United Steelworkers Of America, Afl-Cio, Clc

National Labor Relations Board - Board Decisions

Oct 15, 1986

281 N.L.R.B. 1275 (N.L.R.B. 1986)

STEELWORKERS (DOXSEE FOOD)
United Steelworkers of America , AFL-CIO, CLC
and Geraldine Shanks
United Steelworkers of America , AFL-CIO, CLC,
Local 15063 and Geraldine Shanks . Cases 25-
CB-3879 and 25-CB-3880
15 October 1986
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 31 March 1986 Administrative Law Judge
Robert M. Schwarzbart issued the attached deci-
sion. The Respondents filed exceptions and a sup-
porting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge 's rulings, findings,' and
conclusions and to issue the following Order.
ORDER
The National Labor Relations Board orders (1)
that the Respondent, United Steelworkers of
America, AFL-CIO, CLC, Indianapolis, Indiana,
its officers , agents, and representatives , shall pay to
Ralph Ogden, Geraldine Shanks' attorney, counsel
fees and expenses in the amount of $2,208.18, to-
gether with interest thereon in the manner pre-
scribed in Florida Steel Corp., 231 NLRB 651
(1977), and (2) that both the United Steelworkers
of America, AFL-CIO, CLC, and the Respondent,
United Steelworkers of America, AFL-CIO, CLC,
Local 15063, Terre Haute, Indiana, their officers,
agents, and representatives, shall take the action set
forth below:
(a) Make whole Geraldine Shanks in the amount
of $28,527.92 as net backpay, $1,574.24 as vacation
pay, and $1,867.67 for health insurance expenses,
together with interest thereon in the manner pre-
scribed in Florida Steel Corp., supra, minus any
moneys required to be withheld by Federal and
state law.
(b) Make pension contributions to the National
Insurance Group Pension Plan on behalf of Geral-
dine Shanks in the amount of $1,991.58 together
with interest computed in the manner prescribed in
Merryweather Optical Co., 240 NLRB 1213, 1216 fn.
7 (1979), until payment of all contributions due.
i No exceptions were filed to the judge 's finding that Geraldine
Shanks' backpay period ended on 11 March 1985
1275
Ann Rybolt, Esq., for the General Counsel.
William H. Schmelling, Esq., of Chicago, Illinois (Carl B.
Frankel, Esq., of Pittsburgh , Pennsylvania), for the Re-
spondent Unions.
Ralph Ogden, Esq. (Narton Frickey & Associates, P. C.), of
Denver, Colorado, for the Charging Party.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
ROBERT M. SCHWARZBART , Administrative Law
Judge. These consolidated cases have been submitted by
agreement of the parties for initial decision on a record
consisting of a Stipulation of Facts and accompanying
exhibits, which were received for determination on 25
September 1984, augmented by first and second supple-
mental stipulations of fact and additional exhibits re-
ceived on 24 October 1984 and 9 August 1985, respec-
tively. Motions that these supplemental exhibits be en-
tered into evidence are granted.'
No testimonial hearing was conducted and no oral ar-
guments were presented . However, the General Counsel
and the Respondents have submitted timely briefs2 that
have been carefully considered.
On 12 September 1980 the Board issued its unpub-
lished Order in the underlying matter when , in the ab-
sence of exceptions ,3 it adopted the findings and conclu-
sions of Administrative Law Judge James M. Fitzpa-
trick.4 Judge Fitzpatrick, in his decision, found that
United Steelworkers of America, AFL-CIO, CLC, and
its Local 15063 (the Respondents) had violated Section
8(b)(1)(A) of the Act by refusing to fairly represent
Shanks, a laid-off probationary employee, because of her
nonmembership in the Union and because of personal an-
imosity toward her on the part of specified union repre-
sentatives. In relevant part , Judge Fitzpatrick found that
Shanks should be made whole , with interest , for losses
i Although the General Counsel , as part of the stipulated record, has
presented a computation and supporting data indicating the amount of
backpay she contends is due the Charging Party , Geraldine Shanks, no
backpay specification , as such, was issued and, accordingly , no answer
was filed . Although the essential content of a backpay specification later
was included in the General Counsel's computation , the procedure of no-
ticing a backpay hearing without a specification that was followed here is
permitted by Secs 102 52 and 102 .53(b) of the Board 's Rules and Regula-
tions, as described in Sec 101 16(b) of the Board 's Statements of Proce-
dure These provisions give Regional Directors discretion to issue notices
of hearing in backpay cases without a backpay specification , provided
that any such hearing notice contain a brief statement of the matters in
controversy Sec. 102 . 54(d) of the Rules and Regulations provides that a
respondent need not file an answer to a notice of hearing issued without
a specification I find that the notice of hearing of 30 March 1983 sets
forth the matters in controversy so as to meet the requirements of Sec.
102 53(b) As there is no contention that the General Counsel has not met
the requirements of due process or the Board's Rules for bunging such a
proceeding , and as the parties , by their stipulation , have shown willing-
ness to proceed , the absence of a backpay specification and answer in this
case, which ordinarily would comprise the pleadings , does not constitute
a procedural impediment Accordingly , I conclude that this matter has
been submitted appropriately for determination
2 The Respondent 's brief later was supplemented to cite and argue the
significance of subsequently arising authority.
2 The Board in its 1980 order rejected the Respondents ' request for an
extension of time to submit exceptions as untimely because the request
was received after the due date for the filing of exceptions
4 JD-464-80 , issued 31 July 1980
281 NLRB No. 169
1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
suffered as a result of the Respondents' unlawful "failure
to represent her beginning with its initial refusal on ap-
proximately 1 June 1979 until an actual determination is
made regarding her recall ." To help her pursue recall,
Shanks, if she so desired, was permitted reasonable legal
fees for counsel of her choice.5
On 27 March 1981 the Board issued its ruling denying
the Respondents' contested 29 January 1981 motion for
determination of compliance with the Board's Order or,
alternatively, for reconsideration and modification of that
Order. In so doing, the Board rejected Respondents' ar-
guments, repeated in the present proceeding, that it
should be relieved of backpay liability and responsibility
for counsel fees as required in Judge Fitzpatrick's adopt-
ed order.
The Board's 1980 Order affirming Judge Fitzpatrick's
decision initially was enforced in the United States Court
of Appeals for the Seventh Circuit on 29 January 1982
by order of Circuit Judge Wood. Subsequently, after
considering the Respondents' 8 February answer and ob-
jections to the Board 's application for summary judg-
ment enforcing its order and the Board 's response there-
to, a three judge panel of that court ruled as follows:6
IT IS ORDERED that the objections by the respond-
ents are hereby DENIED. Respondent has not
made out an adequate case for disturbing the
Board 's decision that respondent failed to present
"exceptional circumstances " to warrant its late
filing of objections to the Administrative Law
Judge's decision. The application for summary en-
forcement is hereby granted. The clerk of this court
is directed to re-enter the judgment, signed by Cir-
cuit Judge Wood, entered on January 29, 1982.
The parties being unable to agree on the amount of
backpay due under the terms of the orders of the court
and the Board, the Regional Director for Region 25, as
noted, on 30 March 1983 issued a notice of hearing with-
out accompanying backpay specification. The hearing
date first was postponed and then continued indefinitely
by orders of 14 June and 29 September 1983, respective-
ly, so that the parties might execute a stipulation of fact.
The stipulated record and briefs thereafter were submit-
ted for determination and supplemented in the manner
and at the times described above.
On consideration of the entire record, I make the fol-
lowing
FINDINGS AND CONCLUSIONS
A. Background and Issues
The Employer, Doxsee Food Corporation (Doxsee), a
Maryland corporation engaged in the manufacture, sale,
and distribution of food and related products, with its
principal office and place of business in Baltimore, Mary-
land, also operated a food processing facility in Terre
s An issue of this proceeding is Shanks' claim for legal fees and ex-
penses, itemized in a petition for same filed by her attorney, Ralph
Ogden, Esq
8 No 81-2982, dated 29 March 1982 (unpublished)
Haute, Indiana,' where the production and maintenance
employees were represented by the Respondents and
where Shanks was employed from 2 to 5 April 1979. On
5 April, Shanks and certain other employees were laid
off.8 The lawfulness of Shanks' layoff was undisputed.
The litigated controversies centered on Shanks' efforts at
obtaining recall by Doxsee9 and the Respondents' refus-
als to fairly represent her, as found by the Board.
At no time since Shanks ' 5 April 1979 layoff has she
been offered recall by Doxsee or has a grievance been
filed on her behalf by the Respondent Unions as the duly
recognized bargaining representatives of the employees
in the production and maintenance unit of which Shanks
was a part while employed by Doxsee.
After her layoff at Doxsee, Shanks remained unem-
ployed from 5 April through 12 August 1979, but was
unable to work from 13 August through 17 December
1979 because of physical incapacitation. However, in ac-
cordance with the parties' stipulation, I find that at all
other times since 1 June 1979, Shanks has been physical-
ly able to work and has attempted to obtain employment
substantially equivalent to that which she had enjoyed at
Doxsee.
From 18 December 1979 through the week ending 7
August 1982, Shanks was employed intermittently by
Columbia House, a Division of Columbia Broadcasting
System, at its Terre Haute warehouse. t ° Shanks' duties
there consisted of picking record albums and tape cas-
settes from warehouse shelves and boxing them to fill
customer orders. She was laid off by CBS on 20 Septem-
ber 1980, accepted recall there when it was offered
almost 2 years later, and returned to work for CBS on or
about 26 July 1982. Following this recall, Shanks suf-
fered stomach nausea and pain that she believed has been
aggravated by the stretching, stooping, and bending re-
quired by her job. She worked 2 days and was on sick
leave for 3 days during the week ending 31 July 1982.
Shanks received medical treatment for a stomach disor-
der and purchased prescribed medication. I t
About 5 August 1982, Shanks submitted to CBS the
medical release permitting return to work and was as-
signed to take part in an inventory of the warehouse
scheduled for 6 and 7 August. Shanks did not report for
° Doxsee 's Terre Haute plant is its only facility involved in this pro-
ceeding
8 During her brief employment by Doxsee , Shanks worked in the gen-
eral light labor classification , performing unskilled labor on an assembly
line where bottles of spaghetti sauce were filled , capped, and packaged
8 On 20 February 1980, a week before the hearing before Judge Fitz-
patrick in the underlying case , the Regional Director approved an infor-
mal settlement agreement with Doxsee resolving the complaint in Case
25-CA- 11281, which alleged violations of Sec 8 (a)(I), (3), and (5) of the
Act and which had been issued pursuant to a charge filed against Doxsee
by Shanks The alleged discriminatory conduct in that matter had related
to Doxsee's asserted refusal to discuss grievances on behalf of Shanks and
other very recently hired probationary employees because they had not
been members of the Steelworkers, the recognized bargaining representa-
tive As will be considered, the Respondents argue here that the General
Counsel's failure to exact backpay from the Company as part of that set-
tlement was prejudicial to their interest
10 All of Shanks places of interim employment, described below, were
in Terre Haute
" As part of her make-whole remedy, Shanks seeks reimbursement for
these medical expenses
STEELWORKERS (DOXSEE FOOD)
work on 6 August , but telephoned her immediate super-
visor to whom she stated her belief that she was not
physically able to do the work . Her supervisor replied
that inasmuch as Shanks had been released by her physi-
cian, she was expected to perform her assigned duties.
Shanks thereupon resigned her employment . She unsuc-
cessfully attempted to retract this resignation on 9
August.
In 1981 , while still on layoff from CBS , Shanks found
work as a temporary packing line worker with Iberville
Services, Inc., where she was employed from 21 March
through 5 April, when laid off. Her duties there consist-
ed of packing bottles into cartons . As at Doxsee , Shanks
worked 40 hours per week for Iberville.
Also in 1981 , Shanks was employed , again as a pack-
ing line worker , by Culbro Snack Foods . This job con-
tinued from 12 May through 7 June , when she was laid
off. Hired by Culbro as a regular full-time employee,
Shanks worked 40-hour weeks, from 4 p . m. to midnight.
Shanks was employed by Vigo School Corporation
from 2 October 1981 to 23 December 1982 as a part-time
temporary cafeteria worker at the Sarah Scott Elementa-
ry School . She had been hired to substitute for a regular
employee then on sick leave . She worked at this job 4
hours a day totaling 20 hours a week , with duties that
included cooking , serving , and dishwashing.
As with her various other positions , Shanks had layoff
periods while with Vigo . During such a time, she took a
housekeeping position with Union Hospital, where she
has remained to date as a regular part -time employee. At
Union Hospital , Shanks has worked from 4 p.m. to 9
p.m., a schedule of 27. 5 hours per week, and has re-
ceived certain increases in her hourly pay rate, which,
with other income factors , will be considered below. '
B. The Defenses
1. The Respondents ' position
The Respondent Unions, in their arguments, essentially
have ignored the General Counsel's backpay computa-
tion and have not contested the backpay formula used,
the accuracy or method of computation , or the validity
of the component factors used to make the computation.
Also, unlike many other backpay cases, they do not
question Shanks' interim earnings as set forth by the
General Counsel or contend that she was not sufficiently
diligent in seeking interim employment to reduce back-
pay. Rather , for reasons mostly germane to the underly-
ing proceeding , the Respondents simply assert that no
backpay or legal fees are due.
The Respondents argue that there has been no remedi-
able loss of earnings for which the Board could impose
financial liability as there has been no prerequisite finding
that Doxsee had breached the collective-bargaining
agreement in its treatment of Shanks to affect her em-
ployment status or earnings . Rather, as the Respondents
point out , Judge Fitzpatrick found that Doxsee had had
"carte blanche" under the contract to terminate at will
probationary employees such as Shanks, and the district
court, in dismissing an action later brought by Shanks
against the Respondents and Doxsee under Section 301
of the Act in pursuit of recall, had found that Doxsee
1277
had not breached the collective-bargaining agreement by
its failure to recall Shanks from layoff while she still was
a probationary employee. Shanks, it was noted, had
worked only 3 of the 30 days' probationary period estab-
lished by the collective-bargaining agreement as prereq-
uisite to obtaining seniority and full employee rights
under the contract.
The Respondents further argue that even if Shanks
had sustained a somewhat cognizable loss of earnings,
such loss would not have resulted from their conduct as
Shanks had not asked either Respondent for assistance
until after expiration of the 10-day contractual period
during which grievances must be filed, and because it
had been Doxsee , not the Respondents , that finally had
refused to arbitrate Shanks' employment status . In addi-
tion , as noted, the Respondents contend that they had
been prejudiced concerning the amount of their potential
liability by the General Counsel's action in settling a
companion complaint against Doxsee without exacting
backpay a week before the hearing in the underlying
case against the Respondents . This settlement left the fi-
nancial burden entirely on the R, spondent Unions.
2. Discussion and findings
As stated by Administrative Law Judge Myatt in his
Board-approved decision in KSLM-AM and KSP-FM:1 2
It is settled law that a backpay and reinstatement
order vindicates the public policy of the statute by
"making employees whole for losses suffered on ac-
count of an unfair labor practice ." Nathanson Y.
NLRB, 344 U.S. 25, 27 (1952). Accord: NLRB v.
Rutter-Rex Mfg. Co., 396 U.S. 258 , 263 (1969). It is
also settled law that "the findings of an unfair labor
practice . . . is presumptive proof that some back-
pay is owed by the [Respondent]." NLRB v. Mastro
Plastics Corp., 354 F.2d 170, 178 (2d Cir. 1965), cert.
denied 384 U.S. 972 ( 1965). See also NLRB v. Reyn
olds, 399 F.2d 668 , 669 (6th Cir. 1968). The burden
on the General Counsel is to prove the gross
amount of the backpay due each claimant, NLRB v.
Laredo Packing Co., 730 F.2d 405 (5th Cir. 1984),
and this burden is limited to establishing "what
would not have been taken from [the employee] if
the [Respondent] had not contravened the Act."
Virginia Electric & Power Co. v. NLRB, 319 U.S.
533, 544 (1943). Once the General Counsel has es-
tablished the gross amount of backpay due each
claimant, the burden is on the Respondent to estab-
lish facts which would negate the existence of liabil-
ity to a given employee or which would mitigate
that liability . NLRB v. Miami Coca Cola Bottling
Co., 360 F.2d 569, 575 (5th Cir. 1966); NLRB v.
Mastro Plastics Corp., supra . It is not sufficient for
Respondent to show theoretical or statistical prob-
abilities , Triangle Sheet Metal Works, 267 NLRB 650
(1983), nor can this burden be satisfied by self-serv-
ing or conclusionary statements , W. C. Nabors, 134
NLRB 1078, 1088 (1961), enfd. as modified on other
12 275 NLRB 1342, 1346- 1347 (1985)
1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
grounds 323 F.2d 686 (5th Cir. 1963), cert. denied
376 U.S. 911 (1964). . . . Finally, it is well estab-
lished that any doubt or uncertainty in the evidence
must be resolved in favor of the innocent employee
claimant and not the Respondent wrongdoer.
NLRB v. NHE/Freeway, Inc., 545 F.2d 592, 594
(7th Cir. 1976); NLRB v. Miami Coca Cola Bottling
Co., supra at 572-573. [Footnote omitted.]
It is noted that a number of the Respondents' defenses
here either were or could have been litigated in the un-
derlying proceeding before Judge Fitzpatrick. As Ad-
ministrative Law Judge Roth held in his Board-approved
decision in Schorr Stern Food Corp.: 13
The doctrine of res judicata is applicable in Board
proceedings. Laborers International Union of North
America, Local No. 282, AFL-CIO (Millstone Con-
struction Company, et. al.), 236 NLRB 621, 623
(1978). In particular, the Board's findings and con-
clusions in an unfair labor practice case are binding
and may not be relitigated in the subsequent back-
pay proceeding. Brown and Root, Inc., 132 NLRB
486, 492 (1961), enfd. 311 F.2d 447, 451 (8th Cir.
1963) . .. .
. . . In appropriate cases, questions involving
compliance may be litigated in the backpay pro-
ceeding, even though such questions turn on mat-
ters which occurred prior to the decision in the
unfair labor practice case. . . . However, such liti-
gation is permissible only if the matter was not ad-
judicated by the Board in the unfair labor practice
proceeding . . . The doctrine of res judicata does
not permit an exemption for selective presentation
of evidence on matters raised by the pleadings and
presented in the case. "The federal doctrine of res
judicata bars relitigating any part of the cause of
action in question, including all claims and defenses
that were actually raised or could have been
raised." Aerojet-General Corporation v. Askew, 511
F.2d 710, 715, 718 (5th Cir. 1975), cert. denied 423
U.S. 928.
Applying the above principles, it is clear that while
Judge Fitzpatrick, in his decision, observed that the man-
agement-rights clause of the collective-bargaining agree-
ment, in effect, provided that Doxsee had "carte
blanche" to terminate probationary employees like
Shanks at will, 14 he still found that the Respondents
should be required to make Shanks whole, with interest,
for any loss of earnings that had resulted from the Re-
spondents' unlawful refusal to fairly represent her.
After rejecting the Respondents' argument, which was
reiterated here, that Shanks' request to them for assist-
ance in obtaining recall was untimely.15 He noted, with-
13 248 NLRB 292, 295 (1980) Also see American Medical Insurance
Co, 235 NLRB 1417, 1419 (1978)
14 Id
I5 Noting that the earliest Shanks could have learned that she was
being bypassed for recall was in mid-May 1979 when other comparable
employees were being put back to work, Judge Fitzpatrick found that
"the exact date when Shanks would have been recalled had she not been
overlooked is not established It was in late May or early June [19791 that
out so finding, that even if Shanks' grievance claim had
been "technically stale" under the contract, the Respond-
ents still had a duty. Judge Fitzpatrick continued as fol-
lows:16
The contract defines rights and duties between
the employer on the one hand and the Union and
employees on the other. It does not purport to cate-
gorically define employee rights vis-a-vis the Union.
Those rights include fair representation which is not
in all circumstances limited to grievance and arbi-
tration under the contract. The union obligation to
employees may well transcend the contract. That is
particularly true where, as here, the Union's reasons
for refusing to represent an employee are irrelevant
and invidious. [Emphasis added.]
Judge Fitzpatrick also found that union representation
might well have made a difference for Shanks as Doxsee
had nothing against her and as she was well-qualified,
more so than some of her fellow employees who had
been laid off at the same time. He noted that, "If the
Union had pressed her cause, the Company might well
have recalled her as an accommodation."
In blaming Doxsee for Shanks' loss of earnings be-
cause of that Company's refusal to arbitrate her employ-
ment status , the Respondents misstate the basis of their
responsibility in this matter. The Respondents' backpay
liability is based on the Board's determination that any
earnings loss sustained by Shanks had resulted from the
Respondents' adjudicated invidious and irrelevant refusal
to fairly represent her in obtaining recall; not on whether
Doxsee was in compliance with the collective-bargaining
agreement or had been engaged in some other impropri-
ety. Although that contract, as Judge Fitzpatrick noted,
defined the relationship between the Employer on one
side and the Union and employees on the other, it did
not set forth the relationship between the Unions and the
employees, which relationship includes the Unions' duty
to fairly represent bargaining unit employees such as
Shanks. It specifically was found that because of the Re-
spondent Unions' unlawful reasons for refusing to repre-
sent Shanks in her recall efforts, their obligation to her
might well transcend the contract. Accordingly, without
regard to whether the contract gave Doxsee the right to
terminate probationary employees at will or arguments
regarding timeliness under the contractual grievance-ar-
bitration procedure, Shanks' earnings loss is predicated
on the Respondent Unions' failure for unlawful reasons
to pursue her cause with Doxsee. Judge Fitzpatrick fur-
ther found that, if so approached by the Respondents,
Doxsee might well have recalled Shanks as an accommo-
dation. In these circumstances, any doubts about the
merits of Shanks' grievance should be resolved against
the Respondents as the wrongdoers. It should not be pre-
sumed that Shanks would not have been recalled had the
Respondents pursued Doxsee on her behalf.
she had sought help from the Union Had her claim been pressed, it
might have proved to have been timely "
16 Id
STEELWORKERS (DOXSEE FOOD) 1279
Accordingly, under the doctrine of res judicata the
following contentions by the Respondent may not be re-
litigated or reconsidered in this backpay proceeding:
(a) Respondents ' arguments based on Doxsee's
conduct, including whether it had breached the col-
lective bargaining agreement by refusing to arbitrate
Shanks' employment status;
(b) The timeliness of Shanks' request to the Re-
spondents for assistance in regaining her job;
(c) Whether Shanks actually asked the Respond-
ents to file a grievance; 17
(d) Whether the Respondent Unions' unlawful
conduct had caused Shanks' loss of earnings.
(e) Whether the Respondents were justified in
not pursuing Shanks' cause with Doxsee as any
grievance that might have been filed on her behalf
could not have been successfully processed or arbi-
trated.ts
The Respondents further argue that they were preju-
diced by the settlement agreement resolving the 8 (a)(1),
(3), and (5) complaint against Doxsee in related Case 25-
CA-11281. As Doxsee had not been required under the
settlement to provide backpay, the entire financial
burden of Shanks' remedy had been left to them.19
An analogous argument by the employer respondent in
Schorr Stern Food Corp. 20 was rejected . Here, as in
17 Although Shanks did not specifically ask that a grievance be filed,
she did tell the Respondents ' representatives that she needed help. In
drawing his conclusions Judge Fitzpatrick clearly did not find this dis-
tinction to be significant
19 The Respondents' reliance on the Board 's supplemental decision in
Taracorp, Inc, 273 NLRB 221 (1984), is misplaced. The majority in Tara-
corp, a case that arose under NLRB v. J. Weingarten, 420 U .S. 251 (1975),
concluded that , although the investigatory interview had been conducted
in violation of Sec 8 (a)(1), a backpay award would be punitive and inap-
propriate as the alleged discriminatee had been discharged for cause
rather than for having requested the presence of a union representative at
the interview The Respondents, in turn , argue that because Shanks had
not been discriminated against by the Employer for asserting rights pro-
tected under the Act or because of Employer breach of the collective-
bargaining agreement , she, in effect , had been validly laid off without se-
niority and attendant recall rights and had sustained no loss of earnings
cognizable under the Act Accordingly , as in Taracorp, were Shanks to
be given backpay it would result in an unjustified punitive windfall that
should be disallowed . This argument , however , had been answered
above . As Judge Fitzpatrick found that even if Doxsee had been free
under the collective-bargaining agreement to terminate Shanks at will,
with no obligation to process her grievance, the Respondent Unions' re-
sponsibility in this matter rested not on what Doxsee did or might have
done under the contract but on their own unlawful refusal to fairly repre-
sent her, which duty , in these circumstances , transcended the contract.
19 The complaint in Case 25 -CA-11281, issued 17 October 1979, al-
leged that Doxsee had violated Sec 8(a)(3) and ( 1) of the Act by refusing
to discuss grievances filed on behalf of Shanks and other probationary
employees because they were not members of the Union , had violated
Sec 8(a)(5) and (1) of the Act by refusing to negotiate with the union
grievances involving Shanks and other probationary employees who
were not union members; and had violated Sec 8(a)(1) of the Act by
maintaining and enforcing an unlawful no-distribution rule. The settle-
ment with Doxsee was approved on 20 February 1980. The hearing
before Judge Fitzpatrick involving these Respondents began I week later
20 248 NLRB 292, 302-303 In Schorr Stern , the Respondent Employer,
relying principally on NLRB v. Electrical Workers JUE Local 485 (Auto-
motive Plating Corp ), 454 F . 2d 17 (2d Cir 1972), asserted that it should
not be held liable for the entire backpay award in an unfair labor practice
proceeding when it , alone , was the Respondent in circumstances when
the Union also should have been joined as a Respondent . The Respond-
ent Company there had maintained that as the discriminatee had had the
Schorr Stern , the argument is made too late . In the ab-
sence of timely exceptions to Judge Fitzpatrick 's deci-
sion, the Board and the Seventh Circuit have ordered
the Respondents to make Shanks whole for her loss. As
in Schorr Stern, no timely review of the Board 's order di-
recting the Respondents to make Shanks whole for her
losses was sought and no equitable considerations are ad-
vanced or are apparent that would warrant relief from
the remedial orders of the Board and court . As stated by
Administrative Judge Roth in his Board -approved deci-
sion in Schorr Stern:2 t
The [Respondents] slumbered upon, and ultimately
waived, any rights [they] might have had in this
regard. At this late stage, an award of only one-half
of the backpay due, which would leave the [discri-
minatee] with no alternative recourse other than a
private action against the [Company] might well de-
prive [her] of a complete remedy for the wrong
done [her]. Such a result would be both inequitable
and repugnant to the remedial purposes of the Act.
See N.L.R.B. v. J. H. Rutter-Rex Manufacturing
Company, Inc., 396 U.S. 258, 264-265 (1965). [Foot-
note omitted.]
Moreover, in contrast to the Respondent Unions'
present situation , Doxsee's liability to Shanks under the
Act was never adjudicated and its obligations to her
were subject to negotiation at the time of settlement. In
fact , the Respondents, in their brief, have argued repeat-
edly that Doxsee did not breach the contract in its treat-
ment of Shanks, or that it otherwise had acted unlawful-
ly. Were the Respondent Unions' arguments to be taken
at face value there would be no basis in any event for
joining Doxsee as a party.
Accordingly, it is concluded that the Respondents,
who, among other things , did not timely protest the set-
tlement with Doxsee and who have repeatedly argued
against liability on Doxsee 's part, were not prejudiced by
the separate settlement agreement with Doxsee.
In sum, the Respondents' defenses cannot be sustained.
C. The Backpay Formula
Shanks' backpay period ran from 18 June 197922 to 11
March 1985, when the court of appeals entered its order
dismissing her Section 301 suit for recall by Doxsee.
option of filing a lawsuit under Sec 301 of the Act against both the
Company and Union , in which event damages could have been appor-
tioned , it should not be held solely liable for all the backpay
81 Supra, 248 NLRB at 303.
22 The General Counsel selected 18 June 1979 as the start of the back-
pay period because since 1 June 1979 , when the Respondents violated
their duty to fairly represent Shanks, 19 employees were hired by Doxsee
into the general light labor classification in which Shanks had been em-
ployed . When two more such employees were hired, 18 June 1979, the
earliest date after 1 June , an employee was hired into that classification
The General Counsel , therefore, found it reasonable to infer that had the
Respondents not failed to fairly represent Shanks , she would have been
recalled on 18 June 1979. Although the Respondents contest the applica-
bility of backpay, they do not object , as such , to the designation of 18
June as the start of the backpay period . Because the General Counsel's
unopposed position in this regard is reasonable, I find that 18 June 1979 is
the appropriate date from which any warranted backpay should be com-
Continued
1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Shanks' potential gross backpay was calculated by
multiplying the number of hours she would have worked
at Doxsee during each calendar quarter by the wage rate
in effect at the time. From 18 June 1979 to I1 March
1985, the following hourly wage rates for the general
light labor classification, effective on the dates shown
below, were multiplied by the 520 work hours per calen-
dar quarter. These hourly pay rates, as augmented by
contractually provided cost-of-living increases, and the
dates when they respectively became effective are as fol-
lows:
Effective Date Hourly Rate Cost-of-Living Increases
6/18/79 ... ..... $3.73 -
7/23/79.... .. ... ..... 4.29 -
12/10/79 ..... . .... 4 55 -
2/1/80 . ..... 4 80 -
2/1/81 .... ...... ... 500 $.025 (eff. 11/1/81)
2/1/82 ... ..... 5 375 .015 (eff. 5/1/82)
2/1/83 ...... ..... ..... 5.675 035 (eff 8/1/82)
2/1/84 ..... ... 5 925
As Shanks was unable to work from 13 August 1979
through 17 December 1979 because of physical disability,
gross backpay for that period was calculated at $75 per
week, the disability income benefits level provided by
the collective-bargaining agreement.
Also added to Shanks' gross backpay computation for
the third quarter of 1982 is the amount of $177.40 in
unpaid medical expenses. This sum represents the balance
from original charges of $530 for various tests and treat-
ments afforded Shanks on 23, 26, 27, and 39 July of that
year. The $352.60 difference was paid under an insurance
policy and is not charged to the Respondent. As stipulat-
ed by the parties, Shanks, on layoff from CBS since
1980, accepted recall there during the week ending 24
July 1982 and returned to work on 26 July. Following
recall, as noted, Shanks suffered pain and other discom-
fort that she related to the physical requirements of her
work. Accordingly, during the week ending 31 July
1982, she worked 2 days and was on sick leave for 3
days, while receiving treatment. The Respondents do not
question the accuracy or necessity of these medical ex-
penses , almost all of which were incurred during her
brief return to CBS, which ended on 6 August 1982.
For purposes of estimating periods of layoff deductible
from gross backpay, the General Counsel contends that
Doxsee employee Betty Clark provided a representative
example of the employment history Shanks would have
had with Doxsee if returned to work there. Clark, who
puted As the record shows that Shanks' claim to her job with Doxsee
were not laid to rest until the court ended her Sec 301 suit on 11 March
1985, the backpay period continued until that date
23 The contractual starting rate for the "General Light Labor" classifi-
cation was $3 73.
24 The then-effective contractual working rate after 30 days on the job
was $4 29
25 The rate paid after 6 months of employment was $4 55
26 In an undisputed supplemental computation, gross backpay for the
second and third quarters of 1984 was presented by the General Counsel
as $3081 and $1753 80, respectively, with interim earnings at $1610 93
and $1001 88
was hired by Doxsee on the same date and in the same
job classification as Shanks , like Shanks, was laid off on
5 April 1979. Clark, however, was recalled by Doxsee
on 14 May 1979 and worked there in the years that fol-
lowed, interrupted by periods of layoff . In calculating
gross backpay, the General Counsel assumed that had
Shanks been recalled on 18 June 1979, she thereafter
would have had the same layoff and recall experience as
Clark. Although of those hired in the relevant classifica-
tion at the same time as Clark and Shanks, only Clark
has retained unbroken seniority with Doxsee during the
backpay period, her selection as representative employee
for purposes of determining layoff experience is uncon-
tested, gives Shanks as wronged party the benefit of any
doubt, and is found appropriate.
Accordingly, excluded from gross backpay were the
following monetary amounts , reflecting those intervals
during the backpay period, after 18 June 1979, when
Clark was on economic layoff-
Yr. /Qtr. Hours/Rate P/H
Total
Gross
Backpay
Excluded
1979-3 40 hrs @ 4.29 . .. ..... ............. $171.60
1980-1 40 hrs @ 4 55 .. ............. ..... ........ 182.00
1980-4 40 hrs @ 4 80 . ..... ...... .............. 192.00
1981-1 56 hrs. @ 4.80 ... ....................... 508.80
48 hrs. @ 5.00 ............. ....... ..............
1981-2 40 hrs. @ 5.00 .............. ................... 200.00
1981-4 120 hrs. @ 5.025 ................ .............. 603.00
1982-1 160 hrs @ 5.025 ... ..... .................. 804.00
1982-3 123 hrs. @ 5.425 .. ........... ............... 667.27
1983-1 40 hrs. @ 5.725 .... ..... ................... 29229.00
Also excluded from gross backpay were wages at the
rates shown below for days when, as stipulated , Doxsee's
plant was shut down:
Yr./Qtr. Days P/H Rate TotalExclusion
1980/1 ............................. 2 $4.80
$76.80
1980/2 ............................. 1 4.80
38.40
1980/3 ............................. 1 4.80
38.40
1980/4 ............................. 1 4.80
38.40
1981/1 ............................ 5 5.00
200.00
1981/2 ............................. 5 5.00
200.00
1981/3 ........................... 4 5.00
160.00
1981/4 ........................ 4 5.025
160.80
27 No deduction was made here from gross backpay by reason of
layoff during the period from 22 to 29 October 1979 (1979-3), as Shanks
had been incapacitated because of illness Accordingly, her gross backpay
was calculated at the contractual disability rate of $75 a week
STEELWORKERS (DOXSEE FOOD)
Yr. /Qtr.
1982/1 .............................
Days
4
P/H Rate
5.375
Total
Exclusion
172.00
1982/2 ............................ 3 5.39
129.36
1982/3 ............................. 3 5.425
130.20
1982/4 ............................ 3 5.425
130.20
1983/1 ............................ 3 5.725
137.40
1983/2 ............................. 3 5.725
137.40
1983/3 ............................ 3 5.725
137.40
1983/4 ............................. 3 5.725
137.40
The amounts Shanks actually earned during each quar-
ter of the backpay period are her interim earnings, while
her calendar quarter net backpay is the difference be-
tween her calendar quarter gross backpay and her inter-
im earnings.
Shanks' stipulated interim earnings while a full-time
40-hour-per-week employee with CBS, from 18 Decem-
ber 1979 to 7 August 1982, were as follows:
Yr./Qtr. Total Earnings
1979-4 $ 441.98
1980-1 2,351.46
1980-2 1,511.31
1980-3 818.62
Shanks' interim earnings from CBS were diminished
during 1980 by her 5 weeks of layoff from that Company
during the second quarter, by 8 weeks of layoff during
the third quarter prior to 20 September , and by her
layoff that began during the week ending 20 September
and continued through the rest of that calendar year, in-
cluding the entire fourth quarter when she had no inter-
im earnings.
Shanks' gross backpay for the third quarter of 1982 is
further reduced by the amount of her interim earnings
from CBS during 3 days of recall employment after
almost 24 months of layoff.
Although Shanks was on layoff from CBS throughout
1981, her projected gross backpay from Doxsee for that
year was lessened by interim earnings from other
sources . At the end of the first quarter and the start of
the second quarter of 1981, she had limited earnings
from Iberville Services, Inc., but her second quarter
gross backpay was more substantially offset by income
derived from packing line work at Cuibro Snack Foods,
Inc. Deducted from gross backpay during the entire
third quarter of 1981 were Shanks' earnings as a part-
time cafeteria worker with the Vigo School Corporation.
Shanks continued to have occasional income from
Vigo School Corporation during the first, third, and
fourth quarters of 1982 , almost all of which was realized
in the last quarter . In the first and third quarters Vigo
paid Shanks only $13.40 and $20 . 35, respectively, while
in the fourth quarter , Shanks received $529.60 from
1281
Vigo. As noted, early in the second quarter of 1982,
Shanks concurrently began part-time employment as a
housekeeper with Union Hospital , a position she has con-
tinued for the remainder of the backpay period. From
this, Shanks realized continuing interim earnings deducti-
ble from gross backpay in applicable amounts during
each subsequent quarter of the backpay period. The
backpay computation for wages is set forth in Appendix
A to this decision . This appendix reflects the various de-
ductions from Shanks' projected earnings at Doxsee to
reach gross backpay, and the further deductions from
gross backpay of quarterly interim earnings, resulting in
net backpay.
Although I have accepted and followed the General
Counsel's basic backpay formula, my calculation of net
backpay for wages in Appendix A, below, differs materi-
ally from that of the General Counsel as set forth in the
corresponding appendix to her computation . This, princi-
pally, is because the General Counsel inadvertently did
not carry forward her stated intention of excluding from
gross backpay moneys that Shanks would not have
earned at Doxsee even if recalled because of periods of
plant shut down and layoff. Layoff, as stated , was pro-
jected in accordance with the layoff-recall experience of
comparable employee, Betty Clark.
For example, while my "Unadjusted Projected Earn-
ings" column in Appendix A to this decision , derived by
multiplying the number of hours during each quarter that
Shanks would have worked if recalled by Doxsee by the
respective applicable hourly pay rates ,28 closely corre-
sponds to the General Counsel's computations of gross
backpay for each quarter, she did not make intended ex-
clusions for periods of shutdown and layoff, but simply
deducted interim earnings . Accordingly, Appendix A
was set up to show , reading from left to right for each
applicable calendar quarter, the unadjusted projected
earnings , or what Shanks would have earned at Doxsee
had there been no applicable exclusions, and the excluda-
ble amounts for layoff and plant shutdown to reach gross
backpay. The amounts listed in the "Gross backpay"
column were further reduced by interim earnings to
derive net backpay as to wages, as shown in the last
column at the right . For 1982-1983, Shanks ' gross back-
pay was enhanced by a one -time item of $177.40 in medi-
cal expenses referred to above.
Although I generally am in agreement with the
amounts of interim earnings the General Counsel would
deduct from gross backpay to derive net backpay, our
principal differences are for 1982-3 and 1982-4. Although
the $951.12 that the General Counsel would so deduct
for 1982-4 correctly reflects Shanks' earnings that period
from Union Hospital , she inadvertently did not also
deduct the $442.20 that Shanks earned during that quar-
ter from Vigo School Corporation . My differences with
the General Counsel's computation of interim earnings
28 This column also factored in, as applicable , the three above-de-
scribed cost -of-living increases that Shanks would have received at
Doxsee and the $75-per-week contractual disability pay during those
weeks of 1979 -3 and 1979 -4 when her health would have prevented her
from working.
1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for 1982 -3 and the nominal difference for 1981 -2 appear
to be arithmetical.
Although in accord with the General Counsel that in-
terest is applicable to this backpay award , including legal
fees and vacation pay, unlike the General Counsel, I
have not computed interest at this time. Rather , consist-
ent with the more general practice , I have defined below
the formula and rates under which interest should be as-
sessed , but am deferring final calculation to a later stage
in the compliance process, when litigation has ended and
the matter is closer to conclusion At that time , interest
can be finalized administratively based on established fig-
ures. In the meantime , it would be beneficially clearer
and simpler to concentrate on the underlying principal
sums
Appendix B, below , shows Shanks' vacation pay enti-
tlement calculated at the rates provided in the two suc-
cessive collective-bargaining agreements in effect during
respective portions of the backpay period.
Pension contributions equal the moneys owed by the
Respondent Unions on Shanks' behalf to the National In-
surance Group Pension Plan29 for each hour that Shanks
would have worked for Doxsee during the backpay
period if recalled , from when she would have completed
a 30-day probationary period , less all the above periods
during which Shanks would have been on layoff and
when Doxsee 's plant was shut down . Such pension con-
tributions , set forth in Appendix C to this decision, are
computed at the hourly rates for the time periods set
forth below , not exceeding 40 hours per week:
Hourly Pension
Time Period Contribution Rate
7/23/79-1/31/81 $0.1765
2/01/81-1/31 /83 0.2265
2/01/83-3/ 11/85 0.25
Health insurance expenses , set forth in Appendix D to
this decision, are the undisputed premiums Shanks has
paid Equitable Life Assurance Society of the United
States for individual health and hospitalization insurance
since 1 June 1979 , for which she is entitled to reimburse-
ment on the General Counsel 's valid theory that Shanks
would not have incurred the costs of these premiums had
she been recalled by Doxsee.
Legal fees for Shanks ' attorney , also sought as part of
backpay, will be considered separately.
Interest on backpay, as requested by the General
Counsel , is payable at the "adjusted prime rate" used by
the Internal Revenue Service in calculating interest on
the under and over payment of taxes,30 and is due for
the following time periods at the rates shown below:
Period % Rate
6/18/79-12/31/79 6
1/1/80-12/31/81 12
1/1/82-12/31/82 20
1/1/83-6/30/83 16
7/1/83-3/31/84 11
29 P & F Industries, 267 NLRB 650, 652 (1983), Sioux Falls Stock Yards
Co, 236 NLRB 543, 546 (1978)
30 See Florida Steel Corp , 231 NLRB 651 (1977), Olympic Medical
Corp, 250 NLRB 146 (1980)
4/8/84-3/11/85 11
As restated by Administrative Law Judge Julius Cohn
in his Board-approved decision in P & F Industries:31
A discriminatee is entitled to receive what he
would have earned had he remained in the Compa-
ny's employ, less his interim earnings. . . . There is
no formula that would measure an exact figure
since the discriminatees did not actually work
during the period Therefore "the Board is vested
with wide discretion in devising procedures and
methods which will effectuate the purposes of the
Act." NLRB v. Brown & Root, 311 F.2d 447, 452
(1963)
The formula used and its various component factors,
as modified above and uncontested by the Respondents,
is reasonable, proper, and appropriate.32
D. The Claim for Attorney Fees
1. The facts
In his adopted order, Judge Fitzpatrick ruled that
Shanks, if she so desired, should be permitted counsel for
her choice to pursue recall by Doxsee, the reasonable
fees for same to be paid only by the Respondent Interna-
tional Union. Counsel fees were provided here as it was
found that in "view of the evident animosity of some
union officials toward Shanks," it would be necessary for
Shanks to have her own attorney to ensure the start of a
proceeding, whether arbitration or an alternative
method, that would help her regain her position with
Doxsee and to protect her interest once such a proceed-
ing was underway. This was particularly germane as
Shanks' recall by Doxsee was one specified means by
which the Respondents' backpay liability could be tolled.
In May 1981, Shanks retained Attorney Ralph Ogden
of Indianapolis, Indiana,33 who, on 1 June 1981, filed a
complaint on her behalf against Doxsee and the Re-
spondent Unions pursuant to Section 301 of the Act in
the U.S. District Court for the Southern District of Indi-
ana, Terre Haute Division, in Civil Action No. TH 81-
96-C. This suit, brought against Doxsee and the Re-
spondent Unions instead of arbitration, alleged that
Doxsee had laid off Shanks on 5 April 1979 without ex-
planation and without just cause, had failed to recall her
although other employees in the same job classification
had been recalled, although new employees also had
been hired from outside to work in Shanks' classification
and although the Respondent Unions and Doxsee had
had a collective-bargaining agreement under which
Shanks was covered Shanks requested judgment to fully
compensate her for lost wages and fringe benefits caused
by breach of the collective-bargaining agreement, injunc-
tive relief requiring Doxsee to rehire her with such se-
31 267 NLRB at 652
32 See Sioux Falls Stock Yards Co, 236 NLRB at 545, Triangle Sheet
Metal Works, supra
33 Ogden since has moved to Denver, Colorado
STEELWORKERS (DOXSEE FOOD) 1283
niority as she might have had under the contract had she
been recalled , and attorney fees , 34 interest , and costs.
On 8 and 11 August and 19 September 1983, the Re-
spondent Unions, Doxsee and Shanks, respectively,
moved for summary judgment.35 This was followed by a
joint motion on 27 March 1984 that the pending motions
for summary judgment be referred to a U . S. magistrate,
that the case be removed from the pending trial calendar
and that it be redesignated as a nonjury case . This joint
motion , made to obtain rapid disposition , was granted by
district court order , dated 3 May 1984.
On 21 August 1984 the district court entered its order
adopting the magistrate 's 17 August memorandum deci-
sion . The court granted summary judgment and costs to
the defendants , finding that Doxsee had not breached the
collective -bargaining agreement by failing to recall
Shanks from layoff after she had worked only 3 of her
30-day contractual probationary period,36 and concur-
rently denied Shanks' motion for summary judgment.
On 28 September 1984 Shanks filed an appeal with the
U.S. Court of Appeals for the Seventh Circuit from the
district court's decision . On 1 March 1985 the court of
appeals issued an Order to Show Cause why Shanks'
appeal should not be dismissed in light of that court's de-
cision in Landahl v. P.P.G. Industries ., 37 and on 11
March, that court granted Shanks' 7 March 1985 motion
to dismiss her appeal from the district court with preju-
dice and without costs.
In the affidavit supporting his petition for attorney
fees, Ogden who had represented Shanks in all aspects of
the above-described court proceedings, related that
Shanks first had contacted him in May 1981 and that he
94 The complaint in the court suit alleged that Shanks was not repre-
sented by the Unions , was bringing this action against Doxsee in person,
and that the Board earlier had issued an order permitting her to obtain
counsel of her choice to pursue her remedies
95 These motions by the Unions and Doxsee were based on like con-
tentions that there was no genuine issue of material fact and that Shanks'
action was barred by the 6 months ' statute of limitations applicable in
such cases . Shanks asserted that she was entitled to summary judgment
"on a theory of collateral estoppel , or res judicata," based on the Board's
court-enforced decision and order , when the same issues had been litigat-
ed Her motion did not specifically address the limitations period issue
raised by the defendants
se The magistrate , in his court-adopted decision , found that under the
collective-bargaining agreement 's "management prerogatives clause,"
when , as there , Doxsee 's obligations concerning the hire , discharge, or
layoff of its probationary employees were not specifically limited by
other contractual provisions , Doxsee had reserved the right to deal with
such matters as it saw fit . Accordingly, the recall aspirations of any pro-
bationary employee, such as Shanks, who had not attained seniority
status were completely within the Employer 's discretion and Doxsee's
failure to recall Shanks did not constitute a violation of the collective-
bargaining agreement The magistrate quoted language from Del Costello
v Teamsters, 462 U S 151 ( 1983), that to prevail against either the Com-
pany or the Union in a Sec. 301 suit , employee -plaintiffs must show not
only that their discharge had been contrary to the contract , but must also
demonstrate a breach by the Union of its duty of fair representation As
Doxsee 's contractual breach was not established , there was no felt need
to reach the issue of whether or not the Unions had met their duty of
providing fair representation.
94 746 F 2d 1312 (7th Cir 1984). Landahl, which had been decided
after Shanks filed her notice of appeal , but not published in advance
sheets until after the merits of her appeal had been briefed, retroactively
applied the 6-month period of limitations for Sec. 301 actions set forth in
Del Costello Y. Teamsters, supra As Shanks had not filed her suit in Cause
No TH-81-96-C until after this limitations period had run, it was tune-
barred under Del Costello and Landahl.
had discussed Shanks ' case with her and a representative
of the Board 's Indianapolis Regional Office . Ogden, in
explaining his strategy , noted that at the time , before the
Del Costello decision , it had appeared that Indiana's 2-
year statute of limitations on cases arising out of employ-
ment contracts was about to run , barring any action that
might be brought under Section 301 against either the
Unions or Doxsee. Accordingly, he filed complaint in
the U.S. district court in Case No. TH-81-96-C. Ogden
obtained leave from the court permitting Shanks to pro-
ceed before it as a poor person.
Ogden, however, also acted on the premise that Judge
Fitzpatrick's Board-adopted remedy would afford the
most effective available relief for Shanks if appropriately
enforced . As the Section 301 action would not provide
benefits to Shanks that could not be obtainable through
enforcement of the Board's order, and as the Board's
order already had been entered in her favor , in Ogden's
view , proceeding to trial on the Section 301 suit merely
would result in relitigation of issues previously raised
before the Board.
Accordingly, at Ogden's December 1981 request,
Board attorneys obtained an order from Judge Wood of
the Seventh Circuit enforcing the Board's decision. This
order was vacated at the Union 's motion and then, as
noted , was reentered by a three judge panel.
As Ogden's requests that the Board's Regional Direc-
tor institute backpay proceedings or otherwise act to en-
force Judge Fitzpatrick's decision was met by sharp dis-
agreement , on 3 February 1983, Ogden filed for manda-
mus in the U.S. District Court for the Southern District
of Indiana to compel the Board to seek enforcement of
its order on Shanks ' behalf. 38 This proceeding was con-
tested . As it later appeared to Ogden after discussions
with Regional Office representatives that the General
Counsel was prepared to seek Shanks' remedy, he dis-
continued the mandamus action.
Ogden requests payment for a total of 30.43 profes-
sional hours expended by him on Shanks' behalf between
26 May 1981 and 19 July 1983, at $60 an hour, or
$1825.80 . 39 Ogden's itemized submission shows that he
spent much of his relevant time in telephone conversa-
tions with Board representatives, with counsel for
Doxsee, and for the Respondent Unions, with Shanks; in
preparing correspondence to these and other individuals;
and in researching, preparing , and filing various legal
documents.
38 According to the General Counsel 's brief, the mandamus action
arose from an opinion difference between Ogden and the Regional Office
concerning the appropriate time in which to institute backpay proceed-
ings-before or after resolution of the then-pending Sec 301 suit In any
event , the mandamus suit later was transferred to the District Court's
Terre Haute Division , where the Sec 301 suit was situated.
39 Ogden , in his 19 July 1983 deposition, described the $60 -an-hour
rate sought here as below his customary charges because of his lack of
"particular expertise" in this area The taking of Ogden's deposition had
been ordered by the Regional Director for Region 25 at the Respondent's
motion in anticipation of both the then -pending backpay hearing and
Ogden's since-completed relocation from Indiana to Colorado Ogden's
time in giving the deposition and his expenditures for the services of an-
other attorney who represented him there and who otherwise consulted
with him, are included among the monetary items in Ogden's petition for
attorney fees
1284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ogden also claims reimbursement for expenses totaling
$382.38 incurred from 23 November 1981 through 19
July 1983. These mostly are for long-distance calls, for
fees paid to the U.S district court, for photocopies, and
for process services. By far the largest single expense
item listed is $225 in legal fees for the attorney who rep-
resented him at the above 19 July 1983 deposition. For
this, Ogden's attorney billed him for 3 hours at $75 an
hour-consisting of 2 hours for consultation that day and
1 hour for the actual deposition.
Claiming $1825.80 in compensable hours and $382.38
in asserted expenses, Ogden seeks a combined payment
of $2208.18.
It neither is necessary nor practicable to set forth in
detail all of Ogden's itemized professional services on
Shanks' behalf, the work hours expended and the ex-
penses incurred as the correctness of Ogden's assertions
in these areas have not been meaningfully challenged.
Although the Respondents, in an appendix to their brief
where some pages of Ogden's itemizations were photoco-
pied, attempted to show by conclusionary alterations that
certain listed services and expenses should be disallowed,
I find these efforts to be without substance.
ed concerning Shanks, whether or not represented by
counsel. Therefore, her attorney could have served no
useful purpose in that regard. As Doxsee merely had ex-
ercised its contractual prerogatives in laying off and not
recalling Shanks, the Unions could not compel arbitra-
tion or meaningfully invoke the grievance procedure on
her behalf. Accordingly, as there was nothing that either
the Respondent Unions or Shanks' attorney could have
done for her in these circumstances, there was no basis
for counsel fees.
Second, the Respondents argue that as Doxsee's 17
November letter had been a "determination" of Shanks'
status triggering the start of the 6-month limitations
period during which a Section 301 action on Shanks'
behalf could be brought under Del Costello v. Teamsters,
supra, that period already had expired before May 1981
when Ogden was retained. The Respondents, therefore,
argue that services covered in Ogden's petition for fees
should be disallowed as substantially inconsistent with
Judge Fitzpatrick's designated purpose because such
services could not have resulted in a determination that
Shanks be recalled by Doxsee.
2. The parties' positions
The General Counsel contends that Ogden should be
reimbursed for his services and expenses as requested in
his petition on the ground that all measures taken by
him, including the discontinued mandamus action against
the Board and the unsuccessful Section 301 suit, had
been instituted to protect Shanks' interest. The General
Counsel urges that as such actions were integrally relat-
ed to her backpay claim, they were properly included.
The General Counsel argues that Ogden's requested
hourly fee of $60 for representing Shanks is reasonable in
that his claim is consistent with model regulations pro-
posed by the Administrative Conference of the United
States40 for the award of attorney fees under the Equal
Access to Justice Act (EAJA) '41 which provides that in
assessing the reasonableness of an hourly rate , "the cus-
tomary fee of the attorney" for services provided in liti-
gation similar to that for which the award is sought must
be considered. As Ogden, whose undisputed claim is that
he customarily charged $75 to $90 per hour, had reduced
his fees in the instant case because of lack of experience
in similar litigation , the General Counsel contends the
Ogden's request is well within reason both as to the rate
and, in view of the complexity of what was required, the
number of professional work hours charged.
The Respondents assert that Doxsee's 17 November
1980 rejection of the Union's alternative request that
Shanks be reinstated to that Company's seniority rolls or
that her status be arbitrated was a "determination" of
Shanks' job status within the meaning of Judge Fitzpa-
trick's adopted order. As Doxsee had been empowered
under the contract to terminate probationary employees
such as Shanks at will, the Respondents argue that no ar-
bitration proceeding thereafter could have been conduct-
3. Discussion and findings
The Board's authority to require the payment of coun-
sel fees in remedying unfair labor practices is well estab-
lished. In NLRB v. Teamsters Local 396 (United Parcel
Service) '42 the court of appeals held that:
The Board's order that the Union pay counsel
fees was within the power granted to the Board by
the Act. Congress has vested the Board, not the
courts, with broad discretion to order a violator "to
take such affirmative action . . . as will effectuate
the policies of [the Act]." (N.L.R.B. v. Food Store
Employees Union, Local 347, etc. (1974), 417 U.S. 1
. . . .) That discretion includes the grant or denial
of litigation expenses and attorneys' fees. (See
N.L.R.B. v. Local 485, Int. U. of Electrical, R. & M.
Wkrs. (2d Cir. 1972), 454 F.2d 17, 22 n. 9; Interna-
tional Union of E., R. & M. W., AFL-CIO v.
N.L.R.B. (1970), 426 F.2d 1243, 1253 n. 15; cf.
N.L.R.B. v. Food Store Employees Union, Local 347,
etc., supra, 417 U.S. 1.)
One of the policies of the Act is to undo the ef-
fects of unfair labor practices by bringing about "a
restoration of the situation, as nearly as possible, to
that which would have obtained but for the illegal
discrimination" (Phelps Dodge Corp. v. N.L.R.B.
(1941), 313 U.S. 177, 194, 8 LRRM 439; see also
N.L.R.B. v. Rutter-Rex Mfg. Co. (1969), 396 U.S.
258, 265). If the Union had not violated its duty of
fair representation by its discriminatory refusal to
process the grievances, the issues would have been
resolved by litigation or arbitration in which the ag-
grieved employees would have enjoyed vigorous
42 509 F 2d 1075 (9th Or 1975), enfg in relevant part and remanding
40 46 Fed Reg 15895 et seq in part 203 NLRB 799, 805, 806 (1973), cert denied 421 U S 976 (1975),
41 5 U S C § 504 et seq Ogden's claim for attorneys fees, of course, is clarified on remand 220 NLRB 35 (1975) Also see Glass Bottle Blowers
based on the Board's Order rather than EAJA Local 106 (Owens-Illinois), 240 NLRB 324, 325 fn 9 (1979)
STEELWORKERS (DOXSEE FOOD) 1285
representation at no added cost to themselves. They
cannot be restored to that position unless they are
relieved of the expenses they will incur in securing
the independent representation to which they are
concededly entitled.3
9 The propriety of compelling the Union to bear the expenses
of independent representation for the aggrieved employees Is pre-
mised , in this case on the Union 's breach of its duty of fair repre-
sentation .
These findings were echoed in Liberty Mutual Insur-
ance Co.,43 in which the Board noted that Section 10(c)
of the Act44 has been interpreted as giving the Board
broad discretion to define and develop appropriate reme-
dial measures , the Board is required to restore employees
who have been harmed in their jobs by unlawful conduct
to the status ante quo where possible45 and, in fashioning
its remedial orders, is empowered "to design them in
such manner as to prevent or deter recurrence of the un-
lawful activity which is the subject of the election.46
In the present matter , but for the Respondent's ad-
judged hostility to Shanks and breach of its duty to
timely and fairly represent her, Shanks would not have
been compelled to retain private counsel to assist in her
efforts to be recalled to work by Doxsee . The Respond-
ents' present arguments against attorney fees were essen-
tially included in their contested motion for a determina-
tion of compliance with the Order of the Board or, alter-
natively, for reconsideration and modification of that
Order, which was denied by the Board on 27 March
1981.47 In support of that motion , the Respondents had
argued, in effect, that it would be pointless to grant legal
fees to provide Shanks with her own counsel at an arbi-
tration proceeding as Doxsee had been within its con-
tractual rights in refusing to arbitrate her status while she
was still a probationary employee . In that motion, the
Respondents also argued , alternatively, that as Shanks
had no course of action against Doxsee for breach of
contract , it would not further the purposes of the Act to
require the International Union to finance a lawsuit
against itself or one of its locals . The Board previously
rejected those arguments when it issued its 27 March
1981 Order denying the Respondents ' motion, and no
basis has been provided for reconsidering them here.
Shanks, in trying to regain her job with Doxsee , clearly
43 235 NLRB 1387, 1388 ( 1978). Although the court and Board in
United Parcel Service, supra, were concerned with legal fees incurred only
as a consequence of arbitration, in Liberty Mutual Insurance Co., supra,
the Board allowed the Charging Party reimbursement for legal fees stem-
ming from miscellaneous court litigation not related to obtaining the
Charging Party 's reinstatement by the Respondent Employer . The coun-
sel fees in Liberty Mutual came about from the defense of an injunction
suit brought by the Charging Party's former employer who was seeking
to prevent the Charging Party from independently selling insurance poli-
ces in breach of a noncompetition convenant to which he earlier had
subscribed.
44 Sec . 10(c) of the Act, in part, charges the Board with the duty to
take "such affirmative action ... as will effectuate the policies of this
Act."
48 Phelps Dodge Corp. v NLRB, 313 U S 177 ( 1941).
46 Liberty Mutual Insurance Co., supra at 1387 and fn . 9 thereon.
47 When the Respondents filed this motion , the Sec . 301 suit against
them had not yet been filed and present arguments relating to their suc-
cess in that proceeding were not yet available.
was entitled to rely on the Board 's Order, including its
provision for counsel fees.
The Respondents ' arguments that Shanks ' retention of
Ogden as counsel served no useful purpose as neither an
arbitration proceeding nor, in the alternative , a timely
Section 301 suit could be brought for Shanks by the time
Ogden was retained , are not persuasive . As was more
fully discussed above under "Defenses" the Respondents'
liability in this matter is based on its own unlawful con-
duct and not on the prospects of successfully litigating
Shanks' recall . Having placed themselves in opposition
to Shanks , she was entitled to pursue her job with her
own legal representative . Recall was important here not
only as a means of best making Shanks whole , but also as
a limitation on backpay liability.
Because arbitration could not be meaningfuly pursued,
the Section 301 suit remained the only alternative, even
as recognized by the Respondent Unions in their brief.
Although the court of appeals ultimately found that such
an action was time-barred , there is no evidence that
Ogden had been dilatory or otherwise at fault . Rather,
the record shows that he acted promptly and in good
faith on Shanks ' behalf, and that he actively pursued her
interest . Although retained late in point of time available
to institute a timely Section 301 suit , Ogden, by virtue of
his mandamus suit and other actions, can be credited
with revitalizing the backpay proceeding . In any event,
as noted , the Board 's Order did not make attorney fees
contingent on success in obtaining Shanks' recall or rein-
statement . To hold otherwise would be to substantially
nullify the counsel fee provision of the Board 's order by
enabling Shanks to retain counsel to help recover her po-
sition only if ultimately successful.
Accordingly, to make Shanks whole, it is necessary to
grant her the costs of legal representation in pursuing
recall , whether or not successful.
From the record as a whole, it appears that the $60
hourly rate for professional services billed by Ogden is
fair, reasonable, warranted by the nature of the services
rendered , and well within, for example , the EAJA
hourly counsel fee allowance of $75. Comparatively,
Ogden 's requested rate is below the $75 rate charged by
the attorney who had represented him in connection
with his deposition and represents a voluntary reduction
by Ogden , himself, of his customary $75 to $90 fee be-
cause of inexperience in labor law litigation . Therefore, I
find that Ogden's $60-per-hour billing rate is justified and
should be allowed.
Contrary to the Respondents , I further find that the
full extent of the services performed by Ogden as set
forth in his itemized submission and the related expenses
listed in his petition , including those relating to the dis-
continued mandamus proceeding , the Section 301 suit,
the various telephone calls and items of correspondence,
costs relating to Ogden's deposition as ordered by the
Regional Director , and the number of professional hours
that Ogden asserts were expended in the performance of
these services, should be allowed as reasonable and con-
sistent with the complexity of the work performed.48
48 Lindy Bros Builders Y. American Radiator Corp., 487 F . 2d 161, 167
et seq. (3d Cir . 1973).
1286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, I find that the Respondent International
Union should be required to pay attorney fees in the
amount of $1825.80 and $382.38 in expenses, or a total of
$2208.18, as requested in the petition for same. The
awarding of such fees and expenses may serve the addi-
tional purpose of deterring the Respondent International
Union from future related unfair labor practices.49
E. The Effect of the Section 301 Suit on Shanks'
Backpay Entitlement
As the Respondent Unions argue that their successful
defense with Doxsee against Shanks' Section 301 suit has
vindicated their position that neither backpay nor attor-
ney fees are due under the Board's enforced order, it is
relevant to consider the relationship between these two
separate proceedings.
The Respondents' obligation to reimburse Shanks for
backpay and the Respondent International 's responsibil-
ity for her attorney fees stem, of course, from the
Board's Order. As arbitration of her status was unlikely,
the Section 301 action was brought as an alternative
principally to obtain recall. This suit was collateral to the
unfair labor practice case and related, in part, to an
aspect of Shanks' remedy rather than to whether the Re-
spondents had violated the Act in the first place. Con-
trary to the Respondents, neither the Section 301 suit nor
this supplemental backpay proceeding may serve as de
facto appeals from Judge Fitzpatrick's adopted findings.
What the Respondent's successful defense of the Section
301 suit did accomplish was to finally end Shanks' claim
for recall by Doxsee. This closed the backpay period as
of 11 March 1985, the date when the court entered its
final order dismissing that matter.
In so concluding, it is noted that there was no ruling
in the Section 301 action either by the U.S. district court
or the court of appeals that would directly or indirectly
affect the efficacy of the underlying unfair labor practice
judgment. The Seventh Circuit, which also had enforced
the unfair labor practice case, never modified its enforce-
ment order in the wake of its dismissal of the Section 301
suit. Neither court in the Section 301 proceeding found
that the Respondent Unions had not violated Section
8(b)(1)(A) of the Act by refusing to fairly represent
Shanks in obtaining recall from Doxsee. The district
court merely had held that there had been no contract
breach by Doxsee affecting Shanks' job status and did
not reach the issue of fair representation, while the court
of appeals, concluding that the Section 301 action had
not been timely filed, did not even reach the issue of
contract breach.
Accordingly, I find nothing in the dismissal of Shanks'
Section 301 lawsuit that would effect her entitlement to
backpay or counsel fees, except that the conclusion of
that matter on the merits established the end of the back-
pay period.
Conclusions
As the Respondents have not contested the backpay
computation, itself, including the factor-, on which it is
based, and have not provided grounds for eliminating or
mitigating backpay, vacation pay, pension contributions,
health insurance expenses, or attorney fees, I find that
the Respondents should be assessed the backpay award
as set forth in the General Counsel's computation, as
modified herein, and that the Respondent International
Union should be required to pay attorney fees and ex-
penses as requested in Ogden's petition, with interest at
the rates for the respective time periods as set forth
above.
[Recommended Order omitted from publication.]
APPENDIX A.-WAGES
Yr /Qtr.
1979/1 ....
1979/2...
1979/3
1979/4
Unad-
justed
Project-
ed
Earn-
ings
Layoff
(Clark's
(Exper )
Plant
Shut-
down
Medical
Ex-
penses
Gross
Backpay
Interim
Earnings
Net
Backpay
0 0 0 0 0 0
0 0 0 29800 0 29800
171 60 0 0 1240 80 0 1240.80
0 0 0 118900 441.98 747 02
18200 76 80 0 2191 20 2351.46 0
0 3840 0 245760 1511 31 94629
0 3840 0 245760 818 62 1638.98
19200 3840 0 2265.60 0 2265.60
508 80 20000 0 185600 28200 1574.00
20000 20000 0 220000 835 47 1364.53
0 16000 0 244000 0 244000
60300 16000 0 1843 88 428.80 1415 08
80400 17200 0 175600 1340 1742.60
0 12900 0 2671.16 869 . 86 1801 30
0 130 20 17740 286204 1415 . 15 1445 17
0
298.00
1412.40
118900
1980/1 245000
1980/2 ..... ....... . ......... . ...... 2496.00
1980/3. ..... ........ . ... .. . 249600
1980/4 . . ......... .. ...... 249600
1981/1 . .. ...... 2564.80
1981 /2 . .... . ... . ...... . 260000. . ....... . . .
1981/3... . .. . ..... . ...... . ...... . 260000
1981 /4 . ........ . ..... 2606.88
1982/1. 2732.00
1982/2. .. 2800 16
1982/3 2814.84
49 Liberty Mutual Insurance Co, supra
STEELWORKERS (DOXSEE FOOD) 1287
APPENDIX A.-WAGES-Continued
r./Qtr.
Unad-
justed
Project-
ed
Earn-
ings
Layoff
(Clark's
(Exper.)
Plant
Shut-
down
Medical
Ex-
penses
ross
Backpay
nterim
Earnings
et
Backpay
1982/4 ................................................................................... 2821.00 667.28 130.20 0 2023 . 52 1393 . 32 63020
1983/1 ..................................................................................... 2926.60 229.00 137.40 0 2560 .70 1312 .96 1247.24
1983/2 ...................................................................................... 297700 0 137.40 0 2839 . 60 1243.00 1596.60
1983/3 ................................................................................. 2977.00 0 137.40 0 2839 .60 1806 .69 1030.91
1983/4 ..................................................................................... 2977.00 0 91.60 0 2885 .40 1510 66 1374 74
1984/1 ................................................................................. 3045.80 0 0 0 3045.80 1538 .43 1506.87
1984/2 ................................................................................. 3081.00 0 0 0 3081 .00 1610 .93 1470.07
1984/3 ................................................................................. 1753.80 0 0 0 1753 . 80 1001 . 88 751.92
Total Net Backpay ......................................................... $28,527.92
APPENDIX B.-VACATION BACKPAY APPENDIX C.-PENSION CONTRIBUTIONS-
Continued
80/2
Yr. /Qtr.
............................
Hourly
Rate
4.80
Hrs. of
Vacation
Entitlement
40
Vacation
Pay Owed
192.00
r./Qtr. rs.
ourly
Contribu-
tion
ontrib.
Due
1981/2 .............................. 5 .00 48 240.00 1983/1 136 .2265 30.80
1982/2 .............................. 5.39 56 301.84 320 .2500 80.00
1983/2 .............................. 5.725 64 366.40 2 496 . 2500 124.00
1984/2 .............................. 5.925 80 474.00 3 496 .2500 124.00
4 504 2500 12600Total Due
Vacation Pay....... $1574.24 1984/1 520
.
.2500 130.00
2 520 .2500 130.00
3 296 .2500 74.00
APPENDIX C.-PENSION CONTRIBUTIONS Total $1991.58
Yr. /Qtr. Hrs.
Hourly
Contribu-
tion
Contrib.
Due PPENDIX D.-HEALTH INSURANCE EXPENSES
1979/2 80 0.1765 $14.20
3 200 .1765 35.30 Expense Total
4 120 .1765 21.18 Premiums paid between 6/18/79 and 12/31/79........ $160.00
1980/1 464 .1765 81.00 Premiums paid between 1 /1/80 and 12/31/81.......... 814.31
Premiums paid between 1 /1/82 and 12/31/82 893 362 512 .1765 90.37 .......... .Premiums paid between 1 /1/83 and 6/30/83 03 512 1765 90.37
............
Premiums paid between 7/1/83 and present 04 472 1765 83 31
.............
Total Due ........................... . $1867 671981/1 120 .1765 21.18
. ............................... .
2 256 .2265 57.98 Total Net Backpay - Wages ......................... $28,527.92
3 440 .2265 99.66 Total Vacation Backpay ...................................... 1,574.24
4 483 .2265 110.53 Health Insurance Expenses ......................................... 1,867.67
368 .2265 83.35
Directly to Shanks ...................................................... $32,235.78
1982/1 328 .2265 74.29
2 496 .2265 112.34 Pension Contributions ............................................ $ 1,991.58
3 496 .2265 112.34 Attorney Fees and Expenses.................................... $ 2,208.18
4 373 .2265 84.48