Metealf Excavating

92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Jimmy Metcalf, d/b/a Metcalf Excavating and Local 164, International Brotherhood of Team- sters, Chauffeurs, Warehousemen and Helpers of America. Case 7-CA-22378 10 November 1986 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND BABSON On 30 June 1986 Administrative Law Judge Elbert D. Gadsden issued the attached supplemen- tal decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering 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, fmdings,1 and conclusions 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, Jimmy Met- calf, d/b/a Metcalf Excavating, Jackson, Michigan, its officers, agents, successors, and assigns, shall take the action set forth in the Order. 1 The Respondent has excepted to some of the judge's credibility find- ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951) We have carefully examined the record and find no basis for reversing the findings Jerome E. Schmidt, Esq., for the General Counsel. George J. Brannick, Esq., of Jackson, Michigan, for the Respondent. SUPPLEMENTAL DECISION STATEMENT OF THE CASE ELBERT D. GADSDEN, Administrative Law Judge. On 15 January 1985 the National Labor Relations Board issued its Decision and Order directing Jimmy Metcalf, d/b/a Metcalf Excavating (the Respondent), to take cer- tain actions, including that of making whole employees for the losses suffered as a result of Respondent's unlaw- ful conduct, to make contributions to the health, welfare, and pension benefit funds, and to pay the contractual wage rates pursuant to the collective-bargaining agree- ment with Local 164, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America (the Union or the Charging Party); -retroactive to 2 May 1983. On 19 July 1985 the United States Court of Appeals for the Sixth Circuit issued its decision in-Case No. 85- 5320, enforcing the Board's Order. Because a controver- sy currently exists over the amount of backpay due the discriminatee employees and the contributions due the health, welfare, and pension benefit funds under the terms of the Board's Order, as enforced, the Regional Director for Region 7 of the Board issued a backpay specification and notice of hearing on 14 August 1985, alleging the amount of the backpay due under the Board's Order. Respondent filed an answer on 29 August 1985, setting forth a general denial and affirmatively alleging that the discriminatee employees Kenneth F. Johnson and Charlie M. Scott, did not at all times perform work under any collective-bargaining agreement with the Union; that they were not members of the Union but, in fact, were members of another labor organization; and that the amount of backpay set forth in the backpay specification for Johnson and Scott should be reduced because neither of them performed bargaining unit work the majority of the time on the job. Johnson performed bargaining unit work less than 25 percent and Scott less than 10 percent of the time and, therefore, they should be paid at a re- duced wage rate. The hearing in the above matter was held before me in Jackson, Michigan, on 19 February and 5 May 1986. Briefs have been received from the General Counsel and counsel for the Respondent, respectively, which have been carefully considered. On the entire record in this case and from my observa- tion of the witnesses, I make the following FINDINGS OF FACT A. Backpay Specification On 15 January 1985 the Board directed Respondent to make whole former employees Roy F. Mullins, Kenneth F. Johnson, and Charlie M. Scott, and to make contribu- tions to the health, welfare, and pension benefit funds on their behalf, and to pay contractual wage rates to them in accordance with the collective-bargaining agreement it has with the Union. 1. The gross backpay due Roy Foster Mullins, Ken- neth F. Johnson, and Charlie M. Scott, the discrimina- tees, is the difference between the amount of earnings re- ceived by the discriminatees and the amount of earnings they would have received but for the Respondent's fail- ure and refusal to pay the contractual wage rates that their collective-bargaining agreement with the Charging Union requires. 2(a) The backpay period for discriminatee Roy Foster Mullins commenced on 2 May 1983 and terminated 19 November 1983 when his pay was raised to the contrac- tual wage rate. (b) The backpay period for discriminatee Kenneth F. Johnson commenced on 18 June 1983 and terminated 31 December 1983 when his employment with the Respond- ent was terminated. 282 NLRB No. 18 METCALF EXCAVATING (c) The backpay period for discriminatee Charlie M. Scott commenced on 2 May 1983 and terminated 19 No- vember 1983 when his employment was terminated. 3(a) During the backpay period, discriminatee Roy Foster Mullins was entitled to a wage rate of $11.73/hour pursuant to the collective-bargaining agree- ment. He was paid by the Respondent at the rate of $9/hour during the backpay period . Therefore, he is enti- tled to backpay at the straight-time rate of $2.73/hour multiplied by the number of hours he worked during the backpay period. See Schedule A-1. (b) During the backpay period, discriminatee Kenneth F. Johnson was entitled to a wage rate of $11 .73/hour pursuant to the collective-bargaining agreement. He was paid by the Respondent at the rate of $10/hour during the backpay period. Therefore, he is entitled to backpay at the straight-time rate of $1 .73/hour multiplied by the number of hours he worked during the backpay period. See Schedule A-2. (c) During the backpay period , discriminatee Charlie M. Scott was entitled to a wage rate of $11 .73/hour pur- suant to the collective-bargaining agreement. He was paid by the Respondent at the rate of $8 /hour from the commencement of the backpay period through 1 Octo- ber 1983. Therefore, he is entitled to backpay at the straight-time rate of $3.73/hour multiplied by the number of hours through 1 October 1983. From 1 October 1983 through 19 November 1983, he was paid at the rate of $8.50/hour. Therefore, he is entitled to backpay at the straight-time rate of $4.23/hour multiplied by the number of hours he worked from 1 October through 19 Novem- ber 1983 . See Schedule A-3. 4. The backpay due to the discriminatees for overtime hours worked during the backpay period is calculated by multiplying the appropriate wage differential by the overtime 'rate of 1.5, by the number of overtime hours worked. See Schedules A-1, A-2, and A-3. 5. Summarizing the facts and figures , above and set forth in the schedules regarding the backpay owed to the discriminatee's, Respondent's obligation to make whole the discriminatees, under the Board's Order as enforced by the United States Court of Appeals for the Sixth Cir- cuit, will be discharged by payment to them of the amounts set opposite their =names below, together with interest at the prevailing Board rates commencing on the last of each calendar quarter of the backpay period on the amount ,due and owing for the quarterly period and continuing until full compliance with the Board's Order is achieved, less any tax withholding as required by Fed- eral, state, and municipal laws: Roy Foster Mullin $2,394.13 Kenneth F. Johnson 1,649.11 Charlie M. Scott 4,080.62 6. The Respondent owes contributions to the Michigan Conference of Teamsters Welfare Fund (the welfare fund), and the Central States, Southeast, and Southwest Areas Pension Fund (the pension fund). The contribu- tions are to be paid to the funds on behalf of employees Roy Foster Mullins, Kenneth F. Johnson, and Charlie M. Scott, for the following periods: 93 _(a) The contribution period regarding Roy Foster Mullins commenced 2 May 1983 , terminated 19 Novem- ber 1983, and commenced again on 14 May 1984 and ter- minated on 4 August 1984. (b) The contribution period regarding Kenneth F. Johnson commenced on 18 June 1983 and terminated on 31 December 1983. (c) The contribution period regarding Charlie M, Scott commenced on 2 May 1983 and terminated 19 November 1983. 7. The amounts of the contributions owed to the wel- fare fund are calculated by applying a weekly contribu- tion rate of $52.50 per employee for the period of 2 May 1983 through March 1984 and a weekly contribution rate of $60.50 per employee for the period of 1 April through 4 August 1984, as set forth in the Respondent 's collec- tive-bargaining agreements with the Charging Union. The weekly contribution rates are multiplied by the number of weeks worked by the discriminatees during the contribution periods. See Schedules B-1, B-2, and B- 3. ' 8. The amounts of the contributions owed to the pen- sion fund are calculated by applying a weekly contribu- tion rate of $55 per employee for the period of 2 May 1983 through 4 August 1984 , as set forth in the Respond- ent's collective-bargaining agreements with the Charging Union and its participation agreement with the pension fund. The weekly contribution rate is multiplied by the number of weeks worked by the discriminatees during the contribution periods. See Schedules C-1, C-2, and C- 3. 9. Pursuant to the Board's decision as enforced by United States Court of Appeals for the Sixth Circuit, in- terest and/or additional amounts that must be paid by the Respondent to the funds to satisfy the "make whole" remedy ordered by the Board may be determined by ref- erence to the provisions in the documents governing the funds at issue. Accordingly, the following assessment amounts and/or interest rates should be added to the amounts due to the welfare fund and pension fund: (a) Pursuant to article IV, section 2 of the welfare fund trust agreement , an assessment of 20 percent should be added to the contribution amounts due to the welfare fund which are currently outstanding. Pursuant to article XI, section 4 of the welfare fund trust agreement, in ad- dition to the assessment, interest at the rate of 8 percent per annum should also be added to the contribution amounts due to the welfare fund which are currently outstanding. (b) Pursuant to article XIV, section 4 of the pension fund trust agreements, an assessment of 20 percent should be added to the contribution amounts due to the pension fund which are currently outstanding. 10. About 12 December 1984 the Respondent remitted the sum of $275 to the pension fund. About 28 Septem- ber 1984, the Respondent remitted the sum of $500 to the welfare fund. These remittances should be deducted from the amount outstanding which is owed to the appropriate funds. 11. Summarizing the facts and figures above and set forth in the schedules regarding the contributions owed 94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the welfare fund, Respondent's obligation to make contributions to the welfare fund, under the Board's Order as enforced, will be discharged by payment to the welfare fund of the following amounts set forth opposite the names the employees on whose behalf the contribu- tions should be made, together with interest as set forth above in paragraph 9(a), less the remittance made by the Respondent as set forth above in paragraph 10: to the pension fund, Respondent's obligation to make contributions to the pension fund, under the Board's Order as enforced, will be discharged by payment to the pension fund of the following amounts set opposite the names of the employees on whose behalf the contribu- tions should be made, together with interest as set forth above in paragraph 9(b), less the remittance made by the Respondent as set forth above in paragraph 10: Roy Foster Mullin $2 353 50 , . Roy Foster Mullins $2 365 00 Kenneth F. Johnson 1 417.50 , . , Charlie M. Scott 1,627.50 Kenneth F. Johnson 1,430.00 12. Summarizing the facts and figures above and set forth in the schedules regarding the contributions owed Charlie M. Scott 1,705.00 SCHEDULE A-1 BACKPAY REGARDING ROY FOSTER Wages Wages Yr./Qtr. Reg. Wage Due at OT Wage Dif. Due at Total Hrs Dif. Reg. Hrs. OT Wages Due Rate Rate 1983/2 ............................................................................................. 223.0 $2.73 $608.79 11.5 (2.73x1.5) $47.09 $655.88 $4.095 1983/3 ............................................................................................. 494.5 2.73 1349.98 10.0 4.095 40.95 1390.93 1983/4 through 11/19/83 .............................................................. 304.0 2.73 829.92 4.25 4.095 17.40 347.32 $2,394.13 * Wages due are $847.32 less $500 which was paid to Mullins by the Respondent on December 16, 1983 SCHEDULE A-2.-BACKPAY REGARDING KENNETH F. JOHNSON Reg. Wages Yr./Qtr. Reg. Wage Wage Wage Dif Due at Total Hs. D Rate Hrs Rate 1983/2 .............................................................................................. 28.5 $1.73 $49.30 0 $49.30 1983/3 .............................................................................................. 483.5 1.73 836.45 5 (1.73 x 1.5) $12.97 849.42 $2.595 1983/4 .............................................................................................. 430 1.73 743.90 2.5 2.595 6 49 750.39 $1,649.11 SCHEDULE A-3.-BACKPAY REGARDING CHARLIE M. SCOTT g Wages Yr. /Qtr. H D fe Wa e Wage Dif Due at Total s, Rates H Rate 1983/2 .................................................................................................. 288 $3.73 $1074.24 3.5 (3.73 x 1.5) $19.58 $1093.82 $5.595 1983/3 ................................................................................................. 492 3.73 1835.16 21.5 5.595 120.29 1955.45 1983/4 .................................................................................................. 40 3.73 149 20 3.5 5.595 19.58 168.78 (10/1/83 from to 10/2/83 11/19/83) ............................................... 270 3.23 872.10 15.5 (3.23 x 1.5) 75.10 862.57 4.845 $4080.62 * Wages due are $947.20 less $84.63 which was paid to Scott by the Respondent on December 16, 1983. METCALF EXCAVATING, SCHEDULE B- I.-WELFARE FUND CONTRIBUTIONS REGARDING ROY FOSTER MULLINS Yr. /Qtr. Wks Worked Weekly Contribution Amount Due 1983/2 ............. 7 $52.50 $367.50 1983/3 ............. 13 52.50 683.50 1983/4 ............. 11 52.50 577.50 1984/1 ............. 0 - = 1984/2 ............. 7 60.50 432.50 1984/3 ............. 5 60.50 302.50 $2,353.50 SCHEDULE B-2.--WELFARE FUND CONTRIBUTIONS REGARDING KENNETH F. JOHNSON Yr./Qtr. Hrs. Worked Weekly Contribution Amount Due 1983/2............. 1 $52.50 $52.50 1983/3 ............. 13 52.50 682.50 1983/4 ............. 13 52.50 682.50 $1,417.50 SCHEDULE B-3.-WELFARE FUND CONTRIBUTIONS REGARDING CHARLIE M. SCOTT Yr./Qtr. Hrs. Worked Weekly Contribution Amount Due 1983/2 ............. 10 $52.50 $525.00 1983/3 ............. 13 52.50 682.50 1983/4............. 8 52.50 420.00 $1,627.50 SCHEDULE C-1.--PENSION FUND CONTRIBUTIONS REGARDING ROY FOSTER MULLINS Yr./Qtr. Hrs. Worked Weekly Contribution Amount Due 1983/2 ............. 7 $55 $385 1983/3 ............. 13 55 715 1983/4 ............. 11 55 605 1984/1 ............. 0 - - 1984/2 ............. 7 55 385 1984/3 ............. 5 55 275 $2,365 95 SCHEDULE C-2.-PENSION FUND CONTRIBUTIONS REGARDING KENNETH F. JOHNSON ' Yr./Qtr. Hrs. Worked Weekly Contribution Amount Due 1983/2 ............. 0 - - 1983/3 ............. 13 $55.50 $715 1983/4 ............. 13 55.50 715 $1,430 SCHEDULE C-3.-PENSION FUND CONTRIBUTIONS REGARDING CHARLIE M. SCOTT Yr./Qtr. Hrs. Worked Weekly Contribution ,amount Due 1983/2 ............. 10 $55 $550 1983/3 ............. 13 55 715 1983/4 ............. 8 55 440 $1,705 The Board's Order was enforced by the United States court of appeals on 21 June 1985 . Respondent does not dispute the affirmative directive of the Board and its 'en- forcement by the court, but simply contends that the amount of contributions to the health , welfare and pen- sion benefit funds, as well as the wage rate of the two employees should be less than the amounts computed by the Board and set forth in its backpay specification, . be- cause neither employee (Johnson or , Scott) performed full-time bargaining unit work during the period in ques- tion. Section 9(b) of the backpay specification was amended at the hearing to read: An employer shall be obligated to pay interest on the monies due to the trustees from the date when the payment was due to the date when the payment is made, together with all expenses of collection in- cuffed by the trustees including but limited to attor- ney's fees and such fees for late payment as trustees determine as permitted by law. The interest payable by an employer in accord- ance with the preceding sentence shall be computed and charged to the employer at the prime interest rate established by Chase Manhattan Bank, New York, New York for the 15th day of the month for which the interest is charged . Any judgment against an employer entered on and after September 26, 1980 for contribution owed to this fund shall in- clude by mandate of the Court the greater of a. Doubling of interest computed and charged in accordance with this section, or b. Liquidated damages based on the unpaid contributions only (exclusive of interest) as deter- mined by the Court in the amount of 20 percent in accordance with the Multi-employer Pension 96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Plan Amendment Act of 1980, the Employee Re- tirement Income Security Act, 29 U.S.C. 1132(G) 2 CI and Two. B. Background Facts The undisputed and credited testimony of owner and manager of Respondent, Jimmy Metcalf, established that between June and December 1983, Respondent had con- tinued in the business of excavating. Specifically, Re- spondent engaged in underground work, stone water and sanitary sewer work, and wrecking and demolition work. Respondent was working four or five employees, and one or two part-time employees. Both Kenneth Johnson and Charlie Scott were employed by Respondent during that period. Although Respondent was signatory to a contract with the Teamsters during the subject period, neither Johnson nor Scott was a member of the Team- sters. All of Respondent's employees reported to its Spring- port Road office every morning where they received work assignments from Metcalf or Respondent's fore- man, Larry Burge.' C. Computation of Backpay At the hearing Compliance Officer Harris B. Berman testified he supervised the computation of the amount of backpay and fringe benefits set forth in Schedules Al, A2, and A3, Schedules B1, B2, and B3, and Schedules Cl, C2, and C3, of the backpay specification, and that based on records from the Employer, Kenneth Johnson and Charlie Scott were included in the bargaining unit as "drivers"; and that the backpay and fringe benefits for both Johnson and Scott were computed in accordance with appropriate and well established Board formulae for computing backpay and benefits. Charlie Scott was called by Respondent and he testified that between May and December 1983, he worked an average of 5 days a week and spent 75-80 percent of his worktime driving a truck for Respondent. The remainder of his woiktime was spent performing mechanical, labor, and jackhammer work when he was not driving a truck. Charlie Scott testified that he agreed to work for $5 or $6 an hour with the understanding that, as work picked up, Respondent would pay him more, and Respondent did in fact pay him more. Kenneth Johnson was called by Respondent and he tes- tified that Metcalf did not discuss his work classification when he (Metcalf) hired him, but when he went to work for the Respondent, Metcalf assigned him to driving a truck. Although he sometimes loaded his truck, as did other drivers, Johnson said he drove a truck approxi- mately 95 percent of his worktime. He also testified that he kept and recorded the time he worked different jobs, especially driving a truck, on timecards furnished by the Respondent. However, he said he did not always fill in truckdriving and other, specific job functions he per- formed during a workday. ' The above facts are not disputed and are not in conflict in the record. Jimmy Metcalf testified, that none of his employees drove a truck 95 percent of, the time and that Kenneth Johnson drove a truck 75 percent of his worktime, and 10 percent of his worktime was engaged in truck-related work. He said he required the drivers to fill in work- cards indicating the time they spent driving a truck or performing other work, from which information he billed customers at truckdriving rates. On further examination by counsel for the Respondent, Metcalf said Scott drove a truck about 40 'percent of his worktime. When asked whether Kenneth Johnson was hired as a truckdriver, Metcalf said, "Yes and No," that when Johnson was hired, he said he told Johnson he had a mixture of work and that he would do whatever was necessary; that Johnson told him he (Johnson) had an operators card (to operate heavy equipment-bulldozers, loaders, cranes, backhose, etc.). With respect to Charlie Scott, Metcalf said, he hired Scott after Scott told him he was a mechanic and labor-' er. However, he said he did not permit Scott to drive a truck anymore than he had to because Scott had dam- aged three different universal drive lines and had de- stroyed a spider gear on one of the tandem dumptrucks, which cost several hundred dollars to replace. Respondent presented in evidence individual work- cards of employees (Jt. Exh. 6), on which individual em- ployees indicated the amount of time they spent perform- ing driving a truck or performing other kinds of work. Metcalf acknowledged on, cross-examination, however, that Joint Exhibit 6 contained most, but not all, of the workcards; and that some of the cards were not complet- ed as they should have been because the employees did not always complete the cards as they were instructed to do. That is, they did not always indicate the specific kinds of work they performed on a given day. He admit- ted Johnson did not indicate on some of his timecards what kind of work he performed. Metcalf further testified that Roy F. Mullins spent 80 percent of his time driving a truck and 20 percent of his worktime helping him to do other work. In response to additional questions, Metcalf said he considered Mullins a truckdriver and Johnson and Scott not truckdrivers be- cause he hired Mullins as a truckdriver and because Mul- lins was a good truckdriver. For these reasons, he paid Mullins a truckdriver's, rate and did not pay Johnson and Scott at the same rate. When asked did he pay either Johnson or Scott in accordance with the Teamsters truckdriver rate, or the rate of the Operating Engineers when they performed heavy equipment work, Metcalf said no he did not because both Johnson and Scott agreed to work for him at a flat rate of pay. Roy Mullins was called by the General Counsel, and he testified that he was hired by Respondent in April 1979. When asked was he told what job classification he was hired in, he said, "Not really," he was simply hired as a driver-laborer. During the period May-December 1983, Mullins said he drove a dumptruck about 95 per- cent of the time. He said Respondent had four other trucks and it hired Johnson and Scott. Larry Burch was already in Respondent's employ. Mullins also said he thought Johnson and Scott drove about 90 percent of the METCALF EXCAVATING time because he would see them whenall of themr,drpve away from the office in the morning; also when they would pass one another going back and forth to the dump; and that they would see one another at the dump- site as they dumped loads almost daily. He said some- times each driver had to load his own truck, or each of them took turns loading the trucks with the jackhammer. When asked who did the wrecking, he said Metcalf did all the wrecking and he thought Burch drove a truck about 60 percent of his working time. Analysis and Conclusions The uncontroverted and credited evidence of record established that the Board's supervisory compliance offi- cer computed the backpay and fringe benefits owing to Kenneth Johnson and Charlie Scott on a truckdriver's pay rate. The backpay and fringe benefits were so com- puted for Johnson and Scott because both of them drove trucks daily and the rate of pay for full-time or part-time truckdrivers is proscribed by the pension section, para- graph (f) of the contract (Jt. Exh. 2), to which Respond- ent is signatory. Respondent is contesting the Board's computation only because it contends Johnson and Scott were not full-time truckdrivers because they performed other nontruckdriv- ing work during the backpay period. The principal sub- ordinate issue presented for determination is: Whether the fact that Johnson and Scott performed less than 100 percent bargaining unit work (truck- driving) during the backpay period relieves Re- spondent of paying them the contractual wage rate and making full fringe benefit contributions on their behalf for the entire backpay period? In addressing this question, Respondent attempted to support its position that Johnson and Scott did not per- form much truckdriving work by presenting their work- cards in evidence (&t. Exh. 6). However, it is well estab- lished by Respondent's admission that Joint Exhibit 6 not only does not contain all the workcards for all the em- ployees during the backpay period, but that some of such workcards were not documented by' the workers ' as di- rected. Under these circumstances, the workcards (Jt. Exh. 6) are of very little probative value. At most, they simply establish that truckdrivers Johnson, Scott, and Mullins performed truckdriving as well as some non- truckdriving work assignments. What percentage of their work assignments involved truckdriving, as distinguished from other work assignments, will be established by a credibility determination of the testimony of the wit- nesses who testified. In this regard, it is first noted that although Roy Mul- lins testified he drove a truck 95 percent of the time, Metcalf (Respondent) testified that none of his employees drove a truck, 95 percent of their worktime. Instead, he testified Mullins drove a truck 80 percent of his work- time during the backpay period. Respondent does not object to paying the unit contractual wage rate, or making contributions to fringe benefits on behalf of Mul- lins, and it does not contest the Board's computation for Mullins as set forth in the backpay specification. 97 -By comparison, however, Metcalf testified that John- son performed unit work (drove a truck) 75 percent of his worktime and Johnson testified he drove a truck 95 percent of his worktime during the backpay period. I credit Metcalf s statement that none of his drivers drove a truck 95 percent of their worktime because Met- calf concedes that undisputed truckdriver Mullins drove a truck 80 percent of the time. This is only 5 percent more truckdriving time than the 75 percent Metcalf ac- knowledged Johnson drove a truck. Because undisputed truckdriver Mullins testified that Johnson drove a truck 90 percent of the time, Johnson's testimony is partially corroborated by Mullins. Scott testified he drove a truck 75-80 percent of his worktime during the backpay period but Metcalf testified Scott drove a truck only 40 percent of the- time in ques- tion. - However, undisputed truckdriver Mullins testified that Scott also drove a truck 90 percent of the time during the backpay period, as did he (Mullins) and John- son. Respondent's foreman is Larry Burch, and Mullins testified Burch drove a truck 60 percent of his worktime. However, Respondent did not call Burch to testify in this proceeding to confirm or refute any testimony. Nor was an explanation offered by Respondent for his nonap- pearance. Under these circumstances, the Board' has long held that an adverse inference may be drawn from such nonappearance against the party who failed to produce such a witness and neglects to explain their absence. Fruehauf Trailer Co., 1 NLRB 68 (1935); Boilermakers Local 27 (Daniel Construction), 271 NLRB 1038 (1984). I therefore conclude that it may be reasonably inferred from Respondent's failure to produce Foreman Larry Burch as a witness, and its failure to explain his nonap- pearance, that Burch's testimony would have been ad- verse to Respondent's interest on the issue in question. Fruehauf Trailer Co., supra; Boilermakers Local 27, supra. Having observed each of the witnesses (Metcalf, John- son, Scott, and Mullins) testify and, based on their indi- vidual demeanor, the parties on whose behalf they testi- fied, and their respective interest in this case, I first credit Mullins' testimony, essentially, because his back- pay, fringe benefit contributions, and contractual wage rate computed on his behalf are not contested by the Re- spondent. Moreover, Mullins' testimony corroborates, in substantial part, the testimony of Johnson and Scott that they drove a truck at least as many hours 'as they testi- fied they did (95 and 75-80 percent, respectively). However, based on the consideration of all the forego- ing evaluating factors, I credit the testimony of Metcalf, Johnson, and Scott, in substantial part, while making al- lowance for self-serving exaggeration on the part of each witness to further his own interest. Evaluated as such, 1, find that Johnson and. Scott drove at least 80 percent of their worktime during the backpay period. This is the amount of time Metcalf said his acknowledged truckdriv- er Mullins drove a truck. Although the Respondent' contends it considered Mul- lins a truckdriver performing unit work because it hired Mullins as a truckdriver, and it did not hire Johnson and Scott as truckdrivers, Mullins testified Respondent (Met- calf) did not tell him he was being hired as a truckdriver, 98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD but he was, hired as a driver-laborer. In fact, he said they did not discuss his job classification when he was hired. I credit Mullins' testimony in this regard not only because I was persuaded by his, demeanor that he was testifying truthfully, but, also, because Respondent acknowledges Mullins performed other nontruckdriving work 20 per- cent of his worktime. Both Johnson and Scott also per- formed other nontruckdriving functions as much as 20 percent, at times. As none ,of Respondent's employees drove a truck exclusively 100 percent of the time, in all probability, that is the reason why Respondent did not confine itself consistently to classifying its drivers as truckdrivers. Nevertheless, be that as it may, the signifi- cant finding is'that all of Respondent's employee-drivers (Mullins, Johnson, and Scott) drove a truck about 80 percent of their worktime during the backpay period. ' Courts and the Board have held that any, uncertainties about the percentage of time discriminates employees performed unit work during the backpay period must fairly rest against the wrongdoer, Respondent. Story Parchment Co. v. Patterson Parchment Paper Co., 282 U.S. 555, 563 (1931); Bigelow v. R.K.O. Radio Pictures, 327 U.S. 251, 265 (1946); Boilermakers Local 27, supra. Con- sequently, if any residual uncertainties exist about the percentage of time Johnson or Scott spent driving a truck during the backpay period, I further find that Re- spondent has failed to establish and clarify such uncer- tainties by a preponderance of the evidence in this pro- ceeding. Story Parchment Co., supra; Boilermakers Local 27, supra. Consequently, based on the foregoing credited evi- dence, findings, and reasons, I find that Johnson, Scott, and Mullins all performed approximately the same amount of bargaining unit work (truckdriving), and as Respondent has conceded its obligation to pay Mullins the contractual wage rate, I conclude and find that Re- spondent is bound to pay Johnson and Scott the same contractual wage rate. Respondent argues that it is not obligated to pay John- son and Scott the contractual wage rate because they agreed with Respondent to work for a lower wage rate. I find this argument to be without merit, however, be- cause the contract to which Respondent is signatory does not provide that employees performing unit work may waive their right to the contractual wage. rate. Be- cause Johnson, Scott, and Mullins were all truckdrivers performing essentially the same truckdriving unit work, all of them are entitled to the wage rate set forth in the contract which Respondent has agreed to pay Mullins. With respect to Respondent's obligation to make con- tributions to the welfare and pension benefit funds, the General Counsel cites the pension section, paragraph (f) of the contract (Jt. Exh. 2), which provides in pertinent part as follows: Contributions to the Health and Welfare Fund and to the Pension fund must be made for each week on each regular employee, even though such em- ployee may work only part-time under the provi- sions of this contract. In construing the above provision of the contract it is noted that Johnson, Scott, and Mullins are all regular full-time employees of the Respondent. Because para- graph (f) mandates that contributions to fringe benefits must be made each week on each regular employee, it is clear that such contributions should be made on behalf of all full-time working unit employees. Respondent agrees to make the contributions on behalf of Mullins and it only refuses to make the contributions on behalf of John- son and Scott because they performed other nondriving assignments. So did Mullins. But because it is now estab- lished that Johnson and Scott drove a truck as much time as did Mullins, and that paragraph (f) makes it clear that part-time employees are entitled to such contribu- tions, Respondent has failed to demonstrate any valid distinction why Mullins should receive contributions and Johnson and Scott should not. Because .both performed bargaining unit work, they were in the unit even though they may not have been members of the Union as was Mullins. In his posthearing brief to me, counsel for Respondent argues that article 1, subparagraph (a), provides: The employer recognizes the Union as the sole and exclusive collective bargaining agent for their mem- bers performing work within the classifications con- tained in this, Agreement in the geographical area coming within the jurisdiction of the Union. As Johnson and Scott were not members of the Union in accordance with the language in article 1, "Respondent argues that the General Counsel has failed to establish that the collective-bargaining agreement is applicable to them. However, because Mullins was a member of the Union and Johnson and Scott have been found to have performed the same truckdriving work as Mullins per- formed, the General Counsel argues Johnson and Scott were performing bargaining unit work and were, there- fore, in the unit, certainly at least for purposes of estab- lishing their wage rate. I agree with the General Counsel in this regard. Counsel for Respondent also argues that the General Counsel has failed to establish that the contract (Jt. Exh. 2) is applicable to Johnson and Scott because article IV of that agreement specifically provides: Jurisdiction This Agreement shall govern all underground construction work which any Employer performs which comes within the jurisdiction of the Union. Underground Construction work shall be construed to me any work which requires the excavation of earth, including industrial , commercial and residen- tal building site excavation and preparation, land bal- ancing, grading, sewers, utilities and improvements and also including but not limited to tunnels, under- ground piping, retention, oxidation, flocculation fa- cilities, conduits, general excavation and steel ' sheet- ing for underground construction. Underground construction work shall not include any structural modifications, alterations, additions and repairs to building or highway work, including roads, streets, METCALF EXCAVATING bridge construction and parking lots or steel erec- tion work. 99 specification is accurate in all respects and issue the fol- lowing recommended2 It is noted however, that the very name of Respondent is "Jimmy Metcalf d/b/a Metcalf Excavating." During the hearing, Metcalf, in response to questions by counsel for Respondent, testified that during the period June-De- cember 1983, the nature of the work in which Respond- ent was involved included: "underground work, such as stone, water, sanitary sewer work. And also wrecking, demolition work, basically things of that nature." Based on the above-cited company name of Respond- ent and the foregoing testimony of Metcalf, I find that Respondent's work is expressly covered by the language in article IV of the above-cited agreement. Counsel for Respondent also argues that the agree- ment, article IV (Jt. Exh. 2), is not a "truckdrivers" agreement. However, it is noted on page 1 that the cap- tion in bold print reads: "Truck Driver's Agreement," and the cover of the agreement is entitled: "Agreement between Associated Underground Contractors" and the Union. In view of such explicit language, I do not find merit in Respondent's argument. Finally, near the conclusion of the hearing, counsel for Respondent referred to his answer to the backpay speci- fication in which he stated or implied that a Michigan statute prohibited the Board from assessing the interest rates and assessments specified by the trust fund agree- ment. I requested counsel to 'furnish the citation or a copy of the Michigan statute to which he referred to the General Counsel, and also to cite the statute and address that argument in his brief to me. The record shows that counsel did neither. Under these circumstances I deem counsel for Respondent's argument in this respect, with- drawn, because it has not been addressed in this record. I therefore find, pursuant to the contract, that Re- spondent is legally obligated to make fringe benefit con- tributions on behalf' of Johnson and Scott. Such contribu- tions having been included in the backpay computations set forth in Schedules A-2, B-2, and C-2 for Johnson, and Schedules A-3, B-3, and C-3 for Scott, I find that Re- spondent is liable for the amount of backpay due and owing to Kenneth F. Johnson, Charlie M. Scott, and Roy F. Mullins, in, the amounts prepared and set forth in the backpay specification. I further find that the backpay ORDER The Respondent, Jimmy Metcalf, d/b/a Metcalf Exca- vating, Jackson, Michigan, its officers, agents, successors, and assigns, shall make Roy Foster Mullins, Kenneth F. Johnson, and Charlie M. Scott whole for wages and fringe benefits lost, by: paying backpay, plus interest owing to the below named discriminatees in the amount set opposite their respective names, less any remittance made or tax withholdings required by law as follows: Roy Foster Mullins $2,394.13 Kenneth F. Johnson 1,649.11 Charlie M. Scott 4,080.62 making contributions owed to the welfare fund on behalf of the below named discriminatees, in the amount set op- posite their respective names, with interest, less any re- mittance made as follows: Roy Foster Mullins $2,353.50 Kenneth F. Johnson 1,417.50 Charlie M. Scott 1,627.50 making contributions owed to the pension fund on behalf of the below named discriminatees, in the amount set op- posite their respective names, with interest, less any re- mittance made as follows: Roy Foster Mullins $2,365.00 Kenneth F. Johnson 1,430.00 Charlie M. Scott 1,705.00 The Respondent shall make the appropriate deductions from the amounts of any tax withholdings required by state or Federal laws. 2 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