Carpenters Union Local 180

National Labor Relations Board - Board Decisions

May 9, 1969

175 N.L.R.B. 927 (N.L.R.B. 1969)

CARPENTERS UNION LOCAL 180
Carpenters Unign'- Local 180, United Brotherhood of
Carpenters and Joiners of America , AFL-CIO
(Golden State Runway and Engineering Company,
et al.) and Richard A. Allen. Case 20-CB-1438
May 9, 1969
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
JENKINS AND ZAGORIA
On January 16, 1967, the National Labor
Relations Board issued a Decision and Order in the
above-entitled case, finding, inter alia, that
Respondent had caused discrimination against Paul
C. Allen, Richard A. Allen, and Dick J. Look in
violation of Section 8(b)(2) and (1)(A) of the
National Labor Relations Act, as amended, and
directing Respondent to make whole these
individuals for any pay losses they many have
suffered thereby.' Thereafter, on April 19, 1968, the
Board's Order was enforced by the United States
Court of Appeals for the Ninth Circuit.'
On July 26, 1968, the Regional Director for
Region 20 issued and served on the parties a
backpay specification and notice of hearing, and
Respondent filed an answer to the backpay
specification. Pursuant to notice, a hearing was held
before Trial Examiner George H. O'Brien on
November 25, 1968, for the purpose of determining
Respondent's backpay obligations to Paul C. Allen,
Richard A. Allen, and Dick J. Look.
On February 10, 1969, the Trial Examiner issued
the attached Supplemental Decision, in which he
found the three discriminatees herein to be entitled
to backpay in the amounts specified. Thereafter,
Respondent filed exceptions to the Trial Examiner's
Supplemental Decision and a supporting brief, and
the General Counsel filed limited cross-exceptions,
and a brief in support of the Trial Examiner's
Supplemental Decision.
Pursuant to the provisions of Section 3(b) of the
Act, as amended, the Board has delegated its powers
in connection with this case to a three-member
panel.
The Board has reviewed the rulings made by the
Trial Examiner at the. supplemental hearing and
finds no prejudicial error was committed. The
rulings are hereby affirmed. The Board has
considered the entire record in this case, including
the Supplemental Decision, the exceptions and
briefs, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner.'
'162 NLRB 950.
'After the Board filed a petition seeking enforcement of its Order,
Respondent consented to the entry of a decree enforcing the Board's
Order.
'The General Counsel excepts to the Trial Examiner's alleged findings
with respect to the absence of a contractual seniority provision and the
ORDER
927
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the Board hereby orders
that Respondent , Carpenters Union Local 180,
United Brotherhood of Carpenters and Joiners of
America , AFL-CIO, its officers , agents, and
representatives , shall pay to Paul C . Allen, Richard
A. Allen, and Dick J . Look, as net backpay, the
amounts set forth in the attached Trial Examiner's
Supplemental Decision.
TRIAL EXAMINER'S SUPPLEMENTAL
DECISION
STATEMENT OF THE CASE
GEORGE H. O'BRIEN , Trial Examiner: This
supplemental proceeding under Sections 102.52 through
102.59 of the Rules and Regulations of the National
Labor Relations Board was heard in San Francisco,
California , on November 25, 1968, on an Amended
Backpay Specification ' issued by the Regional Director,
Region 20 , on October 2, 1968 , and the Answer of
Carpenters Union Local 180, United Brotherhood of
Carpenters and Joiners of America , AFL-CIO, herein
called the Union . The purpose of the proceeding is to
determine the precise sums of money due and owing from
the Union to three individuals under a decree of the
United States Court of Appeals for the Ninth Circuit. At
the hearing the parties who appeared , as noted above,
were afforded a full opportunity to examine and
cross-examine witnesses , to introduce evidence , to present
oral argument and to file briefs.
Upon consideration of the entire record in this
supplemental proceeding , including briefs filed by counsel
for the General Counsel appearing in this matter as
counsel for the Regional Director and by counsel for the
Union, and in reliance upon the Board 's Decision and
Order in the above-entitled matter issued January 16,
1967, reported as 162 NLRB No. 92, of which I take
official notice, I make the following:
FINDINGS OF FACT
A. The Board Order and Court Decree
On April 19, 1968, The United States Court of Appeals
for the Ninth Circuit, in a matter entitled National Labor
Relations Board, Petitioner v. Carpenters Union Local
180, United Brotherhood of Carpenters and Joiners of
America , AFL-CIO, Respondent , No. 22,296 entered its
consent decree enforcing the Board 's order of January 16,
1967, herein.
The Board's order directs the Union to, inter alias
Make whole Paul Allen , Richard A. Allen and Dick
Look for any pay losses they may have suffered as a
result of the discrimination which Respondent Union
probability that Paul C Allen would have been selected for early layoff
because of his age The Trial Examiner 's Supplemental Decision reflects,
however, that he made no such findings , but merely repeated the
contentions of Respondent as argued in its brief.
'The original Backpay Specification which issued July 26, 1966, was
followed by a number of motions, responses, answers, and orders, all of
which were superceded and rendered moot by the Amended Backpay
Specifications on which issue was joined herein.
175 NLRB No. 150
928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
caused to be practiced against them , in the manner set
forth in the "remedy" section of this decision.
The "remedy" section, incorporated by reference in the
Board's order reads, in pertinent part:
Pursuant to Respondent Union's discriminatory policy
and practices , Paul Allen, Richard Allen and Dick
Look were denied registrations for work promptly upon
request, and as a result were denied dispatch to
available work . . Respondent Union [shall] make
these complainants whole for any losses of pay, or other
incidents of the employment relationship, which they
may have suffered by reason of the discrimination
practiced against them with respect to employment
registration and dispatch, by the payment to each of
them of sums of money equal to the amount which each
normally would have earned as wages for millwright
work, had they been registered for work, promptly upon
request, and had they been dispatched for work
pursuant to contractually -sanctioned procedures
thereafter. Such payments should cover the sums which
each complainant designated would have earned
between August 23rd or August 30, 1965 respectively -
whichever date may be applicable - and the date or
dates when the jobs for which they would have been
dispatched, absent discrimination, were terminated, less
their net earnings, if any during that period. In
computing the sums due, the Board ' s customary
formula - which F. W. Woolworth Company, 90
NLRB 289, sets forth - with 6 percent interest added,
which Isis Plumbing and Heating Co., 138 NLRB 716,
requires, shall be followed.
The findings of fact on which the Board predicated its
order include the following:
The Union was party to a contract with Associated
General Contractors, Northern and Central California
Chapters which contained hiring provisions which
establish an exclusive referral system for dispatching
"qualified and competent" workmen pursuant to requests
from construction contractors. Golden State Runway and
Engineering Company , the Employer herein, was bound
by its subcontract with Bigge Drayage, an A.G.C.
member to abide by the hiring provisions of the union
contract. On August 23, 1965, for discriminatory reasons,
the Union refused to register on its out-of-work list, two
millwrights, Paul C. Allen and Richard A. Allen, father
and son . On the morning of August 30, 1965 the Union
for discriminatory reasons refused to register a third
millwright, Dick J. Look. On the afternoon of August 30,
the Union did register, on its out-of-work list the name of
a fourth millwright, Arthur D. Cook. About 5 p.m. on
August 30, Merl Ross, millwright foreman for Golden
State Runway, asked the Union to dispatch two
millwrights to its American Home Products' Vacaville
Construction Project. Cook was dispatched and went to
work on August 31. Onest Wadley, who was currently
employed as a carpenter , and whose name was not on the
Union's out-of-work list, was issued a referral to Golden
State and reported as a millwright on the Vacaville
project on September 1.
B. The Backpay Hearing
The Amended Backpay Specification recites that Paul
C. Allen is entitled to backpay for the period from August
23, 1965, through June 3, 1966, the date on which Golden
State last employed millwrights on the American Home
Products construction project, and that an appropriate
measure of the hours Paul Allen would have worked is the
number of weekly hours worked by the most senior
employee for Golden State in place of Paul Allen during
each week of the backpay period. These hours are
computed by taking (1) all the hours worked by Arthur
Cook, whose first day of employment was August 30,
1965, and whose last day of employment was September
30, 1965, by adding thereto (2) all the hours worked by
Onest Wadley from October 4, 1965, through November
8, 1965, when Wadley ceased to be employed, and (3) by
adding thereto all the hours worked by John McGuigan
from November 11, 1965, through March 30, 1966, when
his employment ceased. McGuigan had started work on
the project on September 15, 1965, and after the
departure of Wadley, on November 8, 1965, was the only
millwright on the job until about March 1, 1966. The
Specification concludes that, absent discrimination, Paul
Allen would have been paid for a total of 960 hours
(includes adjusted overtime) and that the backpay due to
him (after allowing the Union a credit of $3,424 interim
earnings ) and excluding interest is $1,564.2
Using the same formula, the Amended Specification
allocated to Richard A. Allen the number of hours
worked by the second most senior millwright on the job
during the period from August 23, 1965, through March
25, 1966. After allowance for interim earnings, the total
backpay claim of Richard Allen is $162. Again using the
same formula, the Amended Specification allocated to
Dick J. Look the number of hours worked by the third
most senior millwright on the job during the period from
August 30, 1965, through March 12, 1966. After
allowance for interim earnings and excluding interest, the
total backpay claim of Dick J. Look is $336.
The Union's answer denies generally that any backpay
is owing , denies that the specification describes an
appropriate measure of the hours any discriminatee would
have worked, and disclaims any knowledge of the number
of hours worked or pay received by any millwright on the
job. At the opening of the hearing the General Counsel
moved to strike certain paragraphs of the Union's answer
and moved, pursuant to Section 102.54 of the Board's
Rules, that the allegations of the Amended Specification
be deemed to be admitted to be true and found by the
Trial Examiner to be true , basing these motions on the
failure or refusal of the Union to comply with the
requirements of Section 102.54 of the Board's Rules,
which states:
. The respondent shall specifically admit, deny or
explain each and every allegation of the specification,
unless the respondent is without knowledge, in which
case the respondent shall so state, such statement
operating as a denial .... As to all matters within the
knowledge of the respondent , including but not limited
to the various factors entering into the computation of
gross backpay, a general denial shall not suffice. As to
such matters, if the respondent disputes either the
accuracy of the figures. . .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
'Calculations in the specification are on a quarterly basis as required by
the express terms of the decree which incorporates by reference the Board's
Woolworth formula. The specification , for completeness, lists all
millwright hours worked during the second quarter of 1966, and asserts
that they should be allocated to Paul Allen. Since no backpay is claimed
for the period, I have disregarded the 8 hours worked by W. T. Meek
during the week ending April 22 and the 56 hours worked by T Ables in
the weeks ending May 27 and June 3 in the foregoing summary
CARPENTERS UNION LOCAL 180 929
supporting figures.: `
Based on the representations of the Union's counsel that
the Union did not know, and could not by reasonable
diligence ascertain the precise hours worked by and
amounts of wages paid to millwrights on the job to which
the discriminatees were denied employment, I denied the
motion of the General Counsel. Under well established
authority, the burden is on the General Counsel to
establish by a preponderance of the evidence the factors
c0:::::: _:::
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"oa= k :k
00 N eq BOO- NN N^.-- ^ --^
et-^ NO 0000-.--- -----
Cook
Wadley
Holly
McGuigan
Newman
Cronhardt
Meek
Ables
X XX
X]NXX XX
Prior to the receipt of testimony, the Union's counsel
conceded the accuracy of the figures in the Amended
Specification as they related to Richard Allen and Dick
Look and stated that my recommended order could
include a finding that the Union owed to Richard Allen
the sum of $191.16 and to Mr. Look the sum of $392.15.
The sums stated by counsel for the Union include interest
at 6 percent per annum computed to September 30, 1968.
Paul Allen, under questioning by the Union's counsel,
testified that he was 71 years old, and had retired in
March 1967, having filed his pension application with the
carpenters' pension fund in January 1967.
At the close of the General Counsel's presentation of
evidence it was stipulated that Paul Allen actively sought
work during the entire period from August 23, 1965,
through June 3, 1966, and that his interim earnings during
that period were as set forth in the Amended
Specification.
C. Arguments of Counsel
The amounts of backpay owing to Richard Allen and
Dick Look having been conceded by the Union, the only
matter here to be decided is the amount of backpay owing
to Paul Allen. Since the accuracy of the figures in the
Amended Specification relating to Paul Allen's backpay
and figures which enter into the computation of "gross
backpay".
The General Counsel met this burden by offering in
evidence through the bookkeeper of Golden State Runway
and Engineering Company, original payroll records of all
millwrights employed by Golden State on its American
Home Products' Vacaville construction project. The
following chart shows the name of each millwright so
employed and the pay periods during which he worked on
the project.
Cook
Wadley
Holly
McGuigan
Newman
Cronhardt
Meek
Ables
"00 C4
^fV 00h.. M^1N O^[^ M00
^ lC O""N M00* NNN M
CLN NMMMM M M M M der d'Q^ Y1\O'-0\0
°'HHv^3wrn 3w
0^0t~N '^o
X X X X
X
X
X
X
X
X X
C X
X
X
X X
have not been challenged, the only issue remaining is the
propriety of the formula used in the Amended
Specification to determine the amount of pay Paul Allen
would have received from the employer, absent
discrimination , i.e., "gross backpay."
The General Counsel argues that Paul Allen should
receive credit for gross backpay for the entire period when
any millwright was employed on the job and that his
assumed earnings should be measured by those of the
most senior millwright then working. This is the
"comparable" or "representative employee" formula
which has been judicially approved by the United States
Court of Appeals for the Fifth Circuit in N.L.R.B. v. East
Texas Steel Casting Co., 255 F.2d 284, and N.L.R.B. v.
Charlie Toppino & Sons Inc., 358 F.2d 94.
The Union's Counsel argues in his brief, that the gross
backpay of Paul Allen should be measured by the actual
earnings of Arthur Cook; i.e., for a strict "counterpart"
formula. It was Cook who obtained the precise job which
was denied to Paul Allen. There is no evidence that Cook
was discharged or that he voluntarily quit. It must be
assumed , therefore, that he was laid off for lack of work.
Seniority is not recognized in the union contract and is
not observed in practice in the construction industry. In
any layoff for lack of work, the first to be let go would be
Paul Allen, who is an elderly man and was close to
retirement. In any layoff for lack of work, the man
930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
certain to be retained would be McGuigan , who was a
permanent employee of Golden State and who worked on
other Golden State jobs before, during, and after the
completion of the American Home Product Vacaville
Construction project.
The Union 's theory was not stated in its Answer which,
to that extent , fails to meet the requirement of Section
102.54 of the Board' s Rule that respondent shall,
"specifically state the basis for his disagreement , setting
forth in detail his position as to the applicable premises . .
." The Union's counsel , though reminded of his obligation
under the Board' s rule, did not enunciate his
"counterpart" theory at the supplemental hearing , nor did
he tender evidence in support thereof (other than the
testimony of Paul Allen that he is 71 years old and
presently retired).
D. Conclusions
I find that the formula adopted in the Amended
Specification is reasonably designed to obtain as close an
approximation as possible of the amount of backpay
which should be awarded to Paul Allen, and that the
method selected is not, in the circumstances involved,
either arbitrary or unreasonable .' The General Counsel
was not obliged to establish the identity of any particular
replacement or any exact equivalence of jobs or skills. The
General Counsel has established that during the backpay
period designated , millwright work was being performed,
and this is prima facie evidence that, but for the
discrimination , Paul Allen would have been retained.'
Once the fact of discrimination has been found, the
respondent in a backpay proceeding , if he asserts that the
discriminatee would have been separated at some later
date, must sustain the burden of proof.' Since the Union
has tendered no evidence controverting either the figures
in the Amended Specification or the premises on which
they are based, I find that the Amended Specification
correctly states the amount of backpay which the Union is
required to pay to Paul Allen.
Upon the entire record herein I find that the Union's
obligations to the following named employees will be
discharged by the payment to each of the sum or sums set
forth opposite each respective name:
Paul C. Allen $694.00 plus 6% interest from Sept.
30, 1965
Paul C. Allen $394.00 plus 6% interest from Dec. 31,
1965
Paul C. Allen $476.00 plus 6% interest from Mar.
31, 1966
Richard A. Allen $162.00 plus 6% interest from
Sept. 30, 1965
Dick J. Look $47.00 plus 6% interest from Sept. 30,
1965
Dick J. Look $289.00 plus 6% interest from Dec. 31,
1965
RECOMMENDED ORDER
It is recommended that the Board adopt these findings
and conclusions and order Carpenters Union Local 180,
United Brotherhood of Carpenters and Joiners of
America, AFL-CIO to pay the sums indicated.
'N.L R.B. v Brown & Root , Inc, 311 F.2d 447, 452 (C.A. 8)
'Flora and Argur Construction Company, 149 NLRB 583.
'N L R B. v. Biscayne Television Corp., 337 F.2d 267, 268 (C.A 5),
N L.R.B. v. Mastro Plastics Corp., 354 F 2d 170, 175-176 (C.A 2);
Buncher Company v. N.L.R.B. 316 F.2d 928 (C.A 3); Opinion on
Rehearing January 20, 1969.