Sargent Electric Co.

National Labor Relations Board - Board Decisions

Mar 8, 1978

234 N.L.R.B. 1292 (N.L.R.B. 1978)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sargent Electric Company and Norman J. Kelly and
Homer J. Lee
International Brotherhood of Electrical Workers, Lo-
cal Union No. 712, AFL-CIO and Homer J. Lee
and Norman J. Kelly. Cases 6-CA-6152, 6-CA-
6336, 6-CB-2408, and 6-CB-2418
March 8, 1978
ORDER REMANDING PROCEEDING TO
ADMINISTRATIVE LAW JUDGE
BY MEMBERS JENKINS, MURPHY, AND
TRUESDALE
On March 13, 1974, the National Labor Relations
Board issued its Decision in the above-entitled
proceeding,' directing that Respondent Sargent Elec-
tric Company make Homer J. Lee whole for any
losses he suffered as a result of Respondent Sargent's
violations of Section 8(a)(3) and (1) of the National
Labor Relations Act, as amended, and that Respon-
dent Sargent and Respondent International Brother-
hood of Electrical Workers, Local Union No. 712,
AFL-CIO, jointly and severally make Norman J.
Kelly whole for any losses he suffered as a result of
their violations of Section 8(a)(3) and (1) and Section
8(b)(l)(A) of the Act, respectively. Thereafter, the
Board's Order was enforced by the United States
Court of Appeals for the Third Circuit.2
Pursuant to a backpay specification and appropri-
ate notice issued by the Regional Director for Region
6, a hearing was held on April 6, 7, and 8, 1977,
before Administrative Law Judge Ivar H. Peterson
for the purpose of determining the amount of
backpay due the discriminatees.
On October 6, 1977, the Administrative Law Judge
issued the attached Decision. Thereafter, Respon-
dents filed joint exceptions and a supporting brief
and the General Counsel filed limited cross-excep-
tions and a brief in support thereof and in answer to
Respondent's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
Respondents contend, inter alia, that the backpay
computations as listed in the specification were
inaccurate on grounds that the calculations excluded
weekend employees from the total number of em-
' 209 NLRB 630 (1974).
2 506 F.2d 1051 (C.A. 3, 1974).
3 We note that the Administrative Law Judge recommended that the
interest rate on backpay award be computed at the rate of 7 percent per
annum in accordance with Florida Steel Corporation, 231 NLRB 651 (1977).
However, the method of determining the interest rate as set forth in that
decision is not applicable in cases in which an earlier Order of the Board
providing for a different interest rate has been enforced. The Administrative
Law Judge is directed to modify the backpay awards accordingly.
234 NLRB No. 192
ployees used in the computations, but included the
hours they worked, thereby giving rise to an inflated
average number of overtime hours worked by the
representative complement in the backpay periods.
We find merit in Respondent's contention.3
The field examiner testified that in computing the
backpay award he excluded weekend employees in
determining the number of employees but included
the hours they worked in his final overtime computa-
tions. The only explanation given for this method of
computation appears in the reply from counsel for
the Charging Parties to the Administrative Law
Judge concerning this issue, which states in pertinent
part that, "a memorandum of understanding . . .
promised that overtime would be distributed equally
to the workers on the job." This memorandum, even
if it reads as stated by counsel for the Charging
Parties, does not justify the General Counsel's
method of calculation. The discriminatees are only
entitled to what they would have earned had they
worked during the backpay period. It is clear that
their hours would have been reduced as the result of
weekenders' performing work to the same extent as
the employees in the representative complement.
Only those hours actually worked by the representa-
tive complement should be considered. In her brief
to the Administrative Law Judge, counsel for the
General Counsel stated that all Respondent Employ-
er's electricians, excluding weekenders, compose the
representative employee group. Therefore, we find
that the weekenders and the hours they worked
should be excluded from the backpay calculations
since weekenders are not part of the representative
employee group. The record is insufficient to deter-
mine the exact effect this finding has on the amount
of backpay. Therefore, we shall remand this proceed-
ing to Administrative Law Judge Ivar H. Peterson to
recompute Respondent's backpay obligation and to
take such additional evidence as may be required to
that end.
Although the Administrative Law Judge rejected
Respondents' other defenses, he in large measure
failed to state the basis for such rejection. According-
ly, we direct him to state fully his reasons for
rejecting Respondents' various other defenses.4
ORDER
It is hereby ordered that this proceeding be, and it
hereby is, remanded to Administrative Law Judge
4 The General Counsel excepts to the Administrative Law Judge's
admission into evidence of telegrams from various IBEW locals. Since the
telegrams were not properly authenticated, we find merit in the General
Counsel's exception. Accordingly, we find that the telegrams were improper-
ly admitted into evidence and shall not be considered in determining
Respondents' backpay liability.
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SARGENT ELECTRIC COMPANY
Ivar H. Peterson for appropriate action including
reopening the hearing if necessary.
IT IS FURTHER ORDERED that, in the event a hearing
is necessary, the above-entitled proceeding be, and it
hereby is, remanded to the Regional Director for
Region 6 for the purpose of arranging a hearing and
that the said Regional Director be, and he hereby is,
authorized to issue notice thereof.
IT IS FURTHER ORDERED that the Administrative
Law Judge shall prepare and serve on the parties a
Supplemental Decision, setting forth the resolution
of the issues discussed above, and his findings and
conclusions with respect to the backpay awards.
Copies of such Supplemental Decision shall be
served on all the parties after which the provisions of
Section 102.46 of the Board's Rules and Regulations,
Series 8, as amended, shall be applicable.
DECISION
STATEMENT OF THE CASE
IVAR H. PETERSON, Administrative Law Judge: This
matter was heard before me in Pittsburgh, Pennsylvania,
on 3 consecutive days beginning April 6, 1977. Briefly
stated, the question here presented is the correctness of the
backpay specification issued by the Regional Director for
Region 6 on February 14, 1977, as amended on March 30.
The issues involved, as outlined by counsel for the General
Counsel in her brief, are whether: (1) the gross backpay
formula used is reasonable under the circumstances; (2)
medical insurance premiums are reimbursable to the
claimants; (3) the Respondents should contribute certain
moneys to the IBEW pension plan; (4) certain expense
items related to seeking and/or maintaining interim em-
ployment are properly deducted from interim earnings;
and (5) either of the claimants incurred a willful loss of
earnings. In its answer, received March 3, the Respondent
Sargent denied the principal allegations in the specifica-
tion, as did the Respondent IBEW in its answer received
March 15.
Upon the basis of the entire record in the case, including
careful study of the briefs filed with me on or about May
31, by counsel for each of the parties, and my observation
of the witnesses as they testified, I make the following:
FINDINGS OF FACT AND CONCLUSIONS
In its Decision issued on March 13, 1974, the Board
directed the Respondent to make whole Homer J. Lee for
his loss resulting from the Respondent's unfair labor
practices violative of Section 8(aX 1) and (3) of the Act and,
in addition, directed the Respondent and International
Brotherhood of Electrical Workers, Local Union 712,
AFL-CIO, herein referred to as the Respondent IBEW, to
jointly and severally make Norman J. Kelly whole for his
loss resulting from the Respondents' 8(aX)(1) and (3) and
8(b)(1)(A) violations of the Act. The Court of Appeals for
the Third Circuit entered its Judgment on November 25,
1974, enforcing in full the backpay provisions of the
Board's Order. Controversy having arisen over the amount
of backpay due under the terms of the Board's Order, the
Board's Regional Director for Region 6 issued his backpay
specification in which it was alleged that the backpay due
under the enforced order of the Board was, in the case of
Homer J. Lee, as follows:
Second Qtr., 1972
Third Qtr., 1972
Fourth Qtr., 1972
First Qtr., 1973
Second Qtr., 1973
Third Qtr., 1973
Fourth Qtr., 1973
First Qtr., 1974
Second Qtr., 1974
Third Qtr., 1974
Fourth Qtr., 1974
First Qtr., 1975
$3,914.84
4,782.65
3,116.92
4,470.32
4,709.40
5,100.63
2,710.22
948.76
8.11
688.63
1,488.56
0
For Norman J. Kelly, the computation is as follows:
Second Qtr., 1972
Third Qtr., 1972
Fourth Qtr., 1972
First Qtr., 1973
Second Qtr., 1973
Third Qtr., 1973
Fourth Qtr., 1973
First Qtr., 1974
Second Qtr., 1974
Third Qtr., 1974
Fourth Qtr., 1974
First Qtr., 1975
0
$2,595.53
2,242.47
854.62
1,719.24
1,929.95
1,203.49
3,995.27
3,359.93
5,835.99
2,610.64
340.69
Homer Lee was constructively discharged by Respon-
dent Sargent on April 10, 1972. Norman Kelly was
discharged on June 5, 1972. Both were employed at the
Shippingport jobsite of Respondent Sargent. In the case of
both the backpay periods continued until January 6, 1975,
when each of them declined an offer of reinstatement.
Field Examiner John O'Connell testified with respect to
the formula used to determine gross backpay and other
matters involving the computation of backpay. He related
that the method he used to determine gross backpay was
the average hours worked by a representative group of
electricians, the job classification held by both Kelly and
Lee, employed by Respondent Sargent at its Shippingport
jobsite during the backpay period. The total adjusted hours
for each week in the backpay period were arrived at by
determining the number of straight time hours worked by
90 percent or more of the electricians at the jobsite in
question, and by adding to that figure the average hours of
overtime worked in the particular week. With respect to the
average overtime, O'Connell testified that there were two
types of overtime: time and a half and double time, and
that the average overtime hours worked by the electricians
regularly employed at the jobsite were adjusted to reflect
their straight time equivalent. For the purposes of comput-
ing the overtime, employees known as "weekenders" were
excluded from the computation for the reason that these
individuals worked only on weekends and, so far as it
appears, were not considered by Respondent Sargent to be
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
regular employees. In addition, O'Connell testified that,
after he computed the total adjusted hours for each week,
he determined the total adjusted hours by quarter and
multiplied that figure by the appropriate hourly rate as
specified in the applicable collective-bargaining agree-
ments and by the actual hourly rate paid by Respondent
Sargent to its employees during the period in question.
In addition to the hourly wage rate specified by the
contracts in effect during the backpay period, these
agreements specify that certain other benefits are to be
paid directly to employees or inure to their benefit. Thus,
vacation allowance is set forth in the contract as being one
of the benefits paid directly to employees. O'Connell
testified that the vacation allowance was included in the
gross backpay amount as alleged in the backpay specifica-
tion. A provision in the applicable contracts specifies that
Respondent Sargent will pay I percent of an employee's
gross earnings on a monthly basis to the appropriate Local
Employees Benefit Board. Counsel for the General Coun-
sel contends that these moneys go into a pension fund
which would inure to the benefit of the discriminatees in
the future. The amounts due under this provision of the
contract are alleged in the amendment to the backpay
specification and the gross wages for this benefit are
itemized on a quarterly basis on General Counsel's Exhibit
18.
Finally, an employee working under the contracts here
applicable was eligible for Blue Cross-Blue Shield benefits
after working 960 hours. The "Beaver County Electrical
Employees Welfare Trust Fund," which is funded by
employer contributions, provides for these medical insur-
ance benefits. During the backpay period, because they
were no longer covered by this trust fund, both Lee and
Kelly acquired medical insurance at a cost to them as
follows: In the case of Lee, $642.64; in the case of Kelly,
$985.14. At the hearing, counsel for the General Counsel
amended the amount claimed for Kelly's medical insur-
ance to $929.39.
To summarize, the amended backpay specification al-
leges that the obligation of Respondent Sargent to make
whole Lee under the Board's Order and the court's
Judgment would be discharged by payment to him of the
amount of $32,909.84 plus interest thereon up to the date of
payment, less social security and income tax deductions as
required by Federal and state law. In the case of Kelly, the
obligations of Respondent Sargent and Respondent IBEW
would be discharged by payment by them jointly and
severally of the amount of $26,986.18 plus interest thereon
to the date of payment, minus social security and income
tax deductions as required by law. It should be noted that
the social security reports for Kelly and Lee were intro-
duced into evidence and that the Board has long held that
social security reports are conclusive proof with respect to
interim earnings.'
Counsel for Respondent Sargent takes the position that
the Regional Director failed properly to determine the
backpay due the individual complainants, failed properly
to determine the requested expenses, and failed properly to
investigate and make determinations based upon credible
I See Southern Household Products Company, Inc., 203 NLRB 881, 884
(1973), and Associated Transport Company of Texas, Inc., 194 NLRB 62, 63
(1971).
evidence as to the availability of the individuals for work.
He argues that Field Examiner O'Connell at no time
verified the actual amount of time worked by the com-
plainants prior to the discharge, as contrasted to the
amount of time available for work. Moreover, he contends
that "in determining overtime and double time, for some
unknown reason, Mr. O'Connell included all the overtime
hours and all the double time hours and then, when
dividing through by the number of employees who had
actually worked the overtime and double time, he excluded
the weekend employees who participated in said work, but
did not exclude their hours, obviously resulting in improper
calculations." Counsel for Respondent Sargent further
contends that Kelly willfully took himself out of the job
availability pool during most, if not all, of the discriminato-
ry period. With respect to Lee, he argues that, from
approximately August 1, 1972, to November 1973, Lee was
unavailable for work. He concludes that, with respect to
Kelly, he "became deeply involved with activities unrelated
to seeking employment." These activities involved Kelly
traveling in and through at least 25 states during a period
of about 30 months. Counsel notes that the fact that steady
work was available "was coincidentally proven by the
status of Mr. Lee who, when he became available for work,
was immediately employed and continuously thereafter
during the balance of the back pay period." He argues that
Kelly voluntarily removed himself from the labor market
and admitted that he quit jobs and was terminated on jobs
during the backpay period "which would disqualify him
from his claim for backpay." He states that a review of the
evidence "would at best justify Mr. Kelly receiving one and
one-half months pay or approximately $1,913.06." He
argues that, since Kelly's work record at Respondent
Sargent revealed an average work quota of 403 hours, the
calculations of the backpay specification must be reduced
by at least 20 percent. He further contends that the burden
of proof on travel expenses is on the claimant, and that no
evidence was submitted to substantiate the proposed
expenses as to their accuracy or authenticity. He concludes
that "an award of $1,913.06 would be very fair and that
under optimum conditions the award could not exceed
$8,500.00."
With respect to Lee, counsel for Respondent Sargent
points out that he, by his questionnaire, admitted that he
applied for a job twice in April 1972 and once in May of
the same year, and nothing thereafter until November
1973, when he applied and immediately went to work and
worked continuously with the same company during the
remainder of the backpay period, except for times when he
was sick. He also notes that Lee turned in his IBEW card in
the summer of 1972 to go into the carpentry business with a
partner, and he contends that Lee "was unavailable and
did not seek employment until November, 1973." He
concludes that Lee would be entitled to no more than 2
months' backpay, calculated on the basis of 450 hours per
quarter, as shown by his work record with Respondent
Sargent, for an amount of $2,726.01.
Counsel for Kelly and Lee argues that the backpay
specification was prepared in accordance with existing
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SARGENT ELECTRIC COMPANY
Board precedent and must be allowed to stand inasmuch as
neither Respondent met its burden of proof to negative the
existence of liability to a given employee or which would
mitigate that liability. He further argues that Respondent
Sargent and the Respondent IBEW failed in their burden
of proof to establish facts proving willful loss of earnings.
He concludes that the Respondents "totally failed to meet
their burden of proof and to sustain those contentions
which they had raised in their answers to the back pay
specification" and, as a result, "the back pay specification
must stand and the amounts contained therein should be
awarded as back pay to the discriminatees and not
reduced."
In reviewing the evidence, it seems rather odd to me that
Kelly, a skilled electrician, was unable to find work in the
vicinity of Shippingport or in the vicinity of Pittsburgh, a
highly industrialized area. Field Examiner O'Connell made
inquiries of a number of IBEW locals in the Pittsburgh
area and was advised by telegram substantially as follows:
Hugh M. Snull, business manager of Local 654 in Media,
Pennsylvania, stated that in the fourth quarter of 1972
approximately 50 traveling IBEW members worked in his
local's jurisdiction and that in the third quarter of 1973
approximately 500 traveling IBEW members worked in his
union's area. In addition, he stated that Kelly "signed our
referral book on May 17, 1973, only." Fred J. Veeigel,
business manager of the local in Ypsilanti, Michigan,
advised O'Connell that he had been aware that Kelly was
to have been seeking employment in the jurisdiction of
Local 252 during the third quarter of 1973. He advised that
"work was abundantly available" during all of 1973 and
that his local had "a standing call for scores of electricians
in all of 1973" and that overtime was commonplace. He
further stated that in 1973 Kelly worked for a concern in
his union's jurisdiction a total of 136 hours in June and 98-
1/2 hours in July. The business manager of Oswego, New
York, local reported that he had no record or personal
recollection of Kelly seeking work in the jurisdiction of
Local 328 of the IBEW during November or December
1972. However, he advised that his local "did have some
work opportunity available at that time." Gilson D.
Falster, business manager of Local 557 in Saginaw,
Michigan, advised Field Examiner O'Connell that during
the fourth quarter of 1972 "an abundance of work was
available in this area at that time" and that his local union
had no record of Kelly "seeking employment" and that if
he had applied for employment he "surely would have been
placed."
Counsel for the General Counsel, in her brief, argues that
these telegrams "were not properly authenicated" and "are
at the very least self-serving." In addition she argues that
the statements contained in the telegrams are obviously
hearsay and, finally, she points out that the individuals
who allegedly signed the telegrams were not subject to
cross-examination "as is required by evidentiary rules."
She renews her objection to their receipt in evidence and
requests that I reverse my prior ruling and find that they
are inadmissible. In support, she points to the testimony of
Kelly to the effect that the matters set forth in the
telegrams were not true and correct and that he was, in
fact, available for employment during the periods in
question. Thus, with respect to the statement by the
business manager ofLocal 328 in Oswego, New York,
Kelly testified that he was in attendance at the office of
Local 328 despite the fact that the business manager of that
local had no record or personal recollection of his being
present. Concerning his seeking work within the jurisdic-
tion of Local 557 in Saginaw, Michigan, during the fourth
quarter of 1972, although the business manager of that
local stated that there was an abundance of work in that
area at the time and that he had no record of Kelly seeking
employment, Kelly testified that he was there. Kelly further
testified that he was available at all times for employment
and that, when he attended a convention in Kansas City,
he would have gone to work if he had gotten employment.
In addition, he stated that when he attended meetings of
the BEE organization he was available for work because
any meetings that he might attend would be after work, at
night, or during weekends.
I have concluded that I will not reverse my ruling
admitting into evidence the several telegrams from local
union business managers concerning the availability of
employment in their area. However, I credit the testimony
of Kelly as set forth above. I find that Kelly did not remove
himself from the job market during the period in question
and that he did not incur a willful loss of earnings during
the backpay period.
In his brief, counsel for Respondent Sargent made the
following statement:
Moreover, in determining overtime and doubletime, for
some unknown reason, Mr. O'Connell included all the
overtime hours and all the doubletime hours and then
when dividing through by the number of employees
who had actually worked the overtime and doubletime
he excluded the weekend employees who participated
in said work but did not exclude their hours, obviously
resulting in improper calculations.
On August 26, I wrote to counsel, requesting that they
comment on the foregoing statement and, if Mr. Schwartz
was correct, to advise me as to the proper calculation and
from which exhibit it was derived. Under date of Septem-
ber 1, counsel for the General Counsel advised me as
follows:
This statement is correct. Thus, during the backpay
period, employees who worked at Sargent only on
weekends were excluded from the representative num-
ber of employees used in the gross backpay formula.
However, the overtime hours worked by these weekend
employees were included in the formula. The total
number of overtime hours and the number of regular
employees (excluding weekend employees) are set forth
in Appendices B and C of the Backpay Specification
[G.C. Exh.-l (c)]. The number of weekend employees
during the backpay period is set forth in General
Counsel's Exhibits 12(a), 13, 14 and 15.
It is the position of General Counsel that such
employees who worked only on weekends should not
be included in the representative group for purposes of
computing the gross backpay because these individuals
were not considered by Sargent Electric Company to be
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
regular employees. For a fuller treatment of this issue
see pages 3-4 and page 5 of General Counsel's Brief.
Moreover, these "weekenders" worked only 4-16 hours
per week and it is well established that employees who
work this small number of hours should be excluded
from the representative group on the basis that if they
were included in such group, the average hours would
be distorted. See e.g. Ambrose Distributing Co., 178
NLRB 721, 724-725 (1969). Finally, it should be noted
that both discriminatees were "travelers" and Respon-
dent Sargent's policy of assigning overtime to members
of Respondent IBEW Local 712 was questioned by the
discriminatees in the underlying unfair labor practice.
See the Board's Decision at page 4, lines 37-41; page 5,
lines 5-8; page 6, lines 8-10; page 8, lines 25-33; and
page 9, lines 40-41.
Therefore, since weekend employees were properly
excluded from the representative group, the calcula-
tions as set forth in the Backpay Specification [G.C.
Exh.- l(c)] correctly reflect the gross backpay.
Under date of September 7, counsel for the Charging
Parties wrote me that he was "totally in concurrence with
the Region's and the General Counsel's computations."
Counsel for the other parties did not respond.2
Upon the entire record in the case I conclude and find
that the Respondent Sargent should make whole Homer J.
Lee by paying him the sum of $32,581.77, together with
interest thereon at the rate of 7 percent to the date of
payment, consistent with the Board's decision in Florida
Steel Corporation, 231 NLRB 651 (1977), minus social
security and income tax deductions as required by Federal
and state laws. In addition, the Respondent Sargent shall
pay $328.07 to Lee's account at the appropriate Local
Employees Benefit Board. With respect to Kelly, I con-
clude and find that the Respondent Sargent and the
2 It seems appropriate that this exchange of correspondence be made a
part of the formal record. Accordingly, my letter is marked AU Exh. 1, the
Respondent IBEW should jointly and severally make him
whole by paying to him the sum of $26,761.66, together
with interest thereon at the rate of 7 percent, minus social
security and income tax deductions as required by Federal
and state laws. In addition, both Respondents shall jointly
and severally pay $168.97 to Kelly's account at the
appropriate Local Employees Benefit Board.
On the basis of the foregoing findings of fact, conclu-
sions, and the entire record in this proceeding, and
pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
ORDER
The Respondent, Sargent Electric Company, Pittsburgh,
Pennsylvania, and its officers, agents, successors, and
assigns, shall pay Homer J. Lee the sum of $32,581.77, with
interest thereon at the rate of 7 percent per annum
computed in accordance with Florida Steel Corporation,
231 NLRB 651 (1977). Said Respondent shall also pay the
sum of $328.07 to Homer J. Lee's account at the appropri-
ate Local Employees Benefit Board.
The Respondent, Sargent Electric Company, its officers,
agents, successors, and assigns, and the Respondent
Union, International Brotherhood of Electrical Workers,
Local Union No. 712, AFL-CIO, its officers, agents, and
representatives, shall jointly and severally pay to Norman
Kelly the sum of $26,761.66, plus interest at the rate of 7
percent per annum computed in accordance with Isis
Plumbing & Heating Co., 138 NLRB 716 (1962), and
Florida Steel Corporation, 231 NLRB 651 (1977). Said
Respondents shall also, jointly and severally, pay the sum
of $168.77 to Norman Kelly's account at the appropriate
Local Employees Benefit Board.
reply from counsel for the General Counsel is marked ALJ Exh. 2, and the
reply from counsel for the Charging Parties is marked AU Exh. 3.
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