Baumgardner Co.

National Labor Relations Board - Board Decisions

Aug 27, 1991

304 N.L.R.B. 526 (N.L.R.B. 1991)

526
304 NLRB No. 65
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The General Counsel contends that the Respondent’s exceptions do not
comply with Sec. 102.46(b)(1) and (2) of the Board’s Rules and Regulations.
After a careful examination of the Respondent’s exceptions, we deny the Gen-
eral Counsel’s motion to disregard on the ground that the exceptions substan-
tially comply with the Board’s Rules.
2 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings.
We note that for the final 4 weeks of the backpay period, the compliance
specification used hours worked by employee Stanhope as a basis for project-
ing the number of hours that Welsh would have worked. We find that the
specification’s reliance on Stanhope, who then was the only remaining em-
ployee whose responsibilities were similar to those of Welsh, was appropriate.
1 The Board’s Decision was enforced by the United States Court of Appeals
for the Third Circuit in an unpublished memorandum opinion dated December
28, 1988.
2 289 NLRB 22 (1990).
Elmer R. Baumgardner t/a Baumgardner Company
and International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, AFL–CIO. Cases 6–CA–19251 and 6–
CA–19564
August 27, 1991
SECOND SUPPLEMENTAL DECISION
AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On June 17, 1991, Administrative Law Judge
George F. McInerny issued the attached supplemental
decision. The Respondent filed exceptions and the
General Counsel filed a motion for the Board to dis-
regard the Respondent’s exceptions1 and, in the alter-
native, an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the supplemental decision
and the record in light of the exceptions and brief and
has decided to affirm the judge’s rulings, findings,2
and conclusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Elmer R. Baumgardner t/a
Baumgardner Company, Fayetteville, Pennsylvania, its
officers, agents, successors, and assigns, shall take the
action set forth in the Order.
Patricia J. Scott, Esq., for the General Counsel.
Jan G. Sulcove, Esq. (Black and Davison), of Chambersburg,
Pennsylvania, for the Respondent.
Philip W. Crawford Sr., of Waynesboro, Pennsylvania, for
the Charging Party.
SUPPLEMENTAL DECISION
I. BACKGROUND
On May 12, 1988, the National Labor Relations Board (the
Board), issued a Decision and Order in the above-numbered
cases (288 NLRB 977 (1988)) in which the Board ordered
the Respondent, Elmer R. Baumgardner, t/a Baumgardner
Company (Baumgardner), or (the Respondent), to make
whole Marvin Welsh Jr. for any loss of pay he may have
suffered as a result of the Respondent’s discrimination
against him.1
On May 5, 1989, a controversy having arisen over the
amount of backpay due under the Board’s Decision and
Order, the Regional Director for Region 6 issued a backpay
specification and notice of hearing. The Respondent filed an
answer to the backpay specification on May 26, 1989. The
Acting General Counsel of the Board, acting through the Re-
gional Office for Region 6 filed a motion with the Board on
August 15, 1989, to strike the answer, or, in the alternative,
for summary judgment based on certain procedural grounds.
The Board considered this motion, and subsequent plead-
ings, and on March 30, 1990, issued a Supplemental Deci-
sion and Order remanding the matter denying the General
Counsel’s motion to strike and granting the Motion for Sum-
mary Judgment, in part.2 The Board ordered that the Re-
gional Director for Region 6 issue a notice of hearing before
an administrative law judge which was to be limited to tak-
ing evidence concerning pay increases alleged to be due
Marvin Welsh Jr. during the backpay period, and concerning
Welsh’s interim earnings. After several postponements, a
hearing was held before me at Chambersburg, Pennsylvania,
on December 13, 1990. After the close of the hearing, briefs
were filed by the Respondent and the General Counsel,
which have been carefully considered.
II. THE ISSUES
A. Interim Earnings
In its answer to the backpay specification on May 26,
1989, the Respondent demanded proof of the allegation in
the specification concerning interim earnings. However, dur-
ing the hearing, Respondent did not call Marvin Welsh, who
was present throughout, as a witness, and, in its brief adopt-
ed the amounts of interim earnings presented in the specifica-
tion, up to December 31, 1988.
Accordingly, I find that the total amounts of net interim
earnings for the whole backpay period are true and accurate.
Colorado Forge Corp., 285 NLRB 530 (1989).
B. Pay Increases During the Backpay Period
John O’Connell, compliance supervisor for the Board’s
Regional Office for Region 6, and the author of the backpay
specification here as issue, testified that he determined the
amounts and frequency of wage increases which would have
been earned by Marvin Welsh Jr. but for the discrimination
against him by Respondent. O’Connell stated that he used
the actual experience on the Respondent’s property of an-
527BAUMGARDNER CO.
3 Not mentioning, as he had previously, that Jones could and did weld the
aluminum tanks.
4 Welsh had received two wage increases before his discharge, with no men-
tion about inability or refusal to perform all assigned duties.
5 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 objec-
tions to them shall be deemed waived for all purposes.
other employee named Kenneth Crouse to project the earn-
ings that Welsh would have received during the backpay pe-
riod. Crouse was the closest employee to Welsh in his date
of employment, and performed the same work as Welsh per-
formed for Respondent. During the backpay period, after
Welsh was discharged, Crouse received four increases, on
December 15, 1986, February 2, 1987, April 6, 1987, and
November 30, 1987.
Elmer Baumgardner testified that Welsh was employed to
weld on a steel tank to be used as part of a water treatment
plant. Welsh could not, and actually refused, to do welding
on some aluminum tanks used to haul materials to the Re-
spondent’s plant. According to Baumgardner, Welsh, as well
as two other welders, Arthur Frye and Leonard Baker, ‘‘had
no skill at using the type of equipment and welding the alu-
minum that was required.’’ Kenneth Crouse, and another em-
ployee named William Jones, could and did do the aluminum
welding.
Baumgardner also testified that he observed all of the
welders on a day-to-day basis, and that, on the basis of
‘‘qualifications’’ he would equate Welsh not with Crouse,
but with William Jones. He stated that Jones and Welsh
‘‘were of the general same productivity—the quality of their
work was equal and they performed very similar tasks. Over-
all they had generally the same qualifications.’’3
I found Baumgardner’s entire testimony to be
uncorroborated, unsupported by any documentation or the re-
sults of any work performance evaluations,4 merely anec-
dotal, conclusionary and totally self-serving, falling far short
of meeting the Respondent’s burden of showing that Welsh
would have been treated differently than was Kenneth
Crouse, no matter how highly Crouse’s services allegedly be-
came, after Welsh’s discharge, to be valued by Baumgardner.
Midwest Hanger Co., 221 NLRB 911 (1975); See also Bo-
land Marine & Mfg. Co., 280 NLRB 454 (1986).
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended5
ORDER
The Respondent, Elmer Baumgardner, t/a Baumgardner
Company, Fayetteville, Pennsylvania, its officers, agents,
successors, and assigns, shall satisfy his obligation to make
Marvin Welsh Jr. whole by payment to him of the amount
of $11,527.85, less appropriate deductions for Federal and
other income taxes, and social security, together with interest
thereon accrued to the date of payment computed in the man-
ner described in New Horizons for the Retarded, 283 NLRB
1173 (1987).