Painters Local 985

PAINTERS LOCAL 985 323 Painters, Decorators, and Paperhangers of America, Local No. 985 (W. F. Sahualia & Co., Inc.) and Herbert Lee Wallace, Sr., an Individual. Case 15-CB-929 November 24, 1971 SUPPLEMENTAL DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On December 9, 1970, Trial Examiner Maurice S. Bush issued the attached Supplemental Decision in this proceeding. Thereafter, Respondent filed exceptions and the General Counsel filed a brief in answer thereto. The Respondent excepted, inter alia, to the Trial Examin- er's failure to: (1) include the period of July 1 through July 27, 1968, in the computation of gross and net backpay for discriminatee Luther Wallace, for the third quarter of 1968; and (2) take into account testimony of discriminatee Willie Young showing that his interim earnings amounted to $375 rather than $100 per quarter, as found by the Trial Examiner. Upon the Board's consideration of the foregoing, its Associate Executive Secretary issued, on March 29, 1971, an Order remanding the proceeding for the purpose of receiving additional evidence relevant to the issue of Luther Wallace's gross earnings during the third quarter of 1968, his interim earnings, and net backpay due for that period; and to consider the testimony of Willie Young as to his greater amount of interim earnings than those specified in the backpay specification and to recompute his interim earnings and net backpay based thereon, if appropriate. Decision was reserved by the Board on other exceptions of the Respondent. Pursuant to such Order a further hearing was held before Trial Examiner Maurice Bush who thereafter issued his attached Second Supplemental Decision on August 25, 1971. Thereafter the General Counsel filed a brief in support of that Decision. 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 above Trial Examiner's Decision in the light of the excep- tions and briefs. In the absence of exceptions to the Trial Examiner's Second Supplemental Decision,' we adopt, pro forma, the findings of the Trial Examiner as contained in his Second Supplemental Decision. Accordingly, the period July 1 to July 27, 1968, was properly excluded from the backpay computation of Luther Wallace for the reasons stated by the Trial Examiner in that Decision, and Willie Young's backpay was properly readjusted in accordance with the stipulation of the parties. Inasmuch as the above Order of remand reserved decision on other exceptions of the Respondent we have now considered these exceptions. Upon consid- eration thereof, we find no merit therein, and accordingly adopt the findings, conclusions, and recommendations of the Trial Examiner as contained in his first Supplemental Decision as modified by his findings, conclusions, and recommendations con- tained in his Second Supplemental Decision. SUPPLEMENTAL ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Painters, Decorators, and Paperhangers of America, Local No. 985, its officers, agents, and representa- tives, shall pay to the employees involved in this proceeding, as net backpay herein determined to be due, the amounts set forth below: Herbert Lee Wallace, Sr. $1,175.00 Willie Young 2,965.00 Luther Wallace 725.00 In addition to the above amounts the Respondent shall pay interest at the rate of 6 percent per annum computed on the basis of each quarterly amount of net backpay due, less any tax withholding required by law. 1 The Order of remand specifically provided that, following the service of such Decision upon the parties, the provisions of Section 102.46 of the Board's Rules and Regulations, Series 8, as amended , would be,apphcable. No exceptions were filed to this Decision by any party herein. ' TRIAL EXAMINER'S SUPPLEMENTAL DECISION STATEMENT OF THE CASE MAURICE S. BUSH, Trial Examiner : This backpay proceeding stems from an unfair labor practice case tried before Trial Examiner Frederick U. Reel. By decision dated May 13, 1969, Examiner Reel found the above-named Union in violation of Section 8(b)(1)(A) and (2), of the National Labor Relations Act by its refusal to refer Negro employees from its hiring hall for work as painters to jobs with contractor W. F. Sahualla, hereinafter called Sahualla, solely because of the fact of their race. The Charging Party in that proceeding was Herbert Lee Wallace, Sr. He was the only Negro specifically identified by name as a victim of racial discrimination in Trial Examiner Reel's decision. All other such racially affected employees are identified in the decision generically as Negroes "similarly situated." As here pertinent to the instant backpay proceeding, Trial Examiner Reel in his decision recommended an order 194 NLRB No. 49 324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD requiring the Union not only to make Wallace whole for any loss he sustained because of the discrimination against him due to his race but also required the Union to make whole "any other employees similarly situated for losses they sustained as the result of the Respondent's [the Union's] discrimination against them" for, the same reasons of race. These heretofore unidentified employees are identified for the first time in the "Backpay Specification" herein. The Board on June 17, 1969, in the absence of exceptions, adopted Trial Examiner Reel's decision and recommenda- tions and accordingly ordered backpay by the Union for Wallace and "any other employees similarly situated." On February 17, 1970, the United States Court of Appeals for the Fifth Circuit entered its judgment enforcing in full the Board-adopted decision of Trial Examiner Reel, including the backpay provision for Wallace and any other employees similarly situated.' On August 4, 1970, the Acting Regional Director for Region 15 of the Board issued a "Backpay Specification" for the said Herbert Lee Wallace, Sr., and in addition for those individuals determined to be similarly situated, namely, Luther Wallace and Willie Young. On August 13, 1970, the Respondent Union filed its answer to the "Backpay Specification." General Counsel filed a motion to strike the answer and for judgment on the pleadings which was referred for ruling to Trial Examiner Charles W. Schneider. Trial Examiner Schneider, in an order dated September 16, 1970, denied the motion but issued an order deeming paragraphs 4, 5, 6, and 7 2 and the beginning date of the backpay periods stated in paragraphs 9(A), 10(A), and 11(A) of the "Backpay Specification," as admitted, despite denials, on the ground that the "correctness of those allegations is a matter within the knowledge or opinion of the Respondent; no explanation is offered to support the Respondent's general denials in such respects and the Respondent states no counter premises or formulae." The order further precluded the Union "from introducing any evidence controverting" such paragraphs. However, with respect to certain other allegations of the "Backpay Specification," Trial Examiner Schneider ruled that the Union's denials thereof on the ground of lack of knowledge was "now considered to be adequate to raise issue in those respects."3 These issues will be identified in the next section of this Decision. The case was tried before the Trial Examiner on October 1, 1970. A brief filed by General Counsel on October 26, 1970, has been carefully reviewed and considered. The Respondent Union did not file a brief. Upon the entire record and from his observation of the witnesses, the Trial Examiner makes the following findings, conclusions, and recommendations: 1 Trial Examiner Reel's decision, the Board's order, and the Sixth Circuit's judgment enforcing the Board order are set forth in General Counsel's Exhibits 1(a), (b), and (c), respectively. 2 Par 8 of the "Backpay Specification" reads, "Luther Wallace and Willie Young have been added to the list of discriminatees in conformity with the Board's order enforced by the Court that Respondent make whole not only Herbert Lee Wallace, Sr., but any other employees similarly situated." In his order, Trial Examiner Schneider states that this paragraph is also deemed admitted by the Union, but this appears to be an obvious typographical error because in an earlier part of Trial Examiner A. The Issues The issues herein as determined from the pleadings and Trial Examiner Schneider's aforementioned order are as follows: 1. Whether the Board's order of June 17, 1970, which directs backpay for Herbert Lee Wallace, Sr., andfor "any other employees similarly situated" is applicable to Luther Wallace and Willie Young as "similarly situated" employ- ees. This in turn involves the factual question of whether Luther and Willie Young, like Herbert Lee Wallace, Sr., were discriminated against by the Union in the matter of job referrals to a Sahualla painting project because they are Negroes: 2. Whether the termination dates of the backpay period for each of the three above-named employees is March 31, 1969, as alleged in the "Backpay Specification" (It should be noted that, under Trial Examiner Schneider's aforemen- tioned order on motion to strike answer to backpay specification and for summary judgment, the beginning dates' of the backpay periods for the three employees are deemed admitted as of certain dates as set forth in the order and that the Union was precluded by the order from introducing any evidence controverting said dates. These dates are July 1, 1968, for the two Wallaces, and October 1, 1968, for Willie Young.) 3. Whether the earnings of the four selected and named painters for indicated quarters, as set forth in the "Backpay Specification," are accurate and correct for the purposes of determining the backpay due the two Wallaces and Young in the backpay period here involved under a formula deemed admitted by the Union under Trial Examiner Schneider's order for such purposes. 4. Whether the amounts of gross and net backpay due the two Wallaces and Young as set forth in the "Backpay Specification" are correct. B. Applicability of the Board's Order to Luther Wallace and Willie Young4 As heretofore found by Trial Examiner Reel, the Union, a labor organization under the Act, represents painters in the construction industry in the area of Alexandria, Louisiana. Among the employers with whom it has contracts is the aforementioned W. F. Sahualla Company, Inc., a Louisiana corporation with headquarters at Lake Charles, Louisiana, where it is engaged in business as a painting contractor. As stated by Trial Examiner Reel, Sahualla, at the times here pertinent, was engaged in painting the Proctor and Gamble plant in Pineville, Louisiana, near Alexandria. The job involved painting industrial steel, and the rate of pay was substantially higher than that paid for painting other Schneider's order he states that "the applicability of the Board's order to Luther Wallace and Willie Young. . is now considered to be adequate to raise issue . ." Thus the allegations of par 8 will be deemed in issue herein 3 G.C. Exh. 1(q) is a copy of TX Schneider's "Order on Motion to Strike Answer To Backpay Specification for the Summary Judgment." 4 Official notice is taken of the findings, conclusions, and orders of Trial Examiner Reel in his aforementioned decision which was adopted in full by the Board under its order of June 17, 1969, and enforced in full by the Fifth Circuit in its judgment dated February 17, 1970. PAINTERS LOCAL 985 325 surfaces. Under the wage schedule prescribed in the Union's standard contract, the scale for ordinary painting was $3.25 per hour for the year commencing June 13, 1967, and $3.40 for the next 6 months, whereas the hourly rates for painting industrial steel were $4.50 and $4.75, respectively. Under the terms of the collective-bargaining agreement, Sahualla agreed in effect to hire all its I painters with exceptions not here pertinent by referrals from the Union. The painting jobs on the Proctor and Gamble plant were sought after by painters because of the high rate of pay. During the backpay period here involved, employment opportunities for painters in the Alexandria area were high. Although Herbert Lee Wallace, Sr., made a number of requests to the Union for referrals to the Sahualla project at the Proctor and Gamble plant, he was not referred for work on that project until after he had filed an unfair labor charge against the Union which lead to the issuance of a complaint and the eventual hearing before Trial Examiner Reel and his decision thereon as above described which in due course became the decision of the Board. ` In his decision, Trial Examiner Reel found that, "The ultimate facts, therefore, are that the Union, although admitting Wallace to membership, ... deliberately refused to -refer him or any other Negro to the Sahualla job, and indeed warned Sahualla when Wallace and other Negroes were ready for referral. . . ." (Emphasis supplied.) Under his "Conclusions of Law," Trial Examiner Reel found that the "Union, by refusing to give job referrals to Negroes in the course of administering its contract with Sahualla, restrained or coerced them in the exercise of their right under Section 7 to be fairly represented, and caused or attempted to cause Sahualla to discriminate against them in violation of Section 8(a)(3), thereby engaging in unfair labor practices affecting commerce within the meaning of Section 8(b)(1)(A) and (2), and Section 2(6) and (7) of the Act." (Emphasis supplied.) Thus Trial Examiner Reel's Board-adopted decision establishes that the Union unlawfully discriminated against all Negroes applying for referrals to the Sahualla project at the Proctor and Gamble plant by refusing them referrals solely because they are Negroes. To remedy this situation, Trial Examiner Reel ordered the Union to make all such Negroes whole for any losses they sustained as a result of racial discrimination although their identities were not established in the record before him and remained to be established in a backpay proceeding. This requirement was imposed on the Union in addition to the requirement that it make Herbert Lee Wallace, Sr., the Charging Party, whole for the losses he sustained as a result of the racial discrimination against him. The precise wording of the Order requiring backpay for Herbert Lee Wallace, Sr., and all other Negroes refused referrals to Sahualla is as follows: Make whole Herbert Lee Wallace, Sr., and any other employees similarly situated, for losses they sustained as the result of the Respondent's discrimination against them, computing the amounts due in the manner set 5 However, under Trial Examiner Schneider's aforementioned order, the Respondent Union is deemed to admit that Young's backpay period began forth in the portion of the Trial Examiner's Decision entitled "The Remedy." (Emphasis supplied.) Similarly the notice which the Union was required to post to all of its members and "to all persons applying for job referrals" states: WE [the Union] WILL pay Herbert Lee Wallace, Sr., any sum due him arising out of our failure to refer him, until February 1969, to a job at W. F. Sahualla & Company, Inc., and WE WILL similarly pay any other persons for losses they suffered from failures to refer them for similar reasons. (Emphasis supplied.) In the "Backpay Specification" herein, the Acting Regional Director for Region 15 identified the persons described in Trial Examiner Reel's decision as "any other persons similarly situated" as Luther Wallace and Willie Young. The identification was established by an investiga- tion conducted by the Office of the Regional Director for Region 15 as evidenced by the testimony of Sloan McCloskey, an attorney for the Region. The investigation produced affidavits taken from Luther Wallace and Willie Young. The testimony of these two men show that they are black men. The Union does not deny that they are Negroes. Luther Wallace, a painter, is a brother of Herbert Lee Wallace, Sr. Luther, like his brother, had been a member in good standing of the Union at all times here pertinent. His undenied testimony shows that he applied to the Union for referrals to Sahualla for work on the Proctor and Gamble plant "quite a few times because I really wanted to go out there," but was not successful in getting a referral until February 20, 1969. The Union offered no testimony to rebut the allegations of the "Backpay Specification" (par. 8) and the testimony thereunder that Luther Wallace had "been added to the list of discruninatees in conformity with the Board's order enforced by the Court that Respondent make him whole" as an employee "similarly situated" to his brother Herbert Lee Wallace, Sr., who as found was a victun of racial discrimination in the matter of referrals by the Union to Sahualla. In other words the Union offered no defense that it refused Luther Wallace referrals to Sahualla a number of times because he is a Negro prior to February 20, 1969, when it finally gave him a referral to that contractor. With respect to Willie Young, another painter, the Union also failed to offer any testimony to rebut the allegations of the "Backpay Specification" and the testimony thereunder (par. 8) that Young had "been added to the list of discriminatees in conformity with the Board's order enforced by the Court that Respondent make him whole" as an employee "similarly situated" to Herbert Lee Wallace, Sr. Young is a second cousin.to the two Wallace brothers. Young's uncontroverted and credited testimony shows that starting with mid-October 1968,5 he requested referrals from the Union to Sahualla's project at the Proctor and Gamble plant, but never received a referral to that project. Respondent does not deny refusals to refer Young out to the Proctor and Gamble plant, but asserts the following defenses under its answer for such refusals: Willie Young applied for membership in the respondent on October 1, 1968. 326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union on August 13, 1968 but was never admitted because he never paid the initiation fee and/or dues; that nevertheless he was referred on two occasions, on August 23, 1968, and on September 6, 1968, but could not stay on the job to which he had been referred because he was unable, through inability, to perform the work. Willie Young never applied for referral any place subsequent to September 6, 1968, and has never become a member of the respondent union. With respect to the defense that Young "never applied for referral any place subsequent to September 6, 1968," the Union's own records (G.C. Exh. 4) show the contrary. The evidence herein shows that as late as October 16, 1968, which was after Young first applied for a referral to the Proctor and Gamble project, the Union instead sent him to a lower-paying paint job on a new high school in Alexandria. In addition, Young's uncontradicted testimony shows that after being laid off from that job he kept going to the union hall every day for referrals, but never received a referral to the Proctor and Gamble plant. The record also fails to sustain the Union's contention that it had properly refused to refer Young, a nonunion applicant, to Sahualla's Proctor and Gamble project because under its bylaw he had not taken the qualifying steps towards membership in the Union. The bylaws of the Union provide that an applicant for membership in the Union can qualify for membership, subject to the final approval of its Examining Board, by making an initial payment of $20 towards the Union's initiation fee of $150 for membership. The bylaws further provide that upon initial approval of the examining board an applicant is eligible for referrals by the Union to jobs "provided he had given an order on employer for Three Dollars ($3.00) per day each day he works until fee is 'paid in full." An applicant has 90 days from the date of his application to pay the entire initiation fee unless given an extension of time. If he is rejected, the applicant forfeits the sum paid working on permit. It is established through the testimony of the Union's current business agent, John B. McNeal, that Young paid his initial $20 towards the Union's initiation fee on August 8, 1968, and thereafter paid an'additional $51 towards the fee by payments of $3 per day for 17 days of referrals to employers, or a total of $71 on the $150 initiation fee before the 90-day period for the payment of the full initiation fee would have lapsed on November 8, 1968, unless extended by the examining board. The referrals were to employers other than Sahualla at its Proctor and Gamble project. These facts clearly show that Young was eligible for referrals under the Union's own bylaws. Thus the Union's contention that Young was not eligible for referrals under its bylaws is similarly without merit. The Union's final defense for not giving Young referrals to the Proctor and Gamble project is that he "could not stay on the job to which he had been referred because he was unable, through inability, to perform the work." As set forth in the Respondent's answer, this defense appears to 6 G C. Exh. 4, a letter by the Union' s business representative to the Board, shows that sheetrock taping is not a common skill possessed by all otherwise qualified painters. In pertinent part that letter reads, "On September 9, 1968, Herbert Wallace, Luther Wallace, Jr., and Willie Young [the here involved discriminatees] were referred to ... the England Air assert that Young was generally incompetent to perform the work expected of a painter. The record, however, shows that this defense relates only to one particular phase of the work a painter may be called upon to do. This is putting tape over the cracks of sheetrock panel walls, prior to the painting of the sheetrock, so that when painted the cracks between the sheetrock panels would not appear and the wall would look like one continuous surfaces The evidence shows that Young was assigned to one such assignment and found to lack the skill and experience required for the job and, therefore, sent home after being on the job only 2 hours. However, it is' common knowledge that the great bulk of a painter's job is painting and not taping sheetrock. Moreover, the referral, Young requested to the Sahualla Proctor and Gamble project was a painting job, not a taping job. No claim is made by the Union and no evidence was adduced to show that Young was not a competent wielder of the paint brush. On the contrary the record shows that upon referral by the Union he was assigned to a painting job on the United States Post Office at Alexandria for the painting of its exterior for a period of some 4 or 5 weeks until the job was completed, with no apparent complaints about his work. Similarly he had a referral to the Alexandria High School to paint metal frames; he was laid off from that job at the end of 2 days only because that painting job had been completed. Thus there is no evidence that Young was not reasonably competent to paint for Sahualla on the Proctor and Gamble project if he had had a referral to Sahualla. In summary, the record shows that the three reasons advanced by the Respondent Union for not referring Young to the Proctor and Gamble project are spurious. As the Union has not adduced any evidence to controvert the Regional Director's identification of Young as one of the Negroes discriminated against in the matter of job referrals, that identification is here affirmed and found. C. The Termination Date of the Backpay Period in each Case The "Backpay Specification" sets forth both the begin- ning and ending dates of the backpay period for each of the three discriminatees here involved. Under Trial Examiner Schneider's aforementioned order on the motion to strike the answer and for summary judgment, the beginning dates of the backpay period are deemed admitted as alleged in _ the "Backpay Specifica- tion." These dates are July 1, 1968, for the two Wallaces, and October 1, 1968, for Young. Trial Examiner Schneider, however, ruled that the termination dates of the backpay period for each of the discriminatees are in issue under the pleadings. These are alleged by the "Backpay Specification" to be March 31, 1969, for each of the three discriminatees. The Union does not contest the evidence that the Proctor and Gamble job was finished on March 31, 1969, but it appears to contest that date as the termination date of the Force Base . . as sheetrock finishers . . . . The company was using the Ames tools, to do this work, none of the above-named three had any working knowledge of these tools but the company agreed to teach them their use and pay them the journeyman scale of $3 .40 while doing so. . . PAINTERS LOCAL 985 327 backpay period for Willie Young and Herbert Lee Wallace, Sr. The Union's varying positions with respect to the backpay termination date for Young has been disposed of above. Summarized, the record is clear that Young's backpay period began on October 1, 1968, and ended on March 31, 1969, when the painting job on the Proctor and Gamble plant was finished. With respect to Herbert Lee Wallace, it appears that the Union is contending that his backpay period ended on December 27, 1968, based upon a letter (Resp. Exh. 1) dated February 5, 1969, by the Union's then business agent James Nugent to Wallace, reading as follows: Dear Mr. Wallace: Mr. Jess B. Worthington advised me on December 27, 1968, that he called you about returning to work at the housing units at England Air Force Base on December 27, 1968, but that you did not return because your attorney advised you not to. Mr. Worthington has indicated to me that when you are physically able he is willing to take you back on that job When your attorney and your physical condition permit, if you will come by my office I will give you a referral slip to return to that job, or whatever job-that is available at that time or becomes available thereafter. As the Board's Order clearly requires the Union to refer Herbert Lee Wallace, Sr., to Sahualla's Proctor and Gamble project and the above-noted offer completely fails to meet this requirement, it is found that the letter does not have the effect of tolling the backpay period for Herbert Lee Wallace, Sr., prior to March 31, 1969, when the Proctor and Gamble paint job was finished. In summary it is found and concluded that the termination date of the backpay period for each of the three discriminatees is March 31, 1970, as alleged in the "Backpay Specification." Although the backpay period for the two Wallaces are from July 1, 1968, through March 31, 1969, it should be noted that under the computation of their backpay in the "Backpay Specification" they are not given backpay for periods within the backpay period in which they were "either unavailable for work or otherwise exempt from backpay." D. The Factual Issue as to the Accuracy of the Earnings of Selected Employees Whose Experience During the Backpay Period were Considered Typical The formula for determining the backpay due to each of the three discriminatees here involved is set forth in the "Backpay Specification" as follows: 1. An appropriate measure of the quarterly earnings each of the discriminatees would have earned in the average weekly wage computed by the calendar year quarter for the painters referral by Respondent to the W. F. Sahualla & Company, Inc., job at the Proctor and Gamble plant located in Pineville, Louisiana. calendar quarter basis in accordance with the policy expressed in F W Woolworth Company, 2. Because of the large turnover involved, the following four painters were selected to compute the aforementioned average based upon their employment in the three calendar quarters involved.* They are: Paul J. Sands, Tommy Maxwell, Obie Edward and Grady Tullis. *These employees were employed during the entire backpay. 3. The average weekly wages earned by the four aforementioned painters in the third ' and fourth quarters of 1968 and the first quarter of 1969 are set forth in Appendix A [of the "Backpay Specification"]. 4. The quarterly gross backpay* for eachdiscriminatee was determined by multiplying the average weekly wage as set forth in Appendix A [of the "Backpay Specification"]. by the number of weeks they were discriminated against in their employment. *Gross backpay is the amount of money the discnminatees would have earned from employment through referrals from Respondent Union if the discrimination had not occurred This includes wages, bonuses and any other elements of reimbursement to employees which are paid to employees by the employer. [This is an edited footnote from the "Backpay Specification "I 5. 'Calendar quarter net backpay is the difference between calendar quarter gross backpay and calendar quarter net interim earnings. 6. The total net backpay due each discriminatee is the sum of the calendar quarter amounts of the net backpay due him. 7. The total net backpay due does not include interest at the rate of 6 percent per annum as set forth in Isis Plumbing & Heating Co., 138 NLRB 716. Except for the allegations of paragraph 3 above, the Respondent Union by its pleadings admits, or under Trial Examiner Schneider's aforementioned order, is deemed to admit all of the above constituent elements of the formula for determining the backpay due to the three discrimina- tees. As the Union denies the allegations of paragraph 3, the only issue under the formula is the correctness or accuracy of the earnings of the four typical painters in the third and fourth quarters of 1968 and the first quarter of 1969 as ascribed to them in Appendix A of the "Backpay Specification." The record shows that earnings of the four typical painters for the involved quarters as set forth in Appendix A were taken from the books and records of Sahualla. The Union offered no evidence to show that these earning figures were not correct. The Trial Examiner accordingly finds and concludes that such earning figures are correct and accurate. E. The Net Backpay Due to the Discriminatees Based on the above-described formulae, the "Backpay Specification" alleges net backpay due 7 to the discrrnina- tees as follows: *In accordance with the Board's order enforced by the Court, the backpay of the persons to be made whole has been computed on a 7 The details of the computations showing the above amounts of net backpay due to each of the discriminatees are shown in Appendices B, C Herbert Lee Wallace, Sr. $1,175.00 Luther Wallace 725.00 and D of the "Backpay Specification." 328 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Willie Young 3,515.00 circumstances involved.' National Labor Relations TOTAL $5,415.00 Board v. Ozark Hardwood Co., 8 Cir., 282 F.2d 1, 7. plus interest accrued to the date o1 payment, minus the tax withholding required by Federal and State laws. The three discriminatees, Herbert Lee Wallace, Sr., Luther Wallace, and Willie Young, testified in behalf of General Counsel with respect to their interim earnings and other matters pertinent to the computation of the net backpay due to each. Their testimony affirmed the backpay computations 'in all particulars as detailed in the "Backpay Specification" and its appendices. After testifying for the General Counsel, the three discriminatees were then made available to the Union for cross-examination on all issues of this backpay proceeding. The Respondent Union failed to adduce, any testimony through the three discriminatees or other witnesses which would require any changes in the computation of the gross and net backpay, or any periods considered excepted for backpay, nor did the Union adduce any additional interim earnings or other deductions from gross backpay not already known and allowed by the Regional Director in the computation of the backpay as set forth in the "Backpay Specification" and detailed in its attached appendices. SUMMARY Respondent failed in any way to produce any evidence to mitigate the backpay liability of any of the discriminatees other than that admitted by General Counsel as interim earnings and excepted periods in which claims for backpay were not made. It is similarly well settled that the burden of proof to mitigate the losses of backpay discriminatees rest on the Respondent. In the New England Tank Industries, Inc., 147 NLRB 598, the Board stated: ... while the general burden of proof is on the General Counsel to establish for each discriminatee the loss of pay which has, resulted from Respondent's established discriminatory conduct, , i.e., the gross backpay over the backpay period, the burden of proof is on Respondent to show diminution of that amount, whether such diminution results from the claimants' willful loss of earnings, or from the unavailability of a job at Respondent's operation for some reason unconnected with the discrimination. Although Luther Wallace and Willie Young are not specifically identified by name under the Board's afore- mentioned Order as discriminatees, the record establishes that they are both racial discriminatees under the generic applicability provisions of the Board's aforementioned Order and with the same force and effect as Herbert Lee Wallace, Sr., who is specifically identified by name in the Order as a racial discriminatee. General Counsel has demonstrated that the formula applied is reasonable and the computation of the gross backpay is accurate. It is well settled that there is no specific formula that General Counsel must follow in computing gross backpay, if the formula used is not unreasonable or arbitrary. Thus as stated by the Eighth Circuit in N.L.R.B. v. Brown & Root, Inc., 311 F.2d 447: In solving the problems which arise in back pay cases the Board is vested with a wide discretion in devising procedures and methods which will effectuate the purposes of the Act. Labor Management Relations Act of 1947, § 10(c), 29 U.S.C.A., § 160(c); National Labor Relations Board v. Seven-Up Bottling Co., supra; Phelps Dodge Corp. v. National Labor Relations Board, supra. Obviously, in many cases it is difficult for the Board to determine precisely the amount of backpay which should be awarded to an employee . In such circum- stances the Board may use as close approximations as possible, and may adopt formulas reasonably designed to produce such approximations. National Labor Relations Board v. [East Texas Steel Castings Co., C.A. 5, 255 F.2d 284 ; ] National Labor Relations Board v. Kartarik, Inc., 8 Cir., 227 F.2d 190; Marlin-Rockwell Corporation v. National Labor Relations Board, 2 Civ., 133 F.2d 258. We have held that with respect to the formula for arriving at back pay rates or amounts which the Board may deem necessary to devise in a particular situation, `our inquiry may ordinarily go no further than to be satisfied that the method selected cannot be declared to be arbitrary or unreasonable in the RECOMMENDED ORDER On the basis of the foregoing Supplemental Decision and the entire record in this case, it is recommended that the Respondent Union, Painters, Decorators & Paperhangers of America, Local No. 985, be ordered to pay the claimants the following amounts of backpay: Herbert Lee Wallace, Sr. $1,175.00 Luther Wallace 725.00 Willie Young 3,515.00 with interest at the rate of 6 percent per annum to be assessed on each of the quarterly sums found due from the end of each quarter8 (as shown in the appendices of the "Backpay Specifications"), minus withholding taxes re- quired by Federal and State laws.9 8 Computed in the manner set forth in Isis Plumbing & Heating Co, supra Local 138, International Union of Operating Engineers, AFL-CIO, et al, 151 NLRB 972. 9 Southern Silk Mills, Inc., 116 NLRB 769. TRIAL EXAMINER'S SECOND SUPPLEMENTAL DECISION STATEMENT OF THE CASE MAURICE S. BusH, Trial Examiner : On December 9, PAINTERS LOCAL 985 1970, the Trial Examiner issued a Supplemental Decision in the above-entitled Backpay, Proceeding in which he found after a full hearing at Alexandria, Louisiana, thdta, the discriminatees therein identified as Herbert Lce- Wallace, Sr., Luther Wallace, and Willie Young, were entitled to net backpay in the amounts of $1,175, $725, and $3,515, respectively, from the above-named Respondent Union. Thereafter, the Respondent Union filed exceptions to the Trial Examiner's Supplemental Decision and the General Counsel filed an answering brief. By a remand order dated March 29, 1971, the Board reopened the proceeding and directed a further hearing be held before the Trial Examiner for the limited purposes herein stated as hereinafter set forth. Pursuant to this direction, a further hearing was conducted on May 20, 1971, at Alexandria, Louisiana, before me, pursuant to arrangements made by the Regional Director for Region 15, as directed in the Board's Order. Thereafter counsel for General Counsel filed a brief which has been carefully reviewed and considered. The Respondent Union again failed to file a brief with the Examiner as it did in the original hearing herein. Upon the entire record and from his observation of the witnesses, the Trial Examiner makes the following findings, conclusions, and recommendations: PROBLEM RE DISCRIMINATEE WILLIE YOUNG The Board's remand order reopened the hearing herein for two purposes only. One of these relates to discriminatee Willie Young. The Board noted that the Respondent Union "excepts to the failure of the Trial Examiner to take into account testimony by Willie Young showing that his interim earnings amounted to $375 rather than $100 per quarter, as found by the Trial Examiner." The Board accordingly ordered the Trial Examiner "to consider the testimony of Willie Young as to his greater amount of interim earnings than those specified in the backpay specification and to recompute his interim earnings and net backpay based thereon, if appropriate." The testimony at the original bearing on Young's estimated earnings per quarter for the quarters here involved from employers other than Employer Sahualla was conflicting. At the rehearing the parties resolved this conflict by stipulating that the net backpay due to Young should be $2,965 in lieu of the $3,515 found by the Examiner in his original Supplemental Decision, subject, however, to Respondent's reservation of its other pending exceptions to the Examiner's findings in favor of Young.' This breaks down to estimated interim earnings of $375 per quarter in lieu of the $100 estimated interim earnings per quarter as set forth in the "Backpay Specification" and found in the original Supplemental Decision herein. Accordingly the Examiner amends his original Supple- mental Decision to show that the total net backpay due to Willie Young from Respondent Union is $2,965 and recommends that the said Respondent Union be ordered to pay said amount of backpay to Willie Young, with the prescribed interest. PROBLEM RE DISCRI IINATEE LUTHER WALLACE 329 The only other matter, before the Examiner under the remand relates to discriminatee Luther Wallace. In its remand order the Board paraphrases the Respondent's exceptions to the Examiner's findings in favor of Wallace as follows: "As to Luther Wallace, the back pay specification improperly excluded from the gross backpay period for the third quarter of 1968, July 1 through 27, as Wallace testified that he was employed during such period by Rust Engineering Company as a painter, and that the failure to include such period of employment in the gross backpay period and to offset interim earnings for that period against gross backpay for the entire quarter was prejudicial." To determine if there is any merit to Respondent 's contentions under these exceptions, the Board ordered a further hearing before the Trial Examiner "for the purpose of receiving additional evidence relevant to the issue of Luther Wallace's gross earnings during the third quarter of 1968, his interim earnings, and net backpay due for that period." The facts with reference to Luther Wallace's employment with Rust Engineering Company as a painter in the third quarter of 1968 are clear and not in dispute, but their relevancy is contested by General Counsel. The transcript of the original hearing herein shows that Wallace had such employment with Rust as a painter during most of July 1968. The rehearing supplied the details of that employ- merit. There it was established by stipulation of General Counsel and the Respondent Union that Wallace's employment with Rust lasted from July 1 through July 26, 1968, and that Wallace's total earnings by way of wages from Rust during that period of employment was in the amount of $1,379.88. The parties also stipulated that Wallace was terminated by Rust on Friday, July 26, 1968, for lack of work. Turning now to the testimony of Wallace at the rehearing, his testimony shows that while he was working for Rust he made no application to the Respondent Union for a referral to painting contractor Sahualla, for employment as a painter at its Proctor & Gamble paint job at Pineville, Louisiana, but that he did so for the first time on Saturday, July 27, 1968, the very next day after his job with Rust ended for lack of work. As shown in the original Supplemental Decision herein, Wallace, although he made numerous applications in person to the Union from and after July 28, 1968, for referrals to Sahualla's Proctor & Gamble project, was discriminatorily denied a referral until February 20, 1969, when he finally received a referral to the project and put in his first day of work thereon as a painter. It is manifest from the above undisputed facts that there was no discrimination against Wallace by the Union in the matter of referrals to Sahualla's Proctor & Gamble project during the 4 weeks between July 1 and July 26, 1968, that he worked for the Rust Engineering Company as he had made no application to the Union .for a referral for such employment during that 4 week period. Since the Union's discrimination against Wallace by reason of the fact that he is a black man started only after his period of employment with Rust ended on July 26, 1968, it, of course, follows that i A footnote to the Board's remand order states, "The Board defers decision on other exceptions of the Respondent " 330 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Respondent Union has no backpay liability to Wallace for the 4-week period he worked for Rust between July 1 and 26, 1968, inclusive. The "Backpay Specification" herein takes cognizance of this fact by specifically excepting the period between July 1 and July 27, 1968, from the computation of both the quarterly total gross backpay and the quarterly total net pay due to Luther Wallace for the third quarter of 1968, which constitutes the difference between his gross backpay and his interim earnings for the said quarter.2 (See "Backpay Specification," particularly at par. 10(b), and appendix C-1 which has a box reading, "Excepted Period(s) 7/1-7/27," under another box reading "Year 1968.") Under the now famous case, F. W. Woolworth Company, supra, a discnminatee's gross backpay, interim backpay, and net backpay must be computed on a quarterly basis, beginning with the quarter in which the unfair labor practice began. The general practice of the Board prior to the Woolworth holding had been to issue orders for backpay "determined by computing the difference between (a) what the employee would have earned in the position which was discriminatorily terminated and (b) what he actually earned in other employment during the entire period commencing on the date of the discrimination and ending with the date of offer of reinstatement." (See p. 291.) (Emphasis supplied,) The Board in the Woolworth case noted that the cumulative experience of many years had shown that its then prior backpay orders fell short of effectuating the basic purposes and policies of the Act, in that in numerous cases it was found "that employees, after having been unemployed for a lengthy period following discriminatory discharges, have succeeded in obtaining employment at higher wages than they would have earned in their original employments." This, the Board found, often "resulted in progressive reduction or complete liquidation of back pay due." The Woolworth holding was designed to avoid such inequities by placing the computation of backpay on a quarterly basis. Thus, under the Woolworth case, "Earnings in one particular quarter shall have no effect upon the backpay liability for any other quarter." (See F. W. Woolworth Company, supra, pp. 291 to 293.) It is at once evident under the quarterly system of computing backpay inaugurated by the Woolworth case that the beginning date of a backpay period must begin with the first day of the first month of the quarter of the year in which the involved discriminatory discharge took place, but that it would be only by rare coincidence that such a discharge would actually occur or take place on the first day of the first month of the quarter. The chances are thus about 90 to 1 that any given unlawful discharge would take place on some day other than the first day of the first month of the 'quarter in which the employee was terminated. In that event the Employer cannot be charged with beginning gross backpay on any date earlier than the date on which the employee was actually discharged 2 "Gross backpay" is the amount of money a discrimmatee would have earned from his Employer if the discrimination had not occurred "Interim earnings" is the amount of money the discrimmatee earned from other employers during the period of his discriminatory discharge, less expenses in getting such employment "Net backpay" is the difference between the gross backpay due to the dtscnmmatee and his interim earnings. (See fn 3 although the backpay period must take in the full quarter under the Woolworth ruling. The difficulty with the Respondent Union' s exceptions is that the Respondent is confusing the beginning date of the backpay period for Luther Wallace, to wit, July 1 , 1968, as described above under the Woolworth holding, with the beginning date of the actual discriminatory period which commenced on July 27, 1968, when the Respondent first discriminatorily denied Wallace a referral to Sahualla because of his race. This appears from the following discourse at the rehearing: MR. CHAMPAGNE [counsel for General Counsel]: Mr. Examiner, General Counsel will stipulate that the backpay, that the act of discrimination [began] on the date Mr. Luther Wallace applied for work at Sahualla is July 28, 1968. TRIAL EXAMINER: Do you so stipulate? MR. -KRAMER [counsel for Respondent Union]: I decline to stipulate. TRIAL EXAMINER: Well, you understand that [from] Mr. Wallace's testimony, I could find possibly it [the act of discrimination] started as early as the 26th or 27th. And if I do so find, then he will be entitled to an extra day or two of back pay, which would not occur if you agreed to stipulate that the discrimination occurred on July 28. MR. KRAMER: I prefer to stipulate, it's just like in the charge, it began on July 1. [Emphasis supplied.] TRIAL EXAMINER: Now he [Luther Wallace] made no application for employment to the union until his job at Rust Engineering ended. He made no application on July 1. MR. KRAMER: Mr. Examiner, I decline to stipulate. [Transcript at pp. 140-141; see also transcript of first hearing at pp. 65, 94-97.] As heretofore noted, the "Backpay Specification" herein, while necessarily computing the total net backpay due to Wallace on a quarterly basis under the requirements of the Woolworth case, expressly excepts the period July I to July 27, 1968, from the computation of both the gross pay and the net pay due to Wallace for the third quarter of 1968. The "Backpay Specification" was based on the facts uncovered by an investigation made by Sloan McCloskey, a Board attorney for Region 15, who drafted the "Backpay Specification" as approved and issued by the Acting Regional Director for that region. It is an admitted fact3 that the average wage for painters on the Sahualla Proctor & Gamble job for the third quarter of 1968 was $161 per week. Utilizing this fact, McCloskey, testifying in behalf of General Counsel at the original hearing, explained how in arriving at the gross backpay due to each discnminatee (which includes Luther Wallace) as set forth in the "Backpay Specification," he excluded from such gross backpay of each discriminatee the weeks within the quarter prior to the commission of the discriminatory unfair labor practice against the discriminatee, as follows: of "Backpay Specification" herein and Board's decision in F. W Woolworth Company, 90 NLRB 289, at p. 293 and fn 8.) 3 See Trial Examiner Schneider's order herein entitled "Order on Motion to Strike Answer to Backpay Specification and For Summary Judgment" See also par. 3 and appendix A of the "Backpay Specification." PAINTERS LOCAL 985 A, I took the number of weeks in the third quarter of 1968 that were not excepted and multiplied those weeks by the figure of $161 and would come up with the figure . . . of [the gross pay due the discriminatee.] [Emphasis supplied.] Q. (By Mr. Champagne): In other words, the number of weeks the person was entitled to backpay during the period whether it be 6 weeks, 10 weeks or 13 weeks, multiplied by $161 and would give you the gross? [Emphasis supplied.] A. That's right and I used the same figure [$161 ] for all individuals [all discnmmatees]." [Original transcript, p. 24.] The "Backpay Specification" at appendix C-1 shows an aggregate of $1,449 due to Luther Wallace from the Respondent Union as "quarterly total gross back pay" for the third quarter of 1968, without the inclusion of any gross backpay for the first four weeks of July (July 1 through 27), as the "Backpay Specification" specifically states that that 4 week period is an "Excepted Period," or, in other words, excluded from the computation of gross backpay due Wallace for the third quarter of 1968. McCloskey's testimony shows that these 4 weeks were excluded from the backpay computation because the Respondent Union's discrimination against Wallace began after the expiration of that 4 week period. Thus the Respondent Union is not being charged with any gross backpay for that period. By the same token, McCloskey's testimony shows that the "Backpay Specification" by "Excepting" the same 4 week period from the backpay computation, does not take into account Wallace's earnings of $1,379 from Rust for the same 4 week period because those earnings were likewise accrued and paid to him prior to the commencement of Respondent Union's discrimination against him. Accord- ingly, counsel for General Counsel is much to the point with his comment in his brief that, "To allow Respondent to prevail in its position would [be to] punish Wallace for earnings achieved by him prior to the commission of Respondent's unfair labor practices against Wallace." As the Respondent has not filed a brief, it is assumed that its "legal position" on the remand is the same as stated by its counsel at the original hearing at the time Respondent offered in evidence Wallace's W-2 form to show his earnings from Rust for the period July I to 27, 1968, and as reiterated at the rehearing. The following colloquy shows the Respondent's position at the original hearing: MR. CHAMPAGNE (counsel for General Coun- sel): ". . . I object because it is completely irrelevant. We have excepted the time as part of the excepted period, through July 27. There is no backpay claimed for that period and I just don't see where it is material. MR. KRAMER: This is part of the time on a quarterly basis, the amount of money that he [Luther Wallace] earned during that quarter and Respondent is entitled to mitigation for it. MR. CHAMPAGNE: Not before the 27th. The first through the 27th. We allowed all the way through 4 Respondent's reference is to Trial Examiner Schneider's "Order on Motion To Strike Answer to Backpay and For Summary Judgment " Respondent's interpretation of that order is erroneous . The order does not find that the Union's discrimination against Luther Wallace began on July 1, 1968. It merely finds that the "beginning date of the backpay penod" for 331 the 27th as an excepted period in July. In fact, it doesn't start until the 28th of July. MR. KRAMER : Nevertheless, the computations are on a quarterly basis . It is the contention here that we don't get any credit for this quarter when part of this money was earned during that quarter when they claim there was discrimination. MR. CHAMPAGNE: I say it is not part of that quarter. We are not claiming the entire quarter. We are only claiming the part from July 27 through September 30. Not from July 1, therefore, it,is not material. MR. KRAMER: I offer it [W-2 form showing Luther Wallace's earnings from Rust for July 1 through 27, 1968 ] into evidence and ask for a ruling on it. TRIAL EXAMINER: The objection is sustained ... [Transcript of original hearing, pp. 65-66.] At the rehearing, the Respondent Union through its counsel reiterated its position as follows: TRIAL EXAMINER: [to counsel for the Respon- dent Union after General Counsel made his opening statement ] Do you want to make an opening statement? MR. KRAMER: I want to point this out in this opening statement. I alleged on this exception that the computation is prejudicial and its unfair and actually mistakes the back pay awardage to be made. TRIAL EXAMINER: Do you agree that [the] discrimination, with reference to Luther Wallace, began on July 28th rather than July 1 of 1968? MR. KRAMER : It's alleged and it's a part of the things I came here to contest, that it began July 1st, 1968. It has been made a finding of facto that I was bound by that all the way through the proceedings. But I just want to show you the way the computation was made. I said that the method of computation was unfair, and that's why that this additional evidence should have been admitted. Mr. McClosekey .. . TRIAL EXAMINER: What additional evidence are you referring to? MR. KRAMER: Right now I'm talking about the additional earnings of Luther Wallace from July 1st until July 26th of 1968. [Transcript of rehearing at pp. 127-128.] In short, the Respondent Union's position appears to remain that it is entitled to a credit for Luther Wallace's earnings from Rust for the period July I through 27, 1968, against the total net backpay due him for the third quarter of 1968, although the "Backpay Specification" specifically excepts that period from the computation of the net backpay due to Luther Wallace for the third quarter of 1968, for the reason as shown by the testimony of McCloskey that Respondent's unfair labor practice against Wallace did not commence until on or about July 28, 1968. The Trial Examiner's foregoing summary and analysis of the facts herein and the applicable law compels the conclusion that the Respondent Union's position is wholly without merit. The Trial Examiner refinds and reconcludes that the Luther Wallace was July 1, 1968, as is required under the Woolworth case, supra See discussion above as to distinction between "the beginning date of the backpay penod" and "the beginning date of the actual discriminatory period." 332 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "Backpay Specification" herein for Luther Wallace, subject to a possible minor modification, is correct in all of its particulars and that the total amount of net backpay due him is in the amount of $725, as shown in the "Backpay Specification" and the original Supplemental Decision herein, with interest at the proscribed rate. Although the "Backpay Specification" shows the "Excepted Period" for Luther Wallace to be July 1 through July 27, 1968, the record at the rehearing shows that the "Excepted Period" should be and is hereby found to be July 1 through July 26, 1968, inclusive, as Wallace's job with Rust ended on Friday, July 26, rather than on Saturday, July 27, 1968, when he first applied for a referral to the Respondent Union for employment as a painter at the Sahualla Proctor & Gamble job and was turned down because he was a black man. Under these facts the backpay for Wallace should start on July 27, rather than on July 28, as would appear from the "Backpay Specification" and McCloskey's testimony, but inasmuch as these two dates fall on a Saturday and` Sunday, the Respondent is given the benefit of a doubt that the Proctor & Gamble job did not work on that weekend and that accordingly the Respondent's discriminatory refusal of a job referral to Luther Wallace on Saturday July 27 did not become effective until Monday July 29, 1968, which is a normal workday. This finding may require a slight adjustment of the total net backpay due to Luther Wallace which is difficult to determine on the present record and is therefore left to the parties to work out in good faith by stipulation.