International Association Of Bridge, Structural And Ornamental Iron Workers, Afl-Cio, Local 373

National Labor Relations Board - Board Decisions

Jun 15, 1985

295 N.L.R.B. 648 (N.L.R.B. 1985)

648 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
International Association of Bridge , Structural and
Ornamental Iron Workers, AFL-CIO, Local
373 and Henry Arminas, Paul Bongard, Jr.,
Frank Castellano, Jeffrey Coleridge, Philip
Connell, William Crawford , Joseph Dolinich,
Edward Farley, James Fox, John Krusis,
Thomas McCloskey , Donald McMahon, Frank
O'Neill, Arthur Smith, Charles Thom and
Joseph Thom and Vincent Mackemull and Mi-
chael DeGeorge and Leon Adler and Building
Contractors Association of New Jersey, Party
to the Contract . Cases 22-CB-3024, 22-CB-
3362, 22-CB-3367, and 22-CB-3371
June 15, 1985
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND DEVANEY
On September 28, 1977, and March 20, 1978, the
National Labor Relations Board issued Decisions
and Orders in these proceedings' in which it found
that the Respondent, Iron Workers Local 373, had
violated Section 8(b)(1)(A) and (2) of the Act by
discriminating against nonmembers in its hiring hall
practices. The Board ordered the Respondent to
make whole each of the identified discriminatees,
as well as other "similarly situated" nonmember
applicants for referral who had sought employment
through the Respondent's hiring hall during the
relevant period, for earnings lost because of the
Respondent's discrimination. On October 2, 1978,
the Third Circuit Court of Appeals enforced the
Board's Orders.'
On June 30, 1983, the Regional Office issued its
backpay specification.3 Beginning on December 3,
1984, and continuing from time to time through
February 22, 1986, a hearing was held before Ad-
ministrative Law Judge Robert T. Snyder.4 On
August 20, 1987, Judge Snyder issued the attached
supplemental decision. The Respondent filed excep-
tions and a supporting brief, and the Charging Par-
ties filed a response.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the supplemental deci-
sion and the record in light of the exceptions, brief,
and response and has decided to affirm the' judge's
i Iron Workers Local 373 (Building Contractors), 232 NLRB 504 (1977),
and 235 NLRB 232 (1978)
2 Enfd. mem 586 F.2d 835
s The reasons for the delay in issuing the backpay specification are set
forth in the judge 's decision.
4 The hearing was adjourned from March 6, 1985 , to February 22,
1986, while the parties engaged (ultimately unsuccessfully ) in settlement
negotiations
rulings, 5 findings, 6 and conclusions only to the
extent consistent with this Supplemental Decision
and Order and to remand the case to the Regional
Office for further consideration.
I. BACKGROUND
A. The Consent Decree
For at least 5 years beginning June 28, 1972,
Local 373 and other member locals in the Northern
New Jersey District Council of Ironworkers were
operating under the terms of a consent decree
handed down by the United States District Court
for the District of New Jersey in an action under
Title VII of the Civil Rights Act of 1964. Among
other things, the decree (which was incorporated
by reference in the Respondent's collective-bar-
gaining agreement with local contractors) set forth
in detail the procedures the Respondent was re-
quired to follow in operating its hiring hall.
The decree required the Respondent to keep a
referral register in which were recorded the names
of all applicants for referral, their union affiliation
(if any), the dates on which they registered for re-
ferral, and the kinds of work they were seeking
(e.g., structural, reinforcing, and rigging).7 The
register also contained the dates on which each ap-
plicant was called for referral, the contractor to
whom he was referred, the kind of work he was
called for, and any remarks the business agent
might make concerning the circumstances of the
referral. To be eligible for referral, an applicant
was required to be present in the hiring hall during
normal referral hours (i.e., from about 7 to 9 a.m.
on weekdays). If an applicant was called for refer-
ral and did not answer, he was marked absent and
° We agree with the judge's refusal to admit into evidence affidavits of
74 alleged discriminatees that, according to the Respondent , disclaimed
any interest on the part of those individuals in participating in this pro-
ceeding , and to the judge's refusal to allow those individuals to testify
concerning their wishes to participate We do not , however , rely on
Clear Haven Nursing Home, 236 NLRB 853 (1978 ), cited by the judge, as
that decision has been overruled in Independent Stave Co., 287 NLRB
740, 742 (1987). Nor do we agree with him that the "waivers" contained
in the affidavits are analogous to private settlement agreements, those
"waivers" do not purport to bind the Respondent. Iron Workers Local
480 (Building Contractors), 286 NLRB 1328 fn. 4 (1987 ), enfd . mein 862
F.2d 309 (3d Cir. 1988). Moreover , the Board 's backpay order operates
only against the Respondent ; once the discriminatees have been informed
of the specific amounts (if any) they are entitled to receive , they will be
free to accept or reject the Respondent 's tender of payment Id.
° We correct the judge's citations of the following decisions. (1) In fns.
5 and 6, and in par. 5 of the section entitled "The Underlying Proceed-
ings," the 1978 Iron Workers Local 373 case is found at 235 NLRB 232;
(2) in par . 24 of "Respondent's Answer to the Backpay Specification,"
the court of appeals ' decision in Johnnie 's Poultry is found at 344 F.2d
617; (3) in par. 41 of "The Presentation of Respondent 's Defense," the
court's decision in Iron Workers Local 290 is found at 443 F 2d 383
9 There is no contention that any of the applicants were not qualified
to do the kinds of work for which they had registered
295 NLRB No. 71
IRON WORKERS LOCAL 373 (BUILDING CONTRACTORS) 649
had to re-sign the register in order to be eligible
for another referral.
Applicants were to be referred in chronological
order of registration. However, the decree con-
tained a number of exceptions to that general rule.
Thus, an applicant could be referred out of order if
he was requested by name by a contractor.8 Like-
wise, applicants could be referred out of order if
requested by name to serve as foremen . "Senior,
experienced" applicants also could be referred out
of order as stewards. Finally, requests for employ-
ees that were made during other-than-normal refer-
ral hours or on weekends or holidays could be
filled without regard to chronological order of reg-
istration.9
B. The Underlying Unfair Labor Practices
In its underlying decisions , the Board found that
the Respondent had discriminated numerous times
against the named discriminatees by "passing over"
them in favor of later -registered members, with no
justification whatsoever. The Board also found that
the Respondent had continuously and systematical-
ly designated its members as falling within one of
the categories sanctioned by the consent decree, in
order to afford preferential treatment in the referral
procedure to members. Thus, even though the use
of the "requested," "steward," "foreman," and
"late call" designations to refer applicants out of
order was not facially unlawful, the Board found
that , in fact , a substantial number of those designa-
tions, as employed by the Respondent , were false.
In view of the pervasive violations found, the
Board ordered the Respondent to make whole, not
only the identified discriminatees, but also "all non-
member applicants similarly situated who sought
employment opportunities during the relevant
period for any loss of earnings they may have suf-
fered" because of the discrimination. 10 The Board
did state , however, that at compliance the Re-
spondent might defend any out-of-order referrals
made under the "requested" rubric by producing
its contractor requisition registers and/or request
1letters "or other evidence of sufficient probity.""
The Board also specified a method of computing
backpay that would be based on the overall earn-
ings of all member and nonmember applicants who
sought work through the Respondent's hiring hall,
4 The Respondent was required to keep another register of contractor
requests . When a contractor asked for an individual by name , the Re-
spondent was required to ask the contractor to send a letter confirming
the request . Contrary to the judge, the Respondent was not required to
get such a letter, but only to request one
9 There were other designations under which out-of-order referrals
could be made , but they are not relevant to this case.
10 232 NLRB at 506; 235 NLRB at 233
11 232 NLRB at 506 fn . 8; 235 NLRB at 233 fn. 7.
and taking into account the net earnings of each
discriminatee during the relevant period.12
C. The Backpay Specification
When the backpay specification issued in 1983, it
sought backpay for the period January 24, 1975,
through December 31, 1979. It also claimed back-
pay for some 534 "similarly situated" nonmember
applicants, in addition to the 16 identified discri-
minatees from the unfair labor practice hearings.) a
Under the specification, the backpay period for
any individual began the day he was first passed
over in favor of a later-registered member, and
continued at least through the end of the calendar
quarter in which the passover occurred, without
regard to the number of times he registered or was
passed over . In all subsequent quarters in which a
passover of that individual took place, backpay was
claimed for the entire quarter , again irrespective of
the number of registrations or passovers.14 No
claim was made for any quarter in which no pass-
over occurred.15 The specification used the formu-
la for computing gross backpay that the Board di-
rected in the unfair labor practice cases.
The specification, in effect, counted any passover
of a nonmember by a later-registered member as an
act of discrimination . If a member passed over
more than one nonmember , each nonmember
passed over was counted as eligible for backpay.
The specification did not indicate whether a pass-
over was entirely unexplained, or whether it was
made under one of the designations sanctioned by
the consent decree. Moreover, for the period since
the end of the unfair labor practice proceedings,
the specification did not indicate whether a pattern
of pretextual use of those designations had contin-
ued to exist.
12 232 NLRB at 506, 235 NLRB at 233.
13 Net backpay claims were not made for approximately 82 individuals
whose earnings had exceeded the gross backpay claimed on their behalf.
14 Because backpay was assessed for any quarter in which a passover
took place , regardless of the number of passovers during that quarter, the
Respondent 's contention that the judge erred in not identifying the spe-
cific referral in each quarter that was discriminatory obviously is lacking
in merit . Any passover in a quarter (except the first in which a passover
occurred) generated the same backpay claim as any other The first pass-
over of each nonmember was clearly identified , because it coincided with
the beginning of the backpay period for that individual.
15 The backpay specification was structured as it was because the Gen-
eral Counsel had been unable to ascertain , with reasonable effort, how
long each discriminatee would have worked , and hence how much he
would have earned , had he been referred in chronological order Accord-
ingly, the method used by the General Counsel was to assume that the
lost job would have lasted through the end of the quarter . For subse-
quent quarters , the specification assumed that discrimination against the
individual, once established, had continued throughout the quarter, and
therefore claimed backpay for the entire quarter , no matter when the first
passover in that quarter took place . Although this approach plainly re-
sulted in only an approximation of each discnminatee's actual (gross)
losses, we find it a reasonable approximation under all the circumstances,
and one we have already approved Iron Workers Local 480, supra.
650 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
II. THE EXTENDED BACKPAY PERIOD
Although the Board's findings in the underlying
unfair labor practice cases were based on evidence
of unlawful activities that had taken place only
through February 24, 1977,16 the period covered
by the backpay specification extended, as we have
noted, through December 31, 1979. Thus, the Gen-
eral Counsel sought backpay for numerous individ-
uals 17 for a period of nearly 3 years during which
no unfair labor practices had been alleged or
found. The Respondent contended that that exten-
sion of the backpay period was improper. The
judge rejected that contention , citing provisions of
the Board's underlying decisions that he found to
indicate that the Board intended the make-whole
provisions of its Orders to operate prospectively.
He also analogized this case to Amshu Associates,
234 NLRB 791 (1978), and Stevens Ford, 271
NLRB 628 (1984), which stand for the general
proposition that a respondent's backpay obligation
continues until the respondent complies fully with
the Board's Order in the underlying unfair labor
practice case . The Respondent excepts to this
aspect of the judge's decision. We find merit in the
exception.
Once the Board has found a violation of the Act,
it usually does not permit subsequent unfair labor
practice allegations to be litigated in compliance
proceedings . 18 Instead , if the respondent 's unlawful
activity appears to be continuing and new charges
are filed , the General Counsel can issue an addi-
tional complaint encompassing the additional al-
leged violations . In the alternative (when, as in this
case, the Board's Order has been enforced by a
court of appeals), the General Counsel can bring
contempt proceedings against the respondent. Ordi-
narily, then, compliance proceedings are not the
preferred forum for trying, either explicitly or (as
here) implicitly , additional unfair labor practice al-
legations.
This rule is not inflexible, however. In Operating
Engineers Local 925 (J. L. Manta, Inc.), 168 NLRB
818 (1967), the Board departed from its usual prac-
tice and amended its earlier Order to provide spe-
cifically for make-whole relief for discrimination
16 In the second Iron Workers Local 373 decision, 235 NLRB 232, evi-
dence of discriminatory treatment of nonmembers was based on the Re-
spondent's referral records for the period ending February 24, 1977. In
the earlier decision , 232 NLRB 504, discrimination was found on the
basis of similar evidence for the period ending June 10, 1976
17 The backpay specification did not seek backpay for the same periods
of time for all the alleged discnminatees . Rather , it claimed backpay for
any nonmember only for those calendar quarters in which that non-
member had been passed over by one or more members of Local 373.
Therefore, backpay was not sought for all the alleged discriminatees
through the end of 1979.
is See, e g., Pennsylvania Electric Co., 289 NLRB 1200 fn. 3 (1988), re-
manded on other grounds 293 NLRB 358 (1989).
that took place after the hearing. In enforcing the
Board 's backpay decision , the Fifth Circuit Court
of Appeals relied on the fact that the Board had
specifically amended its Order to provide backpay
for lost earnings due to acts of discrimination that
took place after the original hearing. NLRB v. Op-
erating Engineers Local 925, 460 F.2d 589, 600 (5th
Cir. 1972). The court also noted with approval that
the backpay specification contained "specific al-
leged unfair labor practices occurring subsequent
to the close of the 1965 hearings." Id. Because the
specification detailed several specific incidents al-
leged to be unfair labor practices, complete with
dates, names of employers, and jobsites, the court
found that the specification met the requirements of
a complaint and should be treated as one. Id. at
601.
In this case, by contrast, neither of the Board's
original Orders provided specifically that backpay
might be claimed for any period after the unfair
labor practice hearings, and the Board did not
amend them to that end. Nor did the backpay spec-
ification identify specific actions by the Respondent
that were alleged to be unlawful. The most that
could have been gleaned from a review of the
specification was the date of the first "passover" of
a nonmember by a member of Local 373, and in
many instances those dates fell within the period
before the unfair labor practice hearings.19 More-
over, the General Counsel clearly did not envision
the backpay specification as serving the purpose of
a complaint in an unfair labor practice case. In-
stead, counsel for the General Counsel took the po-
sition at the hearing that, because discrimination by
the Respondent had been found in the underlying
cases, a presumption had been created that the dis-
crimination continued until the Respondent proved
that it had ceased. In her view, the General Coun-
sel and the discriminatees had no burden to prove
that discrimination had continued . 20 Indeed, coun-
19 As the specification claimed backpay for the first passover of any
nonmember from the date of that event to the end of the calendar quarter
in which it occurred , an examination of the specification would have di-
vulged the date on which the first discrimination against a nonmember
was alleged to have taken place . However , because the specification
awarded backpay through the end of the quarter even if the nonmember
was passed over only once in the quarter, it did not indicate when (or
even if) the nonmember was passed over later in the same quarter More-
over, for all subsequent quarters in which the same nonmember was
passed over , the specification claimed backpay for the entire quarter; con-
sequently , it was impossible to tell from the specification just when, or
how often , the nonmember was alleged to have been discriminated
against in any subsequent quarter.
20 Counsel for the General Counsel even suggested that , once the Re-
spondent had been found to have acted unlawfully, it was unlikely that
the wrongful actions would continue in the same manner as before.
Taken together with her position on the continuing presumption of dis-
crimination , this statement indicates a view that the General Counsel
could claim backpay on the basis of almost any action by the Respondent
Continued
IRON WORKERS LOCAL 373 (BUILDING CONTRACTORS) 651
sel for the General Counsel indicated that it would
be inappropriate for her to offer such proof, be-
cause to do so would be litigating an unfair labor
practice case, and the compliance proceedings
were an inappropriate forum for such an endeav-
or.21
We reject the judge's finding that the language
of the Board's underlying decisions can be read to
imply that make-whole relief was contemplated for
any future period. To the contrary, the consistent
use of the past tense (e.g., "all nonmember appli-
cants who were similarly situated" 235 NLRB at
233 (emphasis added); see also 232 NLRB at 507)
in those decisions indicates only that backpay
would be sought for the period during which viola-
tions had been found. Nor do we think, as the
judge did, that the Board's reference to "the rele-
vant period" foretold backpay for future periods.
Indeed, the statement that "We also shall provide
the Respondents make whole . . . all nonmember
applicants similarly situated who sought employ-
ment opportunities during the relevant period" in-
dicates that the relevant period was one that al-
ready had ended.22 Finally, that the Board ordered
the Respondent to keep records, file reports, and
open their referral registers for inspection for up to
2 years in the future does not suggest that those re-
quirements were for backpay purposes ; an equally
valid interpretation is that they were imposed to
enable the Board to proctor the Respondent's com-
pliance with the injunctive portions of the Orders.
Under the foregoing circumstances, we find that
the judge erred in not dismissing the backpay spec-
ification insofar as it sought backpay for the period
after February 24, 1977, the last day for which evi-
dence was submitted in the underlying proceed-
ings. As we have noted, the Board did not order
that additional unfair labor practices be tried in
these compliance proceedings , as it did in Operating
Engineers Local 925. In the absence of such an
order, the proper course for the General Counsel
to follow would have been to initiate contempt
proceedings in the court of appeals and to obtain a
judgment from the court that the Respondent had
continued to violate the Act following enforcement
of Board Orders in the unfair labor practice
that adversely affected an individual-even one that differed substantially
from those found to have been unlawful-without first proving that
action to have violated the Act.
21 Although counsel for the General Counsel subsequently compiled
statistics showing member passovers of nonmembers during 1977-1979,
and provided those data to the judge , she continued to maintain that it
was not the General Counsel 's burden to supply this information.
22 232 NLRB at 506 (emphasis added). The judge in one of the unfair
labor practice cases specifically recommended that the discnminatees be
made whole for losses suffered during 1975 and the first half of 1976. 232
NLRB at 518 . The Board did not take issue with the judge 's reasoning.
cases . 23 Alternatively, if additional charges had
been filed , an additional complaint could have
issued , covering the posthearing period . We per-
ceive no reason why the General Counsel , having
pursued neither of those courses , should have been
permitted instead , and over the Respondent 's oppo-
sition , 24 to depart from the Board's usual practice
and, in effect, to try additional (unalleged) unfair
labor practices in these compliance proceedings.25
Therefore , we shall not award backpay for any
passover that occurred after February 24, 1977.
However, consistent with the specification, we
shall award backpay through the end of the first
quarter of 1977 for any passover that took place
between January 1 and February 24 of that year.26
III. WHETHER APPLICANTS HAD TO BE PRESENT
IN THE HIRING HALL WHEN PASSED OVER TO
BE ELIGIBLE FOR BACKPAY
As we have said , one of the provisions of the
consent decree was that applicants must be present
in the hiring hall during normal referral hours to
be eligible for referral . There is virtually no evi-
dence, however, to indicate whether the alleged
discriminatees were present in the hall, and hence
eligible for referral, on the days they were passed
over in favor of members . Compliance Officer
Gregory Burke, who was the General Counsel's
23 At one point , the General Counsel did initiate contempt proceed-
ings, but those proceedings were concluded by a settlement agreement in
which the Respondent agreed only to permit the Board 's representatives
to copy its records.
24 The Respondent raised as a "separate" defense to the specification
the contention that it was improper for the General Counsel to claim
backpay for the period after the unfair labor practice hearings.
25 The judge 's analogy to Stevens Ford and Amshu Associates is mis-
placed . As the judge said, those cases hold that usually a respondent's
backpay obligation continues until it complies with the Board 's Order.
Typically , however, when backpay is sought, it is on behalf of an em-
ployee who has been terminated and not yet reinstated . An identified vio-
lation has occurred , in other words, but the impact of the violation on
the employee continues until the respondent offers to reinstate him; only
at that point does the extent of the employee 's loss become known. In
those circumstances, it is proper to require the respondent to make the
employee whole for the period ending with the respondent 's offer of re-
employment, even if that offer is not made until after the hearing.
This case is different The Respondent did not banish nonmembers
from its hiring hall or refuse altogether to refer them to jobs. (If it had,
the judge 's analogy would have been much more apt) There is no con-
tention , in other words, that because of any act of the Respondent's prior
to the hearings, any of the backpay claimants continued to be disadvan-
taged after the hearings . Therefore , there was no act by the Respondent
during the prehearing period that would generate backpay liability in the
posthearing period Indeed , by constructing a specification that claimed
backpay only in quarters in which additional acts of discrimination alleg-
edly occurred , the General Counsel has tacitly admitted that there is no
basis for extending the backpay period as in Amshu and Stevens Ford
26 Iron Workers Local 480, supra , does not require a different result. In
that case , the Board approved a backpay specification covering a period
following the end of the hearings in the underlying unfair labor practice
case However, the appropriateness of the extended backpay period was
not an issue raised before the Board
Because we are dismissing the backpay specification for the period
after February 24, 1977 , we do not pass on the Respondent 's exceptions
to the judge's findings concerning discrimination after that date.
652 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
only witness, conceded that he had no idea wheth-
er the alleged discriminatees were or were not in
the hiring hall when they were passed over. The
Respondent's referral registers show only the in-
stances in which the nonmembers either were
called, were present, and were referred to jobs, or
were called, failed to answer, and were marked
absent. They do not show whether an applicant
was present on days his name was not called. The
judge nevertheless found that as the Respondent,
by its unlawful actions, had created an ambiguous
situation in which it was impossible to determine
whether the nonmembers were in the hall when
they were passed over, it should bear the burden of
the ambiguity it had caused. Accordingly, the
judge drew the inference that the alleged discri-
minatees were present in the hiring hall on the
days they were passed over.
We agree with the Respondent that the judge
erred in his analysis. The Board has squarely held
that it is the General Counsel's burden, when pres-
ence in the hiring hall is a prerequisite for referral,
to demonstrate that the alleged discriminatees were
in the hiring hall when they were passed over in
order to establish their eligibility for backpay. Iron
Workers Local 433 (AGC of California), 228 NLRB
1420, 1441 (1977), enfd. (explicitly on this point)
600 F.2d 770, 779 (9th Cir. 1979), cert. denied 445
U.S. 915 (1980). Iron Workers Local 433, by neces-
sary implication, rejects the judge's ambiguity
theory. It would have been unnecessary for the
Board and the court of appeals to stress that the
burden of proof concerning this matter falls on the
General Counsel if they had meant that that burden
could be met merely by drawing an adverse infer-
ence against the respondent. That both the Board
and the court recognized that this burden might be
difficult, or even impossible, to bear is further evi-
dence that they did not intend that it be borne by
the expedient relied on by the judge. In this case,
the inference drawn by the judge is especially un-
warranted, because many alleged discriminatees
were marked absent repeatedly when their names
were called. Moreover, several applicants testified
that it was not their practice to appear at the hall
every day, but instead to register and come back
several days later, according to their estimate of
when their names likely would be called.
Our dissenting colleague would not impose on
the General Counsel the burden of showing that
claimants were in the hiring hall when passed over
as a condition to their receiving backpay, because
the issue was not litigated in the unfair labor prac-
tice proceedings. He finds that "suddenly" impos-
ing this burden on the General Counsel is tanta-
mount to a post hoc modification of the remedy
provided in those proceedings that the General
Counsel could not have foreseen. We disagree. Al-
though the Board did not explicitly address the
issue of the claimants' presence in the hiring hall in
its underlying decisions, Iron Workers Local 433
had been decided by the Board several months
before it rendered its decisions in those cases, and
long before the backpay specification issued in this
case.27 Given the existence of controlling Board
precedent that was in existence well before these
backpay proceedings commenced, it is difficult to
understand why the General Counsel should be
"surprised" by our application of that precedent to
this case.
Nor do we agree with our colleague that the
Board rejected this approach in Iron Workers Local
480. The Respondent in that case argued that many
of the claimants should be denied backpay because
they were not available for work. It based that ar-
gument on the fact that many applicants were re-
peatedly marked absent when called for referrals,
or registered only infrequently. The Board affirmed
the judge's rejection of that argument in Iron
Workers Local 480, and we are rejecting similar ar-
guments by the Respondent here.28 But the con-
tention that an applicant is not really looking for
work is not the same as the contention that an ap-
plicant who is not in the hiring hall, pursuant to
the rules under which the hall operates, is not eligi-
ble for referral, and should not be awarded back-
pay if passed over on that occasion.29 We find no
indication that the latter contention was raised in
Iron Workers Local 480; there is no mention of it in
the judge's decision or in the respondent's brief to
the Board, and Iron Workers Local 433 was neither
27 In other words, we are not deciding this issue for the first time, or
reversing precedent on which the General Counsel relied in litigating the
backpay specification.
28 We emphasize that we do not require the General Counsel to prove
the claimants shaped the Respondent's hiring hall on a regular basis to be
eligible for backpay . Backpay eligibility is not conditioned on the number
of times a claimant registered or was present in the hall within any quar-
ter. Regardless of the number of times a nonmember registered or ap-
peared at the hall in any quarter , he is entitled to backpay for the entire
quarter if he was passed over even once during the quarter , provided he
was in the hiring hall , and thus eligible for referral, when he was passed
over.
29 In this regard , we reject our colleague's suggestion that it was abso-
lutely futile for nonmembers to shape the Respondent 's hiring hall. The
Respondent did not refuse to refer all nonmembers; instead , it unlawfully
referred them out of their proper turn in order to give preference to its
members Too many nonmembers received referrals (or were offered re-
ferrals) for us to conclude that their presence in the hall was an exercise
in utter futility. Moreover, although we do not understand this to be our
colleague 's position , the logical extension of his "futility" argument
would seem to be , not that the Respondent , rather than the General
Counsel , should bear the burden of proof concerning whether non-
members were in the hiring hall when they were passed over , but that
the nonmembers ' presence or absence should not be considered at all in
determining the Respondent's backpay liability.
IRON WORKERS LOCAL 373 (BUILDING CONTRACTORS) 653
relied on by the respondent nor distinguished by
the judge.
The General Counsel's failure to prove that the
individuals for whom backpay is sought were
present in the hiring hall when they were passed
over probably will result in the dismissal of many
claims asserted in the backpay specification. There
are certain exceptions , however . First, the Re-
spondent appears to have conceded that the Charg-
ing Parties, who testified in the unfair labor prac-
tice hearings , typically were present in the hall,30
and does not oppose the award of backpay to those
claimants on this basis . The record indicates that
discriminatees Adler, Castellano , Coleridge, Con-
nell, Crawford, Dolinich, Fox, McCloskey,
Mundy , 91 O'Neill , and Smith in fact were present
more than 70 percent of the time when their names
were called. We shall infer from those individuals'
patterns of attendance that they were in the hall
when they were passed over. Charging Parties Ar-
minas, Farley, Krusis, and McMahon , by contrast,
were marked absent at least 44 percent of the time
when called. Faced with such high rates of absen-
teeism , we cannot find , on the present record, that
those four individuals were present on the occa-
sions when they were passed over.32
Our review of the referral registers also indicates
that nonmembers sometimes were passed over on
the days that they signed the registers. We think it
reasonable to infer, in the absence of evidence to
the contrary, that any applicant who was passed
over on the day he registered was in the hall and
eligible for referral on that occasion.
Finally, a few individuals for whom backpay was
claimed did testify in the backpay hearing concern-
ing their attendance at the Respondent 's hiring hall.
We have reviewed their testimony, and we find
that in the cases of two of those individuals an in-
ference is warranted that they were in the hiring
hall most or all the time during the relevant period.
Thus, Michael Agresto testified that his practice
was to go to the hall every day until his name was
called. According to the General Counsel's exhibit
showing Agresto 's registrations , passovers , and re-
ferrals, Agresto registered 15 times, and was
marked absent only 3, before he suffered a major
heart attack in September 1976. Similarly, Frank J.
Brown testified that his practice was to sign the
register and, if his name was not called, "probably"
90 The judge in one of the cases referred to the Respondent 's "sending
its own members to work before nonmembers sitting in the hall and wait-
ing their proper turn" as unlawful 232 NLRB at 510 (emphasis added)
'i Mundy is not a charging party . However, he testified in one of the
underlying cases.
32 However, as discussed infra , on those dates that Arminas , Farley,
Krusis, and McMahon signed the hiring hall referral register , we will
infer, as we do for the other discriminatees , that they were present and
eligible for referral
to return the next day. Brown signed the register
25 times during the relevant period , and was
marked absent only 6 times. In light of Agresto's
and Brown 's testimony and the evidence that each
was present in the hiring hall more than 75 percent
of the time when called, we infer that Agresto and
Brown were in the hiring hall on the occasions
they were passed over for referral.
There is one class of exceptions to the cases just
discussed. The Respondent 's business manager,
James Jensen, testified that when contractors re-
quested employees at times other than normal re-
ferral hours, his practice" was to refer, in chrono-
logical order of registration , the applicants who
were present in the hall when the request came in;
other registrants were not marked absent.34 In
view of Jensen's uncontradicted testimony, we
cannot infer that applicants who were not referred
in response to "late calls " were present when those
calls were made.
IV. THE "MULTIPLE PASSOVER" ISSUE
The backpay specification counted as an act trig-
gering backpay liability any passover of a non-
member by a member of the Respondent. In nu-
merous instances , members passed over more than
one-often several-nonmembers . On those occa-
sions, the specification counted the action as gener-
ating a backpay claim for each of the disfavored
nonmembers , even though , manifestly , only one of
them-the one highest on the referral register-
could have lost a referral as a result of the pass-
over . (In fact, even the most senior nonmember on
the register would not have lost the referral if the
favored member also passed over one or more
members who were even higher on the list.)
We agree with the Respondent that this ap-
proach often improperly generated backpay claims
on behalf of nonmembers who did not lose refer-
rals. Therefore, we shall not award backpay on the
basis of any passover of a nonmember who was not
at the head of the list of applicants (including mem-
bers) eligible for referral at the time the passover
occurred. We qualify this ruling in one respect,
however. When several nonmembers have been
passed over by several members, it would make no
sense to count each passover as having disadvan-
taged the nonmember who actually was highest on
the eligibility list, because if the first passover had
89 Jensen was not the business manager during 1975-1979; he was the
assistant to Business Manager McCloud , who died prior to the backpay
hearing. However, Jensen testified that he had observed McCloud 's prac-
tices in operating the hiring hall , and that his explanations of the oper-
ations of the hall thus were based on his personal knowledge
$4 As noted above , this practice appears to have been sanctioned by
the consent decree
654 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
not occurred, that applicant would have been re-
ferred in order, and would have been unavailable
for referral at the time of the second passover.35
Therefore, in order to reflect more accurately the
order of referrals that should have taken place, and
thus to identify the applicant who should have re-
ceived each referral, we shall constructively move
each applicant up the referral register each time an
out-of-order referral was made. Thus, on those oc-
casions when multiple passovers occurred , the eli-
gible applicant (including the Respondent's mem-
bers) who was highest on the list for referral will
be considered to have lost the referral as the result
of the first passover; the second eligible applicant
on the register will be considered to have been dis-
advantaged by the second passover , and so on.36
V. THE USE OF THE "REQUESTED"
DESIGNATION
In its underlying decisions , the Board ruled that
the Respondent could attempt to justify out-of-
order referrals of members over nonmembers under
the "requested" designation by introducing its con-
tractor requisition registers, letters from contrac-
tors confirming requests for individuals by name,
or "other evidence of sufficient probity."37 At the
backpay hearing, the Respondent introduced its
contractor requisition registers for the period be-
ginning September 13, 1976. The Respondent also
introduced some 260 letters from contractors re-
questing the referral of one or more of the Re-
spondent's members. In accordance with the
Board's underlying decisions, and contrary to the
judge, we find that any referral that was made
under the "requested" designation and that is cor-
roborated either by an equivalent entry in the req-
uisition registers or by one of the contractors' let-
ters should be counted as a legitimate referral
under that designation and should not generate
as For example , if five members all pass over five nonmembers, it
would be wrong to conclude that the nonmember highest on the referral
list had lost five jobs and that the others had lost none The correct view
is that each of the nonmembers lost one job - the first eligible nonmember
lost the first referral, the second lost the second referral , and so forth
se Our ruling in this respect may not, in practice , affect total backpay
liability to any great extent . For one thing, the record shows that most
nonmembers for whom backpay is claimed were passed over on many
occasions by many members . Consequently , even though a nonmember
may not have been highest on the register each time he was passed over,
the sheer number of passovers may have created a situation in which he
finally had, constructively , worked his way to the head of the list when
one of the passovers occurred , and that single passover would generate
backpay for the entire quarter Moreover, because of the general failure
of proof concerning most individuals ' presence in the hiring hall, a non-
member who is found to have been present on the occasion of any given
passover is likely to be awarded backpay simply because it is unlikely
that anyone above him on the list also will be shown to have been
present at that time.
37 235 NLRB at 233 fn 7 ; 232 NLRB at 506 fn 8.
backpay for any nonmember who was passed over
as a result of that referral.
VI. THE USE OF THE "STEWARD" DESIGNATION
Business Agent Jensen testified at length about
his assessment of the capabilities of the individual
claimants to serve as stewards . 38 We agree with
the judge that much of Jensen's testimony was un-
persuasive , especially his allegations that most of
the claimants were unqualified to serve as stewards
because they would tend to confuse the Respond-
ent's jurisdictional and work rules with those of
other Iron Workers' locals. In this regard, we note
in addition that, although Jensen testified that some
of the backpay claimants were qualified to be stew-
ards without regard to the size or complexity of
the job in question, the record indicates that many
of those very individuals were passed over repeat-
edly by members pursuant to the steward designa-
tion.
Nevertheless, Jensen also testified that some of
the claimants would not have been referred as
stewards for reasons that appear to be legitimate,
e.g., because they were heavy drinkers or gam-
blers, lacked the requisite experience, or were too
contentious in dealing with contractors. Those indi-
viduals should not receive backpay as a result of
having been passed over pursuant to the "steward"
designation , because even had the Respondent not
used that designation to discriminate against non-
members, those individuals would neither have re-
ceived steward referrals nor have lost earnings as a
result of such referrals.39
Unfortunately, the judge precluded the Respond-
ent from introducing evidence concerning the
qualifications of the claimants for steward referrals
during the period prior to the end of the unfair
labor practice hearings.40 That ruling prejudiced
38 Jensen testified in person concerning roughly 200 of the non-
members; the evidence concerning the remainder of the nonmembers was
admitted in the form of a document prepared by Jensen and containing a
summary of the evaluations he would have given had he testified.
In view of Jensen 's testimony , we find no merit in the Respondent's
exception to the judge 's finding that most of the nonmember applicants
were "senior, experienced" craftsmen who were qualified for steward re-
ferrals under the consent decree . Jensen 's testimony indicates that, in fact,
most of the claimants were experienced ironworkers , in only a few cases
did Jensen state that a claimant lacked the requisite experience to serve as
a steward.
as The Board in the underlying cases did not find that all referrals of
members under the "steward" designation were false , but only that "a
substantial number" were 235 NLRB at 233, 232 NLRB at 505.
40 The judge properly refused to allow the Respondent to litigate the
issue whether there had been discriminatory use of the designated excep-
tions (except for the "requested" designation) prior to the hearings in the
unfair labor practice cases ; the Board already had decided that question
in the affirmative He erred in excluding evidence that might have rebut-
ted the General Counsel 's contention that each of the claimants had been
a victim of discrimination during that period and was owed backpay as a
result.
IRON WORKERS LOCAL 373 (BUILDING CONTRACTORS)
the Respondent by denying it the opportunity to
show that certain claimants were passed over for
steward referrals during that period for legitimate
reasons, and therefore were not entitled to receive
backpay on the basis of those passovers. Accord-
ingly, we shall remand the case to the judge to
enable the Respondent to present evidence on the
limited issue of the backpay claimants ' fitness to
serve as stewards for the period ending February
24, 1977.
VII. THE RESPONDENT 'S EXCEPTIONS TO
INDIVIDUAL BACKPAY AWARDS
The Respondent excepts to the awards of back-
pay to Harry Barrett, Edward Hazelett , Joseph
Gavula, Edward Farley , Michael Agresto , Donald
Boe, Frank J. Brown , Patrick McGee, William
McClelland , John Krusis , and William Wardell. We
find no merit to the exceptions regarding Krusis,
Agresto, Brown , and Boe . The Respondent asserts
only that Krusis "rarely registered ." Infrequency of
registration , however , is one of the arguments that
was rejected in Iron Workers Local 480, supra, and
is rejected here as well. The Respondent argues
only that Agresto had open heart surgery (in 1979).
That fact obviously does not preclude backpay for
the period before September 1976, when Agresto
became ill. Concerning Brown 's alleged "drinking
problem," the record indicates only that Brown
sometimes left the hall and had a drink in frustra-
tion over having missed a referral . There is not
even a suggestion that Brown was unavailable for
work because of alcohol . The Respondent suggests
no reason whatever for denying backpay to Boe,
and we find none. Thus, subject to the limitations
set forth above, backpay is not denied to those four
individuals . As no backpay claim has been submit-
ted for Wardell for the period before February 24,
1977, we need not pass on the Respondent 's excep-
tion concerning him.
Because of our disposition of the case , we cannot
determine whether Barrett , Hazelett , Farley,
Gavula, McGee, or McClelland ultimately will be
entitled to backpay . Consequently , we shall not
pass on the Respondent 's exceptions concerning
those individuals at this time . If, on remand, any of
those five men are found to be owed backpay, the
Respondent may renew its exceptions.
VIII . THE RESPONDENT 'S REMAINING
EXCEPTIONS
The Respondent has filed numerous exceptions
that are without merit. Many, in fact, are virtually
identical to exceptions that were rejected in Iron
Workers Local 480, supra, and we shall not revisit
them here. Except as already set forth, we affirm
655
the judge's approval of the structure of the back-
pay specification.
The Respondent asserts that it was denied due
process by what it contends was the Regional Of-
fice's failure to follow Board procedures for ascer-
taining the discriminatees ' interim earnings . Specifi-
cally, the Respondent objects to the Regional Of-
fice's failure to contact any of the "similarly situat-
ed" applicants to secure interim earnings informa-
tion prior to the issuance of the backpay specifica-
tion, and to the failure to send those applicants its
form 22-CPL-24, used for making contemporane-
ous records of interim earnings . The Respondent
contends that the Regional Office's actions violated
Section 102.53(a) (now Sec. 102.55(a)) of the
Board 's Rules and Regulations, as well as Section
10580 of the Board 's Casehandling Manual.
We find no denial of due process. Compliance
Officer Burke, who prepared the backpay specifica-
tion , explained that haste in issuing the specifica-
tion was mandated by an order of the Third Cir-
cuit Court of Appeals, and that there was not
enough time to gather information on interim earn-
ings for inclusion in the specification. As the judge
found, however, the Regional Office made exten-
sive efforts after the backpay specification issued to
ascertain each claimant's interim earnings, and
made that information available to the Respondent.
As for form 22-CPL-24, Burke testified that it is
given to alleged discriminatees at the time a com-
plaint issues, so that they may keep contemporane-
ous records of their earnings. Here, the identity of
most of the backpay claimants was not even known
until long after the trial of the unfair labor practice
allegations , when it was impossible to make con-
temporaneous records of earnings . However, it ap-
pears that the earnings information that the Re-
gional Office gathered from the Iron Workers Dis-
trict Council Pension and Welfare Funds office, to-
gether with the information requested from the
claimants (i.e., W-2 forms, tax returns, and authori-
zation to obtain earnings records from the Social
Security Administration) would serve substantially
the same purpose. We are satisfied that the Region-
al Office made reasonable efforts to secure informa-
tion concerning the interim earnings of the "simi-
larly situated" applicants, and that the Respondent
was not prejudiced in this respect . In this regard,
we observe that it is the Respondent's burden, not
the General Counsel's, to prove interim earnings.41
41 The Respondent's contention that Sec. 102 55(a) of the Board's
Rules and Sec 10580 of the Casehandlmg Manual require the General
Counsel to provide interim earnings information is also wide of the mark.
It is the General Counsel's usual practice, not legal duty, to provide such
information. Iron Workers Local 480, supra 1334; NLRB v. Brown & Root,
Continued
656 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
We further stress that, as the judge ordered, back-
pay will not be disbursed to any nontestifying
claimant unless the claimant applies for it within 1
year ,42 and the Respondent will be afforded the
opportunity to question the claimant concerning his
interim earnings, with the Regional Director
making the final determination . No funds will be
disbursed to any claimant who refuses to provide
the requested information or to appear for an inter-
view. Starlite Cutting, 280 NLRB 1071 (1986) (Star-
lite 1).43 This procedure has met with court ap-
proval. NLRB v. Brown & Root, 311 F.2d 447, 455
(8th Cir. 1963). Consequently, we find no merit in
the Respondent's exception to its use in this case,
or to its exception to the judge's awarding backpay
to claimants who did not testify.
The Respondent contends that it is improper to
award backpay or interest to the "similarly situat-
ed" nonmember applicants because they were not
identified until several years after the unfair labor
practice hearings. There is no merit to those con-
tentions . NLRB v. Rutter-Rex Mfg. Co., 396 U.S.
258 (1969); NLRB v. Iron Workers Local 480, 466
U.S. 720, 724 (1984); Manhattan Graphic Produc-
tions, 282 NLRB 277 (1986); Carrothers Construc-
tion Co., 274 NLRB 762, 763 (1985). Finally, the
Respondent excepts in several respects to the size
of the total backpay award. We rejected a similar
argument in Iron Workers Local 480. However, be-
cause of our disposition of this case , we cannot
now determine how many of these claimants ulti-
mately will be awarded backpay. Consequently, we
find it premature to address these exceptions at this
time.
IX. CONCLUSION
In sum , we have decided to dismiss the backpay
specification for the period following February 24,
1977, for the reasons stated in part II, supra. Our
supra at 454 The Casehandling Manual states plainly that its contents are
for the guidance of agency staff, and that it is not a compendium of sub-
stantive or procedural law binding on the General Counsel or the Board.
Moreover, although Sec . 10580 of the manual does state that the compli-
ance officer is responsible for assembling interim earnings data , we note
that Sec . 10656 . 10 states that , for missing claimants for whom interim
earnings data have not been obtainable , claims should be entered for full
gross backpay.
42 This 1 -year period will commence either when the Respondent com-
plies by depositing the backpay in escrow or on the date the Supplemen-
tal Decision and Order becomes final , including enforcement, whichever
is later . Starlight Cutting , 284 NLRB 620 (1987 ) (Starlight II).
Although Member Johansen dissented in Starlight II, and would find
that the 1 -year escrow periods should begin on the date of issuance of the
Board 's Order affixing backpay liability , he nevertheless considers himself
to be institutionally bound to apply the rule of Starlight II in this case.
48 For the reasons expressed in his concurring and dissenting opinion
in Starlite I, Chairman Stephens would not consider any nontestifying
claimant 's backpay award to be automatically extinguished if he should
not be available within the 1 -year escrow period. However, as long as
Starlite I remains Board law, Chairman Stephens will apply the remedy
set forth therein
other findings , contained in parts III through V,
will require a substantial restructuring of the speci-
fication and a recomputation of the amounts owed
each claimant . We shall remand this proceeding to
the Regional Office for those purposes . On remand,
the specification shall be revised so that ( 1) back-
pay is not awarded to any nonmember who is not
shown to have been present in the hiring hall when
he was passed over , as set forth in part III; (2) no
out-of-order referral of one of the Respondent's
members shall give rise to backpay for more than
one nonmember applicant, as explained in part IV;
and (3) out-of-order referrals of members pursuant
to the "requested" designation shall not generate
backpay liability if they are corroborated by con-
tractors' request letters or by entries in the Re-
spondent's contractor requisition registers.
Following the Region 's revision of the backpay
specification , in accordance with our Supplemental
Decision and Order , the judge shall reopen the
hearing to receive any evidence the Respondent
wishes to introduce concerning the qualifications of
any of the claimants to serve as stewards during
the period up to February 24, 1977 . Of course, the
Respondent will have the same right under the
Board 's Rules and Regulations to challenge the
new specification as it had to challenge the one
now before us (except that no challenge that has
already been rejected will be entertained with re-
spect to the new specification). The judge shall
hear any such challenges at the same time he takes
evidence concerning the claimants ' qualifications
for steward referrals during the relevant period.
ORDER
The backpay specification is dismissed insofar as
it claims backpay for passovers that occurred after
February 24, 1977. In all other respects, the case is
remanded to the Regional Office and to the admin-
istrative law judge for proceedings consistent with
this Supplemental Decision and Order.
MEMBER DEVANEY, dissenting in part.
Although I agree with the majority in other re-
spects, I would not restrict the backpay award in
this case to only those discriminatees whom the
General Counsel established were present in the
Respondent's hiring hall when they were passed
over for referrals. Consistent with the Board's ear-
lier findings in the unfair labor practice cases
here, t I would not place such a limitation on any
backpay entitlement.
I Iron Workers Local 373 (Building Contractors), 235 NLRB 232 (1978),
and 232 NLRB 504 (1977), enfd . mem. 586 F 2d 835 (3d Cir . 1978).
IRON WORKERS LOCAL 373 (BUILDING CONTRACTORS)
In the underlying unfair labor practice proceed-
ings, the Board specifically provided that the Re-
spondent "make whole the identified discriminatees
and all nonmember applicants similarly situated
who sought employment opportunities ...."2 My
colleagues , however, now effectively deny backpay
to numerous individuals because the General Coun-
sel failed to establish that they were present in the
hiring hall when the Respondent made unlawful re-
ferrals . The majority contends that the General
Counsel has to carry this burden of proof based on
the decision at the unfair labor practice stage in
Iron Workers Local 433 (AGC of California), 228
NLRB 1420, 1441 (1977), where the Board adopted
the judge 's remedy setting out this requirement.
Yet, the Board in the underlying unfair labor prac-
tice decisions here, which the Third Circuit has en-
forced, did not specifically require the General
Counsel to make this showing as did the judge in
Iron Workers Local 433. Indeed , as the judge here
noted, "this question [of presence in the hiring hall]
appears not to have been raised in the underlying
proceeding and did not trouble either the [judge]
or the Board in making their applicable findings
and conclusions ." JD slip op . at 28. I find that my
colleagues have modified , post hoc, the remedy
that the Board provided in the underlying unfair
labor practice cases by suddenly imposing on the
General Counsel , during the backpay stage of this
proceeding , the burden to show that all the discri-
minatees for whom backpay is sought were present
in the hiring hall on particular dates occurring
more than 10 years earlier when the Respondent
made unlawful referrals to their detriment. In
effect, they have created an eleventh hour revision
to the compliance procedures that the General
Counsel could not have reasonably foreseen and
that effectively bars numerous discriminatees from
recovering any backpay . I therefore conclude that
the majority 's reliance on Iron Workers Local 433 is
misplaced.
Furthermore , it seems clear that the Board previ-
ously rejected the essence of the argument, which
my colleagues now approve , in Iron Workers Local
480 (Building Contractors), 286 NLRB 1328 ( 1987),
which was a backpay proceeding involving a sister
local of the Respondent . There the respondent
local argued that various claimants were not enti-
tled to backpay or should have had their backpay
substantially reduced because of their unavailability
for work. It relied on its referral registers to estab-
lish its defense. As here, the judge there noted that
those registers reflected only those instances when
a claimant was called by the local and was unavail-
657
able and therefore was marked absent . As here, the
judge there noted that there were "no records re-
flecting these claimants' availability at a time when
they would have been referred had there been no
discrimination." Id. at 1334 . But, unlike here, the
judge there did not make this the General Coun-
sel's burden to prove . Instead , he indicated that this
was the local's burden and he concluded that the
local there "can hardly expect applicants to sit idly
by in its hiring hall while they [blatantly] discrimi-
nate against them and then profit by their [unavail-
ability] when [the local] finally got around to refer-
ring them ."3 Likewise , in this case, I would not re-
quire the General Counsel to show that the discri-
minatees performed the obviously futile act of
shaping the Respondent 's hiring hall on a particular
date when they were passed over before they
became eligible to receive any backpay . I note that
the judge here , while discussing the backpay claim
of discriminatee John Krusis at Section IV, L,
infra, echoed the finding of the Board in Iron
Workers Local 480 when he remarked that:
once the discriminatory actions were taken,
and in such a continuous and massive pattern,
there is no warrant for conditioning recovery
by Krusis and the others like him on the re-
quirement that he remain continually in the
hall in an exercise in futility until all union
members have been referred . . . .
Clearly, these nonmember applicants needed to
seek employment elsewhere in the face of the dis-
crimination against them and , if they found jobs,
their interim earnings should reduce backpay ac-
cordingly. In this regard , I further note that, al-
though the Respondent 's backpay liability here in-
volves only claimants who were discriminated
against after registering at the hiring hall, the
Board in Bechtel Power Corp ., 223 NLRB 925
(1976), went one step further and found , even in
the absence of direct evidence that the alleged dis-
criminatee had sought referral , that the union un-
lawfully denied employment to him because "such
an act [i.e., seeking referral] would have been
futile ." Id. at 925 . For these reasons, I conclude
that the evidence my colleagues would have the
General Counsel establish concerning the presence
of the discriminatees in the Respondent 's hiring
hall is immaterial to this backpay proceeding.
Accordingly , I dissent from my colleagues' fail-
ure to provide full backpay on this record to all
the applicants whom the Respondent discriminated
against during the backpay period that we have
found applicable here.
2 232 NLRB at 506, see also 235 NLRB at 233. 1 Iron Workers Local 480 at 1334.
658 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Bernard S. Mintz, Esq. and Hope Singer, Esq., for the
General Counsel.
John J. Mulvihill, Esq. (O'Neill & Moore, Esgs.), for the
Respondent.
John A. Craner, Esq. (Craner, Nelson, Satkin & Glazner,
P.A.), for the Charging Parties.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
I. THE UNDERLYING PROCEEDINGS
ROBERT T. SNYDER , Administrative Law Judge. On
23 September 1976, in Case 22-CB-30241 and on 20
March 1978 in Cases 22-CB-3362, 22-CB-3367, and 22-
CB-3371 the Board issued Decisions and Orders con-
cluding that Respondent had engaged in a continuing
and widespread pattern of unlawful conduct against the
discriminatees therein in violation of Section 8(b)(1)(A)
and (2) of the Act by giving preference to members over
nonmembers in making referrals to work in the operation
of its exclusive hiring hall.2 As part of its remedy in
these cases the Board issued orders directing Respondent
to not only make whole the identified discriminatees3 but
also all nonmember applicants similarly situated who
sought employment opportunties during the relevant
period for any loss of earnings they may have suffered
by reason of Respondent 's discrimination against them.
On 2 October 1978, the United States Court of Appeals
for the Third Circuit enforced in full the Board's Orders,
including the backpay provisions thereof. Iron Workers
Local 373, 235 NLRB 232 (1978), and 232 NLRB 504
(1977), enfd. mem. 586 F.2d 835 (3d Cir. 1978).
As earlier noted , the Board made the same findings
and ordered the same remedies against Local 373's sister
Local 45 in the same proceeding , and in a separate pro-
ceeding, against Local 373's sister Local 480, in each
case involving these other locals obtaining enforcement
of its orders in the U.S. Court of Appeals for the Third
Circuit.4 All of these locals are members of the District
I Although their names continue to appear in the caption of these con-
solidated cases , Charles Thom, Joseph Thom, Vincent Mackemull, and
Michael DeGeorge are no longer participating Charging Parties, the ad-
ministrative law judge 's dismissal of the allegations of the complaint in
Case 22-CB-3024 with respect to alleged discriminatees Charles Thom
and Joseph Thom having been adopted by the Board in Iron Workers
Local 373, 232 NLRB 504 fn. 4 (1977 ), and the allegations relating to the
charges filed by Mackemull and DeGeorge having been withdrawn by
the General Counsel at the outset of the hearing in Cases 22-CB-3362,
22-CB-3367, and 22-CB-3371, Iron Workers Local 373, 235 NLRB 232,
235 fn. 1 (1978).
2 Two others cases which had been consolidated with Case 22-CB-
3024 in the underlying litigation resulting in Board Decision and Order,
232 NLRB 504, in one of which the Board made identical conclusions of
law against Respondent 's sister Local 45, were severed for purposes of
this proceeding by order of the Regional Director for Region 22
a These include all those named as Charging Parties in Case 22-CB-
3024, except Charles Thom and Joseph Thom-14 named discriminatees,
and Leon Adler and Philip Mundy in Case 22-CB-3371, excluding Vin-
cent Mackemull and Michael DeGeorge-2 named discrimmatees, and
thus 16 named discriminatees in all (see fn . 1, supra).
4 Iron Workers Local 480, 235 NLRB 1511 (1978), enfd . mem. 598 F 2d
611 (3d Cir. 1979), Iron Workers Local 45, 232 NLRB 520 (1977), enfd
mem. 586 F .2d 835 (3d Cir 1978); Iron Workers Local 45, 232 NLRB 504
(1977), enfd. mem. 586 F .2d 834 (3d Cir. 1978)
Council of Northern New Jersey, International Associa-
tion of Bridge , Structural and Ornamental Ironworkers,
AFL-CIO (the District Council) which is party to a col-
lective-bargaining agreement with the Building Contrac-
tors Association of New Jersey containing a requirement
that all covered employees shall be recruited exclusively
through the several hiring halls operated by the District
Council's constituent locals . All these locals are also re-
quired to operate their hiring halls in a nondiscrimina-
tory manner in accordance with a consent decree en-
tered in 1972 as part of a settlement of an employment
discrimination suit brought by the United States against
the District Council and others under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
(1976) (Title VII). The provisions of the consent decree
set forth in detail how the mechanics of the hiring hall
system were to operate in order to prevent future dis-
crimination . The consent decree permitted referrals to be
made out of chronological order in certain instances,
such as when contractors requested an applicant by name
or to serve as a foreman on a job , when the local union
designated a senior, experienced applicant to act as stew-
ard at a particular jobsite, or when employer requisitions
are communicated during other than normal referral
hours or on Saturdays , Sundays, or holidays.
In concluding that a continuing and widespread pat-
tern of unlawful conduct on referrals existed, the Board,
in each of the two cases involving the 16 named discri-
minatees, relied on an examination of Respondent Local
373's referral books which showed discrimination in two
significant respects . In the first, members with no pur-
ported designations in the "Remarks" column falling
within excepted categories under the consent decree
were given preference over the named discriminatees,
enumerable times . In the second, by "continuously and
systematically designating its own members as falling
within excepted categories under the consent decree and
referring them out of turn, almost to the point of so des-
ignating each and every member referred ."5 the Board
agreed with the two administrative law judges "that the
only reasonable evidentiary inference to be drawn from
this striking statistical contrast between member and non-
member referrals made pursuant to excepted category
designations under the consent decree is that a substantial
number of such designations are false."a
With respect to one excepted category of designation
under the consent decree, that of "requested" designa-
tions, the Board , noting that Respondent had asserted
such out of referrals under that designation as an affirma-
tive defense to the charges in both cases, authorized the
Respondent to meet the burden of proving its defense to
facially discriminatory referrals in subsequent compliance
proceedings by producing certain documents substantiat-
ing the validity of such designations, or explaining its
failure to do so . These documents are (1) the separate
S Iron Workers Local 373, 232 NLRB 504 at 505 ( 1977), and Iron Work-
ers Local 373, 235 NLRB 232 at 233 (1978).
6 Iron Workers Local 373, 232 NLRB 504 at 505 ( 1977) In the second
case the Board , in reaching this conclusion , added that it did so "particu-
larly in light of the total absence of any explanation in the record for
such disparity." Iron Workers Local 373, 235 NLRB 232 at 233 (1978)
IRON WORKERS LOCAL 373 (BUILDING CONTRACTORS)
"Contractor Requisition Registers" required by para-
graph 23 of the consent decree and (2) written confirma-
tion of contractors requests required by paragraph 27(c)
of the consent decree.
In Iron Workers Local 373, 232 NLRB 232 (1978), the
Board also ordered that with respect to the two named
discriminatees , Philip Mundy and Leon Adler, their
backpay period could commence within the 10(b) period
applicable to the prior litigated case, 232 NLRB 504
(1977), if they were subsequently determined at the com-
pliance stage of this proceeding to fall within the classifi-
cation of "other as yet unidentified discriminatees" found
in the prior case.
II. THE BACKPAY SPECIFICATION
A. Events Preceding its Issuance
A period of 4 years and 9 months elapsed between the
court's enforcement order on 2 October 1978 and the is-
suance of the backpay specification herein on 30 June
1983 . The lengthy elapse of time was explained by the
General Counsel's witness , Compliance Officer Gregory
Burke, and is also accounted for in similar fashion in an
opinion of the Supreme Court in NLRB v. Iron Workers
Local 480, 466 U.S. 720 (1984). In that per curiam deter-
mination , the Supreme Court reversed and remanded to
the Court of Appeals for the Third Circuit its order,
made on motion of Local 480 , modifying the award of
backpay the Board had ordered and the Third Circuit
previously enforced , see footnote 4 supra . In its modifi-
cation order the Third Circuit eliminated the class of
similarly situated claimants, limiting the Board 's Order to
require that the local tender backpay only to the charg-
ing parties and only as calculated by the backpay specifi-
cation of 21 December 1982, justifying its action on "the
length of time that elapsed since the entry of the the
court's original judgment." The Respondent there, Local
480, sister local to Respondent Local 373 here, had also
contended that the Board 's specification was "punitive"
and "confiscatory ," an argument Respondent Local 373
also makes herein . The Supreme Court reserved judg-
ment on that contention . It held , however, it was well
established that the court of appeals may not refuse to
enforce a backpay order merely because of the Board's
delay subsequent to that order in formulating a backpay
specification, citing NLRB v. Rutter-Rex Mfg. Co., 396
U.S. 258 (1969), for that proposition. The Supreme Court
concluded that as the court of appeals may have rested
its judgment under review on the failure of the Board to
act promptly , that judgment must be reversed and the
case remanded.
In the course of its opinion , the Supreme Court de-
scribed the process of preparation of the backpay specifi-
cation . The Board 's Regional Office employed the Gen-
eral Services Administration to conduct a computer anal-
ysis of Respondent's records . The computer was to per-
form the laborious task of comparing the signup dates
and qualifications of nonunion members with those of
union members who had been referred ahead of them.
The Court noted here that the analysis was further com-
plicated by the Board 's decision to consolidate the back-
pay specification for that case with those for four similar
659
cases of discrimination by other New Jersey locals of the
International Iron Workers Association . Respondent
Local 373 was presumably one of the four. It is also evi-
dent that the Regional Office of the Board involved in
all of these Iron Workers backpay cases , used the same
records, of the District Council of Iron Workers of
Northern New Jersey Pension and Welfare Funds (Dis-
trict Council Funds), to obtain the raw data which was
fed into the same computer , and was engaged in these
endeavors over the same period of time . The Court also
noted , as did Burke , that a further delay in preparation
ensued when in February 1981 the Regional Office dis-
covered a substantial computer error that would require
that the entire analysis be performed again at great ex-
pense to the Board . Until October 1980, states the Court,
the Union slowed the process by refusing to permit pho-
tocopying of relevant records.
Before the Third Circuit Court of Appeals granted
Local 480's motion, no backpay specification having yet
issued , the Local had made and renewed a motion, in
April and September 1982, respectively, seeking relief
from that part of the court of appeals order of 11 May
1979, directing backpay for nonmembers applicants
"similarly situated" to the named Charging Parties. The
court of appeals denied the first motion without preju-
dice to a renewal after 90 days, and in response to the
renewed motion, ordered the Board to enter its formal
backpay specification by 31 December 1982. Burke testi-
fied that based on a separate motion Respondent Local
373 had filed, by the same counsel , seeking similar relief,
the court of appeals ordered a backpay specification
issued herein by 30 June 1983.
Thus it was, as explained by Burke, that the Regional
Office was under considerable pressure to issue backpay
specifications in these cases . A third, in the case involv-
ing Iron Workers Local 45, was to follow. Burke testi-
fied that it was not until the end of December 1982, or
the beginning of 1983 that the usable computer printouts
were returned to him for use in this proceeding . At that
time, he had to analyze each one of them by hand, and
they were voluminous , break them down by hand, sort
them out manually to identify people whose names were
spelled slightly differently. It took Burke a couple of
months of sorting activity from receipt of the printouts
to be able to pin point which of the nonmembers had
been passed over . The specification issued on 30 June
1983.
B. The Essential Elements of the Backpay
Specification
In paragraph 1 the specification defines the backpay
period for each discriminatee as beginning on the first
day a discriminatee was denied referral to employment
(passed over) in favor of a member of Respondent and
runs until the end of that calendar quarter . Backpay con-
tinues for each subsequent calendar quarter in which a
passover occurred . The backpay period for each discri-
minatee ends at the end of the calendar quarter in which
the discriminatee was last passed over . Claims in this
specification cover the period through 31 December
1979.
660 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In paragraph 2 the specification sets forth the gross
backpay formula , first noting that this formula is pre-
scribed in the Board's Order as enforced. In its Order the
Board affirmed the basic formula adopted by the admin-
istrative law judges in the two cases whereby the overall
earnings of all applicants , members and nonmembers,
seeking employment through each Respondent local's re-
ferral system would be divided by the total number of
ironworkers who worked out of the hiring hall. A later
paragraph lists gross backpay from 1975 through 1979 by
calendar quarter derived from application of the formula.
In modification of the recommendation of one of the
administrative law judges and in agreement with the
other, the Board also required that the remedy take into
account the net earnings of the individual discriminatees
during the relevant period and provide for the inclusion
of interest as provided in Florida Steel Corp., 231 NLRB
651 (1977), Iron Workers Local 373, 232 NLRB 504 at
506 (1977) and 235 NLRB 232 at 233 (1978).
The specification proceeds to describe how the appli-
cants seeking employment through Respondent Local
373's referral system were determined , how the gross
backpay was determined at the beginning of the 10(b)
period , and thereafter on a quarterly basis, how gross
backpay was determined for a quarter in which a non-
member applicant is first passed over for referral in favor
of a member, how gross backpay for each discriminatee
is first adjusted and then derived as a net figure on a
quarterly basis, plus interest, and how contributions
which would have been made on behalf of each discri-
minatee to various fringe benefit funds absent discrimina-
tion are calculated and then added to the total net back-
pay due the discriminatees for the calendar quarters for
which net backpay is due, as contributions due the vari-
ous funds, plus interest.
Local 373's hiring hall records were used to identify
all applicants who registered for work. Lists of all jour-
neyman applicants who were members and nonmembers
of Respondent during the years 1975 through 1979, were
attached to the specification as Appendices B and C, re-
spectively . If an applicant did not register or was an ap-
prentice during particular calendar years , he was ex-
cluded from the calculations deriving gross backpay
from average earnings for these years and appropriate
entries were made in the appendices . The calculations of
gross backpay (or average earnings) for each year was
then shown in Appendix D to the specification.
In the prior case , in which the Board first established
the class of similarly situated nonmember applicants enti-
tled to a remedy, who were to be determined and their
remedy fixed in subsequent compliance proceedings, the
10(b) period commenced 24 days into the first quarter of
1975, on 24 January 1975, Iron Workers Local 373, 232
NLRB 504 at 509 . Thus, the maximum period of back-
pay claimed for any discriminatee who may have been
discriminated against on 24 January 1975, as the General
Counsel has claimed , e.g., for Leon Adler, was 68 days
for the first quarter of 1975 . An act of discrimination, or
passover, was determined to be each instance in which a
member signed after, but was referred out before, a non-
member had signed the referral register , in a job catego-
ry for which the nonmember had listed himself as avail-
able for referral. These job categories covered roughly
20 skills, such as decking , finishing , mesh , ornamental,
precast, rigging , rods, sash , sheeting , structural , and four
kinds of welding , among others . For the first time in a
calendar quarter in which a particular discriminatee was
passed over, his backpay for that quarter comprises only
the number of days from the date of discrimination to
the end of the quarter. Thereafter, for each instance in a
quarter in which a subsequent passover occurred, back-
pay for the full quarter is claimed.
The adjustment of gross backpay for a particular quar-
ter is made by subtracting therefrom quarterly earnings
derived from employment with employers signatory to
the collective-bargaining agreement with the District
Council. Quarterly net backpay constitutes the difference
between adjusted gross backpay and net interim earnings
derived from sources other than employers signatory to
the agreement with the District Council.
The funds to which signatory employers would have
made contributions on employees ' behalf comprise the
District Council Fringe Benefit Funds, including the
pension fund , welfare fund , annuity fund , and vacation
fund . The rates of contribution as percentages of earn-
ings derived from employer signatories specified in the
collective-bargaining agreements formed the basis of the
calculation - of contributions to the various funds by cal-
endar quarter which are included in the total figures
claimed to be due and payable on behalf of each discri-
minatee for the quarters in which discrimination took
place.
The final exhibit attached to the specification, compris-
ing Appendices E-1 through E-632, shows the figures,
broken down by each year and quarter, and totaled, rep-
resenting backpay and contributions on their behalf to
the various funds , for each discriminatee ,7 on whose
behalf a claim is made.
C. Respondent's Answer to the Backpay Specification
Respondent filed a detailed answer to the specification,
dated 31 August 1984. At the outset of the hearing,
counsel for the General Counsel made a series of mo-
tions to strike a substantial portion of the answer as well
as many of the affirmative defenses which Respondent
had interposed . The portions of the answer at issue and
my rulings will now be reviewed . I do so because my
rulings striking a good portion of the answer severely
limited the defenses which Respondent could assert to
the elements of the specification during the backpay
hearing which followed in subsequent days and which
Respondent seeks to raise in its posthearing brief.
First, Respondent took exception to the method uti-
lized by the Board in measuring the amount of time for
which backpay is due during a particular quarter, claim-
ing that one passover in a quarter provides a windfall for
r In its brief General Counsel withdraws certain claimants and modifies
certain other claims as a consequence of information it received during
the course of the hearing . See, infra . The General Counsel now lists 625
individuals, including the 16 discrimmatees identified in the underlying
proceedings. A significant percentage of these include named individuals
who suffered no loss under application of the formula but who nonethe-
less are legitimately alleged as discnmmatees
IRON WORKERS LOCAL 373 (BUILDING CONTRACTORS) 661
claimants who are discriminated against late in a quarter,
receive a referral shortly after their passover , registered
infrequently , or, who, after their passover , are unavail-
able and marked absent when their name is finally called
for referral . Respondent went on to suggest a more rea-
sonable approach of prorating the average quarterly
wage based on these factors but without providing, as
part of its answer , the calculations or results as applied
to each of the claimants . Both in view of its failure to
comply with the Board 's Rules and Regulations , requir-
ing specificity in pleading with respect to the formula
and its application , as required by Section 102.548 and in
view of the pertinent comments of Administrative Law
Judge Thomas A. Ricci on this issue ,9 showing the result
of permitting this inquiry to be expanded unduly, I grant-
ed the General Counsel 's motion to strike that portion of
paragraph 1 of the answer , appearing at midpage 2 to
midpage 4. My ruling , including case citations , appears at
Tr. 48-49.
Next, Respondent took issue with the formula adopted
in the specification to determine the appropriate measure
of backpay . Under that formula, the overall earnings of
all applicants , members and nonmembers , are totaled and
divided by the total number of applicants . The specifica-
tion describes this formula as "prescribed in the Board's
Order as enforced ." Respondent argued that the Board's
formula, in order to be valid , requires that only those
earnings of all applicants , members and nonmembers, se-
cured as a result of referrals out of Respondent 's hiring hall
could be utilized in establishing a computation reason-
ably designed to make whole alleged discriminatees.
Thus, earnings secured from employment within the ju-
risdiction of the District Council on referral from other
constituent locals, as well as earnings secured by regular
employees of contractors, who do not rely on the hiring
hall to secure employment , should be eliminated from
the formula.
8 Secs. 102.54(b) and (c) provide , in pertinent part-
(b) . . As to all matters within the knowledge of the respondent,
including but not limited to the various factors entering into the
computation of gross backpay , a general denial shall not suffice. As
to such matters , if the respondent disputes either the accuracy of the
figures in the specification or the premises on which they are based,
he shall specifically state the basis for his disagreement setting forth
in detail his position as to the applicable premises and furnishing ap-
propriate supporting figures; (c) . . If the respondent . . fails to
deny any allegation of the specification in the manner required by
subsection (b) of this section, and the failure so to deny is not ade-
quately explained , such allegation shall be deemed to be admitted to
be true ... .
9 Ricci explained:
In the normal case, after the Board finds an unfair labor practice
was committed , a check is made to ascertain how much the discimin-
atees lost in wages . The standard backpay specifications detail to the
penny precisely how much Smith "would have earned" had the
union not ignored his right to work . In this case it is not possible to
restructure the past-i .e., it is not possible to determine with any ra-
tional degree of certainty , how much each of the 22 (the Thorns ex-
cluded) individuals named in the complaints-to say nothing of those
in fact discriminated against but not yet identified!-would have
earned had they been sent to work in proper rotation The inquiry in
each of maybe a thousand instances would become so ramified and
speculative that in the wasted morass of time and energy the miscon-
duct would simply remain unremedied Counsel for the locals cor-
rectly said at the hearing . "Neither of us are that young to do that."
Iron Workers Local 373, 232 NLRB 504 at 518 (1977).
I granted the General Counsel 's motion to strike this
alternate formula for a number of reasons, appearing at
Tr. 61-63. Administrative Law Judge Ricci concluded
that the particular backpay remedy he recommended was
dictated in the case . Iron Workers Local 373, 232 NLRB
504, 518. In that remedy he called for an order directing
the two respondents to pay, to each of the named discri-
minatees, an amount of money to bring their 1975 and
first half of 1976 earnings (to the close of the record
before him) out of these halls, up to par with the average
earnings of all Local 373 and Local 45 members who
shaped out of these halls during the same period. Ricci
found as to this remedy that there was evidence data
from the records of the District Council Pension and
Welfare Funds which show with exactness how much
money members of Local 373 earned at work covered by
the Iron Workers Council-Employer Association Con-
tract during the relevant period . In contrast to the result-
ing figures which Judge Ricci then calculated, the 14
ironworkers who suffered illegal discrimination at the
hands of Local 373 earned substantially less on average.
Even Local 373 apprentices and trainees , earned greatly
in excess of the discriminatees , all skilled craftsmen.
Judge Ricci then concluded that what Respondents will
have to pay to restore the status quo (not literally appli-
cable) must be no more than an approximation of the
actual loss of earnings , and this procedure of estimating
such losses of earnings is supported by precedent. In sup-
port of the use of such data in seeking to approximate
the losses suffered by the discriminatees Judge Ricci
cited cases and quoted from two of them . NLRB v.
Brown & Root, Inc., 311 F.2d 447, 454 (8th Cir. 1963),
and United Aircraft Corp., 204 NLRB 1068 (1973). This
precedent makes clear that the burden is on the respond-
ent to establish facts which would mitigate its liability
and that in determining an appropriate measure of dam-
ages and making use of available means to calculate the
damages according to that measure or formula, even
though uncertainties or ambiguities appear, it is the
wrongdoer responsible for the existence of any uncer-
tainty, rather than the innocent backpay claimant, against
whom such uncertainty should be resolved . In adopting
Ricci's remedy in this respect ,' ° the Board referred to
the administrative law judge having applied a formula to
each Respondent Local whereby the overall earnings of
all applicants would be divided by the number of appli-
cants who worked out of the hiring hall . Implicit in this
conclusion is approval by the Board of the use of the
readily available District Council records to calculate the
money earned by those who used the referral system.
Those records list monies earned from employment with
any contractor under collective-bargaining agreement
with a constituent local of the Council, including, but
not limited to, the two Respondent Locals 373 and 45, in
the instant proceeding.
Neither Judge Ricci nor the Board made reference to
any other available source for determining earnings of
10 The Board rejected Judge Ricci 's separate recommendation that a
neutral monitor be appointed to oversee the daily operations and record-
ing procedures at both hiring halls as unnecessary to effectuate the pur-
poses of the Act.
662 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
those who utilized the hiring system . As the colloquy
with counsel on the record when this particular motion
was argued made plain , the General Counsel had no real-
istic way, without an enormous amount of time which
might even then not provide much greater pinpointing of
earnings solely from Local 373 referred jobs, of segregat-
ing out such earnings , the sources of which were also
available to Respondent . Furthermore , earnings of regu-
lar, full time members and employees who did not sign
the referral register in a calendar year were not included
in the gross backpay computations for that period. (Tr.
55-61.)
As the General Counsel complied with the remedial
directive articulated by the judge and approved by the
Board , and, further, as Respondent failed to comply with
the requirements of Section 102.54 that in advancing an
alternative formula , it spell out its elements and apply
them to each claimant in detail , " 1 I granted motion to
strike all of paragraph 2 and , later, those portion of para-
graphs 3 and 4 of the answer disputing the General
Counsel 's use of District Council earnings records to
arrive at gross backpay.
Respondent in paragraph 7 of its answer also disputed
the manner in which the moneys derived from District
Council records of earnings were prorated over the four
quarters of a calendar year and then subtracted from
gross backpay to arrive at adjusted gross backpay. Re-
spondent argued that if, as in the case , e.g., of claimant
Leon Adler, the General Counsel 's omission of any claim
for him for the second quarter of 1975 was due to the
fact that Adler had no earnings in the second quarter,
then the District Council earnings for 1975 should have
been prorated to offset gross backpay over the three
other quarters only for which claim was being made
rather than the four quarters, including the one for
which no claim is asserted , as appears in Exhibit E-001
to the backpay specification (G.C. Exh. 1).
In an explanation offered on the record , Board Agent
Burke stated that the omission of any claim for a back-
pay claimant for any particular quarter merely signifies
that there was no passover or discrimination occurring in
that quarter . But the absence of a passover could have
been due to any one of a number of reasons , including
regular District Council or other employment exceeding
the average earnings figure making up gross backpay for
the quarter, unavailability for work in the quarter, or re-
ferrals during the quarter which were not discriminatory.
Burke could not testify in which quarters Adler's 1975
monies appearing on District Council records were
earned . In any event , Respondent, which had the burden
of doing so under Section 102 . 54 of the Board 's Rules,
failed to make the required computations in accordance
with its alternate adjusted gross backpay formulation for
each and every claimant for whom backpay was sought
for only certain and not all the quarters in a particular
calendar year . Neither did Respondent analyze its own
referral registers to determine for purposes of pleading in
its answer , whether or not a particular claimant regis-
tered or was referred out in a quarter in which no claim
11 See Sec 102.54 of the Board's Rules and Regulations and fn 8,
supra.
was made . If it had done so it would have eliminated any
reasons for no claim having been made related to earn-
ings in that quarter and thereby strengthened its asserted
defense that District Council earnings should have been
apportioned as an offset to gross backpay only in the
quarters for which a claim was made . For these reasons,
among others , 12 Respondent 's answer, as a general de-
fense in this regard , was stricken . (Tr. 201.) Later, during
the presentation of its defense during the hearing, Re-
spondent did not adduce evidence as to earnings in the
quarters in which claims were not sought for any signifi-
cant number of the claimants . The evidence which was
adduced will be noted in a later section of this decision.
In paragraph 9 of its answer Respondent denied the
accuracy of the interim earnings figures contained in the
individual backpay claims appearing in Attachments E-1
thru E-632 of the backpay specification . Respondent.
noted , accurately , that very few of the claims showed
any interim earnings figures (apart from District Council
earnings which were used to adjust gross backpay). This,
in Respondent 's view , showed a failure to make any at-
tempt to secure interim earnings information in the
lengthy period from court of appeals ' affirmance of the
underlying Board Orders to issuance of the specification.
Respondent argued , in a case of this magnitude an intol-
erable burden was thus placed on it to locate claimants
and secure their earnings information . Because of the
transient nature of the trade , Respondent noted it was
particularly difficult to arrange to interview them. Fur-
thermore, the costs to subpoena witnesses and pay their
mileage fees to and from the hearing would approach
$40,000 . Respondent then made demand that the alleged
discriminatees be produced at hearing so that it could
cross-examine them regarding interim earnings and avail-
ability for work . If they were not produced , Respondent
would move to dismiss their respective claims.
In argument in support of its position , Respondent
counsel cited NLRB v. Mastro Plastics Corp., 136 NLRB
1342 (1962), enfd. in part 354 F.2d 170 (2d Cir. 1965),
cert. denied 384 U.S. 975 (1966). In Mastro Plastics, the
court concluded that the General Counsel had the
burden of producing testimony by each available discri-
minatee that a willful loss of earnings was not incurred,
although the burden of persuasion as to willful loss
would remain on the employer (respondent). The Mastro
Plastics court noted the implications contrary to its deci-
sion on this issue in the leading case of Brown & Root,
Inc., 311 F.2d 447 (8th Cir. 1963), enfg. 132 NLRB 486
(1961), which the court there affirmed in broad language
the Board 's position that the General Counsel performs
only an "advisory and cooperative" function when he
produces the discriminatees to testify . However, the
12 Respondent also failed to attach to its answer or account for its ab-
sence an Exh . F which it claimed would show examples of the Board's
alleged erroneous approach in prorating District Council earnings over
all quarters in a calendar year whether individual claimants had claims
for particular quarters or not . The absent Exh F , according to Respond-
ent, would have shown for certain claimants, that District Council earn-
ings offsetting backpay were apportioned improperly to quarters in
which they did not sign the registers and thus improperly reduced the
offset which should have been applicable only to quarters for which
claims were asserted
IRON WORKERS LOCAL 373 (BUILDING CONTRACTORS) 663
Mastro Plastics court went on to note that in Brown &
Root, all final awards to discriminatees who did not testi-
fy were placed in escrow until they appeared so as to
afford an opportunity to cross-examine on the willful loss
of earnings question . Accord: Mooney Aircraft, 366 F.2d
809 (5th Cir. 1966) (the Board is not required to call
each employee, but the employer should have opportuni-
ty to call and cross -examine them , and the Board should
give the employer any information it has as to their
whereabouts , holding money in escrow may also be ap-
propriate). Florence Printing Co., 376 F.2d 216 (4th Cir.
1967), cert. denied 389 U.S. 840 (1967) (respondent
"should have full discovery of information in the posses-
sion of the General Counsel indicating any interim earn-
ings").
Recently, in Starlite Cutting, 280 NLRB 1071 ( 1986),
the Board , in a 3 -to-1 decision , with Member Dennis dis-
senting in part, held that the period during which the net
backpay shall be paid to the Regional Director to be
held in escrow pending the location and examination of
an unavailable discriminatee , shall not exceed 1 year
from the date of the Board 's supplemental decision and
order . 13 Monies then held would be returned to the re-
spondent if the discriminatee had not come forward.
In support of its motion to strike those portions of
paragraph 9 of the answer in which Respondent stated
its intention to move to dismiss claims of discriminatees
who do not appear at the hearing , the General Counsel
noted , without contradiction , that all interim earnings in-
formation which the Region had received and was still
in the process of receiving had been, and was continu-
ously being, made available to Respondent for its review.
Aside from this information , which also included the last
known addresses of the claimants , Respondent had full
access to their whereabouts through the District Council
Funds records . The General Counsel noted it was also
possible for Respondent to seek contact with the claim-
ants at a far lower cost through the mails to obtain earn-
ings information on the basis of which stipulations could
have been sought with the General Counsel to modify
those claims affected . Indeed , Respondent had made con-
tact with at least 74 claimants from whom it had pro-
cured affidavits in which they had expressed the desire
to be excluded from participation in the proceeding-a
matter raised by Respondent as an affirmative defense to
be discussed , infra . The General Counsel also confirmed
that the Region's routine procedure , in a case of this
nature, involving a large class of discriminatees, would
be to conduct personal interviews with each individual
claimant regarding interim earnings prior to the disburse-
ment of any funds.
In correspondence with the discriminatees each of
them have been asked to provide the Region with copies
of Federal income tax returns for the relevant periods,
copies of supporting W-2 forms and an authorization to
obtain quarterly reports of earnings from the Social Se-
curity Administration . If a particular claimant failed or
13 That I year was later clarified by the Board to mean 1 year from
the date the money is deposited into escrow or the date the Board's sup-
plemental order becomes final , including its enforcement. Starlite Cutting,
284 NLRB 620 (1987).
refused to cooperate with the Region 's subsequent inves-
tigation by either not responding , not authorizing quar-
terly earnings records or making himself available for
interview , Compliance Officer Burke stated that the
monies received after judgment would be retained to
provide an opportunity for the claimant to change his
mind, failing which the monies would be returned to Re-
spondent . At a number of points in the record Compli-
ance Officer Burke also noted that based on information
which had then been received from various claimants
since issuance of the specification , he was marking up his
copy of the specification to show changes it was antici-
pated the General Counsel would make and offer in an
amended specification reflecting them . (See, e.g., Tr.
201.) However , at a later point in the record Burke re-
ported that there had been a Regional Director determi-
nation that no amended specification changing gross
backpay would be offered . (Tr. 1232.) 14 Nevertheless, it
is apparent that the Region 's procedure of requiring co-
operation in obtaining earnings and other data through
documentation where available and interview of the
claimants before there would be any disbursement of
backpay, is consistent with both the Board and court ap-
proved procedure of placing awards in escrow pending
claimant appearance . See Brown & Root, Inc., supra.
However, when questioned as to the role Respondent
might play in this process, the General Counsel was not
then prepared to respond or take a position . (Tr. 215.)
Yet, both the Board and the court in Brown & Root, Inc.,
approved a procedure granting Respondent a reasonable
opportunity to examine , albeit informally , those claimants
whom the General Counsel had failed to call to testify to
discover evidence as to their interim earnings before the
awarded backpay would be disbursed to them. (See, e.g.,
132 NLRB at 497.) The court viewed this as giving Re-
spondent another opportunity to examine such nontesti-
fying claimants as might be located within a 12-month
period from the date of rendition of the decision for the
purpose of determining whether respondents were in fact
entitled to larger credits than had been disclosed by the
Board 's own investigation . (311 F.2d at 455.) Accord:
Rice Lake Creamery Co., 365 F.2d 888 (D.C. Cir. 1966).
The General Counsel also noted the enormity of the
undertaking of preparing a specification of this scope and
size and the time constraints placed on its issuance by the
court of appeals as limiting severely the earnings which
could have been incorporated at the time of its issuance.
After hearing extended argument, and in light of the
factors noted above, I denied the motion to strike that
portion of paragraph 9 of Respondent 's answer in which
14 Certain testimony by Burke provides one possible explanation. The
District Council earnings records are not completely accurate. If District
Council earnings for a claimant were either increased or decreased as a
consequence of documents later received and/or a personal interview,
the change for each individual claimant would entail a recalculation of
the average earnings figure comprising gross backpay in a particular year
and per quarter in that year since gross backpay is based on the average
earnings formula previously described . Making such a change would
affect the gross and adjusted gross backpay of every claimant , a process
much too complicated and unwieldy to undergo on each occasion during
the course of hearing information is received warranting changes in Dis-
trict Council earnings for particular claimants (See, e.g., Tr. 1009.)
664 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
it denied the accuracy of the interim earnings figures, or
more precisely , the absence of such figures , from the
specification . However, on the basis of the Board's own
position , as reflected in Brown & Root, supra, and later
cases, such as Steve Aloi Ford, 190 NLRB 661 (1971), in
which it specifically stated its disagreement with the
view of the Second Circuit in Mastro Plastics , supra, I
denied Respondent 's motion to dismiss the backpay
claims of any discriminatee whom the General Counsel
failed to produce as witnesses . (Tr. 219-224.) Consistent
with this ruling , I later also struck on motion of the Gen-
eral Counsel a 10th affirmative defense in which Re-
spondent sought to reserve the right to seek dismissal
against any alleged discriminatee not appearing for cross-
examination at the backpay hearing.
This motion was made and ruled on prior to the call
of any witnesses by either party. (Compliance Officer
Burke's comments were solicited and offered by him as a
co-representative of the General Counsel from the coun-
sel table prior to his later appearance as witness. He af-
firmed the substance of these view during the course of
his later testimony .) The General Counsel did not call a
single discriminatee in the presentation of its case. In
view of this fact alone I am convinced that the proce-
dure outlined in Brown & Root constitutes the fairest and
most equitable procedure to be utilized in seeking to de-
termine as accurately as possible the monies owed the
discriminatees . I will, accordingly , recommend the same
procedure be adopted here by the Board in the Region's
subsequent effort to investigate and fix the amounts due
the discriminatees . Respondent must be accorded the op-
portunity to participate in that investigation , leaving,
however, the final determination in each case to the Re-
gional Director.
In part of paragraph 10 of its answer Respondent
sought to offset any backpay award by the $2.50 per
week travel service dues required to be paid to the Inter-
national Union and collected by Respondent Local from
each nonlocal member referred out, as well as the $4 per
day t 5 Local 373 assessment imposed by the Respondent
on all ironworkers referred out of its hall . On the Gener-
al Counsel 's motion to dismiss these claimed offsets I
then reserved decision on striking the alleged travel serv-
ice dues offset but granted the motion with respect to the
daily working assessment which was received by the Re-
spondent Local on each occasion a discriminatory act
occurred of bypassing a qualified registered nonlocal
member with a later registered local member who was
sent out in place of a discriminatee . I further noted that
insofar as Respondent sought a credit for the $2 . 50 travel
service dues on any backpay award , it was Respondent's
obligation to show for the record during the hearing for
which discriminatees and for which weeks a discrimina-
tory passover occurred , the travel service payment was
due and owing and to make the requisite calculations. As
explained by Respondent , this sum is paid the first time
when a nonlocal member registrant is referred out to a
job, and is paid each week thereafter while the registrant
is employed . Thus, for a registrant discriminatorily
15 Respondent 's oral motion to amend its assertion of a $5-a-day assess-
ment was granted.
passed over, early in a particular week but referred out
later in the same week , his initial travel service fee
would have already been collected . In support of this af-
firmative defense, it was Respondent 's burden to show
when the fee was due in each such instance . Counsel was
specifically advised of this burden. (Tr. 236.) Respondent
having failed during the hearing and in its posttrial brief
to provide the necessary instances and calculation show-
ing the amounts due and owing on any award as offsets
to backpay, I am now prepared to dismiss this offset for
the reasons stated.
Turning to Respondent 's separately averred affirmative
defenses , its first such defense , claiming the expansion of
potential liability from 16 individuals to 632 is punitive in
nature and not in furtherance of the purposes underlying
the Act, was stricken inasmuch as the determination to
provide relief for the class of nonlocal member regis-
trants was approved by the Board and is thus binding on
me. Respondent 's second affirmative defense asserts that
Respondent has been prejudiced in being forced to
defend referrals made almost 10 years ago against those
who for the first time as similarly situated individuals
were identified by the Board through the issuance of the
instant specification . In arguing in its support, Respond-
ent counsel disclosed that Joseph McCloud, the Re-
spondent Local's then business agent , who had been
chiefly responsible for and in charge of the operation of
its hiring hall during the period covered by the underly-
ing proceedings, died in July 1984 , sometime prior to the
opening of hearing in this supplementary proceeding. As
explained by counsel , McCloud had been primarily re-
sponsible for making the referrals of jobs on a daily basis.
His then assistant , James Jensen, now ready to testify,
was not as intimately familiar with the hall's operation
and the delay in identifying the claimants thus seriously
prejudiced Respondent 's defense . This defense was also
stricken . The explanation for the extensive earlier period
of this litigation has been previously detailed . Suffice it
to say that the delay, partially the result of the Union's
appeals, multiple motions, and failure to cooperative,
cannot serve to defeat the legitimate claims of the discri-
minatees here, particularly when Respondent 's own con-
duct in operating the referral system in a systematically
discriminatory fashion over a period of years warrants
both as systematic and comprehensive a remedy as possi-
ble on behalf of all who suffered its adverse effects and
the most rigorous attempt to identify these victims in a
reasonable manner . See Fibreboard Paper Products Corp.
v. NLRB, 379 U.S. 203, 216 (1964). The Board is vested
with broad discretion in selecting a backpay formula
(and applying that formula to all who have suffered from
the discriminatory results of unfair labor practices) ap-
propriate to the circumstances of a particular case.
Where, as here, a broad pattern of discrimination has
been found to exist, the Board may adopt a formula
which reaches discriminatees not yet identified who
where affected by the hiring hall practices. Where
awards may be only close approximations, as here, the
Board may utilize formulas reasonably designed to
produce such approximations . NLRB v. Carpenters Local
180, 433 F.2d 934 (9th Cir. 1970).
IRON WORKERS LOCAL 373 (BUILDING CONTRACTORS) 665
Nonetheless , Respondent counsel was informed he
could renew this claim of prejudice , supported by appro-
priate case citations , in his brief and a further review
would be made of the matter.
A discussion ensued relating to the third affirmative
defense . In this defense Respondent asserted that due
process requires a hearing as to whether the alleged dis-
criminatees identified for the first time in the specifica-
tion were , in fact, discriminated against by Respondent
in the operation of its hiring hall. I had earlier ruled that
Respondent could present evidence disputing any allega-
tion of discrimination arising from failure to refer any of
the similarly situated registrants during the period cov-
ered by the underlying proceedings , in 1975, 1976, and
early 1977, insofar as such finding was based upon use by
Respondent of the "requested" referral designation. This
ruling was consistent with the Board 's ruling that Re-
spondent may attempt affirmatively to defend any "re-
quested" referral designation by production and verifica-
tion of contractor requisition registers and written confir-
mation of contractor requests for registrants required in
the Consent Decree "or other evidence of sufficient pro-
bity." Iron Workers Local 373, 232 NLRB at 506 fn. 8.16
I also had ruled that Respondent could seek to defend
against the General Counsel's claim of continued dis-
crimination as to all alleged discriminatees for all periods
subsequent to the close of the last hearing in February
1977. In the context of this discussion , I made clear that
my earlier rulings just described circumscribed the factu-
al defenses Respondent could assert to the backpay
claims alleged in the specification.
In its fourth separate defense, Respondent attached an
exhibit in which it listed 74 alleged discriminatees who
had executed affidavits indicating that they had no desire
to participate in the instant backpay proceeding. A
sample affidavit expressing this position was also an-
nexed . In it, Michael Agresto, included by the General
Counsel in the specification as a backpay claimant, as-
serted that he had knowingly and willingly declined to
participate in the backpay proceeding of which he has
been made aware and that he would not cooperate in the
proceeding nor accept any recovery if a judgment was
secured on his behalf. Respondent then sought dismissal
of the claims asserted on behalf of these 74 individuals
and all others who either subsequently executed such af-
fidavits or, alternatively , refused to cooperate in the
Board proceedings . Against the General Counsel's
motion to dismiss this defense, Respondent counsel
sought to distinguish this situation from that involving a
charging party who during a backpay proceeding sought
16 In this footnote the Board made clear that "the evidence of substan-
tial falsification of excepted categories referral designations by Respond-
ents has already been discussed." The Board had earlier expressed gener-
al support of Judge Ricci's conclusions that massive discrimination was
grounded in the use of deceitful designations In my view this effectively
foreclosed Respondents attack on the identification as dlscrimmatees of
any nonlocal members of the class of similarly situated individuals whose
inclusion in the class , at least for the relevant period covered by the now
consolidated underlying proceedings , was based on either their having
been passed over in favor of a member without any explanation in the
remarks column or with an explanation , other than one attributable to an
employer request , which the Board had already determined was sham in
nature
to withdraw in order to make his own deal with the em-
ployer. Respondent acknowledged that in the latter situa-
tion it would be improper to permit withdrawal. Here,
the best interest of the affiants lay in their decision to
permit the Respondent Local to survive as opposed to it
having a probable multimillion dollar backpay judgment
against it . In these circumstances , the Board should re-
spect the decision of the claimants who are the people in
the best position to make the judgment as to what is in
their best interest.
I ruled that I would strike that defense and for the fol-
lowing reasons . This proceeding , unlike the normal, pri-
vate civil class action , seeks to vindicate public rights.
The monies sought from Respondent are only part, but a
significant part, of an overall remedy which is in further-
ance of a public statute whose purpose is to enforce and
administer a national labor policy, designed in this in-
stance to discourage and irradicate union conduct which
interferes with , coerces or discriminates against employ-
ees in the exercise of the basic rights set forth in Section
7 of the Act. Under such circumstances and particularly
where the violation appears to have taken place on a
massive scale , individual employee choice , even if un-
tainted , should not defeat achievement of this laudable
objective . Also, ruling on the basis of the affidavit with-
out hearing the witness in the crucible of examination
and cross-examination , gives excessive weight to a writ-
ing which might not represent, on further reflection, the
true sentiments of the discriminatee . Of greater moment
is the fact that the affidavits represent the result of a
meeting between representatives of the Respondent
Local and alleged discriminatees in which the discrimina-
tees appear to have waived their rights to any relief. The
result is akin to a private settlement between Respondent
and claimants without the intervention of participation of
the General Counsel which the Board has refused to
honor in such cases as Ideal Donut Shop, 148 NLRB 236
(1964), enfd. 347 F.2d 498 (7th Cir. 1965). The Board
there expressed the view , equally applicable here, that
the respondent , by means of such a private arrangement,
cannot negotiate away the public remedies of backpay
and reinstatement . "[R]einstatment and backpay are rem-
edies which the Board provides in the public interest to
enforce a public right . No private right to such relief at-
taches to an employee which he can bargain away or
compromise." Id. at 237. "The public interest lies not
only in resolving the legal issues raised by an unfair
labor practice complaint , but in remedying the illegal
practices , thereby discouraging their recurrence." Oil
Workers v. NLRB, 806 F.2d 269, 273 fn. 29 (D.C. Cir.
1986). "[T]there is an overruling public interest in the ef-
fectuation of statutory rights which cannot be cutoff or
circumvented at the whim of individual discriminatees."
Clear Haven Nursing Home, 236 NLRB 853, 855 ( 1978).
Under all the circumstances of this case , the risks of
overreaching or coercion in the inducement leading to
the sworn waiver of a remedy by these discriminatees
against the very party who caused their losses and upon
whom they must continue to rely for future job referrals
are too great to permit approval of their removal from
the case as recipients of a public remedy on the basis of
666 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the proffered affidavits. Cf. Oil Workers, supra. In so
ruling, I made clear that these affiants were still free to
choose, at the appropriate time, when and if liability had
been determined and a judgment enforced , to refrain
from receiving the backpay award due them, just as any
discriminatee may waive reinstatement or even backpay
when an employer ultimately offers the same in compli-
ance with a Board order.
As to Respondent 's request to call the 74 affiants as
witnesses to examine them as to their wish to no longer
participate in the proceedings as backpay claimants, I ini-
tially reserved decision . The following day, I denied Re-
spondent 's request and ruled that Respondent could not
examine these claimants as to whether they wished to
participate . The class of discriminatees had been fixed by
the administrative law judge, Board , and the court of ap-
peals . Respondent may call members of the class as to
whether they had interim earnings , willfully incurred
loss of earnings or were otherwise not entitled to receive
backpay for the period of discrimination , or even to ex-
plain any passovers which might show that the claimant
has been improperly included in the class of similarly sit-
uated individuals . However, the potential and perhaps
even actual coercive effect on these individuals arising
from subjecting them to an examination as to their feel-
ings as to participation in a class of claimants by the
party against whom the claims runs and who is responsi-
ble for bestowing or withholding their future employ-
ment opportunities , would be improper . Accordingly, the
request was denied . Laborers Local 304, 265 NLRB 602,
611 (1982), and Electrical Workers Local 401, 251 NLRB
321, 327 (1980); cf. Johnnie's Poultry Co., 146 NLRB 770
(1964), enf. denied 334 F.2d 617 (8th Cir. 1965), and Oil
Workers v. NLRB, supra.
A fifth separate defense seeking to dismiss the names
of 82 alleged discriminatees appearing in Appendix E on
whose behalf no backpay was sought because their Dis-
trict Council or interim earnings exceeded the average
annual gross backpay for each year in which they regis-
tered for referral and were passed over, was denied.
These individuals nonetheless remain discriminatees
whose inclusion in the record of the proceeding is neces-
sary for their future protection and in order to achieve
full compliance with the remedies mandated by the
Board Order and court decree.
In a sixth defense, Respondent asserts that many claim-
ants earned more than the average wage (gross backpay)
during at least one of the years for which backpay is
sought for other claimants . A list of 300 discriminatees in
this category is annexed . Respondent then argues that
this shows that the lack of earnings (presumably below
the average figure representing gross backpay ) for these
claimants in other years is due to neutral factors behind
Respondent 's control , such as relative skill, ability to per-
form a variety of work classifications , and the availabil-
ity of the ironwoker for work referral . While not strick-
en as a defense, Respondent was made aware that it had
the burden of proving this defense in the presentation of
its case. I am not prepared to draw the inference that
nondiscriminatory factors were responsible for lesser
earnings by these 300 or any other claimants in certain of
the years encompassed by the Specification when the
record evidence of their passovers on numerous occa-
sions supports the opposite inference . No evidence was
later presented by Respondent supporting the inference
he seeks . No evidence was presented by Respondent
grounding any denial of referral of even a single claimant
on any occasion on lack of skill or inability to perform
the work for which the referral was denied . No contrac-
tor has been claimed or shown to have rejected, or re-
moved , any claimant because of work deficiencies.
Indeed , as later testified to by Burke in explanation of
the analysis he made of the Respondent 's referral regis-
ters, the determinations of discrimination against a par-
ticular nonlocal member ironworkers was made solely on
the basis of his passover by local member ironworkers
for referral to a job in the very classifications or phases
of work in which the nonmember listed himself as quali-
fied and desirous of performing . Thus, the breadth or
depth of ones skills or ability to peform all or a great va-
riety of the work classifications of the ironworker trade
is irrelevant to the issue of whether a passover-a dis-
criminatory act-took place . Once a discriminatory pass-
over occurred , under the Board's formula as reasonably
applied by the General Counsel in the specification, enti-
tlement to backpay for a particular quarter has been es-
tablished and that entitlement continues so long as the
discriminatees continues to be bypassed in subsequent
quarters following each signing of the register.
In a seventh defense Respondent annexed an Exhibit K
to its answer in which it analyzed 22 discriminatees
whose claims each exceeds $30 ,000, with a total claim of
approximately $800,000. As to these claimants Respond-
ent argues their individual records of multiple absences
when their names were finally called for referral follow-
ing their earlier having been discriminatorily passed over
for assignment justifies their elimination as backpay re-
cipients . By virtue of their absences resulting in little or
no District Council earnings for the quarters and years in
question they demonstrated their unavailability for work
and a willful] withdrawal from the labor market for
which they should be penalized and their backpay for-
feited . For the same reason , Respondent argues in its
ninth defense that absence by a discriminatee when
called for work should preclude any backpay award for
that particular quarter.
In the discussion on General Counsel 's motion to dis-
miss Respondent's seventh defense, Respondent counsel
stated he would rely on the Union 's own referral regis-
ters to establish its burden of showing unavailability for
work and/or willfu ll absence from the labor market.
When I informed counsel that the evidence Respondent
relied on should ultimately result in a quarter by quarter
presentation of those quarters in which backpay should
be denied because of unavailability , counsel represented
that he would submit such an analysis in Respondent's
posttrial brief. On the basis of Respondent having at-
tached Exhibit K naming those 22 claimants whose pat-
terns of absenteeism allegedly warrant their disqualifica-
tion and on the condition that Respondent ultimately
break down this claim by quarter for these 22, the Gen-
eral Counsel 's motion to dismiss the bulk of this defense
was denied . With respect to the ninth defense, on the
IRON WORKERS LOCAL 373 (BUILDING CONTRACTORS) 667
condition that Respondent provide the General Counsel
by 1 p.m . on the following day with the names of all
these claimants whom Respondent asserted should be
disqualified in a particular quarter for being absent when
ultimately called for referral to work , I denied at the
time the General Counsel's motion to deny that affirma-
tive defense . The Respondent did not meet this condi-
tion . The brief ultimately filed also did not contain the
breakdown promised . However, attached to Point Five
of its brief, is a schedule B containing an analysis of the
registration referral activity of 206 individuals whom Re-
spondent claims should be disqualified from any entitle-
ment to backpay because of their record of infrequent
registrations and chronic absenteeism . This argument will
be addressed later in this decision . An eighth separate de-
fense, contending that the Board cannot extend the back-
pay period beyond that which was the subject of the un-
derlying unfair labor practice proceeding or, alternative-
ly, beyond the date of the court of appeals order of en-
forcement, was also raised and pressed in the posttrial
brief and will be similarly considered.
An eleventh defense , asserting that no interest is
chargeable to Respondent because of a 6-year delay by
the Board even in identifying "similarly situated" indi-
viduals, was to briefed by the parties as a legal issue and
will likewise be determined in due course.
III. THE PRESENTATION OF THE GENERAL
COUNSEL'S CASE
Compliance Officer Burke testified extensively as to
the methods used in the preparation of the backpay spec-
ification . Those methods culminated in the tables and al-
legations and responses of the Union set forth in earlier
sections of this decision. To the extent those tables and
allegations and responses thereto have not resulted in
factual or legal disputes which have survived my rulings
granting , in part, the General Counsel's multiple oral mo-
tions to strike major portions of the answer , I will not
comment on that testimony.
Burke did note that with respect to the registration
procedure for an individual seeking referral , once an in-
dividual had signed the register as able and willing to be
referred in certain job classifications , he could not sign
the register again until any one of the following events
transpired ; either ( 1) the individual was called and re-
ferred to a job ; (2) the individual was called , failed to re-
spond , and was marked absent;' 7 or (3) the individual
17 This rule was subject to an exception noted and commented on later
by Union Business Agent Jensen On certain occasions , after the normal
1-1/2 to 2-hour early morning period for receiving contractor requests
and making referrals had passed and most registrants had left the hall,
and on inclement days when few registrants came to the hall because
very few contractor requests would be made for ironworkers to perform
the normal out doors work, a "late call ," or, in the latter situation, any
call by a contractor for an ironworker, would be filled from among those
few registrants present and qualified in the hall by visual inspection, and
in their order of signing, without removing the name of any earlier
signed registrant from the register who would have been otherwise
chosen for the referral because of his qualifications and placement but
was then not present to answer the call. The procedure was covered by
the marking "NOMA" (no one marked absent.)
was called and refused a referral to a job in his listed
classifications.' 8 If any one of these three events oc-
curred, for example the job to which a registrant was re-
ferred ended, the individual returned from an absence, or
sought work again , in order to obtain another referral
through the hall the individual was compelled to re-sign
the register as a predicate to another job call and refer-
ral. Thus it was that the absence when called for referral
of a registrant alleged as a discriminatee in the specifica-
tion would remove him from the books and require him
to re-sign in order to be eligible for a new referral. How-
ever, since in every case that absence took place after
one or more bypasses of such a registrant , he had already
achieved the status of a discriminatee and was therefore
eligible for the average gross backpay figure for the
quarter in which the passover occurred under the
Board 's backpay formula as applied and computed by the
General Counsel.
Burke also explained that the source of annual earnings
figures for discriminatees on the records of the District
Council Fringe Benefit Funds were not broken down by
quarter and therefore were prorated over the entire year
on quarterly basis, including quarters for which claims
were and were not asserted . As earlier noted, these earn-
ings were used as an adjustment to gross backpay prior
to any further reduction resulting from interim earning
derived from any source or sources other than employ-
ment by a contractor party to the collective-bargaining
agreement with a constituent local of the District Coun-
cil.
The referral records maintained by the Respondent
Union revealed that certain of the named discriminatees,
among other discriminatees , e.g., Leon Adler, during the
period of time covered by the specification but subse-
quent to the close of hearing , became members of Local
373. Once they became members, their inclusion as dis-
criminatees entitled to backpay awards ceased , since the
violation as found below did not extend to members
being passed over by other members.
In response to questioning, Burke made clear that
backpay was claimed for an entire quarter so long as a
passover occurred during that quarter . This was so be-
cause the formula was based on the diminution of earn-
ings theory , that the individuals earnings were dimin-
ished by the refusal of Respondent to refer them proper-
ly, or in proper order. Even though entitled to gross
backpay, to the extent the discriminatees had District
Council earnings , an adjustment would be made and
these earnings would be subtracted from the average
gross backpay to arrive at adjusted gross backpay.
It became apparent during the course of Burke's testi-
mony that in fixing the backpay period in paragraph 1 of
the specification , the General Counsel had not deter-
mined whether , for the period of time not covered by
the underlying proceedings , from 16 February 1977, the
last day of hearing, to 31 December 1979, the denial of
referral (passover) in a calendar quarter which triggered
continued entitlement to backpay (and which continued
1s This fact pattern arose on occasion as will be seen in the analysis to
follow regarding at least one of the claimants who testified during the
presentation of Respondent 's case.
668 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
so long as the discriminatee was passed over in any sub-
sequent quarter or quarters) was one for which the Re-
spondent Union had provided no explanation , or was the
result of a statistical analysis showing a continued signifi-
cant disparity between nonmembers and local members
in receiving preference in assignment based on excepted
category designations under the consent decree. Since
the Board 's legal conclusion of sham use of such designa-
tions clearly applied to the period of time from 24 Janu-
ary 1975 to 16 February 1977 covered in the underlying
proceedings , the General Counsel's determination that a
single passover triggered backpay was not subject to
question for that period of time . The nature of Respond-
ent's conduct since the close of hearing was, however,
open to dispute.
When I raised some concern on the record about this
matter, the General Counsel took the position that if Re-
spondent wished to raise an issue about the viability of
the Government 's claim to continued liability of Local
373 and continued entitlement to backpay awards of the
nonmembers who were passed over, Respondent had the
burden of showing that continued out of order referrals
favoring members over nonmembers were not in further-
ance of a fraudulent scheme to use excepted designations,
but were legitimately based . The General Counsel
argued that the finding of discrimination creates a pre-
sumption of continued violation which may be rebutted
by Respondent but which places no burden on the Gen-
eral Counsel to either allege or prove.
Respondent counsel for his part viewed paragraph 1 of
the specification , insofar as it failed to allege that the
passover in a quarter was either made without any expla-
nation at all or was made in furtherance of a continued
scheme to favor members over nonmembers in out of
order referrals made in reliance on excepted consent
decree designations, as fatally defective . Respondent
counsel thereupon renewed a motion he had previously
made regarding the claim for backpay for the years 1977,
1978, and 1979. It was Respondent 's contention that the
Board (the General Counsel) has the burden of defining
the backpay period based upon an appropriate premise.
That premise would be an inference based upon a statisti-
cal imbalance from which a conclusion that discrimina-
tion had occurred can be arrived at. There was no such
analysis engaged in by the Region in issuing the specifi-
cation including and continuing up through 1979. Since
Local 373 is permitted under the consent decree and col-
lective-bargaining agreement to refer individuals out of
order under certain designated exceptions , absent a claim
that the Local continued to prefer its own members
without any explanation or continued a pattern or prac-
tice of discriminating against nonlocal member by using
the designations as a pretext to shield its true intent, the
allegation defining the backpay period by means only of
passovers is inadequate and should be dismissed.
I reserved decision on Respondent 's motion pending
receipt and consideration of briefs to be filed by the par-
ties by 21 January 1985, and the hearing which could not
continue then in any event because of the General Coun-
sel's unavailability , was adjourned pending my ruling on
the motion . Subsequently, by letter dated 16 January
1985, counsel for the General Counsel informed me and
union counsel that since the last hearing, the Region had
decided to compile and introduce into evidence as part
of its case , statistics tabulating passovers on referrals in-
cluding breaking down such referrals by types of explan-
atory remark , if any . These statistics would also be ana-
lyzed by Burke in terms of the use of designations for
local members as compared to nonlocal members. The
Region was undertaking this study in order to expedite
the proceeding although the General Counsel maintained
it was not part of its burden in the proceeding.
As a consequence of this letter, I issued an order, in
which I first acknowledged the General Counsel's intent
to adduce further evidence analyzing alleged instances of
discrimination related to the allegation in paragraph 1 of
the specification defining the backpay period for each
discriminatee without conceding that it has a legal
burden to do so, and then noting my agreement to re-
serve ruling on Respondent 's motion and incorporate
ruling thereon in my decision . I then revoked my prior
ruling to receive briefs and ordered the hearing recon-
vened on a set date in February 1985, to continue to
completion (see J . Exhs . 1 and 2).
As the continued hearing resumed on 11 February
1985, Respondent counsel renewed motion to dismiss the
backpay specification for the years 1977 through 1979. I
continued to reserve ruling but indicated that the Gener-
al Counsel's undertaking to adduce the additional evi-
dence relating to whether a statistical imbalance contin-
ued in the years 1977 through 1979 justifying the infer-
ence that discrimination in favoring members over non-
members on referral continued over the same period of
time appeared to cure a possible defect in pleading and
would provide a fuller record before Respondent would
be compelled to respond . Furthermore, Respondent had
not raised this defense to paragraph 1 in its answer and
so was not in the strongest position to object to its defi-
ciency only in the middle of trial . Accordingly, I noted I
was disposed to deny the motion but would refrain from
doing so until receipt of posthearing briefs . Upon review
of Respondent 's brief I reaffirm my earlier stated view
and now deny Respondent 's motion to dismiss the speci-
fication insofar as it seeks awards for the period 1977
through 1979.
On the resumption of hearing Burke now identified
two sets of documents which he had prepared based on a
close study of the Respondent 's referral registers for the
years 1977, 1978, and 1979. As Burke explained the
matter, General Counsel 's Exhibits 34 through 663 con-
tained the Region 's analysis of the instances in which the
600-odd discriminatees had been passed over by Local
373 members, in each quarter from 1975 through 1979,
including many instances in which a discriminatee after
signing had been passed over multiple times by different
members before being called for referral . That analysis
had formed the basis for the inclusion of particular non-
member registrants among the more than 600 hundred al-
leged discriminatees on whose behalf backpay and fund
contribution awards were claimed in Appendices E-1 to
E-627 of the backpay specification . In contrast, new
General Counsel's Exhibits 664 and 665 broken -down by
absolute numbers and then by percentages , summarized
IRON WORKERS LOCAL 373 (BUILDING CONTRACTORS)
both by quarter and by year, the instances of passing
over in which an individual was preferred on referral
over an earlier signing individual and the reason given
by the local business agent on the referral books for that
preference, whether one of the excepted category of des-
ignations under the consent decree . If no explanation ap-
peared which was permitted by the consent decree, then
the referral was deemed to have been one made without
explanation and was so counted . Thus, for example, a re-
ferral made after the hiring hall concluded its normal re-
ferrals in the 7 to 9 a.m. period , with the explanation in
the remarks column , "no one marked absent" fails to ex-
plain why a member may have been preferred even
though no one passed over lost his place in the referral
register . This reason was not authorized in the 1972 con-
sent decree and was thus considered as unexplained in
Burke's summaries and tabulations . Only registrations
which ended in a referral were tabulated . Registrations
by apprentices or referrals explained as "minority re-
quests" were also excluded because neither was found to
be relevant by the Board to its conclusion that the Union
had engaged in pretextual use of excepted designations in
furtherance of its discriminatory operation of the hiring
hall.
The results of this analysis demonstrated that a signifi-
cant disparity continued to exist in the degree to which
Local 373 member received favored treatment over non-
members in obtaining out of order referrals even though
in 2 of the 3 years, 1977 and 1978, nonmembers received
an average of 15 percent more total referrals than non-
members and in 1979 the total number of referrals were
shared equally, with members receiving only a 2 percent
advantage . Thus, in 1977, of 1644 out-of-order referrals
(out of a total of 3305 referrals), 1248 or 76 percent went
to members and 396 or 24 percent went to nonmembers.
Of the 76 percent which went to members, 1218 or 74
percent were characterized by a mark or excepted desig-
nation under the consent decree . Of the remaining 1661
referrals not made out of order, 1511 or 91 percent went
to nonmembers and only 9 percent went to members. Of
the 1511 going to nonmembers 80 percent had no mark.
Substantially similar percentage differences appear for
the two following years . In 1978, of 1566 out of order
referrals (out of a total of 3671 referrals), 1145 or 73 per-
cent went to members and 421 or 27 percent went to
nonmembers . Of the 73 percent which went to members,
1087 or 69 percent were characterized by a mark or ex-
cepted designation under the consent decree . Of the re-
maining 2105 referrals not made out of order, 1678 or 80
percent went to nonmembers and only 20 percent went
to members . Of the 2105 going to nonmembers 71 per-
cent had no mark . In 1979, of 712 out-of-order referrals
(out of a total of 3784 referrals), 549 or 77 percent went
to members and 163 or 23 percent went to nonmembers.
Of the 77 percent which went to members, 490 or 69
percent were characterized by a mark or excepted desig-
nation under the consent decree. Of the remaining 3072
referrals not made out of order, 1707 or 56 percent went
to nonmembers and 44 percent went to members. Of the
1707 going to nonmembers 47 percent had no mark.
While undergoing cross-examination , Burke explained
that the claim for backpay was prorated for the quarter
669
in which discrimination first occurred because, normally,
Respondent is only charged with backpay from the be-
ginning of the discriminatory conduct until its end. In
this case there was readily identifiable for each discrimin-
atee the beginning date of the discrimination . (In some
cases this date was a date up to 6 months prior to the
filing of the initial charge .) Since those dates were avail-
able there was no reason to charge Respondent with any
greater amount of time and every reason to avoid penal-
izing Respondent for time prior to the actual beginning
of discrimination.
When pressed to explain why a particular claimant,
George Brooks, who registered on 1 December 1975,
and was marked absent on 8 December 1975 when called
for referral to work, received credit for gross backpay
for the portion of the fourth quarter of 1975 from 3 to 31
December 1975, Burke explained that on 3 December
Brooks had been passed over by seven members of Local
373 and on 5 December by two members . There was no
way to determine from these records and from the back-
pay specification how much Brooks lost as a result of
these discriminatory acts since a proper job referral of
Brooks on 3 or 5 December could have resulted in a job
lasting 1 day, a week , 6 months, 9 months, or a year.
That is the reason that the General Counsel , in following
the ALJ and Board, used average earnings and broke the
earnings and claims down by calendar quarters.
Furthermore , no weight was given to the fact that
Brooks did not reregister for the calendar year 1976 and
next registered on 9 February 1977.19 Neither did the
General Counsel prorate the gross backpay figure for the
first quarter of 1977. The theory for not doing so in both
cases was that, as claimed by the Region , Local 373 has
continued to discriminate against nonmembers of the
Local on a systematic basic as part of an overall pattern.
Once Brooks was discriminated against in December
1975, there was no way to conclude whether he would
have continued to work through the beginning of 1977
had he been referred to a job without having been by-
passed then. It is conceivable that a contractor to whom
he had been properly referred would have liked his work
and kept him on permanently. But to reach that result in
Brooks' case or those of the more than 600 other discri-
minatees would have been to engage in a process so
highly speculative and offering so many possibilities that
it would have been impossible to calculate all the results
and would have resulted in an irrational result and an un-
supportable formula dominated by conjecture and guess
work. The result was that the Region made a determina-
tion that the formula would be used that if a discrimina-
tee were passed over in a calendar quarter he would be
entitled to a claim for gross backpay for the entire quar-
ter less any earnings he may have had; if he were passed
over in subsequent quarters he would receive a renewed
amount of gross backpay for each such quarter . And the
only quarter in which backpay was prorated was the
19 No claim is asserted for Brooks for 1976 Another claim for backpay
is made for Brooks for the first quarter of 1977. As explained by Burke,
after signing the register in 9 February 1977 he was passed over by ap-
proximately 50 Local 373 members before being marked absent when his
name was finally called for referral on 25 March 1977
670 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
identifiable start of discrimination against the individual
discriminatee.
Again , with respect to another claimant , Vincent
Combe registered on 22 September 1975, and was first
passed over (twice) on 29 September , was passed over
again on 1, 2, 3, and 6 October, and was marked absent
on 7 October when called . On his behalf the Region
claims 2 days in the third quarter when discrimination
began and all of the fourth quarter during which he had
no District Council earnings . Respondent counsel ques-
tioned why the claim for Combe in the fourth quarter
was for $3584, the full quarter 's backpay plus fringe ben-
efit payments , rather than at most the 6 days lost back-
pay between 1 and 6 October. Burke explained that
counsel was confusing the 6 days between Combe's first
passover in that quarter and the end of his registration
when he was marked absent, with the amount of money
that Combe may have lost. He was not discriminated
against for 6 days . The measure of discrimination applied
to Combe (as indeed to all the other discriminatees) was
not what he would have earned in the 6 days between
the first time he should have been called in the quarter
and the time he was actually called . Rather, the measure
of discrimination against him is the amount of money he
would have earned had he been properly referred. As
Burke reasoned , that sum is unknown and cannot be de-
termined . There is no way from the registers to recon-
struct history and to tell how much he lost in this period
of time . That is the reason the Region used averages, and
broke down backpay by calendar quarters and why it
prorated from the beginning of discrimination.
Respondent counsel nonetheless pressed Burke to con-
cede that claimants other than Combe, and unlike Combe
in the fourth quarter 1975, reregistered during particular
quarters a number of times following either a referral to
work or being marked absent when called . Since Combe
had no District Council earnings in the quarter, unlike
other claimants whose earnings contributed to the gross
backpay average earnings figure for the quarter, counsel
asked whether it was not unfair , a form of unjust enrich-
ment as well as being punitive to Respondent , to treat
Combe like other claimants who were more regular in
their appearances at the hiring hall and in the signing of
the register . In response Burke noted that all individuals
seeking work as ironworkers with union signatory em-
ployers and contractors were obligated to do so through
the Local 373 exclusive hiring hall and under the rules in
effect under the consent decree and collective-bargaining
agreement . These rules included signing the register and
then waiting from 7 to 9 o'clock every day until an indi-
vidual 's name is called . Again, the measure of loss is not
how long the individual waited for the job but what he
would have earned had he been referred in proper rota-
tion . If he had to wait a month and gets a referral for a
1-day job he may get discouraged and choose not to reg-
ister again . If he was passed over during that period of
time he may have lost the opportunity to go out on long-
term jobs or high paying jobs with the opportunity for
overtime because those jobs were given to the Local's
own members . Since the earnings of the Local men who
passed over Combe cannot be determined , the only ra-
tional way Combe's potential loss can be approximated is
to establish the average and apply it on a quarterly basis.
Since Combe had no District Council earnings in the
fourth quarter of 1975, that fact alone would serve to
lower the average earning figure for the quarter since it
was arrived at by dividing the gross earnings of all who
used the referral system by the number of those, includ-
ing Combe , who sought work from it.
Further questions regarding Combe's qualifications to
serve as steward (since he was passed over at least once
in early October 1975, by a member referred out as a
steward) were deferred to the presentation of Respond-
ent's case . However, Burke acknowledged that in prepar-
ing the specification he did not make any evaluation of
the ability or competency of an individual to perform the
steward function . The registers themselves provided no
basis for determining the experienced of any individual in
that regard . As noted by Judge Ricci in his decision in
the Iron Workers Local 373 case, affirmed by the Board,
while the contract provides only that "senior , experi-
enced applicants" may be referred out of chronological
sequence to work as stewards , so far as the record before
him showed , the Charging Parties at least were as expe-
rienced as the bulk of the local members . Judge Ricci
also concluded that there was no basis for presuming
that the ratio of experienced ironworkers between the
two groups (members and nonmembers) was 6 -to-1 in
favor of the local members . But that was precisely what
the relative number of steward referrals shows against
the total registration . Iron Workers Local 373, 232 NLRB
504 at 514 . Even more extreme ratios for all alleged dis-
criminatees, named as well as similarly situated , marked
the period 1977 through 1979 . The statistical analysis
presented by the General Counsel following the recess
shows that the ratio of Local 373 members referred as
stewards out of turn as against nonmembers so referred
varied , per quarter, in that period from a high of 154-to-3
to a low of 18-to-4, and averaged more than 15-to-1 in
favor of local members over the whole period . (See G.C.
Exh. 664.)
Combe was also passed over twice , once on 29 Sep-
tember and once on 3 October, because a member was
requested by a contractor . 20 This defense will also be ex-
amined during the review of Respondent 's presentation
of evidence.
Further examination of Burke also revealed that while
the compliance officer agreed that being present in the
hiring hall was a legitimate condition to being referred
out to a job by the Union , 21 he had no knowledge as to
whether in fact the claimants were present when they
were passed over . However, as Burke also pointed out,
the only way one could properly determine if a claimant
was absent was to have called his name in order on the
registration books . Then if he did not respond or appear
he would have been marked "absent ." But when a non-
member registrant was passed over his name was not
called ; instead a member was called in his place. Thus,
an inference would be warranted that the nonmember
20 Combe was also passed over in favor of a member referred as fore-
man on 30 September and 6 October and in favor of a member sent as a
replacement also on 30 September.
21 This requirement also appears in par. 21 of the consent decree.
IRON WORKERS LOCAL 373 (BUILDING CONTRACTORS)
was present and available the day of his passover. If the
nonmember was not present why then was he not called
in turn? I view this inference slightly differently in
reaching the same conclusion . Respondent , by its con-
duct of failing to call the nonmember registrant in proper
order and, instead , calling a member in his place, has
made it difficult, if not impossible, to determine whether,
in fact, the nonmember was present . Since the ambiguity
has been created by Respondent it should be resolved
against it and in favor of the discriminatee , particularly
when , under the Board 's conclusion of law that Re-
spondent has engaged in a massive pattern of deceptive
conduct, Respondent likely called its own members out
of proper rotation to favor them in work assignments at
the expense of available nonmember registrants . 22 Final-
ly, this question appears not to have been raised in the
underlying proceeding and did not trouble either the
ALJ or Board in making their applicable findings and
conclusions.
Burke was pressed by Respondent counsel to locate in-
stances of writings in the explanation column in the reg-
istration books which he deemed to be out of order re-
ferrals of members made without a mark (or excepted
designation pursuant to the consent decree ). As one fur-
ther example, aside from that of not marking anyone
absent on an out of order referral after close of the
normal early morning referral hours as previously de-
scribed , Burke noted instances in which the union busi-
ness agent had written "picket line reward" in the re-
marks column . Picket line reward is not recognized in
the consent decree as an authorized reason to send a
member or , indeed , anyone out of order. As later ex-
plained by Union Business Agent Jensen , certain individ-
uals, invariably Local 373 members, had volunteered to
perform services for the Respondent Union walking
Local 373 picket lines established at premises or work-
sites of contractors with whom the Union had a dispute.
As a consequence these members absented themselves
for those periods of time from the hiring hall and lost the
opportunity of receiving work referrals . Jensen 's under-
standing was that Business Agent McCloud had conclud-
ed that these members had thereby earned the right to
receive a preference on referral out of order when they
were next available following their service . But this pref-
erence was not countenanced by the consent decree or
collective-bargaining agreement in which all parties, in-
cluding Respondent , recognized certain legitimate union
concerns in operating its exclusive referral system and in
administering and enforcing its collective -bargaining con-
tract. Furthermore, by its nature, such a preference fa-
vored members over nonmembers because of their union
adherence , thereby unlawfully encouraging membership
in Local 373 through the awarding of jobs directly relat-
ed to their union activities at the expense of nonmembers
who were free to refrain from such activities under Sec-
tion 7 of the Act. Accordingly, I conclude that its use
for all referrals in which members passed over non-
22 Whenever uncertainties or ambiguities appear in cases of this nature
"the backpay claimant should receive the benefit of any doubt rather
than Respondent , the wrongdoer responsible for the existence of any un-
certainty and against whom any uncertainty should be resolved " United
Aircraft Corp, 204 NLRB 1068 (1973).
671
members in the period 1977 through 1979 constitute in-
dependent grounds for holding that the Respondent con-
tinued to discriminate in favor of its members on refer-
rals warranting backpay award to the nonmembers so
passed over and Respondent 's defense based on use of
this explanation is found to be without merit.
During the presentation of its defense, Local 373
Agent Jensen also noted that in instances in which con-
tractors had called the hall for workers late in the after-
noon or at other times when no registrants were present,
it had been Business Agent McCloud 's practice, and his
own since succeeding to McCloud 's position in 1984, to
call members from a card file maintained in the Local
office which contained their current addresses and tele-
phone numbers . In explanation of this practice , Jensen
stated that these telephone numbers were accurate, and
the records containing them were readily at hand, while
like nonmember information was not as easily available
or current . Jensen did not explain why the Union did not
solicit such information from registrants as a matter of
course or seek to maintain such information current. It is
my conclusion that this practice, just as in the case of the
picket line reward , served to favor members over non-
members on job referrals in a discriminatory manner and
is one additional instance showing continued discrimina-
tory conduct in the hiring hall operation in the period of
1977 through 1979 justifying backpay awards for all by-
passed nonmembers who lost referrals as a result.
On cross-examination Burke also confirmed that in ex-
amining the computer printout analysis , which display
the history of quarterly passovers of nonmembers by
Local 373 members, for 1975 through 1979, General
Counsel 's Exhibits 34 to 663, so long as a single passover
showed up in a quarter in which a member was referred
out ahead of an earlier registered nonmember for an ex-
cepted reason or for no reason , that was an instance of a
discriminatory referral in that quarter resulting in a back-
pay award for that nonmember . It did not matter that in
many instances the nonmember was passed over by 40
members or by 200 members in a particular quarter. As
long as there was one referral out of order , for a reason
previously found to be pretextual or for no reason, Burke
considered it to be reason enough to make a claim for
backpay for that quarter for that individual.
Burke also concluded that the statistical summaries and
percentage totals which he prepared during the hearing
recess and which have been described , confirm the Re-
gion's position which it had taken in the specification
when it alleged continuing entitlement to backpay to
1980, that a striking statistical contrast and gross dispari-
ty in granting members preference on referral as opposed
to nonmembers , in reliance on the excepted designations
contained in the consent decree, as found by the judges
and Board , continued unabated during the 3-year period
following the close of hearing . Burke not only drew at-
tention to the continued high disproportion in member
over nonmember use of the excepted designation in re-
ceiving preference on referral , in each of the 3 years ex-
ceeding 70 percent , and exceeding 75 percent in two of
them , but he also referred, in particular to the fact, as
previously noted , that nonmembers in the first 2 years,
672 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
received 91 percent and 80 percent , respectively, of the
referrals made in proper rotation and in turn . In discuss-
ing 1979 , Burke noted that there was a lot of work, total
referrals-3784-exceeding those in 1977 by 479. Work
started to pick up by April and May . This tended to
lessen the number of out of order referrals since the
Union had an obligation to refer workers on contractor
requests and was under no pressure to favor members for
a more limited volume of work . Starting in May and
continuing virtually to the end of the year , on many days
everyone who signed the book were referred to work on
the same day. It was not necessary for individuals to stay
in the hall for long periods of time because there was
enough work for everybody . Yet, although out of order
referrals shrank by more than half from each of the 2
prior years, down to 712 , 77 percent of such referrals
still went to members, 69 percent of them with a mark,
or combination of marks . During this year, 1979, as well,
some of the Charging Parties and other discriminatees
started registering as Local 373 members, having been
admitted to membership following a lengthy conflict and
litigation by nonmembers seeking that goal. Each of the
quarters in 1979, as in each of the other 2 years, shows
the same consistent patterns . Thus, Burke drew the con-
clusion that the striking imbalance found in the underly-
ing decisions for 1975 and 1976 continued without
change in 1977, 1978, and 1979.
Burke then confirmed that in determining to make a
single passover the test for determining that discrimina-
tion continued for a particular nonmember registrant in a
quarter and forming the predicate for an award of back-
pay, as alleged in paragraph 1 of the specification, the
Region made a number of assumptions, partly because of
the press of time . The first was that the designations con-
tained in the consent decree permitting certain registrants
to receive out-of-order referrals were continued to be
used as pretexts favoring members . (As noted, this as-
sumption was borne out by the statistical analysis pre-
pared by the Region and received in evidence after the
recess .) A second assumption was that all of the appli-
cants who registered on the Union 's books, whether
members or nonmembers, were qualified for the work
they were seeking including assignments as stewards or
as foremen . Burke mentioned the obvious fact that none
of the discriminatees were unfamiliar with or inexperi-
enced in the ironworkers trade . They each were mem-
bers of some local of the Iron Workers International. So
presumably they were qualified to do the work they
were seeking . Noteworthy also is the fact that the 1972
consent decree requires each applicant for referral to
complete a written application , listing his classifications,
his qualifications in any phases of the craft and his previ-
ous experience in such phases. Only if it is established
after a due-process hearing that an applicant's statements
as to his work qualifications is willfully and materially
false, or his employment has been terminated three times
in a 6-month period for incompetence to perform the
work assigned , shall an applicant lose his referral rights.
Local 373 therefore had every opportunity to require
and to verify the individual applicant's qualifications as a
condition of referral. Thus, those who signed its register
could be reasonably presumed to be capable of perform-
ing the work for which they registered.
With regard to the Union 's right to refer applicants
out of chronological order under the consent decree, it is
important to note that while contractor requests permit
such referrals , those requests must be recorded by the
Union together with the name of the contractor 's repre-
sentative making the request . As to foreman , only where
a contractor requests a specific person to serve as fore-
man on a job may a registrant be preferred . All other
foreman referrals must be made in order . Stewards may
be referred out of order, but Local 373 membership is
not a factor and reliance on such membership would vio-
late the decree . Instead "Senior, experienced applicants"
may be referred out of order to act as stewards for the
work crew at a particular jobsite, limited to one steward
for each contractor . Many of the nonmembers applicants
were experienced ironworkers in their particular trades
and would have been as qualified as a member to per-
form the steward function . Jensen 's testimony would dis-
pute this conclusion and will be dealt with shortly. An-
other exception, permitting referrals out of sequence, in
the case of applicants possessing special skills and abili-
ties required by a bona fide request by a contractor, ap-
pears not to have been a factor on which the Union
relied in defense . Finally, emergency employer requisi-
tions communicated during other than the normal refer-
ral hours or on weekends or holidays could be filled
without regard to regular sequence . The Union 's practice
of relying on members whom it called on off hours,
weekends , and holidays , and selecting applicants by sight
in the hall when applicants were still present has been
previously described.
Burke acknowledged during his cross-examination that
there are about 30 claimants who are alleged as discri-
minatees in the instant proceeding against Local 373 as
well as in the backpay proceeding against Local 480. In
order to avoid double recovery Burke is aware of these
individuals and, if necessary , will apportion an award for
a particular discriminatee between the two cases to pre-
vent any windfall. I am satisfied this procedure will pro-
tect against any unfair result.
With respect to the monies sought on behalf of the
District Council Welfare Fund , Burke admitted that
none of the 632 individuals then identified had informed
him that they lost medical coverage or were denied cov-
erage because they did not have sufficient credits to earn
that coverage . On this aspect of the case there is a pauci-
ty of evidence relating to the specific nature of the
funds, Burke only having testified on direct examination,
aside from describing the changing employer rates of
contribution over the years, that as to the vacation bene-
fit, the employer who makes the contributions into the
vacation fund withholds Federal income tax on the
money contributed which is then reported as taxable
income to the individual upon whose behalf the contribu-
tion is made. A stipulation confirmed that the employer's
contribution to the fund on behalf of employees is treat-
ed as part of gross wages paid to those employees. But
the record is silent on the subject and, certainly, the
specification does not seek , any reimbursement to alleged
IRON WORKERS LOCAL 373 (BUILDING CONTRACTORS)
discriminatees because of expenses related to health care.
As noted, neither is loss of health care coverage for the
years in question claimed on behalf of any discriminatee.
I believe the record also contains the fact that there are
no individual accounts in the name of any covered or
unit employee maintained by the welfare fund.
Union counsel returned on cross-examination to the
question of why, in the case of the claimant named Steve
Travers (G.C. Exh. 1, App. E-574), who did not register
for work referral from the Local 373 hiring hall from the
second quarter of 1977 through the fourth quarter of
1978, the General Counsel did not prorate his claim for
backpay in the first quarter of 1979 when he again regis-
tered and was passed over as it did for his first passover
in 1975. In counsel 's view this treatment of Travers,
absent from and with no earnings through the hall for
more than a calendar year, constitutes an example of an
attempt to punish Local 373 rather than seek to remedy
discrimination and to make discriminatees whole. In re-
sponse , Burke explained that the Region had no way to
tell why Travers did not sign the referral registers
during those periods . He may have been working else-
where, or was disgusted with his treatment up to this
point . 23 Since a decision was made that in applying the
backpay formula on a uniform basis, only for the back-
pay starting date would that date be fixed in accordance
with normal procedure , the first quarter in which a pass-
over occurred within the 10(b) period would be the only
quarter in which backpay would be prorated . This deci-
sion in practice did result in a benefit to Respondent al-
though the Region 's only interest was in issuing a specifi-
cation which would claim for each discriminatee an ap-
propriate measure of backpay due.
Another area explored by Respondent counsel on
cross-examination of Burke concerned the inclusion of
the irregular or infrequent registrants among the backpay
claimants . It was Respondent 's contention that the inclu-
sion of these claimants resulted in the highest backpay
claims out of all proportion to their actual losses since by
registering infrequently and then being marked absent on
many instances following their being passed over they
received the benefit of the average gross backpay formu-
la without showing any District Council earnings which
might otherwise have reduced their claims to that of the
more active job seekers among their fellow discrimina-
tees . In reply , Burke explained that under the Board's
normal procedure of establishing the formula providing
the appropriate measure of backpay, in instances where
an average measure of gross backpay is utilized, as in the
instant case, and earnings may vary very widely, the for-
mula would usually exclude a certain percentage of the
very highest and lowest earners . Inclusion of the extreme
earners would normally skew the average unfairly.24
23 Travers had registered on a fairly regular basis from 28 January
1975 to 6 June 1977 and was passed over many times following each reg-
istration. Travers returned to the hall to register in each quarter of 1979
and continued to be passed over , entitling him to additional claims with-
out proration for each quarter in that year
24 There is reason to believe that the Board does not favor the use of
such statistical techniques in construction industry cases , such as the in-
stant case . "In straight production industry cases this technique helps the
Board reach the most accurate backpay estimate by assuring that part-
time workers do not artificially lower the backpay due full -time discri-
673
Here, with some claimants having "hit the books" (regis-
tered) only once or twice in a year, and never having
signed again , one would have normally anticipated their
exclusion from the computation of the average earnings
formula . Likewise, those among the Local 373 members
who were steadily employed by a contractor but who
registered for referral during vacation and the like would
also have normally been excluded . It was not done here
because the language used by Judge Ricci and the Board
in identifying the nonmember applicants similarly situat-
ed, was "all nonmember applicants similarly situated
who sought employment opportunity during the relevant
period ." Iron Workers Local 373 supra at 506 . By elimi-
nating the highest earners among those who used the
hall, the formula would have eliminated the amounts
they earned as well as reduced the numbers of users only
slightly, thereby benefiting Respondent by reducing the
average gross backpay figure for each quarter . Elimina-
tion also of the lowest and zero earners-a larger
group-would have removed a substantial group of
claimants, and raised the average earnings by a signifi-
cant amount , but as the largest claimants would also
have been eliminated , the result would have been both
favorable and unfavorable to Respondent at the same
time . However, the General Counsel followed neither
course, and the formula utilized followed to the letter
the literal sense of the words adopted by the Board. I
cannot on the record before me determine that this
course was either arbitrary or punitive and so reject Re-
spondent's attack on the inclusion of the infrequent albeit
qualified user of the Respondent 's hiring hall.
With respect to one claimant , George Harding, Re-
spondent established during its cross-examination of
Burke, that a serious discrepancy existed between the
claim asserted on Harding 's behalf and the facts regard-
ing the history of his referral out of the hall. The Gener-
al Counsel claims on Harding 's behalf, $39 ,678 in back-
pay and other monies to the funds , totaling in all
$55,721, plus interest (G.C. Exh. 1, App. E-230). In only
4 of the 17 quarters for which claim is made is their any
listing of District Council earnings, adjusting gross back-
pay. And these earnings average only $316.22 in these
four. Yet Burke agreed that his own computer printouts
show numerous referrals from the hall for Harding in
every quarter for which claim is made, including the 13
quarters in which the specification asserts no District
Council earnings . A count of these referrals reveal a
total of 54 or 55 spread over all 17 quarters claimed. On
only eight occasions was Harding marked absent when
called . Yet Burke's review of the District Council
records showed only minimal earnings for Harding in the
four quarters as described. Based on information he had
received from his client , Respondent counsel represented
that Harding was deceased , that his correct name was
James George Harding and , although he signed the reg-
ister "George ," his payroll records in the fund office
would probably show the name "James George" Har-
minatees This rationale does not apply in construction industry cases,
however , where , as here, the work is intermittent and even employees
willing and able to work full-time may not have the opportunity to do
so." Painters Local 277, 282 NLRB 402 (1986).
674 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ding . Thus placed on notice , the General Counsel offered
no further evidence to resolve this discrepancy, even
though its own exhibit , the computer printout for the his-
tory of Harding's registrations (G.C. Exh. 261), with the
numerous referrals , is inconsistent with its allegation that
Harding had no earnings in many quarters and only mini-
mal earnings in four . I conclude that the General Coun-
sel has failed to make a prima facie showing for any
backpay or fund contributions for Harding . The General
Counsel has offered no evidence to rebut the inference
that each of Harding's referrals led to employment by a
contractor providing him with earnings which would
have resulted in diminishing or eliminating the claim for
net backpay asserted on his behalf . Under the formula
utilized the General Counsel has the burden of proving
gross backpay as adjusted by District Council earnings.
It has failed to established what those earnings were, al-
though acknowledging that Harding was referred to con-
tractors on numerous occasions during the backpay
period for which its specification asserts there were no
earnings. Having failed by probative evidence to estab-
lish Harding 's adjusted gross backpay, Harding's claim
must fall.
Similarly, for the year 1977, claimant Leandre J. Leb-
lanc shows in the specification no District Council earn-
ings although the General Counsel 's computer printout
for Leblanc (G.C. Exh. 360) reveals nine referrals to
contractors signatory to agreement with Local 373 be-
tween 8 March and 21 November 1977. In Leblanc's
case, 1977 was the only year of the 4 years 1975 through
1978, plus the first quarter in 1979, for which no District
Council earnings are recorded at the fund office . Again,
Respondent brought this discrepancy home to the Gov-
ernment and , in my view , it was not enough for the Gen-
eral Counsel to state that if Respondent was able to
produce evidence of these earnings, she would move to
amend this aspect of the specification . The General
Counsel had the burden of proving adjusted gross back-
pay for Leblanc and failed to do so for the year 1977.
Leblanc's claim for that year will likewise be dismissed.
At the close of the General Counsel 's case, I denied
Respondent 's motion to dismiss which placed reliance on
an alleged failure of the Government to include interim
earnings of any but a handful of the claimants in its spec-
ification after a lapse of 7 years from the original ALJ
decision , in disregard of the Board 's own guidelines to
include such information in its pleading, and because the
claim , involving in excess of $5 million , excluding inter-
est of roughly another $5 million, makes the Govern-
ment's case punitive and confiscatory . I noted the prior
court decisions , previously discussed , affirming the class,
rejected the notion it was the Government 's burden to
plead or prove interim earnings but referred to the will-
ingness of the General Counsel to make available to Re-
spondent all files of the hundred -odd claimants who re-
sponded to the Government 's request for information, in-
cluding interim earnings, and concluded that the law
places the burden of mitigating backpay on the Respond-
ent. The General Counsel noted as well the additional
statistical evidence it introduced supporting its claim that
discrimination continued after the close of hearing in the
underlying proceeding.
IV. THE PRESENTATION OF RESPONDENT'S DEFENSE
James Jensen testified that he has been a member of
Local 373 for 30 to 31 years . He was elected sergeant-at-
arms to the executive board , then assistant business agent
effective 1 July 1975, and on the death of Joseph
McCloud in the summer of 1984, succeeded him as busi-
ness agent . Throughout the period covered by this pro-
ceeding Jensen was assistant business agent . He took
orders from McCloud and assumed his duties when
McCloud was absent . McCloud was absent maybe three
or four times a year, either attending a union convention,
sick , tending to other business , or on vacation . These ab-
sences would vary between 1 day to 2 weeks. At first,
starting in 1975, Jensen assisted McCloud at the referral
window. When McCloud referred people out , he told
Jensen where to send them . Jensen would inform the
person about the job, where, when to report , and the
like, and collected travel service dues. A third individual,
William Thomas , local financial secretary and treasurer,
took responsibility to see that McCloud's register entries
were accurate . After a period of time starting around
1977, Jensen succeeded Thomas in recording the jobs as
they came in onto the contractor's requisition register
and seeing to it that McCloud's entries in the referral
register were accurate.
Jensen explained that in the Employer's requisition
register , contractors may request employee's by name,
and that employees on a job have the responsibility of
calling in to request a replacement when they will be off
the job for a day or more . The replacement must re-sign
the register to receive referrals after replacement work is
completed . Late calls may be received before 9 a.m. The
term refers to contractor requests received at any time
after the business agent has been at the window , referred
what work is available for that day , and leaves the
window . His practice on handling late calls has been pre-
viously described.
Jensen testified to the meaning of certain entries made
by McCloud in the remarks column during the relevant
period . "Return to job," also referred to by the General
Counsel as "call back," referred to a situation where a
job was closed down and started up again . McCloud
adopted a policy, if possible, that if a man was out of
work , and had not been referred to another job in the
meantime , to return him to the same job if it started up
again. Jensen noted that McCloud did this "very often,"
even when the contractor did not specifically request the
same men back. Where the contractor did make such a
request the remark would read "request, return to job."
This designation was not authorized by the consent
decree.
Jensen described the steward as the person who repre-
sents the business agent on the job . He collects all the
money, reports , and, hopefully , settles any jurisdictional
disputes or safety problems or work rules problems in-
volving the contractor . The designation "steward" in the
remarks column means McCloud picked one man out he
felt was qualified for that particular job and referred him
for that reason . "Steward requested" signified that an in-
dividual requested by name was also appointed steward
by McCloud.
IRON WORKERS LOCAL 373 (BUILDING CONTRACTORS) 675
Another designation used was that of "foreman." Al-
though not specifically discussed by Jensen , it clearly re-
ferred to the Union 's referring out an individual to be
foreman on a job . Note that this designation , found by
the Board to have been used in a discriminatory manner
in 1975 and 1976, was not authorized by the consent
decree . "Foreman requested ," is a designation authorized
by the consent decree and , as previously explained,
refers in that document to any instance where a contrac-
tor requests a specific person to serve as a foreman on a
job. (R . Exh. 9, par. 27(f).) When Jensen was asked to
explain the Union 's use of that designation , he first ex-
plained its use when a man happened to be requested by
a contractor to be the foreman on a particular job. But
Jensen then added , "The Foreman part of it really has
nothing to do with it . That man was requested by
name." When asked to explain those comments Jensen
reiterated that in the register page under review the men
were requested by name for the particular job and "we"
happened to know that they were going to be the fore-
men. Yet, Jensen did not testify to a specific request to
refer the individuals as foremen . Thus, in these instances
at least, the designation appears to have been misused by
the Local in referring members out of order.25
On contractor requests for specific applicants , the con-
sent decree also requires confirmation in writing by the
contractor . While Jensen often requested confirming let-
ters, some contractors did not comply . When informed
of the requirement some contractors changed their re-
quest from a specific to a general one, apparently to
avoid sending the letter.
It was McCloud 's practice, on holidays and during
strikes, to refer those individuals available in the hall in a
chronological order but with no one marked absent who
was registered but not available in the hall. The mark
"N.O.M.A." appears frequently on these occasions.
Jensen explained why the number of local men re-
quested by contractors were higher than the number of
nonlocal men. (Both documents submitted by the Gener-
al Counsel and the Union for the period 1977-1979 show
such a disparity , the Union 's summary exhibit averaging
roughly 2-to-1 in favor of requests of members .) In Jen-
sen's view , the Local 373 people work in the Union's ter-
ritory and out of its hall all the time . They do not seek
work in other halls and the contractors know them.
They are therefore requested back on the job when
they're available. Some nonmembers regularly sign the
register and have been working out of the hall for
lengthy periods . But the majority of them do not. Some
will seek referral for a period of 4 or 5 months and then
disappear for a year or two while working in other
States such as New York . Some sign more then one reg-
25 When a member was referred as a foreman he would have a pros-
pect of longer tenure on the job , and surely greater regularity of employ-
ment, ahead of individuals not so referred To this extent, the joint desig-
nation , "foreman request" as well as the unauthorized designation of
"foreman" gave promise of greater benefits that those accorded regis-
trants referred without these designations . Although not made clear in
the record , the contractors appeared to permit the union to designate par-
ticular workers referred to them , as foreman , without specifically so des-
ignating these workers . Administrative Law Judge Ricci refers to the
contract between the Iron Workers Council and Contractors Association
as dealing with referral of foremen , among others.
ister at a time and seek referrals in other halls over the
same period of time.
Jensen also swore that in the period 1977 through 1979
there was never an occasion that a nonlocal man was re-
quested by a contractor and had not been referred.
Although Respondent counsel , John J. Mulvihill, Esq.,
acknowledged that my rulings and the Board 's prior de-
cision permitted the Union to defend against the allega-
tion of discrimination in the operation of the hiring hall
by adducing evidence that certain out of order referrals
were not discriminatory because made to satisfy contrac-
tor requests for specific individuals , he noted he would
not introduce such evidence dealing with 1975 or 1976.
The reason his client took this position was that since it
was foreclosed from introducing any other evidence re-
garding other excepted reasons for favoring union mem-
bers on referral , the request letters alone would not sig-
nificantly alter the result reached by the Board . In fact,
counsel later introduced contractor request letters cover-
ing the full period claimed in the specification , from 1975
through 1979, stating he had changed his mind . Howev-
er, as noted below , see fn . 25, infra, Respondent limited
its analysis, tying the requests to particular referrals, to
the posttrial period.
With respect to the request category , Mulvihill asked
Jensen to list which nonmember claimants were request-
ed for referral by contractors. After the General Counsel
objected and offered to stipulate based upon a submission
by counsel showing those claimants who had been re-
quested , Mulvihill finally agreed to make the factual
breakdown and argument in his brief.26
Respondent next addressed the discrepancy in referral
of stewards, union members being referred over non-
members by a greater than 4-to-1 ratio over the whole
1977-1979 period and in almost every quarter . Jensen ex-
plained that because union members work for Local 373
contractors all the time , they know the local work rules
and conditions . Jensen and other officials know whether
their local members are qualified to handle large amounts
of money, and competent enough to collect it, and know
what work belongs to local ironworkers when jurisdic-
tional disputes arise with other trades . While such dis-
putes are governed by International union agreements,
superceding those are the Local's own area practice
agreements with each particular trade, that defines, basi-
cally, how work shall be assigned . Complications can
arise in interpreting these agreements . The Local 373
members, being more familiar with these practices,
would be more likely to be aware when another trade is
doing Local 373 work than somebody who doesn't work
in the area all the time.
Jensen said that constantly , when the Local has placed
a non-Local 373 steward on the job, he causes problems
by claiming work he did as an ironworker in another
area which may not be a Local 373 work practice.
Jensen acknowledged that some of the nonmembers who
26 Respondent did not include such a breakdown or analysis in its
brief. Instead , Respondent included a list, attached as Schedule A which
documented the book location of referrals of Local 373 members support-
ed by request letters during 1977-1979 later received to evidence as R.
Exh. 22.
676 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
frequently and regularly shape the hall are qualified to
serve as stewards and have been made stewards on jobs.
It is Jensen 's practice not to appoint as steward an indi-
vidual whom he has no prior knowledge . Without prior
experience working on Local 373 jobs, he will not be fa-
miliar with its work practices . Without knowledge of
personal character, Jensen would not know whether he
can handle money.
The money the steward collects is the sum of $4 per
workday working assessment paid by every ironworker
on a Local 373 job which increases with overtime hours.
It is collected on the job on payday or shortly thereafter
and turned in to the union hall along with a steward's
report as soon as possible . The monies and report also in-
cluded the travel service dues of $2.50 per week paid by
nonmembers . Membership dues are generally paid direct-
ly by members by mail or in person at the hall or a meet-
ing.
It is the steward's responsibility to keep a record of
the time worked by every ironworker on the job. The
weekly report he prepares lists all information relating to
personnel , names, local affiliation , regular and overtime
hours, assessment , and travel dues paid and owed. The
assessment is retained by the Local and is the predomi-
nant source of its funds . The regular dues of $14 a
month , only $1 is retained by the Local, $13 being remit-
ted to the International . Thus, regularity in collection
and reports is vital to the operation of the Local.
Turning to the category of "late calls ," an excepted
designation , the union summary for 1977-1979 shows
members received a much higher proportion then non-
members of such out-of-turn referrals . As earlier noted,
Jensen explained this disparity on the ground that where-
as most of the nonmember referral cards are mostly out
of date, the members telephone list is constantly updated
by the local administration . But far more late calls are re-
ferred in person from the hall than by telephone. When
asked how registrants became aware that if they stayed
in the hall after the "book is closed ," there is a possibili-
ty of a late call referral , Jensen responded that "every-
body knows what the procedures is. . . . They knew it
either by us telling them directly or by experience." But
many nonmembers are seeking work elsewhere, away
from the Local 373 hall in Perth Amboy, for example
out of sister local halls in Elizabeth or Newark, New
Jersey, where District Council affiliated Locals 11 and
45 are located. In Jensen's assessment most of those who
remain in the hall after completing regular referrals, as
early as 8 a .m., are Local 373 members . When few indi-
viduals remain , Jensen scans the hall and selects in order
from the referral list. If a large group is present , he reads
out names down the book.
Jensen also swore that during the period 1977 to 1979,
during which he served as assistant steward , Local 373
never knowingly bypassed a nonlocal member for a
member without explanation or an explanatory remark
being placed in the remarks column. Those explanations,
none of which fall within the consent decree excepted
designations , were analyzed by Jensen. He prepared a
document, Respondent 's Exhibit 21, which broke down,
for the year 1979, all instances of a passover of one regis-
trant by another, whether a member or nonmember,
based on an explanation not authorized in the consent
decree . In contrast to the General Counsel's analysis for
the same year, which showed 86 out of order referrals
with no mark, i.e., no excepted explanation , Respond-
ent's totaled 69. Jensen believed the difference of 17 rep-
resents those instances in which members , sent out on re-
ferral only get 2 hours work and on their return to the
hall are referred out again pursuant to a union policy
giving preference the following day to those referred
who had short hours the prior day. The Government
properly treated these subsequent referrals as passovers
and the Union did not.
The reasons contained in the remarks column fall into
three categories : Inclement weather (0 degrees days,
snow , rain), holiday and picket line reward . It is note-
worthy that in 1979, 25 members received the benefit of
a picket line reward passover as against 10 nonmembers.
These passovers were almost half of the 73 listed. Thus,
Jensen contention that this explanation shows non-
members being treated the same as members is not borne
out by the record.
Jensen also referred obliquely to the law suit brought
by nonmembers against Local 373 seeking membership.
Of the original 16 Charging Parties, all but possibly 1,
who died around the time the case was settled, have
become members of the Local . Similarly, many, but not
all, of the similarly situated class of discriminatees have
become members . When asked to provide numbers,
Jensen replied that over a hundred had transferred in al-
ready from their membership in sister locals . Jensen ex-
plained that the transfer of the original group was
achieved through settlement of the litigation brought in
the New Jersey state courts . There were 25 plaintiffs in
that case. The other transfers have resulted from a
change in the Local's criteria for admission of new mem-
bers which was adopted as a consequence of the law
suit . Those not immediately admitted to membership are
placed on a waiting list.
Respondent Union introduced into evidence 260 letters
received from contractors requesting the referral of iron-
workers during the period 31 July 1975 to 20 August
1979. The individuals whose names appear in these let-
ters are by and large Local 373 members . In instances
where more than one ironworker is requested , some let-
ters also contain the names of nonmembers . The Union
also retains in its files letters requesting referrals of non-
members . With respect to both kinds of letters, those re-
questing union, and nonunion members, the Union did
not offer in evidence and does not have in its files, fol-
lowup letters corresponding to all oral requests made
which were documented in its requisition registers.27
27 In these registers , Jensen and others recorded such information as
the contractor 's name, the date and time of requisition, construction site,
number of employees requested , phases of iron work to be performed,
contractor's representative making the request and any remarks. Al-
though required by the consent decree the requisition registers do not
contain the name of the contractor's representative making the request
but only the title-superintendent, owner , or foreman. Nor have the regis-
ters been serially numbered as also required by the consent decree There
are numbering gaps between several of the registers which follow each
other in chronological sequence (see R. Exhs. 12a, 13a).
IRON WORKERS LOCAL 373 (BUILDING CONTRACTORS) 677
Jensen testified that some request letters which may have
been received , were probably misplaced and are missing.
There are whole periods of time for which the Union is
presently lacking such letters.
These letters are not uniform . Many are typed on con-
tractor's letterheads . A few are handwritten notes on
memorandum paper containing either the name of the
employer or the name of the official who is making the
request . One contractor used a short typed form contain-
ing blanks which he filled in but left undated . Others let-
ters were also undated. Jensen testified he added dates
on the undated requests roughly a year before his testi-
mony when he reviewed them by checking the request
against the requisition register and referral register. He
acknowledged that in a number of instances his dates
may not have been completely accurate . In some in-
stances the contractor sent the letter naming workers at
the request of a foreman member of Local 373. Almost
all of the requests confirm an oral request previously
made by telephone to the hiring hall.
In discussing stewards , Jensen testified that the first
man referred to a job is the foreman and the second man
referred is the shop steward . There is only one steward
on every job. Where there is a single contractor and
work is subcontracted to different ironwork contractors
for different phases of work; steel, concrete and rods,
sash and finishing work , or rigging , then for each sub-
contractor employing ironworkers , a steward would be
assigned by the Union.
Jensen expanded on his association with Joseph
McCloud, the longstanding business agent who died in
1984. Jensen was McCloud's assistant for over 10 years.
In that time he came to know the policies McCloud fol-
lowed in making referrals . Their desks faced each other.
They both answered the telephone receiving contractor
requests and Jensen stood alongside McCloud when
McCloud was next to the window referring applicants
out of the book . In making referrals of stewards,
McCloud , first of all, wanted people he could trust han-
dling money . On large jobs , the steward should be good
with figures and accounting entries to compute the
working assessments owed and travel service dues. He
should also be familiar with the Union 's work rules and
area practices . These include established rules in the col-
lective-bargaining agreement , area practices followed
over the years , the general working rules of the Interna-
tional Union and the Local 's own area work practice
agreements with different crafts . The steward should be
something of a diplomat , be able to remain calm in dis-
putes, have some courage to maintain his position on
behalf of the men and the contractor , and be familiar
with safety regulations and exercise judgment to declare
a condition unsafe and thereby limit the Local's liability
on an ensuing accident.
Jensen went through the names of approximately 200
of the more than 600 nonmember claimants while on the
witness stand . In each instance , he gave his opinion as to
whether, had he been steward during the period 1977
through 1979 , be would have referred out the named dis-
criminatees as shop steward . Jensen declared that in
doing so he followed the criteria that he understood
McCloud followed in making steward selections and re-
ferrals. Jensen added, however, that he did not always
agree with McCloud, and implied these differences ex-
tended to steward selections.
In order to save time of trial, the parties subsequently
stipulated to receive in evidence a document prepared by
Jensen, listing for each of the additional 400-plus non-
member claimants whether Jensen would have referred
them as steward and, if not , why not. It was stipulated
that if called to testify about each of these remaining
claimants, Jensen would have testified in accordance
with his evaluation contained in the exhibit.
Jensen 's opinions on steward referral may be broken
down into a number of different categories . About cer-
tain discriminatees , Jensen said he did not know them
well enough , they either didn 't shape the hall or shaped
too infrequently. About others, Jensen stated they either
gambled , had a drinking problem , or were otherwise un-
reliable in handling large sums of money . Still others
were not knowledgeable or familiar enough with the
work rules, some because they worked primarily out of
other locals in the northern portion of the State, and
other because they worked steady for contractors or "all
over." At other times , Jensen expressed the view that
these claimants would confuse Local 373 work rules
with those in other areas they worked, such as in Eliza-
beth. Still others were deemed by Jensen to lack experi-
ence with a wide range of contractors and types of
work. Another small group were frequently marked
absent when called , had no car or drivers license so
would have difficulty in getting money and reports to
the hall . A large group who signed the register as quali-
fied and interested in referral in rods or sheeting, for ex-
ample, Jensen would have referred as stewards on small
jobs in their specialty but not large jobs employing many
ironworkers or involving structural or mechanical work
or finishing in which they were not qualified.
Among the agreements governing the contractual
work jurisdiction of ironworkers, the basic document
guiding Local 373 is the so-called Brandle Agreement,
dated 15 December 1926, made between the Locals 373,
11, and 45 and the predecessors of the current signatory
Employer Association, The Building Contractors Asso-
ciation of New Jersey . The collective-bargaining agree-
ment in effect between the District Council and Employ-
er Association for 1977 through 1979, in article III, pro-
vides that the Brandle Agreement establishes for all time
the contractual work jurisdiction of the Union and that
the provisions of article IV, "Work Jurisdiction," which
follows, are identical , or substantially so, to those in the
Brandle Agreement . At present this Agreement governs
all five ironworkers locals comprising the District Coun-
cil and the work jurisdiction they claim with signatory
contractors.
Some of the work practices governed by the agree-
ment are enforced or interpreted by Local 373 different-
ly or more stringently than one or more of its sister
locals . For example, according to Jensen, some of the
northern locals of the District Council permit reinforcing
rods to be burned to the proper length by a foreman
alone, while Local 373 requires two men to be present
when rods are burned. Similarly, for safety reason Local
678 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
373 normally requires wire mesh to be rolled by two
men while the other locals in the District Council, all in
the northern part of the State, are lax in enforcing that
rule. Local 480 has a maintenance agreement in which
the amount of overtime is limited ; Local 373 has entered
no such agreement but has supplied ironworkers em-
ployed by a contractor operating under a maintenance
agreement with the International Union.
According to Jensen , some of the extensive work
claims appearing in the Brandle Agreement may be abro-
gated on particular jobs by the International Union
through its agreements with other International Unions
or by local area practices Local 373 has with other
unions in its area. These area practices which Iron
Workers Local have with other trades will also vary de-
pending on the local . Thus, ironworkers in Northern
Jersey are claiming the work of placing roof decking
while Local 373 does not. Again Iron Workers Locals to
the south of Local 373, Locals 399 and 68, permit the
shortening of reinforced bars to be done off the job
while Local 373, under the Brandle Agreement , requires
all such bars above a certain length to be cut and bent on
the job . Also, in areas south of Local 373 , sister locals
permit four men and a foreman on a crane on a structur-
al job were Local 373 requires five men and a foreman.
Even within Local 373's own territory agreements
may vary from local to local . Under an agreement be-
tween the International Iron Workers Union and Interna-
tional Union of Millrights work is divided between Local
373 and the Perth Amboy Carpenter's Local in con-
structing a monorail conveyor , but when such work is
performed in a Ford plant , under an area practice agree-
ment the work is performed by a composite crew, half
millrights and half ironworkers. Jensen maintained there
are hundreds of such practice agreements which vary de-
pending on the other craft, the business agent and the
particular area . In situations where a particular craft has
more than one local in the area, practice issues could
arise with each.
Jensen continued to insist that Local 373 members are
more qualified than nonmembers to act as steward not by
virtue of their membership but because they work
around the area and out of the hall all the time . They do
not go to other locals to look for work . Although some
of them work steady for contractors all the time, and a
few others will look for work elsewhere if work is slow
from the Local 373 hall, basically the members stay lo-
cally and look for work here and no place else.
On cross-examination , Jensen described instances in
which a contractor will call him from a jobsite to request
relaxation of work rule or practice and in the ensuing
discussions Jensen has authorized the change after get-
ting the facts . Jensen also acknowledged that the area
practice agreements with other unions have been devel-
oped for the purpose of avoiding jurisdictional disputes.
Jensen himself as business agent personally attends
markup conferences held at the jobsites before a job
begins and attended by the contractor and various crafts
to resolve potential problems with other crafts and settle
jurisdictional work lines. Jensen also attended such con-
ferences during the time he assisted McCloud. The re-
sults are either distributed in writing to the steward or
Jensen will meet with the steward to explain any vari-
ations from normal practice . Sometimes , jurisdictional
issues are resolved or clarified by telephone calls to
other business agents.
When jurisdictional problems arise during the course
of a job at the site, Jensen will first try to settle it over
the telephone utilizing his steward as intermediary in dis-
cussions either with the contractor or other steward or
talking directly to the contractor . On occasion , he will
go to the jobsite and get involved with other business
agents . If the problem persists, the International may
have to be brought in. Jensen later brought out that a
steward who knows the rules well enough and can quote
them with authority can settle a work dispute before it
ever gets to the point where a call is made to the busi-
ness agent at the hall.
It is significant , however, that the collective -bargain-
ing agreement is silent on the function of the steward. As
for grievances , article XIII provides, in paragraph 13.1
"All grievances or disputes involving the interpretation
or application of the collective bargaining agreement of
the parties which cannot be adjusted or settled by and
between the Business Agent, having jurisdiction , and the
Employer shall be submitted to a Committee composed
of representatives of both parties." Thus, the steward's
role in grievance handling or adjustment is minimal, in
written form. Jensen 's testimony reinforces this conclu-
sion . He never referred to a steward role in grievance
handling or resolution.
In evaluating the Union's effort to overcome the pre-
sumption of continued discriminatory operation of the
hiring hall at least derived from its continued substantial
preference accorded members over nonmembers on the
designation and referral of stewards, it first must be rec-
ognized , unfortunately, that the agent responsible for the
Union's conduct, then business agent McCloud, is now
deceased . (Although alive and available to testify in the
underlying proceeding he apparently did not take the
stand to defend the Union's practices on referral in 1975
and 1976.) Thus, McCloud's assistant , Jensen , responded.
But he was not the key officer who, unilaterally, ran the
Union's exclusive referral system . By his own admission,
Jensen relieved McCloud only on limited occasions for
short periods of time . McCloud did not articulate his rea-
sons each time he passed over a nonmember in referring
out a steward . What Jensen would have done had he ex-
ercised McCloud's authority does not really tell us what
and why McCloud acted as he did.
Even Jensen 's attempt to respond to this shortcoming
by expressing McCloud policy on referral which was ap-
parent to him and which he has subsequently followed
fails because it is really not a policy at issue but its appli-
cation to particular individuals . Jensen's attempt to ar-
ticulate a rationale for making steward referrals which I
previously described by breaking down his reasons into a
series of categories show clearly that subjective judg-
ments were being made which may or may not have had
a reasoned basis . Each time Jensen, speaking for
McCloud, was making a subjective determination based
on a presumed personal knowledge of the experience and
ability of an applicant, he was demonstrating the degree
IRON WORKERS LOCAL 373 (BUILDING CONTRACTORS) 679
to which the Union had unbridled power to control em-
ployment and favor certain applicants and provide them
with enhanced employment opportunities and benefits. It
is also evident that time after time , Jensen exhibited lack
of familiarity with or knowledge of the experience of
nonmembers , particularly those who worked part or
most of the time outside the hall. That he would be more
familiar with members who predominantly worked the
hall is not surprising . This familiarity and closeness with
members could not have failed to have left a strong im-
pression on the out of town experienced applicants.
In responding to a similar claim made by a Union that
its agent , Brennan , did not make referrals arbitrarily, but
used a method that was objective , by using his discretion
in selecting the best workers for the job, the Third Cir-
cuit Court of Appeals made comments equally apt to the
case at bar:
Both the terms of the collective bargaining agree-
ment and the way in which Brennen made referral
decisions leave room for impermissable discrimina-
tion . It is this latitude, this grant of unchecked
power, that may reasonably tend to coerce job ap-
plicants into joining the Union . Although it may be
permissable for a business manager to exercise some
degree of discretion in making employment referrals
through a hiring hall, he may not base his referrals
solely on his personal knowledge of the workers if
he is more likely to be familiar with the skills of
union members than with those of nonmembers.
[Painters Local 277 v. NLRB, 717 F.2d 805, 810 (3d
Cir. 1983).]
Accord: Ohio Valley Carpenters District Council (Catalyt-
ic), 267 NLRB 1223 ( 1983).
While experience in working for District Council con-
tractors could be said to make ironworkers familiar with
the basic jurisdictional agreements , particularly the Bran-
dle Agreement , and unwritten area practices, Jensen, to
the contrary , took such work history with close sister
locals, as detrimental because it would foster confusion.
In fact, Jensen referred to only a few variances in prac-
tices, which , by the time a nonmember had any work
history at all with a Local 373 contractor would have
been understood . It was pure speculation for Jensen to
suppose these ironworkers would perpetuate confusion in
exercising their obligations as steward , particularly when
he was available a phone call away to lend assistance. In
fact, the business agent appears to have become involved
and resolved himself most jurisdictional issues of any
consequence.
As regards those with whom he was unfamiliar, or
even those with a presumed handicap or problem, there
was no evidence offered that Jensen put his judgments to
the test, i .e., that a steward referral of any one of them
resulted in a detriment to the Local . Neither did Jensen
analyze the capabilities or understandings of the 200-odd
members to act as stewards . Surely, among them were
individuals with similar short-comings similar to non-
members cited.
It is also noteworthy that none of the criteria on
which Jensen claims McCloud relied are listed in the
consent decree. The only requirement there is that the
individual be a "senior , experienced applicant ," a qualifi-
cation that most, if not all, of the nonmember claimants
possessed. By using private subjective criteria not permit-
ted by the collective agreement or consent decree incor-
porated therein, and by failing to justify such practice or
offer reasons to those rejected , the Union was continuing
to engage in a systematic and continuous pattern of
abuse "openly back dooring referrals in violation of the
agreement." NLRB v. Iron Workers, 600 F.2d 770, 777
(9th Cir. 1979). See also Plumbers Local 725, 225 NLRB
138, 143 (1976), enfd. 572 F.2d 550 (5th Cir. 1978); Asbes-
tos Workers Local 22, 212 NLRB 913 (1974); Iron Work-
ers Local 290 (Mid-States), 184 NLRB 177, 187 (1970),
enfd. 443 F.2d 383 (6th Cir. 1971).
Even when Jensen grudgingly conceded a non-
member's qualification to serve as steward on a small rod
or sheeting job, his response begged the question. If the
applicant listed himself qualified in only one or two spe-
cialties, those are the only ones for which he would be
competing with a member for a steward referral, and
even here , on smaller jobs , members were preferred out
of order, leading one to conclude that not qualifications
but invidious union considerations were at work.
Finally, there is no evidence that the Union sought to
familiarize users of the hall in a systematic way with the
function of steward or the various agreements and prac-
tices and rules bearing on the jurisdictional and monetary
responsibilities and so prepare all experienced applicants
for their duties. The matter was kept in-house, and those
with whom Jensen (McCloud) were most familiar, all
union members, continued to be preferred by a wide sta-
tistical margin throughout the posthearing period
through 1979. 1 conclude that the Union has failed to
show that its sham use of the steward designation in the
period 1975 to early 1977 ceased and that its continued
extreme preference accorded members over nonmembers
on the numerous steward referrals in subsequent years
was unrelated to a discriminatory motive and intent.
Other evidence , unrelated to the steward designations
supports this conclusion . Thus, picket line activity was
openly rewarded by referral preference and members
were the only ones contacted or solicited for late refer-
rals after the hall counter was closed . Such preferences
went hand in hand with the continued striking statistical
contrast on steward assignments.
I return now to an analysis of the Union 's defense that
the evidenced it submitted of written requests by con-
tractors and its maintenance of requisition registers docu-
menting contractor requests shields it from a finding,
particularly for the 3-year period following close of
hearing, that its use of the request designation in prefer-
ring members on referral was pretextual or that such
nondiscriminatory preferences undercuts the Govern-
ment's presumption or a finding of a continued unlawful
operation of the referral system in general over the same
period.
Initially, Jensen 's claim that members were requested
by employers far more frequently than nonmembers be-
cause they worked solely or predominantly out of the
Local 373 hall and so were known to the contractors,
680 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
does not explain members' requests so for exceeding
those of the many nonmember claimants who regularly
and repeatedly sought referral through the hall.
Further, as noted earlier, the Union never fulfilled its
promise to analyze the request letters in its brief. Sched-
ule A attached to is brief merely locates the page and
line in the referral register at which a member passed
over other registrants because his referral was specifical-
ly requested . As pointed out by General Counsel in its
brief, Respondent neither correlated the received letters
with entries in the requisition registers nor did it relate
either the request letters or the referral register entries
denoting a preferred referral made because of a request
to any instance claimed by the Government as a pass-
over entitling a claimant to backpay. More significantly,
Respondent has not sought to show that any nonmember
passed over in favor of a member because of his request
by a contractor would have been denied backpay in a
quarter because the passover was the only instance in the
quarter in which he was bypassed . As maintained by the
Government and as warranted by the record, a single
passover in a quarter establishes a discriminatory act and
entitlement to backpay. My review of the computer
printouts for each claimant which formed the basis for
the quarterly backpay claims on behalf of each discrimin-
atee show very few, if any, instances in which a contrac-
tor request was the only instance of the passover of any
claimant in a quarter . Many of the passovers in a quarter
were multiple and listed a variety of reasons in the re-
marks column . The predominant designation , referral as
a steward , has already been shown to have continued to
be used as a pretext . Others were not permitted by the
consent decree, and also served to perpetuate member
dominance in competition for the finite number of jobs
available . These designations included late referral, call
backs (requested or not), picket line reward and replace-
ment, among others . Since Jensen has acknowledged that
serious gaps exist in the evidence the Union submitted of
letters establishing requests of members, the Union
would have been hard pressed to establish a nexus be-
tween any one of the 118 letters submitted between 17
February 1977 following close of hearing and 20 August
1979, the last one submitted, and a sole instance of a
passover in any one quarter . But not having even made
the attempt to show such connection Respondent has not
met its burden of establishing that contractor requests in-
sulate it from discriminatory preferences accorded its
own members during the years following the close of
hearing. And, as Mulvihill correctly inferred , the request
designations in the initial period covered in the underly-
ing decisions , for which 140-odd letters were submitted
but no analysis conducted, would hardly begin to over-
come the shear volume of multiple, unrelated passovers,
both evidenced by excepted designations and no com-
ments in the remark column, on the basis of which the
administrative law judge and Board concluded that a
massive pattern of unlawful conduct had been perpetrat-
ed warranting a remedy for all nonmember applicants
adversely affected. Finally, having failed to show how
any request of a member corroborated either by letter or
entry in the requisition register impacted on any particu-
lar quarterly backpay claim , Respondent 's defense in this
regard must fail.
I now turn to Respondent 's defense based on the testi-
mony of certain of the similarly situated claimants it did
call as witnesses , 28 that by their conduct , or the evi-
dence of their District Council or interim earnings, their
claims should be eliminated or at the least, substantially
reduced.
Respondent disputes the claims of 13 of these claim-
ants . The claims of two others , Benedict Powers and
George Laday, were ordered withdrawn on motion
made by the General Counsel on the conclusion of their
testimony, because of evidence that their interim earn-
ings exceeded adjusted gross backpay for each quarter
claimed.
A. Harry Barrett
The General Counsel claims $2490 for Barrett for each
quarter in 1979 and makes additional claim for each of
four funds based on the applicable percentage of this
backpay figure required to be remitted under the collec-
tive-bargaining agreement . In computing this adjusted
figure the General Counsel took into account earnings of
$955 per quarter reported by the District Council. Bar-
rett produced a copy of his 1979 Federal Income Tax
Return reporting earnings of $5188, which he swore
were all derived from referrals out of the Local 373 hall.
Accompanying copies of W-2 and Tax Statements to-
taled $5204.05 and this figure , based on typed informa-
tion supplied by each employer , shall prevail . Barrett
also testified he spent 72 days in the Freehold, New
Jersey County jail in 1979 during warm weather. Inas-
much as Barrett was not in the labor market and unavail-
able for referral during this period of time I will consider
that for the third quarter of 1979 Barrett had no earnings
and is not entitled to backpay for that quarter . Since in-
dependent evidence is not available to attribute his 1979
earnings to any of the three particular quarters , contrary
to the contention of the General Counsel appearing at
page 28 of his brief, I will apportion them among these
quarters just as the General Counsel has done with re-
spect to both the average gross backpay figure claimed
under its formula and the District Council earnings it de-
rived from records maintained by the Council . There is
no uncertainty as to these earnings and they shall be
taken into account . Accordingly , Barrett's District Coun-
cil earnings of $1734. 68 per each of three quarters results
28 After subpoenaing and examining 14 nonmember claimants , counsel
stated that Respondent would call no further witnesses in its defense to
the Government's claims . Because of the expenses the local had already
incurred in witness and appearance fees , exceeding $ 12,000 to date,
during which time only a small number had their examinations completed
each day, the Union anticipated substantial additional expenses , for an-
other 6 to 8 weeks adding greatly to its costs and that of the subpoenaed
individuals who, while waiting to testify , in some cases for up to 3 days,
were losing wages Accordingly , the Union was prepared to rest its de-
fense and to rely on the record as it had been developed, regarding both
its legal and factual defenses to the backpay claims asserted , including, as
to individual claimants, its burden of establishing willful loss of earnings,
availability for work and mitigation of claim. Although the Union re-
served its right to call Compliance Officer Burke as to matters in which
proposed stipulations were not ultimately worked out , Respondent called
no further witnesses.
IRON WORKERS LOCAL 373 (BUILDING CONTRACTORS) 681
in a net backpay figure of $1710.32 for the first, second
and fourth quarters . The contributions due the funds
shall be adjusted accordingly except that no contribution
shall be due to the Welfare Fund on Barrett 's or any
other claimants ' behalf as will be explained , infra.
Barrett also reported that in 1977 he suffered from a
serious drinking problem , as a consequence of which he
was unable to continue on three jobs in a row to which
he had been referred after 2 or 3 days of work and was
laid off when he reported late on a following day to the
job. The specification shows no District Council earnings
in 1977 and Barrett could not produce income tax or
earnings information for any year other than 1979. Al-
though Barrett also worked out of the Trenton iron-
workers local he did not attribute these jobs to referral
from that hall. This conduct constitutes a willful loss of
earnings serious enough to affect Barrett 's entitlement to
backpay for the period in question . Since there was no
testimony and it is impossible to determine how long
each job would have continued I am prepared to penal-
ize Barrett for one quarter of backpay claimed in 1977,
thereby reducing the claim for that year by $2002 on this
ground alone . Barrett also testified that the reason he did
not reregister at the Local 373 hall until 9 May 1977
after being marked absent the prior 15 February was that
he thought he was in Daytona Beach , Florida, visiting
relatives . Although Barrett later testified under cross-ex-
amination by the General Counsel that he did not have a
clear recollection of the dates or even the year, these re-
sponses were elicited by leading questions . I am prepared
to credit Barrett's initial unsolicited and volunteered re-
porting of the reason for his extended absence from the
hall. Consequently , and based on his removal from the
labor market for a 3-month period I will also eliminate a
second quarter of claimed backpay of $2002 on this sepa-
rate ground , leaving Barrett with a backpay award of
$2002 for each of two quarters in 1977.
In 1978 Barrett reported that he worked as a dish-
washer for two named restaurants in Red Bank, New
Jersey, for a period of 3 or 4 months in the spring. Inas-
much as no claim is asserted for Barrett for the second
quarter of 1978, this disclosure shall not affect his claims
for the first and third quarters in that year.
Barrett testified he earned between $3000 and $4000
including overtime in late 1976 working for a steel mill
in Morrisville , Pennsylvania, on a referral from the Tren-
ton ironworkers local. As a consequence of these interim
earnings , Barrett's net claim of $1680 for the fourth quar-
ter of 1976 shall also be eliminated.
Barrett admitted the lose of his drivers license on his
return from Florida in May 1977 which lose continued
through the remainder of that year , 1978 and 1979. He
also did not have an automobile in 1976 . As a result, the
Local 373 agent at the referral window had him mark
the register "no car" so that the Union would be aware
of this limitation . However, Barrett also testified credibly
that the absence of his own vehicle or drivers license did
not overly handicap him in accepting assignments from
the union hall. While he could not accept a job requiring
him to have a personal automobile he was assigned to
jobs in rural locations which he was able to accept by
meeting and being picked up by fellow workers with
automobiles and taking public transportation home. On
the basis of this testimony I am not prepared to rule, as
did Judge Ricci in the case of the Thom brothers, Iron
Workers Local 373, 232 NLRB 504 at 517, and as the
Union claims, that Barrett only used the hall for work
which filled his special circumstances and needs. While
he was confronted with certain difficulties he appears to
have made every effort to overcome them and his handi-
cap, unlike that of the Thom brothers who conditioned
their referral on being able to travel together, was hardly
as stringent or constricting and permitted a wide range
of referrals.
In its brief the Union continues to attack any recovery
at all for Barrett and others like him who show a history
of numerous absences following their registrations and
subsequent passovers when their names are finally called
for referral. I have previously rejected similar arguments
addressed to those claimants who show irregular or in-
frequent registrations and my comments made there are
equally applicable to those who , like Barrett , were not
present days or weeks after the discriminatory acts
against them took place when the Union belatedly called
them for referral. Respondent 's continued systematic
massive discriminatory operation of the hiring hall, estab-
lished in the underlying cases, and which I have con-
cluded Respondent failed to demonstrate it discontinued
in the subsequent period , excuses claimants , such as Bar-
rett, from forfeiting backpay because they did not contin-
ue to shape the hall daily after they were discriminatori-
ly bypassed. As noted by the Board in a typical, analo-
gous circumstances , involving discrimination against a
nonmember under a union exclusive referral system, and
repeated many times in other cases , "We find no basis
for tolling the Respondent 's backpay liability to Moore
as of 19 September 1984 in light of the continuing unlaw-
ful discrimination which made futile any attempts by him
to secure employment through the Respondent 's referral
system even after that date," a date that Moore stopped
signing the referral list, Laborers Local 1136 (Southern Il-
linois Builders), 276 NLRB 1396 (1985). Barrett among
other discriminatees, made the same point for himself
and all other like claimants when he replied to a question
by Union counsel as to whether he recalled being in the
hiring hall on each day since a particular registration.
Barrett answered : "Most of the times we were in the
hiring hall, but if you keep coming back day after day
after day and see other people getting sent out while
you're still sitting there, you get tired of sitting there."
(Tr. 3027.)
Barrett's testimony , confirmed by other claimants,
such as Edward Hazelet, also shows that these non-
members relied to a great extent on an estimate given to
them by the union business agent, as to how long the
wait would be from the time of their signing the register
until they would be called in their classification . Usually,
Barrett and others followed the time lapse given to them
before returning to the hall, which could vary between 2
days and up to a week or more . Joe McCloud , being de-
ceased could not respond , but neither Jensen nor any
other union official during McCloud 's tenure as agent,
offered any rebuttal to this assessment . Thus, this testi-
682 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
mony, which I credit, provides additional evidence that
the Union's marking a claimant absent when called
should not affect his backpay entitlement for a prior un-
lawful passover which occurred during a particular quar-
ter.
B. Edward Hazelet
Hazelet testified that in 1975, until September of that
year, he worked, off and on, 5 days on, followed by a
week or two off, as a relief bartender at a tavern in Clif-
ford Beach, New Jersey. Although he tended bar from
5:30 until 11 : 30 p.m . starting an hour to an hour and a
half after most ironworker jobs finish for the day. Haze-
let testified he would not have worked the same day be
tended bar at the ironworkers trade because it would
have been over taxing . As a consequence , I will take
these earnings into account as interim earnings . Hazelet
had no tax return or earnings statements from this or
other employers , having lost or misplaced all such docu-
ments . Hazelet made $3 . 50 an hour for 5 hours plus tips
of approximately $35 per evening , which, he said, were
very good. Calculating Hazelet as having worked, an av-
erage, 10 days a month from January through August
1975, and earning therefore , an average $525 per month
($175 wages plus $350 tips) and $1575 per quarter for
each of the first two quarters, Hazelet's claim for the
first quarter ($699) is eliminated and his claim for the
second quarter ($2417) is reduced to $842.
Hazelet also testified that he was seriously injured on
the job working for a company called K Steel Erectors
on referral from Local 373 on or about 17 October 1976.
He was disabled for approximately 17 months, until the
second quarter of 1978. The General Counsel makes a
claim for Hazelet for the full fourth quarter in 1976. I
will reduce Hazelet's claim by half for the quarter , repre-
senting that portion during which he was unavailable for
work because of his injury . Half of the average gross
backpay of $2119 is $1 ,059.50, less District Council earn-
ings of $301, leaves Hazelet with an award of $759 for
that quarter . The amounts due to the funds will also be
modified accordingly.
Hazelet, like Barrett , did not have his own means of
transportation for most of the backpay period, but, as he
testified, he depended a lot on public transportation or
rides from coworkers he knew. There is no indication
that the absence of his own vehicle for more than 6
months at a time unduly restricted the job assignments
Hazelet was available to take.
For a period of 3 to 4 months in the late spring and
summer of 1978, Hazelet refrained from registering at the
Local 373 hall while spending the period in East Orange,
New Jersey . As he testified , he wasn't working, and was
living on money he had put away. On one occasion, Ha-
zelet signed up for work from the Newark local, but was
absent when called . I conclude Hazelet voluntarily re-
moved himself from the labor market for the third quar-
ter of 1978. I will reduce his claim accordingly, subtract-
ing $2850, the gross backpay , and distributing the $48
District Council earnings prorated to that quarter to
quarters 2 and 4, thereby reducing each of those quarters
by $24. I take this action in spite of the fact that after 3
May 1978,29 Hazelet's next signed the register on 22
September 1978, and was passed over once on 26 Sep-
tember by a member, Bob Ello who had been "request-
ed" but with no request letter for that event having been
produced by the Union. In this instance I find the evi-
dence of Hazelet's willful conduct has overcome the evi-
dence of the Union's liability which would normally
flow from application of the formula applied by the Gen-
eral Counsel in fixing both the backpay period and the
single act of discrimination entitling the claimant to a full
quarter's backpay.
Hazelet also testified to a drinking problem, describing
himself as a recovering alcoholic , which led , from time
to time, to his failing to appear at the hiring hall on oc-
casions he was marked absent . However, on the basis of
the lack of any evidence that Hazelet was unfit for duty
on the instances he was passed over during the 4 years
covering his backpay claim , and contrary to Respond-
ent's contention , I am not prepared to reduce or reject
Hazelet's claim other than as already noted.
C. Joseph Gavula
Gavula testified that although he signed the Local 373
register on six occasions from February to November in
1977 he was in such bad health throughout the year that
he would have been able only to work 1 or 2 days at
most if he got a little better. During this time Gavula
was receiving treatment monthly as an outpatient for a
tubercular condition at the Veteran's Hospital in East
Orange, New Jersey. Gavula had been confined to the
hospital for this condition in 1968. The condition re-
turned starting in January 1976. Gavula had $888 report-
ed earnings in 1976 and no earnings in 1977. Gavula's
weakened state of health continued in 1978 . On one or
two jobs to which he was assigned in that year after a
few days he told the foreman that he was not feeling
good and that he would get a replacement because he
was in poor health.
In the period from June to the end of August 1978,
Gavula did not seek employment in the ironworkers
trade while he tended to his garden at home because of
the heat and his poor health . Gavula's testimony during
the General Counsel's examination that he stayed away
from the hall each summer is contradicted by the com-
puter printouts of his registration history and is not cred-
ited.
While Gavula testified he had no earnings in the
fourth quarter of 1979, he did sign the register twice in
that quarter, early in October, before being bypassed
after the first signing , and is therefore entitled to back-
pay for each of the quarters . Gavula's testimony that he
was collecting unemployment then does not deprive him
of the application of the formula.
More troubling is the evidence that during 1976 to
1978 Gavula was available only for jobs of short dura-
tion and, in fact, he voluntarily cut short his employment
once or twice in 1978 for reasons of health . As against
this testimony , is the evidence of Gavula's having been
29 He was marked absent on 11 May 1978, following multiple pass-
overs on 4, 5, and 9 May
IRON WORKERS LOCAL 373 (BUILDING CONTRACTORS) 683
passed over multiple times , and many times , on average,
following each such passover . Applying the General
Counsel 's theory, it is impossible to determine how many
jobs of short duration Gavula would have received had
he not been discriminatorily bypassed. Further, many of
the jobs the contractors made available were relatively
short . Balancing the limitations which Gavula readily ad-
mitted , as against the wrongs he suffered each time a job
for which he was qualified and could perform with his
handicap was not offered to him, I conclude that Gavula
is entitled to the average earnings figure under the for-
mula. However, because of his withdrawal from the
labor market in the summer of 1978, I shall eliminate the
third quarter backpay claim, thereby reducing his entitle-
ment for that year by $2628.
D. Edward Farley
Farley testified that he is a recovering alcoholic and
that his condition was particularly bad in the period of
1975 to 1978 for which backpay is sought on his behalf.
Farley is one of the original Charging Parties. On the
basis of Farley's full testimony it appears that at least
part of the cause of his drinking problem was the way he
responded emotionally to the Union 's discriminatory
practices as it affected him. Farley described himself as
an experienced rod man with 27 years of work history in
the trade shaping out of various ironworkers halls. He
had never before experienced the disparate treatment by
which he was victimized by the Union 's agent on em-
ployment referral.
Farley claimed his referrals were invariably to 1-day
jobs while members received much longer term jobs.
Once when he complained to McCloud about his 1-day
assignment , McCloud replied "that's all there is." When
Farley asked why the guys behind and ahead of him
were getting 2 or 3 months, McCloud's response was
"well, you probably can't handle the job." Farley then
referred to an 8 month assignment he had received in
1974. McCloud told him "we go by the list, take the job
or don 't." On another occasion , when Farley saw his
name on the referral list had been skipped , McCloud told
him the referral had not been in his specialty , but it was
a rod job for which he was qualified. McCloud also told
him "well, you were never a foreman." Farley corrected
him, replying, "I was never appointed foreman ." Farley
then testified to his 27 years ' experience as an ironwork-
er, but never having been appointed foreman by the
Union . SO It was this attitude which led Farley to exclaim
he just stayed on unemployment for much of the fall in
1975. "I wasn 't being sent out of the hall, so I though
[sic] what is the sense of even putting my name down."
(Tr. 2416.) Farley submitted he had the qualifications to
do a lot of the jobs but was not referred.
Farley also testified to an instance of a member finish-
ing a job with him, but having signed the day they were
laid off and then not having been marked absent and
being referred out the following day.
30 Jensen had testified Farley shaped the hall too infrequently to be
considered for steward.
Farley testified to only one occasion when his drinking
led to his being terminated from a job , information he
discovered some time afterward.
I am prepared to credit Farley, and conclude that his
low earnings in the years in question , 1975, 1976, and the
2d quarter of 1977 were attributable to the discrimination
he suffered at the hands of the Local, not his own dis-
abilities or any negative reaction not justified by the fact
of the Union 's mistreatment of experienced nonmembers
such as himself. Accordingly , the Union 's arguments to
the contrary are rejected.
E. Michael Agresto
In September 1976, Agresto had a massive heart
attack. He believed it occurred on 27 September. He per-
formed no work thereafter until approximately 1 July
1978. The specification shows Agresto's District Council
earnings for 1976 as $1497 a quarter . Since Agresto was
not available for work in the fourth quarter of 1976 his
fourth quarter claim is eliminated and those quarterly
earnings must be prorated over the first third quarters,
resulting in District Council earnings of $1,196 for each
of those quarters . Inasmuch as average backpay was
$2,119 in each quarter of 1976, Agresto's revised adjust-
ed gross backpay and net backpay is $123 in each of
those quarters.
Agresto next signed the register on 26 June 1978 and
continued seeking work until mid-November 1978 when
he ceased working over the winter on doctor 's orders
and then shaped again from March to June 1979, got sick
in early June 1979 and did not return to work through
the balance of 1979 and into 1980, having triple bypass
open heart surgery performed in the interim period. In
view of this history the General Counsel was asked
whether it would not be more appropriate to prorate
Agresto's claim for the second quarter of 1978, starting it
on his return to the work force after an extended illness
exceeding a year, akin to the manner in which the Gen-
eral Counsel prorated first claims , starting on the date in
a quarter in which claimants were first bypassed during
the backpay period. The General Counsel reserved its re-
sponse but did not deal with the issue later at hearing or
in its brief. I conclude that it would be more appropriate
and consistent with the theory underlying the prorating
of the first claim, to prorate Agresto's second quarter,
1978 claim since , in his case, there is now evidence that
he was not available for work prior to 26 June 1978 be-
cause of his illness . Agresto's first passover took place on
26 June 1976. Therefore, his gross backpay for the
second quarter is 4/90 of $2850, the average gross back-
pay per quarter, or $127. Agresto had no District Coun-
cil earnings in the second quarter and therefore his net
backpay is $127 for the quarter.
Agresto had District Council earnings of $7640 in
1978 . He acknowledged that those earnings all took
place between July and November 1978. Prorating them
between the third and fourth quarters , results in such
earnings of $3820 in each quarter, exceeding quarterly
average gross backpay of $2850, and accordingly elimi-
nating any claims for Agresto in either the third or
fourth quarter.
684 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
In 1979, as noted , Agresto shaped from March to early
June , and only in this period . He was out of the labor
market on doctor's orders prior to March and was oper-
ated on and out of the labor market the balance of the
year and beyond. Therefore all of Agresto's District
Council earnings of $2832 were made in the first two
quarters and will be apportioned half to each quarter.
The average quarterly gross backpay is $3445. Deduct-
ing $1416 from that figure , leaves Agresto's adjusted
gross and net backpay at $2029 for each of these two
quarters.
F. Alexander Farkas Sr.
Farkas testified that he was 77 years old. In 1975 he
was 67. After earning $12,176 that year, his earnings
dropped severely to $488 in 1976, $284 in 1977 and 0 in
1978. His claim ends with the second quarter of 1978. In
1973 when he was 65, Farkas started tending bar on a
part-time basis at the Canteen in Perth Amboy. By 1976
he accepted an offer from the owner to bartend full time
when he was getting little work out of the union hiring
hall. On occasion , the owner would give Farkas a day or
two off to rest and he would take the opportunity to sign
the register and seek work out of the hall for 1 day only,
voluntarily leaving the job if it went longer . In essence,
Farkas had retired from full-time ironwork and because
of his age and a prior heart attack he was taking it easy,
working full time at the bar and supplementing that
income with a few days working his old trade. If he
could not handle the job , for example a job calling for
bending heavy bars, he would not accept the referral.
His salary tending bar was maybe $125 a week plus tips
which average $10 or $15 a week.
I conclude that the conditions Farkas placed on his re-
ferral starting in 1976, limiting the type of job he would
perform, and working only 1 day at a time when he
could take limited time from his regular job, removes
him from the class of similarly situated nonmember iron-
workers established by the Board in this case who did
not place such special circumstances and needs on their
referral. See Iron Workers Local 373, 232 NLRB 504, 517
(1977). Furthermore, Farkas' interim earnings at the bar,
which averaged $ 1800 a quarter, when coupled with his
District Council earnings of $ 122 a quarter in 1976 and
$71 a quarter in 1978, left him with net backpay of $197
a quarter in 1977 and $131 a quarter in 1978 . 31 However,
Farkas' voluntary quitting of jobs to which he was re-
ferred after 1 day in each year should result in reducing
those sums to 0 in 1976 and 1977, the inference being
warranted that Farkas , as a result of union referrals,
would have earned at least the net backpay amounts in
each quarter but for his voluntary quitting to return to
his regular employment . At the least Farkas' disclosures
shifted and now placed the burden on the General Coun-
sel to adduce evidence as to each job to which Farkas
was referred to establish that they had only a 1-day term
and no such evidence was forthcoming . Accordingly,
91 In 1978 , Farkas had no District Council earnings for the two quar-
ters in which he sought union referrals . I rely on dismissing Farkas' claim
for that year on the narrow restrictions he placed on his employability
through the union hall.
and as Farkas had no claim for 1975, his District Council
earnings exceeding the average gross backpay for the
first three quarters in which he shaped, I recommend
Farkas' claim be dismissed.
G. Donald Boe
The specification lists no interim earnings for Boe for
1975. The first passover of Boe took place on 20 January
1975 so his backpay would commence to run from that
date . Boe testified and produced copies of his Federal
and nonresident New York State income tax returns for
1975 showing a gross income of $8815 supported by
three W-2 forms from three employers who each with-
held New York State income taxes . These jobs Boe ob-
tained from shaping the Local 480, Iron Workers hiring
hall. Deducting prorated interim earnings for 68 days in
the 1st quarter, of $1662 and for the next two quarters of
$2201 each, Boe's net backpay now becomes $273, in the
first quarter, and $359 in each of the second and third
quarters . No claim is asserted for the fourth quarter.
Although Respondent counsel in his brief sought to
create the impression that Boe was an itinerant who only
shaped the Local 373 hall on the occasions when he
could not get work out of New York or elsewhere and
did not wait long for work, the records of his passovers,
most of which were multiple, show a majority in 1975
and 1976 took place on the very day or day after Boe
registered at the Local 373 hall.
Boe's only other claim was for the second , third, and
fourth quarters of 1976. Boe produced a copy of his Fed-
eral income tax return and W -2 statements showing
$10,917.12 in wages . He was unable to pin down the pre-
cise months or quarters in which he worked for the
named employers . Prorating these earnings over the four
quarters, his earnings of $2729 per quarter exceed the av-
erage gross backpay per quarter of $2119 leaving him
with no net backpay.32
H. Robert Burke
Burke testified that in 1976 and 1977 he earned $ 18,000
or $19,000 each year as a truckdriver , shaping for St.
Johnsbury and First National Stores in South Kearney,
New Jersey . In those years he also shaped the Local 373
hiring hall in the third quarter each year, but had no
earnings recorded at the District Council . In 1978 Burke
testified he earned $23,000 mostly from truckdriving for
St. Johnsbury and First National Stores, with limited
ironwork. Likewise, in 1979, Burke earned $23,000 to
$24,000 truckdriving . In 1975, Burke made $3956 from
ironwork, shaping the Local 373 hall, but also earned
38 It appeared that part of Boe 's earnings were as the result of a refer-
ral or referrals out of the Local 373 hiring hall and thus should have been
reflected in District Council earnings . District Council records show only
$124 in earnings for Boe in 1976 , clearly an erroneous figure Such
errors, and this was not the first , make it imperative that personal inter-
views be conducted and documents be produced if possible , on notice to
Local 373 representative , before any backpay monies are distributed. I
will not make Boe's discovered earnings the basis for revising the aver-
age gross backpay figures . Such a major change would be totally unwar-
ranted.
IRON WORKERS LOCAL 373 (BUILDING CONTRACTORS)
close to $20,000 truckdriving . Burke also shaped Local
11 in Newark that year.
I credit Burke's testimony as to the amounts and
source of his earnings outside the ironwork trade in the
absence of any income tax returns or other documenta-
tion . Burke stated the figures he gave were the best
recollection of his earnings in those years . Burke did
have in his possession a copy of his 1978 tax return
which showed combined earnings with his wife of
$23,336, $5000, or $6000 of which were attributable to
his wife . Thus, Burke's estimate of $23,000 earned in
1978, resulting from approximately $ 18,000 to $19,000
from driving and $2468 from District Council records is
not far off the mark . Burke was also firm in his recollec-
tion that he was always close to $20 ,000 in earnings per
year and that his earnings seemed to increase after he left
the trade full time . These earnings in each year spread
over the entire year even discounted by $5000 to $9000
earned by his wife in each year, applied prorata to the
quarters claimed in each of the 4 years, exceed the ad-
justed gross backpay claimed in each quarter , and thus
eliminate Burke from sharing in any award.
I. Frank J. Brown
In 1979, Brown shaped out of the Local 373 hall in the
early part of the year, but by April had gone to Trenton,
where he was assigned to a job out of the Iron Worker
local there which continued for the balance of the year
and earned him over $22,000 . Brown believed he had
four to five jobs in Perth Amboy in early 1979 which
provided him with just under $ 1400, to April. His Dis-
trict Council earnings record shows $808 for the year. I
will accept that figure . His 1979 tax return shows income
of $23,322 . 15 for the year . This testimony eliminates any
claim for Brown for the second quarter of 1979 and re-
duces his first quarter claim , based on $808 of earnings in
that quarter to $2637.
For 1978 Brown produced a copy of his 1978 Federal
tax return with accompanying W-2 Wage and Tax State-
ments showing gross District Council wages of $8466,33
plus interm earnings of $2031. Prorating the District
Council earnings into four quarters ($2014 a quarter) re-
vises Brown 's adjusted gross backpay to $836 per quarter
(on gross backpay of $2850 per quarter). Brown testified
the interim earnings of $2031 were made in September to
October, in early fall, doing welding under a Govern-
ment contract for Astro Pak Corporation. Prorating
these earnings between the third and fourth quarters,
$1016 in each quarter , eliminates any claim for these
quarters , leaving Brown with net backpay of $836 in
each of the first and second quarters.
In 1977, Brown had earnings of $6000, partly from in-
terim employment for employers not members of the
District Council . Gross backpay is $2002 each quarter.
As a consequence , and dividing these earnings on a pror-
ata basis , $ 1500 equally into each of the four quarters,
Brown 's net backpay is reduced to $502 per quarter.
99 A District Council Annuity Fund form W-2P shows contributions
of $2480. 16. This does not constitute earnings over and above the total of
the other W-2 statements Brown described the sum as a default on a loan
he had made to finance a daughter 's college education.
685
In 1976, Brown's earnings totaled $5237, again an un-
known part of which was earned outside the District
Council. Dividing these earnings into $1309 in each of
the four quarters , reduces Brown's net backpay to $810
per quarter . Brown's District Council earnings included
in the specification exceeded his gross backpay in 1975,
eliminating any claim in that year.
Respondent argues in its brief that Brown shaped out
of the Trenton local part of the time and that his many
absences manifest a voluntary absenteeism disqualifying
him from any recovery. To the contrary, Brown's efforts
to seek work out of the Trenton local when none was
available out of Perth Amboy shows an effort to seek in-
terim work and thus mitigate his claim . Respondent
counsel, p . 24 of its brief, quotes Brown as saying that
when he missed a job by being absent when called (most
likely by seeking work out of the Trenton local hall) and
knew he would have to wait two or three weeks to get
another day, he sometimes walked away and had a drink
because he could not stand it. (Tr. 2956.) But Brown ex-
plained in detail when examined by the General Counsel
his practice of signing in at 7 a .m. and waiting at the
Local 373 hall the whole referral period that day and the
next for a referral that never came . Brown explained
"sometimes I got pretty angry . I walked out the door.
... You would see what was going on. I didn't like the
appearance of it." (Tr. 2961.) Brown was an ironworker
for 33 years, was a certified welder, could do sheeting,
all other phases of work including structural, rods, rein-
forcing, mesh , and rigging34 and yet was never referred
out as a foreman or ever given a reason why he was not
in all the years he shaped the Local 373 hall . Brown was
referred out as a steward by the Union a number of
times each year over the backpay period , yet Business
Agent Jensen testified unaccountably that he, Brown, ba-
sically confined himself to welding on structural jobs and
he, Jensen might only consider Brown qualified as a
steward on a small structural job but not on anything
large or any other type of work.
J. Patrick McGee
In 1979, McGee had earnings of $12,174. The only
evidence breaking down these earnings by quarters is
that McGee finished a year's job with the road depart-
ment of the Township of Middletown , New Jersey, earn-
ing $407 . 38 in January and also worked on a job as iron-
worker outside the District Council jurisdiction , January
to February , earning $1582. Those combined earnings of
$1989 are therefore attributable to the first quarter. The
balance of $10,185, shall be distributed , $3395 to each of
the first three quarters, since as noted by the Union in its
brief and as confirmed by the computer printout in evi-
dence documenting McGee's registration and referral
history, he did not register for work from Local 373 in
the fourth quarter . Thus, McGee's earnings , of $5384 in
quarter one exceeds the gross backpay, of $3445, for the
94 Brown listed himself on the Local 373 register as qualified in almost
all phases of the ironworkers trade His 8 March 1976, listing includes
welding, burning structural , certified welding, rigging , and rods. Later
registrations in 1976 and 1977 show him qualified in certified welding,
rigging , structural , and rods.
686 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
quarter . In each of the second and third quarters, McGee
is entitled to $50.
In 1978, McGee, as noted, worked a full year for the
Township of Middletown, earning $7985, but shaped the
Local 373 hall twice, once in each of the third and
fourth quarters . I do not agree with Respondent counsel
that he was unavailable for work on those occasions and
will recommend backpay of $854 in each of those quar-
ters, derived by taking the difference between his quar-
terly interim earnings of $1946 and the gross backpay
figure of $2850 per quarter.
Contrary to the impression union counsel sought to
portray of a witness not very interested in seeking iron-
work through the union hall, McGee came across as a
qualified ironworker who probably felt under some pres-
sure to avoid arousing the displeasure of the Union's
leadership which was confirmed by union counsel repre-
senting McGee as having executed an affidavit seeking to
withdraw from the proceeding . On the basis of my anal-
ysis of his demeanor and his responses to questions
during the General Counsel 's examination, I am satisfied
that when McGee registered for work he stayed in the
hall and sought referrals from the Local to ironworker
jobs . I therefore will not disturb the claim made on his
behalf for 1975, 1976, and 1977 set forth in the specifica-
tion.
K. William McClelland
McClelland was asked by union counsel why he was
marked absent in the union referral book when his name
was called on a series of occasions from August 1975 to
March 1976. McClelland replied the work was so slow
during that time that the hall would be so full of men,
they had to stand outside and couldn 't get in to the hall.
At least twice his name was called before he could get in
to the counter and let the union agent know he was
present, and by the time he did another man had already
been sent out in his place and he was marked absent. The
shaping hall was 20 by 25 feet and 300 men would be
waiting to be referred at the time . McClelland learned
his name had been called when someone yelled out his
name outside the hall. The only recourse was to resign
the book . I credit McClelland 's explanation.
On other occasions during this period when finally
called McClelland may have been working for Southern
Machinery , a company with a location in Atlanta, Geor-
gia, where his brother was its superintendent . McClel-
land called his brother when he could not get any work
by shaping Local 373 and was invited down for a couple
weeks of work at a time . McClelland also shaped an
ironworker local hall in Chattanooga, Tennessee, near
his mother's residence . McClelland's practice in 1975 to
1977 was to sign the Local 373 referral book, report
daily for 2 or 3 weeks, and if he still could not get a re-
ferral, visit either his brother or mother to get work.
During the 2- to 3-week period McClelland often also
waited for late calls . McClelland was also appointed
steward on certain smaller jobs , at times by the business
agent, but on other occasions by vote of the men on the
job who turned to him as most senior man on the job.
During McClelland 's examination , union counsel made
references to records of McClelland 's earnings , referred
to once as social security records (Tr. 2381 -2382), and
quoted a precise figure of $3070 earned in the third and
fourth quarters of 1975. Counsel did not offer into evi-
dence any record of these earning . It may be that
McClelland's from work performed for Southern Ma-
chinery were reported to the District Council because of
the Employer 's contractual arrangement with the Union.
In any event , the record contains only District Council
earnings in the years 1975 and 1976. They total $3696 in
1975 and $1924 in 1976. Without probative evidence I
cannot take into account the $3070 figure to which coun-
sel made reference . In this instance , Respondent, who
has the burden of establishing interim earnings , failed to
do so.
Beginning in the last quarter of 1977 and continuing
through 1978 and June 1979, McClelland worked steady
for a company, T.B.A., away from his home area. There
are no claims for this period during which McClelland
did not shape the Local 373 hall. McClelland first re-
signed the union register on 9 July 1979 . Thus all of his
District Council earnings of $7432 were earned in the
third and fourth quarters, contrary to the General Coun-
sel's specification , which prorated the earnings over the
four quarters . As a consequence McClelland 's earnings
exceeded the gross backpay of $3445 for each of these
quarters and the claim for 1979 shall be dismissed.
L. John Krusis
Krusis is one of the original charging parties in the
proceeding . He is also one of the claimant who became a
member of Local 373 during the course of the proceed-
ing, in his case in the third quarter of 1978. Accordingly,
Krusis' claim ceased after that quarter.
The Union asserts that Krusis' registration record is
typical of the claimants who, after signing the referral
register, were marked absent many times when their
names were finally called . A review of his signing histo-
ry (G.C. Exh. 348), shows that in many instances Krusis
was immediately , the same day , or almost immediately,
the following day, and for a series of successive days
thereafter , bypassed enumerable times by union members
for a variety of reasons which the Board during the
period of the underlying case, and which I have now
concluded , in the subsequent period, were pretextual or
sham . Thus, it matters little or not at all, that Krusis was
not present when he was finally called for referral any-
where from 2 weeks to, in one instance, 6 weeks thereaf-
ter. As I have earlier noted , once the discriminatory ac-
tions were taken, and in such a continuous and massive
pattern , there is no warrant for conditioning recovery by
Krusis and the others like him on the requirement that
he remain continually in the hall in an exercise in futility
until all union members have been referred and only
nonmembers like Krusis remain for whatever jobs are
then available. Krusis is entitled to the claim asserted on
his behalf as remedy for this widespread and pervasive
history of violations by the Union in the operation of its
exclusive referral system.
IRON WORKERS LOCAL 373 (BUILDING CONTRACTORS)
M. William Wardell
Wardell 's backpay period commenced on 8 August
1977 after he had reinstated his union membership. Prior
to that time he had been totally disabled . His earnings
after that date were $401 in the third quarter, and $940
in the fourth . Thus, his net backpay, based on a gross
backpay of $ 1201 in the third and $2002 in the fourth,
are reduced to $800 and $ 1062, respectively.
In 1978 Wardell 's earnings included $ 1943 interim
earnings made from a job performed for Karl Koch
Erecting Co., Inc . in Carteret , New Jersey , to which he
was not referred by Local 373, in the first quarter. War-
dell's District Council earnings , prorated , are $1395 a
quarter . Wardell's first quarter claim is eliminated since
his interim and District Council earnings exceed the
$2850 gross backpay . His third and fourth quarters net
backpay is reduced to $1455 in each quarter.
In 1979, Wardell earned $8504, $990 of which was
earned on a non-Local 373 job performed for John F.
Beasley Co. in Newport News, Virginia. Wardell's testi-
mony about extra expenses incurred on his travels to and
from Virginia and related to his stay there were totally
confusing and unreliable . Suffice it to say that legitimate
extra expenses would have reduced these earnings by at
least $500, figuring $250 per week for a 2-week job, in-
cluding travel , leaving Wardell with net earnings of
$490. Wardell worked in Virginia in June and July, so
half will be prorated to each of the second and third
quarters . Wardell 's revised net backpay is thus $1566 in
the first quarter and $ 1321 in each of the second and
third quarters . There is no claim in the fourth quarter.
At the hearing, on motion made by the General Coun-
sel, the names of two other claimants , Frank Catalano
and Rich Dalinski , were deleted because those names
were misspellings and therefore duplicative, of the
proper names of two claimants , Frank Catalfamo and
Richard Dazinski, whose claims remain in the proceed-
ing. In its brief, the General Counsel moves to delete the
claims of two additional named claimants , Robert Ca-
kowski and John Zack, whose signatures showed them
to be backpay claimants Robert Czajkowski and John
Zactansky . The General Counsel also moves to delete
the name of Robert Ello as a claimant since he was a
member of Respondent at all times material . These mo-
tions are granted.
The General Counsel also appended amended backpay
claims on behalf of Czajkowski and Zactansky to reflect
corrections as a consequence of the name confusions. An
amended claim was also submitted on behalf of Joseph
Palus, reflecting a substitution of this claimant in place of
Anthony Palus and a substantially revised and reduced
claim in conformity with the General Counsel 's represen-
tation made on the record . Tr. 1433- 1436. These three
amended claims shall be received in evidence and phys-
cially substituted for the prior claims, General Counsel's
Exhibit 1, Appendices E-125, E-625, and E-451, respec-
tively.
An issue has arisen involving claimant and named
Charging Party Frank O'Neill. Adminstraitve Law
Judge Ricci found that O'Neill and one other ironwork-
er, a claimant in the consolidated case against Iron
Workers Local 45 , had at times worked as ironworkers
687
under other assumed names . Judge Ricci reported: "The
reason for such activity , the timing , the relationship be-
tween that and the referrals and the discriminations
shown here, does not appear." Iron Workers Local 373,
232 NLRB 504, 517. Judge Ricci concluded this conduct
did not relieve Respondent of responsibility for discrimi-
nating against O'Neill on referrals . In its Decision and
Order , the Board affirmed Judge Ricci's ruling refusing
to strike O'Neill 's testimony on the ground that his invo-
cation of the constitutional privilege against self -incrimi-
nation effectively deprived it of its right to cross-examine
him. Apparently , although it is not completely clear
since Respondent did not refer me to, or produce, those
portions of the transcript relevant to its contention,
O'Neill invoked the privilege when pressed by union
counsel as to the name he used and the occasions he was
referred under the assumed name . The Board concluded
that since the cross-examination of the witness related
primarily to matters relevant to backpay proceedings, it
was proper for Judge Ricci to have refused to strike
O'Neill 's testimony.
Subsequent to close of the underlying proceeding, and
prior to commencement of hearing in this supplementory
proceeding O'Neill died . Since O'Neill's claim terminates
with the fourth quarter of 1978, in which full claim is
made, O'Neill passed away sometime between 1 January
1979 and commencement of this hearing on 3 December
1984, although the precise date is uncertain.
The issue having been raised and Respondent thus
having been acutely made aware and , indeed , placed on
notice, that certain matters regarding possible mitigation
of O'Neill 's claim remained to be resolved , and Respond-
ent having the burden of establishing willfull loss of
earnings or other defenses to the recovery sought in the
subsequent backpay proceeding , I conclude it was the
Respondent's obligation to invoke the provisions of Sec-
tion 102 .31(c) of the Board 's Rules and Regulations in
anticipation that O'Neill , having already done so, would
likely refuse to testify in reliance on his privilege. That
section authorizes the Board , on application of any party,
with the approval of the Attorney General , to compel
testimony of any individual who has invoked or is likely
to invoke the privilege . Such an application, made
timely, may have resulted here in a grant of immunity to
O'Neill and the preservation of his testimony by deposi-
tion before his death . Respondent neither invoked that
procedure nor did it bring to my attention the precise
testimony and circumstances which led to O'Neill 's reli-
ance on the privilege . Neither did Respondent seek to
adduce any evidence which might have established the
name used or the jobs in which O'Neill assumed an alias.
In all these circumstances I am unwilling to deny a claim
for liability legitimately established because O'Neill's
death has now foreclosed the possibility of establishing
certain mitigating facts from his own mouth. I recom-
mend that O'Neill 's claim be affirmed by the Board.
I also conclude that Leon Adler and Philip Mundy,
charging parties in Iron Workers Local 373 , 235 NLRB
232, both fall within the classification of "other as yet
unidentified discriminatees " found in Iron Workers Local
373, 232 NLRB 504, entitling them to the backpay from
688 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the 10(b) period applicable in the prior proceeding, as set
forth in the claims in the specification applicable to
them. See General Counsel's Exhibit 1, Appendices E-
001 and E-417, respectively.
Hearing commenced on 3 December 1984, and contin-
ued on 17-20 December 1984, and 11-13, 20-22, and 26-
28 February and 6 March 1985, and closed on 22 Febru-
ary 1986. Near the end of hearing held on 6 March 1985,
at which Respondent rested its defense , the General
Counsel reported having reached an agreement in princi-
ple with Respondent regarding a settlement , which Re-
spondent counsel then confirmed . The terms of a pro-
posed formal settlement were then described in some
detail . As a consequence of these disclosures hearing was
adjourned to a date some months hence, subject to can-
cellation on prior advice that problems were being en-
countered in meeting that date for submission of the
agreement . Utimately, although precise terms of a pro-
posed formal settlement stipulation were negotiated, pre-
pared and executed by Respondent and counsel for the
General Counsel over a considerable period of time,
during which period the rescheduled hearing was ad-
journed from time to time, it was never offered to me for
my recommended approval for submission to the Board
because of the General Counsel 's refusal to finally agree
to its terms based in part on objections raised by the
named Charging Parties and their counsel . These matters
were discussed and clarified at an informal conference
conducted with the parties , their counsel and others, in-
cluding the executive director of the District Council
Funds and its counsel on 26 December 1985 . The sum-
mary of these events have been reported here because
they account for the considerable passage of time be-
tween 6 March 1985 and the final day of hearing held on
22 February 1986. On that date, the hearing concluded,
the record was closed , and a briefing schedule was set.
Responsive briefs were scheduled with the assent of
counsel . The General Counsel filed a brief first on 23
June 1986, to which Respondent responded , following a
number of adjournments, on 14 October 1986. The
Charging Parties have not filed a brief.
V. ARGUMENTS RAISED IN THE BRIEFS
As noted earlier, the Supreme Court left open on its
review and reversal of the court of appeals determination
eliminating the class, the issue as to whether the inclu-
sion of the group of similarly situated employee claim-
ants and the award sought herein , would render the pro-
ceeding punitive in nature and therefore unenforceable.
Respondent claims that the Board 's procedure was puni-
tive from its failure to secure any interim earnings infor-
mation to its use of a formula which compensates irregu-
lar users under the same standard as regular registrants
and regardless of the time in the quarter when the regis-
tration took place and even though many claimants were
absent when called for referral. I have previously re-
sponded to each of these points separately , rejecting each
of them but noting that as to the absence of any interim-
earning or other information with regard to the over-
whelming number of claimants , the Board's procedures
on disbursements which I have recommended be fol-
lowed here, will serve to protect against receipt of wind-
fall amounts by any claimants and prevent the awards
from being unrelated to the nature and degree of loss
suffered by individuals claimants . I deem it necessary to
repeat here that it was only the Respondent 's massive
and long standing discriminatory conduct which com-
pelled the Judges and Board to respond with a formula
and to apply its terms to all those who suffered discrimi-
nation at the hands of the Union . In doing so, I cannot
conclude that the Government 's effort oversteps the
bounds of its remedial mandate described in the language
of Section 10(c) of the Act, once it has concluded that a
person has engaged in an unfair labor practice and issued
an order "requiring such person to cease and desist from
such unfair labor practice , and to take such affirmative
action , including reinstatement of employees with or
without backpay, as will effectuate the policies of the
Act." This language has been long interpreted by the Su-
preme Court as providing the Board with broad discre-
tion in fashioning the backpay remedy , and its order
cannot be disturbed "unless it can be shown that the
order is a patent attempt to achieve ends other than
those which can fairly be said to effectuate the policies
of the Act." Fibreboard Paper Products Corp. v. NLRB,
379 U.S. 203, 216 (1964) (quoting Virginia Elec. & Power
Co. v. NLRB, 319 U.S. 533, 540 (1943)). The Board's dis-
cretion extends to what method should be used in calcu-
lating the backpay award. See Bagel Bakers Council of
Greater New York v. NLRB, 555 F.2d 304, 305 (2d Cir.
1977). It is required only to adopt a formula which will
give a close approximation of the amount due. See
NLRB v. Brown & Root, Inc., 311 F.2d 447, 452 (8th Cir.
1963); it need not find the exact amount due. I conclude
that the Board 's broad area of discretion has not been
abused here by its choice of remedy and its application
to all ironworker registrants , irregular or regular, who
suffered on any occasion from the Union 's flagrant and
widespread pattern of continuing discrimination.
Unlike Republic Steel Corp. v. NLRB, 311 U.S. 7
(1940), cited by Respondent in support of its argument,
none of the payments required here, are to be made to
governmental agencies or to any persons other than
those who were the targets of the Union's flagrant coer-
cive activity-the employees, who being members of the
Union 's sister locals , were nonetheless unfairly bypassed
time and again in their efforts to secure job assignments
from the only source available to them in their trade
within the Union 's jurisdiction.
Respondent also cites the cost of the award , which it
estimates at $10 million, as alone sufficient to render the
specification unenforceable . However, neither case Re-
spondent cites for this proposition involved discriminato-
ry conduct under Section 8(a)(3) or 8(b)(2) of the Act,
but rather these are cases where employers violated their
bargaining obligation under Section 8(a)(5). Thus, in
NLRB v. Dent, 534 F.2d 844 (9th Cir. 1976), the court
refused to enforce that portion of the Board 's order
which required the employer to restore wage rates of
unit employees unilaterally reduced until the parties
reached agreement , reached a bargaining impasse, or the
union lost an election also required by the order. The
court, in concluding that this portion of the order acted
IRON WORKERS LOCAL 373 (BUILDING CONTRACTORS)
as a penalty , expressed concern that the employer, as
successor , would be compelled to pay rates which it
would not have agreed to and where it would not in law
have been bound by its predecessor 's contract. These
facts and analysis are far removed from the situation
faced by the hundreds of claimants and the Union here.
Similarly, in Carpenter Sprinkler Corp. v. NLRB, 605
F.2d 60 (2d Cir . 1979), the court agreed with the re-
spondent employer with a history of good labor relations
who had violated its bargaining duty under the Act by
making unilateral reductions in wage rates absent an im-
passe, that the portion of the Board 's order requiring it
to return all wages and benefit level to the status quo
ante, to make retroactive payments to the union funds,
and make restitution to strike replacements as well as
striking employees , was not warranted . Aside from the
fact that the reviewing courts here have sustained the
class of similarly situated employees and the Board's
basic gross backpay formula, the Union 's discriminatory
intent and use of fabrications on a massive scale in fur-
therance of its power to favor its own members is a far
cry from the context in Carpenter Sprinkler Corp., when
the court weighed 20 years of good relations with the
union in concluding that these portions of the Board's
Order would financially cripple a small employer in an
economically depressed region . Contrary to Respondent,
Carpenter Sprinkler Corp., does not demonstrate that the
cost of the award alone, without examination of all the
factors surrounding and relevant to the conduct of the
Respondent which led to the Board 's selection of an ap-
propriate measure of relief, is sufficient to render a
remedy punitive.
Nothing said by the court , and quoted by the Union at
28 of its brief, in Plumbers v. NLRB, 747 F.2d 326 (5th
Cir. 1984), leads me to conclude that the awards I have
approved in this case should be set aside because the
Union is or may be unable to pay the bill. In each in-
stance, the Government has made a careful analysis of
the referral history of each individual who was denied
referral in proper order solely because of his nonmem-
bership in Local 373, supplemented this analysis with a
statistical study showing the continued wide disparity in
referrals favoring members in all of the excepted catego-
ries under the consent decree and applied the average
gross backpay formula approved by the Board and
Court . That the awards extend over a 5-year period is
solely due to the Union 's continued illegal operation of
the hiring hall and its failure to adopt corrective meas-
ures even during the 2- to 3-year period from September
1977 and March 197895 to December 1979, during which
time it was on notice by virtue of Board Decisions and
Orders in the two companion cases, that its hiring hall
practices were deeply tainted and flawed . Thus, the
Union has only itself to blame that awards for individual
claimants are large or continue for a 3- to 5 -year period.
Surely, only a remedy sufficient in scope and breadth to
reach each illegal act and provide relief to each discr-
minatee for each such act can serve to eradicate a system
ss Of course, the ALJ decisions date from an even earlier time, Sep-
tember 1976 and July 1977, respectively.
689
so pervasive in its coercive effect and impact on qualified
ironworker applicants for referral through the union hall.
The Union also contends that the Board , not having
specifically authorized in these cases that relief be pro-
vided for all discriminatory conduct continuing beyond
the close of hearing, is thereby foreclosed on grounds of
elemental due process from seeking awards beyond those
times . I reject this argument . First, the Union is incorrect
in viewing the language of the make whole remedy as so
restrictive . The language used in both cases provides
make whole relief for all discriminatees (named and simi-
larly situated) who sought employment opportunities
"during the relevant period ." There is nothing which in-
dicates that the relevant period is limited to the period
covered by the hearing . To the contrary, there is evi-
dence from other relief provided that the Board was
concerned about the Union's future conduct and the
Union was surely aware of this fact . The Board made
certain recordkeeping , report filing, and register inspec-
tion requirements which extend up to 2 years beyond the
Decision and Order , the last of which is dated 20 March
1978. Leaving the identity of similarly situated non-
member applicants to future determination at the compli-
ance stage meant the Union's conduct vis-a-vis non-
member applicants would be weighed over a consider-
able period of time . Most persuasive as to Board intent
and union understanding of it, is the reiteration by the
Board of it conclusion that the consistent pattern of dis-
crimination warranted measures , including providing
relief to a whole class of applicants for jobs, which
would serve to remedy the violations for the future. The
Board's selection of remedy would be meaningless if it
could be arbitrarily terminated at the time the hearing
closed and not when the Respondent 's discriminatory
conduct ended.
NLRB v. Operating Engineers , 460 F.2d 589 (5th Cir.
1972), cited by Respondent , does not lead to any differ-
ent conclusion . Contrary to the instant proceeding, in
Operating Engineers, the discriminatory acts were com-
mitted against a single union member , and whether dis-
crimination continued against him on certain specific
dates were the subject of a series of charges and earlier
settlement agreements which were subsequently set aside.
The Union was never placed on notice , as it was here
under a completely different set of circumstances, that
any Union conduct subsequent to certain specificed
dates, was the result of unfair labor practices and thus
formed a basis for seeking backpay. The Board sought to
cure those deficiencies by amending its prior order to
permit the General Counsel to seek backpay during an
expanded period only if discriminatory refusals to refer
the discriminatee were proven . The Court permitted the
expansion of the backpay period by such means because
the Union had adequate notice of the claims and they
were litigated over a considerable period of time. Here,
there is no reason for the Board to amend its order to
seek continuing relief, although it may choose to do so,
see Stevens Ford, Inc., 271 NLRB 628 (1984), because the
Respondent , by virtue of the Board 's Decisions and
Orders, is already on notice that remedy for continuing
690 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and future violations is already being sought and will be
required. 3 6
A separate argument was made by Respondent in its
brief that the backpay claims are unenforceable because
arbitrary in nature . Respondent cited NLRB v. Iron
Workers Local 378, 532 F.2d 1241 (9th Cir. 1976), in sup-
port of its contention . In Iron Workers Local 378 the
court rejected the Board 's use of the "representative em-
ployee" formula to determine what the discriminatee
would have earned but for the discrimination . The court
rejected use of the formula because the men chosen as
representative were the most steadily employed iron-
workers and not representative of the discriminatee, an
ordinary ironworker, and, further, because in an industry
where employment is intermittent , intermittency was not
taken into account.
As to the use of representative employees , the court's
criticism would not have the same weight or validity
here because, rather than dealing with one claimant, we
are here dealing with more than 500, with all the variety
in registrations and skill designations that implies. With
such a vast, heterogenous , albeit similarly situated group-
ing, the administrative law judge's and Board 's use of av-
erage earnings to determine gross backpay was eminently
reasonable and would not unfairly skew the result. Also,
by virtue of the use of the average earnings of all users
of the hall, intermittency was certainly taken into ac-
count in the instant proceeding, particularly since, unlike
the formula as applied in straight production work, low
and high earners were not excluded . See fn . 24, supra.
The Board's use of the average earnings formula is well
within its broad discretion in selecting a backpay formula
appropriate to the circumstances of a particular case.
NLRB v. Carpenters Local 180, 433 F.2d 934 (9th Cir.
1970). That the award in many instances may only be a
close approximation of the actual loss is sufficient so long
as the formula is reasonably designed to produce that ap-
proximation . See NLRB v. Brown & Root, Inc., 311 F.2d
447, 452 (8th Cir. 1963). Finally, Respondent , having
failed to offer an alternate formula in detail with applica-
tion to each claimant, as required by the Board 's Rules
and Regulations, is in no position to complain about the
formula in its posthearing brief.
In any event, Respondent 's proposal of a graduated
backpay formula that confers incremental awards as a
function of registration frequency per quarter fails to
take into account the demoralization suffered by discri-
minatees . Moreover , the purpose of the proceeding is to
make the discriminatees whole and reimburse them for
their lost work opportunities ; the number of incidents of
discrimination per quarter is thus irrelevant on the fact of
discrimination and the entitlement to a quarterly award.
The infrequency of registration may be relevant to the
extent it may reflect on lack of efforts to seek work and
incur willfull idleness during the backpay period. Only
86 Under Board law, the Respondent 's obligation continues until the
Respondent fully complies with the Board 's Order in the underlying
unfair labor practice case . See Amshu Associates, 234 NLRB 791, 797
(1978); Stevens Ford, Inc., cited supra . Indeed , the General Counsel in the
specification has specifically noted that the present claim , to 31 Decem-
ber 1979 , does not foreclose the possibility of another proceeding seeking
awards subsequent thereto.
when the claimants are interviewed as called for by the
final order can those issues be finally determined.
Respondent also argues in its brief that the record does
not support any recovery to the pension of welfare
funds . As I have noted earlier I will recommend that no
contributions be required to be made to the District
Council Welfare Fund . I do so because the General
Counsel has not provided any evidence of any losses to
any claimant because of lack of coverage under this
health fund . Indeed , Burke admitted receiving no infor-
mation from any claimant that he had lost or was denied
coverage . Under such circumstances , as the Board has
held in refusing to modify an administrative law judge's
recommended backpay award to require Respondent to
make payments to health funds for medical claims the
funds paid for some discriminatees , "we do not consider
it customary for the Board to order that payments be
made to health funds as part of a make -whole remedy for
individual discriminatees when the individuals have not
sustained a loss because of lack of coverage by the
funds." P & F Industries, 267 NLRB 650 fn. 3 (1983). I
follow that rationale here.
With respect to the pension fund , from everything that
appears, the covered employees have individual accounts
and their ultimate benefit is determined by the level and
amount of contributions made on their behalf by employ-
ers signatory to the collective-bargaining agreement.
While there was no testimony about loss of pension cred-
its, it would appear to be axiomatic that to the extent the
claimants illegally lost work opportunities they lost cred-
its to their pension accounts based on the failure of em-
ployers for whom they would have worked but for the
discrimination to have made contributions to the fund on
their behalf, and the make whole remedy covers such
benefits . See Philander Smith College, 246 NLRB 499
(1979). The same holds true for the Vacation and Annu-
ity Funds . It is also clear that Respondent, in its answer,
did not assert any defense to the claim for contributions
to the various funds made in the specification , other than
to dispute the backpay figure on which the contributions,
as a percentage , were calculated . See paragraph 11 of the
answer . Accordingly, I reject Respondent's attack on the
requirement that payments be made on behalf of the
claimants to the pension fund, among the other funds.
Inasmuch as the General Counsel has failed to request,
or offer any evidence in support of a claim for, addition-
al amounts to be paid to the three funds-vacation, annu-
ity and pension-in order to satisfy the Board 's "make-
whole" remedy in accordance with Merryweather Optical
Co., 240 NLRB 1213 (1979), I will provide for the addi-
tion of interest to be computed in the manner prescribed
in Florida Steel Corp., 231 NLRB 651 (1977), 37 see gen-
erally Isis Plumbing Co., 138 NLRB 716 (1962), on the
unlawfully withheld fund payments , as well as on the
lost earnings the individual claimants suffered by reason
91 Inasmuch as the Third Circuit Court of Appeals has enforced the
Board 's Orders herein, specifying interest to be paid as provided in Flori-
da Steel, I will not require that interest be computed in the manner pro-
vided in New Horizons for the Retarded, 283 NLRB 1173 ( 1987). See
Amshu Associates, 234 NLRB 791 fn 2 (1978).
IRON WORKERS LOCAL 373 (BUILDING CONTRACTORS) 691
of Respondent 's discrimination against them , less other [Recommended Order omitted from publication.]
net earnings.38
with the recovery which will restore , insofar as possible, the status quo
ante, including interest as required by the Board. However, as I have ear-
38 Respondent did not brief its claim asserted in its eleventh defense her noted , Respondent cannot escape its responsibility , at least in part, for
that interest is not recoverable because of the lengthy delay in identifying creating the delay which followed the Board 's Orders in these cases, by
the similarly situated claimants. Since that delay , even if chargeable to virtue of its appeals , multiple motions to dismiss the class of similarly sit-
the Board , cannot be held to defeat the public remedy necessary to effec - uated registrants , and its failure for a time to voluntarily produce docu-
tuate the policies of the Act, Respondent must provide each claimant ments necessary to identify the claimants.