United Contractors Incorporated, JMCO Trucking Incorporated, Joint Employers

UNITED CONTRACTORS INCORPORATED United Contractors Incorporated, JMCO Trucking Incorporated, Joint Employers and Chauffeurs, Teamsters and Helpers "General" Local Union No. 200, affiliated with the International Broth- erhood of Teamsters, Chauffeurs, Warehouse- men and Helpers of America. Cases 30-CA- 4253, 30-CA-4264, 30-CA-4437, and 30-CA- 4485 February 12, 1982 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZIMMERMAN On August 9, 1979, the National Labor Relations Board issued its Decision and Order in the above- entitled proceeding' finding, inter alia, that Re- spondents had violated Section 8(a)(3) and (1) of the National Labor Relations Act, as amended, by discriminatorily laying off employees Guy Bourdo, Milan Mix, and Percy Williams. The Board or- dered that they be reinstated and made whole for any loss of earnings suffered by reason of the dis- crimination against them. On July 30, 1980, the United States Court of Appeals for the Seventh Circuit issued its judgment 2 enforcing the Board's Order. Thereafter, the Regional Director for Region 30 issued and served on the parties a backpay specifi- cation and notice of hearing on December 9, 1980. Respondents filed an answer on January 12, 1981, 3 in which they denied the allegations of the specifi- cation. On January 13, and March 18 and 19, a hearing was held before Administrative Law Judge Irwin H. Socoloff for the purpose of determining the amounts of money due under the backpay spec- ification.4 On June 30, Administrative Law Judge Socoloff issued the attached Supplemental Decision in this proceeding. Thereafter, Respondents filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the Administra- tive Law Judge's Supplemental Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached Supplemental Decision in light of the ex- ceptions and briefs and has decided to affirm the rulings, findings,5 and conclusions of the Adminis- ' 244 NLRH 72 2 631 F.2d 735 3 All dates are in 1981 unless otherwrie indicated 4 The cases herein were consolidated for purposes of hearing with Case 30-CA-2885, which involved Ihe same parties s Respondents hasve excepted to certain credihility finding made hby Ihe Administrative l.asv Judge It is the Hoard' establilshed policy not to 260 NLRB No. 31 trative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondents, United Con- tractors Incorporated, JMCO Trucking Incorporat- ed, Joint Employers, Menomonee Falls, Wisconsin, their officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. overrule an administrative law judge's resolutions with respect to credi- hilily unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect Standard Dry Wall Products. Inc., 91 NL RB 544 11950), enfd 188 F2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing his findings SUPPLEMENTAL DECISION STA'rtFMENT OF THEI CASE IRWIN H. SOCOIOFF, Administrative Law Judge: On August 9, 1979, the Board issued its Decision and Order (244 NLRB 72) directing Respondent, inter alia, to take certain affirmative action to remedy the unfair labor practices therein found, including the reinstatement of certain individuals and payment to them of backpay. Thereafter, on July 30, 1980, the Court of Appeals for the Seventh Circuit entered its judgment enforcing the Board's Order (631 F.2d 735). The present controversy concerns the amount of backpay due to discriminatorily discharged truckdrivers Milan Mix, Guy Bourdo, and Percy Williams, and the amounts required to be paid on their behalf to contractually established fringe benefit funds, under the terms of the Order. Pursuant to notice, hearing in this matter' was held before me in Milwaukee, Wisconsin, on January 13 and March 18 and 19, 1981, at which the General Counsel and Respondent were represented by counsel and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence. Thereafter, the parties filed briefs which have been duly considered. Upon the entire record in this case, and from my ob- servations of the witnesses, I make the following: FINDINGS AND CONCLUSIONS The backpay specification seeks recovery of lost wages and fringe benefit contributions for Bourdo and Williams, covering the period June 27 to July 26, 1977, and wages and contributions for Mix, Bourdo, and Wil- liams, covering the period November 11, 1977, until the respective dates of reinstatement of those discriminatees; namely, January 14, 1978, April 15, 1978, and April 8, I hee cases were consolidated for purposes of hearing, only, w.th Case 3()-CA -2885. in*oll ling the sanme parties 225 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1978. For the first layoff period backpay awards are sought covering the entire period based on the average weekly earnings of the discriminatees during the weeks preceding the unlawful layoffs. For the second period, the specification seeks backpay based on the hours actu- ally worked by replacement drivers, as reflected in JMCO payroll records. The method of computation for the second layoff period, as contained in the specification, takes into ac- count the irregular and/or seasonal nature of Respond- ent's business, as found by the court of appeals in a prior backpay case involving the same discriminatees. The specification thus limits backpay sought to the earnings of the replacement drivers, DuQuaine, Schlei, and Watson, which are assigned to the discriminatees on the basis of seniority. Respondent agrees that hours worked by replacement drivers constitute the proper measure of backpay, but contends, nonetheless, that the hours worked as truckdrivers by nonunit employees DuQuaine (a mechanic), Schlei (a machine operator), and Watson (a cement finisher) are not properly assigned to the discri- minatees. Thus, Respondent argues that for layoff pur- poses it, historically, has maintained a companywide se- niority system under which, even absent the discrimina- tion, it would have assigned truckdriving work for this period to the senior nonunit employees while laying off the more junior bargaining unit employees. For the rea- sons stated in my second supplemental decision in United Contractors Incorporated, JMCO Trucking Incorporated, Joint Employers, Case 30-CA-2885 (JD-309-81, June 24, 1981), this contention is rejected. I conclude that the specification sets forth an appropriate measure of back- pay for the second layoff period.2 With respect to the first layoff period, JMCO payroll records do not reflect payments to replacement drivers for work performed during that time frame. However, in the underlying unfair labor practice case, the Board, with court approval, found that, during that period, while Bourdo and Williams were on layoff status, Re- spondent's trucks were driven by nonbargaining unit em- ployees Watson and Welda, as well as by Mix. More- over, Respondent's president, James Mews, testified at the instant backpay hearing that employees who engaged in truckdriving work may have been paid under an ac- count of United Contractors (the road construction entity) rather than an account of JMCO (the trucking services entity). While the United Contractors payroll re- cords are in evidence, they do not delineate the nature of the work for which wages were paid. In these circum- stances, the General Counsel argues that, "without pay- ' In its brief. Respondent appears to argue that the number of hours spent doing truckdriving work by replacement drivers may be best ascer- tained not from the payroll records of JMCO. Respondent's trucking services entity. but fron a compilation of "dumpsite slips" signed by drivers who hauled loads. during relevant periods. to one particular "dumpsite." However. the record evidence reflects that drivers do not always sign such a slip when hauling a load to that particular site More- over. JMCO()'s president. Mews, conceded in his testimony that, during relevant periods. loads were, or may have been. driven to other dump- sites. In addition. the record evidence does not show that the hauling loads to "dumpsites" was the only type, or even the primary type of truckdriving work performed during the layoff periods. For these rea- sons. I do not view the compilalion of "dumpsite" slips as a reliable indi- cator of the truckdriv ing uwork performed during the layoff periods. roll records indicating earnings for replacement drivers, it must be presumed, absent specific contrary evidence supplied by Respondent, that Bourdo and Williams would have worked as many hours on a weekly basis in June, 1977, as they averaged for the period prior to their layoffs." Further, the General Counsel urges, "the June, 1977, layoffs, are not subject to Respondent's claim that an average weekly wage method of backpay computa- tion fails to account for the seasonal nature of its oper- ations," particularly in light of the Board's findings, ap- proved by the Court, that the layoffs were not caused by the occurrence of slack periods. While it is true that the June-July 1977 layoff period did not occur at a time when Respondent's business nor- mally suffers from seasonal slowdowns, there is uncon- tradicted record evidence that the work of the business is irregular and subject to occasional slack periods even during the normally busy summer months. Nonetheless, in light of the earlier findings of the Board and the court in this case, that the layoffs were not caused by such slack periods, and that, during the layoff periods, the work of the discriminatees was performed by nonunit employees, I agree with the General Counsel that the "average wage" method of computing backpay must be deemed appropriate in the absence of reliable evidence to the contrary. As Respondent has not presented reliable evidence of replacement driver earnings during the first layoff period, or otherwise shown that the General Counsel's backpay formula is inappropriate, I conclude that the specification sets forth an appropriate measure of backpay for the first layoff period.3 Upon the foregoing findings, conclusions, and upon the entire record in this case, I hereby issue the follow- ing recommended: ORDER4 The Respondents, United Contractors Incorporated, JMCO Trucking Incorporated, Joint Employers, Meno- monee Falls, Wisconsin, their officers, agents, successors, and assigns, shall make Milan Mix, Guy Bourdo, and Percy Williams whole by payments to them in the amounts set forth below, together with interest thereon to be computed in the manner prescribed in F. W. Wool- worth Company, 90 NLRB 289 (1950), and Florida Steel :' Respondent contends that, after the May 31, 1977, expiration of its collective-bargaining contract with the Charging Party, the fringe benefit funds refused to accept tendered contributions. apparently because of the absence of a contract. However, the record evidence does not establish that such payments were. in fact, tendered. In any event in its Decision herein enforced by the court the Board found, inter alia, that Respondent had failed to bargain in good faith with respect to the terms of a succes- sor agreement, and had unlawfully made unilateral changes in wages and "working conditions. Respondent was ordered to honor and enforce the provisions of the expired contracl. until a new agreement is reached, and it) restore all benefits established pursuant to the contract. As part of that obligation. Respondent must tender contributions, per the contract, to the health and welfare and pension funds. in accordance with the backpay specification. for all entitlement weeks in the backpay periods 4 In the cevenl n1o cxcptions are filed as provided by Sec 102 46 of the Rules and Regulations of the National Labor Relations Board, the find- ings, conclusions, and recommended Order herein shall, as provided in Sec 102.48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections therlto shall be deemed waived fir all pruposes 226 UNITED CONTRACTORS INCORPORATED Corporation, 231 NLRB 651 (1977),5 less tax withholding required by Federal and state laws: Milan Mix Guy Bourdo Percy Williams $2,295.15 6,839.09 2,514.57 Respondents shall make payments, on behalf of Milan Mix, Guy Bourdo, and Percy Williams to the Milwaukee Area Truck Drivers Health and Welfare Fund, and the Central States, Southeast, and Southwest Areas Pension Fund, at the applicable contract rates, for those weeks during the backpay periods in which work was available for the discriminatees, as set forth in the specification, and found, above, plus lawful interest accrued to the date of payment. ' See, generally, Is Plumbing & Heating Co., 138 NLRB 716 (1962) SECOND SUPPLEMENTAL DECISION STATFMFNT OF THE CASE IRWIN H. SOCOIOFF, Administrative Law Judge: On September 19, 1975, the Board issued a Decision and Order in the above-entitled proceeding (220 NLRB), di- recting Respondent, inter aolia, to take certain affirmative action to remedy the unfair labor practices therein found, including the reinstatement of certain individuals and payment to them of backpay. Thereafter, on June 23, 1976, the Court of Appeals for the Seventh Circuit issued its judgment enforcing the Board's Order (539 F.2d 713, cert. denied 429 U.S. 1061). Subsequently, a controversy arose concerning the amount of backpay due to discriminatorily discharged truckdrivers Milan Mix, Guy Bourdo, and Percy Williams, and the amounts required to be paid on their behalf to contractually estab- lished fringe benefit funds, under the terms of that Order. Accordingly, a supplemental hearing was held before me on September 12, 1977, in order to resolve those issues and, thereafter, I issued my Decision recommending that Respondent be ordered to make certain payments to Mix, Bourdo, and Williams, and to the fringe benefit funds. On September 29, 1978, the Board issued a Supplemental Decision and Order (238 NLRB 893) adopting that rec- ommended Order which, in essence, awarded backpay to the discriminatees for the entire backpay period. On February 1, 1980, the Court of Appeals for the Seventh Circuit declined to enforce the Board's Supple- mental Order, holding that "the administrative law judge and the Board ignored uncontradicted evidence that the Board's backpay formula was inapplicable in this case" in that "economic factors may have prevented the dis- charged employees from working at JMCO during part of the layoff period" 614 F.2d 134. The court, noting evidence that work at JMCO was irregular and/or sea- sonal, and that "during slack periods driving was as- signed to available employees according to seniority, re- gardless of whether the worker usually drove a truck," remanded the case to the Board for a new hearing, con- cluding: An employer may, without incurring back pay li- ability, refrain from reinstating a discriminatorily discharged employee during a period when employ- ment would not have been available for him even absent the discrimination. .... The extent to which work at JMCO was seasonal is unclear. There is no doubt, however, that the work was irregular and that during slack periods newer employees were laid off. We remand this case to the Board for a new hearing on the company's contention that these factors justify a reduction of the back pay award. On July 10, 1980, the Board accepted the court's remand and ordered that the record be reopened to allow the parties to introduce evidence on the remanded issue. Thereafter, the General Counsel moved to amend the backpay specification. That motion is hereby granted. Pursuant to notice, hearing in this matter' was held before me in Milwaukee, Wisconsin, on January 13, and March 18 and 19, 1981, at which the General Counsel and Respondent were represented by counsel and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence. Thereafter, the parties filed briefs which have been duly considered. Upon the entire record in this case, and from my ob- servations of the witnesses, I make the following: FINDINGS AND CONCLUSIONS In its initial backpay specification, as amended on Sep- tember 2, 1977, the General Counsel sought backpay awards for Mix, Bourdo, and Williams, covering the entire backpay period, based on the average weekly earnings of those discriminatees during the months pre- ceding and following the layoffs. Subsequent to the deci- sion of the court, the General Counsel, as noted, amend- ed its specification. The amended specification is predi- cated upon the irregular and/or seasonal nature of Re- spondent's business, as found by the court, and seeks backpay, and fringe benefits contributions, based on the hours actually worked by replacement drivers during the backpay period, as reflected in JMCO payroll records. 2 Accordingly, the amended specification assigns the earn- ings of the replacement drivers, Van Roosenbeek, Franz, DuQuaine, Welda, and Watson, to the discriminatees on the basis of seniority. Under this method of computation there were no weeks during the backpay period in which work was available for Williams and, consequently, backpay is not sought for him.-' At this juncture, the issue to be resolved is a narrow one. Respondent concedes that the amended specification properly assigns to the discriminatees, for backpay com- putation purposes, the hours worked by Van Roosen- beek, Franz, and Welda during the layoff period. Thus, I This case was consolidated, for purposes of hearing, only, with Cases 30-CA 4253, 4264, 4437. and 4485. involNing the same parties. 2 Ihe revised specification takes into account that period in early 1975 when Bourdo. due to illness. swas unavailable for work I Likewise, the amended specification does not seek fringe benefit col- tributions for V'illiams for the layoff period but, rather. only for that period, prior to the layoffs. during which Respondent unlawfully refused to make fringe benefit contributllons 227 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Van Roosenbeek and Franz were hired as replacement drivers following the unlawful layoffs. Welda, a nonbar- gaining unit employee, has less companywide seniority than Mix or Bourdo. However, Respondent contends that hours worked by the other nonunit employees, Du- Quaine and Watson, are not properly assigned to the dis- criminatees since both DuQuaine and Watson have more companywide seniority than either Mix or Bourdo. This argument is premised on Respondent's claim that, for layoff purposes, it, historically, followed a companywide seniority plan under which, during slack periods, it would assign truckdriving work to senior nonunit em- ployees, able to perform the job, while laying off more junior unit employees. In its unpublished decision issued on July 30, 1980, 631 F.2d 735, the Court of Appeals for the Seventh Circuit, in a case involving the same parties, rejected this very contention. There, the court, in enforcing a Board Order (244 NLRB 72) which sought, inter alia, to remedy the subsequent illegal layoffs of Mix, Bourdo, and Williams, dismissed Respondent's argument that the layoffs were "caused by a lack of sufficient work and in accordance with a companywide seniority plan," holding: The timing of the layoffs and other testimony in the record supports the Board's inference of the illicit cause of the layoffs, and the employers' contention that the layoffs were caused by a lack of work and in accordance with the seniority plan is significantly undercut by testimony that during the period the bargaining unit employees were laid off, their trucks were driven by non-bargaining unit employees, at least one of whom had less seniority than Bourdo did. The employers' suggested interpretation of their seniority plan, one that would justify these layoffs,7 is lacking sufficient evidentiary support in the record and would contravene a provision in the collective bargaining agreement between the parties that expired in May 1977. 8 In these circumstances, we believe the Board's inference of an anti-Union animus behind the layoffs is justified and supported by substantial evidence. This court's prior decision in 'N.L.R.B. v. United Contractors, Inc. and JMCO Trucking, Inc. (No. 78- 2609, 7th Cir. 1980) is not inconsistent with this de- termination. In that case, this court had before it the Board's back-pay computation that required the em- ployers to pay for the entire period of the prior il- legal layoffs of Bourdo, Williams, and Mix. The computation was based upon the average weekly hours employees had worked in the months preced- ing and following the layoffs, and the employers complained that this computation failed to take into account the "seasonal variation" in the employers' business that would have resulted in a decrease in the hours the employees actually would have worked in the layoff period. This court agreed with the employers' argument and held that the Board's computation should have taken into account the evidence of these slack periods. That holding is ir- relevant to the present issue, however, for we do not interpret the Board's argument here to be that such slack periods did not exist, but rather that the present layoffs were not caused by the occurrence of these periods and were not in accordance with the actual seniority plan. I Mr. Mews. JMCO president. testified that his interpretation of the seniority plan was that: A man with one skill can have less seniority than someone else with less time on the job, if the person with less time on the job has a higher level of skill. K The provision read as follows The Employer. shall not direct or require its employees or persons other than the employees in the bargaining units here involved to perform 'work which is recognized as the work of the employees in said units The Board's order required the Company to honor and enforce the collective bargining agreement expiring in 1977 "until a new agreement is reached " The contract provision cited by the court has been in effect at all times material hereto. The clause, in full, provides: Work Assignments: The Employer hereby assigns all work involved in the operation of the Employ- er's truck equipment during the operation, loading and unloading thereof to the employees in the bar- gaining unit here involved. The Employer agrees to respect the jurisdictional rules of the Union and shall not direct or require its employees or persons other than the employees in the bargaining units here involved, to perform work which is recog- nized as the work of the employees in said units. This is not to interfere with bona fide unions. While there is record evidence that, in the years preced- ing the unlawful layoffs of 1974, truckdriving work was, at least occasionally, performed by nonunit employees, 4 there is a lack of evidence demonstrating that that oc- curred during periods when unit employees were on layoff status, President Mews' testimony that Respondent has, historically, followed a companywide seniority plan, at least for layoff purposes, has not been supported by credible evidence showing that such a practice was in effect prior to the discriminatory layoff period. Employee Frank Watson, a cement finisher, and Re- spondent's most senior employee on a companywide basis, testified that Respondent has, indeed, for layoff purposes, maintained a companywide seniority system. Watson, a qualified truckdriver, conceded that, in the years preceding the discriminatory layoffs of 1974, he was laid off during the winter periods while Mix and 4 Respondent's president. James Mews, testified that, by its inaction, the Ullion had acquiesced in a practice. contrary to the cited contractual provisionl, of assigning driving Work to) nonunit employeess. owever, there is no evidence that the Union became aware of such a practice prior Ito the Board hearings in the instant mailer which commenced early in 175 )On cross-examination, Mews conceded that, since that time, the Unionl has consistently protlested the making of such assignments At one point during his testimony, Mes appeared Io deny the existence of a driver's unit, conitending that "everyhbody il our company does every- thing. so everybody is in every unit" This answer was in conflict with McACs' response to a March 2X. 1980. interrogatory. in which hlie stated that Mix. lhourdo,. ircd Williams ucrc the ,nile employees in the drivers' unit 228 tNITI'I) C()NTRACI'ORS INCOR'PORAITEI) Bourdo, with less companywide senioritN, continued to drive. However, according to Watson, this occurred be- cause he would request a layoff each year in order to allow the unit drivers to continue to work.' I found Watson to be a vague, argumentative. hostile, and evasive witness and, accordingly, I have accorded little weight to his testimony, particularly in light of cer- tain credited uncontradicted testimony of Bourdo. Thus, Bourdo testified that in the 1970 to 1974 period during the fall and winter months awhile Watson was on layoff status, he, Watson, would visit the jobsites and tell Mix and Bourdo: "You guys really got it good. I'm laid off and you guys are working." Such statements by Watson belie his claim that his layoff status wias of a vol- untary nature. Respondent has again failed to demonstrate the exist- ence of a companywide seniority plan under which, even absent the discrimination, Mix and Bourdo would have been laid off during the backpay period while nonunit personnel performed the customary work of those em- ployees, that is, truckdriving. In reaching this conclusion, I rely on the factors set forth by the Court of Appeals for the Seventh Circuit in its July 30. 1980, opinion; Re- spondent's practice, prior to the discriminatory period, of laying off during slack periods its most senior employee, Watson, a qualified truckdriver, while retaining the serv- ices of unit employees with less companywide seniority Respondent's use of Welda, during the 1974 75 backpaN period, as a truckdriver, despite the fact that he enjoyed less companywide seniority than either Mix or Bourdo. I conclude that the amended specification seeking backpay based on the hours actually worked by replacement drix- ers sets forth an appropriate measure of backpay. " In 1974. Wats'on "as rec;lled from ia !,i I, slt u for a perlood of 2 weeks to drive a truck. it a timfe 'hen ilourdh) tk i Ill and tiUlan ,i Iahl. for work Upon the foregoing findings, conclusions, and upon the entire record in this case, I hereby issue the follow- ing recommended: ORDER 6 The Respondents, United Contractors Incorporated and JMCO Trucking Incorporated. Joint Employers. Menomonee Falls, Wisconsin, their officers, agents, suc- cessors. and assigns, shall make Milan Mix and Guy Bourdo whole by payments to them in the amounts set forth belowv. together with 6 percent interest thereon to be computed in the manner prescribed in Isis Plumbing & HIeating Co., 138 NLRB 716 (1962). less tax withholding required by Federal and state laws: Milan Mix $2,169.15 Guy Bourdo 1,678.42 Respondents shall make payments on behalf of Milan Mix, Guy bourdo, and Percy Williams to the Milwaukee Area Truck Drivers Health and Welfare Fund, and the Central States, Southeast and Southwest Areas Pension Fund, in the amounts set forth below, plus law ful interest accrued to the date of payment: Itul/itl and tRrel/are Fu it d Nilaln Mi\ IGu\y ourdoi Perct Williams FI-uind $445 50 519 (X) 4 1250) 48) 0() l(X) h 11895 , II ii. te c, e iI,) C,_cp rlt I arc filed Ias prow ided h) Sec 102 4t of the Rule, iand RcguIlall onm of the Nalional L abor Relations Board. the find- iligS, coiluclsaionI,. Iand rzcomillended Order helrein shaill, a, proilded l in Se, 10(2 48 of Ihe Rule and Rgulatin',e adopted he h Boarih d and hC.L ilC itm lintdinilgs *,. CI1CILioIii, alllnd Order, Aiiti a obetli (ol, thereto -hill he deemed m t alcdi fior all piurpomc, 229