Electrical Workers Ibew Local 46 (Neca)

ELECTRICAL WORKERS IBEW LOCAL 46 (NECA) 1175 International Brotherhood of Electrical Workers, Local Union No. 46, AFL-CIO (NECA) and David P. Dakon. Case 19-CB-4233 8 February 1988 SUPPLEMENTAL DECISION AND ORDER, BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN, AND BABSON On 23 December 1985 the National Labor Rela- tions Board issued its Decision and Order in this proceeding,' in which it found that the Respond- ent, Electrical Workers Local 46, violated Section 8(b)(1)(A) and (2) by discriminating against non- member David P. Dakon in its hiring hall referral practices. The Board ordered Local 46 to compen- sate Dakon for earnings lost due to discrimination. On 7 November 1986 the United States Court of Appeals for the Ninth Circuit enforced the Board's Order.2 On 8 April 1987 the Regional Office issued its backpay specification, which was amended at the hearing held on 29 May 1987 before Adminis- trative Law Judge Richard J. Boyce. The judge issued the attached supplemental decision on 28 August 1987. The Respondent and the Charging Party each filed exceptions and a supporting brief. The General Counsel and the Charging Party each filed an answering brief to the Respondent's excep- tions. 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 briefs and has decided to affirm the judge's rulings, findings,' and conclusions and to adopt the recom- mended Order, as modified.4 ORDER The National Labor Relations Board orders that the Respondent, International Brotherhood of Electrical Workers, Local Union No 46, AFL- CIO, its officers, agents, and representatives, shall make whole employee claimant David P. Dakon by paying him $2660 47 for wages lost, plus inter- est computed in the manner prescribed in New Ho- rizons for the Retarded,5 accrued to the date of pay- ment, minus tax withholdings required by Federal and state laws. The Respondent shall also make the following contributions on Dakon's behalf to the following funds. 6 Health and Welfare $132.88 Pension 244.08 National Electric Benefit Fund 79.81 Joint Apprenticeship and Training Committee 13.56 Liquidated damages due to Health and Welfare 26 58 Pension 48 82 National Electric Benefit Fund 7.98 5 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 US 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) 6 Any interest or other additional amounts owed with respect to these fund contributions shall be calculated in the manner set forth in Merryweather Optical Co, 240 NLRB 1213 (1979) Joseph G Marra, for the General Counsel. Cheryl A. French (Hafer, Price, Rinehart & Schwerin), of Seattle, Washington, for the Union David P. Dakon, of Bremerton, Washington, pro se SUPPLEMENTAL DECISION ' 277 NLRB 1235 2 804 F 2d 1253 (mem) 2 The judge inadvertently states that Dakon "asserts that he ap- plied to take the [referral] examination on 25 August " The record shows that Dakon's requests at all times were for the journeyman wireman's ex- amination but that he was scheduled to take the September referral exam- ination by the Respondent's executive board on 25 August The judge, at fn 13 of his decision, appears to find that Dakon was absent from the hiring hall job-call on 25 August 1981 The record re- veals, that Dakon testified without contradiction that, while he was not present for that purpose at the Respondent's Seattle hiring hall on 25 August, he did seek work that day at the Respondent's Bremerton office Dakon testified that hiring hall referrals were made from Bremerton pur- suant to telephone contact between the Seattle and Bremerton dispatch- ers Thus, it is not necessary to rely on the judge's speculation that Dakon would more likely have appeared at the hiring hall if he had been registered on book I 4 At the hearing the General Counsel amended the backpay specifica- tion, which in par 3(a) correctly sets out the relevant contractual wage rate as $19 62, to correct the calculation of gross backpay where, inad- vertently, the figure $19 82 had been used However, amounts due the National Electric Benefit Fund, including liquidated damages, based on a percentage of gross backpay, were not recalculated Our Order sets out the correct amounts STATEMENT OF THE CASE RICHARD J. BOYCE, Administrative Law Judge. By de- cision reported at 277 NLRB 1235 (1985), the Board concluded that International Brotherhood of Electrical Workers, Local Union No 46, AFL-CIO (Respondent), had violated Section 8(b)(1)(A) and (2) of the National Labor Relations Act from 23 June to 25 August 1981 when it, . denied nonmember David P Dakon permission to take a journeyman wireman's examination or its equivalent thereby denying him an opportunity for placement in priority referral Book I and limiting his opportunity for job referral under the exclusive hiring hall provisions of its collective-bargaining agreement . . .1 1 277 NLRB 1235, 1237 287 NLRB No. 118 1176 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD For part of the remedy, the Board ordered Respond- ent, . . . to make Dakon whole for any loss of earnings he might have suffered by reason of the discrimina- tory denial of job opportunities by payment to him of a sum of money equal to that he would have earned, absent the discrimination, from the date he first registered on the out-of-work list subsequent to the first referral examination administered after 23 June 1981 until the date of the September 1981 re- ferral examination offered Dakon.2 owing the Joint Apprentice and Training Committee, $13 56, results from multiplying 135.6 by the prescribed hourly rate of 10 cents. (g) The amount owed the National Electric Benefit Fund, $80 64, is, as decreed by the agreement, 3 percent of Dakon's back-wages entitlement. (h) In accordance with the agreement, the amount of late-payment damages, $83 64, is 20 percent of the base amounts owing the health and welfare and pension plans, plus 10 percent of the base amount due the National Electric Benefit Fund By unreported decision dated 7 November 1986, the Ninth Circuit Court of Appeals granted the Board's ap- plication for enforcement of its Order On 8 April 1987 the Regional Director for Region 19 issued a backpay specification alleging the amounts owing under the Board's Order. A hearing on the speci- fication was held before me in Seattle, Washington, on 29 May 1987. 1 POSITIONS OF THE PARTIES A. The Backpay Specification The backpay specification alleges that Dakon is enti- tled to back wages of $2660, plus interest, and that these contributions are owing on his behalf or in his name. health and welfare, $132 88, pension, $244 08; National Electric Benefit Fund, $80 64, Joint Apprenticeship and Training Committee, $13 56, and damages for late pay- ment to the health and welfare, pension, and electric benefit funds, $83.46 In support of these figures, the specification alleges that: (a) The backpay period is 21 August to 18 September 1981. (b) Had Dakon been treated as a Book I registrant as of 21 August, he would have had referral priority above Book I registrants Rockne Gronlund and Steven Nor- wood, both of whom obtained job referrals on 25 August (c) Gronlund and Norwood were the first with priori- ty below Dakon's, had Dakon been so treated, to be re- ferred after August 21, and were the only ones so situat- ed to be referred on August 25. (d) An "appropriate measure" of the hours Dakon would have worked during the backpay period, but for Respondent's misconduct, therefore is the average of hours worked during that time by Gronlund and Nor- wood, which is 135.6 (e) Dakon's back-wages entitlement of $2660 results from multiplying 135.6 by $19.62, which was the hourly journeyman wireman's rate under the prevailing agree- ment (f) Similarly, the amount owing for health and welfare, $132 88, results from multiplying 135 6 by the contrac- tually dictated hourly contribution rate of 98 cents; that due the pension plan, $244.08, results from multiplying 135 6 by the mandated rate of $1.80 per hour, and that 2 Id at 1237 B. Respondent's Contentions Respondent concedes that. (a) The backpay period as defined in the specification comports with the formula put forth by the Board in its underlying decision (b) Gronlund and Norwood registered on the Book I out-of-work list after 21 August and obtained job refer- rals on 25 August Respondent contends, however, that it "is not liable to [Dakon] for backpay" because his "refusal to take the re- ferral examination, not Respondent's delay in offering the examination, caused Dakon to lose work opportunities."3 Respondent further contends that, even if backpay is owing- (a) The backpay period should end not later than 4 September, the Board notwithstanding, when Dakon ad- vised Respondent by letter of his refusal to take a prof- fered examination (b) "Objective criteria" does not warrant the specifica- tion's assumption that Dakon would have obtained the Gronlund or the Norwood job but for Respondent's mis- conduct More specifically, Respondent argues: Gron- lund's job entailed "service work," whereas Dakon had had little "history" of service work and so probably would not have been hired even if referred; the record suggests that Norwood, a black, was hired pursuant to "a minority request"; and Dakon was not physically present for the 25 August job-call at the hiring hall, which was a condition of referral.4 (c) Thus, neither Gronlund nor Norwood being a "readily identifiable" replacement for Dakon, the "repre- sentative group" for calculating Dakon's entitlement should include 19 who registered on Respondent's Book I out-of-work list from 21 August until Gronlund regis- tered on 25 August.5 Averaging the hours worked by 2 Respondent elaborates Since the Ninth Circuit stated in its decision that the issue of Dakon's entitlement to "damages is not before us,' that established as "the law of the case" that "the issue of whether any backpay is owed remains open " 4 The argument goes that, since even those on Book III, such as Dakon, were required to be physically present to obtain referral, " this sit- uation is not comparable to cases in which discriminatees are not re- quired to sit in hiring halls with no hope of dispatch" 5 Respondent would include Gronlund and Norwood ( who registered on 24 August) since "the evidence does not indicate with certainly that Dakon would not have obtained those jobs' Respondent would exclude two who registered during the specified period-one who had never ob- tained work through its hiring hall, and one who was referred to an em- ployer which "had fired Dakon and would not have rehired him if re- ferred " ELECTRICAL WORKERS IBEW LOCAL 46 (NECA) 1177 the 19, most of whom were unemployed at all relevant times, Dakon's back-wages entitlement would be $276 64 if the backpay period ends on 4 September and $621 95 if it ends on September the 18. (d) Alternatively; Dakon's entitlement should be based on the hours worked by him in 1983 and 1984 relative to the average worked "by all journeymen in the two years," which would result in back wages of $168.73 or $351.20, depending on whether the backpay period ends on 4 or 18 September. Finally, Respondent contends that trust-fund penalties should be assessed only if demanded by those administer- ing the funds C. Dakon's Contentions Dakon contends that the backpay period should end with the October 1981 referral examination He asserts in support of this contention that he applied to take the ex- amination on 25 August, that Respondent normally im- poses a 30-day waiting period between application and examination , and that he therefore would have been pre- cluded from taking the September examination, given September 18.' Dakon also contends that the specification should con- sider his work record prior to the backpay period, which would reveal that he worked a higher percentage of hours available to him, when employed, than did Gron- lund and Norwood on the jobs to which they were re- ferred on 25 August. In support of this contention, he at- tached three appendices to his brief, consisting of assort- ed pay records and summaries derived from them. Inas- much as none of these documents is in evidence, Re- spondent's motion to strike the appendices is granted, the practical effect of which is to remove this contention from consideration. II. CONTROLLING PRINCIPLES Among the legal principles applicable to backpay pro- ceedings are these: (a) "[T]he general burden of proof is upon the General Counsel to establish the damage which has resulted from Respondent's established [misconduct], i.e., the' gross backpay over the backpay period . . . 6 The General Counsel "has wide discretion in selecting criteria for reconstructing what would have happened . . but for the discrimination,"7 and "is only required to employ a formula reasonably designed to produce the approximate awards due "s Although "several equally valid methods of computation" may be available, "each yielding a somewhat different result," the selection of "one method rather than another hardly makes out a case of abuse of discretion."9 Moreover, "the backpay claimant should receive the benefit of any doubt rather than . . . the wrongdoer responsible for the existence of any uncertainty "10 6 Mastro Plastics Corp, 136 NLRB 1342, 1346 (1962) 7 Alaska Chapter, AGC, 119 NLRB 663, 667 fn 8 (1957) 8 Trinity Valley Iron Co v NLRB, 410 F 2d 1161, 1177 fn 28 (5th Cir 1969) 9 NLRB v Overseas Motors, 818 F 2d 517, 520 (6th Cir 1987), quoting from Bagel Bakers Council Y NLRB, 555 F 2d 304, 305 (2d Cir 1977) 10 United Aircraft Corp, 204 NLRB 1068, 1068 (1973) (b) "[T]he burden of proof is on the Respondent as to diminution of damages, whether from the willful loss of earnings by the failure to look for or keep a substantially equivalent job or from the unavailability of a job . . for some reason unconnected with the discrimination "11 III THE ISSUES CONSIDERED A. The Backpay Period The Board's Formula As previously stated, the Board specified in its underlying decision that Dakon's backpay period is to run. . . from the date he first registered on the out-of- work list subsequent to the first referral examination administered after 23 June 1981 until the date of the September 1981 referral examination offered Dakon Facts The first referral examination after 23 June took place on 17 July Dakon's first subsequent hiring-hall registration occurred on 21 August The September re- ferral examination was held on the 18th Conclusion . I conclude that the backpay period set forth in the specification, 21 August to 18 September, correctly applies the Board's formula. 12 B. The Comparable-Employee or Representative- Group Issue Facts. As mentioned, Respondent does not dispute that Gronlund and Norwood signed the Book I out-of-work list after the 21 August onset of the backpay period, and that they obtained jobs on 25 August Nor does it dispute that they were the first to be referred on or after 21 August who had priority below that which Dakon should have enjoyed, and that they were the only regis- trants so situated to be referred on 25 August The rules for the operation of Respondent's hiring hall give referral priority to the person highest on the out-of- work list (i.e., with the lowest number) who is physically present during job-call and who "bids" the job. Priority thus is unaffected by the relative or special skills of the registrants, or by affirmative-action criteria such as race or gender, even though the prospective employer might express a preference, say, for a black or someone with unique skills. As Respondent's dispatcher, Leonard Pageau, put it: [I]t's up to the people down in the hall whether they want to bid. Whoever has the lowest number that bids on it is the one that's going to get it. Pageau particularized that, even though an employer re- quests a minority or female registrant, "anybody can bid on it" and the bidder with "the lowest number would get the job." He added that registrants outside the requested group "sometimes" but not necessarily refrain from bid- ding in deference to such requests. 11 Mastro Plastics Corp, supra 136 NLRB at 1346 12 Respondent , as noted , concedes that the period alleged comports with the Board 's formula It and Dakon quarrel with the formula itself, which I am obliged to follow 1178 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Regardless, the employer is not required to hire the person referred, nor is that person required to take the job. James Kobe, a field examiner in Region 19's compli- ance section, testified that Gronlund and Norwood are deemed comparable to Dakon for specification purposes because they would have been below him in referral pri- ority but for Respondent's misconduct, they were the first so situated to be referred after 21 August, and they were the only ones with lesser priority referred on 25 August. Kobe also testified that the specification assumes, re- solving uncertainties against the wrongdoer, that Dakon would have been "Johnny on the spot, eager and able to go to work," but for the misconduct, during job-call on 25 August; and so could have bid either of the jobs in question before Gronlund and Norwood had the chance. Implicit in the specification are the additional assump- tions that Dakon indeed would have bid on one or the other of those jobs and would have obtained work as a consequence. The job to which Gronlund was referred, with Bayles Brothers, involved, in Gronlund's words, "run[ning] a service truck and do[ing] control work " Gronlund testi- fied. "Anyone could have gone out on it [i e, been re- ferred] . Not anyone could have gotten the job." Dakon testified that he "ran a service truck and one other member was under [his] supervision" for two years in the 1960s The record contains no substantial evidence that Bayles Brothers would not have hired him had he, instead of Gronlund, been referred on 25 August Norwood was referred to Northwest Electric Compa- ny on 25 August. Respondent to the contrary, the record contains no evidence that Northwest Electric had re- quested a black person Nor does it otherwise intimate that Dakon would not have been hired had he been re- ferred rather than Norwood. Had Dakon signed Book I on 21 August, he would have been one of eight to do so Another 13, including Norwood, registered on 24 August. Gronlund signed on 25 August. Of these 21 actually signing, 8 obtained jobs during the backpay period Conclusion I conclude that the specification is fair and reasonable in relying on the experience of Gronlund and Norwood as the touchstone for arriving at Dakon's enti- tlement The bases for this conclusion are these- (a) But for Respondent's misconduct, Dakon would have had superior claim to the referrals leading to the jobs in question, and the record is devoid of any substan- tial evidence that he would not have been hired had he received either of those referrals (b) The assumptions built into the specification that Dakon would have been present for the 25 August job- call but for the misconduct, that he would have bid on one or the other of the jobs in question, and that he would have obtained work as a consequence, do not overreach the wide discretion vested in the General Counsel to posit what would have happened absent the misconduct, and are compatible with the principle that the backpay claimant, not the wrongdoer, is to receive the benefit of the doubt in instances of uncertainty 13 (c) Respondent's main alternative proposal-that the representative group include 19 who registered from 21 August until Gronlund registered-perhaps would be ap- propriate, as well I am convinced, however, that it would be less fair and reasonable than the approach em- bodied in the specification because of the brevity of the backpay period and the manifest suitability of Gronlund and Norwood as Dakon surrogates. 14 Respondent's other alternative proposal, based on Dakon's work experience vis-a-vis all other journeymen in 1983 and 1984, is rejected as gratuitously speculative in Respondent's favor and thus palpably unreasonable. C. The Calculations Facts. The weight of evidence establishes that Gron- lund worked 137.2 hours during the backpay period, Norwood 134. Thus, the average of the two, on which the calculations in the specification are based, is 135.6. The accuracy of those calculations, including the under- lying wage and contribution rates, is not in dispute. Conclusions. I conclude that the calculations in the specification are accurate. D. Diminution of Damages The record contains no evidence that Dakon incurred a willful loss of earnings during the backpay period for some reason unconnected with Respondent 's misconduct, or that his entitlement should be reduced for any other properly cognizable reason. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed15 ORDER Respondent , International Brotherhood of Electrical Workers, Local Union No. 46, AFL-CIO, its officers, 13 I refuse to draw the inference urged by Respondent that because Dakon as a Book III registrant was absent from the 25 August job-call, he would have been absent had he been on Book I His job prospects as a Book I registrant, and thus his incentive to be present , would have been considerably greater 14 In Painters Local 277 (Polis Wallcovering), 282 NLRB 402 ( 1986), relied on by Respondent, the Board decreed that "the average number of hours for the backpay period should be calculated by dividing the total hours worked by all paperhangers having at least one referral by the total number of those paperhangers " because of the "intermittent" nature of work in the construction industry as opposed to the "straight production industry " That case is distinguishable from the present case because it entailed a vastly longer backpay period (over 4 years) and because the Gronlund/Norwood model in the present case is so plainly relevant and well documented as to negate the intermittency factor Cf Iron Workers Local 378 (Judson Steel), 227 NLRB 692 (1977) Another case on which Respondent relies, Operating Engineers Local 925 (J L Manta), 180 NLRB 759 ( 1970), is distinguishable from the present case because four of the five employees alleged in that specifica- tion to comprise a representative group were fundamentally incomparable with the claimant as concerns their prospects of employment , necessitat- ing the judge's formulation of a different and larger group 15 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 ELECTRICAL WORKERS IBEW LOCAL 46 (NECA) 1179 agents, and representatives, shall make David P. Dakon $13288; pension, $244 08; National Electric Benefit whole by paying him-$2660 for wages lost, plus interest Fund, $80.64; Joint Apprenticeship and Training Com- thereon until paid in accordance with New Horizons for mittee, $13.56, and damages to the health and welfare, the Retarded, 283 NLRB 1173 (1987). pension, and electric benefit funds for late payments, Respondent also shall make these contributions on $83 46, if required by the fund administrators. -Dakon's behalf or in his name : health and welfare,