N.L.R.B. v. United Contractors Inc.

• Decision Date: 03 August 1983
• Docket Number: 82-1563,Nos. 82-1556,s. 82-1556
• Citation: 713 F.2d 1322
• Parties: 114 L.R.R.M. (BNA) 2076, 98 Lab.Cas. P 10,355 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. UNITED CONTRACTORS INCORPORATED and JMCO Trucking Incorporated, Joint Employers, Respondents.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1322

713 F.2d 1322

114 L.R.R.M. (BNA) 2076, 98 Lab.Cas. P 10,355

NATIONAL LABOR RELATIONS BOARD, Petitioner, v. UNITED CONTRACTORS INCORPORATED and JMCO Trucking

Incorporated, Joint Employers, Respondents.

Nos. 82-1556, 82-1563.

United States Court of Appeals, Seventh Circuit.

Argued Dec. 9, 1982.

Decided Aug. 3, 1983.

Federick Havard, Elliott Moore, N.L.R.B., Washington, D.C., for petitioner.

Joseph W. Weigel, Milwaukee, Wis., for respondents.

Before BAUER and COFFEY, Circuit Judges, and HOFFMAN, Senior District Judge. ^*

COFFEY, Circuit Judge.

This case is before the court on the application of the National Labor Relations Board ("NLRB" or "the Board") for enforcement of two decisions of the Board directing the joint employer respondents, JMCO Trucking Inc. and United Contractors Inc., to make back pay and fringe benefit payments to three employees who the Board and this Court found were unlawfully laid off and discharged. The respondents challenge the formulas used by the Board to compute the monies due the employees. As the NLRB properly calculated the amounts due the employees after thoroughly considering the evidence before it, we grant enforcement of the Board's orders.

I.

The two orders herein concern two separate and distinct periods of discriminatory layoffs and discharges. The factual and procedural background of each of the orders will be treated separately.

A. "United I "

In September of 1974, Milan Mix, Guy Bourdo, and Percy Williams were truckdriver employees of JMCO and members of Local No. 200 of the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America ("the union"). In June and September of 1974 Mix and Bourdo filed grievances with the union challenging a new compensation plan unilaterally instituted by their employer. After the union questioned the president of both JMCO and United Contractors, James Mews, about the grievances, Mews discharged the three employees, stating that he had no use for their services until the "union problems" were straightened out.

The union filed an unfair labor practice charge with the NLRB on October 11, 1974 and two and one-half months later the Board issued a complaint charging the company with discriminatorily discharging the three union employees and refusing to bargain with the union. JMCO reinstated Bourdo and Mix in late January of 1975 and Williams was reinstated in late July of the same year.

The Board ruled on the complaint in United Contractors, Inc., 220 N.L.R.B. 463 (1975), holding that: (1) The truckdrivers employed by United Contractors and JMCO Trucking Inc. (collectively "the Company") were an appropriate unit for collective bargaining within the meaning of Section 9(b) of the National Labor Relations Act ("the Act"); (2) United and JMCO are to be considered a single employer within the meaning of the Act; (3) The Company discriminatorily discharged drivers Mix, Bourdo and Williams on September 30 and October 4, 1974 in violation of Sections 8(a)(1) and (3) of the Act; (4) The Company violated Section 8(a)(5) of the Act by ceasing to make contributions to established employee benefit funds as required under the collective bargaining agreement; and (5) The Company was required to offer reinstatement to the truckdrivers and to make each of them "whole for any loss of earnings [they] may have suffered by reason of the discrimination against [them]." United Contractors, Inc., 220 N.L.R.B. at 471.

Subsequently the Company petitioned this court to review the Board's decision This court subsequently refused to enforce the Board's supplemental backpay decision and remanded the proceeding to the NLRB for a new hearing holding that "the administrative law judge and the Board ignored uncontradicted evidence that the Board's back pay formula was inapplicable in this case." NLRB v. United Contractors, Inc., 614 F.2d 134, 135 (7th Cir.1980). The Board was directed to consider the following factors: (1) "that employment was irregular and that economic factors may have prevented the discharged employees from working at JMCO during part of the layoff period"; (2) "that during slack periods driving [duties were] assigned to available employees according to seniority, regardless of whether the worker usually drove a truck"; (3) "that there was no work for Williams during the layoff period [and] no replacement for him was hired"; and (4) that Bourdo's backpay award was excessive in that he was unavailable for work due to illness. United Contractors, Inc., 614 F.2d at 137-38.

                and the NLRB cross-petitioned for enforcement of its order.   This court enforced the NLRB's order in  United Contractors, Inc. v. NLRB, 539 F.2d 713 (7th Cir.1976), cert. denied, 429 U.S. 1061, 97 S.Ct. 785, 50 L.Ed.2d 777 (1977).   In attempting to comply with this court's decision, the Board's Regional Director issued a back pay specification calculating the award on the basis of a formula incorporating the "average weekly wages" of Mix, Bourdo and Williams. 1  In a supplemental decision the Board affirmed the administrative law judge's decision, accepting the Regional Director's back pay formula and award.   United Contractors, Inc., 238 N.L.R.B. 893 (1978)
                

On April 15, 1980, this court denied an NLRB petition for modification of our decision directing a remand. After holding a hearing to consider additional evidence on the issues noted in this court's decision, the administrative law judge ("ALJ") issued a second supplemental decision and back pay order which was later affirmed by the Board. United Contractors, Inc., 259 N.L.R.B. 1069 (1982).

The Board's amended computation of the backpay due Mix, Bourdo and Williams is based on the hours actually worked by the non-unit and replacement drivers during the 1974-75 layoff period as reflected in the JMCO payroll records. The amended computation assigned to the discriminatees, on the basis of their (Bourdo, Mix and Williams) unit seniority, the earnings of the replacement drivers and non-unit employees who periodically drove a truck. To arrive at the gross backpay owed to Mix and Bourdo the replacements' hours were multiplied by the applicable wage rate for the time period in question pursuant to the collective bargaining agreement. Under this method of computation, the Board determined that work would not have been available for Williams even had he not been discriminatorily discharged and, accordingly, it refused to award him backpay for that period.

At the hearing before the administrative law judge, the Company contended that the hours worked by the non-unit employees should not be assigned to the discriminatees as each of them had more company-wide seniority than either Mix or Bourdo. The Company's argument was premised upon its claim that a company-wide seniority plan was in operation at the time of the layoffs that allowed the transfer of truck-driving assignments to senior non-unit employees. ²

After hearing the testimony, the administrative law judge held, and the Board The Board's second supplemental decision further directed the Company to make payments to two employee benefit funds in accordance with the terms of the collective bargaining agreement. Fund contributions were declared due for weeks during the period of time that Mix, Bourdo and Williams did not work and for a period that the Company had earlier refused to make contributions although the drivers were working. The Company asserted that it tendered contributions to the respective funds, but the fund trustees refused to accept the monies. The administrative law judge after reviewing the record determined that the payments had never in fact been tendered. The Board's second supplemental decision ordered the Company to comply with the terms of the contract and to forthwith make the contributions to the benefit funds. Even though Williams was not awarded backpay, the Company nevertheless was ordered to make benefit fund contributions to the fund on his behalf for that period the Company had failed to make contributions. The Board directed the Company to contribute $964.50, $892.50 and $219.60 to the pension, and health and welfare funds on behalf of Mix, Bourdo and Williams, respectively. ⁴

                agreed, that the Company failed to demonstrate that a company-wide seniority plan existed during the 1974-75 layoff period.   The ALJ noted prior instances wherein the Company selectively laid off some of its most senior employees during slack periods while, at the same time, it retained the services of unit employees (truckdrivers) with less company-wide seniority.   Thus, the Company's alleged policy of company-wide seniority was not substantiated in the record.   In his findings, the administrative law judge found that the testimony of the Company's president, James Mews, concerning the seniority plan was incredible and, further, found that the testimony of Frank Watson, the Company's most senior employee was accorded little or no weight as it was vague, hostile and evasive.   The administrative law judge also cited this court's earlier order in  NLRB v. United Contractors, Inc., 631 F.2d 735 (7th Cir.1980) in his decision.   In determining the amended backpay award, the ALJ assigned the hours worked by all the replacement drivers between October 11, 1974 and February 4, 1975 to Mix and Bourdo respectively.   The Board's January 15, 1982 second supplemental decision that affirmed the administrative law judge's determinations ordered the Company to reimburse Mix $2,169.15 and Bourdo $1,678.42 plus six percent interest, less the federal and state withholding taxes. 3
                

B. "United II "

The second Board order under scrutiny involves the same parties as those involved in the earlier United I dispute. On May 17 and May 27, 1977, Guy Bourdo (Company truckdriver), filed grievances with the union alleging that the Company had failed to consider his seniority in his work assignments and also that he was not being paid in accordance...