North Star Marine Operators

National Labor Relations Board - Administrative Judge Opinions

Oct 29, 2003

18-CA-016147 (N.L.R.B. Oct. 29, 2003)

JD(SF)–71-03
Duluth, MN
UNITED STATES OF AMERICA

BEFORE THE NATIONAL LABOR RELATIONS BOARD

DIVISION OF JUDGES

SAN FRANCISCO, CALIFORNIA

NORTH STAR MARINE OPERATORS, INC.,
Respondent
and
JOHN WILLIAM RADOSEVICH,
An Individual
David Biggar, Esq.,
for the General Counsel
A. Blake MacDonald, Esq.,
for the Respondent
John W. Radosevich,
Charging Party
SUPPLEMENTAL DECISION 1
18-CA-16147

Albert A. Metz, Administrative Law Judge. The issue presented in this compliance case is
the backpay due to John W. Radosevich. On September 9, 2002, Judge William J. Pannier issued
his decision North Star Marine Operators, Inc., JD-94-02, finding that the Respondent had
unlawfully discharged Radosevich because of his union activities. On October 24, 2002, the
National Labor Relations Board (Board) issued its Decision and Order in this case directing that
the Respondent shall, in pertinent part, make Radosevich, whole for any loss of earnings and
other benefits suffered as a result of discrimination against him, with interest as computed in
New Horizons for the Retarded, 283 NLRB 1173 (1987). The Board's decision was enforced on
April 7, 2003, by the United States Court of Appeals for the Eighth Circuit.
1 This matter was heard at Duluth, Minnesota on June 24, 2003.
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The Respondent reinstated Radosevich to employment on September 28, 2002, but he
was discharged a second time on November 20, 2002. Radosevich was again reinstated by the
Respondent on April 30, 2003. The Region issued a complaint in case 18-CA-16680 challenging
the second discharge and the discrimination against him during his employment after September
28. That matter was heard seriatim with the present compliance case. My decision in
Radosevich's second discharge case issued this same date and found that the Respondent had
unlawfully discriminated against him because of his union and protected concerted activities.
(JD(SF)-75-03).
I. BACKGROUND
The Respondent’s business consists of providing services for large vessels arriving at the
ports of Duluth, Minnesota, and Superior, Wisconsin. The Lake Superior shipping business is
seasonal and usually begins during the month of April and concludes in December. During the
shipping seasons since 1962 Respondent has provided tying and untying services for vessels and
also operates a launch boat that transports personnel and mail between shore and ships.
Radosevich returned to work on September 28, and worked until his second discharge on
November 20. The Respondent and Radosevich reached an agreement with regard to the amount
of backpay due Radosevich prior to his reinstatement and he was paid that money on March 7,
2003. The backpay period, therefore, encompasses only the period between Radosevich’s
reinstatement and his second termination. During this period Radosevich only performed the
work of tying ships. He was not assigned any untie or launch boat duties during the backpay
period.
A dispute arose as to the amount of backpay due to Radosevich. On April 29, 2003, the
Regional Office issued a compliance specification setting forth the Government’s position. The
Government alleges that the Respondent failed to fully reinstate Radosevich to his former
position employment by denying him the duties of untying ships and serving on the crew of
Respondent’s launch boat. The General Counsel asserts that the Respondent’s owner, Richard
Amatuzio, exercised his superior contractual seniority in an effort to discriminate against
Radosevich by unlawfully restricting his work assignments after he was reinstated on September
28, 2002. Additionally, the Government argues that Radosevich was unlawfully denied the
opportunity to perform launch boat work.
The Respondent duly filed its answer to the specification denying it was responsible for
any backpay liability because Radosevich:
1. Was reinstated to his former position and was given all of the work he was entitled to
under the Respondent’s collective bargaining agreement with the International
Longshoremen’s Association (Union).
2. He is not entitled to untie ships by reason of his seniority.
3. Is not entitled to duties involving ship launches because he has not passed the
required U. S. Coast Guard drug test.
4. He “worked for a non-union competitor of the Respondent’s.”
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5. The year 2000 is not an appropriate year to calculate work available to Radosevich
because the Respondent’s owner, Richard Amatuzio, a union member, was ill during
the entire year and thus not available to perform his more senior work, and,
6. To give Radosevich priority of ship unties and boat launching would deprive another
union member, Gary Butler, of his right to work under the collective-bargaining
agreement.
The Respondent’s answer did not offer an alternate year, backpay computation or
formula upon which Radosevich’s backpay should be based.
II. THE BACKPAY FORMULA AND THE 2000 SHIPPING SEASON RECORDS
The Regional Office's Compliance Officer, Roger Czaia, testified that he based
Radosevich's gross backpay calculations on his average earnings during the year 2000. Czaia
chose this method because 2000 was the only year for which the Respondent was able to produce
its payroll records, it took into consideration the seasonal nature of Respondent’s business, and it
was the last full year before Radosevich was terminated. The Region’s backpay formula also
used percentages of the work that various individuals did and thus takes into consideration
Respondent’s argument that it serviced fewer ships in 2002 than it had in previous years.
Czaia determined that Radosevich had performed 92% of the work of untying vessels and
22% of the work of crewing Respondent’s harbor launch boat during the 2000 shipping season.
Using these calculations, Czaia then calculated the total amount of untie work and boarding party
work available during the backpay period, and multiplied those figures by 92% and 22%
respectively. The resulting backpay amount totaled $2,266.49. The Respondent's answer offered
no alternative formula, figures or amounts that disputed the calculations. See, Board's Rules and
Regulations, Section 102.56(b)("… if the respondent disputes either the accuracy of the figures
in the specification or the premises on which they are based, the answer shall specifically state
the basis for such disagreement, setting forth in detail the respondent’s position as to the
applicable premises and furnishing the appropriate supporting figures.")
Respondent contends that the year 2000 is not a proper year for determining backpay, as
Amatuzio had health problems during the year. Thus, it is argued that Radosevich worked more
than he would have normally had Amatuzio been healthy. Compliance Officer Czaia gave
uncontroverted testimony that he discussed this matter with the Respondent and its counsel and
they argued that the records of the 1999 shipping season would be a more accurate portrayal of
the backpay liability as Amatuzio was not as ill and allegedly worked more in that year. The
Respondent, however, latter reported to Czaia that the records for that year were lost and they
were not produced to the Compliance Officer. Thus, the 2000 shipping season records were the
only ones that were available for the Region to use in making the backpay computation until
shortly prior to the hearing.
Immediately before the hearing in this case, pursuant to a Government subpoena, the
Respondent finally did turn over the 1999 shipping season records to the General Counsel. Czaia
testified that he first saw the 1999 records on the day before the hearing.
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Amatuzio admitted that in 1999 the Respondent serviced 122 ships and of that number he
only untied one vessel. Amatuzio conceded that Radosevich untied the other 121 ships in 1999
more than 99% of the untie work. Amatuzio also admitted that he tied up approximately 80% of
those same 122 ships. Thus, apparently poor health was not a deterrent for Amatuzio performing
work in 1999. These admissions weigh against the Respondent's argument that the year 2000 was
not an appropriate basis for backpay calculations because of Amatuzio’s poor health. The net
result of the examination of the 1999 records is that if the backpay calculations were based on
those records, instead of the year 2000 documentation, Radosevich would be entitled to a greater
amount of backpay.
The General Counsel bears the burden of proving the amount of gross backpay due in
compliance proceedings. Florida Tile Co., 310 NLRB 609 (1993); Arlington Hotel, 287 NLRB
851, 855 (1987), enfd. on point 876 F.2d 678 (8th Cir. 1989). In many cases, it is difficult to
determine the precise amount of backpay owed. When such difficulty arises, the Board may
adopt whatever formula “attains just results in diverse, complicated situations.” Phelps Dodge v.
NLRB, 313 U.S. 177, 198 (1941); NLRB v. Seven-Up Bottling Co. of Miami, Inc., 344 U.S.
344, 346-347 (l953). In discharging the Government's burden, the General Counsel has
discretion in selecting a formula which will closely approximate the amount due. National Labor
Relations Board v. Kartarik, Inc., 227 F.2d 190, (8th Cir. 1955); Ironworkers Local 378, 213
NLRB 457, 458 (1974), citing NLRB v. Brown & Root, Inc., 311 F. 2d 447, 452-3 (8th Circuit
1963). The Government need not find the exact amount due nor adopt a different and equally
valid formula which may yield a somewhat different result. NLRB v. Overseas Motors, 818 F.2d
517 (6th Cir. 1987); Kansas City Refined Helium Co., 252 NLRB 1156, 1157 (1980), enfd. 683
F.2d 1296 (10th Cir. 1982). It is axiomatic that “. . .[a] backpay formula which approximates
what discriminates would have earned had they not been discriminated against is acceptable if it
is not unreasonable or arbitrary in the circumstances.” La Favorita, Inc., 313 NLRB 902 (1994),
enfd. 48 F.3d 1232 (10th Cir. 1995).
The burden is on the employer who committed the unfair labor practice to establish facts
that reduce the amount due for gross backpay. Minette Mills, Inc., 316 NLRB 1009, 1010
(1995); Florida Tile, 310 NLRB 609 (1993); NLRB v. Brown & Root, Inc., 311 F. 2d 447, 454
(8th Cir. 1963). As the respondent is the wrongdoer who caused the discriminatee's initial
unemployment, any ambiguities, doubts, or uncertainties are resolved against the respondent, the
wrongdoer, because an offending respondent is not allowed to profit from any uncertainty caused
by its discrimination. Florida Tile Co., supra, at 610; Ryder System, 302 NLRB 608 and fn. 4
(1991), enfd. 983 F.2d 705 (6th Cir. 1993).
I find that the Respondent offered no probative evidence that successfully disputed using
work performed in the year 2000 as the basis for calculating the backpay due in the year 2002.
As noted, the Respondent did not offer any formula or method of backpay computation different
from that used by the Compliance Officer to compute the backpay due Radosevich. I find that
the Region's use of the 2000 shipping season records, the General Counsel's formula and the
calculations used to establish Radosevich's backpay were a reasonable basis upon which to
formulate his backpay. Regional Import & Export Trucking Co., 318 NLRB 816, 821 (1995);
Bridgeway Oldsmobile, 294 NLRB 858, 860 (1989), enfd. 933 F.2d 1015 (9th Cir.
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1991)(Reasonable for Compliance Officer to assume that discriminatees' earnings during the
backpay period would have been the same as their earnings prior to their discharge.)
III. AMATUZIO'S EXERCISE OF SENIORITY
Under the terms of the collective-bargaining agreement between the Respondent and the
Union, Amatuzio is number one on the seniority list and Radosevich is number three.
Respondent contends that Amatuzio could, thus, properly exercise his seniority to perform untie
work during the backpay period. Since only two persons are needed to untie a ship, Amatuzio
and Gary Butler, number two on the list, would perform the untie when Amatuzio chooses to
exercise his seniority. When Amatuzio chooses not to exercise his seniority, Butler and
Radosevich untie the ship. Respondent argues that Amatuzio was merely exercising his seniority
during the backpay period when he untied all of the ships and, thus, Radosevich is not entitled to
be paid for any untie work.
The Government argues, however, that the issue is not whether Amatuzio had the seniority,
but rather, whether he used that seniority in order to discriminate against Radosevich because he
exercised his rights under Section 7 of the Act.
The Respondent’s 1999 records show that Amatuzio exerted his seniority to untie only 1
out of 122 ships that the Respondent served. As noted above, Radosevich did 92% of the unties
in 2000. The Respondent asserts that because Amatuzio's health was restored in the 2002
shipping season he exercised his seniority to do unties during that season just as he always had in
prior seasons. In 2002 Radosevich was reinstated and his backpay period ran between September
28 and November 20. During that period Amatuzio wielded his seniority and he and Butler
untied every ship Respondent served. The periods before and after the backpay period show that
Amatuzio did not commonly untie ships prior to August he had not untied one. Starting in
August he untied 3 of 20. In September Amatuzio untied 2 of 8. In October he untied 21 of 21
ships; in November he untied 19 of 19; and in December, after the backpay period, he untied
only 2 of 15 ships. Thus nearly all of the ships Amatuzio untied were between September 28 and
November 20, the period when Radosevich was reinstated. After Radosevich had been fired a
second time in November 2002 Amatuzio only untied 2 of the 15 ships. Butler and the number 4
man on the seniority list, Tim Rachuy, untied the rest.
I find that the Government has demonstrated that Amatuzio’s selective exercise of his
seniority in 2002 was designed to unlawfully preclude Radosevich untie work. As more fully set
forth in my decision issued this date in the unfair labor practice case, I found that the Respondent
violated Section 8(a)(1), (3), and (4) by Amatuzio discriminatorily using his seniority as a
weapon against Radosevich’s rightful opportunity for work. I affirm that decision here and find
that the Respondent unlawfully denied Radosevich work during the backpay period.
IV. LAUNCH BOAT WORK
Radosevich worked on the launch boat for many years prior to his discharge in April of
2001. The Respondent contends that he was ineligible to continue that work during the backpay
period because he had not passed a U. S. Coast Guard drug test. The Respondent presented no
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evidence that Radosevich had never taken such a test. Additionally the Respondent presented no
evidence that he was told he had to take a drug test to work on the launch boat, that such a test
was required of Radosevich, or that he was asked to take a drug test and refused. As the
Respondent presented no evidence in support of this argument it failed to meet its burden of
showing a diminution of Radosevich’s backpay. I find that the Respondent’s Coast Guard
defense has no merit.
V. RADOSEVICH’ S WORK FOR A NON-UNION COMPANY
Radosevich performed some work at various times for Sea Service, a nonunion employer,
including a number of years before his discharge in 2001. Amatuzio testified that he recalled
someone from the Union had told him at some unspecified time that they thought it better that
he use a union member on his launch boat. It is unclear how such a statement, even if made,
would preclude the Respondent from assigning such work to Radosevich. Further clouding
Respondent’s assertion is Amatuzio’s admission that the Respondent regularly hired Ed
Montgomery as an employee. Montgomery is the owner of Sea Service, the non-union company
that employs Radosevich.
John Reed, the President of the Union, testified that the Union is attempting to get Sea
Service to sign a collective-bargaining agreement. Reed offered no testimony that Radosevich
was prohibited by the Union’s rules or otherwise from working for Sea Service or that the Union
in anyway objected to his working for that company. Radosevich testified that the Union had
never brought any complaints against him because he worked for Sea Service.
I find that the Respondent failed to establish that Radosevich was ineligible to perform
the work on the launch boat during the backpay period. The Respondent did not meet its burden
proving that Radosevich was required to take a drug test to work on the launch boat or that the
Union had some how precluded him from working on that boat because of his work for a
nonunion employer. I conclude that the Region’s formula finding that Radosevich was entitled to
backpay for work on the launch boat is reasonable and sustained by the record.
In sum, I reject all of the Respondent’s defenses to the Compliance Specification and find
that the Specification reasonably and accurately set forth the backpay due Radosevich. I,
therefore, recommend the Board order the Respondent to pay Radosevich $2,188.61
uncompensated untie work and $77.88 for launch boat work as set forth in the Backpay
Specification, plus interest to the date of payment.
Dated
______________________________
Albert A. Metz
Administrative Law Judge
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