Center Construction Co., Inc. d/b/a Center Service System Division

National Labor Relations Board - Board Decisions

Sep 29, 2010

355 N.L.R.B. 1218 (N.L.R.B. 2010)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
355 NLRB No. 198
1218
Center Construction Co., Inc., d/b/a Center Service
System Division and Local 370, United Associa-
tion Journeymen and Apprentices of the Plumb-
ing and Pipe Fitting Industry of the United
States and Canada, AFL–CIO. Cases 7–CA–
46490, 7–CA–46696, and 7–CA–46697
September 29, 2010
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN LIEBMAN AND MEMBERS BECKER
AND HAYES
On February 17, 2010, Administrative Law Judge
Richard A. Scully issued the attached supplemental deci-
sion. The Respondent filed exceptions and a supporting
brief, and the General Counsel and the Charging Party
each filed briefs answering the exceptions.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the supplemental decision
and the record in light of the exceptions and briefs, and
has decided to affirm the judge’s rulings, findings,1 and
conclusions and to adopt the recommended Order as
modified and set forth in full below.2
ORDER
The National Labor Relations Board orders that the
Respondent, Center Construction Co., Inc., d/b/a Center
Service System Division, Burton, Michigan, its officers,
agents, successors, and assigns, shall make whole the
individuals named below by paying them the following
amounts together with interest accrued to the date of
payment, computed in the manner prescribed in New
Horizons for the Retarded, 283 NLRB 1173 (1987), mi-

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 The judge ordered the Respondent to instate discriminatee Scott
Mobilio and to reinstate discriminatee Wayne Rose, and to make them
whole for losses suffered after the end date in the present compliance
specification. However, these remedies have already been ordered by
the Board and enforced by the court of appeals, see Center Construc-
tion Co. v. NLRB, 482 F.3d 425 (6th Cir. 2007), and accordingly no
further order directing those remedies is required. The extent of the
Respondent’s continuing backpay liability following the present com-
pliance specification is a matter to be determined in a supplemental
specification, if necessary. See Kentucky River Medical Center, 354
NLRB No. 42, slip op. at 1 fn. 4 (2009), incorporated by reference in
Kentucky River Medical Center, 355 NLRB No. 114 (2010); Ryder
System, 302 NLRB 608, 610 fn. 9 (1991), enfd. 983 F.2d 705 (6th Cir.
1993). We will modify the recommended order accordingly.
nus tax and withholdings required by Federal and State
laws.

Wayne Rose $67,267.71
Scott Mobilio 59,381.48
TOTAL: $126,649.19

Sarah Pring Karpinen, Esq., for the General Counsel.
Hiram S. Grossman, Esq. (Daniel & Grossman, PC), of Flint,
Michigan, for the Respondent.
Tinamarie Pappas, Esq., of Ann Arbor, Michigan, for the
Charging Party.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
RICHARD A. SCULLY, Administrative Law Judge. On August
27, 2005, the National Labor Relations Board (the Board) is-
sued a Decision and Order (345 NLRB 729) in which it found
that Center Construction Co., Inc., d/b/a Center Service System
Division (Respondent) had discriminated against Wayne Rose
and 12 applicants for a journeyman plumber position in viola-
tion of the National Labor Relations Act (the Act).1 The Board
ordered Respondent to offer Rose full reinstatement to his for-
mer job, or if that job no longer existed, to a substantially
equivalent position and to make him whole for any loss of earn-
ings and other benefits suffered as a result of its discrimination
against him. It also ordered Respondent to offer 1 of the 12 job
applicants full instatement to the journeyman plumber position,
or if that job no longer existed, to a substantially equivalent
position and to make him whole for any loss of earnings and
other benefits suffered as a result of its discrimination against
him. Scott Mobilio was selected by Respondent as the appli-
cant it would have hired. The parties being unable to agree on
the amount of backpay due under the terms of the Board’s Or-
der, the Regional Director for Region 7 issued a backpay speci-
fication, dated January 30, 2009, and an amended backpay
specification, dated April 13, 2009.
A hearing on the amended backpay specification was held in
Flint, Michigan, on June 16 through 18, 2009. Briefs submitted
on behalf of the parties have been given due consideration.
Upon the entire record and my observation of the demeanor of
the witnesses, I make the following
FINDINGS OF FACT
At all times material, the Respondent was engaged in the
commercial and residential construction business, which in-
cludes the sales, installation, repair and service of heating, air
conditioning, and plumbing systems. Wayne Rose is a jour-
neyman plumber who was employed by Respondent from
January 2003 until he was unlawfully terminated on September
29, 2003. Rose credibly testified that when he was hired he
was told he would be doing all phases of plumbing work. Dur-
ing the approximately 9 months of his employment, he did

1 On April 3, 2007, the United States Court of Appeals for the Sixth
Circuit entered judgment enforcing the Board’s Order. Center Con-
struction Co. v NLRB, 482 F.3d 425.
CENTER SERVICE SYSTEM DIVISION 1219
plumbing work on new construction projects and renovations
and performed plumbing service and repair work, including,
installation of water heaters and boilers. After Rose was termi-
nated, Respondent hired plumber Bradley Liddell to replace
him and subsequently hired another plumber, Jeff Blasdell,
both of whom performed the same types of plumbing installa-
tion and service work that Rose had performed. Since then
Respondent has hired other employees but has not offered em-
ployment to Rose or Mobilio.
The General Counsel has calculated the backpay due Rose
and Mobilio according to the Board’s standard formula which
uses the amount the employees would have earned but for the
discrimination against them, minus any interim earnings. In the
case of Rose, it is asserted that the backpay period commences
on September 29, 2003, the date he was terminated and contin-
ues until Respondent makes an unconditional offer to reinstate
him. The calculation is based on the number of hours worked
by Liddell, the plumber hired to replace Rose, from September
29, 2003, until September 3, 2005, when Liddell resigned his
position. Thereafter, it is based on the average hours worked
by Respondent’s service technicians, who it is asserted were
doing plumbing work that Rose would have done, multiplied by
the wage rate of Liddell as adjusted to reflect the annual in-
creases given to Respondent’s service technicians. In the case
of Mobilio, the alleged backpay period commences on October
5, 2003, the date that Blasdell was hired, and continues until
Respondent makes an unconditional offer of instatement to
him. Similar to the calculation for Rose, since Blasdell re-
signed on August 15, 2004, from that date forward the General
Counsel used the average hours worked by Respondent’s ser-
vice technicians multiplied by Blasdell’s wage rate as adjusted
to reflect the annual increases given the service technicians.
Although Respondent raised numerous objections and al-
leged affirmative defenses in its answer to the backpay specifi-
cation, it has pursued only three in its posthearing brief. Re-
spondent contends that in determining the backpay owed Rose
and Mobilio the General Counsel should not have considered
work performed by its service technicians and that its backpay
obligation to Rose and Mobilio ended when the plumbers who
had replaced them, Liddell and Blasdell, quit their employment
with it due to lack of work and were not replaced. This was
August 2004 in the case of Mobilio and September 2005 in the
case of Rose. It further contends that if backpay is awarded for
periods after those dates the General Counsel’s computation is
inflated because it includes work done by service technicians
that neither Rose nor Mobilio would have performed. It also
contends that in computing interim earnings for Rose and Mo-
bilio it was unfair for the General Counsel not to take into con-
sideration all of the overtime hours they worked.
ANALYSIS AND CONCLUSIONS
A backpay order is designed to vindicate the policies of the
Act by making the employees whole for losses suffered on
account of the unfair labor practices. Nathanson v. NLRB, 344
U.S. 25, 27 (1952). When loss of employment is caused by a
violation of the Act, the finding of an unfair labor practice is
presumptive proof that some backpay is owed.
St. George Warehouse, 351 NLRB 961, 963 (2007); Weldun
International, 340 NLRB 666, 671 (2003); Beverly California
Corp., 329 NLRB 977, 978 (1999). It is the General Counsel’s
burden to show the amount of gross backpay due each claimant.
The burden then shifts to the respondent to negate or mitigate
its liability. Weldun International, supra; Hansen Bros. Enter-
prises, 313 NLRB 599, 600 (1993). The General Counsel is
allowed wide discretion in selecting a formula to determine the
backpay due. A formula which closely approximates what the
claimants would have earned had they not been discriminated
against is acceptable if it is not unreasonable or arbitrary under
the circumstances. Met Food, 337 NLRB 109, 110 (2001); La
Favorita, Inc., 318 NLRB 902, 903 (1995). A backpay claim-
ant should receive the benefit of any doubt rather than a re-
spondent, the wrongdoer responsible for the uncertainty and
against whom any uncertainty must be resolved. Alaska Pulp
Corp., 326 NLRB 522, 523 (1998).
Here, the backpay formula employed by the General Counsel
initially used the hours worked by plumbers employed by the
Respondent, but once there were no longer any plumbers work-
ing for it, the hours worked by service technicians were used.
Moreover, the General Counsel asserts that the backpay period
for Rose and Mobilio continues to run because Respondent has
never made an offer of employment to either. The issue is
whether under the circumstances this formula was reasonable
and appropriate. Respondent asserts that it was not because the
backpay period ended when its only journeymen plumbers quit
their employment due to lack of work and were not replaced.
The Respondent relies on cases in which the Board has held
that backpay period had ended where the employer established
that the discriminatees would not have been employed beyond a
certain date. These cases involved situations, such as, where
the employer established that discriminatees would have been
laid off for legitimate economic reasons, including, lack of
work, cessation of the employer’s business operations, and a
significant change in the nature of the employer’s business
operations which resulted in a reduction of the number of em-
ployees required. It contends that, after plumbers Liddell and
Blasdell left its employ, it was no longer doing any new con-
struction work and that is the only work Rose and Mobilio
could have done for it.
I find that Respondent has not established that there was
such a significant change in its business operations in 2004 and
2005 as to relieve it of liability for backpay to Rose and Mo-
bilio or that they would have been laid off due to lack of work.
On the contrary, the evidence shows that even today there is
little that is different in Respondent’s overall business than was
the case before it engaged in the unlawful discrimination
against them. On its current website, Respondent states that
since 1967 it has been “a full service heating, cooling, plumb-
ing and commercial refrigeration company.” Its current busi-
ness cards describe it as doing commercial and residential
plumbing, heating, cooling and refrigeration and it is listed in
the current telephone book Yellow Pages under “Plumbing
Contractors.” Respondent’s vice president Kristina Eagleson
testified that after 2005, although the company no longer had
separate new construction plumbing and heating departments, it
still continues to bid on new construction plumbing jobs and on
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1220
plumbing remodeling jobs and still does plumbing service
work. As she put it, “we haven’t changed anything besides we
don’t have two departments because the economy doesn’t bear
it.” In other words, while the volume of work may have de-
creased somewhat, there was no essential change in the types of
work Respondent has been performing.
The evidence also does not support the Respondent’s claim
that the only person employed by it since Liddell and Blasdell
left its employ to have done plumbing work for it was Kristina
Eagleson. Union Business Agent Mark Johnson’s credible and
uncontradicted testimony shows that in the fall of 2007 he met
with Kristina and company President Robert Eagleson who told
him that nine of Respondent’s ten employees were performing
plumbing work, including, installation of water heaters and
bathroom remodels and that it was interested in signing Local
370’s current collective-bargaining agreement. He had a simi-
lar discussion with Respondent’s representatives in early 2009.
Phillip Murphy, who is currently employed by Respondent as a
service technician, described the work he has regularly per-
formed for the past 10 years as including “lots of different types
of plumbing repairs, sinks, sump pumps, water heater change-
outs, water heater repair and just about anything that comes up
along the repair lines.” He said that almost every time he re-
placed a water heater it required new piping and replacement of
a dielectric union.
Johnson, who is a licensed plumber with 20 years of experi-
ence in that field and has served on a committee that drafted the
Michigan plumbing statute, testified that changing and recon-
figuring piping and replacement of dielectric unions involves
plumbing work as defined in that statute. Such work requires a
plumbing permit and that the work be performed by a licensed
plumber, as does anything beyond a minor repair to a plumbing
system. Johnson testified that the work shown on many of the
Respondent’s service sheets during the backpay period falls
within the definition of plumbing work in the state statute. The
evidence clearly establishes that Rose and Mobilio who are
journeyman plumbers were qualified to do such work.
Respondent’s argument is that when it employed plumbers
they were part of its new construction plumbing department
which no longer exists. They performed only construction and
major home remodeling work and its service technicians, not its
plumbers, always performed the installation, service, and repair
work described by service technician Murphy, notwithstanding,
the fact that such work may fall within the statutory definition
of plumbing work. Thus, it contends that since it no longer has
a new construction plumbing department, it has no jobs for
Rose and Mobilio and the backpay period ended when the last
plumber left its employ.
First, this argument is not supported by the evidence. Rose
credibly testified that when he interviewed for the job with
Respondent he was told it involved “all phases” of plumbing
work, not just construction. He said that during the approxi-
mately 9 months he worked for Respondent he performed not
only new plumbing construction work but plumbing service
work at commercial and residential sites as well. The center
service truck he drove had supplies for use in installation and
service work and he was given a cell phone to use to request
parts when needed on a service call. At times, he was sent to
perform service jobs and was supervised by Service Depart-
ment Manager Lonnie Katz. He filled out a service ticket and
collected money for the service calls he made just as Respon-
dent’s service technicians did. Some of the service calls he
recalled involved the installation or replacement of boilers, well
and sump pumps, repair or replacement of water heaters, repair-
ing leaks, replacing pipes, and clearing drains. The Respon-
dent’s records corroborate his testimony that he performed a
substantial amount of service as opposed to construction work
while he was employed by it. Those records do not establish,
as Respondent claims, that the only plumbing service and repair
work Rose performed involved warranty work related to new
construction or major remodeling jobs. There is also no evi-
dence that plumbers Liddell and Blasdell did not perform the
same kinds of jobs that Rose did while employed by the Re-
spondent.
Second, and more important, Respondent’s argument ignores
the fact that the Board’s Order, as enforced by the court of ap-
peals, requires that if the positions to which Rose and Mobilio
were ordered to be offered reinstatement and instatement, re-
spectively, no longer exist, they must be offered “substantially
equivalent positions.” The evidence shows that throughout the
backpay period designated in the backpay specification Re-
spondent had numerous “substantially equivalent positions”
involving plumbing installation, service, and repair work that
Rose and Mobilio were qualified to perform.2 Accordingly, I
find that Respondent has not established that its business had
changed to such a degree that it was no longer doing plumbing
work similar to that performed by Rose before the discrimina-
tion against him and has not established that it did not have
“substantially equivalent positions” that Rose and Mobilio
could have performed at all times during the backpay period.
Consequently, their backpay has not been tolled. Fluor Daniel,
Inc., 351 NLRB 103, 104 (2007).3
Respondent also contends that the General Counsel should
not have used the hours worked by its service technicians in
computing the backpay due after the plumbers Liddell and
Blasdell left its employ because only a small percentage of the
work they performed involved plumbing work that Rose and
Mobilio would have performed. As noted above, the General
Counsel is allowed wide discretion in selecting a formula to
determine the amount of backpay due. That formula is based
on evidence that its service technicians performed work that
Rose and Mobilio could have performed. Again, Respondent’s
argument is based on its erroneous premise that (1) Rose and

2 I see no merit in Respondent’s claims that because it may perform
work under permits obtained under its mechanical contractors license,
which does not require a licensed plumber, it was excused from offer-
ing employment to Rose and Mobilio. This has no bearing on whether
or not it had “substantially equivalent positions” positions available.
3 In connection with its argument on this issue, Respondent’s post-
hearing brief refers to the Board’s decisions in Toering Electric Co.,
351 NLRB 225 (2007), and Oil Capitol Sheet Metal, Inc., 349 NLRB
1348 (2007). These are salting cases which it apparently claims should
be applicable to the backpay claim of Mobilio. I do not agree. When it
failed to raise these issues in its answer or at the hearing, they were
waived. Moreover, it has failed to establish that Mobilio was in fact a
“salt.”
CENTER SERVICE SYSTEM DIVISION 1221
Mobilio would only have done new construction and remodel-
ing work; and (2) that it had very little of that work, as evi-
denced by the fact that Liddell and Blasdell quit its employ due
to lack of work. First, there is no credible evidence, testimonial
or documentary, to support the hearsay assertion that Liddell
and Blasdell quit due to lack of work. Moreover, Respondent
has not proved its assertion that the plumbing work that Rose
and Mobilio would have done constituted only a small percent-
age of its overall work. Nor, has it shown that there was not
enough work to keep Rose and Mobilio employed throughout
the backpay period. As counsel for the General Counsel points
out, Respondent failed to present any evidence showing the
percentages of plumbing and nonplumbing work it performed.
Such evidence would presumably be in its own records and its
failure to produce it warrants an inference that it would not
have supported Respondent’s position. Rather than producing
that evidence, it seeks to fault the General Counsel for failing to
reconstruct with precision the percentages of such work from
its records. In fact, the General Counsel has made a reasonable
effort to reconstruct and approximate the economic situation of
the discriminatees, but for Respondent’s illegal discrimination
against them. That is all that Board law requires. Respondent
has failed to show that the method used to compute backpay
was unreasonable or arbitrary or to establish facts that negate or
mitigate its liability.
Finally, Respondent contends that the General Counsel erred
in computing interim earnings for Rose and Mobilio by not
using all of the overtime hours they worked but only the over-
time hours equal to the overtime hours worked by Respondent’s
employees during the backpay period. This it says is unfair and
makes the discriminatees better off than they would have been
had they been working for it. The Board has long seen it the
other way around and holds that if a diligent backpay claimant
chooses to work additional overtime during interim employ-
ment it should operate to his advantage not that of the employer
required to make him whole for a discriminatory discharge.
E.g., United Aircraft Corp., 204 NLRB 1068, 1073 (1973);
Regional Import & Export Trucking Co., 318 NLRB 816, 818
(1995).
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended4
ORDER
The Respondent, Center Construction Co., Inc., d/b/a Center
Service System Division, Burton, Michigan, its officers, agents,
successors, and assigns, shall pay to the employees named be-
low the indicated amounts of net backpay with interest as com-
puted in New Horizons for the Retarded, 283 NLRB 1173
(1987), less taxes required by law to be withheld:

Wayne Rose $67,267.71
Scott Mobilio 59,381.48

IT IS FURTHER ORDERED that Respondent shall take the fol-
lowing affirmative action:
Offer Wayne Rose immediate reinstatement to his former
position or, if that job no longer exists, to a substantially
equivalent position, without prejudice to his seniority or any
other rights or privileges previously enjoyed, and make him
whole for all losses he has suffered after the backpay period
computed in the backpay specification, because Respondent has
not made a valid offer of reinstatement to him.
Offer Scott Mobilio immediate instatement to the position
for which he applied or, if that position no longer exists, to a
substantially equivalent position, with the same seniority and
any other rights or privileges he would have enjoyed if he had
been continuously employed by Respondent, and make him
whole for all losses he has suffered after the backpay period
computed in the backpay specification, because Respondent has
not made a valid offer of instatement to him.
Respondent shall continue to be liable for backpay until such
time as it makes a sufficient reinstatement offer to Wayne Rose
and a sufficient instatement offer to Scott Mobilio.

4 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.