Intl. Assn. of Machinists, Lodge No. 68

National Labor Relations Board - Board Decisions

Jan 25, 1977

227 N.L.R.B. 1522 (N.L.R.B. 1977)

1522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Association of Machinists and Aerospace
Workers, San Francisco Lodge No. 68 , AFL-CIO
(West Winds, Inc.) and Kaj Kling. Case 20-CB-
2629
January 25, 1977
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND PENELLO
On July 16, 1976, Administrative Law Judge David
G. Heilbrun issued the attached Supplemental Deci-
sion in this proceeding. Thereafter, Respondent filed
exceptions and a supporting brief. General Counsel
filed an answering brief, the Charging Party filed a
brief in support of the Administrative Law Judge and
cross-exceptions and a brief in support thereof, and
the Respondent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Supplemental Decision in light of the
exceptions and briefs and has decided to affirm the
rulings , findings,I and conclusions of the Administra-
tive Law Judge and to adopt his recommended
Order.2
ORDER
SUPPLEMENTAL DECISION
DAVID G. HEILBRUN, Administrative Law Judge: On
January 2, 1975, the United States Court of Appeals for the
Ninth Circuit entered judgment reinstating a certain order
of Administrative Law Judge Stanley Gilbert and remand-
ing this case to the Board for further appropriate proceed-
ings .) Controversy having arisen over the amount of
backpay due Kaj Kling, amended backpay specifications
were issued and answered March 9 and 22, 1976, respec-
tively.2 The issues relating to determination of "Kling's
monetary loss" (phrasing of the court) were heard as
supplemental proceedings at San Francisco , California, on
March 31 and April 1, 2, 5, and 19, 1976. The amended first
backpay specification alleges that Kling's backpay period
begins October 25, 1971 ("date of his discharge") and ends
August 13, 1975 ("When Respondent embarked upon
compliance with the Board and Court orders entered
herein"). The amended second backpay specification
alleges , in the alternative , that Kling's backpay period
begins October 25, 1971, and ends June 23, 1972. General
Counsel explained this manner of pleading by a statement
of record that the amended first backpay specification was
"the appropriate figure ," while the amended second back-
pay specification was a reflection of Respondent 's conten-
tion that backpay, if any, is limited by a cutoff date of "the
last working day immediately preceding the reporting date
set forth in [notification that Respondent ] had no objection
to Kling's reinstatement with full seniority status," or June
23, 1972. Private counsel for Kling agreed with the position
taken by General Counsel. The parties stipulated that
earnings of George Damon, considered for purposes of this
case as a "replacement" employee, were an appropriate
measure of Kling's gross backpay.
Upon the entire record in this case,3 including my
observation of the witnesses , and upon consideration of
briefs filed by each party, I make the following:
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, International
Association of Machinists and Aerospace Workers,
San Francisco Lodge No. 68 , AFL-CIO, San Fran-
cisco , California, its officers, agents , and representa-
tives , shall take the action set forth in the said
recommended Order.
I The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge It is the Board 's established policy not to
overrule an Administrative Law Judge's resolutions with respect to credibili-
ty unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect Standard Dry Wall Products, Inc, 91
NLRB 544 (1950), enfd 188 F 2d 362 (C A 3, 1951) We have carefully
examined the record and find no basis for reversing his findings
2 In Member Fanning's view , there is some oral and documentary
evidence that the Union did not object to Kling's being reinstated with full
seniority The critical issue , however, is whether that information was
conveyed to the Employer The evidence on this issue is in conflict The
Administrative Law Judge, however, credited the testimony of Rybensky,
the Employer's manager, to the effect that he was told that Kling would have
to return to the bottom of the seniority list Member Fanning after careful
consideration of the record finds the evidence insufficient to overcome that
finding
227 NLRB NO. 223
FINDINGS OF FACT
Following the events upon which Kaj Kling did not
resume employment at West Winds, Inc. (hereafter called
I The underlying case is reported at 205 NLRB 132. In this Decision,
dated July 31, 1973, the Board disagreed with conclusions by the Administra-
tive Law Judge that Respondent had contravened the collective -bargaining
agreement in violation of Sec . 8(b)(1)(A) and (2). It accordingly dismissed the
complaint in its entirety The court's opinion , filed in connection with entry
of judgment on the Charging Party's petition for review, is reported sub nom
Kling v N L R B, 508 F 2d 1044. On March 26, 1975, the Board remanded
this proceeding to the Regional Director "for the purpose of taking the action
required by the Court's opinion ." Subsequently , in response to certain
motions, the Board issued a Supplemental Order dated June 30, 1975,
adopting the Administrative Law Judge's reinstated order "without modifi-
cation " This Supplemental Order was expressly not to be construed as
negating consideration of "the issue of reinstatement of the Charging Party"
which, to the contrary, was deemed to be "part and parcel of the 'make
whole' remedy" therein A further express construction of the court's remand
was to cast the issue concerning "exact time from which the Charging Party
may be entitled to backpay" as one best resolved through compliance or in
formal backpay proceedings.
2 Following substitution of corrected appendixes, an unopposed motion
of General Counsel was granted to conform original words and figures of the
amended backpay specifications to the revised set resulting from much new
appendixes.
3 The transcript is corrected as requested by General Counsel in an
unopposed motion.
INTL. ASSN. OF MACHINISTS, LODGE NO. 68 1523
West Winds or the employer), in late 1971, he was hired at
Marshall Hale Memorial (formerly Hahneman) Hospital.
For several years he worked there as relief engineer on a
full-time basis comprising afternoon and midnight shifts
with certain weekdays off. In this context of personal
availability, Kling was telephoned on June 23, 1972, by
Respondent's business representative, Joseph Barnes, who
had been requested to explore settlement by Robert J.
Carter, Grand Lodge representative of the International
Union. Carter was representative of record for Respondent
as charged party at the time. By arrangement Barnes
traveled to the Kling home and there (accompanied by
fellow Business Representative Tony Hoffman) met with
Kling, whose wife, Barbara Kling, was also present.4
Following discussion, a "full and satisfactory settlement"
was written out and signed by both Barnes and Kling. It
provided for payment to Kling of $2,030.50 as "losses
suffered" and recited that Kling "is free to return to his job
at West Winds with full seniority effective June 26." On this
basis Kling immediately wrote the Regional Office, allud-
ing to this settlement and requesting withdrawal of pending
charges. Barnes returned to Respondent's office, left a copy
of the settlement for the attention of Directing Business
Representative Stanley Jensen and sent a letter dated June
23 to Joseph Brewster, president of West Winds. This letter
stated that "effective June 26, Kaj Kling can be restored to
full seniority at West Winds." 5 Barnes' letter was composed
for him by Carter in the course of a telephone conversation
between the two occurring soon after Barnes returned to his
office that afternoon. Late on June 23 Jensen learned of the
settlement and telephoned Carter, stating its monetary
terms could not be fulfilled .6
On June 26 Carter notified Board Attorney Larry A.
Frankel (later trial counsel of record) that Kling would not
receive backpay as agreed. Frankel promptly relayed
information to Kling that "the agreement didn't go
through." Kling attempted unsuccessfully to reach Jensen
and then "didn't do anything there for a while." Meantime,
by letter dated June 30, Robert Rybensky, operating
manager of West Winds, wrote Kling, stating the Employ-
er's expectancy that he would soon report back to work.?
4 All dates and named months hereafter are in 1972, unless indicated
otherwise.
5 This letter was referred to in the Administrative Law Judge's Decision
as one in which the Union was pernutting Kling's "return to work with his
full senionty rights " It was also the subject of a fn. 7 in which the scope of
affirmative remedy did not include a provision for such notification since
"Respondent had already done so." The court's opinion treated this letter in
its context as a certain Joint Exh J- I of the underlying case and expressed
disinclination to "untangle" content of the letter from its claimed relation-
ship to seniority rights and the ultimate issue of monetary loss
6 This communication was based on Jensen's perception that any
expenditure of local union funds required express membership approval
Jensen felt "upset" at the time and Carter acknowledged that "his position
was sound." Related "continuity" testimony harmonizes with this synopsis,
showing Jensen "alarmed" but "bowling ]" to Carter's role as representative
for Respondent in the pending Board proceeding. Sometime after "that day"
Jensen told Barnes he lacked the right "to commit the funds of the lodge" in
this manner Barnes does not recall further direct involvement, remembering
only that he overheard the Jensen-Carter conversation and guessing that
Jensen overruled the settlement
r This letter was confirmatory of an earlier Barnes-Rybensky conversa-
tion on June 23 Barnes did not recall so informing Rybensky, however, this
facet is inconsequential as Rybensky convincingly recalls such contact and,
in any event, Kling had also advised generally of the presumed settlement
Carter also prepared and mailed a letter dated June 30,
addressed to the Regional Director with copies to interested
persons.8 The letter read:
In reference to the above subject matter enclosed
please find a copy of a letter sent to Mr. Joseph
Brewster of West Winds, Inc., wherein Lodge 68 of our
organization, notified the Employer that Mr. Kling,
could be restored to full seniority effective June 26,
1972.
It is my understanding that this action by Lodge 68,
cuts off any future liability for losses incurred by Mr.
Kling, if in fact it should be determined that any
liability is incurred in the hearings that are presently
pending before your Region or subsequent appeals.
Upon receipt of Carter's June 30 letter, Kling telephoned
Rybensky to express surprise about its contents in terms of
his countervailing belief Jensen "canceled that agreement
we had." Rybensky, knowing at the time only of Barnes'
last representation that seniority would be restored Kling,
expressed regret and then immediately telephoned Barnes.9
Rybensky testified that he pointedly alluded to earlier
understandings, and particularly Barnes ' letter of June 23
concerning the return of Kling. To this Barnes described
being "overruled" and said that should Kling desire to
"come back" it would be "on/at the bottom of the list."
Kling had written the Regional Director by letter dated
July 3. He sent copies to Carter, Barnes, and Brewster. This
correspondence alluded to receipt of Carter's June 30 letter,
expressed Kling's understanding that the settlement execut-
ed by him and Barnes on June 23 had become unacceptable
to Jensen, recalled Jensen's earlier interdiction of a seniori-
ty reinstatement agreement, and concluded by declaring
that Kling would consider any settlement effective "only as
of the date a final and complete agreement is reached and
signed by a representative (who is in complete authority) of
IAM & AW Lodge No. 68, and a person of authority from
National Labor Relations Board." Following this, Kling
and his wife met with Frankel on July 6 for extended
discussion of his pending case.10 Kling testified that
Frankel favored taking "a chance" by returning to West
8 Distribution was to Jensen, Brewster, and King. Carter testified that in
fulfillment of the "Enclosure" shown, he personally and deliberately inserted
a copy of Barnes' June 23 letter in Kling's envelope Kling denied that this
was in fact enclosed. Rybensky (as frequent recipient in fact of Brewster's
mail) also denied it accompanied the letter and Jensen cannot recall such
enclosure
9 The date of this call, and a larger question of whether even made, was
the subject of much testimony Rybensky originally recalled it as occurring
July 3 (a Monday), then as a rebuttal witness fixed the time as during early
July Respondent satisfactorily established its offices were closed on July 3
during an extended holiday weekend, and there is no indication Barnes
appeared there in the course of otherwise leisure days spent at a vacation
residence in Healdsburg, California Barnes denied having a conversation
with Rybensky about that time, or even any other discussion generally
concerning the subject. I credit Rybensky's testimony on bases yet to be
detailed, and for convenience hereafter will refer to this telephone conversa-
tion as one occurring on July 5
10 Kling's request to withdraw the charge, embodied in his letter of June
23, had not been approved. Presumably this flowed from Carter's advice to
Frankel on June 26 that money would not pass to Kling; a consequence
constituting failure of purpose respecting the basis for withdrawal request I
note a harmonizing fact that complaint issued in the underlying case on June
27
1524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Winds, a course Kling viewed as too risky from the
standpoint of ongoing gainful employment."
On July 10 Carter telephoned Kling. Carter testified that
he solicited Kling's assent to a postponement of the
scheduled trial date and by related remarks assured Kling
that the offer permitting his return to work "with full
seniority" was a bona fide one which Carter "would stand
by." Kling's version is that, aside from his routine (albeit
dismayed) consent to postponement, Carter only urged him
to "trust the union" as it had "given [his] seniority rights
back."
This conversation prompted another letter from Kling to
the Regional Director on July 13. In it he summarized
essential happenings since June 23, voiced "due respect to
Mr. Carter and Brother Barnes," but reiterated insistence
on a "FINAL agreement" signed by Jensen and approved
by the Board (in the context of "aforementioned statements
regarding restoration of my seniority or liability cut off
date").
Conclusions
This factual chronology frames the issue of whether a
June 26 cutoff date ended accumulating liability to Kling.12
Decision turns on whether Respondent took remedial
action commensurate with the violation present. Answers
are not found in the superficial dimension of customary
remedial phraseology or correspondence of illusory import.
The whole purpose of this supplemental proceeding would
be defeated were realities of an employment relationship
and labor law litigation not fully analyzed in terms of
probative evidence herein.
The first requirement is discussion of the underlying case.
The discharge-type consequence of Respondent's conduct
was so termed because of major inroads against Kling's
earned status as (except for Steward George Damon) top
seniority employee. Loss of this status, and prospective
plunge to "the bottom of the seniority list" through the
medium of "re-hiring" or otherwise, was expressly noted as
diminishing earnings up "to $10,000 a year" and affecting
job security "with respect to layoffs." These dynamics were
closely tied to findings that the employer abjectly deferred
to Respondent in a manner triggering the causative link
defined in Section 8(bX2). It was this continuing causative
effect that Respondent was obliged to remedy. The court's
opinion infused the reinstated Administrative Law Judge's
rationale with even more stringent "fair representation"
11 Kling recalled that a chief influencing throught at the time was the
prospect of immediate job uncertainty since, respecting his "agreement with
the union" as to seniority restoration (and while in "legal document" form)
that "still the union canceled it " Subsidiary to this were questions of whether
he would prevail in the imminent litigation and how to best meet personal
financial obligations in the time ahead His summarizing position with
Frankel was that of unwillingness to "afford [ taking] chances" by going back
to West Winds
12 Respondent alternatively contends that Kling is without remedy "at
any time from October 28, 1971 " The grounds are most fully articulated in
Respondent's brief This theory collaterally attacks the "constructive
discharge " found present by the court . I reject the contention as one patently
fallacious and without relevance to these supplemental proceedings
Certain language of the Board's Supplemental Order, quoted at fn I
above, contains apparent ambiguity in wording Relative to the backpay
issue there is no doubt concerning the "exact time"from which liability might
commence, since this is dispositively recognized as October 25, 1971 The key
factor in dispute is the time to which any liability extends I assume this latter
meaning for the passage so identified
standards of Vaca v. Sipes, 386 U.S. 171 (1967). I believe it
unnecessary to embark on discussion of whether this duty,
as an obligation separate from the Miranda tests , 13 is also
involved in this supplemental proceeding. An adequate
basis for resolution is found in the litigation posture of
remanded questions, unaided by the Vaca v. Sipes doctrine.
Next treated is the matter of whether a cutoff date no
later than June 26 is res judicata based on the underlying
case. Footnote 7, previously noted, subordinates to the
whole sweep of what has been mounted as supplemental
proceedings. Aside from the court's admonition to "untan-
gle" this precise point and the Board's mandate to ascertain
the wholeness of what Kling has been made, footnote 7 was,
at inception, nothing more than ministerial verbiage
founded in good practice and thoroughness of case explica-
tion. The letter to which it alluded as a joint exhibit of the
only true contending parties, received in a context devoid of
any reason to deny it face value. As to this branch of
analysis, Respondent argues the rule of fully litigated
matters and labels footnote 7 "dispositive" of any backpay
claim beyond June 26. Contrarily I find that colloquy of
record preceding stipulated admission into evidence of the
Barnes' letter was fully preservative of the issue, particular-
ly as it recognized Kling's "third position" and embraced
an understanding that matters touching on his potential
return to work were not "completely resolved." Were this
not enough, the exhibit was expressly received as a
mechanistic component of "the facts" without reference to
conceptual significance relating "to anything else." 14
This leads to the crucial question of whether Barnes'
letter, intrinsically or in conjunction with Carter's subse-
quent role, eradicated the causation still extant when he
(with Hoffman) visited Kling on June 23. I conclude it did
not. My conclusion flows from complete acceptance of
Rybensky's testimony, with particular reference to the July
5 conversation with Barnes. At this point in time, Kling was
also aware of a breakdown in expectations. It is immaterial
whether this breakdown dealt with a settlement payoff in
money, involved considerations of "honor" or "courtesy,"
was warranted in terms of Respondent's internal adminis-
trative and financial controls or its organizational relation-
ship to the parent International Union, was commented
upon by an agent of the Board, or impelled Kling to
respond with letters of inartful content.15 What is material,
and controllingly so, is explicit repudiation of the plain
meaning conveyed in Barnes ' June 23 letter. The underlying
13 Miranda Fuel Company, Inc, 140 NLRB 181 (1962), enforcement
denied 326 F.2d 172 (C A 2, 1963).
14 Handling in such manner contrasts markedly with Electro -Mechanical
Products Company, 126 NLRB 637 (1960), where an issue of remedy was
present in terms of whether discnminatees had unjustifiably refused an offer
of allegedly substantially equivalent employment The matter was treated as
fully litigated and susceptible to express resolution coextensive with merits of
the proceeding in a situation where "the specific issue [was ] with the consent
of all parties, fully and extensively litigated at the hearing " This was
considered sufficient to warrant departure from the Board 's "usual practice"
of not undertaking to determine possible reinstatement "questions" at such a
procedural stage ; thus permitting them here "properly [to] be considered
and disposed of"
15 It is fundamental that Kling was without entitlement to secure any
monetary adjustment from Respondent pending the htigation The extent
and manner Respondent chose to anticipate liability were matters within its
own discretion . Failure to pay Kling $2,030 50 did not weaken any effect
INTL. ASSN. OF MACHINISTS, LODGE NO. 68 1525
case's merits were closely associated to Barnes, then the
chief union contact (beyond Damon) normally known to
the Employer's officials. The situation in June differed not
vis-a -vis this relationship from that in October 1971, except
for the expanding role of Carter as his responsibility
became one of representing Respondent in formal rather
than preformal stages of the unfair labor practice proceed-
ing. In this sense Carter's June 30 letter is a mere self-
serving attempt to spread the Barnes' document. The
Board's Regional Office was uninvolved in the direct
question, Kling was reasonably perplexed, and, most
importantly, Rybensky was provided no basis to assume
that the clear verbal repudiation by Barnes did not control
the matter of Kling's potential restoration. Rybensky, a
wholly disinterested witness, did not testify with pure
consistency. Whether such vacillation as is shown in this
record was based on memory patterns, personal style of
expression under formalistic questioning, or hyperdifferen-
tiations respecting the meaning of questions posed is not of
vital significance. Overall his testimony was convincing,
forthright, and unwavering on the key aspect of whether
Barnes, on or about July 5, plainly articulated to Rybensky
that Kling could only return to work without any degree of
restored seniority. I credit Rybensky fully, find this to be
the fact, and reason that it perpetuated Respondent's
causative conduct which had been held violative. Barnes'
own testimony was evasive, vague, and generally unworthy
of belief. It was permeated with a wan desire to cover for
Respondent and particularly to shield Jensen, who in any
realistic sense was the origin of Barnes' undercutting advice
to Rybensky. This repudiation continued as the viably
controlling influence on the situation until abated by notice
posting on August 13, 1975, which I hold to be the end of
Kling's backpay period.
Contrary to a continuing thread of Respondent's defense,
I hold that Kling did not unreasonably fail to resume
employment at West Winds. He strove constantly and
consistently only for the assurance that his beneficial
seniority rights would be restored in the manner previously
existing . While Carter may have reasonably seemed a figure
of authority for NLRB case purposes, he had no such indicia
relating to the prosaic seniority problem plaguing Kling. In
contrast, Jensen and Barnes, both as theoretical and
practical matters, were the immediate functionaries whose
acts vitally affected Kling's welfare. His rueful distrust of
their conduct was well founded. It is inappropriate to
retroactively burden Kling with a duty of testing the
shifting intentions he confronted. All fault lies squarely
with Respondent as composite effect of action by its agents
failed to untaint the impermissible objection toward Kling's
established seniority status, shielded as it was by express
decisional thrust of the underlying case. My reasoning here
is strengthened by a further factual holding, consistent with
the weight of evidence, that Kling did not receive a copy of
Barnes ' June 23 letter as an enclosure to Carter's of June 30.
The inflection and import of Kling's testimony respecting
Carter's June 30 letter was that he saw what the words said
properly attaching to Barnes' letter, except as it flavored interactions at the
time Nowhere in the underlying litigation, as otherwise is often the case, was
there any requirement that Respondent specifically notify Kling (other than
by customary notice posting to members) that it abandoned objection to his
continued (or restoied) full seniority
without being convinced this in any manner removed
barriers to restored full employment emanating from the
Jensen-Barnes wing of Respondent's spokesmen. When
subsequently conversing by telephone with Carter on July
10, he demurred from futile discussion of the subject on the
same basis. In both these instances Kling's approach
reflected suitable appraisal of the true situation, and did not
constitute a voluntary choice on his part to disdain
available employment. My conclusion is reached with
awareness of a contrary implication stemming from Kling's
answer to an isolated question premised on his contacts
with Frankel, as this must be read in conjunction with the
fuller nature of Kling's position.
The situation is well analogized to International Union of
Operating Engineers, Local Union No. 12, (Ledford Bros.),
185 NLRB 956 (1970), where a claim of tolled backpay was
rejected through rationale noting that "substantial effect,
Respondent [union] was continuing by these letters to
assert the same alleged right to remove [charging party ]
from the job that was rejected in the complaint litigation"
and that both employer and this employee "could reason-
ably construe these notices from Respondent as an inten-
tion or threat promptly to cause [his ] discharge again, if he
should be rehired." Such a showing caused rehiring
"frustrated and rendered futile," a consequence that "could
scarcely remedy" the 8(b)(1)(A) and (2) violations involved.
Cf. Brotherhood of Teamsters & Auto Truck Drivers, Local
No. 70, International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America (Sea-Land of Califor-
nia, Inc.), 212 NLRB 714 (1974). Another pertinent decision
is International Union of Operating Engineers, Local 925,
AFL-CIO, and its Business Manager, H. B. Roberts (J.L.
Manta, Inc., et al.), 180 NLRB 759 (1970) where a
contention that backpay was barred because of settlement
with some money paid a charging party was held without
merit upon showing that respondent union "substantially
negated [its] effect" by filing intraunion charges on the
same day as settlement because this employee had filed the
originating NLRB charge.
A subsidiary issue was been raised concerning employer
contributions to the Stationary Engineers Local No. 39
pension plan. Such funding payments, made by Kling's
interim employer under terms of its collective-bargaining
agreement with Local 39, served to vitalize Kling's potential
retirement eligibility under the comprehensive plan to
which a total of $2,157.68 was forwarded on his behalf
through July 1975. This plan contemplates both "normal"
and "early" retirements. Attainment of age 65 is necessary
under the former (with 31 months' covered employment)
while early retirement is available at ages 60 or 55 with 60
or 240 months of covered employment, respectively.
Vesting under the Stationary Engineers plan occurs at age
45, but only if the member has 120 months' service.16
Respondent asserts entitlement to a backpay deduction
credit, arguing that such pension plan contributions are
analogous to interim earnings and without such allowance
16 Such service, as well as service minimums for early retirement, is
formally termed "credited future service" and is defined as "the number of
months the member has worked as a Stationary Engineer under covered
employment after May 31, 1955.
1526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kling would be "getting double pension contributions for
identical periods of time."
Respondent's novel contention in this regard is rejected.
Its obligation to make Kling whole through payments to the
applicable CMTA-IMA (California Metal Trades Associa-
tion-International Association of Machinists) pension plan
is not seriously opposed. In any event, such credit is an
ordinary remedial requirement intended to place a discrim-
inatee , insofar as possible, in the same status that would
have obtained but for disadvantage stemming from unfair
labor practices. See International Association of Bridge,
Structural and Reinforced Iron Workers Union, Local 378,
AFL-CIO (Judson Steel Corporation), 213 NLRB 457
(1974). The pension plan contributions made by an interim
employer are, as in this instance, routine characteristics of
the interim employment relationship grounded in a particu-
lar collective-bargaining agreement there in effect. Aside
from ongoing significance as Kling's personal manifesta-
tion of needed gainful employment, his work at Hale
Memorial Hospital also served to fulfill the duty of
mitigating damages . Given the impossibility of predicting
future events and even noting Kling's apparent intention
not to change employment, his mere potential for retire-
ment benefits and yet unvested participation in the Station-
ary Engineers pension plan should not warrant a deduction
of the type claimed . Whatever might be said, in other
it Mastro Plastics Corporation, 145 NLRB 1710( 1964), treated a respon-
dent employer 's contention in backpay proceedings that amounts paid into
the New York City (a claimant' s interim employer) Employees Pension Fund
constituted interim earnings when read in connection with a state constitu-
tional provision defining membership in any pension system of a civil
division of New York State as a "contractual relationship the benefits of
which shall not be diminished or impaired." The argument made was that
this constitutional section "demonstrates" such pension contributions were
"additional earnings" The Trial Examiner held that without evidence
advanced as to what amount was actually paid, he was left "no alternative"
but to declare the contention without ment The Board adopted this
conclusion without comment in a Second Supplemental Decision and Order
which otherwise involved a direction that the Regional Director "recom-
pute" back wages respecting another claimant once an unknown date (of
change in residence) was established This decision is unfavorable to
Respondent 's contention here since the Board at that time, had it seemed
disposed towards this theory, could have readily directed additional
administrative ascertainment of the dollar amount actually paid to this
public employer's pension system
is In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec. 102 48
contexts, for unusual emoluments or perquisites of interim
employment, the facts here do not justify any modification
of damages based on contributions which may or may not
benefit Kling at some future time.17
Disposition
Upon the foregoing findings, conclusions, and the entire
record, and pursuant to Section 10(c) of the Act, I hereby
issue the following recommended:
ORDER 18
The Respondent, International Association of Machin-
ists and Aerospace Workers, San Francisco Lodge No. 68,
AFL-CIO, its officers, agents , and representatives, shall
pay Kaj Kling as net backpay'9 the sum of $27,298.04,
together with 6-percent interest thereon in accordance with
Isis Plumbing & Heating Co., 138 NLRB 716 (1962), less
applicable tax withholdings required by law. Respondent
shall further pay the contractual jointly administered
pension trust fund, to the credit of Kaj Kling, the sum of
$3,534.66, plus any interest or applicable penalties for late
payment claimed by the trustees of said pension trust
fund.20
of the Rules and Regulations , be adopted by the Board and become its
findings , conclusions and Order, and all objections thereto shall be deemed
waived for all purposes
is The amended backpay specifications were , as noted in fn. 2, above,
amended at hearing to substitute certain exhibits for appendixes attached at
time of issuance Further, a stipulation of record apportioned the sum of
$3,804 .20 to each calendar quarter of 1974 as Kling's interim earnings in lieu
of the figures (as revised) $3,730,05; $2 994 68, $4,083.10 , and $3,803 85,
respectively . The cumulative arithmetical difference between stipulated 1974
interim earnings and the appendicized quarterly amounts (as revised) is
$607 52 . However, no net backpay had been claimed for the year and quarter
1974/1I since net interim earnings exceeded gross backpay for that quarter
Since a quarterly method of computation is appropriate, and the new amount
of $3,804 20 also exceeds (after deducting expenses ) gross backpay for this
quarter , the ultimate significance of this stipulation is to reduce total net
backpay under the revised amended first backpay specification by $455 64.
20 The request by Kling 's counsel for an award of attorney fees and costs
is denied Significantly , a comparable request was rejected by the Board in its
Supplemental Order. The overall proceedings have not constituted frivolous
litigation nor are extraordinary circumstances present which might justify
granting such an award . See Heck 's, Inc, 191 NLRB 886 (1971).