Fluor-Daniel, Inc.

National Labor Relations Board - Administrative Judge Opinions

Jun 7, 2004

26-CA-013842 (N.L.R.B. Jun. 7, 2004)

JD(ATL)–31–04
Greenville, SC

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ATLANTA BRANCH OFFICE

FLUOR-DANIEL, INC.

and Case 26–CA–13842

INTERNATIONAL BROTHERHOOD
OF BOILERMAKERS, IRON SHIP
BUILDERS, BLACKSMITHS, FORGERS
& HELPERS, AFL-CIO

Susan Greenberg, Esq., for the General Counsel
Melvin Hutson, for the Respondent
Michael Stapp, for the Charging Party

SUPPLEMENTAL DECISION

Statement of the Case

Jane Vandeventer, Administrative Law Judge. This case was tried on March 10
and 11, 2003, in Memphis, Tennessee. This is a supplemental compliance proceeding
for the purpose of determining the remedy due three employees found by the Board to
have been unlawfully discharged or denied employment by Respondent in the Board’s
Decision and Order, found at 311 NLRB 498 (1993). This proceeding deals with only a
part of the Board’s Decision and Order, that involving David Scott Bolen, John H.
Coons, and Steven S. Coons. On review by the United States Court of Appeals for the
Sixth Circuit, the Court enforced the Board’s Decision and Order as it related to the
three individuals named above, and remanded the remaining portion of the case to the
Board for consideration of the issue of job availability as to the approximately 51 other
discriminatees. NLRB v. Fluor Daniel, Inc., 161 F.3d 953 (6th Cir. 1998).1

The compliance specification herein issued on June 6, 2002, and an amended
compliance specification issued on October 25, 2002. Respondent filed an answer to
the amended compliance specification taking issue with certain of the allegations
therein, which issues will be set forth in detail below.

1 The remanded portion of the case has been heard and decided by an administrative law
judge. See Fluor Daniel, Inc., JD 66-01 (May 11, 2001).

JD(ATL)–31–04

5

10

15

20

25

30

35

40

45

50
2
After the conclusion of the compliance hearing, the parties filed briefs, which I
have read.

Based on the testimony of the witnesses, including particularly my observation of
their demeanor while testifying, the documentary evidence, and the entire record, I
make the following

FINDINGS OF FACT

I. Background

A. The Decisions of the Board and the Sixth Circuit

With respect to the three discriminatees at issue here, the Board and the Court
found that Respondent had discharged David Scott Bolen (Bolen) in violation of Section
8(a)(3) of the Act, and had refused to hire John H. Coons (J. Coons) and Stephen S.
Coons (S. Coons) in violation of Section 8(a)(3) of the Act. The Board ordered Bolen
reinstated to his former position and J. Coons and S. Coons offered employment in the
positions for which they applied, all without prejudice to their seniority and other rights
and privileges. The Board further ordered Respondent to pay backpay to the three
named individuals.

B. Respondent’s Business

Respondent, a national general contractor, performed work for Big Rivers
Electrical Corporation (BR) in 1990 at several jobsites in Kentucky. The work consisted
of maintenance and repair work on electrical power generating stations while the
stations were shut down. According to the record in the unfair labor practice
proceeding, the work was expected to last into 1991 and 1992, but in fact ended in
1990. Respondent performed work at hundreds of other jobsites throughout the country
during the period from 1990 through the time of the compliance trial.

C. The Three Discriminatees

The Board found that employee Bolen was unlawfully discharged from his
employment by Respondent on May 3, 1990, and ordered him reinstated with
appropriate backpay. During his employment with Respondent, Bolen performed work
such as welding, ironwork, and millwright work. In his interim employment since that
time, Bolen has performed, in addition, maintenance and mechanic work.

The General Counsel has calculated gross backpay for Bolen from May 3, 1990,
through the third quarter of 2002, and contends that backpay eligibility continues until
Respondent makes a reinstatement offer to him which meets the Board’s standards.
For all quarters except two in the more than twelve-year backpay period calculated thus
far, Bolen was steadily employed and had interim earnings. His interim earnings
exceeded his gross backpay for over ten years of that period. According to the

JD(ATL)–31–04

5

10

15

20

25

30

35

40

45

50
3
pleadings, concerning the quarters up to and including the third quarter of 2002, net
backpay is claimed for Bolen for only seven quarters, or less than two years altogether,
during 1990 and 1991, for a total of $18,442.05, plus interest.

The Board found that employees J. Coons and S. Coons were unlawfully denied
employment by Respondent on April 9, 1990, and ordered them to be offered
employment in the positions for which they applied with appropriate backpay. J. Coons
was and is a journeyman boilermaker who completed his apprenticeship in 1979. S.
Coons was and is a journeyman boilermaker who completed his apprenticeship in 1980.

The General Counsel has calculated gross backpay for J. Coons from April 9,
1990, through the third quarter of 2002, and contends that backpay eligibility continues
until Respondent makes an instatement offer to him which meets the Board’s standards.
For all quarters in the more than twelve-year backpay period calculated thus far, J.
Coons was employed and had interim earnings. His interim earnings exceeded his
gross backpay for over nine years of that period. According to the pleadings,
concerning the quarters up to and including the third quarter of 2002, net backpay is
claimed for J. Coons for only twelve quarters, or three years altogether, for a total of
$32,566.54, plus interest.

The General Counsel has calculated gross backpay for S. Coons from April 9,
1990, through the third quarter of 2002, and contends that backpay eligibility continues
until Respondent makes an instatement offer to him which meets the Board’s standards.
For all quarters in the more than twelve-year backpay period calculated thus far, S.
Coons was employed and had interim earnings. His interim earnings exceeded his
gross backpay for nearly seven years of that period. According to the pleadings,
concerning the quarters up to and including the third quarter of 2002, net backpay is
claimed for S. Coons for only fifteen quarters, for a total of $43,579.84, plus interest.

II. Backpay Issues

A. General Counsel’s Burden of Proof

The General Counsel bears the burden of proving gross backpay. This means
that the General Counsel must show that he made a reasonable approximation of the
gross backpay, which would have been earned by the discriminatees but for the
discrimination against them. This entails showing the appropriate time period for
backpay as well as a reasonable and appropriate method for calculating backpay. The
Board has a well-established policy to the effect that a backpay formula which
“approximates what discriminatees would have earned had they not been discriminated
against is acceptable if it is not unreasonable or arbitrary in the circumstances.”
LaFavorita, Inc., 313 NLRB NORB 902 (1994). When any uncertainty exists in the
evidence, it should be resolved against the respondent who was the wrongdoer. See
Ryder/P.I.E./Nationwide, 297 NLRB 454, 457 (1989), enfd. in relevant part, 923 F.2d
506 (7th Cir. 1991).

JD(ATL)–31–04

5

10

15

20

25

30

35

40

45

50
4

1. Backpay period Issues

a. Dean General Contractors Issue

The Board, in Dean General Contractors, 285 NLRB 573 (1987), held that with
regard to remedies dealing with employers in the construction industry, the Board would
adhere to its standard presumption of continuing employment, and assign the burden of
countering that presumption to the employer seeking to end backpay based on specific
facts unique to its own situation. The case was an unfair labor practice proceeding, and
so the Board, after modifying the order of the administrative law judge, left to the
compliance stage the issue of whether the employer in that case had a “permanent and
stable” workforce and would therefore have retained the discriminatee in its
employment, or whether it would have terminated him and all other employees upon the
termination of the particular project in question. The Board held that the issue had not
been fully litigated at the unfair labor practice hearing. While the Board noted that
“ordinarily” the issue of continuing employment of a discriminatee would be handled at a
compliance proceeding, it nowhere foreclosed the consideration of such an issue during
an unfair labor practice hearing where the issue was fully litigated. It is conceivable in
many instances that this issue may be relevant to other issues in the unfair labor
practice case, and thus to be fully explored at that time.

In the instant proceeding, the General Counsel and the Charging Party take the
position that the issue of whether the discriminatees would have continued employment
with Respondent was decided in the underlying unfair labor practice proceeding, and
hence may not be relitigated in the instant proceeding. The Respondent takes the
position that the issue was not so decided, and furthermore Dean General Contractors
requires that it be handled only in the compliance stage.

In the unfair labor practice portion of this case, the Remedy recommended to the
Board by the Administrative Law Judge (ALJ) in his decision, and adopted by the Board
included the following paragraph:

Obviously the Big Rivers project is over as far as Respondent is
concerned since Big Rivers, rightly or wrongly, terminated its contract with
Respondent because of Big Rivers’ view that Respondent’s job performance was
poor. Respondent is a major employer, which undertakes projects throughout
the United States. Bearing in mind that Respondent, after Big Rivers terminated
its contract, went on to other projects in this part of the country and elsewhere
and that employees in the construction industry move from jobsite to jobsite and
further bearing in mind Respondent’s practice of giving priority in hiring to
employees who have worked for it in the past the right of the aggrieved 55
discriminatees (which includes Bolen) to reinstatement and backpay should
extend beyond the termination of Respondent’s contract with Big Rivers in the fall
of 1990. See Dean General Contractors, 285 NLRB 573 (1987).

JD(ATL)–31–04

5

10

15

20

25

30

35

40

45

50
5
Despite Respondent’s exception to this recommended remedy, the Board adopted the
recommended remedy as its own, and the Court of Appeals left this aspect of the
Board’s remedy undisturbed.

It is uncontested that Respondent’s hiring policies were the subject of extensive
evidence during the unfair labor practice hearing. In connection with the exploration of
whether there had been discrimination against the applicants in issue, Respondent’s
witness testified extensively as to its policy of favoring for hire employees who had
worked for it at other jobs. There was evidence that Respondent would notify some
former employees by mail or telephone of jobsites it wanted to staff, and maintained a
toll-free telephone number for former employees to call to learn of jobsites where
Respondent might employ them. In this proceeding, it was reconfirmed that
Respondent had rehired a large number of employees on sequential projects for
decades. The fact that Respondent’s policy involved terminating and rehiring an
employee rather than transferring the employee directly from one job to another is not
determinative. It is a matter of form rather than substance.

As the ALJ noted in the passage quoted above, it was in partial reliance upon
Respondent’s preferential rehire policy that he recommended the continuation of the
right of the discriminatees to reinstatement and backpay beyond the termination of the
BR job. As the Board adopted this remedy, and the Court of Appeals enforced the
remedy without any change to this aspect of the Order, I find that the continuing nature
of the backpay remedy has been decided in the unfair labor practice proceeding, and
that Respondent is thus precluded from relitigating it at the compliance stage.

Even if a contrary finding were possible, and the issue were to be decided here in
the compliance stage of the case, it is the Respondent’s burden to show that it would
NOT have continued to employ the discriminatees on the same basis it continued to
employ others of its employees under its policy of preferential hire of individuals who
had worked for it before. Cobb Mechanical Contractors, 333 NLRB 1168, 1175
(2001). This would necessitate that Respondent show specific reasons at all its jobsites
that the discriminatees did not possess the skills necessary to perform the jobs in
existence there. Respondent produced no such evidence. It simply stated, relying
upon evidence in the underlying proceeding, that it had employed very few of its BR
jobsite employees at subsequent jobsites. Respondent adduced no evidence
concerning specific lawful reasons why these discriminatees would not have been
employed by it on other jobsites. Placed in the balance opposite the stipulated
evidence of its policy of preferentially hiring former employees and the uncontroverted
evidence in the backpay data that thousands of its employees continued to work for
Respondent on a regular basis, the single fact that Respondent reemployed only some
of its BR employees could not carry Respondent’s significant burden of proving that it
would not have continued to employ these discriminatees. Respondent’s reasons for its
policy of favoring employees who had previously worked for it were similar to those
enunciated in Cobb Mechanical Contractors, above. The employees and their skills,
abilities, and productive capabilities were known to Respondent. As in that case, too,
Respondent’s policy of preferring to rehire its former employees is a factor which favors
a finding of continuing employment.

JD(ATL)–31–04

5

10

15

20

25

30

35

40

45

50
6

Respondent has provided an argument that it would not have employed the
discriminatees at other jobsites, but it has not proven any facts which would establish a
reason for failing to continue to employ any of the three discriminatees. Cobb
Mechanical Contractors, above, 333 at 1175. I find that Respondent has not met its
burden of proving the discriminatees would not have continued to be employed by it on
other jobsites. In sum, I find that the backpay periods continue as alleged in the
compliance specification.

b. Beginning date for Bolen

The Board found that Bolen was unlawfully discharged from his employment at
Respondent for refusing to cross a picket line. The effective date of the discharge was
May 3, 1990. The General Counsel began the backpay period for Bolen on the date of
his discharge. Respondent claims that it had no obligation to reinstate Bolen until some
later time that spring when the Union’s picket line no longer existed at its jobsites, but
produced no evidence of exactly when this occurred.

Respondent mistakes the proper remedy for discharged employees. Backpay for
an effectively discharged striker is to be awarded from the date of his discharge rather
than from the date of any offer of his to return to work, or the cessation of picketing.
Citizens Publishing and Printing Co., 331 NLRB 1622, footnote 2 (2000). Once a
respondent has discharged a striker unlawfully, the discriminatee is in the position of
any other unlawfully discharged employee, and it then becomes the respondent’s
obligation to reinstate the employee and to pay him backpay from the date of his
discharge. Respondent appears to argue that its reinstatement obligation to Bolen was
the equivalent of a recall obligation to a striker. This is completely incorrect, since the
Board found that Bolen had been discharged. In accordance with Board law, I find that
the General Counsel correctly determined that Bolen’s backpay period began on May 3,
1990.2
2 Respondent also claims with respect to Bolen that after his discharge, it employed no
employees categorized as “millwright,” which Bolen was categorized as, at the BR jobsite, and
that it therefore had no job for him. The Board Order clearly states that if the discriminatee’s job
no longer exists, its obligation is to reinstate him to a “substantially equivalent position.” As the
Court of Appeals found that Bolen was entitled to reinstatement, its findings necessarily
contained the implicit finding that Respondent had a job for him. The remainder of the case was
remanded for just such a showing regarding other individuals. This issue was therefore decided
in the underlying unfair labor practice case, and Respondent is foreclosed from reopening it.
McGuirePlumbing & Heating, 341 NLRB No. 29, footnote 1 (2004).
In any case, Respondent has not met its burden of showing that there was no job
available which Bolen could have performed in 1990. Bolen was a skilled welder and mechanic.
Respondent has not shown, and could not show, that it had no jobs, either at the BR site or at
others of its many jobsites, which a person possessing Bolen’s skills could perform. No
evidence on this point was proffered except reference to a list of employees employed at the BR
site for remainder of 1990 which contains no mention of millwrights. This bare document does
not carry Respondent’s considerable burden of showing that it had no work available for Bolen
that he was qualified to perform in its extensive operations, or that all such jobs had been
“abolished.”

JD(ATL)–31–04

5

10

15

20

25

30

35

40

45

50
7

2. Gross Backpay Calculation Formula

Where an unfair labor practice has been committed and a backpay remedy is
due, the Board holds that there is a presumption that some backpay is owed. In a
backpay proceeding, the burden is on the General Counsel to show gross amounts of
backpay due. In meeting its burden, the General Counsel has discretion in selecting a
formula which will closely approximate the amount due. The General Counsel need not
find the exact amount due – indeed that would most likely be an impossibility. Basin
Frozen Foods, Inc., 320 NLRB 1072 (1996). Certainly it is the goal of a compliance
proceeding to utilize as accurate a method as possible under the circumstances of the
case, and considering the information available. Where a respondent advances a
competing method of calculation, the Board must decide which method would yield the
most accurate approximation of backpay. Performance Friction Corp., 335 NLRB
1117 (2001).

a. Method of Calculation

In general, the General Counsel may attempt to determine the amount which
would have been earned based on past earnings, based on the earnings of a
replacement employee, or based on the earnings of a comparable or “representative”
employee or employees (herein called comparable employees). In this case, the
General Counsel has determined gross backpay for 1990 based on the replacement
employee method, and for subsequent periods, based on the comparable employees
method. The compliance officer credibly testified that the earnings history method was
impracticable in this case since two out of the three discriminatees had no earnings
history with Respondent upon which to base an estimate of backpay, and the third
employee had a relatively short earnings history. The replacement employee method
was utilized for the remainder of calendar year 1990, based on the BR project, and to
this method Respondent has no objection.3 Therefore, the gross backpay calculated for
the three discriminatees for 1990 is found to be as set forth in the General Counsel’s
Compliance Specification and its pertinent amendments.4 Furthermore, as Respondent
has admitted the Interim Earnings calculations and has not contested any issues
associated with these Interim Earnings, the net backpay figures for 1990 as calculated
by the General Counsel are found to be the appropriate net backpay for the three
discriminatees for that period.
3 Respondent did not contest that backpay should be calculated through the end of 1990,
the end of the BR project. With regard to 1990, Respondent contested backpay due Bolen on
the basis set forth and rejected above.
4 Shortly before the compliance trial and during the trial, certain arithmetical calculations
were modified based upon correction of data discovered by both parties. The corrections of the
arithmetical calculations were not objected to, Respondent having preserved its overall
defenses to the calculations as set forth in the decision. For Bolen, the relevant corrected
backpay amounts are set forth in General Counsel’s Exhibit 2. For J. Coons, the relevant
corrected backpay amounts are set forth in General Counsel’s Exhibit 11. For S. Coons, the
relevant corrected backpay amounts are set forth in General Counsel’s Exhibit 1(k).

JD(ATL)–31–04

5

10

15

20

25

30

35

40

45

50
8

b. Selection of Comparable Employees – 1991 and Beyond

For subsequent quarters of the backpay period, the comparable employees
method was utilized. The data upon which the backpay calculations were based were
provided by Respondent, but must be described. Respondent represented that the
volume of data relating to its thousands of employees and hundreds of jobsites for a
more than twelve-year period would be unmanageable. The parties stipulated that the
backpay calculations were appropriately based upon hourly employment data for certain
of Respondent’s employees for five years of the backpay period: the calendar years
1996 through 2000.5 The parties agreed that the data from this period would be
extrapolated to the entire backpay period.

The parties differed, however, as to the selection method of the comparable
employees group. Because of the large number of employees included in the data, only
ten per cent of the total number of employees were used as the comparable employee
group. The General Counsel selected from among the Respondent’s employees those
who were highly skilled, and who worked at a journeyman level, like the discriminatees.
The General Counsel also selected employees who worked consistently throughout the
backpay period, again like the discriminatees.

Respondent contended that a larger group of employees should be used,
including helpers. First, none of the discriminatees was a helper. Both the Coons were
journeymen, and were unlawfully denied jobs by Respondent at that level. Bolen was
actually working for Respondent at a journeyman level. The General Counsel quite
rightly concluded that helpers were not comparable in skill or pay level to the
discriminatees. When a group of comparable employees is used as a basis for backpay
calculations, they should be similar to the discriminatees, not employees in different job
classifications or whose work histories are quite different from those of the
discriminatees. See, e.g., Performance Friction Corp., above. I reject Respondent’s
contention that helpers should be included in the comparable group of employees for
the purposes of hours or of wages. Such a method would result in less accurate
backpay figures.6

Respondent argued that, based on an industry-wide study of construction
industry employees issued by the Federal Mediation and Conciliation Service in 2000,
the General Counsel should have utilized an average industry-wide number of hours
5 While there is disagreement among the parties about the willingness or unwillingness of
Respondent to produce this large volume of date, I find it neither necessary nor profitable to
inquire into the discussions which resulted in the use of the stipulated data for the purposes of
backpay calculations.
6 In its Answer, Respondent contended that the wage rates used for 1995 were too high,
but it presented no evidence at trial to support this contention, nor to provide any basis for
calculating a more accurate wage rate. As there was no proof to support this contention, the
contention is rejected and the wage rate for 1995 which was used in the compliance
specification is found to be the most accurate estimate possible.

JD(ATL)–31–04

5

10

15

20

25

30

35

40

45

50
9
worked annually in the construction industry. The study concerned shortages of skilled
workers in the construction industry, and utilized at one point an average of
approximately 1800 hours annually as a representative number. The comparable
Respondent employee group used by the General Counsel worked over 2000 hours per
year, figures which included overtime. Under Board law, the objective of backpay
calculations is to approximate backpay which would have been earned while working for
a specific respondent by this specific discriminatee, not averages from many unrelated
employers. Respondent’s argument is contradictory to its contention at trial that the
most accurate measure should be used. Certainly use of an industry-wide average for
all construction workers would be a far less accurate measure of backpay in this case
than data drawn from a group of specific comparable employees who actually worked
for this Respondent. I find that Respondent’s argument that an industry-wide average
should be used to calculate annual hours for the backpay period to be entirely without
merit and must be rejected as yielding an inaccurate result.

c. “Attrition” Issue

Respondent argues that the comparable employee group should include
employees who gradually ceased to work for Respondent. Respondent presented as a
witness a statistician who had calculated the amount of hours which would have been
worked by a typical group of employees who were subject to “attrition,” in other words,
worked less and less for Respondent as the years went by, due to various reasons such
as death, injury, moving to other employers, etc. Respondent argued that the
phenomenon of attrition is normal in any workforce. Assigning a hypothetical attrition
rate to the comparable employee group would have the effect of gradually reducing
gross backpay over the years, especially in the latter portion of the backpay period.
There is limited application of this argument to the facts herein, as the majority of the
quarters when net backpay is due the discriminatees falls early in the backpay period.

The General Counsel and the Charging Party argue that this argument was not
included in Respondent’s pleadings, and thus Respondent is technically precluded from
making the argument. Section 102.56(b) of the Board’s Rules and Regulations requires
that as to all matters within the knowledge of a respondent, including the various factors
entering into the computation of gross backpay, a general denial will not suffice. If a
respondent disputes either the accuracy of the figures in the specification or the
premises on which they are based, the answer shall specifically state the basis for such
disagreement, setting forth in detail the respondent’s position as to the applicable
premises and furnishing the appropriate supporting figures. It is undisputed that
Respondent did not include its Attrition argument in its answer, and did not produce
supporting figures until the compliance trial. Indeed, Respondent could have retained
its statistician far enough in advance of trial to have filed appropriate pleadings. I find
that, under Section 102.56(b), Respondent is barred from asserting its Attrition
argument. Power Equipment Co., 341 NLRB No. 32, sl. op. at 2 (2004); Paolicelli,
335 NLRB 881, 883 (2001). I find that the General Counsel was reasonable in choosing
as comparable employees those who worked regularly, and I find that Respondent may
not assert its “attrition” argument in opposition.

JD(ATL)–31–04

5

10

15

20

25

30

35

40

45

50
10

Even if Respondent were permitted to make the argument, it contradicts one of
the basic tenets of Board law regarding the calculation of backpay. Here, the
discriminatees have been shown to have worked regularly for more than twelve years.
Therefore, employees such as those who would be included in the comparable group
under Respondent’s theory, who have gradually dropped out of the work force because
of retirement, death, ill health, or other reasons, are simply not comparable employees
to the discriminatees, who did not drop out of the workforce for any reason. The three
discriminatees continued to work in every quarter of the lengthy backpay period from
the last quarter of 1990 through the end of the calculation. The hypothetical employees
proffered by Respondent fail to meet the basic test of comparability. See, e.g.,
Performance Friction Corp., above.7

I find that Respondent’s witness, while an expert in statistics, was admittedly
entirely ignorant with respect to the Board’s methods and standards for calculating
backpay. As his expertise was limited to the presentation of the statistical calculations
he had done, the usefulness of his testimony was confined to the “attrition” theoretical
construction and the “seasonal” hypothetical construction. His testimony was largely
irrelevant to any other issues in this case, and his opinions, if any exist in the record. are
not admissible as to any legal issues, which are to be decided by the Board.

d. “Seasonality” Issue

Respondent advanced at trial, again through its statistician witness, an argument
that the gross backpay calculations should have been distributed among the quarters
for each calendar year on a “seasonal” basis, rather than divided in fourths for each
year. Respondent’s basis for this argument is that the discriminatees’ interim earnings
were distributed among the relevant quarters according to their actual quarterly interim
earnings, that they showed seasonal variation, and that the gross backpay should be
similarly varied. Again, Respondent did not plead this defense until the trial. It neither
included the seasonality argument in its Answer, nor supplied supporting figures until
the compliance trial. I find that Respondent is precluded by Section 102.56(b), from
making the argument that the gross backpay should be unequally distributed among the
quarters.

Even if I were to entertain this argument on its merits, I would find that it is
inconsistent with Board policy. The General Counsel’s method of dividing the annual
hours into four equal quarters is the most accurate division possible under the
7 In any case, it would be Respondent’s burden to show that the discriminatees did in fact
leave the workforce for certain periods of time. McGuire Plumbing and Heating, above,
footnote 1; Wellstream Corp.,321 NLRB 455, 461 (1996). A hypothetical argument that a
certain number of employees would leave the workforce does not prove that these specific
discriminatees left the workforce. Respondent has stipulated that it did not contest the
discriminatees’ efforts to mitigate damages. In the face of the uncontested facts that the three
discriminatees had earnings in every quarter from 1991 through the end of the calculated
period, Respondent’s argument based on hypotheses and averages is unavailing.

JD(ATL)–31–04

5

10

15

20

25

30

35

40

45

50
11

circumstances. Distribution of the annual hours unequally into the backpay quarters
according to a hypothetical scheme based on the discriminatees’ interim earnings and
their alleged “seasonality” would be a less accurate measure of gross backpay than the
one used by the General Counsel. The object of Board policy is to find a reasonable
and reasonably accurate measure of gross backpay. I find that Respondent’s late-
raised scheme does not comport with this policy. F. W. Woolworth, 90 NLRB 289
(1950).

I further find that Respondent is estopped from making the argument that the
annual hours should be distributed unequally into the quarterly backpay periods
according to a hypothetical scheme based on the seasonality of interim earnings.
Respondent provided ONLY annualized data for backpay purposes. The provision of
data reflecting only annual hours worked for the comparable employee group meant the
General Counsel was unable accurately to calculate quarterly hours worked at
Respondent reflecting differing numbers of hours for each quarter. Presented with
ONLY an annual total of hours, the only reasonable way to assign the hours to
particular quarters was to divide the total annual hours into four parts. The data which
would have permitted a more accurate quarterly assessment of hours worked by the
comparable employee group in each quarter of the backpay period was within
Respondent’s control. Respondent conceded at trial that it neither provided data
embodying a quarterly breakdown of hours for the comparable employees nor did it
urge the General Counsel prior to the compliance trial to assign the hours unequally to
the quarters so as to reflect a hypothetical “seasonal” work year. Under these
circumstances, Respondent cannot now argue for a hypothetical reconstruction of facts
which it was within Respondent’s power to provide, but which it did not provide.

B. Respondent’s Burden of Proof

Respondent has the burden in a backpay proceeding of proving that it had
effectively ended the backpay period by making valid offers of reinstatement to
discriminatees. Such offers “ must be specific, unequivocal, and unconditional.” Adsco
Manufacturing Corp., 322 NLRB 217, 218 (1996). See also, Cobb Mechanical
Contractors, above, 333 at 1173. Here, Respondent has proffered three letters, one
addressed to each of the three discriminatees herein. The letters are all dated
December 26, 1991, and are identical except for the names and addresses and one
other word.8 According to the testimony of Jack West, director of human resources for
8 The text of the letters to J. Coons and S. Coons is as follows:
“Fluor Daniel extends to you a job offer of employment at the DuPont project, located on US
Route 23 South, Circleville, Ohio, effective Monday January 6, 1992. You should report for
work at 7:00am on January 6. The work schedule consists of 40 hours per weeks. The position
offered is that of pipewelder, with a pay rate of $15.95 per hour.

As with all applicants at this project, pre-employment chemical screening is required. In
addition, all non-certified applicants are required to pass a craft certification test, and if
applicable, the required welder test (e.g. TIG, consisting of 2” schedule 80 carbon coupon, use
309 S.S. wire tack root and TIG all the way out; STICK consisting of Arkansas Bell Hole, 6010
Continued

JD(ATL)–31–04

5

10

15

20

25

30

35

40

45

50
12
_________________________
craft employment in Respondent’s human resources department, the letters existed in
its business records. They were admitted as documents existing in the business
records of Respondent. Charging Party argues that they were erroneously admitted
because the custodian of records, although subpoenaed by the Charging Party, did not
appear to give testimony about these and other records. I find that the records were
properly admitted as documents, which existed in the business records of Respondent.

The letters, however, are attached to express mail records showing the initials
“M.S.”. There was no evidence proffered by Respondent to show whose initials appear
on the receipts, and no witness was called by Respondent to testify to the letters having
been mailed, nor to Respondent’s business practice with regard to such mailings at the
time the exhibits are dated. West was employed overseas for the years in question,
and therefore had no knowledge of these facts. In addition, the handwritten notes
purporting to come from J. Coons and S. Coons, which were attached to the offer letters
were not authenticated by anyone familiar with the signatures contained in them. No
explanation was offered by Respondent as to why such a witness was not called, nor
why it did not subpoena the discriminatees themselves for this purpose. As the
Charging Party argues, there is a lack of any evidence that the purported offers of
employment were mailed to the discriminatees. I cannot find on this record that
Respondent has carried its burden of proving that the purported offers of employment
were ever actually mailed to the discriminatees.

Even assuming that Respondent could show that it had made the offers in
question, they would not, under well-established Board law, operate to end the backpay
periods. The letters refer to the three discriminatees as “applicants,” thereby implying
that they are not offers of jobs, but only a possibility of employment. The job offers are
conditioned on the discriminatees passing a drug test, a requirement that was
undisputedly not in force at the BR jobsite where Bolen was employed and where the
Coons brothers were unlawfully denied employment. The job offers are also
conditioned on the taking of a welding test. As Bolen was already employed, this was
clearly an additional condition on his offer. As to the Coons brothers, the Board’s
decision clearly found that the welding test was applied inconsistently at the BR jobsite,
with some employees taking a retest, and some employees taking no test at all. The
welding test is also a condition, which would not necessarily have obtained at the BR
jobsite. Finally, the letter conditions acceptance of the purported job offer on the return
of a postcard to Respondent “within a few days.” Given that the letters were dated
during the holiday period between Christmas and New Years Day, such a requirement
would have given the discriminatees only a very short time to respond to the job offer.
The Board has held that such a short response time, as well as the conditional nature of
the letters, render them invalid to end the backpay period. See, e.g., Cassis
Root and Pass 7018 filler and cap).

If you wish to accept this job offer you must complete and mail the enclosed card within the
next few days. If you have any questions feel free to call me at the number on the enclosed
card.” The letter to Bolen was identical except that it stated in the first paragraph that the
position offered was that of pipefitter.

JD(ATL)–31–04

5

10

15

20

25

30

35

40

45

50
13

Management Corp., 336 NLRB 961, 970 (2001); American Tissue Corp., 336 NLRB
435, 447-448 (2001); Performance Friction Corp., above, 335 at 1124-1125, footnote
35; Cobb Mechanical Contractors, above, 333 at 1173; Halle Enterprises, 330 NLRB
1157 (2000).

On these findings of fact and conclusions of law and on the entire record, I issue
the following recommended9

ORDER

The Respondent, Fluor Daniel, Inc., its officers, agents, successors, and assigns,
shall pay backpay to the employees named below the indicated amounts of net backpay
and other reimbursable sums with interest as computed in New Horizons for the
Retarded, 283 NLRB 1173 (1987), and less taxes required by law to be withheld:

John H. Coons $ 32,566.54

Stephen S. Coons $ 43,579.84

David Scott Bolen $ 18,442.05

IT IS FURTHER ORDERED that Respondent shall take the following affirmative
action:

Offer immediate reinstatement to David Scott Bolen to his former position or if
that position no longer exists, to a substantially equivalent position, with the same
seniority and benefits he would have enjoyed if he had been continuously employed by
Respondent, and make him whole for all losses he suffered after the backpay period
computed in the compliance specification, because Respondent has not made a valid
offers of reinstatement to him.

Offer immediate instatement to John H. Coons and Stephen S. Coons to the
positions for which they applied or if those positions no longer exist, to substantially
equivalent positions, with the same seniority and benefits they would have enjoyed if
they had been continuously employed by Respondent, and make them whole for all
losses they suffered after the backpay periods computed in the compliance
specification, because Respondent has not made valid offers of reinstatement to them.

Respondent shall continue to be liable for backpay until such time as it makes a
sufficient reinstatement offer to Bolen and sufficient instatement offers to J. Coons and
S. Coons.

9 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 purposes.

JD(ATL)–31–04

5

10

15

20

25

30

35

40

45

50
14
Dated, Washington, D.C. June 7, 2004.

____________________
Jane Vandeventer
Administrative Law Judge