Sargent Electric Co.Download PDFNational Labor Relations Board - Board DecisionsMar 8, 1978234 N.L.R.B. 1292 (N.L.R.B. 1978) Copy Citation 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. 1292 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 1293 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 1294 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 1295 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. 1296 Copy with citationCopy as parenthetical citation