Plumbers, Local 13

National Labor Relations Board - Board Decisions

Oct 22, 1976

226 N.L.R.B. 583 (N.L.R.B. 1976)

PLUMBERS, LOCAL 13 583
Local Union No. 13, an affiliate of the United Associ-
ation of Journeymen and Apprentices of the Plumb-
ing and Pipe Fitting Industry of the United States
and Canada (Mechanical Contractors Association of
Rochester, Inc., and Association of Plumbing, Heat-
ing and Cooling Contractors of Rochester , Inc.) and
Alfred Winter. Case 3-CB-2140
October 22, 1976
SUPPLEMENTAL DECISION AND ORDER
By CHAIRMAN MURPHY AND MEMBERS JENKINS
AND WALTHER
On May 28, 1976, Administrative Law Judge Her-
zel H. E. Plaine issue the attached Supplemental De-
cision in this proceeding.1 Thereafter, Respondent
filed exceptions and a supporting brief, and General
Counsel filed a brief in answer thereto.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge with
the following addition and to adopt his recommend-
ed Order.
In an attempt to mitigate its backpay liability for
having discriminatorily refused to refer Alfred Win-
ter for work as a refrigeration mechanic, Respondent
offered evidence at the backpay hearing challenging
Winter's work qualifications.
We agree with the Administrative Law Judge's rul-
ing that the unsworn hearsay evidence offered con-
cerning Alfred Winter's asserted lack of qualifica-
tions for the job of refrigeration mechanic was both
nonprobative and irrelevant. The issue of Winter's
qualifications to perform the job of refrigeration me-
chanic could have and should have been, but was
not, litigated in the original unfair labor practice pro-
ceeding. It is clear that .he was offered the job by
Betlem, and, was not hired solely because of Respon-
dent's discriminatory refusal of a referral. Respon-
dent's offer to prove that Winter was not qualified,
therefore, cbuld only be intended to establish that
Betlem would have ' subsequently discharged him.
Apart from the wholly unacceptable character of the
evidence offered, such proof obviously would be en-
tirely speculative. The evidence shows that the crite-
rion by which the Employer determines an individual
mechanic's qualification for,work is the mechanic's
actual performance on the job and not (as, the Ad-
ministrative Law Judge notes) the job title on his pa-
pers. Having foreclosed Winter's opportunity to
prove that he was suitably fitted for the job of refrig-
eration mechanic by discriminatorily refusing to re-
fer him, Respondent cannot now be permitted belat-
edly to attack Winter's fitness for the job in a
conjectural and indirect fashion. The one relevant
and true indicium of Winter's qualifications has been
precluded by Respondent's actions. We decline,
therefore, to accept Respondent's invitation to hy-
pothesize about Winter's success or failure in the
Employer's employ. Flora Construction Company and
Argus Construction Company d/b/a Flora and Argus
Construction Company, 149 NLRB 583 (1964), enfd.
354 F.2d 107 (C.A. 10, 1965).
Since Respondent has not challenged any other as-
pects of the backpay computation, we affirm the Ad-
ministrative Law Judge's recommended Order.
ORDER
Pursuant to Section 10(c) of the National. Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Local Union No. 13, an
affiliate of the United Association of Journeymen
and Apprentices of the Plumbing and Pipe Fitting
Industry of the United States and Canada, Roches-
ter, New York, its officers, agents, and representa-
tives, shall take the action set forth in said recom-
mended Order.
' The Board 's Decision and Order is reported at 212 NLRB 477 (1974).
SUPPLEMENTAL DECISION
HERZEL H. E. PLAINE, Administrative Law Judge: This is
a backpay proceeding, supplemental to the Board's Deci-
sion and Order of July 18, 1974, 212 NLRB 477, adopting
Administrative Law Judge Dyer's Decision of April 11,
1974, and directing the Respondent Union (Local 13) to
make the Charging Party (Winter) whole for his losses re-
sulting from Local 13's unfair labor practices.' On March
17, 1975, the United States Court of Appeals for the Sec-
ond Circiit entered its judgment enforcing in full the back-
pay provisions of the Board's Order.
Pursuant to a backpay specification and notice of hear-
ing issued on June 23, 1975, and Local 29's answer, filed on
July 3, 1975, the case was heard on February 3 and 4, 1976,
1 The unfair labor practices comprised violations of Sec 8(b)(1)(A) of the
Act by Local 13 discriminatorily refusing to refer Winter to Betlem Service
Corporation, an employer-member of the contractors' association, who had
offered Winter a job, and by Local 13 bringing union charges against Win-
ter when he complained to the Board of Respondent's discriminatory refus-
al to refer him for work
226 NLRB No. 84
584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in Rochester, New York. Only counsel for the General
Counsel has filed a brief.
Upon the entire record of the case, including my obser-
vation of the witnesses and consideration of the brief, I
make the following:
FINDINGS AND CONCLUSIONS
1. THE AMOUNT OF THE BACKPAY
As established by the unfair labor practice decision,
Winter was a member of Local 46, the Toronto, Canada,
branch of Respondent (Plumbers and Pipe Fitters) Union,
and had been accepted as a journeyman and initiated on
March 24, 1971. Thereafter, he and his wife decided to
move to the Rochester, New York, area and, in order to get
a resident visa, Winter sought and obtained from Betlem
Service Corporation (Betlem) of Rochester a written offer
of a permanent job.
The written offer, dated May 28, 1971, addressed to the
U.S. Consulate General in Toronto and to whom it may
concern, stated that Alfred Winter is skilled as a refrigera-
tion service and installation mechanic, that there is great
demand for this skill in Rochester, and that Betlem will
hire Winter immediately upon entry into the country in a
permanent job at Rochester at the rate of $8.77 per hour.
The letter was signed by then vice president, now, presi-
dent, Dominick Acquilano of Betlem (G.C. Exh. 4).
When Winter came to the United States he was told by
his prospective employer Betlem , who was a member of the
employers' association that had a collective-bargaining
contract with Local 13, that he needed a travel card from
his Toronto Local 46, and a referral from the union busi-
ness agent for Local 13, Christopher Farrell. Thereafter in
the period from October 6, 1971, to April 16, 1973, Winter
presented Farrell, on four different occasions, with four
successive travel cards issued by Local 46. However, each
time Farrell refused to give Winter the referral to Betlem
on various grounds. As the Board found, regarding the fi-
nal refusal on April 16, 1973, in violation of the Act, Union
Agent Farrell refused to honor the travel card or to give
Winter the referral slip that the employer had sent him to
seek , either because Winter was not a member of Local 13
or because Farrell assumed Winter had worked for a non-
union contractor (while waiting for the referral), 212
NLRB at 479. There was no issue raised by Farrell with
Winter, or later in the defense against the unfair labor
practice charge, regarding Winter's qualifications or com-
petency to do the job for which the referral was sought and
denied.
In the backpay proceeding, General Counsel established
the backpay period from the time of refusal of the referral,
April 16, 1973, to April 14, 1975,2 when Union Agent Far-
rell on behalf of Local 13 notified Winter, Betlem, and the
two Rochester employers' associations that it had no obj ec-
tion to the employment of Winter and that he would have
2 The date tolling the backpay period should have been April 16, 1975, see
union letters, G C Exhs. 2 and 3 However, General Counsel and the
Charging Party waived claiming the 2 days' backpay erroneously forgiven
the Union.
full use of the referral facilities of Local, 13 without dis-
crimination.
General Counsel reestablished by the testimony of Presi-
dent Acquilano of Betlem that with the union referral he
would have hired Winter as a mechanic at the going
journeyman's rate in April 1973, and confirmed that the
rates of pay used by Board Compliance Officer James Pal-
ermo in preparing the backpay specification were the going
rates during the backpay period and came from Betlem's
books.
Compliance Officer Palermo testified that he used the
representative employee method in calculating the backpay
to arrive at an averaged number of hours and overtime
hours per employee per calendar quarter. He used the rep-
resentative employee method, he testified, because he was
informed by President Acquilano that no one was hired in
Winter's place at the time and a "replacement" was not
found and hired until August 1973 (employee Paris); and
additionally because overtime was variously assigned to
the employee or employees who lived closest to a particular
job. In using the representative employee method, Palermo
excluded, for an individual employee, weeks in which he
worked less than 24 hours in the week, in order to obtain
an average of hours worked by full-time representative em-
ployees, and he used the records of 15 (named) employees
to arrive at the average hours worked in each of the several
calendar quarters of the backpay period. To the average
hours Palermoapplied the journeyman's wage rate applica-
ble in that quarter to arrive at the base backpay for the
quarter accruing to Winter, From May 1, 1974, pursuant to
the union contract, $1. per hour was added for vacation pay
to arrive at the gross backpay per quarter, from which was
deducted Winter's interim earnings in the quarter, to arrive
at the net backpay due Winter. Also, calculated at the con-
tract rate of 52 cents per hour were contributions due the
pension fund on Winter's behalf in each calendar quarter
of the backpay period.
In connection with mitigation of damages, Winter pro-
vided evidence of interim earnings, and, as already indi-
cated, Respondent- Union was given credit for such against
the backpay due, in the respective calendar quarters, of the
backpay period. These represented earnings from tempo-
rary employment by four Rochester employers-James W.
Craib, Inc., Brandt Air Conditioning, Inc., Lincoln First
Bank of Rochester, and J. Saltzman (or Salczman) and
Son-3 at which jobs Winter applied his skills as steamfit-
ter or pipefitter and plumber, variously doing 'air-condi-
tioning, plumbing, heating, and maintenance work. He also
provided evidence of efforts to fill the gaps of unemploy-
ment and to obtain better paying and more permanent em-
ployment, including applying to union locals in other cities
outside Rochester and attempting (in vain) to get Union
Agent Farrell to even respond to a request to negotiate his
intransigent refusal to give Winter a referral.'
3 Inadvertently, Saltzman's name was omitted from par 7 of the backpay
specification, although the earnings from that employer as well as the three
other employers were reflected in the deductions from the backpay claimed
At hearing, par 7 was corrected to show employment by Lincoln First Bank
from February 4, 1974, to August 3, 1974, and employment by J Saltzman
and Son from September 13, 1974, to April 10, 1975
4 Winter testified that in April 1973 he applied to Lobene and Hayes, a
Rochester plumbing, heating, and air-conditioning firm that was an associa-
PLUMBERS , LOCAL 13
Local 13 did not provide any contest of the interim earn-
ings or of the evidence of Winter's efforts to obtain more
and better employment, which I find were reasonable ef-
forts; nor did Local 13 challenge, as such, the method of
computing, the wage and fringe benefit rates applied in
computing, or the computation of, the backpay. Accord-
ingly, unless there is merit to Local 13's defense, consid-
ered below, the sum of $26,966.34- is due and payable by
Local 13 to Alfred Winter with interest at 6 percent appro-
priately calculated; s and the further sum of $2,060.85 in
contributions is due and payable by Local 13 to the appro-
priate pension fund on Winter's behalf, together with any
applicable penalties or interest for late payment claimed
and not waived by the fund; minus any required tax with-
holdings to be deducted and paid by Local 13 under Fed-
eral, state, or local law from any of the sums included in
the foregoing total backpay obligation.
II. THE DEFENSE
By its answer to the backpay specification and at hear-
ing, Local 13 claimed there was no backpay due Winter
from it because Winter was not qualified to take the job
offered by Betlem as an "air-conditioning" or "refrigera-
tion" mechanic .6
Respondent called two witnesses , President Acquilano
of Betlem, who was also called to testify by the General
Counsel, and Respondent 's business agent , Farrell.
President Acquilano testified that his company does air-
conditioning service and installation , which he also called
"refrigeration" work. Today, he said, he calls his men re-
frigeration mechanics , which , he explained , is a fairly new
classification that did not exist a few years ago. Refrigera-
tion mechanics , he further said, were originally plumbers
and steamfitters. He noted that he himself is a refrigeration
mechanic but that his current union card says he is a
steamfitter , and that a few years ago there were no entries
on union cards or books that showed a specialty in refriger-
ation . When he interviewed Alfred Winter in 1971 for the
job he offered Winter, Winter's union dues book, which
Acquilano said he saw, showed that Winter was a steamfit-
ter; and the book was a dues book of the Toronto union
local, said Acquilano?
tion employer, and was told that any time he "could get by Farrell" and
bring a union referral slip , he could have a job with the firm.
5 Interest at 6 percent accrues commencing with the last day of the calen-
dar quarter on the amount due and owing for the quarterly period, and
continuing until the date of payment of the total backpay . Isis Plumbing &
Heating Co, 138 NLRB 716, 720-721 (1962), approved in Philip Carey Man-
ufacturing Company Miami Cabinet Division v. N L R.B., 331 F.2d 720 (C A
6, 1964), cert. denied 379 U.S 888.
6 On General Counsel's prehearing motion to strike the answer , the Board
ordered it stricken to the extent that the answer disputes the Board's deci-
sion and order finding that Respondent violated the Act by the discrimina-
tory refusal to refer Winter and directing that Winter be made whole, but
allowing the remainder of the answer to stand . Preheanng order of October
30, 1975, G C. Exh. 10).
7 This last portion of Acquilano's testimony contradicted an ex parte
statement Union Agent Farrell obtained from Acquilano (to support
Farrell's affidavit filed in opposition to the prehearing motion to strike the
answer to the backpay specification) The ex parte statement said that Ac-
quilano learned from Farrell that Winter had a fitter 's card from Toronto
and was not a refrigeration mechanic.
585
President Acquilano further testified that he put his job
offer to Winter in writing, addressed to the U.S. Consulate
(G.C. Exh. 4, supra), partly to aid Winter 's entry into the
United States, and testified that he would have hired Win-
ter as a mechanic in 1973 at the going journeyman 's rate in
1973, if he had the union referral .8 Winter could not have
been hired as an apprentice at an apprentice 's rate, said
Acquilano, because apprentices cannot be hired "off the
street," they must come through the apprentice program.
President Acquilano testified that his practice was and is
to hire experienced men in the refrigeration (air-condition-
mg) field, and that when he hires he assumes the man can
do the work. Not surprisingly , he further testified that if
Winter was not a refrigeration mechanic he would not have
hired him (and presumably would not have made him the
job offer); but then, surprisingly , followed this statement
with the assertion that he had never discussed Winter's
past work with him and made no inquiry about his qualifi-
cations and background . If the latter assertion of
Acquilano 's is true, it can only be understood in the light
of his further testimony that he relies on performance of
the man after hiring as to whether he is qualified, which
would make the label under which the job applicant came
of little consequence . In this connection, Acquilano further
testified that in the past the Union has referred refrigera-
tion mechanics to him whom he has hired and thereafter
laid off because he was dissatisfied with their performance.
Union Business Agent Farrell provided no evidence on
the matter of Winter 's qualification for the Betlem job
other than to indicate that, as the backpay proceeding be-
came imminent , he sought and obtained the exparte derog-
atory statements concerning Winter attached to the Farrell
affidavit filed in opposition to striking Respondent's an-
swer. Apart from the question of their relevancy to this
proceeding, these were unsworn and untested statements
and the persons who purportedly made them were not pro-
duced and offered as witnesses9 Moreover , the substance
of the statements (other than Acquilano 's) are on their face
irrelevant to this proceeding.
Thus the statement of Howard , alleged to be business
manager for Canadian Local 46, purports to question, in
June 1975, Local 46 's own grant of the several travel cards
to Winter in 1971, 1972, and 1973 . The validity of the trav-
el cards was covered in the unfair labor practice litigation,
the officials of its sister Local 46 were easily available to
Local 13 before and during that litigation , and if there was
anything to the allegations they could have and should
have been made and litigated in the unfair labor practice
case. What was proposed here was an attempt to urge other
reasons to discredit and relitigate the Board 's finding that
there was a discriminatory refusal by Local 13 to honor the
travel cards and to refer Winter to the job offered him. In
its prehearing order, the Board ruled out such relitigation.
The statement of Pfromm, said to be a former foreman
of the James Craib Company , purports to denigrate the
8 Acquilano said he was aware he had the right under the union contract
to hire a nonunion man, with an obligation on the part of the man to join
the Union in a certain number of days , but that he never used that practice.
9 Except Acquilano, whose statement and testimony have already been
discussed
586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work performance of Winter on a 10-week job for Craib,
from January to April 1973, converting coal boilers to oil
boilers, and concludes that Winter was discharged for lack
of qualification and incompetency. There appears to be no
direct relationship between this work and air-conditioning
or refrigeration work. Moreover, paragraph 7 of the back-
pay specification and the uncontradicted testimony of
Winter show that Winter worked for the same Craib for a
2-1/2 week period from April 16 to May 3, 1973, which on
its face would seem to indicate that Craib had no problem
in putting Winter on a job for an additional period.
In my view the defense that Winter was not qualified to
work for employer Betlem was a sham and constituted a
shifting by Local 13 from its discredited position in the
unfair labor practice proceeding in an attempt to reargue
and escape the Board's decision and order to make the
discriminatee whole. By the employer's standard the test of
the individual's ability to perform the work of a refrigera-
tion mechanic was an evaluation of his actual performance
on the job, and not the label on his papers. In the past,
employer Betlem had from time to time discharged, as un-
satisfactory, men referred to it by the Union as qualified
refrigeration mechanics. By its unfair labor practices, Lo-
cal 13 had denied Winter the opportunity to demonstrate
his skills as a refrigeration mechanic for employer Bet-
lem.io
10 Even if there were an uncertainty legitimately raised about Winter's
qualifications, "the backpay claimant should receive the benefit of any
doubt rather than the Respondent, the wrongdoer responsible for the exis-
tence of any uncertainty and against whom any uncertainty must be re-
solved." United Aircraft Corporation, 204 NLRB 1068 (1973), and cases cit-
ed
In accordance with the uncontroverted testimony of
President Acquilano of Betlem there was only one kind of
wage rate that would have been paid Winter for the work,
namely, the journeyman's rate, and the backpay was com-
puted at that rate.
Upon the foregoing findings of fact and conclusions and
the entire record, and pursuant to Section 10(c) of the Act,
I hereby issue the following recommended:
ORDER 11
Respondent Local Union No. 13, an affiliate of the
United Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United States
and Canada, Rochester, New York, its officers, agents, and
representatives, shall pay to discriminatee Alfred Winter,
or to his account, the following sums as net backpay:
(1) To Winter directly, the sum of $26,966.34 with inter-
est at 6 percent per annum calculated as provided under
section I, supra.
(2) To Winter's pension account, the sum of $2,060.85,
together with any applicable penalties or interest for late
payment claimed and not waived by the account, minus
any tax withholdings required to be deducted and paid by
Local 13 from any of such sums under Federal, state, or
local law.
11 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and Order herein shall , as provided in Sec 102 48 of the Rules
and Regulations , be adopted by the Board and become its findings , conclu-
sions, and Order , and all objections thereto shall be deemed waived for all
purposes