Sargent Electric Co.

National Labor Relations Board - Board Decisions

Aug 31, 1979

244 N.L.R.B. 763 (N.L.R.B. 1979)

SARGENT ELECTRIC CO.
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
August 31, 1979
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS JNKINS, MURPHY, ANt) TRUESDAI.E
On April 20, 1979, Administrative Law Judge Ivar
H. Peterson issued the attached supplemental Deci-
sion in this proceeding. Thereafter, Respondent Em-
ployer filed exceptions and a supporting brief, in
which Respondent Union joined,' and the General
Counsel filed an opposition to the exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings.' and
conclusions of the Administrative Law Judge.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that:
1. Respondent Sargent Electric Company, Pitts-
burgh, Pennsylvania, its officers, agents, successors.
and assigns, pay to Homer J. Lee the sum of
$32,414.59, plus interest thereon at the rate of 6 per-
cent per annum, computed in accordance with the
formula set forth in Isis Plumbing & Heating Co., 138
NLRB 716 (1962), less any tax withholding required
by Federal and state law, and pay the sum of $306.81
to Homer J. Lee's account at the appropriate local
employees benefit board.
2. Respondent Sargent Electric Company, Pitts-
burgh, Pennsylvania, its officers, agents, successors.
and assigns, and Respondent International Brother-
hood of Electrical Workers, Local Union No. 712,
We find no merit in the General Counsel's request to treat as untimely
filed Respondent Union's joinder in the exceptions filed by Respondent Em-
ployers.
2 Respondents have excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to over-
rule an administrative law judge's resolutions with respect to credibility un-
less the clear preponderance of all of the relevant evidence convinces us that
the resolutions are incorrect. Standard Dry Wall Products. Inc. 91 NLRB
544 (1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined
the record and find no basis for reversing his findings
AFL CIO, Pittsburgh. Pennsylvania. its officers.
agents. and representatives, jointly and severally, pav
to Norman J. Kelly the sum of $26,534.68, plus inter-
est thereon at the rate of 6 percent per annum, com-
puted in accordance with the formula set forth in l.ui.
Plumbing & Heating Co., supra, less any withholding
required by Federal and state law, and pas the sum
of$166.45 to Norman J. Kelly's account at the appro-
priate local employees benefit hoard.
SUPPLEMENTAI. DECISION
I AR H. PETIRSON, Administrative l.aw Judge: On Octo-
ber 6. 1977. 1 issued my Decision and Order in this consoli-
dated backpay proceeding. The persons involved were Nor-
man J. Kelly and Homer J. Lee. I made the following
findings and issued the following recommendations:
(a) With respect to Kelly. I found that Respondent Sar-
gent and Respondent International Brotherhood f Electrl-
cal Workers, Local Union No. 712. AFI, CIO. herein re-
ferred to as Respondent IBEW', should jointls and se'erall\
make Kelly whole by paying to him the sum of $26.761.66.
together with interest thereon at the rate of 7 percent. mi-
nus social security and income tax deductions as required
by Federal and state laws: further, I recommended that
both Respondents ointly and severally pas $168.97 to
Kelly's account at the appropriate local employees benefit
board.
(b) With respect to Lee. I directed that Respondent Sar-
gent make him whole by paying him the sum of $32.581.77.
together with interest thereon at the rate of 7 percent to the
date of payment, minus social security and income tax de-
ductions as required by Federal and stale laws; in addition.
I recommended that Respondent Sargent pay $328.07 to
Lee's account at the appropriate local employees benefit
board.
On March 8. 1978, the Board issued an Order remanding
the proceeding to me "for appropriate action including re-
opening the hearing if necessary" and directing that I "pre-
pare and serve on the parties a Supplemental Decision, set-
ting forth the resolution of the issues discussed above, and
his findings and conclusions with respect to the hackpay
awards." With respect to the "issues discussed above." the
Board stated:
(a) Respondents contend. inter aia, that the back-
pay computations as listed in the specification were
inaccurate on the grounds that the calculations e-
eluded weekend employees from the total number of
employees used in the computations, but included the
hours they worked, thereby giving rise to an inflated
average number of overtime hours worked by the rep-
resentative complement in the backpay periods. We
find merit in Respondent's contention.'
The Board noted that I recommended that the interest rate on the back-
pay award be computed at the rate of 7 percent per annum in accordance
with Florida Steel Corporation, 231 NLRB 651 (1977) The Board stated that
"the method of determining the interest rate as set torth n 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 s
directed to modify the backpaN awards accordingl "
244 NLRB No. 122
763
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board noted that the field examiner who made the
computations testified that in making them:
(h) lie excluded weekend employees in determining
the number of employees hut included the hours they
worked in his final overtime computations. The only
explanation given for this method of computation ap-
pears in the reply rom counsel for the Charging Par-
ties to the Administrative Law Judge concerning this
issue, which states in pertinent part that, 'a memoran-
dum 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 Gen-
eral Counsel's method of calculation. The discrimi-
natees 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 comple-
ment. Only those hours actually worked by the repre-
sentative complement should be considered.
The Board went on to state that counsel for the General
Counsel, in her brief to me. stated that all electricians em-
ployed by Respondent Sargent, excluding weekenders,
"composed a representative employee group. Therefore, we
find that the weekenders and the hours they worked should
be excluded from the backpay calculations since weekend-
ers are not part of the representative employee group. The
record is insufficient to determine the exact effect this find-
ing has on the amount of backpay. Therefore, we shall re-
mand this proceeding." It directed that I "recompute Re-
spondent's backpay obligation" and "take such additional
evidence as may be required to that end."
(c) Finally, the Board found that I "rejected Respon-
dent's other defenses," and "in large measure failed to state
the basis for such rejection. Accordingly, we direct him to
state fully his reasons for rejecting Respondent's various
other defenses."2
On April 24, 1978, I received a letter from counsel for the
General Counsel submitting recomputations of backpay in
compliance with the Board's Order remanding the proceed-
ing to me. Copies of the letter together with all enclosures
were sent to all parties to this proceeding. No response
thereto has been received from any party. Accordingly, the
total amounts due Lee and Kelly, including reimbursable
2 The Board noted that counsel for the General Counsel had excepted to
my admission into evidence telegrams from various IBEW locals which were
responses to inquiries made by Field Examiner O'Connell with respect to the
efforts of Kelly to obtain employment through representatives of those lo-
cals. Counsel for the General Counsel, in her brief, argued that these tele-
grams were not properly authenticated and were, at the very least, self-
serving and, moreover, were obviously hearsay in that the individuals who
allegedly signed the telegrams were not subject to cross-examination as re-
quired by the rules of evidence. Accordingly, she renewed her objection to
their receipt and requested that I reverse my prior ruling and find that the
telegrams were inadmissible, pointed to the fact that 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. In my Decision I stated that I would not reverse my ruling
admitting the several telegrams into evidence but that I credited Kelly's
testimony as set forth and found that he "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."
medical insurance premiums, are as follows: Homer J.
Lee $32.414.59 and Norman J. Kelly $26,534.68. Coun-
sel further stated that as a result of the reduction in the
gross backpay due the discriminatees the amount owing to
the appropriate local employees benefit board is also re-
duced. Pursuant to these revisions, the amounts due are
$306.81 for Lee and $166.45 for Kelly.
In its decision, as stated above, the Board found that I
had computed interest on the backpay award incorrectly, in
that I provided that the interest be computed at the rate of
7 percent per annum. In compliance with the Board's direc-
tion I hereby modify the recommended backpay awards to
provide that interest be computed at the rate of 6 percent
per annum.
With respect to the final matter remanded to me. I have
reconsidered the record pertaining to the other defenses of
Respondents and, accordingly, make the following findings
concerning them. On cross-examination by counsel for Re-
spondent Sargent, Kelly stated that it was not true that in
September 1974 he spent from 10 to 15 days in Kansas City
relative to the election of the president of the IBEW. Asked
whether he spent any time in September or October of that
year in Kansas City concerning the candidacy of Al White
fbr president of the IBEW, Kelly replied that he was there
for a few days, approximately 5 or 6. Kelly was the carn-
paign manager for White under a committee for a fair and
open IBEW election and convention. During 1973 Kelly
was national commander of the Brotherhood of Electrical
Employees. That organization issued a newspaper in 1973
and 1974, and Kelly wrote articles for it. Kelly testified that
at the time he prepared the article fbr the March 1974 issue
concerning a legal fund for the organization he could not
state where he was employed. He further testified that the
article "could have been written one month, two months, or
even three or four months before this was in the paper."
Kelly further related that he. as well as other officers, at-
tended meetings in various parts of the country but only
one or two. one in Miami, Florida. and the other in Las
Vegas, Nevada.
After leaving his employment with Respondent Sargent,
Kelly was next employed by a concern known as Gibbs and
Hill. He left that employment when he was told that he
would be laid off. After leaving Gibbs and Hill. Kelly went
to Wilkes-Barre, Pennsylvania, and stayed there for some
months. He left Wilkes-Barre because he was laid off. He
then obtained a job in Salt Lake City, Utah, and worked
there approximately I week: he then quit in order to go
closer to his home in Benton, Ohio, to get a job. He next
obtained work with the Bechtel Power Corporation in
York, Pennsylvania. He next worked for Bowing Electric, a
concern in Michigan. Kelly next found employment with
Staelgrave Electric. He worked there approximately 7 days
when he quit. He testified that he worked for about 1 week
in July 1973 for State Electric in Phoenix. Arizona. He next
worked for Scott Butner Corporation near Phoenix and
stayed there 2 or 3 months when he was laid off. His recol-
lection is that he then went to work for Commonwealth
Electric, also near Phoenix, and was laid off when the job
terminated. He also worked for the Bechtel Corporation in
Arizona in 1973 and was then laid off. He then left and took
employment in the last 3 months of 1973 in Salt Lake City,
764
SARGENT ELECTRIC CO.
Utah, with Wasach Electric. Hie was next employed b,,
Howard P. Fole' in Pocatello. Idaho. and estimated that he
worked there about I month. In the second quarter of 1974
he went to work for Electrical Sales and Engineering in
Milwaukee and stayed there, b his estimate, about 2 weeks
when "the contractor was run off the job by the general
contractor." Kelly next worked for Hanes City Electric in
Tampa. Florida. worked there approximately I week, and
was then discharged. He then went from Tampa to work fotr
Edling Electric, Inc.. in North L)akota. and worked there
approximately 45 days when he was laid off. ie then went
to Rock Springs. Wyoming. and worked there approxi-
mately 2 weeks and was then laid off. While he could not
remember exactly, Kelly stated that there was "a good
chance" that he did not work at all in August 1974. Kell
acknowledged that it was late in September that he went to
work on "the North Dakota job." Kelly stated that it was
"a good possibility" that during the 8 years before he testi-
fied he had not worked for any one concern for more than 6
months.
In her brief counsel for the General Counsel points out
that Kelly incurred expenses for mileage, food, and lodging
while seeking and/or maintaining interim employment. In
computing the backpay in this matter Field Examiner
O'Connell testified that the mileage claimed in the backpay
specification was determined by using the Rand McNally
standard highway guide for mileage between points in ex-
cess of 50 miles. The only type of mileage that was not
checked in the Rand McNally atlas was that claimed for
local travel. The mileage rate used was 10 cents per mile. It
is well established that mileage incurred by a discriminatee
in seeking interim employment is a deductible expense from
interim earnings. See Ace Tank & Hearer (.. 167 NLRB
663. 667 (1967). Finally. expenses for food and lodging are
claimed for Kelly while he was seeking employment or
working on jobs away from his residence. The amount
claimed for such expenses is $20 per da. Field Examiner
O'Connell testified that in his opinion this was a reasonable
amount in view of the fact that employees of the United
States (;overnment were receiving $25 per diem during the
backpay period. Expenses for food and lodging are consid-
ered deductible from interim earnings. See Charles 7. Rein-
oltls Box (Compan'. 155 NLRB 384 (1965), where the Board
adopted the finding of the trial examiner in this regard.
Moreover, it should be noted that Respondents have not
challenged the reasonability of the expenses claimed in the
backpay specification nor the correctness of the expenses.
In fact. Field Examiner O'Connell testified with speciticitx
as to the type of expense, how and why it was incurred. and
the amount allowed by the Regional Office and the reasons
therefor. Accordingly. I agree with counsel for the General
Counsel that all expense items claimed as offsets to interim
earnings be deductible from those earnings.
With respect to willful loss, Respondents have the burden
of establishing that the discriminatees engaged in conduct
that would constitute willful loss of earnings. Although it is
true that a discriminatee must make a good-faith effort to
search for employment during the backpay period. the
Board has held that a backpay claimant "should receive the
benefit of any doubt rather than the Respondent. the
wrongdoer responsible for the existence of an, uncertaint
and against whom any uncertainty should he resolved.'
United Aircraft Corporation, 2(04 NLRB 10 68 (1973). 1 so
find.
76S