Roman Iron Works, Inc

National Labor Relations Board - Board Decisions

Feb 27, 1989

292 N.L.R.B. 1292 (N.L.R.B. 1989)

1292 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Roman Iron Works, Inc and Shopmen's Local
Union No 455, International Association of
Bridge, Structural & Ornamental Iron Workers,
AFL-CIO and Steel, Metal, Alloys and Hard
ware Fabricators and Warehousemen, Local
810, affiliated with International Brotherhood of
Teamsters , Chauffeurs , Warehousemen and
Helpers of America , AFL-CIO,' Party to the
Contract and Shopmen 's Local Union No 455,
International Association of Bridge , Structural
& Ornamental Iron Workers , AFL-CIO Cases
29-CA-4853 and 29-CA-6896
February 27, 1989
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On June 30, 1987, Administrative Law Judge
James F Morton issued the attached supplemental
decision The Respondent filed exceptions and a
supporting brief, the General Counsel filed excep-
tions and a supporting brief, and the Respondent
filed a brief in response to the General Counsel's
exceptions
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel
The Board has considered the supplemental deci-
sion and the record in light of the exceptions and
briefs and has decided to affirm the judge's rul-
ings,2 findings,3 and conclusions only to the extent
i The Union s name is changed to reflect the readmission of the Inter
national Brotherhood of Teamsters into the AFL -CIO effective Novem
her 1 1987
2 We agree with the judges ruling denying the General Counsels
motion to stnke the Respondents answer to the backpay specification
a The Respondent has excepted to some of the judge s credibility find
rags 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
In sec A of his supplemental decision the judge inadvertently referred
to Teamsters Local 810 as Local 298
In finding that Lucio Perruzza is entitled to backpay the judge re
ferred to Perruzza s testimony that he thought he could not have re
turned to work for the Respondent because he was receiving a pension
The full context of that testimony is in response to the judge s question
ing Perruzza testified that he would have been willing to return to work
for the Respondent and he understood that he would have had to give up
his pension if he did return We agree with the judge s rejection of the
Respondent s argument that this testimony shows Perruzza s permanent
abandonment of the type of work the Respondent performs
We reject the Respondents assertion that Richard Catalano and Lucio
Perruzza are not entitled to backpay because their receipt of a union pen
lion during the backpay period shows a willful loss of employment a
failure to seek employment or an incapacity to work during the backpay
period The Respondent does not dispute that Catalano and Perruzza ob
tamed interim employment during each of the relevant backpay quarters
as itemized in the attachments to the backpay specification Nor has the
Respondent sought otherwise to show that these employees job searches
in connection with interim employment were in any way deficient Ac
consistent with this Supplemental Decision and
Order
The Respondent's employees, represented by
Local 455, went on strike July 1, 1975 4 In Novem
ber 1975, the Respondent unlawfully refused to
bargain with Local 455, in violation of Section
8(a)(5) and (1) of the Act, by executing a contract
with Teamsters Local 810 before communicating
its withdrawal from the multiemployer group to
Local 455 5 In August 1978, Local 455 made an
unconditional offer to return to work In 1980, the
Board found that the Respondent violated Section
8(a)(3) by failing to reinstate fully its striking em
ployees 6 Thereafter, the Regional Director issued
the instant backpay specification
The judge found, inter alia, that no discriminatee
for whom the General Counsel sought backpay
pursuant to the make whole order in Kuno, supra,
was entitled to reimbursement for fringe benefits
lost as a result of participation in the strike 7 The
judge without discussion found that Lucio Per
ruzza, a striker who was never offered reinstate-
ment, was not entitled to reimbursement for his
out-of pocket medical expenses Additionally, the
judge found that Rufus Ziegler, a striker who re
turned individually to the Respondent's employ
before August 9, 1978, was not entitled to receive
any back wages pursuant to the make-whole order
For the reasons set forth below, we disagree with
the judge
1 It is well settled that the finding of an unfair
labor practice is presumptive proof that some
back pay is owed by the [Respondent] "8 The
burden is on the General Counsel to prove the
gross amount of backpay due 9 The burden then
shifts to the Respondent to establish facts that
negate or mitigate its liability 10
cordingly we agree with the judge that these employees receipt of re
tirement benefits does not bar their entitlement to backpay in the circum
stances here presented
4 The Respondent was a member of a multiemployer bargaining group
whose collective bargaining agreement with Local 455 expired June 30
1975
5 NLRB Y Independent Assn ofSteel Fabricators 582 F 2d 135 149 (2d
Cir 1978) enfg in pertinent part 231 NLRB 264 (1977) cert denied 439
U S 1130 (1979)
6 Kuno Steel Products Corp 252 NLRB 904 (1980) enfd sub nom
NLRB v Koenig Iron Works 681 F 2d 130 (2d Cir 1982) Roman Iron
Works Inc was one of the respondents in Kuno
These employees are Sam Caravano Richard Catalano Lucio Per
ruzza and Edward Sabella strikers who were not reinstated on the
August 1978 unconditional offer to return to work as well as Michael
Schura and Rufus Ziegler who individually abandoned the strike and re
turned to the Respondents employ in January 1977 and February 1978
respectively
° The amended backpay specification sought no benefit fund contribu
tions on behalf of Caravano and sought no back wages for Schura
8 NLRB Y Mastro Plastics Corp 345 F 2d 170 178 (2d Cir 1965) cert
denied 384 U S 972 (1966)
9 NLRB v Brown & Root Inc 311 F 2d 447 454 (8th Cir 1963)
10 Ibid
292 NLRB No 142
ROMAN IRON WORKS 1293
In analyzing the General Counsel 's backpay
claims for the discriminatees , the judge acknowl-
edged that the collective -bargaining agreement ef-
fective just prior to the 1975 strike provided unit
employees various fringe benefits and that the Re-
spondent did not provide these contractual benefits
to employees after the strike began The judge mis-
takenly stated that the Regional Director 's amend
ed backpay specification sought to make the discri
minatees whole by requiring the Respondent to
continue providing the contractual fringe benefits
as part of its obligation to abide by Local 455's suc
cessor contracts with other employers during the
backpay period 11 The judge reasoned that requir-
ing the Respondent to provide such benefits would
compel the Respondent to discriminate in favor of
the discriminatees because they participated in the
strike
The Regional Director 's amended backpay speci-
fication does not seek to impose on the Respondent
any terms in Local 455's subsequent collective bar-
gaining agreements with other employers, rather,
the specification uses a formula based on continu-
ing the terms of the parties ' expired agreement Ac-
cording to the circuit court, the Respondent's un-
lawful execution of a contract with Teamsters
Local 810 before notifying Local 455 of its with-
drawal from the multiemployer group was a viola-
tion of Section 8(a)(5) 12 The Board subsequently
ordered the Respondent to bargain with Local
455 13 As the Respondent never bargained to im-
passe with Local 455, it was obligated to continue
giving effect to its expired collective bargaining
agreement with Local 455 14 Thus, the amended
backpay specification, based on the expired agree-
ment's terms, correctly calculated the gross
amounts of backpay due The Respondent, on the
11 The judge stated that there have been repeated holdings Roman
Iron Works 275 NLRB 449 ( 1985) and Roman Iron Works 282 NLRB
725 (1987) enf denied 856 F 2d 1 (2d Cir 1988) that the Respondent is
not contractually obligated to Local 455 and is therefore not obligated to
provide fringe benefits pursuant to Local 455 s contracts As we stated
above the judge is incorrect that in the unfair labor practice portion of
this proceeding the General Counsel claimed that the Respondent was
bound to a contract with Local 455 Rather the Board held that the Re
spondent was obligated to continue terms and conditions of an expired
contract A finding that the Respondent has not been bound to any Local
455 contract since the agreement expired on June 30 1975 does not
affect the finding that the Respondent was obligated to continue the
terms and conditions of employment embodied in the contract expired
June 30 1975 Further the unfair labor practice charges underlying the
above cited cases relate to events occurring subsequent to the Second
Circuits decision in NLRB Y Koenig Iron Works 681 F 2d 130 (1982) No
Board or court case has overruled or even addressed the 8 (a)(3) viola
tions we remedy here therefore the Respondents discriminatory refusal
to reinstate fully its striking employees remains unremedied
12 NLRB v Independent Assn of Steel Fabricators 582 F 2d 135 149
(2d Cir 1978)
12 Independent Assn of Steel Fabricators 252 NLRB 922 (1980) enfd
sub nom NLRB v Koenig Iron Works 681 F 2d 130 (2d Cir 1982)
14 See NLRB Y Katz 369 U S 736 (1962) Taft Broadcasting Co 163
NLRB 475 (1967)
other hand , has not established any facts to negate
or mitigate its liability
Specifically , the judge denied all claims set forth
in the amended backpay specification for vacation,
holiday , sick leave , and overtime pay, pension de-
ductions, and contributions to Local 455's Welfare,
Pension, and Annuity Funds We will, therefore,
order the Respondent to make the discrimmatees
whole by paying them the respective amounts set
forth in the amended backpay specification for va
cations , holidays , sick leave , overtime , and pension
deductions , and by making the contributions to the
Local 455 Welfare Fund,15 Pension Fund, and An-
nuity Fund on their behalf in the respective
amounts set forth in the amended backpay specifi-
cation
2 The amended backpay specification also
claimed that Rufus Ziegler is owed $802 03 in back
wages, on the theory that when he returned to
work he should have received a pay rate based on
what he received before the strike increased by the
wage raises that similarly situated replacement em
ployees had received The measure of back wages
due used in the specification was the pay rate he
earned before the strike, plus increases granted
similarly situated employees , less the rates he actu-
ally earned, multiplied by his hours worked 16
The judge rejected the claim for Ziegler because
he found that the pay rates set and increases grant-
ed before July 1, 1978, antedated the 10(b) period
and, as the Respondent has not committed any in-
15 The Respondent asserts that a discnminatee is made whole when he
is reimbursed for the cost of premiums incurred in obtaining substitute
health insurance coverage and for his out of pocket medical expenses to
the extent that those expenses would have been reimbursed through the
Local 455 Welfare Fund In order to be made whole however a discn
minatee must be restored to the position he would have occupied had the
discrimination not occurred This includes not only reimbursement of the
discriminates s premiums and medical expenses but also requires the Re
spondent to contribute to the Welfare Fund according to the expired
contract s terms so that the discriminatee s future interests in the Fund
will be ensured [T]he diversion of contributions from the union funds
undercut [s] the ability of those funds to provide for future needs Stone
Boat Yard v NLRB 715 F 2d 441 446 (9th Cir 1983)
Hassett Maintenance Corp 260 NLRB 1211 (1982) a cryptic decision
on which the Respondent relies focused on what it characterized as the
double insurance costs that would result from requiring the employer
(which had provided other coverage) in that case to make contributions
to the welfare fund Besides being factually distinguishable from this case
Hassett did not address restoring the full range of an employee s interests
in the welfare fund In any event the Hassett decision did not reconcile
its limited remedial order with pre Hassett precedent requiring employer
contributions to union welfare funds on employees behalf see e g Kraft
Plumbing 252 NLRB 891 (1980) affd mem 661 F 2d 940 (9th Cir 1981)
as does precedent decided after Hassett See Stone Boat Yard 264 NLRB
981 (1982) which the Ninth Circuit enforced The court rejected the
double coverage/punitive claim the employer cannot complain of the
extra cost of improperly created substitute fringe benefits The
company is merely required to repay what it has unlawfully withheld
Stone Boat Yard Y NLRB 715 F 2d at 446
Chairman Stephens would overrule Hassett at least to the extent it is
inconsistent with Kraft and Stone Boat Yard
16 The calculation computed quarterly was adjusted for overtime
1294 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
dependent discriminatory act since the backpay
period began, the rates and increases did not con
stitute continuing violations of the Act This pro-
ceeding, however, is not an unfair labor practice
proceeding, the unfair labor practice has already
been found and affirmed by a court of appeals
Kuno Steel Products Corp, 252 NLRB 904 (1980),
enfd sub nom NLRB v Koenig Iron Works, 681
F 2d 130 (2d Cir 1982) The judge apparently mis-
understood the order The Board specifically found
that the Respondent violated Section 8(a)(3) by not
fully reinstating strikers who individually returned
to work before August 9, 1978, but ordered that,
under the circumstances, the Respondent's backpay
liability would run only from 6 months before the
instant charges were filed 17 Manifestly, the Board
contemplated using the discriminatee's prestrike
pay rate and increases granted to similarly situated
employees before the backpay period to determine
the amount of back wages due Accordingly, we
will order the Respondent to make whole Ziegler
by paying him $802 03, as claimed on his behalf in
the backpay specification
3 The General Counsel has excepted to the
judge's failure to include in the make-whole
remedy reimbursement of Lucio Perruzza for out-
of-poclret medical expenses incurred during the
backpay period The amended backpay specifica
tion, together with the documents introduced at
the hearing, claimed $1107 for Perruzza's out-of
pocket medical expenses The judge, who, as stated
above, dismissed all fringe benefit claims for all dis-
criminatees, did not specifically address medical ex
penses
It is customary to include reimbursement of sub
stitute health insurance premiums and out-of pocket
medical expenses in make-whole remedies for
fringe benefits lost 18 Because the Respondent has
established no facts that would negate or mitigate
its liability, we will order the Respondent to ream
burse Perruzza $1107 for his documented medical
expenses during the backpay period
ORDER
The National Labor Relations Board orders the
Respondent, Roman Iron Works, Inc, Greenvale,
New York, its officers, agents, successors, and as
signs, to make whole the employees named below
by paying them the amounts of backpay set forth
opposite their names, plus interest in the manner
prescribed in New Horizons for the Retarded ' 9 less
tax withholdings required by Federal and state
laws, and by paying to the Welfare Fund, Pension
Fund, and Annuity Fund of Shopmen's Local
Union No 455, International Association of Bridge,
Structural & Ornamental Iron Workers, AFL-CIO,
the respective amounts on their behalf set forth op-
posite their names, plus interest in the manner pre
scribed in Merryweather Optical Co 20
Name Backpay2 i Medical Expenses Welfare Fund Pension Fund Annuity Fund
S Caravano $5 893 80
R Catalano 6 570 40 $681 80 $852 24 $17064
L Perruzza 23 209 20 Si 107 5 697 88 7 122 32 142444
E Sabella 12 27300 2 397 30 3 095 38 598 07
M Schura 5 728 00 2 268 36 2 834 70 566 34
R Ziegler 14049 16 8 625 92 10 78240 2 156 48
17 Id at fn 5
18 See e g RMC Constructors 266 NLRB 1064 (1983)
9 283 NLRB 1173 (1987)
20 240 NLRB 1213 (1979)
21 Backpay includes the wages found owing to the discnmmatees as
well as pension deductions overtime vacation holiday and sick pay
Beatrice Kornbluh Esq, for the General Counsel
Stanley Israel Esq (Kliegman Goldstein Israel & Cooper),
of New York, New York, for the Respondent
Vicki Erenstein Esq (Sipser Weinstock, Harper Dorn &
Leibowitz), of New York, New York, for the Charging
Party
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
JAMES F MORTON , Administrative Law Judge This is
one of six related backpay cases that I heard in New
York City over an extended period of time, beginning 12
September 1984 and ending 7 October 1986 In the back
pay specification as amended, the General Counsel seeks
awards from Roman Iron Works Inc (Respondent) for
six named discrimmatees and alleges that backpay contin
ues to run for two of these six Respondent asserts that it
has met its obligations under the Board's backpay order
and contends that no backpay is owing
On the entire record including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs filed by the General Counsel and Respondent
I make the following
ROMAN IRON WORKS 1295
FINDINGS OF FACT
A Background
The event that gave rise to this backpay proceeding
was a strike in 1975 by Shopmen s Local Union No 455,
International Association of Bridge , Structural, and Or
namental Iron Workers, AFL-CIO (Local 455) Local
455 struck a large number of companies engaged in van
ous branches of the iron and steel construction and fabri
cation business , which were located in New York City
and vicinity Respondent was one of those companies
Shortly after the employees of Respondent, in the unit
represented by Local 455 , went on strike 1 July 1975
Respondent recognized another labor organization,
Teamsters Local 810 , and agreed with it to deduct union
dues and fees from the wages of the employees it hired
as replacements for the striking employees Local 455
filed unfair labor practice charges that led to the Board s
decision in Independent Assn of Steel Fabricators, 231
NLRB 264 (1977) In that case Respondent was found to
have been part of a multiemployer bargaining unit whose
representative (Independent Association , supra) violated
Section 8 (a)(1) and (5) of the Act by its refusal to bar
gait with Local 455 and failing to sign an agreed on con
tract Respondent separately was found to have violated
Section 8(a)(1) and (2) by having unlawfully recognized
Teamsters Local 810 on 18 November 1975, and to have
violated Section 8(a)(1), (2), and (3) by having signed a
union security agreement with Teamsters Local 810 No
claim is asserted in this proceeding for reimbursement of
dues and initiation fees as the General Counscl has ac
cepted Respondent 's representation that no dues or fees
were a ier deducted for Local 298
Two of Respondents striking employees Michael
Schura and Rufus Ziegler, abandoned Local 455 s strike
and returned to work for Respondent Schura returned
on 24 January 1977 and Ziegler on 14 February 1978
The strike otherwise continued through 1978 as dis
cussed below In the instant backpay case , the General
Counsel seeks awards for Schura and Ziegler on the
ground that , since the start of their backpay period (1
July 1978) as noted below Respondent still had not fully
reinstated them to their former positions of employment
A major aspect of their claims and those of the other
four discriminatees has to do with Respondents not
having provided them with various fringe benefits called
for in Local 455 contracts To put that matter in perspec
tive a brief review of the relevant history of this case is
needed
The U S Court of Appeals for the Second Circuit on
30 June 1978 set aside that part of the Board s Order in
Independent Assn supra, which had found that the Asso
ciation was the collective bargaining representative for
various employer members including Respondent The
court held that Respondent had effected a timely with
drawal from the multiemployer unit It remanded the
case to the Board See NLRB v Independent Assn of
Steel Fabricator. 582 F 2d 135 (2d Or 1978)
Shortly after issuance of the court s opinion Local 455
(on 8 August 1978) applied unconditionally to Respond
ent on behalf of its striking employees to return to work
Local 455 filed unfair labor practice charges on 2 Janu
ary 1979 against Respondent and other companies which
led to the decision in Kuno Steel Products Corp, 252
NLRB 904 (1980) There the Board held, inter alia that
Respondent had violated Section 8 (a)(1) and (3) by
having failed to reinstate four striking employees, Sam
Caravano Edward Sabella , Richard Catalano and Lucio
Perruzza , and by having failed to fully reinstate two
others, Schura and Ziegler , who had returned to work in
1976 and 1977 , respectively , as noted above
In 1980, the Board issued a supplemental decision in
Independent Assn supra at 252 NLRB 922 There it con
sidered the court 's remand (582 F 2d 135, above) and or
dered Respondent , inter alia , to bargain collectively with
Local 455
More recently the Board has issued two more deci
sions involving Respondent In Roman Iron Works, 275
NLRB 449 (1975) the Board held based on a new unfair
labor charge by Local 455, that Respondent did not
engage in surface bargaining as alleged but did find that
Respondent unilaterally granted certain wage increases
in violation of Section 8(a)(1) and (5) of the Act In that
case, Administrative Law Judge Green had observed
that since 1975 Respondent had operated basically as a
nonunionized company with a new work force and new
terms and conditions of employment
On 14 January 1987, the Board considered yet another
unfair labor practice charge by Local 455 and the com
plaint thereon See Roman Iron Works, 282 NLRB 725
(1987) It dismissed an allegation that Respondent had
unlawfully refused to sign an agreed on contract, howev
er it did find that Respondent violated Section 8(a)(1)
and (5 ) by having unlawfully withdrawn recognition
from Local 455 as bargaining representative of its em
plovees and by having engaged in other unlawful acts
We turn now to the issues presented in this backpay
proceeding
B The Individual Claims
1 Michael Schura
As noted above, Schura returned to Respondent s
employ in 1976 having abandoned Local 455 s strike
Relative to his backpay claim (and to those of other em
plovees involved in the original litigation) the Board in
Kuno Steel Products Corp, 252 NLRB 904 906 fn 5
stated
The General Counsel presented evidence estab
lishing a prima facie case, which [Respondent has]
not adequately rebutted that economic and unfair
labor practice strikers individually returned to work
prior to August 9 [1978] and were not fully rein
stated to conditions current at the time the strike
began Since an individual employee may make an
unconditional offer to return to work each individ
ual employee who was reinstated pursuant to an un
conditional offer was entitled to full reinstatement
to the status quo which he occupied at the time he
went on strike The Laidlaw Corporation 171 NLRB
1366, 1381-1382 (1968) enfd 414 F 2d 99 (7th Cir
1969) cert denied 397 U S 920 (1970) According
ly, in light of Respondent [s] failure to rebut the
1296 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
General Counsels prima facie case we find [its]
conduct in this regard to be violative of Sec 8(a)(3)
of the Act
We agree with the Administrative Law Judge s
recommendation that determination whether the
total wages and benefits package these employees
have received since returning to work is substantial
ly equivalent to the wages and benefits they re
ceived prior to the strike-and thus satisfies the full
reinstatement requirement-should be considered in
the compliance stage of this proceeding Under the
circumstancs of this case we hold that
Respondent [s] backpay liability to any employee
who returned to work before August 9 shall run
only from 6 months prior to the filing of charges
herein [I e from 1 July 1978 ]
Schura had been earning $7 per hour as a mechanic in
Respondent s employ when he joined the strike on 1 July
1975 As noted above he returned to Respondent s
employ on 24 January 1977 He returned as a mechanic
but at $5 per hour Presumably, the fact that he received
$2 per hour less than his prestrike rate was a factor in
the Board s finding, in the footnote quoted above, that
Respondent violated Section 8(a)(3) of the Act in not
having fully reinstated him Respondent is not challeng
ing that finding Rather it notes that the backpay period
set by the Board, in the footnote quoted above begins 1
July 1978 for Schura and it contends that as of that date
and since Schura has been fully reinstated as that phrase
was used in the above quoted footnote The General
Counsel concedes that Schura s wage rates since 1 July
1978 exceeded those projected for him according to the
formula the General Counsel has used in this and several
of the related backpay cases I heard The General Coun
sel contends however that Respondent has since the
start of the backpay period continued to discriminate
against Schura by not having provided him with various
fringe benefits he enjoyed just before the strike began in
1975
While the General Counsel does not make any wage
rate claim on behalf of Schura but only one arising out
of fringe benefits he once enjoyed, it is still important to
comprehend the General Counsels formula in setting his
wage rates at various points in the backpay period That
formula has been used in the backpay claims by the Gen
eral Counsel on behalf of other discriminatees and it is
also relevant to Respondents contention that the wage
and benefits package (as that term is used in fn 5 of
Kuno) provided Schura on and since July 1978 is at least
equivalent to the package he enjoyed 3 years earlier
As discussed further below the results obtained in using
this formula pertains to what I view as the essential
issue-whether Respondent continued to discriminate
against Schura on or after the start of the backpay
period
This is the General Counsels formula for determining
the gross wages Schura should have been earning on and
since 1 July 1978 His prestrike rate ($7 per hr) was mul
tiplied by the average percentage wage increase (7 1 per
cent) that similarly situated employees received in the in
terval between the start of the strike and the start of the
backpay period Thus the General Counsel would claim
a rate of $7 50 per hour for Schura as of 1 July 1978
Schura was paid $7 50 per hour as of that date so no
backpay based on his wage rate is sought for 1978 By
1979 his actual wage rate exceeded the rate projected for
him under the General Counsels formula By the end of
1980 his actual hourly rate was $10 But under the Gen
eral Counsels formula he would have been entitled to
claim $8 23 per hour
The backpay claim for Schura presented in the amend
ed specification is based on the General Counsels con
tention that Respondent failed to fully reinstate him on
and since 1 July 1978 in that it made no contributions to
Local 455 s pension welfare and annuity funds on his
behalf and that, as a consequence, Schura must be com
pensated for all losses attributable to Respondents failure
to make those contributions Respondent argues that the
amended specification errs in that it mistakenly assumes
that Respondent had been under a contractual obligation
to abide by successive Local 455 contracts when the bar
gaining history has been to the contrary-a reference I
suppose particularly to the 1985 and 1987 decisions of
the Board discussed above
It has been almost 12 years since Respondent was
under a contractual obligation with Local 455 to contrib
ute to the pension welfare, and annuity funds referred to
in those contracts or to pay the overtime, vacation holi
day and other fringe benefits called for in them As
there have been repeated holdings that Respondent has
had no such contractual obligations to Local 455 there is
no basis on which I can now in the guise of making em
ployees whole impose on Respondent any such obliga
tions
There is another reason why Schura is not entitled to
pension welfare annuity vacation holiday pay or other
fringe benefits arising under the provisions of Local 455 s
expired contract or of Local 455 s contracts with other
companies in the New York City area Were Schura
given such benefits via a backpay award he would
thereby be receiving a special benefits package which
would not be available to other employees in the unit
Local 455 represents and he would be receiving that
package because he had once supported Local 455 s
strike Any such award would promote not remedy un
lawful discrimination under the Act
Respondent asserts that the Board in the footnote
quoted above has called for a comparison to be made of
Schura s wages and benefits package (as it was when the
strike began on 1 July 1975) with his wages and benefits
package as it existed at the start of his backpay period
Using that approach I note that the wage rate Schura
was getting as of the start of the backpay period for him
was considerably higher than his rate when the strike
began
In comparing the fringe benefits available to him as of
1 July 1975 with the package he enjoyed as of the start
of the backpay period 1 July 1978 I also note the fol
lowing In 1980 Respondent established a trusteeship to
provide its senior employees with vested annuities and
life insurance coverages Schura left Respondent s
employ prior to his becoming eligible to participate in
ROMAN IRON WORKS
that program As noted below, the other discriminatee
who returned to Respondents employ Rufus Ziegler
participated in that plan Respondent has provided unit
employees with Blue Cross/Blue Shield coverages and
offers them vacation pay, personal days holiday pay,
and other benefits-all on a nondiscriminatory basis
Based on the foregoing I find that Respondent has
throughout Schura s backpay period treated him in a
nondiscriminatory manner and has provided him with a
total wages and benefits package which is substantially
equivalent to the package that he enjoyed immediately
prior to the start of the strike Schura has no backpay
due him and I so find
2 Rufus Ziegler
Ziegler returned to Respondents employ in February
1978-about 5 months prior to the start of his backpay
period, 1 July 1978, as defined by the Board On his
return, he was paid a rate of $5 50 per hour Just before
the strike began in July 1975, he had been earning $6 65
per hour in accordance with the contract Local 455 had
with Respondent then As of 1 July 1978, Ziegler had re
ceived a $1 increase in his hourly wage rate and thus
was earning $6 50 per hour Although that amount is 15
cents less than the rate he had been earning when the
strike began it was raised in the course of the backpay
period by $4 50 The General Counsel s formula would
have given him raises totaling only $3 85 in that interval
I cannot find on those facts that Ziegler was being dis
criminated against as to his wage rates during the back
pay period What the General Counsels formula seeks to
do is to perpetuate the initial discriminatory rate given
Ziegler on his return to work on February 1978 by sug
gesting that he should have received the $6 65 per hour
he received as of July 1975 plus projected raises All
those calculations pertain to a time antedating the start of
the 10(b) period long before the backpay period started
according to the Board s holding The principle the Gen
eral Counsel utilizes would in effect make each week s
paycheck to Ziegler a separate violation of the Act and
thus continue the violation into the 10(b) period and
beyond Such an approach is clearly barred by the hold
ing in Machinists Local 1424 v NLRB 362 U S 411
(1960)
As noted above Respondent in 1980 enrolled Ziegler
and other union employees in an annuity/life insurance
program on a nondiscriminatory basis insofar as the Act
is concerned As of 1 October 1983 the trustees of that
program projected that on his retirement under the plan
he would receive an annuity of $1229 a month plus
social security benefits and that if he died before the
scheduled retirement date a death benefit of $97,425
would be paid to his beneficiary The certifications
issued by these trustees disclose that those projected
amounts would increase with each years service As to
other fringe benefits Ziegler is covered under a Blue
Cross/Blue Shield plan and has vacation benefits holi
days and so on
It is evident from the foregoing and I find that Re
spondent has not discriminated against Ziegler on or
since 1 July 1978 based on his prior support of Local
455 Rather the total wages and benefits package he re
1297
ceived since the start of the backpay period is substan
tially comparable to that which he enjoyed when the
strike began Therefore I find further that no backpay is
due him
The four remaining discriminatees were not reinstated
by Respondent, notwithstanding their applications on 9
August 1978 to return to work Before discussing their
individual wage aspects of their backpay claims, the
claims advanced in the amended specification for fringe
benefits allegedly due them are now discussed
3 Fringe benefits claimed for Sam Caravano,
Edward Sabella, Richard Catalano and Lucio
Perruzza
The amended backpay specification seeks payment by
Respondent to these five discriminatees of contributions
that allegedly should have been made by Respondent to
the pension, welfare and annuity funds, as specified in
contracts Local 455 has had with other employers since
the start of the backpay period The amended specifica
tion also seeks to reimburse these four discriminatees for
vacation benefits holiday pay, overtime premiums, and
other benefits provided for in those contracts
Those claims are essentially based on the same consid
erations, discussed above with respect to the backpay
sought for Michael Schura and are resisted by Respond
ent for the same reasons discussed above In view of my
analysis above of those matters, I find that these fringe
benefits claims are without merit
The record before me discloses that Respondent
during the backpay period, has provided its employees
with various fringe benefits The General Counsel has
made no claim, in the amended specification that any of
the four discriminatees who were not reinstated should
receive moneys as a consequence of their not being able
to participate in those benefits programs In the absence
of any such claim in the specification, it would be in
error for me to find that they nonetheless would be enti
tied to such compensation See Garsart Construction
Corp 282 NLRB 331 (1987), Barkman Contracting 276
NLRB 1062 at fn 3 (1985)
I turn next to the separate wage claims of the four re
maining discriminatees The pleadings present procedural
as well as substantive issues
4 Sam Caravano
A Procedural Issues
At the hearing the General Counsel moved to strike
Respondents answer to the backpay specification on the
ground that it lacked particulars required under the
Board s Rules and Regulations I denied the motion,
without prejudice to reconsideration on its resubmission
when briefs are filed The General Counsels posthearing
brief raises the motion anew A review of the pleadings
and of related developments will put the matter in con
text
In the original backpay specification the General
Counsels gross backpay formula pertaining to Cara
vano, used the hourly wage rates provided for in Local
455 s standard agreement covering metal fabrication in
1298 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the New York metropolitan area multiplied by regu
lar forty (40) hour week Respondents answer thereto
averred that the formula in error and that the correct
formula for all discriminatees was set by the Board in the
Kuno Steel decision, footnote 5, as noted earlier
Respondent further averred that no backpay was due
any of these four remaining discriminatees, including
Caravano inasmuch as no employment opportunities
were available since the start of the backpay period
The General Counsel issued an amended specification
6 months later, which alleged that an appropriate gross
backpay formula is the rate of pay Caravano earned
prior to the July 1, 1975 strike, plus any increases grant
ed by Respondent to similarly situated employees as set
forth below, multiplied by a regular forty (40) hours
week The increases referred to were averaged on a
percentage basis to calculate wage rates for each calen
dar quarter Respondents amended answer raised the
same objections found in its original answer The Genei
al Counsel, in the course of the hearing, amended the
amended specification a number of times, all without
formal objection by Respondent
After the hearing had opened and prior to the taking
of any testimony Respondent amended its answer to
admit that in several of the calendar quarters in which
net backpay was sought, there were work opportunities
for Caravano and for another unremstated discriminatee,
Edward Sabella Respondents amended answer also con
tained the assertion, however that those work opportune
ties have been fewer than those claimed by the General
Counsel i e a regular 40 hour workweek In its amend
ed answer Respondent accepted, for the purpose of
making a comparison the wages contained in the Gener
al Counsels amended specification Respondent also ac
cepted the concessions made by the General Counsel as
the interim earnings of Caravano during his backpay
period In its amended answer Respondent set out in
dollar amounts, the gross backpay that it contended was
due Caravano Respondent did not specify the number of
hours that Caravano would have worked each week
based on available work opportunities From the discus
soon in the record it appears that the number of hours
can be determined readily by dividing the hours of avail
able work by the applicable wage rate for each quarter
The General Counsels argument in furtherance of the
motion to strike set forth three grounds First the Gen
eral Counsel asserts that Respondents amendment was
filed too late That contention does seem to lack grace in
view of the many amendments to the original specifica
tion made throughout the hearing by the General Coun
sel More importantly I note that the Board, in ruling on
motions to dismiss answers takes into account the fact
that a respondent has been afforded a clear opportunity
to file an answer or to correct the one it did file See
e g Normike Contractors 267 NLRB 836 838 (1983) I
also note the General Counsel sought no postponement
to offset any effect the late amendment to the answer
may have had I find no merit to the General Counsel s
first contention
The General Counsels argument next asserts that Re
spondent s amended answer lacks specificity apparently
as it does not contain a weekly schedule of the available
work opportunities for Caravano or because Respondent
did not annex to its amended answer an appendix listing
the available work opportunities for each week In re
sponse to this assertion Respondent notes that its pri
mary defense as set out in its answer is that the General
Counsels formula is in error and the correct formula is
that spelled out explicitly by the Board in Kuno Steel,
supra at fn 5 Respondents answer sets out in the alter
native its position that Caravano would not have
worked a regular 40 hour week in view of the limited
work opportunities it contends existed The Board deci
sions indicate that that statement in an answer is proce
duraily adequate and that the formal rigidities urged by
the General Counsel are not essential See Victoria Medi
cal Group 274 NLRB 1006, 1008 (1985) and the cases
cited there I therefore reject the General Counsel s
second point of argument
The last procedural point submitted by the General
Counsel is that Respondents answer is fatally defective
in that it does not identify the replacement employees
whose hours were used by Respondent in making its
gross backpay calculations Respondent asserts that it is
not obligated to plead evidentiary matters and notes that,
in any event, the General Counsel had been furnished
with all relevant payroll data from which Respondent
extracted the calculations on which its evaluations of the
available work opportunities were based In essence, Re
spondent is urging that the General Counsel is protesting
as to form Although there is merit in this view suffic ent
for me to reject the General Counsels procedural objec
tion, my ruling does not relieve Respondent of its obliga
tion to demonstrate that there was no work for Caravano
during relevant quarters of the backpay period Nor does
my ruling shift to the General Counsel or for that
matter to my own self the responsibility of culling from
all the raw nayroll data placed in evidence by Respond
ent the evidence in support of its own contentions
In sum I find that Respondent's amended answer
meets the requirements of the Board s Rules and there
fore deny the General Counsels motion to strike it
B Caravanos Wage Claim
Caravano worked for Respondent as a mechanic from
8 December 1969 until he joined the strike by Local 455
on 1 July 1975 The Board found in Kuno Steel supra
that Respondent had on 8 August 1978 unlawfully re
fused Local 455 s application for Caravano s reinstate
ment Respondent was ordered to offer Caravano rein
statement and to make him whole The amended specifi
cation asserts that Respondent has yet to make him a
valid reinstatement offer and that consequently, oackpay
for him continues to accrue The amended specification
lists a claim for him for 18 calendar quarters beginning
with the third quarter of 1978
The General Counsel asserts that Caravano would
have worked a regular 40 hour week throughout his
backpay period The General Counsel used the same
method to calculate his wage rate for each calendar
quarter as was used with respect to Schura s backpay
claim discussed in detail above Briefly the General
Counsel used Caravano s rate as it was on 30 June 1975,
ROMAN IRON WORKS
increased by an average of the percentage of the raises
given to similarly situated employees
Respondents initial objection to the General Counsel s
formula is based on its view that the Board already has
specified the exact formula to be used, in particular the
language extracted from footnote 5 in Kuno Steel It is
readily apparent, however, that footnote 5 pertains to
those strikers who had returned to Respondents employ
prior to Local 455 s application on behalf of those still
on strike on 9 August 1978 Footnote 5 was obviously
aimed at ensuring that Respondent would or did fully re
instate Schura and Ziegler I thus find no merit to Re
spondent s contention that the General Counsel improp
erly failed to apply a formula set by the Board
Respondents alternate contention admits for compari
son purposes, the wage rates as calculated by the Getter
al Counsel for Caravano, and it accepts the interim earn
ings conceded in the amended specification Respondent
disputes the General Counsels assertion that during the
backpay period, Caravano would have worked a regular
40 hour week and asserts that available work opportuni
ties reduce the figure
In the amended backpay specification which was
issued shortly before the opening of the hearing the
General Counsel sought net backpay for Caravano for 6
of the 18 calendar quarters contained in that specifica
tion For each of the other 12 quarters, Caravano had in
terim earnings greater than the gross backpay alleged to
be due him As to the six quarters different from those
1299
made by the General Counsel, obviously because Re
spondent contended that gross backpay should be based
on available work opportunities and not on a regular 40
hour workweek The different estimates are as follows
Yr /Qtr General Counsels Claim Respondent s
1978/3 $201040 $1 579 60
1979/3 397800 3 738 93
1980/2 3 97800 1 292 85
1981/1 409760 387893
1981/2 4 097 60 4 735 88
1982/1 470600 494356
Totals $22 867 80 $22 169 75
During the course of the hearing the General Counsel
stated that Caravano had incurred certain expenses in the
course of securing interim earnings which were not
taken into account in the amended specification The
specification was then further revised to reflect that the
interim earnings figures were reduced by reason of those
expenses A new schedule was prepared regaiding Cara
vano s claim As a result, the interim earnings now con
ceded by the General Counsel for Caravano were found
to exceed in only 5 of the 18 calendar quarters the gross
backpay claimed for him An extract of the revised
schedule for Caravano, submitted by the General Court
sel, shows that net backpay is claimed for him in the re
maining 13 quarters as follows
Sam Caravano
Yr /Qtr Rate Cross Claim Interim Earnings Net Backpay Due
1978/3 7 18 $201040 $1494 $ 516 40
1979/1 7 18 3 733 60 3 639 9400
1979/3 7 65 397800 2 135 1 84300
1979/4 7 65 397800 3 871 10700
1980/1 7 65 397800 3 953 2500
1980/2 7 65 397800 3 760 21800
1981/1 7 88 409760 3 613 484 60
1981/2 7 88 409760 3 093 1004 40
1981/3 905 470600 4 654 5200
1991/4 9 05 470600 4 522 18400
1982/1 9 05 470600 4 221 48500
1982/3 9 99 5 194 80 4 960 234 80
1982/4 9 99 5 194 80 4 550 644 80
Total $5 893 00
The General Counsel had made Caravano available to
Respondent for examination as to his interim earnings
but he was not called as a witness Respondent did place
in evidence its weekly payroll records to support its con
tention that Caravano would not have worked a regular
40 hour week in view of available work opportunities In
its posthearing brief, Respondent offered a summary of
the hours that it asserted Caravano would have worked
and listed alongside the names of replacement employees
that it contended worked the hours to be credited to
Caravano Its summary of the hours is offered for only
11 of the 13 quarters in issue and is as follows
Yr /Qtr Hours
1978/3 214 1/2
1979/1 514 1/2
1979/3 452
1970/4 564 3/4
1980/1 541 1/2
1980/2 169
1300 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1981/1 449 3/4
1981/2 587 3/4
1981/3 450 3/4
1981/4 524
1982/1 545 3/4
1982/2 389
Before considering whether any weight is to be ac
corded to this summary, I note parenthetically that it
lists, in 5 of the 12 quarters a total that is greater than
520 hours the total that the General Counsels formula
uses in calculating Caravano s gross wages (40 hours a
week by 13 weeks in each quarter equals 520)
I also note that Respondents summary omits a refer
ence to the third quarter of 1982 and one for the fourth
quarter of 1982 In both quarters the General Counsel
has made net backpay claims for Caravano Respondents
summary includes a figure for the second quarter of
1982, the General Counsel does not seek net backpay for
that quarter There are other deficiencies apparent in that
summary
I am unable to reconcile many of the hourly figures
with the dollar amounts contained in Respondent s
answer Respondent purportedly was using the wage
rates calculated by the General Counsel Its amended
answer asserts that for the first quarter of 1981, Cara
vano s gross backpay based on available work would
have been $3,778 83 However if the hourly figure for
that quarter in the summary above (449 3/4) is multiplied
by the applicable wage rate for that quarter ($7 88), a
product of $3 544 03 results In fact the only quarter in
which I can find an accord between Respondents hourly
total and its dollar figures is the second quarter of 1980
There are other confusing points as to the calculations
offered by Respondent and these are discussed further
below with respect to the backpay sought for the next
claimant It is more to the point now to consider the
merits of the formula propounded by the General Coun
sel
There can be no formula that can reach the exactly
current figure since [a discriminateel did not active
ly work NLRB v Rice Lake Creamery Co, 365 F 2d
888, 891 (D C Cir) 1966) The Board is only required
to employ a formula reasonably designed to produce ap
proximate amounts due NLRB v Pilot Freight Carriers,
604 F 2d 375 378-379 (5th Cir 1979) The holdings in
these cases and in others were cited by the Board in
Rikal West Inc 274 NLRB 1136 (1985) The General
Counsels use of a regular 40 hour workweek when
viewed against Respondents own varying calculations is
seen to be a reasonably designed formula, especially
when, in more than a few quarters Respondents compu
tations allow for more work hours than does the General
Counsels formula Further the calculations submitted by
Respondent disclose that backpay computations inherent
ly lack ultimate precision but are by necessity, approxi
mations
Respondent has separately put in issue the formula
used by the General Counsel in computing the wage
rates claimed for Caravano I see no merit in Respond
ent s contentions The formula used by the General
Counsel is reasonable As noted above the wage rates of
the two strikers who returned before Caravano s back
pay period began to run were receiving higher hourly
rates from Respondent in the backpay period than the
General Counsels formula sought I therefore find that
Caravano should be made whole by payment to him of
the sums set out in the amended schedule annexed to the
specification, with interest excepting those relating to
fringe benefits
5 Edward Sabella
Sabella began working for Respondent as a mechanic
on 8 May 1975 and took part in the Local 455 strike that
began 1 July 1975 On 9 August 1978 Local 455 sought
his reinstatement The Board, in the underlying decision
held that Respondent unlawfully failed to honor Local
455 s request to reinstate him His backpay period began
on 9 August 1978 and ended 1 September 1982 when he
was offered reinstatement by Respondent
The General Counsel seeks net backpay totaling
$12 273 in lost wages based on the same formula used for
Caravano Respondents answer states that his net back
pay should be only $4 432 68 based on the assertion that
he would have worked substantially less than 40 hours in
many of the weeks in the backpay period
For purposes of comparison, listed below are the re
spective gross wage claims of the General Counsel and
Respondent for those quarters of the backpay period in
which the General Counsel seeks net backpay
Yr /Qtr General Counsels Claim Respondents Claim
1978/3 $201000 $1 120 08
1979/1 3 733 60 3 525 38
1979/3 397800 2 080 80
1979/4 397800 107100
1980/2 397800 0
1981/1 409700 2 718 60
1981/3 470600 1 746 65
1981/4 470600 2 337 18
1982/1 470600 3 122 25
1982/2 470600 2 696 90
1982/3 1 59840 2 175 32
Totals $42 198 00 $22 594 16
In its brief Respondent submitted the figures below as
its estimates of the hours Sabella would have worked in
each of the calendar quarters listed It stated it derived
these figures from its weekly payroll records in evi
dence, and from the testimony it offered It named in its
brief the employees whom it contended had worked the
hours that formed the basis for the following figures I
have placed next to each such figure the applicable wage
rate and in the last column the resultant product, i e
gross claims
Yr /Qtr Hours Rate Gross
1978/3 124 7 18 $89032
1979/1 462 7 18 3 317 16
1979/3 0 7 65 0
ROMAN IRON WORKS 1301
Yr /Qtr Hours Rate Gross
1979/4 0 7 65 0
1980/2 0 7 65 0
1981/1 283 1 /2 7 88 2 233 98
1981/3 223 1/2 9 05 2 022 67
1981/4 273 1/4 9 05 2 472 91
1982/1 345 9 05 3 122 25
1982/2 468 9 05 423540
1982/3 319 3/4 9 05 2 893 74
ever employee Rufus Ziegler testified that after he re
turned to work for Respondent he and other employees
in addition to Diuro did layout work for substantial pert
ods of time Field Examiner Zand s testimony corrobo
rated this account Zand testified that Respondent s
president had told him while he was conducting the pre
hearing compliance investigation that another replace
ment employee Larry Raab worked as a finisher
I do not credit the testimony offered by Respondent
that only its foreman did finishing work during the back
Total $21 188 43 pay periods of Perruzza and Catalano Instead I credit
Respondent does not explain the approximately $1400
difference between this total and the total of the sums set
out in its answer ($22 594 16) Nor does it state why no
hours would have been worked by Sabella in the third
and fourth quarters of 1978, although it had admitted in
its answer that he would have earned $2,080 80 in the
third quarter of that year had he been reinstated and
$1 071 80 in the fourth quarter of that year Even more
troublesome is the fact that names of employees appear
in the payroll records Respondent put in evidence and
next to these names are listed the work hours Yet, there
is no explanation from Respondent why those hours
were not credited to Sabella For example, John Calle
luori s name appears on these payroll records and Re
spondent s president identified him as a mechanic He ap
parently worked 40 hours in the first week of 1981 but it
appears from Respondents brief that it credited Sabella
only with the hours that another replacement worked
that week i e the 16 hours shown for Frank Contelmi
It may be that Respondent has an explanation but even
so, I have material reservations in giving weight to the
evidence it proffered In that regard I note that relevant
daily time records kept by Respondents foreman were
discarded without explanation and also that certain testi
mony offered by Respondents president on a significant
point , discussed below , was not found credible
The General Counsels formula for computing the
wage losses incurred by Sabella is reasonable The evi
dence proffered by Respondent to negate its use is insuf
ficient I therefore find that Sabella should be made
whole by Respondents paying the wage claims set out in
the amended specification for him with interest thereon
6 Lucio Perruzza and Richard Catalano
These two discriminatees had been layout men a clan
sification also termed finishers when they went out on
strike on 1 July 1975 The Board found that they were
unlawfully denied reinstatement on 9 August 1978 the
start of their backpay period No backpay is sought
beyond 10 February 1979 for Catalano the date of his
retirement
The General Counsel has used that same formula to
calculate their gross backpay wage claims i e their
prestrike wage rates increased by percentage increments
given to similarly situated employees multiplied by a
regular 40 hour week Respondent contends that it em
ployed only one finisher Foreman Ray Diuro and more
over , it had no work for them In support thereof it of
fered the testimony of its president to that effect How
the accounts of the General Counsels witness and find
that at least two employees in addition to Foreman
Diuro regularly and for substantial periods performed
finishing duties Thus I find that Perruzza and Catalano
would have worked regularly for Respondent had they
been timely reinstated and I shall adopt the General
Counsels amended specification insofar as it set out their
respective wage claims
Respondent would deny Catalano and Perruzza any
backpay the former because he had retired and did not
seek interim employment and the latter because he had
abandoned the type of work Respondent performs In
support of these contentions it placed in evidence docu
ments furnished by the General Counsel These show
that Catalano applied for an early retirement pension to
the board of trustees of the pension fund set under Local
455 contracts and that he was granted a $280 monthly
pension effective 1 March 1976 Catalano also had noted
that he did not answer Respondents letter to him dated
16 August 1982 offering him reinstatement because he
was retured from Local 455 and could not take any job
because [he] would lose [his] pension The documents
offered by Respondent show the following regarding
Perruzza He applied for and obtained as of 1 August
1978 early retirement from the pension board of trustees
and later filled out a compliance investigation question
naire to state that he had applied for [his] Union pen
sion and did not return to this line of work and instead,
obtained interim employment as a caretaker
In the amended specification the General Counsel
noted that Catalano s backpay period ended on 10 Febru
ary 1979 the date when he reached normal retirement
age The General Counsel placed into evidence a corn
pleted questionnaire signed by Catalano which related
that he applied for an early retirement pension because
he could not find work Perruzza testified before me that
he thought that he could not go back to work for Re
spondent because he was receiving a pension
The issue Respondent presents to me for resolution is
one that was created by its unlawful refusal to offer Ca
talano and Perruzza reinstatement as of 9 August 1978
Definitive answers would have been obtained then and
no legal issue would exist now had it not refused In any
event the Board has held that an employers backpay h
ability and his duty to offer reinstatement is not absolved
by the discrimmatee s signing a release acknowledging
his termination of employment or his cashing pension
checks See Big Sky Sheet Metal Co 266 NLRB 21
(1983) See also Murbro Parking 276 NLRB 52 (1985)
and Smyth Mfg Co 277 NLRB 680 (1985) Further, Re
1302 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
spondent s own unlawful refusal to offer reinstatement to
the two employees was a matenal factor in creating the
confusion that exists now whether they would have re
turned in 1978 It is well settled that where a party s
condact results in an ambiguity, the ambiguity is not to
be resolved in its favor I therefore reject these alternate
contentions of Respondent
THE REMEDY
For the reasons set forth above , I find that Respond
ent s monetary obligations to the discriminatees , for the
periods covered by the amended backpay specification,
will be discharged by payments of the sums set out
below with interest to be computed in the manner pre
scribed in F W Woolworth Co, 90 NLRB 289 (1950),
and Florida Steel Corp 231 NLRB 651 ( 1957), minus tax
withholdings required by Federal law and by state laws
See generally Isis Plumbing Co, 138 NLRB 716 (1962)
The payments referred to above are to be made to the
individuals named below in the amounts as follows
Sam Caravano
Yr /Qtr Rate Gross Interim
Net
Backpay
1978/3 7 18 $201040 $1 494 $51640
1979/1 7 18 3 733 60 3 639 9400
1979/3 7 65 397800 2 135 1 84300
1979/4 7 65 397800 3 871 10700
1980/1 7 65 397800 3 953 2500
1980/2 7 65 397800 3 760 21800
1981/1 7 88 409760 3 613 48460
1981/2 7 88 4 097 60 3 093 100440
1981/3 9 05 470600 4 654 5200
1981/4 9 05 470600 4 522 18400
1982/1 9 05 470600 4 221 48500
1982/3 9 99 5 194 80 4 960 234 80
1982/4 9 99 5 194 80 4 550 644 80
Total $5 893 00
Richard Catalano
Yr /Qtr Rate Gross Interim NetBackpay
1978/3 804 $2 251 20 $600 $1 615 20
1978/4 804 418000 877 3 303 80
1979/1 804 209040 475 161540
Total $6 570 40
Lucio Perruzza
Yr /Qtr Rate Gross Interim Net
Backpay
1978/3 7 77 $2 175 60 $1 320 $855 60
1978/4 7 77 404040 2 188 1 85240
1979/1 7 77 4040 40 2 261 177940
1979/2 7 77 404040 2 288 175240
1979/3 8 28 430560 2 272 2 033 60
1979/4 8 28 4 305 60 2 603 1 702 60
1980/1 8 28 4 305 60 3 047 1 258 60
1980/2 8 28 4 305 60 2 925 1 38060
1980/3 8 50 442000 2 984 143600
1980/4 8 50 442000 3 451 96900
1981/1 8 50 442000 3094 132600
1981/2 8 50 442000 3 334 108600
1981/3 9 76 5 075 20 3 353 1 722 20
1981/4 976 507520 3615 146020
1982/1 9 76 5 075 20 3 990 1 085 20
1982/2 9 76 5 075 20 3 979 1 096 20
1982/3 10 77 1 723 20 1 310 413 20
Total $23 209 20
Edward Sabella
Yr /Qtr Rate Gross Local 455 Interim Non 455 Interim Net Backpay
1978/3 7 18 $201040 $0 $376 $163440
1979/1 7 18 3 733 60 4 3004 725 60
1979/3 7 65 397800 3 560 248 17000
1979/4 7 65 397800 743 799 243600
1980/2 70 397800 2 838 954 18600
1981/1 7 88 409700 1 925 353 1 819 60
1981/3 905 470600 4698 0 800
1981/4 9 05 470600 376 3 885 44500
1982/1 9 05 470600 3 651 370 68500
1982/2 9 05 470600 1 752 0 295400
1982/3 9 99 1 59840 0 389 1 209 40
Total $1227300
ROMAN IRON WORKS 1303
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend
ed'
ORDER
The Respondent , Roman Iron Works, Inc, Greenvale,
New York, its officers , agents , successors , and assigns,
shall satisfy its obligations under the amended backpay
specifications by making Sam Caravano, Edward Sabella,
Lucio Perruzza, and Richard Catalano whole by paying
them the amounts listed above as net backpay in the
manner set forth in the remedy section above
The remaining claims of the amended specification are
dismissed 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 put
poses
z If this Order is enforced by a judgment of a United States court of
appeals the words in the notice reading Posted by Order of the Nation
al Labor Relations Board shall read Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board