Master Iron Craft Corp.

MASTER IRON CRAFT CORP. 1087 Master Iron Craft Corp. and Shopmen's Local Union No. 455, International Association of Bridge, Structural & Ornamental Iron Workers, AFL-CIO and Steel, Metals, Alloys and Hard- ware Fabricators and Warehousemen, Local 810, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO,1 Party to the Contract. Cases 29-CA-4853 and 29-CA-6899 July 22, 1988 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN JOHANSEN AND MEMBERS BABSON AND CRACRAFT On June 30, 1987, Administrative Law Judge James F. Morton issued the attached supplemental decision. The Respondent filed exceptions and a supporting brief, the General Counsel filed excep- tions and a supporting brief, and the Respondent filed a brief in response to the General Counsel's exceptions. 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, fmdings,2 and conclusions only to the extent con- sistent with this Supplemental Decision and Order. The Respondent's employees, represented by Local 455, went on strike July 1, 1975. In January 1976, when the Respondent unlawfully refused to bargain, the strike was converted into an unfair labor practice strike.3 In August 1978, the Union i On November 1, 1987, the Teamsters International Union was read- mitted to the AFL-CIO Accordingly, the caption has been amended to reflect that change. s We affirm the judge's finding that the Respondent is obligated to re- imburse employees for unlawfully withheld dues and fees . The judge, however, inadvertently suggested that the reimbursement of dues and fees in this case is warranted by the Order in Independent Assn. of Steel Fabricators, 231 NLRB 264 (1977), remanded in pertinent part 582 F.2d 135 (2d Cit. 1978), cert. denied 439 U.S. 1130 (1979) Such reimburse- ment was ordered in Independent Assn. of Steel Fabricators, 252 NLRB 922 (1980), enfd sub nom. NLRB v. Koenig Iron Works, 681 F.2d 130 (2d Cit. 1982). We find it unnecessary to rely on the judge's analysis and findings in sees. 4 and 7 of the supplemental decision concerning wage claims on behalf of discriminatees Ariano and Cangemi because those claims were abandoned in the amended backpay specification We affirm the judge's finding that the Respondent must reimburse dis- ciminatees Waldman and Braver $16,847.08 and $43,400.04, respectively, for their net earnings lost. The judge inadvertently miscued Independent Assn. of Steel Fabricators in sec 8, part a, pars 3 and 5. The correct citations are 231 NLRB 264 (1977) and 231 NLRB at 272 s Kuno Steel Products Corp., 252 NLRB 904, 906 (1980), enfd. sub nom. NLRB Y. Koenig Iron Works, 681 F.2d 130 (2d Cir 1982). Master Iron Craft Corp. was one of the respondents in Kuno. made an unconditional offer to return to work. In 1980, the Board found that the Respondent violat- ed Section 8(aX3) by failing to reinstate fully unfair labor practice strikers.4 Subsequently, the Regional Director issued the instant backpay specification. The judge found, inter alia, that no discriminatee for whom the General Counsel sought backpay pursuant to the make-whole order in Kuno, supra, was entitled to reimbursement for fringe benefits lost as a result of participation in the strike. The judge also found that Moshe Waldman , a striker who was never offered reinstatement, was not enti- tled to reimbursement for out -of-pocket medical ex- penses. Additionally, the judge found that Robert Scott, a striker who returned individually to the Respondent's employ before August 9 , 1978, was not entitled to receive any back wages pursuant to the make-whole order in Kuno, supra. For the rea- sons set forth below, we disagree with the judge. 1. It is well settled that the "finding of an unfair labor practice . . . is presumptive proof that some back pay is owed by the [Respondent]."5 The burden is on the General Counsel to prove the gross amount of backpay due.6 The burden then shifts to the Respondent to establish facts that negate or mitigate its liability.? In analyzing the General Counsel's backpay claims for discriminatees Anthony Ariano, Vincent Cangemi, Guido Pagan, Robert Scott, Ben Braver, and Moshe Waldman, the judge acknowledged that the collective-bargaining agreement effective just prior to the 1975 strike provided unit employees various fringe benefits . He also found that the Re- spondent had not provided these contractual bene- fits at least since 1976. The judge mistakenly stated that the Regional Director's amended backpay specification sought to make the discriminatees whole by requiring the Respondent to contribute to Local 455's Welfare, Pension, and Annuity Funds at rates that Local 455 established in subsequent contracts with other employers during the backpay period. The judge then reasoned that requiring the Respondent to make such contributions would compel the Respondent to grant concessions to Local 455 that had not been achieved in negotia- tions, contrary to Section 8(d) of the Act. The Regional Director's amended backpay speci- fication does not seek to impose on the Respondent any terms in Local 455's subsequent collective-bar- gaining agreements with other employers; rather, the amended backpay specification uses a formula 4 Ibld 5 NLRB v. Mastro Plastics Corp., 354 F.2d 170, 178 (2d Cir 1965), cert denied 384 U.S. 972 (1966) s NLRB v. Brown & Root, Inc., 311 F.2d 447, 454 (8th Cir. 1963). Ibid 289 NLRB No. 130 1088 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD based on continuing the terms of the parties' ex- pired agreement. As the Respondent never bar- gained to impasse with Local 4558 before unlawful- ly recognizing Teamsters Local 810,9 the Respond- ent was obligated to continue giving effect to its expired contract with Local 455.10 Thus, the Gen- eral Counsel has met her burden of proving the gross amounts of backpay due. The Respondent, on the other hand, has not established any facts to negate or mitigate its liability. Specifically, the judge denied all claims set forth in the amended backpay specification for vacation pay, overtime, and contributions to the Welfare, Pension, and Annuity Funds.11 We will, therefore, order the Respondent to make the discriminatees whole by paying them the respective amounts set forth in the amended backpay specification for va- cations and overtime and by making the contribu- tions to the Local 455 Welfare Fund,12 Pension 8 Although the Second Circuit in NLRB v. Independent Assn, of Steel Fabricators, 582 F.2d 135 (2d Cir 1978), found an impasse in bargaining between Local 455 and the multiemployer association of which the Re- spondent had been a member, the Respondent under the circumstances was not relieved thereby of its obligation to bargain with Local 455 as an individual employer. 9 Independent Assn. of Steel Fabricators, 252 NLRB 922, 923 (1980), enfd. sub nom. NLRB v. Koenig Iron Works, 681 F.2d 130 (2d Cir. 1982) 10 See NLRB v. Katz, 369 U S 736 (1962); Taft Broadcasting Co, 163 NLRB 475 (1967). 11 Although the judge found that the benefits package available to unit employees during the backpay period, the Teamsters Local 810 package, was substantially equivalent to the Iron Workers Local 455 benefits pack- age provided pursuant to the expired contract, the evidence demonstrates that the benefits were not comparable for the employees at issue. Further, the Teamsters Local 810 package was not even available to discnmma- tees Braver and Waldman , the sinkers who were not offered reinstate- ment is The Respondent asserts that a discrimmatee is made whole when he is reimbursed for the cost of premiums incurred in obtaining substitute health insurance coverage and for his out-of-pocket medical expenses to the extent that those expenses would have been reimbursed through the Local 455 Welfare Fund In order to be made whole, however, a discri- minatee must be restored to the position he would have occupied had the discrimination not occurred. This includes not only reimbursement of the discnminatee's premiums and medical expenses , but also requires the Re- spondent to contribute to the Welfare Fund according to the expired contract's terms so that the discriminatee's future interests in the fund will be ensured "[T]he diversion of contributions from the union funds undercut[s] the ability of those funds to provide for future needs " Stone Boat Yard v. NLRB, 715 F.2d 441, 446 (9th Cir. 1983) Hassett Maintenance Corp., 260 NLRB 1211 (1982), a cryptic decision on which the Respondent relies, focused on what it characterized as the double insurance costs that would result from requiring the employer (which had provided other coverage) in that case to make conributions to the welfare fund . Hassett did not address restoring the full range of an employee's interests in the welfare fund. The Hassett decision did not rec- oncile its limited remedial order with pre-Hassett precedent requiring em- ployer contributions to union welfare funds on employees ' behalf, see, e.g., Kraft Plumbing & Heating, 252 NLRB 891 ( 1980), affd . mem. 661 F 2d 940 (9th Cir 1981), as does precedent decided after Hassett See Stone Boat Yard, 264 NLRB 981 (1983), which the Ninth Circuit en- forced The court rejected the double-coverage/punitive claim . the "em- ployer cannot complain of the extra cost of improperly created , substitute fringe benefits The company is merely required to repay what it has unlawfully withheld." Stone Boat Yard v NLRB, 715 F.2d 441, 446 (9th Cir 1983) Fund, and Annuity Fund on their behalf in the re- spective amounts set forth it the amended backpay specification. 2. The General Counsel has excepted to the judge's failure to include in the make-whole remedy reimbursement to Moshe Waldman, a strik- er who was never offered reinstatement, for out-of- pocket medical expenses incurred during the back- pay period.13 The amended backpay specification, to the extent supported by the documents the Gen- eral Counsel introduced during the hearing, claimed $295.50 for Waldman's medical bills. As stated above, the judge summarily dismissed all fringe benefit claims, including medical expenses, for all discriminatees because he found that the fringe benefits provided as a substitute, the Team- sters Local 810 package, were substantially equiva- lent to the Local 455 fringe benefits. As Waldman was not reinstated in any respect, there can be no question of a setoff based on the Teamsters pack- age for him during the backpay period. It is customary to include reimbursement of out- of-pocket medical expenses in make-whole reme- dies for fringe benefits lost.14 Because the Re- spondent has established no facts that would negate or mitigate its liability, we will order the Respond- ent to reimburse Waldman $295.50 for the docu- mented out-of-pocket medical expenses during the backpay period. 3. The backpay specification also claimed that $840.28 in back wages is owed to Robert Scott on the theory that he should have been earning $7.84 per hour at the beginning of the backpay period, instead of the $7.30 per hour he actually earned. Before the strike, Scott earned $7.20 per hour as a mechanic; on his return to work November 19, 1976, he was paid $7.05 per hour as a mechanic. The measure of back wages due used in the back- pay specification was the pay rate Scott earned before the strike, $7.20, plus increases granted simi- larly situated employees, less the rates he actually earned, multiplied by his hours worked. 1 s The judge rejected the claim for Scott because he found that pay rates set and increases granted before July 1, 1978, were not discriminatory and did not constitute continuing violations of the Act. This proceeding, however, is not an unfair labor 19 The judge also rejected the claims for reimbursement of medical ex- penses asserted on behalf of Braver, Ariano, Cangemi, and Pagan. The General Counsel did not except Although the General Counsel's exceptions regarding Waldman's medi- cal expenses do not fully comply with Sec. 102.46(b) of the Board's Rules and Regulations, we have decided to consider the claim as it is clear what portion of the judge's supplemental decision the General Counsel contends is erroneous See, e.g, Fiber Industries, 267 NLRB 840 fn 2 (1983), Giddings & Lewis Inc, 240 NLRB 441 fn. 2 (1979) 14 See, e g, RMC Constructors, 266 NLRB 1064 (1982) 15 The calculation, computed quarterly, was adjusted for overtime MASTER IRON CRAFT CORP. 1089 practice proceeding. The unfair labor practice has already been found and affirmed by a court of ap- peals. Kuno Steel Products Corp., 252 NLRB 904 (1980), enfd. sub nom. NLRB v. Koenig Iron Works, 681 F.2d 130 (2d Cir. 1982). The judge apparently misunderstood the Kuno order. The Board specifi- cally found that the Respondent violated Section 8(a)(3) by not fully reinstating strikers who individ- ually returned to work before August 9, 1978, but ordered that, under the circumstances, the Re- spondent's backpay liability would run only from 6 months before the instant charges were filed.16 Manifestly, the Board contemplated the use of Scott's prestrike pay rate and increases of similarly situated employees granted before the backpay period to determine the amount of back wages due. Accordingly, we will order the Respondent to make whole Robert Scott by `paying him $840.28, as claimed on his behalf in the backpay specifica- tion. ORDER The National Labor Relations Board orders the Respondent, Master Iron Craft Corp., Plainview, New York, its officers, agents, successors, and as- signs, to make whole the employees named below by paying them the amounts of backpay set forth opposite their names, plus interest in the manner prescribed in New Horizons for the Retarded, 17 less tax withholdings required by Federal and state law, and by paying to the Welfare Fund, Pension Fund, and Annuity Fund of Shopmen's Local Union No. 455, International Association of Bridge, Structural & Ornamental Iron Workers, AFL-CIO, the re- spective amounts on their behalf set forth opposite their names, plus interest in the manner prescribed in Merryweather Optical Co. 18 Name Backpay Medical Expenses Welfare Fund Pension Fund Annuity Fund B. Braver $43,400.04 0 $ 3,472.03 $ 4,340.04 $ 868.01 M. Waldman 16,847.08 $295.50 4,062.97 5,078.71 1,015.74 A. Ariano 4,881.50 0 10,424.48 13,030.60 2,606.12 V. Cangemi 8,673.00 0 8,878.00 11,097.50 2,219.50 G. Pagan 4,267.85 0 9,475.08 11,845.10 2,369.02 R. Scott 1,494.60 0 900.08 1,125.10 225.02 IT IS FURTHER ORDERED that the Respondent shall pay to the employees named below the dues and fees unlawfully deducted from their wages, in the amounts shown opposite their names, with in- terest in the manner prescribed in New Horizons for the Retarded, supra. Name Dues & Fees A. Ariano $1,1066 A. Amico 5346 E. Amico 2686 S. Amico 3366 J. Auld 2686 J. Belkin 2826 A. Calandra 1,0506 G. Calandra 6046 V. Cangemi 8846 D. Dworkin 4226 C. Finazzo 4786 C. Huntly 3646 T. LaHache 136 C. Luick 2126 16 252 NLRB at 906 fn. 5. D. Marchese 1146 R. Mason 5966 M. Mendicino 2546 G. Pagan 1,0846 J. Pisano 2266 R. Reynolds 5486 R. Scott 3526 S. Stradtmore 1286 J. Vogtle 116 17 283 NLRB 1173 (1987). Interest will 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. 18 240 NLRB 1213 (1979). Beatrice Kornbluh, Esq., for the General Counsel. Stanley Israel, Esq. (Kliegman, Goldstein, Israel & Cooper), of New York, New York, for Master Iron Craft Corp. Susan Martin, Esq. (Sipser, Weinstock Harper, Dorn & Leibowitz), of New York, New York, for Shopmen's Local Union No. 455, International Association of Bridge, Structural & Ornamental Iron Workers, AFL- CIO. 1090 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD SUPPLEMENTAL DECISION STATEMENT OF THE CASE JAMES F. MORTON, Administrative Law Judge. The General Counsel has issued a backpay specification which, as amended, seeks reimbursement from Master Iron Craft Corp. (Respondent) for dues and fees unlaw- fully deducted from the wages of its employees and backpay from it for six of seven of its employees whom the Board ordered it to reinstate as Respondent had dis- criminatorily failed to do. Respondent's amended answer seeks reconsideration of the dues/fees reimbursement remedy and it contests the backpay formula used in the amended specification on the ground that the Board, in the underlying case, has already directed the use of a dif- ferent formula. I heard this case, and five related cases, in New York City at intervals beginning September 1984 and ending October 1986. On the entire record in this case, including my observation of the witnesses, and after due consider- ation of the briefs filed by the General Counsel and Re- spondent, I make the following FINDINGS OF FACT I. GENERAL BACKGROUND In 1975, Respondent was one of many companies in the iron and steel business in the New York City metro- politan area that had contracts with Shopmen's Local Union No. 455, International Association of Bridge, Structural and Ornamental Iron Workers, AFL-CIO (Local 455). Local 455's contract with Respondent cov- ered Respondent's production and maintenance employ- ees and expired on 30 June 1975. Contracts that Local 455 had with other employers also expired on that date. On 1 July 1975 Local 455 called a strike against Re- spondent and against other companies who had not reached agreement with Local 455 on a renewal agree- ment. On 28 January 1976, notwithstanding that Local 455 was the incumbent representative of Respondent's pro- duction and maintenance employees , Respondent recog- nized Steel , Metal, Alloys and Hardware Fabricators and Warehousemen, Local 810, affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO (Local 810) as the bargaining representative for those same employees and signed a contract with Local 810. The Board found, inter alia, in Independent Assn. of Steel Fabricators, 231 NLRB 264, 274-275 (1977), that Respondent had violated Sec- tion 8(a)(1) and (2) of the Act by its unlawful recognition of Local 810. To remedy the violation, the Board's order required Respondent to reimburse all former and present employees for all moneys unlawfully extracted from them for initiation fees, dues, and assessments under that contract, with interest thereon at the rate of 6 percent per annum. That portion of the Board's order was en- forced by the U.S. Court of Appeals for the Second Cir- cuit. 582 F.2d 135 (1978). The court refused to enforce the Board's order insofar as it had required Respondent (and other companies) to reinstate alleged unfair labor practice strikers and remanded to the Board the question whether Respondent was obligated to bargain with Local 455. On remand of the bargaining order issue, the Board's supplemental order directed Respondent to bargain with Local 455. See Independent Assn., 252 NLRB 922 (1980). That order was enforced by the court. As a result, bar- gaining began between Local 455 and Respondent in August 1982 and concluded with an agreement effective 1 July 1983. When the court in 1978, as noted above, refused to order reinstatement of striking employees , Local 455 ap- plied to Respondent on 9 August 1978 unconditionally for the reinstatement of the employees still on strike. Five of the original seven had previously returned to work. When Respondent declined to offer reinstatement to the remaining two, Local 455, on 2 January 1979, filed a new unfair labor practice charge against Respondent. That matter was consolidated with others and ultimately the Board issued a decision thereon . See Kuno Steel Prod- ucts Corp., 252 NLRB 904 (1980). There, the Board held that the five striking employees, who had returned to Respondent's employ before 9 August 1978, had not been fully reinstated and that Respondent thereby violat- ed Section 8(a)(1) and (3) of the Act; Respondent sepa- rately violated that section by having refused to offer re- instatement to the two employess who had not returned by 9 August 1978. The court enforced the Board's order thereon. Recently, Local 455 was supplanted as bargaining rep- resentative of Respondent's employees when the Board, in a representation proceeding, certified Local 810 Team- sters as their exclusive bargaining agent. II. THE CLAIM FOR REIMBURSEMENT OF DUES AND FEES The amended specification in this case sets forth a schedule of the dues and fees claimed. Respondent, in its answer, does not question the accuracy of that claim. In- stead, Respondent has urged that equitable considerations based on more recent developments in representation cases involving Respondent before the Board warrant re- consideration of the Board's remedial order. That is a matter that Respondent may pursue before the Board but I am bound by the Board order as it is. i III. THE BACKPAY CLAIMS , IN GENERAL In the remedial order in Kuno, supra, the Board direct- ed Respondent to offer Anthony Ariano, Ben Braver, Vincent Cangemi, Guido Pagan, Robert Scott, Morris Waldman, and Enrico Amico immediate and full rein- statement to their former positions and to make them whole in the manner set forth in the remedy section of the administrative law judge's decision. Five of these seven had returned to work for Respondnet prior to 9 August 1978. The other two, Braver and Waldman, have never returned. Respecting the backpay due the five who returned, footnote 5 of Kuno reads: ' Cf Jaydon, Inc, 273 NLRB 1594 (1985) MASTER IRON CRAFT CORP. 1091 The General Counsel presented evidence estab- lishing a prima facie case, which [Respondent has] not adequately rebutted , that economic and unfair labor practice strikers individually returned to work prior to August 9, [1978] and were not fully rein- stated to conditions current at the time the strike began. Since an individual employee may make an unconditional offer to return to work , each individ- ual employee who was reinstated pursuant to an un- conditional offer was entitled to full reinstatement to the status quo which he occupied at the time he went on strike. Laidlaw Corp ., 171 NLRB 1366, 1381-82 (1968), enfd. 414 F.2d 99 (7th Cir. 1969), cert. denied 397 U. S. 920 (1970). Accordingly, in light of [Respondent's] failure to rebut the General Counsel's prima facie case, we find [its] conduct in this regard to be violative of Section 8(a)(3) of the Act. We agree with the Administrative Law Judge's recommendation that determination whether the total wages and benefits package these employees have received since returning to work is substantial- ly equivalent to the wages and benefits they re- ceived prior to the strike-and thus satisfies the full reinstatement requirement-should be considered in the compliance stage of this proceeding . Under the circumstances of this case, we hold that [Respond- ent's] backpay liability to any employee who re- turned to work before August 9 shall run only from 6 months prior to the filing of charges herein . [i.e., from 1 July 1978]. The contract between Local 455 and Respondent, which was in force just prior to the start of the strike, contained provisions requiring Respondent to make con- tributions on behalf of unit employees to a pension fund, a welfare fund, and an annuity fund, and provisions for vacation, holidays, sick leave, and other fringe benefits. Those provisions were not in effect at least since an im- passe had been reached in 1976 , as found by the court of appeals and were also not operative throughout the backpay period in this case. The next several subsections of this decision deal with the five discriminates who had returned to Respondent's employ. As footnote 5 of Kuno, supra, indicates, they were found to have been reinstated, but not fully; any backpay due them to be computed beginning 1 July 1978. A. Anthony Ariano Ariano had been a foreman in Respondent's employ, earning $8 .90 per hour, when he joined the Local 455 strike on 1 July 1975 with the other unit employees. He abandoned the strike on 17 November 1975 and returned to that same position at the same rate of pay. The Board, at footnote 5 of Kuno, supra, found that the the General Counsel had made a prima facie showing that he was not fully reinstated to his former position, apparently because he was no longer receiving various fringe benefits pro- vided for in the Local 455 contract , which had expired on 1 July 1975, e.g., pension fund coverage . Also as set out in footnote 5 of Kuno, the period for purposes of de- termining whether any backpay is due him began not with his return in 1975, but rather on 1 July 1978, the date 6 months prior to the filing of the unfair labor prac- tice charge. Obviously any discriminatory act antedating 1 July 1978 is time barred . What is essential to determine is the extent, if any, to which he was discriminated against on and after 1 July 1978. The General Counsel contends that Ariano 's pay rate on 1 July 1978 should have been $9 .70 per hour instead of $9.50, his actual rate . That contention is based on a backpay formula devised by the General Counsel on the theory that Ariano did not earlier receive percentage wage increases equal to the average percentage wage in- creases given other unit employees . Ariano's pay rate was higher than the rate paid other employees . Thus, the increases he received, when stated as percentages, were of course lower than the percentages calculated for the lower rated employees. In any event, a pay rate set before the start of the limitations period, as defined in Section 10(b) of the Act, even were the rate discrimina- torily set, does not constitute a continuing violation of the Act simply because it stays in effect into the so- called 10(b) period . Cf. Machinists Local 1424 v. NLRB, 362 U.S. 411 (1960). During the backpay period , Ariano received a 40-cent- per-hour raise in the first quarter of 1979, a 35 -cent-per- hour raise in the third quarter of that year , another 35- cent-per-hour raise in 1980, a 70-cent -per-hour raise the year after, and another 70-cent-per-hour raise in late 1982. All other unit employees received the same raises in 1979. The other discriminatees who had returned to Respondent's employ received the same raises in subse- quent years. One of the replacement employees who had been hired before 1 July 1978 (Anthony Calandra) re- ceived the same increase Ariano did , for the years he worked for Respondent. Two other replacements were hired apparently later in 1979. One of these (Fuiazzo Ca- millo) got a 35-cent-per-hour raise in 1980, the same as Ariano's. The second (Robert Reynolds) had been hired at a lower wage rate. Apparently, to bring him up to scale, he was given a 60-cent-per-hour increase in 1980. I am unable to find any discriminatory treatment of Ariano, during the backpay period, insofar as his job duties or wage rates are concerned . He continued to work as a foreman-the same position he held before the strike. He got virtually the same raises as all other em- ployees and indeed , even when calculated in percentage terms, his raises were at times higher than those given to employees who were hired as striker replacements. I therefore conclude that Ariano had been fully reinstated as of the start of the period defined in Kuno, supra, re- specting his duties and his rates of pay. The issue of whether he was discriminated against on and after 1 July 1978 concerning his fringe benefits is considered next. In the amended specification , General Counsel con- tends that Respondent must pay Ariano $30,942.70 to make him whole for the value of fringe benefits he lost as a result of his having taken part in the strike. That figure includes contributions that, according to the Gen- eral Counsel, should have been made by Respondent on Ariano's behalf to pension, welfare, and annuity funds in 1092 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD accordance with the provisions of contracts that Local 455 entered into during the backpay period with other companies to supersede the 1975 contract that Local 455 had with many employers, including Respondent. That claim assumes that Respondent and Local 455, but for the discrimination, would have reached agree- ment on a renewal contract for the period 1 July 1978 to 1 July 1983 (i.e., the backpay period). Making such an assumption would dictate a result directly opposite that provided by the actual history of collective bargaining between Respondent and Local 455 and would in effect compel Respondent to grant concessions to Local 455 that it had not obtained in negotiations. Section 8(d) of the Act forbids the compelling of concessions. The simple fact is that Respondent had for many years unsuc- cessfully maintained that Local 455 was bound to a suc- cessor contract to the expired agreement. Local 455 never filed any unfair labor practice charge to allege that Respondent had unlawfully made unilateral changes in fringe benefits of its unit employees. If there is a pre- sumption to be applied, based on the foregoing, it is that Local 455 ultimately assented to those changes when it reached agreement on a renewal contract in 1983. More importantly, were Ariano to receive the fringe benefits the General Counsel claims for him, he would receive materially different treatment from that given others in the same bargaining unit; perhaps the only reason being an unlawful one-that he took part in a strike in which the others did not. Respondent has, as noted earlier, contended that foot- note 5 in Kuno, supra, calls for a comparison of the fringe benefits package as it existed on 1 July 1978, with the package in effect on 1 July 1975. Relevant to the contention are the descriptive booklets, written analyses, and other materials it placed in evidence to show that it provided these employees and all other unit employees with comparable pension and hospitalization/medical benefits and other fringe benefits. In general, that docu- mentary material indicates that Respondent has made available to all unit employees, including these four dis- criminatees, benefits of a pension plan, of a health and welfare plan, and other benefits (overtime pay, vacations, and holidays), that are readily comparable to those these discriminatees enjoyed as of 1 July 1975. The evidence proffered by Respondent discloses that, during the backpay period, its nondiscriminatory benefit package was substantially similar to, or better than, the benefit package that was available to the four discrimina- tees as of 1 July 1975. The General Counsel has the burden of proving the gross backpay contention, i.e., of demonstrating that Respondent's benefits package during the backpay period was materially deficient.2 The Gen- eral Counsel has failed to show that Respondent has dis- criminated against Ariano or the other four employees regarding the benefits they received on or after 1 July 1978. Based on the foregoing, I conclude that, as of and since 1 July 1978, Ariano has been fully reinstated with respect to his total wages and benefits package and, in particular, that he has not been discriminated against by Respondent since 1 July 1978 because he had taken part in a Local 455 strike action for a 4-month period in 1975. B. Guido Pagan Pagan had been employed by Respondent as a me- chanic earning $6.70 per hour when he joined the Local 455 strike on 1 July 1975.3 He abandoned the strike on 17 March 1976 and returned to work for Respondent. He was the second striking employee to return. On his rein- statement in 1976, he was assigned to the same position he held when the strike began and at the same rate. According to the General Counsel's backpay formula, Pagan should have been receiving $7.30 per hour as of the start of the backpay period, 1 July 1978. He actually was receiving more, $7.55 per hour. The General Coun- sel makes no wage claim in his behalf, effectively con- ceding, and I find, that he has not been discriminated against by Respondent regarding his wage rates through- out his backpay period. The value of the fringe benefits claimed for him by the General Counsel is $27,958.05. The factual and legal premises therefor are identical to those on which the fringe benefits claims of Ariano was presented and re- jected above. Based on the foregoing, I conclude that Pagan had been, on and since 1 July 1978, fully reinstated by Re- spondent and that no backpay is due him. C. Robert Scott Scott took part in this Local 455 strike on 1 July 1975, having left his job as a mechanic with Respondent at $7.20 per hour. He abandoned the strike on 19 Novem- ber 1976 to return to Respondent's employ. He was rein- stated as a mechanic but at 15 cents per hour less than he earned when the strike began. By the start of the back- pay period, 1 July 1978, he was earning $7.30 per hour. He received a 40-cent-per-hour increase in the first quar- ter of 1979-the same amount all unit employees re- ceived or at least all unit employees named in the specifi- cation, including replacements. Scott left Respondent's employ on 27 June 1979-the end of his backpay period. The General Counsel contends that, based on wage in- creases given similarly situated employees before the start of the backpay period, Scott should have been receiving $7.84 per hour as of 1 July 1978. As I observed before, the General Counsel is in effect alleging that, based on wage increases given at a time barred by Section 10(b) of the Act, Scott had been discriminatorily treated in having been given a wage rate of only $7.30 and that his being paid that rate each week after the start of the backpay period constitutes separate acts of continued dis- crimination. That contention is rejected for the reasons set forth above. See Machinists Local 1424, supra. A fringe benefit claim of $2,904.52 is asserted for Scott based on the same consideration rejected earlier for Ariano's. 8 Although so classified he was on special assignment working outside 2 Mastell Trailer Corp, 273 NLRB 1190 (1984). the bargaining unit but at the same pay scale MASTER IRON CRAFT CORP. 1093 I find, based on the foregoing, that Scott had been, throughout his backpay period , fully reinstated by Re- spondent - and consequently that no backpay is due him. D. Vincent Cangemi Cangemi worked as a finisher, earning $7.40 per hour, for Respondent when he joined the Local 455 strike on 1 July 1975. He left the picket line on 16 November 1977 and returned to work as a finisher at $7.75 per hour. By the start of the backpay period, he was earning $8 per hour. During the backpay period, he received the same increases Ariano received, as set forth in detail above. The General Counsel contends that, based on percentage wage increases, he should have been earning 6 cents an hour more than the $8 rate he was receiving as of 1 July 1978. That contention is substanially the same as the General Counsel submitted on behalf of Ariano and, for the same reasons set forth above, it also is rejected. The fringe benefits claim of $30,898.50 made on Cangemi's behalf is also rejected as it parallels the same type claim, considered and dismissed above, that was made for Arian. I thus conclude Cangemi had been fully reinstated by Respondent as of and since 1 July 1978. E. Enrico Amico Amico was one of the five discriminatees who had left the Local 455 picket line to return to work for Respond- ent. He left Respondent's employ before the start of the backpay period. Consqeuently, the General Counsel seeks no backpay for him. F. Claims ofBen Braver and Moshe Waldman In the underlying decision, the Board found that Re- spondent violated Section 8(a)(1) and (3) of the Act by having failed to honor Local 455's unconditional applica- tion, of 9 August 1978, on behalf of its striking employ- ees to return to work. The Board ordered Respondent to remedy this violation by offering reinstatement to Moshe Waldman and Ben Braver and to make them whole for losses suffered by them from 9 August 1978. Respond- ent's offer of reinstatement of 21 July 1983 ended their backpay period. The General Counsel seeks backpay for them only until 1 April 1981 and 31 August 1981 for Braver and Waldman, respectively, as those are the dates they would have retired. Respondent disputes the appropriateness of the formu- la used by the General Counsel to compute their gross backpay and raises other defenses, discussed further below. Waldman's claim is discussed next. 1. Moshe Waldman According to the amended specification, Waldman would have been earning, based on wages of similarly situated employees, an hourly rate of $7.30 on 9 August 1978 for a 40-hour week and would have received speci- fied raises during the remainder of his backpay period. Respondent contends that footnote 5 of Kuno, supra, dic- tates that the $6.70-per-hour rate he received at the start of the strike should be used throughout his backpay period. Respondent's contention is based on an erroneous construction of footnote 5, which obviously pertains to strikers who returned to Respondent's employ before 9 August 1978. Respondent does not otherwise contest the appropriateness of the formula used by the General Counsel or the computations made in applying it to Waldman. Respondent's amended answer states that Waldman had "declined work with [Respondent] and elected not to return from a prior leave of absence." Respondent was permitted to adduce testimony at the hearing relevant to this contention because it was unclear to me then when Waldman "declined work" or "elected not to return." A review of the testimony proffered dis- closes that Respondent seeks to establish that , prior to the start of the strike, Waldman had not returned to work from a leave of absence but had instead left Re- spondent's employ for permanent employment elsewhere. It is apparent that Respondent would have me find that, at the time the strike began and at all times thereafter, Waldman was not one of its employees. Such a fording would directly contravene the Board's holding, in the underlying decision, that Waldman was one of Respond- ent's employees whom Respondent had unlawfully failed to reinstate on and after 9 August 1978. I clearly have no authority to reverse the Board's earlier fording. In retro- spect, it is clear that Respondent should have filed a motion for reconsideration with the Board to obtain leave to adduce testimony respecting this contention and that, without such leave, the testimony Respondent prof- fered regarding that contention should not be part of the record before me. Accordingly, I now strike such testi- mony from the record. This ruling has further support from findings in the earlier case . Thus, in Independent Assn., supra at 272, it was found that Waldman had ap- plied to Respondent for reinstatement in February 1976 for employment and that his application was rejected. Respondent separately maintains that Waldman, throughout his backpay period, abandoned employment in the industry in which Respondent is engaged. Re- spondent, in support of that contention, profered a docu- ment signed by Waldman-his pension application dated 28 December 1981. In this application he inserted in longhand "7/1/75" in a blank on a typed form which stated, in effect, that Waldman understood that, to get retirement benefits from the Local 455 Pension Fund, he had to withdraw from any further employment in work regularly performed by Local 455 members and that he was "therefore withdrawing from such employment starting 7/1/75." The insertion of the 1 July 1975 on an application filed in 1981 is confusing because Waldman obviously could not in 1981 be withdrawing from employment in 1975. Quite possibly, Waldman misunderstood the printed statement. Respondent is, in raising this contention, spec- ulating that Waldman in 1981 intended to state that he had retired completely from Respondent's employ in 1975 and from employment in the industry then. There would be no need for any speculation by Respondent had it honored its legal obligation to offer reinstatement to Waldman after having received, on his behalf, Local 455's unconditional application to return to work from 1094 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD the strike. If anyone should benefit from the confusion, certainly the last one to do so is Respondent. More sig- nificantly, the findings in the earlier case Independent Assn., supra at 282, disclosed that Waldman had not in 1975 retired from employment in the industry. I find no merit to Respondent's contention. Waldman's claim also encompasses moneys based on Respondent's alleged obligation to make contributions, during his backpay period, to the various trust funds and to provide overtime compensations and other benefits, as provided for in agreements Local 455 had with other firms during Waldman's backpay period. For the reasons stated in the section dealing with the backpay claims of Ariano and of the other strikers who had returned to Re- spondent's employ, I find it is not appropriate to apply that formula to seek reimbursement for the fringe benefit claims advanced by the General Counsel in behalf of Waldman. It may be that certain of those claims, e.g., some medical bills, may have been reimbursable under fringe benefit programs provided by Respondent to unit employees. However, no such contention was ever sub- mitted by the General Counsel and it is not appropriate for me to assume or to estimate such coverage. In that contention, compare Garsart Construction Corp., 282 NLRB 1331 (1987). See also Barkman Contracting, 276 NLRB 1062 fn. 3 (1985). I find that Waldman is to be awarded backpay for the net earnings lost plus interest but that the fringe benefits aspects of his claim lack merit. 2. Ben Braver In the underlying case, the Board found that Respond- ent unlawfully failed to reinstate Braver on 9 August 1978. According to the amended backpay and argues that his employment status with it ended prior to 9 August 1978, the start of the backpay period under the Board's finding. In support of this contention, Respond- ent points to the fact that Braver, in 1977, applied for early retirement to the pension fund, which has been es- tablished pursuant to contracts Local 455 has had with various employers. Braver testified that he applied for this pension and received it because he had been unable to find interim employment. The record before me indi- cates an employee, who accepted an early retirement pension, could return to active employment but his pen- sion payments would be suspended. It seems then that an employee may not have irrevocably abandoned his career by accepting an early retirement pension. At best, from Respondent's standpoint, the record is unclear whether Braver unequivocably abandoned his job before Local 455 sought his reinstatement on 9 August 1978. Any ambiguity must, of course, be construed against the party whose acts contributed to it. All Respondent had to do in 1978 was to honor Local 455's application and to offer Braver his job back. Had he permanently been retired then, he would have declined and we all would have had an unequivocal answer to the issue now posed by Respondent. Respondent did not choose to do so. In- stead, by failing to offer him reinstatement, Respondent in effect elected to be liable for the gross wages he would have earned, less interim earnings, as set out in the amended specification. Respecting the fringe benefits claimed for him, I find, for the reasons set forth above as to Waldman's claim for such benefits, that it must be denied. On the basis of the foregoing findings of fact, the entire record in this case, and pursuant to Section 10(c) of the Act, I issue the following recommended4 ORDER The Respondent, Master Iron Craft Corp., Plainview, New York, its officers, agents, successors, and assigns, shall pay (1) to the employees named below the sums listed alongside, with interest as provided for in the Board Order, as enforced: Ben Braver $43,400 Morris Waldman $16,847 and (2) to the employees whose names are listed below the dues and fees unlawfully deducted from their wages, as shown alongside their names, with interest as earlier provided for: A. Ariano $1,106 A. Amico 534 E. Amico 268 S. Amico 336 J. Auld 268 J. Belkin 282 A. Calandra 1,050 G. Calandra 604 V. Cangemi 88 D. Dworkin 422 C. Finazzo 478 C. Huntly 364 T. LaHache 13 C. Luick 212 D. Marchese 114 R. Mason 596 M. Mendicino 254 G. Pagan 1,084 J. Pisano 226 R. Reynolds 548 R. Scott 352 S. Stradtmore 128 J. Vogtle 11 In all other respects, the backpay claims are dismissed. * 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- tOWs