Newton Associates

DECISIONS OF NATIONAL LABOR RELATIONS BOARD United Brotherhood of Carpenters and Joiners of America, Local Union No. 347, AFL-CIO (New- ton Associates) and Charles T. Summers and Jimmy Herrington. Cases 14-CB-3068 and 14- CB--3072-1 August 29, 1977 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS PENELLO AND MURPHY On May 27, 1977, Administrative Law Judge George Norman issued the attached Decision in this proceeding.' Thereafter, the General Counsel filed an exception and a supporting brief. 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 Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order, as modified herein. 2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the recommend- ed Order of the Administrative Law Judge, as modified below, and hereby orders that the Respon- dent, United Brotherhood of Carpenters and Joiners of America, Local Union No. 347, AFL-CIO, Mattoon, Illinois, its officers, agents, and representa- tives, shall take the action set forth in the said recommended Order, as so modified: Delete the balance of the sentence after the words "his name" and substitute the following: "in accor- dance with the formulas set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), Isis Plumbing & Heating Co., 138 NLRB 716 (1962), and Florida Steel Corporation. "3: ' The Board's original Order in this proceeding is not reported in bound volumes of Board Decisions. 2 The General Counsel excepts to that portion of the Administrative Law Judge's recommended Order requiring Respondent to deduct state and Federal taxes from the backpay due each discriminatee. We find merit in this exception inasmuch as it is well settled that payment of' backpay by a labor organization is not treated as wages paid by or on behalf of an employer. International Photographers of the Motion Picture Industries, Local 659 of the International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of the United Slates and Canada (MPO-TV of California, Inc., Y-A Productions, Inc.), 216 NLRB 633. fn. 2 (1975); International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, Local 249, AFL-CIO (Lancaster Transportation Company), 116 NLRB 399, 400 (1956), enfd. 244 F.2d 292 (C.A. 3, 1957). 231 NLRB No. 65 In the absence of further exceptions, we adopt the Administrative Law Judge's conclusions and recommendations. I In accordance with our decision in Florida Steel Corporation, 231 NLRB 651 (1977), we shall apply the current 7-percent rate for periods prior to August 25, 1977, in which the "adjusted prime interest rate" as used by the Internal Revenue Service in calculating interest on tax payments was at least 7 percent. SUPPLEMENTAL DECISION GEORGE NORMAN, Administrative Law Judge: On June 19, 1976, the Board, pursuant to Section 10(c) of the National Labor Relations Act, as amended, and Section 102.48 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, adopted the findings and conclusions of the Administrative Law Judge as contained in his Decision, and ordered United Brother- hood of Carpenters and Joiners of America, Local Union No. 347, AFL-CIO, herein Respondent, its officers, agents, and representatives, to take the action set forth in the recommended Order of the Administrative Law Judge.' The foregoing Board Order was issued after no statement of exceptions had been filed with the Board within the time allowed by Board regulations. The Board found that, by preferring internal charges against Clifford Kirby, Sr., and Charles T. Summers in retaliation for their filing unfair labor practice charges against it, Respondent violated Section 8(b)(1)(A) and Section 2(6) and (7) of the Act. The Board also found that, by failing to refer Jimmy Herrington, Clifford Kirby, Jr., Clifford Kirby, Sr., and Wayne Kirby for employment at Newton Associates because they filed, or were named as discriminatees in, unfair labor practice charges against it, Respondent further violated Section 8(b)(1)(A) of the Act. The Board ordered Respondent to make the aforemen- tioned individuals whole for any loss of pay or other benefits resulting from the discrimination, the backpay to be computed on a quarterly basis, plus interest at 6 percent per annum in accordance with F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962), and to offer them referrals to the next available jobs for which they were qualified at Newton Associates, their former place of employment. 2On January 31, 1977, the Regional Director for Region 14 issued a backpay specification and notice of hearing, to which Respondent duly filed an answer. 3 The matter was heard before me in Charleston, Illinois, on February 23, 1977. A posttrial brief was filed on behalf of the General Counsel; a one-page memorandum was filed on behalf of Respondent. United Brotherhood of Carpenters and Joiners of America, Local Union No. 347, AFL-CIO (Newton Associates). Case 14-CB-3068, 14-CB- 3072 1, JD-287-76 (issued May 3, 1976. by Administrative Law Judge Marion C. Ladwig), adopted by the Board on June 18. 1976, in the absence of exceptions. 2 Upon application of the Board to the United States Court of Appeals for the Seventh Circuit, on January 5, 1977, the court entered an order enforcing the Board's Order of June 18, 1976 (76-2238). 3 Respondent's answer raised certain issues which were raised at the hearing before the Administrative Law Judge with respect to which the Administrative Law Judge made specific findings in his Decision referred to above. By motion dated February 16, 1977, the General Counsel moved to strike 688 CARPENTERS, LOCAL UNION NO. 347 Upon consideration of the entire record,4 the General Counsel's brief, and the memorandum on behalf of Respondent, I make the following: FINDINGS AND CONCLUSIONS In its one-page posthearing memorandum, Respondent contends the following: Jimmy Herringto [sic] and Clifford Kirby, Jr. were engaged in the contracting business under the name of J & S Enterprises. the [sic] built a house for Jerome "Chesty" Hartke. They borrowed the money from the First National Bank of Effingham. Mr. Marry was the financial officer that handled the transaction. James Herrington and Clifford Kirby, Jr. admitted that they working [sic] and drawing unemployment compensation at the same time. Local Union 347 has a signed agreement with the unemployment office that allows the out of work members to have a card signed (enclosed) so they will not have to seek work other than through the union. The card must be signed once a month. Neither of these men had their card signed. they [sic] were not seeking work. Also, these men could not turn down work and still draw compensation. Under these circumstances I cannot see why Local 347 would be liable for wages during this period. The issue of self-employment of Jimmy Herrington and Clifford S. Kirby, Jr., was left open at the hearing.5 The General Counsel called Jimmy K. Herrington as his first witness. He testified that he and Clifford S. Kirby, Jr., also known as Sam Kirby and referred to herein as Sam Kirby, entered into a partnership for the purpose of building a home under contract for a friend, Jerome Hartke. The partnership was called J & S Enterprises. The house was to be built in Teutopolis, Illinois, a short distance from Effingham, Illinois. Herrington and Sam Kirby received a letter of commitment from Hartke through a savings and loan institution in Effingham, and then cosigned a note with Hartke at a bank in order to obtain a loan. Construction of the Hartke house commenced in the second week of January 1976, and was completed in the last week of May 1976. The partners made no specific arrangements with respect to the time they would spend building the house other than they would work in their spare time, including weekends, until the house was completed. They also made arrangements' with Hartke that they were to remain available for other work if they were referred to ajob by the Union. Herrington lived on a farm in Newton, Illinois, which is 30 miles from Effingham. He made arrangements with his wife that she or someone else was to be at home 24 hours a day to answer the phone. If she got a call from the Union, she was to call Sam Kirby's wife who lived in Effingham Respondent's answer on the basis that (I) the findings of the Administrative Law Judge are resjudicata, and with respect to those matters they should be considered admitted and (2) the Respondent failed to answer specifically as required by the regulations the allegations contained in pars. I through 12 of the backpay specification and notice of hearing. I granted the motion. Errors in the transcript have been noted and corrected. General Counsel also moved to amend "Appendix B" of the and who would in turn take the message to Herrington and Sam Kirby if they happened to be on the Hartke house construction job at the time. That was the only construction project that the partner- ship of Herrington and Sam Kirby worked on since their last employment through the Union. Herrington testified that since March 5, 1976, he was in the union hall three or four times, attended union meetings, and called the union hall numerous times. In response to Business Agent McWilliams' questions, Herrington testified that he was out of work for 9 months waiting for a call from McWilliams, during which time he drew unemployment compensation even while working on the Hartke construc- tion project. Herrington said he called the assistant business agent, Larry Butler, in June 1976, and told him that he had gone to Oklahoma and checked with the locals down there and that, if he could get a clearance card from Butler, he would clear out of Butler's local and enter a local in Oklahoma and relieve Butler of the responsibility of referring him out of his local. He said that at first Butler responded that it was impossible; that he could not do it; that he could not sign a clearance card; but then stated, "I will get it in the mail today." 6 Herrington also testified that he called Butler about work, took his union book in and paid union dues, and, in the month of June 1976, went to a local business meeting with Sam Kirby. Sam Kirby's testimony corroborated that of Jimmy Herrington. Both testified without contradiction that they lost money on the Hartke house and neither received any wages for constructing the house. Sam Kirby testified that, when McWilliams became the business agent, McWilliams requested that Sam Kirby sign a slip of paper (at a meeting) indicating that Sam Kirby had asked McWilliams if there was any work available. At the time McWilliams told him that "they were talking about hiring some millwrights down at the plant." Business Agent McWilliams testified that Sam Kirby did contact his office one time, sometime after March 5, 1976, for work and that that was the only time he could recall having heard from Sam Kirby with respect to seeking work. He further testified that he did not recall whether Sam Kirby's name was on the work list to go to work after March 5. He believed it might have been but it was too long ago to remember positively. McWilliams said that his office never contacted or attempted to contact either Clifford S. Kirby, Jr., or Jimmy Herrington for the purpose of referring them to a job. Herrington and Sam Kirby formed their own construc- tion firm for the purpose of building a house for Hartke in the absence of referrals from Respondent. They made arrangements to receive any referrals from Respondent while so employed, but none was made. They had not removed themselves from the labor market and were ready at any time to accept appropriate referrals. The evidence specifications to reflect certain corrections of figures in the specifications that were brought to the attention of the General Counsel prior to the heanng. Without objection from the representative of Respondent, the motion was granted. 6 There is no evidence that a clearance card was ever mailed to Hemngton. He did visit his mother in Oklahoma, leaving her address with Butler before he left. 689 DECISIONS OF NATIONAL LABOR RELATIONS BOARD shows clearly that Herrington and Sam Kirby had no interim earnings as a result of their joint venture to build a house for Hartke but, in fact, sustained a loss. A discriminatorily discharged employee must make reason- able efforts to secure new employment substantially equivalent to the position from which he was terminated. N.L.R.B. v. Miami Coca-Cola Bottling Company, 360 F.2d 569, 575 (C.A. 5, 1966). A discriminatee's effort to obtain interim employment need only be an "honest good-faith effort." N.L.R.B. v. Cashman Auto Company and Red Cab Company, 223 F.2d 832, 836 (C.A. 1, 1955). I am satisfied that both met that test. The Board has a longstanding rule that, while the general burden of proof is upon the General Counsel to establish the damage which has resulted from Respondent's estab- lished discriminatory discharge, i.e., the gross backpay over the backpay period, the burden of proof is upon the Respondent as to diminution of damages, whether from the willful loss of earnings by the failure to either look for or keep a substantially equivalent job or from the unavailabil- ity of a job for some reason unconnected with the discrimination. Phelps Dodge Corporation v. N.LR.B., 313 U.S. 177 (1941); N.L.R.B. v. Reed & Prince Manufacturing Co., 130 F.2d 765 (C.A. I, 1942); Monroe Feed Store, 122 NLRB 1479 (1959); Brown and Root, Inc., et al., 132 NLRB 486 (1961); Mastro Plastics Corporation, 136 NLRB 1342 (1962). Respondent attempted to show that Herrington at no time advised the Union of his out-of-work status. Herrington testified that he had talked on at least four occasions to Financial Secretary Butler concerning his work status. Butler, who was present in the courtroom, did not testify. Thus, Respondent has failed to meet its burden of proof and the credible evidence establishes that Herrington did not remove himself from the labor market. Neither Jimmy Herrington nor Clifford S. Kirby, Jr., removed themselves from the labor market or incurred willful loss of earnings due to their self-employment. Therefore, I shall recommend that they be awarded the amount of backpay as set forth in the backpay specifica- tion. McWilliams stated that he was not contesting the way Mr. Hayden, the compliance officer in the Regional Office, calculated the backpay. He said that he did not question that whatsoever. When I asked whether he meant he was not questioning the formula or the method on which the backpay was computed, his response was that he was not. I find that the appropriate measure of hours each of the discriminatees could have worked is the average hours worked per week, by calendar quarter, by all carpenters who remained in the employ of the employer, Newton Associates, during the backpay period. The backpay period for Jimmy Herrington begins September 28, 1975, the date the employer would have recalled him, and ends June 30, 1976. The backpay period for Clifford S. Kirby, Jr. (Sam Kirby), begins on September 30, 1975, the date the 7 Clifford S. Kirby, Sr.. and Wayne Kirby were present in the courtroom during the proceedings and available to testify if Respondent wished to call them. I Average hours worked by the Carpenters who remained in the employment of Newton Associates for Quarter 1976-4 are used for Quarter 1975 3 because the discriminatees would have worked only a fraction of this quarter. employer would have recalled him, and ends June 21, 1976. The backpay period for Clifford S. Kirby, Sr.,7 begins September 11, 1975, the date the employer would have recalled him, and ends June 21, 1976. The backpay period for Wayne Kirby begins October 6, 1975, the date he would have been recalled by the employer, and ends June 21, 1976. The average hours worked by all carpenters who remained in the employ of Newton Associates from September 11, 1975, through June 30, 1976, is as follows: Mth. Carps. Total Hra. Adi. Avg. Br. 1975-4 8 Oct. 32 Nov. 38 Dec. 37 5,779.5 180.6 5,647 148.6 5,749 155.38 (34.61) ./ 1976-1 Jam. 21 2,805 133.57 lrb. 22 3,163 143.77 Mar. 29 4,903.5 169.09 (37.20) 10/ 1976-2 Apr. 29 4,415 152.24 Yny 20 3,152 157.6 June 26 4,836.5 186.01 (35.42) 1.1/ Quarterly gross backpay for each discriminatee was determined by multiplying the hours, as determined above, by the wage rate each discriminatee would have received during the backpay period. The hourly rate for carpenters at the time Respondent failed to refer the discriminatees was $9.65. Effective May 1, 1976, the hourly rate was increased to $10.55. Each discriminatee is entitled to contributions to the Carpenters pension fund which the employer would have contributed to on their behalf at the rate of 30 cents per man-hour during the backpay period as follows: PAYrNT TO CARPESTEkS PENSION FUND JIMMY K.HERRINGTON 1975-3,-I 13.4 vik., 34.61 1976-1 13 vks., 37.2 1976-2,-3 13.2 vks., 35.42 CLIFFORD S. . * 1975-3,-4 13.2 vk.., 34.6 1976-1 13 vks., 37.2 1976-2,-3 11.8 vks., 35.42 CLIFFORD S.KIRBT.SR. 1975-3 2.8 vks., 34.6 1975-4 13 wks., 34.6 1976-1 13 vki., 37.2 1976-2 11.8 vuk., 35.42 WAYNE KIRB 1975-4 12 vka., 34.6 1976-1 13 vks., 37.2 1976-2 11.8 vka., 35.42 hra. R 5.30 $139.13 hra. 61 $.30 145.08 hr.. ' 5.30 140.26 hrs. e $.30 $137.06 br.. a 5.30 145.08 hr.. e 5.30 125.39 hr.. 4 5.30 bra. - $.30 hra. e 5.30 hrs. a S.30 $ 29.07 134.98 145.08 125.39 hr.. a 8.30 5124.60 hrt. 5$.30 145.08 hra. 4 S.30 125.39 TOTAL 51,661.59 9 Average weekly hours for the quarter are computed by dividing the total adjusted average hours for the quarter by 14 weeks. The period covered is September 24, 1975, through December 30, 1975. i0 Average weekly hours for the quarter are computed by dividing the total adjusted hours for the quarter by 12 weeks. ii Average weekly hours for the quarter are computed by dividing the total adjusted hours for the quarter by 14 weeks. 690 CARPENTERS, LOCAL UNION NO. 347 Jimmy K Herrington: Herrington's backpay period begins September 28, 1975, and continues through June 30, 1976. Herrington's rate of pay from September 28, 1975, through April 30, 1976, would have been $9.65 per hour. From May 1, 1976, through June 30, 1976, his rate of pay would have been $10.55 per hour. Herrington's gross backpay through June 30, 1976, is as follows: For the third quarter of 1975, September 28 through September 30, .4 week at $333.99 (34.61 average hours x $9.65) with no interim earnings, Herrington's net backpay is $133.60. For the fourth quarter, October I through December 12, 13 weeks at $333.99 (34.61 average hours x $9.65), with no interim earnings, his net backpay is $4,341.87. For the first quarter in 1976, December 31, 1975, through March 30, 1976, 13 weeks at $358.98 (37.20 average hours x $9.65), his backpay is $4,666.74. For the second quarter in 1976, March 31 through June 29, 5 weeks at $341.80 (35.42 average hours x $9.65) and 8 weeks at $373.68 (35.42 x $10.55), less no interim earnings, his net backpay is $4,698.44. For the third quarter in 1976, June 30, .2 week at $373.68, with no interim earnings, his net backpay is $74.74. Herrington had no expenses during the backpay period and no interim earnings during the backpay period. Clifford S. Kirby, Jr.: Clifford S. Kirby, Jr.'s backpay period begins September 30, 1975, and continues through June 21, 1976. His rate of pay from September 30, 1975, through April 30, 1976, would have been $9.65 per hour. From May 1, 1976, through June 21, 1976, his rate of pay would have been $10.55 per hour. His gross backpay from September 30, 1975, through June 21, 1976, is as follows: For the third quarter in 1975, September 30, .2 week at $333.99 (34.61 average hours x $9.65), with no interim earnings, Kirby's net backpay is $66.80. For the fourth quarter in 1975, October I through December 30, 13 weeks at $333.99 (34.61 average hours x $9.65), less interim earnings, of $253.20 with Dial Construction Company, his net backpay is $4,088.67. For the first quarter in 1976, December 31, 1975, through March 30, 1976, 13 weeks at $358.98 (37.20 average hours x $9.65), less no interim earnings, his net backpay is $4,666.74. For the second quarter in 1976, March 31 through June 21, 5 weeks at $341.80 (35.42 average hours x $9.65) and 6.8 weeks at $373.68 (35.42 average hours x $10.55), with no interim earnings, his net backpay is $4,250.02. Clifford S. Kirby, Jr., had no expenses during the backpay period and earned during the backpay period the amount set forth in item 2. 12 With respect to Clifford S. Kirby. Sr.. counsel for the General Counsel moved to amend Appendix B of the specifications as follows: For the Quarter 1975-4. under the heading "Intenm Earnings Christy- Foltz, Inc.," the figure "$4.242.30" should be corrected to read "$4.404.70.' and the "Net Interim Earnings" would be increased by $162.40 to "$3,342.90." The "Net Backpay" for Quarter 1975-4 should Clifford S. Kirby, Sr.: 12 Clifford S. Kirby, Sr.'s backpay period begins September 11, 1975, and continues through June 21, 1976. His rate of pay from September II11, 1975, through April 30, 1976, would have been $9.65 per hour. From May 1, 1976, through June 21, 1976, his rate of pay would have been $10.55 per hour. His gross backpay through June 21, 1976, is set forth as follows: CLlIPOED S. KLRut, SL 1975-3 Cross backpay 9/11 tbru 9/30/75 2.8 vki at $333.99 (34.61 avg bra x $9.65) Interim Earnings Interim Expenses Net luterim Earnings Net Beckpay 1975-4 Cross backpay 10/1 thru 12/30/75 13 vks at $333.99 (34.61 avg bra · $9.65) Interim Ea ringe: Chriety-?oltz, Decatur 10/6 to 12/18/75 In terim Expenses Trip to Decatur for work Phone To & from Decatur 932 alies per vk, 11 vks · 5.10 Net Interim Earnings Net Backpay 1976-1 Cross backpay 12/31/75 thru 3/30/76 13 vks at $358.98 (37.20 avg hr a x 9.65) Interim Earnings: C B Builders, Centralia 3/3 thrn 3/30/76 Interim Expenseu Difference in mileage 292 miles per wk X 4 vki 5$.10 per xi Work permit Local 2122 Net Interim Earnings Net lackpay 1976-2 Cross Backpay 3/31 thru 6/21/76 5 vks at $341.80 (35.42 avg b a x $ 9.65) 6.8 vksa t $373.68 (35.42 avg hrs x $10.55) Interim Earnings: C B Builders Interim Expenses Work permit Local 480 Difference in mileage 412 miles x 11.8 vks x· .10 Net Interim Earnings Net Backpay $1,135.57 00.00 00.00 $ 00.00 1,135.57 $4,341.87 $4,404.70 $ 33.00 3.60 $1.025.20 $3,342.90 998.97 $4,666.74 $1,449.60 $ 116.80 24.00 $1,308.80 3. 358. 74 $1 709.00 $2,541 .02 $5 708.23 $ 40.00 $ 486.16 $4,182.07 67.95 read "$998.97" instead of "SI1,161.37." In the summary on p. 4 of the backpay specifications. under the column with the heading "WAGE" the correct figure should be "$5,561.23" instead of "S5.723.63." The total figure to read "$5,995.75" instead of"$6.158.15." Respondent had no objection to the motion to amend and it was granted. 691 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Wayne Kirby: Wayne Kirby's backpay period begins October 6, 1975, and continues through June 21, 1976. His rate of pay from October 6, 1975, through April 30, 1976, would have been $9.65 per hour. From May 1, 1976, through June 21, 1976, his rate of pay would have been $10.55 per hour. Wayne Kirby's gross backpay, interim earnings, and interim expenses are as follows: WAYNE KIRBY 1975-4 Cross backpay 10/6 thru 12/30/75 12 vks at $333.99 (34.61 avg hrs x $9.65) Interim Earnings: Christy-Folts, Decatur 10/6 thru 12/22/75 J. L. Simmons, Decatur 12/23 thru 12/24/75 Interim Expenses: Move to Decatur Net Interim Earnings Net Backpay 1976-1 Gross backpay 12/31/75 thru 3/30/76 13 vks at $358.98 (37.20 avg hrs x $9.65) Interim Expenses: Gale Buker Construction 2/28 thru 3/27/76 Interim Expenses: Hove beck to Iuka Seeking work 50 miles at $.10 Net Interim Earnings Net Backpay 1 976-2 Cross backpay 3/31 thru 6/21/76 5 wks at $341.80 $4,007.88 $4,124.71 159.36 $ 125.00 $4,159.07 00.00 $4,666.74 $1,253.00 S 125.00 $ 5.00oo $1, 123.00 3,543.74 (35.42 avg hra x $9.65) 6.8 wks at $373.68 (35.42 avg hbra x 10.55) Interim Earnings Interim Expenses Net Interim Earnings Net Backpay $2,541.02 $ 00.00 $ 00.00 $ 00.00 $4,250.02 The facts and calculations set forth above are summa- rized as follows: The obligation of Respondent to make whole employees Jimmy Herrington, Clifford S. Kirby, Jr., Clifford S. Kirby, Sr., and Wayne Kirby under the Board's Order and court's decree will be discharged by the payment to them of the amount set forth opposite their names in the Order below, plus interest accrued to the date of payment pursuant to each Order and decree, minus the tax withholding required by Federal and state laws. On the basis of the above findings and conclusions and the entire record in this case, it is recommended that the Board issue the following: ORDER The Respondent, United Brotherhood of Carpenters and Joiners of America, Local Union No. 347, AFL-CIO, its officers, agents, and representatives, shall make Jimmy K. Herrington, Clifford S. Kirby, Jr., Clifford S. Kirby, Sr., and Wayne Kirby whole by payment to each the sum indicated below opposite his name, with interest at 6 percent per annum computed on the basis of calendar quarters, less tax withholding required by Federal and state laws. WAGE PENSION TOTAL Rerrington, Jibmy K. $13,915.39 $424.47 Kirby, Clifford S., Jr. 13,072.00 407.53 Kirby, Clifford S., Sr. 5,561.23 434.52 Kirby, Wayne 7,793.76 395.07 $1,709.00 $14, 339.86 13,479.53 5,995.75 8,188.83 692