Teamsters Local 186 (Associated General Contractors)

National Labor Relations Board - Board Decisions

Sep 29, 1995

319 N.L.R.B. 151 (N.L.R.B. 1995)

151
319 NLRB No. 26
TEAMSTERS LOCAL 186 (ASSOCIATED GENERAL CONTRACTORS)
1 313 NLRB 1232 (1994).
1 In this matter the Respondent and the Charging Party are rep-
resented by the same counsel as the interests of these parties coin-
cide.
Chauffeurs, Teamsters & Helpers Local Union No.
186, International Brotherhood of Teamsters,
AFL–CIO and Martin W. Fry and Associated
General Contractors of California, Inc., &
Teamsters Joint Council No. 42, Parties to the
Contract. Cases 31–CB–8837 and 31–CB–8838
September 29, 1995
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS COHEN
AND TRUESDALE
On May 17, 1994, the National Labor Relations
Board issued a Decision and Order in this proceeding
in which it ordered Chauffeurs, Teamsters & Helpers
Local Union No. 186, International Brotherhood of
Teamsters, AFL–CIO, the Respondent, to make whole
for his money losses and loss of contributions to funds
established by the relevant collective-bargaining agree-
ment the registrant who should have been dispatched
to the Fru-Con job rather than R.T. Jones.1 A con-
troversy having arisen over the amount of backpay and
trust fund payments due under the terms of the Board’s
Order, the Regional Director for Region 31 issued a
compliance specification and notice of hearing on Jan-
uary 30, 1995, alleging the amounts due. Pursuant to
notice, a hearing was held before Administrative Law
Judge Gerald A. Wacknov on May 19, 1995.
On July 7, 1995, the administrative law judge issued
his Supplemental Decision and Order. The Respondent
and the Charging Party filed joint exceptions and a
supporting brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the record and the at-
tached supplemental decision in light of the exceptions
and brief and has decided to affirm the judge’s rulings,
findings, and conclusions.
ORDER
The National Labor Relations Board orders that the
Respondent, Chauffeurs, Teamsters & Helpers Local
Union No. 186, International Brotherhood of Team-
sters, AFL–CIO, Ventura, California, its officers,
agents, and representatives shall make Jason Laws
whole by payment to him of the amounts of backpay
set forth below, less tax withholding required by Fed-
eral and state laws. Interest shall be computed and paid
in accordance with New Horizons for the Retarded,
283 NLRB 1173 (1987). Further, the Respondent shall
make Jason Laws whole by payments of contributions
on his behalf including liquidated damages into the
Western Conference of Teamsters Pension Trust Fund
in the amounts set forth below, plus any additional
amounts due as set forth in Merryweather Optical Co.,
240 NLRB 1213 (1979).
Net Backpay Pension Con-tributions
Liquidated
Damages
Jason Laws $11,998.48 $2,445.52 $294.66
Bernard Hopkins, Esq., for the General Counsel.
David A. Rosenfeld, Esq. (Van Bourg, Weinberg, Roger &
Rosenfeld), of Oakland, California, for the Respondent and
the Charging Party.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge. A
hearing in this compliance matter was held before me in Los
Angeles, California, on May 19, 1995. On May 17, 1994, the
National Labor Relations Board issued a Decision and Order
in the above-captioned matter finding that the Respondent
Union had violated Section 8(b)(2) and (1)(A) of the Act
(313 NLRB 1232 (1994)). The Board’s Order, inter alia, pro-
vides that the Respondent:
Make whole for his money losses and loss of contribu-
tions to funds established by the relevant collective-bar-
gaining agreement the registrant who should have been
dispatched rather than J. T. Jones to the Fru-Con job.
Thereafter, on January 30, 1995, the Regional Director for
Region 31 of the National Labor Relations Board (the Board)
issued a compliance specification alleging that backpay in
the amount of $11,998.48, plus interest, was owed to Jason
Laws, alleged to be the registrant who should have been dis-
patched to the Fru-Con job, and further, that the Respond-
ent’s contributions to the Western Conference of Teamsters
Pension Trust Fund for credit to the account of Jason Laws
should be $2,445.52 plus liquidated damages in the amount
of $294.66.
The parties were afforded a full opportunity to be heard,
to call, examine and cross-examine witnesses, and to intro-
duce relevant evidence. The parties argued the matter orally
at the hearing, and since the close of the hearing briefs have
been received from counsel for the General Counsel, and
counsel for the Respondent and the Charging Party.1 On the
entire record, and based on my observation of the witnesses
and consideration of the briefs submitted, I make the follow-
ing
FINDINGS OF FACT
The General Counsel takes the position that, as alleged in
the compliance specification, the amounts set forth above are
owing to Jason Laws, a registrant for employment on the Re-
spondent’s out-of-work list, who should have been dis-
patched to the Fru-Con job on April 27, 1992. The Respond-
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152 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 Although the Respondent raised other issues at the hearing, it did
not pursue them in its brief. In any event, the record clearly shows
that they are without merit.
3 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
ent takes the position that a different registrant, namely, Mar-
tin Fry, the Charging Party, would have been referred to the
Fru-Con job, and that therefore backpay is owed to Fry rath-
er than Laws. Further, the Respondent takes the position that
since the Respondent herein is a labor organization rather
than an employer, the Respondent should not be required to
pay liquidated damages to the trust fund.
It is agreed by the parties that on April 27, 1992, the first
three names on the Respondent’s official out-of-work (dis-
patch) list were as follows:
J.T. Jones
Jason Laws
Marty Fry
The Board specifically found that J.T. Jones was improp-
erly placed at the head of the dispatch list, and as a result
was improperly dispatched to the Fru-Con job on April 27,
1992. Accordingly, the General Counsel maintains that Jason
Laws, the second registrant on the list, should have been re-
ferred to the job and is therefore entitled to be made whole.
The Respondent takes the position that Fry, rather than Laws,
should have been in the second position on the list, as Laws
had turned down several jobs prior to April 27, 1992, and
therefore should have been relegated to the bottom of the
list. Further, the Respondent maintains that Laws made an in-
sufficient effort to mitigate the Respondent’s backpay liabil-
ity.
The first contention of the Respondent is that during the
period prior to April 27, 1992, while Laws was among the
top few registrants on the out-of-work list, he turned down
three or more referrals and, in accordance with the hiring
hall dispatch procedures, should have been removed from his
position on the list. The dispatch procedures for the hiring
hall (General Dispatching Practices: Par. 9) provides, inter
alia, that a registrant may refuse to accept a dispatch three
times before being relegated to the bottom of the list or
being removed from the list for a 30-day period. Thus, the
rules clearly permit registrants to be selective regarding the
jobs they wish to accept, without jeopardizing their place-
ment on the list.
Laws testified that in March 1992 he was offered a job
through the hiring hall but elected to turn it down; this job
is continuing to date. Laws further testified that it was the
only time he turned down a job prior to April 27, 1992. The
Respondent, relying on certain dispatch lists, argues that the
lists indicate that three or more individuals other than Laws
were sent out to various jobs during times when Laws was
at the top of the list, and that this necessarily indicates that,
in fact, Laws turned down three or more jobs.
The record evidence shows that the Respondent customar-
ily notes on the out-of-work list when a registrant has de-
clined a job, and the lists, introduced into evidence, do not
corroborate the Respondent’s position that Laws declined any
jobs after April 27, 1992. Moreover, the Respondent did not
call as a witness the dispatcher who maintained the lists and
referred the registrants at the time in question. There could
be various explanations for Laws being passed over prior to
April 27, 1992. For example, employers have the right to re-
quest specific individuals from the list; or the dispatcher may
have made a mistake by referring others rather than Laws.
Unless the dispatcher is presented as a witness to provide an
explanation for his dispatching methods, the Respondent’s
contention in this regard is mere speculation. Moreover, I
credit the testimony of Laws, who appeared to have a clear
recollection of the events in question, and I find that he
turned down only one job prior to April 27, 1992, as was
his right under the applicable procedures without losing his
placement on the list.
Next, the Respondent maintains that part of the work of
the employee dispatched to the Fru-Con job was that of a
warehouseman who performed shipping and receiving re-
sponsibilities and also was in charge of the ‘‘crib cage,’’
which required that the individual ‘‘issue’’ tools. This was
the job, according to the Respondent’s witness, Martin Fry,
who was familiar with the Fru-Con job, of either a
‘‘partsman’’ or, according to Fry, a ‘‘warehouseman.’’ The
registration form submitted by Laws specifically shows that
he was willing to perform ‘‘warehouseman’s’’ duties. I there-
fore find that this contention of the Respondent is without
merit.
The Respondent also takes the position that subsequent to
April 27, 1992, Laws did not seek other work and has there-
fore failed to mitigate the Respondent’s backpay liability.
However, the record shows that at all material times Laws
was a registrant on the Respondent’s out-of-work list, and
this is conclusive evidence of his ongoing attempt to seek
work. Further, during this period of time Laws did not know
that the Respondent had unlawfully failed to dispatch him to
any jobs, and therefore he was under no obligation to miti-
gate his backpay.2
CONCLUSIONS OF LAW3
On the basis of the foregoing and the entire record herein,
I conclude that the Respondent’s obligation under the
Board’s Order will be discharged by the payment of the
amounts as alleged in the compliance specification and set
forth above to Jason Laws, as the registrant who would have
been referred to the Fru-Con job absent the Respondent’s un-
lawful conduct as found by the Board. As the Respondent
has not presented any persuasive argument or cited any ap-
plicable precedent regarding its contention that it should not
be held liable for the liquidated damages, as alleged, I rec-
ommend that the Respondent also pay to the trust fund the
liquidated damage amount as set forth above.
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