United Steelworkers Of America, Afl-Cio, Clc

STEELWORKERS (DOXSEE FOOD) United Steelworkers of America , AFL-CIO, CLC and Geraldine Shanks United Steelworkers of America , AFL-CIO, CLC, Local 15063 and Geraldine Shanks . Cases 25- CB-3879 and 25-CB-3880

15 October 1986

SUPPLEMENTAL DECISION AND

ORDER BY CHAIRMAN DOTSON AND MEMBERS

JOHANSEN AND BABSON On 31 March 1986 Administrative Law Judge Robert M. Schwarzbart issued the attached deci- sion. The Respondents filed exceptions and a sup- porting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge 's rulings, findings,' and conclusions and to issue the following Order.

ORDER The National Labor Relations Board orders (1) that the Respondent, United Steelworkers of America, AFL-CIO, CLC, Indianapolis, Indiana, its officers , agents, and representatives , shall pay to Ralph Ogden, Geraldine Shanks' attorney, counsel fees and expenses in the amount of $2,208.18, to- gether with interest thereon in the manner pre- scribed in Florida Steel Corp., 231 NLRB 651 (1977), and (2) that both the United Steelworkers of America, AFL-CIO, CLC, and the Respondent, United Steelworkers of America, AFL-CIO, CLC, Local 15063, Terre Haute, Indiana, their officers, agents, and representatives, shall take the action set forth below:

(a) Make whole Geraldine Shanks in the amount of $28,527.92 as net backpay, $1,574.24 as vacation pay, and $1,867.67 for health insurance expenses, together with interest thereon in the manner pre- scribed in Florida Steel Corp., supra, minus any moneys required to be withheld by Federal and state law.

(b) Make pension contributions to the National Insurance Group Pension Plan on behalf of Geral- dine Shanks in the amount of $1,991.58 together with interest computed in the manner prescribed in Merryweather Optical Co., 240 NLRB 1213, 1216 fn.

7 (1979), until payment of all contributions due. i No exceptions were filed to the judge 's finding that Geraldine Shanks' backpay period ended on 11 March 1985 1275 Ann Rybolt, Esq., for the General Counsel. William H. Schmelling, Esq., of Chicago, Illinois (Carl B. Frankel, Esq., of Pittsburgh , Pennsylvania), for the Re- spondent Unions. Ralph Ogden, Esq. (Narton Frickey & Associates, P. C.), of Denver, Colorado, for the Charging Party.

SUPPLEMENTAL DECISION

STATEMENT OF THE CASE

ROBERT M. SCHWARZBART , Administrative Law Judge. These consolidated cases have been submitted by agreement of the parties for initial decision on a record consisting of a Stipulation of Facts and accompanying exhibits, which were received for determination on 25 September 1984, augmented by first and second supple- mental stipulations of fact and additional exhibits re- ceived on 24 October 1984 and 9 August 1985, respec- tively. Motions that these supplemental exhibits be en- tered into evidence are granted.' No testimonial hearing was conducted and no oral ar- guments were presented . However, the General Counsel and the Respondents have submitted timely briefs2 that have been carefully considered. On 12 September 1980 the Board issued its unpub- lished Order in the underlying matter when , in the ab- sence of exceptions ,3 it adopted the findings and conclu- sions of Administrative Law Judge James M. Fitzpa- trick.4 Judge Fitzpatrick, in his decision, found that United Steelworkers of America, AFL-CIO, CLC, and its Local 15063 (the Respondents) had violated Section 8(b)(1)(A) of the Act by refusing to fairly represent Shanks, a laid-off probationary employee, because of her nonmembership in the Union and because of personal an- imosity toward her on the part of specified union repre- sentatives. In relevant part , Judge Fitzpatrick found that Shanks should be made whole , with interest , for losses i Although the General Counsel , as part of the stipulated record, has presented a computation and supporting data indicating the amount of backpay she contends is due the Charging Party , Geraldine Shanks, no backpay specification , as such, was issued and, accordingly , no answer was filed . Although the essential content of a backpay specification later was included in the General Counsel's computation , the procedure of no- ticing a backpay hearing without a specification that was followed here is permitted by Secs 102 52 and 102 .53(b) of the Board 's Rules and Regula- tions, as described in Sec 101 16(b) of the Board 's Statements of Proce- dure These provisions give Regional Directors discretion to issue notices of hearing in backpay cases without a backpay specification , provided that any such hearing notice contain a brief statement of the matters in controversy Sec. 102 . 54(d) of the Rules and Regulations provides that a respondent need not file an answer to a notice of hearing issued without a specification I find that the notice of hearing of 30 March 1983 sets forth the matters in controversy so as to meet the requirements of Sec.

102 53(b) As there is no contention that the General Counsel has not met the requirements of due process or the Board's Rules for bunging such a proceeding , and as the parties , by their stipulation , have shown willing- ness to proceed , the absence of a backpay specification and answer in this case, which ordinarily would comprise the pleadings , does not constitute a procedural impediment Accordingly , I conclude that this matter has been submitted appropriately for determination

2 The Respondent 's brief later was supplemented to cite and argue the significance of subsequently arising authority.

2 The Board in its 1980 order rejected the Respondents ' request for an extension of time to submit exceptions as untimely because the request was received after the due date for the filing of exceptions

4 JD-464-80 , issued 31 July 1980

281 NLRB No. 169 1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD suffered as a result of the Respondents' unlawful "failure to represent her beginning with its initial refusal on ap- proximately 1 June 1979 until an actual determination is made regarding her recall ." To help her pursue recall, Shanks, if she so desired, was permitted reasonable legal fees for counsel of her choice.5 On 27 March 1981 the Board issued its ruling denying the Respondents' contested 29 January 1981 motion for determination of compliance with the Board's Order or, alternatively, for reconsideration and modification of that Order. In so doing, the Board rejected Respondents' ar- guments, repeated in the present proceeding, that it should be relieved of backpay liability and responsibility for counsel fees as required in Judge Fitzpatrick's adopt- ed order. The Board's 1980 Order affirming Judge Fitzpatrick's decision initially was enforced in the United States Court of Appeals for the Seventh Circuit on 29 January 1982 by order of Circuit Judge Wood. Subsequently, after considering the Respondents' 8 February answer and ob- jections to the Board 's application for summary judg- ment enforcing its order and the Board 's response there- to, a three judge panel of that court ruled as follows:6

IT IS ORDERED that the objections by the respond- ents are hereby DENIED. Respondent has not made out an adequate case for disturbing the Board 's decision that respondent failed to present "exceptional circumstances " to warrant its late filing of objections to the Administrative Law Judge's decision. The application for summary en- forcement is hereby granted. The clerk of this court is directed to re-enter the judgment, signed by Cir- cuit Judge Wood, entered on January 29, 1982. The parties being unable to agree on the amount of backpay due under the terms of the orders of the court and the Board, the Regional Director for Region 25, as noted, on 30 March 1983 issued a notice of hearing with- out accompanying backpay specification. The hearing date first was postponed and then continued indefinitely by orders of 14 June and 29 September 1983, respective- ly, so that the parties might execute a stipulation of fact. The stipulated record and briefs thereafter were submit- ted for determination and supplemented in the manner and at the times described above. On consideration of the entire record, I make the fol- lowing

FINDINGS AND CONCLUSIONS A. Background and Issues The Employer, Doxsee Food Corporation (Doxsee), a Maryland corporation engaged in the manufacture, sale, and distribution of food and related products, with its principal office and place of business in Baltimore, Mary- land, also operated a food processing facility in Terre s An issue of this proceeding is Shanks' claim for legal fees and ex- penses, itemized in a petition for same filed by her attorney, Ralph Ogden, Esq

8 No 81-2982, dated 29 March 1982 (unpublished) Haute, Indiana,' where the production and maintenance employees were represented by the Respondents and where Shanks was employed from 2 to 5 April 1979. On

5 April, Shanks and certain other employees were laid off.8 The lawfulness of Shanks' layoff was undisputed. The litigated controversies centered on Shanks' efforts at obtaining recall by Doxsee9 and the Respondents' refus- als to fairly represent her, as found by the Board. At no time since Shanks ' 5 April 1979 layoff has she been offered recall by Doxsee or has a grievance been filed on her behalf by the Respondent Unions as the duly recognized bargaining representatives of the employees in the production and maintenance unit of which Shanks was a part while employed by Doxsee. After her layoff at Doxsee, Shanks remained unem- ployed from 5 April through 12 August 1979, but was unable to work from 13 August through 17 December 1979 because of physical incapacitation. However, in ac- cordance with the parties' stipulation, I find that at all other times since 1 June 1979, Shanks has been physical- ly able to work and has attempted to obtain employment substantially equivalent to that which she had enjoyed at Doxsee. From 18 December 1979 through the week ending 7 August 1982, Shanks was employed intermittently by Columbia House, a Division of Columbia Broadcasting System, at its Terre Haute warehouse. t ° Shanks' duties there consisted of picking record albums and tape cas- settes from warehouse shelves and boxing them to fill customer orders. She was laid off by CBS on 20 Septem- ber 1980, accepted recall there when it was offered almost 2 years later, and returned to work for CBS on or about 26 July 1982. Following this recall, Shanks suf- fered stomach nausea and pain that she believed has been aggravated by the stretching, stooping, and bending re- quired by her job. She worked 2 days and was on sick leave for 3 days during the week ending 31 July 1982. Shanks received medical treatment for a stomach disor- der and purchased prescribed medication. I t About 5 August 1982, Shanks submitted to CBS the medical release permitting return to work and was as- signed to take part in an inventory of the warehouse scheduled for 6 and 7 August. Shanks did not report for ° Doxsee 's Terre Haute plant is its only facility involved in this pro- ceeding

8 During her brief employment by Doxsee , Shanks worked in the gen- eral light labor classification , performing unskilled labor on an assembly line where bottles of spaghetti sauce were filled , capped, and packaged

8 On 20 February 1980, a week before the hearing before Judge Fitz- patrick in the underlying case , the Regional Director approved an infor- mal settlement agreement with Doxsee resolving the complaint in Case 25-CA- 11281, which alleged violations of Sec 8 (a)(I), (3), and (5) of the Act and which had been issued pursuant to a charge filed against Doxsee by Shanks The alleged discriminatory conduct in that matter had related to Doxsee's asserted refusal to discuss grievances on behalf of Shanks and other very recently hired probationary employees because they had not been members of the Steelworkers, the recognized bargaining representa- tive As will be considered, the Respondents argue here that the General Counsel's failure to exact backpay from the Company as part of that set- tlement was prejudicial to their interest

10 All of Shanks places of interim employment, described below, were in Terre Haute " As part of her make-whole remedy, Shanks seeks reimbursement for these medical expenses

STEELWORKERS (DOXSEE FOOD) work on 6 August , but telephoned her immediate super- visor to whom she stated her belief that she was not physically able to do the work . Her supervisor replied that inasmuch as Shanks had been released by her physi- cian, she was expected to perform her assigned duties. Shanks thereupon resigned her employment . She unsuc- cessfully attempted to retract this resignation on 9 August. In 1981 , while still on layoff from CBS , Shanks found work as a temporary packing line worker with Iberville Services, Inc., where she was employed from 21 March through 5 April, when laid off. Her duties there consist- ed of packing bottles into cartons . As at Doxsee , Shanks worked 40 hours per week for Iberville. Also in 1981 , Shanks was employed , again as a pack- ing line worker , by Culbro Snack Foods . This job con- tinued from 12 May through 7 June , when she was laid off. Hired by Culbro as a regular full-time employee, Shanks worked 40-hour weeks, from 4 p . m. to midnight. Shanks was employed by Vigo School Corporation from 2 October 1981 to 23 December 1982 as a part-time temporary cafeteria worker at the Sarah Scott Elementa- ry School . She had been hired to substitute for a regular employee then on sick leave . She worked at this job 4 hours a day totaling 20 hours a week , with duties that included cooking , serving , and dishwashing. As with her various other positions , Shanks had layoff periods while with Vigo . During such a time, she took a housekeeping position with Union Hospital, where she has remained to date as a regular part -time employee. At Union Hospital , Shanks has worked from 4 p.m. to 9 p.m., a schedule of 27. 5 hours per week, and has re- ceived certain increases in her hourly pay rate, which, with other income factors , will be considered below. ' B. The Defenses

1. The Respondents ' position The Respondent Unions, in their arguments, essentially have ignored the General Counsel's backpay computa- tion and have not contested the backpay formula used, the accuracy or method of computation , or the validity of the component factors used to make the computation. Also, unlike many other backpay cases, they do not question Shanks' interim earnings as set forth by the General Counsel or contend that she was not sufficiently diligent in seeking interim employment to reduce back- pay. Rather , for reasons mostly germane to the underly- ing proceeding , the Respondents simply assert that no backpay or legal fees are due. The Respondents argue that there has been no remedi- able loss of earnings for which the Board could impose financial liability as there has been no prerequisite finding that Doxsee had breached the collective-bargaining agreement in its treatment of Shanks to affect her em- ployment status or earnings . Rather, as the Respondents point out , Judge Fitzpatrick found that Doxsee had had "carte blanche" under the contract to terminate at will probationary employees such as Shanks, and the district court, in dismissing an action later brought by Shanks against the Respondents and Doxsee under Section 301 of the Act in pursuit of recall, had found that Doxsee 1277 had not breached the collective-bargaining agreement by its failure to recall Shanks from layoff while she still was a probationary employee. Shanks, it was noted, had worked only 3 of the 30 days' probationary period estab- lished by the collective-bargaining agreement as prereq- uisite to obtaining seniority and full employee rights under the contract. The Respondents further argue that even if Shanks had sustained a somewhat cognizable loss of earnings, such loss would not have resulted from their conduct as Shanks had not asked either Respondent for assistance until after expiration of the 10-day contractual period during which grievances must be filed, and because it had been Doxsee , not the Respondents , that finally had refused to arbitrate Shanks' employment status . In addi- tion , as noted, the Respondents contend that they had been prejudiced concerning the amount of their potential liability by the General Counsel's action in settling a companion complaint against Doxsee without exacting backpay a week before the hearing in the underlying case against the Respondents . This settlement left the fi- nancial burden entirely on the R, spondent Unions.

2. Discussion and findings As stated by Administrative Law Judge Myatt in his Board-approved decision in KSLM-AM and KSP-FM:1 2 It is settled law that a backpay and reinstatement order vindicates the public policy of the statute by "making employees whole for losses suffered on ac- count of an unfair labor practice ." Nathanson Y. NLRB, 344 U.S. 25, 27 (1952). Accord: NLRB v. Rutter-Rex Mfg. Co., 396 U.S. 258 , 263 (1969). It is also settled law that "the findings of an unfair labor practice . . . is presumptive proof that some back- pay is owed by the [Respondent]." NLRB v. Mastro Plastics Corp., 354 F.2d 170, 178 (2d Cir. 1965), cert. denied 384 U.S. 972 ( 1965). See also NLRB v. Reyn olds, 399 F.2d 668 , 669 (6th Cir. 1968). The burden on the General Counsel is to prove the gross amount of the backpay due each claimant, NLRB v. Laredo Packing Co., 730 F.2d 405 (5th Cir. 1984), and this burden is limited to establishing "what would not have been taken from [the employee] if the [Respondent] had not contravened the Act." Virginia Electric & Power Co. v. NLRB, 319 U.S. 533, 544 (1943). Once the General Counsel has es- tablished the gross amount of backpay due each claimant, the burden is on the Respondent to estab- lish facts which would negate the existence of liabil- ity to a given employee or which would mitigate that liability . NLRB v. Miami Coca Cola Bottling Co., 360 F.2d 569, 575 (5th Cir. 1966); NLRB v. Mastro Plastics Corp., supra . It is not sufficient for Respondent to show theoretical or statistical prob- abilities , Triangle Sheet Metal Works, 267 NLRB 650 (1983), nor can this burden be satisfied by self-serv- ing or conclusionary statements , W. C. Nabors, 134

NLRB 1078, 1088 (1961), enfd. as modified on other 12 275 NLRB 1342, 1346- 1347 (1985) 1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD grounds 323 F.2d 686 (5th Cir. 1963), cert. denied

376 U.S. 911 (1964). . . . Finally, it is well estab- lished that any doubt or uncertainty in the evidence must be resolved in favor of the innocent employee claimant and not the Respondent wrongdoer.

NLRB v. NHE/Freeway, Inc., 545 F.2d 592, 594 (7th Cir. 1976); NLRB v. Miami Coca Cola Bottling Co., supra at 572-573. [Footnote omitted.] It is noted that a number of the Respondents' defenses here either were or could have been litigated in the un- derlying proceeding before Judge Fitzpatrick. As Ad- ministrative Law Judge Roth held in his Board-approved decision in Schorr Stern Food Corp.: 13 The doctrine of res judicata is applicable in Board proceedings. Laborers International Union of North America, Local No. 282, AFL-CIO (Millstone Con- struction Company, et. al.), 236 NLRB 621, 623 (1978). In particular, the Board's findings and con- clusions in an unfair labor practice case are binding and may not be relitigated in the subsequent back- pay proceeding. Brown and Root, Inc., 132 NLRB 486, 492 (1961), enfd. 311 F.2d 447, 451 (8th Cir. 1963) . .. . . . . In appropriate cases, questions involving compliance may be litigated in the backpay pro- ceeding, even though such questions turn on mat- ters which occurred prior to the decision in the unfair labor practice case. . . . However, such liti- gation is permissible only if the matter was not ad- judicated by the Board in the unfair labor practice proceeding . . . The doctrine of res judicata does not permit an exemption for selective presentation of evidence on matters raised by the pleadings and presented in the case. "The federal doctrine of res judicata bars relitigating any part of the cause of action in question, including all claims and defenses that were actually raised or could have been raised." Aerojet-General Corporation v. Askew, 511 F.2d 710, 715, 718 (5th Cir. 1975), cert. denied 423 U.S. 928. Applying the above principles, it is clear that while Judge Fitzpatrick, in his decision, observed that the man- agement-rights clause of the collective-bargaining agree- ment, in effect, provided that Doxsee had "carte blanche" to terminate probationary employees like Shanks at will, 14 he still found that the Respondents should be required to make Shanks whole, with interest, for any loss of earnings that had resulted from the Re- spondents' unlawful refusal to fairly represent her. After rejecting the Respondents' argument, which was reiterated here, that Shanks' request to them for assist- ance in obtaining recall was untimely.15 He noted, with- 13 248 NLRB 292, 295 (1980) Also see American Medical Insurance Co, 235 NLRB 1417, 1419 (1978)

14 Id I5 Noting that the earliest Shanks could have learned that she was being bypassed for recall was in mid-May 1979 when other comparable employees were being put back to work, Judge Fitzpatrick found that "the exact date when Shanks would have been recalled had she not been overlooked is not established It was in late May or early June [19791 that out so finding, that even if Shanks' grievance claim had been "technically stale" under the contract, the Respond- ents still had a duty. Judge Fitzpatrick continued as fol- lows:16 The contract defines rights and duties between the employer on the one hand and the Union and employees on the other. It does not purport to cate- gorically define employee rights vis-a-vis the Union. Those rights include fair representation which is not in all circumstances limited to grievance and arbi- tration under the contract. The union obligation to employees may well transcend the contract. That is particularly true where, as here, the Union's reasons for refusing to represent an employee are irrelevant and invidious. [Emphasis added.] Judge Fitzpatrick also found that union representation might well have made a difference for Shanks as Doxsee had nothing against her and as she was well-qualified, more so than some of her fellow employees who had been laid off at the same time. He noted that, "If the Union had pressed her cause, the Company might well have recalled her as an accommodation." In blaming Doxsee for Shanks' loss of earnings be- cause of that Company's refusal to arbitrate her employ- ment status , the Respondents misstate the basis of their responsibility in this matter. The Respondents' backpay liability is based on the Board's determination that any earnings loss sustained by Shanks had resulted from the Respondents' adjudicated invidious and irrelevant refusal to fairly represent her in obtaining recall; not on whether Doxsee was in compliance with the collective-bargaining agreement or had been engaged in some other impropri- ety. Although that contract, as Judge Fitzpatrick noted, defined the relationship between the Employer on one side and the Union and employees on the other, it did not set forth the relationship between the Unions and the employees, which relationship includes the Unions' duty to fairly represent bargaining unit employees such as Shanks. It specifically was found that because of the Re- spondent Unions' unlawful reasons for refusing to repre- sent Shanks in her recall efforts, their obligation to her might well transcend the contract. Accordingly, without regard to whether the contract gave Doxsee the right to terminate probationary employees at will or arguments regarding timeliness under the contractual grievance-ar- bitration procedure, Shanks' earnings loss is predicated on the Respondent Unions' failure for unlawful reasons to pursue her cause with Doxsee. Judge Fitzpatrick fur- ther found that, if so approached by the Respondents, Doxsee might well have recalled Shanks as an accommo- dation. In these circumstances, any doubts about the merits of Shanks' grievance should be resolved against the Respondents as the wrongdoers. It should not be pre- sumed that Shanks would not have been recalled had the Respondents pursued Doxsee on her behalf. she had sought help from the Union Had her claim been pressed, it might have proved to have been timely "

16 Id

STEELWORKERS (DOXSEE FOOD) 1279 Accordingly, under the doctrine of res judicata the following contentions by the Respondent may not be re- litigated or reconsidered in this backpay proceeding:

(a) Respondents ' arguments based on Doxsee's conduct, including whether it had breached the col- lective bargaining agreement by refusing to arbitrate Shanks' employment status;

(b) The timeliness of Shanks' request to the Re- spondents for assistance in regaining her job;

(c) Whether Shanks actually asked the Respond- ents to file a grievance; 17

(d) Whether the Respondent Unions' unlawful conduct had caused Shanks' loss of earnings.

(e) Whether the Respondents were justified in not pursuing Shanks' cause with Doxsee as any grievance that might have been filed on her behalf could not have been successfully processed or arbi- trated.ts The Respondents further argue that they were preju- diced by the settlement agreement resolving the 8 (a)(1), (3), and (5) complaint against Doxsee in related Case 25- CA-11281. As Doxsee had not been required under the settlement to provide backpay, the entire financial burden of Shanks' remedy had been left to them.19 An analogous argument by the employer respondent in Schorr Stern Food Corp. 20 was rejected . Here, as in

17 Although Shanks did not specifically ask that a grievance be filed, she did tell the Respondents ' representatives that she needed help. In drawing his conclusions Judge Fitzpatrick clearly did not find this dis- tinction to be significant

19 The Respondents' reliance on the Board 's supplemental decision in Taracorp, Inc, 273 NLRB 221 (1984), is misplaced. The majority in Tara- corp, a case that arose under NLRB v. J. Weingarten, 420 U .S. 251 (1975), concluded that , although the investigatory interview had been conducted in violation of Sec 8 (a)(1), a backpay award would be punitive and inap- propriate as the alleged discriminatee had been discharged for cause rather than for having requested the presence of a union representative at the interview The Respondents, in turn , argue that because Shanks had not been discriminated against by the Employer for asserting rights pro- tected under the Act or because of Employer breach of the collective- bargaining agreement , she, in effect , had been validly laid off without se- niority and attendant recall rights and had sustained no loss of earnings cognizable under the Act Accordingly , as in Taracorp, were Shanks to be given backpay it would result in an unjustified punitive windfall that should be disallowed . This argument , however , had been answered above . As Judge Fitzpatrick found that even if Doxsee had been free under the collective-bargaining agreement to terminate Shanks at will, with no obligation to process her grievance, the Respondent Unions' re- sponsibility in this matter rested not on what Doxsee did or might have done under the contract but on their own unlawful refusal to fairly repre- sent her, which duty , in these circumstances , transcended the contract.

19 The complaint in Case 25 -CA-11281, issued 17 October 1979, al- leged that Doxsee had violated Sec 8(a)(3) and ( 1) of the Act by refusing to discuss grievances filed on behalf of Shanks and other probationary employees because they were not members of the Union , had violated Sec 8(a)(5) and (1) of the Act by refusing to negotiate with the union grievances involving Shanks and other probationary employees who were not union members; and had violated Sec 8(a)(1) of the Act by maintaining and enforcing an unlawful no-distribution rule. The settle- ment with Doxsee was approved on 20 February 1980. The hearing before Judge Fitzpatrick involving these Respondents began I week later 20 248 NLRB 292, 302-303 In Schorr Stern , the Respondent Employer, relying principally on NLRB v. Electrical Workers JUE Local 485 (Auto- motive Plating Corp ), 454 F . 2d 17 (2d Cir 1972), asserted that it should not be held liable for the entire backpay award in an unfair labor practice proceeding when it , alone , was the Respondent in circumstances when the Union also should have been joined as a Respondent . The Respond- ent Company there had maintained that as the discriminatee had had the Schorr Stern , the argument is made too late . In the ab- sence of timely exceptions to Judge Fitzpatrick 's deci- sion, the Board and the Seventh Circuit have ordered the Respondents to make Shanks whole for her loss. As in Schorr Stern, no timely review of the Board 's order di- recting the Respondents to make Shanks whole for her losses was sought and no equitable considerations are ad- vanced or are apparent that would warrant relief from the remedial orders of the Board and court . As stated by Administrative Judge Roth in his Board -approved deci- sion in Schorr Stern:2 t The [Respondents] slumbered upon, and ultimately waived, any rights [they] might have had in this regard. At this late stage, an award of only one-half of the backpay due, which would leave the [discri- minatee] with no alternative recourse other than a private action against the [Company] might well de- prive [her] of a complete remedy for the wrong done [her]. Such a result would be both inequitable and repugnant to the remedial purposes of the Act. See N.L.R.B. v. J. H. Rutter-Rex Manufacturing Company, Inc., 396 U.S. 258, 264-265 (1965). [Foot- note omitted.] Moreover, in contrast to the Respondent Unions' present situation , Doxsee's liability to Shanks under the Act was never adjudicated and its obligations to her were subject to negotiation at the time of settlement. In fact , the Respondents, in their brief, have argued repeat- edly that Doxsee did not breach the contract in its treat- ment of Shanks, or that it otherwise had acted unlawful- ly. Were the Respondent Unions' arguments to be taken at face value there would be no basis in any event for joining Doxsee as a party. Accordingly, it is concluded that the Respondents, who, among other things , did not timely protest the set- tlement with Doxsee and who have repeatedly argued against liability on Doxsee 's part, were not prejudiced by the separate settlement agreement with Doxsee. In sum, the Respondents' defenses cannot be sustained. C. The Backpay Formula Shanks' backpay period ran from 18 June 197922 to 11 March 1985, when the court of appeals entered its order dismissing her Section 301 suit for recall by Doxsee. option of filing a lawsuit under Sec 301 of the Act against both the Company and Union , in which event damages could have been appor- tioned , it should not be held solely liable for all the backpay

81 Supra, 248 NLRB at 303.

22 The General Counsel selected 18 June 1979 as the start of the back- pay period because since 1 June 1979 , when the Respondents violated their duty to fairly represent Shanks, 19 employees were hired by Doxsee into the general light labor classification in which Shanks had been em- ployed . When two more such employees were hired, 18 June 1979, the earliest date after 1 June , an employee was hired into that classification The General Counsel , therefore, found it reasonable to infer that had the Respondents not failed to fairly represent Shanks , she would have been recalled on 18 June 1979. Although the Respondents contest the applica- bility of backpay, they do not object , as such , to the designation of 18 June as the start of the backpay period . Because the General Counsel's unopposed position in this regard is reasonable, I find that 18 June 1979 is the appropriate date from which any warranted backpay should be com- Continued 1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Shanks' potential gross backpay was calculated by multiplying the number of hours she would have worked at Doxsee during each calendar quarter by the wage rate in effect at the time. From 18 June 1979 to I1 March 1985, the following hourly wage rates for the general light labor classification, effective on the dates shown below, were multiplied by the 520 work hours per calen- dar quarter. These hourly pay rates, as augmented by contractually provided cost-of-living increases, and the dates when they respectively became effective are as fol- lows: Effective Date Hourly Rate Cost-of-Living Increases 6/18/79 ... ..... $3.73 - 7/23/79.... .. ... ..... 4.29 - 12/10/79 ..... . .... 4 55 - 2/1/80 . ..... 4 80 - 2/1/81 .... ...... ... 500 $.025 (eff. 11/1/81) 2/1/82 ... ..... 5 375 .015 (eff. 5/1/82) 2/1/83 ...... ..... ..... 5.675 035 (eff 8/1/82) 2/1/84 ..... ... 5 925 As Shanks was unable to work from 13 August 1979 through 17 December 1979 because of physical disability, gross backpay for that period was calculated at $75 per week, the disability income benefits level provided by the collective-bargaining agreement. Also added to Shanks' gross backpay computation for the third quarter of 1982 is the amount of $177.40 in unpaid medical expenses. This sum represents the balance from original charges of $530 for various tests and treat- ments afforded Shanks on 23, 26, 27, and 39 July of that year. The $352.60 difference was paid under an insurance policy and is not charged to the Respondent. As stipulat- ed by the parties, Shanks, on layoff from CBS since 1980, accepted recall there during the week ending 24 July 1982 and returned to work on 26 July. Following recall, as noted, Shanks suffered pain and other discom- fort that she related to the physical requirements of her work. Accordingly, during the week ending 31 July 1982, she worked 2 days and was on sick leave for 3 days, while receiving treatment. The Respondents do not question the accuracy or necessity of these medical ex- penses , almost all of which were incurred during her brief return to CBS, which ended on 6 August 1982. For purposes of estimating periods of layoff deductible from gross backpay, the General Counsel contends that Doxsee employee Betty Clark provided a representative example of the employment history Shanks would have had with Doxsee if returned to work there. Clark, who puted As the record shows that Shanks' claim to her job with Doxsee were not laid to rest until the court ended her Sec 301 suit on 11 March 1985, the backpay period continued until that date

23 The contractual starting rate for the "General Light Labor" classifi- cation was $3 73.

24 The then-effective contractual working rate after 30 days on the job was $4 29

25 The rate paid after 6 months of employment was $4 55

26 In an undisputed supplemental computation, gross backpay for the second and third quarters of 1984 was presented by the General Counsel as $3081 and $1753 80, respectively, with interim earnings at $1610 93 and $1001 88 was hired by Doxsee on the same date and in the same job classification as Shanks , like Shanks, was laid off on

5 April 1979. Clark, however, was recalled by Doxsee on 14 May 1979 and worked there in the years that fol- lowed, interrupted by periods of layoff . In calculating gross backpay, the General Counsel assumed that had Shanks been recalled on 18 June 1979, she thereafter would have had the same layoff and recall experience as Clark. Although of those hired in the relevant classifica- tion at the same time as Clark and Shanks, only Clark has retained unbroken seniority with Doxsee during the backpay period, her selection as representative employee for purposes of determining layoff experience is uncon- tested, gives Shanks as wronged party the benefit of any doubt, and is found appropriate. Accordingly, excluded from gross backpay were the following monetary amounts , reflecting those intervals during the backpay period, after 18 June 1979, when Clark was on economic layoff- Yr. /Qtr. Hours/Rate P/H Total Gross Backpay Excluded 1979-3 40 hrs @ 4.29 . .. ..... ............. $171.60 1980-1 40 hrs @ 4 55 .. ............. ..... ........ 182.00 1980-4 40 hrs @ 4 80 . ..... ...... .............. 192.00 1981-1 56 hrs. @ 4.80 ... ....................... 508.80 48 hrs. @ 5.00 ............. ....... .............. 1981-2 40 hrs. @ 5.00 .............. ................... 200.00 1981-4 120 hrs. @ 5.025 ................ .............. 603.00 1982-1 160 hrs @ 5.025 ... ..... .................. 804.00 1982-3 123 hrs. @ 5.425 .. ........... ............... 667.27 1983-1 40 hrs. @ 5.725 .... ..... ................... 29229.00 Also excluded from gross backpay were wages at the rates shown below for days when, as stipulated , Doxsee's plant was shut down: Yr./Qtr. Days P/H Rate TotalExclusion 1980/1 ............................. 2 $4.80 $76.80 1980/2 ............................. 1 4.80 38.40 1980/3 ............................. 1 4.80 38.40 1980/4 ............................. 1 4.80 38.40 1981/1 ............................ 5 5.00 200.00 1981/2 ............................. 5 5.00 200.00 1981/3 ........................... 4 5.00 160.00 1981/4 ........................ 4 5.025 160.80

27 No deduction was made here from gross backpay by reason of layoff during the period from 22 to 29 October 1979 (1979-3), as Shanks had been incapacitated because of illness Accordingly, her gross backpay was calculated at the contractual disability rate of $75 a week

STEELWORKERS (DOXSEE FOOD) Yr. /Qtr. 1982/1 ............................. Days

4 P/H Rate 5.375 Total Exclusion 172.00 1982/2 ............................ 3 5.39 129.36 1982/3 ............................. 3 5.425 130.20 1982/4 ............................ 3 5.425 130.20 1983/1 ............................ 3 5.725 137.40 1983/2 ............................. 3 5.725 137.40 1983/3 ............................ 3 5.725 137.40 1983/4 ............................. 3 5.725 137.40 The amounts Shanks actually earned during each quar- ter of the backpay period are her interim earnings, while her calendar quarter net backpay is the difference be- tween her calendar quarter gross backpay and her inter- im earnings. Shanks' stipulated interim earnings while a full-time 40-hour-per-week employee with CBS, from 18 Decem- ber 1979 to 7 August 1982, were as follows: Yr./Qtr. Total Earnings 1979-4 $ 441.98 1980-1 2,351.46 1980-2 1,511.31 1980-3 818.62 Shanks' interim earnings from CBS were diminished during 1980 by her 5 weeks of layoff from that Company during the second quarter, by 8 weeks of layoff during the third quarter prior to 20 September , and by her layoff that began during the week ending 20 September and continued through the rest of that calendar year, in- cluding the entire fourth quarter when she had no inter- im earnings. Shanks' gross backpay for the third quarter of 1982 is further reduced by the amount of her interim earnings from CBS during 3 days of recall employment after almost 24 months of layoff. Although Shanks was on layoff from CBS throughout 1981, her projected gross backpay from Doxsee for that year was lessened by interim earnings from other sources . At the end of the first quarter and the start of the second quarter of 1981, she had limited earnings from Iberville Services, Inc., but her second quarter gross backpay was more substantially offset by income derived from packing line work at Cuibro Snack Foods, Inc. Deducted from gross backpay during the entire third quarter of 1981 were Shanks' earnings as a part- time cafeteria worker with the Vigo School Corporation. Shanks continued to have occasional income from Vigo School Corporation during the first, third, and fourth quarters of 1982 , almost all of which was realized in the last quarter . In the first and third quarters Vigo paid Shanks only $13.40 and $20 . 35, respectively, while in the fourth quarter , Shanks received $529.60 from 1281 Vigo. As noted, early in the second quarter of 1982, Shanks concurrently began part-time employment as a housekeeper with Union Hospital , a position she has con- tinued for the remainder of the backpay period. From this, Shanks realized continuing interim earnings deducti- ble from gross backpay in applicable amounts during each subsequent quarter of the backpay period. The backpay computation for wages is set forth in Appendix

A to this decision . This appendix reflects the various de- ductions from Shanks' projected earnings at Doxsee to reach gross backpay, and the further deductions from gross backpay of quarterly interim earnings, resulting in net backpay. Although I have accepted and followed the General Counsel's basic backpay formula, my calculation of net backpay for wages in Appendix A, below, differs materi- ally from that of the General Counsel as set forth in the corresponding appendix to her computation . This, princi- pally, is because the General Counsel inadvertently did not carry forward her stated intention of excluding from gross backpay moneys that Shanks would not have earned at Doxsee even if recalled because of periods of plant shut down and layoff. Layoff, as stated , was pro- jected in accordance with the layoff-recall experience of comparable employee, Betty Clark. For example, while my "Unadjusted Projected Earn- ings" column in Appendix A to this decision , derived by multiplying the number of hours during each quarter that Shanks would have worked if recalled by Doxsee by the respective applicable hourly pay rates ,28 closely corre- sponds to the General Counsel's computations of gross backpay for each quarter, she did not make intended ex- clusions for periods of shutdown and layoff, but simply deducted interim earnings . Accordingly, Appendix A was set up to show , reading from left to right for each applicable calendar quarter, the unadjusted projected earnings , or what Shanks would have earned at Doxsee had there been no applicable exclusions, and the excluda- ble amounts for layoff and plant shutdown to reach gross backpay. The amounts listed in the "Gross backpay" column were further reduced by interim earnings to derive net backpay as to wages, as shown in the last column at the right . For 1982-1983, Shanks ' gross back- pay was enhanced by a one -time item of $177.40 in medi- cal expenses referred to above. Although I generally am in agreement with the amounts of interim earnings the General Counsel would deduct from gross backpay to derive net backpay, our principal differences are for 1982-3 and 1982-4. Although the $951.12 that the General Counsel would so deduct for 1982-4 correctly reflects Shanks' earnings that period from Union Hospital , she inadvertently did not also deduct the $442.20 that Shanks earned during that quar- ter from Vigo School Corporation . My differences with the General Counsel's computation of interim earnings

28 This column also factored in, as applicable , the three above-de- scribed cost -of-living increases that Shanks would have received at Doxsee and the $75-per-week contractual disability pay during those weeks of 1979 -3 and 1979 -4 when her health would have prevented her from working. 1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for 1982 -3 and the nominal difference for 1981 -2 appear to be arithmetical. Although in accord with the General Counsel that in- terest is applicable to this backpay award , including legal fees and vacation pay, unlike the General Counsel, I have not computed interest at this time. Rather , consist- ent with the more general practice , I have defined below the formula and rates under which interest should be as- sessed , but am deferring final calculation to a later stage in the compliance process, when litigation has ended and the matter is closer to conclusion At that time , interest can be finalized administratively based on established fig- ures. In the meantime , it would be beneficially clearer and simpler to concentrate on the underlying principal sums Appendix B, below , shows Shanks' vacation pay enti- tlement calculated at the rates provided in the two suc- cessive collective-bargaining agreements in effect during respective portions of the backpay period. Pension contributions equal the moneys owed by the Respondent Unions on Shanks' behalf to the National In- surance Group Pension Plan29 for each hour that Shanks would have worked for Doxsee during the backpay period if recalled , from when she would have completed a 30-day probationary period , less all the above periods during which Shanks would have been on layoff and when Doxsee 's plant was shut down . Such pension con- tributions , set forth in Appendix C to this decision, are computed at the hourly rates for the time periods set forth below , not exceeding 40 hours per week: Hourly Pension Time Period Contribution Rate 7/23/79-1/31/81 $0.1765 2/01/81-1/31 /83 0.2265 2/01/83-3/ 11/85 0.25 Health insurance expenses , set forth in Appendix D to this decision, are the undisputed premiums Shanks has paid Equitable Life Assurance Society of the United States for individual health and hospitalization insurance since 1 June 1979 , for which she is entitled to reimburse- ment on the General Counsel 's valid theory that Shanks would not have incurred the costs of these premiums had she been recalled by Doxsee. Legal fees for Shanks ' attorney , also sought as part of backpay, will be considered separately. Interest on backpay, as requested by the General Counsel , is payable at the "adjusted prime rate" used by the Internal Revenue Service in calculating interest on the under and over payment of taxes,30 and is due for the following time periods at the rates shown below: Period % Rate 6/18/79-12/31/79 6 1/1/80-12/31/81 12 1/1/82-12/31/82 20 1/1/83-6/30/83 16 7/1/83-3/31/84 11

29 P & F Industries, 267 NLRB 650, 652 (1983), Sioux Falls Stock Yards Co, 236 NLRB 543, 546 (1978)

30 See Florida Steel Corp , 231 NLRB 651 (1977), Olympic Medical Corp, 250 NLRB 146 (1980) 4/8/84-3/11/85 11 As restated by Administrative Law Judge Julius Cohn in his Board-approved decision in P & F Industries:31

A discriminatee is entitled to receive what he would have earned had he remained in the Compa- ny's employ, less his interim earnings. . . . There is no formula that would measure an exact figure since the discriminatees did not actually work during the period Therefore "the Board is vested with wide discretion in devising procedures and methods which will effectuate the purposes of the Act." NLRB v. Brown & Root, 311 F.2d 447, 452 (1963) The formula used and its various component factors, as modified above and uncontested by the Respondents, is reasonable, proper, and appropriate.32 D. The Claim for Attorney Fees

1. The facts In his adopted order, Judge Fitzpatrick ruled that Shanks, if she so desired, should be permitted counsel for her choice to pursue recall by Doxsee, the reasonable fees for same to be paid only by the Respondent Interna- tional Union. Counsel fees were provided here as it was found that in "view of the evident animosity of some union officials toward Shanks," it would be necessary for Shanks to have her own attorney to ensure the start of a proceeding, whether arbitration or an alternative method, that would help her regain her position with Doxsee and to protect her interest once such a proceed- ing was underway. This was particularly germane as Shanks' recall by Doxsee was one specified means by which the Respondents' backpay liability could be tolled. In May 1981, Shanks retained Attorney Ralph Ogden of Indianapolis, Indiana,33 who, on 1 June 1981, filed a complaint on her behalf against Doxsee and the Re- spondent Unions pursuant to Section 301 of the Act in the U.S. District Court for the Southern District of Indi- ana, Terre Haute Division, in Civil Action No. TH 81- 96-C. This suit, brought against Doxsee and the Re- spondent Unions instead of arbitration, alleged that Doxsee had laid off Shanks on 5 April 1979 without ex- planation and without just cause, had failed to recall her although other employees in the same job classification had been recalled, although new employees also had been hired from outside to work in Shanks' classification and although the Respondent Unions and Doxsee had had a collective-bargaining agreement under which Shanks was covered Shanks requested judgment to fully compensate her for lost wages and fringe benefits caused by breach of the collective-bargaining agreement, injunc- tive relief requiring Doxsee to rehire her with such se- 31 267 NLRB at 652

32 See Sioux Falls Stock Yards Co, 236 NLRB at 545, Triangle Sheet Metal Works, supra

33 Ogden since has moved to Denver, Colorado

STEELWORKERS (DOXSEE FOOD) 1283 niority as she might have had under the contract had she been recalled , and attorney fees , 34 interest , and costs. On 8 and 11 August and 19 September 1983, the Re- spondent Unions, Doxsee and Shanks, respectively, moved for summary judgment.35 This was followed by a joint motion on 27 March 1984 that the pending motions for summary judgment be referred to a U . S. magistrate, that the case be removed from the pending trial calendar and that it be redesignated as a nonjury case . This joint motion , made to obtain rapid disposition , was granted by district court order , dated 3 May 1984. On 21 August 1984 the district court entered its order adopting the magistrate 's 17 August memorandum deci- sion . The court granted summary judgment and costs to the defendants , finding that Doxsee had not breached the collective -bargaining agreement by failing to recall Shanks from layoff after she had worked only 3 of her 30-day contractual probationary period,36 and concur- rently denied Shanks' motion for summary judgment. On 28 September 1984 Shanks filed an appeal with the U.S. Court of Appeals for the Seventh Circuit from the district court's decision . On 1 March 1985 the court of appeals issued an Order to Show Cause why Shanks' appeal should not be dismissed in light of that court's de- cision in Landahl v. P.P.G. Industries ., 37 and on 11 March, that court granted Shanks' 7 March 1985 motion to dismiss her appeal from the district court with preju- dice and without costs. In the affidavit supporting his petition for attorney fees, Ogden who had represented Shanks in all aspects of the above-described court proceedings, related that Shanks first had contacted him in May 1981 and that he

94 The complaint in the court suit alleged that Shanks was not repre- sented by the Unions , was bringing this action against Doxsee in person, and that the Board earlier had issued an order permitting her to obtain counsel of her choice to pursue her remedies

95 These motions by the Unions and Doxsee were based on like con- tentions that there was no genuine issue of material fact and that Shanks' action was barred by the 6 months ' statute of limitations applicable in such cases . Shanks asserted that she was entitled to summary judgment "on a theory of collateral estoppel , or res judicata," based on the Board's court-enforced decision and order , when the same issues had been litigat- ed Her motion did not specifically address the limitations period issue raised by the defendants se The magistrate , in his court-adopted decision , found that under the collective-bargaining agreement 's "management prerogatives clause," when , as there , Doxsee 's obligations concerning the hire , discharge, or layoff of its probationary employees were not specifically limited by other contractual provisions , Doxsee had reserved the right to deal with such matters as it saw fit . Accordingly, the recall aspirations of any pro- bationary employee, such as Shanks, who had not attained seniority status were completely within the Employer 's discretion and Doxsee's failure to recall Shanks did not constitute a violation of the collective- bargaining agreement The magistrate quoted language from Del Costello v Teamsters, 462 U S 151 ( 1983), that to prevail against either the Com- pany or the Union in a Sec. 301 suit , employee -plaintiffs must show not only that their discharge had been contrary to the contract , but must also demonstrate a breach by the Union of its duty of fair representation As Doxsee 's contractual breach was not established , there was no felt need to reach the issue of whether or not the Unions had met their duty of providing fair representation.

94 746 F 2d 1312 (7th Cir 1984). Landahl, which had been decided after Shanks filed her notice of appeal , but not published in advance sheets until after the merits of her appeal had been briefed, retroactively applied the 6-month period of limitations for Sec. 301 actions set forth in Del Costello Y. Teamsters, supra As Shanks had not filed her suit in Cause No TH-81-96-C until after this limitations period had run, it was tune- barred under Del Costello and Landahl. had discussed Shanks ' case with her and a representative of the Board 's Indianapolis Regional Office . Ogden, in explaining his strategy , noted that at the time , before the Del Costello decision , it had appeared that Indiana's 2- year statute of limitations on cases arising out of employ- ment contracts was about to run , barring any action that might be brought under Section 301 against either the Unions or Doxsee. Accordingly, he filed complaint in the U.S. district court in Case No. TH-81-96-C. Ogden obtained leave from the court permitting Shanks to pro- ceed before it as a poor person. Ogden, however, also acted on the premise that Judge Fitzpatrick's Board-adopted remedy would afford the most effective available relief for Shanks if appropriately enforced . As the Section 301 action would not provide benefits to Shanks that could not be obtainable through enforcement of the Board's order, and as the Board's order already had been entered in her favor , in Ogden's view , proceeding to trial on the Section 301 suit merely would result in relitigation of issues previously raised before the Board. Accordingly, at Ogden's December 1981 request, Board attorneys obtained an order from Judge Wood of the Seventh Circuit enforcing the Board's decision. This order was vacated at the Union 's motion and then, as noted , was reentered by a three judge panel. As Ogden's requests that the Board's Regional Direc- tor institute backpay proceedings or otherwise act to en- force Judge Fitzpatrick's decision was met by sharp dis- agreement , on 3 February 1983, Ogden filed for manda- mus in the U.S. District Court for the Southern District of Indiana to compel the Board to seek enforcement of its order on Shanks ' behalf. 38 This proceeding was con- tested . As it later appeared to Ogden after discussions with Regional Office representatives that the General Counsel was prepared to seek Shanks' remedy, he dis- continued the mandamus action. Ogden requests payment for a total of 30.43 profes- sional hours expended by him on Shanks' behalf between

26 May 1981 and 19 July 1983, at $60 an hour, or $1825.80 . 39 Ogden's itemized submission shows that he spent much of his relevant time in telephone conversa- tions with Board representatives, with counsel for Doxsee, and for the Respondent Unions, with Shanks; in preparing correspondence to these and other individuals; and in researching, preparing , and filing various legal documents.

38 According to the General Counsel 's brief, the mandamus action arose from an opinion difference between Ogden and the Regional Office concerning the appropriate time in which to institute backpay proceed- ings-before or after resolution of the then-pending Sec 301 suit In any event , the mandamus suit later was transferred to the District Court's Terre Haute Division , where the Sec 301 suit was situated.

39 Ogden , in his 19 July 1983 deposition, described the $60 -an-hour rate sought here as below his customary charges because of his lack of "particular expertise" in this area The taking of Ogden's deposition had been ordered by the Regional Director for Region 25 at the Respondent's motion in anticipation of both the then -pending backpay hearing and Ogden's since-completed relocation from Indiana to Colorado Ogden's time in giving the deposition and his expenditures for the services of an- other attorney who represented him there and who otherwise consulted with him, are included among the monetary items in Ogden's petition for attorney fees 1284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ogden also claims reimbursement for expenses totaling $382.38 incurred from 23 November 1981 through 19 July 1983. These mostly are for long-distance calls, for fees paid to the U.S district court, for photocopies, and for process services. By far the largest single expense item listed is $225 in legal fees for the attorney who rep- resented him at the above 19 July 1983 deposition. For this, Ogden's attorney billed him for 3 hours at $75 an hour-consisting of 2 hours for consultation that day and 1 hour for the actual deposition. Claiming $1825.80 in compensable hours and $382.38 in asserted expenses, Ogden seeks a combined payment of $2208.18. It neither is necessary nor practicable to set forth in detail all of Ogden's itemized professional services on Shanks' behalf, the work hours expended and the ex- penses incurred as the correctness of Ogden's assertions in these areas have not been meaningfully challenged. Although the Respondents, in an appendix to their brief where some pages of Ogden's itemizations were photoco- pied, attempted to show by conclusionary alterations that certain listed services and expenses should be disallowed,

I find these efforts to be without substance. ed concerning Shanks, whether or not represented by counsel. Therefore, her attorney could have served no useful purpose in that regard. As Doxsee merely had ex- ercised its contractual prerogatives in laying off and not recalling Shanks, the Unions could not compel arbitra- tion or meaningfully invoke the grievance procedure on her behalf. Accordingly, as there was nothing that either the Respondent Unions or Shanks' attorney could have done for her in these circumstances, there was no basis for counsel fees. Second, the Respondents argue that as Doxsee's 17 November letter had been a "determination" of Shanks' status triggering the start of the 6-month limitations period during which a Section 301 action on Shanks' behalf could be brought under Del Costello v. Teamsters, supra, that period already had expired before May 1981 when Ogden was retained. The Respondents, therefore, argue that services covered in Ogden's petition for fees should be disallowed as substantially inconsistent with Judge Fitzpatrick's designated purpose because such services could not have resulted in a determination that Shanks be recalled by Doxsee.

2. The parties' positions The General Counsel contends that Ogden should be reimbursed for his services and expenses as requested in his petition on the ground that all measures taken by him, including the discontinued mandamus action against the Board and the unsuccessful Section 301 suit, had been instituted to protect Shanks' interest. The General Counsel urges that as such actions were integrally relat- ed to her backpay claim, they were properly included. The General Counsel argues that Ogden's requested hourly fee of $60 for representing Shanks is reasonable in that his claim is consistent with model regulations pro- posed by the Administrative Conference of the United States40 for the award of attorney fees under the Equal Access to Justice Act (EAJA) '41 which provides that in assessing the reasonableness of an hourly rate , "the cus- tomary fee of the attorney" for services provided in liti- gation similar to that for which the award is sought must be considered. As Ogden, whose undisputed claim is that he customarily charged $75 to $90 per hour, had reduced his fees in the instant case because of lack of experience in similar litigation , the General Counsel contends the Ogden's request is well within reason both as to the rate and, in view of the complexity of what was required, the number of professional work hours charged. The Respondents assert that Doxsee's 17 November 1980 rejection of the Union's alternative request that Shanks be reinstated to that Company's seniority rolls or that her status be arbitrated was a "determination" of Shanks' job status within the meaning of Judge Fitzpa- trick's adopted order. As Doxsee had been empowered under the contract to terminate probationary employees such as Shanks at will, the Respondents argue that no ar- bitration proceeding thereafter could have been conduct-

3. Discussion and findings The Board's authority to require the payment of coun- sel fees in remedying unfair labor practices is well estab- lished. In NLRB v. Teamsters Local 396 (United Parcel Service) '42 the court of appeals held that: The Board's order that the Union pay counsel fees was within the power granted to the Board by the Act. Congress has vested the Board, not the courts, with broad discretion to order a violator "to take such affirmative action . . . as will effectuate the policies of [the Act]." (N.L.R.B. v. Food Store Employees Union, Local 347, etc. (1974), 417 U.S. 1 . . . .) That discretion includes the grant or denial of litigation expenses and attorneys' fees. (See N.L.R.B. v. Local 485, Int. U. of Electrical, R. & M. Wkrs. (2d Cir. 1972), 454 F.2d 17, 22 n. 9; Interna- tional Union of E., R. & M. W., AFL-CIO v. N.L.R.B. (1970), 426 F.2d 1243, 1253 n. 15; cf. N.L.R.B. v. Food Store Employees Union, Local 347, etc., supra, 417 U.S. 1.) One of the policies of the Act is to undo the ef- fects of unfair labor practices by bringing about "a restoration of the situation, as nearly as possible, to that which would have obtained but for the illegal discrimination" (Phelps Dodge Corp. v. N.L.R.B. (1941), 313 U.S. 177, 194, 8 LRRM 439; see also N.L.R.B. v. Rutter-Rex Mfg. Co. (1969), 396 U.S. 258, 265). If the Union had not violated its duty of fair representation by its discriminatory refusal to process the grievances, the issues would have been resolved by litigation or arbitration in which the ag- grieved employees would have enjoyed vigorous 42 509 F 2d 1075 (9th Or 1975), enfg in relevant part and remanding 40 46 Fed Reg 15895 et seq in part 203 NLRB 799, 805, 806 (1973), cert denied 421 U S 976 (1975), 41 5 U S C § 504 et seq Ogden's claim for attorneys fees, of course, is clarified on remand 220 NLRB 35 (1975) Also see Glass Bottle Blowers based on the Board's Order rather than EAJA Local 106 (Owens-Illinois), 240 NLRB 324, 325 fn 9 (1979)

STEELWORKERS (DOXSEE FOOD) 1285 representation at no added cost to themselves. They cannot be restored to that position unless they are relieved of the expenses they will incur in securing the independent representation to which they are concededly entitled.3

9 The propriety of compelling the Union to bear the expenses of independent representation for the aggrieved employees Is pre- mised , in this case on the Union 's breach of its duty of fair repre- sentation . These findings were echoed in Liberty Mutual Insur- ance Co.,43 in which the Board noted that Section 10(c) of the Act44 has been interpreted as giving the Board broad discretion to define and develop appropriate reme- dial measures , the Board is required to restore employees who have been harmed in their jobs by unlawful conduct to the status ante quo where possible45 and, in fashioning its remedial orders, is empowered "to design them in such manner as to prevent or deter recurrence of the un- lawful activity which is the subject of the election.46 In the present matter , but for the Respondent's ad- judged hostility to Shanks and breach of its duty to timely and fairly represent her, Shanks would not have been compelled to retain private counsel to assist in her efforts to be recalled to work by Doxsee . The Respond- ents' present arguments against attorney fees were essen- tially included in their contested motion for a determina- tion of compliance with the Order of the Board or, alter- natively, for reconsideration and modification of that Order, which was denied by the Board on 27 March 1981.47 In support of that motion , the Respondents had argued, in effect, that it would be pointless to grant legal fees to provide Shanks with her own counsel at an arbi- tration proceeding as Doxsee had been within its con- tractual rights in refusing to arbitrate her status while she was still a probationary employee . In that motion, the Respondents also argued , alternatively, that as Shanks had no course of action against Doxsee for breach of contract , it would not further the purposes of the Act to require the International Union to finance a lawsuit against itself or one of its locals . The Board previously rejected those arguments when it issued its 27 March 1981 Order denying the Respondents ' motion, and no basis has been provided for reconsidering them here. Shanks, in trying to regain her job with Doxsee , clearly 43 235 NLRB 1387, 1388 ( 1978). Although the court and Board in United Parcel Service, supra, were concerned with legal fees incurred only as a consequence of arbitration, in Liberty Mutual Insurance Co., supra, the Board allowed the Charging Party reimbursement for legal fees stem- ming from miscellaneous court litigation not related to obtaining the Charging Party 's reinstatement by the Respondent Employer . The coun- sel fees in Liberty Mutual came about from the defense of an injunction suit brought by the Charging Party's former employer who was seeking to prevent the Charging Party from independently selling insurance poli- ces in breach of a noncompetition convenant to which he earlier had subscribed.

44 Sec . 10(c) of the Act, in part, charges the Board with the duty to take "such affirmative action ... as will effectuate the policies of this Act."

48 Phelps Dodge Corp. v NLRB, 313 U S 177 ( 1941).

46 Liberty Mutual Insurance Co., supra at 1387 and fn . 9 thereon.

47 When the Respondents filed this motion , the Sec . 301 suit against them had not yet been filed and present arguments relating to their suc- cess in that proceeding were not yet available. was entitled to rely on the Board 's Order, including its provision for counsel fees. The Respondents ' arguments that Shanks ' retention of Ogden as counsel served no useful purpose as neither an arbitration proceeding nor, in the alternative , a timely Section 301 suit could be brought for Shanks by the time Ogden was retained , are not persuasive . As was more fully discussed above under "Defenses" the Respondents' liability in this matter is based on its own unlawful con- duct and not on the prospects of successfully litigating Shanks' recall . Having placed themselves in opposition to Shanks , she was entitled to pursue her job with her own legal representative . Recall was important here not only as a means of best making Shanks whole , but also as a limitation on backpay liability. Because arbitration could not be meaningfuly pursued, the Section 301 suit remained the only alternative, even as recognized by the Respondent Unions in their brief. Although the court of appeals ultimately found that such an action was time-barred , there is no evidence that Ogden had been dilatory or otherwise at fault . Rather, the record shows that he acted promptly and in good faith on Shanks ' behalf, and that he actively pursued her interest . Although retained late in point of time available to institute a timely Section 301 suit , Ogden, by virtue of his mandamus suit and other actions, can be credited with revitalizing the backpay proceeding . In any event, as noted , the Board 's Order did not make attorney fees contingent on success in obtaining Shanks' recall or rein- statement . To hold otherwise would be to substantially nullify the counsel fee provision of the Board 's order by enabling Shanks to retain counsel to help recover her po- sition only if ultimately successful. Accordingly, to make Shanks whole, it is necessary to grant her the costs of legal representation in pursuing recall , whether or not successful. From the record as a whole, it appears that the $60 hourly rate for professional services billed by Ogden is fair, reasonable, warranted by the nature of the services rendered , and well within, for example , the EAJA hourly counsel fee allowance of $75. Comparatively, Ogden 's requested rate is below the $75 rate charged by the attorney who had represented him in connection with his deposition and represents a voluntary reduction by Ogden , himself, of his customary $75 to $90 fee be- cause of inexperience in labor law litigation . Therefore, I find that Ogden's $60-per-hour billing rate is justified and should be allowed. Contrary to the Respondents , I further find that the full extent of the services performed by Ogden as set forth in his itemized submission and the related expenses listed in his petition , including those relating to the dis- continued mandamus proceeding , the Section 301 suit, the various telephone calls and items of correspondence, costs relating to Ogden's deposition as ordered by the Regional Director , and the number of professional hours that Ogden asserts were expended in the performance of these services, should be allowed as reasonable and con- sistent with the complexity of the work performed.48

48 Lindy Bros Builders Y. American Radiator Corp., 487 F . 2d 161, 167 et seq. (3d Cir . 1973). 1286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Accordingly, I find that the Respondent International Union should be required to pay attorney fees in the amount of $1825.80 and $382.38 in expenses, or a total of $2208.18, as requested in the petition for same. The awarding of such fees and expenses may serve the addi- tional purpose of deterring the Respondent International Union from future related unfair labor practices.49 E. The Effect of the Section 301 Suit on Shanks' Backpay Entitlement As the Respondent Unions argue that their successful defense with Doxsee against Shanks' Section 301 suit has vindicated their position that neither backpay nor attor- ney fees are due under the Board's enforced order, it is relevant to consider the relationship between these two separate proceedings. The Respondents' obligation to reimburse Shanks for backpay and the Respondent International 's responsibil- ity for her attorney fees stem, of course, from the Board's Order. As arbitration of her status was unlikely, the Section 301 action was brought as an alternative principally to obtain recall. This suit was collateral to the unfair labor practice case and related, in part, to an aspect of Shanks' remedy rather than to whether the Re- spondents had violated the Act in the first place. Con- trary to the Respondents, neither the Section 301 suit nor this supplemental backpay proceeding may serve as de facto appeals from Judge Fitzpatrick's adopted findings. What the Respondent's successful defense of the Section 301 suit did accomplish was to finally end Shanks' claim for recall by Doxsee. This closed the backpay period as of 11 March 1985, the date when the court entered its final order dismissing that matter. In so concluding, it is noted that there was no ruling in the Section 301 action either by the U.S. district court or the court of appeals that would directly or indirectly affect the efficacy of the underlying unfair labor practice judgment. The Seventh Circuit, which also had enforced the unfair labor practice case, never modified its enforce- ment order in the wake of its dismissal of the Section 301 suit. Neither court in the Section 301 proceeding found that the Respondent Unions had not violated Section 8(b)(1)(A) of the Act by refusing to fairly represent Shanks in obtaining recall from Doxsee. The district court merely had held that there had been no contract breach by Doxsee affecting Shanks' job status and did not reach the issue of fair representation, while the court of appeals, concluding that the Section 301 action had not been timely filed, did not even reach the issue of contract breach. Accordingly, I find nothing in the dismissal of Shanks' Section 301 lawsuit that would effect her entitlement to backpay or counsel fees, except that the conclusion of that matter on the merits established the end of the back- pay period. Conclusions As the Respondents have not contested the backpay computation, itself, including the factor-, on which it is based, and have not provided grounds for eliminating or mitigating backpay, vacation pay, pension contributions, health insurance expenses, or attorney fees, I find that the Respondents should be assessed the backpay award as set forth in the General Counsel's computation, as modified herein, and that the Respondent International Union should be required to pay attorney fees and ex- penses as requested in Ogden's petition, with interest at the rates for the respective time periods as set forth above. [Recommended Order omitted from publication.]

APPENDIX A.-WAGES Yr /Qtr. 1979/1 .... 1979/2... 1979/3 1979/4 Unad- justed Project- ed Earn- ings Layoff (Clark's (Exper ) Plant Shut- down Medical Ex- penses Gross Backpay Interim Earnings Net Backpay 0 0 0 0 0 0 0 0 0 29800 0 29800 171 60 0 0 1240 80 0 1240.80 0 0 0 118900 441.98 747 02 18200 76 80 0 2191 20 2351.46 0 0 3840 0 245760 1511 31 94629 0 3840 0 245760 818 62 1638.98 19200 3840 0 2265.60 0 2265.60 508 80 20000 0 185600 28200 1574.00 20000 20000 0 220000 835 47 1364.53 0 16000 0 244000 0 244000 60300 16000 0 1843 88 428.80 1415 08 80400 17200 0 175600 1340 1742.60 0 12900 0 2671.16 869 . 86 1801 30 0 130 20 17740 286204 1415 . 15 1445 17 0 298.00 1412.40 118900 1980/1 245000 1980/2 ..... ....... . ......... . ...... 2496.00 1980/3. ..... ........ . ... .. . 249600 1980/4 . . ......... .. ...... 249600 1981/1 . .. ...... 2564.80 1981 /2 . .... . ... . ...... . 260000. . ....... . . . 1981/3... . .. . ..... . ...... . ...... . 260000 1981 /4 . ........ . ..... 2606.88 1982/1. 2732.00 1982/2. .. 2800 16 1982/3 2814.84

49 Liberty Mutual Insurance Co, supra

STEELWORKERS (DOXSEE FOOD) 1287

APPENDIX A.-WAGES-Continued r./Qtr. Unad- justed Project- ed Earn- ings Layoff (Clark's (Exper.) Plant Shut- down Medical Ex- penses ross Backpay nterim Earnings et Backpay 1982/4 ................................................................................... 2821.00 667.28 130.20 0 2023 . 52 1393 . 32 63020 1983/1 ..................................................................................... 2926.60 229.00 137.40 0 2560 .70 1312 .96 1247.24 1983/2 ...................................................................................... 297700 0 137.40 0 2839 . 60 1243.00 1596.60 1983/3 ................................................................................. 2977.00 0 137.40 0 2839 .60 1806 .69 1030.91 1983/4 ..................................................................................... 2977.00 0 91.60 0 2885 .40 1510 66 1374 74 1984/1 ................................................................................. 3045.80 0 0 0 3045.80 1538 .43 1506.87 1984/2 ................................................................................. 3081.00 0 0 0 3081 .00 1610 .93 1470.07 1984/3 ................................................................................. 1753.80 0 0 0 1753 . 80 1001 . 88 751.92 Total Net Backpay ......................................................... $28,527.92

APPENDIX B.-VACATION BACKPAY APPENDIX C.-PENSION CONTRIBUTIONS- Continued 80/2 Yr. /Qtr. ............................ Hourly Rate 4.80 Hrs. of Vacation Entitlement

40 Vacation Pay Owed 192.00 r./Qtr. rs. ourly Contribu- tion ontrib. Due 1981/2 .............................. 5 .00 48 240.00 1983/1 136 .2265 30.80 1982/2 .............................. 5.39 56 301.84 320 .2500 80.00 1983/2 .............................. 5.725 64 366.40 2 496 . 2500 124.00 1984/2 .............................. 5.925 80 474.00 3 496 .2500 124.00 4 504 2500 12600Total Due Vacation Pay....... $1574.24 1984/1 520 . .2500 130.00 2 520 .2500 130.00 3 296 .2500 74.00

APPENDIX C.-PENSION CONTRIBUTIONS Total $1991.58 Yr. /Qtr. Hrs. Hourly Contribu- tion Contrib. Due PPENDIX D.-HEALTH INSURANCE EXPENSES 1979/2 80 0.1765 $14.20 3 200 .1765 35.30 Expense Total 4 120 .1765 21.18 Premiums paid between 6/18/79 and 12/31/79........ $160.00 1980/1 464 .1765 81.00 Premiums paid between 1 /1/80 and 12/31/81.......... 814.31 Premiums paid between 1 /1/82 and 12/31/82 893 362 512 .1765 90.37 .......... .Premiums paid between 1 /1/83 and 6/30/83 03 512 1765 90.37 ............ Premiums paid between 7/1/83 and present 04 472 1765 83 31 ............. Total Due ........................... . $1867 671981/1 120 .1765 21.18 . ............................... .

2 256 .2265 57.98 Total Net Backpay - Wages ......................... $28,527.92 3 440 .2265 99.66 Total Vacation Backpay ...................................... 1,574.24 4 483 .2265 110.53 Health Insurance Expenses ......................................... 1,867.67 368 .2265 83.35 Directly to Shanks ...................................................... $32,235.78 1982/1 328 .2265 74.29 2 496 .2265 112.34 Pension Contributions ............................................ $ 1,991.58 3 496 .2265 112.34 Attorney Fees and Expenses.................................... $ 2,208.18 4 373 .2265 84.48