Northern States Steel Builders, Inc., Afl-Cio, Local 111

National Labor Relations Board - Board Decisions

Jun 28, 1990

298 N.L.R.B. 930 (N.L.R.B. 1990)

930 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
International Association of Bridge , Structural and
Ornamental Iron Workers, AFL-CIO, Local
No. 111 (Northern States Steel Builders, Inc.)
and Dave Pappas. Case 33-CB-1774
June 28, 1990
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On March 6, 1985, the National Labor Relations
Board issued a Decision and Order 1 finding that
the Respondent violated Section 8(b)(1)(A) of the
Act by discriminatorily and disparately refusing to
accept properly tendered travel service dues from
employees because they were travelers; and by
threatening to file intraunion charges against the
travelers and by attempting to cause the travelers
to quit their jobs in order to provide jobs for the
Respondent's own local union members . The Board
further found that the Respondent violated Section
8(b)(2) of the Act by attempting to cause the Com-
pany to lay off the travelers and by coercing the
travelers to withhold their labor from the Compa-
ny, thus creating a secondary pressure on the Com-
pany to accede to the Respondent's demands. As a
part of its remedy and Order, the Board ordered
the Respondent to pay backpay to the discrimina-
tees.
The Respondent petitioned for review of the
Board's Order in the United States Court of Ap-
peals for the District of Columbia Circuit, and the
General Counsel filed a cross-application for its en-
forcement. On June 10, 1986, the court issued its
decision2 sustaining all of the Board's unfair labor
practice findings except for the 8(b)(2) finding re-
garding the Respondent's indirect pressure on the
Company.3 The court also enforced all of the pro-
visions of the Board 's Order except those pertain-
ing to the 8(b)(2) finding of indirect pressure and
the provision directing the Respondent to pay
backpay to the discriminatees. In remanding the
case to the Board, the court asked for "further ex-
planation of why, in light of its prior case law, [the
Board] decided to award lost wages against the
union." 792 F.2d at 248.
On October 6, 1986, the Board advised the par-
ties that it had accepted the court's remand and so-
1 274 NLRB 742 (1985).
2 792 F 2d 241 (1986)
a The court ruled that this violation was not alleged in the original
complaint nor was it actually litigated in the abbreviated proceedings
before the Board. We accept the court's denial of enforcement of this
particular finding as the law of the case Accordingly, the Order and
notice of our original decision have been modified to reflect the deletion
of this finding
licited statements of position on the remanded issue
from the parties.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has reconsidered the backpay remedy
of its original decision in the light of the court's
remand and the parties' statements of position and
has decided, for the reasons set forth below, to
adhere to its remedy awarding backpay to the dis-
criminatees injured by the Respondent's unlawful
conduct.
The Respondent's statement of position argues
that the Board correctly held in Colonial Hardwood
Flooring Co., 84 NLRB 563 (1949), that the Board
has no authority to award backpay in circum-
stances in which there is no employer discrimina-
tion accompanying the union's unlawful conduct.
The Respondent further argues that irrespective of
whether the Board's position in such circumstances
is statutorily required or based on policy consider-
ations, such as those enunciated in Operating Engi-
neers Local 513 (Long Construction), 145 NLRB 554
(1963), the Board's Colonial Hardwood doctrine of
denying backpay for wholly union-committed mis-
conduct "is correct and is consistent with the re-
medial action taken by the Board in analogous
cases involving employers" whose coercive state-
ments cause employees to strike. The Respondent
argues that, because the striking employees in those
cases are not awarded backpay-even though the
employer's unlawful conduct precipitated their
striking-evenhandedness requires the Board to
apply the same treatment to. union coercion of the
type involved here and has in other situations in
which a union has been the sole wrongdoer.4 In
sum, the Respondent argues that the Board's origi-
nal award of backpay in this case is contrary to the
principle that a union is not liable for backpay to
an employee unless it has actually caused the em-
ployer to discriminate against the employee.5
4 The Respondent makes this argument on the basis of an observation
by former Member Jenkins in Union Nacional de Trabajadores (Catalytic
Industrial), 219 NLRB 414 fn 5 (1975), enfd 540 F 2d 1 (1st Cir 1976)
Member Jenkins' observation represented his opinion alone and was not
adopted by any Board past or present In any event, the situations are not
analogous Employees reacting to an employer's unlawful statements are
not forced to strike or withhold their services. They do so as an exercise
of their right to strike, with all the attendant protections the Act provides
them as strikers In short, they strike of their own volition In contrast,
employees who lose work because of the union's misconduct are the un-
willing victims of the union's coercion, and their ceasing work is the
result the union intended
5 The Respondent also contends that our finding Traveler Foremen
David Tipton and Richard Mayhew eligible for backpay is erroneous be-
cause neither Tipton nor Mayhew was named in the complaint and be-
cause the Respondent at all relevant times accepted their traveler dues
Our dissenting colleague would find merit in this argument and exclude
them from the make-whole remedy. We disagree Although Tipton and
Continued
298 NLRB No. 129
IRON LOCAL WORKERS 111 (NORTHERN STATES) 931
We reject the Respondent' s argument that the
aforestated principle is, or should be, applicable in
all situations involving union misconduct without
employer complicity or acquiescence. At the
outset, we state our disagreement with the Colonial
Hardwood Board's holding that the denial of back-
pay in such situations' is statutorily required. In our
view, Colonial Hardwood has, sub silentio, been
overruled by subsequent decisions of the Board to
the extent it holds that we lack the statutory au-
thority to award backpay in any cases in which the
union 's discrimination against members or employ-
ees results in a loss of pay but there has been no
union-procured discrimination by the employers.
To avoid any confusion, however, we hereby over-
rule Colonial Hardwood and its progeny insofar as
they rest on the proposition that the Board lacks
the power under the Act to provide backpay to
employees victimized solely by union misconduct.
We do ' not, however, disturb the Board's doctrine,
first announced in Colonial Hardwood and later em-
braced in such cases as Long Construction, supra,
and Union de Tronquistas Local 901 (Lock Joint
Pipe), 202 NLRB 399 (1973), of declining to grant
backpay awards for losses attributable to strike or
picket line union misconduct directed against em-
ployees where there has been no employer culpa-
bility. This case does not present that issue, but, as
explained below, our decision awarding backpay
here is not inconsistent with continuing to with-
hold backpay remedies in the strike-related cases.
We acknowledge that simply overruling the statu-
tory power aspect of Colonial Hardwood will not
suffice, because past Board cases involving strictly
union misconduct have not articulated the basis for
granting backpay in the face of the Colonial Hard-
wood no backpay doctrine,6 and that, as the Re-
spondent notes, the doctrine has been applied in
cases where the unlawful union conduct was not
committed in connection with a strike or a picket
line.7 We trace below the evolution of Board law
from cases denying backpay on the ground that the
Board lacked the pertinent remedial authority (Co-
lonial Hardwood) to cases reaching the same result
on the basis of considerations of statutory policy
(Long Construction and Lock Joint Pipe), and we
also consider the parallel development of case law
providing for backpay in those cases (as the instant
case) which do not involve strikes or picketing but
in which the union has acted without employer
complicity in effectively depriving employees of
jobs for discriminatory reasons. Section 10(c) of the
Act8 authorizes the Board to issue remedial orders
requiring persons who have engaged in unfair labor
practices that result in discrimination against em-
ployees "to take such affirmative action including
reinstatement of employees with or without back
pay, as will effectuate the policies of this Act." It
was held early that the phrase "including reinstate-
ment with or without backpay" was merely illus-
trative and did not limit backpay awards to cases
involving reinstatement . 9 It is well settled that the
10(c) grant of authority to issue remedial backpay
awards is "a broad discretionary one."10 More-
over, Congress has vested in the Board the primary
responsibility and broad discretion to devise reme-
dies that effectuate the policies of the Act. There-
fore, we find that the award of backpay for union
misconduct committed without employer complici-
ty is well within the Board's discretion.
It is true that the Board, did not always view this
issue as discretionary. As the Respondent correctly
Mayhew were not named in the complaint, the stipulation of facts
showed that they were members of the work crew that failed to work on
several days even though there was work available, and the Board found,
based on the stipulation, that, even without reference to the matter of ac-
cepting dues , theRespondent asked travelers not to work and threatened
to have the Employer draw up layoff lists so as to replace travelers with
the Respondent 's members Hence , it was permissible to infer that the Re-
spondent's coercive acts were responsible for Tipton's and Mayhew's fail-
ure to work. In any event, the Board's original Order included Tipton
and Mayhew in the make-whole remedy and the Respondent did not
object by a motion for reconsideration, nor did it raise this issue to the
court of appeals so as to provide any basis for finding it within the scope
of the remand For that reason, we do not believe it is open to the Re-
spondent now to argue that, on the stipulated record, Tipton and
Mayhew cannot be found to be discriminatees Nonetheless, as explained
below, fn 21, we will permit the Respondent to offer evidence in the
compliance proceeding bearing on Tipton's and Mayhew 's entitlement to
backpay.
6 See e g, Electrical Workers IBEW Local 175 (Duncan Electric), 269
NLRB 691, 695 (1984), enfd. per curiam 760 F2d 714 (6th Cir 1985)
(union coercion causing travelers to leave their jobs), Electrical Workers
IBEW (New England Telephone), 236 NLRB 1209, 1210 (1978), enfd 599
F.2d 5 ( 1st Cir 1979) (union enforcement of its rule banning its members
from accepting temporary supervisory assignments), and Plumbers Local
119 (Kamtech, Inc.), 264 NLRB 688, 695 (1982), enfd mem. 715 F.2d 578
(11th Cir 1983) (union threats of physical harm to force its members to
quit working for a nonunion employer)
7 See, e.g, Bricklayers Local 6 (Linbeck Construction), 185 NLRB 756,
762 (1970), enfd mem 447 F.2d 484 (5th Cir. 1971) (per curiam) (refusal
to provide make-whole remedy for employees who may have lost work
due to a threat of fine for working with the discriminatee , absent an alle-
gation or showing of employer complicity); Variety Artists (Fontainebleau
Hotel), 163 NLRB 457, 458 (1967) (no backpay for employees who were
unlawfully denied membership in the union in the context of unlawful
closed-shop agreements , where there is no evidence the union caused an
employer to discriminate against them), Asbestos Workers Local 84
(Edward Hart), 146 NLRB 660, 661-662 (1964) (threats by union causing
an employee to leave his job do not call for a backpay award as part of
the remedy absent a finding that the union caused the employer to dis-
criminate). Notwithstanding that these cases were not followed remedial-
ly in subsequent cases involving similar or analogous situations, and
appear to have been superceded in this respect by those later cases (see
fn 6, supra), these earlier cases point up tt 'onfusion that has permeated
this area of Board law
8 29 U S C. § 160(c)
9 Phelps Dodge Corp. v. NLRB, 313 U.S 177, 194-198 (1941), Virginia
Electric & Power Co. v. NLRB, 319 U.S 533, 539-541, 544 (1943)
10 Fibreboard Paper Products Corp v. NLRB, 379 U.S 203, 216 (1964)
Accord Teamsters Local 860 v NLRB, 652 F 2d 1022, 1025-1026 (D C
Cir 1981)
932 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
notes, in 1949, the Board declared in Colonial
Hardwood (84 NLRB at 565-566):
We believe that we are without power to take
such a step in the absence of an express man-
date from Congress. The amended Act pro-
vides that back pay may be required of a labor
organization only where it is responsible for
unlawful discrimination against an employee.
An award of back pay here would be in the
nature of damages to the employee for an in-
terference with his right of ingress to the
plant, as contrasted with compensation to him
for losses in pay suffered by him because of
severance of or interference with the tenure or
terms of the employment relationship between
him and his employer in the ordinary case in
which back pay is awarded and to which Sec-
tion 10(c) of the Act has been held for many
years to refer. The Act contains no provision
authorizing the Board to require damages or
back pay of a labor organization under such
circumstances. Nor is there any legislative his-
tory that could impel a conclusion that such
awards are authorized. We therefore find that
the Board lacks power to grant the [backpay]
remedy . . . in this case. [Footnotes omitted.]
In thus reading the statute, however, the Board did
not rely on any express statutory prohibition or
even any compelling legislative history. Rather, as
the foregoing quotation shows, it relied on negative
implications from the provision in Section 10(c)
that "where an order directs reinstatement of an
employee, back pay may be required of the em-
ployer or labor organization, as the case may be,
responsible for the discrimination suffered by him."
Given the broad reading that the courts have con-
sistently given to the Board's remedial authority
under Section 10(c), the Board's conclusion about
limits on its authority was hardly compelled by the
statute. See Teamsters Local 860 v. NLRB, supra,
652 F.2d 1022, 1025-1026, and cases there cited.
In any event, beginning with Operating Engineers
Local 513 (Long Construction), 145 NLRB 554
(1963), the Board began to distance itself from the
statutory authority argument even in cases involv-
ing strike-related unfair labor practices and to deny
backpay instead on the basis of policy arguments
uniquely related to strikes and picketing. In declin-
ing in Long *o award backpay to employees who
were unable to work because of injuries suffered
from beatings by union agents who were attempt-
ing to shut down the employees' nonunion employ-
er, the Board stated:
Without now deciding whether such a result is
or is not required by any lack of statutory au-
thority, we nevertheless believe it would not
effectuate the policies of the Act . . . to award
backpay . . . in such situations. [Id. at 555.]
In place of the Colonial Hardwood statutory author-
ity argument, the Board substituted a rationale
based on the superiority. of state tort remedies for
injuries resulting from strike violence. Thus, the
Board reasoned that States retained the authority
to deal with breaches of the peace stemming from
labor disputes and that the varieties of resulting in-
juries, including such items as medical expenses
and pain and suffering, could be more readily and
comprehensively remedied in state tort actions than
in Board proceedings. The Board also suggested
that a Board award of backpay might confuse or
interfere with the state court litigation regarding
employees' tort claims.l l
Ten years after Long Construction, the Board ar-
ticulated another policy basis for not giving back-
pay in strike misconduct situations. In Union de
Tronquistas Local 901 (Lock Joint Pipe), 202 NLRB
399 (1973), in a 3 to 2 decision, the Board held that
an award of backpay to employees for lost wages
resulting from strike violence would make unions
reluctant to call strikes for fear of substantial back-
pay awards and would undermine the employees'
right to strike. Again the Board did not expressly
state that it was overruling any aspect of Colonial
Hardwood; the majority relegated reference to that
case to a footnote string citation noting the Board's
refusal in past cases "to enlarge the scope of its tra-
ditional remedies for picket line misconduct." The
Board specifically characterized its policy of refus-
ing to provide backpay to employees for picket line
misconduct as an exercise of "its broad discretion-
ary powers under Section 10(c) of the Act . . . to
balance the effectiveness of a particular remedy
against its consequences." 202 NLRB at 399. Any
doubt that this statement represented the demise at
the Board of the lack-of-statutory-authority ground
of Colonial Hardwood, should have been dispelled
by the dissenting Members' comments at 400-401:
[T]he Board in Long expressly refused to
decide whether the result of those decisions is
or is not required by any lack of statutory au-
thority. Rather, the Board relied entirely on
reasons of policy in denying_backpay in Long.
Obviously, therefore, Colonial Hardwood can
no longer be considered controlling on the
11 The abandonment of the Colonial Hardwood "lack of statutory au-
thority" ground signaled in Long Construction was not, however, com-
plete. In Lithographers Local 235 (Henry Wurst), 187 NLRB 490, 491 fn 5
(1970), the Board denied backpay to victims of strike misconduct on the
ground it was without the statutory power to do so. That appears to be
the last case, however, in which the Board used that ground
IRON LOCAL WORKERS 11I (NORTHERN STATES) 933
issue of the Board's authority to render such a
backpay award.
Thus, regardless of the disagreement in Lock Joint
Pipe over the policy of denying backpay for union
strike misconduct, that decision highlights the fact
that the original basis for the Colonial Hardwood
doctrine, namely, that the Board had no statutory
authority to order backpay unless a union caused
the employer to discriminate against an employee,
no longer commanded any support at the Board.
Moreover, since the Lock Joint Pipe decision,
cases that arguably could have been decided under
the statutory power basis enunciated in Colonial
Hardwood have been decided on the basis of the
policy rationales of Long Construction and Lock
Joint Pipe. In one such case reviewed by a court,
Drobena v. NLRB, 612 F.2d 1095 (8th Cir. 1980),
the court, in passing on the demise of Colonial
Hardwood, stated (id. at 1096--1097):
For a good many years [the Board's] policy
was based on the idea that under the wording
of § 10(c) the Board had no power to order a
union to pay back wages in a case in which
the employer had not been directly or indirect-
ly involved in the unlawful activity of the
union. [Citation omitted.] [I]n more recent
years the Board has justified its position not by
reference to any lack of power but simply to
policy considerations . . . .
Concomitant with the line of strike cases relying
on Long Construction and Lock Joint Pipe, another
body of 8(b)(1)(A) cases developed in nonstrike cir-
cumstances in which the Board, in some, denied
backpay using the rationale of Long Construction
and Lock Joint Pipe, and in others, provided back-
pay in light of the well-settled remedial principle
that when a union interferes with the tenure or
terms of employment of an employee, a backpay
order is an appropriate way of attempting to re-
store the status quo ante. Thus, as the cases show,
there has been confusion as to what rationale
should be applied in determining whether backpay
should be provided in nonstrike situations for em-
ployees in 8(b)(1)(A) cases where there has been no
employer involvement.
Illustrative of the confusion in this area are past
cases involving union coercion of travelers that re-
sulted in the latter losing their jobs or wages. In
one of those cases, Electrical Workers IBEW Local
309 (R. Dron Electrical), 212 NLRB 409 (1974), the
Board denied one traveler backpay but granted it
to another. Both had been requested to leave their
employment with R. Dron and go to work for an-
other less desirable employer so that the union's
unemployed members could fill the jobs at R.
Dron. Both refused to leave and were subjected to
threats and violence. One traveler, Williams, was
ordered made whole for any loss of pay he may
have suffered because the union, in violation of
Section 8(b)(2), had threatened R. Dron that it
would have trouble for as long as it retained him.
The other, Gurganus, was not given backpay, al-
though he appeared to have lost 3 days' pay, be-
cause there was no evidence of any "direct" re-
quest by the union that R. Dron discharge him and
therefore no violation of Section 8(b)(2).
The denial of backpay for Gurganus in R. Dron,
however, stands in sharp contrast to the situation
of Petrin, a traveler discriminated against by the
union in Plumbers Local 525 (Reynolds Electrical),
218 NLRB 451 fn. 1 (1975), enfd. 553 F.2d 1201
(9th Cir. 1977). In that case, the Board overruled a
judge and found backpay to be appropriate when
the union, in violation of Section 8(b)(1)(A),12 co-
erced Petrin into quitting by, inter alia, threatening
that the other employees would walk off the job if
he continued to work. As in the case of Gurganus
in R. Dron Electrical, there was no apparent em-
ployer complicity in Petrin's leaving the job as a
result of the union coercion.
In parsing out the difference in remedies for the
two travelers in R. Dron, the Board adopted the
judge's reliance on Pacific Maritime Assn., 192
NLRB 338, 352 (1971), a case that followed the
Long Construction no backpay doctrine for union
violations sans employer involvement.13 In giving
backpay to Petrin in Reynolds Electrical, the Board,
at footnote 1, simply stated it found merit to the
General Counsel's exception to the judge's failure
to provide a make-whole remedy for him. The
judge had denied Petrin backpay on the ground
that the record did not lay a sufficient predicate
(i.e., employer involvement) for such relief. The
judge, as the Board, cited no precedent to support
his position.
The denial of backpay in R. Dron can be ex-
plained by the Board's application of its policy
against ordering backpay for strictly union miscon-
duct. The grant of backpay in Reynolds Electrical
cannot be so readily explained, however, because
the Board offered no clue for its make-whole order
there. The most reasonable explanation is that the
12 We have held, with court approval, that it is unnecessary to find an
8(b)(2) violation as a prerequisite to issuing a backpay order against a
labor organization and that an 8(b)(1)(A) violation, standing alone, is suf-
ficient National Cash Register Co., 190 NLRB 581, 585 (1971), enfd 466
F 2d 945, 946 (6th Cir 1972)
13 Neither in R. Dron nor Pacific Maritime is there reference to Coloni-
al Hardwood In both cases the denial of backpay was based on policy
considerations rather than the absence of statutory power It is safe to say
that by R Dron, no vestiges of the Colonial Hardwood statutory rationale
for denying backpay remained at the Board
934 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Board viewed Petrin's situation as falling within
the traditional remedy of ordering backpay when
union discrimination results in an employee's sever-
ance or interference with his tenure or terms of
employment.14 This explanation suggests that the
Board, commencing with Reynolds Electrical, may
have intended to signal that it would limit its no
backpay doctrine to union strike-related miscon-
duct situations . Because no strike was involved,
neither the Long Construction theory that a make-
whole order might interfere with the State's juris-
diction over tort matters, nor the Lock Joint Pipe
theory that the right to strike might be under-
mined, was a factor that had to be considered. 1 s
The Board's later decision in Holiday Inn River-
front, 250 NLRB 99, 101-102 (1980), does not nec-
essarily contradict this view. In Holiday Inn, as in
Reynolds Electrical, the union coerced an employee
(Cobb) into not working by threatening that other
employees would refuse to work with him on the
job if he did not obtain a union permit. On learning
from the employer that a work permit was unnec-
essary, Cobbs returned to work. The judge found
an 8(b)(2) as well as an 8(b)(1)(A) violation, but the
Board dismissed the 8(b)(2) finding because there
was no evidence that the union sought to involve
the employer. Without comment concerning the
judge's backpay remedy and order, the Board
issued an entire new order that merely required the
employer to cease and desist from "[t]hreatenting
[sic] to strike Tower Hotel Company's job if a
painter employee is employed without a union
permit." 250 NLRB at 102. This language is in-
structive. It implies, notwithstanding the factual
context in which the violation occurred, that the
Board viewed the union's conduct as essentially
nothing more than a threat unaccompanied by a re-
sultant loss of work. If that is the case, then the ex-
cision of the judge's recommended make-whole
remedy represented a simple narrowing of the
order to accord with the Board's view of the
nature of the violation." s In any event, we find the
14 Chairman Stephens notes that other explanations are not tenable
That the grant of backpay was an aberration is unlikely because the
Board took pains to reverse the judge A shift in policy away from deny-
ing backpay in all cases not involving employer participation in the dis-
crimination is also unlikely because there is no indication in Board prece-
dent that a majority of the Board has renounced the no backpay doctrine
in strike situations To the contrary, as recently as Service Employees
Local 87 (Pacific Telephone), 279 NLRB 168 (1986), the Board denied re-
imbursement of medical expenses incurred by a nonstriking employee as a
result of picket line misconduct
15 Thus, the Board's reliance in R Dron and Pacific Maritime on Long
Construction seems to have been misplaced In neither case was the viola-
tion based on union strike misconduct Indeed, Pacific Maritime involved
a confrontation between a union representative and a traveler who at the
time was not employed.
16 This construction is lent support by the Board 's noting the judge's
misplaced reliance on Teamsters Local 886 (Lee Motor Way), 229 NLRB
832 (1977). In that case, the Board found a violation of Sec 8(b)(1)(A) in
denial of backpay in Holiday Inn was inappropriate
and overrule that portion of the case to the extent
it is inconsistent with this decision.
The Board's move away from the no backpay
doctrine of Long Construction and Lock Joint Pipe,
in nonstrike cases not involving union procured
employer discrimination, has become more pro-
nounced in recent years. In addition to the cases
cited elsewhere in this decision, in which a make-
whole remedy was provided, the Board deems that
a backpay award may be appropriate to remedy a
union's breach of its duty to fairly represent em-
ployees. In one such case, Rubber Workers Local
250 (Mack-Wayne), 290 NLRB 817 (1988) (Mack-
Wayne II), the Board held that a backpay award is
warranted if the grievance that the union unlawful-
ly failed to process appears to have merit. In so
holding, the Board reaffirmed its longstanding
policy of awarding backpay in such situations (see
cases cited therein). In yet another duty of fair rep-
resentation case, Teamsters Local 282 (Transit-Mix
Concrete), 267 NLRB 1130, 1131 (1983), enfd. 740
F.2d 141 (2d Cir. 1984), the Board required the
union to make whole employees for work lost be-
cause of the union's failure to notify laid-off em-
ployees of an arbitration award that altered the re-
quirements to be fulfilled by them in order to main-
tain their seniority. Also, the Board has, with court
approval, ordered a union to remedy its 8(b)(1)(A)
violation by paying backpay to employees who lost
their jobs as a consequence of the union's arbitrary
failure to apprise them of the danger that their jobs
would be eliminated if they continued to insist on a
particular wage package. Teamsters Local 860' (Em-
porium), 236 NLRB 844 (1978), enfd. 652 F.2d
1022, 1024-1026 (D.C. Cir. 1981).17
Similarly, the Board has- issued backpay orders in
8(b)(1)(A) cases that do not involve a union's duty
of fair representation. In Laborers Northern Califor-
nia Council (Baker Co.), 275 NLRB 278, 279
(1985), the Board ordered a union to reimburse
members for wages they may have lost a : a result
of the union's scheduling their unlawful union trial
during their worktime. And in Sheet Metal Workers
the union's threatening two members with getting them terminated i
they continued to support another member running for the union presi-
dency. Neither suffered any discrimination in his job In deciding Holiday
Inn, the Board may have mistakenly likened the situation of the employee
there to that of the two threatened members in Lee Motor Way, as a
result of which the Board considered Holiday Inn as only involving a
threat without the loss of work, even though it appears that Cobbs lost a
day of work
17 The Supreme Court has found backpay appropriate as a remedy for
a union's breach of its duty of fair representation. In Bowen v. Postal Serv-
ice, 459 U S. 212 (1983), the Court held the union responsible for the por-
tion of a wronged employee 's lost pay that was attributable to the union's
unlawfully causing the grievance-arbitration procedure to malfunction
and the employee 's reinstatement to be delayed
IRON LOCAL WORKERS 111 (NORTHERN STATES) 935
Local 418 (Young Plumbing), 249 NLRB 898
(1980), the Board required the union to pay to the
Sheet Metal Workers' national pension fund a spec-
ified amount of money in order to credit an em-
ployee's account for the union's unlawfully deny-
ing him coverage under the fund because he was
an expelled member. The Board also required the
union to reimburse the employee for the cost to
him of obtaining substitute health insurance, and
the expenses he personally incurred for medical
services that his private insurance did not cover
but that the union's health and welfare insurance
would have, had his coverage thereunder been
maintained.
Finally, as in this case, the Board has previously
issued a backpay order to remedy a union's coerc-
ing travelers to leave their jobs to enable its mem-
bers to get work. In Sachs Electric Co., 248 NLRB
669, 671 (1980), enfd. in relevant part sub nom.
NLRB v. Electrical Workers IBEW Local 453, 668
F.2d 991 (8th Cir. 1982), there were no threats
made to the travelers; nevertheless, based on all the
circumstances, the Board found that the union's re-
quests that the travelers give up their jobs to the
unemployed local members were coercive, and it
ordered the union to make whole the travelers "for
any loss of earnings they may have suffered be-
cause of their compliance with those unlawful re-
quests." 248 NLRB at 671.
Sachs, as well as the other cases cited above in
which backpay has been given, represents the
Board's commitment to follow a sound remedial
policy in cases that do not evoke the policy consid-
erations for denying backpay stated by the Board
in Long Construction, Lock Joint Pipe, and other
strike-related cases.18 Simply put, where, as in the
instant case, the union, without implicating an em-
ployer, and without the use of strike or picketing
misconduct, causes a severance or interference in
an employee's tenure or terms of employment, no
policies based on deference to state court resolution
of tort claims or Board concerns about the right to
strike come into play. Moreover, merely ordering
the offending, union to cease and desist from its un-
lawful conduct will neither remove the chilling
effect on the victimized employees' willingness to
exercise their' statutory rights nor restore the status
quo ante. Only a backpay remedy can accomplish
those ends.
19 Member Cracraft agrees with her colleagues that it is unnecessary in
this case to decide whether backpay should be granted when an employ-
ee has suffered a loss of wages due to strike misconduct that violates Sec.
8(b)(1)(A) Although she agrees that the strike misconduct situation is dis-
tinguishable from other union misconduct cases, she relies solely on the
rationale of Lock Joint Pipe rather than Long Construction in drawing this
distinction.
We find no basis, therefore, in cases involving
loss of jobs or wages, for distinguishing between
unlawful union conduct that violates Section
8(b)(2) of the Act, in which instances the Board
routinely provides backpay,19 and union conduct
that violates Section 8(b)(1)(A) occurring in the
context of nonstrike, nonpicketing situations.20 In
either case the issuance of make-whole orders
against the errant union likely will encourage the
exercise of the employee rights that the statute
seeks to protect. As the court stated in Graves
Trucking v. NLRB, 692 F.2d 470, 475 (7th Cir.
1982): "From the perspective of the wronged indi-
vidual, the award mitigates the inhibiting effect of
the unfair labor practice on the exercise of protect-
ed rights. Further, the fact of the award must dem-
onstrate to other employees that the law will pro-
tect such exercise."21
Accordingly, we find it, appropriate to award
backpay to the travelers in' this case.22 Therefore,
we affirm the Board's previous Decision and Order
in this regard, with interest to be computed in the
manner prescribed in New Horizons for the Retard-
ed, 283 NLRB 1173 (1987). Further, in accordance
with the decision of the District of Columbia Court
of Appeals, we shall modify our Order that in all
respects other than as indicated in this supplemen-
tal decision has been enforced by that court.
ORDER
The Board's original Decision and Order award-
ing backpay is reaffirmed, and the Order is modi-
fied as follows:
1. Substitute the following paragraph for para-
graph 1(d).
"1(d) Attempting to cause the Employer to dis-
criminatorily lay off David Pappas and the other
travelers in, violation of Section 8(b)(2) of the Act."
19 See, e.g., Plumbers Local 403 (Pullman. Power), 261 NLRB 257
(1982), enfd 710 F 2d 1418 (9th Cir. 1983) (unlawful operation of hiring
hall).
2° The Board, of course, has traditionally entered reimbursement
orders in S(b)(1)(A) cases not involving loss of work or pay, such as
cases involving unlawfully imposed union fines. See, e.g, Pattern Makers
v NLRB, 473 U S. 95 (1985), Machinists Local 1414 (Neufeld Porsche-
Audi), 270 NLRB 1330, 1336 (1984) In those cases, the make-whole
remedy is justified because it refunds to the employee money that was
unlawfully exacted by the union.
21 Accord- Phelps Dodge Corp v NLRB, 313 U.S 177, 197 (1941),
NLRB v. J. H Rutter-Rex Mfg. Co., 396 U S 258 (1969) See also cases
cited in fn. 6, supra,
22 See Teamsters Local 860 v. NLRB, 652 F 2d 1022, 1025-1026 (D C
Cir 1981) With respect to Traveler Foremen Tipton and Mayhew (see
fn. 5, supra), the Respondent may attempt to show in compliance that
their failure to work was the consequence of factors other than the Re-
spondent's coercive acts and that therefore they are not entitled to back-
pay See NLRB v Iron Workers Local 433, 600 F.2d 770, 777-779 (9th
Cir 1979), cert, denied 445 U S 915 (1980), NLRB Y. Globe Mfg Co., 580
F.2d 18, 21-22 (1st Cir. 1978); Woodline Motor Freight, 278 NLRB 1141,
1143 fn 6 (1986), enfd in pertinent part 843 F.2d 285, 289 (8th Cir 1988).
936 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2. Substitute the attached notice for that of the
administrative law judge.
MEMBER CRACRAFT, dissenting in part.
Although I agree with my colleagues that a
backpay order is warranted in this case, I would
not require backpay for Tipton and Mayhew. Nei-
ther Tipton nor Mayhew were among the named
discriminatees in the complaint. Both individuals
were named in the parties' stipulation of facts as
being among those who comprised the Iron Work-
ers crew. As reflected by the record and fmdings,
the theory of the violation was that the Respond-
ent refused to accept properly tendered travel serv-
ice dues from travelers although at the same time
threatening them with filing internal union charges
if they worked for the employer without valid
service dues receipts. See Iron Workers Local 111
(Steel Builders), 274 NLRB 742, 746 (1985).
However, in accord with the parties' stipulation,
we found that the Respondent had accepted travel
service dues from Tipton and Mayhew and had
issued receipts to them for such payment. Id. at
743. In light of this undisputed evidence, it appears
that Tipton and Mayhew simply were not placed in
the "catch 22" situation in which travelers whose
dues payments were rejected were placed. With
dues receipts in their possession, they could work
without fear of union discipline.
Our remedial Order named Tipton and Mayhew
among the discriminatees. However, the record
simply does not support a finding that they were
discriminated against in the manner alleged in the
complaint or litigated in the underlying unfair labor
practice proceeding. As the court's remand sub-
jects the entire make-whole order to review, it is
appropriate to address the Respondent's conten-
tions that even if the Board should decide a make-
whole order is warranted, the order as to Tipton
and Mayhew is inappropriate. Accordingly, I
would not order backpay for these two individuals.
APPENDIX
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT coerce or restrain by requests or
threats of internal union charges travelers who are
members of other Iron Workers' locals into quit-
ting their jobs in this case in order to make room
for International Association of Bridge, Structural
and Ornamental Iron Workers, AFL-CIO, Local
No. 111's members who are unemployed.
WE WILL NOT threaten to file or file intraunion
charges against any employee whom we represent
because he refused to quit a job in this area and WE
WILL NOT threaten to file or file intraunion charges
against any employee who works without payment
of travel service dues after the tender of such dues
has been rejected by us.
WE WILL NOT cause or attempt to cause North-
ern States Steel Builders, Inc. or any other employ-
er to discriminatorily lay off any individual because
such individual is not a member of Local 111, or
for any reasons other than such employee's refusal
to tender dues and fees uniformly required of all
unit employees.
WE WILL NOT in any like or related manner re-
strain or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
WE WILL make whole with interest David
Pappas, Clarence Hurling, Boyd- Roberts, Brian
Bendit, Sylvan Hoiness, Mark Leiger, Walter
Smith, Donald Hamilton, Timothy Meech, Thomas
Harbin, John Burger, Dale Hagman, Ben Murphy,
John Wheatman, John Shepard, David Tipton,
Richard Mayhew, and any other similarly affected
employee, for any loss of earnings they may have
suffered by reason of our discrimination against
them.
NOTICE To EMPLOYEES AND MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
INTERNATIONAL ASSOCIATION OF
BRIDGE, STRUCTURAL AND ORNA-
MENTAL IRON WORKERS, AFL-CIO,
LOCAL No. 111