N.L.R.B. v. United Broth. of Carpenters and Joiners of America, Local No. 1913, AFL-CIO
| Decision Date | 12 February 1976 |
| Docket Number | No. 74--3273,R,AFL-CI,74--3273 |
| Citation | 531 F.2d 424 |
| Parties | 91 L.R.R.M. (BNA) 2542, 78 Lab.Cas. P 11,269 NATIONAL LABOR RELATIONS BOARD, Petitioner, v. UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA, LOCAL $1913,espondent, and Carpenters Pension Trust for Southern California and Its Trustees J. W. Bernard et al., Intervenors. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Before BROWNING and SNEED, Circuit Judges, and SMITH, * District Judge.
This case is before us upon an application by the National Labor Relations Board (the Board) for enforcement of its Supplemental Decision and Order for back pay and pension benefits due a worker who was the object of union discrimination. For the reasons hereinbelow stated the Board's supplemental order will be enforced in part, reversed in part, and modified in part.
In the initial proceeding in this matter, the Board found that as a result of unfair labor practices by the Carpenters, Local $1913 (the Union), Michael R. Amato was discriminated against by several employers. The Board issued an order requiring the Union, inter alia, to make Amato whole for any loss of earnings resulting from the discrimination against him and to notify in writing the employers concerned that it had no objection to the employment of Amato. 189 NLRB 521 (1971). This Court granted the Board's application for the enforcement of that order. 464 F.2d 1395 (1972).
When the parties were unable to agree upon the amount of back pay due, the Board, pursuant to proper procedure, issued a Supplemental Decision and Order, 213 NLRB No. 53, which affirmed the findings and conclusions of the administrative law judge, and adopted his recommended order awarding to Amato back pay in the amount of $12,088.34 and pension contributions in the amount of $1,147.30 with interest on both amounts. In addition the Board ordered the Union to restore those rights under the pension plan which would have accrued to Amato if his employment had continued without interruption during the period which it had caused discrimination against Amato to occur. The Board further found that the Carpenters Pension Trust for Southern California (the Pension Trust) and its trustees, who appeared as interested parties, were agents of the Union, and as such, ordered them to accept payment of the amount awarded to Amato for credit to his already established Pension Trust account and to administer said account as though such payment was made by an employer-contributor.
The Board petitions for the enforcement of its Supplemental Decision and Order, the Union disputes the amount of back pay awarded, and the trustees of the Pension Trust, having been granted leave to intervene by this Court, question the designation of the Pension Trust as an agent of the Union and the power of the Board to order it to accept and administer back pay contributions from unions on behalf of a discriminatee.
The Union contests neither the finding of discrimination nor the formula selected by the Board to calculate the amount of back pay due. The Union does, however, contend that Amato is not entitled to the amount awarded, arguing that the Board erred both in its determination of the period for which back pay should be awarded, and in its conclusion that Amato undertook a reasonable and diligent search for other employment.
It is well settled that in an unfair labor practice proceeding before the Board the burden is upon the General Counsel of the Board to establish by a preponderance of evidence that there has been an unfair labor practice, that there should be an award of back pay, and, pursuant to the Board's rules (29 C.F.R. Sec. 102.53), the gross amount of back pay due. NLRB v. Brown & Root, Inc., 311 F.2d 447 (8th Cir. 1963). The burden then shifts to the discriminating employer or union to prove circumstances which would limit its liability. NLRB v. Brown & Root, Inc., supra; NLRB v. Superior Roofing Company, 460 F.2d 1240 (9th Cir. 1972). The Board's conclusions concerning whether these matters have been successfully established will be overturned on appeal only if the record, considered as a whole, shows no substantial evidence to support the Board's findings. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951).
We have carefully reviewed the record before us, and conclude that there is substantial evidence to support the Board's conclusion that the Union has not met its burden of negativing the General Counsel's findings. Therefore, the decision and order of the Board in this respect will be enforced.
The Pension Trust was established pursuant to a collective-bargaining agreement between the Union and several employers' associations for their contractor-members. Its principal features are set forth in the margin. 1 On the basis of these features the Board ruled that the Pension Trust was an agent of the Union and ordered it, as an agent, to accept the Union's $1,147.30 payment for credit to Amato's account and to administer the account as though the payment was made by an employer-contributor.
It is generally agreed that both agents and trustees are fiduciaries, but there are significant differences between the two. An agent acts for and on behalf of his principal and subject to his control. A trustee acts for the benefit of the beneficiaries of the trust; he is an agent only if he agrees to hold title for the benefit and subject to the control of another. Restatement 2d, Agency § 14B; Restatement 2d, Trusts § 8. Unless the Union can be said to have control of the operations of the Trust, the Trust should not be treated as the Union's agent.
We can find nothing in the record which suggests that the Trust works for or is subject to the control of the Union. The Trust...
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