Carrothers Construction Co., Inc.

762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Carrothers Construction Company, Inc. and Iron Workers Local Union No. 10. Case 17-CA- 8572 7 March 1985 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 23 September 1981 the National Labor Rela- tions Board issued its Decision and Order in the above-entitled proceeding i finding that the Re- spondent violated Section 8(a)(5) of the Act by re- pudiating its contract with the Union. The Board ordered that the Respondent make whole "Bill McGinnis, Pat McGinnis, and any persons as may be identified" for any losses they may have suf- fered by reason of the Respondent's failure to honor and abide by the terms of the collective-bar- gaining agreement. On 16 February 1984 the United States Court of Appeals for the Tenth Cir- cuit entered its judgment2 enforcing the Board's Order. A dispute having arisen over the amount of backpay due the claimants and pursuant to a back- pay specification and appropriate notice issued by the Regional Director for Region 17, a hearing was held before Administrative Law Judge Walter H. Maloney Jr. for the purpose of determining the amount of backpay due the discriminatees. On 4 October 1984 the judge issued the attached Second Supplemental Decision in this proceeding. Thereaf- ter, the Respondent filed exceptions and a support- ing brief. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings, and conclusions3 and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Carrothers Construction Company, Inc., Ottawa, Kansas, its officers, agents, successors, and assigns, shall take the action set forth in the Second Supplemental Order. 258 NLRB 175 The panel members here note that they did not par- ticipate in the underlying unfair labor practice case 2 NLRB v Carrothers Construction Co, No 82-1026 3 In adopting the judge's backpay determination in this case , we specif- ically disavow his characterizing as "frivolous" the Respondent's conten- tion that no interest on backpay should be awarded here because of the Board's asserted delays in processing the underlying unfair labor practice case Rather, we simply conclude that this argument is lacking in merit SECOND SUPPLEMENTAL DECISION WALTER H MALONEY, JR, Administrative Law Judge. This case came on for hearing before the me at Kansas City, Kansas, on August 20, 1984, in a supple- mental proceeding, upon a backpay specification, issued by the Regional Director for Region 17 of the National Labor Relations Board, which seeks backpay and interest from the Respondent for some 35 former employees who had been employed by the Respondent in its Iron Work- ers' bargaining unit in 1978 and 1979. On June 1, 1979, Administrative Law Judge David G. Heilbrun issued a decision in which he found that the Respondent herein violated Section 8(a)(1) and (5) of the Act by failing to honor the terms of a collective-bargaining agreement with the Charging Union. He directed the Respondent to make whole all of the employees who had been under- paid by virtue of this breach of the terms of the agree- ment, with interest calculated in the normal way. In a supplemental decision, issued on June 16, 1980, Judge Heilbrun considered the same case on remand from the Board and reaffirmed his earlier decision. On September 23, 1981, the Board affirmed the supplemental decision with minor modifications. 258 NLRB 175 (1981). In a de- cision, dated February 16, 1984, the United States Court of Appeals for the Tenth Circuit affirmed the Board's order and enforced it. The backpay specification in this case was issued by the Regional Director on July 23, 1984: The specification alleges specific amounts due to 35 former employees of the Respondent under the terms of the enforced order, together with interest to the date of the hearing in this supplemental proceeding. The discriminatees are named in the specification and separate amounts for principal and interest are set forth after each name. In its answer, filed about July 25, 1984, Respondent admits the amounts due to each named individual as principal. It denies any liability for the payment of interest, although it does not dispute the correctness of the mathematical computations of interest contained in the specification.' Respondent's only challenge to the backpay specifica- tion is the contention that it should not be called upon to pay any interest which has accrued on any backpay due and owing because of asserted delays in the processing of the original complaint case. Respondent attributes these delays to the failure of the General Counsel properly to plead the complaint case, and also to take action on the part of the Board in condoning this delay by allowing the General Counsel a second opportunity to litigate issues in the first supplementary proceeding which had not been litigated at the first hearing. The contention is frivolous Respondent has produced no facts and no argument in this proceeding which even remotely impugn the handling of the complaint case by the General Counsel or the Board. In order to do so, it would have been required, in the course of the backpay case, to litigate matters which had been previously liti- gated in the complaint case, something no respondent to a specification is privileged to do. Brown & Root, Inc., 132 NLRB 486 (1961); United States Air Conditioning Co., I The General Counsel's motion to correct the transcript is granted 274 NLRB No. 109 CARROTHERS CONSTRUCTION CO 763 141 NLRB 1278 (1963), Interurban Gas Corp., 149 NLRB 576 (1964). Even had the Respondent been successful in ignoring standard procedures by establishing its original conten- tion in this proceeding, such effort would have availed it naught. In general, laches may not defeat the action of a governmental agency in enforcing a public right. See Southland Mfg. Corp. v. NLRB, 475 F 2d 414 (D.C. Cir. 1973). More particularly, the Supreme Court has held, with respect to a similar contention in a backpay case, that the consequences of delay on the part of the Board in prosecuting a claim for backpay do not extinguish an employer's obligation or diminish the rights of its em- ployees. "Wronged employees are at least as much in- jured by the Board's delay in collecting their backpay as the wrongdoing employer. NLRB v. Rutter-Rex Mfg. Co., 396 U S. 258 at 264 (1969). This view has been re- cently reaffirmed. NLRB v. Iron Workers Local 480, 104 S.Ct. 2081 (1984).2 In light of the foregoing findings and conclusions and entire record herein considered as a whole, I make the following3 ORDER It is ordered that the Respondent, Carrothers Con- struction Company, Inc., Ottawa, Kansas, its officers, agents, successors, and assigns, shall pay to D. H. Basile, G L. Cheatham, R. K. Cox, F. I. Dulaney, S. S. Du- laney, J A. Eaker, M. R. Finch, G. R. Franks, W. R. Gillespie, J. T. Gomez Jr., J. E Grable, P. D Griffin, J. J. Hadl, D. R Hancock, K. W. Hoffman Jr., R. S. Hook, R. Horwitz, T. R. Jones, D. F. Kaub, T. J. Knoche, J. M. Lujan, B. M. McGinnis, J. P. McGinnis, M. McLees, L. W. Maloney, T. L. Markus, D. E. Mumma, R. C. Penner, R. A. Reaves, J. D. Siders, J. L. Siders, W. A. Skilling, D. L. Stottlemire, T. L. Weatherbee, and C. D. 2 After the close of the hearing, Respondent forwarded to the Region- al Office checks made payable to the 35 discriminatees in the amounts agreed upon as backpay principal However, its letter of transmittal pro- hibits the Regional Director from disbursing these checks to the discri- minatees until such time as the issue in this case respecting interest has been resolved What purpose this act has served escapes me, since it does not constitute a tender to the discriminatees of either principal or interest 9 If no exceptions are filed as provided by Sec 102 46 of the Board's Rules and Regulations , the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses Zamora the amounts of backpay and interest set forth below, and in addition shall pay to the 35 named discri- minatees interest accrued from August 20, 1984, until such date that full payment of all amounts due to the 35 discriminatees is made, said additional interest to be com- puted upon the backpay figures set forth in the backpay specification and computed in the same manner as inter- est that accrued prior to August 20, 1984, was calculat- ed, less FICA, state, local, and Federal income taxes which are required to be deducted: NAME BA CKPA Y INTEREST THROUGH AUGUST 20, 1984 D H Basile $ 101.25 $ 72.69 G L Cheatham 121 50 87 50 R K Cox 1,095 55 790 52 F. I. Dulaney 299.70 217 73 S S Dulaney 4,527.18 3,110.40 J. A Eaker 192.38 136.68 M R Finch 38 80 26 18 G. R. Franks 189.15 126.85 W R Gillespie 116.40 78.57 J T Gomez, Jr. 106.90 75.71 J. E Grable 760 98 509.85 P D Griffin 109.35 78.76 M. J. Hadl 3,691.18 2,432.09 D R Hancock 8.10 5.95 K W Hoffman, Jr. 1,148.18 823.80 R S Hook 24.25 16.00 R Horwitz 64 80 45.66 T R Jones 3240 22.32 D F Kaub 2910 19.65 T. J Knoche 143.78 103 55 J. M. Lulan 8.10 5 83 B M. McGinnis 317.93 231 13 J P McGinnis 556 88 396.83 M McKees 38 80 26.18 L W Maloney 8.10 5 83 T L Markus 12 15 8 75 D E. Mumma 2,62805 1,832.35 R. C. Penner 36 45 26.22 R. A. Reaves 508 28 364.56 J D Siders 2,19308 1,521 95 J. L. Siders 194.40 136 61 W A Skilling 1,081 55 714 21 D L Stottlemire 782 60 529.91 T L Weatherbee 202.50 145 84 C. D Zamora 10 13 744