Brown and Root, Inc., 486 (1961)

Docket Number:26-CA-00111


On June 27, 1952, the Board issued a Decision and Order in the above-entitled case, finding that Respondents had discriminated against certain named employees in violation of Section 8 (a) (1) and (3) of the Act? Thereafter, the Board's Order was enforced-in part by the United States Court of Appeals for the Eighth Circuit, and a decree was entered on September 18, 1953, against Respondents doing business as joint venturers under the name of Ozark Dam ConFormerly Case No 32-'CA-111.

2 99 NLRB 1031 . On August 15, 1952, the Board issued an Order Correcting Decision and Order, hereinafter attached as Appendix A.

132 NLRB No. 38.

BROWN AND ROOT, INC., ETC. 487 structors.3 The decree provided, inter alia, that Respondents make whole the employees named therein for any loss of pay suffered by reason of Respondents' discrimination against them.

On January 4, 1957, the Regional Director for the Fifteenth Region issued a backpay specification and on July 9, 1957, Respondents filed an amended answer thereto.4 Upon appropriate notice issued by the Regional Director, a hearing was held before Trial Examiner James R. Hemingway, for the purpose of determining the amounts of backpay due the claimants.

On January 8, 1960, the Trial Examiner issued his Supplemental Intermediate Report, attached hereto, in which he found that certain of the claimants were entitled to specific amounts of backpay. Thereafter, Respondents and the General Counsel filed exceptions to the Supplemental Intermediate Report, and supporting briefs.

Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a threemember panel [Members Rodgers, Leedom, and Fanning].

The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed.

The rulings are hereby affirmed.5 The Board has considered the en203 F. 2d 139 , petition for rehearing denied 206 F. 2d 73. The Board 's Order was set aside insofar as it pertained to Respondents doing business under the name of Flippin Materials Co.

* On March 23 and 27, 1957, oral argument was held before Trial Examiner C. W.

Whittemore on a motion by the General Counsel to strike portions of Respondent's first answer to backpay specification. Thereafter, upon the filing of Respondents ' amended answer, the parties entered into a stipulation whereby the General Counsel's motion to strike was withdrawn.

During the course of the hearing, Respondents submitted to the Board an interlocutory appeal from a ruling of the Trial Examiner permitting the General Counsel to introduce into evidence 13 reels of microfilm , containing approximately 26,000 documents from Respondents' payroll records and personnel files. The Board, by telegram to the parties dated August 8, 1958, affirmed the Trial Examiner's rulings and on August 20, 1958, denied Respondents' request to appeal further on this matter. Respondents contend they were denied a fair hearing by the use of the microfilms , particularly the Trial Examiner's utilization of them in the 'secrecy ' of his chambers, and allege that in all instances the Trial Examiner used the films to support the accuracy of the General Counsel's computation The backpay period in the present case covers several years The pertinent records were stored by Respondents in their private vaults , and Respondents refused to relinquish them on the grounds the records had to be kept intact for pending litigation before another governmental agency. Board agents thereupon obtained permission from Respondents to make microfilmed copies of the records for use in computing the amounts of backpay due the claimants. These films, along with a projector, were made available to Respondents during the hearing, as required by the Board's interlocutory decision. In addition, Respondents at all times had in their possession the original copies of the reeords.

We note that, at the commencement of the hearing, several days were devoted to verification and explanation of the microfilmed records, and thereafter they were projected and examined in the hearing room whenever an issue arose involving their contents Respondents readily stipulated as to their authenticity . Under the circumstances, we fail to see how Respondents were prejudiced because the Trial Examiner , after the hearing, used the microfilms in comparing and verifying the various backpay computations before him Contrary to Respondents' contention, in several instances the microfilmed records were used by the Trial Examiner to Respondents ' benefit. ( See, e g , the computation in regard to Harvey E. Marehant .) In sum, we find no merit in Respondents' aforesaid contentions.

tire record in this case, including the Supplemental Intermediate Report and the exceptions and briefs, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the exceptions, additions, and modifications set forth below.6

1. THE GROSS BACKPAY FORMULA As the parties were unable to agree on the amounts of backpay due the claimants, in accordance with the Board's Rules and Regulations, the General Counsel issued a backpay specification which was served on Respondents on January 4, 1957. The specification computed the amounts of backpay due each claimant under a comprehensive backpay formula, set forth in the specification and described in detail in the Intermediate Report. In essence, the General Counsel's formula, computes the average hours of all employees working in each claimant's job classification, for each week of the period of discrimination found by the Board and the Eighth Circuit, supra. These average hours, which are taken to be the closest approximation of the number of hours which would have been worked by such claimant absent the discrimination, are multiplied by the appropriate hourly wage rate to arrive at the proper amount of gross backpay due each claimant.7

Respondents contend that the General Counsel's backpay formula is punitive rather than compensatory, and that it substantially overstates the amount of backpay due each claimant. As an alternative,

Respondents have submitted their own proposed backpay formula, which is discussed below. The Trial Examiner found the General Counsel's formula to be the 'most appropriate' under the circumstances, and computed the amounts of backpay due accordingly.

Respondents except to the Trial Examiner's ruling.

We have carefully analyzed the backpay formula proposed by the General Counsel, and find, in agreement with the Trial Examiner, that it provides the most accurate method in the present case for determining the amounts of gross backpay due the claimants. Because of the intermittent nature of construction work, it is unlikely that the claimants involved herein would have worked regular, successive 40-hour weeks throughout their backpay periods, in the absence of discrimination. Rather, their work experience would most likely have resembled that of other, comparable employees during the relevant periods. Contrary to Respondents' contention, the utilizaWe deny Respondents' request for oral argument, as the record and briefs adequately present the issues and the positions of the parties These computations were made by the General Counsel with the assistance of a Board senior industrial analyst Certain adjustments were made in the formula to accommodate such factors as overtime and employees working in more than one job category. We adopt the Trial Examiner's use of these adjustments, as they conform to the Board's practice in previous backpay cases . See, e.g., Ozark Hardwood Company, 119 NLRB 1130, 1158, enfd. as modified 282 F. 2d 1 (C.A 8).

BROWN AND ROOT, INC., ETC. 489' tion•of the average adjusted hours of comparable employees in arriving at gross backpay amounts is not a novel formula, 'punitively'' chosen for use against Respondents in the present case. The same formula has been approved by the Board in numerous cases involvingsimilar circumstances.8

Respondents contend that the average adjusted hour method is inappropriate in the present case, as Respondents' work force after thestrike declined to such an extent that insufficient work would have been available in any event for the returning strikers. Thus, while acknowledging that the Board in its original decision found replacements in a number equaling or exceeding the claiming unfair labor practice strikers,' Respondents urge that the General Counsel's formula makes no allowance for a later decline in the number of replacements, and in the specific amount of work assigned to those replacements. These arguments, we find, are not in accord with the record evidence. Respondents' own exhibits indicate that their work force numbered approximately 600 at the termination of the strike in December 1949, and thereafter remained at that level, or higher,, throughout 1950, except for the weeks of the January ice storm and the May flood.10 Moreover, we have found that, in every instance but one,' the number of replacements in each job category continued throughout each quarter of the backpay period to be equal to, or in excess of, the number of claimants for that period.12

In place of the backpay formula adopted by the Trial Examiner,

Respondents suggest a formula whereby the total work actually performed by replacements would be divided among all the strikers.

Respondents point out that the figures obtained by this ' lump sum' method are 'relatively small,' whereas those obtained under the 8 See, e.g., Friedman-Harry Marks Clothing Company , Inc., 1 NLRB 411 , 431, enfd.

301 11 S. 58 ( point not discussed). See also Kartarik, Inc, 111 NLRB 630, 633, enfd:

227 F. 2d 190,, 192-193 ( C.A. 8) ; The Babcock & Wilcox Company, 121 NLRB 26, 29;

Ozark Hardwood Company, supra O The LAM, or 'economic' strikers, are dealt with in section V, infra.

10 Any decline in available work during these weeks is automatically reflected in...

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