Tualatin Electric, Inc.

National Labor Relations Board - Board Decisions

May 12, 2000

331 N.L.R.B. 36 (N.L.R.B. 2000)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 36
Tualatin Electric, Inc. and International Brotherhood
of Electrical Workers, Local No. 48. Cases 36–
CA–6874 and 36–CA–7099
May 12, 2000
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS FOX, LIEBMAN, AND HURTGEN
On November 10, 1997, Administrative Law Judge
Burton Litvack issued the attached supplemental deci-
sion. The Respondent filed exceptions and a supporting
brief. The General Counsel and the Charging Party each
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 decision and the record
in light of exceptions and briefs and has decided to af-
firm the judge’s rulings, findings,1 and conclusions and
to adopt the recommended Order as modified.2
This backpay proceeding involves discriminatee Ed-
ward Campbell who was unlawfully discharged by the
Respondent because he was a “salt”3 and discriminatees
Steven Dietrich, Paul Kingston, Gary Manuel, and Cal
Caines who the Respondent unlawfully refused to hire
because they were “salts.”4 Contrary to our dissenting
colleague, we find no merit to the Respondent’s conten-
tions that the traditional construction industry backpay
and reinstatement remedy should not apply to salts and
that the discriminatees did not fulfill their obligation to
mitigate backpay damages. As the Board’s recent deci-
sion in Ferguson Electric Co., 330 NLRB 514 (2000),
makes clear, both the traditional remedial approach and
mitigation analysis apply in “salting” cases.

1 The Respondent excepts to the judge’s finding that the Union’s
December 23, 1993 letter did not toll the Respondent’s backpay obliga-
tion to the five discriminatees. We find no merit in the Respondent’s
exception. As found by the judge, although it had abandoned its active
organizing campaign, the Union continued to authorize its members to
work for the Respondent after December 20 in order to obtain informa-
tion in support of its area standards’ picketing, and an unemployed
member was hired by and worked for the Respondent into 1994. Fur-
ther, the December 20 letter clearly states that the Union’s change from
an organizing objective to an area standards’ objective was due to the
chilling effect on its organizing activities brought about by the Respon-
dent’s unlawful acts. Absent these unlawful acts, the Union would
have persisted in its organizing campaign and would have continued to
utilize salts in that campaign. Inasmuch as the Respondent’s miscon-
duct played a part in the Union’s canceling its organizing campaign, we
find that its cancellation cannot be used as the basis for tolling backpay.
To find otherwise would allow the Respondent to benefit from its own
misconduct.
2 By letter dated October 22, 1999, counsel for the Charging Party
notified the Board that discriminatee Edward Campbell died on Febru-
ary 2, 1999, and requested that, in the event that the Board affirms the
judge’s award of backpay to Campbell, the payee be designated as his
widow, Carol A. Campbell. In support of this request, counsel for the
Charging Party submitted copies of Campbell’s death certificate and a
community property agreement between Edward Campbell and Carol
A. Campbell. Accordingly, we shall order that the backpay due Edward
Campbell shall be paid to the legal administrator of his estate or to that
person authorized to receive the backpay award under applicable state
law. ABC Automotive Products Corp., 319 NLRB 874, 878 fn. 8
(1995).
3 312 NLRB 129 (1993), enfd. 84 F.3d 1202 (9th Cir. 1996).
4 319 NLRB 1237 (1995). As the judge found, under the Union’s
“salting” resolution, the business manager authorizes members or
“salts” to seek employment with nonsignatory contractors for the pur-
pose of organizing the employees of such contractors.
At the outset, it is well settled that the discriminatees’
status as salts does not deprive them of the protection of
the Act. As the judge correctly found, the five discrimi-
natees have been, at all material times, employees within
the meaning of Section 2(3) of the Act. NLRB v. Town &
Country Electric, 116 S.Ct. 450 (1995). Just as they do
not forfeit their “employee” status or their statutory pro-
tection from unlawful discrimination, the salts do not
forfeit their eligibility for backpay and reinstatement to
remedy the discrimination. Under Dean General Con-
tractors, 285 NLRB 573 (1987), the Board orders the
traditional reinstatement and backpay remedy with the
understanding that the respondent can introduce evidence
at compliance regarding the likelihood of the discrimina-
tee’s transfer or reassignment to other projects subse-
quent to the job from which he had been unlawfully dis-
charged or denied employment. It is the respondent’s
burden to establish that, under its established policies, the
discriminatees would not have been transferred or reas-
signed to another job after the project at issue ended. See
Ferguson Electric, supra, slip op. at 2–3. In the instant
case, the Respondent has failed to offer any evidence to
meet that burden.
Contrary to our dissenting colleague, we also find no
merit to the Respondent’s contentions that the discrimi-
natees failed to satisfy their obligation to mitigate dam-
ages because they followed their normal pattern of seek-
ing employment through the Union’s hiring hall. As the
judge observed, the Board has long held that, in seeking
interim employment, a discriminatee need only follow
his regular method for obtaining work. See Ferguson
Electric, supra, slip op. at 5. In Ferguson Electric, the
Board rejected an employer’s argument that a failure to
mitigate damages can be established solely on the basis
of a union’s limitations on the “universe” of employers
to whom an organizer may apply for work. Id. In the
instant case, the judge found that, while the Union read-
ily utilizes unemployed members who are registered on
its out-of-work lists as salts to assist in organizing spe-
cific nonsignatory contractors, there is no evidence that
the Union grants unemployed members unlimited ap-
proval to work in nonunion jobs. Instead of subjecting
themselves to possible internal union charges and sanc-
tions by seeking work with nonsignatory contractors
through newspaper advertisements, the discriminatees
followed their accustomed method of obtaining work
through the Union’s hiring hall. See, e.g., Big Three
Industrial Gas, 263 NLRB 1189, 1216–1217 (1982);
Local 90 Plasterers, 252 NLRB 750, 754 (1980). We
agree with the judge that, in doing so, the discriminatees
331 NLRB No. 6
TUALATIN ELECTRIC 37
did not fail to make a reasonable effort to mitigate dam-
ages.
Similarly, we find no merit in the contention that dis-
criminatee Campbell willfully failed to mitigate damages
when he quit his interim job at Team Electric after the
Union withdrew its authorization to work for that nonun-
ion company. Following his unlawful discharge by the
Respondent, Campbell sought work through the Union’s
salting program and was instructed to seek employment
with Team Electric, the contractor on an airport prevail-
ing wage job that the Union was attempting to organize.
He was hired, but not placed on the airport project. Two
weeks later, the Union terminated Campbell’s authoriza-
tion to continue working for Team Electric. Campbell
quit the job rather than subject himself to internal union
charges and penalties for working for a nonunion con-
tractor. We agree with the judge that since, as discussed
above, an employee is free not to seek interim employ-
ment where it would subject himself to internal union
discipline, Big Three Industrial Gas, supra; Local 90
Plasterers, supra, it follows that an employee is also free
to quit such employment for the same reason. Accord-
ingly, we find that Campbell did not incur a willful loss
of interim earnings by quitting his job with Team Elec-
tric after the Union withdrew its salting authorization.
In the instant case, the Respondent offers no evidence
that the discriminatees failed to make a good-faith effort
to follow their usual method of seeking employment, that
the Union’s policies unreasonably limited their job
searches, or that the discriminatees failed to make rea-
sonable efforts to mitigate damages. In the absence of
such evidence, we find that the discriminatees are eligi-
ble for backpay in the amounts set forth in the judge’s
decision.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Tualatin Electric, Inc., Wil-
sonville, Oregon, its officers, agents, successors, and
assigns shall pay to Edward Campbell5 the sum of $8122,
Steven Dietrich the sum of $5921, Gary Mangel the sum
of $24,003, Cal Caines $7056, and to Paul Kingston the
sum of $6046, with interest to be computed in the man-
ner prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987), minus tax withholdings required by
Federal and state laws.

MEMBER HURTGEN, dissenting in part.
In this backpay proceeding, the five discriminatees
were “salts,” i.e., employees who were sent by the Union
to the Respondent, a nonunion contractor, to seek jobs
with the intent of organizing the Respondent’s employ-
ees for the Union. One employee (Edward Campbell)

5 Since Campbell is deceased, the backpay due him shall be paid to
the legal administrator of the estate or to any person authorized to re-
ceive such payment under applicable state law.
was hired but then terminated by the Respondent; four
were not hired. In determining backpay, my colleagues
in the majority have applied certain principles with
which I disagree.
First, the majority found that Dean General Contrac-
tors, 285 NLRB 573 (1987), should be applied in deter-
mining the amount of backpay due to the employees.
Under Dean, the Board presumes that, absent discrimina-
tion, a discriminatee would have been sent to another job
at the conclusion of the job from which he was fired. For
the reasons set forth in my dissent in Ferguson Electric
Co., Inc., 330 NLRB 514 (2000), I disagree with Dean,
at least as applied to “salt” situations.
My colleagues assert that the Respondent is free to es-
tablish that the discriminatees would have quit or refused
to accept transfer or reassignment to another job. In my
view, however, as discussed in my dissent in Ferguson, it
is appropriate to place the burden of production of evi-
dence on the Union. After all, the Union is the party
which proclaims and administers the policies under
which its members can/cannot work for employers.
Second, I disagree with the majority concerning the
sufficiency of the efforts of the “salts” in seeking interim
employment in order to satisfy their obligation to miti-
gate damages. The majority finds that it is sufficient for
these union “salts” to follow their normal pattern of ob-
taining employment. Under that pattern, the “salts” seek
employment only through the Union. They secure em-
ployment only with the Union’s consent, and the Union
will give its consent only with respect to those nonunion
employers whom the Union wishes to organize. In my
opinion, the Union cannot so limit the duty to mitigate
damages. In this case, the Respondent presented evi-
dence of numerous job opportunities for electrical work-
ers with nonunion contractors in the Portland, Oregon
area during the backpay period. It is not clear whether
the Union gave its consent for the salts to work at these
jobs. But, whether it did or did not, the result would be
the same. That is, if the Union gave its consent for these
“salts” to work on these jobs (so as to organize there),
there is no reason for the “salts” not to work there. If the
Union withheld its consent, that cannot be a justification
for a failure to mitigate. The Respondent’s backpay ob-
ligation cannot be dependent on the Union’s willingness
to consent to mitigation.
With particular respect to discriminatee Campbell, I
find that he was not due any backpay from July 31 to
August 24, 1992. Following his unlawful discharge on
July 17, 1992, Campbell, on instructions from the Union,
applied for work with Team Electric. The Union in-
structed Campbell to seek this work because it wished to
organize Team Electric employees who were working on
an airport job. Campbell was hired by Team Electric.
However, Team Electric did not assign him to the airport
job, but to another job. After 2 weeks, the Union termi-
nated his authorization to work for Team Electric, and he
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 38
quit the job on July 17. Contrary to the majority, I would
find that this quitting of a job, because of the wishes of
the Union, constituted a failure to mitigate backpay dam-
ages. I would accordingly award no backpay during this
period.

Linda J. Scheldrup, Esq., for the General Counsel.
Thomas M. Triplett, Esq. (Schwabe, Williamson, & Wyatt), of
Portland, Oregon, for the Respondent.
Norman D. Malbin, Esq., of Portland, Oregon, for the Charging
Party.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
BURTON LITVACK, Administrative Law Judge. On Septem-
ber 15, 1993, the National Labor Relations Board (the Board)
issued a Decision and Order in Case 36–CA–6874 (312 NLRB
129), finding that Tualatin Electric, Inc. (Respondent) termi-
nated its employee, Edward W. Campbell, in violation of Sec-
tion 8(a)(1) and (3) of the National Labor Relations Act (the
Act) and ordering Respondent to reinstate Campbell to his for-
mer job or, if the position no longer existed, to a substantially
equivalent position at another of Respondent’s projects, to
which Campbell would have been transferred at the conclusion
of his work at the jobsite from which he was terminated, and
make him whole, with interest, for any losses incurred as a
result of his unlawful termination. On May 28, 1996, the
United States Court of Appeals for the Ninth Circuit enforced
the Board’s Decision and Order. A controversy having arisen
over the liability for and the amount of payment due pursuant to
the Board’s Decision and Order, on January 16, 1997, the Act-
ing Regional Director for Region 19 of the Board issued a
compliance specification, alleging the amount of backpay owed
to Campbell by Respondent. Respondent timely filed an an-
swer, denying that it owes the said amount of backpay. On
December 18, 1995, the Board issued a Decision and Order in
Case 36–CA–7099 (319 NLRB 1237), finding that Respondent
had failed and refused to hire Steven Dietrich, Paul Kingston,
Gary Mangel, and Cal Caines in violation of Section 8(a)(1)
and (3) of the Act and ordering Respondent to offer to the four
discriminatees immediate employment in positions to which
they applied and for which they are qualified or, if nonexistent,
to substantially equivalent positions and to make each whole,
with interest, for any losses sustained as a result of Respon-
dent’s refusal to hire him. A controversy having arisen over the
liability for and the amount of backpay due to each discrimina-
tee pursuant to the Board’s Decision and Order, on October 17,
1996, the Acting Regional Director for Region 19 issued a
compliance specification, alleging the amounts of backpay
owed to Dietrich, Kingston, Mangel, and Caines by Respon-
dent. The latter timely filed an answer, denying that it owes the
said amounts of backpay. Having been consolidated, the is-
sues, raised by the compliance specifications and answers, were
the subjects of a hearing before me in Portland, Oregon, on
March 11 and 12, 1997. At the hearing, all parties were af-
forded the right to examine and to cross-examine witnesses, to
offer into the record any relevant evidence, to argue their legal
positions orally, and to file posthearing briefs.
In contesting its alleged backpay liability in both of the
above-captioned matters, Respondent raises numerous affirma-
tive defenses. Initially, Edward Campbell, Steven Dietrich,
Paul Kingston, Gary Mangel, and Cal Caines sought employ-
ment with Respondent by virtue, and in aid, of a “salting” cam-
paign, which was conducted against Respondent by Interna-
tional Brotherhood of Electrical Workers, Local No. 48 (the
Union),1 and common to both of the above-captioned matters is
Respondent’s contention that salting employees should not be
entitled to any backpay and that, if salting employees are enti-
tled to backpay, the Board’s holding in Dean General Contrac-
tors, 285 NLRB 573 (1987), should not be applied.2 Also,
common to both matters are Respondent’s contentions that the
availability of work is to be judged by the “universe” of electri-
cal work and not merely by the jobs to which members may be
dispatched through the Union’s hiring hall and that the Board’s
Rules have deprived Respondent of its due-process rights under
the Fifth Amendment to the Constitution. Specifically, as to
Case 36–CA–6874, Respondent contends that Region 19 incor-
rectly estimated Campbell’s overtime earnings for Respondent
in August and September 1992; that Campbell breached his
duty to mitigate the amount of backpay, which is owed to him,
by failing to continue to work at the project to which he was
reinstated by Respondent and, “contemporaneously,” to protest
the validity of the reinstatement; and that Campbell willfully
incurred lost compensation by quitting employment with an-
other contractor. With regard to Case 38–CA–7099, Respon-
dent contests the calculation of the gross backpay amounts in
the amended backpay specification, asserting that the appropri-
ate wage rate for the third quarter of 1994 should be adjusted
downward to reflect money paid in lieu of certain fringe bene-
fits for work on prevailing wage jobs. Additionally, as to that
matter, Respondent contends that by the Union’s letter, dated
December 20, 1993, to Respondent limits the backpay claims of
each of the discriminatees; that, rather than April 28, April 18,
1995, is the proper cutoff date for backpay; that, Gary Mangel
willfully incurred lost interim earnings; that the cost of fringe
benefits should be credited as interim earnings; that premium
pay should be credited as interim earnings for employees King-
ston, Dietrich, and Mangel; and that wages, which are earned in
one calendar quarter but paid in the next, should be credited as
interim earnings in the quarter in which earned.
Based on the record as a whole, including my observation of
the demeanor of the several witnesses and the posthearing
briefs, which have been carefully considered, I make the fol-
lowing

1 A so-called salting campaign, such as conducted by the Union in
the above-captioned matters, involves a labor organization waiving its
prohibition against members working for nonunion contractors and
recruiting unemployed members to seek jobs with certain nonunion
contractors. The program works with the members agreeing to engage
in organizing on behalf of the labor organization amongst the employ-
ees of a nonsignatory contractor, and the labor organization promising
to provide those members with a wage subsidy that would bring their
nonunion wages up to union scale. Once the labor organization ceases
its organizing campaign against the nonunion contractor and the salting
program ends, the members are acutely aware that they must quit their
jobs or be subject to possible, substantial internal union fines.
2 In Dean General Contractors, the Board concluded that, in cases
involving unlawful terminations in the building and construction indus-
try, it would thereafter apply its traditional reinstatement and make-
whole remedy with the understanding that, at the compliance stage, a
respondent could offer evidence regarding the likelihood of future
reassignment and transfer. Subsequently, the Board applied the Dean
General Contractors rationale in fashioning a remedy for an unlawful
failure to hire. Casey Electric, Inc., 313 NLRB 774 (1994).
TUALATIN ELECTRIC 39
FINDINGS AND CONCLUSIONS
I. ISSUES COMMON TO BOTH CASES
Initially, I consider Respondent’s contentions that “salts”
should not be entitled to any backpay and, if entitled to back-
pay, receipt of such should be limited as the Union exercises
utter control over their employment by nonsignatory contrac-
tors. In this regard, the record reveals that the Union’s constitu-
tion and bylaws establish a mechanism for charging and disci-
plining members who work for nonsignatory contractors, and
Gerald Bruce, the business manager/financial secretary of the
Union, testified that, absent the Union’s salting resolution,3 any
member, who works for a nonsignatory contractor, is subject to
the Union’s internal disciplinary procedure. Bruce further testi-
fied that the Union regularly re-evaluates all salting campaigns
and determines whether the organizing should continue, and, if
the decision is to terminate a campaign,4 while union officials
do not demand that members leave the salting jobs, “they with-
draw authorization to work nonunion. And they inform the
member . . . he could be subject to internal charges.” In these
circumstances, counsel for Respondent argues that, as the Un-
ion, rather than the member or the employer, controls the length
of permissible employment and as the duration of primary or
interim employment becomes an issue of conjecture and specu-
lation controlled by a third party, the Board’s Dean General
Contractors, supra, rule for discriminatory refusals to hire or
terminations in the building and construction industry should
not apply to discriminatees, who act as salts while working for
or applying for work with nonunion contractors.
I find Respondent’s contentions to be without merit. Thus,
notwithstanding that they bear the euphemistic label, “salts,”
the five discriminates (Campbell, Dietrich, Mangel, Kingston,
and Caines), in the above-captioned matters, have been, at all
times material, employees within the meaning of Section 2(3)
of the Act. NLRB v. Town & Country Electric, 116 S.Ct. 450
(1995); Westpac Electric, 321 NLRB 1322 at fn. 3 (1996). Put
another way, by voluntarily obligating themselves to organize
on the Union’s behalf while employed by Respondent or, in
Campbell’s case, by an interim employer, none of the discrimi-
natees ever lost his status as a statutory employee. AJS Elec-
tric, 310 NLRB 121 at fn. 2 (1993). As the Board noted in
Westpac Electric, supra at 1322, “the appropriate remedy for
[employment discrimination] in these circumstances is rein-
statement and backpay subject to Dean General Contractors
. . . .” Notwithstanding, the clear Board law in this area, coun-
sel for Respondent urges a different rule in cases dealing with
union salting on grounds that, rather than the employee or the
employer, a third party, the Union, controls the length of em-
ployment with either the respondent or an interim employer.
However, the mere fact that a labor organization may influence
or control the length of a discriminatee’s employment with an
employer should not be enough to deny or limit his or her right
to a make-whole remedy for a violation of the Act. Thus, in

3 The Union’s salting resolution empowers the business manager to
authorize members to seek employment with nonsignatory contractors
for the purpose of organizing the employees of such contractors. The
resolution provides that, in so doing, the members maintain their posi-
tions on the Union’s out-of-work list and that “such members . . . leave
the employer or job immediately upon notification” by the Union.
4 For example, as herein, such might occur if, after being hired by
the targeted nonunion contractor, the Union’s salts are not assigned to
the jobsite, at which the Union desires to engage in organizing.
Big Three Industrial Gas, 263 NLRB 1189, 1216–1217 (1982),
a discriminatee had obtained interim employment as a so-called
traveler, and, after approximately 7 weeks of employment when
a local business agent made it known that travelers would have
to leave their jobs in order to make room in a reduced work
force for eligible local tradesmen, the discriminatee heeded the
call and quit the job. The Board sustained an administrative
law judge’s conclusions that the discriminatee acted reasonably
and that such did not constitute a willful refusal to maintain
interim employment.5 Likewise, members act reasonably when
heeding their union’s request that they abandon employment
with a nonsignatory contractor at the conclusion of a salting
campaign. Accordingly, Respondent’s contention that mere
participation in a salting campaign requires that discriminatees
be found ineligible for the Board’s traditional make-whole
remedy is, I believe, antithetical to the policies and the pur-
poses of the Act and without merit.
Counsel for Respondent next argues that the availability of
interim employment herein is to be judged by the “universe” of
electrical work and not merely by the jobs to which members
may be dispatched through the Union’s hiring hall. In support,
Respondent offered into the record in excess of 250 newspaper
advertisements for electricians or electrician technicians in the
Portland, Oregon area during the time period June 1993
through April 1995, and, based on these job openings, counsel
argues that “reasonable efforts to mitigate were not undertaken,
by failing to seek work within the non-union segment of the
electrical construction industry . . . .” While there may well
have been numerous nonunion jobs available for electricians in
the Portland area, the United States Court of Appeals for the
Ninth Circuit has held that “a wrongfully discharged employee
is required to make only a reasonable effort to obtain interim
employment, and is not held to the highest standard of dili-
gence.” Kawasaki Motors Mfg. Corp. USA v. NLRB, 850 F.2d
524, 527 (9th Cir. 1988). In this regard, contrary to Respon-
dent’s counsel, the Board has long held that, in seeking interim
employment, a discriminatee need only follow his regular
method for obtaining work. Big Three Industrial Gas, supra at
1198; Seafarers (Isthmian Lines), 220 NLRB 698, 699 (1975).
In the above-captioned matters, while none of the discrimina-
tees sought to obtain nonunion jobs outside of the Union’s salt-
ing program, each is an IBEW member, and each apparently
followed his accustomed method of obtaining work, doing so
through the Union’s or another affiliated IBEW local union’s
hiring hall. In Seafarers, utilizing rationale equally applicable
herein, the Board noted that “when the respondent chose to
discriminate . . . it did so with knowledge of the work search
habits of [the Union’s] members and it ought not now be heard
to complain that [the discriminatees’] habits bar [them] from
backpay since it is clear that [they] fulfilled [their] search re-
sponsibilities as any [union-member journeymen electricians]
normally would.” Id. Finally, counsel for Respondent asserts
that “a member who is out of work should apply for any elec-
trical work which is available and if offered employment, seek
to clear it with the union under the salting resolution.” How-
ever, while the Union readily utilizes unemployed members,
who are registered on its out-of-work lists, as salts to assist in
5 I am mindful of the fact that the holding in Big Three was over-
ruled by the Board in American Navigation Co., 268 NLRB 426 (1983),
but note that such involved an issue unrelated to the quitting of interim
employment.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 40
organizing specific nonsignatory contractors, there is no evi-
dence that the Union grants unemployed members unlimited
approval to engage in salting nonunion jobs, and I agree with
counsel for the General Counsel that the members would be
subject to internal union charges and sanctions were they to
gain employment with nonsignatory contractors through news-
paper advertisements. Therefore, I find this contention to be
without merit.
Respondent’s final argument, common to both cases, is that
it has been denied procedural due process inasmuch as it was
not permitted to establish its defense that a proximate, interven-
ing or superseding cause of harm to the discriminatees was
misconduct by the Union. More specifically, counsel for Re-
spondent argues that Region 19 of the Board improperly denied
his prehearing information requests and his request to take pre-
hearing depositions of union officials. Counsel further argues
that, at the hearing, he was improperly denied the opportunity
to adduce general evidence regarding the alleged illegal opera-
tion of the Union’s hiring hall unless such specifically related
to the dispatch of any of the discriminatees. In these regards,
through a subpoena duces tecum, the Union’s hiring hall re-
cords were made available to counsel during the hearing, and
he made use of these to examine witnesses and offered portions
as a hearing exhibit. Moreover, at the hearing, Region 19 made
available to counsel all documents in its backpay file on which
its calculations for the amounts of backpay, which were alleg-
edly due to each discriminatee, were based. Without regard to
the relevancy of Respondent’s prehearing requests, the Board
has recently reaffirmed that it “does not in ordinary circum-
stances permit pre- hearing discovery such as depositions” in
compliance proceedings and that “neither the constitution nor
any statute requires making such discovery routinely avail-
able.” David R. Webb Co., 311 NLRB 1135 at 1135–1136
(1993). Furthermore, during the hearing, the only issues before
me concerned the amount of backpay due to the discriminatees,
and Respondent was permitted to utilize the Union’s hiring hall
records insofar as they established that any discriminatee re-
fused a dispatch for interim employment. In these circum-
stances, while it is true that Respondent was denied the oppor-
tunity to litigate the irrelevant issue concerning the general
legality of the Union’s hiring hall operations, I reject counsel’s
contention that his client was denied procedural due process in
these proceedings.
II. ISSUES RELATING TO CASE 36–CA–6874
Respondent’s initial contention is that, for purposes of calcu-
lating gross backpay, the compliance officer for Region 19
incorrectly estimated the amount of overtime earnings, which
Edward Campbell would have received from Respondent had
he continued to work on the Project Thunder project during
August and September 1992. In this regard, in his answer to
the compliance specification, Respondent’s counsel asserted
that “the proper measure is the 70 employees working during
the months of August and September” and, based on their total
overtime, set forth estimated overtime earnings for Campbell
during the above 2 months, an amount which is substantially
lower than the General Counsel’s estimate. At the hearing, the
Region 19 compliance officer, James Kobe, explained his
methodology for calculating Campbell’s gross backpay, includ-
ing overtime earnings, and, in particular, his use of a represen-
tative complement of 32 journeyman electricians, whose aver-
age earnings were utilized as the basis for calculating Camp-
bell’s gross backpay amount, including overtime. Respondent
offered no evidence in support of its counsel’s assertions in his
answer, and, in particular, failed to identify the 70 employees,
who were mentioned in the answer, or to establish how it ar-
rived at its overtime calculations. As the Board stated in Rikal
West, Inc., 274 NLRB 1136, 1137 (1985), a compliance officer
is responsible for selecting the “most appropriate formula” for
calculating backpay in a particular case, and it is recognized
that creating a method to determine what would have happened
is “frequently problematic” and “inexact.” Thus, the Board
need only utilize a backpay formula, which is “reasonably de-
signed” to arrive at the approximate amount of backpay due.
Kobe’s approach to calculating Campbell’s gross backpay ap-
pears to be a reasonable method, and Respondent offered no
evidence to the contrary. Accordingly, I shall adhere to gross
backpay figure as set forth in the amended backpay specifica-
tion for Campbell.
Respondent’s next contention is that Campbell breached his
duty to mitigate the amount of backpay, which was due him, by
failing to continue to work at a Wal-Mart project for Respon-
dent and contemporaneously protest the assignment. As to this,
the record reveals that, on July 17, 1992, Campbell was unlaw-
fully discharged by Respondent from its Project Thunder job-
site in Wilsonville, Oregon; that, on August 24, 1992, pursuant
to a settlement agreement, rather than to Project Thunder, Re-
spondent reinstated him to work at a Wal-Mart project in Sa-
lem, Oregon; and that, 2 days later, on August 26, Campbell
voluntarily abandoned his employment as he did not believe his
assignment to the Wal-Mart project constituted proper rein-
statement. Subsequently, the Ninth Circuit enforced the
Board’s holding that, as a matter of law, Respondent’s assign-
ment of Campbell to work at its Wal-Mart project did not con-
stitute reinstatement to his former position, which remained in
existence at the time of his so-called reinstatement. Neverthe-
less, relying on dicta in Polynesian Cultural Centre Inc. v.
NLRB, 582 F.2d 467, 476 fn. 4 (9th Cir. 1978), counsel for
Respondent argues that the Board should consider Campbell’s
voluntary abandonment of his job at Respondent’s Wal-Mart
project in computing the amount of backpay due him and con-
clude that, by quitting, the discriminatee willfully failed to
mitigate said amount. However, inasmuch as the Ninth Circuit
and the Board had concluded that his reinstatement was invalid,
Campbell was not required to have accepted it under any cir-
cumstances. Rikal West, Inc., supra at 1139. Moreover, as the
record further reveals that the distance from Campbell’s home
to Salem was 40 miles further than the distance from his home
to Wilsonville and that the Project Thunder job paid overtime,
which was not paid, by Respondent, at its Wal-Mart job, the
latter cannot be found to have been substantially equivalent to
the Project Thunder job. In such a circumstance, “where . . .
employment positions are not substantially equivalent to the
position from which the discriminatee was discharged, the dis-
criminatee-claimant may quit the non-equivalent employment
without loss of pay . . . .” Churchill’s Supermarkets, 301
NLRB 722, 725 (1991). Finally, as noted by the United States
Court of Appeals for the Sixth Circuit in similar circumstances,
requiring Campbell to remain working at the Salem Wal-Mart
project for any reason would have been viewed by Respon-
dent’s other employees, at best, as their employer’s “grudging”
compliance with an order of the Board and, at worst, “as puni-
tive.” NLRB v. Seligman & Associates, 808 F.2d 1155, 1160
(6th Cir. 1986). Therefore, I reject this argument.
TUALATIN ELECTRIC 41
Respondent’s next contention is that, in quitting his interim
employment with Team Electric, Campbell incurred a willful
loss of interim earnings for the period, August 1 through 24,
1992, and should receive no backpay for this time period. In
this regard, the record discloses that, on being terminated by
Respondent on July 17, 1992, Campbell returned to the Union’s
hiring hall and, due to his position on the out-of-work list, in-
quired whether there was any other contractor, against whom
the Union desired to implement a salting campaign in which he
could participate. He was informed that the Union desired to
organize Team Electric and was instructed to seek a job with
that contractor on an airport prevailing wage job. Campbell
was hired by Team Electric but was not assigned to its airport
project, and 2 weeks later, as Campbell was not placed on the
job which the Union desired to organize, the Union terminated
his authorization to continue working for Team Electric as a
salt. In these circumstances and rather than subjecting himself
to internal union charges and penalties for working for a non-
signatory contractor, on July 31, Campbell quit his job with
Team Electric. There is no question that quitting interim em-
ployment, without good cause, is a willful loss of earnings war-
ranting a reduction of backpay. Churchill Supermarkets, supra;
Newport News Shipbuilding Co., 278 NLRB 1030, 1033
(1986). On the other hand, the Board has concluded that dis-
criminatees have established good cause for quitting interim
employment when such a job is annoying or lacks prestige
(Shell Oil Co., 218 NLRB 87, 89 (1975)), or is one for which
the discriminatee receives no fringe benefits payments (J. S.
Alberici Construction Co., 249 NLRB 751, 752 (1980)), or
when a business agent requests that travelers adhere to internal
trade union policies and do so in order to create job openings
for eligible local union members (Big Three Industrial Gas,
supra). Likewise, a union member, who voluntarily quits in-
terim employment rather than subjecting himself to internal
union charges and sanctions for working for a nonsignatory
after the withdrawal of a salting authorization, has established
good cause so as not to face a reduction of backpay. Such
must, indeed, be true as discriminatees, who are members of
labor organizations, may not be faulted for not seeking jobs
with nonsignatory contractors when accepting such employ-
ment might result in the individual subjecting himself to fines
or expulsion for disregarding union rules. Plasterers Local 90,
252 NLRB 750, 754 (1980). In these circumstances, I find
Respondent’s argument to be without merit.6
Based on the foregoing and inasmuch as I have found Re-
spondent’s arguments without merit, I find that Respondent’s
obligation to discriminatee, Edward Campbell will be dis-
charged by the payment to him of the amount set forth in Ap-
pendix A hereto. The amount shall be payable plus interest to

6 Apparently, Respondent failed to immediately pay Campbell for
the 2 days he worked at its Wal-Mart job in Salem, Oregon. A lawsuit
was filed, and Respondent was found to have intentionally withheld
Campbell’s wages. As a result, under a State of Oregon statute, the
discriminatee was awarded and received a civil penalty, totaling $2200,
from Respondent. Counsel for Respondent contends the sum should be
used as an offset against the total amount of backpay due to Campbell.
I disagree with counsel for Respondent and agree with counsel for the
General Counsel that, using the penalty as a backpay offset would be
unconscionable. Thus, Respondent acted in violation of State of Ore-
gon law by withholding Campbell’s wages and was penalized for the
conduct. To permit an offset would be to reward Respondent for its
illegal act. Such is not permissible.
be computed in the manner set forth in New Horizons for the
Retarded, 283 NLRB 1173 (1987).7 The net backpay figure in
Appendix A is based on that which was set forth in the
amended backpay specification, General Counsel’s Exhibit 2
and states the backpay for each quarter in which backpay is
due.
III. ISSUES RELATING TO CASE 36–CA–7099
At the outset, Respondent contends that Steven Dietrich,
Gary Mangel, Paul Kingston, and Cal Caines are each entitled
to no backpay after December 20, 1993. On that date, the Un-
ion sent the following letter to Respondent:

As you are aware, [the Union] has in the past been in-
terested in organizing the employees of Tualatin Electric,
Inc. In response to this, Tualatin Electric terminated at
least one . . . worker who supported the Union and has re-
fused to hire workers who have a connection to the IBEW
. . . . Unfortunately, Tualatin Electric’s actions have had a
tremendously chilling effect on our organizing effort. Ac-
cordingly, one purpose of this letter is to advise you that
[the Union] no longer seeks to organize workers of Tuala-
tin Electric and no longer seeks recognition from Tualatin
Electric. We intend to use picketing to truthfully advise
the public of Tualatin Electric’s illegal acts. A second
purpose of this letter is to inform you that we intend to in-
form the public that Tualatin’s employees receive substan-
dard wages and fringe benefits. . . . This letter is not in-
tended to request that Tualatin Electric, Inc. enter into col-
lective bargaining with [the Union] or that Tualatin Elec-
tric, Inc. refuse to employ any individual or group of indi-
viduals, nor do we intend to interfere with the rights of
Tualatin’s employees to work without becoming members
of [the Union]. We do not seek to organize Tualatin’s
employees nor does this organization seek to represent
Tualatin’s employees. [The Union’s] only object from this
point in time forward will be to inform the public about
the unfair labor practices that Tualatin Electric, Inc. has
committed and to inform the public . . . that Tualatin Elec-
tric, Inc.’s employees receive substandard wages and
benefits . . . .

Counsel for Respondent argues, based on the letter, that, as the
Union disavowed any organizational objective after the date of
the letter and as salting is based exclusively on organizational
objectives, its salting campaign against Respondent effectively
ended and that the discriminatees no longer could have worked
for Respondent. Accordingly, counsel argues, Respondent’s
backpay liability to each was cut off.
Gerald Bruce testified that the Union’s above-quoted letter
did not end the salting campaign against Respondent as the
Union continued to need information about its compensation to
employees, the types of jobs, the effect of the picketing, and
other matters.8 Moreover, and despite the assertion in the letter
7 Interest shall be computed at the “short-term Federal rate” for the
underpayment of taxes as set forth in the 1986 amendment to 26 U.S.C.
§ 6621.
8 Analysis of the Union’s salting resolution discloses that the sole
underlying purpose of the program is to permit the Union’s business
manager to “take any action necessary to organize the un-organized in
order to provide work opportunities for the membership” and to em-
power him “to authorize members to seek employment by non-
signatory contractors for the purpose of organizing the unorganized
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 42
that the Union’s only remaining object was area standards—to
inform the public of Respondent’s substandard wages and
benefits, Bruce stated that the ultimate goal at Respondent was
“always organizing,” and that “we still have salts there.” On
this latter point, the witness testified that, in 1993, an unem-
ployed member, Bob Fitzpatrick, was authorized to apply for
work with Respondent as a salt, that Fitzpatrick was hired by
Respondent and worked for 6 to 8 months into 1994, and that
Fitzpatrick eventually quit after the Union withdrew its authori-
zation for him to work nonunion as a salt. While I am troubled
by the fact that the Union may well have dissembled in its De-
cember 20, 1993 letter to Respondent and by Bruce’s seeming
disingenuous testimony, the latter’s testimony, regarding Bob
Fitzpatrick, was uncontroverted by Respondent. As the only
way an unemployed member could have worked for a nonsig-
natory contractor, such as Respondent, without subjecting him-
self to internal union sanctions, was by virtue of the salting
resolution and as Fitzpatrick evidently worked for Respondent
into 1994, one must conclude that, contrary to the Union’s
statements in its December 20 letter, the salting campaign
against Respondent did not conclude on said date. Accord-
ingly, contrary to Respondent, I cannot find that, as a matter of
law, the four discriminatees’ backpay was cut off as of Decem-
ber 20, 1993.
Next, Respondent questions Region 19’s gross backpay cal-
culation for the four discriminatees. As to this, the parties
stipulated that the average quarterly hourly wage rates, set forth
in Appendix A of the compliance specification, as amended, are
the correct wage rates for computing gross backpay during each
quarter of the backpay period with the exception of the $24.30-
per-hour average wage rate for the third quarter of 1994. Com-
pliance Officer Kobe testified that, while Respondent did pro-
vide him with a copy of a health care plan, as it provided no
records that employee compensation included payment for
benefit plans, such as the health plan or a retirement plan, in
calculating gross backpay, his assumption was that such com-
pensation represented only wages paid to employees. As to the
disputed average hourly wage rate, at the hearing, counsel for
Respondent contended that Respondent’s employees’ wage
rates were inflated during the third quarter of 1994 as the em-
ployees were working on a prevailing wage job and as a portion
of their wages represented compensation in lieu of benefits. In
this regard, Respondent’s president, Michael Overfield, testi-
fied that, on a publicly funded project, Respondent is obligated
to adhere to the prevailing wage standard in the area and bid for
the work accordingly. He added that the prevailing wage is
comprised of two parts, wages and the benefits package, and
stated that “my obligation is to pay [our employees] the wage
as specified and the benefits package as specified, either in
benefits and/or compensation to them.” With regard to the
third quarter of 1994, Overfield believed that the average em-
ployee wage of $24.30 reflected a prevailing wage job at the
high school in Wilsonville, Oregon, but “we . . . did several
prevailing wage jobs . . . they kind of blend together, so I’m not
exactly sure on their dates.” According to him, the highest
hourly wage rate for that quarter was $28 per hour, which
amount included wages and an amount for benefits,9 which the

. . . .” Bruce averred that the gathering of information was useful for
organizing purposes.
9 On Respondent’s payroll records, the dollar amounts “are com-
bined.”
employees10 could use to pay for “retirement” or “whatever
they did.” In this regard, Overfield stated, “[W]e used a . . .
money purchase retirement plan . . . we funded . . . their offset
went directly to their retirement plan.”11 During cross-
examination, Respondent’s president conceded that nothing in
the documents, which he gave to Region 19, establishes that the
$28 hourly wage rate resulted from work on a prevailing wage
job, and, asked if Respondent possessed documents supporting
his testimony that the high wage rate resulted from prevailing
wage work, Overfield asserted that Respondent has “certified”
payroll reports, which would show an amount deducted from
employees’ compensation to pay for a money purchase retire-
ment plan. However, as to this, Overfield conceded that he
neither gave such records to the Region 19 compliance officer
nor did he have the said documents in the hearing room. Fur-
ther, there is no record evidence establishing the existence of
any type of “money purchase retirement plan.”
While the high hourly wage rates for the third quarter of
1994 may, in fact, result from some of Respondent’s employees
having worked on a prevailing wage rate job during that time
period, the issue is whether the said employees’ hourly com-
pensation was paid entirely as wages or was a portion of such
compensation deducted to pay for some sort of a retirement
pension plan. The Region 19 compliance officer based his
calculation of the average employee wage rate for the above
time period on records, which were provided to him by Re-
spondent, and, in this regard, Respondent failed to provide the
compliance officer with any evidence, establishing that such an
employee retirement pension plan existed or that such was fi-
nanced by deductions from its employees’ wages. Likewise,
Respondent failed to corroborate the testimony of Overfield
with any such evidence. In these circumstances, given the lack
of supporting documentation, Overfield’s testimony alone is
insufficient to permit reliance on Respondent’s suggested alter-
native hourly wage rate for the third quarter of 1994, and I must
conclude that what Respondent did was to pay its employees
prevailing wages and benefits as wages and that the General
Counsel’s computation of gross backpay, as set forth in General
Counsel’s Exhibit 10, more than meets the legal standard of
permissible discretion in determining gross backpay. Rikal
West, Inc., supra at 1138.
Counsel for Respondent next contends that the value of
fringe benefit payments, made on behalf of each of the dis-
criminatees by interim union-signatory employers during the
backpay period, should be included as interim earnings, with
the discriminatees’ backpay adjusted accordingly.12 In this
regard, there is no dispute that Respondent pays wages only and
10 Overfield was unable to specify, by name, Respondent’s employ-
ees, who worked on the prevailing wage job during the third quarter of
1994, and he was only able to state that employees had worked on such
a job by their $28-per-hour wage rate. Asked if there was some other
explanation, which would explain such high wage rates, Overfield
answered, “[N]ot likely.”
11 During cross-examination, Overfield testified that “we paid the
amount that was required by the Bureau of Labor & Industries for the
job. The wage amount. The fringe benefit amount that was also re-
quired . . . we deducted out the standard things that we included and the
difference between that we paid to . . . a money purchase plan.”
12 Union signatory contractors made fringe benefits contributions for
employees in 1993 at the rate of $6.68 per hour, in 1994 at the rate of
$7.21 per hour, and in 1995 at the rate of $7.52 per hour.
TUALATIN ELECTRIC 43
does not contribute to a health insurance plan,13 a pension plan,
or any other such plan. In such circumstances, according to
Compliance Officer Kobe, the policy is to make no offset
against gross backpay for whatever is paid on behalf of dis-
criminatees as fringe benefits by interim employers. I believe
Kobe correctly stated the Board’s policy. Thus, the Board does
assign a monetary value to fringe benefits payments received
during interim employment, and equivalent such benefits,
earned from an interim employer, are properly offset against
gross such benefits, which are received from a respondent.14
However, in my view, as Respondent pays no fringe benefits,
no offset is possible, and any fringe benefits payments during
interim employment must be likened to supplemental income,
payment of which is not deductible as interim earnings.15 To
require otherwise would be inimical to the policies and pur-
poses of the Act. Accordingly, I reject Respondent’s argument.
Counsel for Respondent’s next contention concerns the Gen-
eral Counsel’s utilization of April 28, 1995, as the end date for
the backpay period. Rather, counsel argues that the date should
be April 18, 1995. In this regard, the parties stipulated that, on
April 18, Respondent sent a letter, offering reinstatement to
Dietrich, Mangel, Kingston, and Caines, to the Union’s attor-
ney; that the latter received Respondent’s letter on the same
date; and that, by a letter dated April 26, 1995, on behalf of the
four discriminatees, the Union’s attorney rejected Respondent’s
offers. Further, according to Compliance Officer Kobe, Region
19 was not informed of the above facts until May 1, 1995,
when Respondent’s attorney advised it of Respondent’s offers
and the rejections by the discriminatees. Kobe testified that the
foregoing represent rather unusual circumstance; that, nor-
mally, a respondent “communicates directly with the discrimi-
natees and, and the cutoff date is the date they [indicate their
unwillingness] . . . to go back to work or they accept it;” and
that Region 19 decided not to utilize April 18 as the cutoff date
“because that was not the day of the communication, that was
only the day [the offer] went to [the Union’s attorney].” As to
the selection of April 28, Kobe said that he decided to “split the
difference” between April 26 and May 1 in order to arrive at
the cutoff date. I agree with Kobe and counsel for the General
Counsel that April 18 cannot be used as the backpay cutoff
date. Thus, “a discriminatee upon receiving an offer of rein-
statement has a fundamental right to a reasonable time to con-
sider whether to return.” Penco Enterprises, Inc., 216 NLRB
734, 734–735 (1975). Herein, selection of April 18 as the
backpay cutoff date would have allowed each discriminatee no
time during which to consider Respondent’s offer. As to April
26 or May 1, as either appears to have been an acceptable cut-
off date, I cannot fault Kobe’s decision to “split the difference.”
Respondent’s next contention concerns discriminatee King-
ston. The record establishes that the discriminatee began in-
terim employment for Christenson Electric on June 20, 1993;

13 Apparently, Respondent does provide health insurance coverage
for its employees, for which employees pay by having an unspecified
amount deducted from their wages.
14 See the Board’s Casehandling Manual (Part Three), Compliance
Proceedings, sec. 10535.3.
15 For example, when a discriminatee works more hours for an in-
terim employer than he did for his gross employer, only interim earn-
ings based upon the same number of hours are offset. The excess is
considered supplemental income and not deductible. Regional Import
& Export Trucking Co., 318 NLRB 816, 818 (1995). The identical
considerations are applicable herein.
that he received his initial paycheck on June 27 after working a
full week; and that he received his next paycheck on July 4 for
work from June 27 through 30. The record further establishes
that Region 19 credited the amount of earnings to the third
quarter of 1993, when the wages were paid, rather than the
second quarter, when the wages were earned. Counsel for Re-
spondent “contends that interim earnings in a quarter means
just that—what was earned, not when those earnings were
paid.” However, it appears that Region 19 followed Board
policy, which is “to subtract interim earnings based on the quar-
ter in which they are paid rather than the quarter in which they
are earned.” Davis Coal Co., 275 NLRB 722, 725 (1985).
Accordingly, Respondent’s argument is without merit.
Next, Respondent contends that discriminatee Kingston
should receive no backpay for the third and fourth quarters of
1994 and the first quarter of 1995, that discriminatee Dietrich
should receive no backpay for the first and second quarters of
1994, and that discriminatee Mangel should receive no backpay
for the third quarter of 1994 inasmuch as, for the applicable
calendar quarters, each discriminatee earned significant
amounts of “contractual premium” pay, which the General
Counsel failed to deduct as interim earnings, and each dis-
criminatee “could and did earn one and one-half to two times
more than if working for Respondent for the identical hours.”
In this regard, the record establishes that, working on jobs for
union signatory contractors and irrespective of the number of
hours worked during Monday through Friday, union members
earn time and a half for any hours worked on a Saturday and
double time for any hours worked on a Sunday16 and that, as
employees of Respondent do not have the opportunity to work
appreciable overtime,17 Region 19 Compliance Officer Kobe
did not deduct, as interim earnings, any overtime payments
received by Kingston, Dietrich, Mangel, or Caines during the
backpay period. The record further establishes that, for the
calendar quarters at issue, W-2 reported income, from interim
employers, for discriminatees Kingston, Dietrich, and Mangel,
respectively, appears to be significantly greater than reported
interim earnings for each. For example, while earning $61,000
in 1994 and almost $74,000 in 1995 from Christenson Electric,
Kingston reported interim earnings of only approximately
$12,000 during the third quarter of 1994, $13,000 during the
fourth quarter of 1994, and approximately $26,000 during the
first quarter of 1995 and admitted that the difference was over-
time pay, received for voluntary work on Saturdays and Sun-
days. Compliance Officer Kobe explained that compliance
policy is not to count earnings from overtime work for an in-
terim employer as deductible interim income if the discrimina-
tee would not have had the opportunity to work the same
amount of overtime for the respondent.
Counsel for Respondent argues that the difference between
the W-2 reported income and reported interim earnings during
16 Counsel for Respondent terms the contractual payment for Satur-
day and Sunday work, which union members receive, “premium pay.”
At the hearing, counsel for the Union represented that, under the Un-
ion’s electrical industry collective-bargaining agreement, payment for
Saturday and Sunday work is classified as overtime pay and premium
pay is received for work on the swing and graveyard shifts.
17 Kobe testified that his analysis of Respondent’s payroll records es-
tablished that overtime for employees was “so minimal, it . . . just
really didn’t enter into the calculations.”
For overtime, Respondent pays time and a half for any hours in a
week in excess of 40.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 44
the backpay period for the above three discriminatees repre-
sents premium pay, for which no “extra effort” was expanded
by any of the discriminatees, rather than overtime pay, which
forms the basis for the policy explained by Kobe. Without
commenting on whether any of the discriminatees expanded
extra effort in working what the Union’s electrical industry
collective-bargaining agreement terms overtime work, Board
policy seems clear. Thus, citing United Aircraft Corp., 204
NLRB 1068, 1073 (1973), the Board, in EDP Medical Com-
puter Systems, 293 NLRB 857, 858 (1989), stated that “a back-
pay claimant who ‘chooses to do . . . extra work and earn . . .
added income made available on [an] interim job’ may not be
penalized by having those extra earnings deducted from the
gross backpay owed by the Respondent.’” I think that the
Board policy governs in the instant matters, and notwithstand-
ing whether the discriminatees received overtime pay or pre-
mium pay or expanded extra effort or minimal effort to earn the
money, I find Respondent’s counsel’s arguments lacking in
merit.
Respondent’s final argument concerns discriminatee Mangel.
Counsel argues that the discriminatee intentionally declined to
work for a 6-month period between September 1993 and March
1994 and that, therefore, he should not be entitled to backpay
for the final quarter of 1993 and the first quarter of 1994. In
this regard, there is no dispute that Mangel signed the Union’s
out-of-work list on being unlawfully denied employment by
Respondent; that the Union maintains a hiring hall rule, permit-
ting a member to work a cumulative total of 29 days without
losing his place on the out-of-work list and that, after working a
“short call” 24-day job until the end of August 1993,18 Mangel
passed available jobs on September 14, 1993, October 1 and 11,
1993, January 10, 18, and 25, 1994, and March 16. While he
conceded he could not recall why he turned down any specific
job, Mangel explained that he passed jobs during this time pe-
riod when “they were either special skills that I didn’t have or
they were jobs that were so short . . . had I taken one and
worked a week or two, I would have ended up at the bottom of
the [out-of-work list] . . . .” He added that his intent was to be
available for a long-term job, which he eventually obtained
with Christenson Electric. At the outset, an employee must
make a diligent or reasonable search for interim work. NLRB v.
Arduini Mfg. Co., 394 F.2d 420, 423 (1st Cir. 1968). Herein,
Mangel worked a 24-day job during August 1993 and was
aware that working another short call job might cause him to
lose his position on the out-of-work list and, thus, jeopardize
his chances for dispatch to a long-term job. “A discriminatee

18 Mangel explained, “It was the end of the job.”
may legitimately refuse a referral if he can reasonably expect to
obtain employment in the future which would clearly be a bet-
ter opportunity.” Plumbers Local 305 (Stone & Webster), 297
NLRB 57, 60 (1989). Moreover, in Electrical Workers IBEW
Local 2148 (Newberry Industrial), 281 NLRB 746 (1986), a
fact pattern similar to that which is involved in the instant mat-
ter, the Board adopted an administrative law judge’s finding
that it was “not unreasonable” for a member to have refused a
referral to a 2-week job when acceptance would have resulted
in the member losing his place on an out-of-work list and that,
therefore, such did not constitute a willful loss of employment
by the member. Id. at 760 and 761 fn. 53. In these circum-
stances, especially noting that, by obtaining a long-term job,
Mangel benefited Respondent’s backpay position, I reject Re-
spondent’s argument and find that Mangel’s refusal of short
call referrals did not constitute willful loss of employment.
Based on the foregoing and inasmuch as I have found Re-
spondent’s arguments to be without merit, I find that Respon-
dent’s obligations to discriminatees Dietrich, Mangel, Caines,
and Kingston will be discharged by the payment to them of the
respective amounts set forth in Appendix B. The amounts shall
be payable plus interest to be computed in the manner set forth
in New Horizons for the Retarded, supra. The net backpay
figures in Appendix B are based on that which were set forth in
the amended backpay specification, General Counsel’s Exhibit
11. Appendix B sets forth figures for each quarter in which
backpay is owed to each discriminatee.
On these findings and conclusions and on the entire record, I
issue the following recommended19
ORDER
The Respondent, Tualatin Electric, Inc., Wilsonville, Ore-
gon, its officers, agents, successors, and assigns, shall
In Case 36–CA–6874, pay to Edward Campbell $8122 plus
interest computed in the manner set forth above.
In Case 36–CA–7099, pay to Steven Dietrich $5921 plus in-
terest computed in the manner set forth above; to Gary Mangel
$24,003 plus interest computed in the manner set forth above;
to Cal Caines $7056 plus interest computed in the manner set
forth above; and to Paul Kingston $6046 plus interest computed
in the manner set forth above.

19 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and recom-
mended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.

APPENDIX A

NAME YEAR QUARTER GROSS
BACKPAY
NET. INT.
EARNINGS
NET
BACKPAY
Campbell 1992 3 $10,005 $2,988 $7,017
1992 4 6,988 5,883 1,105
1993 1 6,976 10,969 0
TOTAL NET
BACK PAY
$8,122
To April $1,838

TUALATIN ELECTRIC 45
APPENDIX B

NAME YEAR QUARTER GROSS
BACKPAY
NET. INT.
EARNINGS
NET
BACKPAY
Dietrich 1993 2 $2,374 $296 $2,078
1993 3 8,722 11,675 0
1993 4 9,162 10,428 0
1994 1 9,128 5,285 3,843
1994 2 10,314 10,722 0
1994 3 11,761 12,447 0
1994 4 9,966 11,064 0
1995 1 10,517 10,992 0
1995 2 3,319 5,486 0
TOTAL NET
BACK PAY
$5,921
Mangel 1993 3 $7,916 $4,224 $3,692
1993 4 9,162 0 9,162
1994 1 9,128 0 9,128
1994 2 10,314 8,667 1,647
1994 3 11,761 11,387 374
1994 4 9,966 11,064 0
1995 1 10,517 12,397 0
1995 2 3,319 3,595 0
TOTAL NET
BACK PAY
$24,003
Caines 1993 3 $8,453 $9,513 0
1993 4 9,162 9,151 $11
1994 1 9,128 11,254 0
1994 2 10,314 11,710 0
1994 3 11,762 11,341 420
1994 4 9,966 8,957 1,009
1995 1 10,517 4,901 5,616
1995 2 3,319 3,600 0
TOTAL NET
BACK PAY
$7,056
Kingston 1993 2 $1,714 $890 $824
1993 3 8,722 10,906 0
1993 4 9,162 13,169 0
1994 1 9,128 12,694 0
1994 2 10,314 11,839 0
1994 3 11,761 8,414 3,347
1994 4 9,966 8,091 1,875
1995 1 10,517 10,958 0
1995 2 3,319 3,319 0
TOTAL NET
BACK PAY
$6,046