United Contractors Incorporated

National Labor Relations Board - Board Decisions

Jan 15, 1982

259 N.L.R.B. 1069 (N.L.R.B. 1982)

UNITED CONTRACTORS INCORPORATED 1069
United Contractors Incorporated and JMCO Truck- ministrative Law Judge's Second Supplemental De-
ing Incorporated, Joint Employers and Chauf- cision.
feurs, Teamsters and Helpers "General" Local Pursuant to the provisions of Section 3(b) of the
Union No. 200, affiliated with the International National Labor Relations Act, as amended, the Na-
Brotherhood of Teamsters, Chauffeurs, Ware- tional Labor Relations Board has delegated its au-
housemen and Helpers of America. Case 30-ChousAmen and Helpers of Ameri.thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
January 15, 1982 tached Second Supplemental Decision in light of
the exceptions and briefs and has decided to affirm
SECOND SUPPLEMENTAL DECISION the rulings, findings,5 and conclusions of the Ad-
AND ORDER ministrative Law Judge and to adopt his recom-
On September 19, 1975, the National Labor Re- mended Order.
lations Board issued its Decision and Order in theOR
above-entitled proceeding ' finding, inter alia, that
Respondents had violated Section 8(a)(3) and (1) of Pursuant to Section 10(c) of the National Labor
the National Labor Relations Act, as amended, by Relations Act, as amended, the National Labor Re-
discriminatorily discharging employees Guy lations Board adopts as its Order the recommended
Bourdo, Milan Mix, and Percy Williams. The Order of the Administrative Law Judge and
Board ordered that they be reinstated and made hereby orders that the Respondents, United Con-
whole for any loss of earnings suffered by reason tractors Incorporated and JMCO Trucking Incor-
of the discrimination practiced against them. porated, Joint Employers, Menomonee Falls, Wis-
Thereafter, on June 23, 1976, the United States consin, their officers, agents, successors, and as-
Court of Appeals for the Seventh Circuit issued its signs, shall take the action set forth in the said rec-
judgment 2 enforcing the Board's Order. ommended Order.
On September 29, 1978, following a backpay
hearing, the Board issued its Supplemental Deci- Respondents have excepted to certain credibility findings made by
heari.ng, . Board_ isudtSplthe Administrative Law Judge. It is the Board's established policy not to
sion and Order fixing the amount of backpay owed overrule an administrative law judge's resolutions with respect to credi-
to the discriminatees. 3 The General Counsel subse- bility unless the clear preponderance of all of the relevant evidence con-
auentlyfiv with the Seventh Circuit a petition i"vinces us that the resolutionusare incorrect. Standard Dry Wall Products.
quently filed with the Seventh Circuit a petition vInc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
for enforcement of the Board's Order. On Febru- carefully examined the record and find no basis for reversing his findings.
ary 1, 1980, the court ' remanded the case to the
Board for a new hearing on Respondent's conten- SECOND SUPPLEMENTAL DECISION
tion that the irregular nature of its operations
"justiflies] a reduction of the back pay award." STATEMENT OF THE CASE
The General Counsel subsequently filed with the IRWIN H. SOCOLOFF, Administrative Law Judge: On
Seventh Circuit a petition for modification of the September 19, 1975, the Board issued a Decision and
court's opinion. On April 15, 1980, the court Order in the above-entitled proceeding (220 NLRB 463),
denied the General Counsel's motion. Thereafter, directing Respondent, inter alia, to take certain affirma-
on July 10, 1980, the Board accepted the court's tive action to remedy the unfair labor practices therein
remand and ordered that the record be reopened to found, including the reinstatement of certain individuals
allow the parties to introduce evidence on the re- and payment to them of backpay. Thereafter, on June 23,
manded issue. 1976, the Court of Appeals for the Seventh Circuit
On January 13 and March 18 and 19, 1981, pur- issued its judgment enforcing the Board's Order (539
suant to notice duly served, a hearing was held F.2d 713, cert. denied 429 U.S. 1061 (1977)). Subsequent-
before Administrative Law Judge Irwin H. Soco- ly, a controversy arose concerning the amount of back-
loff for the purpose of determining the amount of pay due to discriminatorily discharged truckdrivers
y d u t a b Milan Mix, Guy Bourdo, and Percy Williams and themoney due under the amended backpay specifica-mtione. dn unde , the1 Ame bnistacea s a amounts required to be paid on their behalf to contrac-
tion. On June 25, 1981, Administrative Law Judge tually established fringe benefit funds under the terms of
Socoloff issued the attached Second Supplemental the Order. Accordingly, a supplemental hearing was held
Decision in this proceeding. Thereafter, Respond- before me on September 12, 1977, in order to resolve
ents filed exceptions and a supporting brief, and the those issues and, thereafter, I issued my Decision, recom-
General Counsel filed a brief in support of the Ad- mending that Respondent be ordered to make certain
payments to Mix, Bourdo, and Williams, and to the
'220 NLRB 463. fringe benefit funds. On September 29, 1978, the Board
539 N2d 73,ce. denied 429 U.S. 1061 (1977). issued a Supplemental Decision and Order (238 NLRB
'614F.2d 134, 137. 893) adopting my recommended Order which, in es-
259 NLRB No. 143

, l
r h L a
ho en and l r f rica. Case 30- thority i i l.
, i i , l i t
DER
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2
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I t t i i ilit fi i s a e by
hearing , the Board issued its Supplemental.Deci- the
O O rr l i i t ti l ' l ti it t t i
auentiv filed with the Seventh Circuit a etition
v in c e s u s t h a
t the resolutions ar
e
i rr t. t it Inc., 91 544 (1950), enid. 188 F.2d 362 (3d Cir. 1951). e have
O .
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t
r
is ued i t s f i '
l r ri l .
2d 7 13 c er t . e ni ed 4 29 . t
f i i i .
l y , a a r o s e r i
t r i i t P
d u e t o i ri i t ril discharged truckdrivers
money due under the amended backpay specifica- ila
M ix, G uy B o u r d o , an d P er c y i
l lia m s and t he
tion . On June 25, 1981o Administrative Law* Judge t r ir t i t ir lf t tr -
, , i i ti t ll t li fri fit f r t t r f
t , , i t l
, , ,
1539 F.23 7R13'
i
d 29 U.S. 61
( 1 7 7)
.
i s s ued a Supple ental ecision and r r (238
* F.2 ti i
"Milan
1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sence, awarded backpay to the discriminatees for the backpay period as reflected in JMCO payroll records.2
entire backpay period. Accordingly, the amended specification assigns the earn-
On February 1, 1980, the Court of Appeals for the ings of the replacement drivers, Van Roosenbeek, Franz,
Seventh Circuit declined to enforce the Board's supple- DuQuaine, Welda, and Watson, to the discriminatees on
mental Order, holding that "the administrative law judge the basis of seniority. Under this method of computation
and the Board ignored uncontradicted evidence that the there were no weeks during the backpay period in which
Board's backpay formula was inapplicable in this case" in work was available for Williams and, consequently,
that "economic factors may have prevented the dis- backpay is not sought for him.3
charged employees from working at JMCO during part At this juncture, the issue to be resolved is a narrow
of the layoff period" (614 F.2d 134). The court, noting one. Respondent concedes that the amended specification
evidence that work at JMCO was irregular and/or sea- properly assigns to the discriminatees, for backpay com-
sonal, and that "during slack periods driving was as- putation purposes, the hours worked by Van Roosen-
signed to available employees according to seniority, re- beek, Franz, and Welda during the layoff period. Thus,
gardless of whether the worker usually drove a truck, re- Van Roosenbeek and Franz were hired as replacement
manded the case to the Board for a new hearing, con- drivers following the unlawful layoffs. Welda, a nonbar-
cluding (614 F.2d at 138): gaining unit employee, has less companywide seniority
than Mix or Bourdo. However, Respondent contends"[A]n employer may, without incurring back-pay[ ]n l , it t i i that the hours worked by the other nonunit employees,
liability, refrain from reinstating a discriminatorily DuQuaine and Watson, are not properly assigned to the
discharged employee during a period when employ- discriminatees since both DuQuaine and Watsonssigned to the
ment would not have been available for him even more companwide iort th D uaine and Watsn have
absent the discrimination." ... The extent to which more comanywide seniority than either Mix or Bourdo.
work at JMCO was seasonal is unclear. There is no This argument is premised upon Respondent's claim that
doubt, however, that the work was irregular and for layoff purposes t historically followed a com-
that during slack periods newer employees were panywide seniority plan under which during slack peri-
laid off. We remand this case to the Board for a ods it would assign truckdriving work to senior nonunit
new hearing on the company's contention that these employees able to perform the job, while laying off more
factors justify a reduction of the back pay award. Junior unit employees.
In its decision issued on July 30, 1980 (No. 79-2062),
On July 10, 1980, the Board accepted the court's remand the Court of Appeals for the Seventh Circuit, in a case
and ordered that the record be reopened to allow the involving the same parties, rejected this very contention.
parties to introduce evidence on the remanded issue. There, the court, in enforcing a Board Order (244
Thereafter, the General Counsel moved to amend the NLRB 72 (1979)) which sought, inter alia, to remedy the
backpay specification. That motion is hereby granted. subsequent illegal layoffs of Mix, Bourdo, and Williams,
Pursuant to notice, a hearing in this matter' was held dismissed Respondent's argument that the layoffs were
before me in Milwaukee, Wisconsin, on January 13, and "caused by a lack of sufficient work and in accordance
March 18 and 19, 1981, at which the General Counsel with a companywide seniority plan," holding:
and Respondent were represented by counsel and were
afforded full opportunity to be heard, to examine and The timing of the layoffs and other testimony in the
cross-examine witnesses, and to introduce evidence. record supports the Board's inference of the illicit
Thereafter, the parties filed briefs which have been duly cause of the layoffs, and the employers' contention
considered. that the layoffs were caused by a lack of work and
Upon the entire record in this case, and from my ob- in accordance with the seniority plan is significantly
servations of the witnesses, I make the following: undercut by testimony that during the period the
bargaining unit employees were laid off, their trucks
FINDINGS AND CONCLUSIONS were driven by non-bargaining unit employees, at
least one of whom had less seniority than BourdoIn his initial backpay specification, as amended on Sep- l ast e f h oy d les ority tha
tember 2, 1977, the General Counsel sought backpay did T h e eploye suggested iterpretation of
awards for Mix, Bourdo, and Williams, covering the their seniority plan, one that would justify theselayoffs,7 is lacking sufficient evidentiary support in
entire backpay period, based upon the average weekly te reords lacn sufficient evidentiary support in
earnings of those discriminatees during the months pre-the record and would contravene a provision in the
ceding and following the layoffs. Subsequent to the deci-collective bargaining agreement between the partes
sion of the court, the General Counsel, as noted, amend- that expired in May 1977.8 In these circumstances,
ed his specification. The amended specification is predi-we believe the Board s inference of an anti-Union
cated upon the irregular and/or seasonal nature of Re- anmus behind the layoffs ls Justified and supported
spondent's business, as found by the court, and seeks by substantial evidence.
backpay and fringe benefit contributions based upon the
backa and fllworked bey replacement drivers during the The revised specification takes into account that period in early 1975hourscwhen ourdo, due to illness, worked by repunavailacement drivers during thework.
' Likewise, the amended specification does not seek fringe benefit con-
'This case was consolidated, for purposes of hearing only, with Cases tributions for Williams for the layoff period but, rather, only for that
30-CA-4253, 30-CA-4264, 30-CA-4437, and 30-CA-4485 involving the period prior to the layoffs during which Respondent unlawfully refused
same parties. to make fringe benefit contributions.
. . i i ti
l t ,
t ti , t -
l t t
a e t s t t r f r ri , i ll i t l l . ,
i i it l , l i i rit
ay t i r r . r, t t
"[ ] l y r y rr - r o r d t o e r o e s
li ilit , r fr i fr r i t ti i ri i toril t h a t t h e h o u r s w o r k ed r t h e o t h e r n o n u nt t employees,
i l i i l DuQuaine and Watson, are not properly assigned t t
i l orenatees s nce both uQ ine tso
t i i Tm oi e arupa ni rit i
rk at J as seasonal is unclear. There is no T r argument is premised upon Respondent's claim that
t, r, t t the rk as irr l r and f o rpn i o f f psnoises it historically follo ed a c r-
t t i l ri r l rePanywide ni rit l r ic ri slack peri-
ff. od s w o u ld i ri i i
ri ti
ju n o r u n t

red, that
l cifi ti , l
st m d l ss i r i t y t ha n r
r l l . mploy rs' t interpretati f
r f r i , r . illia , i i ni rit tif
kl layoffs,' i l king ffi i t i ti r rt in
r i i the l tr r i i i t
i i collective i i r t t t rti
i r l l t t i i . I t s circ st c s,
cifi ti . cifi ti i w e
b el ev e t h e B o r d 's i f er e n c e f ti- i
l an im us b eh in d t h e l ffs is j tifi and supported
t nti l i .
fi t ----
actually worked by replacement drivers ri t r i i
ear ly 1975
hours ctuall worke by relacemet rivrs r the when Bourdo, due to illness, was unavailable for work.
3 i i ,
' his
a
UNITED CONTRACTORS INCORPORATED 1071
This court's prior decision in N.LR.B. v. United there is a lack of evidence demonstrating that that oc-
Contractors, Inc. and JMCO Trucking, Inc. (No. 78- curred during periods when unit employees were on
2609, 7th Cir. 1980) is not inconsistent with this de- layoff status. President Mews' testimony that Respondent
termination. In that case, this court had before it the has historically followed a companywide seniority plan,
Board's back-pay computation that required the em- at least for layoff purposes, has not been supported by
ployers to pay for the entire period of the prior il- credible evidence showing that such a practice was in
legal layoffs of Bourdo, Williams, and Mix. The effect por to the discriminatory layoff period.
computation was based upon the average weekly Employee Frank Watson, a cement finisher and Re-
hours employees had worked in the months preced-s most senior employee on a companywide
ing and following the layoffs, and the employers
complained that this computation failed to take ito basis, testified that Respondent has, indeed, maintained a
complained that this computation failed to take into for layoff purposes.
account the "seasonal variation" in the employers' companywide seniority system for layoff purposes
business that would have resulted in a decrease in Watson, a qualified truckdriver, conceded that in the
the hours the employees actually would have years preceding the discriminatory layoffs of 1974 he
worked in the layoff period. This court agreed with was laid off during the winter periods while Mix and
the employers' argument and held that the Board's Bourdo, with less companywide seniority, continued to
computation should have taken into account the drive. However, according to Watson, this occurred be-
evidence of these slack periods. That holding is ir- cause he, Watson, would request a layoff each year in
relevant to the present issue, however, for we do order to allow the unit drivers to continue to work.5
not interpret the Board's argument here to be that I found Watson to be a vague, argumentative, hostile,
such slack periods did not exist, but rather that the and evasive witness and, accordingly, I have accorded
present layoffs were not caused by the occurrence little weight to his testimony, particularly in light of cer-
of these periods and were not in accordance with tain credited, uncontradicted testimony of Bourdo. Thus,
the actual seniority plan. Bourdo testified that in the 1970 to 1974 period, during
the fall and winter months while Watson was on layoff
Mr. Mews, JMCO president, testified that his interpretation of status, Watson would visit the jobsites and tell Mix and
the seniority plan was that: Bourdo: "You guys really got it good. I'm laid off and
A man with one skill can have less seniority than someone else you guys are working." Such statements by Watson belie
with less time on the job, if the person with less time on the job his claim that his layoff status was of a voluntary nature.
has a higher level of skill.
The provision read as follows: Respondent has again failed to demonstrate the exist-
The Employer . . . shall not direct or require its employees or ence of a companywide seniority plan under which, even
persons other than the employees in the bargaining units here absent the discrimination, Mix and Bourdo would have
involved to perform work which is recognized as the work of been laid off during the backpay period while nonunit
the employees in said units .... personnel performed the customary work of those em-
The Board's order required the Company to honor and enforce
the collective bargaining agreement expiring in 1977 "until a new ployees; that is, truckdriving. In reaching this conclusion,
agreement is reached." I rely upon the factors set forth by the Court of Appeals
The contract provision cited by the court has been in for the Seventh Circuit in its July 30, 1980, opinion; Re-
effect at all times material hereto. The clause, in full, spondent's practice prior to the discriminatory period of
provides: laying off during slack periods its most senior employee,
Watson, a qualified truckdriver, while retaining the serv-
Work Assignments: The Employer hereby assigns ices of unit employees with less companywide seniority;
all work involved in the operation of the Employ- and Respondent's use of Welda during the 1974-75 back-
er's truck equipment during the operation, loading pay period as a truckdriver, despite the fact that he en-
and unloading thereof to the employees in the bar- joyed less companywide seniority than either Mix or
gaining unit here involved. The Employer agrees to Bourdo. I conclude that the amended specification seek-
respect the jurisdictional rules of the Union and ing backpay based upon the hours actually worked by
shall not direct or require its employees or persons replacement drivers sets forth an appropriate measure of
other than the employees in the bargaining units backpay.
here involved to perform work which is recognized
as the work of the employees in said units. This is Upon the foregoing findings and conclusions, and
not to interfere with bona fide unions. upon the entire record in this case, I hereby issue the fol-t t i terfere it a fide i s. l rcm ne
lowing recommended:
While there is record evidence that in the years preced-
ing the unlawful layoffs of 1974 truckdriving work was
at least occasionally performed by nonunit employees,'
during his testimony, Mews appeared to deny the existence of a driver's
'Respondent's president, James Mews, testified that by its inaction the unit, contending that "everybody in our company does everything, so ev-
Union had acquiesced in a practice, contrary to the cited contractual pro- erybody is in every unit." This answer was in conflict with Mews' re-
vision, of assigning driving work to nonunit employees. However, there sponse to a March 28. 1980, interrogatory, in which he stated that Mix,
is no evidence that the Union became aware of such a practice prior to Bourdo, and Williams were the only employees in the drivers unit.
the Board hearings in the instant matter which commenced early in 1975. ' In 1974 Watson was recalled from layoff status for a period of 2
On cross-examination, Mews conceded that since that time the Union has weeks, to drive a truck, at a time when Bourdo was ill and unavailable
consistently protested the making of such assignments. At one point for work.
t s, i ,
,
rior
r l r i t t ced- spondent's i
i * .rji 1 1 - i *.*-ing nd fllowng te laoffs andthe mploers basis, testifie t t es o e t s, i ee , i t i ed
c a nyid se niorit system f o r y o ff
acc t the "seasonal variation" in the e ployers' co pany ide seniority syste cor l hytf i the
i W a t s o n a^ Ml e d t c river, c ce e t t i t e
e a r s Prec i
w a s la i d o f t h e w in t e w h i
l M ix a n d

t ll o f
'Mr. St
St t
it l ti t j , if t person ith less ti e on the job his clai that his layoff status was of a voluntary nature.
f s ill.
* r i i r f ll :
.
i i t f l i ff ri t ri ile o it
its. , personnel
,
ed."I
f o r t h e
i f

i t r t ll r
in t e bargaining units backpay.
i l i U foregoing findings and conclusions, and
t f t l i i it . i i uo t e
oi o d: ,
Respondent's
.

Wcompanywi

4

1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER 6 Heating Co., 138 NLRB 716 (1962), less tax withholdings
required by Federal and state laws:
The Respondents, United Contractors Incorporated Milan Mix S2 16915
and JMCO Trucking Incorporated, Joint Employers, Guy Bourdo ,1678.42
Menomonee Falls, Wisconsin, their officers, agents, suc-
cessors, and assigns, shall make Milan Mix and Guy Respondents shall make payments on behalf of Milan
Bourdo whole by payments to them in the amounts set Mix, Guy Bourdo, and Percy Williams to the Milwaukee
forth below, together with 6-percent interest thereon to Area Truck Drivers Health and Welfare Fund and the
be computed in the manner prescribed in Isis Plumbing & Central States, Southeast and Southwest Areas Pension
Fund, in the amounts set forth below, plus lawful interest
accrued to the date of payment:
' In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find- Hd W Pension
ings, conclusions, and recommended Order herein shall, as provided in Fund Fund
Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto Milan Mix $445.50 $519.00
shall be deemed waived for all purposes. Guy Bourdo 412.50 480.00
Percy Williams 100.65 118.95
" a
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12678.42
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