Schmidlin, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1994

314 N.L.R.B. 219 (N.L.R.B. 1994)

219
314 NLRB No. 41
SCHMIDLIN, INC.
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all of 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.
2 The Respondent excepts to the judge’s finding that Kenneth
Kuchinski was entitled to additional backpay for his work as a help-
er in 1986, prior to the time he became an apprentice. The Respond-
ent argues, inter alia, that the Board’s remand did not include
Kuchinski and that the Board may not now grant additional backpay
because the General Counsel did not except to the judge’s failure in
the original backpay proceeding to grant Kuchinski backpay prior to
January 1987.
We disagree. Kuchinski, as a helper during the period in question,
is within the scope of the Board’s supplemental decision. The Board
found that ‘‘some helpers and students’’ performed bargaining unit
work and remanded to the judge to determine ‘‘which of these indi-
viduals’’ performed unit work and how much backpay was due.
1 312 NLRB 191.
2 Each reference to ‘‘Schmidlin’’ is to owner Charles Schmidlin,
rather than helper James Schmidlin, unless otherwise indicated.
3 Bartkiewicz did the same, as discussed infra. However, the public
interest to be served in this case is the paramount consideration, not
the personal feelings of the individuals involved.
Schmidlin, Inc. and Local Union No. 1076, Inter-
national Brotherhood of Electrical Workers,
AFL–CIO. Case 28–CA–18288
June 30, 1994
SECOND SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS STEPHENS, DEVANEY, AND
BROWNING
On remand from the Board’s Supplemental Decision
and Order dated September 20, 1993, Administrative
Law Judge David L. Evans issued the attached second
supplemental decision on December 6, 1993. The Re-
spondent filed exceptions and a supporting brief. The
Charging Party filed an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the second supplemental
decision and the record in light of the exceptions and
briefs and has decided to adopt the judge’s rulings,
findings,1 and conclusions2 and to adopt the rec-
ommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Schmidlin, Inc., Toledo,
Ohio, its officers, agents, successors, and assigns, shall
take the action set forth in the Order.
Richard F. Mack, Esq., for the General Counsel.
Terrance L. Ryan, Esq., of Cleveland, Ohio, for the Re-
spondent.
John M. Roca, Esq., of Toledo, Ohio, for the Charging Party.
DECISION
DAVID L. EVANS, Administrative Law Judge. I enter the
following findings and conclusions pursuant to the Board’s
remand order dated September 20, 1993.1
There is no evidence that James Cousino, Patrick Cousino,
or John Couture performed any unit work during the backpay
period. Charles Schmidlin admitted that the following em-
ployees did at least some unit work during the backpay pe-
riod: helpers James Schmidlin and Erol Smolenski, and stu-
dents Richard Bartkiewicz, Chris Strause, and Douglas
Lynch. For purposes of computing the remedies for the stu-
dents and helpers, the issues before me are:
A. With how many hours of heating and air-conditioning
(unit) work during the backpay period should each student
and helper be credited?
B. At what hourly rates, for wages and benefit funds,
should the students and helpers be compensated?
A. Hours of Unit Work
Schmidlin2 gave inexact, unsupported estimates of how
much unit work James Schmidlin and Smolenski did;
Schmidlin testified that James Schmidlin did unit work
‘‘maybe 20 percent’’ of the time; and Smolenski did unit
work, ‘‘maybe a third’’ of the time. I have discredited
Schmidlin on other matters; I have every reason to believe
that his proprietary interest in this case colored these esti-
mates, as well. I do not find these estimates by Schmidlin
to be probative of anything. Schmidlin made no such esti-
mates for Strause, Lynch, or Bartkiewicz; however, each of
those three employees was called to testify by Respondent.
Bartkiewicz testified that he was a student and a part-time
employee for the predecessor company, A-1 Schmidlin; he
was not asked if he was also a part-time employee for Re-
spondent Schmidlin, Inc., but the records appear to so indi-
cate. He was detailed in his testimony; all his work was
doing the heating and air conditioning work covered by the
unit description. Whether Bartkiewicz can properly be con-
sidered a ‘‘student,’’ for the purposes of determining the
hourly rates, is another issue to be addressed below.
Student Strause, who alternated workweeks with student
Lynch, testified on direct examination that he did only shop,
nonunit, work. However, on cross-examination, Strause first
acknowledged that he could remember four field jobs, two
of which involved unit work. Then Strause acknowledged
that, ‘‘more than four times,’’ he assisted on a vacuum truck,
a truck that was used in the field for other unit work. On
redirect examination, Strause estimated the truck-helping jobs
to have been ‘‘at least three,’’ and he testified that they
lasted about 2 hours each. Then Strause testified that the unit
jobs which he had not originally admitted took 8 hours each.
Strause was not a credible witness; for his own reasons, he
was plainly attempting to limit the amount of exposure that
Respondent has because of this case.3
220 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 The required amounts for apprentices in their first 8 months are,
per hour: wages, $7.56; Pension Fund, $1; Health and Welfare Fund,
$1.50; Apprenticeship Administration Fund, 19 cents; and the Na-
tional Electrical Benefit Fund (NEBF), 23 cents.
5 The wage for apprentices during their second 8-month tenure is
$9.13 per hour; the benefit fund contributions are the same as in the
first 8 months, except that NEBF is 28 cents.
6 The per hour journeyman amounts are: wages, $16.77; Pension
Fund, $1; Health and Welfare Fund, $1.85; and Apprenticeship Ad-
ministration Fund, 19 cents. Required contributions to the NEBF are
3 percent of gross pay.
7 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
8 See New Horizons for the Retarded, 283 NLRB 1173 (1987).
Student Lynch testified that he did unit, and nonunit,
work; he was not asked by Respondent’s counsel for any
percentage estimates.
I have discredited the testimony of Schmidlin and Strause,
and the testimony of Bartkiewicz, on this issue, was con-
sistent with the specification. Therefore, I shall rely entirely
on the records that were adduced at trial to make the re-
quired determinations of which students and helpers did unit
work during the relevant period.
As noted in my original decision, for some employees Re-
spondent’s pre-1987 records do distinguish between unit and
nonunit work; beginning in 1987, none of the records make
the distinction. For the employees who were awarded remedy
in my original decision, I noted that the 1987 records distin-
guished between ‘‘field’’ and other work; and I counted all
field work as unit work, refusing to resolve the ambiguity in
favor of the wrongdoer. Respondent’s pre-1987 records do
not distinguish between unit and nonunit, or even ‘‘field’’
and other work, for the students and helpers. Again the ambi-
guity will not be resolved in favor of the wrongdoer; I shall
include all work as unit work in computing the remedies for
the students and helpers.
B. Rates of Pay
There was no contractual job title of ‘‘student’’ or ‘‘help-
er.’’ The contract contained only rates for journeymen and
apprentices. The issue is whether the students and helpers
should be compensated at the journeyman rate, the apprentice
rate, or some other rate.
I reject the two extremes argued by the parties, the indi-
vidually negotiated rates or the journeyman rates. Respondent
was obviously using the individuals involved to circumvent
its contractual obligations. The Board will not become a
party to this abrogation of lawful duty by holding the em-
ployees to the individually negotiated rates and award no
backpay to the students and helpers, as Respondent proposes.
Neither will the Board act punitively and hold that, because
the students and helpers were not in an apprenticeship pro-
gram, they must be held entitled to remedy at journeyman
rates, as General Counsel and the Union propose. The stu-
dents and helpers were not licensed apprentices, but they
were even less journeymen.
With two exceptions, James Schmidlin and Bartkiewicz, I
find it appropriate to award to the students and helpers the
lowest negotiated rates, those of apprentices in their first 8
months of an approved program. Except for James Schmidlin
and Bartkiewicz, the employees, who were mostly working
after school, were most unlikely to ever have been slotted at
anything other than the lowest negotiated wage and benefit
rates.4
The negotiated contract contains graduated wages and fund
contributions for apprentices at 8-month intervals of employ-
ment. This is a negotiated agreement that even the least
skilled employees are worth more after 8 months. James
Schmidlin worked a full 8 months by the end of the first
quarter of 1986, and his remedy for that period is the same
as the other students and helpers in their first 8 months of
employment. Additionally, during three of the four quarters
following the first quarter of 1986, James Schmidlin worked
another 5 months. For that concluding period of his employ-
ment, I shall specify wages and benefits equivalent to the ne-
gotiated rate for an apprentice’s second 8-month period of
employment.5
Bartkiewicz worked 33.25 hours during the first quarter of
1985. He tried to pass himself off as a ‘‘student,’’ at trial,
but he was paid $10 per hour, far more than the $3.65 per
hour that the real students were paid. The discrepancy is so
great that it causes me to believe, and find, that Respondent
employed Bartkiewicz as a journeyman, and I will order his
remedy at journeyman rates.6
Finally, although not individually named in the Board’s re-
mand, Kenneth Kuchinski is within the ‘‘helper’’ class of
employees covered. Kuchinski entered into an apprenticeship
program in January, 1987, and the previous order grants him
remedy from that point. However, during the last two quar-
ters of 1986, Kuchinski performed 205.30 hours of unit
work, as Respondent’s records show. Kuchinski necessarily
worked as a helper during those quarters, and he is entitled
to the same remedy as the other helpers during their first 8
months.
Backpay computations are shown in Appendix A. Com-
putations for required additional IBEW fund contributions
are shown in Appendix B. As I did in my original decision,
I averaged the 4 weeks before, and the 4 weeks after, the
November 1985 period for which records had been inno-
cently destroyed.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended7
ORDER
The Respondent, Schmidlin, Inc., Toledo, Ohio, its offi-
cers, agents, successors, and assigns, shall
1. In addition to moneys ordered previously by the Board,
pay the employees listed below the sums set opposite their
respective names, with interest,8 in accordance with appro-
priate deductions for taxes that are required to be held by
Respondent under Federal and state laws:
221SCHMIDLIN, INC.
Employee Amount
Robert Bartkiewicz $225.10
Kenneth Kuchinski 1,082.36
Douglas Lynch 606.17
James Schmidlin 3,828.02
Erol Smolenski 1,026.64
Chris Strause 391.17
2. In addition to the amounts ordered previously by the
Board, pay to the International Brotherhood of Electrical
Workers’ funds listed below, on behalf of the employees in-
dicated, the amounts set opposite each such employee’s
name.9 If any of the funds refuse to accept such moneys on
behalf of each such employee, the amounts indicated shall be
paid to the individual employees.
Employee Pension Health and Welfare ApprenticeshipAdministration
National Electrical
Benefit
Robert Bartkiewicz $33.25 $61.51 $6.32 $16.73
Kenneth Kuchinski 289.35 434.03 54.98 66.55
Douglas Lynch 147.25 220.88 27.99 33.88
James Schmidlin 925.34 1,388.03 175.82 227.94
Erol Smolenski 380.60 570.91 72.32 87.54
Chris Strause 96.00 144.00 17.34 10.47
$1,871.79 $1,532.03 $354.77 $443.11
3. Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
lllllll
9 Any additional amounts due the funds shall be paid in accordance with
the criteria set forth in Merryweather Optical Co., 240 NLRB 1213, 1216 fn.
7 (1979).
APPENDIX A
Year/Quarter Pay Period Unit Hours Gross Backpay Interim Earnings Net Backpay
Richard Bartkiewicz’ Backpay
1985/01 01/26 15.00 $251.55 $150.00 $101.55
02/02 12.75 213.82 127.50 86.32
02/16 2.00 33.54 20.00 33.54
Bartkiewicz in 1985/01 33.25 $557.60 $332.50 $225.10
Total Backpay Due Bartkiewicz $225.10
Kenneth Kuchinski’s Backpay
1986/03 09/06 10.05 $77.99 $42.00 $35.99
09/13 22.00 170.72 88.00 82.72
09/20 32.50 252.20 132.00 120.20
09/27 19.50 151.32 78.00 73.32
Kuchinski in 1986/03 84.05 $652.23 $340.00 $312.23
1986/04 10/04 19.25 $149.38 $77.00 $72.38
10/11 20.50 159.08 82.00 77.08
10/23 14.00 108.64 56.00 52.64
11/01 16.50 128.04 66.00 62.04
11/08 34.50 267.72 138.00 129.72
11/15 8.05 62.47 34.00 28.47
11/22 42.00 325.92 168.00 157.92
11/29 16.50 128.04 66.00 62.04
12/06 34.00 263.84 136.00 127.84
Kuchinski in 1986/04 205.30 $1,593.13 $823.00 $770.13
Additional Backpay Due Kuchinski $1,082.36
Douglas Lynch’s Backpay
1985/01 01/26 4.50 $34.92 $16.43 $18.49
02/16 5.00 38.80 18.25 20.55
222 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
APPENDIX A—Continued
Year/Quarter Pay Period Unit Hours Gross Backpay Interim Earnings Net Backpay
03/02 5.00 38.80 18.25 20.55
03/16 24.00 186.24 87.60 98.64
Lynch in 1985/01 38.50 $298.76 $140.53 $158.23
1985/02 04/13 2.50 $19.40 $9.12 $10.28
05/04 13.00 100.88 47.45 53.43
05/18 21.50 166.84 78.48 88.36
06/22 4.75 36.86 17.35 19.51
06/29 19.50 151.32 71.18 80.14
Lynch in 1985/02 61.25 $475.30 $223.58 $251.72
1985/03 07/13 8.50 $65.96 $31.02 $34.94
07/20 12.00 93.12 43.80 49.32
07/27 15.50 120.28 56.58 63.70
08/03 7.50 58.20 26.38 31.82
08/10 4.00 31.04 14.60 16.44
Lynch in 1985/03 47.50 $368.60 $172.38 $196.22
Total Backpay Due Lynch $606.17
James Schmidlin’s Backpay
1985/03 08/10 23.00 $178.48 $77.05 $101.43
08/31 15.99 124.08 56.25 67.83
09/07 10.00 77.60 37.50 40.10
09/14 17.00 131.92 64.69 67.23
09/21 17.50 135.80 65.13 70.67
09/28 23.00 178.48 86.25 92.23
J. Schmidlin in 1985/03 106.49 $826.36 $386.87 $439.49
1985/04 10/05 36.50 $283.24 $139.69 $143.55
10/12 31.75 246.38 117.18 129.20
10/19 22.50 174.60 90.00 84.60
10/26 7.00 54.32 28.00 26.32
11/02 14.50 112.52 58.00 54.52
11/09 14.50 112.52 58.00 54.52
11/16 14.50 112.52 52.00 60.52
11/23 14.50 112.52 52.00 60.52
12/07 4.00 31.04 16.00 15.04
12/14 4.50 34.92 18.00 16.92
12/21 5.50 42.68 22.00 20.68
12/28 4.00 31.04 16.00 15.00
J. Schmidlin in 1985/04 173.00 $1,342.48 $666.87 $675.61
1986/01 01/18 6.50 $50.44 $26.00 $24.44
01/25 3.00 23.28 12.00 11.28
02/01 4.00 31.04 16.00 15.04
02/08 5.50 42.68 22.00 20.68
03/01 1.50 11.64 6.00 5.64
03/08 4.00 31.04 16.00 15.04
03/29 1.50 11.64 6.00 5.64
J. Schmidlin in 1986/01 26.00 $201.76 $104.00 $97.76
1986/02 05/03 6.00 $54.78 $24.00 $30.78
06/07 15.00 136.95 47.50 89.45
06/14 8.50 7.60 34.00 43.60
J. Schmidlin in 1986/02 29.50 $269.34 $105.50 $163.84
1987/01 01/03 16.00 $146.08 $80.00 $66.08
01/10 15.50 141.52 77.50 64.02
223SCHMIDLIN, INC.
APPENDIX A—Continued
Year/Quarter Pay Period Unit Hours Gross Backpay Interim Earnings Net Backpay
01/17 39.50 360.64 197.50 163.14
01/24 40.00 365.20 200.00 165.20
o/t 1.50 13.70 7.50 6.20
01/31 26.25 239.66 131.25 108.41
02/07 35.50 324.12 177.50 146.62
02/21 8.00 73.04 40.00 33.04
02/28 30.50 278.47 152.50 125.97
03/07 24.00 219.12 120.00 99.12
03/14 38.30 349.68 191.50 158.17
03/21 8.00 73.04 40.00 33.04
03/28 27.30 249.25 136.50 112.75
J. Schmidlin in 1987/01 310.35 $2,833.50 $1,551.75 $1,281.75
1987/02 04/04 39.25 $358.35 $196.50 $161.85
04/11 30.00 273.90 150.00 123.90
04/18 28.00 255.64 140.00 115.64
04/25 24.50 223.69 122.50 101.19
05/02 38.50 351.51 192.50 159.01
05/09 37.50 342.38 187.50 154.88
05/16 31.50 287.60 157.50 130.10
05/23 25.00 228.25 125.00 103.25
05/30 29.00 264.77 145.00 119.77
J. Schmidlin in 1987/02 283.25 $2,586.07 $1,416.50 $1,169.57
Total Backpay Due J. Schmidlin $3,828.22
Erol Smolenski’s Backpay
1986/03 07/26 17.75 $137.74 $79.88 $57.86
08/02 15.00 116.40 73.68 42.72
08/23 18.75 145.50 84.38 61.12
09/06 4.75 36.86 21.38 15.48
Smolenski in 1986/03 56.25 $436.50 $259.32 $177.18
1987/01 01/03 29.25 $226.98 $131.63 $95.35
01/10 25.00 194.00 112.50 81.50
01/17 31.25 242.50 140.63 101.87
01/24 21.75 168.78 92.88 75.90
02/04 32.50 252.20 146.50 105.70
o/t 5.00 38.80 33.75 5.05
02/14 29.75 230.86 133.88 96.98
02/28 24.00 186.24 108.00 78.24
o/t 1.75 13.58 11.81 1.77
03/07 32.25 250.26 145.13 105.13
o/t 0.50 3.88 3.38 0.50
03/14 38.30 297.21 191.50 105.71
03/21 26.30 204.09 118.35 85.74
03/28 26.75 207.58 120.38 87.20
Smolenski in 1987/01 324.35 $2,516.96 $1,490.32 $1,026.64
Total Backpay Due Smolenski $1,203.82
Chris Strause’s Backpay
1985/01 03/30 1.50 $11.64 $8.67 $2.97
1985/02 04/13 22.75 176.54 83.04 93.50
05/11 6.50 50.44 23.73 26.71
05/25 11.00 85.36 40.15 45.21
06/08 22.00 170.72 80.30 90.42
06/15 8.00 62.08 29.20 32.88
06/22 6.50 50.44 23.73 26.71
224 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
APPENDIX A—Continued
Year/Quarter Pay Period Unit Hours Gross Backpay Interim Earnings Net Backpay
06/29 12.50 97.00 45.63 51.37
Strause in 1985/02 49.00 $380.24 $178.86 $201.38
1985/03 07/06 4.00 $31.04 $14.60 $16.44
07/20 32.00 248.32 116.80 131.52
07/27 9.50 73.72 34.86 38.86
Totals for 1985/03 45.50 $353.08 $166.26 $186.82
Total Backpay Due Strause $391.17
APPENDIX B
ADDITIONAL IBEW FUND CONTRIBUTIONS REQUIRED
Employee Year/Quarter Unit Hours Pension Health andWelfare
Apprenticeship
Administration
National
Electrical
Benefit
Bartkiewicz 1985/01 33.25 $33.25 $61.51 $6.32 $16.73
Total Contrbutions for Bartkiewicz $33.25 $61.51 $6.32 $16.73
Kuchinski 1986/03 84.05 $84.05 $126.08 $15.97 $19.33
1986/04 205.30 205.30 307.95 39.01 47.22
Additional Contributions for Kuchinski $289.35 $434.03 $54.98 $66.55
Lynch 1985/01 38.50 $38.50 $57.75 $7.32 $8.86
1985/02 61.25 61.25 91.88 11.64 14.09
1985/03 47.50 47.50 71.25 9.03 10.93
Total Contributions for Lynch $147.25 $220.88 $27.99 $33.88
J.Schmidlin 1985/03 106.49 $106.49 $159.74 $20.23 $24.49
1985/04 169.75 169.75 254.63 32.25 23.00
1986/01 26.00 26.00 39.00 4.94 5.98
1986/02 29.50 29.50 44.25 5.61 8.26
1987/01 310.35 310.35 465.53 58.97 86.90
1987/02 283.25 283.25 424.88 53.82 79.31
Total Contributions for J. Schmidlin $925.34 $1,388.03 $175.82 $227.94
Smolenski 1986/03 56.25 $56.25 $84.38 $10.69 $12.94
1987/01 324.35 324.35 486.53 61.63 74.60
Total Contributions for Smolenski $380.60 $570.91 $72.32 $87.54
Strause 1985/01 1.50 $1.50 $2.25 $0.29 $0.35
1985/02 49.00 49.00 73.50 9.31 11.27
1985/03 45.50 45.50 68.25 7.74 10.47
Total Contributions for Strause $96.00 $144.00 $17.34 $22.09