Bailey Distributors

National Labor Relations Board - Board Decisions

Feb 14, 1989

292 N.L.R.B. 1106 (N.L.R.B. 1989)

1106 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Donald Browne d/b/a Bailey Distributors and Tuno-
thy Nevins Case 2-CA-18022
February 14, 1989
SECOND SUPPLEMENTAL DECISION
AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On January 29, 1988, Administrative Law Judge
Eleanor MacDonald issued the attached second
supplemental decision The Respondent and the
General Counsel filed exceptions and supporting
briefs
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 exceptions2 and briefs and
has decided to affirm the judge's rulings,3 findings,
and conclusions4 and to adopt the recommended
Order, as modified
We agree with the judge that had Nevins been
hired as a helper, he would have been promoted to
the position of driver First, he was promised the
job The unrebutted testimony showed that by
1980, Donald Browne , the Respondent 's owner,
had promised Nevins several times that the next
driver/salesman job would be his Second, Nevins
was qualified for the job, as evidenced by the fact
that Browne had promised it to him and that
Browne had recalled Nevins to the relief driver po
' In excepting to Judge MacDonald s decision awarding backpay to
Nevins the Respondent argues inter alia that he is not entitled to back
pay because the Board found in the underlying proceeding that he had
not been constructively discharged In this regard the Board in the un
derlying proceeding stated that the nature of the violation was not that of
a constructive discharge 283 NLRB 647 (1987) Rather the Board
found that the Respondent discrimmatonly refused to hire Nevins to a
job of indefinite duration To remedy the violation found the Board
ordered inter alia that the Respondent offer Nevins employment for
which he is qualified and make him whole for all losses suffered as a
result of the Respondent s discrimination against him
On August 5 1987 the United States Court of Appeals for the Second
Circuit entered a judgment enforcing the Board s Order As the Respond
ent s exception regarding constructive discharge relates to the violation
previously found and thus in effect constitutes an attempt to relitigate
matters that have already been resolved with court approval it must be
rejected
2 The Respondent contends contrary to Judge MacDonald and the
General Counsel it did in fact except to Judge Snyder s finding in the
underlying proceeding that the job to which Nevins was not hired was
one of indefinite duration Again however regardless of whether an
exception was filed to Judge Snyder s finding the Board adopted Judge
Snyder s finding and the Board s Order has been enforced by the court
of appeals Therefore the issue of the duration of the job in question has
been previously resolved and is not before the Board
3 We note that Overseas Motors 277 NLRB 552 (1985 ) cited by the
judge was demed enforcement on other grounds 818 F 2d 517 (6th Cir
1987)
4 As requested by the General Counsel we will correct an inadvertent
typographical error in the recommended Order section of the judge s de
cision The backpay figure should read $171 912
sition for 3 consecutive years Third, during the
penod in question, Nevins would have been the
only employee in the Respondent's work force
available for the promotion to driver Also, the em-
ployee who took Nevins' place worked first as a
helper, then as a driver Based on all of these fac-
tors, we conclude that Nevins would have received
the promotion to driver See Kawasaki Motors
Corp, 282 NLRB 159 (1986), enfd 850 F 2d 524
(9th Cir 1988) In any event, the burden of any un-
certainty in restoring the status quo through the
Board 's remedial order falls on the Respondent as
the wrongdoer Kawasaki Motors Corp v NLRB,
supra , 850 F 2d at 531, NLRB v Miami Coca-Cola
Bottling Co, 360 F 2d 569, 572-573 (5th Cir 1966)
Therefore, the judge correctly concluded that the
General Counsel's gross backpay formula reason
ably approximates what discriminatee Nevins
would have received but for the Respondent's un
lawful refusal to rehire him
We also agree with the judge that Browne's
April 27, 1987 letter to Nevins offering him a posi-
tion as a helper was not a proper offer of reinstate-
ment In a May 7, 1987 telephone call, Browne told
Nevins, "you don't want to come back to work
here Some things have surfaced about you
A lot of accidents happen around here You don't
want to come back to work here " We, therefore,
agree with the judge that the Respondent's offer
did not toll the backpay period Romal Iron Works
Corp, 285 NLRB 1178 fn 1 (1987)
ORDERS
The National Labor Relations Board orders that
the Respondent Donald Browne d/b/a Bailey Dis-
tributors, Bronx, New York, its officers, agents,
successors, and assigns , shall pay the amount set
forth below
Make whole Timothy Nevins by payment to him
of the amount of $171,912, plus interest computed
in the manner prescribed in New Horizons for the
Retarded6 and accrued to the date of payment,
minus tax withholdings required by Federal and
state laws The Respondent is further ordered to
pay the sum set forth in the backpay specification
for Nevins as a contribution on his behalf to the
Soft Drink Workers Union, Local 812, IBT pen-
sion fund 7
6 The judge inadvertently failed to award pension benefits to Nevins
as requested in the backpay specification We find that the Respondent is
obligated to make pension contributions on Nevins behalf at the rates set
forth in the backpay specification
6 283 NLRB 1173 (1987)
7 Any additional amounts owed to this fund shall be calculated in ac
cordance with Merryweather Optical Co 248 NLRB 1213 1216 fn 7
(1979)
292 NLRB No 127
BAILEY DISTRIBUTORS 1107
James Wasserman Esq, for the General Counsel
Alan M Stern Esq, of Mineola, New York for the Re
spondent
David B Horowitz Esq of New York, New York for
the Charging Party
SECOND SUPPLEMENTAL DECISION
ELEANOR MACDONALD, Administrative Law Judge
On 14 April 1987, the National Labor Relations Board
issued its Supplemental Decision and Order in the above
captioned case in which it affirmed the finding of Ad
ministrative Law Judge Robert Snyder that Respondent
violated Section 8(a)(3) and (1) of the Act by condition
ing its job offer to Nevins on his accepting subscale
wages and thus unlawfully refusing to hire Nevins for
discriminatory reasons, 283 NLRB 647 (1987) The
Board ordered that Respondent, inter alia , offer to
employ Timothy Nevins in the position for which he is
qualified and in which he would have been employed but
for the discrimination against him or, if that job no
longer exists, to a substantially equivalent position, with
out prejudice to his seniority or other rights and privi
leges, and make him whole for any loss of earnings or
other benefits suffered as a result of the discrimination
against him in the manner set forth in the remedy section
of the Adminstrative Law Judge s decision On 5
August 1987, the United States Court of Appeals for the
Second Circuit entered a judgment enforcing the Board s
Order On 25 September 1987, the Regional Director for
Region 2 issued a backpay specification and notice of
hearing in the instant case The matter was heard by me
in New York New York 30 November and 1 December
1987
On the entire record, including my observation of the
witnesses, and due consideration of the briefs filed by the
General Counsel and Respondent I make the following
FINDINGS OF FACT
A Background
Donald Browne owns and operates Respondent, a
wholesale soft drink distributorship Respondents collec
tive bargaining agreement with the Soft Drink Workers
Union Local 812 IBT covers drivers and helpers
Nevins worked as a relief driver for Respondent at vari
ous times between 1977 and 2 January 1981 when Re
spondent s regular drivers were absent In the fall of
1980, Nevins worked briefly as a regular driver on a new
route which was soon abolished for economic reasons
At various times through 1980 Nevins also worked as
a helper to Respondents driver At such times Nevins
was paid in cash directly by the driver he was helping
Apparently this is a widespread industry practice how
ever Nevins eventually filed an unfair labor practice
charge and a demand for arbitration over his failure to
receive wages and benefits from Respondent pursuant to
the contract when he worked as a helper The arbitrator
ruled against Nevins on the issue, finding that Nevins
was not an employee of Respondent
Nevins unfair labor practice charge related not only
to his employment as a helper through 1980 but also re
lated to the events of 5 January 1981 On that day,
Browne told Nevins that he was personally taking over
one of the existing routes owned by Respondent 1
Browne offered Nevins a job as a helper Administrative
Law Judge Snyder, in a finding not excepted to by Re
spondent found that Browne offered Nevins a job of
indefinite duration as a helper
On 3 January 1983 Administrative Law Judge Snyder
issued a decision finding that Respondent had discrimi
nated against Nevins in violation of Section 8(a)(3) and
(1) of the Act Judge Snyder declined to defer to the ar
bitrator's award on any issues After the Board issued its
decision in Olin Corp, 268 NLRB 573 (1984), the case
was remanded to Judge Snyder The judge issued a sup
plemental decision on 25 June 1984 that found in sub
stance, that Respondent violated the Act by refusing to
apply the terms of a collective bargaining agreement to
Nevins while he worked as a helper at various times in
1980 and had also violated the Act by conditioning
Nevins' hiring as a helper on 5 January 1981 on his will
ingness to work below union scale 2 The judge again de
dined to defer to the arbitrators award, which had
found that Respondent had not employed Nevins as a
helper in 1980, but had made no finding as to the dis
criminatory denial of employment of 5 January 1981
On 21 January 1986, the Board issued its Decision and
Order at 278 NLRB 103, finding that the refusal to defer
to the arbitrators award was erroneous, and dismissing
the complaint
On 23 June 1986, the United States Court of Appeals
for the Second Circuit issued its decision in Nevins v
NLRB 796 F 2d 14, finding that deferral was proper as
to the issue of Respondents discrimination against
Nevins in 1980 but that the Board had abused its discre
tion in deferring the issue whether Respondent discrimi
nated against Nevins 5 January 1981 by conditioning his
hiring as a helper on the acceptance of subscale working
conditions The court remanded this issue to the Board
The court found that on Friday, 2 January 1981
Nevins drove a truck for Respondent The court further
found that on Monday, 5 January Browne offered
Nevins a job as his helper The court stated that at the
time of the offer of continued employment Nevins had
been performing services for Browne The court framed
the issue that the Board should decide as whether he
was constructively discharged from his employment by
the allegedly improper offer on January 5th 796 F 2d at
19 The Board accepted the remand of the court
In its Supplemental Decision and Order, the Board
noted its observance of the Court s opinion as the Law
of the Case ' and it adopted Judge Snyder s rulings find
ings and conclusions as to Nevins statutory claim of dis
crimination on 5 January 1981
The court of appeals used the terms constructive dis
charge in the sense that it found that Nevins was discri
minatorily offered employment on 5 January 1981 when
' Browne had just fired his regular driver Walsh who had the fourth
truck route of the distributorship
2 On 5 January 1981 Donald Browne offered Nevins a job as a helper
for $40-$50 per day off the books that is with disregard of the wage and
benefit provisions of the agreement When Nevins told Browne that he
wanted to work as a union helper Browne refused
1108 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
he had been performing services for Respondent The
Board pointed out that there were problems with the
term constructive discharge , it did so because Nevins
had not previously been employed as Browne s helper
the precise position for which he had received a job
offer on a discriminatory basis This purely semantic
matter cannot obscure the law of the case, Nevins was
offered employment of indefinite duration' in a manner
that violated the Act and called for a backpay remedy
and reinstatement
B Amendment of the Specification
The General Counsel amended the backpay specifica
tion to provide as follows
Yr /Qtr Gross Backpay Interim Earnings Net Backpay
1981
1st $5000 $ 0- $5000
2d 10 071 1 634 8 437
3d 10 566 1 226 9 340
4th 12 066 0 12 066
1982
1st 9 083 0 9 083
2d 6 621 0- 6 621
3d 12 896 2 352 10 544
4th 10600 1 156 9 454
1983
1st 7 325 1 490 5 835
2d 9 691 1441 8 250
3d 11 972 5 685 6 287
4th 10 719 583 10 136
1984
1st 9 689 3 863 5 826
2d 11 782 6 547 5 235
3d 11 187 5 141 6046
4th 13447 7 307 6 140
1985
1st 9 290 11 260 0
2d 7 061 1 824 5 237
3d 0 0 0
4th 7 729 2000 5 729
1986
1st 12103 275 11828
2d 11 751 7 549 4202
3d 11 943 7 696 4 247
4th 13 180 7 427 5 753
1987
1st 10 198 6 436 3 762
2d 12 523 7 500 5 023
3d 9 231 7 500 1 821
Total *$171912
* Interest to be added
The gross backpay figures in the specification were
calculated with reference to the earnings of three em
ployees of Respondent, Carlos Martinez Jose Corpes
and Joseph Buso
On 16 January 1981, Martinez was hired as the helper
on the fourth truck and on 15 February he became the
driver of the fourth truck Corpes replaced Martinez as
the dnver of the fourth truck in January 1986, and in
July 1987 Buso became the driver of the fourth truck
There is no dispute about the amounts earned by these
three employees
The General Counsel has not claimed backpay for pe
nods when Nevins was not available for work due to
physical disability
C Discussion and Conclusions
Respondents expert witnesses testified that the way
for a person to gain employment in the soft dunk distn
bution business is to be available to help drivers with
their routes 3 When a helper has gained experience and
become known to the owner of the distributorship the
owner will employ the person as a relief driver on occa
sion and at other times, the person will continue as a
helper If the person is satisfactory as a relief dnver, the
owner may eventually give him a permanent position as
a dnver when an existing truck route becomes vacant or
a new truck route is added to the distributorship
The evidence shows that helpers on Respondent s
trucks work off the books and are paid directly by the
drivers they assist Relief drivers are paid on the books
pursuant to the collective bargaining agreement The
helper on the truck driven by Browne is paid on the
books Browne only drives a truck when he is observing
a helper about to be given a job as a regular dnver
Respondent normally has four truck routes When one
of the truckdnvers leaves Browne may drive that route
for a while with a helper If the helper is satisfactory
Browne ceases driving himself and gives the route to the
helper who then becomes a regular route driver
The uncontroverted testimony before me shows that
from 1977 to 1980, Nevins was the only relief driver em
ployed by Respondent Further in 1980, Browne had
told Nevins that he would be given the next route that
became vacant On a number of occasions before 1981
Browne told Nevins hang in there until someone re
tired and then he would have steady employment
I conclude that on 5 January 1981 had Nevins been
employed as a helper by Browne, Nevins would have
continued as a helper and eventually he would have
become the dnver of the fourth truck route This is pre
cisely what happened in the case of Martinez the man
who became Browne s helper and who was then made
dnver of the fourth truck route
Once the Board has made a determination of unlawful
discrimination and has ordered a backpay remedy, the
General Counsel need only prove the backpay owing by
utilizing a reasonable method of calculation Here the
General Counsel has based the backpay calculations on
the earnings of Respondents employees who performed
the work Nevins had been offered by Browne Martinez
became Browne s helper on 15 January 1981, then he
became the dnver of the fourth route He was replaced
by Corpes who was then replaced by Buso Respondent
has not offered any alternative method of calculating
s Five witnesses with many years experience in the soft dunk distnbu
non industry testified on behalf of Respondent
BAILEY DISTRIBUTORS
backpay and I find that the General Counsels method is
correct
Respondent contends that 5 January 1981 Browne did
not offer Nevins anything more than work for 1 day
However, the law of the case precludes this argument
Administrative Law Judge Snyder s finding not except
ed to and adopted by the Board, was that Browne of
fered Nevins a job of indefinite duration ' The court of
appeals found that Browne offered Nevins continued
employment Industry practice, as proved by Respond
ent s own witnesses, shows that after a period as
Browne's helper, Nevins would have become a regular
driver Thus, I find that Nevins was offered a job as
Browne s helper in contemplation of becoming the regu
lar driver on the fourth route It is Respondents burden
to show that Nevins would not have continued in his job
from 5 January 1981 to the present Browne did not tes
tify and there is no other evidence to meet Respondent's
burden
Respondent urges that Nevins is not entitled to back
pay from 16 June 1982 because he did not have a valid
driver s license from that time forward It was stipulated
that from 16 June 1982 through 23 June 1987, Nevins' li
cerise was suspended for failure to pay certain sum
monses On 23 June 1987, his license was revoked for
operating without insurance 4 On 30 November 1987 the
first day of the hearing, Nevins obtained a restricted use
license by paying all his unpaid summonses Nevins testi
fled that after he was discriminated against by Respond
ent and was out of work, he had no money to pay tickets
issued to him and thus his license was suspended He
stated that he could have obtained a restricted license at
any time and could have driven a truck legally by
paying the outstanding tickets
Article 21-A § 530 of the New York State vehicle and
Traffic Law provides that a person whose license has
been suspended or revoked and for whom the holding
of a valid license is a necessary incident to his employ
ment may be issued a restricted use license
The record evidence shows therefore that Nevins
could have driven Respondents trucks legally by the act
of paying any outstanding fines Nevins could have been
issued a restricted license as a matter of mere rountine
and his failure to pay his fines when he did not need a
driver s license does not operate to bar him from his enti
tlement to backpay Overseas Motors 277 NLRB 552 559
(1985)
The General Counsel having established the backpay
liability Respondent might have shown that Nevins
failed to mitigate backpay by failing to make reasonable
efforts to find equivalent employment The burden of
proof on this issue is on Respondent The discriminatee
need not be successful in his efforts he is not held to the
highest standards in his efforts to find work, and uncer
tainties in the evidence are resolved against the Respond
ent who has violated the Act Further, it is understood
that the discriminatee may not have kept exact records
of his efforts to mitigate backpay liability and, after the
passage of time his memory may be faulty
* There is no dispute that at other times Nevins had the proper license
to operate Respondents trucks
1109
Nevins testified that a couple of weeks after 5 Janu
ary 1981, he tried to find work in the soft drink industry
by contacting a Canada Dry salesman a Mr Cary This
contact did not produce a job offer
Sometime after this, Nevins heard of a program in the
Carpenters Union He filled out an application, took a
test and was admitted to Local 608 of the Carpenters
Union After Nevins signed up with the Union, he was
referred to various jobs by the Union He testified that
each time he finished a job, he would call the local and
put his name on the list of those seeking work Nevins
stated that the work was sporadic, but that he worked
whenever he could get work His earnings are shown on
the backpay specification
In addition to working as a carpenter through the
Union, Nevins heard of a job building liquor displays in
liquor stores He worked for several display companies
doing this work The work is not well paid
Further, Nevins made an unsuccessful foray into the
home improvement field he earned no money and was
the object of a lawsuit due to an incompetent subcon
tractor
Nevins testified that he always looked for work and
never sat idle Nevins signed up with the state unemploy
ment office
Respondent urges that Nevins did not seek equivalent
employment because he made no further efforts to find
work in the soft drink industry Respondents own wit
nesses testified that to find work as a helper, Nevins
would have had to hang around a plant and hope to
be employed as a helper on an ad hoc basis After 6
months to 1 year of such hanging around, he might have
been employed as a relief driver or a regular driver But
there is no guarantee of this Although various Respond
ent s witnesses testified that driver jobs were available
the evidence shows that a distributor might hire one new
driver a year at the most There is no evidence as to
how many applicants per job there are in the industry
Nor is there any evidence as to any other factors that
might have given other applicants an edge over Nevins
in the hiring process such as family connections former
service as a regular driver or the like Significantly,
none of Respondents witnesses testified that they would
have given Nevins a job as a helper or driver if he had
applied to them after 5 January 1981 Thus I cannot find
fault with Nevin s decision to enroll in the Carpenters
Union program and seek to build a career in that indus
try Nevins had no way of knowing whether if he start
ed by hanging around a new distributors premises for 6
months to 1 year he would eventually gain a relief dnv
er s or driver s position He might well have invested the
time for naught See Rainbow Coaches, 280 NLRB 166
(1986), enfd 835 F 2d 46 (9th Cir 1987), Amshu Associ
aces, 234 NLRB 791 793 (1978) Great Plains Beef Co,
255 NLRB 1410 1411 (1981)
Respondent introduced a letter dated 27 April 1987
from Browne to Nevins It stated, I hereby offer you a
position as a helper ' Nevins asked his wife to write a
reply accepting Browne s offer Although Nevins did not
know when the letter was mailed, his wife sent a letter
to Browne accepting the offer as per the National
1110 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Labor relations Boards [sic] latest order This letter was
dated 11 May 1987
Nevins testified that 7 May 1987, he spoke to Browne
on the telephone and asked for a job Browne replied
you don't want to come back to work here Some
things have surfaced about you A lot of accidents
happen around here You don t want to come back to
work here'
Nevins testified that Browne never made any appoint
ment to see him about reinstatement Although Browne
did not testify in this proceeding Respondent introduced
circumstantial evidence purporting to show that Nevins
failed to keep an appointment at Respondent's premises
concerning his reinstatement Given Browne s failure to
testify and offer direct evidence on this point and given
Nevins uncontroverted testimony that he never had any
appointement to see Brown about his job, I can not find
that Nevins refused an offer of reinstatement The only
record evidence before me shows that after sending
Nevins a job offer, Browne threatened Nevins by imply
ing that he might have an accident and told Nevins that
he did not want to come back to work It is clear that
Browne did not make a proper offer of reinstatement to
Nevins and the backpay period has not been tolled
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend
eds
ORDER
The Respondent, Donald Browne d/b/a Bailey Dis
tnbutors, Bronx, New York his officers agents, succes
sors, and assigns, shall pay to Timothy Nevins the sum
of $171 912, plus interest 6 Because Respondent has not
complied with the terms of the Board s Order and the
order of the court of appeals with respect to offering im
mediate reinstatement to Timothy Nevins, his backpay
rights for periods after the quarters covered in this Order
are reserved
11 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 put
poses
6 See New Horizons for the Retarded 283 NLRB 1173 (1987)