A-I Building Materials

National Labor Relations Board - Board Decisions

Jun 23, 1981

256 N.L.R.B. 837 (N.L.R.B. 1981)

A-1 BUILDING MATERIALS 837
A-1 Building Materials and Sales Drivers & Dairy
Employees, Local Union No. 166, International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America. Case 21-
CA- 17781
June 23, 1981
SUPPLEMENTAL DECISION AND
ORDER
On March 12, 1981, Administrative Law Judge
Gerald A. Wacknov issued the attached Supple-
mental Decision in this proceeding. Thereafter, Re-
spondent filed exceptions and the General Counsel
filed a response to Respondent's exceptions.
The Board has considered the record and the at-
tached Decision in light of the exceptions and sup-
porting brief and has decided to affirm the rulings,
findings, and conclusions of the Administrative
Law Judge and to adopt his recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, A-1 Building
Materials, Riverside, California, its officers, agents,
successors, and assigns, shall take the action set
forth in the said recommended Order.
I Member Jenkins would award interest on the backpay due in this
proceeding in accordance with his dissent in Olympic Medical Corpora-
tion, 250 NLRB 146 (1980)
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
GERALD A. WACKNOV, Administrative Law Judge:
On January 9, 1980, the National Labor Relations Board,
herein called the Board, issued its Order adopting the
Administrative Law Judge's decision and directed A-i
Building Materials, herein called Respondent, to reinstate
Robert Newton to his former truckdriving position and
to make him whole for any and all loss of earnings or
benefits he may have suffered by reason of his unlawful
discharge, with appropriate interest. A controversy
having arisen over the amount of backpay due Newton,
a backpay specification and notice of hearing was issued
by the Regional Director for Region 21 on May 29,
1980. The hearing in this matter was held in Los Ange-
les, California, on November 18 and 25, 1980.
The Facts
On December 3, 1979, Administrative Law Judge
Claude R. Wolfe issued his Decision in this proceeding
256 NLRB No. 114
finding that, inter alia, employee Robert Newton had
been unlawfully discharged by Respondent.'
Thereafter on December 21, 1979, Respondent's man-
agement consultant, Norman Jones, sent the following
letter to Newton:
This is in regard to the National Labor Relations
Board, Case Number, 21-CA-17781, and the Deci-
sion of the Administrative Law Judge in such
matter.
We have been in contact with the National Labor
Relations Board in such matter, and during several
conversations, it was stated that you did not wish to
return to A-I Materials.
However, the Company hereby offers you full re-
instatement to your former position in regards to
hours and days of work, benefits, and wages for
such position, seniority rights, so forth, as set forth
by the Decision in this matter.
If you wish to return to your former position, then
you should be ready for work at your regular time
and place on January 2, 1980.
However, if you do not wish to return to work for
A-I Materials, as we so have been informed, then
we would like a note from you stating such. (You
can enclose such note in the stamped, self-addressed
envelope with this letter.)
In regards to any back pay, as you have been told,
you do not have to return to work to collect such
monies.
Newton did not receive the letter until January 4,
1980, as he had been seeking employment elsewhere and
did not return home until that date. After receiving the
letter, Newton telephoned Robert Pentz, owner of Re-
spondent. When Newton identified himself, Pentz
abruptly hung up on him.
Thereafter, Newton sent the following letter, dated
January 21, 1980, to Respondent's management consul-
tant:
In regards to the letter I received from you on
January 4, 1980. In relations to the National Labor
Relations Board Case Number, 21-CA-17781.
I am very much interested in returning to work
with A-I Building Materials under the conditions
enclosed in your letter and the Decision of the Ad-
ministrative Law Judge.
I will be available for work immediately after re-
ceiving all monies due me.
However, I do think Mr. Pentz and I should dis-
cuss the probability of this situation. He may call
me at his earliest convenience at (714) 688-8421.
Jones' reply, dated January 31, 1980, is as follows:
This is in regard to our letter of December 21, 1979,
and your letter of January 21, 1980, on the subject
No exceptions being filed, the Board adopted the Decision of the Ad-
ministrative Law Judge on January 9, 1980
A-I BUILDING MATERIALS
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of your employment at A-I Building Materials, so
forth.
You stated that you were available for "work im-
mediately" so you are offered your old position
back with the Company, working days are Tuesday
through Saturday, eight hours per day, starting on
Tuesday, February 5, 1980, starting time is the same
time as before.
Also, because of your reported Back problem, we
would require a statement from your doctor that
you are able to perform the lifting, driving, so forth
of your job duties. 2
If your [sic] can not have such a statement from
your doctor on February 5, 1980, then you can start
work any day thereafter up until February 12,
1980.3 If you are not back to work by February 12,
1980, with the doctors' statement, then we will con-
sider that you do not desire to return to work for
A-I Building Materials.
In regard to the back-pay, that matter is handled by
the N.L.R.B. and the Company and will be settled
in due course.
Your supervisor will be Betty Konnoff during the
week and you will take orders on Saturday from
either Dale or Robert Pentz.
Upon receiving the aforementioned January 21, 1980,
letter, Newton again telephoned Robert Pentz, intending
to inquire about the treatment he could expect upon re-
turning to work. Newton commenced the conversation
by asking some preliminary questions such as what time
he should report to work, whereupon Pentz replied,
"You know what the letter says," and again hung up on
Newton.
Shortly thereafter, Newton telephoned Supervisor
Dale Pentz, Robert Pentz' son. After identifying himself,
Newton said he wanted to find out "whether your father
wants me to come back to work sincerely as a person,"
or whether the reinstatement offer was merely an at-
tempt to comply with the law. Dale Pentz replied, "I'm
sorry, Bob, my father don't [sic] want you back to
work." Newton thanked him, stating that was what he
had to know. He has not returned to work for Respond-
ent.
Neither Robert Pentz nor Dale Pentz testified in this
proceeding.4 I credit the testimony of Newton, who ap-
peared to have a vivid recollection of the telephone con-
versations and find that the conversations occurred as re-
lated by Newton.
2 Newton had sustained an on-the-job injury to his shoulder in October
1978 and as a result he had been absent from work until mid-December
1978. Neither upon his initial employment nor upon returning to work
following his shoulder injury was Newton required to undergo a physical
examination. In November 1979, following his unlawful discharge on
April 24, 1979, Newton received a settlement from Respondent's insur-
ance carrier regarding the shoulder injury.
3 The backpay period cutoff date in the instant Backpay Specification
is February 12, 1980. Additional backpay is dependent upon whether the
Respondent's reinstatement offer was valid.
4 It was stipulated at that hearing that, if Robert and Dale Pentz were
called upon to testify, each would testify that neither had telephone con-
versations with Newton in regard to reemployment.
Respondent was provided with the opportunity to ex-
amine Newton at length concerning his search for work
and in this regard was provided with extensive personal
records of Newton, including income tax returns and
checking account documents. Neither during the exami-
nation of Newton at the hearing nor thereafter has Re-
spondent elicited any evidence or proffered any state-
ment of position or analysis which would support its un-
substantiated claim, made in answer to the backpay spec-
ification herein, that the amounts or other data and infor-
mation contained in the backpay specification were in-
correct.
Analysis and Conclusion
In agreement with counsel for the General Counsel, I
find that Newton has not been validly offered reinstate-
ment in conformity with the Board's Order herein.
Respondent's initial offer of reinstatement, dated De-
cember 21, 1979, appears sufficient on its face. The letter
clearly reflects that Respondent, having been advised by
the Regional Office that Newton did not desire to return
to work, believed that its offer would be declined. Sig-
nificantly, the letter contains no requirement that
Newton furnish a doctor's verification of his physical
condition prior to returning to work.
Upon being advised by Newton that he was "very
much interested" in returning to work and wanted to dis-
cuss the matter with Respondent's owner, Robert Pentz,
Respondent altered the terms of its original offer, condi-
tioning reinstatement upon a doctor's statement that
Newton was able to perform the work. Although
Newton specifically requested that Robert Pentz phone
him to discuss reinstatement, Pentz never responded.
Moreover, Newton's several attempts to contact Pentz
were brusquely rebuffed without explanation. Finally,
Newton was told by Dale Pentz, a supervisor from
whom Newton would be taking orders upon reinstate-
ment, that his father, Robert Pentz, did not want
Newton to return to work.
When Newton returned to work for Respondent in
December 1978, following his shoulder injury, he was
not asked to furnish a doctor's verification of his ability
to perform the work and the record shows that Re-
spondent thereafter had no reason to believe that New-
ton's job performance had been adversely affected as a
result of such injury. Under such circumstances, condi-
tioning reinstatement upon a doctor's verification of abil-
ity to perform the work does not constitute a valid offer
of reinstatement. See Standard Materials, Inc., 237 NLRB
1136 (1978), enfd. 604 F.2d 449 (5th Cir. 1979). More-
over, such a condition was clearly an afterthought, as
evidenced by Respondent's initial offer, made at a time
when Respondent believed the offer would be declined,
which contained no such requirement. Thus, it would
appear that the real reason for imposing such a condition
was to discourage Newton's initial acceptance of the re-
instatement offer which he expressed to Respondent in
his reply letter of January 21, 1980. The various tele-
phone conversations which, I have found, did occur as
related by Newton provide additional support for this
conclusion, particularly as Respondent proffered no evi-
A-1 BUILDING MATERIALS 839
dence or explanation to justify such negative responses
which appear totally inconsistent with Respondent's
written offer of reinstatement.
Newton's testimony clearly shows, and I find, that he
made the requisite diligent attempt to seek work follow-
ing his discharge, but was unable to secure gainful em-
ployment. The fact that on several occasions Newton
drove a truck for a friend on a gratuitous basis, making
trips of short duration, does not establish that during
these several brief instances Newton had taken himself
out of the job market. I find that Newton is owed the
amount of backpay, from the date of his discharge until
February 12, 1980, as specified in the backpay specifica-
tion.
Based on the foregoing, and the entire record herein, I
hereby issue the following recommended:
ORDER 5
The Respondent, A-I Building Materials, Riverside,
California, its officers, agents, successors, and assigns,
In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
shall pay to Robert Newton the sum of $5,948.66 togeth-
er with interest as set forth in Isis Plumbing & Heating
Co., 138 NLRB 716 (1962), and Florida Steel Corporation,
231 NLRB 651 (1977).
Moreover, having found that Respondent has not com-
plied with the Board's Order by making a valid offer of
reinstatement to Newton, and that therefore Respond-
ent's backpay liability had not been tolled, it is hereby
further ordered that Respondent's backpay liability shall
continue until such time as a valid offer of reinstatement
has been made.
ings, conclusions, and recommended Order herein shall, as provided in
Sec 102 48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions. and Order, and all objections thereto
shall he deemed waived for all purposes
A-I BUILDING MATERIALS