NOTICE: This
opinion is subject to formal revision before publication in the bound volumes
of NLRB decisions. Readers are requested
to notify the Executive Secretary, National Labor Relations Board,
Contractor Services, Inc. and International Brotherhood of Electrical Workers, AFL–CIO, Local
347. Cases 10–CA–28856, 10–CA–29123 (Formerly
15–CA–13683), and 10–CA–29174 (Formerly 18–CA–13875)
September 27, 2007
supplemental DECISION AND ORDER
By Chairman Battista and Members Schaumber
and Kirsanow
On April 24, 2002, Administrative
Law Judge Lawrence W. Cullen issued the attached decision. The General Counsel
filed exceptions and a supporting brief, to which the Respondent
filed an answering brief. The Respondent
filed exceptions and a supporting brief, to which the General Counsel filed an
answering brief. The Respondent also filed a reply brief to the General Counsel’s
answering brief. Additionally, two amici curiae, Associated Builders and
Contractors, Inc. (ABC) and the International Brotherhood of Electrical Workers
(IBEW), filed briefs. The General Counsel filed an answering brief responding
to ABC’s brief. The Respondent filed an answering brief responding to IBEW’s
brief.[1]
The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel.
The Board has
considered the supplemental decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rulings, findings, and
conclusions only to the extent consistent with this Supplemental Decision and
Order.
1. On May 31,
2007, the Board issued its decision in Oil
Capitol Sheet Metal, Inc., 349 NLRB No. 118. Oil Capitol
requires the General Counsel, as part of his burden of proving a reasonable
gross backpay amount due, to present affirmative evidence that a union salt who
was discriminated against, if hired, would have worked for the employer for the
backpay period claimed in the General Counsel’s compliance specification.
The judge found
that discriminatee William H. Hunt, Sr., a volunteer union organizer, was a “salt.” Accordingly, we shall remand this case to the
judge for further consideration of Hunt’s backpay in light of Oil Capitol, including allowing the
parties to file briefs on the issue, and, if warranted, reopening the record to
present evidence relevant to deciding the case under the Oil Capitol framework.[2]
2. Although
discriminatee Tracy Landers, a paid union organizer, also was a salt, his
backpay entitlement is not encompassed by our remand. Wholly apart from the issues addressed in Oil Capitol concerning the length of the
backpay period for salts, we find
that the General Counsel failed to show that his gross backpay calculation was
reasonable as to Landers. We further
find, in agreement with the judge, that Landers did not exercise reasonable
diligence in searching for interim employment during his backpay period. Accordingly, we find that Landers is entitled
to no backpay because of his failure to mitigate.[3]
Factual Background
The Respondent is a temporary job referral agency, based
in
The Respondent’s owner, Christine Arnold, testified that a
candidate’s residence and willingness to travel are important criteria used by the
Respondent to select candidates for referral. Only candidates residing within
75 miles of the job are referred to “locals only” jobs—those where the
contractor does not pay a per diem allowance for travel. The Respondent will refer out-of-town candidates
to those jobs that do offer a per diem allowance. The Respondent generally prefers to refer candidates
who indicate a willingness to travel to these “per diem” jobs, but has opened
up those jobs to candidates who have not indicated a willingness to travel when
necessary to fill them.
Both Landers and Hunt submitted applications to the
Respondent in the fall of 1995. In response to their applications, the
Respondent mailed them a form that required them to obtain “authorization” from
the Union and an affirmation that they were not being “subsidized” by the
Landers is a professional union organizer and a full-time employee of
the
The General Counsel alleged that Landers’ backpay period began on September
21, 1995, when
he applied with the Respondent, and ended approximately 46 months later
when he accepted
a position as the
On his application with the Respondent, Landers indicated that he lived
in
Hunt was a journeyman electrician and volunteer union organizer. The General Counsel alleges that his backpay
period began on November 21, 1995, when he applied with the Respondent, and
ended approximately 5 years later when he turned down the Respondent’s referral
to a job in
During Landers’ and Hunt’s respective backpay periods, the Respondent referred
numerous candidates to jobsites throughout the country. Although some referrals were to jobsites
located in the Southeastern states, there is no evidence that any were to
jobsites within the
Discussion
The Region’s compliance specification estimated the gross backpay due to
Landers and Hunt by using the “comparable employee” method. Based on Landers’ and Hunt’s assurances to
the Region’s compliance officer that they would have accepted job referrals
from the Respondent at any location for any duration, the compliance
specification averaged the quarterly earnings of 12 allegedly comparable employees
who had worked for the Respondent most regularly in consecutive years to
estimate what Landers and Hunt would have earned absent the Respondent’s
unlawful discrimination. The compliance
specification also offset Landers’ and Hunt’s interim earnings during the
backpay period against the gross backpay determination for each of them. Based
on this methodology, the compliance specification sought backpay of $80,389.05
plus interest for Landers and $11,738.03 plus interest for Hunt.
As to Hunt, the judge specifically found that the backpay specification utilized by the General Counsel to determine his gross backpay was reasonable, and that Hunt exercised reasonable diligence in seeking interim employment through union hiring halls during the backpay period. He therefore concluded that Hunt was entitled to backpay as set out in the compliance specification.
The judge made no findings concerning the gross backpay
figure for Landers. Instead, he found
that Landers incurred a willful loss of earnings because he “completely
disregarded any opportunities to obtain work through out of work lists in the
hiring hall of his own local union and of local unions in other jurisdictions.” The judge further found that Landers
apparently was satisfied with the pay he received from the
Although the judge found that Landers failed to mitigate his damages, he went on to find that, because it was “axiomatic that some backpay is owing to Landers,” a reasonable amount of backpay for Landers was the same amount of backpay due to Hunt. The judge accordingly found that both Landers and Hunt were entitled to backpay in the amount of $11,738.03 plus interest.
A. Gross Backpay
The purpose of backpay is remedial and not to punish the
respondent. Republic Steel Corp. v. NLRB, 311
The comparable or
representative employee approach is an accepted methodology for computing backpay. See Performance
Friction, supra. Its application,
however, is premised on a showing that the work, earnings, and other conditions
of employment of the allegedly representative employees were, in fact,
comparable to those of the discriminatee both before and after the unlawful
action. NLRB Case Handling Manual (Part Three)
Compliance Section 10540.3. Consistent
with these principles, “the representative employee formula may not be employed
unless it is representative of” the discriminatee. NLRB v.
Ironworkers Local 378, 532 F.2d 1241, 1243–1244 (9th Cir. 1976) (rejecting
compliance specification that treated discriminatee as comparable to elite
group of steadily employed ironworkers absent sufficient justification), on
remand 227 NLRB 692 (1977), supplemented by 262 NLRB 421 (1982). When the employment of the work force as a
whole is “intermittent, the fact of intermittency must be taken into account
unless there is something in the record which justifies a finding that, for some
reason, the employee involved would not have been affected by the fluctuations
that affected the group as a whole.”
As shown above,
the Respondent’s employees are employed intermittently based on the
availability of referrals from the Respondent and the employee’s willingness to
accept them. The allegedly comparable employees,
however, were those who worked most consistently for the Respondent during the
backpay period. We find that the General
Counsel has failed to establish that these individuals were “representative of”
Landers. NLRB
v. Ironworkers Local 378, supra.
There is no
evidence that the allegedly comparable employees placed any limits on the
referrals they would accept. A number of
them accepted referrals to jobs in multiple states.[8] Those jobs ranged in duration from 1 day to a
month or more and included jobs in
We recognize that Landers told the Region’s compliance officer that he would have accepted any job referrals from the Respondent and repeated this claim in his testimony as well. But the judge made no credibility findings concerning this self-serving and uncorroborated testimony, which is inconsistent with the record as a whole. In these circumstances, this testimony is insufficient to meet the General Counsel’s burden of proof.
The General Counsel thus
has failed to prove that Landers would have accepted referrals outside of the
B. Mitigation of Backpay
Once the General Counsel has shown that his gross
backpay determination is reasonable, an employer may mitigate its
backpay liability by showing that the backpay claimant did not make a reasonably
diligent effort to obtain substantially equivalent employment during the backpay
period. Millennium Maintenance &
Electrical Contracting, Inc., 344 NLRB No. 62, slip op. at 2 (2005); Glenn’s Trucking, 344 NLRB No. 41, slip
op. at 1 (2005). The Board’s requirement that a discriminatee attempt to
mitigate his loss of earnings furthers the public policy of “promoting production
and employment” on the part of the discriminatee and discourages the discriminatee from remaining idly unemployed.
Phelps Dodge Corp. v. NLRB, 313
The General Counsel has excepted to the judge’s analysis of Landers’ mitigation efforts and his finding that Landers unreasonably failed to mitigate his loss of earnings during the backpay period.[12] The General Counsel argues that, under the Board’s current mitigation analysis for professional union organizer-discriminatees, Landers satisfied his duty to mitigate his loss of earnings by following his regular method of searching for work. Having done so, Landers was not obligated to expand the scope of his search to include union employers, even after he found no success with nonunion employers.[13]
We have previously found that the gross backpay amount advanced by the General Counsel is unreasonable as to Landers because the formula applied to him was not appropriate. Further, even had the General Counsel established an appropriate backpay formula as to Landers, and a resultant gross backpay figure, we agree with the judge that, for the reasons in his decision and those below, Landers unreasonably failed to mitigate his loss of earnings during the backpay period, and is not entitled to backpay.
In Ferguson Electric,
supra, the Board considered whether a professional union
organizer-discriminatee reasonably mitigated his loss of earnings by searching
for work only with nonunion employers that the union had targeted for
organizing.
Applying these
principles, we find that Landers unreasonably failed to mitigate his loss of
earnings during the backpay period. As
noted above, the
Second, we agree
with the judge that Landers should have broadened the scope of his search
efforts to include union employers after discovering that work with nonunion
employers was not readily available to him. NLRB
v. Madison Courier, Inc., 505 F.2d 391, 402 (D.C. Cir. 1974) (“[W]hen it
became apparent that [substantially equivalent jobs] were not available . . . ,
the claimants should have broadened the scope of their search.”). Landers’ job
search eschewed a common and accessible source of replacement employment opportunities,
the hiring hall. Thus, once it was apparent that the pool of nonunion employers
in the
We recognize that
the limited scope of Landers’ interim job search was in keeping with his duty
to his Union employer to seek jobs that presented opportunities for
organizing. In saying that Landers
should have broadened his job search, we do not mean to suggest that Landers
should have abrogated his duties to his Union employer. Our point is simply that where an
organizer-discriminatee’s loyalty to his union employer results in an
unreasonably limited job search, that individual cannot avoid the usual
consequences of such an insufficient search, i.e., a loss of backpay. In plain terms, Landers cannot have his cake
and eat it, too. We recognize that under
Ferguson Electric, the mere fact of
union-imposed limits on a job search, without more, does not meet an employer’s
burden to show failure to mitigate. As explained
above, however, Ferguson Electric
does not preclude finding a failure to mitigate where union-imposed limits resulted in an unreasonably limited job
search. That is the case here, as the
contrasting interim employment records of Hunt and Stolp make abundantly clear.
We also observe
that, during the backpay period, and despite his ongoing failure to obtain
interim employment, Landers contacted, on average, less than one employer per month and
actually applied with only 23 employers during the approximately 46-month
backpay period. In 7 quarters of the backpay period, Landers made no applications
for work at all. We need not decide here
whether the number of applications Landers submitted, standing alone, establish
a failure to mitigate his loss of earnings. Taken together with the other
evidence cited above, however, his haphazard efforts support our
finding that Landers failed to search for interim employment with the requisite
diligence.
In sum, for the reasons stated above, we find that Landers
failed to make “an honest and good-faith effort” to obtain interim employment. Chem Fab, supra, 275 NLRB at 21.
ORDER
It is ordered that this proceeding is remanded to the
administrative law judge for appropriate action as noted above.
It is further ordered that the administrative law judge shall
prepare a second supplemental decision setting forth credibility resolutions,
findings of fact, conclusions of law, and a recommended Order, as appropriate
on remand. Copies of the second
supplemental decision shall be served on all parties, after which the provisions
of Section 102.46 of the Board’s Rules and Regulations shall be applicable.
Dated,
Robert J. Battista, Chairman
Peter C. Schaumber, Member
Peter N. Kirsanow, Member
(seal) National
Labor Relations Board
Lauren Rich, Esq., for the General Counsel.
Arthur W. Eggers, Esq. and James S. Zmuda, Esq. for the Respondent.
DECISION
Statement of the Case
The issues as framed by the Backpay Specification and Respondent’s Answer are whether Respondent must pay Tracy Landers the sum of $80,389.05, plus interest, and William H. Hunt, Sr. the sum of $11, 738.03, plus interest.
General Counsel contends that the compliance officer reasonably approximated the backpay owed as a result of the discrimination against Landers and Hunt. General Counsel contends that Respondent is gambling “all or nothing” that the discriminatees are entitled to NO backpay. She contends that Respondent does not dispute the method or formula used to calculate backpay nor the actual calculations of backpay. She notes that Respondent does not propose any alternative amount or method of calculating backpay other than zero. She contends that Respondent is therefore barred from making any arguments now pursuant to Section 102.56(b) of the Board’s Rules and Regulations which required Respondent in its Answer to set forth all “the applicable premises and furnish[ing] the appropriate supporting figures.” She contends that Respondent should not now be permitted to argue any alternative theory not alleged in its answer pursuant to Section 102.56(b).
Respondent operates a temporary employment service and refers employees of several construction trades to construction jobs throughout the United States and maintains a list of various skilled employees for referral such as electricians, plumbers, pipefitters and carpenters and was found in the underlying unfair labor practice case to have failed and refused to consider for hire and to hire the discriminatees for employment at various jobsites throughout the United States. Employees file applications with Respondent listing their skills and work history and willingness to travel or restrictions on travel. In the instant case Landers and Hunt each indicated they were willing to travel. Based on their applications and on the assurances of Landers and Hunt, the Region’s compliance officer, Diane Williams, testified she utilized the “comparable or representative employee method” to calculate gross backpay which is an accepted methodology and is appropriate in this case. See Performance Friction Corp., 335 NLRB 1117 (2001). In the first step, Williams identified employees whose earnings were comparable to or representative of the gross backpay amounts Hunt and Landers would have earned had Respondent not discriminated against them. In step two of the process she tracked the gross backpay earned by each of the comparable or representative parties during the backpay period. In step three, she averaged the groups’ earnings by quarter, to project the gross backpay Hunt and Landers would have earned in each quarter in the absence of Respondent’s discrimination. In the next step she deducted (on a quarter by quarter basis) the discriminatees’ interim earnings from gross backpay, to reach the net backpay due for each calendar quarter. In the final step she totaled the quarterly amounts due to reach the total amount of net backpay due.
Compliance Officer Diane Williams testified that she relied on the discriminatees’ statements that they would have accepted any job offered by Respondent at any location and for any duration. Based on these assurances she concluded that they would have worked regularly for Respondent over consecutive years with substantial earnings in each year. She utilized the records supplied to her by Respondent and developed “profiles of 231 employees who worked for Respondent during the backpay period.” She selected 12 employees as a representative group who had worked most regularly for consecutive years. The records disclose that of the 12 employees 7 had worked 4 consecutive years and 5 had worked 3 consecutive years. The compliance officer reasoned that because Hunt and Landers were union salts they would have worked at distant locations because of their goals to organize employees.
General Counsel contends that the Region was neither “unreasonable”
nor “arbitrary” in relying on Hunt’s and Landers’ representations that they
would have accepted work at any location during the backpay period. Respondent only initially made its first
offer to Hunt and Landers of job assignments in
This case presents an anomaly wherein Landers testified
that because of his position as a paid union organizer he did not seek
electrical work through the
General Counsel contends that Landers restriction of his search for work to nonunion employers was not a wilful loss of earnings such as to forfeit his right to backpay. General Counsel argues that Landers failure to obtain employment from nonunion employers “speaks volumes” about the discrimination practiced by nonunion employers who refuse to hire salts who have the dual purpose to obtain electrical work and to organize their nonunion work force. The Supreme Court in NLRB v. Town & Country Electric, 516 U.S. 85 (1995), recognized that salts may legitimately have a dual purpose in their search for work which is to both obtain work and to organize unrepresented employees in the work force. Thus, these employees are protected in their efforts to seek employment as salts under Section 7 of the Act, which gives employees the right to obtain work and to organize on behalf of unions and to seek union representation on behalf of unrepresented employees.
In Aneco, Inc., 333
NLRB 691 (2001) Petition for review granted in part and denied in part cross
petition granted in part and denied in part and remanded, 285 F.3d 326 (4th Cir.
2002), the Board adopted the decision of the administrative law judge (ALJ)
that the union organizer in that backpay case had exercised reasonable
diligence in searching for work by following his regular method of finding
work. In the Aneco case as in the instant case involving Landers the union
organizer did not apply for work at unionized employers or utilize the
In Knickerbocker Plastics Co., 132 NLRB 1209, 1219 (1961), the Board held that a discriminatee who had 12 years experience as a captain of waiters who did not apply for this type of job because he did not want it, had incurred a wilful loss of earnings. The Board stated at 1219, “It is incumbent on a claimant to seek a job for which he has extensive experience.” In the instant case before me Landers was a journeyman electrician with years of experience but wilfully chose to ignore his opportunities to utilize his own union hall’s referral systems and referral systems of other unions in the electrical trade.
In the instant case Landers was a paid union organizer who attempted to enhance his income by filing unfair labor practice charges against nonunion employers but completely disregarded any opportunities to obtain work through out of work lists in the hiring hall of his own local union and of local unions in other jurisdictions. Under these circumstances, I find that Landers did incur a wilful loss of earnings during the backpay period of over 5 years and is not entitled to the amount of backpay set out in the compliance specification. Although the Act protects employees who serve as salts and may have a dual purpose to obtain work and to organize unrepresented employees, it does not support the proposition that discriminatees may restrict their opportunities to obtain interim employment by completely disregarding opportunities to obtain work through union hiring halls. Thus, a nonunion employer may be held to have violated the Act by refusing to hire a union salt because of his union affiliation and the employer may be ordered to make the salt whole for loss of earnings and benefits incurred as a result of the discrimination. However, the employee must engage in a reasonable search for work as recognized in Heinrich Motors, Inc., 166 NLRB 783 (1967), enfd. 403 F.2d 145 (2d Cir. 1968). I am aware of the Board’s long standing rule that in compliance and backpay cases any doubts must be resolved against the wrongdoer. P*I*E Nationwide, 297 NLRB 454, 457 (1989). However, in the case before me I find there is no doubt but that Landers engaged in a wilful loss of earnings in this case by completely disregarding opportunities to obtain interim earnings by seeking employment with organized employers and through the use of union hiring halls including the hiring hall operated by his own local union. It is clear that Landers was seeking to treat the finding of a violation against the Respondent in this case as a windfall to which he was entitled without regard to any reasonable obligation on his part to seek interim employment. I find that the Act does not support such a conclusion. It provides for the redress of losses by employees and is remedial. The Act is not punitive.
I find that the backpay specification utilized by Compliance Officer Williams was reasonable under the circumstances and shall be adopted and followed in the case of discriminatee Hunt who sought and found work during the backpay period and had interim earnings offsetting the backpay. It is well established that the finding of discrimination having been practiced against an employee by an employer resulting in a loss of wages and benefits supports the conclusion that some backpay must be due and owing. NLRB v. Mastro Plastics Corporation, 354 F.2d 176, 178 (2d Cir. 1965, cert. denied 384 U.S. 972 (1966). In a backpay case the General Counsel must only submit the backpay specification and the Respondent must rebut it by demonstrating that it is incorrect, arbitrary or unreasonable Performance Friction Corp., supra. It is also well established that any uncertainty in a backpay case must be resolved against the wrongdoer whose unlawful actions created the uncertainty. P*I*E Nationwide, supra; Cobb Mechanical Contractors, 333 NLRB 1168 (2001). However, the Board also recognizes that an employee should not be compensated with backpay for wilfully engaging in a loss of earnings. Ferguson Electric Co., 330 NLRB 514 (2000); Aneco, Inc., supra at fn. 3:
We affirm the judge’s finding that Cox mitigated his loss
through a reasonable job search in those quarters of the backpay period for which
the General Counsel seeks backpay. We
do not, however, rely on the judge’s interpretation of Ferguson Electric to the extent that he suggested that it will always
be reasonable for a paid union organizer engaged in “salting” activities to
conduct an interim job search with limitations imposed by the organizer’s union. On the contrary, the Board stated in
In the instant case, I find that Landers engaged in a
wilful loss of employment by limiting his search for work to nonunion employers
as an open salt where he was repeatedly rejected as an employee. He completely disregarded all opportunities
for employment with unionized employers and failed to apply for work through
union referral systems including his own local union. He apparently was satisfied with the pay he
received from the
It is also axiomatic that an employee must engage in a good faith effort to find work and must broaden his area of search for work if none is to be found otherwise. In the instant case Landers completely ignored his opportunities for employment by failing to utilize union referral systems including his own local union in his own trade of electrical work as a source of employment. It is thus clear that his primary objective in his search for work was to organize nonunion employees.
In Tualatin Electric., Inc., 253 F.3d 714 (D.C. Cir. 2001) at 718, 719 the Court upheld the Board’s determination in Tualatin Electric, 331 NLRB 36, 36–37 (2000), that the salts in that case had “satisf[ied] their obligation to mitigate damages because they followed their normal pattern of seeking employment through the Union’s hiring hall, “citing Ferguson Electric., 330 NLRB 514, 519 and American Navigation Co., 268 NLRB 426, 427 (1983), where the Board held it was reasonable for employee searching for work in mitigation to adhere to job seeking patterns tradition[al] in the trade.” However, in the instant case before me, Landers ignored the traditional manner of seeking work in the trade by failing to utilize union hiring halls where he clearly would have had opportunities to mitigate his damages as did Hunt. While Landers had the right to seek work only as an open salt with nonunion employers he was unable to obtain work through this method. He chose to ignore the traditional manner of obtaining work in his trade by utilizing union hiring halls for referral to work. Thus he did not satisfy his obligation to mitigate his damages.
ORDER
I accordingly conclude that Landers engaged in a wilful loss of earnings and find that the backpay specification is excessive and should be disregarded with respect to Landers. However, I find that it is axiomatic that some backpay is owing to Landers. I find under these circumstances and limited to the facts of this case, that a reasonable calculation of backpay for Landers is the same amount of backpay due Hunt who engaged in a search for work and did not limit his opportunities for employment as did Landers. I thus conclude that Hunt and Landers should each receive backpay in the amount of $11,738.03 as set forth in Appendix A for Hunt. Said amounts shall be payable plus interest to be computed in the manner prescribed in New Horizons for the Retarded, 283 NLRB 1173 (1987) minus tax withholdings required by Federal and State laws.
Dated at