Local 294, Teamsters

LOCAL 294, TEAMSTERS 445 Local 294, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Ameri- ca (August Bohl Contracting Co.. Inc., and Cooley Contracting Co., Inc., a Joint Venture) and Jack Sharac and Elroy Levernois . Cases 3-CB-1268-1 and -2 January 16, 1974 SUPPLEMENTAL DECISION AND ORDER By CHAIRMAN MILLER AND MEMBERS FANNING AND JENKINS On June 24, 1970. the National Labor Relations Board issued a Decision and Order in the above- entitled case ' finding that the Respondent violated the National Labor Relations Act, as amended, and ordering the Respondent . inter alia, to make whole Jack Sharac and Elroy Levernois for any loss of earnings they may have suffered because of the discrimination practiced against them . The Respon- dent was also ordered to cease and desist from causing, or attempting to cause, August Bohl Contracting Co., Inc., and Cooley Contracting Co., Inc., a joint venture , to discriminate against Jack Sharac and Elroy Levernois, or any other employee, contrary to the requirements of Section 8(a)(3) of the Act. Thereafter, on September 30, 1971 , the United States Court o" Appeals for the Second Circuit entered its decree enforcing in full the aforesaid Board Order.2 On March 17, 1972, the Regional Director for Region 3 issued a backpay specification and notice of hearing for the purpose of determining the amounts of backpay, if any, due and owing and making whole the said Charging Parties, Jack Sharac and Elroy Levernois . Upon appropriate notice issued by the Regional Director, a hearing was held on May 9, August 22, and August 23, 1972, before Adminis- trative Law Judge John F . Funke. On November 24, 1972, the Administrative Law Judge issued the attached Supplemental Decision in which he found that the claimants were entitled to the amounts of backpay therein set forth . Thereafter, both the Respondent and the General Counsel filed exceptions with 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 attached Supplemental Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administra- tive Law Judge as modified herein. For the reasons which are discussed, infra, it is deemed appropriate to remand this proceeding to an Administrative Law Judge for the purpose of taking additional evidence necessary for the determination of backpay liability. Initially, it is necessary to determine whether Respondent's backpay liability to the backpay claimants terminated upon the dissolution of the joint venture. The Administrative Law Judge found that no backpay could accrue or be awarded for calendar quarters extending past April 13, 1971, the date when Bohl-Cooley ceased operations at the South Mall project.3 We disagree. The Board's Order herein prohibits the Respondent from causing the joint venture to discriminate against Sharac and Levernois and does not explicitly restrain the Respondent from engaging in similar conduct involving these individuals with "any other employ- er." Unlike the Administrative Law Judge, we do not find this to be of decisive significance. After the Board's Order was promulgated, the Bohl-Cooley joint venture commenced a gradual process of dissolution. This fact was not evident to any of the parties, at the time of the Board's Order. Consequently, at that time, there was no foreseeable need to broaden the Order to accomodate such a fortuity. Accordingly, we believe that under the circumstances this development does not require us to relieve the Respondent of backpay liability for periods extending beyond the dissolution of the joint venture.4 Moreover, much of the work performed by the joint venture has been taken over by Bohl Contracting Co., Inc., which at the time of this hearing was even contemplating the assumption of certain assets and liabilities of the joint venture in its role of sole survivor. Therefore, August Bohl Con- tracting Co., Inc., is not a stranger employer. Furthermore, the Board's Order runs directly against the Respondent Union and prohibits it from such coercion and restraint of employees "in any other manner." so that the remedial sanction is not limited t 183 NLRB 1040 2 470 F 2d 57 3 According to the uncontradicted testimony of August Bohl, president of August Bolil Contraumg Co, Inc. and one of the heads of the joint venture, the joint ventur° s operations at the South Mall ended on April 13, 1971, and terminated on or about the last of June 1971 at the so-called Walsh job. At the time of the first phase of the hearing herein (May 1972), the joint venture was in the process of dissolution and winding up its affairs and it was contemplated that August Bohl Contracting Co. Inc., would sun ive as the successor firm a The Board's Order not only relates to Sharac and Levernois, but also covers "any other employee." and it also is a broad order commanding Respondent to cease and desist from "in any other manner restraining or coercing employees in the exercise of their rights covered by Section 7 of the Act," a reach which is ample to control Respondent's conduct relating to the surviving firm of the joint venture. but also as to other employers 208 NLRB No. 69 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to Respondent's coercion or restraint of employment by the joint venture.5 For these reasons, we hold that the dissolution of thejoint venture did not necessari- ly toll the backpay entitlement of these claimants, and we shall direct that additional evidence, as necessary and consistent with this finding, be adduced during the hearing on remand herein. We turn now to the amounts of backpay due to the claimants. The Respondent does not take exception to the technique employed by the General Counsel in the specification, viz, the utilization of so-called comparable employees who were on the payrolls of the joint venture, or August Bohl Contracting Co., during relevant times. However, Respondent does except to the selection of employee Eaton as a yardstick for Sharac, and it similarly excepts to employee Warner as not representing a reasonable measure for establishing the amount of backpay due Levernois. In its amended answer to the specifica- tion, Respondent contends that the weeks, hours, and earnings of employees L. Bridenbeck and H. Ward are more appropriate for comparison purposes in determining the backpay due to Sharac and Levernois, respectively. With reference to the deter- mination of Sharac's backpay, the Administrative Law Judge ruled that he believed himself bound by the Board's telegraphic orders to fix the amount of this discriminatee's gross backpay as being equiva- lent to the earnings of joint venture employee Eaton during the backpay period. This ruling came during the hearing when the General Counsel sought (and obtained) special permission to appeal the Adminis- trative Law Judge's action in affording the Respon- dent the opportunity to develop evidence concerning the impropriety of choosing Eaton for computing Sharac's backpay as alleged in Respondent's amend- ed answer7 to the specification. The Respondent now urges that we should set aside our Order reversing the Administrative Law Judge which granted the General Counsel's appeal as it pertains to the Sharac- Eaton matter, and find that Eaton's earnings are not an appropriate determinant for Sharac's backpay. We are unable to make a finding as to which employee is the correct measure. Therefore, we shall permit the Respondent to engage in further and full litigation of this issue during the hearing on remand, if it so desires. Parenthetically, we note that our interim order did not affirm Administrative Law 5 Also, Respondent during all relevant times has exclusively represented the employees of August Bohl Contracting Co, Inc , who fall within its jurisdiction under existing bargaining agreements Finally certain of the joint venture employees were hired by August Bohl, which also adopted the Union's joint venture seniority list 6 This interlocutory order, pursuant to Sec 102 26 of the Board's Rules and Regulations , as amended, and dated June 12 , 1972, was in response to General Counsel's earlier motion to strike certain portions of the Respondent's original answer to the backpay specification on the grounds that Respondent's answer was in error because ( 1) it sought to relitigate Judge Schneider to the extent of expressly declaring that Eaton's earnings were the only available appropriate gauge of Sharac's gross backpay. How- ever, our ruling is not to be construed in any manner as a finding on our part that Eaton's earnings are, in fact, not appropriate as a reasonable indication of Sharac's gross backpay. With respect to claimant Levernois, the Adminis- trative Law Judge, consistent with the backpay specification, found that the earnings of employee D. Warner are an appropriate comparison in assessing backpay. However, his computations reflect the fact that there are substantial voids in the record data introduced to support this determination. Conse- quently, the Administrative Law Judge resorted to the earnings of employees Ward and Eaton in order to complete his calculations of Levernois' backpay. Although the Respondent excepts to this method, we do not categorically reject the technique he em- ployed. However, we feel that, under the circum- stances, the hearing we direct should also embrace this issue and, therefore, we will permit the Respon- dent the opportunity to demonstrate more fully that the earnings of employee Ward, or some other employee, are more fitting, as a measure of Lever- nois' backpay. ORDER It is hereby ordered that the record in this proceeding be, and it hereby is, reopened and that a further hearing be held before a duly designated Administrative Law Judge for the purpose of taking evidence in accord with the Board's Supplemental Decision herein for the purpose of recomputing backpay due the discrimina tees. IT IS FURTHER ORDERED that this proceeding be, and it hereby is, remanded to the Regional Director for Region 3 for the purpose of arranging such hearings, and that the said Regional Director be, and he hereby is, authorized to issue notice thereof. IT IS ALSO FURTHER ORDERED that upon the conclusion of such hearing, the Administrative Law Judge shall prepare and serve on the parties a second supplemental decision containing findings of fact based upon the testimony and other evidence received pursuant to the provisions of this Order, with recommendations for the backpay due and matters previously decided in the unfair labor practice case, or (2) the answer failed to plead with the particularity required by the Board's rules governing backpay proceedings 7 General Counsel's original motion to strike was ruled on by Administrative Law Judge (then Trial Examiner) Schneider We do not construe his rulings on the motion, nor the Board's telegraphic order, as necessarily foreclosing Respondent's right to demonstrate herein that some other employee besides Eaton would be more fitting for comparison with Sharac in order to reasonably establish the latter's gross backpay LOCAL 294, TEAMSTERS owing to the discrimmatees, and that, following the service of such second supplemental decision on the parties, the provisions of Section 102.46 of the Board's Rules and Regulations, Series 8, as amended, shall be applicable. SUPPLEMENTAL DECISION IN BACKPAY PROCEEDING STATEMENT OF THE CASE JOHN F. FUNKE, Administrative Law Judge: This supplemental proceeding was brought before the National Labor Relations Board upon: 1. Backpay specification and notice of hearing issued by the General Counsel on March 17, 1972, against Local 294, etc., herein Local 294, and an answer dated April 13, 1972, and an amended answer dated May 8, 1972, filed by Local294. 2. A hearing held by me at Albany, New York, on May 9 and August 22 and 23, 1972, to determine the amount of backpay and other benefits due Jack Sharac and Elroy Levernois pursuant to the Decision and Order of the Board in Local 294, International Brotherhood of Teamsters, 183 NLRB 1040. 3. Briefs received from the General Counsel and Local 294 on October 13, 1972. Upon the record in this supplemental proceeding and from my observation of the witnesses while testifying, I make the following: FINDINGS A. Background and Issues On February 27, 1970, Administrative Law Judge (then Trial Examiner) Eugene E. Dixon issued his Decision in the above-entitled cases and on June 24, 1970, the Board affirmed the Trial Examiner's Decision, supra. In the Remedy section of his Decision that Trial Examiner held at 1046: Having found that Respondent Union caused Bohl- Cooley to discriminate against Jack Sharac and Leroy Levernois by refusing them employment contrary to requirements of Section 8(a)(3) of the Act, I shall recommend that Respondent make them whole for any loss of pay suffered by reason of the discrimination against them, by paying to them a sum of money equal to that which they normally would have earned from I The Board's telegraphic order reads GENERAL COUNSEL'S REQUEST FOR SPECIAL PERMISSION TO APPEAL TRIAL EXAMINER'S ORDER OVERRULING EARLIER RULING OF TRIAL EXAMINER SCHNEIDER GRANTING GENERAL COUNSEL'S MOTION TO STRIKE CERTAIN PORTIONS OF RESPONDENT'S ANSWER IS HEREBY GRANTED, THE APPEAL IS GRANTED AND THE TRIAL EXAMINER IS REVERSED BY DIRECTION OF THE BOARD GEORGE A LEFT ASSOCIATE EXECUTIVE SECRETARY The Board's order is noteworthy since it is typical both of rulings on interim appeals and the procedure followed on such appeals The Board's order does not state the ground upon which it is based, it does not refer to either the original decision which was cited by the General Counsel as the basis for Trial Examiner Schneider's order nor does it refer to the substantive parts of 447 the date of the discrimination against them (which was the date they would have been recalled to the Walsh job in the spring of 1969 had the recall been made on the basis of the seniority they were entitled to carry with them to the Albany High School job from the South Mall project) to the time that they would have been laid off on the Walsh job or the South Mall project as their seniority would have dictated, absent any discriminatory motive. Paragraph 2(a) of the Trial Examiner's order provides: Make whole Jack Sharac and Leroy Levernois for any loss of earnings they may have suffered because of the discrimination against them in the manner set forth in the section entitled "The Remedy." In adopting the Trial Examiner's Decision the Board issued only a short order which left the provisions of the remedy section and the aforesaid paragraph of the order unchanged. Pursuant to a motion to strike filed by the General Counsel on April 24, 1972, Administrative Law Judge Charles W. Schneider issued an order dated May 4, 1972, striking certain paragraphs of Respondent's answer. On May 8 Respondent filed its amended answer. At the hearing on May 9 the General Counsel appealed from my ruling permitting the amended answer and the Board on June 12 reversed my ruling and struck substantial portions of the amended answer as requested by the General Counsel.' On August 22, 1972, I granted General Counsel's motion to strike all portions of the amended answer not consistent with the Board's order. The effect of these motions and orders was: (I) to fix the appropriate measure of the earnings of Sharac as those of employee Eaton during the backpay period; (2) to leave to me the determination of the appropriate measure of earnings of Levernois had it not been for the discrimina- tion practiced against him; (3) to leave to me the determination of the interim earnings of Sharac and Levernois, including wilful loss of earnings or inability to- work, during the backpay period; and (4) the date of termination of the backpay period. B. Termination of Backpay The date when Local 294's liability for backpay was terminated is the most troublesome of the issues and had best be settled first . Determination must be made as to whether: ( 1) Sharac's application for a withdrawal card his order construing the decision On the face of the Board order there is no indication that the Board read or considered either its own decision, Trial Examiner Schneider's order, nor the opposition to the motion submitted counsel for Local 294 The order is a simple ipse dixit conclusion Pursuant to what appears to be Board procedure , although nowhere set forth in its Rules and Regulations, the motion was referred to the office of its Executive Secretary (an administrative and not a judicial division of the Board) where, apparently, the decision was made and the order issued. If any Board Member participated in the decision on appeal that fact is not disclosed by the telegraphic order "By direction of the Board" is a very cryptic phrase It would appear that in an adversary proceeding before a quasi-judicial agency a respondent should be entitled to know the identity of the person or persons ruling on a contested motion and the grounds on which the ruling rests Not so when he appears before the National Labor Relations Board 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD from Local 294 and his acceptance of the same on April 24, 1969, indicated a withdrawal from the labor market in the trucking industry and thereby terminated Local 294's liability as of that date; (2) the letter of Local 294, dated March 17, 1970, to Bohl-Cooley (see infra) advising Bohl- Cooley that it had no objection to the employment of Sharac and Levernois terminated libility as of 5 days after receipt of the letter; 2 and (3) liability terminated when Bohl-Cooley terminated the South Mall job or continued after Bohl took over the South Mall job from Bohl-Cooley following the dissolution of the Joint Venture on April 13, 1971. (1) I do not find that Sharac's application for and acceptance of a withdrawal card tolled liability for backpay. At the time Sharac made his application he was not, according to his testimony, working and could not afford to pay his dues. He thereafter returned to the hall on various occasions but was unable to obtain referral. On one of these occasions he offered to pay his reinstatement fee (with borrowed money) but the offer was rejected because he was not working. Since Local 294 was found by the Board to have been operating an exclusive hiring hall it was obligated to refer him regardless of membership. (2) Under ordinary circumstances Local 294's letter dated March 17, 1970, would relieve it of liability for further backpay.3 This letter (G.C. Exh. 2), addressed to Bohl-Cooley with copies to Sharac and Levernois read: Please be advised that the International Brotherhood of Teamsters, Local 294 does not now nor has it in the past had any objection to your Company employing Elroy Levernois or Jack Sharac. You are further advised that if you were ever under the impression that this Union had any objection to the employment by your Company of Elroy Levernois and Jack Sharac, that such impression or assumption is completely unfounded. If for any reason you were previously under the impression that this Local Union or any of its representatives had any objection to your employing Levernois and Sharac, this letter is sent to assure you that that is not the intention of this Union nor its position. Any objection you assumed this Union had as to the employment of these individuals, the Union does not admit that there was any, nevertheless are now withdrawn so that the record is entirely clear; and you are free to act without objection on the part of the Union to employ Elroy Levernois and Jack Sharac. 2 Trial Examiner Dixon found that August Bohl Contracting Company, inc , herein Bohl. and Cooley Contracting Company, herein Cooley, were corporations engaged in the construction business in the Albany, New York, area In 1966, according to the testimony of August Bohl, president of Bohl, Bohl and Cooley formed a joint venture to engage in construction on the vast South Mall project at Albany The consortium is referred to in this proceeding as either Bohl-Cooley or the Joint Venture 3 Notice from a respondent union found in violation of Section 8(bX2) to the employer concerned that it has no objection to the reemployment of a discriminatee will toll backpay from a date 5 days after the date of the letter The Englander Company, Inc, 108 NLRB 38, Westwood Plumbers, 131 NLRB 562, and cases cited, fn 3, M Eskin and Son, 148 NLRB 1022. 4 1 reject the argument of the General Counsel that the letter was inoperative because there is no evidence to establish that the letter was I find that this letter fully complies with all the requirements of the Board's usual 8(b)(I)(A) and (2) remedial order.4 Nor do I accept the argument of the General Counsel that Local 294 was obligated, in addition, to refer Sharac and Levernois to Bohl-Cooley for employ- ment. While Local 294 operated under an exclusive hiring hall arrangement with Bohl-Cooley a referral situation does not arise until there is a request for drivers. In the absence of any such request a referral would have been futile; all Local 294 could do at this time was notify Bohl- Cooley that its objection to their employment was withdrawn. The General Counsel argues, however, that the letter of March 17 was inconsistent with conduct of Local 294's officers and agents occurring after the issuance of the letter indicating that the discriminatory practices of Local 294 did not cease on that date. This argument is entitled to consideration. Levernois testified that sometime in December 1969 he had a conversation with Anthony Carusone, a business agent of Local 294, at the South Mall project in which he asked Carusone for work "down there" and to which Carusone replied "you ain't going to work." This took place prior to the March 17 letter and prior to Trial Examiner Dixon's decision of February 27, 1970. It does firmly establish the attitude of Local 294 toward the employment or referral of Levernois at that date. Levernois testified that in March 1970 (Levernois thought it was after he received his copy of the March 17 letter),5 he called Carusone and spoke to him on the telephone concerning an Albany job which needed a pickup truck operator the next morning. Carusone told him, "You're not going on there and you're not going to work." ... "I got a man for that job." After receipt of the March 17 letter Levernois applied for work at the Bohl-Cooley location six, seven, or eight times. The first occasion was on April 10, 1970, and at that time he spoke to Cal Bohl who told him things were slow. He was not hired then nor on any other occasions. There is also evidence, taken from Local 294's records (Resp Exh. 2-a, 2-b, and 2-c), that drivers were employed at the Joint Venture in May, August, and October, 1969, and in March and August 1970. The record does not establish whether these men were referred by Local 294 but in view of the Board's finding in the original case that an exclusive hiring hall arrangement existed it must be assumed that they were so I would find that this issue, as to drivers employed by the Joint Venture, no longer litigable .6 Under these circumstances and despite the fact that the Board's order did not provide that Local 294 take any received by any responsible representative of Bohl-Cooley The letter was addressed Bohl-Cooley at the place of business of the Joint Venture to the attention of Mr Frank Zaronda, president of Cooley Contracting Co There being no question but that the letter was properly addressed and was received at the offices of the Joint Venture I find the obligation of Local 294 was thereby satisfied 5 On cross-examination Levernois firmly fixed this date as after the March 17 letter 6 This is not to say that this situation could not have changed after April 1969 1 simply do not find that there is clear or credible evidence that it did change August Bohl's testimony in the instant proceeding that he hired only stewards from Local 294 does not refer to the Joint Venture but to operations of Bohl Contracting Co., a separate entity Even as to the hiring practices at that company the evidence is not conclusive. LOCAL 294, TEAMSTERS affirmative action seeking the reinstatement of Sharac and Levernois I find that liability did not terminate with the delivery of the March 17 letter. It is true, as counsel for Local 294 points out in his brief, that Local 294 was not required by the terms of the order to issue such a letter or required to refer either Sharac or Levernois to the Joint Venture. Such a narrow construction of the cease and desist provision would permit Local 294 to remain passive and silent and leave the discriminatees without any effective remedy. I do not regard the order as nugatory and I hold that Local 294, which had denied them employment, was required to take reasonable affirmative action, including referral, when drivers were requested, to obtain their employment. It can be argued, of course, that if the Board's order is defective in providing an adequate remedy for the unfair labor practices found herein that is the responsibility of the Board and cannot be cured retroactively by an Adminis- trative Law Judge. The answer to that is that this Administrative Law Judge is not trying to correct or expand upon the Board's order but merely give it a reasonable construction. As Administrative Law Judge Dixon pointed out in his decision, Local 294 was "a sophisticated union very ably represented by counsel quite experienced in the ramifications of charges involving Section 8(b)(l)(A). 8(b)(2) and other sections of the Act." I think a fair reading of the order in context with the decision indicates that more was required than was done here to toll backpay and that Local 294 was well aware of that fact.7 (Cf. Reinforcing Iron Workers, Local No. 426 [Tryco Steel Corp.] v. N.L.R.B., 81 LRRM 2479 (C.A.D.C., 1972).) I am, however, }unwilling to stretch the Board's order any further and to find, as requested by the General Counsel, that it should extend to employment by Bohl Construction Company. The Board order is expressly limited to "August Bohl Contracting Company, Inc. and Cooley Contracting Company, Inc.. a joint venture ...." This was the employer named in the complaint and the only employer involved in the discrimination alleged in the original complaint. Had the Board desired to expand the scope of its order to include discrimination against "any other employer" it needed only to employ its customary language. Its conspicuous failure to do so binds me to the language employed. I therefore find that all liability was tolled at a time when the discriminatees would have normally been terminated by the Joint Venture, absent any discrimination, as hereinafter found. 7 The record does not disclose that Local 294 made any inquiry of the Regional Office as to whether its letter of March 17 constituted compliance with the Board's order 8 Sharac did not give the date of his first employment with Brown nor the length of that employment before injury No earnings were shown for this penod 9 His testimony reads Q You were working for D. K. Brown when you got hurt'' A 1 know that, and I went back to work again 449 C. Backpav Due Sharac The measure of backpay due Sharac has been fixed by the order of the National Labor Relations Board, dated August 22, 1972, as the earnings of Eaton for the period of discrimination against Sharac. I find that this period began on April 29, 1969, and terminated April 27, 1971, when Eaton's employment with the Joint Venture terminated. Local 294 contends that Sharac should be disqualified for a penod of 5 months during which he collected liability insurance and was unavailable for employment. I find merit in this contention. Sharac's own testimony is that he was employed by D. K. Brown prior to his injury; 8 that he collected disability insurance during this period under a policy maintained by Brown and that he returned to work after a period of about 5 months. Unfortunately the General Counsel's specifications (schedule C) show that Sharac was first employed by Brown in the fourth quarter of 1969. It does not show prior employment by Brown and thus it is squarely in conflict with Sharac's testimony that he was injured after employment with Brown. The only inference that can be drawn is that the backpay investiga- tion did not reveal this prior employment and that the General Counsel assumed he was first employed in the fourth quarter of 1969. But Sharac's testimony is clear on this point.9 On the other hand Sharac testified that he was available for employment and could work during this period.10 He did not, however, report to collect unemploy- ment insurance during these months because "It's a little ridiculous to go to the unemployment office and they ask if you're physically able to work and you've got a bandage on your hand." Sharac offered no explanation for not returning to work for Brown at an earlier period if he was in fact able to work. Considering this testimony I find that Sharac was sufficiently disabled to preclude his working for Brown and could not, due to his disability, collect unemployment benefits. I shall therefore deduct from his gross pay an amount equal to what his earnings would have been with Brown for the months of May, June, July, August, and September. There is no record of what these earnings would have been except for Sharac's estimate that his gross earnings were between $150 and $175 per week. Splitting this in half (the Solomon formula) would provide an estimated gross pay of $162.50 for a period of 22 weeks (also estimated) and a setoff against gross pay of $3,575, of which $1,462.50 (9 weeks) shall be assessed against the second quarter and $2,112.50 against the third quarter of 1969. Summarizing and omitting those quarters in which the earnings of Sharac exceeded those of Eaton," I compute Sharac's backpay claims as follows: 10 On this point he testified Q Did you advise the National Labor Relations Board that you were unavailable for work for five months of an accident9 A. No, because I wasn't unavailable I was available. I could work I could drive. I just got finished telling you that Q Then why didn't you work A I couldn't find any work i i These quarters were the second, third, and fourth quarters of 1970 and second quarter of 1971, the end of the discriminatory period 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Calendar Earnings Earning s Quarter of Eaton of Sharac l3ackpay 1969-2 $2,228.14 $1, 462.50 $ 765.64 1969-3 3,097.13 2,112.50 984.63 1969-4 2,938.51 956.25 1,882.26 1970-1 2,587.50 1,850.00 737.50 1971-1 2,519.39 --- 2,519.39 $6,889.42 I also find that Sharac was entitled to contributions made by the Joint Venture to the pension and health and welfare fund. As the measure of these benefits I have used the benefits paid to the fund on behalf of Eaton, excluding the second and third quarters of 1969 , the period of Sharac's disability, and the third and fourth quarter of 1971. Calendar Pension Health & Quarter Fund Welfare Fund 1969-4 $130.00 $130.00 1970-1 130.00 130.00 1970-2 172.80 172.80 1970-3 179.68 179.68 1970-4 182.40 182.40 1971-1 138.24 138.24 1971-2 15.36 15.36 12/ $948.48 $948.48 D. Backpay Due Levernois General Counsel contends that the measure of earnings for Levernois should be the earnings of Donald Warner while Local 294 contends it should be the earnings of H. Ward. Both were drivers employed by the Joint Venture and received the same rate of pay as Levernois . Although the seniority of Warner was closer to that of Levernois than Ward's Local 294 contends that Warner operated a special type of equipment which required a license known as class 1. Levemois possessed such a license and there is no evidence that he could not have operated the same type of equipment. I have therefore used the earnings of Warner as the measure of earnings in assessing Backpay during the periods when Warner was employed by the Joint Venture. This, however, presents another difficulty for the name of Warner does not appear on all the Schedules submitted as Respondent's 2-a, 2-b, and 2-c, which have been used by the parties as an accurate statement of the earnings by employees at the Joint Venture. Where these schedules do not show earnings for Warner I have substituted the earnings of Ward and where Ward's name does not appear I have substituted the name of Eaton. This improvisation provides only a rough, but it is to hoped, substantial justice. The name of the employee whose earnings have been used for any given calendar quarter will be shown in the footnotes. I have not accepted the earnings of any employee as a measure where the earnings were made in employment by August Bohl Contracting Co. There is no evidence to indicate that Levernois would have been employed by August Bohl Contracting Co., regardless of the discrimination found as to the Joint Venture. Counsel for Local 294 has pointed out a contradiction in the General Counsel's specifications . Levernois' New York State income tax return for 1969 shows total earnings of $6,304.49.1•; Local 294's Exhibit 2-a shows that Levernois' earnings with the Joint Venture for 1969 were $1,027.15 (months of February, March, and May). General Counsel's specifications show interim earnings for the last three quarters of 1969 as $1,327; $1,627.50 and $1,000, totalling, together with his income from the Joint Venture $5, 181.50. This discrepancy was not explained by Levernois except to the extent that the tax return , not prepared by himself, was claimed to be in error. I think the burden of such an error must fall upon the discriminatee and I shall accordingly find that the true earnings were $6 ,304.49 and apportion the difference of $1,222.84 between the last three quarters adding the amount of $407.61 to interim earnings of Levernois for each quarter.i4 Summarizing by calendar quarters I find the amount of backpay due Levernois to be as follows: 12 Computed only to the end of the discriminatory period , April 29. 13 Resp Exh 7. 14 l.evernolc' earnings from the Joint Venture have been taken from Local 294's records, the accuracy of which has not been attacked. LOCAL 294, TEAMSTERS 451 Calandar Gross Interim Net Quarter Backpay Earnings Backpay 1969 - 2 $1,962.38 15/ $1,734.61 $ 227.77 1969 -3 2,737.03 16/ 2,035.17 701.86 1969-4 2,938.51 17/ 1,407.61 1,530.90 1970-1 NO NET 1970-2 1,915.28 18/ 1,200.00 715.28 1970-3 1,028.14 19/ 320.00 708.14 1970-4 3,527.89 2,060.00 1,467.89 1971-1 1,921.21 20/ NONE 1 ,921.21 1971-2 277.95 21/ 1,840 .00 NO NET $7,273.05 Using the same measures of earnings as I have used for computation of backpay I find Levernois due the following amounts for pension and health and welfare payments: Based upon the foregoing findings and upon the record in this supplemental proceeding, and pursuant to Section 10(c) of the Act, I recommend issuance of the following: Calendar Health & SUPPLEMENTAL ORDER25 Quarter Pension Welfare Fund Res l 294 rnati nal Broth rhood of de t Lo I t pon n , ca , n e e o 1969-2 $ 80.00 $ 80.00 Teamsters, Chauffeurs, Warehousemen and Helpers of America, shall make whole Jack Sharac and Elroy 1969-3 140.00 140.00 Levernois for the losses suffered by them by reason of 1969-4 130.00 130 00 Respondent's discrimination against them by payment to 1970-1 130.00 . 130.00 them of the sum of money as found due herein together with interest at 6 percent per annum computed on a 1970-2 109.87 109.87 22/ quarterly basis. 1970-3 29.16 29.16 23/ 1970-4 189.00 189.00 1971-1 138.23 138.24 1971-2 15.36 15.36 24/ $961.63 $961.63 13 Based on earnings of Ward for May and June 1969 21 Based on earnings of Eaton for April 16 Based on earnings of Ward for July, Eaton for August and September 22 Based on two-thirds earnings of Warner for quarter 17 Based on earnings of Eaton for quarter 23 Based on one-sixth earnings of Warner for quarter is Based on two-thirds earnings of Warner for quarter (Fn. 2, 24 Based on Eaton's earnings of April 29, 1971 specifications ) 25 In the event no exceptions are filed as provided by Sec 102 46 of the 1U Based on one-sixth of the earnings of Warner for the quarter Rules and Regulations of the National Labor Relations Board , the findings, (Specifications fn. 2 ) To this has been added the sum of $397 10 for medical conclusions, and recommended Order herein shall, as provided in Sec. expenses which would have been paid Levernois under the terms of the 102.48 of the Rules and Regulations , be adopted by the Board and become Joint Venture-Local 294 medical plan its findings, conclusions, and order, and all objections thereto shall be 20 Based on the earnings of Warner for quarter deemed waived for all purposes