Alton H. Piester, LLC

National Labor Relations Board - Administrative Judge Opinions

Dec 30, 2010

11-CA-021531 (N.L.R.B. Dec. 30, 2010)

JD(SF)–57–10
Newberry, SC
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
ALTON H. PIESTER, LLC
and Case 11-CA-21531
DARRELL CHAPMAN
Shannon R. Meares, Esq., for the Acting
General Counsel.
Charles F. Thompson, Jr., Esq., of Columbia,
South Carolina, for the Respondent
SUPPLEMENTAL DECISION
Mary Miller Cracraft, Administrative Law Judge. By decision of September 30, 2008, the
National Labor Relations Board found, inter alia, that Alton H. Piester, LLC (Respondent)
unlawfully discharged Charging Party Darrell Chapman (Chapman) in violation of Section
8(a)(1) of the National Labor Relations Act (the Act).1 A dispute having arisen regarding the
amount of backpay due under the terms of the Board’s Order, the Regional Director for Region
11 of the NLRB issued a Compliance Specification and Notice of Hearing setting forth backpay
for a closed backpay period from April 2, 2007 (the date of Chapman’s discharge) to June 14,
2010 (the date for response to Respondent’s unconditional offer of reinstatement).
Although Respondent does not contest the formula or the accuracy of the figures utilized
in the backpay specification, Respondent asserts that the Acting General Counsel arbitrarily
utilized the wrong employees for comparison purposes and, in any event, Respondent asserts
that because of his driving record, Chapman was ineligible for rehire at least by the end of the
second quarter of 2007. This case was tried in Newberry, South Carolina, on October 18, 2010.
Respondent is a trucking company. Its drivers haul loads as assigned by Respondent.
They are compensated weekly based upon a percentage of the loads that they haul. Some
loads pay more than others. The backpay specification calculates Chapman’s gross backpay
based upon the average earnings of the two highest-earning drivers per calendar quarter. The
Acting General Counsel asserts that this amount is appropriate because Chapman’s
predischarge quarterly earnings were consistently ranked among the top two highest.
Indeed, disregarding the partial quarter when Chapman began employment (the first
quarter of 2006) and the partial quarter when Chapman was discharged (the second quarter of
2007), in three of the remaining four quarters (the third and fourth quarters of 2006 and the first
quarter of 2007); Chapman was always either the highest or second highest-paid driver. During
the second quarter of 2006, Chapman ranked 7th of 14 drivers. Piester explained that Chapman
had a family to support and he was willing to work hard. Additionally, Piester opined that
because loads vary in the amount of pay, Chapman may have been in the right place at the

1 Alton H. Piester, LLC, 353 NLRB No. 33. (2008) (not reported in Board Decisions), enfd.
591 F.3d 332 (4th Cir. 2010).
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right time for some of the better paying loads. Utilizing the average earnings of the two highest
earning drivers per calendar quarter, Regional Compliance Officer Jenn Dunn calculated net
backpay2 in the amount of $72,538.47 for the closed backpay period.
In its amended answer to the backpay specification, Respondent asserts that selection
of the two highest paid drivers for calculation of Chapman’s backpay is arbitrary because driver
pay fluctuates greatly and, therefore, the average of all drivers’ pay should be utilized.
Respondent asserts that utilizing all drivers’ pay results in net backpay of $21,068.
As the compliance officer noted during her testimony, however, utilizing all drivers’ pay
includes drivers who did not work for the entire quarter. For instance, during the second quarter
of 2006, 7 of 14 drivers did not work each of the 13 weeks. Two of the seven worked 12 weeks,
one worked 5, one worked 3, and three worked 1 week of the quarter. Chapman, however,
worked each of the 13 weeks. Examination of pay for the third and fourth quarters of 2006, as
well as the first quarter of 2007, reveals similar discrepancies. Unlike Mash Transportation, 293
NLRB 404 (1989), here the General Counsel has set forth a legitimate reason for using the
average of the top grossing drivers as opposed to the average of all drivers. Thus, under these
circumstances, I find that utilizing the pay of all drivers for each quarter is not reasonable and I
reject Respondent’s argument that I do so.
Respondent’s Exhibits 1 and 2 purport to show that the drivers’ salaries fluctuated a
great deal between quarters, however, as a general matter the exhibits tend to show that the
drivers earned more as their tenure lengthened. Many of the drivers did fluctuate in their
standing in the pay rankings, however, generally the driver’s rankings improved over time.
Additionally, the rankings and earnings do not show the number of weeks each driver was
working nor does it show the work ethic of the drivers. Respondent explained during the
hearings that some drivers chose to work more than others which impacted their earnings. It
seems that the higher earning drivers tended to stay at the top of the pay rankings. In fact, this
pattern is evidenced by several drivers including Pathetty Wright who Respondent used as an
example of fluctuating pay. Wright consistently improved his pay rank despite a few deviations
during the beginning of his employment with Respondent. In fact, after the first five quarters of
his employment with Respondent, Wright maintained either the first or second highest paid
driver position. This seems consistent with General Counsel’s contention that Chapman would
have continued improving his rank and would have remained at the top of the pay scale.
Respondent’s Exhibits 3 and 4 proposed alternative calculations for backpay.
Respondent’s Exhibit 3 illustrates the backpay owed if it is calculated by using the average of all
drivers’ earnings during the relevant period. As described above, I find that it is unreasonable to
use this calculation because it is not demonstrative of the actual earning potential of the drivers.
This figure includes both the first and last quarter of each driver’s employment which
significantly reduces the average pay. Exhibit 4 attempts to resolve this problem by removing
the first and last quarter of each driver’s earnings but still averaging the earnings of all drivers
during the relevant period. This figure too, fails to represent the earnings that Chapman would
have earned because it includes drivers who only worked for a couple weeks during each
quarter. This calculation is not reasonable because it fails to take into consideration one of the
most important factors in a driver’s earnings: his work ethic. During the course of the hearing
the General Counsel established that Chapman was working in order to take care of his family

2 Additional commuting expenses and reduced vacation benefits were treated as offsets to
gross interim earnings. Chapman’s net interim earnings were then deducted from gross
backpay to calculate net backpay. None of these figures and calculations is in dispute.
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and that he was particularly committed to earning as much money as possible. It is not
equitable to compare him to the lowest wage earners because he demonstrated his willingness
to work and his ability to remain among the highest earners. As such, the calculations put forth
by Respondent are unreasonable.
Similarly, I find that utilizing the pay of the top two drivers is reasonable and serves the
purpose of backpay. Although during Chapman’s first full quarter of employment (the second
quarter of 2006), his earnings were 7th of 14 drivers, Chapman was the top earning driver
during the third and fourth quarters of 2006 and earned the second highest amount during the
first quarter of 2007. Many of the drivers who were top earners during these quarters and the
quarters following Chapman’s discharge remained the same. Based upon these numbers and
the consistency of the top earners remaining at the top, I find that utilizing the average of the
two top earning drivers to determine Chapman’s gross backpay was reasonable. Additionally,
this calculation takes in to consideration that the average pay of all workers declined during the
backpay period.
The courts and the Board “have applied a broad standard of reasonableness in
approving numerous methods of calculating gross backpay.” Performance Friction Corp., 335
NLRB 1117 (2001). The Acting General Counsel may utilize any method that places the
discriminatee in the same position he would have been in absent the unlawful actions by the
employer as long as the method is not unreasonable or arbitrary. Id., citing La Favorita, Inc.,
313 NLRB 902, 903 (1994) enfd. mem. 48 F.3d 1232 (10th Cir. 1995). Any ambiguities, doubts
or uncertainties are resolved against Respondent, the wrongdoer, because an offending
Respondent is not allowed to profit from any uncertainty caused by its discrimination. Minette
Mills, Inc., 316 NLRB 1009, 1010–1011 (1995). Given these well established standards, I find
General Counsel’s backpay computation method reasonable.
Having rejected Respondent’s argument regarding utilizing the top two earning drivers to
calculate backpay, I turn to Respondent’s argument that Chapman was not eligible for rehire as
of the second quarter of 2007 due to his poor driving record. During the unfair labor practice
hearing before Administrative Law Judge Keltner W. Locke, Respondent produced “after-
acquired” evidence of Chapman’s driving record. It indicated that Chapman had three violations
as of second quarter 2007. Counsel for the Acting General Counsel argued that because
Respondent had the opportunity to fully litigate this defense to the remedy of reinstatement
during the underlying unfair labor practice hearing, Respondent was precluded from relitigating
this defense in the compliance hearing.
During the underlying unfair labor practice hearing, Respondent sought to question
Chapman about his driving record, including three traffic violations and two predischarge
accidents. In a prehearing motion in limine, renewed in brief, counsel for General Counsel
objected to this line of questioning based on laches. Counsel pointed out that because
Respondent was aware of these violations and accidents prior to unlawfully discharging
Chapman, Respondent should have litigated this matter in the unfair labor practice proceeding
because it goes to the remedy to be ordered for the unfair labor practice. Respondent argued
that the evidence was relevant to whether Chapman could be re-employed. Upon objection
during the unfair labor practice hearing, Judge Locke stated that the issue may be a “matter left
for the compliance stage.” Nevertheless, Judge Locke also overruled the objection and allowed
the line of questioning. However, the evidence regarding the predischarge accidents and
violations was not further litigated in the unfair labor practice proceeding. Thus, counsel for the
General Counsel argued in her motion in limine before me that Respondent is barred by the
doctrine of laches from litigating the reinstatement issue before me because “Judge Locke
never precluded nor prohibited Respondent from exploring the issue of Chapman’s ability to
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obtain reinstatement based on his traffic violations and accidents.”
I denied General Counsel’s motion to preclude this evidence in the instant compliance
proceeding. Although I agree with General Counsel’s statement of the law: a Respondent with
knowledge of an alleged discriminatee’s misconduct prior to the unfair labor practice
proceeding, must assert this defense to reinstatement at the unfair labor practice hearing,3 I
adhere to this ruling denying the motion in limine. I do so for two reasons. First it is not clear to
me that Respondent is asserting that reinstatement itself is precluded or that Respondent is
asserting only that reinstatement must be delayed until the violations and accidents are
removed from Chapman’s record due to passage of time. Second, because Judge Locke stated
that the matter might be tried in the compliance proceeding, due process requires that I hear
this issue.
Turning then to the merits of Respondent’s defense to reinstatement of Chapman in light
of his driving record, I find that Piester was fully aware of the three violations and two accidents
at the time it discharged Chapman. There is no evidence in the record why these accidents and
violations had not been reported to the insurance company prior to Chapman’s discharge.
Respondent did report them soon after Chapman’s discharge. The insurance company opined
that if Chapman were re-employed, Respondent’s insurance premiums would increase. The
insurance company makes no decision regarding whether a driver should or should not be
hired. Although Respondent presented evidence that it has a practice of refusing to hire drivers
if insurance coverage would increase due to their driving record, such evidence does not
warrant a finding that Chapman was not eligible for reinstatement in June 2007.
First, Respondent may not now argue that Chapman could not be reinstated due to
violations and accidents which would raise the insurance premium when it was perfectly willing
to allow these violations and accidents to remain unreported prior to Chapman’s discharge. Had
it not been for the underlying unlawful termination, Chapman would have continued working for
Piester. There is no evidence that the violations and accidents would have been reported.
Although Cindi Jackson, Piester’s insurance broker at Tidwell Agency, credibly testified, and the
evidence shows, that there would have been a surcharge and a potential loss of coverage if
Piester were to add Chapman to the plan in June 2007, this problem would not have arisen in
the absence of the unfair labor practice. In resolving ambiguities and uncertainties against
Piester as the wrongdoer4, I find that Chapman would have remained employed and is entitled
to backpay from the date of his termination in April 2007.
Piester’s insurance rates were directly linked to the driving records of the truckdrivers.
Any time the insurance company paid out any money the incident was considered
“chargeable.”5 Violations and accidents remain on a driver’s motor vehicles report for 3 years
from the date of conviction. After 3 years elapse, the violations “fall off” their record and are not
considered in calculating insurance rates. To determine insurance rates, the truckdrivers’
records are analyzed by the insurance company. When there are more than three violations or
accidents on a driver’s record, it tends to increase the insurance rate for Piester and Piester will
incur a surcharge if he chooses to keep the driver on the plan.

3 See, e.g., Bob’s Ambulance Service, 183 NLRB 961 (1970); Fibreboard Paper Products
Corp., 180 NLRB 142, 149–150 (1969), enfd. 436 F.2d 908 (D.C. Cir. 1970), cert denied403
U.S. 905 (1971).
4 Minette Mills, Inc., supra, 316 NLRB at 1010–1011.
5 Chargeable incidents can occur whether or not a ticket is issued by law enforcement or
whether or not the truckdriver was at fault.
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The evidence shows that Piester had a pattern of not hiring employees who would raise
the insurance rates, with the one exception of Joe Cagle. In August 2007, Piester inquired as to
whether Jonathan Free would be an acceptable driver under the insurance plan. Tidwell
informed Piester that Free had four violations on his record and that Piester would incur a
surcharge if he chose to add Free to the plan. Piester chose not to hire Free at that time but did
hire him at a later date when some of the violations came off his record. In January 2008,
Dexter Booker applied for a driver position and Piester asked Tidwell if he was acceptable for
the plan. Tidwell informed Piester that Booker had two at-fault accidents on his record and
thereafter Piester chose not to hire Booker. In July 2008, Joseph Suber was not hired when
Tidwell informed Piester that there would be a surcharge for Suber because he had been
involved in an accident. On August 27, 2008, Piester asked Tidwell whether John Burton would
be acceptable as a driver under the insurance policy. Tidwell informed Piester that Burton had
not had his commercial driver’s license for over 2 years and therefore, a surcharge would apply.
Burton was not added to the policy. In March 2010, Piester inquired as to whether Jamaal
Mathis would be an acceptable driver. Mathis had not had his commercial driver’s license for
more than 2 years and thus would incur a 10 percent surcharge. Piester did not hire Mathis at
that time, but did hire Mathis when he reapplied after the 2- year period had elapsed.
The sole exception to this pattern was Joe Cagle. Piester incurred a 10-percent
surcharge for Cagle based on his driving record; however, Piester credibly testified that Cagle’s
primary duties were those of a mechanic and not a driver. Based on the evidence, it seems that
the exception for Cagle was specifically due to his position as a mechanic and therefore is not
an exception to Piester’s practice against insurance rate increases.
However, Piester’s pattern is irrelevant. Chapman continued to be employed after his
two accidents in January and February 2007. In fact, those two accidents were not reported to
the insurance company until after Piester was attempting to mitigate its damages by
contemplating offering Chapman a position again. The unlawful termination was the event
which subjected Chapman’s driving record to be reviewed. In fact, Piester went to great lengths
by sending copies of receipts from the damage resulting from Chapman’s accidents in early
2007 to the insurance company. The insurance company has not, at any time, stated that
Chapman could not be added to the policy, but rather, has consistently stated that adding
Chapman would cause the rates to increase or a loss of coverage. There is no evidence that
Chapman was unfit to drive. Under these circumstances, Chapman is not unable to work and
the General Counsel prevails in showing that Chapman would have continued working but for
the unfair labor practice of terminating him in April.
Moreover, Piester had the option to hire Chapman and pay the surcharge as opposed to
refusing to hire him. Although there was a possibility that Piester would lose some of his
coverage if he hired Chapman, Piester had options and could have found a way to reemploy
Chapman in 2007. Chapman was not literally unavailable to work. Rather, Piester simply
decided it did not want to pay a surcharge to reemploy Chapman.6 Had the underlying

6 Cf. Consolidated Bus Transit, 350 NLRB 1064, 1067 (2007) (due to employer’s unfair labor
practice, employee lacked the requisite certification to drive a bus and was thus entitled to a
contingent offer of reinstatement subject to recertification within a reasonable period of time);
Epic Security, 325 NLRB 772, 774 (1998) (contingent offer of reinstatement pending restoration
of license within a reasonable period of time); DeJana Industries, 305 NLRB 845 (1991) (no
obligation to reinstate discriminatee as a driver until he demonstrates, within reasonable period
of time, that he has an appropriate driver’s license).
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termination not occurred, Chapman’s driving record would not have been subjected to review in
June 2007 and he would have remained employed with Piester.7 As the wrongdoer, Piester is
responsible for all backpay from the date of Chapman’s unlawful termination until its
unconditional offer of reinstatement.
On these findings of fact and conclusions of law and on the entire record, I issue the
following recommended8
ORDER
The Respondent, Alton H. Piester LLC, its officers, agents, successors, and assigns
shall make payment to Darrell Chapman in the amount of $72,538.47 with interest.9
Dated: Washington, D.C. December 30, 2010

____________________________
Mary Miller Cracraft
Administrative Law Judges

7 I further note that even if Chapman had been ineligible for rehire in June 2007, he would
not have remained ineligible indefinitely. Chapman’s conviction of November 23, 2004 would
have fallen off his driving record on November 23, 2007 and he would have been eligible for
employment at that time. Normally, if an employee is “unavailable” to work the backpay period
is tolled for the time when the employee is unavailable. See De Jana Industries, supra, 305
NLRB at 845 (reinstatement with backpay will be awarded if the employee can obtain a driver’s
license in a reasonable period of time); Sure-Tan, Inc., 234 NLRB 1187, 1193 (1978), enfd. in
relevant part 672 F.2d 592 (7th Cir. 1982) (backpay is tolled when an employee is incarcerated).
However, here it is unnecessary to determine whether tolling is appropriate because Chapman
was eligible for rehire in June 2007.
8 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.
9 After issuance of Kentucky River Medical Center, 356 NLRB No. 8 (2010), requiring daily
compound interest on all backpay and other monetary awards, counsel for the Acting General
Counsel requested daily compound interest. Thereafter, Rome Electrical Systems, Inc., 356
NLRB No. 38 (2010), held that Kentucky River does not apply to cases in compliance prior to
issuance of Kentucky River. Accordingly, counsel for General Counsel’s request to withdraw its
motion to amend the compliance specification to include daily compound interest is granted.