Storto Sons Construction Co., Inc.

National Labor Relations Board - Board Decisions

Mar 30, 1982

260 N.L.R.B. 1298 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Storto Sons Construction Co., Inc. and Bricklayers,
Masons and Plasterers' Local Union No. 43 of
the Finger Lakes Region. Case 3-CA-8448
March 30, 1982
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On June 12, 1981, Administrative Law Judge
Jerry B. Stone issued the attached Supplemental
Decision in this proceeding.' Thereafter, the Re-
spondent and the Charging Party filed exceptions
and supporting briefs; the General Counsel filed
cross-exceptions and a supporting brief; and the
Charging Party filed an answering brief to the Re-
spondent's 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 Supplemental Decision in light of the ex-
ceptions and briefs and has decided to affirm the
rulings, findings, and conclusions of the Adminis-
trative Law Judge2 and to adopt his recommended
Order. 3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Storto Sons
Construction Co., Inc., Rochester, New York, its
officers, agents, successors, and assigns, shall take
the action set forth in the said recommended
Order.
'The Board's original Decision and Order in this case is reported at
245 NLRB 1360 (1979) It was enforced by entry of Consent Judgment
by the United States Court of Appeals for the Second Circuit on March
5, 1980.
2 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Prnducls.
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
3 In accordance with his dissent in Olympic Medical Corporation, 250
NLRB 146 (1980), Member Jenkins would award interest on the backpay
due based on the formula set forth therein
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
JERRY B. STONE, Administrative Law Judge: This pro-
ceeding to determine backpay, if any, due discriminatees
Stephen M. Corcoran, Jr., Herman Davis, Philip DeSain,
Harry J. Serrett, Jr., Dominick Vedora, and John Woz-
nick, pursuant to the remedial order issued by the Board
on September 28, 1979 (reported at 245 NLRB 1360, and
as enforced by entry of consent judgment by the United
States Court of Appeals for the Second Circuit on
March 5, 1980), was held on January 5, 1981, in Roches-
ter, New York.
Following such hearing, the parties have supplemented
and/or clarified the record and positions taken by certain
stipulations and exhibits which have been received into
the record.
The issues concern (1) the reasonableness of the Gen-
eral Counsel's formula for establishment of constructive
earning periods for the discriminatees, (2) whether, in re-
lation to such reasonable formula, there would have been
available jobs or work for the discriminatees after their
application for work and discriminatory consideration
therefor by the Respondent, and (3) the dates that the
discriminatees and certain other employees applied for
work and were either hired or discriminatorily consid-
ered for employment. The major issues concern (1)
whether Davis applied for work before November 23,
1977, and when Serrett, Vedora, and Woznick applied
for work with relationship to the time the Respondent
determined to hire employees David, Jacobs, and Rago,
and (2) whether, if jobs were not available at the time
when the discriminatees applied for work, jobs would
have been available at a later date.
All parties were afforded full opportunity to partici-
pate in the proceeding. Briefs have been filed by all par-
ties and have been considered.
Upon the entire record in this case and from my obser-
vation of the witnesses, I hereby make the following:
FINDINGS OF FACT
I. BACKPAY DI)l'ERMINATIONS
A. Philip DeSain and Herman Davis-the Laborers
I. Philip DeSain
It is undisputed that Philip DeSain, a laborer, made ap-
plication for employment on October 17, 1977. It is also
undisputed that the Respondent did not employ any la-
borers until November 23, 1977. The General Counsel's
backpay formula constructs that DeSain would have ini-
tially commenced working during the week ending No-
vember 23, 1977, and would have continued until he
became disabled on June 28, 1978. The exhibit record re-
lating to earnings of laborers reveals that there were 3 to
17 laborers employed during the weeks commencing on
the week ending on November 23, 1977, and continuing
to June 28, 1978.
As has been indicated, the Respondent disputes that a
discriminatee would have been employed if there were
260 NLRB No. 173
1298
STORTO SONS CONSTRUCTION CO.
no positions available on the date of his application for
hiring. In effect, this appears an attempt to relitigate the
finding of discrimination in the underlying case. This de-
fense is rejected. The General Counsel, where there has
been a finding of discriminatory consideration, only has
to establish a "reasonable" formula for determining back-
pay, if any. In the instant case it is clearly reasonable to
believe that, absent strong and persuasive evidence oth-
erwise, DeSain would have been employed, absent dis-
criminatory considerations, when the first laborers were
hired (during the week ending November 23, 1977) and
would have continued as a laborer as long as laborers
were employed and DeSain was able to work. The Gen-
eral Counsel has conceded in effect that DeSain became
disabled on June 28, 1978, and there is no contrary evi-
dence. Thus, the facts establish that the period for com-
puting loss of earning' during the backpay period for
DeSain commenced on November 23, 1977, and ended
on June 28, 1978.
There is no dispute as to the appropriate measure of earn-
ings that each laborer discriminatee, including DeSain,
would have received for each week of discrimination.
Such measure was alleged in effect and admitted to be
the average gross earnings per week received by all la-
borers employed by Storto Sons Construction Co., Inc.,
during each week of the backpay period of the discrimin-
atees, excepting foremen and employees who worked
less than 24 hours per week when the scheduled work-
week was 5 days or more. It is undisputed and clear that
the General Counsel has used such measure of earnings
in computing DeSain's gross earnings during the backpay
period.
The General Counsel has conceded certain interim
earnings for DeSain during the backpay period. The Re-
spondent, whose obligation is to establish offsets such as
interim earnings, has presented no evidence of interim
earnings.
The General Counsel's backpay computations have
used the above referred measure of earnings for gross
earnings and has subtracted from said gross earnings the
conceded interim earnings to determine the net backpay
due DeSain on a quarterly basis. Considering such for-
mula, I conclude and find that such formula is a reason-
able and proper formula for the determination of back-
pay for DeSain.
There is no dispute as to the mathematical accuracy of
the General Counsel's computations. The formula and
computations are hereby found to be reasonable and cor-
rect to reflect, as set out below, the determined net back-
pay2 due DeSain as follows:
Quarter Gross Earnings Net Interim Net lackpayEarnings
1977-4th
1978-1st
1978-2d
$1,270.00
3,662.67
4,598.35
$ 0
1,615.05
3,168.41
$1,270.00
2,047.62
1,429.94
DeSain's backpay period actually commenced on October 17, 1977,
but under the formula used, it is assumed that actual potential hackpay
loss did not begin until the week ending November 23, 1977
2 With interest thereon as set out later herein.
2. Herman Davis
It is undisputed that Herman Davis, a laborer, made
application for employment in late November 1977. The
General Counsel alleges and contends that Davis' back-
pay period commenced during the week ending Novem-
ber 23, 1977, and ended on November 22, 1978. The Re-
spondent disputes whether Davis would have received
employment since it was uncertain when Davis actually
applied for work. Essentially, for the same reasoning set
forth with respect to DeSain, such contention is rejected.
The exhibits and testimony reveal that Davis applied
for work in late November 1977, that laborers were em-
ployed from during the week ending November 23, 1977,
to November 22, 1978. At the hearing the General Coun-
sel and the Respondent stipulated that if Davis did not
apply for work before November 21, 1977, that the next
laborer employees employed after the week ending on
November 23, 1977, were initially employed during the
week ending on January 11, 1978.3
The formula utilized for determining gross earnings is
the same found appropriate for the backpay determina-
tion for DeSain. The General Counsel's computations
contain conceded interim earnings. The Respondent's
burden is to establish offsets such as interim earnings.
The Respondent, however, has presented no additional
evidence as regards interim earnings by Davis. There is
no dispute as to the General Counsel's mathematical
computations.
The only real issue is when the potential period for
backpay earnings commenced. The General Counsel has
not established that Davis applied for employment prior
to the hiring of laborer employees who initially worked
during the week of November 23, 1977. The General
Counsel has established, in view of the manner of litiga-
tion of the issues, that Davis applied for work before la-
borer employees who were initially employed during the
week ending January 11, 1978. Accordingly, the evi-
dence is sufficient only to establish a period' for backpay
earnings commencing during the week ending January
11, 1978, and continuing to and ending on November 22,
1978.
In connection with the foregoing, I have considered
the Charging Party's contention that the uncertainties of
the date when Davis applied for work should be re-
solved against the Respondent. I do not find it appropri-
ate to draw an adverse inference against the Respondent
to determine the commencement of a period of discrimi-
nation or of constructive earnings for Davis. The deter-
mination of the commencement of such period is not a
matter solely within the knowledge of the Respondent.
Conceivably, the determination of when Davis applied
for work with respect to the time of hiring of laborers
3 Although the Charging Party did not join in such stipulation, no evi-
dence was presented to show facts contrary to the stipulation. Thus, con-
struing Respondent counsel's stipulation in the nature of an admission, the
evidence is only sufficient to establish that Davis would have been em-
ployed initially, absent discnrimination, dunng the week ending January
II, 1978
' I)ais' backpay period actually commenced in late November 1977.
but, under the formula used, it is assumed that actual potential backpay
loss only commenced during the week ending Janm iry 11. 1978.
1299
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
could have been established by witnesses ot
Respondent's witnesses.
Considering the foregoing and determini
formula used is appropriate, the backpay dt
found as indicated below:
Qtr.
1978
Ist
2d
3d
4th
Gross Earnings
$3,442.676
4,598.35
5,610.34
3,530.23
Net Interim
Earnings
$ 0
1,918.68
2,848.28
0
her than the
ing that the
ue 5 Davis is
Net Backpay
$3,442.67
2,679.67
2,762.06
3,530.23
II. BACKPAY DETERMINATIONS
B. Stephen M. Corcoran, Jr., Dominick Vedora, John
Woznick, and Harry J. Serrett, Jr.--The Masons
1. Stephen M. Corcoran, Jr.
It is undisputed that Stephen M. Corcoran, Jr., a
mason discriminatee, applied for work with the Respond-
ent in mid-December 1977. The General Counsel's back-
pay formula accords Corcoran wages as if he had con-
structively commenced work during the week ending
January 4, 1978, and worked until March 13, 1978, when
the Respondent actually employed Corcoran. It is undis-
puted that masons were initially employed during the
week ending January 4, 1978, and were employed during
all of the weeks ensuing between the week ending on
January 4, 1978, and March 13, 1978. The Respondent
disputes that Corcoran would have been employed
before March 13, 1978, since masons were not employed
during the week that Corcoran applied for work and
masons only commenced working during the week
ending January 4, 1978. As indicated, in effect the Re-
spondent appears to be attempting to relitigate the find-
ing of discrimination in the underlying case. This defense
is rejected. The General Counsel, where there has been a
finding of discriminatory consideration, only has to es-
tablish a "reasonable" formula for determining backpay,
if any. In the instant case it is clearly reasonable to be-
lieve that, absent strong and persuasive evidence other-
wise, Corcoran would have been employed, absent dis-
criminatory considerations, when the first masons were
hired during the week ending January 4, 1978, and
would have continued such employment until the time
he was employed on March 13, 1978. Thus, the facts es-
tablish that the period for computing loss of earnings7
commenced during the week ending January 4, 1978, and
continued to March 13, 1978, when he was employed by
the Respondent.
There is no dispute as to the appropriate measure of earn-
ings that each mason discriminatee, including Corcoran,
With interest thereon as set out later herein.
'It should be noted that the General Counsel's computations for the
first quarter had total gross earnings of $3,662.67. This, however, includ-
ed S220 earnings for the week ending January 4, 1978, which does not
come within the backpay period as potential gross earnings.
' Corcoran's backpay period actually commenced in mid-December
1977, but, under the formula used, it is assumed that actual potential
backpay loss only commenced during the week ending January 4, 1978.
should have received for each week of discrimination.
Such measure was alleged in effect and admitted to be
the average gross earnings per week received by all
masons employed by Storto Sons Construction Co., Inc.,
during each week of the backpay period of the discrimin-
atees, excepting foremen and employees who worked
less than 24 hours per week when the scheduled work-
week was 5 days or more. It is undisputed and clear that
the General Counsel has used such measure of earnings
in computing Corcoran's gross earnings during the back-
pay period.
It is further clear that the General Counsel's formula
accorded Corcoran gross earnings for the weeks ending
January 4, 1978, and to March 13, 1978, on the basis that
he would have received such earnings during the weeks
that newly hired masons s worked. Considering the for-
mula as alleged and statements by counsel at the hearing,
this is the formula the parties appeared to have under-
stood to have been used with respect to the computa-
tions for gross earnings for all of the mason discrimina-
tees. Whether this is so or not, the matter has been liti-
gated, and the record as a whole reveals such to be a
reasonable method for determining backpay. I conclude
and find that such formula is a reasonable and proper
formula for the determination of backpay due Corcoran.
The Respondent has the burden of establishing offsets
to gross earnings. In this case, no evidence has been pre-
sented to reveal offsets (interim earnings) to the gross
earnings. There is no dispute as to the accuracy of the
computations used with respect to the determination of
backpay due Corcoran. I find, however, an inadvertent
error whereby Corcoran was granted 2 days' instead of 3
days' gross earnings for the week ending March 15,
1978, and in which he was reinstated on March 13, 1978.
Accordingly, the backpay due9 Corcoran is as follows:
Qtr 1978 Gross Earnings
Ist
Nelt Interim
Earnings
$3,211.11 'O
N,et Backpay
S0 S3,211.11
1. Dominick Vedora, John Woznick, and Harry J.
Serrett, Jr.
The General Counsel alleges, and the Respondent
denies, that Dominick Vedora, John Woznick, and Harry
' Masons who appeared on the payroll during the weeks following the
date that Corcoran applied for work and who it reasonably could be con-
strued were hired after Corcoran applied for work.
9 With interest thereon as later set out herein
'0 The General Counsel's specifications set forth that Corcoran would
have received the average gross earnings of a mason for the weeks
ending January 4 through March 8, 1978, and two-fifths of such earnings
for the week ending March 15, 1978. Thus, the earnings for the week
ending March 15, 1978, were computed as S141.20. In fact there were 3
workdays out of 5 that Corcoran was entitled to backpay (March 9, 10,
and 11, 1978), and thus he was entitled to have constructively earned
three-fifth times $353 or $211.80 for the week ending March 15, 1978.
With such adjustment, Corcoran's gross earnings for the first quarter
should be computed to be $3,211 11 instead of the $3,140.51 as set forth
in the General Counsel's computations.
1300
STORTO SONS CONSTRUCTION CO.
J. Serrett, Jr., mason discriminatees, applied for employ-
ment on March 6, 1978. The issue was confused by
errors in the pleadings and by testimony given in the un-
derlying unfair labor practice case. However, a compos-
ite of the credited aspects of the testimony of Vedora,
Woznick, Serrett, and Paone"1 establishes that Vedora
and Woznick applied for work on the morning of March
6, 1978, and that such applications were made at the
same time. Serrett's credited testimony reveals that his
application for employment occurred on March 6, 1978,
but after the applications for work by Vedora and Woz-
nick.
The Respondent disputes that Vedora, Woznick, or
Serrett would have been employed. The Respondent
avers that there were no jobs available when each ap-
plied for work. As indicated, this dispute in part consti-
tutes a relitigation of the discriminatory findings in the
underlying case. The General Counsel's formula in this
case is based on a theory that the mason discriminatees
would have performed the work performed by masons
whose names initially appeared on the Respondent's pay-
roll after the date of the mason discriminatees' applica-
tions for employment. The Respondent's defense is re-
jected except to the limited extent set forth as follows.
The General Counsel, where there has been a finding of
discriminatory consideration of applicants for employ-
ment, only has to establish a "reasonable" formula for
determining backpay, if any. In the instant case the Gen-
eral Counsel's formula envisions that employees Rago,
David, and Jacobs would have been employed only after
the mason discriminatees (Vedora, Woznick, and Serrett)
had there been no discrimination. The overall facts
reveal, in my opinion, that Rago, in the absence of dis-
criminatory considerations, would have been employed
prior to Vedora, Woznick, or Serrett. The facts are clear
that Rago sought work on Friday, March 3, 1978, and
delayed going to work until he checked with the Union.
As has been indicated, the facts reveal that Vedora,
Woznick, and Serrett spoke to Paone on March 6, 1978,
and made application for employment thereby. 12 In dis-
pute is whether the Respondent had decided to hire
David and Jacobs prior to the time that Vedora, Woz-
nick, and Serrett made application for employment.
The facts reveal that Respondent as a general practice
hires on a first-come-first-serve basis. This being so, it is
proper to infer from the conversation held by Paone
with Vedora, Woznick, and Serrett on March 6, 1978,
that jobs were available and that they would have been
hired at such time or immediately thereafter but for the
discriminatory policy of hiring utilized by the Respond-
ent. Thus, it follows that the foregoing establishes a
prima facie case the the Respondent would have em-
" Paone was the Respondent's general foreman on the job.
' There is in effect a dispute between the testimony of Vedora, Woz-
nick, and Serrett and the testimony of Paone as to what was said I credit
the testimony of Vedora, Woznick, and Serrett over the testimony of
Paone and discredit Paone's testimony to the effect that he told Vedora,
Woznick, and Serrett that the Respondent had already hired three
masons, that the Respondent would get hold of them later if it needed
any employees. This credibility resolution is based on a consideration of
the litigated findings in the underlying proceeding, the testimony of the
witnesses in the instant proceeding, and a consideration of the logical
consistency of all facts in relation thereto.
ployed Vedora, Woznick, or Serrett before the employ-
ment of David or Jacobs or other masons who com-
menced work on March 7, 1978, or other masons hired
thereafter. Respondent's evidence, presented through tes-
timony of Vangelisti and Paone, as to the timing of the
hiring of David and Jacobs, is of such a nature that it
does not rebut the above referred to prima facie case re-
lating to timing of employment or consideration for em-
ployment. In fact, the confusing and contradictory testi-
mony of Vangelisti and Paone warrants the drawing of
an inference that David and Jacobs were hired after the
time of the applications for work by Vedora, Woznick,
and Serrett on March 6, 1978.
Thus, Vangelisti testified that he hired both David and
Jacobs on March 5, 1978, and that he called David and
Jacobs on the night of March 5, 1978, to report to work
on March 6, 1978. Later, Vangelisti testified that he
hired Jacobs on the spot on the job on March 6, 1978.
Later, Vangelisti testified to the effect that he could have
hired David and Jacobs on March 7, 1978, that Jacobs
went to work when he hired him because he had tools
with him, and that maybe Jacobs was hired one day and
went to work the next day. Other than the above, it is
sufficient to say that Vangelisti's testimony as to the
hiring of Jacobs and David appeared confused and some-
what contrived.
Paone in his testimony indicated that he thought that
Vangelisti told him on March 6, 1978, that he had hired
two masons (David and Jacobs). Paone testified that
Vangelisti told him on March 6, 1978, that he had hired
"the guys" (David and Jacobs) and that they were
coming in that morning.
Considering all of the facts and the logical consistency
of the evidence, I am persuaded that Vangelisti's testimo-
ny that he hired Jacobs on the spot and on the job and
that Jacobs had his tools is credible. Such credited facts,
coupled with the evidence that Jacobs' first date at work
was March 7, 1978, convince me and I conclude and find
that the Respondent hired Jacobs on March 7, 1978. Sim-
ilarly, I credit Vangelisti's testimony to the effect that he
called someone and left word for David on the night
before David reported to work. Again the evidence re-
veals that David's first date of work was March 7, 1978.
In sum, the credited facts reveal that Vedora, Woznick,
and Serrett applied for work before the Respondent
hired David and Jacobs.
The General Counsel's formula for determining the
weeks that mason discriminatees Vedora, Woznick, and
Serrett would have worked if they had not been discri-
minatorily considered for employment envisioned that
the discriminatees would have been entitled to work
during the potential backpay period dependent on the
order of the timing of their applications for work and the
number of newly hired employees who worked during
such period. It is clear that the General Counsel's formu-
la was postulated upon the assumption that the number
of newly hired employees who worked during such
weeks of the backpay period reflected that there was
available work that would have been performed by the
discriminatees absent discrimination against them, and
that the work was of such an amount that determination
1301
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the average gross earnings for such period of backpay
as an appropriate measure of constructive earnings was
proper. No dispute was raised as to this contention. The
appropriateness of the measure of gross earning was ad-
mitted in the pleadings and is not in issue.
The General Counsel's formula, as written and as
orally expressed, merely sets forth a formula relating to
whether the number of masons during the backpay
period exceeded the number of masons during the pre-
backpay period. An examination of all of the exhibits re-
veals that the General Counsel's formula, as generally
applied, accorded discriminatees constructive earnings
during the backpay period when available work was re-
vealed by evidence of work performed by masons who
were hired subsequent to the application for work by the
discriminatees. It appears that the parties understood the
General Counsel's formula as explicated above. Whether
this is so or not, the matter has been litigated, and the
record as a whole reveals such to be a reasonable
method for determining backpay, if any, due to Vedora,
Woznick, and Serrett.
Although the General Counsel in effect has utilized
the above-described formula in determining backpay due
Vedora, Woznick, and Serrett, the computations for such
backpay were based on the General Counsel's assump-
tion that Vedora, Woznick, and Serrett made application
for work before the Respondent employed Rago, David,
and Jacobs. Further, the General Counsel, in computa-
tions, construed that Corcoran, also a discriminatee,
would have had priority in filling work slots held by
newly hired employees.
As a general principle, the formula determination was
to the effect that there were available constructive earn-
ings to be accorded to discriminatees when newly hired
mason employees '3 worked, that such constructive earn-
ings were to be accorded the discriminatees depending
on the number of work positions held by newly hired
mason employees and in accordance with a preferential
order of preference based on the timing of application
for work by the discriminatees. Thus, if one newly hired
mason employee worked during a backpay period week
when Corcoran and the other three mason discriminatees
were entitled to be made whole for lost wages, construc-
tive average earnings for one mason employees were to
be accorded to Corcoran. If two newly hired mason em-
ployees worked during the same above-referred-to
period, constructive average earnings for one mason em-
ployee were to be accorded to Corcoran and construc-
tive average earnings for one mason employee were to
be accorded to Vedora and Woznick on the basis that
Vedora and Woznick should receive one-half the con-
structive average earnings for one mason employee. 4 If
three newly hired mason employees worked during the
same above-referred-to period, constructive average
earnings for one mason employee were to be accorded
respectively to Corcoran, Vedora, and Woznick. Similar-
ly, if four newly hired mason employees worked during
the same above-referred-to period, constructive average
" Hired after the discriminatees had applied for work.
" Vedora and Woznick applied for work at the same time, and each
was equally entitled with the other in time preference for awarding of
constructive earnings.
earnings for one mason employee were to be accorded
respectively to Corcoran, Vedora, Woznick, and Serrett.
During the period of time of Vedora's, Woznick's, and
Serrett's backpay period and when Corcoran had already
been reinstated, the same principles as modified with the
exclusion of Corcoran as a discriminatee constituted the
basis for determination of backpay constructive earnings.
Thus, during weeks wherein only one newly hired
mason employee worked, constructive earnings for one
mason employee were accorded to each Vedora and
Woznick on a one-half share basis. If two newly hired
mason employees worked, constructive earnings for one
mason employee accorded to each Vedora and Woznick.
If three newly hired mason employees worked, construc-
tive earnings were accorded respectively to Vedora,
Woznick, and Serrett.
The above, as a general principle, reflects a reasonable
and proper means of determining constructive earnings
for the discriminatees. However, where there is an un-
usual-type week because such is the commencement or
ending of a potential backpay period, such time period of
discrimination should not be disregarded because the
newly hired mason employees worked only part of the
week. It is noted that the General Counsel prorated the
gross earnings due to Corcoran when Corcoran's rein-
statement occurred in the middle of a workweek.
Because of the factfinding herein that Rago, if there
had been no discriminatory considerations, would have
been employed prior to Vedora, Woznick, and Serrett,
and because of the type of record established in this case,
computations for backpay determinations for Vedora,
Woznick, and Serrett will have to be set forth in some
detail.
The Charging Party disputes the commencement date
for computation of backpay and contends that gross
earnings for backpay for Vedora, Woznick, and Serrett
should have commenced on March 7, 1978, the date that
Rago, David, and Jacobs first were employed. In princi-
ple I find merit to such contention. Similar to the prora-
tion of Corcoran's gross earnings, discriminatees Vedora,
Woznick, and Serrett should be accorded gross earnings,
if proper, for the days of March 7 and 8 on a prorated
basis.
The General Counsel's backpay specifications had at-
tached thereto various exhibits and computation sheets.
Exhibit I was a document setting forth reference to cer-
tain time periods and the number of masons (and names)
who were on the payroll during such time periods who
had been on the payroll before Vedora and Woznick had
applied for work. Similar information thereon related to
time periods and the number of masons (and names) who
were on the payroll during respective time periods who
had been on the payroll before Serrett applied for work.
Exhibit 2 related to laborers and to various weeks com-
mencing with the week ending November 23, 1977, and
ending with the week ending on November 22, 1978,
with information as to the "average gross wages for
week" and number of employees for each week thereon.
Exhibit 3 had similar information relating to masons
commencing with the week ending January 4, 1978, and
ending with the week ending on October 25, 1978. Ex-
1302
STORTO SONS CONSTRUCTION CO.
hibits 4 through 9 related to the discriminatee laborers
and masons and their gross earnings per week, interim
earnings, net backpay, and quarterly summary thereof.
The parties have further presented stipulations and ex-
hibits into the record subsequent to the hearing to reveal
the names of mason employees hired by the Respondent
and their starting and ending dates, to reveal the dates
that employees worked for the Respondent on the job in-
volved, to correct some inadvertent mathematical errors
in computations, and to modify some positions previous-
ly taken by the parties.
Based on facts warranted by the pleadings and lack of
dispute thereto and a composite evaluation of all of the
facts, exhibits, and stipulations as referred to above, the
facts relating to the availabilty of work for mason discri-
minatees and the computation of gross earnings may be
set forth as follows:
The record reveals that during the week ending March
8, 1978, mason employees worked on March 2, 3, 6, 7,
and 8, 1978. The average gross wages for mason employ-
ees for such 5-day week were $336. The record reveals
that mason employees Burgess, Smallidge, and Lenhart
had been hired by early January 1978. Smallidge ap-
peared on the payroll for the last time as of March 3,
1978. Based on a consideration of the entire record, it is
inferred that Smallidge worked at least 24 hours during
the week prior to his last day of work on March 3,
1978.15
Burgess and Lenhart continued as employees after
March 8, 1978, until a much later date. The facts reveal
that the exhibit setting forth the summary of average
gross wages for mason employees indicated that this was
based on the earnings of three masons (who met the
qualifications of those whose earnings should be used for
computation) for the week ending March 8, 1978. The
facts also reveal that mason employees David and Jacobs
were hired after mason discriminatees Vedora, Woznick,
and Serrett applied for work. David and Jacobs started
to work on March 7, 1978. Thus, March 7, 1978, is the
date to be used for computing the commencement of po-
tential gross earnings for Vedora, Woznick, and Serrett.
It is clear that there were 2 days during the week ending
March 8, 1978, that the discriminatees could have
worked.
Since the average gross earnings have been determined
on a formula basis, the constructive earnings should be
determined on the basis that there were two positions
(that of newly hired mason employees David and Jacobs)
available for the mason discriminatees on March 7 and 8,
1978. Corcoran, who had not been reinstated on March 7
and 8, 1978 (and for whom this proceeding has deter-
mined the backpay due him until the date of his rein-
statement on March 13, 1978), is deemed constructively
to have filled one of such two mason positions on March
7 and 8, 1978. Vedora and Woznick, who applied for
work at the same time, have equal entitlement to the
work reflected by the remaining positions available for
accordance to the mason discriminatees. Thus, Vedora
and Woznick are entitled to constructive gross earnings
" In the specifications, the General Counsel, with respect to the week
ending on March 8, 1978, only sought to establish that one mason discri-
minatee, Corcoran, was entitled to gross earnings for backpay purposes.
for one-half a day each on March 7 and on March 8,
1978. Thus, Vedora is entitled to constructive earnings
for I day (1/5 x $336) in the amount of $67.20 for the
week ending on March 8, 1978. Similarly and on the
same basis Woznick is entitled to constructive gross earn-
ings in the amount of $67.20 for the week ending on
March 8, 1978. The facts reveal that there would not
have been mason work available for Serrett, and there-
fore no constructive earnings are to be accorded Serrett
for the week ending on March 8, 1978.
As to the record relating to the workweek ending on
March 15, 1978, the following should be noted. The
overall record is suggestive but not conclusive that con-
tended newly hired mason employees Rago, David, and
Jacobs worked during such week, that the General
Counsel's backpay specification deemed that Corcoran
constructively filled one of the mason positions available
for backpay purposes for the discriminatees, and that
Vedora and Woznick were entitled to constructively fill
the other two mason positions revealed to have been
available for constructive determination of backpay.
The facts reveal that Rago should not be considered to
be a newly hired mason employee for the constructive
determination of backpay. The overall record is suffi-
cient to establish that one newly hired mason worked
during the week ending March 15, 1978, for 24 hours or
more, and it is clear that at least one position was availa-
ble for constructive determination of backpay. The over-
all record is not sufficient to determine whether or not
there were two newly hired mason employees who
worked during the week ending March 15, 1978, and
that there were two positions available for constructive
determination of backpay.
The problem with the record has been created by the
respective parties taking an all-or-nothing approach con-
cerning their contentions and the failure to submit details
and specifications as well as requested stipulations con-
cerning the names of masons who worked during each
week of the backpay period. There comes a time when
litigation should end. The necessary details to determine
the appropriate gross earnings for the week ending on
March 15, 1978, should not be in dispute. Since this
matter should not be delayed further and needless ex-
pense to the parties and to the Government should be
avoided, I shall issue an appropriate order as to the com-
putation of the gross earnings for the week ending on
March 15, 1978.1'6
Thus, the Respondent will be directed to ascertain
whether or not David and Jacobs worked during the
week ending March 15, 1978, for 24 hours or more, and,
if so, compute the backpay due Vedora and Woznick as
follows: If only one of the two, David or Jacobs,
worked for 24 hours or more during the week ending
March 15, 1978, Respondent should deem that there was
one mason position available for constructive gross earn-
ings for the days March 9, 10, 11, 13, and 15. The Re-
spondent should further deem that Corcoran would have
been considered to have constructively filled said posi-
tion on March 9, 10, and 11, 1978, and that Vedora and
'*J S. .4Ahlbrn Constructirn Co.. Inc., 249 NI RB 751 (1980)
1303
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Woznick'7 were entitled to share in the same position for
the work performed on March 13 and 15, 1978. Accord-
ingly, if only one of the two, David or Jacobs, were em-
ployed for 24 hours or more, during the week ending
March 15, 1978, Vedora and Woznick were each entitled
to constructive average gross earnings for I day. Since
the average gross earnings for the week ending March
15, 1978, was $353, and since there were 5 days of work
in said week, I day's average gross earnings would be
computed to be $70.60. If only one newly hired employ-
ee, either David or Jacobs, worked during the week
ending March 15, 1978, the Respondent should compute
the gross earnings for Vedora and Woznick for such
week to be $70.60.
If the Respondent ascertains that both David and
Jacobs worked for 24 hours or more during the week
ending March 15, 1978, it should be deemed that there
was, in addition to the available position and construc-
tive earnings of $70.60, one other available mason posi-
tion and constructive earnings in the amount of $353 and
that Vedora and Woznick were entitled to share the
same and each receive $176.50 constructive earnings
therefrom or total constructive earnings each in the
amount of $247.10.
If the Respondent were to ascertain that one newly
hired mason employee (David or Jacobs) worked for 24
hours or more and that the other newly hired employees
worked less than 24 hours during the week ending
March 15, 1978, the Respondent should deem that
Vedora and Woznick are entitled to constructive earn-
ings as determined of $70.60 plus the following construc-
tive earnings as determined in the manner herein set
forth. Respondent is to determine whether a newly hired
mason employee (David or Jacobs) did not work or, if
he worked, whether he worked less than 24 hours for
the week ending March 15, 1978. If said mason employee
worked less than 24 hours, determination of the number
of days or one-half days to the closest approximation
should be made. Based upon this determination average
gross earnings at the rate of $70.60 per day for such posi-
tion should be made, and Vedora and Woznick should be
deemed each to have had constructive earnings in one-
half such amount. r Such should then be added to the
amount of $70.60 previously determined as constructive
gross earnings for each's gross earnings.
The overall record clearly establishes that the only
newly hired mason employees, David and Jacobs,
worked for 24 hours or more during the week ending
March 22, 1978, that therefore there were two mason po-
sitions available for the discriminatees, that Vedora and
11 Vedora and Woznick applied for work at the same time and are
deemed equally entitled on a time principle to work that would have
been available to the discriminatees.
i" The General Counsel's brief, which is not in evidence, refers to
named masons as being the employees constituting the number of em-
ployees set forth in Exh. 3 relating to computation of average gross
wages (or earnings). It appears, but not detailed enough for a finding,
that the number of employees referred to on such exhibit constitutes a
reference to masons who worked 24 hours or more and who were not
foremen during the weeks in which the scheduled workweek was 5 days
or more. If this be correct, it would appear clear that both David and
Jacobs worked during the week ending March 15, 1978, and that Vedora
and Woznick each should be accorded constructive gross earnings in the
amount of S247.10 for the week ending March 15, 1978.
Woznick, because of the timing of their applications for
employment, were entitled to such positions for the pur-
pose of determination of constructive gross earnings. Ac-
cordingly, Vedora and Woznick are deemed to have
each been entitled to constructive gross earnings for the
week ending March 22, 1978, in the amount of $341.66.
The overall record is only sufficient to reveal that one
newly hired mason employee, either David or Jacobs,
had earnings utilized in the computation of average gross
earnings for masons for the week ending March 29, 1978.
This being so, it is clear that the record is sufficient to
establish there was at least one available mason position
for constructive determination of gross earnings for
backpay purposes. Since Vedora and Woznick applied
for work at the same time, each is entitled to share with
the other constructive gross earnings when there is estab-
lished only that there existed one available mason posi-
tion that should have been filled by a discriminatee. The
average gross earnings for a mason for the week ending
March 29, 1978, was $227. Accordingly, if only one
mason position is established to be available for construc-
tive backpay purposes, gross earnings for backpay pur-
poses should be accorded Vedora and Woznick in the
amount of $113.50.'9
The General Counsel's brief indicates that David was
the newly hired mason employee whose earnings were
included in the overall computations for average gross
earnings for masons, and that Jacobs' earnings were not
included in such computations. It should be noted that
the General Counsel's brief does not constitute evidence.
However, since the record reveals that Jacobs ceased
employment on March 29, 1978, since there exists a vari-
ance in the computations as regards the contended aver-
age gross earnings figures of $116.87 and one-half of
$227 or $113.50, and since General Counsel's Exhibit 3
reveals obvious erasures or corrections, I find it proper
to order that the Respondent ascertain whether or not
Jacobs' earnings were utilized as a part of the computa-
tions for average gross earnings for masons for such
period. If so, the Respondent is to further ascertain
whether or not Jacobs worked during the week ending
March 29, 1978. If so, the Respondent is to determine
the number of days or one-half days or closest approxi-
mation thereto that Jacobs worked. The Respondent
used masons on 3 days during the week ending March
29, 1978. The average gross earnings for said week was
$227. On a prorated basis per day, the average gross
earnings were $75.66. Upon the determination of days
worked by Jacobs, if any, and determination of average
gross earnings thereto on the basis of $75.66 per day, the
Respondent is to deem Vedora and Woznick equally en-
I" The pleadings establish that the average gross earnings for masons
for the week ending March 29, 1978, was $227. I note that the General
Counsel alleges, the Respondent denies, and there was no evidence pre-
sented to support the General Counsel's contention that Vedora and
Woznick should each receive $116.87 as shared gross earnings. Perhaps
this was in error, or perhaps the General Counsel computed "earnings"
based on the theory that David worked for 24 hours or more during the
week ending March 29, 1978, and that Jacobs, who left employment on
March 29, 1978, worked a day or two or less. In any event, my Order
herein will take care of possible work by Jacobs that would have been
available to the mason discnminatees.
1304
STORTO SONS CONSTRUCTION CO.
titled to one-half of such amount, and the same is to be
added, if any, to the previously determined $113.50 gross
earnings for each.
The overall record reveals that the only newly hired
mason employees who worked between March 30 and
May 17, 1978, were David and Cataldi. Further, the
overall record reveals that David and Cataldi worked
during each week during the period between March 30
and May 17, 1978, and worked for sufficient hours so as
to have their earnings included in the earnings used for
computing the average gross wages or earnings for the
week ending on April 5, 1978, and weeks thereafter to
and including the week ending on May 17, 1978. It is
thus clear that there were two mason positions available
for determining constructive gross earnings for two dis-
criminatees. Vedora and Woznick, being the discrimina-
tees who applied together and before Serrett, are clearly
entitled to constructive gross earnings on the basis of
such available constructive work for two mason discri-
minatees. Accordingly, each should be accorded the
average gross wages of masons as gross earnings for the
week ending on April 5, 1978, and thereafter to and in-
cluding the week ending on May 17, 1978.
The overall record reveals that the facts at least estab-
lish that one newly hired mason employee, either David
or Cataldi, worked 24 hours or more so as to qualify that
his earnings be included in the earnings used for comput-
ing the average gross wages or earnings for the week
ending May 24, 1978. Thus, it is clear that at least one
mason position was available for constructive filling by
the discriminatees for purposes of backpay computation.
Thus, it is clear that Vedora and Woznick are equally
entitled to be accorded the gross earnings reflected by
such available mason position. Thus, $568 or $284 is at
least to be accorded to each Vedora and Woznick as
gross earnings for the week ending May 24, 1978.
The record suggests but does not clearly establish that
there were two newly hired mason employees, David
and Jacobs, who worked for 24 hours or more so as to
qualify that their earnings be included in the earnings
used for computing the average gross wages of earnings
for the week ending May 24, 1978. The Respondent will
be directed to ascertain whether both David and Jacobs
worked for 24 hours or more during the week ending on
May 24, 1978. If so, it is clear that there existed two
mason positions available for constructive filling by the
discriminatee masons for gross earnings for backpay pur-
poses. If so, Vedora and Woznick each should be ac-
corded $568 gross earnings for the week ending May 24,
1978.20
If the Respondent's ascertainment of the work record
of David and Jacobs reveals that one of such newly
hired mason employees worked for 24 hours or more
and that the other worked less than 24 hours for the
week ending May 24, 1978, a determination should be
made of the time worked by the newly hired employee
who worked less than 24 hours for the week ending on
0 The General Counsel's brief alludes to the fact that both Jacobs and
David were masons whose earnings were included in the computations of
average gross earnings for the week ending May 24, 1978 If this is so, it
would appear to be clear that Vedora and Woznick should be accorded
S568 gross earnings for the week ending May 24, 1978
May 24, 1978. Such time should be determined as ap-
proximately close to a time interval of a day or days.
Since Respondent worked 6 days in such week, $94.33
should be multiplied by the number of such approximate
days and the resultant figure deemed to be gross earnings
shared by Vedora and Woznick. In such case the gross
earnings for each Vedora and Woznick should be com-
puted to be $284 plus one-half the constructive gross
earnings otherwise computed.
The record clearly reveals that two newly hired
mason employees, David and Cataldi, worked sufficient
hours to require that their earnings be included in the
computations for average gross earnings of masons
herein for the week from the week ending on May 31 to
and including the week ending on July 19, 1979. Thus, it
is clear that there were two mason positions available
during such weeks for constructive filling by mason dis-
criminatees, that Vedora and Woznick were the discri-
minatees entitled to have average gross earnings for each
week for backpay purposes, and that such should be ac-
corded to them.
The record is clear that one newly hired mason em-
ployee, either David or Cataldi, worked for sufficient
hours to have his earnings included in the earnings for
computation of the average gross earnings for the weeks
commencing with the week ending on July 26 and to
and ending with the week ending August 16, 1978.21
Thus, it is clear that one mason position was available
for constructive filling by a mason discriminatee. Since
Vedora and Woznick were the first (of Vedora, Woz-
nick, and Serrett) to apply for work, Vedora and Woz-
nick are deemed equally entitled to share constructive
gross earnings for each of the weeks commencing with
the week ending on July 26 and to and including the
week ending August 16, 1978.
The evidence is insufficient to reveal that any newly
hired mason employee worked during the week ending
August 23, 1978. The General Counsel and the Charging
Party had in effect contended that mason employee
Rago was a newly hired employee and that Vedora and
Woznick were entitled to share the average gross earn-
ings for one mason position. The facts as found establish
that Rago would have been hired bofore Vedora, Woz-
nick, or Serrett had there been no discriminatory consid-
eration in hiring.
The record reveals that newly hired mason employee
David worked for sufficient hours to have his earnings
included in the earnings used for computing the average
gross wages of masons for the week ending September 6,
1978. This being so and in accordance with the reasoning
set forth beforehand herein, it is found that constructive
gross earnings in the amount of $170 are to be accorded
each Vedora and Woznick for the week ending on Sep-
tember 6, 1978.
2 T1he General Counsel's brief alludes to David's stopping work on
July 19, 1978, and recommencing work on September 6. 1978 No evi-
dence bwas presented as toi such point It is clear, however, that the facts
only established the availability of one such mason position held by
newly hired employees, either David or Cataldi, for the weeks indicated
ahoe c
1305
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The record reveals that two newly hired mason em-
ployees, David and Rowe, worked sufficient hours to
qualify for having such earnings included in the earnings
used for computing the average gross wages of masons
for the weeks ending on September 13 and 20, 1978. In
accordance with reasoning previously set forth, Vedora
and Woznick are to be accorded the average gross
wages for masons for such said weeks as constructive
gross earnings for such weeks.
The record is sufficient to establish that one newly
hired mason employee, either David or Rowe, worked
during the week ending September 27, 1978, that such
employee worked for sufficient hours to warrant inclu-
sion of his earnings in the computation for average gross
earnings.22 It follows that there is established one availa-
ble mason position for constructive filling by the discri-
minatees. In accordance with reasoning previously ex-
pressed, Vedora and Woznick are equally entitled to said
work, and one-half of the average gross wages of masons
for such work is accorded each Vedora and Woznick for
backpay purposes.
The record reveals that two newly hired mason em-
ployees, David and Rowe, worked sufficient hours to
warrant inclusion of their earnings in computations for
the average gross wages of masons for such week during
the weeks ending on October 4, 11, and 18, 1978. In ac-
cordance with reasoning previously expressed, Vedora
and Woznick each are to be accorded the average gross
wages of masons for such weeks as constructive gross
earnings for such weeks.
The record reveals that one newly hired mason em-
ployee, Rowe, worked sufficient hours to warrant inclu-
sion of his earnings in computations for average gross
wages for the week ending October 25, 1978. Thus, it is
established that one mason position was established as
available for constructive filling by discriminatees. In ac-
cordance with reasoning previously expressed, Vedora
and Woznick, each, are to be accorded one-half of the
average gross wages of masons for the week ending Oc-
tober 25, 1978, as constructive gross earnings for back-
pay purposes.
The facts reveal that there was insufficient work avail-
able to establish that mason discriminatee Serrett would
actually have been employed from on or about March 6,
1978, to October 25, 1978. It will be recommended later
that backpay allegations relating to Serrett be dismissed.
3. Order for computation of constructive gross
earnings
The Respondent will be ordered to compute the con-
structive gross earnings for discriminatees Vedora and
Woznick for the weeks ending March 15 and 29, 1978,
and for the week ending May 24, 1978, in the manner
and accord as set forth previously with the discussion of
gross earnings for such weeks.
2 The General Counsel does not contend that David worked during
the week ending September 27, 1978
4. Constructive gross earnings
In accordance with all of the findings above the con-
structive gross earnings for Vedora and Woznick are as
follows:
Week Ending
3/8/78 S
3/15/78
3/22/78 3
3/29/78
1st Quarter $
Total
Week Ending
4/5/78
4/12/78
4/19/78
4/26/78
5/3/78
5/10/78
5/17/78
5/24/78
5/31/78
6/7/78
6/14/78
6/21/78
6/28/78
2d Quarter $
Total
Week Ending
7/5/78
7/12/78
7/19/78
7/26/78
8/2/78
8/9/78
8/16/78
8/23/78
9/6/78
9/13/78
9/20/78
9/27/78
3d Quarter Total
Week Ending
10/4/78
10/11/78
10/18/78
10/25/78
4th Quarter Total
Vedora
67.20 as computed
per Order
41.66 as computed
per Order
408.86 plus
computation for
March 15 and 29,
1978
Vedora
Woznick
$ 67.20 as computed
per Order
341.66 as computed
per Order
$408.86 plus
computation for
March 15 and 29,
1978
Woznick
$ 119.16 $ 119.16
400.83 400.83
322.50 322 50
260.83 260.83
552.50 552.50
260.00 260.00
401.25 401.25
computed per Order computed per Order
342.00 342.00
460.00 460.00
399.00 399.00
348.00 348.00
475.00 475.00
4,341.07 plus $4,341.07 plus
computation for computation for
week ending week ending
5/24/78 5/24/78
fedora
$ 342.00
474 00
451.00
212.50
181.66
120.00
200,00
170.00
360.00
360() (X)
200.00
$3,071.16
Kedora
5 217.50
411.25
320.00
282.50
$1,231.25
Woznick
$ 342.00
474.00
451.00
212.50
181.66
12000
200.00
170.00
360.00
360).00
200.00
$3,071.16
Woznick
$ 217.50
411.25
320.00
282.50
$1,231.25
1306
STORTO SONS CONSTRUCTION CO.
5. The computation of backpay due Vedora
As previously set forth, the gross earnings for Vedora
for the backpay period have been determined as to the
amounts per week or as to the exact means of computa-
tion. The General Counsel has conceded certain interim
earnings for Vedora during the backpay period, and no
other proof thereof has been presented into the record.
In accordance with the findings with respect to gross
earnings and the conceded interim earnings, the follow-
ing findings as to backpay due to Vedora are hereby
made:
Net
Qtr. Gross Earnings Interim
Earnings
Ist S 408.86 plus amount
computed per
Order for weeks
ending March 15
and 29, 1978
2d 4,341.07 plus
computation for
week ending
5/24/78 per Order
3d 3,071.16
4th 1,231.25
Net Bac-pay
S0 S 408 86 plus amount
computed per
Order for weeks
ending March 15
and 29, 1978
2,981.99 1,359.08 plus
computation for
earnings for week
ending 5/24/78
4.150.11 0
148.351,08290
6. The computation of backpay due Woznick
As previously set forth, the gross earnings for Woz-
nick for the backpay period have been determined as to
the amounts per week or as to the exact means of com-
putation. The General Counsel has conceded certain in-
terim earnings for Woznick during the backpay period,
and no other proof thereof has been presented into the
record. In accordance with the findings with respect to
gross earnings and the conceded interim earnings, the
following findings as to backpay due to Woznick are
hereby made:
Qtr. Gross Earnings
Ist S 408.86 plus
amount computed
per Order for
weeks ending
March 15 and 29,
1979
2d S4,341.07 plus amount
computed for week
ending 5/24/78 per
Order
3d 3,071.66
4th 1,231.25
NVet
Interim
Earnings
Nlet Backpay
S 0 S 408.86 plus amount
computed for gross
earnings for weeks
ending March 15
and 29, 1979
4,059.84 281.23 plus amount
computed for week
ending 5/24/78 for
gross earnings per
Order
3,827.58
1,196.20
0
35.05
ORDER 23
Upon the basis of the foregoing findings and conclu-
sions, it is ordered that the Respondent, Storto Sons
Construction Co., Inc., Rochester, New York, its offi-
cers, agents, successors, and assigns, shall compute the
gross earnings for Vedora and Woznick, in the manner
set forth previously in the Decision of this matter, and
shall pay to Philip DeSain, Herman Davis, Stephen Cor-
coran, Jr., Dominick Vedora, and John Woznick a sum
of money equal to the composite sum of the following
amounts indicated with respect to each, minus such de-
ductions as may be required by Federal or state law and
which are appropriately paid to such government.
A. The backpay due Philip DeSain on a quarterly
basis is as follows with all interest to be computed in
accord with the Board's decision in Florida Steel Corpo-
ration, 231 NLRB 651 (1977): 24
1. 1977-4th Quarter-$1,270, plus interest thereon to
accrue commencing with the last day of such quarter
and continuing to date of payment.
2. 1978-1st Quarter-$2,047.62, plus interest thereon
to accrue commencing with the last day of such quarter
and continuing to date of payment.
3. 1978-2d Quarter--S1,429.94, plus interest thereon
to accrue commencing with the last day of such quarter
and continuing to date of payment.
B. The backpay due Herman Davis on a quarterly
basis is as follows with all interest to be computed in
accord with the Board's decision in Florida Steel Corpo-
ration, supra: 2
1. 1978-1st Quarter-$3,442.67, plus interest thereon
to accrue commencing with the last day of such quarter
and continuing to date of payment.
2. 1978-2d Quarter-$2,679.67, plus interest thereon
to accrue commencing with the last day of such quarter
and continuing to date of payment.
3. 1978-3d Quarter-$2,762.06, plus interest thereon
to accrue commencing with the last day of such quarter
and continuing to date of payment.
4. 1978-4th Quarter--$3,530.23, plus interest thereon
to accrue commencing with the last day of such quarter
and continuing to date of payment.
C. The backpay due Stephen M. Corcoran on a quar-
terly basis is as follows with all interest to be computed
in accord with the Board's decision in Florida Steel Cor-
poration, supra:26
1. 1978-1st Quarter-$3,211.11, plus interest thereon
to accrue commencing with the last day of such quarter
and continuing to date of payment.
D. The backpay due Dominick Vedora on a quarterly
basis is as follows with all interest to be computed in
2" In the event no exceptions are filed as provided b) Sec. 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec 102 48 of the Rules and Regulations, be adopted by the Board and
become its findings. conclusions. and Order. and all objetlions thereto
shall be deemed waited for all purposes
74 See Aru Plumbing & leating Co. 138 NLRB 716 (le92)
27 See fIos Plumbing & Itleaing (;, supra
6 See [vir Plumbirn d Heating Co,. iupra
1307
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
accord with the Board's decision in Florida Steel Corpo-
ration, supra: 27
1. 1978-1st Quarter-a sum of money equal to
$408.86 plus the amount computed for Vedora's gross
earnings per Order for the weeks ending March 15 and
29, 1978, plus interest thereon to accrue commencing
with the last day of such quarter and continuing to date
of payment.
2. 1978-2d Quarter-a sum of money equal to
$1,359.08 plus the amount computed for Vedora's gross
earnings per Order for the week ending May 24, 1978,
plus interest thereon to accrue commencing with the last
day of such quarter and continuing to date of payment.
3. 1978-4th Quarter-$148.35, plus interest thereon to
accrue commencing with the last day of such quarter
and continuing to date of payment.
E. The backpay due John Woznick on a quarterly
basis is as follows with all interest to be computed in
accord with the Board's decision in Florida Steel Corpo-
ration, supra..28
1. 1978--st Quarter-a sum of money equal to
$408.86 plus the amount computed for Woznick's gross
earnings per Order for the weeks ending March 15 and
29, 1978, plus interest thereon to accrue commencing
with the last day of such quarter and continuing to date
of payment.
2. 1978-2d Quarter-a sum of money equal to $281.23
plus the amount computed for Woznick's gross earnings
per Order for the week ending May 24, 1978, plus inter-
est thereon to accrue commencing with the last day of
such quarter and continuing to date of payment.
3. 1978-4th Quarter-$35.05, plus interest thereon to
accrue commencing with the last day of such quarter
and continuing to date of payment.
IT IS FURTHER ORDERED that the backpay specifica-
tions regarding Serrett be dismissed. Jurisdiction in this
proceeding is recommended to be retained for such other
orders as may become necessary.
"7 See Isis Plumbing & Heating Co., supra.
2e See Isis Plumbing & Ieating Co., supra.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity to
present evidence and state their positions, the National
Labor Relations Board found that we have violated the
National Labor Relations Act, as amended, and has or-
dered us to post this notice.
WE Wl.l. NOT coercively interrogate applicants
for employment concerning their union member-
ship.
WE WILl NOT tell applicants for employment
that they will not be hired because they are union
members.
WE WILL NOT ask applicants for employment to
withdraw their union membership in order to obtain
employment.
WE WlI.t NOT discourage membership in Brick-
layers, Masons, and Plasterers' Local Union No. 43
of the Finger Lakes Region, or Laborers Local 103,
or any other labor organization, by refusing to hire
members of those organizations or by otherwise dis-
criminating against them in regard to the hire and
tenure of their employment.
WE Will. NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of the rights guaranteed them by Section 7 of the
National Labor Relations Act.
WE wil.. make whole Phillip DeSain, Herman
Davis, Stephen Corcoran, Dominick Vedora, John
Woznick, and Harry Serrett, Jr., for any loss of pay
and benefits which they have suffered by reason of
the unfair labor practices which were found in this
case, with interest.
STORTO SONS CONSTRUCIION CO., INC.
1308