International Association of Bridge, Structural and Reinforced Iron Workers Union, Local 378, AFL-CIO (Judson Steel Corporation)

IRON WORKERS, LOCAL 378 International Association of Bridge, Structural and Reinforced Iron Workers Union, Local 378, AFL-CIO (Judson Steel Corporation) and Robert L. Castor. Case 32-CB-1 (formerly 20-CB-2245) June 24, 1982 SECOND SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN VAN DE WATER AND MEMBERS JENKINS AND HUNTER On February 16, 1982, Administrative Law Judge Richard J. Boyce issued the attached Second Supplemental Decision in this proceeding.' There- after, Respondent filed exceptions and a supporting brief. 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 Second Supplemental Decision in light of the exceptions and brief and has decided to affirm the rulings, findings, and conclusions of the Admin- istrative Law Judge and to adopt his recommended Order, as modified herein. The Administrative Law Judge recommended that interest on the backpay award be computed as set forth in Florida Steel Corporation, 231 NLRB 651 (1977). However, the method of determining the interest rate set forth in that Decision is not ap- plicable in cases in which an earlier order of the Board providing for a different interest rate has been enforced by a court of appeals. Accordingly, we shall order interest to be paid at the rate of 6 percent, as ordered in our original decision and en- forced by the court of appeals. 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 Respondent, International Association of Bridge, Structural and Reinforced Iron Workers Union, Local 378, AFL-CIO, Oak- land, California, its officers, agents, and representa- tives, shall pay to the estate of Robert L. Castor the sum of $3,705, plus interest thereon to the date of payment, at the rate of 6 percent per annum as stated in the original decision. I The original decision is reported at 192 NLRB 1069 (1971). The sup- plemental decision is reported at 213 NLRB 457 (1974). 262 NLRB No. 56 SECOND SUPPLEMENTAL DECISION STATEMENT OF THE CASE RICHARD J. BOYCE, Administrative Law Judge: By de- cision reported at 192 NLRB 1069 (1971), the Board found that International Association of Bridge, Structural and Reinforced Iron Workers Union, Local 378, AFL- CIO (herein called Respondent), had violated Section 8(b)(1)(A) and (2) of the National Labor Relations Act, as amended, by causing Judson Steel Corporation (herein called Judson) to discharge Robert L. Castor on May 8, 1970. The Board's decision was adopted by the United States Court of Appeals, Ninth Circuit, in an unreported decision dated May 15, 1972.1 By supplemental decision reported at 213 NLRB 457 (1974), the Board determined that Castor was entitled to backpay from Respondent of $12,292, plus interest, and that Respondoent in addition should pay S1,986 into a pension trust fund on his behalf. This determination was premised upon acceptance of the contentions made in the backpay specification that the backpay period ran from the date of Castor's discharge until Respondent informed Judson on July 25, 1972, that it no longer objected to Castor's employment; and that 17 named ironworkers who had worked for Judson during each quarter of the backpay period comprised a representative group for purposes of positing Castor's wage levels and the number of hours he reasonably could have been expected to work had it not been for Respondent's misconduct. In a decision reported at 532 F.2d 1241 (1976), the Ninth Circuit declined to adopt the Board's supplemental decision, instead remanding the matter to the Board for further proceedings. The court's reasons were two: 2 i. The "representative-employee formula" relied upon was not "representative of Castor" inasmuch as the 17 ironworkers comprising the control group "were part of a group of 22 men who were the most steadily employed journeymen ironworkers out of all of the 150 who worked during the period," whereas Castor "was at best but an average ironworker," and "to treat him as one of the elite group of the most steadily employed was arbi- trary." 2. "[I]n 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 em- ployee involved would not have been affected by the fluctuations that affected the group as a whole." The Board accordingly issued an Order Remanding Proceeding to Regional Director, reported at 227 NLRB 692 (1977), with instructions to issue "a new backpay specification recomputing the backpay owed by Re- spondent to Robert L. Castor . . . in a manner not in- consistent with the opinion of the court of appeals."3 The Regional Director in turn issued a revised back- pay specification, dated April 30, 1981, alleging that Re- spondent's "obligation . . . will be discharged" by pay- ment to Castor's estate, he since having died, of $3,705, Reported unofficially at 80 LRRM 2627, 68 LC ¶ 12,730. 2 532 F.2d at 1243-44. s 227 NLRB at 693. 421 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "plus interest to the date of payment." In arriving at this figure, the revised specification departs from the original in two significant respects. First, it defines the repre- sentative group as 10 named ironworkers employed by Judson who: 1. "Were employed during the two full quarters in which Castor worked at Judson . . . prior to his loss of employment." 2. "Commenced their employment at approximately the same date or later than Castor." 3. Had "total earnings during the two full quarters prior to Castor's loss of employment . . . substantially similar to Castor's total earnings for that period." Second, the revised specification alleges that the back- pay period ended June 30, 1971, "at which time over one-half of the [10] employees in the representative sample had been laid off," rather than July 5, 1972.4 A hearing on the revised backpay specification was held before me in Oakland, California, on December 15, 1981. Respondent's Contentions Respondent contends in its brief that the revised speci- fication fails to cure the defects of its predecessor as con- cerns a representative group, asserting that "virtually all (of the 10] were journeyman ironworkers who had been in the trade for a long period of' time," and thus: The only thing that these ironworkers had in common with Mr. Castor was that they were em- ployed at about the same time by Judson. Respondent proposes no alternative representative-em- ployee formulation, instead arguing that, since Judson did not hire a replacement for Castor, no backpay should be owing; that, if this argument is rejected, the backpay period should be confined to about I week because, Jud- son's complement having shrunk from 32 on about May 8, when Castor was discharged, to about 17 by May 17, "it is unlikely that Mr. Castor would have survived the serious cutback in employment as of May 17";6 and that, if this argument also is rejected, the backpay period should end in August 1970 when Judson's complement on the project in question was reduced to two-the fore- man and the job steward. Respondent does not dispute the statements of fact contained in the revised specification. Conclusions It is concluded that the representative-employee for- mulation of the revised specification sufficiently consid- ers Castor's being "but an average ironworker" rather than "one of the elite group of the most steadily em- ployed"; that it is not otherwise arbitrary or unreason- 4 Although contending that the backpay period should run through June 30, 1971, the revised specification seeks no backpay after September 30, 1970, conceding that Castor's interim earnings from then on exceeded what he reasonably would have received from Judson. I Respondent elaborates, in support of this argument, that Castor was "an average ironworker"; that Judson "lays people off by the abilities of the people," as a Judson official did testify; that the operative labor agreement did not dictate that seniority he a factor in layoffs; and that, according to Respondent's business manager, Richard Zampa, Castor was not considered to be experienced in the trade able; and that it therefore overcomes the Ninth Circuit's objection to the original specification in that regard, and meets the liberal standards of discretion permitted the General Counsel in such matters. It is concluded that the revised specification's linking of the closing date of the backpay period to the time when over one-half of those in the control group were laid off also makes adequate allowance for Castor's being "but an average ironworker," and in addition satisfies both the court's mandate that "intermittency ... be taken into account" and, again, the considerable latitude given the General Counsel as concerns the computation of backpay. Respondent's argument that the 10 comprising the new control group had nothing in common with Castor other than that "they were employed at about the same time by Judson," the 10 having been "in the trade for a long period of time," is fallacious for at least two reasons. First, it is based on the testimony of its business manager, Richard Zampa, that, as of the time of the present hear- ing, over 11 years after the misconduct in question, 6 of the 10 had been journeymen for from 12 to 20 years. Second, it presupposes without any demonstrated basis that skill necessarily correlates with time in the trade; or, in the alternative and contrary to the evidence, that Judson tied order of layoff to time in the trade, as op- posed to relative skills. Respondent's other contentions likewise are rejected. To conclude from Judson's nonhire of a replacement that Castor is without entitlement would be to negate the ear- lier finding that Respondent's inducement of his dis- charge was unlawful, and ignores the point elsewhere stressed by Respondent that the project was winding down. That contention and Respondent's remaining two-the unlikelihood that Castor "would have sur- vived" the shrinkage of the complement from 32 to about 17 as of May 17, and the probability that he would have left the project before the August reduction of the complement to the foreman and the job steward-fail for the further reason that they disregard the distinct possi- bility that Judson, as it had before, would shift Castor to one of its other projects at such time as it had no need for him on the project in question. ORDER 6 The Respondent, International Association of Bridge, Structural and Reinforced Iron Workers Union, Local 378, AFL-CIO, its officers, agents, and representatives, shall pay to the estate of Robert L. Castor the sum of $3,705, plus interest thereon until paid in accordance with Isis Plumbing & Heating Co., 138 NLRB 716 (1962), as modified by Florida Steel Corporation, 231 NLRB 651 (1977). a All outstanding motions inconsistent with this Order hereby are denied. In the event no exceptions are filed as provided by Sec. 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions, and 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 thereto shall be deemed waived for all purposes. 422