Local 18, Bricklayers

LOCAL 18, BRICKLAYERS Local 18, Bricklayers, Masons and Plasterers' Interna- tional Union of America, AFL-CIO and Jesse Bulle and Union County Building Contractors Association and the Johansen Company. Case 22-CB-784 January 25, 1971 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS FANNING, BROWN , AND JENKINS On March 1, 1968, the National Labor Relations Board issued its Second Supplemental Decision and Order in the above-entitled proceeding,' finding that the Respondent had violated Section 8(b)(1)(A) and 8(b)(2) of the National Labor Relations Act, as amended, by failing and refusing to refer Jesse Bulle to available jobs from its exclusive hiring hall because of Bulle's lack of membership in the Respondent, and ordering that the Respondent make Jesse Bulle whole for any losses he may have suffered as a result of the discrimination against him. Thereafter, on March 4, 1969, the Board's Second Supplemental Decision and Order was enforced in full by the United States Court of Appeals for the Third Circuit.' On August 8, 1969, the Regional Director for Re- gion 22 issued and served upon the parties a Back- pay Specification and Notice of Hearing, alleging the backpay due under the Board's Order. Pursuant thereto, a hearing was conducted on September 15 and 16, 1969, before Trial Examiner George A. Downing. In the Course of this hearing, it appeared that Respondent possessed certain records not previ- ously available for examination by the Board's Re- gional Office which, if considered, might have an im- pact upon the amount of backpay due and owing to the Charging Party. Accordingly, the Trial Examiner adjourned the hearing sine die to permit the Regional Office to examine these records and, if necessary, to issue an Amended Backpay Specification. On February 26, 1970, an Amended Backpay Spec- ification and Notice of Hearing was issued and served upon the parties. Pursuant thereto, a de novo hearing was conducted on March 31, April 1, and May 4, 5, 6, and 7, 1970, before Trial Examiner Max Rosenberg for the purpose of determining the Respondent's backpay obligation to Jesse Bulle. On August 18, 1970, the Trial Examiner issued the attached Supplemental Decision finding that Jesse Bulle is entitled to backpay in the amount specified and ordering the Respondent to pay said amount, with interest at the rate of 6 percent per annum, to Bulle. Thereafter, the Respondent, the General Coun- sel, and the Charging Party each filed exceptions to the Trial Examiner's Supplemental Decision and sup- porting briefs. 83 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no preju- dicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Supplemental Decision, the exceptions and briefs, and the entire record in this case and finds merit in the General Counsel's limited exception' The Board therefore adopts the findings, conclusions, and recommendations of the Trial Examiner with the ad- dition noted below. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Rela- tions Board hereby orders that the Respondent, Local 18, Bricklayers, Masons and Plasterers' International Union of America , AFL-CIO, its officers , agents, and representatives, shall make Jesse Bulle whole by pay- ing him the amount set forth in the Trial Examiner's Supplemental Decision, as enlarged herein, plus inter- est at the rate of 6 percent per annum , less any tax withholding required by Federal and state laws. i 170 NLRB No 4. 2 Local 18, Bricklayers, Masons and Plasterers' International Union of America, AFL-CIO v N.L.R B, 407 F.2d 1309 (C A. 3) 3 In agreement with the General Counsel's contention , we find that the Trial Examiner erred in deducting from the Respondent's total gross pay obligation the sum of $76 90, representing work assessment fees for three quarters for which no backpay was claimed Such fees are properly deducted only from the gross backpay liability for the quarters during which they would have been paid and are not deductible from the Respondent 's total backpay obligation for the full backpay period F W Woolworth Company, 90 NLRB 289 Accordingly, the Respondent's total backpay obligation as found by the Trial Examiner is hereby increased by the sum of $76.90 TRIAL EXAMINER'S SUPPLEMENTAL DECISION MAX ROSENBERG, Trial Examiner: On March 2, 1968, the National Labor Relations Board issued its Second Supple- mental Decision and Order in this Proceeding,' directing the Respondent or Union, Local 18, Bricklayers, Masons and Plasterers' International Union of America, AFL-CIO, to make whole Jesse Bulle, the Charging Party, for any loss of pay he may have suffered as a result of the unfair labor practices found to have been committed by Respondent against him in violation of Section 8(b)(2) and (1)(A) of the Act .2 Thereafter, on March 4, 1969, the United States Court of Appeals for the Third Circuit enforced in full the Board's i 170 NLRB No 4 2 In its Supplemental Decision and Order dated June 14, 1966 , reported in 159 NLRB 303, which was reissued by virtue of the above mentioned Second Supplemental Decision and Order, the Board concluded that Respondent offended these Statutory provisions when , on or about September 11, 1964, it discriminatorily denied Jesse Bulle referrals to available jobs from its exclusive hiring hall because of his lack of membership in Respondent 188 NLRB No. 14 84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Second Supplemental Decision and Order ,3 and ajudgment to that effect was handed down on April 14, 1969. On August 8, 1969, the Regional Director for Region 22 issued a backpay specification and notice of hearing. Pur- suant thereto, a hearing was conducted on September 15 and 16, 1969, before Trial Examiner George A. Downing. In the course of this hearing, it developed that Respondent had in its ossession certain records which had not been available for examination by the Regional Office of the Board prior to the preparation of the backpay specification. As it appeared likely that these records, if considered, might have a substantial impact upon the amount of backpay assertedly due and owing to Jesse Bulle, Trial Examiner Downing adjourned the hearing sine die so that, if neces- sary, an amended backpay specification might be prepared by the Regional Director and served on Respondent. On February 26, 1970, the amended backpay specifica- tion was issued and the hearing was re-scheduled for March 30,1970. However, by letter dated March 24, the Chief Trial Examiner notified all parties that, because of his impending retirement from the Federal Service, Trial Examiner Down- ing had withdrawn from the case and that a de novo hearing on the amended backpay specification would be conducted before the undersigned Trial Examiner in Newark, New Jersey, if so requested b any of the litigants. Meanwhile, Respondent filed a timely answer to the amended backpay specification. The rescheduled hearing was held before me on March 31, April 1, and May 4, 5, 6, and 7, 1970, during which Respondent's motion for a de novo hearing was grant- ed without opposition. All parties were afforded full oppor- tunity to examine and cross-examine witnesses and to introduce pertinent evidence. Briefs have been filed by the General Counsel, the Charging Party, and the Respondent, which have been duly considered. On the entire record made in this proceeding and my observation of the witnesses , including their demeanor while on the stand, I hereby make the following: FINDINGS AND CONCLUSIONS 1. THE CONTENTIONS A. The Amended Backpay Specification As a result of the litigation on the original complaint in these proceedings nt , the Board found that, at all material times, Responde and Union County Building Contractors Association were privy to a collective-bargaining agreement which contained an exclusive hiring hall provision pursuant to which the employer-members of the Association were required to and died utilize the Respondent's referral system as the exclusive source of applicants for employment as cement masons, bricklayers , and plasterers within the terri- torial jurisdiction of the Respondent. The Board further found that, commencing on or about September 11, 1964, Respondent unlawfully refused to refer Jesse Bulle to jobs within its jurisdiction because of his nonmenbership in Res- pondent. Accordingly, the General Counsel alleges in para- graph 2 of the amended backpay s ppecification that the backpay period began on September I2, 1964 . Inasmuch as the Respondent notified the employer-menbers of the Asso- ciation on November 10, 1969, that Bulle would henceforth have full use of the hiring hall facilities without discrimina- tion in connection with referrals for employment, the para- graph also alleges that the backpay period terminated on the latter date. '407 F. 2d 1309. In paragraph 1 of the specification, the General Counsel avers that an appropriate measure of the hours which Bulle would have worked during the backpay period, absent the discrimination visited on him, should be based upon the weekly average hours worked by all members of Respon- dent who were classified solely as "cement masons" and who were referred by Respondent to employers performing work at jobsites located within the jurisdiction of Respon- dent during said period, excepting such members employed on September 12, 1964, at obs to which they had been previously referred and for the duration of these 'obs, and further excepting such members for whom there had been no reported earnings resulting from referrals by Respondent for a period of 4 or more consecutive weeks during the backpay period. Paragraph 2 and appendix A set forth the average hours worked between September 12, 1964, and November 10, 1969, by 11 named men whom the General Counsel contends possessed the classification of "cement mason," a classification held by Bulle, which hours the Gen- eral Counsel utilized in calculating the average weekly hours Bulle would have worked during the backpay period. ° Paragraph 3 of the specification enumerates the various hourly wage rates paid to cement masons in the salient periods during the backpay span."Paragraphs 4 through 9, together with an accompanying Appendix C," set forth Bulle's alleged entitlement to certain welfare fund benefits for hospital and medical expenses incurred by him, under an agreement and declaration of trust contained in the con- tract between Respondent and the Union County Building Contractors Association. Finally, the remaining paragraphs of the specification, including an appendix B attached to the pleadings, define the bases for the computation of the net backpay allegedly due to Bulle.5 B. The Charging Party's Position The Charging Part y essentially challenges the adequacy of the amended backpay specification on two grounds. First, he contends that the backpay period did not terminate on November 10, 1969, but rather continues to date, be- cause Respondent failed properly' to comply with the Board's Order relating to the Board s direction that Respon- dent mail to Bulle a copy of each notice sent by it to the employer members of the Union County Building Contrac- tors Association and other employers who use [Respon- dents] hiring hall" to the effect that henceforth Bulle would be referred to jobs without discrimination. Second, the Charging Party urges that it was error for the Regional Director to utilize only the average hours worked by men classified as cement masons to compute his backpay, claim- ing that the average hours worked by individuals who pos- sessed multiple classifications, i.e., bricklayer-masons and plasterer-masons, afforded a more appropriate basis for making the computation. C. The Respondent's Position Respondent asserts that the General Counsel's assess- ment of the net backpay due and owing to Bulle is erroneous on the following grounds: (1) the backpay cutoff date 4 The "average hours" are "adjusted" by the inclusion of overtime hours which have been converted to their straight time equivalents at the rate of I to 2 S According to the specification, Respondent's obligation to make Bulle whole for the backpay period, under the Board's Order and the Court's Judgment, "will be discharged by payment to him of the amount of $25,370.31, plus interest accrued to the date of payment ... minus the tax withholding required by Federal and State Laws " LOCAL 18, BRICKLAYERS should be fixed on September 25, 1964, or, at the latest, on August 14, 1967; (2) Bulle was not entitled to the claimed hospital and medical expenses under the agreement and declaration of trust because the General Counsel has not demonstrated that Bulle would have worked the requisite number of hours during the backpay period to become eligi- ble for these welfare funds; (3) the amended backpay spec- ification does not take into account a deduction of working assessments which Bulle would have been obligated to pa to Respondent had he worked during the backpay penod; and, (4) the specification makes no provision for the abate- ment of backpay occasioned by Bulle's willful refusal to seek employment or his unavailability for work. In its brief filed with the undersigned Trial Examiner, Respondent con- ceded that it "does not question the sample used nor the mathematics of the specification."6 II THE ISSUES AND THE EVIDENCE A. The Backpay Cutoff Date In its Supplemental Decision and Order, the Board di- rected the Respondent to "Notify the employer members of the Association, and other employers who use Respondent's hiring hall as the exclusive source for securing masons, and mail a copy of each such notice to Jesse Bulle, that Jesse Bulle will have full use of the hiring hall facilities without discrimination in connection with referrals for employ- ment." Arthur P. West, the Board's compliance officer, tes- tified without contradiction and I find that, on November 10, 1969, he received from Respondent's Financial Secre- tary, Rocky Ciambruschini, an affidavit to the effect that notices had been posted at the union's hiring hall and that Respondent had mailed letters, over the signature of Bus- iness Agent Sal Mighore, to those employers who utilized Respondent's referral system notifying them that Bulle would thereafter be referred for jobs on a nondiscriminato- ry basis. West also received a copy of the letter of notifica- tion, together with a list of the names of the employers to whom it was sent. So far as appears, Bulle also received a copy of a letter of notification which the Respondent had transmitted to the Union County Building Contractors As- sociation. In his brief, the Charging Party claims that full compli- ance with the Board's remedial Order has not been effected because copies of Respondent's letter of notification re- quired to be sent to each of the affected employers were not mailed to Bulle and therefore backpay continues to run beyond the November 10, 1969 date. -1 find no merit in this argument. West's testimony is undenied that Respondent dispatched a letter of notification to all the employers who availed themselves of the hiring hall and that this circum- stance was fully reviewed with the Charging Party prior to issuance of the amended backpay specification? Moreover, the gravamen of Bulle's charge in the original unfair labor practice proceeding was that the Union, by the operation of 6 In a marginal reference, Respondent also noted that "Although several names were added to the amended specification , they only increase the totals by approximately $2,000 Respondent, therefore, does not deem it practical to challenge the specification on this ground even though the errors are clearly established in the record " 7 The Charging Party appended to its brief a document entitled "Employ- ers who have used the Local 18 hiring hall for referral of cement masons during the period from September 12, 1964 to date," excluding members of the Union County Building Contractors Association, in an apparent attempt to show that Respondent did not notify all of the users of the hiring hall. This document was never admitted into evidence, and thus its accuracy was not tested by cross-examination, so it cannot, of course, serve as probative evi- dence on this issue 85 its exclusive hiring hall, refused to refer him for employ- ment. Accordingly, even assuming that the Union did not notify all of the employers who utilized the hall that Bulle would henceforth obtain referrals on a non -discriminatory basis, I am persuaded that it satisfied the Board's mandate by its notification to Bulle, inasmuch as the Union rather than the employers controlled the dispatch of the men to the jobsites, and in light of the inherent probability that the employers never knew in advance the identity of workers who would receive referrals or, for that matter, Bulle's identity. Respondent asserts that backpay should be tolled after September 25, 1964, because Bulle failed and refused to avail himself of Respondent's referral services after this date and that, in any event, no backpay sum is due him after August 14, 1967, because Respondent unequivocally of- fered to refer Bulle for work on nondiscriminatory grounds after the latter date . I do not agree. In its Supplemental Decision and Order of June 14 , 1966,8 the Boardfound that Bulle visited the union hall in quest of employment on September 10, 11, 22, and 25, 1964, and that his search was thwarted by Business Agent Sal Migliore who refused to refer the latter for employment despite the fact that jobs were available on September 11, 22, and 25 of that year. Having made this finding, the Board then concluded that it would have been unnecessary for Bulle to continue to report to the hiring hall and request referrals because , in light of Migliore's studied discrimination against Bulle occasioned by his lack of membership in the Union , such requests would have been futile . Moreover, Bulle testified that he did in fact seek referrals from the Union in 1965 and 1966 by visiting the union hall, and that in August 1967 he again called at the hall and spoke to Migliore about obtaining a referral. On the latter occasion, Migliore told Bulle to "get the H out of his office" and instructed a member who was present to telephone a friend of Migliore's to refer the "bud- dy" to ajob. Jesse's son Edward Bulle, who is also a cement mason who works out of the jurisdiction of a sister local of the Union, testified that he observed his father standing outside of the union hall on several occasions since Septem- ber 25, 1964, and he recounted that, on one occasion, he visited the hall with Jesse when the latter asked Migliore for a referral. Migliore refused to dispatch Jesse and exclaimed "Get the hell out of my office. I want nothing to do with you." To meet the Bulles' assertions in this regard, Respondent summoned Raymond Powell, a member of the Union, and Business Agent Migliore to the stand . Powell testified that he had never observed Jesse Bulle at the union hall after September 25, 1964. However, Powell acknowledged that he noticed Bulle standing on the sidewalk outside the hall dur- in the 5-year period beginning on Se ptember 25, 1964. When queried as to whether he heard Migliore tell Bulle sometime in 1967 to "Get the H out of here,' Powell replied, "I wasn't up there at the time . I don't recall this ." Migliore testified that he never was approached by Bulle after Sep- tember 25, 1964, for a referral and emphatically denied that he ordered Bulle in 1967 to leave his office when the latter sought employment . When asked whether he ever saw Bulle on the street after September 25, 1964 , Mi ore replied, "I don't believe I have, because I go on a job, I go to my office, I ride around my different locations of jobs and that's it. I didn't see him on any job sites ." Jesse and Edward Bulle impressed me as sincere witnesses , and I credit their testi- mony and find that Jesse appeared at the union hall after September 25, 1964, in search of referrals but Migliore re- fused to send him out for work. s 159 NLRB 303, 309. 86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD With respect to Respondent's contention that its backpay liability should cease on August 14, 1967, Respondent relies on a recorded discussion during the original unfair labor practice hearing on that date when the possibility of settling the case was explored. In the course of a colloquy between the parties, counsel for Respondent offered to refer Bulle out of the Union's hall to any job which was then available, and to use the Union's good offices to obtain a union book for Bulle from a sister local in Rahway , New Jersey. Counsel remarked that, after this initial referral, Bulle would be on his own and thereafter his referrals would be afforded by the sister local. During his remarks, counsel stated that "The reason [Respondent] will not and cannot consider accepting Mr. Bulle back is ... he has been expelled from the local, he has exhausted all of his remedies within the International Union and has lost. Because of this litigation the member- ship of the local would be up in arms and would hang all of us in this room if we made a settlement which accepted him back into Local 18 after all of this aggravation." Bulle rejected this offer. I am not convinced that counsel's state- ment satisfied the terms of the Board's remedial order which required that Bulle have "full use of the [Union's] hiring hall facilities without discrimination in connection with referrals for employment." Based upon the Board and Court deci- sions, Bulle was entitled to claim referrals on a nondiscrim- inatory basis from the Union with no strings attached and for an unlimited period of time. The Union s offer to assign Bulle to another local which concededly did not operate a hiring hall, which did not even have a full time business agent, and which could lay claim to fewer jobs than Respon- dent hardly erases the effects of Respondent 's discrimina- tion against Bulle and, indeed, appears to compound it. Accordingly, I find and conclude that Respondent s offer of August 14, 1967, did not operate to toll its backpay liability after that date. In sum, I find and conclude that the backpay period terminated when Respondent notified Bulle and the em- ployers on November 10, 1969, that it would make its hiring hall available to him on a nondiscriminatory basis. B. Bulle's Entitlement to Hospital and Medical Benefits It is uncontroverted and I find that, at all times material herein, Respondent and the Union County Building Con- tractors' Association were parties to an `Agreement and Declaration of Trust" which was embodied in their collec- tive-bargaining agreement and was referred to therein as the welfare fund. Pursuant to the provisions contained in the welfare fund, members of Respondent and their dependents are entitled to indemnification for hospital and medical expenses incurred by them. To become eligible for hospital and medical benefits, the welfare fund provides as follows: You will become insured for Life, Accidental Death and Dismemberment and Accident and Sickness Insu- rance on the first day of the second calendar month immediately following a period of six or less consecu- tive calendar months in which: 1. You have worked at least 300 Credit Hours for Contributing Employers, and 2. You have worked at least 10 Credit Hours for Con- tributing Employers in the last calendar month of the Period. In "Appendix C" of the Amended Backpay Specification, the General Counsel has listed the hospital and medical expenditures incurred by Bulle commencing with the first quarter of 1965 and ending with the third quarter of 1969, which total $3,067.20. At the hearing, the parties stipulated that, if Bulle had worked the minimum number of hours prescribed under the welfare fund, he would be entitled to recover the amount set forth in appendix C. As chronicled heretofore in its brief the Respondent ac- knowledged that it was satisfied that the samples used by the General Counsel in the amended backpay specification to determine the average hours worked by all cement ma- sons during the backpay period (and, a fortiorari, the hours which Bulle would have worked during the same period absent the discrimination practiced against him), as well as the mathematics employed, were correct. In appendix A of the specification, there are set forth the average adjusted hours which were worked by all members of the Union who occupied the same classification, i.e., cement mason, as did Bulle during the backpay span. A perusal of schedule A clearly shows that, for each consecutive 6-month period beginnin with the first quarter of 1965 and terminating with the third quarter of 1969, Bulle would have worked in excess of 300 hours, the number necessary to qualify for hospital and medical benefits under the welfare fund. In light of the stipulation and Respondent's acknowledge- ments I find and conclude that Bulle is entitled to the sum of $3,067.20, as set forth in schedule C of the specification, for hospital and medical expenses incurred. C. Utilization of the Classification of Cement Mason for Computations In computing the average adjusted hours which Bulle would have worked between September 12, 1964 , and No- vember 10, 1969, the amended backpay specification utilized the average adjusted hours worked during that peri- od by eleven members of the Union who were classified solely as "cement masons."9 Compliance Officer Arthur P. West testified that he predicated his computations on this classification because Bulle also bore this classification. It is uncontroverted and I find that, in West's words, "In order to compute what he [Bulle ] would have earned, you have to consider him with others falling into the same class." West further testified and I find that during the investigation of Bulle's backpay claim he obtained a list of all members of Respondent which contained the classifications of bricklay- er-cement mason, plasterer-cement mason, and cement ma- son. West continued that he consulted with Bulle and his representative, Reverend Nicholson, and learned from them that it was the practice for the Union , pursuant to its labor contract with the Union County Building Contractors Asso- ciation, to give preference in referrals to individuals who were classified as bricklayers-cement masons or plasterers- cement masons, rather than to men classified solely as ce- ment masons, because an employer could more efficiently utilize the services of men who possessed multiple skills. Apart from argumentative assertion at the hearing, the Charging Party, Bulle, failed to adduce any probative evi- dence that this practice was not in fact followed. However, on motion by the Charging Party, I permitted him to summon a number of witnesses to elicit testimony to support his contention that the General Counsel erred in utilizing the eleven individuals classified solely as cement masons to determine Bulle's backpay, that the General Counsel should have instead selected men with multiple skills in making his computations, and that, by the use of the latter criterion, Bulle s net backpay award would there- fore be larger than that alleged in the Specification. This 9 Respondent concedes that the average adjusted hours worked by individ- uals classified solely as "cement masons" during the backpay period are an appropnate measure of Respondent's backpay liability. LOCAL 18, BRICKLAYERS foray proved abortive. Thus, for example, Louis Weiner, a bricklayer-plasterer-cement mason, testified that for several years prior to the hearing his gross annual earnings in the trade never exceeded $5,000. Walter Cleary, a plasterer- cement mason, testified that his annual earnings during this period approximated $4,000. By contrast, the individuals listed as cement masons in the Specification consistently earned on the average a substantially higher annual wage. Thus, from January 1 to November 10, 1969, the cement masons selected by the General Counsel earned, on the average, in excess of $9,000. In 1968, their average annual wage exceeded $8,000. Again, in 1967, they annually earned more than $7,000. In view of the foregoing, it is manifestly clear that if the annual earnings of Weiner and Cleary were translated into average adjusted hours for the years in ques- tion, and those hours were employed by the General Coun- sel in lieu of the hours listed for the cement masons, Bulle's backpay claim could not have exceeded that set forth in the specification. Accordingly, I find and conclude that the General Coun- sel did not commit error by calculating Bulle's backpay on the average adjusted hours worked by men classified solely as cement masons, and that the criterion which he adopted was appropriate. D. Bulle's Search for Employment and Availability for Work Respondent urges that Bulle should be denied, either in unspecified part or whole, backpay because he was less than diligent in seeking employment during the backpay period. In support of this thesis, Respondent claims that Bulle should have, but did not, (1) seek referrals out of Respondent's hiring hall during the backpay period; (2) search for work within the jurisdiction of sister locals; or (3) seek jobs outside of his trade. With respect to (1), I have heretofore found, as did the Board in its Supplemental Deci- sion and Order of June 14, 1966, that it was unnecessary for Bulle to continue to report to Respondent's hiring hall in quest of work after September 25, r964, because, in view of Respondent's persistent stance of discrimination against him, it would have been futile for him to have done so. Moreover, I have also found, based on the credited testimo- ny of Jesse Bulle and Edward Bulle, that Jesse did in fact appear at Respondent's hall in search of employment and that Business Agent Migliore refused to deal with him. I therefore find Respondent's first basis without merit. Regarding (2), Bulle testified that he sought work within the jurisdictions of sister locals on many occasions during the jurisdictions period and while, on some occasions he was successful in obtaining jobs, he frequently was denied em- ployment either because the locals gave preference to their own members when work was scarce or because he did not possess a union book from Respondent . Bulle's testimony in this regard was substantially corroborated by Respondent's own witnesses. Thus, William Iverson, Bus- iness Agent for Local 27 in Perth Amboy , New Jersey, testified that it was his practice to dispatch nonmembers of his local to projects only if all of his available men were gainfullemployed. Iverson further testified that Bulle "was at my hall a number of times where there was no work available." He also testified that Bulle worked approximate- ly 184 hours in 1968 and 561 hours in 1969 as a result of referrals from Local 27. Harry Jones, the part-time business agent for Local 36 in Rahway , New Jersey, testimonially 87 imately 210 hours in 1969. He also recalled that Bulle worked about 16 hours in 1964 after Respondent refused to refer Bulle because of his nonmembership. Jones accounted for the pauciy of hours worked in 1964 and 1967 on the ground that there was no work in the territory for the finisher." Walter Vohdin, the business agent for Local 16 in New- ark, New Jersey, testified that he could not recall whether Bulle visited him in 1965 to request a union book from Local 16. However, he stated that, if an individual who resided within the territorial jurisdiction of Respondent asked him for a book, "I would refer him to [Respondent's jurisdiction,1 where he lives." Vohdin further testified that the chances of a man obtaining a job in Local 16's jurisdiction who was not a member of that organization were "very poor," adding that "No matter what you did, they wouldn't know you and wouldn't hire you, nine out of ten chances." When asked what the prospects of a nonunion man would be if a friend who was a member of Local 16 sponsored the nonunion individual for a job in Local 16's jurisdiction, Vohdin rep- lied, "The friend would have to come in and say 'I have a nonunion man I would like to put to work,' and in all probability he would have difficulty. Let's not kid our- selves." Accordingly, on the basis of the foregoing and the entire record, I find no merit in Respondent's second con- tention that Bulle was derelict in his search for employment through sister locals. Finally, with regard to (3), Respondent urges that Bulle should be deprived of back ay because he failed to seek work outside of his cement-finishing trade. Apart from the fact that Bulle diligently spent his time in seeking gainful employment in his chosen field of work, as evidenced by the fairly substantial amounts of interim earnings reported in appendix C of the amended backpay s ecification, the re- cord establishes that Bulle did not confine his employment efforts to cement-finishing. Thus, Bulle testified without contradiction and I find that, for 2-1/2 months during the last quarter of 1967 and the first quarter of 1968, he worked for a concern in zero weather tearing down a house for which he earned in excess of $1,800. He also testified with- out denial that he shovelled snow for the Jersey Central Railroad, and earned other monies cutting down trees and cleaning gutters, all of which are reported as interim earn- ings in the specification. Furthermore, Bulle's testimony is undenied that he frequently stationed himself between 6 a.m. and 6:30 a.m. at the intersection of Magnolia and Catherine Streets in Elizabeth, New Jersey, where he would "shape up" for employment, and that contractors who would require his services would frequently hire him on the street. On the state of the record before me, I am not convinced that Respondent has sustained the burden of proving that any backpay should be denied Bulle because of the asserted inadequacy of his efforts in seeking interim employment. Respondent's hiring hall door was closed to him. Sister locals, while they occasionally parcelled out jobs to him after his repeated quests for referrals, admittedly hired out- of-area men only when their members were working and concededly looked with disfavor on the referral of nonunion help. In addition, Bulle did in fact search the labor market in his area and did not restrict his toil to cement mason work. I therefore find and conclude that Bulle should not be deprived of backpay on the grounds that he did not make an adequate search for employment or that he made himself unavailable for work during the backpay period." recounted that he seeks outside help only when his members are working. His records showed that Bulle had worked in 10 Both at the hearing and in its brief, Respondent made much of the 'the jurisdiction of his local for 72 hours in 1967, and approx- Continued 88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD E. The Deduction of Work Assessments At the hearing before me , it developed that Compliance Officer West and Respondent's counsel had previously dis- cussed the subject of offsetting from the gross backpay due to Bulle certain work assessments which were uniformly imposed on all members of Respondent based upon the number of hours worked for employers within its jurisdic- tion. During their colloquy , West inquired about the nature and amount of the assessment, and counsel replied that he was uncertain of the exact details . Whereupon, West ad- vised counsel that if the latter supplied West with the re- quested information he would take the work assessments into account in his drafting of the amended backpay specifi- cation or, alternatively , counsel could introduce the infor- mation as evidence in this proceeding as part of Respondent's case. In the course of the hearing before me, Respondent's counsel noted that all members were assessed 10 cents per hour for straight time worked, and 20 cents for overtime hours . West agreed that these assessments, if re- quired, should be imposed on the hours of straight and overtime work which -Bulle would have performe during the backpay period, and that the monetary amounts should be deducted from any backpay due him. Because of the presence of this issue , the undersigned Trial Examiner, on July 6, 1970, requested that the parties submit to him an agreed-upon monetary figure which would represent the amount of work assessments with which Bulle would have been charged . On July 14, 1970, the General Counsel responded. While stating that he had not entered into any agreement with Respondent "that any backpay award be abated by the amounts of work assessment fees to be calculated," the General Counsel did not contend that a procedure for exacting work assessments failed to exist dur- ing the backpay period, or that they should not be offset from the backpay due to Bulle. In his response , the General Counsel appended a list of the work assessment fees to be imposed for 19 or the 22 backpay quarters which comprise the backpay period, and which total$641.60.11 With respect to the remaining 3 quarters, the General Counsel main- tained that no work assess##^,ettts should be charged to those quarters because Bulle's' interim 'earnings exceeded his claimed backpay and hence no net backpay was due for those periods. On July 23, 1970, Respondent filed its re- sponse. In doing so, Respondent concurred in the General Counsel's computation of the work assessment fees in the sum of $641.60 for the 19 quarters . However, he asserted that the assessments should be imposed on the hours worked during the remaining 3 quarters despite the fact that no backpay was due to Bulle for those periods . No response was received from the Charging Party. In support of his contention that no work assessment fees should be deducted from Butte's backpay for the 3 quarters in which he earned more that he would have absent the discrimination visited upon him by Respondent, the Gener- al Counsel states that "To make the deductions suggested would be to make an assessment in favor of Respondent on the interim earnings of the Charging Party which would, in effect, penalize him for seeking employment elsewhere dur- circumstance that, while Bulle heeded Compliance Officer West's advisory to maintain records of his interim earnings during the backpay period, Bulle failed to compile records concerning his search for work. Bulle testified without contradiction and I find that , during the salient period, he main- tamed a book containing his interim earnings and a separate book logging his quest for work, and that a fire in a building in which the latter was stored destroyed this record ii See attached Appendix A. ing the period of the discrimination against him by the Respondent. Moreover, such a deduction would be contra- ry to establish [sic] Board precedent which requires that backpay be computed on a quarterly basis." In my opinion, the General Counsel misconstrues the thrust of Respondent's position in this regard. In calculating Respondent's backpay obligation to Bulle, the General Counsel has selected several individuals with the same job classification as Bulle possessed and predicted the quarterly earnings which the latter would have made upon the average adjusted hours which those individuals worked dur- ing the backpay quarters. It seems obvious that, had Bulle been referred for employment by Respondent during the 3 quarters on a nondiscriminatory basis, and had he worked the same number of adjusted hours for those periods as enumerated in "Appendix A" to the Amended Backpay Specification, he, like the other cement masons, would have been subjected to work assessments for those quarters. In short, the criterion for computation purposes is what Bulle would have actually earned during those periods as a result of his independent, gainful efforts. Indeed, the General Counsel seemingly recognizes this distinction for, with re- spect to the 19 other quarters, he has computed the work assessment fees based upon the number of average hours worked by the cement masons and not be the amount of net backpay to which Bulle would have been entitled during those spans of time. I therefore find merit in Respondent's assertion and I conclude that the sum of $76.90 12 should be added to the sum of $641.60, and that the total, $718.50, should be de- ducted from Respondent's net backpay liability. F. Summary I have heretofore found and concluded that the appropri- ate backpay period in this proceeding runs from September 12, 1964, to November 10, 1969. I have also found and concluded that the General Counsel did not err in utilizing the average weekly hours worked solely by individuals clas- sified as cement masons to compute Bulle's entitlement to backpay. I have further found and concluded that Bulle was not lax in his search for employment during the backpay period, and that he did not make himself unavailable for gainful employment in said period. Finally, I have found and concluded that Bulle was entitled to hospital and medi- cal benefits under the welfare fund in the amount of $3,067.20, and that $718.50 should be abated from the back- pay, a figure which represents the amount of work assessment fees Bulle would have been obligated to deduct from his weekly earnings during the 22 quarters material herein. In the amended backpay specification, the General Counsel avers that Respondent's obligation to make Bulle whole for the period from September 12, 1964, through November 10, 1969, would be discharged by a payment to him of $25,370.31, plus interest accrued to the date of pay- ment, minus the taxes withheld as required by Federal and state laws. As I have found and concluded that $718.50 should be subtracted from Respondent's backpay liability because that figure represents work assessment fees uniformly imposed on all members of Respondent for hours worked, I conclude that Respondent's liability to Bulle amounts to $24,651.81, plus accrued interest, minus applica- ble taxes. it The General Counsel is in apparent agreement that Bulle would have been taxed in the sum for the 3 quarters in question. LOCAL 18, BRICKLAYERS 89 III RECOMMENDATIONS I recommend that Respondent's obligation to make whole Jesse Bulle, the Charging Party, shall be satisfied by payment to him of the sum of $24,651.81, together with interest thereon at the rate of 6 percent per annum , calcu- lated in the manner set forth in Isis Plumbing and Heating Co., 138 NLRB 716, less any lawfully required tax withhold- ings. I recommend that the Board adopt the foregoing Find- ings, Conclusions, and Recommendations. APPENDIX A QUARTER AVERAGE HOURS WKD . WORK ASSESSMENT FEE NET BACK PAY (PER SPEC ) NEW NET BACK PAY DUE 1964 (3) 61 6.10 314.15 308.05 (4) 341 34.10 373.30 339.20 1965 ( 1) 288 28.80 1430 . 60 1401.80 (2) 303 30.30 782.60 752.30 (3) 242 24.20 63.40 39.20 (4) 297 29.70 1209.45 1179.75 1966 ( 1) 359 35.90 1793.38 1757.48 (2) 362 36.20 915.19 878.99 (3) 408 40.80 1411.90 1371.10 4) 305 50) (30 ( . ---- 1967 (1) 278 27.80 964.80 937.00 (2) 207 20.70 401.58 380.88 (3) 373 37.30 1275.90 1238.60 (4) 464 46.40 1048.21 1001.81 1968 ( 1) 231 (23.10 ) ---- ---- (2) 460 46.00 1764.25 1718.25 (3) 372 37.20 1501.90 1464.70 (4) 370 37.00 1360.85 1323.85 1969 ( 1) 320 32 . 00 1872.00 1840.00 (2) 537 53.70 2476.20 2422.50 (3) 374 37.40 1343.45 1306.05 (4) 233 (23.30) ---- ----