International Union Of Operating Engineers, Local 400

National Labor Relations Board - Board Decisions

Dec 13, 1984

273 N.L.R.B. 226 (N.L.R.B. 1984)

226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Union of Operating Engineers, Local
400 and Judi Scott and Linda Morgan and
Richard L. Christian, Sr. and Ruth Strah. Cases
19-CA-12852, 19-CA'-13263, 19-CA-13831,
and 19-CA-13891
13 December 1984
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
On 6 March 1984 Administrative Law Judge
Clifford H. Anderson issued the attached supple-
mental decision. The General Counsel filed excep-
tions and a ,supporting brief, and the Respondent
filed cross-exceptions and a supporting brief.
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 and
briefs and has decided to affirm the judge's rulings,
findings,' and conclusions 2 and to adopt the rec-
ommended Order as modified.
ORDER
The National Labor Relations Board adopts the
recommended Order' of the administrative law
judge as modified below and orders that the Re-
spondent, International Union of Operating Engi-
neeri, Local 400, Helena, Montana, its officers,
agents, and representatives, shall take the action set
forth in the Order as modified.
Substitute the following for the line containing
the discriminatee's name and backpay principal.
"Mary Christian $2,075.00"
MEMBER HUNTER, dissenting.
Contrary to my colleagues, I would not extend
the Respondent's financial liability to Mary L.
Christian beyond 1 April 1982. In my view, the
Respondent's contract with Christian expired on
Contrary to our dissenting colleague's view, continuing the make-
whole remedy effectuates the purposes of the Act because Mary Chris-
tian's contract was terminated in retaliation for her employee husband's
protected activity The 30-day cancellation provision and the renewal
clause rendered the contract equivalent to a contract for an unlimited du-
ration Therefore, the judge correctly found that, because the contract
would not automatically have terminated on the contract's anniversary,
the proper consideration for the make-whole remedy was what actions
the Respondent and Christian would have taken at relevant times In
these circumstances, the Respondent's burden, which it failed to satisfy,
was to show that It would have ended the contract
2 In calculating Mary Chnstian's gross earnings for quarter IV of 1981
in fn 7, the judge incorrectly computed the amount to be $475 The cor-
rect figure is $1425 making the total backpay principal $2075
that date and the Respondent Was not thereafter
liable for further payments to Christian.
As more fully set forth in the judge's decision,
on 1 April 1981 the Respondent entered into a con-
tract with Mary L. Christian under which she was
to provide cleaning services to the Respondent for
a monthly fee of $650. In relevant part, the con-
tract provided for a duration of "one year from 1
April 1981 until 1 April 1982 at which time this
contract may be renewed for one year by mutual
consent of the parties." It further provided that
"either party may cancel this contract on thirty
(30) days written notice. . . ."
In late July or early August 1981 the Respondent
notified Christian that it was canceling the cleaning
services contract effective 3 September 1981.
About the same time, the Respondent discharged
Richard Christian, Mary L. Christian's husband,
from his position as a dispatcher. In the underlying
unfair labor practice proceeding, the Board adopt-
ed the judge's conclusions, in the absence of excep-
tions, that the Respondent took these actions in re-
taliation for Richard Christian's protected concert-
ed activities and thereby violated the Act. Accord-
ingly, the Board ordered reinstatement of Mary
Christian's contract and payment of lost revenues
caused by the Respondent's unlawful cancellation
of her contract.'
The judge concluded that the Respondent's
backpay liability to Mary Christian continued at all
times after cancellation of her contract. In so
doing, he found that the 30-day cancellation provi-
sion in the Respondent's contract with Christian
rendered it one for an unlimited term and that the
Respondent had not met its burden of demonstrat-
ing that its contractual relationship with Christian
would have terminated at any time. -
I do not agree with the judge's finding that the
Respondent's contract with Mary Christian was of
unlimited duration. The plain language of the con-
tract established that it terminated on 1 April 1982,
absent earlier cancellation on 30 days' written
notice. Under the circumstances, the Respondent's
liability to Christian should not extend beyond 1
April 1982, the date upon which its contractual ob-
ligations to Christian ceased. Christian was an inde-
pendent contractor and the loss suffered from the
Respondent's conduct was the contract rights she
possessed at the time, i.e., a contract expiring 1
April 1982. Under the circumstances, the coercive
effects of the Respondent's conduct will be fully
remedied by requiring that the Respondent make
It is clear from a review of the Board's original Decision and Order,
reported at 265 NLRB 1316 (1982), that the specific terms of the Re-
spondent's contract with Mary Christian were not in Issue
273 NLRB No. 33
OPERATING ENGINEERS LOCAL 400 227
Christian whole for these lost contract rights. As
Christian is not an employee entitled to the protec-
tion of the Act, I do not find that it is necessary to
effectuation of the Act's purposes to assume that
Christian and the Respondent would have mutually
agreed to renew their contractual relationship after
1 April 1982. Accordingly, I would find the Re-
spondent's gross .backpay liability equivalent to the
contractual revenues payable to Mary Christian
during the balance of the contract period ending 1
April 1982.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
CLIFFORD H. ANDERSON, Administrative Law Judge
On December 16, 1982, the Board issued a Decision and
Order in the above-captioned case adopting with modifi-
cation the May 21, 1982 decision of Administrative Law
Judge David G. Heilbrun. The Order as adopted by the
Board, inter aim, ordered Respondent:
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Offer Linda Clark [and others not here rele-
vant] . reinstatement to their former positions of
employment without prejudice to seniority Or other
rights and privileges, or if in any case their former
job no longer exists, to a substantially equivalent
job, discharging, if necessary, any employee hired in
replacement, and make them whole in the manner
provided in E W. Woolworth, 90 NLRB 289 and
Florida Steel Corporation, 231 NLRB 651," for any
loss of earning incurred as a result of their being
terminated.
(b) Offer Mary Christian ireinstatement of her
janitorial contract and make her whole, including
interest to be determined in the manner set forth in
Florida Steel Corporation, supra, for any loss of con-
tractual revenue she may have incurred as a result
of her contract being terminated.
" See generally Isis Plumbing ct Heating Co, 138 NLRB 716
A dispute having arisen over, first, the amount of
backpay due Mary Christian and, second, the reinstate-
ment of Linda Morgan nee Clark and Mary Christian,
Respondent , and, the General Counsel entered into a stip-
ulation, quoted in full in the Appendix, infra, and, on
July 27, 1983, the Regional Director for Region 19 of
the National Labor Relations Board issued a backpay
specification and notice of hearing which Respondent an-
swered on October 13, 1983. I heard the matter in trial
on October 25, 1983, in Helena, Montana. Thereafter the
General Counsel and Respondent filed postheanng briefs
FINDINGS AND CONCLUSIONS
• . •
Based on the record as a whole, including my observa-
tion of the witnesses and their demeanor and the posth-
earing briefs of the parties, I make the following findings
and conclusions.
I. LINDA,CLARK, NOW MORGAN
A Facts.
William K Burlingame was elected business manager'
of Respondent on August 11, 1981. As a result of that
election, he ultimately took over control of Respondent
on October 1, 1981. Assisting him in his campaign were
various of the discriminatees in the original unfair labor
practice hearing in this matter including Morgan. Soon
after the election and the ballot count which resulted in
the apparent victory of Burlingame, he, his wife, and the'
various discriminatees, including Linda Morgan, went to
a victory celebration at the Hof-brau restaurant in
Helena; Montana. Also present was Mary Fitzpatrick, an
election ally of Burlingame and, as of October 1981, Re-
spondent's bookkeeper. Fitzpatrick and Burlingame in
speaking to the various election allies and discriminatees
indicated that when the new administration took office,
those employees, including Linda Morgan, would have
their jobs back. Linda Morgan answered that she was
getting married and moving to Idaho Falls, Idaho. She
indicated that she might be able to help for "a few days
if we absolutely needed her" but that she was leaving
and could not resume her employment.'
Sometime later, but before the administration took
power in October, another social event occurred at The
Locker Room, a bar in Helena. Les McGetrick, who
would be Respondent's business manager in October, ad-
dressed various of the discriminatees, including Linda
Morgan. He testified, without contradiction, that he told
Morgan "if she wanted her job back it was available.
And that she replied she was going to get married and
move to Idaho, and that she would be unable to accept
it."
At the orginial hearing in this matter the parties stipu-
lated that all discriminatees, except for Morgan, were re-
instated as of October ,15 and that she moved from the
vicinity.
The original trial on the underlying unfair labor prac-
tices in this matter occurred on November 19, 1981.
Representing the General Counsel were Patrick F
Dunham and Stephanie Rene Cottrell, the latter counsel
for the General Counsel in- the instant litigation. Counsel
for Respondent at that time was R. Louis Brown Jr.
During the course of the original unfair labor practice
proceeding, counsel for Respondent attempted to ask
then witness Linda Morgan if she had been offered rein-
statement by Respondent's agent McGetrick. Counsel for
the General Counsel Dunham objected, stating "this goes
to a matter that would be proper. in a backpay hearing,
but not here." Following record colloquy which made it
clear that the General Counsel and Respondent had a
dispute regarding whether or not an adequate offer of re-
instatement had been made to Linda Morgan, the Gener-
Mary Fitzpatrick and William Burlingame testified to this meeting
Morgan did not Although Burlingame and Fitzpatrick each advanced a
rather vague recollection of the specific remarks made and although their
memories do not coincide with precision, It is clear that the offer of rein-
statement was made in roughly the terms 'noted above and that Linda
Morgan indicated she would be unable to reassume her position because
of her upcoming marriage and move
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
al Counsel's objection was sustained by the administra-
tive law judge with the assurance to counsel for Re-
spondent that the litigation of the matter would not be
foreclosed if appropriate in a later proceeding
The administrative law judge in his May 21, 1982 deci-
sion ordered Linda Morgan, then Clark, be offered rein-
statement, as noted supra, and also ordered that all other
discriminatees be offered reinstatement including those
individuals who the parties had previously stipulated
were already reinstated. The judge included ni his order
the following:
2(e) Notify the Regional Director, in writing,
within 20 days from the date of this Order, what
steps have been taken to comply herewith.' 7
" I recognize that General Counsel has represented all discn-
nunatees except for Clark [now Morgan] were reinstated as of Oc-
tober 15, and that she had moved from the employing vicinity In
view of unusual circumstances in this case, I nevertheless recom-
mend couching reinstatement rights in prospective terms, and
would envision the notification procedure of this paragraph 2 (e)
as the vehicle whereby Respondent may finally and formally
venfy that job restorations are of settled permanence and that
Clark could have become re-employed had she so chosen It is par-
ttcularly appropriate to fashion this deviation in light of the
Board's newly-announced policy on expunction of disciplinary file
references See Sterling Sugars, Inc , 261 NLRB No 71
Respondent filed no exceptions to the administrative
law judge's decision and this portion of the Order was
accepted without modification The Board in ruling on
the judge's decision on the General Counsel's exceptions
substituted a new notice for that recommended by the
administrative law judge. In each case the following
paragraph of the notice was the same:
WE HAVE reinstated' Mary Fitzpatrick, Joyce
McCutcheon, Richard Christian, Ruth Strah, Susan
Agostinelli, and Maxine McFarland to their former
positions of employment without prejudice to se-
niority or other rights and privileges previously en-
joyed, recognizing too that Linda Clark had such a
right to reinstatement before she moved from this
job area, and WE WILL make them all whole, with
interest, for any losses in pay resulting from their
each being terminated during 1981.
B. Positions of the Parties
Respondent argues that in the September 1981 conver-
sations, noted supra, Respondent offered Linda Morgan
reinstatement and that she declined the offers. Thus,
argues Respondent, it has no further obligation to offer
or reoffer employment to Linda Morgan.
The General Counsel argues that the original adminis-
trative law judge's decision, which was not excepted to
by Respondent and in this regard was adopted in its en-
tirety by the Board, is res judicata as to the Linda
Morgan matter. Thus, notes the General Counsel, the ad-
ministrative law judge specifically ordered Respondent
to offer Linda Morgan reinstatement and, it is undisputed
that no offer of reinstatement has been made to her since
the judge's decision issued.
The General Counsel on brief argues that in the under-
lying unfair labor practice hearing Respondent aban-
doned its "claim and defense" concerning the Morgan
reinstatement matter and further suggest, at footnote 4,
page 5 of her brief, that, since Respondent failed to
present any evidence during the underlying unfair labor
practice proceeding on the issue, an adverse inference
should be drawn that such evidence if offered would not
have supported Respondent's contention. Respondent
with some heat argues that it attempted to introduce evi-
dence concerning the September 1981 reinstatement con-
versation at the original hearing but was precluded from
doing so as a result of the administrative law judge sus-
taining the objection of counsel for the General 'Counsel
that such matter should be appropriately raised later in a
backpay hearing. Thus, argues counsel for Respondent,
the General Counsel is attempting to breach or vary
from the position taken in the original proceeding in
order to prevent Respondent from now adducing evi-
dence on the question.
C. Analysis and Conclusions
Having carefully considered those portions of the tran-
script of the original hearing offered by Respondent to
support its position that it was not allowed to introduce
evidence concerning the Morgan reinstatement issue and
the argument of counsel, I am in complete agreement
with counsel for Respondent and reject the factual asser-
tions 'of counsel for the General' Counsel on the matter.
More specifically, I find that ReSPondent did attempt to
introduce evidence concerning the Morgan reinstatement
conversations of September 1981 at the original hearing
and that it persisted in doing so until the ultimate and
final adverse ruling on the General Counsel's objection
by the administrative law judge. Respondent_ at the origi-
nal hearing did not abandon its defense and the claims of
counsel for the General Counsel to the contrary are
simply wrong
Having made this threshold finding, I further find that
there can be no finding of res judicata or collateral es-
toppel which would, in any way, preclude Respondent
from now raising the September 1981 Morgan reinstate-
ment conversations in its own defense. First, the decision
of the Board adopting the underlying administrative law
judge's decision in this matter simply makes no findings
regarding the question of Morgan's reinstatement.
Second, even were this not so, the fact that Respondent
was led to believe that its September- 1981 reinstatement
evidence could be ,offered in a backpay hearing and the
fact that the administrative law judge sustained the ob-
jection of the General Counsel to Respondent's offering
this evidence, at the original hearing, all require that the
evidence properly be considered now. Not to allow_ the
presentation of this evidence now would, I find in com-
plete agreement with counsel for Respondent, violate
Respondent's fundamental right to due,.process of law by
simply precluding him at each stage in a two-stage pro-
ceeding from offering evidence relevant'to his defense by
suggesting that the evidence should , be or should have
been offered in the other stage of the proceeding.2
2 I do not take the General Counsel's argument regarding reinstate-
ment of Linda Morgan to go so far as to suggest, if I find that Morgan
' Continued
OPERATING ENGINEERS LOCAL 400 229
'Turning to the evidence regarding the reinstatement
offer, the General Counsel argues that Assistant Business
Manager Les McGetrick's statement to MorgUn "if she
wanted her job back, it was available" is no more than
an inquiry as to Morgan's desire for a job. The General
Counsel further argues that the offer was without specif-
ics regarding terms and conditions of employment. The
Board had occasion to consider an offer somewhat simi-
lar - to the instant case. In American Enterprises, 200
NLRB 114 (1972), the Board considered the following
job offer: "We are inquiring as to whether or not you
will be interested in returning to work for us. We will
hold the job open until Monday, August 31, 1970." With
Board approval, the administrative law judge undertook
the following analysis at 115:
In his brief, the General Counsel correctly states
that a discriminatee is entitled to a specific and un-
equivocal offer of reinstatement; and that-a mere in-
quiry concerning his interest in returning • to work
does not constitute such an offer. Rea Trucking
Company, Inc , 176 NLRB No. 67; •Barr Packing
Company, 82 NLRB I. I do not agree with his con-
tention that the August 25 letters were at most a
"careful" query concerning the dischargees' possible
interest to some "undescribed" job unaccompanied
by a specific offer of reinstatement. If is true that
' taken alone, the first paragraph would not meet the
applicable .test. -A reasonable interpretation of the
first sentence of the second paragraph, however,
was that Respondent was holding open the dis-
chargees' jobs for them: Admittedly, the offer to
hold "the" jobs for the dischargees was not the
most felicitous choice of language; and unquestion-
ably, an offer to the dischargees to hold "your" jobs
open would have been preferable. But -as stated in
Centac Corp., 179 NLRB 313 at 322, "If the men
had doubt, they could have inquired."
My, decision in this matter is reinforced by the larger
context of events in which the job offer was made to
Linda Morgan. Morgan, along with other discriminatees,
had supported the election campaign of Burlingame. The
reinstatement offers were made to the discriminatees fol-
lowing his successful election but before his installation
as an official of Respondent. Thus the relationship of
Burlingame and his political allies to the discriminatees
including Morgan at that time, is different from the often
adversarial relationship between an employer and a dis-
criminatee seeking reinstatement. Further, although the
evidence is hardly specific or crystal clear, it was appar-
ently well known at the time of these conversations that
Morgan was soon to marry and leave the area. Indeed, in
her conversations she made it clear that, while she could
assist Respondent's agents for a short time, she could not
had been offered and declined reinstatement in September 1981, that a
second offer of reinstatement is required by the judge's Order _While this
is an arguable construction of the judge's Order, in light of the fact that
he ordered Respondent to offer reinStatement to other discrimmatees
who had already been reinstated, an examination of the notice in the case
makes It clear that no additional reinstatement offer is required for em-
ployees who had already been reinstated
accept any employment offers. Thus, under these cir-
cumstances, and on the basis of the authority cited, I find
Respondent's reinstatement-offers to be sufficient to meet
Board requirements I further find Morgan's 'immediate
and unequivocal declination of those offers has ended all
reinstatement rights she had under the Board's Order.3
Accordingly, having found it appropriate to consider
the evidence adduced by Respondent at the hearing con-
cerning its purported offers of reinstatement to Morgan
and having found that this evidence supports a finding
that good faith offers of reinstatement were made and
declined, I find that there are no further reinstatement
rights remaining to Linda Morgan. I shall therefore dis-
miss this portion of the backpay specification
II. MARY CHRISTIAN
. A. Facts
On -April '1, 1981, Respondent and Mary L. Christian
entered into a contract whereby Christian agreed to pro-
vide cleaning services for Respondent in exchange for
$650 per month. The contract contained the following
provisions:
SECTION 3.
2. It is Mutually agreed between [Respondent]
and [Christian] that the duration of this contract
shall-be one year from April 1, 1981 until April 1,
1982, at which time this contract may be . re-
newed for one year by mutual consent of the par-
ties.
3. It is further mutually agreed that either party
may cancel this contract on thirty (30) days writ-
ten notice to the other party.
As found by the Board in the initial unfair labor prac-
tice litigation, sometime in the last week of July through
the first week of August 1981, Christian received a letter
from Respondent terminating her contract for "economic
reasons" with the added advice that effective September
3, 1981, the service would be provided "in house."
Apparently, Respondent provided these services with
its own staff until early October 1981 Then the Burlin-
game administration determined bids for cleaning serv-
ices should be solicited. Mary Fitzpatrick, the office
manager,' was authorized to solicit and consider such
bids. There is no dispute and I find that Fitzpatrick spe-
cifically asked Les McGetrick whether Mary Christian
should be contacted regarding the cleaning contract and
that McGetrick told Fitzpatrick , that because Mary
Christian's husband was working for Respondent and be-
cause the Burlingame administration's policy was not to
employ husbands and wives, that Christian should not be
solicited. 4 On October 9, 1981, Respondent contracted
3 While It is true that the offer was not by its terms open for a specific
period of time, Morgan's declination was immediate and unequivocal and
clearly not influenced by the lack of an opportunity to consider the offer
See, e g, Morro Motors Limited, 216 NLRB 192 fn 3 (1975)
4 Richard Christian, husband of Mary Chnstian, a discruninatee in the
underlying case, was reinstated in October but left Respondent's employ
by early or mid-December 1981
230 DECISIONS OFi, NATIONAL LABOR RELATIONS BOARD
for certain cleaning services, not identical to those, con-
tracted to by Christian; with an independent cleaning
contractor. •The contract entered, into provided , for a
payment of $300 per month and contained ,the following
clause:
SECTION 9. DURATION OF AGREEMENT
This agreement, .which commences as of its effec-
tive date, all prior- agreements written or oral, be-
: tween the parties - concerning the same services
having terminated, shall become effective on Octo-
ber 14;- 1981, and shall .continue thereafter for one
year, subject to renegotiation of the. terms hereof
unless terminated by either party on thirty (30) days
written notice to the other. In the event the parties
intend to continue the contract past its first year or
anniversary date, the party shall give written notice
within thirty (30) days of the date of termination of
their intention to extend the contract and renegoti-
ate its terms'.
Insofar as the record "refleets this contract has been car-,
ried forward to -date without change in its terms or the
rate of remuneration.
The hearing in the underlying unfair labor practice
proceeding was held on November 19, 1981. The admin-
istrative law judge's decision issued on' May: 21, 1982,
and, as noted supra, did not include a remedy for the
Mary Christian contract cancellation. The Board's deci-
sion, issued on December 16, 1982, and sustaining the
General Counsel's exceptions to the decision below,
added the previously quoted portion of the Order with
respect to Christian. Thereafter, on June 28 and July 18,
1983, respectively, Respondent and the General _Counsel
entered into the stipulation quoted in , the Appendix
B. Analysis and Conclusions
1. Preliminary arguments
- Respondent makes several initial. arguments attacking,
the Board's Order as to , Christian. ThusTh on brief counsel
for Respondent challenges the hearing in the underlying
proceeding as follows:
Local 400 was never - faced with a clear statement of
,the "charges" with respect to Mary Christian, never
provided the opportunity to fully defend regarding
the unfair labor practice charge implicating .Mary
Christian's contract, and has been left throughout
this proceeding in a_deficient posture in terms of its
ability to defend on the issues There was simply no
notice, no specific' charges, no clear right of con-
frontatien, and no due process Opportunity to
defend.
Insofar as Respondent is seeking to attack the 'validity or
propriety of the underlying unfair labor practice pro-
ceeding, Respondent should have (I) taken those argu-
"
5 At the hearing counsel fOi-Respondent moved that I dismiss the
backpay specification as to . Chnstian because she was not a Charging
Party in the underlying proceeding I denied that motion at the hearing
as without support in reason or precedent and reaffirm that ruling here
ments to the Board on brief in opposition to the General
Counsel's exceptions, (2) filed •a motion for reconsider-
ation of the Board's decision; or (3) initiated an action
with the United States Court of Appeals seeking review
of the Board's decision. Respondent undertook none of
the above and further -entered into a stipulation with the
General Counsel which contains the following sentence:
In the event judicial proceedings are thereafter nec-
essary to' enforce or - review the Board's backpay.
, and reinstatement determinations, the only issues
- before the Court will be the validity of the backpay
• • computation and the reinstatement issues, as Re-
' —spondent concedes that in all respect the Board's
Decision and Order of December 16, 1982, is valid
and proper..
Thus, in agreement with the-General Counsel, I find the
underlying unfair labor practice decision in this matter is
res judicata and not subject to attack on the grounds
quoted supra. -
,Respondent also argues that certain facts peculiar to
the instant Case should be considered to reduce any
award to Christian. Thus, counsel for Respondent argues
on brief that any recovery herein should commence on
the date of the Board's Order rather than earlier. In sup-
port of' its argument, counsel cites Board cases issuing
before A.B. W Products, 137 NLRB 25, 31 (1962), as well
as circuit court authority for the proposition 'that, where
a Board Order reverses an administrative law judge's dis-
missal of'an allegation, the remedy should be prospective
only. Respondent is aware that the earlier, Board position
favorable to him was reversed and is-no longer, current
law. Counsel argues however that the Board still admits
that 'special -circumstances may warrant reduction of the
traditional remedies, citing Ferrell-Hicks Chevrolet v.
NLRB,' 357. F.2d 822 (D.C..Cir. 1966). I have considered
counsel for- 'Respondent's argument and cases cited in
support thereof, 'and conclude that there is no basis on
this record for a tolling of the ordered remedy for par-
ticular times. Accordingly, I shall deny Respondent's
motion in this respect.
.2. The'contract to November 15, 1981 - .
Given 'earlier rejection of Respondent's arguments,
challenging the reach , of the Board's Order; it follows
that Christian shall be 'made whole from the commence-
ment of the backpay period until the disputed October
events discussed infra. " _
'3 The October events
There is_no dispute that in October 1981 Respondent's
agents sought to obtain contractual cleaning services
from an independent contractor and, by , contract dated
October 14, 1981, procured cleaning services at $300 per
month. The parties also stipulated that Respondent at
this time was under extreme financial duress. Further the
recoid contains .uncontradicted testimony that Respond-
ent declined to contact Mary Christian regarding a
cleaning services contract because Respondent's agents
in the , new administration wished to institute a "no hus-
band and wife" hiring policy.,
OPERATING ENGINEERS LOCAL 400 231
From these facts Respondent argues that the make-
whole period for Christian should terminate as of the as-
sumption of the new contract. 6 Respondent further
argues that,, even were Christian's make-whole period
not terminated as of Respondent's negotiation of the new
centract, that Christian's period should end as of the ex-
piration Of her contract on April 1, 1982. This is so, Re-
spondent argues, because it is clear that Christian's con-
tract would not have been renewed at that time because
of the economic necessities which pressed RespOndent to
accept the lower rate offered'by the new contractor.
The General Counsel argues that the obligation of Re-
spondent to Christian continues unabated at $650 a
month throughout the backpay period irrespective of Re-
spondent's new contract entered under necessity or no,
and irrespective of the Christian contract's 30 day termi-
nation clause, 1-year expiration clause or renewal clause.
The initial dispute between the parties may be resolved
by consideration of the terms of Christian's contract with
Respondent. The contract by its terms is of 1-year dura-
tion with a 1-year renewal Option by mutual consent.,
The contract is subject to cancellation by either party on
30-day written notice. Contrary to the argument of the
General Counsel, and in agreement with Respondent, I
view the 30-day cancellation clause as rendering the con-
tract susceptible to cancellation before the conclusion of
its first year Further, in agreement with the General
Counsel and in rejection of Respondent's argument, I
find that the 30-day provision renders the contract, for
purposes of this analysis, equivalent to a contract for an
unlimited term. Thus, I do not find the contract would
of necessity by its terms automatically have been can-
celled after 1 year or 2 years. Thus, in considering the
make whole order, I do not find the first or second anni-
versary of the contract's execution significant. Rather, I
will consider what actions Respondent and Christian
would have taken at relevant times, given the burdens
and presumptions applicable to backpay specifications.
An administrative law judge ; is obligated to determine
the most accurate method of determining backpay. J. S.
Alberici Construction Co., 249 NLRB 751 (1980); Ameri-
can Mfg. Co. of Texas, 167 NLRB 520 (1967) Coupled
with this obligation however is the ,fundamental notion
that uncertainties will be assessed against the wrongdoer.
NLRB v. Miami Coca-Cola Bottling Co., 360 F.2d 569
(5th Cir. 1966). Returning to the October 1981 actions of
Respondent in negotiating a substantially less expensive
cleaning contract, I find, even assigning the burden on
this aspect of the case to Respondent, that the economic
necessities pressing upon- Respondent at that time would
have required renegotiation even if the Christian con-
tract had never been illegally breached. Thus I find that,
even if Christian had been continuing satisfactory clean-
ing services as of that time, Respondent under the press
of economic necessity would have sought to renegotiate
the contract and would have offered Christian no more
than $300 a month for her cleaning services thereafter,
6 While counsel for Respondent was not specific as to the proposed
cutoff date, since the Christian contract contained a 30-day cancellation
provision, and assuming the date of the contract with the new cleaner is
taken as the decision date, the cutoff date advocated is assumed to be No-
vember 15, 1981
i.e , after November 15, 1981. Thus I am in agreement
with Respondent that the _dollar sums properly accruing
to Christian under the Order after , November 15, 1981,
accrue at a maximum rate of $300 per ,month.
4 The duration of Respondent's obligation to
Christian
Respondent contends that because of the nepotism
policy instituted by the new administration, Mary Chris-
tian would not have been retained but rather would have
been terminated as an independent contractor in October
1981 when the new administration took office. I reject
this argument for several reasons. First there is insuffi-
cient evidence that the antinepotism policy was benignly
arrived at. Second I have grave doubts as to whether or
not even a benignly arrived at antinepotism policy could
be applied in the middle of a running backpay period to
discharge Respondent's obligation under the Board's
Order to offer Christian reinstatement. Third, and on the
facts of this case most importantly, I am not satisfied that
an antinepotism policy on this record would have result-
ed in termination' of Christian's contract. Respondent
bears the burden of establishing the merits of this assert-
ed defense. Why should Richard Christian rather than
Mary Christian have been reinstated if only one could
be? Furthermore the record is clear that Richard Chris-
tian was reinstated for a brief period ending in December
1981 There is no recOrd evidence to indicate when it
became clear that Richard Christian was leaving, after
which it was possible under any interpretation of Re-
spondent's asserted antinepotism rule to reinstate his
wife's contract Considering all of the above I find the
asserted antinepotism rule of Respondent, apparently ini-
tiated for the first time in October 1981, to be of no
force and effect to defeat the Board's Order with respect
to Mary Christian or to diminish the amounts necessary
to make her whole.
The second argument Respondent offers in support of
its contention that Mary Christian's contract should have
terminated when the new contract was entered into is
the assumption, implicit in Respondent's argument, that
Mary Christian would not have continued as a contrac-
tor for Respondent at $300 per month. It is this assump-
tion, about which there is no evidence in the record,
which must fall -to the teaching of Miami Coca-Cola Bot-
tling Co., supra. It is uncertain whether or not Mary
Christian would have accepted the lower monthly clean-
ing rate in late 1981. The record is completely without
direct evidence regarding the question one way or the
other. The question is of necessity speculative and not
susceptible to certain resolution. This is so of course be-
cause Respondent consciously decided not to offer the
new rate to her In such circumstances of uncertainty the
facts will be assessed against the wrongdoer, here 'Re-
spondent, whose illegal actions in terminating the con-
tract with Christian and whose later refusal to offer her
the lower rate made it impossible to ascertain whether or
not Christian would have in fact continued working for
Respondent at the substantially lower rate. Thus, I find,
while effective November 15, 1981, Respondent's obliga-
GROSS
EARN-
INGS
YEAR
1981
TER
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion to Mary Christian reduced from $650 to $300 per
month, that obligation continued thereafter.
As I have earlier determined that the 1-year expiration
of the contract and the expiration of the second 1-year
renewal period do not operate to cancel Mary Christian's
contract with- Respondent, it follows that I examine the
record evidence to determine if Respondent would have
continued to use cleaning services through the backpay
period. It is clear that a contract was entered into be-
tween Respondent and the second contract cleaner,
Bompart Cleaning Service. There is no record evidence
that the contract was ever cancelled or modified. The
burden in this aspect of the case is on Respondent. I find
therefore that the $300 per month fee continued to be
paid at all times relevant to this proceeding, i.e., through
the backpay period ending in June 1983. I further find
that Christian is due that sum and that such an, amount
will continue to. accrue on a monthly basis pursuant to
the Board's Order unless and until Christian is offered a
cleaning contract on equal terms. Thus this obligation
continued through the second quarter of 1983, the end of
the period at issue herein. Respondent's obligations
thereafter will be resolved as necessary in subsequent
proceedings and will not be adressed here.
5. Calculation of amounts owing
'Using the above findings to determine gross earnings
and taking the undisputed interim earnings cOntamed in
the backpay specification, the following chart establishes
the amounts due and owing to Mary Christian without
interest.' As noted supra, additional amounts which may
accrue for later quarters are not addressed in thi§ pro-
ceeding.„
INTERIM
EARNINGS
III $650 $650
IV? 475 475
1982 1 900 $972 -0-
II 900 1177 -0-o
III 900 1416 -0-o
IV 900 1785 -0-o
1983 I 900 1278 -0-o
II 900 1859 -0-
- Total Backpay Principal $1125'$11
7 Calculated as follows
$650 per month October-November 15
$300 per month November 16-December 31
ORDER
On the basis of the foregoing and pursuant to Section
10(c) of the Act, I recommend the following 9 4
IT IS HEREBY ORDERED that Respondent, International
Union of Operating Engineers, Local 400, its successors
or assigns, shall forthwith pay to Mary Christian the
amount listed after her name, plus interest to be comput-
ed in the manner set forth in Florida Steel Corp., 231
NLRB 651 (1977), and Olympic Medical Corp., 250
NLRB 146 (1980), 9 less tax withholding required by
state and Federal laws
Mary Christian $1,125.00
8 If no exceptions are filed as provided by,Sec 102 46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
9 See generally Isis Plumbing Go, 138 NLRB 716 (1962) The specifica-
tion by calendar quarter as set forth supra shall be used for purposes of
interest calculation
APPENDIX
STIPULATION.
The following matters are stipulated by and between
counsel for Respondent, and the General Counsel for the
National Labor Relations Board:
1. Respondent has no objection to the Board's Deci-
sion and Order of December 16, 1982,
2. Respondent has not been able to reach agreement
with the General Counsel as to reinstatement issues con-
cerning Linda Morgan and Mary Christian, nor as to the
amount of backpay due Mary Christian under the terms
of said Decision and Order;
3. The Regional Director for Region 19 may issue an
order setting a date for hearing before an Administrative
Law Judge to determine the amount of backpay due and
the issues of reinstatement in this case; with the under-
standing that Respondent reserves the right to assert, as
an affirmative defense at the backpay proceeding, that
circumstances would have caused the Respondent not to
renew Mary Christian's janitorial contract after April 1,
1982; notwithstanding the unfair labor practice was
found t6 have been committed,
4. Following the decision of the Administrative Law
Judge issued after such hearing, the matter will be sub-
ject to review in due course by the Board In the event
judicial proceedings are thereafter necessary to enforce
or to review the' Board's backpay and reinstatement de-
terminations, the only issue before the court will be the
validity of the backpay computation and the reinstate-
ment issues, as Respondent concedes that in all respects
the Board's Decision and Order of December 16, 1982, is
valid and proper.
NET
BACKPA Y
DUE