Trans Tech Electric, Inc.

TRANS TECH ELECTRIC 623 Trans Tech Electric, Inc. and Ralph H. Lingo. Case 25-CA-16412 16 December 1987 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS BABSON AND CRACRAFT On 9 June 1987 Administrative Law Judge James J. O'Meara Jr. issued the attached supple- mental 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 supplemental deci- sion and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings, and conclusions only to the extent consist- ent with this Supplemental Decision and Order. On 28 February 1985 the Board issued a Deci- sion and Order,' finding that the Respondent vio- lated Section 8(a)(3) and (1) of the Act when it laid off employee Ralph H. Lingo and refused to recall him. The Board ordered, inter alia, that Lingo be made whole for the loss of earnings and benefits re- sulting from his unlawful layoff. On 27 August 1986 the Regional Director for Region 25 issued a backpay specification and notice of hearing. In this proceeding, the judge found, and the par- ties agreed, that the Respondent owes 3 days' back- pay and welfare and pension contributions plus in- terest for the work done on the Angola project in the first quarter of 1984. The judge further found that the Respondent also owes Lingo backpay based on the earnings in the second and third quar- ters of 1984 of the first employee referred to the LaGrange project by IBEW Local 305. For the reasons stated below, we find, contrary to the judge, that the Respondent owes Lingo backpay only for the 3 days in the first quarter of 1984. The Respondent is an electrical contracting firm with its principal office in South Bend, Indiana. Al- though the Respondent had its labor contract with IBEW Local 153, when it performed work in areas under the geographical jurisdiction of other IBEW locals, it entered into agreements with such locals. In 1983 the Respondent obtained several con- tracts to remodel gas service stations at rest stops on the Indiana toll road. The two projects involved here (the Angola and LaGrange projects) were in IBEW Local 305's territory. Pursuant to Local 1 274 NLRB 632 (1985) 305's contract, the Union was the exclusive source of referral for applicants for employment. Any out- side firm doing electrical work within Local 305's jurisdiction was allowed to bring in only one non- resident journeyman. Any other employees hired had to be referred from the Union. The Angola project was started about 10 Octo- ber 1983 with one permanent employee of the Re- spondent working by himself. Lingo was referred to the Angola project by the Union on 14 Novem- ber 1983. The Union referred another person, Robert Steffan,2 to the Angola project on 23 Janu- ary 1984.3 The judge in the instant case found that Lingo was laid off on 9 March.4 Steffan worked his last 3 days during the week ending 17 March. The Angola project was finished on 29 March by the Respondent's permanent employee. The Respondent had one permanent employee working alone at the LaGrange project until early June, 5 when it requested a referral from the Union. The Union referred Dave Creager, who worked at the LaGrange project from 4 June to 7 July. The judge found that Lingo's backpay for the second and third quarters of 1984 is properly based on the earnings of Dave Creager, the first employ- ee referred to the LaGrange project by Local 305. The judge concluded that Lingo was entitled to backpay from the LaGrange project because he would have been referred by the Union to that project absent the Respondent's unfair labor prac- tice. The judge based this conclusion on a letter dated 9 March from the union business agent to the Respondent's vice president. The letter states in pertinent part: I am sending you this letter to notify you and your Company that Mr. Ralph H. Lingo, who is a Journeyman Inside Wireman and also a member of Local 305, I.B.E.W., and who is presently employed by your Company, has been officially appointed Union Steward. He will be put on the job you have in LaGrange County on the Toll Road when you start the project. I would expect that this request be followed and I also would expect that all work being performed on both projects be done with Jour- neymen Wiremen referred from this hall. . . . The Respondent's vice president's letter in re- sponse, dated 12 March, states in pertinent part: 2 The exact spelling of Steffan's last name is not clear from the record 9 All dates are in 1984 unless otherwise indicated 4 Lingo's termination report shows his termination date as 12 March 1984 The discrepancy in dates, however, is not relevant because the par- ties agree on the amount of backpay due Lingo for the Angola project 5 Steffan worked for several days in March on the LaGrange project on a temporary basis 287 NLRB No. 64 624 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Persuant [sic] to your letter of March 9th, this letter is to provide notification that Ralph Lingo has not, and will not be working on the LaGrange County Toll Road Project. He will be layed [sic] off from our firm this week when we reduce our work force at the Angola Project. We feel this is more than ade- quate notification since you made him stewart [sic] on a project (LaGrange County), which he has not even worked on, your 48 hour re- quirement in the contract does not fit the cir- cumstances of the lay-off because this is a lay- off due to a reduction of work force on a project which is being completed. Prior to your letter Bob Steffon [sic] had already worked on the LaGrange Project. Should you wish to, apoint [sic] another steward, I would suggest you wait to see if the project will move quickly enough in La- Grange to warrant my having two people there. As you recall the first half of the Angola Project only required the presence of one man. . . .6 The judge found that the Union told the Re- spondent that it would refer Lingo to the La- Grange project. The ,fudge further noted that be- cause the Respondent, by its letter, emphatically rejected the possibility of further employment of Lingo, it would have been, futile for the Union to refer him again when the Respondent requested a referral in June. Thus, the judge reasoned that if Lingo had not been discriminatorily laid off, he would have been referred to the LaGrange project. The Respondent contends that Lingo would have been discharged from the Angola project as it wound down toward completion and would not have been referred to the LaGrange project. Sec- tion 3.11 of the contract provides that the "Union shall maintain an `Out of Work List' which shall list the applicants within-each Group [there were four, groups based mainly on length of experience, residence, and training] in chronological order of the dates they register their availability for employ- ment." Applicants are referred first from group I in the order of their place on the "Out of Work List" and then referred in the same manner successively from groups II, III, and IV. Lingo testified that, pursuant to this procedure, when he was terminat- ed from the Angola project he was placed on the 6 The Respondent's vice president testified that during the time in which he received the business agent 's letter and sent his response, he did not know exactly when he would need union referrals for the LaGrange project, although he thought it would be at least 3 or 4 weeks before he would request a referral He testified that the Respondent 's work sched- ule depended on the performance of the general contractor bottom of the referral list.7 According to Lingo, there were about 80 persons on the books at that time. The Respondent contends that Lingo was not and would not have been referred to the LaGrange project because of the referral procedure of the union hiring hall. We agree with the Respondent. The Board dealt in part with the issue of the Union's failure to refer Lingo to the LaGrange project `in the underlying unfair labor practice case. In a footnote, the Board stated in pertinent part: Art. III of the parties' collective-bargaining agreement states that the Union is the "sole and exclusive source of referral of applicants for employment." With limited exceptions, not relevant here, employers covered by the agreement are prohibited from directly hiring employees without first requesting and obtain- ing a referral from the Union. As there- is no evidence the Union referred Lingo, for the La- Grange project, the Respondent's failure to offer him a job there was entirely consistent with its obligations under the contract. [Em- phasis added.]8 We agree with the Board's previous finding that there is no evidence on the record that the Union referred Lingo to the LaGrange project. The judge's reliance on the letter from the Union to the Respondent to show an intent to refer Lingo is misplaced. The Board in the underlying case did not consider the Union's letter to the Respondent to be a referral. In responding to the judge's foot- note in which he mentioned the letter, the Board found that there was no evidence the, Union re- ferred' Lingo for the LaGrange project. Thus, we do not find that the letter was a referral. Both the Respondent and the Union followed the contractual procedures for referrals for the La-, Grange project and Lingo was not referred. Be- cause Lingo would not have worked at the La- Grange project, we shall order backpay for Lingo only in the amount appropriate for the first quarter of 1984 for work performed at the Angola project. ORDER The National Labor Relations Board orders the Respondent, Trans Tech Electric, Inc., South Bend, Indiana, its officers, agents, successors, and ' There is no evidence regarding Lingo's group placement The parties at the hearing agreed that when an employee is laid off for less than a week, the Employer can bring him back without going through the Union for a referral The Employer's first referral to the LaGrange project after 9 March 1984, the date of Lingo' s termination , was on 4 June 1984 Thus, it is clear that the Employer was properly adhering to the hiring hall provisions when it called the Union for a referral rather than calling on Lingo directly a 274 NLRB 632 fn 1 (1985) TRANS TECH ELECTRIC 625 assigns, to make whole Ralph H. Lingo by paying him $415.20 net pay backpay plus interest in the manner prescribed in New Horizons for the Retard- ed,9 less tax withholdings required by Federal and state law, and by paying $30 to the welfare plan and $21.60 to the pension plan, plus interest in the manner prescribed in Merryweather Optical Co.10 9 In accordance with our decision in New Horizons for the Retarded, 283 NLRB 1173 (1987), interest on and after I 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 US C § 6621 Interest on amounts accrued prior to 1 January 1987 (the effective date of the 1986 amendment to 26 US C § 6621) shall be computed in accordance with Florida Steel Corp, 231 NLRB 651 (1977) 10 240 NLRB 1213, 1216 fn 7 (1979) Cornell A. Overstreet, Esq., for the General Counsel. S. Douglas Trolson, Esq., for the Respondent. SUPPLEMENTAL DECISION JAMES J. O'MEARA JR., Administrative Law Judge. On 15 October 1984, Administrative Law Judge William A. Pope II issued an order, affirmed by the Board, pro- viding, inter alia, that employee Ralph H. Lingo be made whole for the loss of earnings and for benefits in the matter prescribed in Florida Steel Corp., 231 NLRB 651 (1977), and Isis Plumbing Co., 138 NLRB 716 (1962). The Board, in its Decision and Order, found on 28 February 1985, that the 9 March 1984 "lay-off' of Ralph H. Lingo by Respondent's vice president, John Martell, was unlawful. Martell told Lingo that he was being "laid-off' for causing Local 305 to bring pressure on him. When disagreement arose on the amount of backpay due, the Region issued a backpay specification dated 27 August 1986. The parties agree, and I find, that the Re- spondent owes 3 days' backpay, plus health and pension contributions, and appropriate interest for the first quar- ter of 1984, but the General Counsel and Respondent dis- agree whether the Respondent owes Lingo any backpay for the second and third quarter of 1984. Respondent, Trans Tech Electric Inc. (Respondent), is an electrical contracting firm, with its principal office in South Bend, Indiana. In 1983, the Respondent obtained several contracts providing for the installation of fuel storage, electrical wiring, and related distribution facili- ties. Respondent, being located in South Bend, Indiana, had its labor contract with IBEW Local 153. When Respond- ent performs its work in other areas, which are under geographical jurisdiction of other IBEW Locals, it enters into agreements and is subject to the rules of such Locals. Respondent, as a subcontractor, received contracts to remodel gas service stations at rest stops on the Indiana toll road. Four of the projects were in areas where other IBEW locals had geographical jurisdiction. Two projects, Angola and LaGrange, were in IBEW Local 305's territory, and Respondent became subject to its rules and contract The standard agreement with the Union provided, among other things: Section 302. The Union shall be the sole and ex- clusive source of referral for applicants for employ- ment The contract also provides as the only exception to the hiring clause: Section 406, Any outside firm doing electrical work within the jurisdiction of this Local Union shall not be allowed to bring in more than one non- resident journeyman. When any complaint or dis- pute arises dealing with this question , any ruling made by the International Office of the Union shall be accepted and put into effect. Thus, the Respondent was limited in where it obtained personnel when its needs for such personnel exceeded one man Lingo was referred to the Angola job by the Union, on request of Respondent. When a referral was made by the Union, the Respond- ent's permanent employee would become the job fore- man. The Angola project started about 10 October 1983 with a permanent employee, one Dave Blosser, working by himself. Lingo was referred to the job and started working at the Angola project on 14 November 1983. Blosser therefore became Respondent's job foreman. One Robert Steffan was referred by the Local and began working at Angola on 23 January 1984. Steffan was a short-term employee and was not required to await his turn on the hiring list. Lingo was terminated on Friday, 9 March 1984. Stef- fan worked on Angola until Local 305 started a job action in protest to what it felt were unfair practices by Respondent. The Angola project was finished on 29 March 1984 by Respondent's permanent employer Dave Blosser. The amount of work performed by Steffan, after Lingo's termination, is agreed by the parties to be the measure of payment due Lingo for the first quarter of 1984. The agreed amounts that I found due to Lingo: $415.20 net backpay plus appropriate interest, with $30 to the welfare plan and $21.60 to the pension plan, plus interest. The Disputed Second and Third Quarters The General Counsel has taken the position that Lingo is due backpay from the LaGrange project as well as the Angola project The Respondent argues that Lingo would have, been discharged during the Angola project as it wound down to completion In a backpay proceeding, the General Counsel has,the burden of establishing gross backpay by formulating a method of calculating the probable earnings of a discri- minatee. The Board has recognized that such a method is both problematical and inexact Thus, the General Coun- sel "is only required to employ a formula reasonably de- signed to produce approximate awards due." Trinity Valley Iron & Steel Co. v. NLRB, 410 F.2d 1161, 1177 fn. 28 (5th Cir. 1969) Respondent claims that with his termination at Angola, Lingo would go to the bottom of Local 305's referral list and would not have been referred to the LaGrange project and that it owes Lingo nothing for the second 626 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and third quarters. It also states that Hudson was a per- manent employee and his employment would not match that of an employee referred by Local 305. Respondent originally intended to keep Lingo as an employee and transfer him to the LaGrange project. This is evident by Lingo's testimony that 3 or 4 weeks before his termination, Foreman Blosser said the Compa- ny was considering taking him to the LaGrange project because his production had been good. Lingo was under the impression that the two projects would overlap and he told the union business agent about this conversation. The Union's intent to refer Lingo to the LaGrange project is evidenced by the letter of 9 March 1984 from Business Agents Smith and Martell that said: I am sending you this letter to notify you and your Company that Mr. Ralph H. Lingo, who is Journeyman inside wireman and also a member of Local 305, I B.E.W., and who is presently em- ployed by your ' company, has been officially ap- pointed Union Steward. He will be put on the job you have in LaGrange County on the Toll Road when you start the project. I would expect that this request be followed and I also would expect that all work being performed on both projects be done with Journeyman wireman referred from this hall. It is my understanding that Mr. Blosser has been working on both the Angola and LaGrange Projects, which is a violation of our working agreement. I hope this action will cease and desist or charges will be filed against your Company and Mr Blosser. Martell's letter in response, dated 12 March 1984, clearly indicates that he would not employ Lingo at La- Grange and would not accept a referral of him to that job. Martell wrote: Persuant [sic] to your letter of March 9th, this letter is to provide notification that Ralph Lingo has not, and will not be working on the LaGrange County Toll Road Project. He will be layed [sic] off from our firm this week when we reduce our work force at the Angola Project. We feel this is more than adequate notifica- tion since you made him stewart [sic] on a project (LaGrange County), which he has not even worked on, your 48 hour requirement in the contract does not fit the circumstances of the lay-off because this is a lay-off due to a reduction of work force on a project which is being completed. Prior to your letter Bob Steffon [sic] had already worked on the LaGrange Project. Should you wish to apoint [sic] another steward, I would suggest you wait to see if the project move [sic] quickly enough in LaGrange to warrant my having two people there. As you recall the first half of the Angola Project only required the presence,of one man. Your reference to our company and Dave Blosser being in violation of contract, is not sub- stantiated by our review of the contract, therefore your acquisitoon [sic] is incorrect. Respondent's permanent employees, Kaser and Blosser, worked on the LaGrange project for short peri- ods of time.' Blosser returned home to South Bend in April when Respondent put his permanent employee (Local 153) member (Bob Hudson on the LaGrange project about 17 April' 1984) Employee Dave Creager was referred to the LaGrange project by the Union, on Respondents request for a man in addition to their per- manent employee on the job. Dave Creager worked from 4 June to 7 July 1984 as referred employee. The parties essentially agree that, if a man is laid off for a day or up to a week, the Company can bring him back without going through the Union- for a referral. The parties also agree that most men would quit if laid off for more than a week, and that most companies, knowing this, would terminate employees if they expect- ed to have no work for a longer period. Respondent contends that assuming (as the Board found) it was guilty of an unfair labor practice terminat- ing Lingo on 9 March 1984, Lingo would not have been referred to the LaGrange job when it needed an electri- cian on 4 June 1984. This is founded on the nearly 3- month hiatus from Lingo's termination until Creager's employment and on Lingo's low position on the seniority roster Respondent's position is succinct and logical but overlooks the letters of 9 and 12 March 1984 and their consequences Whether the Union's 9 March 1984 letter was written before or after Lingo's termination of that day, it is found that the Union told the Company that it would refer Lingo to the LaGrange job. It is equally clear that Martell's response that Lingo would not work at LaGrange and that he was being terminated and, fur- ther, that if in the future there was sufficient work to ap- point a steward, the Union could timely appoint another one. Respondent's letter related its refusal to consider the further referral of Lingo to the termination found by the Board to be unlawful; it makes it clear, but for that ter- mination, Lingo would have been employed on the La- Grange project. As Respondent, by its letter, emphatical- ly rejected the possibility of any further employment of Lingo, it would have been futile for the Local to refer him again when Respondent sought another referral in June. Contrary to the General Counsel, however, the meas- ure of backpay for the second and third quarters cannot be based on the hours of Hudson, who is one of Re- spondent's permanent employees, because there is no evi- dence to demonstrate that Respondent would have hired Lingo as a permanent employee. Lingo's backpay is more properly based on earnings of the first employee referred to the LaGrange project by Local 305, one Dave Creager. It is conceded that Lingo had no interim earnings and the amounts set forth below are net figures. i R Exh I was not accurate in all regards because it did not show either Blosser or Steffan working on the LaGrange project in March 1984 627 1984 2d quarter 159 hrs. straight time at $17 30/hr $2,750 70 18 75 hrs. overtime at $26 15/hr 490 31 1.75 hrs double time of $34 60 60 55 Total $3,301 56 1984 3d quarter 31 hrs straight time at $17 30/hr $536 30 4 hrs overtime at $26 15/hr 104 60 1 hrs overtime at $34 60/hr 34 60 Total $675.50 On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed2 ORDER On the basis of the conclusions and findings above, it is ordered that Respondent Trans Tech Electric, Inc., South Bend, Indiana, its officers, agents, successors, and assigns, pay Ralph Lingo the amounts found above plus appropriate interest and minus normal income tax and social security deductions as the amount due him because of the unfair labor practice, and make the appropriate payments on his behalf as welfare and pension contribu- tions plus appropriate interest. Conclusion I find that Ralph Lingo is entitled to backpay in the 2 If no exceptions are filed as provided by Sec 102 46 of the Board's sum of $4,392 36 and welfare and pension payments to Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102 48 of the Rules, be adopted by the gether with appropriate interest for the first three quar- Board and all objections to them shall be deemed waived for all pur- ters of 1984. poses