Schorr Stern Food Corp.

292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Schorr Stern Food Corp. and Patrice Manns and Food Packers, Cannery And Miscellaneous Workers Union, Local 220, affiliated with United Food And Commercial Workers Interna- tional Union, AFL-CIO, Party to the Contract. Case 29-CA-4968 March 11, 1980 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS JENKINS, PENELLO, AND TRUESDALE On October 17, 1979, Administrative Law Judge Marvin Roth issued the attached Supplemental De- cision in this proceeding.' Thereafter, Respondent filed exceptions and a supporting brief. 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 brief and has decided to affirm the rulings,2 findings,3 and conclusions of the Adminis- ' The Board's original Decision and Order in this proceeding is report- ed at 227 NLRB 1650 (1977). 2 Respondent has excepted to the Administrative Law Judge's rulings refusing either to disqualify himself from the case, or to dismiss the back- pay specification. At the hearing, the Administrative Law Judge conclud- ed that four documents had erroneously been placed in the "formal," or public, case file, which is reviewed by administrative law judges prior to conducting unfair labor practice hearings. Instead, the documents should have been entered in the "informal" case file, which is maintained by the General Counsel, and which is not subject to inspection by the Board or its administrative law judges. Accordingly, Respondent moved at the hearing for the disqualification of the Administrative Law Judge, or the dismissal of the backpay specification, on the ground that the Administra- tive Law Judge's review of this material was prejudicial. After careful deliberation, we have decided that, although the documents clearly should not have found their way into the formal file, the proceeding before the Administrative Law Judge was not prejudiced as a result. The first document, dated August 2, 1977, is a letter from Respondent's counsel to the Regional Director for Region 29, primarily concerning compliance with the notice-posting requirements of the Board's original Order in this case. (Respondent's rejected Exh. (g), marked for identifi- cation.) The second document, dated August 11, 1977, is the Regional Director's reply to Respondent's August 2 letter. (Respondent's rejected Exh. l(f), marked for identification.) We agree with the statement of the Administrative Law Judge at the hearing that neither of these documents involves issues relevant to the backpay proceeding, and therefore con- clude that his review of them does not form a basis for disqualifying the Administrative Law Judge or for dismissing the backpay specification. The third document is a letter, dated September 9, 1977, from Respon- dent's counsel to the Regional Director and to a Deputy Associate Gen- eral Counsel of the Board in Washington, D.C., enclosing a memorandum of agreement with the Union allegedly altering the unit description of the relevant collective-bargaining agreement. (Respondent's rejected Exh. I(h), marked for identification.) Respondent sought to introduce the same memorandum in evidence at the hearing as a partial defense to the back- pay specification, but the Administrative Law Judge properly refused to 248 NLRB No. 50 trative Law Judge and to adopt his recommended Order. receive it, on the merits, for reasons stated on the record and in his Deci- sion. Accordingly, the Administrative Law Judge's perusal of the memo- randum in the formal file did not prejudice Respondent, inasmuch as Re- spondent intended to seek its inclusion in the record in any event. The last document, dated November 1978, is an internal memorandum from the Regional Director to an Associate Gerieral Counsel of the Board in Washington, D.C., enclosing two copies of the backpay specifi- cation, and briefly describing defenses it was anticipated Respondent would raise in answer thereto. (Respondent's rejected Exh. I(i), marked for identification.) Again, however, we do not believe this caused preju- dice to Respondent, as the Administrative Law Judge's inspection of the document merely alerted him to defenses subsequently raised by Respon- dent and considered on their merits. In addition to the above, we note that Respondent's counsel was given full opportunity at the hearing to examine the documents in question, and that he presumably had copies of the first three documents, inasmuch as he was a party to the correspondence. Respondent's counsel clearly had a copy of the fourth document because he attached it to his statement of exceptions. We do, however, agree with Respondent that the documents in issue should have been placed in the rejected exhibit file, rather than merely being marked for identification and forwarded to the Office of the Gener- al Counsel in Washington for inclusion in the informal file. Therefore, we have entered each of the four documents in question in the rejected ex- hibit file, with the designation used as each was marked for identification at the hearing. 3 In the last sentence of the third to last paragraph of sec. D of his Decision, entitled "Welfare and Pension Benefits," the Administrative Law Judge inadvertently placed the word "now" rather than the word "not" prior to the word "warranted " We hereby correct that sentence to read as follows: "Therefore, applying the standards of Riverside Produce Co., supra, to the facts of this case, I find that interest on payments due to the Funds is not warranted." Member Penello places no reliance upon Abilities and Goodwill, Inc., 241 NLRB No. 5 (1979), enforcement denied 103 LRRM 2029, 87 LC T11,753 (st Cir. 1979), a case cited by the Administrative Law Judge, in which he dissented. SCHORR STERN FOOD CORP. 293 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, Schorr Stern Food Corp., Brooklyn, New York, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. SUPPLEMENTAL DECISION STATEMENT OF THE CASE MARVIN ROTH, Administrative Law Judge: This case was heard at Brooklyn, New York, on March 12, 13, 14, and 26, 1979, based upon a backpay specification issued on October 20, 1978, for purposes of resolving a contro- versy over the amount of backpay due Patrice Manns and all other present and former employees, similarly sit- uated, for any loss of wages, paid sick leave, holidays and vacations, pensions, and other terms and conditions of employment suffered by them because of the discrimi- nation against them, under the terms of the Board's De- cision and Order issued on January 28, 1977 (227 NLRB 1650). The Board found, in sum, that Schorr Stern Food Corp. (herein called the Company or Respondent) violat- ed Section 8(a)(l), (2), and (3) of the National Labor Re- lations Act, as amended, by granting wage increases, paid sick leave, and other contract benefits only to em- ployees who were members of Food Packers, Cannery and Miscellaneous Workers Union, Local 220, affiliated with United Food and Commercial Workers Internation- al Union, AFL-CIO, the Party to the Contract (herein called the Union).' The Board directed that the Compa- ny "[m]ake whole Patrice Manns and all other present and former nonunion employees, similarly situated, in the Respondent's employ during the period since October 19, 1975, for any loss of wages, paid sick leave, holidays and vacations, pensions and other terms and conditions of employment they would have received since that date but for the discrimination against them." Id. at 1655. The principal contentions raised by the Company in its answer to the backpay specification, at the hearing, and in its post-hearing brief, present questions concerning the meaning and application of the Board's Decision and Order in the unfair labor practice proceeding. All parties were afforded full opportunity to partici- pate, to present relevant evidence, to examine and cross- examine witnesses, to argue orally, and to file briefs. Only the Company filed a brief. Counsel for the Union, also representing the union welfare and pension funds, entered an appearance in the backpay proceeding when evidence was presented concerning reimbursement for lost insurance and pension benefits. However, said coun- I The name of the Party to the Contract, formerly Food Packers, Can- nery and Miscellaneous Workers Union, Local 220, affiliated with Amal- gamated Meat Cutters and Butcher Workmen of North America, AFL- CIO, is hereby amended to reflect the change resulting from the merger of Retail Clerks International Union, AFL-CIO, and Amalgamated Meat- cutters and Butcher Workmen of North America, AFL-CIO, on June 7, 1979. sel did not take any position concerning these or any other matters at issue. Upon the entire record in this case,2 my observation of the demeanor of the witnesses, and having considered the brief submitted by the Com- pany, 3 I make the following: FINDINGS AND CONCLUSIONS A. The Backpay Period and Related Matters The collective-bargaining contract which was the sub- ject of the present unfair labor practice proceeding was effective on its face from December 10, 1974, to January 3, 1978, and also on its face purported to cover a unit comprising the Company's "production, shipping, receiv- ing, chauffeur, helper, sales, office and maintenance em- ployees and such other employees performing work inci- dental thereto," the only exception being "nonworking supervisors and such [other] categories [as are] excluded by the [Act]." 227 NLRB at 651. Specifically, the con- tract did not purport to exempt irregular, casual, tempo- rary, or seasonal employees, but did purport to cover all employees without distinction as to union membership. The unfair labor practice charge was filed by Patrice Manns on April 19, 1976, complaint issued on June 7, 1976, and a hearing was held before Administrative Law Judge Robert M. Schwartzbart on September 13, 1976. The Company conceded, as found by Administrative Law Judge Schwartzbart in his Decision, "that the bene- ficial terms and conditions of employment provided in the agreement have been applied only to those of its em- ployees within the relevant job classifications who are union members, and that those of its employees in the same or related work classifications who are not union members have been excluded from these benefits." 227 NLRB at 1652. Nevertheless, and notwithstanding the express language of the contract, the Company contend- ed "that from the start the Union had been recognized as the bargaining representative of only those of its employ- ees who were members and denies that it ever had grant- ed exclusive recognition to the Union for all of its em- ployees in the classifications referred to in article I [the recognition clause] of the contract." Ibid. In sum, the Company contended that this was a "members only" contract, and that, therefore, the Company could lawful- ly apply its benefits only to union members. Essentially, this was the issue presented in the case. The Administra- tive Law Judge, and the Board which affirmed the Ad- ministrative Law Judge, ruled against the Company. The Board found, in sum, that the Company, consistent with the terms of the contract, recognized the Union as the sole collective-bargaining representative of all of its em- ployees in the described unit, and therefore was "legally bound to apply the terms of the contract equally to all said employees" (227 NLRB at 1654), citing as authority The Radio Officers Union of the Commercial Telegraphers Union. A.F.L. [Bull Steamship Co.] v. N.L.R.B, 347 U.S. 17 (1954), and Rockaway News Supply Company Inc., 94 2 Certain errors in the transcript have been noted and are hereby cor- rected. I The Company's unopposed request to file a supplement to its brief is hereby granted, and the supplement has been considered together with the original brief. SCHORR STERN FOOD CORP. 293 294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD NLRB 1056 (1951). The Board concluded that by "enter- ing into and maintaining in force and effect a collective- bargaining agreement containing clauses providing for payment of wage increases and compulsory sick leave for union members only, and by discriminating in regard to the terms and conditions of employment of Patrice Manns and other nonunion employees . . . because they were not union members, the Respondent has violated Section 8(a)(1), (2), and (3) of the Act." 227 NLRB at 1655. Noting, however, that the contract was entered into more than 6 months before the unfair labor practice charge was filed, the Board limited its findings, and con- sequently its remedy, to an initial cutoff date of October 19, 1975; i.e., 6 months prior to the filing of the charge. The Board directed that the Company "make whole Manns and all other past and present nonunion employ- ees, similarly situated, who were employed by the Re- spondent in work classifications embraced by the unit set forth in the current collective-bargaining agreement during the period since October 19, 1975, for any loss of pay, sick leave, insurance, pensions, or other benefits they may have suffered by reason of the Respondent's failure to apply the terms and conditions of the collective-bar- gaining agreement to them in the same manner as it did to its union employees [emphasis supplied]." Ibid. General Counsel and the Company agree that, in ac- cordance with the Board's Decision and Order, the back- pay period begins on October 19, 1975. However, as will be discussed, the significance and applicability of that date is in dispute. It is also undisputed, subject to resolu- tion of a terminal date, that for discriminatees hired after October 19, 1975, backpay begins with their respective dates of hire, and that for discriminatees no longer em- ployed by the Company backpay ends not later than their respective dates of employment termination. Gener- al Counsel contends that discriminatees are entitled to backpay for the period from October 19, 1975, until Jan- uary 3, 1978, the expiration date of the collective-bar- gaining agreement. No claim is made for backpay after January 3, 1978.4 The Company contends that the back- pay period ends not later than August 9, 1976. In support of this contention, the Company asserted in its answer to the backpay specification, as an affirmative defense, "that on August 9, 1976," i.e., more than a month prior to the hearing in the unfair labor practice case, "Respondent and the Union entered into a Memorandum of Agree- ment amending the then current collective-bargaining agreement," and that"[o]ne of the effects of such Memo- randum was to alter the bargaining unit represented by the Union." A copy of the alleged memorandum of agreement is annexed as a part of the answer. The memorandum unambiguously purports to have been en- tered into and signed by Harold Wilkerson for the Union and Sidney Stern for the Company on August 9, 1976. No other date is indicated or even inferred. The memo- 4 As General Counsel sought no backpay for any period beginning on or after January 3, 1978, I declined to receive evidence concerning whether the Company was in compliance with the Board's Decision and Order after that date. It is not necessary in this proceeding to determine whether in a subsequent or other proceeding General Counsel may assert a claim of liability or backpay for any conduct occurring on or after that date. randum purports to modify the recognition clause of the existing collective-bargaining agreement to exclude from the recognized unit, and from contract coverage, all sales and office employees, and all "irregular, casual, tempo- rary and/or seasonal employees, either part time or full time." The memorandum defines the quoted categories "as all those employees working less than 1,000 hours since July 2, 1976, in any fiscal year ending July 1, 1977, or any year thereafter." The memorandum also purports to revise the contract provisions providing for a wage in- crease and sick leave for union members; providing in- stead that such benefits would be given to "all employees covered by the agreement." The memorandum purports to be complete and self-contained on its face, except as it refers to the existing contract. At no time during or after the pendency of the unfair labor practice proceeding did the Company call the alleged memorandum to the atten- tion of the Administrative Law Judge or to the Board, or argue its existence. On the contrary, the parties stipu- lated at the unfair labor practice hearing that the 1974 contract constituted the current collective-bargaining agreement between the Company and the Union, and the case was litigated on that factual basis. Indeed, the pre- sent record does not indicate when, if ever, prior to filing its answer to the specification, the Company noti- fied General Counsel of the existence of the alleged memorandum. The parties agree that, in any event, such notice would be irrelevant to the issues in this proceed- ing. 5 At the outset of the present hearing, on argument of company motions for dismissal of the backpay specifica- tion in whole or in part, company counsel asserted that the memorandum was not executed on August 9, 1976, but that "[t]he agreement was entered into, on that date," and that "we had an agreement, in full, as of that date." Company counsel further asserted that he did not present the alleged agreement in the unfair labor practice proceeding because, in sum, he wanted a determination of the legality of the 1974 contract, and did not wish to "confuse that issue." At the close of the hearing, after in- dicating that he had no objection to the departure of Union Attorney Belson and Union Representative Bever- ly Rosendorf, and with no union official or representa- tive present, company counsel again raised the matter of the alleged contract modification. Company counsel of- fered to prove, in sum: that on August 3, 1976, a meeting took place at which were present Union President Wil- kerson, Union Attorney Belson, Company Officials Leon Schorr and Sidney Stern, and company counsel; that the parties agreed to modify the contract unit and coverage, but left it to the attorneys for the parties to agree upon the language of such understanding; that the attorneys, i.e., Belson and Hamburger, thereafter negotiated such language; that in March 1977, i.e., after the Board issued its Decision and Order, the memorandum which is at- tached to the answer to the backpay specification was I Company counsel asserted that the memorandum first came to the attention of the office of General Counsel about the time that the Board filed its petition for enforcement; i.e., about July 8, 1977. The petition was subsequently withdrawn when the Company agreed to comply with the Board's Order. General Counsel does not concede authenticity of the alleged memorandum, or that the parties modified their contract. SCHORR STERN FOOD CORP. 295 "physically executed" by Harold Wilkerson and Sidney Stern; and that the Company has abided by the contract as "redefined." As indicated, the memorandum purports on its face to have been entered into and signed on August 9, 1976. Additionally, the memorandum provides that "as of January 6, 1977, all employees covered by the agreement shall receive a wage increase." The memoran- dum does not indicate that this is a retroactive increase. Therefore, it is evident on the face of the document that, if the memorandum was executed at all, it was executed prior to January 6, 1977. At the hearing, I ruled that the Company was pre- cluded from presenting evidence in support of its conten- tions with respect to the memorandum by reason of the doctrine ofres judicata and the parol evidence rule. Upon reconsideration of those rulings, including consideration of the arguments and case authorities cited in the Com- pany's brief, I adhere to those rulings. The doctrine of res judicata is applicable in Board pro- ceedings. Laborers International Union of North America, Local No. 282, AFL-CIO (Millstone Construction Compa- ny, et. al.), 236 NLRB 621, 623 (1978). In particular, the Board's findings and conclusions in an unfair labor prac- tice case are binding and may not be relitigated in the subsequent backpay proceeding. Brown and Root, Inc., 132 NLRB 486, 492 (1961), enfd. 311 F.2d 447, 451 (8th Cir. 1963). The parol evidence rule is also applicable in Board proceedings. See the Board's Decision and Order in the present case (227 NLRB at 1653-54), and Prestige Bedding Company, Inc., 212 NLRB 690, 700 (1974); see also Hartford Glass Co. of Mishawaka, Inc., 230 NLRB 103, 108 (1977). The existence, coverage, and applicability of the col- lective-bargaining contract between the Company and the Union are matters which were adjudicated in the present unfair labor practice proceeding, and therefore cannot be litigated at the compliance stage. The Board's Decision refers both expressly and impliedly to the 1974 contract as the current collective-bargaining agreement. The continuing existence of that contract was a factual basis on which the Board predicated its Decision. There- fore, it is immaterial that the factual existence of the con- tract was stipulated rather than disputed in the unfair labor practice proceeding. In appropriate cases, questions involving compliance may be litigated in the backpay proceeding, even though such questions turn on matters which occurred prior to the decision in the unfair labor practice case. Indeed, questions of compliance, such as the amount of interim earnings of a discriminatee, are usually reserved for the compliance stage of the proceed- ing. However, such litigation is permissible only if the matter was not adjudicated by the Board in the unfair labor practice proceeding.' In the present case, the exis- 6 Therefore, the cases relied upon by the Company in its brief (pp. 13- 14) are not in point. In two of those cases (Westwood Plumbers, 131 NLRB 562 (1961), and M. Eskin d Son, 148 NLRB 1022, 1023 (1964)), the question of compliance was expressly reserved for resolution at the compliance stage of the proceeding In the third case (Brotherhood of Teamsters d Auto Truck Drivers Local No. 70. etc. (Sea-land of California, Inc.), 212 NLRB 714, 715 (1974), enfd. 525 F.2d 333 (9th Cir. 1975)), the compliance question turned on an offer of reinstatement which was sent more than 4 months after the Board issued its Decision in the unfair labor practice case gaining agreement between the Company and the Union were adjudicated in the unfair labor practice proceeding. Therefore, the Company is precluded from showing, on the basis of facts which allegedly existed and were known to the Company prior to the unfair labor practice hearing, that the contract was modified to redefine the unit and coverage. The doctrine of res judicata does not permit an exemption for selective presentation of evi- dence on matters raised by the pleadings and presented in the case. "The federal doctrine of resjudicata bars reli- tigating any part of the cause of action in question, in- cluding 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. The Company's fall-back argument that the alleged modification of the collective-bargaining contract was executed after the Board issued its Decision and Order is further precluded by the parol evidence rule. The Com- pany's answer to the backpay specification unequivocally asserts that the contract was amended on August 9, 1976, and the alleged memorandum unequivocally purports to have been agreed upon and executed on the same date. Therefore, the Company is precluded from presenting evidence to show that the alleged memorandum was ex- ecuted on a different date. Indeed, in view of the admis- sions contained in the Company's answer and the admis- sion of company counsel that the Company and the Union reached a full agreement in August 1976, such evidence would, in any event, be immaterial. Compare Millstone Construction Company, 236 NLRB at 626. Moreover, in the unfair labor practice proceeding, the Board adjudicated not only the continuing existence of the 1974 contract, but the fact that the Company applied its benefits in a discriminatory manner. Thus, although the contract provided for wage increases and sick leave for union members, the Board found that the Company in fact granted those and other contract benefits only to union members. That finding was based at least in part on the testimony of the Company's secretary-treasurer, Sidney Stern, that the Company dealt with the Union only for union members. As will be discussed under the next heading, Stern impliedly conceded in his testimony in the present proceeding that union membership contin- ued to be the standard for applying contract benefits. In sum, I find that the backpay specification correctly pro- vides for reimbursement to discriminatees for the period from October 19, 1975, to January 3, 1978. As indicated, General Counsel and the Company differ as to the significance and application of the October 19, 1975, cutoff date. The collective-bargaining agreement provided that all union members would receive $10-per- week wage increases as of January 3, 1975, January 3, 1976, and January 3, 1977. General Counsel contends that, as discriminatees hired prior to 1975 were improp- erly denied the January 3, 1975, increase, they should be reimbursed for their failure to receive that increase (amounting to a 25-cent-per-hour increase) beginning with the October 19, 1975, cutoff date, less other in- creases actually received. The Company contends that, as the January 3, 1975, raise took effect more than 6 months prior to the filing of the charge, the discrimina- SCHRR STERN FOOD CORP. 295 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tees are not entitled to any reimbursement based on that increase. The contract also provided that union members in good standing should receive 2 days of compulsory sick leave every 4 months. In practice, compensation for sick leave, amounting to 16 hours' pay, was paid to em- ployees in the payroll period occurring at or near the end of April, August, and December of each year. Gen- eral Cousel contends that discriminatees are entitled to reimbursement in full for sick leave benefits paid in De- cember 1975, if their period of employment immediately preceding that pay period was at least 4 months. The Company contends that reimbursement should be prorat- ed from the October 19 cutoff date. The contract also provided for vacation pay, based in part on longevity of service. General Counsel contends that discriminatees hired during or before 1975 are entitled to vacation pay for 1975, based on longevity of service, without regard to the October 19, 1975, cutoff date. The Company con- tends, subject to other arguments which will be dis- cussed infra, that, assuming vacation pay is owed for 1975, such vacation pay should be prorated so as to be based only on service after October 19. General Counsel's interpretation of the Board's Deci- sion and Order in this case, and of the applicability of the 6-month time limitation contained in Section 10(b) of the Act, is correct. The Board's Decision and Order pro- vides that the discriminatees be made whole for any losses suffered by them since October 19, 1975, by reason of the discrimination against them. The discrimination, in sum, consisted of denial of wage increases and other con- tract benefits. The contract on its face purported to cover all of the Company's employees, except supervi- sors, without distinction as to union membership. Insofar as some employees failed to receive increased wages and other benefits after October 19, 1975, such denial is at least prima facie discriminatory. Therefore, it is appropri- ate to go behind the 10(b) limitation period for the pur- pose of receiving and considering evidence which would shed light on the reason for their failure to receive bene- fits, and the amount of benefits which they would have received after October 19, 1975, but for the discrimina- tion against them. Compare Swift Service Stores, Inc. AKA Swift Cleaning & Laundry Company, 169 NLRB 359, 360 (1968). But for the discrimination against them, the dis- criminatees who were hired before 1975 would have re- ceived the benefit of the 1975 pay increase. Therefore, they are entitled to be compensated for the higher wage which they would have received to the extent that they failed to recieve such higher wage after October 19, 1975. Similarly, discriminatees are entitled to receive sick leave and vacation benefits which were due and payable at any time after October 19, 1975, and which they would have been eligible to receive but for the discrimi- nation against them.7 The Company has raised certain additional arguments with respect to employee eligibility for holiday pay, sick pay, and vacation benefits. The contract provided that The prior collective-bargaining contract between the Company and the Union, covering the period from December 10, 1971, to January 3, 1975, was not the subject of the unfair labor practice proceeding, and was not presented as evidence in the backpay proceeding. Therefore no finding can be made based on employee rights under that contract. vacation "shall be given during the months of May, June, July, August, and September, except that, with the consent of the Union, vacation may be scheduled at other periods of time where the Employer's business is of a seasonal nature or other pressing circumstances so re- quire." In fact, the Company's records indicate that union members took their paid vacations throughout the year, except during certain busy times. Thus, union member Clarence Morris received a 2-week paid vaca- tion in late December 1975. The inference is warranted that the Union gave the requisite consent, and that there- fore, under the terms of the contract, vacations could be scheduled throughout the year. 8 Nevertheless, the Com- pany contends that no discriminatee is entitled to vaca- tion pay for 1975; i.e., prior to the cutoff date for back- pay purposes. I reject this argument for essentially the same reasons I have rejected the Company's previously discussed arguments concerning 1975 benefits. As discri- minatees who were hired before or during 1975 were en- titled to a paid vacation in 1975, depending upon their length of service, and at least possibly could have taken their vacations after October 19, 1975, they are entitled to be reimbursed for lost 1975 vacation pay, depending upon their length of service, as set forth in the backpay specification. The Company has not come forward with any evidence that the employees could not under any circumstances have received paid vacations or vacation pay for 1975 after October 19, 1975. Discrimination having been established in the unfair labor practice pro- ceeding, any doubt in this regard must be resolved against the wrongdoer, i.e., the Company, rather than against the wronged employees. See N.L.R.B. v. Miami Coca-Cola Bottling Company, 360 F.2d 569, 572-573 (5th Cir. 1966); Abilities and Goodwill, Inc., 241 NLRB No. 5 (1979); Local Union No. 2088, International Brotherhood of Electrical Workers, AFL-CIO (Federal Electrical Corpo- ration), 218 NLRB 396, 397 (1975). The collective-bargaining contract provided that any employee quitting without at least 48 hours' written notice to the Company and the Union shall not be enti- tled to vacation or sick pay. Sidney Stern testified that none of the discriminatees were discharged, that about 90 percent of the discriminatees quit their jobs between October 19, 1975, and December 1978, and that no em- ployee who quit ever gave the requisite notice. The Company contends that, therefore, no discriminatee who quit without giving the requisite notice is entitled to re- imbursement for lost vacation and sick pay. The difficul- ty with this argument is that the Company has failed to prove that all of the discriminatees, or any one of them, could not have taken their accumulated vacation and sick pay before quitting their jobs. In such event the dis- criminatees would not have lost their benefits. Indeed, Stern testified that Patrice Manns did just that. Sterns testified that, after Manns joined the Union (thereby be- coming eligible for contract benefits), she received her vacation pay, went on vacation, and, while on vacation, quit her job without giving any notice. The Company did not demand return of her vacation pay or otherwise 8 Therefore, I find without merit the Company's contention that work- ing time after September 30 of the eligibility year should not be credited in determining the amount of vacation pay for that year. SCHORR STERN FOOD CORP. 297 dock her for that pay. Human nature being what it is, other employees, if possible, would probably have taken their accumulated vacation and sick pay before quitting their jobs. Moreover, as indicated, any uncertainty in this regard must be resolved against the Company. There- fore, no discriminatees should be denied reimbursement for lost vacation or sick benefits because he or she quit without notice. The collective-bargaining contract further provided that "regular employees" shall have nine designated holi- days off with pay at straight time, "provided that they have worked full time or have not been absent of their own volition during the calendar week in which the holi- day occurs." The contract further provided that employ- ees shall receive holiday pay even when the holiday occurs on a day which is normally a nonworking day, and that employees on vacation when a holiday occurs shall receive holiday pay in addition to vacation pay. The Company's payroll records indicate weekly totals of hours worked for each employee, not broken down by days, and do not indicate the reasons for absences from work or failure to work less than 32 hours in a week containing a holiday, except for paid leave or termina- tion of employment. General Counsel based his backpay specification on the premise that any employee who was credited with more than 24 hours of work in a week may be presumed to have worked at least all or part of 4 days during that week, and therefore may be presumed to have worked "full time" during that week and to be eli- gible for holiday pay. The Company contends that no discriminatee who was not a "regular" employee or who worked less than 32 hours in the holiday week should be credited with holiday pay. The contract defines "regular employees" as those who have been employed on a trial basis for a period of 30 calendar days. The Company does not contend that all, or part of, any backpay claim should be disallowed for failure to qualify as a "regular employee" under the contract, except on the basis of that putative 1976 memorandum. As for the appropriate hourly cutoff, the Company did not present any testimo- ny as to the standard which it applied to union members; i.e., those employees who received holiday pay. Howev- er, the Company's payroll records for the week ending September 7, 1977, which included a paid holiday (Labor Day), indicate that employees June Kwadjosse and Rober Townsend each received a paid holiday, although they worked only 24-1/2 and 25-1/2 hours respectively, and notwithstanding that other employees worked as much as 40 hours in that week. Kwadjosse and Town- send are discriminatees in this case. However prior to September 1977 they became union members and began receiving the contract benefits. The inference is warrant- ed, and I so find, that the Company's policy in applying the contract was consistent with the standard proposed by General Counsel; namely, that employees who worked more than 24 hours in a holiday week were enti- tled to holiday pay. Therefore, the Company's proposed 32-hour standard is rejected. B. Identity of the Discriminatees As indicated, the Board's Decision and Order directs that the Company make whole Patrice Manns and all present and former nonunion employees, similarly situat- ed, in the Company's employ since October 19, 1975, for any loss of wages and other contract benefits which they would have received since that date but for the discrimi- nation against them. Initially, only the 20 employees who were listed in Schedule A of the contract as union mem- bers received the benefits of the contract. Thereafter, ad- ditional employees received contract benefits after they joined the Union. Thus, when employees became union members during the year, they began receiving contract benefits, including the benefit of the wage increase pro- vided for January 3 of that year." In preparing the back- pay specification, General Counsel initially excluded from consideration those employees who were listed in Schedule A of the contract, as they were receiving the full benefits of the contract. General Counsel also initial- ly excluded those other employees for whom the Com- pany checked off union dues insofar as they thereafter received contract benefits. However, denial of benefits, rather than lack of membership, was deemed to be the decisive factor. Thus, the backpay specification provides for reimbursement to employees, even for periods of time after they became union members, to the extent that they still failed to receive the full contract benefits (e.g., in- cluding all annual pay raises) to which they were entitled under the contract absent the factor of union member- ship. The Company contends that the backpay specification is fatally defective with respect to identification of the class of discriminatees who are entitled to reimburse- ment. Specifically, the Company argues that in light of the Board's Decision and Order, General Counsel must affirmatively prove that each discriminatee is a present or former employee who was not a union member for all or part of the backpay period, who was a unit employee, and who was denied contract coverage because of non- membership. However, company counsel frankly con- ceded that he was unaware of any other reason why an employee would be denied benefits to which he was oth- erwise entitled under the contract. Indeed, company counsel conceded, in effect, that such denial would be arbitrary and discriminatory. Company counsel's pro- fessed lack of knowledge concerning the reason or rea- sons for denial of contract benefits was not shared by the Company's secretary-treasurer, Sidney Stern. Stern, in testimony both in the unfair labor practice proceeding and in the present backpay proceeding, unequivocally in- dicated that union membership was the criterion receipt of contract benefits. In describing a 1975 vacation list, Stern testified in the present proceeding as follows: 9 For example, union records indicate that the Company deducted a union initiation fee and began deducting dues and welfare and pension fund payments for discriminatee Ultima Andre in February 1977. The Company's records indicate that, in February 1977, the Company in- creased her pay from $2.40 per hour to $2.50 per hour, thereby giving her the benefit of the January 1977 contract increase, although not the full benefit of past annual increases for union members. (The backpay specification indicates that Andre should have been receiving $2.75 per hour by this time The Company's contention in its brief (p 28) in con- nection with its 10(b) argument, that the Company gave contract raises only in January of each year, is erroneous SCHORR STERN FOOD CORP. 297 298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Q. All right. What is the significance of 1975 va- cation list, which is pasted onto the back of the front cover? A. This actually-the union specifies that the people that belong to the union receive-if they work anything under 3 years, they receive one week vacation. From 3 to 20, it's 2 weeks. From 20 over, it's 3 weeks. So it's just a matter for the book to know, when the payroll is made up, to look at who's getting the vacation at that particular time, that belongs to the union, all you have to do is refer to this. Then you know that this person immediately gets vacation. Although Stern was testifying with reference to the 1975 vacation list, his testimony concerning the Company's practice was couched in the present tense. At no point in his testimony did Stern (the only company official to tes- tify in either proceeding) indicate that employees were denied contract benefits which they were otherwise qualified to receive under the contract for any reason other than lack of union membership. The Union's re- cords also indicate that union membership and contract benefits were tied together. The Company forwarded welfare and pension fund payments for employees for whom union dues were checked off, and for no other employees. It is true, as the Company points out in its brief, that the Company's records indicate that some em- ployees failed to receive certain contract benefits to which they were evidently entitled even after they became union members. However, with one exception, which will be noted, the Company's compilation annexed to its brief indicates that these benefits were payable after November 19, 1976, when the Administrative Law Judge issued his Decision and recommended Order which was affirmed as modified by the Board on January 28, 1977. The Decision and Order, in addition to providing a spe- cific reimbursement remedy, directed that the Company cease and desist from "discriminating against any of its employees by denying them coverage under the collec- tive-bargaining agreement with the [Union] and by other- wise failing or refusing to grant employees wage in- creases, paid sick leave, pensions, paid holidays, and other employment benefits because such employees are not members of the Union" (227 NLRB at 1655), or (as modified by the Board) in any other manner interfering with, restraining, or coercing its employees in the exer- cise of their rights under Section 7 of the Act. In sum, the Board's Decision and Order prohibits the Company from discriminatorily denying contract benefits to "any of its employees." The Company's own payroll records indicate that it continued to discriminate against non- union employees even after the Board issued its Decision and Order. Absent any explanation to the contrary (and none was forthcoming), the inference is warranted, and I so find, that the former nonunion employees were denied benefits even after they joined the Union by reason of their past failure to join the Union. Therefore, the Corn- pany violated the Board's Order, and the employees are entitled to reimbursement by reason of such violations. Morever, the make-whole provision of the Order pro- vides for reimbursement to Patrice Manns and "all other present and former nonunion employees." The provision is broad enough to cover employees who were formerly nonunion for benefits which were discriminatorily denied them after they became union members.10 C. Additional Contentions With Respect to Wages, Sick Pay, Holidays, and Vacation Pay In agreement with the Company, I am recommending that sick pay not be credited to Gloria Guitty and Angelo LaMothe for April 1976 and to Billy Walters for August 1976, as the Company's records indicate that they lacked the requisite 4 months' service. Their claims should each be reduced by $36.80. However, as to other sick pay allowances challenged by the Company on the same ground, the Company's records, based on the Com- pany's own tabulations in its brief, indicate that the em- ployees in question each had accumulated 4 months of service and were therefore eligible for the sick pay. With respect to Patrice Manns, Appendix B of the backpay specification (computation of sick pay) fails to indicate a specific claim for Manns. However, Appendix F (sum- mary of amounts due) lists a claim for $76. It is evident that the claim covers sick pay eligibility for December 1975 and April 1976 (before she joined the Union). I find that the backpay specification is sufficiently clear in this regard to warrant inclusion and allowance of Mann's claim for sick pay benefits. With respect to discriminatees who have breaks in ser- vice, the Company also contends that each segment of their employment should be treated as a separate em- ployment; i.e., that they should not be regarded as having employee status during the intervening periods when they were off the company payroll. The employ- ees in question are Gregoria Araujo, Merlotte Bazile, Eva Hernandez, Sonia Louis, Otitia Martinez, Angelita Pagan, Robert Townsend, and Violet Taylor. The claims on behalf of Araujo, Bazile, Martinez, and Pagan are not affected. " Additionally, the claim for Thanksgiving and Christmas holiday pay for another discriminatee, Charles Aloota, is sustained. Although the backpay specification erroneously indicates a terminal date of November 9, '0 One claimant stands in a different position. Employee Letizia Franco was listed on Schedule A of the contract as a union member who was entitled to the annual wage increases and sick leave. The backpay specification indicates that she failed to receive holiday pay for Thanks- giving 1975. No other claim is made on her behalf. In these circum- stances, the inference is warranted that she failed to receive such holiday pay for reasons other than lack of union membership. Therefore, I find that she does not fall within the classification of discriminatees covered by the Board's Order, and I am recommending that her claim be disal- lowed. The Company also contends that it is unable to identify three named claimants. However, a comparison of the backpay specification with the Company's payroll records indicates that "Antonio Areu" is Antonio Areno, that "Myrna Sausteria" is Myrna Sanabris, and that "Santa Torn" is Santa Ramos Toro. Therefore, I am recommending that their claims be allowed. " The Company's records indicate that Araujo worked 32 hours during the week ending July 6, 1977. Therefore she is entitled to Inde- pendence Day holiday pay. SCHORR STERN FOOD CORP. 299 1979, the Company's records indicate that Aloota was still employed in November and December 1977. Sidney Stern testified that, when an employee is "re- moved" from the payroll and such entry made on the Company's records, it indicates that the individual is no longer in the Company's employ. Stern further indicated that the separation usually is voluntary; i.e., that the em- ployee quit his or her job. The Company's records indi- cate that Robert Townsend, who began his employment in January 1974, was "removed" from the Company's payroll during the week ending January 1, 1975, but re- turned to work during the week ending January 29, 1975. General Counsel did not contend in the unfair labor practice proceeding, nor does General Counsel contend in this proceeding, that the separation was un- lawful or in violation of contract seniority. Therefore, in light of Stern's testimony, it must be inferred that Town- send voluntarily quit. General Counsel has not presented evidence that a union member in the same situation would have received the January 3, 1975, raise although not employed on that date. Therefore, I find that Town- send should not be credited for the 1975 pay raise as he was not employed on January 3, 1975. 1 shall recom- mend that General Counsel be directed to recalculate his claim for wage and other benefits based on the premise that Townsend was hired in 1975. However, in accor- dance with the contract (art. 9, sec. B), his past employ- ment is properly considered in determining his eligibility for vacation pay. Similarly, claims for wage increases and other benefits for Violet Taylor should be disal- lowed to the extent that they are based on the 1977 pay raise as Taylor was not employed on January 3, 1977. As Taylor was not employed for 4 months immediately prior to the last pay period in April 1977, she is not enti- tled to sick pay for that period. However, the Compa- ny's own calculations indicate that she was employed during February 1977. Therefore, she is entitled to holi- day pay for the two holidays in that month. With respect to Sonia Louis, the Company's payroll records indicate that she was continuously on the payroll and worked during the period when (according to the Company's brief) she was allegedly off the payroll; she put in a full week (39.5 hours) immediately preceding Thanksgiving 1975. Therefore, she is entitled to holiday pay for that date. However, holiday pay in the amount of $18.80 for Lincoln's Birthday 1976 should be deducted from her claim as she was no longer then employed by the Com- pany. Holiday pay in the amount of $18.40 for Indepen- dence Day 1977 should also be deducted from the claim for Eva Hernandez as she was not employed on that date. The Company contends that some discriminatees actu- ally received benefits for which claim is made in the backpay specification. Unfortunately, the Company failed to indicate in its brief the payroll periods in which those benefits were allegedly received. Therefore, it was neces- sary for me to make an extensive examination of the Company's payroll records in order to verify these asser- tions. The Company's weekly worksheets indicated that the Company purported to credit discriminatees for enti- tlement to some of these benefits. Specifically, they indi- cated that Felicita Fernandez, June Kwadjosse, Jeanine Lamonthe, Patrice Manns, Raiford Tisdale, Billy Waters, and Robert Townsend each received 1 week's vacation pay in 1977, and that Robert Townsend received sick leave pay in December 1976. However, printouts of the Company's weekly payroll, which indicate the exact amounts paid to employees, fail to confirm that such benefits were actually paid. By way of comparison, the Company's payroll record for the week ending Decem- ber 24, 1975, indicates that Clarence Morris (a union member) received gross pay of $423, thereby confirming (as indicated on the worksheet for the same period) that he received 2 weeks' vacation pay in addition to his weekly pay. However, no such confirmation appears with respect to the discriminatees, either as an addition to gross or net weekly pay, or as an additional item. Therefore, I find that the discriminatees did not receive the benefits in question, and are entitled to reimburse- ment for their losses. Other contentions in the appendix to the Company's brief are based on premises which have been rejected in this Supplemental Decision (e.g., failure to include the 1975 pay raise or benefits denied after the discriminatee became a union member), and, therefore, are found to be without merit. D. Welfare and Pension Benefits The collective-bargaining contract provided that monthly, during the first week of each month, the Com- pany would contribute $35 per employee to the Amalga- mated Welfare Fund of Local No. 220, and $10 per em- ployee to the Local 220 Pension Fund. The Welfare Fund, in sum, provides for health care and related bene- fits, and the Pension Fund provides for retirement income. As indicated, the Company made payments into these Funds only on behalf of employees for whom union dues were checked off. In its Decision, the Board provided in a footnote to "The Remedy" section that "reimbursement for more direct items such as loss of wages, paid sick leave, paid holidays, and other benefits, shall be accompanied by interest computed under the 6- percent formula as set forth in Isis Plumbing & Heating Co. [138 NLRB 716 (1962)]. Such [discriminatee] em- ployees or, if relevant, their estates, will also be entitled to payment of sums of money equal to the amounts of insurance and pension benefits they would have received but for the Respondent's unfair labor practices, together with 6-percent interest thereon Isis Plumbing & Heating Co., supra." 227 NLRB at 1655, fn. 22. The reimburse- ment provision of the Order provides that the discrimina- tees be made whole, in addition to wages, sick leave, holidays, and vacations, for any "pensions, and other terms and conditions of employment they would have re- ceived since [October 1975] but for the discrimination against them." Id. at 1655-56. Although the Order does not expressly incorporate the remedy section by refer- ence, it may fairly be inferred that the Board contemplat- ed that the Order would accord with the remedy section of the Decision. Neither the Decision nor the Order ex- pressly provides for payments into the Funds on behalf of the employees. However, General Counsel contends that the discriminatees should be reimbursed for their losses by payment into the Funds of those amounts which the Company would have paid in accordance SCHORR STERN FOOD CORP. 299 300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD with the contract, on behalf of the employees, but for the discrimination against them. Other than tabulation of these payments, the backpay specification does not claim, nor has General Counsel otherwise alleged, that any dis- criminatee lost specific pension or welfare benefits as a result of the Company's conduct. The Company con- tends, in sum, that the Board's Order does not provide for reimbursement by payments into the Funds, that the Order provides only for direct reimbursement to the em- ployees for loss of pension and welfare benefits, that no such losses have been pleaded or proven, and that, there- fore, the backpay claims for pension and welfare reim- bursement should be dismissed in their entirety. In support of its position, the Company asserted in its answer to the specification that the Funds are "obligated by law, and [do] in fact provide coverage for all employ- ees of contributing employers employed in bargaining units represented by the Union, and not merely for such employees who are members of the Union." No evidence was presented that any discriminatee received welfare benefits or pension credits or benefits for any month in which no payments were made on his or her behalf. Conversely, no evidence was presented that any discri- minatee was denied benefits or credits by reason of the Company's failure to make payments on his or her behalf. In sum, the evidence is inconclusive in this regard. Upon examination of pertinent fund documents, I am also not persuaded that there is any assurance that welfare and pension benefits would have been paid or credited, or will be paid or credited, to unit employees for whom no payments were made by reason of non- membership in the Union. Both the pension plan (as amended January 1, 1976) and the amended agreement and declaration of trust of the Welfare Fund define the term "employee" as including any employee of an em- ployer for whom contributions are required to be made by reason of a collective-bargaining agreement with the Union. However, a booklet distributed by the trustees of the Welfare Fund entitled "Your Group Insurance Plan" indicates that specific welfare benefits are available either only to union members, or to employees for whom em- ployer contributions have been made for specific periods of time. The Company's obligation toward nonunion em- ployees was adjudicated in Board litigation to which the Funds were not parties. Neither the Company, the Union, nor the Funds have affirmatively taken the posi- tion that the Funds cover all of the Company's nonsu- pervisory employees. Indeed, the Company still asserts, albeit for a different reason, that contract coverage was limited only to a select group of employees. Moreover, there is the practical question of whether the Company's failure to make payments on behalf of nonunion employ- ees, and the failure of either the Union or the Funds to demand such payments have affected the financial ability of the Funds to grant welfare and pension benefits to the discriminatees. I further find that, as a practical matter, it would be impossible or nearly impossible to measure, with any degree of accuracy, the amount of insurance and pension benefits the discriminatees would have received but for the Company's unfair labor practices. Such a determina- tion might well involve consideration of subjective fac- tors. For example, it is possible that a discriminatee might forgo or delay medical treatment if he or she lacked insurance coverage. The prerequisites for cover- age and extent of coverage are complex and changeable (and they have been changed from time to time), and the trustees exercise discretion in administering the Funds. In these circumstances, it might be difficult or even impossi- ble to determine whether, and to what extent, a discri- minatee failed to receive benefits because of nonpayment into the Funds, or for another reason, or for a combina- tion of reasons. Moreover, as company counsel conceded at the hearing, it could be many years before eligibility for pension benefits can be finally resolved. Employees sometimes leave and return again to work for the Com- pany, as the Company's own payroll records indicate. It is also possible that discriminatees have worked, or might in the future work, for other firms whose employ- ees are covered by the Funds. Additionally, although benefits under the welfare plan would normally be pay- able on a current basis, both plans provide for distribu- tion of assets to employees or their dependents in the event that either Fund is terminated. Therefore, the dis- critninatees have a continuing and open-ended interest in the Funds. Such interest could be seriously and adverse- ly affected by the Company's failure to pay into the Funds the amounts which it was required to pay under the terms of the contract. Absent such payments, union members might unjustly be forced to pay for the Compa- ny's unfair labor practices through reduction or loss of their own benefits. In contrast, payments into the Funds, based on the readily calculable amounts that the Company would have paid but for its discriminatory conduct, would ef- fectively resolve any lingering questions of contract cov- erage, and would provide an objective basis on which eligibility for benefits could be measured. Additionally, such payments would provide the necessary financial viability for receipt of benefits by the discriminatees. The alternative, as indicated, is no reimbursement at all for lost welfare and pension benefits. I cannot accept the Company's simplistic argument that, therefore, the discri- minatees should not obtain any relief. A wrong has been done, and that wrong must be remedied. I find that com- pany payment into the Funds is the only feasible and practical remedy in this regard. Such payments would, to the best extent possible, place the discriminatees in the position they would have been but for the discrimination against them; i.e., restore the status quo. Therefore, pay- ments into the Funds would best effectuate the remedial purposes of the Act. See Harold W. Hinson, d/b/a Hen House Market No. 3, 175 NLRB 596 (1969), enfd. 428 F.2d 133, 136-139 (8th Cir. 1970). There remains the question of whether an order direct- ing the Company to make payments into the Funds on behalf of the discriminatees is compatible with and per- missible under the terms of the Board's Decision and Order in this case. I find that it is. The Board has held, under similar circumstances, that a remedial order which provides literally only for reimbursement to discrimina- tees for lost welfare or pension benefits does not pre- clude an order in the subsequent backpay proceeding di- recting the respondent to make payments into the trust SCHORR STERN FOOD CORP. 301 funds. In Am-Del-Co., Inc., et al., 234 NLRB 1040 (1978), a backpay decision cited by the Company in its brief (p. 25), the Board affirmed the Decision of an Administra- tive Law Judge which stated in pertinent part as follows (234 NLRB at 1043): The specification requires the Respondent to con- tribute to the Teamsters' health and welfare fund trust the payments it would have made under the collective-bargaining agreement, absent the discrim- ination, during the backpay period for those calen- dar quarters in which the trust provided medical services to individual discriminatees through the St. Louis Labor Health Institute. The Charging Party Union contends that the Re- spondent should be required to make the trust whole for the actual cost of services which the In- stitute provided to discriminatees, and to make all contributions to the trust for all discriminatees during the entire backpay period. In rejecting similar contentions, the Board has pointed out that liability is to be determined from the language of the Board's Order in the original Decision in the case. [Citing Coletti Color Prints, Inc., 204 NLRB 647, 648 (1973).] Here, the Order required the Respondent to make the discriminatees whole for any loss of pay, including loss of fringe benefits, they may have suffered by reason of the unlawful refusal to continue them in employment. There is no order to make the trust whole. Howev- er, contrary to the Respondent, it seems only fair, and in accord with Board policy, to order the trust reimbursed to the extent of the premiums which the Respondent would have paid under the collective- bargaining agreement during the quarters in which individual discriminatees actually received services from the trust, as requested in the specification. [Citing Hinson, supra, and Deena Artware. Incorpo- rated, 112 NLRB 371, 375 (1955), enfd. 228 F.2d 871 (6th Cir. 1955).] In sum, equitable considerations will govern if a literal application of the language of the Board's Order will defeat the remedial purposes of that Order. See also Sioux Falls Stock Yards Company, 236 NLRB 543, 544, 546 (1978). Indeed, in Am-Del-Co the Board provided both for payments into the trust fund and for reimburse- ment to an employee for medical expenses incurred by him during the backpay period.' 2 2 The Company's principal reliance on Colleti Color Prints, Inc. , 204 NLRB 647, which, as indicated, was noted in the Arn-Del-Co. case, is misplaced. In Coletti, the Board declined to order a respondent employer to make payments into sickness and accident and job training funds as provided in an expired contract, where the collective-bargaining relation- ship had ceased to exist, and there was no evidence that the employees were deprived of, or could derive in the future, any benefits from those funds. Therefore, the Board reasoned that such payments could not serve to make whole the employees for the losses which they suffered by reason of the employer's failure to honor the contract. In the present case, there is an ongoing bargaining relationship, and. as indicated, the discriminatees have a continuing interest in the viability of the funds Subsequent Board decisions indicate that, if Coleti has any continuing va- lidity at all, it is limited to those situations in which the collective-bar- gaining relationship has ceased to exist See Pacific Aggregates, Inc., et al.. 231 NLRB 241, 221 222 (1977). As indicated, the Board's Decision and Order provides that the discriminatees be made whole for their losses, in- cluding loss of insurance and pension benefits, with inter- est computed under the 6-percent formula set forth in Isis Plumbing & Heating Co., i.e., the rate of interest which was in effect at the time the Board issued its Deci- sion and Order. General Counsel requests that interest be paid on the payments into the Funds, as well as the pay- ments to the individual discriminatees. In Victor Miceli and Sam Miceli d/b/a Riverside Produce Company, 242 NLRB No. 96 (1979), the Board held at footnote 3: .. we note that because the provisoins of em- ployee benefit fund agreements are variable and complex, the Board does not provide at the adjudi- catory stage of a proceeding for the addition of in- terest at a fixed rate on unlawfully withheld fund payments. We leave to the compliance stage of this proceeding the question of whether Respondent must pay any additional amounts into the pension and health and welfare trust funds in order to satis- fy our "make whole" remedy. These additional amounts may be determined, depending upon the circumstances of each case, by reference to provi- sions in the documents governing the funds and, if there are no governing provisions, by evidence of any loss directly attributable to the unlawful with- holding action, which might include the loss of return on investment of the portion of funds with- held, additional administrative costs, etc., but not collateral losses. Inland Cities, Inc., 241 NLRB No. 56 (1979). In the present case, the Agreement and Declaration of Trust of the Pension Fund, as amended (arts. 4.4, and 4.5), and the Agreement and Declaration of Trust of the Welfare Fund, as amended (arts. 4.4, and 4.5), each pro- vide: 4.4-The Trustees may compel and enforce the payment of contributions in any manner which they may deem proper. The failure of any Employer to make contributions when due shall not relieve any other Employer from its duties or obligations here- under. Any Employer who fails to make contribu- tions shall be obligated to pay, in addition to said contributions, all expenses and costs of collection that may be incurred by the Trustees, including rea- sonably [sic] attorney's fees, and they shall be obli- gated to pay such interest or delinquency charges, if any, contained and described in the collective- bargain- ing agreement between the Employer and the Union. 4.5-The provisions contained herein pertaining to the collection of Employer contributions shall be read cumulatively with the provisions of the collec- tive-bargaining agreements requiring contributions. [Emphasis supplied.] The collective-bargaining contract is silent with respect to interest on delinquent payments to the Funds. I find no provisions in the contract which expressly or implied- ly authorize the Funds to collect interest on delinquent payments. Although the Company was sometimes late in SCHORR STERN FOOD CORP. 301 302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD making payments for union members, the Funds' records do not indicate that interest was billed or collected there- on. I find that the governing documents of the Funds, when read in conjunction with the collective-bargaining contract which is the subject of this case, do not provide for interest on delinquent payments. Therefore, applying the standards of Riverside Produce Co., supra, to the facts of this case, I find that interest on payments due to the Funds is now warranted. The backpay specification indicates that monthly pen- sion and welfare payments are due for Patrice Manns through August 1977, for June Kwadjosse through No- vember 1977, and for Ultima Andre, Irma Coles, Felicita Fernandez, Jeanine LaMothe, Raiford Tisdale, Robert Townsend, and Billy Walters through December 1977. However, the Funds' records indicate that the Company began forwarding pension and welfare payments for Pa- trice Manns in August 1976, for Robert Townsend in September 1976, for Ultima Andre, Irma Coles, June Kwadjosse, Jeanine LaMothe, Raiford Tisdale, and Billy Walters in February 1977, and for Felicita Fernandez in May 1977. Therefore, payments into the funds should be reduced for each of the discriminatees by the following amounts: Employee Ultima Andre Irma Coles Felicita Fernandez June Kwadjosse Jennie LaMothe Patrice Manns Raiford Tisdale Robert Townsend Billy Walters Pension Fund $110.00 110.00 80.00 100.00 110.00 130.00 110.00 160.00 110.00 Welfare Fund $385.00 385.00 280.00 350.00 385.00 455.00 385.00 560.00 385.00 The Company contends that no claim for welfare or pension payments should be allowed for any month in which the discriminatee worked less than a full month. No reason is given for this position. As indicated, the contract provided that payments be made monthly for each employee "in the first week of each month." The contract did not require that payments be made only for employees who worked the entire month. I find, in light of the contract language, that payments are due for each discriminatee for any month in which the discriminatee was on the company payroll during the first week of the month. It appears from the information and figures in the backpay specification that General Counsel followed such a formula in preparing the specification.' There- fore, no revision is warranted in this regard. However, some modifications are warranted insofar as certain al- leged termination dates are contradicted by the Compa- ny's payroll records. With respect to Sonia Louis, claims for the first 4 months of 1976 ($40 to the Pension Fund and $140 to the Welfare Fund) should be disallowed, as the Company's records indicate that Louis was removed during the first week of January 1976. The Company's records also indicate that Robert Townsend was off the payroll during the first week of July 1976. Therefore his claim should be reduced (in addition to the reduction previously indicated) by $10 for pension payments and $35 for welfare payments. E. Conclusion With the exceptions heretofore found, I find that the backpay specification is proper in all respects. The Com- pany contends that it should not be required to pay more Ia General Counsel did not either file a brief or present a closing oral argument Therefore, it has been necessary for me to speculate as to Gen- eral Counsel's position regarding several controversial aspects of the backpay specification. than one-half of the total gross backpay found. The Company relies principally on N.L.R.B. v. Local 485, In- ternational Union of Electrical, Radio and Machine Work- ers, AFL-CIO [Automotive Plating Corp.], 454 F.2d 17 (2d Cir. 1972), in which the court, citing Vaca et al. v. Sipes, 386 U.S. 171, 196-198 (1967), declined to enforce a Board Order which directed Local 485, the only respon- dent in that case, to pay all of the backpay due a discri- minatee by reason of Local 485's discriminatory refusal to process a wrongful discharge grievance on his behalf. The court reasoned that the discriminatee could have filed a lawsuit under Section 301 of the Act against the employer for violation of the collective-bargaining agree- ment, or joined such suit with one against Local 485 for breach of its duty of fair representation, in which event there could have been an apportionment of damages. In- stead, the discriminatee filed an unfair labor practice charge, which resulted in a proceeding only against Local 485. The court held that, in these circumstances, it was improper for the Board to hold Local 485 liable for all of the backpay due the discriminatee. The court did not pass on what, if any, apportionment was or would have been warranted. With respect to the present case, the Company points out that, in his Decision, the Ad- ministrative Law Judge observed that "[a]lthough it is clear that the Union has a corresponding obligation to fairly and equally represent all unit employees of the Re- spondent without regard to whether they are union members, no charge against the Union has been filed." 227 NLRB at 1654, fn. 17. The Company argues that, under Vaca v. Sipes and its progeny, it would be improp- er to hold the Comany liable for the entire backpay award. The principal difficulty with the Company's argument is that it comes too late. Although the Union was repre- sented in the unfair labor practice proceeding as a party to the contract, it was not named as a respondent. No SCHORR STERN FOOD CORP. 303 findings were made as to whether it committed any unfair labor practices, and no order was entered against it. The Company might have, at any time during the unfair labor practice proceeding, requested that damages be apportioned in the event that the Company was found to have engaged in the charged unfair labor practices. However, the Company took no such action. The Board ordered the Company to make the discriminatees whole for their losses, and the Company stipulated in the court of appeals that it would comply with that decision. In contrast, in Automotive Plating Corp., Local 485 filed a timely petition for judicial review of the Board's Order directing it to make the discriminatee whole for his losses. In these circumstances, no equitable consider- ations are advanced which would warrant relief from the Board's remedial order. The Company slumbered upon, and ultimately waived, any rights it might have had in this regard. At this late stage, an award of only one-half of the backpay due, which would leave the discrimina- tees with no alternative recourse other than a private action against the Union, might well deprive them of a complete remedy for the wrong done them. 4 Such a result would be both inequitable and repugnant to the re- medial purposes of the Act. See N.L.R.B.v. J. H. Rutter- Rex Manufacturing Company, Inc., 396 U.S. 258, 264-265 (1969). Moreover, the Company itself has not acted in an " It is possible that such a suit might be held ultimately, either in whole or part. See, Abrams v. Carrier Corporation et aL, 434 F.2d 1234, 1251-52 (2d Cir. 1970), cert. denied, 401 US. 1009. equitable manner. As indicated, the Company continued to deny contract benefits to discriminatees even after the Board issued its Decision and Order in the unfair labor practice case. Therefore, the entire backpay liability should be assessed against the Company.' 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: ORDER e The Respondent, Shorr Stern Food Corp., Brooklyn, New York, its officers, agents, successors, and assigns, shall: 1. Make whole each of the following named discrimin- atees for his or her loss of wages, paid sick leave, holi- days, and vacations by paying them the total amount set forth below opposite his or her name, plus interest there- on accrued to the date of payment at the rate of 6 per- cent per annum, computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716, less tax with- holdings required by Federal and state law: 's Procedural arguments advanced by the Company are without merit. See National Labor Relations Board Rules and Regulations, Series 8, as amended, Secs. 102.117(bX1) and 102.37 ' 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. SCHORR STERN FOOD CORP. 303 304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD WAGE DIFFERFENTIAL HOLIDAY PAY VACATION PAY TOTAL DUE DISCRIMINATEES SICK PAY $ 36.00 76.00 36.00 156.00 116.00 116.00 76.00 76.00 200.00 33.60 33.60 37.60 33.60 33.60 33.60 -0- -0- -0- -0- -0- -0- -0- -0- 73.60 114.40 -0- -0- 73.60 73.60 -0- 73.60 -0- -0- -0- 77.60 -0- -0- -0- -0- -0- -0- -0- -0- -0- -0- Gloria Santiago $ 162.38 Hermite George 183.14 Emma Chibas 114.06 Ultima Andre 921.20 Jeanine LaMothe 830.41 Anne Charles 352.15 Anthonyne Charles 181.50 Patrice Manns 229.26 Irma Coles 922.49 Sonia rLouis 26.94 Julia Sanchez 3.16 Jean Thompson 43.78 Joseph Todoiz 20.88 Eve Rosario -0- David Estrada 8.56 Gilbert Streeter 25.06 Brian Watson 1.38 Lydia Rivera 17.53 Dolores Rodriguez -0- Marie Honore -0- Gloria Guittey -0- Esther Martinez -0- Angelo LaMothe -0- Angelita Pagan -0- Felicita Fernandez 330.26 Myrna Sanabria -0- Antonio Areno -0- Billy Walters 148.23 Claire LaMothe -0- Roberto Cruz -0- Raiford Tisdale 138.31 Gregoria Araujo -0- Maria Diaz -0- Rosaura Topez -0- Teresa Rivera 135.00 Alberto Alexis -0- Haydee Martinez -0- June wadjosse 111.66 Marie Chauvet -0- Violet Taylor -0- Marie Guilbert -0- Herminea Glaize -0- Jacqueline Flament -0- Jose Ortiz -0- Emirian Jimenez -0- $ 76.00 76.00 76.00 178.00 116.00 116.00 116.00 76.00 178.00 52.40 52.40 71.20 71.20 33.60 52.40 52.40 52.40 37.60 16.80 18.40 18.40 18.40 18.40 36.80 155.20 18.40 18.40 94.00 55.20 18.40 73.60 77.60 18.40 18.40 136.80 18.40 38.80 36.80 18.40 73.60 18.40 18.40 18.40 18.40 18.40 $ 140.00 220.00 115.00 600.00 400.00 180.00 140.00 600.00 600.00 112.20 67.20 104.80 65.50 42.00 26.20 40.30 -0- 23.50 42.00 -0- 23.00 18.40 23.00 23.00 194.00 -0- 18.40 148.00 73.60 27.60 157.20 46.00 -0- 46.00 97.00 27.60 18.40 118.40 18.40 46.00 23.00 23.00 -0- -0- -0- $ 414.38 555.14 341.06 1,855.20 1,462.41 764.15 513.50 981.26 1,900.49 225.14 156.36 257.38 191.18 109.20 120.76 151.36 53.78 78.63 58.80 18.40 41.40 36.80 41.40 133.40 793.86 18.40 36.80 463.83 202.40 46.00 442.71 123.60 18.40 64.40 446.40 46.00 57.20 266.86 36.80 119.60 41.40 41.40 18.40 18.40 18.40 SCHORR STERN FOOD CORP. 305 DISCRIMINATEE WAGE DIFFERENTIAL SICK PAY -0- -0- -0- -0- $ -0- 40.80 -0- -0- -0- 81.60 -0- -0- -0- -0- -0- -0- -0- -0- -0- -0- -0- -0- -0- -0- -0- -0- 36.80 36.80 -0- -0- -0- -0- 36.80 -0- -0- -0- -0- -0- -0- -0- -0- -0- -0- -0- -0- HOLIDAY PAY 36.80 18.40 18.40 18.40 $ 38.80 79.60 57.20 18.40 18.40 138.80 18.40 18.40 18.40 20.40 55.20 36.80 36.80 55.20 55.20 18.40 73.60 36.80 18.40 18.40 55.20 18.40 36.80 18.40 18.40 18.40 18.40 55.20 36.80 36.80 18.40 36.80 36.80 18.40 18.40 -0- -0- -0- -0- -0- -0- VACATION PAY 23.00 -0- -0- 18.40 $ -0- 40.80 23.00 23.00 -0- 40.80 23.00 -0- -0- -0- 18.40 23.00 -0- 46.00 55.20 27.60 38.40 18.40 27.60 -0- 46.00 23.00 55.20 46.00 18.40 -0- -0- 27.60 27.60 -0- -0- 27.60 -0- -0- -0- 23.00 23.00 23.00 18.40 18.40 27.60 TOTAL DUE 59.80 18.40 18.40 36.80 $ 54.86 278.83 91.45 41.40 18.40 601.91 41.40 18.40 18.40 20.40 73.60 59.80 36.80 101.20 110.40 46.00 112.00 55.20 46.00 18.40 101.20 41.40 128.80 101.20 36.80 18.40 18.40 82.80 101.20 36.80 18.40 64.40 36.80 18.40 18.40 23.00 23.00 23.00 18.40 18.40 27.60 Paulette Joseph -0- Santa Ramos Toro -0- Maurice Grindley -0- Angel Lebron -0- Melvin Ingram $ 16.06 Marie D. Ceneus 117.63 Marie Larochelle 11.25 Mary Battle -0- Bertha Sheppard -0- Otitia Martinez 340.71 Morris Irizarry -0- Carmella Maldonado -0- Andres Rivera -0- Nicole Brisseau -0- Inosencia Cabrera -0- Clercina Francois -0- Carmen Amecia -0- Bernadette Antonie -0- Nicole Filsaime -0- Candita Rodriguez -0- Robert Holdip -0- Raphael Ortiz -0- McLaurin Brathwaite -0- Yvon Reed -0- Eva Hernandez -0- Juanita Ortega -0- Merlotte Bazile -0- Ramon Orosco -0- Alberto Gonzalez -0- Ramonita Cruz -0- A. Cartigena -0- Charles Aloota -0- Carmen Correa -0- Carmen Santiago -0- Maria Hernandez -0- Maria Castello -0- Maria Correa -0- A. Lanre -0- Gustave Delcasse -0- RDsa Calderon -0- Gerard Pinckney -0- Guadalope Lopez -0- Virginia DeLaespada -0- Marta Cruz -0- Arthur Evans -0- SCHORR STERN FOOD CORP. 30_ 306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. Make whole Robert Townsend for his loss of wages, paid sick leave, holidays, and vacations by paying him an amount which shall be recalculated by Region 29 in accordance with this Supplemental Decision, plus in- terest and less tax withholding as indicated above. 3. Make whole each of the following named discrimin- atees for his or her loss of pension and welfare benefits by payment on his or her behalf to the Local 220 Pen- sion Fund and the Amalgamated Welfare Fund of Local 220, respectively, the amounts set forth below: DISCRIMINATEES Ultima Andre Hermite George Irma Coles Gloria Santiago Patrice Manns Emma Chibas Robert Townsend Anne Charles Anthonyne Charles Jeanie LaMothe Sonia Louis Julia Sanchez Jean J. Thaompson Joseph Todoiz Eve Rosario David Estrada Gilbert Streeter Dolores Rodriguez Lidia Rivera Claire LaMothe Gloria Guittey Esther Martinez Angelo LaMothe Angelita Pagan Felicita Fernandez Antonia Areno Billy Walters Raiford Tisdale Gregoria Araujo Rosaura Lopez Roberto Cruz Teresa Rivera Alberto Alexis Haydee Martinez June V. wadjosse Marie Chauvet Violet Taylor Marie Guilbert Herminia Glaize Morris Irizarry Paulette J. Joseph Angel Lebron Marie Larochelle Mary Battle PENSION FUND $ 150.00 70.00 150.00 100.00 90.00 40.00 90.00 120.00 70.00 130.00 20.00 20.00 70.00 50.00 20.00 40.00 50.00 20.00 30.00 90.00 30.00 20.00 30.00 30.00 150.00 20.00 80.00 90.00 40.00 60.00 40.00 110.00 40.00 20.00 70.00 20.00 60.00 30.00 30.00 30.00 40.00 30.00 40.00 30.00 WELFARE FUND $ 525.00 245.00 525.00 350.00 315.00 140.00 315.00 420.00 245.00 455.00 70.00 70.00 245.00 175.00 70.00 140.00 175.00 70.00 105.00 315.00 105.00 70.00 105.00 105.00 525.00 70.00 280.00 315.00 140.00 210.00 140.00 385.00 140.00 70.00 245.00 70.00 210.00 105.00 105.00 105.00 140.00 105.00 140.00 105.00 --- SCHORR STERN FOOD CORP. PENSION FUND 307 DISCRIMINATEES Otitia Martinez Marie D. Ceneus Inosencia Cabrera Clercina Francois Bernadette Antoine Nicole Filsaime Candita iRdriguez Robert Holdip Raphael Ortiz McLaurin Brathwaite Eva Hernandez Rosa Calderon Girard Pinckney Juanita Ortega Guadalope Lopez Merlotte Bazile Gregoria Araujo Ramon Orosco Alberto Gonzalez Virginia DeLTaespada Marta Cruz Charles Aloota Carmen Correa Arthur Evans Maria Castillo WELFARE FUND 120.00 40.00 20.00 30.00 40.00 60.00 40.00 50.00 20.00 40.00 60.00 30.00 30.00 30.00 30.0n 70.00 40.00 40.00 20.00 20.00 20.00 30.00 30.00 20.00 20.00 T0TAL DUE $3,530.00 420.00 140.00 70.00 105.00 140.00 210.00 140.00 175.00 70.00 140.00 210.00 105.00 105.00 105.00 105.00 245.00 140.00 140.00 70.00 70.00 70.00 105.00 105.00 70.00 70.00 $12,355.00