International Union of Operating EngineersDownload PDFNational Labor Relations Board - Board DecisionsJun 4, 1954108 N.L.R.B. 1225 (N.L.R.B. 1954) Copy Citation LOCAL 57, INTERNATIONAL UNION OF OPERATING ENGINEERS 1225 WE WILL NOT require, instruct, or induce Busch Kredit Jewelry Co , Inc , its officers, agents, successors , or assigns , or any other employer to discharge employees because they are not members in good standing in this labor organization , except in accordance with Section 8 (a) (3) of the Act WE WILL NOT in any like or related manner cause or attempt to cause Busch Kredit Jewelry Co., Inc., or any other employer , to discriminate against an employee in violation of Section 8 (a) (3) of the Act. WE WILL NOT in any like or related manner restrain or coerce employees in the exercise of the rights guaranteed in Section 7 of the Act WE WILL jointly and severally with Busch Kredit Jewelry Co , Inc , make William Kulmatyzki whole for any loss of pay suffered as a result of the discrimination against him. DEPARTMENT AND SPECIALTY STORE EMPLOYEES UNION, LOCAL 1499, RETAIL CLERKS INTER- NATIONAL ASSOCIATION, AFL, Labor Organization Dated .. ........ By .... ..... ..... .............. ... ...... . ................ (Representative) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material LOCAL 57, INTERNATIONAL UNION OF OPERATING ENGI- NEERS AND ITS BUSINESS AGENT, JOHN WHITE and JOHN LAMANTIA and M . A. GAMMINO CONSTRUCTION CO., Party to the Contract . Case No . 1-CB-128 . June 4, 1954 SUPPLEMENTAL DECISION AND DETERMINATION On December 11, 1951, the National Labor Relations Board issued its Decision and Order in this case ( 97 NLRB 386) which provided, among other things, that John Lamantia, whose discriminatory discharge was caused by the Respondents, was entitled to receive back pay from the Respondents for the period of the discrimination against him . This Order was enforced by a decree entered on February 3, 1953, by the United States Court of Appeals for the First Circuit. (N. L. R. B. v. Local 57, International Union of Operating Engineers et al., 201 F. 2d 771.) On July 28, 1953, a further hearing was held before Trial Examiner Martin S. Bennett for the purpose of determining the amount of back pay due Lamantia under paragraph 2 (b) of the Board's Order. On September 3, 1953, the Trial Examiner issued his Supplemental Intermediate Report finding that Lamantia is entitled to back pay in the amount of $5,155.43 and recommending that the Respondents be required and directed to pay such amount. Thereafter the Respondents filed exceptions to the Supple- mental Intermediate Report and a supporting brief . The Re- spondents ' request for oral argument is hereby denied, because 108 NLRB No 171. 1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the record and the exceptions and brief, in our opinion, adequately present the issues and the positions of the parties. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Supplemental Intermediate Report , the ex- ceptions and brief , and the entire record in the case, and hereby adopts the findings , conclusions , and recommendations of the Trial Examiner with the following additions and modi- fications. As they did before the Trial Examiner at the original hearing, before the Board , and before the court on the Board ' s petition for enforcement of its order , the Respondents contend that Lamantia is not entitled to back pay because he did not have a licence under the State of Rhode Island ' s licensing law and because at the time he was hired and fired he was receiving disability payments from an insurance company . We agree with the Trial Examiner that these contentions have no merit. As stated by the court of appeals in its decision in this case: Respondent ' s third point in regard to Lamantia ' s alleged physical and legal disability is equally unpersuasive. When the men were ordered to quit their work in the effort to displace Lamantia from the crane he was operating, there is no evidence that they were doing so because he was physically incapacitated or because he lacked a Rhode Island licence. We think it is unrealistic under these circumstances to assert at this point that these were the motives for the respondents ' conduct. It is thus clear that, as found by the Board and affirmed by the court , it was neither the lack of a license nor physical disability which caused Lamantia's loss of employment; Lamantia ' s loss of pay was caused solely by the Respondents' conduct violative of the Act. This being so, we are required to make Lamantia whole for the loss he suffered by the Respondent's unlawful conduct--to remedy the effect of this illegal behavior . It is axiomatic--long established and often repeated --that the Board's authority extends to remedial, not punitive , orders, and , of course, our order in this proceeding does just that and nothing more. Nor may it be reasonably inferred that Lamantia, because of his receipt of disability insurance payments, was physically incapable of performing the work required by the job from which he was discriminatorily discharged. To the contrary, the record, for example, shows that, as stated above, his physical condition was not the reason for his discharge , that, in fact he was hired to do the job by the employer, and that during the time from his discriminatory discharge on July 3, 1950, to the time his disability payments ended on December 5, 1950, LOCAL 57, INTERNATIONAL UNION OF OPERATING ENGINEERS 1227 he operated construction machinery for building contractors, and, in a civil service job , operated and instructed others in the operation of a wide variety of construction equipment at the United States Naval Air Station at Quonset Point, Rhode Island. In connection with the Respondents ' defense that Lamantia had no license , the Trial Examiner concluded that the prin- ciple set forth by the Court of Appeals for the Sixth Circuit in N. L. R. B. v. U. S. Truck Co., 124 F. 2d 887, is not ap- plicable to this case . With this we agree. In the U. S. Truck case the Board found that two employees were guilty of repeated violations of regulations of the Inter- state Commerce Commission under the Motor Carrier Act (which the court characterized as "a federal statute of equal force with the National Labor Relations Act"), prohibiting the drinking of alcoholic beverages while on duty . The Board concluded, however, that union membership was the cause for the discharges and ordered the employer to reinstate with back pay. The court discussed the reinstatement aspect of the Board's order and reversed the Board both as to reinstate- ment and back pay. In doing so the court stated: Where the order of the Board as to reinstatement indis- putably requires the employer to violate other statutes highly important to the public safety , even though union membership is found by the Board to be the ruling motive for the discharge , this court has authority to vacate the order as violative of public policy and contrary to law. It is thus apparent that the Court of Appeals for the Sixth Circuit considered that the public policy, expressed in the Motor Carrier Act and the similar State laws, outweighed the objectives of the National Labor•Relations Act when to effec- tuate the policies of the latter would be to "require the em- ployer to violate other statutes highly important to the public safety." From this viewpoint, the differences between the present case and U . S. Truck become clearer . To begin with, the court ih this case has already approved the Board's conclusion that the Respondents unlawfully caused Lamantia ' s discharge and has decreed the enforcement of the Board's order that Lamantia be made whole by the Respondents for any loss of pay he may have suffered by reason of the Respondents ' discrimination against him. Furthermore, unlike U. S . Truck , in this case the order does not require anyone to violate any law as our order does not require reinstatement of a man who lacks a license; there is, therefore , neither any conflict in policies as the court found in U . S. Truck, nor any order to perform an illegal act which the court found repugnant in that case . There are 1 228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD also other factors inthis case which contribute to our conviction that the U . S. Truck case is distinguishable . Lamantia was known by the employer to be a capable operator and it employed him as it had experienced difficulties in hiring competent em- ployees to do the work . Furthermore , it is apparent that, as the Board stated in its decision of December 11, 1951, "The record, however , conclusively proves that the lack of a license was not a reason for the discharge of Lamantia and that the licensing law was not complied with by the employer on the project involved in this case." We, moreover , believe, as did the Trial Examiner , that the Respondents ' contentions discussed above were disposedbythe Court of Appeals for the First Circuit in its decision. We are frankly unable to understand Chairman Farmer ' s comment that our view in this respect " ignores the distinction . . . . between violation and remedy " and "suggests a rigid relationship between the substantive and remedial provisions of the Act" to which he does "not subscribe ." This comment strikes us as raising and knocking over a strawman. We have not suggested or applied any principle that because aviolationhas been found the normal remedy must automatically follow and that the Board lacks discretion to vary it. We simply believe that under the facts of this case the Board's and courts rejection of the Respondents ' contentions in regard to Lamantia ' s alleged physical and legal disabilities as "unpersuasive ," in connection with the issue of discrimination , leaves them equally unpersua- sive and without merit as a basis for abating back pay. The nature of these defenses -- the receipt of insurance and the lack of a license--are such that it is not reasonable to assume that the court would have disposed of them with such finality with respect to the Respondents ' motive and yet intend the Board to consider them as diminishing the payment of back wages which the court decreed . That our interpretation does not preclude " further administrative action on the Board's part with respect to the exact amount of back pay to be tendered" (N. L. R. B. v. Bird Machine Co., 174 F. 2d 404) is inherent in the fact that such further "administrative action" has been taken : further hearing was held on July 28, 1953, for the purpose of determining the amount of back pay due Lamantia ; and the Trial Examiner has issued a Supple- mental Intermediate Report, containing his computation of back pay- - an arithmetical calculation of the amount of pay Lamantia would have earned , if he had not been discriminated against, minus the amount he did earn during the period of discrimination. In any event , whether the Respondents' contentions be con- sidered from this viewpoint or as issues relating solely to the computation of back pay to be determined now, as apart from the court's decision , we find that Lamantia is entitled to be made whole in the amount recommended by the Trial Examiner. LOCAL 57, INTERNATIONAL UNION OF OPERATING ENGINEERS 1229 DETERMINATION Upon the basis of this Supplemental Decision and the entire record in the case, the National Labor Relations Board hereby determines that the net back pay due John Lamantia under the terms of the decree of the United States Court of Appeals is $5,155.43. Chairman Farmer, concurring: The question presented here is whether or not back pay in the amount of $5,155.43 should be awarded to an employee whose discharge has already been found discriminatory by the Board and affirmed by the court. The Respondent seeks to avoid this liability which normally attaches to causing an unlawful discharge on the ground that the employee, Lamantia, was disqualified from employment (1) because he was receiving disability payments from an insurance company and (2) because he did not have a license to operate a crane (the job he was performing at the time of his unlawful dis- charge) as required by State law. I agree with Members Murdock and Peterson that these circumstances are not sufficient to absolve the Respondent from its obligation to recompense Lamantia for the loss of wages which Respondent caused him to sustain. I do not, however, adopt that part of their decision which rests on the premise that this issue has already been disposed of by the Court of Appeals when the court sustained the Board's finding that Lamantia's discharge was discriminatory. This view appears to me to ignore the distinction, which the statute makes and which this Board itself has long recognized, be- tween violation and remedy. I agree with Member Rodgers that the court did not intend to foreclose our consideration of what amount of back wages, if any, should be awarded Lamantia. 1 Since our orders are remedial and not punitive, it would be improper for us to order back pay for an employee except to the extent necessary to make him whole for actual loss of wages . Thus, if I were convinced that Lamantia was actually disqualified, either legally or physically, or both, from working on the job which he lost, because of his discharge, I would II had thought it plain that my colleagues in the majority were taking the position that this issue had already been decided by the court. My colleagues, Mr. Murdock and Mr. Peterson, state in reply to my concurring opinion however, that they "have not suggested or applied any principle that, because a violation has been found, the normal remedy [in this case back pay] must necessarily follow...." I have difficulty reconciling this statement with the pronouncement in their opinion that, "We, moreover, believe, as did the Trial Examiner, that the Respondents' contentions [i.e. that Lamantia was disqualified from back pay] dis- cussed above were disposed by the Court of Appeals for the First Circuit in its decision. . .. In any event, whether the Respondents' contentions be considered from this viewpoint or as issues relating solely to the computation of back pay to be determined now, as apart from the court's decision, we find that Lamantia is entitled to be made whole in the amount recom- mended by the Trial Examiner." (Emphasis supplied.) 1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD consider it ultra-vires for the Board to award him any back wages . To award him wages which he could not have earned would not be remedial but punitive in character. The views expressed by Members Murdock and Peterson suggest a rigid relationship between the substantive and remedial pro- visions of the Act to which I do not subscribe. In this case, however, I am not convinced that Lamantia is not entitled to back pay. I reach this conclusion because I am satisfied that he was not under any such total incapacity to work by virtue of (1) drawing disability insurance and (2) not having a license to operate a crane. Superficially, either of these circumstances would appear to disqualify him from employment, but any such inference is refuted by the fact that Lamantia was (1) drawing disability insurance and (2) had no license to operate a crane prior to his discharge, precisely at a time when he was operating a crane, the work which Respondent now argues he was physically and legally in- capacitated to perform. His lack of physical disability is further shown by the fact that following his discharge he had interim earnings which we are deducting from his gross back wages. Under these circumstances, I can only conclude that, what- ever may be the outward appearances of disqualification, Lamantia would still have been employed but for his unlawful discharge. The uncontroverted fact is that Lamantia was working as a crane operator despite his lack of a license and his supposed physical disability, and there is no reason to suppose that he would not have continued to work at the job absent the Respondent's unlawful and successful efforts to bring about his loss of employment. There is always the possibility that Lamantia would have been dismissed at some point because he had no license, but it would be idle for us to speculate as to when if ever, this would have occurred. It is just as reasonable to assume that, had his lack of a license been made an issue, he would have remedied this deficiency. Since it appears that Lamantia's employer hired him with knowledge that he had no license, it is not likely that he would have been discharged for this reason. In deference to the State law, I would not order Lamantia reinstated to a crane operating job without a license. But his reinstatement is not in issue here, and I see nothing in our back-pay order which can in any way be construed as in derogation of the State's policy. Our primary responsibility is to enforce the Federal law which contemplates making employees whole for unlawful conduct resulting in their loss of employment. Accordingly, I concur in the back-pay order. Member Rodgers, dissenting: I agree with the conclusion of my colleagues that the record does not show that Lamantia was physically incapacitated from LOCAL 57, INTERNATIONAL UNION OF OPERATING ENGINEERS 1231 working during the period from July 3, 1950, to March 24, 1952, which is the period involved in the present determina- tion. Accordingly, like my colleagues, I would find without merit the Respondent's contention that Lamantia's physical disability disqualifies him from receiving an award of back pay. However, unlike my colleagues, I would find that Lamantia is not entitled to back pay for that portion of the 1950-1952 period in question during which Lamantia was legally dis- qualified under the applicable laws of Rhode Island from operating a crane. By the terms of a statute entitled "An Act Relating to the Examining and Licensing of Hoisting Engineers," the State of Rhode Island, with certain exceptions not here applicable, prohibits the operation of gasoline, steam , diesel, electric, or compressed air cranes of five or more horsepower unless the operation is performed by a person licensed by the State Department of Labor. The statute further prohibits any "user" of such equipment from permitting its operation by unlicensed persons. Licenses may be obtained by application and upon the passing of an appropriate examination . Persons whoviolate the prohibitions of the statute are subject to fine. Rhode Island Public Laws, Ch. 1068, Secs. 1-72, as amended (1941). The statute has been enforced without laxity.' It is undisputed that Lamantia's request for a license to operate a crane within Rhode Island was refused on March 19, 1952. Accordingly, it is clear that during the entire period of almost 2 years involved in the present determination, with the exception of some 5 days, Lamantia was not qualified to oper- ate a crane within Rhode Island and could have done so only by violating the law of that State; and itis also clear that no other person could have employed Lamantia during that period to operate a crane within the State without also violating Rhode Island law. The issue then is whether this Board should predi- cate a back-pay order upon earnings which Lamantia could not have gained, and which no person could have paid to Lamantia, without transgressing the State law andthe policy underlying that law. I think it should not, and would hold that whatever Lamantia' s earnings might have been from operating a crane during the period when he did not have a license, they would have been so tainted with illegality that this Board should not now lend its remedial power to recompense Lamantia for their loss. This view is supported by the decision of the Circuit Court of Appeals for the Sixth Circuit in N. L. R. B. v. U. S. Truck Co., Inc., 124 F. Zd 887. In that case, two employees were discriminatorily discharged by the employer, an interstate trucking company operating in Michigan and Ohio. The em- ployees had been guilty of repeated violations of the known 2Statement dated May 16, 1951, by William E. Powers, attorney general of the State of Rhode Island, who was given leave to intervene in this case as amicus curiae. 1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rules of the employer and of the Interstate Commerce Com- mission which forbade the use of intoxicating liquor when on duty. The Board ordered the employees reinstated with back pay. Regulations of the Interstate Commerce Commission, as well as the laws and regulatory rules of Michigan and Ohio, prohibited motor carriers from permitting their vehicles to be operated by persons under the influence of alcoholic liquor or who make excessive use thereof. Because the Board's order would have caused the Employer to violate such regula- tions and State statutes, the court vacated the order "as violative of public policy and contrary to law." The Board majority seeks to distinguish the U. S. Truck case on the ground that because the Board's order herein does not require the reinstatement of a man who lacks a license, the order does not require anyone to violate any law or to perform an illegal act. Such a distinction wholly ignores the fact that the court in the U. S. Truck case not only denied the two employees reinstatement, but also and quite signifi- cantly, set aside that portion of the Board's order that awarded them back pay. Had the court been concerned only that an affirmative violation of the law not be ordered, as the majority suggests , the court could have limited its decision to the re- instatement aspect of the case. The fact that the back-pay award was also set aside shows that the court was also con- cerned that public policy not be infringed, even indirectly. Nor can the U. S. Truck case be distinguished, as the majority would also do, on the irrelevant ground that although Gammino was aware that Lamantia lacked a license when it discharged him, the lack of a license was not the reason for the dis- charge. Those facts, although proven, relate only to the motive underlying Lamantia's discharge. They are not at all relevant to the issue now before the Board, just as the ad- mittedly discriminatory motive underlying the discharges in the U. S. Truck case was not the factor upon which that case turne d . Nor is it accurate to say, as do Members Murdock and Peterson, that the issue with respect to the computation of back pay due Lamantia was previously disposed of by the Court of Appeals for the First Circuit. When this matter was before that court on petition to enforce the Board's order, the principal point decided was that there was substantial evidence to support the Board ' s findings that the Respondents' discriminatorily caused Lamantia's discharge. Indeed, the court referred to Lamantia's lack of license, but not in relation to the back-pay issue now before the Board. Thus, it con- sidered the matter only with respect to the Respondents' motives in causing the discharge, saying: When the men were ordered to quit their work in the ef- fort to displace Lamantia from the crane he was operating, LOCAL 57, INTERNATIONAL UNION OF OPERATING ENGINEERS 1233 there is no evidence that they were doing so because he was physically incapacitated pr because he lacked a Rhode Island license. We think it is unrealistic under these circumstances to assert at this point that these were the motives for the respondents' conduct." That the matter was not disposed of when it was before the court is further shown by the following excerpt from the brief which the Board filed with the court: The most that can be said , therefore , in respondents' be- half with respect to Lamantia's lack of a license or his physical inability to perform his work is that such facts may be relevant on the issue of the amount of back pay due Lamantia under the Board ' s order . In the event the amount of back pay cannot be determined in informal negotiations between the parties, the relevant evidence would only be material in a subsequent compliance proceedin g before the Board. Cf. N. L. R. B. v. Bird Machine Co., 174 F. 2d 404 (C. A. 1), and cases cited. ( Emphasis supplied.)4 Furthermore , the foregoing statement inthe Board ' s brief, is in effect a declaration and admission by the Board itself that Lamantia's lack of license is "relevant " to a determination of the amount of back pay due him, and is "material" in a com- pliance proceeding such as this. The majority of the Board, however, now inconsistently takes a different position. Member Beeson took no part in the consideration of the above Supplemental Decision and Determination. 3N. L R. B v. Local 57, International Union of Operating Engineers. et al , 201 F. 2d 771, 775 (C A. 1). 4Brief for the National Labor Relations Board, pages 17-18, N L R B v. Local 57, Inter- national Union of Operating Engineers, 201 F. 2d 771 (C A. 1). In the Bird Machine case cited in the Board's brief, the Court of Appeals for the First Circuit specifically endorsed the view of the Court of Appeals for the Fourth Circuit that general back-pay orders entered by the Board contemplate further administrative action on the Board's part with respect to the exact amount of back pay to be tendered, and that such orders are analogous to interlocutory judgment of courts which fix liability but leave for future determination questions as to amount of liability. N. L. R B. v. Bird Machine Co., 174 F. 2d 404, 405. 339676 0 - 55 - 79 Copy with citationCopy as parenthetical citation