnesses, I make the following
FINDINGS OF FACT
A. Backpay Specification
On 15 January 1985 the Board directed Respondent to
make whole former employees Roy F. Mullins, Kenneth
F. Johnson, and Charlie M. Scott, and to make contribu-
tions to the health, welfare, and pension benefit funds on
their behalf, and to pay contractual wage rates to them
in accordance with the collective-bargaining agreement
it has with the Union.
1. The gross backpay due Roy Foster Mullins, Ken-
neth F. Johnson, and Charlie M. Scott, the discrimina-
tees, is the difference between the amount of earnings re-
ceived by the discriminatees and the amount of earnings
they would have received but for the Respondent's fail-
ure and refusal to pay the contractual wage rates that
their collective-bargaining agreement with the Charging
Union requires.
2(a) The backpay period for discriminatee Roy Foster
Mullins commenced on 2 May 1983 and terminated 19
November 1983 when his pay was raised to the contrac-
tual wage rate.
(b) The backpay period for discriminatee Kenneth F.
Johnson commenced on 18 June 1983 and terminated 31
December 1983 when his employment with the Respond-
ent was terminated.
282 NLRB No. 18
METCALF EXCAVATING
(c) The backpay period for discriminatee Charlie M.
Scott commenced on 2 May 1983 and terminated 19 No-
vember 1983 when his employment was terminated.
3(a) During the backpay period, discriminatee Roy
Foster Mullins was entitled to a wage rate of
$11.73/hour pursuant to the collective -bargaining agree-
ment . He was paid by the Respondent at the rate of
$9/hour during the backpay period . Therefore , he is enti-
tled to backpay at the straight -time rate of $2.73/hour
multiplied by the number of hours he worked during the
backpay period . See Schedule A-1.
(b) During the backpay period , discriminatee Kenneth
F. Johnson was entitled to a wage rate of $11 . 73/hour
pursuant to the collective-bargaining agreement. He was
paid by the Respondent at the rate of $10/hour during
the backpay period . Therefore, he is entitled to backpay
at the straight-time rate of $1 . 73/hour multiplied by the
number of hours he worked during the backpay period.
See Schedule A-2.
(c) During the backpay period , discriminatee Charlie
M. Scott was entitled to a wage rate of $11 . 73/hour pur-
suant to the collective-bargaining agreement. He was
paid by the Respondent at the rate of $8 /hour from the
commencement of the backpay period through 1 Octo-
ber 1983. Therefore, he is entitled to backpay at the
straight-time rate of $3.73/hour multiplied by the number
of hours through 1 October 1983. From 1 October 1983
through 19 November 1983 , he was paid at the rate of
$8.50/hour. Therefore , he is entitled to backpay at the
straight-time rate of $4.23/hour multiplied by the number
of hours he worked from 1 October through 19 Novem-
ber 1983 . See Schedule A-3.
4. The backpay due to the discriminatees for overtime
hours worked during the backpay period is calculated by
multiplying the appropriate wage differential by the
overtime 'rate of 1.5, by the number of overtime hours
worked . See Schedules A-1, A-2, and A-3.
5. Summarizing the facts and figures , above and set
forth in the schedules regarding the backpay owed to the
discriminatee 's, Respondent's obligation to make whole
the discriminatees , under the Board's Order as enforced
by the United States Court of Appeals for the Sixth Cir-
cuit, will be discharged by payment to them of the
amounts set opposite their =names below, together with
interest at the prevailing Board rates commencing on the
last of each calendar quarter of the backpay period on
the amount ,due and owing for the quarterly period and
continuing until full compliance with the Board 's Order
is achieved, less any tax withholding as required by Fed-
eral, state, and municipal laws:
Roy Foster Mullin $2,394.13
Kenneth F. Johnson 1,649.11
Charlie M. Scott 4,080.62
6. The Respondent owes contributions to the Michigan
Conference of Teamsters Welfare Fund (the welfare
fund), and the Central States , Southeast , and Southwest
Areas Pension Fund (the pension fund). The contribu-
tions are to be paid to the funds on behalf of employees
Roy Foster Mullins , Kenneth F . Johnson , and Charlie
M. Scott , for the following periods:
93
_(a) The contribution period regarding Roy Foster
Mullins commenced 2 May 1983 , terminated 19 Novem-
ber 1983 , and commenced again on 14 May 1984 and ter-
minated on 4 August 1984.
(b) The contribution period regarding Kenneth F.
Johnson commenced on 18 June 1983 and terminated on
31 December 1983.
(c) The contribution period regarding Charlie M, Scott
commenced on 2 May 1983 and terminated 19 November
1983.
7. The amounts of the contributions owed to the wel-
fare fund are calculated by applying a weekly contribu-
tion rate of $52.50 per employee for the period of 2 May
1983 through March 1984 and a weekly contribution rate
of $60 . 50 per employee for the period of 1 April through
4 August 1984, as set forth in the Respondent 's collec-
tive-bargaining agreements with the Charging Union.
The weekly contribution rates are multiplied by the
number of weeks worked by the discriminatees during
the contribution periods. See Schedules B-1, B-2, and B-
3. '
8. The amounts of the contributions owed to the pen-
sion fund are calculated by applying a weekly contribu-
tion rate of $55 per employee for the period of 2 May
1983 through 4 August 1984 , as set forth in the Respond-
ent's collective -bargaining agreements with the Charging
Union and its participation agreement with the pension
fund . The weekly contribution rate is multiplied by the
number of weeks worked by the discriminatees during
the contribution periods. See Schedules C-1, C-2, and C-
3.
9. Pursuant to the Board's decision as enforced by
United States Court of Appeals for the Sixth Circuit, in-
terest and/or additional amounts that must be paid by
the Respondent to the funds to satisfy the "make whole"
remedy ordered by the Board may be determined by ref-
erence to the provisions in the documents governing the
funds at issue. Accordingly, the following assessment
amounts and/or interest rates should be added to the
amounts due to the welfare fund and pension fund:
(a) Pursuant to article IV, section 2 of the welfare
fund trust agreement , an assessment of 20 percent should
be added to the contribution amounts due to the welfare
fund which are currently outstanding . Pursuant to article
XI, section 4 of the welfare fund trust agreement, in ad-
dition to the assessment, interest at the rate of 8 percent
per annum should also be added to the contribution
amounts due to the welfare fund which are currently
outstanding.
(b) Pursuant to article XIV, section 4 of the pension
fund trust agreements , an assessment of 20 percent
should be added to the contribution amounts due to the
pension fund which are currently outstanding.
10. About 12 December 1984 the Respondent remitted
the sum of $275 to the pension fund. About 28 Septem-
ber 1984, the Respondent remitted the sum of $500 to the
welfare fund. These remittances should be deducted from
the amount outstanding which is owed to the appropriate
funds.
11. Summarizing the facts and figures above and set
forth in the schedules regarding the contributions owed
94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the welfare fund, Respondent's obligation to make
contributions to the welfare fund, under the Board's
Order as enforced, will be discharged by payment to the
welfare fund of the following amounts set forth opposite
the names the employees on whose behalf the contribu-
tions should be made, together with interest as set forth
above in paragraph 9(a), less the remittance made by the
Respondent as set forth above in paragraph 10:
to the pension fund, Respondent's obligation to make
contributions to the pension fund, under the Board's
Order as enforced, will be discharged by payment to the
pension fund of the following amounts set opposite the
names of the employees on whose behalf the contribu-
tions should be made, together with interest as set forth
above in paragraph 9(b), less the remittance made by the
Respondent as set forth above in paragraph 10:
Roy Foster Mullin $2 353 50, . Roy Foster Mullins $2 365 00Kenneth F. Johnson 1 417.50 , .,
Charlie M. Scott 1,627.50 Kenneth F. Johnson 1,430.00
12. Summarizing the facts and figures above and set
forth in the schedules regarding the contributions owed
Charlie M. Scott 1,705.00
SCHEDULE A-1 BACKPAY REGARDING ROY FOSTER
Wages Wages
Yr./Qtr. Reg. Wage Due at OT Wage Dif. Due at TotalHrs Dif. Reg. Hrs. OT Wages Due
Rate Rate
1983/2 ............................................................................................. 223.0 $2.73 $608.79 11.5 (2.73x1.5) $47.09 $655.88
$4.095
1983/3 ............................................................................................. 494.5 2.73 1349.98 10.0 4.095 40.95 1390.93
1983/4 through 11/19/83 .............................................................. 304.0 2.73 829.92 4.25 4.095 17.40 347.32
$2,394.13
* Wages due are $847.32 less $500 which was paid to Mullins by the Respondent on December 16, 1983
SCHEDULE A-2.-BACKPAY REGARDING KENNETH F. JOHNSON
Reg. Wages
Yr./Qtr. Reg. Wage Wage Wage Dif Due at Total
Hs.
D Rate Hrs Rate
1983/2 .............................................................................................. 28.5 $1.73 $49.30 0 $49.30
1983/3 .............................................................................................. 483.5 1.73 836.45 5 (1.73 x 1.5) $12.97 849.42
$2.595
1983/4 .............................................................................................. 430 1.73 743.90 2.5 2.595 6 49 750.39
$1,649.11
SCHEDULE A-3.-BACKPAY REGARDING CHARLIE M. SCOTT
g
Wages
Yr. /Qtr. H D fe Wa e Wage Dif Due at Totals,
Rates H Rate
1983/2 .................................................................................................. 288 $3.73 $1074.24 3.5 (3.73 x 1.5) $19.58 $1093.82
$5.595
1983/3 ................................................................................................. 492 3.73 1835.16 21.5 5.595 120.29 1955.45
1983/4 .................................................................................................. 40 3.73 149 20 3.5 5.595 19.58 168.78
(10/1/83 from to 10/2/83 11/19/83) ............................................... 270 3.23 872.10 15.5 (3.23 x 1.5) 75.10 862.57
4.845 $4080.62
* Wages due are $947.20 less $84.63 which was paid to Scott by the Respondent on December 16, 1983.
METCALF EXCAVATING,
SCHEDULE B- I.-WELFARE FUND CONTRIBUTIONS
REGARDING ROY FOSTER MULLINS
Yr. /Qtr. Wks Worked WeeklyContribution Amount Due
1983/2 ............. 7 $52.50 $367.50
1983/3 ............. 13 52.50 683.50
1983/4 ............. 11 52.50 577.50
1984/1 ............. 0 - =
1984/2 ............. 7 60.50 432.50
1984/3 ............. 5 60.50 302.50
$2,353.50
SCHEDULE B-2.--WELFARE FUND CONTRIBUTIONS
REGARDING KENNETH F . JOHNSON
Yr./Qtr. Hrs. Worked WeeklyContribution Amount Due
1983/2............. 1 $52.50 $52.50
1983/3 ............. 13 52.50 682.50
1983/4 ............. 13 52 .50 682.50
$1,417.50
SCHEDULE B-3.-WELFARE FUND CONTRIBUTIONS
REGARDING CHARLIE M. SCOTT
Yr./Qtr. Hrs. Worked WeeklyContribution Amount Due
1983/2 ............. 10 $52.50 $525.00
1983/3 ............. 13 52.50 682.50
1983/4 ............. 8 52.50 420.00
$1,627.50
SCHEDULE C-1.--PENSION FUND CONTRIBUTIONS
REGARDING ROY FOSTER MULLINS
Yr./Qtr. Hrs. Worked Weekly
Contribution Amount Due
1983/2 ............. 7 $55 $385
1983/3 ............. 13 55 715
1983/4 ............. 11 55 605
1984/1 ............. 0 - -
1984/2 ............. 7 55 385
1984/3 ............. 5 55 275
$2,365
95
SCHEDULE C-2.-PENSION FUND CONTRIBUTIONS
REGARDING KENNETH F . JOHNSON '
Yr./Qtr. Hrs. Worked
Weekly
Contribution Amount Due
1983/2 ............. 0 - -
1983/3 ............. 13 $55 . 50 $715
1983/4 ............. 13 55.50 715
$1,430
SCHEDULE C-3.-PENSION FUND CONTRIBUTIONS
REGARDING CHARLIE M. SCOTT
Yr./Qtr. Hrs. Worked WeeklyContribution ,amount Due
1983/2 ............. 10 $55 $550
1983/3 ............. 13 55 715
1983/4 ............. 8 55 440
$1,705
The Board's Order was enforced by the United States
court of appeals on 21 June 1985 . Respondent does not
dispute the affirmative directive of the Board and its 'en-
forcement by the court , but simply contends that the
amount of contributions to the health , welfare and pen-
sion benefit funds, as well as the wage rate of the two
employees should be less than the amounts computed by
the Board and set forth in its backpay specification, . be-
cause neither employee (Johnson or , Scott) performed
full-time bargaining unit work during the period in ques-
tion.
Section 9(b) of the backpay specification was amended
at the hearing to read:
An employer shall be obligated to pay interest on
the monies due to the trustees from the date when
the payment was due to the date when the payment
is made , together with all expenses of collection in-
cuffed by the trustees including but limited to attor-
ney's fees and such fees for late payment as trustees
determine as permitted by law.
The interest payable by an employer in accord-
ance with the preceding sentence shall be computed
and charged to the employer at the prime interest
rate established by Chase Manhattan Bank, New
York, New York for the 15th day of the month for
which the interest is charged . Any judgment against
an employer entered on and after September 26,
1980 for contribution owed to this fund shall in-
clude by mandate of the Court the greater of
a. Doubling of interest computed and charged
in accordance with this section, or
b. Liquidated damages based on the unpaid
contributions only (exclusive of interest) as deter-
mined by the Court in the amount of 20 percent
in accordance with the Multi-employer Pension
96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Plan Amendment Act of 1980, the Employee Re-
tirement Income Security Act, 29 U.S.C. 1132(G)
2 CI and Two.
B. Background Facts
The undisputed and credited testimony of owner and
manager of Respondent, Jimmy Metcalf, established that
between June and December 1983, Respondent had con-
tinued in the business of excavating. Specifically, Re-
spondent engaged in underground work, stone water and
sanitary sewer work, and wrecking and demolition work.
Respondent was working four or five employees, and
one or two part-time employees. Both Kenneth Johnson
and Charlie Scott were employed by Respondent during
that period. Although Respondent was signatory to a
contract with the Teamsters during the subject period,
neither Johnson nor Scott was a member of the Team-
sters.
All of Respondent's employees reported to its Spring-
port Road office every morning where they received
work assignments from Metcalf or Respondent's fore-
man, Larry Burge.'
C. Computation of Backpay
At the hearing Compliance Officer Harris B. Berman
testified he supervised the computation of the amount of
backpay and fringe benefits set forth in Schedules Al,
A2, and A3, Schedules B1, B2, and B3, and Schedules
Cl, C2, and C3, of the backpay specification, and that
based on records from the Employer, Kenneth Johnson
and Charlie Scott were included in the bargaining unit as
"drivers"; and that the backpay and fringe benefits for
both Johnson and Scott were computed in accordance
with appropriate and well established Board formulae for
computing backpay and benefits.
Charlie Scott was called by Respondent and he testified
that between May and December 1983, he worked an
average of 5 days a week and spent 75-80 percent of his
worktime driving a truck for Respondent. The remainder
of his woiktime was spent performing mechanical, labor,
and jackhammer work when he was not driving a truck.
Charlie Scott testified that he agreed to work for $5 or
$6 an hour with the understanding that, as work picked
up, Respondent would pay him more, and Respondent
did in fact pay him more.
Kenneth Johnson was called by Respondent and he tes-
tified that Metcalf did not discuss his work classification
when he (Metcalf) hired him, but when he went to work
for the Respondent, Metcalf assigned him to driving a
truck. Although he sometimes loaded his truck, as did
other drivers, Johnson said he drove a truck approxi-
mately 95 percent of his worktime. He also testified that
he kept and recorded the time he worked different jobs,
especially driving a truck, on timecards furnished by the
Respondent. However, he said he did not always fill in
truckdriving and other, specific job functions he per-
formed during a workday.
' The above facts are not disputed and are not in conflict in the
record.
Jimmy Metcalf testified, that none of his employees
drove a truck 95 percent of, the time and that Kenneth
Johnson drove a truck 75 percent of his worktime, and
10 percent of his worktime was engaged in truck-related
work. He said he required the drivers to fill in work-
cards indicating the time they spent driving a truck or
performing other work, from which information he
billed customers at truckdriving rates.
On further examination by counsel for the Respondent,
Metcalf said Scott drove a truck about 40 'percent of his
worktime. When asked whether Kenneth Johnson was
hired as a truckdriver, Metcalf said, "Yes and No," that
when Johnson was hired, he said he told Johnson he had
a mixture of work and that he would do whatever was
necessary; that Johnson told him he (Johnson) had an
operators card (to operate heavy equipment-bulldozers,
loaders, cranes, backhose, etc.).
With respect to Charlie Scott, Metcalf said, he hired
Scott after Scott told him he was a mechanic and labor-'
er. However, he said he did not permit Scott to drive a
truck anymore than he had to because Scott had dam-
aged three different universal drive lines and had de-
stroyed a spider gear on one of the tandem dumptrucks,
which cost several hundred dollars to replace.
Respondent presented in evidence individual work-
cards of employees (Jt. Exh. 6), on which individual em-
ployees indicated the amount of time they spent perform-
ing driving a truck or performing other kinds of work.
Metcalf acknowledged on, cross-examination, however,
that Joint Exhibit 6 contained most, but not all, of the
workcards; and that some of the cards were not complet-
ed as they should have been because the employees did
not always complete the cards as they were instructed to
do. That is, they did not always indicate the specific
kinds of work they performed on a given day. He admit-
ted Johnson did not indicate on some of his timecards
what kind of work he performed.
Metcalf further testified that Roy F. Mullins spent 80
percent of his time driving a truck and 20 percent of his
worktime helping him to do other work. In response to
additional questions, Metcalf said he considered Mullins
a truckdriver and Johnson and Scott not truckdrivers be-
cause he hired Mullins as a truckdriver and because Mul-
lins was a good truckdriver. For these reasons, he paid
Mullins a truckdriver's, rate and did not pay Johnson and
Scott at the same rate. When asked did he pay either
Johnson or Scott in accordance with the Teamsters
truckdriver rate, or the rate of the Operating Engineers
when they performed heavy equipment work, Metcalf
said no he did not because both Johnson and Scott
agreed to work for him at a flat rate of pay.
Roy Mullins was called by the General Counsel, and
he testified that he was hired by Respondent in April
1979. When asked was he told what job classification he
was hired in, he said, "Not really," he was simply hired
as a driver-laborer. During the period May-December
1983, Mullins said he drove a dumptruck about 95 per-
cent of the time. He said Respondent had four other
trucks and it hired Johnson and Scott. Larry Burch was
already in Respondent's employ. Mullins also said he
thought Johnson and Scott drove about 90 percent of the
METCALF EXCAVATING
time because he would see them whenall of themr,drpve
away from the office in the morning; also when they
would pass one another going back and forth to the
dump; and that they would see one another at the dump-
site as they dumped loads almost daily. He said some-
times each driver had to load his own truck, or each of
them took turns loading the trucks with the jackhammer.
When asked who did the wrecking, he said Metcalf did
all the wrecking and he thought Burch drove a truck
about 60 percent of his working time.
Analysis and Conclusions
The uncontroverted and credited evidence of record
established that the Board's supervisory compliance offi-
cer computed the backpay and fringe benefits owing to
Kenneth Johnson and Charlie Scott on a truckdriver's
pay rate. The backpay and fringe benefits were so com-
puted for Johnson and Scott because both of them drove
trucks daily and the rate of pay for full-time or part-time
truckdrivers is proscribed by the pension section, para-
graph (f) of the contract (Jt. Exh. 2), to which Respond-
ent is signatory.
Respondent is contesting the Board's computation only
because it contends Johnson and Scott were not full-time
truckdrivers because they performed other nontruckdriv-
ing work during the backpay period. The principal sub-
ordinate issue presented for determination is:
Whether the fact that Johnson and Scott performed
less than 100 percent bargaining unit work (truck-
driving) during the backpay period relieves Re-
spondent of paying them the contractual wage rate
and making full fringe benefit contributions on their
behalf for the entire backpay period?
In addressing this question, Respondent attempted to
support its position that Johnson and Scott did not per-
form much truckdriving work by presenting their work-
cards in evidence (&t. Exh. 6). However, it is well estab-
lished by Respondent's admission that Joint Exhibit 6 not
only does not contain all the workcards for all the em-
ployees during the backpay period, but that some of such
workcards were not documented by' the workers ' as di-
rected. Under these circumstances, the workcards (Jt.
Exh. 6) are of very little probative value. At most, they
simply establish that truckdrivers Johnson, Scott, and
Mullins performed truckdriving as well as some non-
truckdriving work assignments. What percentage of their
work assignments involved truckdriving, as distinguished
from other work assignments, will be established by a
credibility determination of the testimony of the wit-
nesses who testified.
In this regard, it is first noted that although Roy Mul-
lins testified he drove a truck 95 percent of the time,
Metcalf (Respondent) testified that none of his employees
drove a truck, 95 percent of their worktime . Instead, he
testified Mullins drove a truck 80 percent of his work-
time during the backpay period. Respondent does not
object to paying the unit contractual wage rate, or
making contributions to fringe benefits on behalf of Mul-
lins, and it does not contest the Board's computation for
Mullins as set forth in the backpay specification.
97
-By comparison, however, Metcalf testified that John-
son performed unit work (drove a truck) 75 percent of
his worktime and Johnson testified he drove a truck 95
percent of his worktime during the backpay period.
I credit Metcalf s statement that none of his drivers
drove a truck 95 percent of their worktime because Met-
calf concedes that undisputed truckdriver Mullins drove
a truck 80 percent of the time. This is only 5 percent
more truckdriving time than the 75 percent Metcalf ac-
knowledged Johnson drove a truck. Because undisputed
truckdriver Mullins testified that Johnson drove a truck
90 percent of the time, Johnson's testimony is partially
corroborated by Mullins.
Scott testified he drove a truck 75-80 percent of his
worktime during the backpay period but Metcalf testified
Scott drove a truck only 40 percent of the- time in ques-
tion. - However, undisputed truckdriver Mullins testified
that Scott also drove a truck 90 percent of the time
during the backpay period, as did he (Mullins) and John-
son. Respondent's foreman is Larry Burch, and Mullins
testified Burch drove a truck 60 percent of his worktime.
However, Respondent did not call Burch to testify in
this proceeding to confirm or refute any testimony. Nor
was an explanation offered by Respondent for his nonap-
pearance. Under these circumstances, the Board' has long
held that an adverse inference may be drawn from such
nonappearance against the party who failed to produce
such a witness and neglects to explain their absence.
Fruehauf Trailer Co., 1 NLRB 68 (1935); Boilermakers
Local 27 (Daniel Construction), 271 NLRB 1038 (1984).
I therefore conclude that it may be reasonably inferred
from Respondent's failure to produce Foreman Larry
Burch as a witness, and its failure to explain his nonap-
pearance, that Burch's testimony would have been ad-
verse to Respondent's interest on the issue in question.
Fruehauf Trailer Co., supra; Boilermakers Local 27, supra.
Having observed each of the witnesses (Metcalf, John-
son, Scott, and Mullins) testify and, based on their indi-
vidual demeanor, the parties on whose behalf they testi-
fied, and their respective interest in this case, I first
credit Mullins' testimony, essentially, because his back-
pay, fringe benefit contributions, and contractual wage
rate computed on his behalf are not contested by the Re-
spondent. Moreover, Mullins' testimony corroborates, in
substantial part, the testimony of Johnson and Scott that
they drove a truck at least as many hours 'as they testi-
fied they did (95 and 75-80 percent, respectively).
However, based on the consideration of all the forego-
ing evaluating factors, I credit the testimony of Metcalf,
Johnson, and Scott, in substantial part, while making al-
lowance for self-serving exaggeration on the part of each
witness to further his own interest. Evaluated as such, 1,
find that Johnson and. Scott drove at least 80 percent of
their worktime during the backpay period. This is the
amount of time Metcalf said his acknowledged truckdriv-
er Mullins drove a truck.
Although the Respondent' contends it considered Mul-
lins a truckdriver performing unit work because it hired
Mullins as a truckdriver, and it did not hire Johnson and
Scott as truckdrivers, Mullins testified Respondent (Met-
calf) did not tell him he was being hired as a truckdriver,
98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
but he was, hired as a driver-laborer. In fact, he said they
did not discuss his job classification when he was hired. I
credit Mullins' testimony in this regard not only because
I was persuaded by his, demeanor that he was testifying
truthfully, but, also, because Respondent acknowledges
Mullins performed other nontruckdriving work 20 per-
cent of his worktime. Both Johnson and Scott also per-
formed other nontruckdriving functions as much as 20
percent, at times. As none ,of Respondent's employees
drove a truck exclusively 100 percent of the time, in all
probability, that is the reason why Respondent did not
confine itself consistently to classifying its drivers as
truckdrivers. Nevertheless, be that as it may, the signifi-
cant finding is'that all of Respondent's employee-drivers
(Mullins, Johnson, and Scott) drove a truck about 80
percent of their worktime during the backpay period. '
Courts and the Board have held that any, uncertainties
about the percentage of time discriminates employees
performed unit work during the backpay period must
fairly rest against the wrongdoer, Respondent. Story
Parchment Co. v. Patterson Parchment Paper Co., 282 U.S.
555, 563 (1931); Bigelow v. R.K.O. Radio Pictures, 327
U.S. 251, 265 (1946); Boilermakers Local 27, supra. Con-
sequently, if any residual uncertainties exist about the
percentage of time Johnson or Scott spent driving a
truck during the backpay period, I further find that Re-
spondent has failed to establish and clarify such uncer-
tainties by a preponderance of the evidence in this pro-
ceeding. Story Parchment Co., supra; Boilermakers Local
27, supra.
Consequently, based on the foregoing credited evi-
dence, findings, and reasons, I find that Johnson, Scott,
and Mullins all performed approximately the same
amount of bargaining unit work (truckdriving), and as
Respondent has conceded its obligation to pay Mullins
the contractual wage rate, I conclude and find that Re-
spondent is bound to pay Johnson and Scott the same
contractual wage rate.
Respondent argues that it is not obligated to pay John-
son and Scott the contractual wage rate because they
agreed with Respondent to work for a lower wage rate.
I find this argument to be without merit, however, be-
cause the contract to which Respondent is signatory
does not provide that employees performing unit work
may waive their right to the contractual wage. rate. Be-
cause Johnson, Scott, and Mullins were all truckdrivers
performing essentially the same truckdriving unit work,
all of them are entitled to the wage rate set forth in the
contract which Respondent has agreed to pay Mullins.
With respect to Respondent's obligation to make con-
tributions to the welfare and pension benefit funds, the
General Counsel cites the pension section, paragraph (f)
of the contract (Jt. Exh. 2), which provides in pertinent
part as follows:
Contributions to the Health and Welfare Fund and
to the Pension fund must be made for each week
on each regular employee, even though such em-
ployee may work only part-time under the provi-
sions of this contract.
In construing the above provision of the contract it is
noted that Johnson, Scott, and Mullins are all regular
full-time employees of the Respondent. Because para-
graph (f) mandates that contributions to fringe benefits
must be made each week on each regular employee, it is
clear that such contributions should be made on behalf of
all full-time working unit employees. Respondent agrees
to make the contributions on behalf of Mullins and it
only refuses to make the contributions on behalf of John-
son and Scott because they performed other nondriving
assignments . So did Mullins . But because it is now estab-
lished that Johnson and Scott drove a truck as much
time as did Mullins, and that paragraph (f) makes it clear
that part-time employees are entitled to such contribu-
tions, Respondent has failed to demonstrate any valid
distinction why Mullins should receive contributions and
Johnson and Scott should not. Because .both performed
bargaining unit work, they were in the unit even though
they may not have been members of the Union as was
Mullins.
In his posthearing brief to me, counsel for Respondent
argues that article 1, subparagraph (a), provides:
The employer recognizes the Union as the sole and
exclusive collective bargaining agent for their mem-
bers performing work within the classifications con-
tained in this, Agreement in the geographical area
coming within the jurisdiction of the Union.
As Johnson and Scott were not members of the Union
in accordance with the language in article 1, "Respondent
argues that the General Counsel has failed to establish
that the collective-bargaining agreement is applicable to
them . However , because Mullins was a member of the
Union and Johnson and Scott have been found to have
performed the same truckdriving work as Mullins per-
formed, the General Counsel argues Johnson and Scott
were performing bargaining unit work and were, there-
fore, in the unit, certainly at least for purposes of estab-
lishing their wage rate. I agree with the General Counsel
in this regard.
Counsel for Respondent also argues that the General
Counsel has failed to establish that the contract (Jt. Exh.
2) is applicable to Johnson and Scott because article IV
of that agreement specifically provides:
Jurisdiction
This Agreement shall govern all underground
construction work which any Employer performs
which comes within the jurisdiction of the Union.
Underground Construction work shall be construed
to me any work which requires the excavation of
earth, including industrial , commercial and residen-
tal building site excavation and preparation, land bal-
ancing, grading , sewers, utilities and improvements
and also including but not limited to tunnels, under-
ground piping, retention, oxidation, flocculation fa-
cilities, conduits, general excavation and steel ' sheet-
ing for underground construction. Underground
construction work shall not include any structural
modifications, alterations, additions and repairs to
building or highway work, including roads, streets,
METCALF EXCAVATING
bridge construction and parking lots or steel erec-
tion work.
99
specification is accurate in all respects and issue the fol-
lowing recommended2
It is noted however, that the very name of Respondent
is "Jimmy Metcalf d/b/a Metcalf Excavating." During
the hearing, Metcalf, in response to questions by counsel
for Respondent, testified that during the period June-De-
cember 1983, the nature of the work in which Respond-
ent was involved included: "underground work, such as
stone, water, sanitary sewer work. And also wrecking,
demolition work, basically things of that nature."
Based on the above-cited company name of Respond-
ent and the foregoing testimony of Metcalf, I find that
Respondent's work is expressly covered by the language
in article IV of the above-cited agreement.
Counsel for Respondent also argues that the agree-
ment, article IV (Jt. Exh. 2), is not a "truckdrivers"
agreement. However, it is noted on page 1 that the cap-
tion in bold print reads: "Truck Driver's Agreement,"
and the cover of the agreement is entitled: "Agreement
between Associated Underground Contractors" and the
Union. In view of such explicit language, I do not find
merit in Respondent's argument.
Finally, near the conclusion of the hearing, counsel for
Respondent referred to his answer to the backpay speci-
fication in which he stated or implied that a Michigan
statute prohibited the Board from assessing the interest
rates and assessments specified by the trust fund agree-
ment. I requested counsel to 'furnish the citation or a
copy of the Michigan statute to which he referred to the
General Counsel, and also to cite the statute and address
that argument in his brief to me. The record shows that
counsel did neither. Under these circumstances I deem
counsel for Respondent's argument in this respect, with-
drawn, because it has not been addressed in this record.
I therefore find, pursuant to the contract, that Re-
spondent is legally obligated to make fringe benefit con-
tributions on behalf' of Johnson and Scott. Such contribu-
tions having been included in the backpay computations
set forth in Schedules A-2, B-2, and C-2 for Johnson, and
Schedules A-3, B-3, and C-3 for Scott, I find that Re-
spondent is liable for the amount of backpay due and
owing to Kenneth F. Johnson, Charlie M. Scott, and
Roy F. Mullins, in, the amounts prepared and set forth in
the backpay specification. I further find that the backpay
ORDER
The Respondent, Jimmy Metcalf, d/b/a Metcalf Exca-
vating, Jackson, Michigan, its officers, agents, successors,
and assigns , shall make Roy Foster Mullins, Kenneth F.
Johnson, and Charlie M. Scott whole for wages and
fringe benefits lost, by:
paying backpay, plus interest owing to the below
named discriminatees in the amount set opposite
their respective names, less any remittance made or
tax withholdings required by law as follows:
Roy Foster Mullins $2,394.13
Kenneth F. Johnson 1,649.11
Charlie M. Scott 4,080.62
making contributions owed to the welfare fund on behalf
of the below named discriminatees, in the amount set op-
posite their respective names, with interest, less any re-
mittance made as follows:
Roy Foster Mullins $2,353.50
Kenneth F. Johnson 1,417.50
Charlie M. Scott 1,627.50
making contributions owed to the pension fund on behalf
of the below named discriminatees, in the amount set op-
posite their respective names, with interest, less any re-
mittance made as follows:
Roy Foster Mullins $2,365.00
Kenneth F. Johnson 1,430.00
Charlie M. Scott 1,705.00
The Respondent shall make the appropriate deductions
from the amounts of any tax withholdings required by
state or Federal laws.
2 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