C S Mccrossan, Inc.

414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C S McCrossan, Incorporated and Thomas J Haak. Case 18-CA-7339 28 September 1984 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS ZIMMERMAN AND HUNTER On 8 February 1983, the National Labor Rela- tions Board issued its Decision and Order in the above-entitled proceeding 1 finding, inter aim, that the Respondent violated Section 8(a)(3) and (1) of the Act by unlawfully laying off employee Thomas J Haak The Board ordered that the discriminatee be made whole for any loss of earnings suffered by reason of the discrimination practiced against him A dispute having arisen over the amount of backpay due the discnmmatee and pursuant to a backpay specification and appropriate notice issued by the Regional Director for Region 18, a hearing thereafter was held before Administrative Law Judge Elbert D Gadsden for the purpose of deter- mining the amount of backpay due the discrimina- tee On 29 May 1984, the judge issued the attached supplemental decision in this proceeding Thereaf- ter, the Respondent filed exceptions and a support- ing brief and the General Counsel filed an answer- ing brief to the Respondent's exceptions The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered the supplemental deci- sion and the record in light of the exceptions and briefs and has decided to affirm the judge's rulings, 1 266 NLRB 115 Chairman Dotson did not participate in that pro ceeding 2 The Respondent has excepted to some of the judge s credibility find ings The Board's established policy is not to overrule an administrative law judge's credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect Standard Dry Wall Prvducts, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cif 1951) We have carefully examined the record and find no basis for reversing the findings The Respondent has requested oral argument The request is denied as the record, exceptions, and bnefs adequately present the issues and the positions of the parties In adopting the judge s finding regarding the selection of employee Erdahl to represent the discnnunatee's backpay, we note that employee Erdahl was not chosen solely because he had worked on the 1-94 Project for a period longer than any other crane operator Erdahl was selected because he began working on the project at approximately the same time as the discnminatee was regularly employed and was the only crane op erator who continued to work throughout the backpay penod Further, the Respondent failed to show that Erdahl was not an appropriate selec- tion to determine backpay owing the discnminatee In reviewing the backpay specification, we note that the amount due the Central Pension Fund for the third quarter of 1981 should be correct- ed to $72, thus bringing the total amount due for the backpay period to $751 We correct the backpay specification accordingly findings,2 and conclusions and to adopt the recom- mended Order 3 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, C S McCrossan, Incorporated, Osseo, Minnesota, its of- ficers, agents, successors, and assigns, shall take the action set forth in the Order 3 In adopting the judge's decision, we do not rely on his charactenza non that because Haak's tenure on the City Center project was of short duration and he did not receive the same amount of income as he would have received on the 1-94 Project, the Board left the question as to whether the difference in jobsites resulted in Haak having been reinstated to a job that was an inadequate reinstatement" We note that the Board simply left the issue of whether the reinstatement was adequate to compliance 266 NLRB 115, fn 2 In addition, we note that the judge made several Inadvertent factual errors The judge found that had Haak been reinstated on the 1-94 Project, he would have enjoyed continuous employment from the date of the Board's Order to November 1983 We note that although the 1-94 Project continued through the spring of 1983, there were no crane opera tor jobs available at the project site after November 1982 Also, the judge found that Haak had been an employee of the Re spondent from 15 to 30 years We note that the discnmmatee had been employed by the Respondent for 20 years These inadvertent errors do not affect the result SUPPLEMENTAL DECISION STATEMENT OF THE CASE ELBERT D GADSDEN, Administrative Law Judge Pursuant to a February 8, 1983 Decision and Order of the National Labor Relations Board in Case 18-CA- 7339, directing C S McCrossan, Incorporated (the Re- spondent), to make whole a discharged employee for losses occasioned by the Respondent's unfair labor prac- tices in violation of Section 8(a)(1) and (3) of the Act, and a controversy having arisen over the amount of backpay due under the terms of the Board's Order, the Regional Director of the National Labor Relations Board for Region 18 issued a backpay specification and notice of hearing on September 29, 1983, alleging the amount of backpay due under the Board's Order The Respondent filed an answer on September 29, 1983, setting forth a general denial and affirmatively al- leging that the discriminatee, Thomas J Haak, was rein- stated by Respondent on May 18, 1981, and that the proper backpay period commences on May 5, 1981, and ends on May 15, 1981, that the earnings due discrimina- tee is $962 56, with contributions having been made to the health, welfare, and apprenticeship funds, together with interest, and less withholding for state and Federal taxes, and that the discnminatee was successively re- placed on the job by two crane operators, respectively, and that said individual operators earnings are the appro- priate measure of earnings that the discriminatee would have received, if the backpay period is deemed to have extended beyond May 19, 1981, as the Charging Party alleges 272 NLRB No 61 415 The hearing in the above matter was held before me in Minneapolis, Minnesota, on January 18, 1984 Briefs have been received from counsel for the General Counsel and counsel for the Respondent, respectively, which have been carefully considered On the entire record in this case and from my observa- tion of the witnesses, I make the following FINDINGS OF FACT I BACKPAY SPECIFICATION On February 8, 1983, the Board issued a Decision and Order finding that Respondent violated Section 8(a)(1) and (3) of the Act, by discharging employee Thomas Haak An unresolved residual issue in the proceeding was whether Respondent fully reinstated Haak when it reemployed him on a project other than the 1-94 project from which he had been discharged May 5, 1981 The parties agreed by stipulation that there is a persisting dis- pute between them about the amount of bakckpay to which Haak is entitled, and that the issue should be sub- mitted for a hearing in a backpay compliance proceed- ing There is no dispute that Haak, who was discharged by Respondent on May 5, 1981, from the 1-94 project was, in fact, reinstated by Respondent on the City Center project on May 18, 1981 However, because Haak's tenure on the City Center project was of short duration and he did not receive the same amount of income as he would have received on the 1-94 project, the Board left the question as to whether the difference in jobsites (City Center project versus 1-94 project) resulted in Haak having been reinstated to a job that was not only differ- ent but not the equivalent of the 1-94 job and, therefore, constituted an inadequate reinstatement of Haak Re- spondent contends the backpay period began on May 6, 1981, and ended on May 18, 1981, and the Charging Party contends the backpay period begins on May 6, 1981, and ends on September 6, 1982, because Haak's employment on several jobsites, other than 1-94, were in- terrupted several times and were for short periods of time, ranging from 2 to 3 months In preparing the backpay specification for Thomas Haak, James Miller, compliance supervisor for Region 18, testified that he looked at earnings from crane opera- tor Vernon D Erdahl's timesheets for daily crane opera- tors, printouts of card hours of employees, the payroll register, pension reports, which showed hours reported by Respondent for crane operators, and employee Master File Listings He said he selected crane operator Erdahl as a representative employee of Haak because Erdahl was on the 1-94 project longer than any other crane op- erator Haak himself has been in the Respondent's employ, with intermittent breaks in employment, for 15 to 30 years Compliance Officer Miller further testified that the Board generally utilizes one of four formulas to determine backpay and he described those formulas as follows (1) Average earnings of backpay claimant during a reasonable period of time prior to the backpay pay period (2) Average hours of work of backpay claimant during a reasonable period of time prior to the backpay period (3) Average earnings or hours of work of a re- placement employee (4) Average hours of earnings of a representative employee or a group of employees Mr Miller said he selected the fourth formula as most appropriate in Haak's case because the first two formulas could not apply because Haak had been employed on projects other than the 1-94 project during a representa- tive period, prior to the backpay period, and that no spe- cific employee had been particularly hired to replace him Consequently, he testified, the third formula was not feasible Thus, he utilized the average earnings of Vernon Erdahl as a representative employee and accord- ingly prepared the following backpay specification Qtr Erdahl's Gross Backpay Hank's Net Interim Earnings Haak's Net Backpay Health & Pension Fund Welfare Contribution to Contributions to Central Pension Union Fund Apprenticeship Contribution to Union 1981 2 $4,853 $4,646 $ 207 $ 37 $ 23 $ 2 - 3 7,097 5,642 1,455 112 71 6 4 5,873 3,667 3,206 284 209 15 1982 1 5,924 0 5,924 418 308 22 2 6,957 5,453 1,504 67 53 4 3 7,829 6,267 1,562 113 86 5 Total $13,858* $1,031 $750 $54 * Net backpay figure does not include interest In its answer to the backpay specification, Respondent does not dispute the appropriateness of the formula ap- plied in the backpay specification but contends that crane operator Erdahl was not a representative employee of Haak, because he had been replaced successively by op- erators Green and Ryan, respectively, whose earnings are an appropriate measure of Haak's earnings, if the backpay period extends beyond his date of reinstatement (May 18, 1981) Because Respondent's answer to the backpay specfication did not specifically plead in detail 416 or explain its contention as required by Section 102 54(b) and (c) of the Board's Rules and Regulations, counsel for the General Counsel's objection to Respondent introduc- ing any evidence in support of its contention was sus- tained Three States Trucking, 252 NLRB 1088 (1980), and Airport Service Lines, 231 NLRB 1272 (1977) Section 102 54(b) provides in part as follows if the respondent disputes either the accuracy of the figures in the specification or the premises on which they are based, he shall specifically state the basis for his disagreement, setting forth in detail his position as to the applicable premises and furnishing the appropriate supporting figures Rule 102 54(c) provides as follows (c) Effect of failure to answer or to plead specifical- ly and in detail to the specification —If the respond- ent fails to file any answer to the specification within the time prescribed by this section, the Board may, either with or without taking evidence in support of the allegations of the specification and without notice to the respondent, find the specifica- tion to be true and enter such order as may be ap- propriate If the respondent files an answer to the specification in the manner required by subsec- tion (b) of this section, and the failure so to deny is not adequately explained, such allegation shall be deemed to be admitted to be true, and may be so found by the Board without the taking of evidence sup- porting such allegation, and the respondent shall be precluded from introducing any evidence controverting said allegation [Emphasis added ] Even though counsel for the General Counsel objected to Respondent's attempts to examine witnesses about matters which it did not specifically plead or explain in its answer with affirmative defenses to the backpay spec- ification, I nevertheless permitted Respondent to examine Compliance Officer Miller and other witnesses about the comparative representative-employee status of Erdahl, Green, and Ryan Respondent was permitted to engage in such examination in order to afford it an opportunity to establish its position on the record Respondent was also allowed to make offers of proof with respect there- to In this regard, Compliance Officer Miller testified that he requested backpay information from David Burt- ness, treasurer and financial officer for the Respondent, and Mr Thomas J Rooney, legal counsel for Respond- ent He visited them on two occasions and talked with Rooney on several occasions by telephone, and both Rooney and Burtness visited the Regional Office and met with Miller and the Acting Regional Director prior to the issuance of the backpay specification herein In the course of his visit to Respondent's office, Miller said he was furnished a list of names of crane operators on the 1-94 project as follows 1 Stanley Anderson 2 Lee Bakken 3 Vernon Erdahl 4 Roy Manthey, working foreman 5 Dale Baysinger 6 Greg Anderson, oiler 7 Jim Otto, oiler and operatoi of certain equipment 8 Jim Ryan, operator 9 Terry Green, operator Compliance officer Miller further testified that he did not know the total number of hours any of the above- named operators worked on the 1-94 project because Burtness informed him such information was very diffi- cult to obtain, since the operators moved around from job to job, that daily timesheets were not always kept for every job, and that it would be extremely difficult to compute, with any degree of certainty, the number of hours for the 1-94 job At the time Rooney and Burtness visited the Regional Office, they objected to Miller's computation and Miller requested them to prepare an al- ternative computation, and they attempted to identify the crane operators who were employed on the 1-94 job, whose identity had not been obtained with any degree of certainty Miller followed up his oral request with a written request to the Respondent (G C Exh 22), to which Miller testified he did not receive a reply from Respondent In spite of the opportunity afforded Respondent at the hearing, however, it nevertheless failed to produce any specific evidence or to make any persuasive explanation as to why Green or Ryan should have been representa- tive employees, or why operator Erdahl should not have been considered a representative employee The parties are in dispute as to whether Haak was ade- quately reinstated on May 18, 1981, as Respondent con- tends he was, or whether he was not adequately reinstat- ed, as counsel for the General Counsel contends The evidence shows that as a result of the intervention of Union Representative Darryl Neilson, Haak was reinstat- ed by Respondent on the City Center project, instead of the 1-94 project from which he had been discharged Thereafter, Haak was hired on the the Dale Tile project until that job was completed in November 1981 Analysis and Conclusions The principal issue presented for determination is whether or not reinstatement of a discharged discrimina- tee to a different job from the one from which he was discriminatorily discharged by an employer satisfies the remedial Order of the Board It would appear that such a reinstatement does not necessarily satisfy the Board's Order The Board has indicated that the purpose of Sec- tion 10(c) of the Act is a restoration of the situation, as nearly as possible to that which would have been the case, absent the unlawful discrimination by the employer Thus, to satisfy this test, the Board has repeatedly held that an employer can restore a discharged discriminatee to a "substantially equivalent job" only when the former job of the discriminatee is not available Trustees of Boston University, 224 NLRB 1385 (1976), Chase National Bank of New York, 65 NLRB 827 (1946) In the instant case, not only did Respondent fail to specifically plead, but it did not demonstrate at the hearing, that Haak's former crane operator job no longer existed at the time 417 the Board Issued its Order (February 8, 1983), but Re- spondent's president McCrossan admitted in his testimo- ny that Haak's job was available from the date of the Board's Order through September 6, 1982, the backpay period in dispute Additionally, President McCrossan said he did not desire to reinstate Haak on the 1-94 project because Haak and Project Superintendent Weis did not have a compatible work relationship Consequently, he said he purposefully tried to find work elsewhere for Haak Re- spondent's witnesses (McCrossan, Burtness, and James Larson) implied that Haak had declined to accept work on the 1-94 project by refusing to work for Superintend- ent Dave Weis Haak emphatically denied he refused to accept work on the 1-94 project, or that he refused to work for Superintendent Weis Haak affirmatively testi- fied that he asked Jim Larson, "If you've got work for me, I'd rather work for you than Dan Weiss "1 Under the above circumstances, I find that Haak did not refuse to work for Superintendent Weis on the 1-94 project Since Respondent elected not to reinstate him on the 1-94 project, I further find that by not reinstating Haak to his former job (crane operator) on the 1-94 project, which still existed at the time the Board issued its Order, constituted a failure by the Respondent to comply with the Board's Order Nor did the Respondent reinstate Haak to an equivalent position, since the jobs on which he was reinstated were only temporary and did not permit him to earn income equivalent to earnings he would have earned on the 1-94 project, the duration of which was from December 1980 to November 1983 Had Haak been reinstated to the 1-94 project, he would have enjoyed continuous employment from the date of the Board's Order to November 1983 Scientific Pest Control Corp, 224 NLRB 1651 (1976) Although McCrossan testified he tried to employ Haak at other jobsites to minimize adverse effects from rein- stating Haak before he hired any additional crane opera- tors on the 1-94 project, his testimony in this regard is not further explained nor supported by any demonstra- tive evidence In any event, as counsel for the General Counsel argues, whether or not Haak wanted to work for Weis on the 1-94 project is inconsequential, since Re- spondent did not offer to reinstate, nor in fact reinstated, Haak on the 1-94 project as compliance with the Board's Order would have required In other words, since Re- spondent did not offer to reinstate Haak to the 1-94 job, Haak could not have refused reinstatement there In order to have a refusal, there must first be a valid offer ' I credit Haak s testimony not only because I was persuaded by his demeanor that he was telling the truth, but also because he was unem ployed and every indication in the record evidence shows he continued to look for work Moreover it may be reasonably Inferred from Haak s having filed a charge and litigated his discharge before the Board that he wanted to be reinstated to the 1-94 project The fact that he stated he would rather work for Jim Larson than for Weis was a mere statement of preference, and not a refusal to work for Weis, as Respondent character izes It Here we had neither Don Pizzolato, Inc , 249 NLRB 953, 956 (1980), Kenston Trucking Co, 223 NLRB 502 (1982) Finally, Respondent's president McCrossan and Superin- tendent Weis acknowledged that prior to September 1982, Respondent did not offer Haak reinstatement on the 1-94 project When Respondent did in fact offer rein- statement to Haak, Haak accepted employment on the I- 94 project It is therefore clear that Respondent filed an answer to the backpay specification in which it failed to describe its general affirmative defenses with specificity and particu- larity as required by Sections 102 54(b), 102 54(c), and 102 57 of the Board's Rules and Regulations Additional- ly, although Respondent was afforded an opportunity during the hearing to set forth its defenses with the req- uisite specificity, it nevertheless failed to do so Finally, I invited Respondent to meet with the Board's compliance officer Miller subsequent to the hearing and submit any information it had to him which it deemed would have established errors in the computations of the backpay specification, or any misrepresentation or impropriety of the premise on which they were based As of the date of the issuance this decision, the record does not reflect that Respondent made any effort to present any information to the Region which would warrant a reconsideration or change in the computations of the backpay specification Consequently, I find that Respondent, having had its day in a full administrative proceeding, is liable for the amount of backpay set forth in the backpay specification as prepared and set forth Thus, based on these findings, reasons, conclusions, and cited legal authority, and particularly noting that all of Respondent's contentions in opposition to the backpay specification are unsupported, and that the parties are not in dispute as to the propriety of the figures and computa- tions in said specification, I find the backpay specifica- tion is accurate in all respects and issue the following recommended 2 ORDER The Respondent, C S McCrossan, Minneapolis, Min- nesota, its officers, agents, successors, and assigns, shall make Thomas J Haak whole for any wages or benefits lost by paying to Thomas J Haak, personally, the amount of $13,858, and on his behalf contribute $1031 to the Union's Health and Welfare Fund, $750 to the Pen- sion Fund, and $54 to the Union's Apprenticeship Fund, plus interest accrued on all of these amounts computed in accordance with the formula set forth in the Board's Decision and Order The Respondent shall make the ap- propriate deductions from said amounts of any tax with- holdings by state and Federal laws 2 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