J. S. Alberici Construction Co.

J. S. ALBERICI CONSTRUCTION CO. 751 J. S. Alberici Construction Co., Inc. and Newell D. McQuerry. Case 14-CA-9878 May 23, 1980 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND TRUESDALE On August 31, 1977, the National Labor Rela- tions Board issued its Decision and Order in the above-entitled proceeding' finding, inter alia, that Respondent violated Section 8(a)(1) and (3) of the Act by failing and refusing to hire Newell D. McQuerry because of his union beliefs and inde- pendently violated Section 8(a)(1) of the Act by threatening that it would refuse to hire an applicant for employment because of that individual's union beliefs. The Board ordered Respondent, inter alia, to make McQuerry whole for any loss of earnings suffered by reason of the discrimination against him. On January 24, 1979, the United States Court of Appeals for the Eighth Circuit issued its judgment 2 enforcing the Board's Order. Thereafter, the Re- gional Director for Region 14 issued and served on the parties a backpay specification and notice of hearing. On June 6, 1979, Respondent timely filed an answer to the backpay specification. On June 18, 1979, a hearing was held before Ad- ministrative Law Judge Jerry B. Stone for the pur- pose of determining backpay due the discriminatee. On August 23, 1979, the Administrative Law Judge issued the attached Supplemental Decision. There- after, General Counsel filed exceptions and a sup- porting brief. Respondent also filed exceptions, a brief in support thereof, and a brief in opposition to the exceptions of the General Counsel. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Supplemental Decision in light of the ex- ceptions and briefs, and has decided to affirm the rulings, findings,3 and conclusions of the Adminis- ' 231 NLRB 1038. 2 591 F.2d 463. 3The General Counsel excepts, inter alia, to the Administrative Law Judge's failure to find that the gross earnings set forth in the backpay specification are appropriate and to his finding that the appropriate method for calculating McQuerry's gross earnings is one based on an averaging of the gross earnings of all ironworkers working for Respond- ent during the backpay period. In support of his exceptions, the General Counsel argues that the gross earnings formula adopted by the Adminis- trative Law Judge was contained in an amendment to Respondent's answer to the backpay specification not satisfying the requirements of Sec. 102.54(b) of the Board's Rules and Regulations, as amended. There- fore, according to the General Counsel, the Administrative Law Judge 249 NLRB No. 102 trative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, J. S. Alberici Construction Co., Inc., St. Louis, Missouri, its offi- cers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. could not rely on such formula. We disagree. Sec. 102.54(b) provides in pertinent part: As to all matters within the knowledge of the respondent, including but not limited to the various factors entering into the computation of gross backpay, a general denial shall not suffice. As to such mat- ters, if the respondent disputes either the accuracy of the figures in the specification or the premises on which they are based, he shall specifically state the basis for his disagreement, setting forth in detail his position as to the applicable premises and furnishing the appropri- ate supporting figures. It is undisputed that Respondent's original answer satisfied the require- ments of Sec. 102.54(b). Thus, Respondent's answer set forth fully its dis- agreement with the accuracy of the figures contained in the backpay specification, the basis therefore, and the supporting figures. Respondent's mid-hearing amendment merely presented additional formulas which the Administrative Law Judge could consider in determining the appropriate gross earnings formula. The General Counsel did not object to the pro- posed amendment. It was therefore not improper for the Administrative Law Judge to have relied on the formula contained in that amendment. In this connection, it is well established that an administrative law judge must determine whether the backpay formulas proposed by the General Counsel are proper and must "make recommendations to the Board as to the most accurate method of determining the amounts." (Em- phasis supplied.) American Manufacturing Company of Texas, 167 NLRB 520 (1967). Here, the Administrative Law Judge found that the General Counsel's gross earnings figures were improperly predicated on prefer- ence being accorded to McQuerry in hiring. Such preferential hiring, the Administrative Law Judge concluded, was not supported by the record evidence and contravened the Eighth Circuit's admonition against the use of such hiring preference in the backpay computation in the absence of supporting evidence. Accordingly, the Administrative Law Judge turned to a consideration of the most accurate formula under the circumstances for calculating McQuerry's gross earnings. He found that such a formula, as noted above, was that contained in Respondent's amended answer. We note in this regard that the General Counsel does not attack the substan- tive merit of the formula adopted by the Administrative Law Judge. The General Counsel also excepts to the interim earnings formula found appropriate by the Administrative Law Judge. The General Coun- sel argues that the Administrative Law Judge was not free to disregard the interim earnings admitted by General Counsel since Respondent had failed to meet its burden of establishing the amount of McQuerry's inter- im earnings. We disagree. Having rejected the General Counsel's pro- posed gross earnings formula and as the admitted interim earnings were keyed to the employment periods set forth in that formula, the Adminis- trative Law Judge properly concluded that the interim earnings figures. although stipulated to by the parties, could not reasonably be utilized with the formula he found appropriate. See, generally, Castleman and Bates. Inc., 224 NLRB 785 (1976). SUPPLEMENTAL DECISION STATEMENT OF THE CASE JERRY B. STONE, Administrative Law Judge: This backpay proceeding was heard pursuant to due notice on June 18, 1979, at St. Louis, Missouri, to determine the amount of backpay, if any, due Newell D. McQuerry in - - 752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD remedial compliance to the Board's Decision and Order in J. S. Alberici Construction Co., Inc., reported at 231 NLRB 1038, as enforced by the United States Court of Appeals for the Eighth Circuit in N.L.R.B. v. J. S. Alber- ici Construction Company, Inc., No. 78-1063, opinion filed January 24, 1979, and Judgment dated February 15, 1979. All parties were afforded full opportunity to partici- pate in the proceeding. Briefs have been filed by the General Counsel and the Respondent J. S. Alberici Con- struction Co., Inc., and have been considered. Upon the entire record in the case and from my obser- vation of witnesses, I hereby make the following: FINDINGS AND CONCLUSIONS Introduction - Dispute The parties are in dispute as to the appropriate formula to be utilized in determining the amount of backpay due McQuerry pursuant to the before-mentioned Board's De- cision and Order as enforced by the before-mentioned United States Court of Appeals for the Eighth Circuit's opinion and judgment. There is minor dispute as to whether the starting date of the backpay period should be July 9 or July 13, 1976, but no dispute as to the ending date of the backpay period. There is major dis- pute as to the formula to be used in determining gross earnings,' and dispute as to whether McQuerry had will- ful loss of interim earnings. Assuming the General Coun- sel's formula for determining gross earnings to be cor- rect, there is little real dispute that the admitted interim earnings utilized as offsets are correct excepting for the dispute as to willful loss of earnings. Assuming Respond- ent's various contended formulas for computing gross earnings are one or all correct, the General Counsel's ad- mitted "interim earnings" are not proper computation for "interim earnings" under such formulas as indicated later herein. There is also a question of contended potential "interim earnings" that may arise from the inclusion in a pending workmen's compensation claim award of com- pensation for lost working time. The Starting Date The General Counsel's starting date for the backpay period as set forth in his backpay specification was July 9, 1976. Respondent contends that the starting date for the backpay period should be July 13, 1976. This dispute seems to have been engendered by the parties' interpretations of the Administrative Law Judge's Decision and Order, the before mentioned Board's Decision and Order, and the before mentioned United States Court of Appeals for the Eighth Circuit's opinion and judgment. Upon review and examination of such decisions and opinion, I am persuaded and conclude and find that the proper starting date for the period for McQuerry's backpay determination is July 13, 1976. Thus, the Administrative Law Judge's Decision re- veals, in my opinion, findings that Respondent discrimin- atorily refused to hire McQuerry for positions on the The earnings that McQuerry would have reasonably earned from the Respondent had there not been discrimination against him. Chrysler and Chevrolet projects on or around July 14, 1976. The Administrative Law Judge alluded to various dates, including July 8, wherein McQuerry sought work with Respondent, and that there was no evidence in the record that there were jobs available on or about July 8, 1976. The Administrative Law Judge specifically alluded to hirings for the Chrysler and Chevrolet jobs on or around July 14, 1976, and set forth remedial requirement that McQuerry be made whole for Respondent's failure to hire McQuerry for the Chrysler job. The Administra- tive Law Judge's backpay remedial requirement was de- signed to terminate with the date that McQuerry would have ceased to work on the Chrysler job. The Board modified the Administrative Law Judge's order as re- garding backpay remedy. The Board set forth that the Administrative Law Judge had found that Respondent had refused to hire McQuerry for several jobs and set forth that the backpay period would continue from the date of discrimination against him until Respondent made him an offer of reemployment. Considering the underly- ing findings of the Administrative Law Judge concerning Respondent's refusal to hire McQuerry on the Chrysler and Chevrolet jobs and the specific reference to such jobs on or about July 14, 1976, I am persuaded that the Board's Order had reference to the same said jobs. The United States Court of Appeals for the Eighth Circuit, in the before-mentioned court opinion, discussed the same findings of the Administrative Law Judge and the Board, and indicated, in my opinion, that language relating to "date of discrimination against him" refe;red to the un- certainty as to which job McQuerry would have been hired for (Chrysler or Chevrolet) on or about July 14, 1976. As to the date for starting the backpay period, in this context and in view of the parties' contentions, it is clear that the starting date for McQuerry's backpay period should be July 13, 1976. The Alleged Willful Loss of Earnings As indicated later herein, I am persuaded that the General Counsel's formula for determining gross earn- ings in this proceeding is not an appropriate formula. I am persuaded that Respondent's proposed formula of using average earnings of all ironworker employees as a basis for construction of McQuerry's gross earnings is appropriate. I am also persuaded, as indicated later herein, that the "interim earnings" utilized with respect to the General Counsel's computations cannot properly be utilized as "interim earnings" with respect to Re- spondent's proposed formula. A major issue raised by Respondent concerns "willful loss of earnings." Such issue would have bearing on either the General Counsel's or Respondent's backpay computations. McQuerry was working for Joliet Tower and Tank Co., in New Madrid, Missouri, at the time he sought em- ployment with Respondent on various dates, including July 8, 1976. McQuerry continued working for Joliet Tower and Tank Co. until July 22, 1976, when he quit said job. McQuerry credibly testified to the effect that he left the Joliet Tower and Tank Co. because he wanted to return to his home in Catawissa, Missouri, because of safety problems, and because in effect he was not receiv- ing the benefit of having health, welfare, and pension J. S. ALBERICI CONSTRUCTION CO. 753 contributions made to Ironworker funds, his regular pro- fession, and wanted to work where such would be done. Considering this and the other evidence of work engaged in by McQuerry during the backpay period, the facts are persuasive that McQuerry did not engage in willful loss of earnings during the backpay period. The Workmen's Compensation Issue Respondent introduced evidence to reveal that McQuerry has a pending workmen's compensation claim which has a potentiality of including an award compen- sation for lost earnings occurring during the backpay period. In accordance with American Manufacturing Company of Texas, 167 NLRB 520 (1967), the amount of a workmen's compensation award relating to compensa- tion for lost earnings from an interim employee during the backpay period is to be considered as an interim earnings offset.2 At the hearing, with consideration that the parties' formula or computations might be sufficient to determine the issues of backpay, Respondent was al- lowed to present such evidence of potential interim earn- ings with the understanding that, if the amount of the workmen's compensation award was not determined and exact evidence as to the part of such award attributable to lost earnings not presented before adjudication, the issue would be deemed eliminated and the determination made on the facts in the record. Essentially, the question of potential "interim earn- ings" under such a pending workmen's compensation claim raises a question of policy. Unfair labor proceed- ings are under statutory mandate for prompt determina- tion. The Board cannot sit and wait for other govern- mental authorities to make potential determinations. Fair- ness would indicate, if there is not dispute otherwise, that backpay remedial responsibilities be carried out. Thus, if in the compliance stage, before formal litigation, the dispute is resolved and the only issue is as to a poten- tial offset of interim earnings flowing from a workmen's compensation claim, compliance should not be withheld. In this case, there appears to be genuine dispute on other issues, and had the workmen's compensation award been make timely and presented to me before adjudication, fairness dictates that it should be considered in the deter- mination of backpay. Since, as indicated later herein, determination of the amount of backpay is not being made but a determination of formula is being made which should result in early compliance, the question remains as to how the question of a potential workmen's compensation award including items relating to interim earnings should be handled. As a matter of policy, the order herein should not be one which would discourage delay if the only issue is a hope that there would be upcoming interim earnings offsets. The order herein, in my opinion, should easily result in computations and backpay determinations within 30 days of said order. Accordingly, if the workmen's compensa- tion award is forthcoming so as to be used in the back- pay determinations and not delay compliance beyond said 2 In this proceeding, as set out later herein, such compensation might merely be earnings which the employee would have earned anyway. As set forth later, however, such earnings would be utilized in determining whether or not there were "interim earnings." 30-day period, such might be considered in the backpay determinations. If not, the issue of such contended inter- im earnings should be deemed to be foreclosed. The Backpay Formula The General Counsel's backpay formula, as explicated at the hearing and by testimony, was to the effect that McQuerry's gross earnings are to be determined on the basis that McQuerry would have been hired on July 9, 1976, when an employee, Probst, was hired.3 The gross earnings, according to the specifications, trial statements, and testimony, were not based upon Probst's earnings until termination, but upon average earnings during a period of time after July 9, 1976, of three employees deemed to have been comparable employees, until the termination of their employment on said project.4 Some of such three employees whose earnings were utilized for the initial period (July 9-August 29) may have been working for Respondent prior to July 9, 1976. Following the initial time period of July-August 29, 1976, when the three employees referred to were terminated from the project, the backpay specifications accorded McQuerry the first job filled by a newly hired employee s and the gross earnings of said employee until his termination. Following this, upon the termination of the aforesaid newly hired employee, the specifications accorded McQuerry the first opening filled by a newly hired em- ployee, and the gross earnings of such employee until termination. Following this, in a chain-like manner, the backpay specifications in a similar manner accorded McQuerry other positions and accorded similar computa- tion of gross earnings.8 Respondent attacks the General Counsel's formula and argues that it does not reveal an appropriate and reason- able basis for determining gross earnings. Respondent contends that the General Counsel's formula accords "preference" in employment to McQuerry and that this is contrary to the opinion of the United States Circuit Court of Appeals for the Eighth Circuit filed on January 24, 1979. The General Counsel argues that statements in the court's opinion are dicta. I do not agree that such statements in the court opinion are dicta. The court s The General Counsel, at the time of issurance of backpay specifica- tions, was of the mind that Probst was the first employee hired on the Chrysler job after July 8, 1976. The facts reveal that Probst had been hired, or reported to work, on July 9, 1976, on the Chevrolet job. Con- sidering the Administrative Law Judge, the Board, and the court pro- ceedings and discussion therein, hiring on the Chevrolet or Chrylser jobs would have the same effect. 4 The General Counsel's backpay specifications, trial statements and testimony of the compliance officer were to the effect that the employees whose earnings were utilized for backpay computations as comparable employees were "newly hired" employees, that the term "newly hired" as used therein meant an ironworker hired by Respondent who did not transfer from one of Respondent's jobs to another without an interruption in employment, or one whose employment was interrupted for a period of more than 3 working days before being rehired by Respondent. Newly hired as defined by the General Counsel in the backpay speci- fications. 6 Although the above would appear true with respect to the time peri- ods 11/15/76-12/28/76, 12/29/76-1/04/77, 1/12/77-1/12/77, 3/10/77- 3/29/77, and 3/30/77-6/28/77, it is not clear whether as to later time period there was a chaining of the time that individual employees worked as a conglomeration thereof. It is not necessary to make such determina- tions in view of the ultimate findings herein. 754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD clearly made statements to the effect that it found it ap- propriate to clarify the manner in which the Board's re- medial order should be construed, that it enforced the Board's order and remanded for computation in accord- ance with its interpretation of that order. The court indi- cated that the record before it justified no implication of entitlement to preferential treatment. Such is revealed by the following excerpt from the court opinion. The record justifies no implication of McQuerry's entitlement to preferential treatment. However, McQuerry possessed the right to be considered, equally with other ironworkers of comparable skills in Alberici's employ, for other jobs at the conclu- sion of the Chrysler and Chevrolet projects. Of course, whether Alberici, if it had treated McQuerry as any other ironworker with his qualifi- cations, would in fact have employed McQuerry for other jobs after the Chrysler and Chevrolet projects ended is a matter for proof by the parties in the backpay proceedings. It is true that the actual judgment issued by the court simply enforced the Board's order; this, however, does not warrant consideration of the remarks concerning "preferential" treatment as mere dicta. However, as I read the court's opinion, the question of a reasonable for- mula and determination of backpay was left to be a matter of proof Some formulas are self-revealing of being reasonable and appropriate. Some are not. If not, the for- mula and contended measure of determination of back- pay would have to be supported by proof. As has been previously determined, the starting date for McQuerry's backpay period is July 13, 1976. Consid- ering the formula utilized by the General Counsel in his specifications, and the facts in the record, I am persuad- ed that the General Counsel's formula or proof as to the amount of gross earnings that McQuerry would have had during the backpay period is not appropriate. If the question of determining McQuerry's backpay were limited to determination of backpay from July 9 to August 29, 1976, the initial aspects of the General Coun- sel's formula might be reasonable and appropriate. As in- dicated, however, the proper starting date for the back- pay period is July 13, 1976. The uncertainty of which job McQuerry would have filled and the divergence in earnings of the employee hired on or about July 13, 1976, indicate that the best and most reasonable formula would be one that took into consideration such uncer- tainties. The problem with the General Counsel's backpay specifications as a whole is that the backpay specifica- tions are not self-revealing that McQuerry, after termina- tion from a job with Respondent, would have been enti- tled to receive the first job that was filled by an employ- ee who was a newly hired employee thereafter. It is noted that the General Counsel's specifications include, in the definition of newly hired employees, employees who had had more than 3 days interruption of employ- ment with Respondent. Such formula as utilized by the General Counsel operated upon a presumption that McQuerry would have been entitled to such jobs. There is no basis in the underlying Administrative Law Judge's, the Board's, or the court's decisions or opinions to sup- port such presumption. I do not view the above-referred to decisions or opinions as forestalling the General Coun- sel, as a matter of proof, from having presented evidence to support the according of such presumption. The Gen- eral Counsel very well may have established the basis for such a presumption or that in view of McQuerry's or others' past work experience that McQuerry would have been entitled to preference to each and every job accord- ed in effect to him for backpay purposes. I have exam- ined the evidence as to McQuerry's and others' past work experience and do not find therein an evidentiary basis for a presumption that McQuerry would have been entitled in effect to the jobs in effect accorded him for backpay purposes. Accordingly, I conclude and find that the General Counsel's backpay specifications have not been estab- lished to be an appropriate basis for the determination of the backpay due McQuerry pursuant to remedial order of the Board as enforced by the court. Respondent's Formula Respondent proposes several formulas for the compu- tation of the backpay due McQuerry. Assuming each or all of such formulas to be reasonable and appropriate, Respondent's overallformula is not appropriate because it relies upon admissions of "interim earnings" utilized by the General Counsel with respect to the General Coun- sel's contended formula. McQuerry is a construction em- ployee and has in the past worked for more than one em- ployer during a year. During the backpay period, only those earnings that McQuerry had from other employers which he would not have had had there been no discrimina- tion against him can properly be constructed as offset in- terim earnings. The General Counsel's admitted "interim earnings" were those earnings from other employers earned during the time of General Counsel's contended contructed employment by Respondent. It does not follow that the interim earnings as so construed would be the same under a different formula for determining gross earnings. At the hearing, Respondent offered to let the General Counsel select individual employees hired on or about the date of initial discrimination to determine McQuerry's gross earnings based upon the earnings of the selected individuals. Without going into detail, I am persuaded that the facts do not reveal that this would reveal an appropriate representation of what McQuerry would have earned had there not been discrimination against him. In my opinion, such contended formula is not self-revealing of being representative, and the evi- dence does not reveal such to be representative of the earnings that McQuerry would have received absent dis- crimination.7 Respondent also argues that an appropriate formula is revealed by according him the gross earnings of an em- ployee hired on July 13 until July 30, 1976, and that the ? The contentions with respect to utilitizing the earnings of Probst for backpay determinations herein is rejected in accordance with the forego- ing. J. S. ALBERICI CONSTRUCTION CO. 755 remaining gross earnings be based upon McQuerry's earnings in 1973-74, adjusted for wage differential in 1976 and 1977, and adjusted in accordance with Re- spondent's demand for work needs in 1976 and 1977 as compared to the time of McQuerry's past employment. In my opinion, such formula is not appropriate. Assum- ing that Respondent had great demand for ironworkers in 1973 and 1974, and less demand in 1976 and 1977, such formula might have realistic meaning as regards ab- stract projections of employment on an average basis. The facts, however, reveal that McQuerry, absent dis- crimination, would have been hired on or about July 13, 1976. This very fact changes the mathematical probabil- ities as to the amount of work that McQuerry would have enjoyed thereafter. This being so, I find that the above-referred-to formula is inappropriate for backpay purposes. Respondent also contends that an appropriate formula for determining McQuerry's earnings would be one which utilized the average wages earned by all of Re- spondent's field ironworkers during the backpay period. Of all the formulas advanced in this proceeding, this for- mula appears the most reasonable for determining the gross earning that McQuerry would have earned during the backpay period had he not been discriminated against by Respondent. It accords neither preference nor detri- ment to McQuerry as regards his potential gross earn- ings. Nor does the evidence of McQuerry's past work experience indicate that such formula would be unrealis- tic. Backpay often cannot be determined in a precise manner. What is required is that the method of determi- nation be reasonable. In my opinion, the determination of McQuerry's gross earnings by using the average wages of Respondent's ironworkers during such period is rea- sonable and takes into account the probability of earn- ings of one who would have been hired on or about July 13, 1976. The data in the record reflects adjustment of average earnings in the third quarter of 1976 to reflect a starting date of employment as of July 9, 1976. Again, considering litigated findings as to discriminatory refusal to hire on or around July 14, 1976, I found the starting date of discrimination to be July 13, 1976. The data as to average earnings should be adjusted to reflect the gross average earnings from the date of July 13, 1976. Accord- ingly, with such adjustment, I conclude and find that the proper formula, as litigated, is one utilizing as the basis for gross earnings the average earnings of all field iron- workers as set forth in the record. The Interim Earnings The data in the record relating to "interim earnings" consists of the admissions of General Counsel with re- spect to "interim earnings" as an offset to the General Counsel's contended gross earnings. Such data does not reflect all of the earnings that McQuerry had from other employers but merely the earnings had during the specif- ic time periods of constructive employment by McQuerry, under the General Counsel's formula, during the backpay period. Since such formula as to gross earn- ings has been found to be inappropriate, the admitted in- terim earnings cannot be said to be admission of interim earnings as to a general formula determinative of gross earnings. It is Respondent's burden of proof to establish "interim earnings" as an offset. With respect to the General Coun- sel's contended formula, Respondent revealed an aware- ness that all earnings by other employees did not consti- tute "interim earnings." Despite the fact that the evi- dence of "interim earnings" with respect to the General Counsel's contention of overall formula is not appropri- ate for the gross earnings formula found appropriate, it would be unjust to find that Respondent is not entitled to any interim earnings offset, when such can be deter- mined in compliance with the order herein. The evidence in this case reveals that in the past McQuerry has worked as an ironworker excepting for a period of time when he worked for Joliet Tower and Tank Co. The facts in this case reveal data submitted by Respondent of records of payments into the Ironworker funds on McQuerry's behalf by McQuerry's various em- ployers. Such records reveal in effect the number of hours that McQuerry worked during 1972, 1973, and the first and second quarters of 1974. In 10 quarters, McQuerry averaged working some 414 hours per quar- ter. It is clear that such data reflects McQuerry's work experience when not working outside his trade. Re- spondent's counsel's statement at the hearing indicated awareness that the periods of McQuerry's employment history utilized for backpay period should eliminate peri- ods that might be offset by discriminatory or disparate treatment. Although not litigated as acts of found dis- crimination, in 1974, McQuerry and the Respondent had difficulties concerning grievances. For this reason Re- spondent's counsel indicated that the period of time fol- lowing mid-1974 was not included in his calculations of McQuerry's past earning experience. For this reason, I found it proper not to include McQuerry's earnings expe- rience for the quarters following mid-1974. Considering the foregoing, it appears that McQuerry, at a time when discrimination was not practiced against him, obtained employment and was employed approxi- mately 80 percent of the time if employment was consid- ered on the basis of a 40-hour week during a quarter. Utilizing such information, therefore, on a quarterly basis, by the deduction of the constructive gross earnings (translated into hours) from the average of 414 employ- able hours, one can ascertain the number of hours that would have been available for employment by employers that Respondent during a period wherein there was not discrimination.8 Having determined such constructive available hours for employment by other employers during the backpay period and translating such hours into amount of constructive wages, the actual wages from other employers (minus expenses)9 during the back- pay period may be compared to the constructive wages. If such actual wages by other employers (minus ex- "The parties do not dispute the applicable wage scales for ironworker work during the backpay period. 9 Such expenses as are normally construed to be offsets to interim earn- ings. 756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD penses)' 0 exceed the constructive wages for available hours for employment by other employers, the excess thereof should be deemed to be interim earnings and an offset to the gross earnings (constructive earnings for Re- spondent). I recognize an apparent contention that there may have been a period of high unemployment during the backpay period and that the determination of "inter- im earnings" as set forth herein might not be exactly the "interim earnings" that McQuerry would have had. The problem is one of proof and the burden to establish inter- im earnings as an offset is Respondent's burden. Upon the evidence and ligitation in this case, the foregoing is a reasonable basis to determine a point at which Respondent's burden has been met. The parties have had an opportuni- ty to litigate these issues. At this stage definitive determi- nation other than mere mathematical determination must and should be made. There has to come a time when liti- gation ends. At the hearing of this matter, the parties were in agreement concerning certain interim earnings to be uti- lized in connection with the General Counsel's contend- ed gross earnings formula. Thus, the parties were in agreement to allocation in certain quarters concerning payments pursuant to an arbitration award as being part of "interim earnings." Such in accordance with the fore- going should be included as part of the earnings from other employers and the question of what should be con- sidered as "interim earnings" be determined as I have al- ready indicated. If the pending workmen's compensation claim results in an award, as regards lost earnings, such earnings should be computed as earnings from other em- ployers in determining whether there are "interim earn- ings" properly to be considered as offset to the gross earnings, provided that the same does not delay compli- ance to the order herein being effected within 30 days of said order. The Fringe Benefits The General Counsel's backpay specifications and the hearing reveal that there are issues as to the amount of backpay due McQuerry as regards fringe benefits. Be- cause of the findings herein concerning gross earnings and interim earnings formula, the calculations of the re- spective parties essentially must be disregarded and the following steps taken to determine the backpay due as a result of the fringe benefits question. The formula utilized with respect to the determination of gross earnings" should reveal the gross earnings for each backpay period. Such wages, by utilization of the existing pay scale, should be translated into gross hours per quarter for determination of the gross welfare and gross pension payments due the Ironworker funds on McQuerry's behalf. 12 'Olt would appear that the General Counsel and Respondent should al- ready have this information as to earnings from other employers during all relevant periods. Such and/or McQuerry could be made available to the Respondent for computation purposes pursuant to the orders herein. I Respondent's formula relating to average wages of the Ironworkers with adjustment for the third quarter of 1976. Is There is no dispute as to hourly wage rates or the amounts of pen- sion and welfare payments due per hour of work. Again, as set forth with respect to the question of in- terim earnings as offsets to gross earnings, the General Counsel's admitted offsets of fringe benefits were geared to his contended formula. Such has no value in determin- ing offsets to fringe benefits under the formulas for gross earnings and interim earnings found appropriate in this proceeding. McQuerry, as previously indicated, would reasonably be expected to have had earnings during the backpay period from other employers, and only the excess of such earnings from other employers as com- pared to the earnings he would have had otherwise can be deemed to be interim earnings for offset against gross earnings. In similar manner, fringe benefits paid by other employers into the Ironworker funds should only be con- sidered in the nature of interim fringe benefits to the extent that they exceed the fringe benefits that other em- ployees would have paid to the Ironworker funds.' 3 Generally speaking, therefore, the interim earnings as determined should be translated into hours and the re- spective welfare and pension payments due therefrom as interim fringe benefits be determined.14 The subtraction of such interim fringe benefits from the gross benefits to be determined as previously indicated will reveal the net amount of fringe benefits to be paid the Ironworker funds on McQuerry's behalf. There is a complication in connection with determina- tion of gross fringe benefits due and the interim fringe benefits as regards the third quarter of 1976. The facts reveal that until July 22, 1976, McQuerry worked for Joliet Tower and Tank Co., which did not make contri- butions to the Ironworker funds but which may have made contributions to some other craft's funds on McQuerry's behalf. Since McQuerry's regular craft and trade is that of an ironworker, the fringe benefits involv- ing contributions to the Ironworker funds on his behalf would appear to be of a continuing and meaningful nature. On the other hand, contributions for fringe bene- fits to funds in some other crafts would not appear to be of continuing significant and longstanding value. There is no evidence of such contributions, and I do not believe that offset should be determined otherwise. Accordingly, for the third quarter of 1976, the gross fringe benefits should be determined by translating the gross earnings into hours and determining therefrom the payments due the welfare and pension funds. In determining the ques- tion of interim fringe benefits, the determined interim earnings should not be translated into hours for the de- termining of interim fringe benefits. Instead, earnings from other employers during the period of time July 13, 1976, until the end of the quarter should be adjusted by deducting therefrom the earnings that McQuerry earned from Joliet Tower and Tank from July 13, 1976, to July 22, 1976. Such earnings as adjusted should be translated into hours and compared to the available hours for work from other employers (414 hours minus the constructive hours ascribed to work for Respondent-July 13 to end of quarter-as translated from gross earnings determina- 3Iron Workers' St. Louis District Council Welfare and Pension Plans. 4 For determination of the interim fringe benefits, the interim earnings should be determined as determined previously excepting "expenses" should not be deducted from actual earnings from other employers. J. S. ALBERICI CONSTRUCTION CO. 757 tion). In this manner, the interim fringe benefit hours, if any, and whether or not these are payments due the Ironworker funds should be determined. Conclusion The facts presented in this proceeding are not suffi- cient to make the precise calculations if backpay and fringe benefits due to be paid to McQuerry or on his behalf. The appropriate formula for determining gross earnings has been established. The mathematical details relating to such formula is not disputed. The details as to earnings from other employers during the backpay period are incomplete. Despite this, both Respondent and the General Counsel should have secured such informa- tion prior to the litigation of the instant proceeding. It is the policy of the Board that the General Counsel's staff cooperate with Respondent in determining compliance questions. Such being so, Respondent can secure such in- formation as he may not have as regards McQuerry's work and earnings from other employers from the Gen- eral Counsel. The General Counsel can see that McQuerry is available concerning such information. If necessary, the General Counsel has the means of secur- ing such information from other governmental source. With such information, with the established constructive gross earnings during the backpay period, and with the established base of 414 hours of work per quarter as pre- viously referred to, the establishment of "interim earn- ings" should be simply a question of mathematical com- putation. Similarly, the determination of gross fringe benefits and offsetting interim fringe benefits should simi- larly be a matter of computation in accordance with the dictates of this Decision. If, however, Respondent, General Counsel, and McQuerry do not have the complete data concerning McQuerry's earnings from other employers during the backpay period, or if minor adjustment for other reasons is needed with respect to formula or computation, the order herein is one wherein jurisdiction is retained and appropriate motion therefore can be made. As in many cases involving determinations of backpay, the best solution is often one reached by the parties when they act flexibly to solve dispute. The instant pro- ceeding requires that the parties make the necessary mathematical computations to determine backpay con- sistent with the methods set forth herein. Nothing in this Decision is to be construed as a prohibition upon the parties' reaching settlement of their dispute as regards backpay by utilizing other methods of determining back- pay as long as such other method or computations do not reveal a result contrary to the purposes of the Act. What is prohibited by this Decision is any further litiga- tion as regards determination of backpay except perhaps as to whether or not Respondent has complied with the terms of this Decision and Order. Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the Act, I hereby issue the following recommended: 1J For convenience, the attached "Appendix" sets forth in simplified form the steps for computation of backpay in this matter. ORDER I s The Respondent, J. S. Alberici Construction Co., Inc., St. Louis, Missouri, its officers, agents, successors, and assigns, shall: Within 30 days of receipt of this Order, compute the backpay due Newell D. McQuerry pursuant to the reme- dial requirement of the Board's order in J. S. Alberici Construction Co., Inc., as reported at 231 NLRB 1038, and in accordance with the Decision in this proceeding, and within the same time period file a report of such computations with the Regional Director for Region 14 of the National Labor Relations Board, and transmit by check or legal currency an amount of money equivalent to the amount of backpay as regards net earnings with interest accrued to date in accordance with said referred to Board Order, for transmittal by said Regional Direc- tor to Newell D. McQuerry, and transmit by check or legal currency an amount of money equivalent to the amount of backpay as regards fringe benefit payments due the Iron Workers' St. Louis District Council Wel- fare and Pension Plans with interest accrued to date in accordance with said referred to Board Order, for trans- mittal by said Regional Director on Newell D. McQuerry's behalf to said Iron Workers' plans. Jurisdiction in this proceeding is retained for such other orders as may become necessary. Is 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 findings, conclusions, and recommended Order herein shall, as provided in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes. APPENDIX A. 1. Determination of Backpay Earnings by Quarter A. Gross Earnings B. Interim Earnings C. Net Earnings (A-B) 2. Gross Earnings (1A) determined by data concerning average ironworker wages in quarter as adjusted for starting date of discrimination of July 13, 1976. 3. Interim Earnings (B) determined by A. Constructive available hours for employment (414 hours) B. Gross Earnings (IA) translated into hours C. Constructive hours available for work for other employees (3A-3B) D. Constructive wages for work available for other employers, Constructive hours (3C) translated into wages E. Actual wages for other employers' in backpay period minus expenses F. Interim Earnings-wages minus expenses (3E) minus constructive wages (3D) 'The data concerning "wages" pursuant to the arbitration award as al- located, and the potential workmen's compensation award as to loss of wages, as allocated, if timely, should be included as part of the "actual wages. _ _ 758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. 1. Determination of Fringe Benefits by Quarter A. Gross Fringe Benefits B. Interim Fringe Benefits C. Net Fringe Benefits(A-B) 2. Gross Fringe Benefits (IA) determined by data con- cerning average ironworker wages in quarter as adjusted for starting date of discrimination of July 13, 1976, as translated into hours and determination of appropriate payments to pension and welfare funds per hour 3. Interim Fringe Benefits (IB) determined by A. For all quarters in the backpay period except- ing the third quarter of 1976, by using the Interim Earnings determination in A-3,2 translating the 2 For the purpose of fringe benefit determinations, in determination of the interim earnings, expenses should not be computed as an offset to earnings from other employers. fare and pension payments due thereform to the Ironworker funds. B. For the third quarter of 1976, commencing on July 13, the interim fringe benefits should be deter- mined by using the same formula in A-3 for the de- termination of interim earnings, excepting in the data used for such determination, as regards the data for A-3-E, earnings for Joliet Tower and Tank from July 13 to July 22, 1976, should be excluded. 3 ' See fn. 2.