International Longshore & Warehouse Union (Pacific Crane Maintenance Company, Inc.)

370 NLRB No. 104 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. International Longshore and Warehouse Union (Pa- cific Crane Maintenance Company, Inc.) and In- ternational Association of Machinists & Aero- space Workers, AFL–CIO, District Lodge 190, Local Lodge 1546, District Lodge 160. Case 32– CB–005932 March 31, 2021 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN MCFERRAN AND MEMBERS KAPLAN AND EMANUEL On July 9, 2020, Administrative Law Judge Eleanor Laws issued the attached supplemental decision. The Charging Parties filed exceptions with supporting argu- ment and the Respondent filed an answering brief. The Respondent also filed cross-exceptions and a supporting brief.1 The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.2 The Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm 1 By Order dated October 6, 2020, the Executive Secretary, by direc- tion of the Board, granted the Charging Parties’ motion to strike the Re- spondent’s exceptions as untimely, and denied the Charging Parties’ mo- tion to strike the Respondent’s cross-exceptions. Subsequently, on November 24, 2020, the Respondent filed a Notice Re: Exceptions Briefing Complete asking the Board to take notice that the issues had been fully briefed by the parties and were ready for adju- dication by the Board. On December 7, 2020, the Charging Parties filed a response asking the Board to either strike the Respondent’s cross-ex- ceptions or promptly decide this case by affirming the judge and granting the Charging Parties’ exceptions. The record and briefs in the instant case adequately present the issues, facts, and positions of the parties, and we find it unnecessary to take the requested administrative notice. Ad- ditionally, in its October 6, 2020 Order, the Board already denied the Charging Parties’ motion to strike the Respondent’s cross-exceptions. 2 Member Ring is recused and took no part in the consideration of this case. 3 We reject the Respondent’s assertion that its due process rights were violated when the judge allowed the General Counsel to make amend- ments to the Compliance Specification during and after the hearing. Un- der Sec. 102.55(c) of the Board’s Rules and Regulations, “After the hear- ing opens, the specification may be amended upon leave of the Admin- istrative Law Judge or the Board, upon good cause shown.” In allowing the General Counsel’s amendments to the Compliance Specification, the judge properly exercised discretion to find that the Respondent was put on notice regarding the General Counsel’s intended changes, the delay by the General Counsel was the result of an oversight, and all issues were fully litigated by the parties. 4 In Sec. IV of her decision, the judge misquoted the Second Amended Compliance Specification as stating that “the affected unit em- ployees who are entitled to reimbursement are all present and former unit employees who joined the Respondent Union on or since March 31, 2004.” (emphasis added). The correct date is March 31, 2005, which the the judge’s rulings,3 findings,4 and conclusions5 and to adopt the recommended Order. ORDER The National Labor Relations Board adopts the recom- mended Order of the administrative law judge and orders that the Respondent, International Longshore and Ware- house Union, its officers, agents, and representatives, shall make whole the following employees and former employ- ees by paying them the following amounts (which total $1,697,541.81), plus interest accrued to the date of pay- ment as prescribed in New Horizons, 283 NLRB 1173 (1987), and Kentucky River Medical Center, 356 NLRB 6 (2010). Employee Name Grand Total Alvarez, Manuel C 21,300.96 Amador, Jose 605.10 Ayala, Nelson A 22,970.84 Baldwin, John P 23,158.24 Bell, David B 4,178.80 Bennesen, Neil K 12,846.48 Boardman, David E 13,964.33 Byers, Nordan A 2,773.95 Castanho, Dominic J 605.10 judge otherwise used in the rest of the decision. We correct the judge’s inadvertent error, which does not affect our decision. 5 We agree with the judge, for the reasons she states, that the General Counsel’s proposed reimbursement periods and formulas for historical employees (i.e., covered employees who had been employed by Pacific Maritime Maintenance Company) and non-historical employees (i.e., employees who performed unit work after Pacific Crane Maintenance Company took over operations on March 31, 2005) are reasonable. On exceptions, the Charging Parties reassert the argument that employees who worked in the bargaining unit for any period, including 1 day, should be entitled to reimbursement. The judge rejected this argument on procedural grounds, finding that the Charging Parties should have raised it through an appeal to the General Counsel pursuant to Sec. 102.53 of the Board’s Rules. That section, however, relates to compli- ance determinations, not compliance specifications, and therefore does not apply here. Thus, the Board can consider the Charging Parties’ ar- gument on the merits. Even so, we find that the argument fails on sub- stantive grounds, as the Charging Parties have not adequately described why their proposal would be more reasonable than the formula proposed by the General Counsel and adopted by the judge. The Charging Parties also argue on exceptions that the Board should include a special remedy that precludes the Respondent from receiving kickbacks or any of the reimbursed dues. The Charging Parties cite no evidence or precedent in support of this remedy. Furthermore, a party cannot seek to add, at the compliance stage, remedies that were not in- cluded in the Board’s Order at the merits stage. Accordingly, we deny the Charging Parties’ request. The Respondent argues in its answering brief that the Board should issue a finding that the Charging Parties are not aggrieved by the judge’s decision. The Respondent cites no precedent in support of its argument, and we are not aware of any. Accordingly, we decline to issue such a finding. 2 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Castillo, Randall J 15,318.30 Ceccarelli, Matthew C 302.55 Cheung, Jayson T 7,014.10 Costa, John L 22,408.24 da Silva, Stephen M 5,575.25 Dake, Kevin J 2,823.80 De Leon, Walter E 504.25 Dela Cruz, Isabelo O 23,358.24 Dimassimo, James J 1,411.90 Fairfield, Joe A 605.10 Gonzalez, Juan 1,890.00 Gonzalez, Juan B 1,026.706 Gouveia, Brian D 3,240.50 Grimsley, Charles F 22,310.92 Guevara, Juan M 22,055.84 Guevara, Robert 605.10 Haag, Kenneth P 2,017.00 Hernandez, Arthur V 22,307.36 Horton, George H 5,993.70 Juarez, Ruben 21,855.84 Kun, Brian M 605.10 Lau, Jack C 6,136.20 Le, Nhanh H 4,941.10 Letcher, Ron P 22,214.08 Lincoln, Charles F 2,695.80 Logie, Scott C 2,823.80 MacKenzie, Scott J 6,605.40 Martin, Robert J 21,012.69 Martin, Robert J, Jr. 1,919.60 Martinez, Anthony D 7,156.50 Maynard, Bryan R 2,624.40 McLeod, John N 2,823.80 McClean, John F 23,898.24 McIntosh, Glen T 21,855.84 Orellana, Alfredo E 21,855.84 Padilla, Hector A 23,848.24 Paredes, Francisco J 19,136.69 Parker, Howard L 5,035.70 Payne, Bobby R 22,960.94 Philpott, Doug E 22,792.74 Piazza, Michael E 2,374.00 Pierce, Glen A 23,083.24 Punla, Kenneth V 17,036.29 Quijano, Luis A 22,705.84 Robles, Jose G 21,905.84 Robles, Jose L 1,815.30 Rodrigues, Gary D 1,008.50 6 The judge erroneously listed $1,890.00 as the reimbursement amount for Juan B. Gonzalez. However, the Second Amended Compli- ance Specification shows $1,026.70 as the reimbursement amount for Rohse, Gordon A 19,350.38 Sensabaugh, Thomas E 605.10 West, Clinton E 5,823.99 White, David S 1,815.30 Willis, Milton G 23,258.24 Wright, John C 2,823.80 Ahlgren, Herbert M 27,520.00 Anderson, Harvey R 24,510.65 Ashmore, William S 1,349.75 Barczak, Joseph J 26,082.15 Been, Nathan B 2,189.45 Bock, Eric H 279.90 Butchart, Randall J 24,095.45 Cable, Ralph W 949.75 Chaney, Arch A 886.70 Coles, Gregory D 19,622.70 Conde, Oscar J 24,396.65 Coudriet, Harry J 24,377.55 Coudriet, Wayne L 26,223.55 Davidson, Dan J 9,599.25 DeSerisy, Floyd J 4,677.75 Douglas, William J 26,090.95 Finn, Terence 27,043.05 Fulton, Jim W 34,669.65 Gagne, Steven J 26,121.65 Gallian, Dale A 25,458.50 Gorham, Dana V 15,618.50 Guyton, Michael M 23,794.55 Harding, Kirchie D 2,469.35 Hawkins, Glen D 3,110.80 Hoffman, Terry D 28,257.70 Hooper, William P 25,178.65 Hughley, Calvin 28,303.70 Jennings, Danna I 17,575.65 Karlin, Jonathan F 17,653.90 King, Jeffrey L 24,650.60 Lacher, Ralph 28,756.00 Leinum, Brent E 3,478.95 Lenzen, Marty D 1,069.85 Locke, Ella M 5,675.20 Logan, John R 5,005.35 Lucero, Ernest D 26,243.05 Manson, Jared H 529.90 Massier, Sean M 389.95 May, Merl M 669.85 McCarty, Dale W 9,147.60 Messner, James Ellis 1,620.40 Juan B. Gonzalez. We correct the judge’s inadvertent error, which does not affect the total reimbursement owed by the Respondent or our deci- sion. LONGSHOREMEN ILWU (PACIFIC CRANE MAINTENANCE CO., INC.) 3 Moore, Michael S 1,069.85 Nelson, Douglas A 27,167.40 Newman, Richard L 16,593.50 Oades, Eugene K 24,790.55 OBrien, Kenneth V 650.00 Otto, Chris R 24,910.15 Pachal, Richard M 26,270.35 Paulson, Tom C 949.75 Perrine, Matthew N 2,699.05 Phonesaithip, Norkhou 28,410.25 Stevenson, Brandon 529.90 Suchan, David D 27,754.30 Swanson, Mark J 4,549.35 Taylor, Kent C 28,544.60 Theoharis, Jacob N 669.85 Thompson, Rex A 10,490.55 Thongvanh, Bryan K 34,795.60 Thornbrugh, Claude A 8,848.70 Tucker, Mario P 4,532.70 Upshaw, Andrew J 1,489.70 Walters, Clarence 28,081.90 Westhead, John J 3,309.05 Wilcher, William A 20,958.40 Willecke, Richard A 29,873.75 Williams, Glenn P 8,795.95 Wilper, Michael C 9,623.05 Worrell, Darwin W 24,262.05 Total: $1,697,541.81 Dated, Washington, D.C. March 31, 2021 ______________________________________ Lauren McFerran, Chairman ______________________________________ Marvin E. Kaplan, Member _____________________________________ William J. Emanuel, Member (SEAL) NATIONAL LABOR RELATIONS BOARD 1 Because the Compliance Specification was amended after the hear- ing, I left the record open for the parties to permit the parties to submit Angela Hollowell-Fuentes, Esq., for the General Counsel. Emily A. Maglio, Esq. and Lindsay R. Nicholas, Esq., for the Re- spondent. David A. Rosenfeld, Esq., for the Charging Party. SUPPLEMENTAL DECISION STATEMENT OF THE CASE ELEANOR LAWS, Administrative Law Judge. This supple- mental proceeding was opened telephonically on November 19, 2019, and tried in Oakland, California, on February 3 and 4, 2020. It hopefully marks the end of over a decade of litigation. In PCMC/Pacific Crane Maintenance Co., 359 NLRB 1206 (2013), reaffirmed 362 NLRB 988 (2015), enfd. Int’l Longshore & Warehouse Union v. NLRB, 890 F.3d 1100 (D.C. Cir. 2018), the National Labor Relations Board (NLRB or Board) found that the International Longshore and Warehouse Union (ILWU or Respondent) violated sections 8(b)(1)(A) and (2) of the National Labor Relations Act (NLRA or the Act) by accepting assistance and recognition from the Pacific Crane Maintenance Company (PCMC) and the Pacific Maritime Maintenance Company (col- lectively, the Employer) as the exclusive collective-bargaining representative of the unit employees at a time when the ILWU did not represent an uncoerced majority of unit employees. As detailed below, the Board ordered the ILWU to reimburse any initiation fees, periodic dues, assessments, or any other moneys it had collected from bargaining unit members during the period of unlawful recognition. A dispute arose regarding the amount of dues the ILWU must remit. A compliance specification and notice of hearing issued on August 5, 2019, and was amended three times, most recently on February 12, 2020.1 The ILWU timely answered the compli- ance specification and each amended compliance specification. The General Counsel contends the Second Amended Compli- ance Specification (hereinafter, the Compliance Specification) accurately alleges the amounts due under the Board’s order. The Respondent asserts that the Compliance Specification is too ex- pansive as to the number of employees and the length of reim- bursement periods and raises a number of affirmative defenses. The International Association of Machinists and Aerospace Workers (IAM or Charging Party) asserts that the Compliance Specification is too restrictive and argues it should include addi- tional employees. I have carefully considered briefs filed by the General Counsel, the Respondent, and the Charging Party. For the reasons set forth below, I am satisfied that the approach taken by the Compliance Specification in this case is reasonable under the circumstances. I. BRIEF SUMMARY OF BACKGROUND FACTS The Pacific Crane Maintenance Company (PCMC), incorpo- rated in 1990, performs marine terminal maintenance and repair (M&R) work at various shipping terminals on the West Coast. PCMC joined the Pacific Maritime Association (PMA), a mul- tiemployer association that has negotiated collective-bargaining additional evidence if desired. I admitted Respondent’s Exhs. 20–22 af- ter the hearing, and I closed the record by written order on March 5, 2020. 4 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD agreements with the ILWU on behalf of approximately 70 com- panies at various ports on the West Coast. PCMC performed a significant portion of M&R work for Maersk, a shipping company. In 1999, Maersk purchased the Oakland, California, and Tacoma, Washington port operations from shipping company Sealand.2 As a condition of the sale, Sealand required Maersk to employ its M&R mechanics, and to recognize IAM as the maritime terminal-based longshore and shipping equipment maintenance and repair services mechanics’ union. PCMC, however, as a member of the PMA, was bound by a collective-bargaining agreement with the ILWU to perform these services. As a workaround, PCMC created a subsidiary, the Pacific Maritime Maintenance Company (PMMC), which recognized the IAM to provide M&R services to Maresk. IAM and PMMC’s most recent collective-bargaining agree- ment covering the noted employees was effective from April 1, 2002 through March 31, 2005. The contract sets forth the fol- lowing language in Article 1 [Spelling and capitalization as in the original.]: Section 2 - WORK JURISDICTION This agreement shall cover but not be limited to, all following types of work: Maintenance, Body and Fender Work, Painting, Rebuilding, Dismantling, Assembling, Repairing, Installing, Erecting, Welding and Burning (or grinding processes connected there- with), Inspecting, Diagnosing, Cleansing, Preparing or Condi- tioning of all units and auxiliaries (includes refrigeration and air conditioning (units) related to passenger card, buses, pickups, motor cycles, tractors, trucks, trailers, cargo contain- ers, generator sets, refrigeration units, dollies, forklifts, shovels, trench digging and excavating equipment) and all work histor- ically being performed under this contract. This Agreement shall also cover terminal maintenance, lubri- cating, fueling, washing, cleaning, polishing, steam rack oper- ations, tire repairing, tire service operations, parts and stock- room operations, shop and yard cleanup, stock and parts pick- up and delivery as presently and hereafter being performed by employees represented by the Union. This Agreement shall apply to all facilities and operations where the Employer does business and has commercial control. Section 3. EMPLOYEES COVERED: Employees covered by this Agreement shall include, but not be limited to: Mechanics, Apprentices, Painters, Maintenance Employees, Body and Fender Mechanics, Fuelers, Washers, Tiremen, Partsmen and such other employees as may be presently and hereafter repre- sented by the Union. . . . Section 6. SINGLE BARGAINING UNIT: The common problems and interests with respect to the basic terms and con- ditions of employment of the employees covered hereby have resulted in the establishment of this Agreement. Accordingly, 2 Maresk also purchased operations at the Long Beach, California, port, but that location is not at issue here. the Unions and the Employer covered by this Agreement acknowledge that the employees covered by this Agreement constitute a single employer multi-union collective bargaining unit. See 359 NLRB at 1223. In late 2004, Maresk sought to cut costs, and requested bids from PCMC and PMMC for the work at the Oakland and Ta- coma ports. PCMC provided the lower bid, which Maresk ac- cepted. PMMC shut down operations and terminated its mainte- nance and repair employees. On March 31, 2005, PCMC imme- diately hired most of the former PMMC employees, ceased rec- ognizing IAM, and recognized the ILWU as the employees’ ex- clusive bargaining agent. The Board described the transition as follows: After the unit employees began working for PCMC, they con- tinued to perform essentially the same work, at the same loca- tions, and in the same organizational units as before. The only significant changes in their terms and conditions of employ- ment resulted from the application of the PMA–ILWU Agree- ment and PCMC’s “lean staffing” model of operations. Under its lean staffing model, PCMC maintained steady employee complements at each of its terminal operations that were just large enough to perform the M&R work at the terminal during slack periods. It temporarily expanded its work force during periods of heightened workload by transferring mechanics from other terminals and using the ILWU hiring hall. Com- mencing on March 31, PCMC assigned unit employees non- unit work and nonunit employees unit work, in accordance with its lean staffing model. 359 NLRB at 1208 (footnote omitted.) The D.C. Circuit, in en- forcing the Board’s order, described the “lean staffing model” as follows: A single CBA, the Pacific Coast Longshore and Clerks Agree- ment (PCL&CA) binds ILWU, on one side, and the Pacific Maritime Association (PMA), a collection of approximately 70 maritime employers along the Pacific Coast (including PCMC), on the other. Pursuant to the PCL&CA, ILWU and PMA have established an employment dispatch system that is in effect along the Pacific Coast. The system operates through a series of “halls” that match employees to employers on a flex- ible basis so that labor can flow to the terminals that need it most. 890 F.3d at 1104–1105. By contrast, when the employees worked at PMMC, they exclusively performed unit work at one of two prescribed terminals—Oakland or Tacoma. By the terms LONGSHOREMEN ILWU (PACIFIC CRANE MAINTENANCE CO., INC.) 5 of the PMA–ILWU Agreement, payment of dues was a condition of work.3 (R. Exhs. 9, 10, 11).4 II. PROCEDURAL HISTORY Following a lengthy trial, Administrative Law Judge Clifford Anderson issued a decision recommending dismissal of the alle- gations relevant here on February 12, 2009. The Board reversed the administrative law judge in PCMC/Pacific Crane Mainte- nance Co., 359 NLRB 1206 (2013), reaffirmed 362 NLRB 988 (2015), enfd. Int’l Longshore & Warehouse Union v. NLRB, 890 F.3d 1100 (D.C. Cir. 2018), finding, inter alia, found that ILWU violated sections 8(b)(1)(A) and (2) of the Act by accepting as- sistance and recognition from the Employer as the exclusive col- lective bargaining representative of the unit employees at a time when ILWU did not represent an uncoerced majority of unit em- ployees.5 The ILWU was ordered to: Cease and desist from (a) Accepting assistance and recognition from Respondent Pa- cific Crane Maintenance Company, Inc. or its successor Pa- cific Crane Maintenance Company, LP (collectively PCMC) as the exclusive collective-bargaining representative of the employees in the unit described below (the unit) at a time when the Respondent Union did not represent an uncoerced majority of the employees in the unit, and when the Machinists District Lodge 190, Local Lodge 1546, and Machinists Dis- trict Lodge 160, affiliated with International Association of Machinists and Aerospace Workers, AFL–CIO (collectively the Machinists) was the exclusive collective-bargaining repre- sentative of the employees in that unit: All employees performing work described in and covered by “Article 1, Section 2. Work Jurisdiction” of the April 1, 2002 through March 31, 2005 collective-bargaining agreement be- tween the [Machinists and Pacific Marine Maintenance Com- pany, LLC (PMMC)] . . .; excluding all other employees, guards, and supervisors as defined in the Act. (b) Maintaining and enforcing the PMA–ILWU Agreement, or any extension, renewal, or modification thereof, including its union-security provisions, so as to cover the unit employ- ees, unless and until it has been certified by the Board as the collective-bargaining representative of those employees. The Board’s order states, in relevant part: 3 As the Court observed: It is undisputed that the PCMC–ILWU CBA contains a “union-secu- rity” clause that requires membership in ILWU as a condition of PCMC employment, JA 665, and that PCMC enforced the clause when it hired the former PMMC mechanics, see PCMC/PMMC I, 359 NLRB at 1207; see also JA 908 (PCMC employment offer letter). Because the Board correctly determined that IAM—not ILWU—was the proper un- ion representative of the M&R employees at the Oakland and Tacoma terminals, it also correctly concluded that ILWU had violated section 8(b)(2) by applying its CBA—including the “union-security” clause— to those employees. PCMC/PMMC I, 359 NLRB at 1207; see Local Lodge No. 1424 v. NLRB, 362 U.S. 411, 413–14, 80 S.Ct. 822, 4 L. Ed. 2d 832 (1960). 890 F 3d at fn. 12. [T]he Respondent Employer and the Respondent Union will be ordered jointly and severally to reimburse all present and former unit employees who joined the Respondent Union on or since March 31, 2005, for any initiation fees, periodic dues, assessments, or any other moneys they may have paid or that may have been withheld from their pay pursuant to the PMA– ILWU Agreement, together with interest as prescribed in New Horizons, supra, compounded daily as prescribed in Kentucky River Medical Center, supra. 362 NLRB at 989.6 As to the Employer, PCMC/PMMC as a single employer was found to have violated Section 8(a)(5) and (1) of the Act, includ- ing by: • Withdrawing recognition from the Machinists as the ex- clusive collective-bargaining representative of the unit employees and refusing to bargain with them. • Applying the terms and conditions of employment of the collective-bargaining agreement between the Respond- ent Employer and the ILWU (the PMA-ILWU Agree- ment), including its union-security provisions, to the unit employees at a time when the ILWU did not represent an unassisted and uncoerced majority of the employees in the unit, and when the Machinists was the exclusive col- lective-bargaining representative of the unit employees • Notifying the Machinists and the unit employees that the unit employees would be laid off and that they could con- tinue performing unit work only if they were hired as em- ployees of Pacific Crane Maintenance Company, Inc. (PCMC) and were represented by the ILWU. • Bypassing the Machinists and directly offering unit em- ployees continued employment in the unit on the basis of terms and conditions of employment different from those set forth in PMMC’s 2002–2005 collective-bargaining agreement with the Machinists (the Machinists Agree- ment) and on condition that they be represented by the ILWU; • Laying off unit employees without first notifying the Ma- chinists and giving it a meaningful opportunity to bargain regarding the decision to lay off unit employees; • Altering the unit employees’ terms and conditions of em- ployment without first notifying the Machinists and 4 Abbreviations used in this decision are as follows: “Tr” for tran- script; “GC Exh.” for the General Counsel’s exhibit; “R Exh.” for the Respondent’s exhibit; “GC Br.” for the General Counsel’s brief, “R Br.” for the Respondent’s brief. Although I have included several citations to the record to highlight particular testimony or exhibits, I emphasize that my findings and conclusions are based not solely on the evidence specif- ically cited but rather are based on my review and consideration of the entire record. 5 As can be gleaned from the citation, this case has a convoluted pro- cedural history, in part because the first Board decision was rendered invalid by NLRB v. Noel Canning, 573 U.S. 513 (2014). 6 The D.C. Circuit’s July 24, 2018, mandate enforces the Board’s or- der in full. 6 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD bargaining to agreement or impasse regarding such changes in the wages, hours, and working conditions of the unit employees. • Assigning unit employees to nonunit positions and loca- tions or assigning nonunit employees to perform unit work, without first notifying the Machinists and giving it a meaningful opportunity to bargain about such assign- ments and the effects of such assignments.7 The Board further determined the Employer violated Section 8(a)(2) and (1) of the Act by: Granting assistance to International Longshore and Warehouse Union (ILWU or the Respondent Union) and recognizing it as the exclusive collective-bargaining representative of the unit employees at a time when the ILWU did not represent an un- assisted and uncoerced majority of the employees in the unit, and when the Machinists was the exclusive collective-bargain- ing representative of the unit employees. 362 NLRB at 991. The Employer settled its claims and paid $130,000 to each of the approximately 100 unit employees formerly represented by IAM at the Oakland and Tacoma terminals. The IAM is there- fore the only Respondent for purposes of this decision. III. GENERAL LEGAL PRINCIPLES It is well established that the finding of an unfair labor practice is presumptive proof that some backpay (or, as here, dues reim- bursement) is owed. Lorge School, 355 NLRB 558, 560 (2010); Laborers Local 158 (Worthy Bros.), 301 NLRB 35, 36 (1991), enfd. 952 F.2d 1393 (3d Cir. 1991). The Board has broad dis- cretion in the formulation of backpay formulas to redress unfair labor practices. Nathanson v. NLRB, 344 U.S. 25, 29–30 (1952). The Board’s objective in compliance proceedings is to restore, to the extent feasible, the status quo ante by restructuring the cir- cumstances that would have existed had there been no unfair la- bor practices. Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 194 (1941). Backpay amounts often cannot be precisely determined from the available facts. Thus, the Board may adopt any formula which is reasonably designed to produce an approximation of what the discriminatee would have received absent the discrimi- nation. NLRB v. Brown & Root, Inc., 311 F.2d 447, 452 (8th Cir. 1963); Hacienda Hotel & Casino, 279 NLRB 601, 603 (1986), citing NLRB v. Carpenters Local 180, 433 F.2d 934 (9th Cir. 1970). The Board has applied a broad standard of reasonable- ness in approving numerous methods of calculating gross back- pay. Performance Friction Corp., 335 NLRB 1117, 1117 (2001). Once the General Counsel meets its burden of showing the gross backpay owed, the burden shifts to the respondent to es- tablish facts that negate or mitigate its liability. St. George Ware- house, 351 NLRB 961, 963 (2007); Parts Depot, Inc., 348 NLRB 152, 153 (2006), enfd. 260 Fed. Appx. 607 (4th Cir. 2008); At- lantic Limousine, Inc., 328 NLRB 257, 258 (1999), enfd 243 F.3d 711 (3d Cir. 2001). An administrative law judge need not recommend the General Counsel’s gross backpay formula to the 7 An additional violation was found but is not relevant here. Board when a more accurate one is established in the record. Frank Mascali Construction, 289 NLRB 1155, 1157 (1988); J. S. Alberici Construction Co., 249 NLRB 751 fn. 3 (1980). “Another well-established principle is that, where there are uncertainties or ambiguities, doubts should be resolved in favor of the wronged party rather than the wrongdoer.” Kansas Refined Helium Co., 252 NLRB 1156, 1157 (1980) (enf’d. sub nom. An- gle v. NLRB, 683 F.2d 1296 (10th Cir. 1982); see also WHLI Radio, 233 NLRB 326, 329 (1977). In United Aircraft Corp., 204 NLRB 1068 (1973), the Board stated that “the backpay claimant should receive the benefit of any doubt rather than the [r]espondent, the wrongdoer is responsible for the existence of any uncertainty and against whom any uncertainty must be re- solved.” IV. UNIT EMPLOYEES ENTITLED TO REIMBURSEMENT As noted above, the Board ordered the ILWU to reimburse “present and former unit employees who joined the Respondent Union on or since March 31, 2005, for any initiation fees, peri- odic dues, assessments, or any other moneys they may have paid or that may have been withheld from their pay pursuant to the PMA-ILWU Agreement . . .” The Board’s order required the ILWU to cease and desist from “[m]aintaining and enforcing the PMA-ILWU Agreement, or any extension, renewal, or modifi- cation thereof, including its union-security provisions, so as to cover the unit employees.” The Compliance Specification defines the affected employees as follows: Pursuant to the Board’s Order, the affected unit employees who are entitled to reimbursement are all present and former unit employees who joined the Respondent Union on or since March 31, 2004. Unit employees are maintenance and repair mechanics employees who performed bargaining unit work at the APMT8 terminals in Oakland, California (Oakland unit em- ployees) and Tacoma, Washington (Tacoma unit employees) on a steady basis on or since March 31, 2005, and/or for suffi- cient time periods on or since March 31, 2005. (GC Exh, 1(x).) To calculate the amounts owed to employees, the Compliance Officer for Region 32, Paloma Loya reviewed data provided from various sources, including the PMA and the ILWU. Spe- cifically, for Oakland she relied on the following documents pro- vided by PMA: PCMC Mech. Reg. History (10112, 10114, 10130) (general registration and work records); PCMC Mech. Reg. History (10131) (general registration and work records); PCMC all shifts all dues by year (10112, 10114, 10130) (detailed daily work and dues records); PCMC all shifts all dues by year (10131) (detailed daily work and dues records); TAmidon Oak- land (provided daily work record and location); and the Re- spondent’s Answer for dues information. (Tr. 112; lines 1–12; GC Exh. 2; GC Exh. 1(z) (Exh. B)). For Tacoma, she relied on: PCMC Mech. Reg. History (30228); PCMC all shifts all dues by year (30228); TAmidon Tacoma (provided daily work record and location); and the Respondent’s Answer Exhibit’s F and B 8 The terminals at issue in Tacoma and Oakland were referred to as Maresk terminals until 2005, and APMT terminals after. LONGSHOREMEN ILWU (PACIFIC CRANE MAINTENANCE CO., INC.) 7 for dues information. (Tr. 113, lines 9–19; GC Exh. 2; GC Exh. 1(z) (Exh. F). When she found a discrepancy in the records, she erred on the side of the employee. After making some correc- tions that were pointed out at the hearing, she determined the amounts of reimbursement as set forth in appendices C–G of the Compliance Specification. Compliance Officer Loya divided the employees covered by the Board’s order into two categories: historical unit employees, and non-historical unit employees. She defined historical unit employees as any covered employee who had been employed by PMMC, and non-historical employees as anyone who performed unit work after PCMC took over operations on March 31, 2005. (Tr. 32.) A. The Historical Unit Employees Compliance Officer Loya determined the historical unit em- ployees should be reimbursed for shifts worked at terminals cov- ered by the bargaining agreement and shifts worked at non-cov- ered terminals. There is no dispute that historical unit employees who were transferred away from the original bargaining-unit ter- minals to other ILWU-represented terminals continued to pay dues, fees, and assessments to the ILWU. The General Counsel asserts the Compliance Officer’s for- mula for reimbursing the historical unit employees is reasonable and consistent with the Board’s order. The Charging Party does not dispute the Region’s method for calculating historical unit employees’ reimbursement. The Respondent argues that including dues reimbursement for work performed at non-covered terminals is improper because the General Counsel may not remedy unfair labor practices PCMC committed. Specifically, the Respondent argues that be- cause PCMC was found to have committed the unfair labor prac- tice of assigning unit employees to nonunit positions and loca- tions, PCMC alone should be responsible for remitting dues col- lected for periods of nonunit work. For the following reasons, I do not find this argument persuasive. The ILWU’s action of recognizing the historical employees adhered them to the lean staffing model under the PMA–ILWU Agreement, which included being dispatched to different worksites rather than remaining at fixed terminals performing unit work. The ILWU was ordered specifically to cease and de- sist from “[m]aintaining and enforcing the PMA-ILWU Agree- ment, or any extension, renewal, or modification thereof, includ- ing its union-security provisions, so as to cover the unit employ- ees . . . .” It was by virtue of the ILWU’s act of unlawfully rec- ognizing these employees and maintaining the PMA–ILWU Agreement that it was able to collect dues and other assessments, wherever the historical unit employees were assigned under the lean staffing model. PCMC committed unfair labor practices by transferring the nonunit employees, but the ILWU continued to recognize these employees and collect dues from them. As the Board ordered joint and several liability, assessing these dues against the ILWU is appropriate. The Respondent quotes USPS, 366 NLRB No. 168 (2018), to assert that “ILWU must only ‘affirmatively remedy the unfair labor practices it has been found to have committed,’ not those committed by another party.” (R. Br. 6, emphasis supplied.) Only the portion in internal quotes appears in the cited decision, which is part of an administrative law judge’s analysis of whether deferral to the grievance procedure under Alpha Beta, 273 NLRB 1546 (1985), review denied 808 F.2d 1342, 1345– 1346 (9th Cir. 1987), was appropriate. It does not state what the Respondent purports it to state, and has no relevance to the con- text here, particularly given the imposition of joint and several liability. The Respondent cites to Guerin, R.B., 92 NLRB 1698, 1712 (1951), for the proposition that “the Board is empowered to find unfair labor practices and to issue a remedial order only against parties named in the complaint, and where no charge is filed and no complaint issued against another party, it is without power to issue an order against such other party.” (R. Br. 6.) The ILWU was named in the compliant and was found to have incurred joint and several liability, so this case is markedly off point. The Respondent further cites to the dissent in an order in McDonalds USA, LLC, 363 NLRB 867 (2016) (dissent, Misci- marra), regarding whether an administrative law judge abused her discretion by issuing a case management order requiring the parties to litigate the issue of liability before presentation of evi- dence regarding any unfair labor practices. (R. Br. 6–7.) Here, unfair labor practices were litigated and the Board determined the ILWU was jointly and severally liable “for any initiation fees, periodic dues, assessments, or any other moneys they may have paid or that may have been withheld from their pay pursu- ant to the PMA-ILWU Agreement.” This argument therefore also misses the mark, and in any event, a dissent from an order is not precedent. The Respondent’s proposed calculation formula for reimburs- ing historical unit employees does not approximate the circum- stances that would have existed had there been no unfair labor practices. Phelps Dodge Corp., supra. Those circumstances were continuous employment performing unit work at fixed ter- minals. Based on the foregoing, I find the General Counsel’s formula for calculating the historical unit employees’ dues is rea- sonable and has not been successfully rebutted by the Respond- ent. B. Non-Historical Unit Employees Compliance Officer Loya determined that any non-historical employee who performed covered work for 30 days or more in a year was entitled to reimbursement under the Board’s order. She only included reimbursement for unit work, because as employ- ees who never worked for PMMC, they entered into employment willingly under the lean staffing model. She determined that 30 days/shifts of work were a reasonable minimum. She based this on information from the Charging Party that under the IAM’s collective-bargaining agreement with PMMC, after 30 days of employment at PMMC, an employee was required to pay dues. (Tr. 38, 184.) Compliance Officer Loya used PMA records to determine the number of shifts each non-historical unit employee 8 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD worked at one of the four original terminals where unit work was performed.9 For non-historical employees who worked at least one shift but fewer than 30, Compliance Officer Loya determined that their time spent doing unit work was de minimis and outweighed by time performing non-unit work. She determined it was not reasonable, for example, to assess a month’s worth of dues for someone who worked only one-unit shift. As such, she deter- mined dues reimbursement to those employees was more of a windfall than a make-whole remedy. Compliance Officer Loya declined to require that the 30-days be consecutive, or in clusters of any sort, and concluded the 30-shift minimum was sufficient to show the employees were entitled to reimbursement. Once she determined an employee worked at least 30 shifts, Compliance Officer Loya calculated the amount of dues and other assessments owed to that employee. To determine the amounts of monthly dues owed, she reasoned that 20 shifts would equal a month. Because there was no evidence employees were permitted to pay dues on a prorated basis, any days worked beyond the 20 workdays were rounded up, and the employee was entitled to additional monthly dues reimbursement.10 The Gen- eral Counsel asserts that this is a reasonable calculation. The Respondent asserts that only employees who worked as “steady mechanics” are entitled to reimbursement. The Charg- ing Party asserts that any employee who worked a single shift should be reimbursed, noting that under the PMA-ILWU agree- ment, an employee who works 1 day is a member of the bargain- ing unit, and is required to pay dues and/or a hiring hall fee. The Respondent urges a calculation based on continuity of shifts rather than number of shifts. Based on the employees’ daily work records, the Respondent determined employees who worked on a steady basis for 50 percent or more of a given month should be entitled to reimbursement. (R. Exhs. 3, 8, 22.) This runs counter to the Board’s order, which requires reimbursement for “all present and former unit employees for all initiation fees, dues, and other moneys paid by them or withheld from their wages pursuant to the PMA-ILWU Agreement, with interest.” The Respondent contends the Compliance Specification itself supports its position, because it requires work on a steady basis and/or for sufficient time periods.11 But, there is nothing unrea- sonable or erroneous about the General Counsel’s position that 30 days is a sufficient time period to trigger reimbursement. As such, the Respondent’s argument fails. The Charging Party contends that any employee who worked at least 1 day should be reimbursed because, under the terms of the PMA–ILWU Agreement they were required to pay either membership dues or a hiring hall fee. Recourse for a charging party who disagrees with any aspect of the Regional Director’s 9 The records reflect terminal codes 10112, 10114, 101130, and 10131 for Oakland and 30228 for Tacoma. (Tr. 51.) 10 The formula is illustrated by the calculation of employee Jose Ama- dor as follows: If he had worked at least 30 shifts that year I divided the number of shifts worked at the APMT terminals by 20, which is like 20 days in a month, because—and then that gives me like rounded up, like about how many months (sic) worth of dues he would have paid to ILWU for the period of time he spent working at that terminal. Jose Amador, spe- cifically, started paying dues in December of 2012. So even though he determination in a compliance specification is to file an appeal with the General Counsel in Washington, DC, and if the appeal is denied, request Board review. See Sec. 102.53 of the Boards Rules and Regulations; Ace Beverage Co., 250 NLRB 646, 647 (1980). The purpose of the review process in Sec. 102.53 is to resolve disputes between the Charging Party and the General Counsel before the hearing. See Mike-Sells Potato Chip Co., 366 NLRB No. 29 (2018), enfd. 761 Fed. Appx. 5 (D.C. Cir. 2019). The Charging Party’s argument in posthearing brief therefore fails. C. Date the Members Joined The Respondent asserted in its answer that the inclusion of employees who joined the ILWU before March 31, 2005, is im- proper. (GC Exh. 1(z).) In Exhibit E of the Respondent’s an- swer, Brent E. Leinum is identified as an employee who was a member of the bargaining-unit prior to Match 31, 2005. The rec- ords show that Leinum was a bargaining-unit member in 1997. He subsequently became inactive and re-joined after March 31, 2005. (R. Exh. 1; GC Exh. 27; Tr. 93–94.) The Respondent does not argue in its closing brief that Leinum should be excluded based on his previous ILWU membership. The Board’s order does not state that the employee must have joined the ILWU for the first time during the prescribed time pe- riod to be eligible. As the evidence shows Leinum re-joined the ILWU during the time period specified in the Board’s order, and any uncertainties must favor the employee, I find Leinum’s in- clusion is proper. V. THE REIMBURSEMENT PERIOD To calculate the applicable reimbursement period, Compli- ance Officer Loya started with the Board’s broad language, which included all present and former unit employees who had joined the ILWU on or since March 31st, 2005 and had paid dues under the PMA–ILWU contract. She then gleaned from the rec- ords that the employees did not start paying dues to the ILWU until they became B class members. In Oakland, this occurred in September 2005, and in Tacoma it occurred in July of 2005. The end period was determined by when the Employer ceased doing the maintenance and repair work at these terminals. In Oakland this occurred at the end of June 2013, and in Tacoma in November 2016. A. Tolling Between ALJ Decision and Board Reversal The Respondent argues its liability should be tolled from Feb- ruary 19, 2009, when the administrative law judge recommended dismissal of the complaint allegations against the ILWU, until the Board’s reversal on June 17, 2015. During this period span- ning over 6 years, the Respondent points out the employees worked June, July, August, September, October, November, and De- cember, all of his shifts at a terminal; we only applied—we’re only re- questing reimbursement for December of 2012, that one month because that’s the month that he started paying dues. (Tr. 54–55.) 11 The use of “and/or” in the compliance specification means or “ei- ther or both of two stated possibilities.” See Dictionary.com. There is no requirement that the work be both steady and for sufficient time periods. Moreover, the Board’s order and Court’s mandate do not impose such a requirement. LONGSHOREMEN ILWU (PACIFIC CRANE MAINTENANCE CO., INC.) 9 received representation from the ILWU and benefitted in a vari- ety of ways from the PMA-ILWU Agreement. The Board’s order, enforced by the Court of Appeals, does not exclude the time period between the ALJ decision and the Board’s reversal of that decision. Under Section 10(e) of the Act, the Board may not modify an order the Court of Appeals has enforced, because the Court’s judgement and decree is re- viewable only by the Supreme Court.12 Grinnell Fire Protection Systems Co., 337 NLRB 141, 142 (2001) (Board has no jurisdic- tion to modify a court-enforced order); Regional Import & Ex- port Trucking, 323 NLRB 1206, 1207 (1997) (same); Haddon House Food Products, 260 NLRB 1060 (1982) (same). I there- fore cannot change the Board’s previously enforced order, much less carve out a period of 6 years from the Respondent’s reim- bursement obligations. The Respondent’s tolling argument therefore fails.13 B. November 2016 Tacoma The Respondent asserts that no dues should be reimbursed for Tacoma employees for the month of November because all unit worked ceased on November 4, 2016. Compliance Officer Loya reviewed the TAmidon Tacoma daily work records, which showed historical unit employee Herbert Ahlgren worked 19 shifts in November as an “ILWU Mech Journeyman.” (GC Exh. 7.) She determined that, under the Respondent’s proposed time period ending November 4, Ahlgren would not be compensated for time periods during which he worked and paid dues as a jour- neyman mechanic. While the Respondent asserts no employee worked for PCMC as a mechanic past November 4, I have found the formula for reimbursing historical unit employees for all work to be reasonable, as detailed above. For this reason, I find the Respondent has not met its burden to prove the records the Compliance Officer relied on were inaccurate or that there were conflicting work records. VI. OTHER OFFSETS A. Dues, Fees, Assessments, and Fines The parties stipulated that the dues, fees, assessments, and fines set forth in Exhibits C and H to the Respondent’s answer to the Compliance Specification accurately reflect the dues, fees, assessments, and fines the named individuals paid for the months reflected. (Tr.100.) The Respondent contends that, in the Com- pliance Specification, “there appear to be inconsistencies in the total amounts for reimbursement, which may indicate the Gen- eral Counsel did not fully adopt the ILWU’s payment infor- mation.” (R. Br. 20.) 12 I note that the Respondent argued before the D.C. Circuit that the time period between the ALJ decision and the Board’s reversal should be tolled, yet the Court’s Mandate did not provide for such tolling. See Petitioner’s Opening Brief to Court of Appeals at pp. 59–60, November 2, 2017. 13 I would come to the same conclusion if I considered the argument on the merits. See A.P.W. Products Co., 137 NLRB 25, 28–31 (1962), enfd. 316 F.2d 899 (2d Cir. 1963) (Board held with respect to such tolling that “its real thrust is in the direction of benefiting the wrongdoer at the expense of the wronged—a result antithetical to the fundamental aim of the Board’s remedial authority and powers.”); See also NLRB v. J. H. Rutter-Rex Mfg. Co., 396 U.S. 258, 262–265 (1969). The Respondent specified neither the employees nor the amounts for reimbursement it deemed inaccurate.14 Under these circumstances, I cannot conclude the General Counsel’s calcula- tions are unreasonable or arbitrary. See Hubert Distributors, Inc., 344 NLRB 339, 344 (2005). B. Initiation Fees Compliance Officer Loya included reimbursement of initia- tion fees for employees who she determined were entitled to re- imbursement regardless of whether the employees performed unit work during the time period when the initiation fee was as- sessed. (Tr. 164.) The General Counsel contends this inclusion is correct, as the initiation fees at issue were paid during the Board’s reimbursement period. The Respondent contends that initiation fees not incurred during periods of time the employees were performing work at an APMT terminal are not reimbursa- ble. To perform the work generating the dues reimbursement, the employees were required to pay the initiation fee. Even though an employee may have performed nonunit work during the time period in and around the initiation fee assessment, paying the in- itiation fee was a condition precedent to performing the included work. Given the Board’s order to “reimburse all present and for- mer unit employees who joined the Respondent Union on or since March 31, 2005, for any initiation fees,” I find the General Counsel’s inclusion of these fees is reasonable and consistent with the Board’s order. (Emphasis supplied) C. The Settlement Agreements 1. The PCMC/PMMC agreement In 2016, Charging Party IAM and the Employer entered into a $10.5 million settlement agreement to resolve IAM’s claims against the Employer. The agreement states, in pertinent part: The settlement payment will be allocated to such payees as the Machinists may designate, provided that the payees have a good faith claim of loss as determined by the Machinists. Ex- amples of such potential payees include, but are not necessarily limited to, Machinist benefit funds and laid-off employees of PMMC. The payees shall be solely responsible for taxes, if any, due on account of payments made to them. The loss specifically does not include any claim for union dues which were paid to the International Longshore and Warehouse Union, but the re- leased parties are relieved of any responsibility to reimburse such dues. (R. Exh. 14, emphasis supplied.) The PCMC/PMMC Agreement 14 The Respondent’s brief does not address employees for whom there are no dues payment records, and the stipulations regarding the accuracy of Exhs. C and H to the Respondent’s answer are limited to the employ- ees specifically referenced therein. To the extent the Respondent asserts that employees for whom it did not keep records of dues and other pay- ments are not entitled to reimbursement, this argument is unavailing. It is undisputed that to work under the PMA-ILWU agreement, the em- ployees were required to be dues-paying ILWU members. (R. Exhs. 9– 11.) Accordingly, Compliance Officer Loya’s assumption that these em- ployees paid dues directly to the ILWU when they worked under the PMA-ILWU agreement is reasonable. (Tr. 64–65, 71, 79.) 10 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD also released the employers from all claims for withdrawal lia- bility under contract or under Title IV of the Employee Retire- ment Income Security Act of 1974 (ERISA). 2. The Ports America Outer Harbor (PAOH) agreement Another $3 million settlement was reached in August 2016, between the IAM and the employers operating in the original bargaining unit terminals in Oakland (Ports America Group, Inc., Outer Harbor Terminal LLC, MTC Holdings, and Marine Ter- minals Corp.). (R. Exh. 16.) That settlement agreement states in pertinent part: The settlement payment will be allocated to such payees as the Machinists may designate, provided that the payees have a good faith claim of loss. It is further provided that no part of the Settlement Amount shall be utilized to satisfy any claim for dues which may ultimately (sic) found to have been unlawfully paid to the ILWU and the Settlement Amount does not include reimbursement for any dues paid to ILWU or which was not paid to the Machinists. The settlement agreement does how- ever relieve OHT, MTC-H and MTC of any responsibility to reimburse such dues. The $3 Million shall be the total amount payable by Companies. The recipients of the money shall be solely responsible for taxes, if any, due because of the receipt of said money. (R. Exh. 16.) The PAOH Agreement also released the employers from all claims for withdrawal liability under contract or under Title IV of ERISA. 3. The General Counsel and Charging Party’s positions The General Counsel and the Charging Party assert that the payments to employees under these settlement agreements were for lost wages and benefits and did not include any reimburse- ment of the dues and other monies paid to the ILWU. The General Counsel and Charging Party assert that no money was paid to employees to reimburse them for dues or other fees associated with their ILWU membership, and therefore no offset is appropriate. With regard to the PCMC/PMMC Agreement, IAM’s Assistant Director Don Crosatto and Directing Business Representative Daniel Morgan said that none of the settlement money was allocated to reimburse employee for dues and other fees paid to the ILWU. (Tr. 284, 295.) Oakland received approx- imately 35 percent of the gross settlement amount, with the re- mainder to Tacoma. Approximately $1.7 million went to the IAM Trust Pension Fund. (Tr. 243, 252; R. Exh. 15.)15 According to Crosatto, the money allocated to the employees was less than make-whole relief. In making his calculations to distribute the settlement money, Crosatto based all hourly eco- nomic losses on the wage rate that existed in 2004 under the IAM’s collective-bargaining agreement for the full reimburse- ment period of 2005 to 2013, even though he is certain there were subsequent wage increases. Vacation reimbursement was also 15 Respondent’s Exhs. 15, 16–19 were received under seal. Accord- ingly, while this decision refers to and considers the precise calculations in these exhibits, their specific terms are not discussed. 16 Under the then-existing Machinists’ collective-bargaining agree- ment, employees were entitled to a supplemental $2,146.17, from which $700 was allocated to the pension fund, and another portion allocated to calculated at the static 2004 wage rate. (Tr. 264–265, 269–270.) In addition, the calculations did not account for various types of overtime or other premium pay the employees earned under the IAM’s collective-bargaining agreement because making these calculations would have been impossible. (Tr. 235–238.) Fi- nally, he did not account for the wage differences between the tiered wage structure of the ILWU’s collective-bargaining agree- ment and the IAM agreement, which required the employee to take a pay cut until they reached A status. (Tr. 283.) Crosatto allocated payment based on the time the employee had in the PCMC bargaining-unit, because those who were there the longest had the greatest losses. Based on the remaining avail- able settlement proceeds, the number of eligible employees (40), and the number of months (100), that the employees performed work in the PCMC bargaining unit, each employee received $460 for every month he or she worked in the PCMC unit. Some employees who had been on disability status and then went into retirement received a smaller payout of around $2,767. (Tr. 253– 254; R. Exh. 15.) The IAM pension fund was not fully compensated for the loss of investment resulting from the unfair labor practices. A lump sum of $840,000 was allocated to the trust to “offset for un- funded liability that would have been due” under the collective- bargaining agreement and was “not for individual credit to the members.” (Tr. 294.) There was no compensation or credit to employees in any other part of the settlement agreement to make up for the fact that they were not getting pension credits. (Tr. 295.) Employees also were not compensated for annuities they lost out on as a result of the unfair labor practices.16 The settlement agreement explicitly excluded tax payments for any adverse tax consequences resulting from the payment of a lump sum to each employee. (R. Exh. 14). Finally, certain out-of-pocket expenses were not reimbursed under the settlement agreement. (Tr. 266.) As to the PAOH Agreement, Crosatto believed the settlement fell severely short of the real losses incurred by the employees as the employers were credibly threatening bankruptcy. Crosatto testified, “the damages both in terms of lost wages and benefits certainly the damages to the trust funds were a lot greater than the amounts we settled for.” (Tr. 277; R. Exh. 17.) 4. The Respondent’s position The Respondent contends that full reimbursement of dues and other fees paid to the ILWU would result in a windfall for the employees and be punitive. The Respondent, using Social Secu- rity records and information provided by the Charging Party, cal- culated gross backpay and non-wage losses incurred as a result of PMMC’s unfair labor practices. The Respondent describes the process it used to determine backpay and what it asserts should be offsets: In calculating gross backpay, ILWU has adopted calculations cover health and welfare costs, and the remainder, at that time in 2004, about $600 went to the “trustee directed 401k plan” for the employees’ direct benefit. (Tr. 254–255; R. Exh. 13.) For employees who worked the entirety of 2005 to 2013, Crosatto calculated a loss of about $560 a month in pension benefits for the rest of their lives. (Tr. 281.) LONGSHOREMEN ILWU (PACIFIC CRANE MAINTENANCE CO., INC.) 11 from the Charging Party regarding non-wage losses incurred as a result of the unfair labor practices found against PCMC (an- nuity [IARP], vacation pay, holiday pay) and estimated costs using information from the Charging Party where the Charging Party did not provide specific calculations (Tacoma pension, average per year annuity (IARP), average per year vacation pay, average per year holiday pay). Because the individuals had health coverage under both the PMMC-IAM Agreement and PMA-ILWU Agreement and because the Charging Party did not provide any specific information about additional medical costs associated with coverage under the PMA-ILWU Agree- ment and did not assert any such loss, ILWU assumed that loss of health coverage under the PMMC-IAM Agreement was fully offset by health coverage provided under the PMA-ILWU Agreement. This is especially the case given that the PMA- ILWU Agreement provides full retiree medical coverage, and the PMMC-IAM Agreement does not provide any retiree-med- ical coverage. Tr. 286 (Crosatto), Ex. R-13. In calculating wages for gross backpay, ILWU has looked to the Social Security Administration (“SSA”) Itemized State- ments of Earnings provided by the Compliance Officer during the hearing listing individual earnings in 2004 or earlier if 2004 earnings appeared to be unusually low and, where no individ- ual data was collected by the Compliance Officer, the ILWU used averages per year to estimate individual earnings in 2004. See Exs. R-4, R-5. This assumption likely over-estimated gross backpay because if the unfair labor practices found in this case had not occurred, the Charging Party would have negotiated economic concessions in order to avoid layoffs. See PCMC, 359 NLRB at 1210 (2013) (“Thus, the Respondent Employer could have bargained with the Machinists over the transfer of the unit employees to PCMC without an intervening layoff and loss of seniority. Alternatively, it could have maintained the unit employees’ terms and conditions while it negotiated with the Machinists over cost saving concessions.”); Tr. 270 (Mr. Crosatto explaining that the Charging Party did not ever “con- sider[] or contemplate[]” transferring the unit of employees to PCMC, with ILWU representation); see also CHM § 10542.5 (“If the gross employer’s operations or employee complement were reduced during the backpay period, it may be that the dis- criminatee would have lost employment and earnings even if there had been no unlawful action.”). The ILWU calculated in- terim earnings using the same SSA statement reports obtained by the Compliance Officer and likewise calculated averages by year for individuals for whom the Compliance Officer had not obtained reports. Using this information, ILWU calculated net backpay for each individual listed in the Second Amended Compliance Specifi- cation who received payments under the PCMC and PAOH settlements. ILWU then compared the net backpay for each in- dividual to the reimbursement amount for that individual to de- termine whether the individuals were fully compensated for all economic losses by the settlement payments they received and, if so, whether they received any money in excess of their net backpay. If they received money in excess of their net backpay, ILWU offset those excess amounts from the amount of money the General Counsel is seeking ILWU reimburse for back dues, fees, fines, and assessments. (R. Br. 26–27.) The Respondent then performed specific calcu- lations for the employees for both the Oakland and Tacoma lo- cations using a variety of criteria and calculation methods and making certain assumptions. (R. Br. 30–39, Appx. A–F.) 5. Legal principles and analysis In Urban Laboratories, Inc., 305 NLRB 987, 987–988 (1991), the Board cited to Zenith Radio Corp. v. Hazeltine Research, 401 U.S. 321, 342–348 (1971), and adopted to so-called “modern rule” holding that “a release of one joint tortfeasor does not re- lease the other joint tortfeasor unless that is the intention of the parties.” The settlement agreement at issue in Urban Laborato- ries expressly provided that settlement with one of the respond- ents, Mr. Combs, did not affect the potential liability of the other respondents. Applying the modern rule, the Board found that approval of the partial settlement with Mr. Combs did not extin- guish the claims against the remaining respondents. See also Re- gional Import and Export Trucking Co., 323 NLRB 1206, 1207 (1997) (Union could not use arbitration award it helped obtain against employer to reduce its liability for its unlawful conduct). Here, the settlement agreements at issue likewise did not re- lease the ILWU from liability, expressly or otherwise. Quite the opposite: They expressly agreed that the settlement agreements did not include reimbursement for union dues. The question that remains is whether the ILWU is entitled to an offset. Under the plain terms of both settlement agreements, the money is restricted to remedy losses due to the employers’ ac- tions of laying off employees and ceasing payment into pension and benefit funds. Under the plain terms of both settlement agreements, the money is not to be used for reimbursement of union dues and fees. I find the disbursements, detailed in Crosatto’s testimony and set forth in the documentary evidence, persuasive evidence that the employees did not receive a wind- fall. (R. Exhs. 15, 17–19.) Accordingly, I do not find any em- ployee’s dues reimbursement should be offset by the money the employers tendered pursuant to settling their claims for lost wages and benefits. The Respondent essentially seeks to litigate the amount of backpay the Employer owes to the employees for wages and other benefits. No backpay specification is before me as I am not adjudicating the amount of backpay the Employer owes any employee. These claims were settled, presumably to avoid liti- gating the precise amount of backpay owed. The process for calculating backpay is a time-consuming, te- dious, and difficult exercise. The NLRB Casehandling Manual (Part Three) Compliance (CHM), outlines detailed and lengthy procedures for determining backpay. CHM, §§ 10536–10568. The product of this process, a backpay specification, can gener- ate much dispute. Litigation of the backpay specification is often as time-consuming, tedious, and difficult as the process that cre- ated it. I find the Respondent’s attempts to show the settlement agreements overcompensate the employees for the backpay and benefits owed them by the Employer fall short, and they do not effectively rebut the General Counsel and Charging Party’s 12 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD evidence that the disbursements excluded union dues owed by the Respondent.17 VII. OPT-IN/OPT-OUT Finally, the Respondent argues that special circumstances warrant imposing a requirement on the employees to opt in or opt out of reimbursement of their dues, fees, fines, and assess- ments. I can find no authority to impose a requirement for em- ployees to opt in to receive their make-whole remedy, or to per- mit them to opt out. It is easy to understand why there are not opt-in/opt-out options in the Board’s orders directing a make- whole remedy. The remedial aim of a Board order is restoration of the situation, as nearly as possible, to that which would have existed but for the unfair labor practice or practices. Phelps Dodge Corp, supra. The Board orders employers and/or unions to make the employees whole; It does not put to onus on the em- ployee to ask employers or unions to make them whole, or to make the choice as to whether to receive the make-whole relief. VIII. CONCLUSION On these finding of fact and conclusions of law and on the entire record, I issue the following recommended SUPPLEMENTAL ORDER It is hereby ordered that Respondent International Longshore and Warehouse Union, and its officers, agents, successors and assigns, satisfy the obligation to make whole the following em- ployees and former employees by paying them the following amounts (which totals $1,697,541.81), plus interest accrued to the date of payment as prescribed in New Horizons, 283 NLRB 1173 (1987), and Kentucky River Medical Center, 356 NLRB 6 (2010): Employee Name Grand Total Alvarez, Manuel C 21,300.96 Amador, Jose 605.10 Ayala, Nelson A 22,970.84 Baldwin, John P 23,158.24 Bell, David B 4,178.80 Bennesen, Neil K 12,846.48 Boardman, David E 13,964.33 Byers, Nordan A 2,773.95 Castanho, Dominic J 605.10 Castillo, Randall J 15,318.30 Ceccarelli, Matthew C 302.55 Cheung, Jayson T 7,014.10 Costa, John L 22,408.24 da Silva, Stephen M 5,575.25 Dake, Kevin J 2,823.80 De Leon, Walter E 504.25 Dela Cruz, Isabelo O 23,358.24 Dimassimo, James J 1,411.90 Fairfield, Joe A 605.10 Gonzalez, Juan 1,890.00 Gonzalez, Juan B 1,890.00 17 This is particularly true considering the Charging Party’s calcula- tions froze wages at the 2004 rate. See Churchill’s Supermarkets, 301 Gouveia, Brian D 3,240.50 Grimsley, Charles F 22,310.92 Guevara, Juan M 22,055.84 Guevara, Robert 605.10 Haag, Kenneth P 2,017.00 Hernandez, Arthur V 22,307.36 Horton, George H 5,993.70 Juarez, Ruben 21,855.84 Kun, Brian M 605.10 Lau, Jack C 6,136.20 Le, Nhanh H 4,941.10 Letcher, Ron P 22,214.08 Lincoln, Charles F 2,695.80 Logie, Scott C 2,823.80 MacKenzie, Scott J 6,605.40 Martin, Robert J 21,012.69 Martin, Robert J, Jr. 1,919.60 Martinez, Anthony D 7,156.50 Maynard, Bryan R 2,624.40 McLeod, John N 2,823.80 McClean, John F 23,898.24 McIntosh, Glen T 21,855.84 Orellana, Alfredo E 21,855.84 Padilla, Hector A 23,848.24 Paredes, Francisco J 19,136.69 Parker, Howard L 5,035.70 Payne, Bobby R 22,960.94 Philpott, Doug E 22,792.74 Piazza, Michael E 2,374.00 Pierce, Glen A 23,083.24 Punla, Kenneth V 17,036.29 Quijano, Luis A 22,705.84 Robles, Jose G 21,905.84 Robles, Jose L 1,815.30 Rodrigues, Gary D 1,008.50 Rohse, Gordon A 19,350.38 Sensabaugh, Thomas E 605.10 West, Clinton E 5,823.99 White, David S 1,815.30 Willis, Milton G 23,258.24 Wright, John C 2,823.80 Ahlgren, Herbert M 27,520.00 Anderson, Harvey R 24,510.65 Ashmore, William S 1,349.75 Barczak, Joseph J 26,082.15 Been, Nathan B 2,189.45 Bock, Eric H 279.90 Butchart, Randall J 24,095.45 Cable, Ralph W 949.75 Chaney, Arch A 886.70 Coles, Gregory D 19,622.70 Conde, Oscar J 24,396.65 NLRB 722, 723 (1991) (Appropriate to factor wage increases into back- pay calculations). LONGSHOREMEN ILWU (PACIFIC CRANE MAINTENANCE CO., INC.) 13 Coudriet, Harry J 24,377.55 Coudriet, Wayne L 26,223.55 Davidson, Dan J 9,599.25 DeSerisy, Floyd J 4,677.75 Douglas, William J 26,090.95 Finn, Terence 27,043.05 Fulton, Jim W 34,669.65 Gagne, Steven J 26,121.65 Gallian, Dale A 25,458.50 Gorham, Dana V 15,618.50 Guyton, Michael M 23,794.55 Harding, Kirchie D 2,469.35 Hawkins, Glen D 3,110.80 Hoffman, Terry D 28,257.70 Hooper, William P 25,178.65 Hughley, Calvin 28,303.70 Jennings, Danna I 17,575.65 Karlin, Jonathan F 17,653.90 King, Jeffrey L 24,650.60 Lacher, Ralph 28,756.00 Leinum, Brent E 3,478.95 Lenzen, Marty D 1,069.85 Locke, Ella M 5,675.20 Logan, John R 5,005.35 Lucero, Ernest D 26,243.05 Manson, Jared H 529.90 Massier, Sean M 389.95 May, Merl M 669.85 McCarty, Dale W 9,147.60 Messner, James Ellis 1,620.40 Moore, Michael S 1,069.85 Nelson, Douglas A 27,167.40 Newman, Richard L 16,593.50 Oades, Eugene K 24,790.55 OBrien, Kenneth V 650.00 Otto, Chris R 24,910.15 Pachal, Richard M 26,270.35 Paulson, Tom C 949.75 Perrine, Matthew N 2,699.05 Phonesaithip, Norkhou 28,410.25 Stevenson, Brandon 529.90 Suchan, David D 27,754.30 Swanson, Mark J 4,549.35 Taylor, Kent C 28,544.60 Theoharis, Jacob N 669.85 Thompson, Rex A 10,490.55 Thongvanh, Bryan K 34,795.60 Thornbrugh, Claude A 8,848.70 Tucker, Mario P 4,532.70 Upshaw, Andrew J 1,489.70 Walters, Clarence 28,081.90 Westhead, John J 3,309.05 Wilcher, William A 20,958.40 Willecke, Richard A 29,873.75 Williams, Glenn P 8,795.95 Wilper, Michael C 9,623.05 Worrell, Darwin W 24,262.05 Total: $1,697,541.81