Schwickert's of Rochester, Inc., 687 (2007)

Schwickert’s of Rochester, Inc. and United Union of Roofers, Waterproofers and Allied Workers Local Union No. 96.

Schwickert, Inc. and United Union of Roofers, Waterproofers and Allied Workers Local Union No. 96. Cases 18–CA–16899, 18–CA–16936, 18–CA–16900, 18–CA–16937, 18–CA–17029, and 18–CA–17031

March 30, 2007


By Chairman Battista and Members Liebman and Walsh

On July 28, 2006, Administrative Law Judge Jane Vandeventer issued the attached supplemental decision. The Respondents filed exceptions and a supporting brief. The General Counsel filed an answering brief.

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 adopt the judge’s rulings, findings1 and conclusions2 and to adopt the recommended Order.


The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondents, Schwickert’s of Rochester, Inc. and Schwickert, Inc., Rochester, Minnesota, their officers, agents, successors, and assigns, shall take the action set forth in the Order.

Kristyn A. Myers, Esq., for the General Counsel.

Timothy B. Kohls, Esq., for the Respondent.


Statement of the Case

Jane Vandeventer, Administrative Law Judge. This case was tried on April 18 and 19, 2006, in Minneapolis, Minnesota. This is a supplemental proceeding for the purpose of determining the remedy due three employees found by the Board to have been unlawfully discharged by Respondents, and the remedy due the trust funds on behalf of employees of the Respondents. The Board’s Decision and Order in this case is found at 343 NLRB 1044 (2004).

Respondents operate roofing companies in Rochester and Mankato, Minnesota. Both companies participated in a multi-employer bargaining group from which, the Board found, they unlawfully withdrew on June 12, 2003, in violation of Section 8(a)(5) of the Act. The Board further found that Respondents unlawfully constructively discharged five employees in violation of Section 8(a)(3) of the Act and engaged in a number of 8(a)(1) violations. Respondents waived their rights to appeal the Board’s Decision and Order.

The compliance specification herein issued on January 31, 2006, setting forth the amounts owing to three employees whose backpay amounts are disputed and fringe benefit payments to three trust funds on behalf of the three employees and Respondents’ unit employees for the period from June 19, 2003, through the end of the successor contract on May 31, 2005. Respondents filed an answer and later an amended answer, the latter on March 10, 2006, essentially denying that they owe any backpay or benefit payments. The issues raised by the amended answer will be set forth in detail below. After the conclusion of the hearing, the parties filed briefs which I have read.

Based on the testimony of the witnesses, including particularly my observation of their demeanor while testifying, the documentary evidence, and the entire record, I make the following

Findings of Fact

i. three employees

  1. Gross Backpay

    The backpay alleged to be due to Ryan Augustin, Jerry Mundt, and Ben Pugh was calculated using one of the three generally recognized formulas, that of using a group of comparable employees who worked for Respondents throughout the alleged backpay period. The periods of backpay, less than 2 years for each employee, are not disputed. The compliance officer, Roger Cziaia, testified that using a group of comparable employees to measure backpay was the most accurate method in this case. The compliance officer rejected the “replacement employee” method because there were no identifiable replacement employees. The third method, that of using the discriminatees’ earnings in a previous period, was not accurate in this case because of the fluctuating and seasonal nature of construction and the roofing business in particular, according to the compliance officer’s testimony.

    In order to find a comparable group of employees, Cziaia ascertained which employees of similar job classifications and earnings levels as the discriminatees had worked for the entire backpay period. There were approximately 17 such employees, and Cziaia randomly selected six of these employees as the comparable group. Since the discriminatees varied in skill level, Cziaia chose comparable employees who also varied in skill level. Of the discriminatees, two functioned at a journeyman level, and one at an apprentice level. Of the comparable group, three were journeymen and three were apprentices. It is apparent from all the evidence, and I find, that the comparable employee group chosen by the compliance officer was an appropriately comparable group for purposes of calculating backpay. The average earnings of the comparable group in the 2 quarters before the unfair labor practices is actually about $450 per quarter lower than the average earnings of the discriminatee group for the same period.

    Cziaia assessed the earnings of the comparable employees over each quarter of the backpay period, as compared with their earnings over the 2 quarters prior to the unfair labor practices. He took the percentage change in earnings, and used the same percentage to calculate the backpay for the discriminatees.

    Respondents do not dispute the General Counsel’s use of the comparable employee method of calculating backpay. Respondents, however, contend that the General Counsel should have chosen Respondents’ entire work force as the comparable group. This would mean that many of the employees would have been present in the work force for differing periods of time, necessitating the calculation of weekly, or even daily earnings for many employees. In their amended answer, Respondents stated that “all employees” should be the comparable group, but nowhere in the amended answer did Respondents specifically set forth their position as to whether “all employees” meant every unit employee or only those unit employees whose employment lasted throughout the backpay periods. Respondents’ amended answer included no calculations to show the amounts that would have resulted from the use of this method, nor did it include specific employee names which would show which employees were meant by Respondents’ “all employees” language. Section 102.56(b) of the Board’s Rules and Regulations clearly provides that the answer must be specific, i.e., it should have specified exactly the group alleged by Respondents to be comparable. The same section also provides that an answer to a compliance specification must include “appropriate supporting figures.” Respondents’ amended answer does not include any supporting figures regarding this contention.

    Respondents failed to provide calculations in accordance with their position until the hearing. In that calculation, Respondents claimed to have used the group of approximately 17 employees who worked for Respondents for the entire backpay period, not all employees who worked for Respondents in the bargaining unit, as the amended answer appears to indicate. Evidence purporting to support Respondents’ calculations was contained in separate exhibits. Respondents’ calculations also used the wage rate contained in the offers of reinstatement sent to the three employees, not the wage rate contained either in the predecessor contract nor the wage rate contained in the contract the Union reached with the remaining members of the multi-employer group, as found in the underlying Board decision. It is unclear whether Respondents’ position is consistent with their calculations. At some places in the pleadings and the record herein, Respondents state as their position that “all employees” be included in the comparable group, and at other places, Respondents state as their position that all (approximately 17) employees who worked throughout the backpay period should be the comparable group.

    I reject Respondents’ assertion that the comparable employee group should include all (approximately 17) employees for two reasons. First, the argument fails on procedural grounds, in that it was not properly plead and is not properly before me or the Board. The amended answer contained only a general denial, and the assertion that “all employees” should constitute the comparable group. No specific definition of the comparable group was plead, and no appropriate supporting figures were plead, as required by the rule. Therefore, neither the specific definition nor the calculations can be raised at or after the hearing. As Respondents’ own payroll records were within its control at all times, there is no excuse for Respondents’ failure to define their contended comparable group specifically and for their failure to plead the calculations to support their contention in time to include them in the amended answer. 3 States Trucking, 252 NLRB 1088, 1089 (1980); Airport Service Lines, 231 NLRB 1272 (1977).1 Second, even if Respondents had properly pleaded their position, and had made their position entirely clear, I would reject it as being less accurate than the method used by the General Counsel. Respondents’ method, as originally plead, using all employees, is cumbersome and prone to inaccuracy due to the difficulty of ascertaining which periods of time each employee was employed by Respondent. There is no requirement that the compliance officer use the most burdensome calculation method possible in calculating backpay. The Board requires that the method used by the compliance officer must only be reasonable and reasonably accurate. In addition, the Respondent’s proposed group would necessarily include employees whose pay and skill levels were not comparable to those of the discriminatees, unlike the comparable group used by the General Counsel, which was demonstrably comparable, as set forth above. I...

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