United Brotherhood of Carpenters, Local #1913

National Labor Relations Board - Board Decisions

Sep 19, 1974

213 N.L.R.B. 363 (N.L.R.B. 1974)

UNITED BROTHERHOOD OF CARPENTERS , LOCAL # 1913 363
United Brotherhood of Carpenters and Joiners of
America, Local # 1913, AFL-CIO; Los Angeles
County District Council of Carpenters, United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO; J. W. Bernard (Chairman), Charles
Love (Acting Co-Chairman), Rex Bowlby, Dean
Southerland , Charles Trenta, A. H. Atwood, War-
ren Driver, C. V. Holder, and John Kuhl , as trustees
for Carpenters Pension Trust for Southern Califor-
nia; and Carpenters Pension Trust for Southern Cal-
ifornia and Michael R . Amato.
United Brotherhood of Carpenters and Joiners of
America, Local # 1913, AFL-CIO; Los Angeles
County District Council of Carpenters, United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO; J. W. Bernard (Chairman), Charles
Love (Acting Co-Chairman), Rex Bowlby, Dean
Southerland , Charles Trenta , A. H. Atwood, War-
ren Driver, C. V. Holder, and John Kuhl , as trustees
for Carpenters Pension Trust for Southern Califor-
nia; and Carpenters Pension Trust for Southern Cal-
ifornia (Fixtures Unlimited) and Michael R. Amato.
United Brotherhood of Carpenters and Joiners of
America , Local # 1913, AFL-CIO; Los Angeles
County District Council of Carpenters , United
Brotherhood of Carpenters and Joiners of America,
AFL-CIO; J. W. Bernard (Chairman), Charles
Love (Acting Co-Chairman), Rex Bowlby, Dean
Southerland , Charles Trenta, A. H. Atwood, War-
ren Driver, C. V. Holder, and John Kuhl, as trus-
tees for Carpenters Pension Trust for Southern Cal-
ifornia ; and Carpenters Pension Trust for Southern
California (Robert E . McKee Construction Co.) and
Michael R. Amato . Cases 31-CB-502, 31-CB-525,
31-CB-536, and 31-CB-537
September 19, 1974
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING AND
JENKINS
On April 26, 1974, Administrative Law Judge
James S. Jenson issued the attached Supplemental
Decision in this proceeding . Thereafter, the General
Counsel , the Respondent , and the Carpenters Pension
Trust for Southern California and its trustees filed
exceptions and supporting briefs , and the General
Counsel filed a brief in answer to Respondent 's excep-
tions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Supplemental Decision in light of the excep-
tions and briefs and has decided to affirm the
Administrative Law Judge's rulings, findings, and
conclusions as modified herein.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor Rela-
tions Board hereby orders that the Respondent, Unit-
ed Brotherhood of Carpenters and Joiners of
America , Local # 1913, AFL-CIO, its officers,
agents , and representatives, shall make whole Michael
R. Amato by payment to him of the amount set forth
in the attached Administrative Law Judge 's Supple-
mental Decision , including interest thereon, as recom-
mended.
IT IS FURTHER ORDERED that , in addition to the
amount to be paid directly to Amato, the Respondent
shall pay to the Carpenters Pension Trust for South-
ern California , on Amato's behalf , the sum plus inter-
est recommended by the Administrative Law Judge,
and shall take such steps as may be necessary to re-
store whatever rights under the pension plan would
have accrued to Amato if his employment had contin-
ued without interruption during the period covered by
said contribution.
IT IS FURTHER ORDERED that the trust and its trustees
shall, as agents of the Respondent , accept payment of
the amounts so awarded for credit to the account of
1 The General Counsel excepts to the failure of the Administrative Law
Judge to find that the Carpenters Pension Trust for Southern California and
its trustees are agents of the Respondent Union and therefore obligated to
accept payment from it for credit to the account of the Charging Party herein
and to administer said account as though such payment was made by an
employer-contributor . We find merit in the General Counsel's exception. It
is clear on the record herein that the trust in question was established by an
agreement between employer -associations and the United Brotherhood of
Carpenters and Joiners of America for its southern California district coun-
cils and union locals, with which the Respondent Union is affiliated , referred
to in the trust agreement as "the Union ," pursuant to a collective-bargaining
agreement between the same parties or their predecessors ; that the board of
trustees of the trust consists of an equal number of representatives of the
employers and of the "Union"; that the trustees representing the "Union"
were appointed by, and are removable by, the "Union"; and that the current
master labor agreement and its predecessors continue to give the trust viabili-
ty, requiring contributions to the trust fund at rates set by negotiation of the
successive collective -bargaining agreements . In these circumstances , we find
that the trustees herein are agents of the Respondent (Local 80, Sheetmetal
Workers International Association , AFL-CIO, et al., 161 NLRB 229 (1966) )
and may appropriately be required to accept contributions by the Respon-
dent on the Charging Party's behalf and to administer said contributions in
the same manner in which they would have been administered if made by
an employer-contributor (Local Union No. 38 Sheet Metal Workers' Interna-
tional Association, AFL-CIO (Mid-Hudson Sheet Metal Inc.), 194 NLRB 76
(1971) ). Accordingly, in order to effectively remedy the unfair labor practic-
es found to have been committed by the Respondent herein, we shall require
that such contributions be accepted and administered in the manner sought
by the General Counsel.
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Michael R. Amato, and shall administer said account
as though such payment was made by an employer-
contributor.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
JAMES S. JENSON, Administrative Law Judge: On March
31, 1971, the Board issued its Decision and Order I directing
Respondent, United Brotherhood of Carpenters and Join-
ers of America, Local # 1913, AFL-CIO, to make whole
Michael R. Amato for loss of pay resulting from
Respondent's unlawful discrimination against him. On Oc-
tober 24, 1972, the United States Court of Appeals for the
Ninth Circuit entered its judgment enforcing the Board's
Order. Controversy having arisen over the amount of back-
pay due Amato under the terms of the Board's Order, on
October 23, 1973, the Regional Director of Region 31 issued
a backpay specification and notice of hearing. On Novem-
ber 2 and 29 and December 10, 1973, Respondent filed an
answer, amended answer , and second amended answer, re-
spectively. On November 5, 1973, the Carpenters Pension
Trust for Southern California and its trustees filed an an-
swer. On November 23, the General Counsel filed a motion
for judgment on the pleadings seeking to preclude the Car-
penters Pension Trust and its trustees from introducing evi-
dence controverting the allegations of the specification, and
further seeking to limit the taking of evidence to
Respondent's affirmative defense that Amato did not seek
other employment and failed to mitigate damages. The mat-
ter was heard before me in Los Angeles, California, on
December 18, 1973, at which time the motion was granted
and the evidence confined to the issues raised by
Respondent's affirmative defenses . All parties were afford-
ed full opportunity to appear, argue orally on the record,
and to file briefs. Briefs were filed by both the Respondent
and the General Counsel and have been carefully consid-
ered.
Upon the entire record,2 and from my observation of the
witnesses and their demeanor, I make the following:
FINDINGS AND CONCLUSIONS
1. THE POSITIONS OF THE PARTIES
The General Counsel claims backpay for Amato for the
period commencing September 15, 1969, and ending August
31, 1970. The hourly rates of pay and the hourly rate of
contributions to the pension and vacation funds are not in
dispute. While admitting the backpay period began on Sep-
tember 15, 1969, Respondent contends the backpay period
on the Fixtures Unlimited job ended on October 2, 1969,
and in any event its liability was effectively cut off by a
letter dated October 17, 1969, from Respondent's attorney
to Amato. Respondent also contends that after November
1189 NLRB 521.
2 The General Counsel filed a motion to correct transcript of the record.
In the absence of any opposition , the motion is granted.
13, 1969, Amato failed to exercise his obligation to dili-
gently and reasonably seek substantially equivalent employ-
ment by failing to register with the Union for class A or
forms work;' by intentionally failing to comply with the
hiring hall procedures and answer roll call each Monday
morning; by failing to be present in the hiring hall on days
when all carpenters available in the hall were dispatched;
and by failing to seriously attempt to obtain other work.
Respondent further contended backpay liability ceased on
December 2, 1969, when Respondent's attorney wrote Am-
ato, with a copy to Robert P. McKee Construction Compa-
ny, that Respondent had no objections to Amato's
employment by that company. Contending Amato had left
the labor market in 1969, Respondent points to the fact that
Amato commenced receiving social security benefits in
February 1970 and that he should not be entitled, as a
matter of public policy, to collect backpay for the period he
received social security benefits. Respondent further con-
tends backpay was effectively cut off in April 1970 when,
on April 6, Amato refused a job dispatch, and on April 7
was not available for dispatch.
11. ANALYSIS
1. The Fixtures Unlimited job and the letters of October
17 and December 2, 1969
The Board found that on September 15, 1969, Respon-
dent unlawfully denied Amato referral to the Fixtures Un-
limited job. The record before me shows that from
September 15 through November 13, 1969, Fixtures Unlim-
ited was engaged in supplying interior fixtures for Hartfield-
Zody Department Stores at three locations in the Los Ange-
les area , known as the North Hollywood, the Lynwood, and
the Fullerton projects. On or about September 15, Fixtures
requested seven carpenters from Respondent's hiring hall
for work at the North Hollywood project. The record does
not disclose that any of the seven had previously worked for
the Company. Of the seven carpenters dispatched, four
worked a period of 12 days, one worked 11 days, and three
worked 10 days. When the North Hollywood project was
completed on September 30, two of the seven carpenters
obtained through the hiring hall were laid off and five were
transferred to the Lynwood project where they worked from
October 1 to 13, four of the men working 11 days and one
working for 13 days. Upon completion of the Lynwood job,
three of the five carpenters were laid off and two were
transferred to the Fullerton project which commenced Oc-
tober 31 and ended November 15, working 10 and 11 days,
respectively.4 The record discloses that at the conclusion of
each of the projects the foreman arbitrarily decided which
employees would be laid off and which would be transferred
to the next project.
Respondent contends that in order to show Amato is
entitled to backpay at the Lynwood and Fullerton projects,
there would have to be substantial evidence that the fore-
3 The terms "class A" and "forms" work were used interchangeably
throughout the hearing.
4 As both the Lynwood and the Fullerton projects were located outside
Respondent 's territorial jurisdiction, Fixtures hired additional carpenters
through the local union exercising territorial jurisdiction over those locations.
UNITED BROTHERHOOD OF CARPENTERS , LOCAL # 1913
man would have selected Amato over the other carpenters
for transfer to these projects; and that since it is only spec-
ulative as to whether Amato would have been transferred
from project to project, the backpay liability should be cut
off with the conclusion of the North Hollywood project.
The law is clear that "the finding of an unfair labor prac-
tice and a discriminatory discharge is presumptive proof
that some backpay is owed." 5 In Fibreboard Paper Products
Corporation, 180 NLRB 142, the Board stated the applicable
law as follows : "Wilful loss of earnings is an affirmative
defense, and that burden of proof is on the Respondent.
Once the General Counsel has shown the gross amount of
backpay due, the burden is on the Respondent to establish
facts to negative or mitigate liability to a given employee.
And, finally, `any uncertainty is resolved against the wrong-
doer whose conduct made certainty possible.' "
Respondent failed to affirmatively establish that Amato
would not have been transferred successively from the
North Hollywood to the Lynwood and Fullerton projects.
At the most there is uncertainty as to whether he would have
been transferred or laid off. As "any uncertainty is resolved
against the wrongdoer whose conduct made certainty possi-
ble," I find that the Respondent has failed to sustain its
burden of proving that Amato would not have been trans-
ferred successively from the North Hollywood to the Lyn-
wood and Fullerton projects.
Respondent's argument that a letter from its attorney to
Amato dated October 17, 1969, "effectively cut off any
backpay liability after October 17, 1969," is without merit.
Aside from the fact that the letter was not directed to Fix-
tures Unlimited or to any other employer, it was not uncon-
ditional in that Respondent threatened to reaffirm its
position regarding union security which formed the basis
for the unfair labor practice charges which initiated these
proceedings. Respondent's letter to Amato dated December
2, 1969, with a copy to Robert P. McKee Construction
Company, did not have the effect of tolling Respondent's
backpay liability for the same reason. That the wording
used in the letters was construed as containing a veiled, if
not open, threat of trouble for any employer who might hire
Amato, is evidenced by McKee's general foreman who,
after reading the letter of December 2, declined to consider
hiring Amato because "I don't want to get myself in the
middle of all of this." Accordingly, I find that neither the
October 17 nor the December 2, 1969, letters tolled
Respondent's backpay liability.'
5 N.L.R.B. v. Mastro Plastics Corporation, 345 F.2d 170, 178 (C.A. 2, 1965),
cert . denied 384 U.S. 972 (1966).
6 While not raised by way of answer to the backpay specification, Respon-
dent contended in its brief that a stipulation entered into between counsel
for Respondent and counsel for the General Counsel at the time of the trial
of the unfair labor practice cases, " ... establishes that the parties intended,
at the time of the stipulation , that the effect of the failure to dispatch Amato
was in relation to the North Hollywood Zody's job and to no other job and
therefore , the amount of backpay . . . concerning Fixtures Unlimited, is
limited to the North Hollywood job." I have carefully studied the stipulation
(Resp . Exh. 4) and fail to find even in inference that the stipulation was
intended to limit Respondent 's backpay liability on the Fixtures ' job to the
North Hollywood project. The stipulation is to the effect that if Tony Bres-
sickello were called to testify he would testify to certain jurisdictional facts
contained therein , and that on September 15, 1969, at Fixtures ' request,
Respondent referred approximately eight carpenters to the "... Fixtures
Unlimited job at the Zody's store in North Hollywood . . . and that those
2. Amato's search for work
365
The Board found that Respondent "caused" a condition
which brought about the unlawful refusal to refer Amato to
the Robert P. McKee Construction Company job on No-
vember 13, 1969, and ordered that he be made whole for any
loss of pay between the date of denial of such referral to the
date Respondent notified McKee, in writing, that it had no
objection to the employment of Amato. It is undisputed,
and I find, that McKee employed carpenters from Novem-
ber 13, 1969, to August 31, 1970, when Respondent notified
McKee in writing that it had no objection to the employ-
ment of Amato. The amount of backpay owed Amato for
that period is $12,088.34 plus $1,147.30 due the Carpenters
Pension Trust for Southern California for credit into the
pension account of Amato, unless the Respondent sustains
the burden of proving a "wilful loss of earnings" to negate
or mitigate its liability to Amato.
The carpenters hiring hall procedures (Resp. Exh. 1) con-
tain the registration and dispatching rules . They provide,
inter alia, that roll call shall be held each Monday at 7:30
a.m., or immediately after dispatching, which is from 7:30
to 9 a.m. daily; a workman shall personally sign and classify
himself on the employment list;7 jobs shall be dispatched
under a daily rotation system by job classification as speci-
fied by the individual , starting at the top of the registration
list each day; and registered workmen shall be removed
from their position on the registration list by: (1) failing to
answer roll call at the designated time (Monday morning);
(2) dispatch to a job (unless rejected by the employer); (3)
failing to accept suitable employment on two occasions
during the current week of registration; (4) being unavail-
able for work during the current week of his registration;
and (5) failing to report to a jobsite.
The evidence shows that between October 22, 1969, and
August 28, 1970, Amato was registered on the out-of-work
list in 36 of the 45 weeks. He had classified himself on the
registration list under commercial and/or house finish from
October 22, 1969, until he signed the list on April 1,1970,
and listed both commercial finish and forms. From April
17, 1970, through the end of the backpay period, he was
classified only under commercial finish. Amato testified he
was a journeyman carpenter and qualified to do all forms
of carpentry work. He further testified that class A or form
work is divided into two categories, skilled and labor, the
former consisting of the design and building of forms
(benchwork), the latter, the hanging and locking together of
the forms for the receipt of concrete. Amato further testified
that while form work entailed both facets, it was not com-
mon for a man of 62 years 8 to do form work because of the
physical requirements and that his prior employment with
McKee had been limited to the designing and building of
forms.
Contending that Amato did not exercise due diligence or
carpenters so referred were employed on that job for approximately two
weeks." (Emphasis supplied .) I find , therefore , that Respondent 's contention
lacks merit.
7 The five classifications on the registration list are rough housing , housing
finish , commercial framing, commercial finish and forms . A workman may
classify himself in as many or few classifications as he wishes, assuming he
is 9ualified.
Amato was 62 in 1969 and 67 at the time of the hearing in this matter.
366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
make a serious attempt to obtain work during the backpay
period, Respondent asserts Amato should have classified
himself at all times on the out-of-work list under "forms,"
and that had he done so and answered roll call regularly, he
would have been dispatched to a forms job shortly after
November 13, 1969 . Respondent contends the employment
list and summaries (Resp . Exh. 7(a) through 7(yy), 8, and 9)
show a pattern that whenever Amato acquired a low num-
ber on the registration list, he deliberately failed to answer
a Monday roll call and , as a consequence , lost his place on
the list . Thus, when he re-registered , he acquired a high
number and was not likely to be dispatched.
I have carefully examined the employment lists and sum-
maries and , in the light of all the evidence , am not con-
vinced that Amato 's failure to answer roll call on each and
every Monday morning , nor his failure to register for forms
work throughout the entire backpay period, establish as a
fact that he was avoiding dispatch . Amato testified without
contradiction that 95 percent of his past jobs were the result
of his own job-seeking efforts and that only about 5 percent
had come through dispatch from the hiring hall . Therefore,
it made more sense to him to personally look for work than
to answer roll call and wait for the Union to dispatch him.
While he testified that 95 percent of all his work from 1966
to 1969 was "forms" work for McKee Construction Compa-
ny, he further testified ". . . [McKee] used my skills to
make them not manual labor , let's say , because I am not a
young man anymore . I couldn't climb and McKee knew
that ." Amato also claimed the Union's records would show
that in the past he had not been able to hold forms jobs very
long, other than with McKee, because of his age.
While contending Amato should have registered for
forms work during the packpay period, Respondent failed
to prove that Amato had registered for forms work in the
past, or that it was his practice to perform all aspects of
forms work as opposed to Amato's testimony that he was
only physically capable of fabricating and designing forms
and not erecting or hanging them . Moreover, Amato testi-
fied that he had solicited work during the backpay period
from former employers, both in person and by telephone,
including McKee on several occasions , Oberg Construction
Company , Columbia Fixtures , Standard Fixtures, Gartz
Construction Company, Sure Stop , and even solicited main-
tenance work at industrial plants , all to no avail . Addition-
ally, he registered with the California Department of
Human Resources Development for carpentry , mainte-
nance , or any other type work but was not offered a job.
Furthermore , it appears from the record to have been
Amato's practice to register through the hiring hall only for
house and/or commercial finish work , but that he person-
ally sought other work , including forms work , insofar as it
was limited to the fabrication of forms as opposed to their
erection or hanging which was more physically demanding
and dangerous for a man of his age . Accordingly, on the
basis of the foregoing , I find that Amato was diligent in his
search for employment during the backpay period.
Respondent contends, however, that the backpay period
should be cut off on April 6 when , according to its dispatch-
ing records , Amato refused a dispatch to a forms job. As
noted above , on April 1, 1969, in addition to re-registering
for commercial finish work, Amato registered for forms
work for the first time. His placement on the list was No.
177. Respondent's records show that on Monday, April 6,
Amato, now 106 on the list, answered roll call and was
offered a job which he refused; and on April 7 was not
available in the hall when his name was called when another
job opening in one of his designated categories was avail-
able. Amato's reason for registering for forms work on April
I was "I was getting pretty desperate for work at that time
and I would have taken either one of those jobs." Amato
testified that on April 6 he was present in the hiring hall and
answered the dispatcher's call for "finish work . . . and I
said I'd accept the job," but before the referral slip was
made out, he was informed by the dispatcher that the con-
tractor " ... will not take out any social security, will not
take out any benefits, health and welfare, pension fund, or
anything like that." He testified further that he "did not like
the smell of it . . . I had to refuse, because I figured I was
being trapped into something." He testified that it was not
until the job was given to another man that he learned by
looking at the referral slip that it was for a Veterans' Admin-
istration Hospital and that had he known it was for the
U. S. Government, he would have taken the job 9 While the
above conversation, which purportedly occurred more than
3-1/2 years before this hearing, may or may not have oc-
curred as Amato testified, Respondent failed to call Sam
Cowan, whom Amato testified was the dispatcher on April
6, as a witness to either refute Amato's testimony or testify
concerning the circumstances. However, inasmuch as Ama-
to admits he was offered and declined a dispatch on April
6, I find it unnecessary to determine whether it was for a
class A or forms job or for a commercial finish job, because
of the following circumstances. Respondent's Exhibit 9 dis-
closes that on April 6 six men were dispatched to class A
or forms jobs, and three men to either house or commercial
finish jobs.10 Respondent did not establish which of the six
men accepted the dispatch which Amato refused, or wheth-
er in fact that individual was hired as a consequence of the
dispatch, or the duration of the employment. While Dis-
patching and Business Agent Joseph Riviezzo testified that
two of the employers to whom men were dispatched on that
date were involved in construction projects lasting from
1-1/2 to 2 years, the dispatch records (Resp. Exh. 7(a)
through 7(yy)) disclose that all of the six men dispatched
to class A or forms work on April 6 re-registered on the
out-of-work list on the following dates: Izzo-April 10;
Paige-April 16; Slike-April 13; Meisinger-April 17;
Farmer-May 18; Fusillo-April 7. It also shows that of
the three men dispatched to commercial fixtures jobs on
April 6, Fragione re-registered on April 13; Worsley on May
7; and Holmes on April 7. Moreover, the dispatch records
show that of the four registered men shown to have been
dispatched to class A or forms jobs on April 7-the date
Respondent contends Amato would have been dispatched
had he been present in the hiring hall and answered to a
dispatch call-Hynes re-registered on April 7; Poetsch and
9 Resp . Exh. 9 discloses two individuals were dispatched to commercial
finish jobs at a Veterans' Administration Hospital on September 8, 1970.
The parties stipulated that was the only Veterans' Administration Hospital
job during the period involved herein.
10 Amato was registered for forms and commercial finish work.
UNITED BROTHERHOOD OF CARPENTERS, LOCAL # 1913
Summers re-registered on May 6 and Dorenbrach on May
7.11 While three men were dispatched to commercial finish
jobs on April 7 , two were higher on the dispatch list (#'s
35 and 36) than Amato (# 106), and Jim Hynes , with # 136,
was the third . Page 4 of Respondent 's Exhibit 7(bb) indi-
cates that for some reason Hynes retained his position on
the list and the following week rose to #47. Respondent,
having failed to prove that by refusing the dispatch on April
6 Amato thereby forfeited employment for an ascertainable
period, I find that his refusal of the dispatch does not war-
rant a reduction or tolling of the backpay owed Amato by
the Respondent . See, for example , Alaska Chapter of the
Associated General Contractors of America, Inc., 119 NLRB
663, 670-671.12
Respondent also contends that Amato 's prior history of
working a relatively few hours for many years and the fact
he hasn 't worked for almost 4 years is an indication he has
left the labor market . Respondent's Exhibits 5 and 6 show
that contributions were made to the Carpenters Pension
Fund between 1960 and 1969 based on the following hours
of work per year by Amato:
1960-967 hours 1965-704 hours
1961-298 hours 1966-1350 hours
1962-687 hours 1967-970 hours
1963-592 hours 1968-702 hours
1964-985 hours 1969-148 hours
No contributions are shown thereafter. The record does not
disclose if jobs were any more or less available in those
years, or thereafter, than in 1969 when Amato encountered
difficulty with Respondent which resulted in the unlawful
discrimination against him leading to this backpay hearing.
Moreover, the backpay specification alleges that but for the
11 Robert Blazier was dispatched on April 7, although his name does not
appear on the out-of-work or employment list. Circumstances surrounding
his dispatch were not elicited on the record.
12 The same reasoning applies with respect to his absence from the hall on
April 7.
367
unlawful discrimination against Amato in 1969 he would
have worked only 553 hours in addition to the 148 hours
worked prior to his difficulties with Respondent, for a total
of 701 hours, a figure 1 hour less than he worked in 1968.
Furthermore, but for the unlawful discrimination against
him, the backpay specification alleges Amato would have
worked 1,405 hours in 1970, which I find is clearly in line
with the 1,350 hours worked in 1966. Nor do I attach any
significance to the fact that Amato was drawing unemploy-
ment insurance benefits, and in February 1970 commenced
receiving social security benefits. The record herein shows
that he had not been able to get a job, and he testified
convincingly that he applied for social security at a 25-
percent reduction in benefits because he had no other in-
come.13 Accordingly, I find no merit in Respondent's con-
tention. Having determined that the discrimination against
Amato caused by Respondent resulted in his loss of wages
and pension benefits and that Respondent has failed to
sustain the burden of proving wilful loss of earnings, and as
Respondent has tendered no evidence controverting the fig-
ures in the Backpay Specification, I find that it correctly
states the amount of backpay which the Respondent is re-
quired to pay to Amato.
Recommendations
Accordingly, I hereby approve and adopt the calculations
made in the Backpay Specification and recommend that
Respondent's obligations to make whole Michael R. Amato
shall be satisfied by payment to him of the amount of
$12,088.34, and by payment to the Carpenters Pension
Trust for Southern California, which it shall credit to the
pension account of Michael R. Amato, the amount of
$1,147.30. Interest shall be paid to Amato and to the Car-
penters Pension Trust for Southern California at the rate of
6 percent per annum from September 15, 1969, to the date
of payment as set forth in Isis Plumbing & Heating Co., 138
NLRB 716 (1963).
13 Amato testified that he finally gave up searching for work in 1972,
sometime after the end of the backpay period.