International Association Of Bridge, Structural And Ornamental Iron Workers, Local No. 433 (Rpm Erectors, Inc.)

702 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD International Association of Bridge, Structural and Ornamental Iron Workers, Local No. 433 (RPM Erectors, Inc.) and Waldo F. Kusterns. Case 21-CB-7122 13 October 1987 SECOND SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS BABSON AND CRACRAFT On 11 February 1983 the National Labor Rela- tions Board issued its Decision and Order' finding, inter alia, that the Respondent violated Section 8(b)(1)(A) and (2) of the Act by failing to refer Waldo F. Kusterns for employment at RPM Erec- tors, Inc. because he refused to pay dues he was under no obligation to pay to obtain employment at RPM Erectors. The Board ordered the Re- spondent to make Kusterns whole for any loss of pay or benefits he may have suffered because of the discrimination, plus interest. On 26 January 1984 the United States Court of Appeals for the Ninth Circuit enforced the Board's Order in an un- published decision.2 On 18 May 1984 the Acting Regional Director issued a backpay specification. On 5 February 1985 Administrative Law Judge Earldean V. S. Robbins issued a supplemental deci- sion that included a recommendation that backpay be ordered for Kusterns. On 27 August 1985 the Board issued its Supplemental Decision and Order3 in which it found, inter alia, that Kusterns incurred a willful loss of earnings and therefore was not en- titled to backpay.4 Upon a petition for review of the Board's deci- sion filed by Kusterns, the United States Court of Appeals for the Ninth Circuit, on 20 November 1986,5 found, contrary to the Board, that Kusterns was entitled to backpay. The court found that Kus- terns had no obligation to pay the disputed amounts under protest and therefore Kusterns had not failed to mitigate his damages . The court re- manded the case to the Board for the computation 1 266 NLRB 154 (1983). 2 Docket No 83-7252 s 275 NLRB 1539 (1985) The General Counsel had excepted to that part of the judge's recom- mended Order directing the Respondent to deduct tax withholdings re- quired by state and Federal law from Kusterns ' backpay award Howev- er, the Board found it unnecessary to pass on this exception because of its finding that Kusterns was not entitled to backpay s 123 LRRM 3234 (9th Cir. 1986) of backpay due Kusterns.6 After the remand, the General Counsel and the Respondent filed state- ments of position. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has accepted the court' s remand and recognizes the court's decision as the law of this case. In her statement of position, the General Counsel reiterates her argument that state and Fed- eral taxes should not be withheld from Kusterns' backpay. The Respondent, in its statement of posi- tion, reiterates its position that Kusterns is not enti- tled to backpay. Because the court's decision that Kusterns is entitled to backpay is the law of this case, we consider only the issue of whether state and Federal taxes should be withheld from his backpay. Inasmuch as payment of backpay by a labor organization is not treated as wages paid by or on behalf of an employer, we shall not require the Respondent to deduct state and Federal taxes from the backpay due Kusterns.7 Accordingly, we shall order the Respondent to pay Kusterns back- pay in the amount set forth below. ORDER The National Labor Relations Board orders the Respondent, International Association of Bridge, Structural and Ornamental Iron Workers, Local No. 433, Los Angeles, California, its officers, agents, and representatives, to make whole Waldo F. Kusterns by paying him $7870.45 backpay plus interest in the manner prescribed in New Horizons for the Retarded8 and by paying $1177.71 to the pension plan and $774.53 to the vacation plan, plus interest in the manner prescribed in Merryweather Optical Co.9 6 On appeal, Kusterns argued that the judge improperly withheld state and Federal taxes from the backpay award The court stated that the issue was not properly before it because the Board had not considered the issue when it found that Kusterns was not entitled to backpay. The issue is before us now r See Carpenters Local 347 (Newton Associates), 231 NLRB 688 fn. 2 (1977), Teamsters Local 249 (Lancaster Transportation), 116 NLRB 399, 400 (1956), enfd 244 F 2d 292 (3d Cir 1957) 9 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after 1 January 1987 shall be computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U S C § 6621 . Interest on amounts accrued prior to 1 January 1987 (the effective date of the 1986 amendment to 26 U S C § 6621) shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) 9 240 NLRB 1213, 1216 fn 7 (1979) 286 NLRB No. 67