Dmr Corp. And Harrill Electrical Contractors, Inc.

DMR CORP. 19 DMR Corp. and Harrill Electrical Contractors, Inc. and IBEW Local 59, IBEW Local 116, Interna- tional Brotherhood of Electrical Workers. Case 16-CA-8530 June 9, 1988 SECOND SUPPLEMENTAL DECISION AND ORDER By MEMBERS JOHANSEN, BABSON, AND CRACRAFT On February 9, 1988, Administrative Law Judge Philip P. McLeod issued the attached decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge' s rulings, findings,' and conclusions and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, DMR Corp., Dallas, Texas, and Harrill Electrical Con- tractors, Inc., Mesquite, Texas, its officers, agents, successors, and assigns, shall take the action set forth in the Order. order to avoid dealing with the bargaining representa- tives of Harrill's employees; and that employees of the two entities constitute a single employerwide bargaining unit. To remedy this unfair labor practice, the Board di- rected Respondent to make whole individuals who suf- fered because of the failure to honor the collective-bar- gaining agreements with the Union. This decision was af- firmed in part and remanded in part by the U.S. Court of Appeals for the Fifth Circuit, in 699 F.2d 788 (5th Cir. 1983). Following this remand, on 13 February 1985, the Board issued a Supplemental Decision and Order again finding that employees of DMR Corp. and Harrill Elec- trical Contractors, Inc. constitute a single employerwide bargaining unit and ordering that employees be made whole as provided for in its earlier decision. The Board's decision on remand was affirmed and enforced by the U.S. Court of Appeals for the Fifth Circuit in 795 F.2d 472 (5th Cir. 1986) (DMR II). The parties being unable to agree on the amount of backpay due under the terms of the Board's Supplemental Decision and Order, the Re- gional Director for Region 16 issued a backpay specifica- tion dated 16 June 1987. Respondent filed an answer ad- mitting certain allegations and denying others. A hearing was held before me on 20 August 1987 in Fort Worth, Texas. All parties were afforded full oppor- tunity to be heard, to examine and cross-examine wit- nesses, and to introduce relevant evidence. At the hear- ing, counsel for the General Counsel amended the back- pay specification in various particulars, which are dis- cussed in greater detail below. Following the close of the trial, all parties filed timely briefs with me which have been duly considered.' FINDINGS OF FACT 1 We agree with the judge that the Fifth Circuit specifically rejected the Respondent's affirmative defense NLRB v DMR Corp., 795 F 2d 472, 477-478 (5th Cir. 1986) The Respondent's reliance on the Fifth Cir- cuit's fn 6 is misplaced. In leaving to compliance the issue of whether DMR employees suffered any harm by the Respondent 's refusal to apply the Unions' contracts, the court was merely restating the general rule that issues relevant to determining the amount of backpay are left to the compliance stage of the proceeding This standard compliance language does not open the door for the Respondent to relitigate issues already re- solved against it Edward B. Valverde, Esq., for the General Counsel. George A. Harper, Esq., of Ennis, Texas, for the Respond- ent. G. William Baab, Esq. (Mullinax, Wells, Baab & Clout- man, P.C.), of Dallas, Texas, for the Charging Parties. DECISION STATEMENT OF THE CASE PHILIP P. MCLEOD, Administrative Law Judge. On 30 September 1981, the National Labor Relations Board issued a Decision and Order' finding, inter alia, that DMR Corp. and Harrill Electrical Contractors, Inc. are a single employer within the meaning of the National Labor Relations Act (the Act); that DMR was created in Through the backpay specification, Respondent's answer, and stipulations entered into by the parties at the hearing herein, it has been established (1) that gross backpay computations were computed by multiplying the number of hours worked by each employee with the applicable rate of pay based on the appropriate collec- tive-bargaining agreement; (2) that net backpay computa- tions were derived by subtracting interim earnings (which were the actual amounts paid each discriminatee by calendar quarter, as taken from employer payroll records) from the gross backpay computations; and (3) that the fringe benefits due (including health and welfare, annuity plan/pension, National Electrical Benefit Plan, apprenticeship and training, and national electrical indus- try fund) were as stated in the backpay specification as amended and were based on applicable rates in the ap- propriate collective-bargaining agreement. Two individ- uals, Bill Lance and Donald Ray Smith, were stipulated to be supervisors within the meaning of the Act and by agreement were, therefore, removed from the backpay specification because of their supervisory status. Re- spondent's challenge to the inclusion of other named in- 1 258 NLRB 1063 (1981) 8 Counsel for the General Counsel's unopposed motion to correct the transcript is granted 289 NLRB No. 2 20 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD dividuals was withdrawn.3 The only issue which remains for consideration is Respondent's affirmative defense. Respondent's answer to the backpay specification sets forth an affirmative defense, which is elaborated on and explained in greater detail in its amended answer dated 14 July 1987. The amended answer states: Respondent denies that any backpay is due the indi- viduals listed in the Specification. The Specification attempts to apply the collective-bargaining agree- ments negotiated between Local 59 and Local 116 and Harrill Electrical Contractors to projects con- structed by employees of DMR Corporation. In bidding on those projects, DMR utilized a wage computation significantly less than that called for by the collective-bargaining agreement. Moreover, each job specification had a published wage rates [sic] for electricians which was significantly less than the collective-bargaining agreement's rates. This published rate was utilized by DMR as well as unsuccessful bidders to compute projected labor costs. Had DMR used the labor rates set forth in the collective-bargaining agreements, DMR's bid would have vastly exceeded the bid of other unsuc- cessful electrical contractors. DMR would not have obtained these projects if it had submitted a bid based on those wage rates agreed to by Harrill Electrical. Accordingly, a retroactive application of the collective bargaining wage rates to these projects worked by DMR would grant employees rights and awards they would not have been enti- tled to in the absence of any violation. Therefore, the imposition of the backpay called for in the Specification would be punitive to Respondent and is therefore unenforceable. My reading of the Board's decisions in this case and even more so the decisions of the U.S. Court of Appeals for the Fifth Circuit leads me to the conclusion that Re- spondent's position before me was specifically considered and rejected by the court, and that Respondent is pre- cluded from raising that position again before me. Never- theless, Respondent was given the opportunity to fully explain its position and to place into the record all of its available evidence on this point so that Respondent's po- sition may be considered in full on appeal. Respondent was also given the opportunity to file a posthearing brief, which Respondent did.4 In the decision of the Fifth Circuit enforcing in part and remanding in part the Board's initial decision in this case, the circuit court stated that its remand was for "a new hearing" on the appropriate unit question. After fur- ther hearing was held to receive evidence on this issue, a Respondent had contended that Riley F Barber, Dennis Allen Cren- shaw, David Wayne Davis, Lawrence Robert Pinzel, John Caleb Ryan III, and Rusty Leroy Sargent were laborers/helpers and not covered by the collective-bargaining agreements between Harril and the Unions Re- spondent had also alleged that David L Keller, Todd A Liverman, Donald Kay Shankles, and Charles L McFerrin were supervisors within the meaning of the Act and therefore not covered by the agreements At the hearing, however, Respondent withdrew these contentions 4 Counsel for the General Counsel's motion to strike Respondent's brief is denied the administrative law judge issued a supplemental deci- sion which was affirmed by the Board. The Board's deci- sion, in turn, was wholly enforced by the Fifth Circuit in DMR II. In its posthearing brief, Respondent argues: At the hearing on the (unit) issue, Respondent took the unfortunate position that, notwithstanding the instruction from the Fifth Circuit, the Board was precluded from having a second evidentiary hearing. Based on this assertion that the hearing could not be lawfully held, Respondent refused to participate. In hindsight, it seems clear that the sharp differ- ence between the public contract work done by some DMR employees with the other commercial electrical labor performed by both DMR and Har- rill employees is evidence which should have been presented by Respondent at the (unit) hearing... . Respondent's failure to present . .. available evi- dence resulted in the Board's finding that DMR and Harrill constituted a single bargaining unit. [T]his determination . . . specified that individuals who suffered harm be "made whole." It did not mandate automatic application of Harrill's "inside wireman" agreement to all of DMR employees where Re- spondent could demonstrate that such an award would constitute a windfall to those employees. In DMR II, the Fifth Circuit specifically considered the Board's remedy. The circuit noted that "to remedy Respondent's violations of the NLRA, the Board or- dered Harrill and DMR to . . . make their employees whole for any losses suffered by reason of their failure to honor the collective-bargaining agreements with the Unions." The circuit then stated: Respondents claim that the Board erred in order- ing make-whole relief. This claim is wholly without merit. The Board may properly prevent the Respondent from gaining an advantage by their unlawful con- duct. An order requiring that the employees be made whole for the unlawful repudiation of a col- lective-bargaining agreement serves this end. [Cita- tions omitted.] Similarly, mere prospective application of the contracts would permit the company to reap an unjust advantage from its unlawful conduct and would not adequately redress the employees' losses. The Board's order, "which deprives an employer of advantages accruing from a particular method of subverting the Act, is a permissible method of effec- tuating the statutory policy." [Citation omitted.] Reduced to its simpliest form, Respondent's argument before me is that if Respondent had not committed the unfair labor practices it did, it would not have received the bids its did, and therefore employees would not have had the work they did. Respondent argues that as a DMR CORP. result, to apply the terms of the appropriate collective- bargaining agreement to that work is an unjust "wind- fall" to employees. This is the very argument that was specifically rejected by the Fifth Circuit in affirming the Board's remedy. At one point during the hearing before me, it appeared that Respondent was not challenging the appropriateness of the relief ordered but rather which collective-bargain- ing agreement applied to the work that had been per- formed by employees and was the subject of the make- whole remedy. I noted that this could well be an appro- priate issue to raise in a backpay proceeding . Respond- ent's counsel, however, assured me and counsel for the General Counsel that Respondent was not contending the wrong collective-bargaining agreement had been ap- plied in computing backpay within the specification. Rather, as stated in its affirmative defense , Respondent was challenging the appropriateness of the backpay award itself. As Respondent's case was developed before me, it ap- peared Respondents were essentially attempting to estab- lish that Harrill Electric and DMR were operating in two, and perhaps more than two, different economic cli- mates. I noted to Respondent that the Fifth Circuit spe- cifically discussed Peter Kiewit Sons' Co., 231 NLRB 76 (1977), enf. granted 595 F.2d 844 (D.C. Cir. 1979), in- volving double-breasted operations where the issue of multiple economic climates is a crucial inquiry. The court specifically adopted the Board's finding that this case is not a double-breasted-operation case where the respondent was dealing in two different economic cli- mates. Respondent responded by stating, "It's evidence which would have been very appropriate to have pre- sented to the Board on the remand of the appropriate- ness of the single bargaining unit and it was not. But I also believe, of course, the Respondent's position that the evidence is also relevant to the appropriate make-whole remedy and that's the purpose of the introduction." De- spite Respondent's assurance that it was not attempting to relitigate an issue that had already been decided against it, in its posthearing brief filed with me, Respond- ent argues, "This finding of liability should not now pre- clude Respondent from maintaining in the damage phase of this proceeding that even if it was liable, its actions did not harm those DMR employees who worked in a vastly different economic climate." It is clear to me that Respondent is indeed attempting to relitigate that which has already been decided against it, and I find that Re- 21 spondent is not free to relitigate those issues at the com- pliance stage of this proceeding. Accordingly, I reject Respondent's affirmative defense, and I find that backpay is due the discriminatees in the amount claimed by the General Counsel as amended at the hearing. CONCLUSIONS OF LAW 1. The gross backpay formula used by counsel for the General Counsel is reasonable and appropriate. 2. The net backpay amounts set forth by counsel for the General Counsel in the backpay specification, as amended at the hearing, are accurate and correct. 3. The affirmative defense of Respondent DMR Corp. and Harrill Electrical Contractors , Inc. has been specifi- cally considered and rejected by the Fifth Circuit in en- forcing the Board's Order in this case , is without merit, and may not be appropriately raised again at this stage in the proceeding. On these findings of fact and conclusions of law and on the entire record , I issue the following recommend- ed5 ORDER The Respondent, DMR Corp ., Dallas, Texas, and Har- rill Electrical Contractors, Inc., Mesquite, Texas, its offi- cers, agents, successors, and assigns, shall satisfy its obli- gation to make whole employees by paying them the net backpay amounts set forth in the backpay specification, as amended at the hearing, plus interest thereon accrued to the date of payment computed in the manner pre- scribed in New Horizons for the Retarded, 283 NLRB 1173 (1987),8 minus any tax withholdings required by Federal and state laws, plus amounts due on behalf of such employees for fringe benefits as set forth in the backpay specification, as amended at the hearing, plus in- terest thereon to be computed in the manner prescribed in Merryweather Optical Co., 240 NLRB 1213, 1216 fn. 7 (1979). s 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- t. 6 Under New Horizons, interest is computed at the "short-term Federal rate" for the underpayment of taxes as set out in the 1986 amendment to 26 U.S.C. § 6621 . Interest accrued before 1 January 1987 (the effective date of the amendment) shall be computed as in Florida Steel Corp., 231 NLRB 651 (1977).