Teamsters Local Union No. 657 (Textia Productions)

National Labor Relations Board - Board Decisions

Mar 27, 2006

346 N.L.R.B. 690 (N.L.R.B. 2006)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
346 NLRB No. 65
690
International Brotherhood of Teamsters Local Union
No. 657 (Texia Productions, Inc.) and Victor De
La Fuente. Case 16–CB–6348
March 27, 2006
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS SCHAUMBER
AND WALSH
On November 1, 2005, Administrative Law Judge
George Carson II issued the attached supplemental deci-
sion. The Respondent filed exceptions and a supporting
brief, and the General Counsel filed an answering brief.1
The General Counsel filed cross-exceptions with sup-
porting argument, and the Respondent 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 supplemental decision
and the record in light of the exceptions, cross-
exceptions, and briefs and has decided to affirm the
judge’s rulings, findings,2 and conclusions and to adopt

1 The Charging Party filed a letter stating that he adopts and joins in
the General Counsel’s answering brief.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all 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.
In adopting the judge’s findings concerning the backpay amount ow-
ing to discriminatee Victor De La Fuente, we correct the following
inadvertent error. During the second quarter of 2004, De La Fuente
was unavailable for work for 4 days due to illness. Finding that no
adjustment had been made to the backpay calculation to account for
this period of unavailability, the judge determined that the backpay
amount should be reduced $702.31. The General Counsel excepts,
stating that the compliance specification already took into account this
period of unavailability; and the Respondent agrees with the General
Counsel’s exception. We accordingly correct the judge’s backpay
calculation by adding $702.31 to De La Fuente’s back wages.
Our dissenting colleague would find that the Board should add an
additional $40.49 for meal and per diem payments and $40.49 for pen-
sion fund contributions that were subtracted by the judge for the same
4-day period of unavailability. The General Counsel excepted, how-
ever, only to the $702.31 reduction in back wages for this period.
Although the Board may, in its discretion, address remedial matters
even in the absence of exceptions, we find it would not be appropriate
to venture beyond the scope of the General Counsel’s exceptions and
arguments here. The Respondent has agreed to the General Counsel’s
narrow exception, and the Charging Party has not objected to this
agreement. In these circumstances, we would not revive the dispute by
injecting new matters.
Member Schaumber concurs with his colleagues’ finding that the
$702.31 should be added to De La Fuente’s back wages, and finds that
the Board should also add $40.49 for meal and per diem payments and
$40.49 in pension fund contributions that the judge similarly and erro-
neously deducted based on De La Fuente’s unavailability during the
second quarter of 2004. Although the General Counsel does not spe-
the recommended Order as modified3 and set forth in full
below.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified and orders that the Respondent, International
Brotherhood of Teamsters Local Union No. 657, San
Antonio, Texas, its officers, agents, and representatives,
shall make whole the employee named below by paying
him the total backpay amount set forth below, with inter-
est as prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987), minus tax withholdings required by
Federal and State laws. The Respondent shall also remit
to the pension fund the total contribution amount set
forth below, plus additional amounts, if any, as pre-
scribed in Merryweather Optical Co., 240 NLRB 1213
(1979).
NET BACKPAY
Victor De La Fuente $ 73,376.51
Meals/Per Diem 4,945.95
Medical Expenses 1,692.25
TOTAL BACKPAY $ 80,014.71
CONTRIBUTION OWED
Pension Fund Contribution $ 3,835.52
TOTAL CONTRIBUTION 3,835.52
TOTAL AMOUNT DUE: $ 83,850.23
Linda C. Reeder, Esq., for the General Counsel.
G. William Baab, Esq., for the Respondent.
Ricardo E. Calderon, Esq., for the Charging Party.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
GEORGE CARSON II, Administrative Law Judge. I heard this
case in San Antonio, Texas, on September 7, 2005. In the un-
derlying unfair labor practice case, the Board, on July 29, 2004,
found that Teamsters Local 657 (the Union or the Respondent),
discriminatorily removed Charging Party Victor De La Fuente
from its motion picture craft-referral list and ordered, inter alia,
that he be made whole for any loss of earnings and other bene-
fits. Teamsters Local 657 (Texia Productions, Inc.), 342 NLRB
637 (2004). The Respondent waived its right to contest the
Board’s Order. A controversy having arisen regarding the
backpay due, the Regional Director for Region 16, on March

cifically include these payments in his exceptions, they are based on the
same error to which the General Counsel excepts and are necessary to
fully correct that error.
3 In addition to the correction made in fn. 2, we also correct a
mathematical error in the compliance specification. App. C of the
compliance specification shows that the total wages owed to De La
Fuente for the third quarter of 2004 are $6,566.42. When this number
was carried over to a later appendix, it was mistakenly transcribed as
$6,556.42. Therefore, we will add $10 to De La Fuente’s back wages.
TEAMSTERS LOCAL 657 (TEXIA PRODUCTIONS) 691
30, 2005, issued a compliance specification that set out the
backpay and benefits due to the Charging Party. The amount of
backpay and benefits was thereafter revised twice. The opera-
tive compliance specification is the third amended compliance
specification that issued on August 15, 2005. Insofar as no
substantive change was made in that pleading, only a revision
of figures, the parties agreed that the Respondent’s answer to
the second amended compliance specification would constitute
its answer to the third amended compliance specification.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondent, I make the following
FINDINGS OF FACT
I. BACKGROUND
Charging Party Victor De La Fuente was formerly the secre-
tary-treasurer and a business agent of the Union. In late 1994, a
new president, Richard Glasebrook, was elected, and De La
Fuente was defeated as secretary-treasurer by Frank Perkins,
who later became president of the Union. Glasebrook dis-
missed De La Fuente as business agent but, in a conciliatory
gesture, placed him on the Union’s motion picture craft-referral
list, referred to as the A-list. Teamsters Local 657 (Texia Pro-
ductions, Inc.), 342 NLRB at 642. Thereafter, as more films
began to be produced in Texas, De La Fuente, who possessed a
class B chauffeur’s license, received an increasing number of
referrals to work as a driver on various productions. Despite
this, De La Fuente spoke out at union meetings “protesting that
the work was ‘not being distributed in a fair and equal basis.’”
Id. at 643. At a union meeting in early December 2002, De La
Fuente protested the hiring of drivers not referred by the Union
and told President Frank Perkins to “get off your dead ass and
go do the job.” On December 18, 2002, Perkins wrote De La
Fuente advising that his name had been removed from the
movie craft-referral list, the A-list. The Board found that De La
Fuente’s protected activity of criticizing a union officer and
otherwise engaging in dissident union activity was a motivating
factor in his removal from the A-list and “that the Respondent’s
proffered explanation for its conduct was pretextual.” Id. at
637 fn. 1. The Board ordered that De La Fuente be reinstated
to the craft-referral list and made whole. The Respondent re-
stored De La Fuente’s name to the A-list on September 1, 2004.
The Respondent disagrees with the backpay and benefits de-
termined by the Region to be due to De La Fuente.
Prior to beginning a movie production, the production com-
panies enter into agreements that assure they will have the per-
sonnel necessary, including set construction personnel, camera
crews, etc. Insofar as relevant herein, the production compa-
nies enter into agreements with the Union to provide drivers for
the rolling stock necessary for the production, “anything with
wheels, the camera truck, wardrobe trailer, production van, grip
truck, hair/make-up trailer, [and] various star trailers.” Typi-
cally, the agreement provides that the production company can
request up to 10 percent of the drivers needed for a specific
show by name and that it has the right to reject any employee
referred. Id. at 641. The production companies hire transporta-
tion managers or transportation coordinators, the terms are
interchangeable, to hire and oversee the drivers. Many of these
individuals began their association with the companies as driv-
ers, progressing to the position of captain or co-captain, and
ultimately to the position of transportation Manager or coordi-
nator. Many have maintained their union membership.
The compliance specification computes the backpay due to
De La Fuente on the basis of the average hours worked by indi-
viduals employed as class B drivers in each quarter of the
backpay period. Emily Maas, the compliance officer for Re-
gion 16 when the compliance specification was prepared, ex-
plained that the decision to use averages for the backpay com-
putation was made in order to “even out the discrepancies be-
tween the drivers who worked a lot and the drivers who did not,
because the nature of the referral system being what it is, it’s
hard to predict exactly which productions Mr. De La Fuente
would have been employed on.”
The Respondent did not plead an alternative backpay for-
mula, but objected to the inclusion of certain individuals who
served as captains or cocaptains as comparable drivers. Com-
pliance Officer Maas, who informed the Union of the drivers
that she was using in the computation, testified that when em-
ployees such as Janice Knox and Jesus Tellez worked as cap-
tains or cocaptains, those hours were not included in the com-
putation. She acknowledged that a single employee obviously
could not be working on two movies at the same time. The
Respondent introduced the 2002 income tax return of De La
Fuente which reflects average earnings of about $8500 per
quarter. In its brief, the Respondent points out that Compliance
Officer Maas admitted that she did not compare the 2002 in-
come of comparable drivers with that of De La Fuente and
argues that the compliance specification did not, therefore,
“assure that the ‘comparable drivers’ were, as a group, repre-
sentative of Charging Party’s movie industry employability and
earning capacity.” The Respondent did not offer the income
tax return of De La Fuente for any year prior to 2002 nor did it
establish that other comparable drivers earned significantly
more that De La Fuente in 2002 by presenting their 2002 in-
come tax returns in support of the foregoing argument.
The Respondent’s answer pleads that De La Fuente’s earn-
ings “would have been less than otherwise comparable Class B
drivers because representatives of the production companies . . .
would not have employed or agreed to accept the referral of De
La Fuente. . . .” Unlike the situation in Iron Workers Local 601
(Papco, Inc.), 307 NLRB 843 (1992), cited in the Respondent’s
brief, there is no evidence that any production company re-
jected De La Fuente. No representative of any production com-
pany testified. In support of the contention that De La Fuente
would not have been hired, the Respondent presented three
transportation managers who were employed by the production
companies to hire and oversee the drivers on specific produc-
tions. Each of the transportation Managers who testified is a
union member. All asserted that, even if De La Fuente had
continued to be properly referred from the motion picture craft-
referral list, they would not have hired him for the productions
upon which they had been employed. As hereinafter discussed,
I reject the Respondent’s contention. In considering the testi-
mony of the transportation Managers, I am mindful that, prior
to his being discriminatorily removed from the A-list, no trans-
portation manager had refused to hire De La Fuente. Counsel
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD692
for the General Counsel points out that, in the initial proceed-
ing, President Frank Perkins testified, “I have never seen a
coordinator reject a member.”
Counsel for the General Counsel further points out that, if
the transportation managers, statutory supervisors of the pro-
duction companies, actually had refused to hire De La Fuente
after proper referral because of his dissident union activities,
that action would have violated the Act. I agree. Although
“dissident internal union activities” are not “classic ‘union ac-
tivities’” in support of a union, such activities constitute union
activity protected by the Act. Nationsway Transport Service,
327 NLRB 1033, 1034 (1999). An employer is liable for the
actions of its own supervisors, even if the supervisors are “act-
ing on behalf of the Union as well as the Employer.” North
Carolina Shipping Assn., 326 NLRB 280 fn. 1, 286 (1998).
Although De La Fuente’s name was removed from the A-
list, he continued to register for work with the Union. His
name was placed upon the general referral list. On various
occasions when the A-list was exhausted or additional employ-
ees were needed for work at conventions, he was referred by
the Union and worked. The Respondent Union, consistent with
Board precedent set out in Tualatin Electric, 331 NLRB 36
(2000), makes no claim that De La Fuente failed to mitigate his
damages by continuing to seek work through referral by the
Union.
II. FACTS
During De La Fuente’s backpay period, from December 18,
2002, until September 1, 2004, the Union referred employees to
12 different film productions, identified by their working titles,
which in some instances, such as The Alamo, is the same as the
name of the final movie. In December 2002, the production of
Avery Pix concluded. Avery Pix was the working title for the
movie that bore the title Secondhand Lions when it was re-
leased. De La Fuente worked as a driver on that movie. In
mid-December, when that production ended, he and several
other drivers gathered in the office of Transportation Manager
Phil Schriber, who offered the drivers a beer, thanked them for
doing a good job on the show, and stated that they should com-
plete their Christmas shopping “pretty quick” because, when
filming began on The Alamo, “we were going to go straight to
The Alamo, because they were going to need more drivers than
we had on our roster.” De La Fuente recalled that other drivers
who were present included “Frank” (Francisco) De La Fuente
and Jesus Tellez. Rolando DeHoya, although not at the meet-
ing, also worked on Secondhand Lions.
De La Fuente was removed from the craft-referral list on
December 18, 2002. He was not referred to The Alamo. In this
proceeding, Counsel for the Respondent asked Schriber, “Did
you promise or tell Mr. De La Fuente at any time that he would
be employed on The Alamo?” Schriber answered, “No sir.”
Schriber did not deny that, upon the conclusion of Secondhand
Lions, he informed the group of drivers present in his office,
which included De La Fuente, that they had done a good job
and “were going to go straight to The Alamo.” I credit De La
Fuente.
Transportation Manager Schriber testified that he would not
have hired De La Fuente to work on any of the four films upon
which he served as transportation Manager during the backpay
period. The four films were The Alamo, Cheer Up, Jack &
Bobby, and 3001. Schriber testified that the reason he would
not have hired De La Fuente was because of “refusing duties,
grandstanding, taking workers away form [sic] their job.”
When questioned on cross-examination regarding the forego-
ing, Schriber testified that cocaptain Janice Knox reported to
him in November 2002, when working on Secondhand Lions,
that De La Fuente had refused to haul trash. Knox did not tes-
tify. De La Fuente explained that he had protested the assign-
ment since he had already hooked up his trailer, preparing to
move it to another location, but that he unhooked the trailer and
made the trash run as Knox requested. I find that Schriber as-
cribed no significance to Knox’s report in that he could not
remember whether he even spoke with De La Fuente regarding
the report, and he admitted that no discipline was issued. Re-
garding grandstanding, Schriber testified that in 2001, when
working on The Life of David Gale, he had observed De La
Fuente addressing a group of five other drivers, and that such
conduct “doesn’t look good” to the producers. Schriber ac-
knowledged that drivers have free time when waiting for as-
signments. He did not testify that he spoke with De La Fuente
about the incident, and he hired him to work on A Land Called
Texas and Secondhand Lions after the incident. In the initial
proceeding in this case, Schriber testified that De La Fuente had
threatened him at a union meeting in January 2003. Thereafter,
at that hearing, when it was established that De La Fuente
would not have been at such a meeting after being removed
from the craft-referral list in December 2002, Schriber testified
that it “was much prior to that.”
After being placed upon the movie craft-referral list in late
1994 or early 1995, De La Fuente had consistently raised ques-
tions when he felt that either the Union or production compa-
nies were not acting properly. In 1996, when working on Home
Fries, he requested a copy of the contract from Transportation
Coordinator Phil Schriber because he believed the employees
should be receiving per diem since they were working more
than 50 miles from the union hall. He questioned Schriber and
union officer Frank Perkins about this, and they informed him
that, notwithstanding the contract, “we’re not paying those
benefits.” De La Fuente and employee Joe Gallion were dis-
missed from that movie after engaging in a fight.
Notwithstanding the physical altercation in 1996, in 1997,
Transportation Coordinator Schriber hired De La Fuente to
work on Varsity Blues. In 2000, De La Fuente worked on Miss
Congeniality and The New Guy. Schriber was transportation
coordinator on both. As already noted, in 2001, De La Fuente
worked on The Life of David Gale and in 2002, he worked on A
Land Called Texas and Secondhand Lions. Schriber served as
transportation coordinator on all three. When working on The
Life of David Gale, De La Fuente protested not being reim-
bursed for a meal that he purchased when performing work
away from the set.
Upon cross-examination, after Schriber ascribed his hiring of
De La Fuente as giving him a second chance, counsel for the
General Counsel pointed out that he had given him a third and
fourth chance. Schriber answered, “Everybody deserves—well
you know, I guess I’m stupid.” Contrary to that answer, I find
TEAMSTERS LOCAL 657 (TEXIA PRODUCTIONS) 693
that Schriber, himself a union member, refused to permit per-
sonal disagreements with a fellow craft employee affect his
hiring decisions. I do not credit his testimony that he is stupid
or that he would have refused to hire De La Fuente if he had
remained on the A-list. Transportation Manager Schriber
would have, as the record reflects he did from 1995 through
2002, nondiscriminatorily hired De La Fuente upon proper
referral.
Transportation Manager Cecil Evans acknowledged that De
La Fuente had never worked on a production upon which he
served as transportation manager, but asserted that he would
not have hired him because his “liabilities exceed his assets.” I
was unimpressed by the foregoing characterization which Ev-
ans repeated and which appeared to have been memorized.
Evans was transportation coordinator for Spy Kids III and Sin
City that were filmed during the backpay period. Evans as-
serted that De La Fuente was referred to work on Spy Kids III
and that he rejected him. I do not credit that testimony. Nei-
ther the movie craft-referral list, the general referral list, or any
document reflecting such referral was placed into evidence.
There is no evidence that the A-list was exhausted, thereby
necessitating referral of employees from the general referral
list. Furthermore, Evans testified that the same 12 drivers
worked on both Spy Kids III and Sin City. He acknowledged
that his only personal knowledge relating to De La Fuente came
from his attendance at union meetings in which De la Fuente
did “everything in his power to make the president of our local
look bad” including “telling the members how the Union is
screwing them and how the various motion picture companies
are screwing them, and how he can solve their problem.” I do
not credit Evans testimony that he would not have hired De La
Fuente if he had been referred. I am satisfied that Evans, when
employed as a transportation manager and hiring agent, would
not have subjected the production company for which he was
working to liability by discriminating against De La Fuente
because of his dissident union activity and criticism of a union
officer.
Greg Faucett, who was transportation manager on The
Ringer and The Wendell Baker Story, testified that he would not
have hired De La Fuente because of the fight in which he was
involved when working on Home Fries in 1996, now 9 years
ago, and one occasion, the date of which he could not specify,
in which he observed that De La Fuente “crisscrossed several
rows of chairs after somebody” at a union meeting. Faucett
acknowledged that he had hired the other participant in the
fight that occurred during the filming of Home Fries, Joe Gal-
lion, but testified that he did so because the production com-
pany department head requested Gallion in a letter. Although
Faucett asserted that he had the letter with him in his vehicle,
the Respondent did not seek to introduce it. There is no evi-
dence that any representative of the production companies that
produced The Ringer and The Wendell Baker Story either stated
or wrote that De La Fuente, who was never referred because he
had been removed from the A-list, should not be hired. Faucett
did not testify to any occasion upon which he had ever refused
to hire an employee who had been properly referred from the
A-list, and I do not credit his testimony that he would have
refused to hire De La Fuente. Even if I were to assume that
Faucett would not have hired him, there was sufficient work for
employees on the A-list when The Ringer and Wendell Baker
were being filmed including Cheer Up, for which Schriber was
the transportation manager, and Friday Night Lights, the trans-
portation manager for which did not testify.
III. BACKPAY
A. Wages
The backpay period herein begins on December 18, 2002,
and ends on September 1, 2004. The Respondent argues that
there is no backpay due in the fourth quarter of 2002, the period
from December 18 through December 31, 2002. I agree. Work
on Secondhand Lions, shown on the exhibits under its working
title as Avery Pix, was concluded. Although some drivers were
paid in late December, De La Fuente, who received a payment
after December 18, testified that the work was done when the
drivers with whom he worked gathered with Schriber in mid-
December. It was at that gathering that Schriber advised them
to be ready to go to work on The Alamo. There is no evidence
establishing that De La Fuente would have been hired for pre-
production work on The Alamo. Similarly situated employees,
Francisco De La Fuente, Jesus Tellez, and Rolando DeHoya did
not begin work on The Alamo until January.
In the backpay period, as reflected in General Counsel’s Ex-
hibit 2, employee Francisco De La Fuente worked on The
Alamo for almost 6 months in 2003, and then worked for 5
months on Cheer Up. In 2004, he worked on 3001 for about 3
months. He worked a total of 2831.3 hours, 1912 regular hours
and 919.3 overtime hours, 32 percent of the total. There is no
evidence as to whether he ever refused overtime work.
Employee Rolando DeHoya worked on Secondhand Lions as
confirmed by payment for 40 hours for the pay period ending
December 21, 2002. Thereafter, in 2003, he worked for 6
months on The Alamo and 4 months on Cheer Up. In 2004, he
worked on Friday Night Lights from February through April,
for 2 weeks on Scanner Darkly in June, and again on Friday
Night Lights in August. Employee DeHoya worked 2939.7
hours, 1976 regular hours and 963.7 overtime hours, 32.8 per-
cent of the total. There is no evidence as to whether he ever
refused overtime work.
Employee Jesus Tellez worked on The Alamo for 6 months
in 2003, but did not work on Cheer Up. The next time Tellez is
shown as working is in late December 2004, when he worked
40 regular hours and 10 overtime hours on Friday Night Lights
earning a total of $1,254.55. In January 2004, Tellez continued
to work on Friday Night Lights until late April. In the last
week of April and first week of May 2004, he worked for 2
weeks on 3001. Victor De La Fuente was assigned from the
general referral list to work on $5.15/Hour in the fourth quarter
of 2003 and earned $3,606.51. For De La Fuente to be re-
ferred, the A-list would have to have been exhausted. Since
Tellez was not referred to $5.15/Hour, it would appear that he
was working as a captain or cocaptain with those higher earn-
ings excluded from the compliance specification, that he did
not seek referral in the fourth quarter of 2003 until late Decem-
ber, or that he refused a referral. In the fourth quarter of 2003,
Tellez worked 2693 hours, 1720 regular hours and 973.3 over-
time hours, 36.1 percent of the total, as a class B driver. Fran-
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD694
ciso De La Fuente and DeHoya each worked more than 600
hours in the fourth quarter of 2003, the average being a total of
643.75 of which 476 were regular hours and 167.75 were over-
time. If Tellez had worked those average hours as a class B
driver rather than the 50 total hours he actually worked as a
class B driver, his total would be 3286.75, 2155.75 regular
hours and 1131 overtime hours.
The formula plead in the compliance specification reasona-
bly and fairly projects the number of hours that De La Fuente
would have worked. The foregoing summary of the employ-
ment of three similarly situated employees who worked on The
Alamo after Secondhand Lions, just as Transportation Manager
Schriber said they would, confirms the validity of the backpay
formula employed by Compliance Officer Maas. The compli-
ance specification reflects an average total of 3068.8 hours for
class B drivers, 1,942.7 regular hours and 1126.1 overtime
hours, 36.7 percent of the total hours worked. If backpay were
to be calculated upon the employment of specific employees, it
would need to take into account whether the employees ever
refused overtime as well as the reason for the absence of earn-
ings in any specific quarter. Thus, if Tellez had worked the
average hours worked by Francisco De La Fuente and DeHoya
rather than the 50 total hours he actually worked as a class B
driver in the fourth quarter of 2003, his total hours would be
3286.75 of which 1131 would have been overtime hours. Both
figures exceed the average computed in the compliance specifi-
cation. The foregoing extrapolation confirms the reasonable-
ness of the calculations reflected in the compliance specifica-
tion based upon the average employment of all class B drivers,
omitting earnings when serving as a captain or co-captain, in
achieving the objective of “even[ing] out discrepancies between
the drivers who worked a lot and the drivers who did not”
stated by Compliance Officer Maas.
The gross backpay formula using the average number of
hours worked by similarly situated class B drivers in each quar-
ter, disregarding earnings when the drivers were not paid as
class B drivers and without regard to whether the drivers sought
overtime or referral, is an appropriate method for determining
the hours that discriminatee Victor De La Fuente would have
worked absent the discrimination against him. The Respon-
dent’s brief sets out an alternative backpay computation based
upon the earnings of three of the employees included in the
averages utilized in the specification. Employee Cliff Hunt
worked on The Alamo in early January but had no earnings as a
class B driver from that production after January 10, 2003,
when other drivers were working full weeks with overtime.
The record does not show whether he became a captain or co-
captain. Employee Allene Schriber had no earnings as a class
B driver in the third and fourth quarters of 2003. Employee
Alan Themer, who the Respondent’s answer denies was a class
B driver, had no earnings as a class B driver in either the first or
second quarters of 2003. Regarding Themer, Maas testified
that the only “earnings of his that I used were when he was
working as a class B driver.” De La Fuente would, consistent
with Schriber’s December comments, have worked on The
Alamo. There is no evidence establishing in what capacity, if
any, the foregoing three employees were working in quarters in
which they had no earnings as class B drivers. If they were
working as captains or cocaptains, that employment would not
reduce the average number of hours of available employment
for class B drivers. I find that the backpay formula of quarterly
averages actually worked by employees when employed as
class B drivers, untainted by extrapolation, is reasonable and
that it appropriately projects the average number of hours that
De La Fuente would have worked. See Performance Friction
Corp., 335 NLRB 1117 (2001).
The compliance specification acknowledges that De La
Fuente was unavailable for work due to illness from June 20
through 24, 2004; however, no adjustment was made in that
regard. I find that an appropriate adjustment is required. A 13-
week quarter, with a regular workweek of 40 hours, yields 520
hours. June 20 was a Sunday, thus, De La Fuente was unavail-
able for 32 hours, 6.15 percent of the regular total hours avail-
able. His backpay for the second quarter should be reduced by
6.15 percent with a concomitant reduction in overtime. The
foregoing results in a deduction of $702.31 from the backpay
for the second quarter of 2004.
Consistent with the foregoing findings and the calculations
reflected on appendix E to the third amended compliance speci-
fication, deleting backpay liability in the amount of $379.84 for
the fourth quarter of 2002, and reducing the amount of backpay
due for the second quarter of 2004, I find that the Respondent is
liable for wages totaling $72,664.20, which includes regular
hours, overtime hours, and holiday pay.
B. Meals/Per Diem
The Respondent argues that the compliance specification’s
inclusion of meals/per diem loss would reimburse De La Fuente
for an expense that he did not incur. Testimony establishes that
these employees regularly ate from the catering trucks that
made food available for cast and crew. One of the confronta-
tions between De La Fuente and Schriber was over reimburse-
ment for a meal when De La Fuente had been sent off of the
set. There is no evidence that employees paid for food from the
catering trucks. Even if they did, the meal reimbursement was
unrelated to actual cost. When a meal allowance was included
in the contract between the Union and production company, the
employee need not present any receipts. As De La Fuente testi-
fied, “You just get it.” “[A]utomatically paid emoluments of
employment are properly deemed to be a part of gross back-
pay.” Ryder System, 302 NLRB 608 fn. 2 (1991). I find the
Respondent Union liable for meal and per diem payments to
Victor De La Fuente based upon the calculations set out in the
compliance specification less $40.49, 6.15 percent of the
amount calculated for the second quarter of 2004. There was
no liability for meal payments in the fourth quarter of 2002.
Therefore, the total liability is $4,945.95.
C. Pension Fund Contributions
At the hearing, counsel for the Respondent acknowledged
that “[e]mployment under a contract will generate a benefit in
the form of payment to a pension fund.” I find the Respondent
liable for pension payments on behalf of Victor De La Fuente
based upon the calculations set out in the compliance specifica-
tion less the contribution for the fourth quarter of 2002, in the
amount of $28 and less $40.49, 6.15 percent of the contribution
TEAMSTERS LOCAL 657 (TEXIA PRODUCTIONS) 695
calculated for the second quarter of 2004. The total is
$3,835.52.
D. Health and Welfare Fund Contributions
(Medical Expenses)
The compliance specification sets out the Respondent’s li-
ability to the union health and welfare fund for a contribution
commensurate with De La Fuente’s projected earnings. The
Respondent acknowledges its liability for De La Fuente’s out of
pocket medical expenses, established by documentary evi-
dence, but argues that any liability to the fund is punitive. De
La Fuente made no claim for benefits to the union health and
welfare fund when he received medical treatment because he
believed, due to his limited employment, that he would not be
eligible. The General Counsel presented no evidence contra-
dicting De La Fuente’s understanding that his eligibility was
dependent upon his current contributions, nor did counsel in-
troduce any documents establishing the requirements for eligi-
bility for fund benefits or the amount of benefits for which the
fund, on behalf of De La Fuente, should have been liable. Inso-
far as a limited number of drivers were employed on each
movie production, employment of De La Fuente would have
simply substituted him for the individual on whose behalf the
payments to the fund were being made. There is no evidence of
any loss to the health and welfare fund, against which De La
Fuente made no claim. The fund is not mentioned in the Order.
I agree with the Respondent and find that its obligation is to
make De La Fuente whole and that this will be accomplished
by payment to him of the expenses established in the record,
$1,692.25.
[Recommended Order omitted from publication.]