Montauk Iron and Steel Corp.

MONTAUK IRON & STEEL CORP. 181 Montauk Iron & Steel Corp. and Louis A. Ferland - Local 815, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, Independent and Louis A. Ferland. Cases Nos. 2-CA-6701 and P-CB-2598. Janis-, ary 10, 1962 SUPPLEMENTAL DECISION AND ORDER On June 3,1960, the Board issued a Decision and Order in the above- entitled consolidated cases, finding that the Respondent Employer and the Respondent Union had discriminated against Louis A. Ferland in violation, respectively, of Section 8(a) (1) and (3) and Section 8(b) (1) (A) and (2) of the National Labor Relations Act,' and di- rected them, jointly and severally, to make him whole for his resulting loss of pay. On September 1, 1960, the Respondent Employer paid Ferland the sum of $234.78. Thereafter, the Board's Order was en- forced by the United States Court of Appeals for the Second Circuit,' which entered a decree on May 10, 1961, directing the Respondent Union to make Ferland whole for any loss of pay suffered by reason of the discrimination against him. ' On June 22, 1961, the Regional Director for the Second Region issued a backpay specification, and, on July 6, 1961, the Respondent Union filed an answer thereto. Upon appropriate notice issued by the Regional Director, a hearing was held before Trial Examiner C. W. Whittemore for the purpose of determining the amount of backpay due to Ferland from the Respondent Union. On October 25, 1961, the Trial Examiner issued his Supplemental, Intermediate Report, which is attached hereto. Thereafter, the Re- spondent Union filed exceptions to the Supplemental Intermediate Report. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in these cases to a three-member panel [Chairman McCulloch and Members Leedom and Brown]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the entire record in these cases, including the Supplemental Intermediate Report and the exceptions thereto, and hereby, adopts'the findings, conclu- `' sions, and recommendations of the Trial Examiner. The Trial Examiner found that Ferland's net pay due was $469.56, that the Respondent Employer had paid him $234.78, onehalf the net backpay due, and that theRespondentUnion must also pay him $234.78. 1127 NLRB 993. - 9 290 F. 2d 99. 135 NLRB No. 26. 182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In its exceptions to the Supplemental Intermediate Report, the Re- spondent Union contends for the first time that it should not be re- quired to pay any backpay to Ferland because he failed to adduce proof On the record that he attempted to mitigate the damages suffered by reason of the discrimination against him by making a reasonable effort to find work during the backpay period. It is well established, how- ever, that the burden was on the Respondent Union herein to show that Ferland willfully incurred loss of earnings.' Ferland appeared as a witness at the hearing, and, in response to the Respondent Union's questions, testified that he registered for unemployment compensation the day after his discharge and requested employment, that he received unemployment compensation, and that during the 51/2-week backpay period he looked for work at two establishments and through Local 455, International Association of Bridge, Structural, and Ornamental Ironworkers, AFL-CIO. There is also testimony that the latter union "got him a job as soon as [it] could," which was not until after the expiration of the backpay period. Under these circumstances, we find that the Respondent Union failed to prove that Ferland willfully in- curred loss of earnings' Accordingly, we find, in agreement with the Trial Examiner, that the Respondent Union must pay Ferland back- pay in the amount of $234.78. ORDER On the basis of the foregoing Supplemental Decision and the entire record in these cases, the National Labor Relations Board hereby orders that Respondent Local 815, International Brotherhood of Teamsters, Chauffeurs, Warehousemen, and Helpers of America, In- dependent, its officers, representatives, and agents shall pay to Louis A. Ferland net backpay in the amount of $234.78. 3 Ozark Hardwood Company, 119 NLRB 1130, 1134-1135, enfd. 282 F. 2d 1 (C A 8) ; Alaska Chapter of the Associated General Contractors of America, Inc., 119 NLRB 663, footnote 21. 4 Ozark Hardwood Company, supra, at 1135. SUPPLEMENTAL INTERMEDIATE REPORT STATEMENT OF THE CASE On June 30, 1960, the National Labor Relations Board issued its Decision and Order (127 NLRB 993) in the above-entitled consolidated cases directing , inter alia, that the Respondents Montauk and Local 815 jointly and severally make whole Louis A. Ferland for his losses resulting from unfair labor practices engaged in by the Respondents in violation of Section 8(b)(2) and (8)(a)(3) of the National Labor Relations Act, as amended. On September 1, 1960, the Respondent Montauk paid to Ferland the sum of $234.78. On May 10, 1961, the Court of Appeals for the Second Circuit entered its decree enforcing in full the Board 's Order against the Respondent Local 815. A controversy having arisen concerning the amount of backpay due, the Regional Director for the Second Region on June 22 , 1961, issued, pursuant to Section 102.52 MONTAUK IRON & STEEL CORP. 183 of the Board's Rules and Regulations , Series 8, his backpay specifications. On the same date the said Regional Director issued and served a notice of hearing on the allegations of the said backpay specifications . On July 6, 1961, the Respondent Union filed its answer to the said backpay specifications. Pursuant to the notice of hearing, a hearing was held in New York , New York, on October 6, 1961, before the duly designated Trial Examiner. The Regional Director and the Respondent Union were represented by counsel and were afforded full opportunity to present evidence pertinent to the allegations of the backpay specifications. Oral argument and the filing of briefs were waived. From the record thus made, from the admissions in the answer , from concessions by counsel for the Respondent Union during the hearing, and from his observation of the witnesses , the Trial Examiner makes the following: FINDINGS OF FACT 1. Ferland's backpay period began June 25, 1959, and ended August 4, 1959, a period of 5 weeks and 3 days. 2. Ferland's rate of pay immediately prior to the unfair labor practice against him was $22 a day; absent discrimination he would have been paid at this rate throughout the entire backpay period. 3. An appropriate measure of the number of days which Ferland would have worked each week during the backpay period is the average of the number of days worked by all the flame cutters employed by Montauk during each week of the said period. 4. The average number of days worked by the said flame cutters during the backpay period is 5 days a week. 5. Ferland's gross backpay is determined by multiplying the number of days applicable to the backpay period by the wage rate he would have received during such period. 6. Net backpay is the difference between gross backpay and interim earnings. 7. At the time of his discharge, Montauk paid Ferland $110, which constitutes interim earnings. 8. Ferland received $36.44 from Montauk for certain work performed by him on July 13 and 14, 1959, which amount constitutes interim earnings.' 9. Ferland's gross backpay is $616.2 10. Ferland's net backpay due was $469.56.3 11. The Respondent Montauk has paid Ferland $234.78, one-half the net back- pay due. 12. The Respondent Union's obligation, under the backpay order, amounts to $234.78. CONCLUSIONS AND RECOMMENDATIONS Upon the foregoing findings of fact , and upon the entire record , the Trial Examiner concludes that the Respondent Union , to make employee Ferland whole and thus comply with the Board and court order, should pay him the sum of $234.78. The Trial Examiner therefore recommends that the Respondent Local 815 , Inter- national Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of America, Independent, its officers, agents, representatives, successors, and assigns, shall, upon receipt of these recommendations, pay Louis A. Ferland the sum of $234.78.4 It is further recommended that unless the said Respondent Union notifies the Regional Director for the Second Region , in writing, within 20 days from the date of the receipt of this Supplemental Intermediate Report that it will comply, the National Labor Relations Board issue an order requiring compliance. 1 All of the findings numbered 1 through 8 are based upon allegations of the specifica- tions as admitted in the answer or by counsel for the Union during the hearing 'The answer denies this allegation but counsel for the Union offered no evidence to question the accuracy of the computation, and admitted the factors and method of such computation 8 Although the answer denies this allegation , the same counsel adduced no evidence to disturb the amount of interim earnings or the correctness of the computation. 4 From this amount, of course, should be deducted tax withholding required by Federal and State laws