Intl. Union of Operating Engineers, Loc. 925

818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Union of Operating Engineers, Local though it would bring about a cessation of Respond- 925, AFL-CIO, and its Business Manager, H. B. ents' discriminatory preferential referral practices, Roberts (J. L. Manta, Inc.) and Herman Dewey would not serve the public interest in making whole Ross. Cases 12-CB-734,12-CB-743 Ross for loss of wages suffered by reason of December 11, 1967 ORDER AMENDING DECISION AND ORDER Acting in the interest of clarification and in discharge of its responsibility to fashion a remedy tailored to the facts of this case, the National Labor Relations Board reconsidered its Decision and Order of August 24, 19651 in the above-entitled proceeding. Upon reconsideration, the Board, on June 21, 1967, issued a notice to show cause (at- tached hereto) why the Decision and Order should not be amended by amending the Order to provide not only that Respondents be required to cease and desist from the discriminatory operation of its hiring hall, but to provide also that Respondents be required to make whole Herman Dewey Ross for loss of wages suffered by reason of such discrimina- tory operation of the hiring hall. On July 7, 1967, Respondents filed with the Board their response to the notice to show cause. In their response, Respondents concede that the Board has authority to modify its Order. They contend, however, that the proposed modification is improper on a number of grounds. The Board has duly considered the objections raised by Respondents, and finds them to be without merit for the following reasons: In its Deci- sion and Order, the Board affirmed the finding of the Trial Examiner- The major offense with which the remedy must deal if its proper purpose is to be achieved is the pattern of continuing discrimination in the operation of the Union's hiring hall. The record clearly reveals a fixed determination by Busi- ness Agent Roberts, alone in charge of the hall, to disregard applicable statutory provisions and to persist in his illegal treatment of Ross through the device of the exclusive referral system. To deal with this "pattern of continuing discrimina- tion," the Board, adopting the recommendation of the Trial Examiner, ordered Respondents to cease and desist from discriminating against employees by discriminatory preferential hiring hall referral, to keep permanent records of the Union's hiring and referral operation, and to make such records availa- ble to agents of the Board for inspection. In the Board's judgement, enforcement of its Order, 1154 NLRB 671. 2 See for example Local 1566, International Longshoremen's Associa- non (Philadelphia Marine Trade Association), 122 NLRB 967,980, enfd. Respondents' discriminatory application of their referral procedures to him from the time of the hear- ing to the time it conformed its practices to that which the Board's Order requires and the law com- mands. In this respect, we believe the Order to be deficient in furthering the policies of the National Labor Relations Act, as amended, and we shall therefore modify it to conform to our general prac- tice of requiring a respondent to make whole em- ployees for loss of pay suffered by reason of its dis- crimination against them.2 We are satisfied that such a modification of the Trial Examiner's Recom- mended Order at the time the Board's original Deci- sion and Order issued would have been well within the Board's power to make. As we have continuing jurisdiction in this case, and as the General Counsel must necessarily prove that any claimed losses of wages during the expanded backpay period resulted from discriminatory refusals to refer Ross,3 we see no reason to refrain from correcting a perceived de- fect in the original Order. Accordingly, no good cause having been shown why the Board should not amend its Decision and Order in the manner and respect set forth in the at- tached Notice to Show Cause, IT IS HEREBY ORDERED that the Decision and Order issued August 24, 1965, be, and it hereby is, amended as follows: 1. Delete paragraph 2(a) of the Order and sub- stitute therefor the following: "(a) Reimburse and make whole Herman Dewey Ross for any loss of pay suffered because of the discriminations practiced against him, as found by the Board in this Decision, from the date the record herein shows such discrimination began until such time as the discrimination ceases or has ceased and Respondent fully complies or has complied with the Board's Order in all pertinent respects, by payment to him of a sum of money equal to the amount which, absent the unfair labor practices, he would normally have earned as wages during the period involved, less net earnings. Loss of earnings shall be computed in the manner established by the Board in F. W. Woolworth Co., 90 NLRB 289. The backpay obligation of the Respondent shall include the payment of interest, to be computed in the manner set forth in Isis Plumbing and Heating Co., 138 NLRB 716." 2. The notice is amended by deleting from the fourth indented paragraph the words "the" and "above." Society of Chicago, Local No. 5 (John P. Phillips Plastenng 9_ 1 45 NLRB 1608, 1623. 3 Local 1566, International Longshoremen's Association (Marvin 278 F.2d 883. See also Supplemental Decision and Order, 145 NLRB Gould), 145 NLRB 1417, 1425 1417, 1419-20. Accord: Journeymen Plasters' Protective and Benevolent 168 NLRB No. 129 INTL. UNION OF OPERATING ENGINEERS, LOC. 925 819 NOTICE TO SHOW CAUSE On April 28, 1965, Trial Examiner Thomas A. Ricci is- sued his Decision in the above-entitled proceeding, find- ing that Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the Trial Examiner's Decision. In his Decision, the Trial Examiner found that the Respondent Union and its agent, H. B. Roberts, caused named employers to discriminate against a union member, the Charging Party herein, Herman Dewey Ross, in violation of Section 8(b)(2) of the Act; and also violated Section 8(b)(1)(A) of the Act by fining Ross for filing unfair labor practice charges with the Board. The remedy formulated by the Trial Examiner required the Respondents to make Ross whole for any loss of earnings incurred by reason of job shutdowns instigated by the Respondents at certain jobsites, and on account of Roberts' refusal on six occasions to refer Ross for em- ployment in accordance with the Union's seniority roster. On August 24, 1965, the Board issued its Decision and Order in the above-entitled proceeding, adopting, with a modification, the findings, conclusions, and recommenda- tions of the Trial Examiner.' On February 17, 1967, the Regional Director issued and served a backpay specification and notice of hearing. Thereafter, on March 2, 1967, Respondent filed a motion to strike, inter alia,those portions of the backpay specifi- cation alleging loss of earnings for periods subsequent to the date the unfair labor practice proceedings terminated. In response thereto, the General Counsel submitted an opposition. On March 20, 1967, Trial Examiner Charles W. Schneider issued an order granting the motion in part and striking such portions of the backpay specification. Now, under National Labor Relations Board Rules and Regulations, Series 8, as amended, Section 102.26, the General Counsel requests special permission to appeal from the adverse ruling of the Trial Examiner, and Respondent has filed a memorandum in opposition thereto. The General Counsel asks the Board to reverse the Trial Examiner's ruling on the motion, or, alternative- ly, that the Board amend and/or clarify Respondents' obligations under the backpay provision of the original Order. The Board is of the view that Trial Examiner Schneider's construction of the Decision and Order as requiring Respondent to make whole Herman Dewey Ross only for loss of pay suffered as the result of the specific acts of discrimination found by the Board to be violative of Section 8(b)(2) and (1)(A) of the Act cannot be said to be clearly erroneous. Accordingly, the General Counsel's application to appeal from the Trial Examiner's ruling is hereby denied. The Board is of the opinion, however, that its Order, as narrowly construed by the Trial Examiner, does not fully remedy the unlawful discrimination against Herman Dewey Ross. Accordingly, the Board, in the interest of clarification and in discharge of its responsibility to fashion a remedy tailored to the facts of this case, has de- cided to reconsider its Decision and Order.' Having duly considered the matter, the Board reaffirms its finding that "the major offense with which the remedy must deal if its proper purpose is to be achieved is the pattern of continu- ing discrimination in the operation of the Union's hiring hall." It is now the Board's view, unless good reason is shown otherwise, that to deal adequately with the dis- criminatory operation of the hiring hall as it has been shown to affect Herman Dewey Ross' employment op- portunities and that to effectuate the policies of the Act, Respondent should be required not only to cease and de- sist from the discriminatory operation of the hiring hall, but also to make whole Herman Dewey Ross for loss of wages suffered by reason of such discriminatory opera- tion of the hiring hall. Accordingly, the Board proposes to modify the backpay provisions of its original Order (par. 2(a)), to require Respondent to make whole Herman Dewey Ross for loss of wages suffered by him as the result of the discrimination practiced against him, as found in the Board's original Decision, from the date the record in this case shows such discrimination began until such time as the discrimination ceases or has ceased and Respondent fully complies or has complied with the Board's Order in all pertinent respects. Accordingly, IT IS HEREBY ORDERED that the parties show cause, in writing, filed with the Board in Washington, D.C., on or before July 3, 1967 (with affidavit of due service of co- pies upon other parties to this proceeding), why it should not modify its Order in the manner and respects indicated above. ' 154 N LRB 671. 2 There is continuing jurisdiction in the matter under Sec. 10(d) of the Act inasmuch as the record in this case has not been filed in a court for purposes of enforcement or review of our Decision and rder 336-845 0 - 70 - 53