Frank Mascali Construction, G.C.P. Co.; Frank Mascali Construction Co., Inc.

FRANK MASCALI CONSTRUCTION 1155 Frank Mascali Construction, G.C.P. Co.; Frank Mascali Construction Co., Inc. and John Kuebler Local 282, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO" and John Kuebler Local 282, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO (Willets Point Contracting Corp.) and Charles Curd Local 282, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO (Allied Used Truck Ex- change, Inc.) and Charles Curd. Cases 29-CA- 5975, 29-CB-3075, 29-CB-3115, and 29-CB- 3235 July 26, 1988 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND BABSON On November 17, 1986, Administrative Law Judge William F . Jacobs issued the attached sup- plemental decision. The Respondent filed excep- tions and a brief in support of its exceptions. The Charging Parties also filed exceptions and the Re- spondent filed a brief in opposition to the Charging Parties' 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, 1 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. 2 The judge made the following inadvertent factual errors that we find do not affect his ultimate conclusions . Contrary to the judge's statement, discrimmatee Curd requested equipment trailer work on more than one occasion since his reinstatement . It was discriminatee Curd, not Kuebler, who testified that if he were still working at Wallets and his Union told him to work behind the picket line, he would have done so. The judge failed to mention that Curd initially failed to report earnings from RCR, a construction company. a The General Counsel listed earnings from Curd 's cab and RCR em- ployment as interim earnings only to the extent that , absent the discrmli- nation, Curd's employment at Willets on particular days would have pre- cluded employment with these employers . Other earnings from these em- ployers were not listed as interim earnings, but as supplemental income not set off against gross backpay, inasmuch as they were considered earn- ings from a second job that he also held prior to the unfair labor practice and that he continued to hold during the backpay period. The Respond- ent excepts to those portions of the cab and RCR earnings that were treated as supplemental income . We find that the General Counsel was correct in her determination that portions of the cab and RCR earnings constituted supplemental income. Cumberland Farms Dairy of New York, 266 NLRB 855 (1983). We adopt the judge 's conclusion, to which no exceptions have been filed, that under the circumstances of this case, Curd and Kuebler did not fmdings,2 and conclusions3 as modified, and to adopt the recommended Order as modified.4 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Local 282, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO, Flushing, New York, its officers, agents, and representatives , shall take the action set forth in the Order as modified. waive their rights to obtain backpay from the Respondent Union by de- manding that it withdraw its arbitration request to Willets Point and by signing general releases concerning that arbitration . We, therefore, find it unnecessary to pass on the judge's reliance on Michael M. Schaefer, 261 NLRB 272 (1982), enfd. 697 F.2d 558 (3d Cir. 1983), rehearing denied 702 F.2d 57 (1983). We also note that the judge's June 19, 1986 Decision and Order, cited by him at sec. 1,6, par. 2 of his supplemental decision, was reversed by the Board in Teamsters Local 282 (Wallets Point Contract- ing), 288 NLRB 56 (1988). This reversal does not affect the outcome of this case. 4 We find that the judge made the following errors in his computation of backpay. The judge inadvertently calculated gross backpay , annuity, and pension fund contributions through June 30, 1983 , 2 months past the May 2, 1983 reinstatement of the discriminatees . The computation for this quarter should, therefore, be recalculated, using a daily computation. Further, the record establishes that Curd earned $200 when he drove a truck to Florida on July 27, 1977, and that this trip continued through July 28. The judge erroneously failed to include these interim earnings in his calculations. Finally, the judge, in his supplemental order and in his appendix B, inadvertently calculated Curd 's cab and RCR interim earn- ings based on the General Counsel's rejected backpay formula, rather than the Christman formula , which the judge in his decision had adopted. The Regional Director should recalculate the diacrimmatees' respective backpay entitlements in accordance with these corrections. Elliot J. Mandel, Esq., for the General Counsel. J. Warren Mangan, Esq. (O'Connor & Mangan, P.C.), of Long Island City, New York, and Franklin K. Moss, Esq. (Cohen, Weiss & Simon), of New York, New York, for the Respondent. Arthur Z Schwartz and Daniel E. Clifton, Esgs. (Clifton & Schwartz), of New York, New York, for the Charging Parties. Robert M. Ziskin, Esq. (Kimmel & Ziskin), of Melville, New York, for Hendrickson Brothers. SUPPLEMENTAL DECISION WILLIAM F. JACOBS, Administrative Law Judge. This is a supplemental proceeding 1 to determine what, if any- thing, is due to the discriminatees under the make-whole order issued in these consolidated cases.2 More specifi- cally, there is the question concerning the amount of backpay and other benefits due John Kuebler and Charles Curd for losses they may have suffered by reason of Respondent's discriminatory implementation of i Case 29-CB-4937, which had been consolidated for hearing with the other cases here by Order dated 8 November 1983, was subsequently sev- ered therefrom for decision-writing purposes by Order dated 16 June 1986. 2 Frank Mascali Construction, 251 NLRB 219 (1980), enfd. 697 F.2d 294 (2d Cit. 1982), cert. denied 456 U.S. 988 (1982) 289 NLRB No. 147 1156 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD their referral arrangement and the question whether con- tributions should be made on behalf of Kuebler and Curd to the Local 282 Health and Welfare, Annuity, and Pen- sion Funds. The instant proceeding was held before me on various dates between 13 August 1984 and 4 October 1985 in Brooklyn, New York, based on a backpay speci- fication that issued 29 July 1983 and an amended back- pay specification that issued 23 September 1983.3 All parties were afforded opportunity to participate in the hearing, to present evidence, examine witnesses, and to argue orally. Briefs were filed by the parties. Issues The issues are framed by the pleadings-the Region's amended backpay specification and Respondent's answer thereto that contains numerous affirmative defenses-all considered in light of the record and the legal arguments and citations included in the briefs. The Backpay Specification Formula 1. Whether the Regional Director properly issued the backpay specification in accordance with the Board's Rules and Regulations and Compliance Manual. 2. Whether the formula selected by the Region in drafting the backpay specification is reasonable and ap- propriate or whether one of the four alternative formulas suggested by the Respondent would be more accurate and therefore preferable. 3. Whether the Woolworth formula should be used under the circumstances of this case and, if so, in what periods of time. Additional Affirmative Defenses4 1. Whether union dues and assessments should be sub- tracted from backpay owed. 2. Whether Kuebler and Curd obtained substantially equivalent employment at Hendrickson Brothers. 3. Whether Kuebler and Curd waived their backpay claims by: (a) Demanding that the Union withdraw its arbitration request, and (b) signing general releases without reserva- tion. 4. Whether Curd willfully concealed interim earnings and is therefore not entitled to backpay for those quar- ters in which he did so. 5. Whether Kuebler and Curd failed to make adequate efforts to mitigate damages by: (a) Failing to seek interim employment during certain quarters, and (b) voluntarily being absent an excessive number of days at their interim employers. 6. Whether Hendrickson Brothers is either soley or primarily liable for damages caused by its discharge of Kuebler and Curd. 7. Whether the fringe benefit computations in the Re- gion's backpay specification are correct. 8. Whether the backpay claim is punitive and would endanger the Union's continuing viability. 3 The General Counsel's motion to amend backpay specification made at the hearing was granted * Although Respondent's answer contains 16 affirmative defenses, sev- eral are repetitive, and deal with the same subjects as contained in others On the entire record in this case, including my obser- vation of the demeanor of the witnesses, and after due consideration of the briefs, I make the following FINDINGS OF FACT I. THE BACKPAY SPECIFICATION FORMULA 1. In Respondent's first affirmative defense, as con- tained in its answer to the Region's backpay specifica- tion, Respondent asserts that the Regional Director failed to comply with the requirements of Section 102.52 and 102.53(a) of the Board's Rules and Regulations and of paragraph 10532.3(m) of the Board's Compliance Manual. Although this defense appears in Respondent's answer it is neither discussed nor argued in its brief. It would appear that the Respondent has abandoned this defense. Section 102.52 deals with the issuance of the backpay specification and notice of hearing while Section 102.53(a) discusses the content of the backpay specifica- tion. The Regional Director has complied with both sec- tions of the Board's Rules and Regulations. Section 10532.3(m) of the Board's Compliance Manual requires that a copy of the backpay computation be sent to the Respondent together with a letter requesting pay- ment. The record clearly indicates that the Regional Office sent a copy of the backpay specification to the Respondent, that the same was received by Respondent, and, indeed, that Respondent acknowledged receipt thereof. The Regional Director complied with the Rules and Regulations and with the Board's Compliance Manual and I shall recommend that Respondent's first af- firmative defense pleading to the contrary be rejected. 2. On 15 August 1980 the Board issued its Decision and Order in the underlying case.5 The Order provided inter alia: (b) Request Willets Point Contracting Corp. to immediately and fully reinstate John Kuebler and Charles Curd to their former jobs or, if those jobs no longer exist, to substantially equivalent positions, without prejudice to their seniority or any other rights or privileges previously enjoyed. (c) Make whole John Kuebler and Charles Curd for any loss of pay and other benefits they may have suffered by reason of Respondent Union's dis- criminatory action in causing their discharge from Willets Point Contracting Corp. and its discrimina- tory failure and refusal to refer them to work as- signments. In the event that that employer reinstate the above-named employees as requested, pay them backpay for all days they would have worked be- tween October 21, 1977, and the date of their rein- statement. In the event that that employer will not reinstate them, continue to pay them backpay until such time as they have found substantially equiva- lent employment. Backpay with interest thereon shall be computed in the manner prescribed in F. W. Woolworth Company, 90 NLRB 289 (1950), s Frank Mascal Construction , supra. FRANK MASCALI CONSTRUCTION and Florida Steel Corporation , 231 NLRB 651 (1977). (See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).) Further, make whole the above-named employees by making contributions on their behalf to the Union's health and welfare and pension funds.e (d) In conjunction with Respondent Employers, with Respondent Union primarily liable, make whole John Kuebler and Charles Curd for any loss of pay and other benefits they may have suffered by reason of Respondent Union's discriminatory imple- mentation of its referral system arrangement with Respondent Employers from July 25 , 1977, to Octo- ber 21, 1977. Backpay shall be computed in the manner set forth above . Further, in conjunction with Respondent Employers, with Respondent Union primarily liable, make whole the above- named employees by making contributions on their behalf to the Union's health, and welfare and pen- sion funds.7 The procedure chosen by the Region to effectuate the Board's Order consists of examining the seniority list of Willets Point Contracting Corp., where Kuebler and Curd would have been employed but for the discrimina- tion against them, and ascertaining which employees were junior to them during the backpay period. As the individual who prepared the backpay specification, Field Examiner Comstock testified she examined Willet's shape sheets to see which of these junior employees were being referred to Frank Mascali Construction . She then looked up the earnings of those employees in the Mascali ledger and credited Kuebler and Curd with those earnings. Where the junior employees were sent to employers other than Mascali, and Comstock did not have access to their records, she assumed that the junior employees would work an 8-hour day and multiplied the hourly wage provided by the Teamsters Local 282 contract by the assumed number of hours worked to determine earn- ings. Comstock examined Willet's payroll records for the period 21 October 1977 through 2 May 1983, which showed for every one of its employees which days he worked and in most cases how many hours. Then, using the Willets' seniority list, Comstock determined which employees were immediately junior to Kuebler and Curd and substituted those employees' earnings for Kuebler and Curd on days when Kuebler and Curd should have worked. Comstock determined Kuebler's and Curd's places on the seniority list by referring to the underlying Decision and Order. The backpay specification takes into account the days of work that should have been made available to Kuebler and Curd for the entire backpay period and those days that Kuebler and Curd testified to being un- available. Interim earnings were also computed and de- ducted from gross backpay. The General Counsel and Charging Party take the po- sition that the backpay specification issued by the Region is reasonable, appropriate, and follows the mandate of Fns. omitted. v Ibid. 1157 the Board. According to Comstock, the formula used by the Region was selected because there were so many variables to be considered. Thus, the various drivers worked under different contracts from time to time, sometimes the excavation contract, at other times the materials contract. There were also different amounts of overtime worked by different drivers. There was premi- um pay for driving the equipment trailer and for towing. Because of the numerous variables, to simplify the back- pay specification, the Region decided simply to take the earnings paid by Willets to the employees immediately junior in seniority to Kuebler and Curd and use such earnings as a basis for finding the gross earnings that Kuebler and Curd might have earned but for the dis- crimination against them. Whichever of these employers worked a particular day, his earnings were used in the computation. The Region rejected the use of the formula suggested in the compliance manual in which a discriminatee's pre- discharge earnings are averaged and projected into the postdischarge period because the use of such a formula presupposes that employment throughout the backpay period remains steady, that it not be seasonal, and that the seniority position of the discriminatee involved remain constant. However, Frances Comstock, the Board agent who investigated the backpay situation and who formulated the backpay specification, testified that fol- lowing the discriminatory failure to refer the discrimina- tees and their subsequent discharge, work opportunities increased at Willets Point, the construction industry being seasonal, and Kuebler and Curd moved far up the seniority list so that use of such a formula would not be equitable to the discriminatees. Counsel for the Respondent, in his brief, agrees with the Charging Parties' counsel that an administrative law judge may adopt the General Counsel's formula so long as a rational basis exists for the formula used.8 He states correctly, however, that when Respondent has presented alternative formulas the Board requires that the adminis- trative law judge make recommendations to the Board concerning the most accurate method of determining the amounts.9 That I intend to do. Rather than my adopting the Region's formula, which Respondent terms irrational, Respondent urges that I adopt any one of four formulas contained in the Compli- ance Manual. Respondent charges that instead of taking the earnings of one representative employee or averaging the earnings of a group of representative employees, the Region's formula aggregates the earnings of junior em- ployees and presumes that "Kuebler and Curd were available for work 365 days a year (including weekends) during the backpay period, and that they would in every case have been qualified and willing to accept all avail- able overtime work, and to perform equipment trailer 8 Teamsters Local 164, 274 NLRB 909 (1985); Kansas Refined Helium Co., 252 NLRB 1156 (1980); Laborers Local 38 (Hancock-Northwest), 268 NLRB 167 (1983). e American Mfg. Co. of Texas, 167 NLRB 520 (1967} I.F.S. Alberici Construction Co., 249 NLRB 751 (1980); East Wind Enterprises, 268 NLRB 655 (1984); Kansas Refined Helium, supra 1158 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD work which they did not perform prior to the backpay period or after its conclusion." Respondent points out that as a consequence of the Region's methodology the gross backpay claimed by the General Counsel for Curd and Kuebler far exceeds the actual earnings of employees with much greater seniority than they, and who historically, both before and since the backpay period, have worked more regularly, sought more overtime, and earned much more than Kuebler and Curd. Regarding Respondent's position concerning the fail- ure of the Region's formula to take into account proba- ble absences of Kuebler and Curd during the backpay period, Comstock admitted in her testimony that she relied soley on the testimony of the discriminatees, that if they said they would have been available for work, she credited them with whatever earnings any one of the junior employees who happened to work that day would have earned. She also admitted that she did not compare the amounts credited to Kuebler and Curd as gross back- pay to amounts earned by senior employees. Rather, she stated that even if she had made such comparisons and found that she had credited them with greater earnings than more senior employees, she would merely have as- sumed that senior employees would have turned down available work that Kuebler and Curd were available for and willing to perform. Comstock testified that this as- sumption would have been made on the basis of resolv- ing all doubts in favor of the discriminatees. While under examination by Respondent's counsel, Comstock testified that she did not ask Kuebler or Curd whether they were ready, willing, and able to work at Willets Point each day, rather she asked them to identify any day when they were not ready, willing, or able to work. Their replies were that there were no such days. She also testified that she asked them if they were avail- able for work every day that work was available for them at their interim employer, Hendrickson Brothers, and they replied in the affirmative that there were no days when they were not ready or willing or able to work. Under cross-examination, however, Kuebler freely admitted that there were a few times when work was available at Hendrickson Brothers when he did not shape because he was campaigning for union office, was ill, or was involved in litigation at the NLRB. Comstock testi- fied that if she had been aware at the time she formulat- ed the backpay specification that either Kuebler or Curd had missed work at Hendrickson Brothers because of ill- ness not related to employment she would not have cred- ited them with gross backpay due for those days. Based on the testimony of Kuebler and Comstock, Re- spondent urges10 that because the Region's formula does not take into consideration the discriminatees' absences, it is unreasonable and should be rejected in favor of one of those suggested in its brief and in the Compliance Manual because each of the formulas contain "normal or average amounts of absenteeism built into the computa- tion."11 I find Respondent 's argument persuasive and 10 Citing Sioux Falls Stock Yards, 236 NLRB 543 (1978) 11 Citing Midwest Hanger Co., 221 NLRB 911 (1975), modified on other grounds 550 F 2d 1101 (8th Cir 1977) one reason for rejecting the Region's formula in favor of one of the standard formulas suggested by Respondent. A second argument put forth by Respondent for re- jecting the Region's formula concerns its presumption that Kuebler and Curd would have been equipment trail- er drivers. The record indicates that equipment trailer drivers receive a preminum pay and substantial overtime, working sometimes 15 or 16 hours a day. The drivers of 10-wheelers and flat trucks do not receive nearly as much overtime. During the backpay investigation Comstock asked Kuebler whether he had ever operated an equipment trailer for Willets prior to his discharge. He told her that he had not. Kuebler, at the hearing, testified that he had never driven the trailer nor ever claimed the right to do so. Frank Daly, a member of Willets' management famil- iar with the duties of its employees, confirmed in his tes- timony that Kuebler never drove the equipment trailer, never was taught how to do so, and never expressed any interest in learning how to drive either the equipment trailer or the equipment carried thereon. Since Kuebler's return to Willets he has been driving a flat truck and occasionally a 10-wheeler. At times when Kuebler had an opportunity to make more money driv- ing a 10-wheeler, he turned down the opportunity in favor of driving the flat truck. He has also, on occasion, refused opportunities to work overtime and to accept available night premium work. On the basis of the fact that Kuebler never drove an equipment trailer either before his discharge or after his return to Willets and his disinclination, at times, to accept premium work or overtime, Respondent argues that it is too speculative to credit him with backpay based on the equipment trailer rate. Comstock testified that although she felt that crediting Kuebler with the equipment trailer rate was speculative, she nevertheless did so because she did not know for certain that Kuebler would not have been given the trailer work before the junior employees, or made a claim for it. Nor did she know whether Willets would have trained him to per- form such work. She testified that the question of awarding Kuebler the equipment trailer work was resolved in his favor because when there are ambiguities they are resolved in favor of the discriminatee rather than the wrongdoer. Although I am aware of the line of cases12 that stands for the proposition that "the backpay claimant should re- ceive the benefit of any doubt rather than the Respond- ent, the wrongdoer responsible for the existence of any uncertaintly and against whom any uncertaintly must be resolved," the application of that doctrine to the set of circumstances here extant would be unjust. To credit Kuebler with an equipment trailer rate when he had never performed such work before his discharge nor after his return, was not trained to operate the equipment he might have to carry, and showed no interest in oper- ating the equipment trailer based on the mere possibility that he might have done so had he not been discharged 12 United Aircraft Corp., 204 NLRB 1068 (1973); Laborers Local 38 (Hancock-Northwest), 268 NLRB 167 (1983), East Wind Enterprises, 268 NLRB 655 (1984), Davis Coal Co, 275 NLRB 722 (1985) FRANK MASCALI CONSTRUCTION 1159 strains the proposition beyond the bounds intended by the Board. It is far more likely that, but for the discrimi- natory actions of the Respondent, Kuebler would have continued to drive the flat truck and 10-wheeler just as he had before his discharge and after his reinstatement. Like Kuebler, Curd did not drive an equipment trail- erts for Willets either before his discharge or after his reinstatement. He did not drive an equipment trailer for Hendrickson Brothers nor did he ask to drive one. After reinstatement at Willets, Curd asked Daly for equipment trailer work. Daly replied that Curd was not qualified. Although Curd insisted that he was qualified , Daly re- fused Curd's request because in order to be able to drive the equipment trailer, the driver must not only know how to operate the tractor trailer itself, but must also be able to load and unload it. That is, he must also be able to drive the various pieces of equipment onto and off of the trailer. He must know, as well, something about the mechanics of the equipment so-that when he is alone at the worksite at 4 or 5 a.m. and has to start the equip- ment, he must know what to do if an engine will not start. Daly testified that to learn to operate the various pieces of equipment, asphalt spreaders, dynahoes, grad- ers, rollers, shovel loaders, etc., as well as the equipment trailer itself, it is a matter of experience . This experience is gained by accompanying an experienced equipment driver and learning from him on the learner's own time. Curd never asked Daly, who handles such matters, if he could learn to operate the various pieces of equipment in this way. Daly credibly testified that he had never seen Curd on the equipment trailer. Although Curd, on the one occasion since his rein- statement, requested equipment trailer work, he had never done so before . When told by Daly that he was not qualified, Curd did not pursue the matter. He filed no grievance over the matter nor did he make a claim for the work when more junior employees were given the work he had requested . Finally, there is no indication that Curd attempted, as did other employees, to get the experience necessary to thoroughly learn how to operate the various pieces of equipment to qualify for the equip- ment trailer driver's job. Because neither Kuebler nor Curd was qualified to op- erate the equipment trailer, nor seriously attempted to obtain the experience necessary for qualification either before his discharge or after his reinstatement, I find no basis for concluding that they would have been qualified or would have attempted to become qualified during the backpay period. Therefore, I find that the Region erred when it awarded Kuebler and Curd equipment trailer rates in its backpay specification . These unwarranted awards are persuasively a second reason for rejecting the 's In the late 60s or early 70s Curd drove the tractor that was on the equipment trailer while on a job on Staten Island "all over the place " He also moved equipment "a couple of times" in East Meadow, Long Island. He testified that he had driven certain pieces of equipment "a long time ago" but had never driven other types of equipment On one occasion, after being reinstated, an experienced equipment trailer driver let Curd take over the operation of the tractor for a few minutes . Curd told Daly about this when he asked for tractor trailer work. This, however, was the extent of Curd's experience. Region's formula in favor of one of the standard formu- las. A third argument put forth by Respondent for reject- ing the Region's formula concerns its presumption that Curd and Kuebler would have volunteered to be strike- breakers and work behind the picket lines at Aqueduct and Belmont Racetracks during the first and second quarters of 1979. Sometime in 1974 a dissident organization within Local 282, FORE (Fear of Reprisal Ends) was founded. Its purpose was the reform of Local 282. To accomplish this purpose FORE distributed leaflets and periodically published newsletters critical of the Union's leadership. It also fielded slates of candidates during Local 282 elec- tions in opposition to the incumbent leadership . In Janu- ary 1977 Kuebler joined FORE and in June, Curd also joined. In January 1978 there was a strike at Aqueduct and Belmont Racetracks and picket lines were established by the striking union, IBEW Local 3. Willets had the snow removal contract for both racetracks and made work available behind the picket line for its own employees and outside employees as well. Some of Willets' employ- ees, including members of Local 282, chose to go through the picket line to work at the tracks. On 15 February 1978 Walter Kudla, a member of FORE, wrote a letter to the president of Local 282, John Cody, charging that secretary-treasurer of Local 282, Robert Sasso, had given his permission to Willets' steward, Robert Worhacz, to have Willets' employees, members of Local 282, go through the picket lines at the racetracks and perform work that had previously been performed by the strikers. Kudla termed the strikebreak- ers "SCABS." In the May 1978 issue of the FORE news- letter, Kudla's letter was published, clearly placing FORE in opposition to Local 282's sanctioning of the strikebreaking activities of the membership. Although neither Kuebler nor Curd were mentioned in connection with the strikebreaking issue, another article in the same newsletter covered their longstanding feud with Wor- hacz and other members of Local 282's leadership. In September 1978, FORE published another newslet- ter. Under the heading, "Reasons FORE Retiring Cody Sasso & Company" the article listed a number of griev- ances including the following paragraph: Secretary-Treasurer Robert Sasso allowed em- ployee's [sic] of Willets Point Construction to cross a sanctioned picket line at Aqueduct & Belmont Race Tracks. This scab action was led by one of Sasso's top henchman, Shop Steward Robert Wor- hacz. Neither Kuebler nor Curd, nor anyone else for that matter, signed this article. However, their names appear elsewhere in the newsletter in connection with other arti- cles critical of Local 282's leadership and Curd testified that Worhacz had made the members cross the picket line and he was not happy about Worhacz leading this scab action. In the last quarter of 1978, Kuebler and Curd were en- gaged in running for union office on behalf of the FORE 1160 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD faction against the incumbents. Kuebler ran for vice president of Local 282, Curd for delegate trustee. During their campaign for office neither Kuebler nor Curd took issue with any of the positions of FORE as reflected by the newsletter articles of May and September 1978. In the winter of 1979 Willets again contracted to supply operating engineers and chauffeurs to work behind picket lines at Belmont and Aqueduct Racetracks where once again racetrack employees were on strike. Once again Willets offered this work first to its own em- ployees, then to outside workmen. Kuebler testified, re- garding this period, that much later , during the 1981 election campaign , when he was running once again for union office, he referred back to the period in 1979 when employees worked behind the picket line at the tracks and termed such work, "scab work." Kuebler explained, however, that if he termed such work, "scab work that shouldn't be performed by any union member," he did so in one of the newsletters , and was campaigning at the time and that "all is fair in love and war." He thus im- plied that this remarks should be merely considered cam- paign puffing and that whatever he said about working behind the picket line being scab work should be taken with a grain of salt and that had he been given the chance, he would have accepted the job himself. On an- other occasion, while testifying, Kuebler took an even more affirmative position stating that he would have gone through the picket line because he had been black- balled by the Union, was on the street and starving, and could have earned $17,000 for 7-1/2 weeks' work. Curd testified in a fashion somewhat similar to Kuebler. He stated that IBEW Local 3 took a lot of jobs away from Local 282 and defied Local 282's picket line. Curd testified in explanation, "This is one of Sasso's rea- sons for getting even with them (Local 3). Basically it's an election year and I can yell about that because we weren't there and its an election. We tried to zing them with it." When asked if he agreed with what Sasso did, Curd replied: To an extent I did. Like I said, it shouldn't have went that far. We should have never let Local 3 get away with what they did. They took our jobs away and they took Teamsters jobs away and everything and they crossed our picket lines. Basically, what this is is an eye for an eye. Its [sic] not a Teamster local. If it was a Teamster Local, you don't cross their picket line, but this is not another Teamster Local . . . . As long as the Secretary-Treasurer of this Local orders me to cross the picket line, I'm going to cross it. From the testimony and other record evidence cited, Respondent argues that in the absence of discrimination if Kuebler had continued to work at Willets, it is incon- ceivable that he would have compromised his publicly proclaimed principles and worked as a strikebreaker. Re- garding Curd, Respondent argues that although Curd has no such principles and is capable of lying and being hyp- ocritical, his closeness to and his respect for Kuebler would not permit him to go through the picket line if Kuebler refused to do so. However, Respondent's testi- mony when he said that if he were still working at Wil- lets and his Union told him to work behind the picket line, he would have done so. If Kuebler would have worked behind the picket line, so would Curd. To this extent, the Region's formula is acceptable, but the use of any one of the four standard formulas is not inconsistent with this finding. Respondent argues in the alternative that even if Kuebler and Curd would have worked as strikebreakers, the General Counsel's formula presupposes that Kuebler and Curd would have worked behind the picket line 7 days a week, 24 hours a day, for 2 months. Respondent points out that since no other member of Local 282 un- dertook such a grueling schedule, such a presumption is not well founded. In support of this contention Respond- ent points out that initially only one employee of Willets chose to work at the track behind the picket line and when others joined him, they all worked on an intermit- tent basis. Indeed the record shows that only a few em- ployees worked the 24-hour schedule for as much as a few weeks. Most worked 2 weeks or less of the 24-hour schedule. In determining how much of the work done behind the picket line should be credited as backpay for Kuebler and Curd, I shall take into consideration Re- spondent's argument that no other employee worked a 24-hour schedule for the entire period during which the racetrack work was available. A fourth argument put forth by Respondent for reject- ing the Region's formula is that it is punitive in nature in that it results in Kuebler and Curd receiving far more than they would if any one of the traditional formulas were used. Respondent argues that when Comstock com- pared the amount of backpay due the discriminatees under the Region's formula with the amount that they earned prior to their discharge, a substantial difference, the backpay due being far in excess of the amounts earned prior to the discharge, she should have aban- doned the formula used and replaced it with one of the traditional formulas. Respondent argues that her failure to do so was unfair to Respondent. Comstock, however, in her testimony, stated that she chose to keep the Re- gion's formula because her evaluation was made from the standpoint of what would be fair to the Respondent. The General Counsel points out, as noted above, that predischarge earnings would not have been an appropri- ate basis for a formula because job opportunities at Wil- lets increased substantially during the backpay period and Kuebler's and Curd's place on the seniority list im- proved drastically during the backpay period. Therefore, to simply use the predischarge earnings as a basis for a formula would not put Kuebler and Curd in the position they would have been in but for the discrimination against them, but rather would unfairly penalize them. I believe that the General Counsel has the better of the ar- gument and that it would have been unfair to Kuebler and Curd to use their predischarge earnings as a basis for the backpay formula. Respondent argues further that before adopting the formula eventually used in the backpay specification, the compliance officer and Ms. Comstock should have com- pared the gross backpay awarded to Kuebler and Curd FRANK MASCALI CONSTRUCTION 1161 with the pay that other more senior employees earned during the backpay period. If this had been done, Re- spondent posits, it would have been determined that Kuebler and Curd were being credited with backpay far in excess of that earned by employees senior to them and that the. formula used was unreasonable. Comstock testified that she made no such comparison and was not obligated to do so. She stated that it is quite conceivable that under certain circumstances Kuebler and Curd could legitimately have earned more during the backpay period than employees with more seniority. Without deciding that the compliance officer had any obligation to compare the backpay sums awarded to Kuebler and Curd with those earned by more senior em- ployees, I find that the record reflects that this is the case and that this fact is some indication that the Re- gion's formula may not be a reasonable one. Indeed, the fact that Kuebler's and Curd's calculated backpay is higher than the pay actually earned by more senior em- ployees during the backpay period is merely the product of Comstock's failure to take into consideration the dis- criminatees' probable absences and her crediting them with trailer work that they never would have performed. It is well established that any formula that approxi- mates what the discriminatees would .have earned had they not been discriminated against is acceptable if it is not unreasonable or arbitrary under the circumstances." The Board is vested with broad discretion in selecting a backpay formula appropriate to the circumstances of a particular case. Where awards may be only close ap- proximations, the Board may adopt formulas reasonably designed to produce such approximations.' a In keeping with these principles the General Counsel and the Charging Parties would have me adopt the Re- gion's formula as a reasonable approximation of what Kuebler and Curd would have earned but for the dis- crimination practiced against them. However, even keep- ing in mind the well-established principle that, when there are uncertainties or ambiguities, doubts should be resolved in favor of the wronged party rather than the wrongdoer,'s there are, in my opinion, reasons discussed above for determining that perhaps the Regions' formula should not be used to determine the amount of backpay due the discriminatees. On the basis of these reasons, I choose to adopt one of the four formulas proffered by Respondent rather than the one chosen by the Region's compliance officers. Indeed, it is not only my duty to de- termine, under these specific circumstances, whether the backpay formula proposed by the General Counsel is a proper method of determining amounts due, but also my duty to determine which of several conflicting backpay formulas is the most accurate method of determining backpay amounts." In my opinion, the General Counsel's formula, for rea- sons stated above, produces backpay calculations far in excess of the wages Kuebler and Curd would have 14 Kansas Refined Helium Co., supra; Laborers Local 38 (Hancock- Northwest), supra. is Ibid. le J. S Alberici Construction Co., supra, citing American Mfg. Co. of Texas, 167 NLRB 520 (1967). 17 J. S. Albenct Construction Co., supra; East Wind Enterprises, supra. earned if they had continued in the employ of Willets without having been discriminatorily discharged. Of the four standard formulas offered in its stead by Respond- ent, I agree with Respondent that the formula that uses Christman's income as its base is the fairest. This is so because, first of all, he was employed at Willets Point before, during, and after the backpay period . Second, Christman, like Kuebler and Curd, drove only 10-wheel- ers and flat trucks and did not drive equipment trailers as did employees used by the Region in its backpay formu- la. Third, Christman was close to both Kuebler and Curd on the Willets Point seniority list, being the employee immediately above Curd and just two above Kuebler on the list, during all relevant periods. I shall therefore rec- ommend that a formula based on Christman's income be used to calculate backpay due Kuebler and Curd. 3. Respondent's second affirmative defense, the third issue listed above, states that the standard Woolworth's formula is inappropriate and should not be used in the backpay calculations. Respondent argues further that if Woolworth is used, it should be used for the entire period including 1977 when the Region's compliance officer used a daily computation. It is first noted that Respondent did not argue against use of the Woolworth formula in its brief and appears to have abandoned this position. Moreover, Respondent urges adoption of the Christman formula that is attached to its brief. The Christman formula itself includes use of the quarterly Woolworth formula Finally, in the underlying Mascali's case, the Board, in its Order, stated in relevant part: Backpay with interest thereon shall be computed in the manner prescribed in F. W. Woolworth Com- pany, 90 NLRB 289 (1950), and Florida Steel Corpo- ration, 231 NLRB 651 (1977). (See, generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962)). I see no reason why the traditional Woolworth formula should not be used in this proceeding and Respondent has provided me none. I shall therefore use the Wool- worth formula in computing backpay, just as originally ordered. Similarly, I find the Region 's use of the daily computa- tion for the third quarter 1977 to be reasonable in light of the fact that the period is less than a whole quarter. Inasmuch as Respondent failed to give any basis for its objection to the use of the daily computation, I shall rec- ommend approval of its use. 4. Respondent urges that union dues and assessments should be subtracted from backpay owed because Kuebler and Curd would have had to make such pay- ments had they not been discharged. True enough. How- ever, as the General Counsel states in his brief, the figure offered by Respondent as a deduction for dues has no basis in the record . Where the particular sums mentioned come from is not at all clear . That being the case, I find that Respondent has not maintained its burden of moving that these sums should be deducted from backpay.80 '8 F. W Woolworth Co., supra. 19 Supra. 20 Triangle Sheet Metal Works, 267 NLRB 650 (1983). 1162 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Moreover, the Board found in the underlying case that Respondent was responsible21 for Kuebler's and Curd's discharges and for their loss of wages during the back- pay period. Respondent would now have Kuebler and Curd pay for the privilege of being discharged. I find something basically inequitable in having the discrimina- tees pay for the very questionable disservices rendered to them by Respondent and reject its request for payment of dues for the backpay period. 5. Respondent takes the position that Kuebler and Curd obtained substantially equivalent employment at Hendrickson Brothers while the General Counsel and the Charging Party argue that they did not. In arriving at their divergent conclusions, the parties used separate factors but similar formulas. The General Counsel used the same formula used by the Region in computing gross backpay, aggregating the earning of less senior employ- ees at Willets without giving due consideration to the type of work they performed and without giving proper weight to the likelihood that the discriminatees would have had some absences and would not have worked every single hour of overtime available. As noted earlier, Respondent objected to this formula and I have found, for reasons stated, that these objections are well founded. Respondent, however, urges that Kuebler and Curd not only worked many hours at Hendrickson Brothers, but that they failed to work many hours at Hendrickson Brothers when work was available to them. By adding the hours worked to those available, Respondent derives a figure far in excess of what Kuebler and Curd could have earned at Willets. The problem with Respondent's calculations is that it is based on the same type of formu- la used by the General Counsel to which Respondent so strenuously objects. Thus, Respondent took whatever junior employee who showed up for work at Hendrick- son Brothers when Kuebler and Curd did not and as- sumed that if they wished to do so Kuebler and Curd could have performed that work. But this formula for determining interim earnings suffers from the same in- equities as does the Region's gross backpay formula. I shall therefore recommend against its use. Respondent recommended for calculating overall backpay the Christman formula because Christman was just one position above Curd and performed the same work, i.e., driving flat trucks and 10-wheelers. I have ac- cepted that formula as the fairest way of calculating backpay. I see no reason why I should not adopt the same formula for purposes of determining whether Hen- drickson Brothers offered substantial equivalent employ- ment to Kuebler and Curd. Therefore, using Respond- ent's own suggested formula, I find that Kuebler and Curd would have earned approximately the same wages during the backpay period as Christman minus 10 per- cent because Christman was higher on the seniority list and minus another 10 percent based on the fact that both Kuebler and Curd had voluntary absences at Willets in excess of that of Christman. Using this formula, I find that both Kuebler and Curd would have earned far more at Willets than at Hendrickson Brothers and that, for this Qi Respondent is pnmanly liable from 25 July to 21 October 1977, and solely liable thereafter. reason, their employment at Hendrickson Brothers was not substantial equivalent employment, and that their em- ployment at Hendrickson Brothers during the backpay period did not toll Respondent's backpay liability.22 6. Respondent claims that Kuebler and Curd waived their backpay claims by demanding that the Union with- draw its arbitration request and by signing general re- leases without reservation. Respondent argues that any backpay claims that Kuebler and Curd may have are not attributable to Respondent because once the decision was rendered in the underlying case , Respondent filed an ar- bitration demand on their behalf and fairly processed a grievance to obtain their reinstatement. According to Respondent, litigation with respect to the reinstatement of the discriminatees was still pending when Kuebler and Curd demanded that Respondent withdraw its efforts on their behalf. Respondent then complied with their demand and abandoned all efforts to obtain compensa- tion or indemnification from Willets Point. Thereafter Kuebler and Curd executed general releases, which failed to reserve rights as against Respondent. Thus, Re- spondent argues, Kuebler and Curd waived any rights they may have had against it.23 I find Respondent's position untenable. On 16 June 1986 Case 29-CB-4937 was severed from the consolidat- ed cases considered herein. On 19 June 1986 a Decision and Order issued in which it was decided that Respond- ent had violated the Act by coupling its demand for rein- statement of Kuebler and Curd at Willets with a demand that Willets assume the Union's backpay liability. The evidence underlying that decision indicated that Willets owed nothing to Kuebler and Curd, neither reinstate- ment nor backpay. The Union, by insisting that Willets reinstate Kuebler and Curd and pay them the backpay that the Union owed them, resulted in Willets refusing to do either. Finally, in order to get reinstated with Willets, Kuebler and Curd signed releases, relieving Willets of any liability. These releases had absolutely nothing to do with Respondent's liability and clearly no waiver was in- tended. Moreover, Kuebler and Curd had no obligation to pursue their reinstatement rights through the Union's grievance and arbitration process. Indeed, the Board stated in Henrickson Bros. ,24 in which it was dealing with the same parties involved herein: The judge rejected the Respondent's contention, renewed in its exceptions, that the discharges 22 Clear Pine Moldings, 268 NLRB 1044 (1984), affd. 765 F 2d 148 (9th Cu. 1985), Laborers Local 38 (Hancock-Northwest), supra, Teamsters Local 559 (Mashkin Freight), 257 NLRB 24 (1981), affd. 714 F 2d 115 (2d Cir. 1982) 23 Respondent cites sec 15-105(1) of New York's General Obligation Law as stating. If an obligee releasing or discharging an obligor without express res- ervation of rights against a co-obligor, then knows or has reason to know that the obligor released or discharged did not pay so much of the claim as he was bound by his contract or relation with that co- obligor to pay, the obligee's claim against that co-obligor shall be satisfied to the amount which the obligee knew or had reason to know that the released or discharged obligor was bound to such co- obligor to pay 24 272 NLRB 438 (1984) FRANK MASCALI CONSTRUCTION 1163 should be deferred to contractual arbitration. He reasoned that neither the employees nor the Union, Teamsters Local 282, elected to use that forum, and that the Respondent made no effort to compel arbi- tration. We agree with the judge that deferral is in- appropriate, but only for the following reasons. In United Technologies Corp., 268 NLRB 557 (1984), the Board held that cases alleging violations of Sec- tion 8(a)(1) and (3) and Section 8(b)(1)(A) and (2) of the Act are subject to deferral to arbitration. We shall not, however, defer Curd's and Kuebler's dis- charges, because deferral would involve representa- tion by Teamsters Local 282, a union whose interest is clearly inimical to the dischargees. Further, the Respondent's own interest conflicts with Curd's and Kuebler's in ways that go well beyond the immedi- ate discharge issue. Although the Respondent and the Union were willing to arbitrate the discharges, Curd and Kuebler declined the Union's offer to represent them because, as the judge found, they distrusted the Union and doubted whether it would properly represent them in an arbitration proceeding. The judge documented at considerable length the long- standing animosity between Local 282 representa- tives and the employees, and we need not recount it here. We note, however, that Curd and Kuebler en- gaged in extensive efforts to oust Local 282's lead- ership and participated in various unwelcome chal- lenges to the Local's administration of the collec- tive-bargaining agreement. In Frank Mascali Con- struction, 251 NLRB 219 (1980), enfd. mem. Ill LRRM 2423, 95 LC ¶ 13,919 (2d Cir. 1982), the Board found that Local 282 committed numerous unfair labor practices against Curd and Kuebler in reprisal for their exercise of Section 7 rights and their filing charges with the Board, including caus- ing their discharges, refusing to refer them to job assignments, preferring fraudulent intraunion charges against them, and refusing to process their grievances. The Respondent's hostility toward Curd and Kuebler is also fully detailed in the judge's decision. He found that the Respondent's officals, including Foreman Brown and Executive Vice President Farley, openly resented and resisted their vigorous attempts to enforce the contract and improve work- ing conditions. Given this background, in which both parties to the contract are plainly opposed to the employees' interests, we conclude that deferral to arbitration is inappropriate. The Board addressed a similar situation in Kansas Meat Packers, 198 NLRB 543, 544 (1972), stating as follows: [W]e conclude that it would be repugant to the purposes of the Act to defer to arbitration in this case as to do so would relegate the Charging Parties to an arbitral process authorized, adminis- tered, and invoked entirely by parties hostile to their interests. [Fn. omitted.] So, in light of the Board's findings as to the existing animus of Respondent toward Kuebler and Curd, it would be folly to except Kuebler and Curd to place their trust in Respondent Union's processing of their grievance to obtain backpay from an innocent party rather than in the Board's processing of the ULP against the Respond- ent who was the cause of all their difficulties. Similarly, it would be equally unreasonable to decide that Kuebler and Curd waived their rights to backpay when they chose not to use Respondent's questionable offices to represent them against Willets. Further, even if the issue of Respondent's animosity toward Kuebler and Curd were not controlling, as I have found it to be, the Board has stated: It is well settled that an individual may not waive, bargain away, or compromise any backpay which might be due him (or her) since it is not a private right which attaches to the discriminatee, but is, indeed, a public right which only the Board or the Regional Director may settle.25 Neither the Board nor the Regional Director entered into the agreement, which Respondent claims to be a waiver. Therefore, it is not.26 Respondent claims that Curd willfully concealed inter- im earnings and is therefore not entitled to backpay for those quarters in which he did so. Counsel for Curd argues that any discrepancies between reported earnings and actual earnings were unintentional and the result of misunderstandings or ignorance. The General Counsel takes the position that most of the unreported interim earnings were not deductible because they were, for the most part, second job earnings similar to those earned before Curd's discharge and those that do not fall into this category were small amounts not sufficient to war- rant disqualifying Curd for earnings during entire quar- ters. In support of his position on this issue, counsel for Re- spondent argues that Curd did not report "off the books" earnings when initially asked to do so. The record sup- ports this assertion. It was not until about November 28, 1983, that Curd reported to his attorney and then to the Region's compliance personnel that he had earned cer- tain "off the books" income not previously reported. On 12 December 1983 Curd supplied to the compliance sec- tion a complete report of all "off the record" earnings during the backpay period. He also amended his tax return to reflect such earnings. Curd testified that he had not reported his cab earn- ings because they were earned evenings and on week- ends and he believed that he did not have to report them. It was only after he mentioned these earnings to his attorney and then to Comstock that he was told to report them and then did so. When Curd advised his at- torney and the Board agent of his unreported cab earn- ings he also told them of his "off the books" earnings at Allied, a trucking firm. He was told to calculate, report, 25 Michael M. Schaeffer, 261 NLRB 272 (1982), affd 697 F 2d 558 (3d Cir 1983). 26 Stevens Ford, 271 NLRB 628 (1984), Finishline Industries, 181 NLRB 756 (1970) Bottle Blowers Local 106, cited in Respondent's brief, is clearly inapposite Similarly, New York State statutes relied on by Respondent are inapplicable 1164 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD and pay taxes on those earnings as well, and he did so. Curd's explanation why he did not report the cab earn- ings or the Allied earnings was simply that they were "off the books" and he did not think they counted. Re- spondent, on the other hand, charges that Curd only be- latedly reported his "off the books" earnings in 1983 when he heard that he was being investigated by a pri- vate detective. Evidence supporting this charge is, how- ever, inconclusive. Counsel for Respondent, during the hearing, examined Curd extensively concerning a large number of deletions in Curd's 1977 diary in which he maintained a record of earnings along with other information. When asked what had been deleted Curd, for the most part, testified that he could not remember. What appears to have been de- leted are all references to employers for whom Curd might have worked during 1977. What was left undelet- ed were numbers, which would appear to reflect earn- ings for that year. With regard to these numbers Curd testified in most cases that he could not recall what the numbers referred to. In some few cases he denied that they reflected earnings while in still fewer cases he ad- mitted that they were earnings. In defense of his lack of memory, while testifying at the hearing, Curd pointed out that the deletions had been made 8 years before. However, in the underlying case heard in 1978, just 1 year, or in some cases just a few months, after the dele- tions had been made, Curd's testimony concerning the entries in and deletions from his 1977 diary was no more enlightening27 than at the hearing in the instant case. Curd testified that he deleted certain entries in his 1977 diary in preparation for a series of meetings sched- uled both before and after 31 December 1977 with cer- tain union officals during which he was expected to show them his books indicating when he shaped and when he worked. He deleted everything from the diary that he thought was none of Respondent's business. This was done, of course, because of the demonstrated hostili- ty of Respondent toward Curd and after Curd's dis- charge, which had been engineered by Respondent. Curd testified, and the record supports his testimony, that he made no deletions in any of the diaries he prepared for each of the following years, 1978 through 1983.28 27 Frank Mascah Construction, 251 NLRB 219 (1980). The administra- tive law judge conducting that hearing noted at 233 fn 38. Curd's testimony also presents difficulties If he had not kept a diary, he aught have presented less of a problem , but he did. He kept a diary showing his day-to-day activities, but prior to this hear- mg, he had expunged the bulk of the entries , leaving only cryptic references to activities or numbers. His stated reason for this , that he feared reprisal from the Union against people and employers listed is plausible, but his assertions that he could not remember what any of the entries were, or stood for, is plainly incredible Curd showed otherwise that his memory was not that bad. With respect to the credibility of that testimony, he lied about the contents of his diary in the sense that he testified that the deleted portions concerned only the names of persons he did not want iden- tified for fear of reprisal, and other references to his private business. I believe, in fact, that the diary showed jobs and income which he received during the year which , for some reason, he did not want the Union, or anyone else, to know about 48 The exception that proves the rule- 29 April 1981 Respondent's counsel argues that his extended exami- nation of Curd concerning his entries in and deletions from his 1977 diary prove that Curd was lying and that the numerous references to $55 or $60 "undoubtedly refer to unreported or misreported RCR earnings." However, after analyzing the relevant documentation I cannot find evidence to support this charge. Indeed, Curd insisted that he earned $50 per day working at RCR and named the days when he did so. In his diary he marked 2 or 3 days when he purportedly worked at RCR when he earned $55 but there were more days when he earned $50 per day. The evidence on this point is inconclusive, and without something stronger, I will not credit Respondent's statement. Discrepancies do exist, but are minor and, I find, innocent. Respondent's brief points out that Curd lost, mis- placed, or threw away a piece of paper on which he had recorded his RCR earnings and infers something sinister about this fact. In light of the large number of records that Curd did, in fact, make available, his loss of a single sheet paper after carrying it around for 6 or 7 years is not, to me, a matter of great concern. I assume it was innocently lost or misplaced. Respondent relies on American Navigation Co.29 and C R. Adams Trucking30 for the proposition that where a discriminatee is found to have willfully concealed from the Board his interim employment, he will be denied backpay for all quarters in which he engaged in the em- ployment so concealed. However, the cases cited are fac- tually distinguishable. In American Navigation the Board found that the discriminatee had been employed during the backpay period and had concealed this fact and the amounts he had earned from that employment from the Board, lying during his testimony at the backpay hear- ing. In the instant case there is no evidence that Curd lied at the hearing or concealed earnings during his testi- mony at the hearing. Therefore American Navigation is not in point. Similarly, Respondent's reliance on C. R. Adams Trucking is misplaced. In the Adams case, the dis- criminatee earned several hundred dollars on a snow re- moval job in early 1982. In August 1982 when he sub- mitted the compliance forms to the NLRB he neglected to include these earnings. The backpay specification issued 14 December 1983 and did not, of course, include the discriminatee's snow removal earnings. In January 1984 the discriminatee found a W-2 form that reflected the snow removal earnings. Nevertheless, the discrimina- tee did not report these earnings to the compliance offi- cer. Just before the backpay hearing the Respondent's at- torney somehow found out about the discriminatees' snow removal earnings and told the compliance officer about them. The compliance officer then confronted the discriminatee with the fact that he had concealed earn- ings and the discriminatee admitted having earned the unreported income. When questioned at the hearing why he had failed to report the snow removal income prior to the hearing, the discriminatee simply stated that he had forgotten about it. The judge determined that although 29 268 NLRB 426 (1983). 30 272 NLRB 1271 (1984), enfd 767 F.2d 1276 (8th Cir. 1985). FRANK MASCALI CONSTRUCTION the discnminatee might well have simply forgotten the snow removal income from the previous winter when he submitted his compliance forms the following August, he must have had his mind jogged by the W-2 forms con- taining the snow removal earnings information just 2-1/2 months before the backpay hearing and nevertheless chose not to report the income, thus concealing it, and thus making himself subject to forefeiture of quarterly backpay payments due to the concealment. Unlike the Adams case, Curd, in the instant case, was not discov- ered to have concealed earnings but rather, voluntarily admitted the unreported earnings to his counsel, then to the Board, and the matter was rectified by issuance of a revised backpay specification. So, I find, Adams is not the same type of case as that being considered. In the American Navigation case, the Board chose to consider two other cases that were clearly not factually on all fours with that case but which the Board felt should be reversed. Those cases were Big Three Industri- al Gas31 and Flite Chief, Inc.,32 and are closer in point of fact to the instant case than either American Naviga- tion or Adams. In both Big Three and Flite Chief, the Board had awarded backpay to discriminatees who had initially concealed interim employment, but who had subsequently admitted the employment. In Big Three the Board had earlier decided that a penalty had no place in the national labor law scheme because the Act is remedi- al, not punitive, in nature, and therefore the claimant's backpay should only be reduced by the amount of the belatedly admitted interim earnings. In Flite Chief the Board had earlier decided that a claimant's initial con- cealment of earnings had not undermined the Board's re- medial processes and that a penalty would be inappropri- ate when the claimant had voluntarily admitted, at the 11th hour, the earnings he had previously concealed. Factually, in Big Three, the claimant admitted the previ- ously concealed earnings while on the witness stand during the backpay hearing while undergoing question- ing by Respondent's counsel; while in Flite Chief the claimant disclosed his concealed earnings to a Board rep- resentative on the day that the backpay hearing com- menced. The Board, in its American Navigation decision (268 NLRB at 428), noted that it disagreed with the rationale of the Big Three and Flite Chief decisions and overruled them because: As the Ninth Circuit reasoned in Flite Chief, supra at 993, to award full backpay to a claimant who at- tempts to pervert an order issued in the public inter- est into a scheme for unjustified personal gain is to reward perfidy. Based on this philosophy, the Board stated: We find that a remedy which denies backpay for the quarters in which concealed employment oc- curred will discourage claimants from abusing the Board's processes for their personal gain and will also deter respondents from committing future " 263 NLRB 1189 (1982) 82 246 NLRB 407 (1979), enf. denied 640 F.2d 989 (9th Cu 1981) 1165 unfair labor practices. This remedy will be applied, of course, only in cases where the claimant is found to have willfully deceived the Board, and not where the claimant , through inadvertence, fails to report earnings. While the instant case appears to bear certain similarities to Big Three and Flight Chief, there is one very important difference, namely, that Curd voluntarily admitted the unreported income months before the hearing , in plenty of time to revise the backpay specification to Respond- ent's benefit. To hold that Curd must suffer forfeiture of wages because initially he failed to report all of his income despite the fact that subsequently he did, in fact, report all income , long before the hearing, would put a premium on concealment. Thus, in C. R. Adams, supra at 1276, as facts described supra, the judge made the fol- lowing observation: Moreover, there seems to have been a "last clear chance" for avoiding willful deceit which Becker failed to take. He testified that he "found" the W-2 form reflecting the snow removal income about 4 months before the hearing, but he said nothing about the matter until the compliance officer, spurred by Respondents' counsel, inquired into it some 2- 1/2 months later. When asked why, on such a discovery, he had not promptly notified the Region, Becker testified, "it just-I forgot all about it, that's all." I find it difficult to conceive of Becker having his mind jogged by discovery of the form and then forgetting about the income for the second time. The implication here is that if Becker , the discriminatee in the C. R. Adams case, had reported his snow removal earnings after finding the W-2 forms it would not have been too late to rectify the situation. But suppose, at the time, the Board had been applying American Naviga- tion-Big Three-Flite Chief dictum to his and Curd's sit- uation, as Respondent would have me do. That is to say, suppose Becker or Curd were told that if they belatedly reported previously undeclared earnings , the Board might charge him with concealing those earnings and dock him 3 months' backpay or more . Would such an approach be more or less likely to advance full disclosure of interim earnings? I think a person faced with this di- lemma might well opt for concealing the previously un- declared earnings , whether they were initially deceitfully concealed or innocently overlooked . Thus, application of the cited cases to the factual situation here would have the effect of undermining the remedial purposes of the Act: punish honesty and reward dishonesty. Moreover, what would be the result of applying the rationale of the cited cases to the situation here discussed? Who would gain and who would lose? A discriminatee who is faced with the choice of declaring previously undisclosed in- terim earnings and possibly forfeiting large amounts of backpay who chooses not to reveal those earnings, if he succeeds, unlawfully cheats the Respondent out of de- ductions from interim earnings to which it is entitled. If a discriminatee who is faced with the choice of declaring 1166 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD previously underclosed interim earnings and possibly for- feiting large amounts of backpay chooses not to reveal those earnings, but is detected at the hearing and loses several quarters of backpay because of this concealment, the sole winner is the Respondent . Such a result hardly effectuates the purposes of the Act. In the instant case Curd did not initially reveal all in- terim earnings to the Board . However, when his counsel advised him that it was necessary to do so , he did so honestly, making full disclosure of all income . He did so voluntarily in a timely fashion so that by the date of the hearing all parties were fully apprised by the contents of the backpay specification what interim income Curd had earned. For the reasons stated, I do not believe that the rationale of the Big Three-Flite Chief reversals as de- clared in American Navigation should be applied to this case. Where a discriminatee, in timely fashion, makes full disclosure of all interim earnings long before the backpay hearing commences , his failure to report all interim earn- ings earlier should not be considered a reason for requir- ing forfeiture of backpay. 8. Respondent claims that Kuebler and Curd failed to make adequate efforts to mitigate damages by failing to seek interim employment during certain quarters and by being absent an excessive number of days at their interim employers. The record reveals that Kuebler and Curd did make good-faith efforts to find interim employment. Between the dates of his discharge and reinstatement at Willets Point Contracting Kuebler sought and obtained employ- ment at Hendrickson Brothers, Inc., RCR Services, Rason Asphalt, Inc., Heckscher Nurseries, Inc., Peter Scalamandre & Son, and Typhoon Fence of L. I. Inc. Of the 23 quarters covered by the amended backpay specification, Kuebler worked and received interim earn- ings from the listed companies during 18 of them. Most of Kuebler's interim income was earned at Hendrickson Brothers . However, because of his low place on the se- niority list, his employment with this company was irreg- ular despite the fact that he shaped often. When not em- ployed by Hendrickson or by one of the other companies listed above, Kuebler, at various times during the back- pay period, sought employment, albeit unsuccessfully, at certain liquor distributors-Star and Knickerbocker, cer- tain oil companies-Massapequa, Slomin, Reliance, and Agway, and certain trucking and warehousing compa- nies-C & R Steel, Dubarry, and Block. Kuebler would seek employment at these companies during the winter season when construction was down or on a day-to-day basis during the busy construction season , after shaping, when he was unsuccessful at landing a job with Hen- drickson Brothers. In April 1982, Kuebler was fired by Hendrickson Brothers , and thereafter remained jobless for the next four quarters, although during this period he sought employment at Nazzara,33 Star, Knickerbocker, Landsdale,34 C & R Steel, J. D. Pasilico,35 S&W Hard- ware, and Atlas virtually every day. He also checked out help-wanted ads for limousine drivers . Some of the com- panies where Kuebler sought work were companies with contracts with Teamsters Local 282 and other Teamsters Locals while others were nonunion or were not con- struction or trucking companies . Throughout the back- pay period, whether he was still employed at Hendrick- son Brothers, but not working that particular day, or had been already discharged by Hendrickson Brothers, Kuebler continued to search for work. He sought work stacking shelves in a supermarket and inquired about jobs tending bar and pumping gas. But Kuebler was limited in his capacity to perform many jobs because of his age and lack of experience outside the truckdriving trade. In any event, he was unsuccessful in his attempts to find em- ployment. Between the dates of his discharge and reinstatement at Willets Point, Curd sought and obtained employment at Hendrickson Brothers, Inc., Bess & Co., RCR Serv- ices, Rason Asphalt, Inc., Herscher Nurseries, Inc., Sun- shine Biscuits, Inc., and Star Industries, Inc. Of the 23 quarters covered by the amended backpay specification, Curd worked and received interim earnings from the listed companies during 20 of them. Like Kuebler, most of Curd's interim earnings were from Hendrickson Brothers. But he, like Kuebler, was not steadily em- ployed. Although he shaped almost daily , he did not re- ceive regular assignments because of his inferior position on the seniority list. Similarly , Curd made many unsucc- cessful attempts at finding employment . His credited tes- timony indicates that he tried to obtain employment, to no avail, with various oil companies during the winter seasons while still employed by Hendrickson and thereaf- ter unsuccessfully sought employment with Conservative Express, Tempo, Star Liquors, Sunshine Biscuits, Knick- erbocker Liquor, Landsdale, Newport Tire, Puritan, Petro, and other oil companies . In addition, Curd drove a cab on many occasions when one was available. Respondent asserts that Kuebler and Curd failed to make continuing efforts to obtain interim employment, and correctly argues that, in order to receive backpay, a discriminatee must make reasonable efforts to obtain in- terim employment. Though granting that Kuebler and Curd did make such efforts, Respondent argues that the obligation to seek employment is a continuing one and that each period of time must stand on its own, citing Murbro Parking. SB However, the discriminatee in the Murbro case admitted that during a certain portion of the backpay period he had joined the ranks of the discour- aged unemployed and did not search for work because the labor market was flooded with teenagers . Neither Kuebler nor Curd made such an admission , but rather claimed to have shaped or sought employment virtually every day so that it remains the burden of Respondent to prove that they willfully incurred loss of earnings during the backpay period. Fugazy Continental Corp., 37 citing Brown & Root.38 88 A company signatory to the Local 282 contract. 98 276 NLRB 52 (1985) 84 Ibid. " 276 NLRB 1334 (1985) 35 Ibtd 38 132 NLRB 486, 495 (1961), enfd. 311 F 2d 447 (8th Cr 1963). FRANK MASCALI CONSTRUCTION Respondent's brief notes that Kuebler and Curd me- ticulously kept daily diaries that showed periods of time during which they appeared to be regularly seeking work. It notes further that these diaries contain lengthy intervals of time in which the diaries reflect no efforts at all to obtain interim employment . Concerning some of these blank periods, neither Kuebler nor Curd could recall what efforts they had made to find interim em- ployment. Respondent would have me decide on the basis of these incomplete records and the discriminatees' faulty memories that neither Kuebler nor Curd sought interim employment during these periods . I shall not, however, make such a finding . I am, in fact, impressed with the amount of information contained in the diaries of Kuebler and Curd and will not recommend reduction of their backpay simply because these two truckdrivers failed to keep records as accurately or completely as would a CPA. Indeed, they faithfully kept these diaries for 7 years while Respondent continued to refuse to pay them the backpay rightfully theirs , which was the remedy provided in the underlying case and which re- sulted from Respondent's violation of the Act. It is not essential that a discriminatee keep records at all to estab- lish the extent of effort he had made to find interim em- ployment. Teamsters Local 164. 39 But if a discriminatee has, throughout a multiyear backpay period, chosen to keep records of efforts to find interim income, it is not surprising that such records are less than perfect. Big Three Industrial Gas44O I find that the failure of Kuebler and Curd to account for every day in the backpay period is not evidence of inadequate efforts on their part to seek interim employment. And their inability to recall the spe- cifics of where, when, and under what circumstances they sought employment during the periods unaccounted for in their diaries is neither surprising after a period of so many years nor evidence of a willful loss of earnings. Neely's Car Clinic.4 t Kuebler and Curd both testified that they shaped a number of occasions at Star Liquor and Knickerbocker Liquor. Their diaries support their testimony . In fact, Curd did actually work at Star Liquor 1 day. Kuebler, in describing the shaping procedure at Star, credibly testi- fied that Star did not require employment applications to be filled out but, rather, required the men to report to a gigantic room like this and the men would come their 6:00 o'clock in the morning. The shop stew- ard's name was Kelly. The dispatcher was White and it was a case of like the old days down on the dock. If you stayed there long enough and your face was in front, they'd pick you by familiar [sic) in ac- cordance to how busy they were. I found the particularity of Kuebler's description quite convincing. 94 274 NLRB 909 (1985). 4O 263 NLRB 1189 (1982), overruled on other grounds American Navi- gation Co., 268 NLRB 426 ( 1983). 41 255 NLRB 1420 (1981) 1167 Respondent produced two witnesses at the hearing, Fred Acquavita, the shop steward at Knickerbocker, and Alfred Ortiz, the dispatcher and shop steward at Star Liquor. Acquavita testified that he would be at the shape at Knickerbocker every morning at 5:30 in 1982 and that he would recognize and get to know the faces and names of men who came to shape regularly . When Acquavita was asked if he recognized the faces or was familiar with the names of Kuebler and Curd, he replied in the nega- tive. He testified further that during the busy season if a man shaped regularly, he would remember that man, and in June or July 1982, a man who shaped frequently would have been hired. Ortiz, also more generally known as Kelly, testified that he was present every morning at 5 a.m. for the shape at Star Liquor in 1982. He testified further that in July 1982 Star was very busy and was hiring . Ortiz, like Acquavita, stated that he did not recognize either Kuebler or Curd and was unfamiliar with Kuebler's name. He admitted, however, that Curd worked 1 day for Star, and that he was aware of this fact because his bookkeeper looked up the name and told him. This was done in preparation for the hearing. Finally, Ortiz testi- fied in one place that he did not know if he would rec- ognize, 3 years later, men who had shaped every day 3 years before. Elsewhere he stated that he would , after a while, recognize the faces of men who shaped every day. On cross-examination, Ortiz admitted that he could not recall the names of off-the-street extras who may have shaped 3 years before. When Kuebler and Curd were asked to identify Ac- quavita and Ortiz, Kuebler could not do so, while Curd properly identified Ortiz as being behind the cage at Star Liquor but mistakenly placed Acquavita at the same lo- cation. I am satisfied, despite Acquavita's and Ortiz' failure to identify Kuebler and Curd, that they did, in fact, shape at Star Liquor and Knickerbocker Liquor in 1982. It was 3 years by the time of the hearing since Kuebler and Curd shaped at Star and Knickerbocker. Their contact with Acquavita and Ortiz was minimal and over a period of years hundreds of men shaped at these two employers. It is quite understandable that neither of the two stew- ards could recognize Kuebler and Curd and their failure to do so is not controlling .42 Teamsters Local 164, supra, Neely's Car Clinic,43 Murbro Parking.44 Moreover, Kuebler's and Curd's knowledge of the location of the two liquor distributors, their description of the layout of the shaping area and of the shaping procedure , Kuebler's recall of Kelly's name, and Curd's identification of Kelly at the hearing strongly support their testimony that they regularly shaped at Star and Knickerbocker and I so find. Respondent argues that when a discriminatee has un- excused and unexplained absences from his interim em- ployment, an amount reflecting the income lost as a result of these absences should be added to his actual in- 42 When there is direct conflict between the testimony of the two stewards and the discrmvnatees, the latter are credited. 48 Supra. 44 Supra 1168 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD terim earnings, citing Carter Lumber.45 However, Carter Lumber is factually distinguishable from the instant case. In Carter, the discriminatee found a regular steady job as interim employment offering a 40-hour week or more. Nevertheless, the discriminatee chose to take off fre- quently just because he felt like it. His excessive absences were under those circumstances considered a willful loss of employment. In the instant case Kuebler's and Curd's employment at Hendrickson was neither regular nor steady. A day's work depended on their shaping each morning, which they did, and on whether work was available, which sometimes it was and sometimes it was not. Frequently, because of their low position on the se- niority list, they were not assigned work. In the case of Kuebler and Curd at Hendrickson, I see no willful loss of interim employment similar to that found in the Carter case. Respondent notes the frequency of Kuebler's and Curd's absences from Hendrickson, that in the summer Curd took long weekends and in the fall went on annual hunting trips, and that both took off to campaign for union office and to attend NLRB hearings. I do not con- sider these absences as willful loss of earnings, but only legitimate absences that will be given proper consider- ation in the calculation of backpay due. Mid- West Hanger Co.,46 Sioux Falls Stock Yards'47 and Wayne Trophy Corp.48 9. Hendrickson Brothers, the primary interim employ- er of Kuebler and Curd, unlawfully terminated them on 21 April 1982. Hendrickson Bros49 The Decision and Order in Hendrickson provided a make-whole remedy in which the company was ordered to make the discrimina- tees whole for any loss of earnings they might have suf- fered as a result of its discrimination against them. How- ever, as of this writing there is no evidence that Hen- drickson has complied with or intends to comply with the Board's Order despite the fact that the court of ap- peals ordered enforcement. Hendrickson may appeal fur- ther, may succeed in its appeal, may go bankrupt, or, for whatever reason, may never comply with the Board's Order. The most equitable decision to make at this junc- ture would be to order Respondent to pay the discrimin- atees full backpay and leave any set off from Hendrick- son to future proceedings. To hold that Local 282 need pay no backpay due after 21 April 1982 on the supposi- tion that Hendrickson might make the discriminatees whole for backpay due thereafter would be to undermine the Board's Order in the underlying case herein at the expense of Kuebler and Curd, the innocents, to the bene- fit of Respondent, the wrongdoer. This I am not willing to do. If, in the future, Hendrickson is made to pay all or a part of the backpay due the discriminatees after 21 April 1982, arrangements can at that time be made for an equitable set off. As of the moment, the discriminatees have waited long enough. Respondent argues that Local 282 was in no way re- sponsible for Kuebler's and Curd's discharges by Hen- drickson Brothers in 1982. This is true. However, Re- spondent was, as found in the underlying case, responsi- ble for their discharges from Willets Point50 and, but for this action, Kuebler and Curd would never have had to obtain interim employment with Hendrickson. The case law is clear that when a discriminatee is discharged by an interim employer through no fault of his own, his backpay continues to run until he is offered reinstatement at his original job. Artim Transportation System. 51 I see no reason why this case law should not apply to the facts of the instant case. Respondent points out that it vigorously protested the discharges of Kuebler and Curd by Hendrickson and sought immediately to arbitrate on their behalf. This is true as well as the fact that the grievances filed on behalf of Kuebler and Curd were ultimately withdrawn by the Union only because of their insistence that it do so. Re- spondent argues that by refusing to permit it to grieve their discharges from Hendrickson Brothers, Kuebler and Curd prevented the Union from obtaining compensa- tion for them and thereby waived any right to demand money from the Union. The answer to Respondent's waiver argument regard- ing the Hendrickson discharge is the same as the answer to Respondent's waiver argument regarding the Willets discharge. Neither Kuebler nor Curd was obligated to have Teamsters Local 282 represent them because that Union's interest was and is clearly inimical to that of the discharges.52 Therefore, based on the Board's own ra- tionale, I find that Kuebler and Curd did not waive their right to backpay from Respondent by refusing to take their grievances to arbitration. Respondent urges that in the alternative, Local 282 should be found to be secondarily liable rather than pri- marily liable for damages caused by Hendrickson Broth- ers' misconduct. But the instant proceeding concerns backpay due Kuebler and Curd as a result of the Mascali decision. There is no allegation that Respondent is either primarily or secondarily liable for damages resulting from the Hendrickson Brothers' discharge of Kuebler and Curd. If and when there is a backpay hearing in the Hendrickson Bros. case, or if there are settlement pro- ceedings in that case resulting in an award, Respondent can pursue a course to obtain an equitable setoff. Double recovery is not contemplated.53 In the meantime, Kuebler and Curd should not be denied the backpay due them that resulted from Respondent's violation simply because they were unlawfully terminated by an interim employer. Nine years is long enough to have waited. 10. Respondent takes the position that the General Counsel's fringe benefit computations concerning the an- nuity fund, welfare fund, and pension fund are incorrect. Although Respondent concedes that its backpay obliga- tion requires it to make Kuebler and Curd whole for so F k M h C t t ran asca ons ruc ion, supra 45 227 NLRB 730 (1977). 61 193 NLRB 179 (1971) 46 221 NLRB 911 (1975), modified 550 F.2d 1101 (8th Cit. 1977). 52 Hendrickson , supra at 438 *' 236 NLRB 543 ( 1978). as Respondent's reliance on Claremont Resort Hotel & Tennis Club, 260 48 254 NLRB 881 (1981) NLRB 1088 (1982), is misplaced . The two cases are factually distinguish- 49 272 NLRB 438 (1985), enfd 762 F 2d 990 (2d Cir 1985) able FRANK MASCALI CONSTRUCTION 1169 fringe benefits lost as well as backpay, it asserts that the General Counsel's computations are wrong. Regarding the Local 282 annuity fund, Respondent agrees that under the various Local 282 contracts, em- ployers are obligated to make contributions to the fund. It concedes that the methodology used by the General Counsel in determining how much was due the annuity fund is correct, but denies the accuracy of the General Counsel's figures in two respects. First, Respondent notes that the General Counsel's gross annuity figures are based on his backpay formula to which Respondent objects. Because I do not intend to use the General Counsel's backpay formula, for reasons stated, I find Re- spondent's objection well founded. Respondent urges that if the Christman formula is used , then Christman's actual annuity fund contributions should be taken with proportional adjustments made. I agree with Respondent on this point and will follow its suggestion. Second, Re- spondent argues that although the General Counsel's computations of interim annuity payments accurately re- flect actual annuity contributions, they fail to account for interim annuity contributions that would have been made had Kuebler and Curd availed themselves of all work opportunities at Hendrickson Brothers. However, be- cause I have found that Kuebler and Curd did not sus- tain a willful loss of employment at Hendrickson Broth- ers, I reject Respondent's argument on this point. Simi- larly, I reject Respondent's argument that contributions will be made by Hendrickson Brothers pursuant to the Board Order in Hendrickson Bros. and that these should be taken into account because there is no guarantee that such contributions will, in fact , be made. The argument is premature and speculative. If and when set off ar- rangements are made, contributions to the annuity fund should also be considered at that time. Regarding the welfare fund, Respondent concedes that it is obligated to Kuebler and Curd for any benefits cov- ered by the fund that they failed to receive . Because Curd presented evidence of $54 in unpaid medical bills, Respondent concedes that it owes that amount. The General Counsel would, on the other hand, have Re- spondent pay all the contributions into the welfare fund that would have been made on behalf of the discrimina- tees had the discrimination not taken place . Respondent argues that contributions to the welfare fund would do Curd and Kuebler no good because contributions attrib- utable to work during a particular quarter vest an em- ployee with benefits only with respect to the succeeding quarter and would give Curd and Kuebler no present benefits. This is true. Respondent argues further that the welfare fund did not suffer from the loss of contributions due to Kuebler's and Curd's unlawful terminations because the same amount of contributions to the welfare fund were made by Willets Point as would have been made absent dis- crimination because the work previously done by Kuebler and Curd was thereafter done by replacements and contributions were made on behalf of the replace- ments. Respondent takes the position that if Respondent were ordered to make contributions on behalf of Kuebler and Curd, the fund would receive an unjustified windfall serving a punitive, rather than a'remedial, purpose. I find Respondent's argument persuasive and shall recommend that Respondent only be liable for the amount reflected by the medical bills for which it concedes liability. This is the standard-type remedy . Seligman & Associates.54 Regarding the Local 282 pension trust fund contribu- tions, Respondent concedes that it is liable for such pay- ments, but only to the extent necessary to make Kuebler and Curd whole. Contrary to Respondent, the General Counsel and the Charging Parties would have Respond- ent contribute payments to the pension fund over and above the amount necessary to give each of the discri- minatees a full year's credit. They would have me re- quire Respondent to pay the proper contractual sum into the pension fund for each hour that Kuebler and Curd would have worked but for the discrimination against them. The argument is that Kuebler and Curd and other beneficiaries of the pension system have a vested interest in the pension fund and in its being as solvent and as strong as it would have been but for the discrimination. In dealing with this question in Acme Wire Works,55 the administrative law judge stated: Morever, the right of an employee to a pension ben- efit also implies, of necessity , the right to a viable pension fund. As the fund is maintained on certain actuarial considerations which include an estimate of the average contributions made on behalf of em- ployees who are high and low earners, it seems clear that the fund would soon be depleted if em- ployers were permitted to contribute the minimum amounts required to enable employees to obtain an additional year of credited service and not the amounts required in the collective-bargaining agree- ment. While it is no doubt true that the pension fund would not likely be jeopardized by the failure to make the full contributions on behalf of this one employee, it could reasonably be surmised that, in the aggregate, if employers who contribute to the fund could avoid full liability by discriminating against employees, this would serve, to some extent, as an inducement to violate the law . FYnishline In- dustries, Inc. [181 NLRB 756, 760 (1970)]. It also might lead, in the aggregate, to an unwarranted de- pletion of the Fund's assets which would affect not only [the discriminatee's] ability to collect his pen- sion benefits but also every other covered employ- ee's ability to obtain such benefits. [251 NLRB at 1571.] I shall follow the law of Acme Wire. The specific amounts that Respondent owes the Pension Fund on behalf of Kuebler and Curd will be treated infra. 11. Respondent argues that the backpay claim is so large as to be punitive and payment of the sum would endanger the Union's continued viability . I have already determined not to use the Region's formula, not because it results in a claim that is too large or because the pay- ment of such a sum would impair the financial stability of Local 282. Indeed, such considerations are irrelevant, as 273 NLRB 1216 (1984). 55 251 NLRB 1567, 1571 (1980) 1170 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD for the purpose of a backpay proceeding is to determine the amount due the discriminatees, not to determine Re- spondent's ability to pay. Teamsters Local 164;56 Victoria Medical Group.57 I have found the Region's formula in- equitable and for that reason will not recommend its use. The size of the award is not the controlling factor. II. THE CHRISTMAN FORMULA The Christman formula takes Willets' employee, Christman, as a representative employee, and Kuebler and Curd are credited with his earnings during the back- pay period. I find Christman a good choice for this pur- pose for reasons discussed supra. Respondent would adjust these earnings downward by approximately 19 percent because Kuebler's and Curd's earnings both before their discharge and after their reinstatement were considerably below those of Christman. I find the adjust- ment justified. On these findings and conclusions I issue the following recommended" ORDER The Respondent, Local 282, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, AFL-CIO, its officers, agents, and representa- tives, shall pay to John Kuebler and Charles Curd, in ac- cordance with the computations contained in the revised backpay specification attached as Appendices A and B, the sums of $62,206 and $58,805, respectively, plus inter- est as provided in Florida Steel Corp., 231 NLRB 651 (1977), less tax withholdings required by Federal and state laws. Similarly, Respondent shall pay into the Local 282 annuity fund on behalf of John Kuebler and Charles Curd, in accordance with the computations con- tained in the revised backpay specification attached as Appendices C and D, the sums of $3,605.58 and $3,524.79, respectively, plus interest as provided in the cases cited. Further, Respondent shall pay into the Local 282 pension trust fund on behalf of John Kuebler and Charles Curd, in accordance with the computations con- tained in Appendices E and F, the sums of $8846 and $8271, respectively, with interest as provided in the cited cases. Finally, Respondent shall pay Charles Curd $54 for unpaid medical bills owed to him under the provi- sions of the welfare fund with interest as provided for under the cases cited supra. APPENDIX A.-NET BACKPAY-KUEBLER Year/Qtr. 25 Jul-21 Oct 773 Gross Interim Backpayt Earnings2 $04 Net Backpay $05 6$ 305.00 56 Supra 57 274 NLRB 1006 (1985) 58 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 APPENDIX A.-NET BACKPAY-KUEBLER- Continued Year/Qtr. Gross Backpayt Interim Earnings2 Net Backpay 1977/4 0 1,236.00 0 1978/1 1,268.00 746.00 522.00 1978/2 3,930.00 1,001.00 2,929.00 1978/3 1,106.00 3,026.00 0 1978/4 5,101.00 2,405.00 2,696.00 1979/1 72,788.00 391.00 2,397.00 1979/2 5,596.00 5,013.00 583.00 1979/3 5,872.00 5,453.00 419.00 1979/4 5,826.00 5,694.00 132.00 1980/1 4,319.00 0 4,319.00 1980/2 5,651.00 3,611.00 2,040.00 1980/3 6,707.00 5,949.00 758.00 1980/4 6,841.00 3,857.00 2,984.00 1981/1 2,460.00 83.00 2,377.00 1981/2 6,324.00 1,831.00 4,493.00 1981/3 3,298.00 5,069.00 0 1981/4 6,086.00 3,259.00 2,827.00 1982/1 5,420.00 176.00 5,244.00 1982/2 6,440.00 1,320.00 5,120.00 1982/3 1,070.00 0 1,070.00 1982/4 7,685.00 0 7,685.00 1983/1 5,259.00 0 5,259.00 1983/2 8,047.00 0 8,047.00 Total net backpay $62,206.00 i Figures based on Tables D and I of Respondent's brief and exhibits cited as sources therein. 2 Figures based on actual mterim earnings as reflected in App. C of the amended backpay specification. 3 Period computed on a daily basis. * Gross backpay for this period is not in dispute. 5 Interim earnings- One day--25 August--cancels out gross backpay for that day. 6 Net backpay is the sum of total net backpay reflected in App G and App J of the amended backpay specification. 7 Includes estimated racetrack earnings. APPENDIX B.-NET BACKPAY-CURD Yr./Qtr. Gross Interim Backpay' Earnings2 Net Backpay 25 Jul-21 Oct 773 $04 $05 6$1,562.00 1977/4 65900 1,23600 0 1978/1 1,268.00 1,348.00 0 1978/2 3,930 00 978.00 2952.00 1978/3 1106.00 3,220.00 0 1978/4 5,101.00 2,941.00 2,160.00 1979/1 72,788.00 1,039.00 1,749.00 1979/2 5,596.00 5,456.00 140.00 1979/3 5,87200 4,68000 1,192.00 1979/4 5,826.00 4,587.00 1,239.00 1980/1 4,319.00 231.00 4,088.00 1980/2 5,651.00 3,869.00 1,782.00 1980/3 6,707 00 5,462.00 1,245.00 1980/4 6,841.00 4,424.00 2,417.00 1981/1 2,460.00 0 2,460.00 1981/2 6,324.00 2,329.00 3,995.00 FRANK MASCALI CONSTRUCTION 1171 APPENDIX B.-NET BACKPAY-CURD-Continued Yr. /Qtr. Gross Interim Backpay' Earnings' Net Backpay 1981/3 3,298.00 4,859.00 0 1981/4 6,086.00 3,075 .00 3,011.00 1982/1 5,420.00 575.00 4,845.00 1982/2 6,440.00 1,741.00 4,699.00 1982/3 1,070.00 991.00 79.00 1982/4 7,685.00 677.00 7,008.00 1983/1 5,259.00 857 .00 4,402.00 1983/2 8,047.00 267.00 7,780.00 Total net backpay $58,805.00 1 Figures based on Tables D and I of Respondent's brief and exhibits cited as sources therein. 2 Figures based On actual interim earnings as reflected in App. E of the amended backpay specification. 3 Period computed on a daily basis. 4 Gross backpay for this period is not in dispute. S Interim earnings: Three days-27 July, 8 and 16 August-- cancels out virtually all backpay for those day. 6 Net backpaylis the sum of total net backpay reflected in App. A and App. L of the amended backpay specification. 7 Includes estimated racetrack earnings. APPENDIX C.-CONTRIBUTIONS TO ANNUITY FUND-KUEBLER Yr. /Qtr. Christ- Adjusted Interim Net Due man Annuity Annuity 25 Jul-21 Oct 77 1977/4 1978/1 ? 7 0 18.80 1978/2 ? ? $10.40 228.00 1978/3 214. 55 $11.80 431.50 0 1978/4 59.60 48.28 25.40 22.88 1979/1 30.85 25.00 4.05 20.95 1979/2 63.75 51.65 49.60 2.05 1979/3 62.55 50.68 53.70 0 1979/4 63.40 51.36 55.75 0 1980/1 147.30 119.32 0 119.32 1980/2 187.20 151.64 102.60 49.04 1980/3 269.60 218.38 219.40 0 1980/4 288.40 233.61 125.00 108.61 1981/ 1 108.60 87.97 0 87.97 1981/2 266.00 215 .46 62.80 147.26 1981/3 349. 50 283 . 10 482.00 0 1981/4 621 .50 503.42 286.50 216.92 1982/1 537.00 434.97 8.00 426.97 APPENDIX C.-CONTRIBUTIONS TO ANNUITY FUND-KUEBLER-Continued Yr. /Qtr. Christ- Adjusted Interim Net Due man Annuity Annuity 1982/2 659.00 533.79 129.50 404.29 1982/3 184.00 149.04 0 149.04 1982/4 1092.80 885. 17 0 885.17 1983/1 710.80 575.75 0 575.75 1983/2 1159.20 938.96 586.40 352.56 Total annuity $3,605.58 E AApdp. D of backpay specification. Figure not disputed. 3 Figures obtained from R. Exh. 138. 4 Figures obtained from R. Exh. 141. APPENDIX D.-CONTRIBUTIONS TO ANNUITY FUND-CURD YR./QTR. Christ- Adjusted Interim t D Ne ue man Annuity Annuity 7/25-10/2177 1977/4 1978/1 ? ? $1.60 113.60 1978/2 ? ? 9.60 236.80 1978/3 2$14.55 $11.80 433.70 0 1978/4 59.60 48.28 31 . 10 17.18 1979/ 1 30.85 25.00 4.00 21.00 1979/2 63.75 51.65 54.60 0 1979/3 62.55 50.68 45.55 5.13 1979/4 63.40 51.36 41.35 10.01 1980/1 147.30 119.32 3.15 116.17 1980/2 187.20 151.64 109.05 42.59 1980/3 269.60 218. 38 201 .48 16.58 1980/4 288.40 233.61 165 .60 68.01 1981/1 108.60 87.97 0 87.97 1981/ 1 266.00 215.46 85.20 130.26 1981/3 349.50 283.10 452.50 0 1981/4 621.50 503.42 260.50 242.92 1982/1 537.00 434.97 24.00 410.97 1982/2 659.00 533.79 145.50 388.29 1982/3 184.00 149.04 0 149.04 1982/4 1092.80 885. 17 0 885.17 1983/1 710.80 575.75 0 575.75 1983/2 1159.20 938.96 621.60 317.36 Total annuity $3,534.80 1 App. F of backpay specification. Figure not disputed. 2 Ibid. 2 Figures obtained from R. Exh. 138. 4 Figures obtained from R. Exh. 142. APPENDIX E.-PENSION FUND-KUEBLER Yr. /Qtr. Christman's Kuebler's' Adjusted Hours Hours Less Interim Hours Time Pension Rate Total Amount Due 7/25-10/21/77 64 52 28 44x1. 8525 $82.00 1977/4 24 19 120 - 0 - 1978/1 128 104 -0- 1041.8525 193.00 1978/2 392 318 104 214x1.8525 396.00 1978/3 104 84 304 -0- 1172 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD APPENDIX E.-PENSION FUND-KUEBLER-Continued Yr./Qtr. Christman 's Hours Kuebler's' Adjusted Hours Less Interim Hours Time Pension Rate Total Amount Due 1978/4 464 376 232 144x2.2525 324.00 1979/1 128 104 40 64x2.2525 144.00 1979/2 488 395 464 - 0 - 1979/3 520 421 504 - 0 - 1979/4 464 376 520 - 0 - 1980/1 461 337 -0- 337x2.6025 877.00 1980/2 512 415 328 87x2 .6065 226.00 1980/3 520 421 512 - 0 - 1980/4 424 343 304 39x2.6025 101.00 1981/1 240 194 8 186x2.8525 531.00 1981/2 520 421 160 261x2.8525 745.00 1981/3 304 246 432 -0- - 0 - 1981/4 432 350 256 94x2.8525 268.00 1982/1 424 343 16 327x2.8525 933.00 1982/2 496 402 61 341x2.8525 973.00 1982/3 104 84 - 0- 84x2.8525 240.00 1982/4 496 402 - 0- 402x2 .8525 1147.00 1983/1 360 292 -0- 292x2.8525 833.00 1983/2 360 292 -0- 292x2.8525 833.00 $8,846.00 ' Christman's hours x .90 -- 10 percent as per Christman formula. 2 G.C. Exh. 1 (n), App. K. APPENDIX F.-PENSION FUND-CURD Yr./Qtr. Christman 's Hours Curd's' Adjusted Hours Less Interim Hours Time Pension Rate Total Amount Due 7/25-10/21/77 64 52 - 0 - 52x1.8525 $96.00 1977/4 24 19 120 - 0 - 1978/1 128 104 16 88x1 .8525 16300 1978/2 392 318 96 222x 1.8525 411.00 1978/3 104 84 328 - 0 - 1978/4 464 376 288 88x2 2525 198.00 1979/ 1 128 104 48 56x2 .2525 126.00 1979/2 488 395 512 - 0 - 1979/3 520 421 416 5x2.6025 13.00 1979/4 464 376 368 8x2 .6025 2100 1980/1 461 337 8 329x2.6025 856.00 1980/2 512 415 336 79x2 .6065 206.00 1980/3 520 421 464 - 0 1980/4 424 343 384 - 0 - 1981/ 1 240 194 - 0 - 194x2.8525 553.00 1981/2 520 421 192 229x2.8525 653.00 1981/3 304 246 408 - 0 - 1981/4 432 350 256 94x2.8525 268.00 1982/1 424 343 32 311x2.8525 887.00 1982/2 496 402 133 269x2.8525 767.00 1982/3 104 84 - 0 - 84x2.8525 240.00 1982/4 496 402 - 0 - 402x2.8525 114700 1983/1 360 292 - 0 - 292x2.8525 83300 1983/2 360 292 - 0 - 292x2.8525 833.00 $8,271.00 ' Christman's hours x .90-10 percent as per Christman formula.