Intl. Assn. of Bridge, Iron Workers, Local 378

692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD International Association of Bridge, Structural and Reinforced Iron Workers Union, Local 378, AFL- CIO (Judson Steel Corporation) and Robert L. Castor. Case 20-CB-2245 January 4, 1977 ORDER REMANDING PROCEEDING TO REGIONAL DIRECTOR BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND WALTHER On August 23, 1971, the National Labor Relations Board issued a Decision and Order in the above- entitled proceeding 1 in which it found that Respon- dent had engaged in unfair labor practices within the meaning of Section 8(b)(2) and (1)(A) of the Act, as amended, by causing Judson Steel Corporation to discriminatorily discharge Robert L. Castor, and it ordered that Respondent make whole Castor for any losses he, may have suffered as a result of the discrimination against him. The Board's Order was enforcedper curiam. 2 A controversy arose over the amount of backpay due under the terms of the Board's Order, and the Acting Regional Director, on February 27, 1974, issued a backpay specification and notice of hearing. Thereafter, a supplemental hearing was held, and on June 6, 1974, the Administrative Law Judge deter- mined that Respondent was liable for backpay due the discriminatee during the period May 8, 1970, to July 25, 1972. He determined the monetary amounts due Castor for wages and pension fund payments which were losses suffered by Castor when he was discriminatorily discharged by Judson Steel Corpora- tion and issued a recommended Order for such amounts. The amounts due were determined under the "representative employee" formula. On Septem- ber 24, 1974, the Board issued its Supplemental Decision and Order3 adopting the findings and conclusions of the Administrative Law Judge and ordered that Respondent take the action set forth in the recommended Order of the Administrative Law Judge. On November 6, 1974, the Board applied to the United States Court of Appeals for the Ninth Circuit for enforcement of its Supplemental Order. On application for enforcement, the court issued its judgment in the case on August 26, 1976, remanding the case to the Board "for further proceedings not inconsistent with its opinion." Its opinion4 held: 1 192 NLRB 1069. Unpublished order (C.A. 9, 1972). 3 213 NLRB 457 4 532 F.2d 1241, 1243-44 (1976). 5 We further refer to the Board's findings in the unfair labor practice 227 NLRB No. 108 We do not intimate that the Board may not select the formula which it believes will best reflect the amount of back pay which would have been earned, nor that the formula must be employed with a mathematical exactitude, not that the representative employee group formula- may not be employed in the construction industry. We go no further than to say that, first, where the question is "what did Castor lose by reason of the discrimination?" the representative employee for- mula may not be employed unless it is representa- tive of Castor and, second, that in an industry where employment is intermittent, the fact of intermittency must be taken into account in some measure unless there is something in the record which justifies a finding that, for some reason, the employee involved would not have been affected by the fluctuations that affected the group as a whole. After the court handed down its opinion the Board advised the parties that it had accepted the remand and that they could file statements of position with respect to the issues raised by the remand. Respon- dent filed a statement of position in which it incorporated by reference exceptions filed. to the Supplemental Decision of the Administrative- Law Judge and attached the brief which it filed in the court of appeals in this matter. 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. We have considered the brief in light of the court's opinion and observe that it raises issues outside the scope of that opinion. The court of appeals' decision leaves the determina- tion of a backpay formula to the discretion of the Board without limitation as to the type of formula selected. Its decision requires only that the formula be representative of Castor's employment history and take into account intermittency of employment in the industry unless, for some justifiable reason, Castor would not have been affected thereby. While the court termed Castor an average iron- worker, we know from facts already adduced in these proceedings that the Company was satisfied with his work and that Castor "would have been continued in his employment for some indefinite time except for the Union discrimination" (532 F.2d at 1243).5 The task in backpay proceedings-to determine the amount the employee would normally have earned proceedings, affirmed by the court of appeals. We observe particularly that Castor was hired as a qualified journeyman ironworker. He was paid a journeyman's rate and, as the company superintendent testified, Castor was considered a permanent employee . (192 NLRB at 1071.) He worked continuously since his date ofhire. Ibid He had been assigned to the BART INTL. ASSN. OF BRIDGE, IRON WORKERS, LOCAL 378 693 during the backpay period-is not simple. No formu- la can measure exactly what the discriminatee is owed because he did not work during that period. The court recognized that "in making this determination, the Board acts with broad discretion." 532 F.2d at 1242. We cannot at this time determine a definite formula that will measure exactly what Castor would have earned for the 26-month period in question. In light of the court of appeals' decision, consideration must be given to the intermittency of employment in the industry as it affected Castor, though it is, of course, possible that additional evidence would show that Castor would have been relatively unaffected thereby. The court's opinion leaves open to the General Counsel the possibility of devising another formula, or establishing another representative em- ployment example, suitable to measuring Castor's backpay while taking into account the factors which project after working 4 to 5 months on another Judson project . 192 NLRB at 1072. This certainly indicates that the Company was satisfied with Castor's performance and that he could reasonably expect future employment At the time Respondent Union compelled the Company to discharge Castor, Castor was told by Judson's superintendent , who hired him, that he would be rehired when the Union prepared a proper clearance. Ibid We note too that in the initial unfair labor practice proceeding, when the General Counsel sought to question the superintendent as to any reports the court felt made the formula or example previously utilized not reflective of the employment situation in this case. Pursuant to the decision of the court of appeals we remand this case to the Regional Director for further action as ordered herein. ORDER It is hereby ordered that this proceeding be, and it hereby is, remanded to the Regional Director for Region 20 for issuance of a new backpay specifica- tion recomputing the backpay owed by Respondent to Robert L. Castor, utilizing an appropriate formula for the backpay period May 8, 1970, to July 25, 1972, in a manner not inconsistent with the opinion of the court of appeals. received by him from foremen about Castor's competence, Respondent's attorney objected on the ground that competence had nothing to do with the complaint. Thereafter _the Trial Exanuner (now Administrative Law Judge) sustained the objection. In our judgment, it is too late in the day for Respondent Union to now assert, as it does in its statement of position, that Castor is not entitled to the wages of the representative employee because of his "relative lack of skill."