Iron Workers Loca 433 (Rpm Erectors)

IRON WORKERS LOCA 433 (RPM ERECTORS) International Association of Bridge , Structural and Ornamental Iron Workers, Local No. 433 (RPM Erectors, Inc.) and Waldo F. Kusterns. Case 21-CB-7122 27 August 1985 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS HUNTER AND DENNIS On 5 February 1985 Administrative Law Judge Earldean V. S. Robbins issued the attached supple- mental decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief, limited cross-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 briefs and has decided to affirm the judge's rulings, findings, and conclusions only to the extent consistent with this Supplemental Decision and Order. On •11 February 1983 the Board issued its Deci- sion and Order2 finding , inter alia, that the Re- spondent violated Section 8(b)(1)(A) and (2) of the Act by failing to refer Waldo F. Kusterns for em- ployment at RPM Erectors because he refused to pay dues he was under no obligation to pay to obtain RPM employment . The Board ordered the Respondent to make Kusterns whole for any loss of pay and benefits he may have suffered because of the discrimination against him , plus interest. On 26 January 1984 the United States Court of Ap- peals for the Ninth Circuit enforced the Board's Order in an unpublished decision.' On 18 May 1984 the Acting Regional Director issued a back- •pay specification, and the Respondent filed an answer, contending, inter alia, that Kusterns made himself unavailable for work during the • backpay period by refusing to tender dues required of all members as a condition of employment, and there- fore he was ineligible for referral to most jobs. The backpay period in issue extends from 20 November 1979 to 28 February 1980. From late July 1978 to 2 February 1979, Kus- terns, a Respondent member , worked on a job cov- ered by the District Council Agreement, a multi- . i The General Counsel excepts only to that part of the judge's recom- mended Order directing the Respondent to deduct "tax withholdings re- quired by federal and state law" from Kusterns' backpay award In light of our dismissal of the backpay specification, we find it unnecessary to pass on this exception 2 266 NLRB 154 (1983) - 3 Docket No 83-7252 1539 employer collective-bargaining agreement. The Re- spondent is party to the District Council Agree- ment, which requires employees of signatory em- ployers to pay supplemental dues of 15 cents for each hour worked. Kusterns declined to pay the supplemental dues and, with other employees, brought a lawsuit challenging the dues' legality.4 The Respondent refused to dispatch employees who were not current in their supplemental dues payments. Kusterns took the position that employ- ees should be dispatched first and then pay the dues. The Respondent operates an exclusive hiring hall. On 20 November 1979 the Respondent's busi- ness agent, Joe Ward, suggested that Kusterns bid on a job at RPM Erectors, Inc. Kusterns should have been dispatched to the RPM job, but Ward refused, because he determined that Kusterns was in arrears in his supplemental dues payment. On 21 November 1979 the Respondent again refused to dispatch Kusterns to RPM and instead dispatched Rudy Berci. Because RPM was party to the Inter- national " Agreement, not the District Council Agreement, and was not included in the District Council multiemployer unit, the Board found that the Respondent violated Section 8(b)(1)(A) and (2) of the Act by refusing to dispatch Kusterns to RPM for nonpayment of supplemental dues. Kusterns testified that on three separate occa- sions between 21 November and 2 December he bid on jobs, but was refused dispatch because of his failure to pay supplemental dues. According to Kusterns, he did not bid on any job after 2 Decem- ber because the Respondent would not dispatch him until he paid the supplemental dues, which he refused to do until after he was dispatched. During the backpay period, there were over 400 dispatches from the hiring hall and, except for RPM, all of the dispatches were to employers who were party to the District Council Agreement. Kusterns' number was such that he could have been dispatched to any of these jobs if he had.paid the supplemental dues.5 On • 10 December 1979 Kusterns told C. W. Landsford, the Respondent's secretary-treasurer and business manager, that he. could not pay his dues because he was prohibited by law from doing 4 The lawsuit was settled before the original unfair labor practice hear- ing without impairing the Respondent's supplemental dues-collection re- quirement s An employee is assigned a number when he signs the out-of-work book Employees bid on jobs and the employee with the lowest number in the appropriate classification is dispatched In June 1979 Kusterns signed the book, and in November 1979 his position was approximately number 3 The parties stipulated that all the employees dispatched during the backpay period had higher numbers than Kusterns 275 NLRB No. 216 1540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD so since he had filed a bankruptcy petition.6 He asked Landsford to dispatch him and then request his employer to lay him off because he could make the payment under those circumstances. When Landsford offered to loan Kusterns the money to pay the dues, Kusterns refused, stating that he did not-want a loan, but wanted to be dispatched and pay the dues on his own. On 28 February 1980 Kusterns was dispatched to RPM after Landsford, according to Kusterns, advanced the money or otherwise made arrangements to take care of the dues. Kusterns paid the dues 31 March. The judge found that Kusterns' obligation to make reasonable efforts to find new employment did not require that he abandon his position as to the legality of the requirement that the supplemen- tal dues be paid before he could be dispatched to employment within the multiemployer bargaining unit. The judge, observed that there was no evi- dence that Kusterns' position was unreasonable or taken in bad faith. The judge found it significant that the Respondent could have tolled its backpay liability at any point by abandoning its own legal position. The judge found that to require 'Kusterns to abandon his position, when the Respondent could have done the same, would not advance the public interest, as the wrongdoer bears the burden of any uncertainty resulting from its unlawful con- duct. The judge concluded that Kusterns did not willfully incur any loss of earnings-that would miti- gate the Respondent's damages, and that Kusterns was entitled to-the backpay set forth in the back- pay specification, as amended at the hearing. The Respondent excepts to the. judge's finding that because Kusterns' legal position was a reasona- ble one, he did not have to abandon it to mitigate damages -by seeking work. The Respondent con- tends it should not be held liable for failing to give up a legal position that proved correct. The Re- spondent asserts that if it had dispatched Kusterns without payment of supplemental dues, it could' not have lawfully 'enforced the dues as to any other employee. The Respondent claims it uniformly ap- plied the supplemental dues obligation to, Kusterns, but'he chose to ignore it because of'his'lawsuit and .thus willfully took _himself out of the,, job market.. The General Counsel,argues that absent, evidence that Kusterns' -legal position was taken in bad- faith or in order to avoid employment, he was. not re- quired to abandon' his position= on the legality of the dues requirement tb obtain interim. employ- ment. . , - _ . .,u An employee has a duty to mitigate a respond- ent's backpay liability by making reasonableefforts 6 No other evidence was presented at the hearing that the Bankruptcy Court in fact-had prohibited Kusterns from paying the dues i to find new employment which is substantially equivalent to the position from which he was dis- charged. NLRB v. Miami Coca-Cola- Bottling Co., 360 F.2d 569 (5th Cir. 1966). A 'respondent may mitigate its liability by showing that the employee has willfully incurred losses by a "clearly unjustifi- able refusal to take desirable new employment."- Phelps Dodge Corp. v. NLRB,' 313 U.S. 177, 199- 200 (1941). An employee may not voluntarily"with draw from the labor market and insulate himself against employment, thereby willfully incurring losses for which he seeks to be compensated. Keller Aluminum Chairs Southern,' 171 NLRB 1252, 1256 (1968). There is no dispute that if Kusterns had paid the supplemental dues he would have been eligible to be dispatched to his choice of over 400 jobs. Al- though no evidence suggests that Kusterns' legal position was not asserted in good faith, the Re- spondent contends, and the G eneral Counsel con- cedes, that, as to all these potential employers except RPM, Kusterns' position was-wrong. Kus- terns was required to pay the supplemental dues before he could be dispatched to any-job covered by the District Council Agreement. - - The judge found that Kusterns should not be re- quired to abandon his good-faith legal position where the Respondent could • have mitigated its own liability by abandoning its legal position. We find, however, that Kusterns would , not, as he be- lieved, have been -required to abandon his legal `po- sition by paying the supplemental dues. There are -a number of possible ways Kusterns could have met the dues obligation while' preserving -his position. Kusterns ' could have paid the dues under protest and recovered them later if the lawsuit was suc-- cessful. He,also could have requested the Respond- ent allow, him to pay the dues into escrow. Kus- terns could have also accepted the Respondent's 10 December `offer of a, loan, to be paid back after being dispatched. This seems to be, the type of ar- rangement worked out :28 February _1980 when the Respondent's -business manager paid' the dues or otherwise took care of the matter. Kusterns was dispatched and later paid dues. ..We disagree with the judge that the Respondent should have been required' to compromise its own legal position and dispatch Kusterns without pay- ment of supplemental dues. The Respondent is re- quired to enforce its dues obligation. uniformly, and it could not lawfully, , under ' the.. union-security clause in the District Council Agreement and Sec- tion 8(b)(2) of the Act, allow Kusterns to work without paying the-dues unless it did the same for IRON WORKERS LOCAL 433 (RPM ERECTORS) All other employees. 7 We do not believe that under the circumstances of this case the Respondent was required to stop enforcing its lawful dues provision in order to mitigate its backpay liability to Kus- terns. We find that, by refusing to pay the required supplemental dues, Kusterns essentially took him- self out of the job market, making himself ineligible for dispatch to over 400 jobs. Because Kusterns could have paid the dues without compromising his good-faith, but incorrect, legal position,,-we con- clude that Kusterns incurred a willful loss of earn- ings and is therefore not entitled to backpay.- ' ORDER The backpay specification is dismissed. MEMBER HUNTER, concurring. I. agree with - my colleagues' 'dismissal of the backpay specification for the following reasons. The judge found that Kusterns should not be re- quired to abandon his good-faith legal position where the Respondent could have mitigated its own liability by abandoning its legal position. In es- sence, the judge placed on the Respondent the burden of changing' its legal position and conse- quently also placed, on the-Respondent the'burden to mitigate its backpay liability.- I find this allocation of the burdens misplaced. Neither the Respondent nor Kusterns had a duty to abandon any legal position regarding the payment of supplemental dues. Kusterns, however,, did not have a duty to mitigate the Respondent's damages by accepting job referrals available to him. Kus- terns did not establish that acceptance-of any refer;' rals would necessarily require him to abandon his legal position. - Under 'these circumstances, I find 'that the Re- spondent was not -required to, stop enforcing its lawful dues provision and that by refusing to pay the required supplemental dues, Kusterns-essential- ly took himself out of the job market, making him- self ineligible for dispatch to- over 400 jobs. Ac= cordingly, I conclude . that Kusterns :incurred -a willful loss of earnings and is therefore not entitled to backpay. -' See Radio Officers Y NLRB, 347 U S 17, 40 ( 1954), ,Actors' Equity- Assn , 247 NLRB 1193 (1980), enfd 644 F 2d 939 (2d Cir 1981) (an 8(b)(1)(A) and (2).violation found where a'union maintained and enforced a disparate dues structure 'under which, non'resident aliens were required to pay higher dues than resident actors) r _ - J . - - - SUPPLEMENTAL DECISION EARLDEAN V: S. ROBBINS, Administrative Law Judge. On February 11, 1983, the National Labor Relations 1541 Board issued its • Decision and Order' in this matter in which it directed.the International Association of Bridge, Structural and Ornamental Iron Workers, Local No 433 (Respondent), inter alia, to make Waldo F Kusterns whole with interest for, any loss of pay and benefits he may have suffered by reason of the discrimination prac- ticed against him. On January 26, 1984, the United States Court of.Appeals for the Ninth Circuit entered its judg- ment granting enforcement of the Board's Order A controversy having arisen over the amount of back- pay due Kusterns under the terms of the judgment and the-Order, the Acting Regional Director for Region 21 of the Board issued a backpay specification and notice of hearing on May 18, 1984, alleging the backpay due under the Board's'Order, as enforced by the Court's judgment, for a backpay period commencing on November 20, 1979, and ending on March 2, 1980, to which Respond- ent, filed a timely answer. The matter was heard before me in Los Angeles, California, on November 1, 1984. During.the course of the hearing the backpay specifica- tion was amended to allege, inter alia, that the backpay period ended on February 28,-1980. The principal issue herein is whether Kusterns, by failure to pay his supple- mental dues to Respondent, removed himself from the job market and thus incurred a willful loss of earnings which precludes him from receiving backpay.2 On the entire record, including my observation of the demeanor of the witnessess, and after due consideration of the briefs3 filed by the parties, I make the following FINDINGS OF FACT Kusterns has been a member of Respondent since 1973 From late July 1978 to -February 2, 1979, he worked on a job covered 'by a multiemployer collective- bargaining agreement. (the District Council Agreement). Respondent is a member of the District Council and a party to the District Council Agreement. This agreement contains a union-security clause requiring employees of signatory employers to become members on the eighth day of their employment It also contains a provision re- quiring the payment of supplemental dues in the amount of 15 cents, an hour for each hour worked. Kusterns, among others' ,refused to pay the supplemental- dues and joined with others in challenging the legality of such dues. The Union took the position that it would not dis- patch employees who were not current in- the payment of their supplemental'dues.-Kusterns and others took the positions that theycshould be 'dispatched first and then pay the'dues This matter was apparently settled prior to the unfair labor p-ractice hearing 'herein. ' - Respondent operates an exclusive hiring hall. Employ- ees who sign the out-of-work' book are assigned a number and, when- the dispatcher announces the avail- able jobs; the individuals in the hiring hall can bid on the jobs The bidder-with the lowest number in-the appropri- ate classification is dispatched to the job. Kusterns as- 1266 NLRB 154 2 There is no dispute as to the backpay computation set forth in the backpay specification in the event I find that Kusterns is entitled to re- ceive backpay The General Counsel's motion to strike Respondent's brief is denied 1542 DECISIONS OF NATIONAL LABOR -RELATIONS BOARD signed Respondent's out-of-work book in June 1979. By November 1979' his position thereon was approximately number 3 On November 20, at the urging of Respond- ent's business agent-dispatcher, Joe Ward, Kusterns bid on, and should have been dispatched to, a job at RPM Erectors, Inc. (RPM). However, in the process of going through the dispatch procedure, Ward ascertained that Kusterns was in arrears in his supplemental dues pay- ment. Respondent therefore refused to dispatch Kusterns to the RPM job on-that date, despite the fact that RPM was a party to-the International agreement, not the Dis- trict Council Agreement,- and thus was not included in the same multiemployer unit as was the employer for whom Kusterns was working when he incurred the sup- plemental dues obligation . Kusterns was again refused dispatch to RPM on November 21. Instead, Rudy A. Berci was dispatched to the job. The parties stipulated that •Berci replaced Kusterns and that the gross backpay amounts contained in the backpay specification are-accu- rate about the amount earned by Berci during the back- pay period The Board adopted the administrative law judge's finding that Respondent violated Section 8(b)(1)(A)-and (2) of the Act by refusing to refer Kusterns to employ- ment with RPM • without affording him the. lawful con- tractual grace period in which to become current in his supplemental dues. Kusterns testified, without contradic- tion, that on three separate occasions between November 21 and December 2 he bid on jobs and was refused dis- patch because of his failure to meet his supplemental dues obligation. After December 2 until the end of the backpay period Kusterns did not bid on any job. Ac- cording to him, he did not do so because of the Re- spondent's position that he would not be dispatched until he paid- the supplemental dues. The parties stipulated that the dispatch slips during the backpay period reflect dispatches of individuals to in excess of 400 jobs. It was further stipulated that during the entire backpay period Kusterns ' number was 3 or 4 and never higher. Ward testified, without contradiction, that except for RPM all these dispatches were to em- ployers party to the District Council Agreement. The parties also stipulated that all of the individuals dis- patched during the backpay period had numbers higher than Kusterns, and Ward credibly testified that the only reason Kusterns was not dispatched .during this period was his refusal to pay his supplemental dues. Kusterns testified without contradiction, that on De- cember 10 he had a conversation with C. W. Landsford, then the secretary-treasurer and business manager of Re- spondent, concerning the payment of supplemental dues. According to Kusterns' undenied testimony,5 he told Landsford that he could not pay his_ supplemental dues because he was prohibited by law from doing so since he had filed a bankruptcy petition, and showed Landsford some court documents that he claimed supported this statement. He asked Landsford to dispatch him and then request his employer to lay him off, stating that under " All dates hereinafter in September through December are in 1979 and in January through March are in 1980 5 Landsford did not testify those circumstances he could make the supplemental dues payment. However, when Landsford offered to loan Kusterns the money to pay the supplemental dues, Kusterns said he did • not want a loan, he wanted to be dispatched and pay his supplemental dues on his own. On February 28 Kusterns was dispatched to a job at. RPM under an arrangement whereby Landsford ad- vanced the money or otherwise made arrangements, to take care of Kusterns' supplemental "dues. Thereafter Kusterns did pay his supplemenial'duesidii Mai•cii 3 Respondent argues that throughout the backpay period there were hundreds of jobs available to Kusterns through its hiring hall if he had paid his supplemental dues; that the requirement of payment of supplemental dues is a valid hiring hall rule and by choosing not to pay those dues Kusterns removed himself from the job market, and Respondent should not be liable for' any backpay. Respondent concedes that there are legitimate occasions when an employee may."pick and choose" be- tween available jobs, including circumstances where_an employee chooses not to accept certain dispatches while awaiting a better job. However, Respondent urges that Kusterns was not awaiting a better job, that he was one fo the top people on the out-of-work list and could have successfully bid on any of the jobs. The General Counsel argues that there is no evidence that Kusterns was not willing to work , or that he sought to avoid work in order to enjoy the full fruits of Re- spondent's unlawful conduct and that, in the absence of evidence that Kusterns' legal posture was taken-in bad faith or with an eye to avoiding employment , he was not required to abandon his position on the legality of the supplemental dues requirement in order to obtain interim employment so that Respondent's backpay obligation would be reduced. It is well established that a respondent may mitigate its backpay liability ,by showing that the discnminatee has willfully incurred losses by a "clearly unjustifiable refusal to take desirable new employment." Phelps Dodge Corp. x NLRB, 313 U.S. 177, 197-200 (1941). However, al- though an employee must make reasonable efforts to find new employment which is substantially equivalent to the position for which he was discharged.and is suitable to a_ person of his background and experience , he is held only to reasonable exertion in this regard, not the highest standard of diligence."NLRB v. Miami Coca Cola Bottling Co., 360 F.2d 569 (5th Cir. 1966); Florence Printing Co. v. NLRB, 376 F.2d 216 (4th Cir. - 1967), cert. denied 389 U.S. 840 (1967). Thus he may refuse to accept other em- ployment which is. dangerous, distasteful, essentially dif- ferent from that for which he is employed, of short dura- tion, without the benefit of health, welfare, and pension contributions made into the union trust funds, or is more onerous than his previous position. Florence Printing Co., supra; NLRB Y. Madison Courier, 505 F.2d 391 (D.C. Cir 1974); Electrical Workers IBEW Local 401 (Stone & Web- ster Engineering Corp.), 266 NLRB 870, 875-876 (1983); - Big, Three Industrial Gas Co., 263 NLRB 1189 (1982); Flite Chief Inc., 258 NLRB 1124 (1981); J. S. Alberici Construction Co., 249 NLRB 751, 752-753 (1980). IRON WORKERS 'LOCAL 433 (RPM ERECTORS) The question here is whether Kusterns' obligation to make reasonable efforts to find new employment requires him to abandon his position about the legality of the re- quirement that his supplemental dues be paid before he could be dispatched to employment within the multiem- ployer bargaining unit. There is no evidence that this legal position was taken .in bad faith or that it was an,un- reasonable one. Further , the rules of Respondent's hiring hall do not require a -person on the out-of-work book to accept any ,dispatch . Rather-it, was, the practice for per- sons to refrain from bidding on jobs, without loss of po- sition on the out-of-work book, until'a job became avail- able which would fit the employees' personal require- ments. I find that Kusterns' duty to mitigate Respondent's damages did not require him-to abandon his legal posi- tion where , as here, the job to which Respondent unlaw- fully refused to dispatch him would not have required such abandonment, particularly when Respondent could have tolled its backpay at any pont during the backpay period by abandoning its legal position in its dispute with Kusterns The purpose of the backpay remedy is not 1543 only to reimburse the innocent employee, for actual losses suffered as a result of the discrimination but also to further the public interest advanced by the deterrence of such illegal acts. NLRB v. Madison Courier, 472 F.2d 1307, 1316 (D.C. Cir 1974). To allow Respondent miti- gation of damages because Kusterns refused to abandon his legal position in his dispute with Respondent when Respondent could easily have achieved the same results by abandoning its legal position in that same dispute would not advance the public interest. This situation is analogous to those where the Board and the courts have held that the wrongdoer is the one who bears the burden of any uncertainty arising as a result of its unlawful con- duct, NLRB v. Miami Coca Cola Bottling Co., supra; Southern Household Products, 203 NLRB 881 (1973), or the burden of loss from protracted litigation . Servair, Inc. v. NLRB, 726 F.2d 1435 (1984). Accordingly f find that Kusterns did not willfully incur any loss of earnings which would mitigate Respondent 's damages, and that he is entitled to backpay in the amount set forth in the amended backpay_ specification. [Recommended Order omitted from publication.]