Local Union No. 38, Sheet Metal Workers

76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Local Union No. 38, Sheet Metal Workers' Interna- tional Association, AFL-CIO (Mid-Hudson Sheet Metal Inc.) and Robert John Green, Jr. Case 3-CB-1295 November 9, 1971 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND KENNEDY On August 3, 1971, Trial Examiner Benjamin K. Blackburn issued the attached Supplemental Decision in this proceeding. Thereafter, the General Counsel and Respondent filed exceptions and supporting briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. The Board has considered the record and the Trial Examiner's Decision in light of the exceptions and briefs and has decided to affirm the Trial Examiner's rulings, findings, conclusions, and recommendations with the clarification set forth herein. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Local Uniori No. 38, Sheet Metal Workers' Interna- tional Association, AFL-CIO, its officers, agents, and representatives shall make whole Robert John Green, Jr., by payment to him of the amounts set forth in the attached Trial Examiner's Supplemental Decision. In addition to the amounts to be paid directly to Green, Respondent shall pay the sum of $868.52 as a contribution on Green's behalf to its pension fund, and shall take such steps as may be necessary to restore whatever rights under the pension plan would have accrued to Green if his employment had continued without interruption during the period covered by said contribution. TRIAL EXAMINER'S SUPPLEMENTAL DECISION STATEMENT OF THE CASE BENJAMIN K. BLACKBURN, Trial Examiner: The backpay specification in this matter was issued on April 28, 1971. The hearing was held in Poughkeepsie, New York, on June 15. The Board's Order, issued on June 9, 1970, required Respondent to make the Charging Party, Robert John Green, Jr., whole for any loss of pay suffered by reason of Respondent's discrimination against him from June 20, 1969, until the date on which Respondent notified Mid- Hudson that it had no objection to Green's employment by Mid-Hudson. There is no dispute that the latter date 1971, the United States Court of Appeals for the Second Circuit enforced the Board's Order. The controversies which have given rise to this supple- mental proceeding to determine how much backpay is due Green concern (1) the basic formula used by the General Counsel in drafting the backpay specification; (2) the General Counsel's contention that Green is entitled to have paid to him the sums which Mid-Hudson would have contributed to Respondent's pension fund on his behalf during the backpay period; (3) Respondent's contention that Green failed to mitigate damages by seeking compara- ble work elsewhere; (4) Respondent's contention that Green was guilty of a willful loss of interim earnings beginning in March 1970, and (5) Respondent's contention that the value of Green's personal use of Mid-Hudson's truck during the backpay period should be added to his interim earnings. As developed in the sections which follow, I find for the General Counsel on the first, third, and fifth issues, for Respondent on the fourth. As to the second issue, I find that Green is not entitled to receive pension contributions in cash but is entitled to have Respondent make such credits to his account in its pension fund. Upon the entire record,' including briefs filed by Respondent and the General Counsel, and from my observation of the demeanor of the witnesses while testifying under oath, I make the following: FINDINGS AND CONCLUSIONS 1. THE FORMULA ISSUE When Mid-Hudson discharged Green on June 20, 1969, at the behest of Respondent, he was one of three leadmen employed by Mid-Hudson who received extra compensa- tion in the form of expenses. His working partner was John Versace. Mid-Hudson immediately promoted Versace to leadman to fill the vacancy created by Green's departure and gave Versace the extra compensation which Green had been receiving. It assigned another employee to work with Versace. Mid-Hudson rehired Green in the week ending July 16, 1969, as an estimator. The Regional Director has used the earnings of Versace, including overtime, from June 20, 1969, to July 1, 1970, as the measure of the gross backpay due Green. He has used Green's earnings from Mid-Hudson as an estimator as the measure of his interim earnings. Respondent contends that the proper measure of gross backpay is the average earnings of all journeymen sheet metal workers other than permit men employed by Respondent during the backpay period. The differences in gross backpay under the two systems are substantial. The Regional Director's formula prevails over Respon- dent's for two reasons. First, Versace replaced Green on an individual basis, as his accession to Green's leadmanship evidences. Therefore, Versace did the work Green would have done and earned the money Green would have earned but for the discrimination against Green. Versace's earnings are a better measure of what Green would have earned even if Respondent's formula did not contain a basic flaw. Second, Respondent's formula is based on an invalid assumption. Versace worked through the entire backpay subsequently turned out to be July 1, 1970. On March 5 , 1 The General Counsel's motion to correct transcript is hereby granted 194 NLRB No. 17 LOCAL UNION NO. 38, SHEET METAL WORKERS period. Respondent would average the earnings of journeymen sheet metal workers who were hired after a quarter began or left before it ended with those who worked a full quarter. There is no reason to find that Green would not have worked through the entire backpay period if he had not been discriminated against. Therefore, there is no reason to penalize him by comparing his constructive earnings with those of men who worked less. I find that the Regional Director's formula for computing gross backpay is proper insofar as it does not include sums which Mid-Hudson would have paid into Respondent's pension fund on Green's behalf. II. THE PENSION ISSUE Mid-Hudson pays to Respondent 5 percent of each employee's earnings, less vacation pay, as a contribution to Respondent's pension fund. At the hearing, the backpay specification was amended to increase gross backpay by the sums which Mid-Hudson paid on Versace's earnings, as follows: Increase in Gross tr. Backpay For Pension 1969-2 $ 20.77 1969-3 185.68 1969-4 207.36 1970-1 178.15 1970-2 276.56 Total 868.52 The Regional Director contends that this sum should be paid to Green on the theory that it was part of the total sum he would have earned if he had not been discriminated against because it was, in fact, part of the total Versace earned during the backpay period. That contributions to a pension fund by an employer on behalf of an employee who has been discriminated against are properly included in backpay is settled. Fibreboard Paper Products Corporation, 180 NLRB No. 33 (TXD); Finishline Industries, Inc., 181 NLRB No. 118. That the contributions should be paid to the discriminatee and not to the fund in the situation where the union whose fund is involved is the party who has been ordered to make the discriminatee whole is not settled. Both Fibreboard and Finishline, supra turned on the details of the pension fund involved. There are no details in this record about how Respondent's fund is administered or employees obtain a vested interest in it. Finishline, supra involved the pension fund of another local of Respondent's international union. There, the decision that payments must be made into the fund on behalf of all four discriminatees turned on the fact that three had not yet suffered a break in employment in the industry sufficiently long to cancel their interest in the fund and the conclusion that permitting the employer to escape his liability to the fund for any of the four, including the one who had suffered such a break, would place a premium on delay. The coincidence that the same international union is involved in both cases does not justify an inference that Respondent's pension fund is identical with the one in 77 Finishline. Even though more than 2 years have elapsed in which Green has not worked as a journeyman sheet metal worker and he has made no effort to be reinstated as a member by Respondent, it may well be that he has not yet lost all prospects, present or future, of qualifying for benefits under Respondent's plan. On the other hand, if he no longer has any such prospects, it does not follow that he should receive, in cash, from Respondent the sums that would have been paid into the fund on his behalf. If he had not been discriminated against, had worked for Mid- Hudson during the backpay period with contributions in the amount at stake made to the fund on his behalf, and had thereafter lost his interest in the fund because he failed to meet its provisions for qualifying as a beneficiary, the sums paid on his behalf would have been lost to him. If he has, in fact, lost his interest in Respondent's pension fund, requiring Respondent to add a credit to his nonexistent account is an exercise in paperwork futility. However, the record here permits no findings either way. Therefore, I find that Respondent is liable for the sum of $868.52, not to Green but to its own pension fund as' a credit on Green's behalf. III. THE FAILURE TO MITIGATE ISSUE Respondent argues that Green is entitled to no backpay because he failed to seek work as ajourneyman sheet metal worker with some employer other than Mid-Hudson. Respondent's position misconceives the rule relating to a discrimmatee's duty to mitigate damages by seeking work. Green returned to Mid-Hudson's payroll as an estimator with no unreasonable delay after Respondent's discrimina- tion against him at an hourly rate of pay higher than he had been receiving as a leadman working in the sheet metal trade. If Green had not taken this job, he might well have been justified in limiting his search for a job to his own trade. The Madison Courier, Inc., 180 NLRB No. 118. By taking a job outside his trade, Green did more than the rule required and thus did, in fact, mitigate his damages. IV. THE INTERIM EARNINGS ISSUE This is the only phase of this case in which a credibility conflict arose. Green's rate of pay as an estimator was $7 an hour. Arthur Wigand, president of Mid-Hudson, testified that Green came to him in March of 1970 and requested Wigand to reduce his rate to $4.50 an hour and to pay $2.50 an hour to Mrs. Helen Mullen. Green explained that he was going to have Mrs. Mullen help him with the paperwork ,involved in his job. Green denied having any such conversation with Wigand. Mid-Hudson's pay records reveal that Green's hourly rate was cut from $7 to $4.50 and that Mrs. Mullen was added to the payroll at $2.50 an hour, both in the week ending March 18, 1970. Green's explanation for the coincidence in the records was: The only explanation I would have for that fact is, the same time this corporation status was set up and Helen Mullen was appointed about the same time to the corporation and why mine went down-as an estima- tor, I was putting so many hours into the shop and then Mr. Wigand had told stones around that I had bid a couple of jobs that went sour, so I refused to estimate jobs and therefore, my salary was reduced to $4.50 an hour at that time. Green's reference to "this corporation status" relates to 78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the undisputed fact that Mrs. Mullen became Respondent's corporate secretary sometime in late April 1970. Also undisputed are the fact that, as secretary of the corporation, Mrs. Mullen was given authority to do corporate acts such as sign checks in conjunction with other officers and the fact, testified to by Wigand, that Mrs. Mullen did no work for Mid-Hudson and came to Mid-Hudson's office but once. As to the crucial conversation between them in March 1970, I credit Wigand over Green. I do so, primarily, because of the fact that Mrs. Mullen did not become secretary of the corporation in March but in April. On the basis of Wigand's credited testimony, I find that Green earned $4.50 an hour rather than $7 during the last 2 weeks of the first quarter and the entire second quarter of 1970 at his own request. The efforts to prove, on Green's behalf, that Mrs. Mullen was being paid by Respondent in her capacity as secretary of the corporation thus become immaterial. Even if true (and I do not find it to be true), it would not gainsay the fact that Green's failure to earn $2.50 more per hour from the week ending March 18, 1970, through the end of the backpay period was his own doing and, therefore, a willful loss of interim earnings. Conse- quently, I have added $2.50 per hour to Green's earnings for the week ending March 18, 1970, and thereafter through June 30, 1970, to determine the proper interim earnings, VI. THE AMOUNT OF BACKPAY DUE In summary, the proper computation by quarters of the amount of backpay due Robert John Green, Jr., before interest is as follows: Gross Net Interim Net Quarter Backpay Earning Back a 1969-2 $ 448.58 $ 62.11 $ 386.47 1969-3 4318.79 3108.00 1210.79 1969-4 4170.96 3535.00 635.96 1970-1 4388.79 3274.50 1114.29 1970-2 5920.26 3605.00 2315.26 Total with the following results: $5662.77 Qtr RD's Inter. Earnings Proper Inter. Earnings I find that the sum of $5662.77, plus interest at the rate of 6 percent per annum computed in the manner set forth in Isis Plumbing & Heating Co., 138 NLRB 716, until the date . 1969-2 $ 62.11 $ 62.11 of payment of all backpay, is due Green from Respondent. Payment of this sum shall be less any taxes required to be withheld by Respondent under Federal, state, and local 1969-3 3108.00 3108.00 law. 1969-4 3535.00 3535.00 I also find that Respondent must credit the sum of 1970-1 3089.50 3274.50 $868.52 to Green's account in its pension fund in order to 1970-2 2272.50 3605.00 comply with the Board's Order in this case. V. THE TRUCK ISSUE As an estimator, Green used Mid-Hudson's pickup truck in his work. He had exclusive use of the truck. He drove it between his home and Mid-Hudson's office. He kept it at his home overnight. Prior to his discharge, when he was a leadman, he used the truck an estimated 85 percent of the time. Other employees used it the other 15 percent. In that period, also, he used the truck for transportation between his home and work. Since there is no substantial difference in the amount of personal benefit which Green got from use of the truck in the two periods, the fact that Green was able to drive to and from work in it does not constitute additional compensation to him as an estimator. If he had not been discriminated against, he would have used the truck in essentially the same manner as a journeyman sheet metal worker throughout the backpay period. Therefore, Respondent's contention that the fair value of Green's use of the truck in driving to and from work during the backpay period must be added to his interim earnings is without merit.