Iron Workers Local 118 International Association Of Bridge And Structural Ironworkers, Afl-Cio (Pittsburgh Des Moines Steel Co.)

1356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Iron Workers Local 118 International Association of Bridge and 'Structural Ironworkers, AFL-CIO (Pittsburgh, ;Des Moines Steel. Company) and, William James Butler . Case 20-CB-4879 31 July 1985 - ' DECISION AND ORDER By CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 30 January, 1985 Administrative Law Judge David G. Heilbrun issued the attached decision. The Respondent filed exceptions and a supporting brief. . The National Labor Relations .Board has delegat ed its authority in this proceeding to a three- member panel. 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 conclusions2 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, Iron Work- ers Local 118, International Association of Bridge and Structural Ironworkers , AFL-CIO, Sacramen- to, California, its officers, agents, and representa- tives, shall take the action set forth in the Order. 1 We reject the Respondent's contention in its exceptions that Butler incurred a willful loss of earnings by his failure to seek referral to jobs other than the Valmy job in light of the Respondent's threat not to refer him to Valmy or any other job until he paid his supplementary dues See Iron Workers Local 118 (Pittsburgh Des Moines Steel Co), 257 NLRB 564, 565 (1981), enfd 720 F 2d 1031 (9th Cir 1983) ..s In the absence of exceptions thereto, we adopt the judge's finding that a minor adjustment of $13 12 in Butler's claimed expenses to reflect actual mileage would serve no useful purpose SUPPLEMENTAL DECISION DAVID G. HEILBRUN, Administrative Law Judge. On November 15, 1983, the Court of Appeals for the Ninth Circuit entered judgment enforcing the Board's Decision and Order in this matter as reported at 257 NLRB 564 .(1981).'_ Such 'adjudication affirmatively requires that Iron Workers Local '118, International Association of Bridge and Structural Iron Workers, AFL-CIO (Re- spondent) make whole William James Butler for loss of pay or other benefits resulting from the commission of certain unfair labor practices, and that computation 1 At 257 NLRB 564 and 567 the Board's decision contained inadvert- ent reference to the year 1978 It is evident as the General Counsel point- ed out on opening of this hearing, that the year 1979 was meant in such passages and it shall be so construed The Board cures inadvertencies in decisional writings that are obvious from an overall context See Baker Mfg Co, 269 NLRB 794 (1984) thereon comport with F. W. Woolworth Co, 90 NLRB 289 (1950), Isis Plumbing Co., 138 NLRB 716 (1962), and Florida Steel Corp, 231 NLRB 651 (1977). On June 29, 1984, the Regional Director for Region 20 issued a backpay _ specification alleging certain total net backpay as due Butler for the year and quarters 1979/II and 1979/III. This pleading also sought payment to an employee pension benefit fund in the amount of $887.84 plus accrued interest and/or assessed penalty payments in accordance with Merryweather Optical Co., 240 NLRB 1213 (1979). After Respondent-had filed a broad denial of salient allegations, the backpay specification was amended on August 27, 1984. Controversy having arisen over the amount of back- pay, if any, due under terms of the Board's Order, the matter was heard as a suppplementary proceeding at Sacramento, California, on October 11, 1984. On the entire record, my observation of witnesses, and consider- ation of the General Counsel's posthearing brief,2 I de- termine as follows. The particular unfair labor practices found by the .Board were those of Respondent failing and refusing to refer Butler to work assignments of Pittsburgh Des Moines Steel Co. (PDM) as it engaged in subcontracting for the fabrication and erection of structural steel during the construction of a power plant at North Valmy, Nevada, because he had failed to pay nonobligatory dues, and by telling him that such nonreferral was for that reason. The Board specifically dated the failure and refusal to refer as falling on May 29 and June 13, 1979,3 while the verbalism it found to be separately violative of Section 8(b)(1)(A) of the Act occurred on May 29.4 Contentions The General Counsel contends that the effect of unfair labor practices found by the Board was to create a back- pay period for Butler of May 29 to September, as to which net backpay actually accumulates from the com- mencement of such period and up to September 4. Fur- ther, the contested factual issues at the hearing were con- fined to May 29 to June 27, this latter date being when Butler paid Respondent the accumulated nonobligatory (supplemental) dues. The General Counsel assumes a re- ferral to PDM at Valmy for work as a journeyman iron- 2 Briefs were due by or before November 15, 1984 By letter dated November 16, 1984, Respondent's counsel moved to file its brief "one day late " The Board's Rules and Regulations , Sec 102 42, expressly pro- vide that no request for an extension of time in which to file a posthear- ing brief will be considered unless received at least 3 days prior to the due date Notwithstanding this any brief that had been later filed by Re- spondent, absent a showing of prejudice thereby, could have received consideration Respondent's counsel was originally inclined not to brief this case, and I am satisfied that Respondent's position on the issues is adequately set forth in colloquy of record and arguments made in support of objections (Tr 66-71, 104-105, 112-114, 173-174, and 213-214) For this reason my decision issues without ruling on Respondent's "motion" as embodied in its letter 9 All dates hereafter are in 1979 unless otherwise indicated 4 In fn 12 of its Decision and Order the Board stated We recognize that, because of the nature of referral cases, the facts of a particular case may present issues concerning the proper appli- cation of the remedy adopted herein The resolution of such issues may appropriately be left to the compliance stage of our proceeding 275 NLRB No. 185 IRONWORKERS LOCAL 118 (PITTSBURGH - DES MOINES STEEL) worker on May 29 and continuous regular full-time em- ployment thereafter., , Respondent contends that Butler had not presented himself-with regularity at the hiring hall for daily work referral prospects, that he :was in any event self-limiting to certified welding referrals as opposed to other special- ties of the structural ironworker craft, and that he delib- erately failed to indicate interests in • any 'contractor req- uisitions-for journeyman even when called out at the hall in his presence by dispatching functionaries. Evidence - Daniel Griffin testified that as PDM' project • superin- tendent he was in constant need of: ironworkers' during the period May 29 to June -27, and that ironworkers were employed on a full 40-hour week as reflected in payroll records of that timespan. Subsistence paid to journeymen was described as being made in cash of redeemed by- oc- cupandy of a work camp with board and room provided for 5 days of the calendar week , '` • . • . Butler testified that for the approximate month period following May 29 he visited the hiring -hall practically each morning from 8 to 10:30 a.m. -and listened' attentive- ly for any work calls for welders-or those with "bolt-up" capabilities as withm.•his own experience- background. He added that while occasionally responding to such calls he was never referred, and that' the daily-round trip from his home was one of a minimum 34.8 miles 'Butler -re- called that the occurrences of May 29 culminated a•con- tinuous 2-1/2-month 'period in which he was increasingly - desirous of obtaining. work as his, standing- on Respond- ent's "out-of-work" list advanced toward the top . , Maxi Sturgis, Catherine Kruse, and Pat Roberts, re- spectively Respondent's business manager, secretary, and office manager, testified that, during the approximate 1- month period following' May 29, there was "a' constant influx of employer requests for journeyman ironworkers, and that, aside from a sharing arrangement on referrals with a sister local in Salt Lake City, Utah, and branch office referrals out of Reno, Nevada, it was necessary on occasion to go outside these jurisdictions to obtain quali- feed craft personnel for the available positions. Kruse and Roberts each also testified -to 2f- considerable familiarity with members of Respondent, and a general awareness of who tended to beat the hiring hall on a regular basis. In this regard they each denied having any impression that Butler made regular appearances during the May 29= June 27 timespan, adding that • had he done so, and- re- sponded-to the numerou's calls in that period for certified welders or bolt-up specialists, he, would have been read- , ily referred because of his presumed place-on the list.: Respondent enlarged on its contentions with testimony of Sturgis that about May 29 he' had- advised Butler that,' by the option of a $10 weekly' authorization„for` supple- mental dues deduction; he could be promptly referred to available jobs as they were' materializing daily from the - . ' 1 1. . 1357 Valmy project and elsewhere. Butler denies that such a conversation occurred. Conclusions - On -demeanor grounds I credit Kruse and Roberts to the extent that their recollection permits a strong infer- ence of Butler not appearing at the hiring hall with the regularity he claimed. Additionally, I credit 'Sturgis with respect to his having explained an option to Butler as set forth in Respondent's International constitution. I am doubtful' of -Butler's accuracy in recalling the details of his conduct during the late May to late -June period, and find specifically that his flustered hesitancy in testifying raises enough doubt to reject his factual versions as they might conflict with those of Respondent's witnesses. However,, these credibility resolutions do not address the fundamental 'point of this supplementary proceeding, which is that of giving fair meaning to the Board's Order based on its unfair labor practice findings. Notwithstand- ing the quoted footnote • 12, the Board has clearly ren- dered illegal Respondent's general dealings with Butler as peaking on May 29, but its reliance on credited utter- ances of Sturgis, the chief official- of Respondent - to whom other .dispatching personnel were subordinate, that Butler would not be dispatched "to the Valmy job or any other job" without the payment of dues in contro- versy. This express -finding, coupled with the character- ization of Sturgis' remark as an "unlawful threat," leads me,to• conclude, as Butler asserted the- case to be, that any'responses he would have made to job calls arising at the -hall during the May 29 to June 27 period would have been a futile effort on his part: Accordingly, I hold that -a backpay. period as asserted by the General Counsel is applicable with typical calcu- lations flowing therefrom. Based on my doubts as to reli- ability of Butler's memory I find expenses of interim earnings only' to the extent of assuming -three trips per week during the appropriate backpay period, but that daily round trip costs.was $5.92. The impact of such ad- justments on the computed expenses of 1979/II yield a difference of only $13.12, a ,de minimis amount when it is noted that Respondent has also established how subsist- ence claims for this period were overstated in a more than offsetting amount. Cf. Sargent Electric Co., 244 NLRB 763 (1979). I see no usefulness in making relative- ly minor dollar adjustments to a coherently structured net' backpay • total, and thus ' confirm the amounf' of $4,813.,70"as 'set forth in the 'amended backpay specifica- tioh and worksheet exhibits.of the General Counsel ' un- derlyingW'such' summary. `This amount along with benefit 'fund contributions, plus;'interest to date of payment, is therefore my conclusion of law as to the measure of,Re- spondent Re- spondent's obligation' in fulfillment of the Board's make- whole' remedy'.as. set forth ' in the underlying Decision and Order. •