Birch Run Welding & Fabricating, Inc.

National Labor Relations Board - Board Decisions

Nov 30, 1987

286 N.L.R.B. 1316 (N.L.R.B. 1987)

1316 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Birch Run Welding & Fabricating, Inc. and Interna-
tional Union, United Automobile, Aerospace
and Agricultural Implement Workers of Amer-
ica, UAW. Case 7-CA-21755
30 November 1987
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND BABSON
On 30 March 1984 the National Labor Relations
Board issued a Decision and Order in this proceed-
ing' in which it adopted an administrative law
judge's findings and conclusion that the Respond-
ent violated Section 8(a)(1) and (3) of the Act by
laying off certain employees in retaliation for the
activities of some of its employees on behalf of the
Union and in order to discourage the union activi-
ties of all of its employees. The Board ordered the
Respondent, inter alia, to make the discriminatees
whole for any losses they sustained by reason of
their unlawful layoffs. Thereafter, the Board's
Order was enforced on 13 May 1985 by the United
States Court of Appeals for the Sixth Circuit.2
Subsequently, pursuant to a backpay specification
and notice of hearing issued by the Regional Direc-
tor for Region 7 and a remand from the Board, a
hearing was held before Administrative Law Judge
Martin J. Linsky to determine the amount of back-
pay due the discriminatees. On 28 July 1987 the
judge issued the attached supplemental decision.
Thereafter the Respondent filed exceptions and a
supporting brief and the General Counsel filed mo-
tions3 and an answering brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the record and the
supplemental decision in light of the exceptions and
briefs and has decided to affirm the judge 's rulings,
findings, and conclusions and to adopt the recom-
mended Order.
1 269 NLRB 756
2 761 F.2d 1175
a The judge inadvertently refers to discnminatee Darnel Oberg as
"Donald" Oberg. We grant the General Counsel's motion to correct the
supplemental decision and recommended Order to read "Daniel" Oberg
as contained in the record.
The General Counsel also filed a motion to strike specified factual rep-
resentations made by the Respondent in its exceptions We find that these
representations were not presented as evidence at the hearing or subject-
ed to cross-examination and, therefore, they are not part of the record in
this proceeding . See Sec . 102 45(b) of the Board 's Rules and Regulations
Accordingly, we grant the General Counsel's motion to strike
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Birch Run
Welding & Fabricating, Inc., Birch Run, Michigan,
its officers , agents, successors , and assigns, shall
pay to John Clark, Patrick Reittenback, Jose
Aguirre, Chris Van Ness, Timothy Altman, Jeffrey
Benham, Donald Yaklin, Kenneth Parlberg, Wil-
liam Humes, Daniel Oberg, Timothy Schmidt,
Alan Zabarcki, and Anthony Sparck the sums set
forth in the recommended Order.
Joseph A. Baker, Esq., for the General Counsel.
Thomas A. Basil, of Saginaw , Michigan, for the Respond-
ent.
SUPPLEMENTAL DECISION
MARTIN J. LINSKY, Administrative Law Judge. In a
backpay specification dated 24 June 1986 the Regional
Director for Region 7 alleged that the Respondent, Birch
Run Welding and Fabricating, Inc., had failed to pay
backpay to 13 unlawfully laid-off employees pursuant to
a Decision and Order of the National Labor Ralations
Board (Birch Run Welding & Fabricating, 269 NLRB 756
(1984), which Order was enforced on 4 June 1985 by the
United States Court of Appeals for the Sixth Circuit as
Birch Run Welding & Fabricating v. NLRB, 761 F.2d
1175 (6th Cir. 1985)). Respondent filed an unworn
answer to the backpay specification.
The General Counsel then filed with the Board a
motion to strike answer or certain responses of answer to
backpay specification and a Motion for Summary Judg-
ment. The matter was transferred to the Board and,
thereafter, the Respondent filed with the Board an
amended response to the backpay specification, which
was sworn and that the General Counsel did not move
to strike.
On 30 January 1987 the Board issued an Order deny-
ing the General Counsel's motion to strike answer or
certain responses of answer to backpay specification and
Motion for Summary Judgment and remanded the pro-
ceedings
to the Regional Director for Region 7 for the pur-
pose of arranging a hearing before an administrative
law judge, limited to the determination of the back-
pay period for Donald Yaklin and Kenneth Parl-
berg, the amounts of necessary and related expenses
for William Humes and Donald Oberg, the interim
earnings of Timothy Schmidt, and the duty to miti-
gate damages on the part of Alan Zabarcki and An-
thony Sparck ... .
On 4 February 1987 the Regional Director for Region
7 issued a notice of hearing and remand setting the hear-
ing for 4 May 1987.
The hearing was held before me on 4 May 1987 in
Burton, Michigan.
286 NLRB No. 125
BIRCH RUN WELDING 1317
1. JURISDICTION[
Respondent appeared with its representative at the
time and place prescribed by the Regional Director. Fol-
lowing the hearing, briefs were filed by the General
Counsel and the Respondent.
II. ISSUES
The issues before me were spelled out by the Board in
its remand Order and are set out above.
The Respondent unlawfully laid off 13 employees.
With respect to 6 of the 13 employees there is no dispute
about the backpay due and owing to them. Accordingly,
I will order that John Clark, Patrick Reittenback, Jose
Aguirre, Chris Van Ness, Timothy Altman, and Jeffrey
Benhan receive backpay, with interest, in the amounts
specified in the backpay specification.
With respect to 7 of the 13 employees issues remain to
be decided. I will address each of the seven employees
individually. All 13 employees were laid off on 27 Janu-
ary 1983 and the backpay period ended foi 12 of the 13
when they were offered reinstatement. With respect to 1
of the 13, namely, Anthony Sparck, the backpay period
ended when he enlisted in the U.S. Navy.
A. Donald Yaklin
The only issue regarding Donald Yaklin is the length
of the backpay period. The General Counsel and the Re-
spondent agree that the backpay period commenced on
27 January 1983, but disagree about the termination date.
The General Counsel contends the backpay period ter-
minated on 13 September 1983 when Yaklin received
actual notice of an offer of reinstatement from the Re-
spondent. More specifically Respondent had called Yak-
lin's sister on the phone offering reinstatement to her
brother and she in turn passed the message to Yaklin.
Respondent contends the backpay period ended on 14
February 1983 because Respondent sent Yaklin a letter,
dated 7 February 1983, offering him reinstatement as of
14 February 1983. The letter, however, was sent to an
address from which Yaklin had moved, and was returned
to Respondent marked, "addressee unknown."
A respondent's offer of reinstatement will terminate a
backpay period if the employee receives actual knowl-
edge of the offer of reinstatement or a respondent has
made a good-faith effort to convey the offer of reinstate-
ment to the employee, e.g., by sending a letter of rein-
statement to the employee's correct address or the em-
ployee's last known address. Bodolay Packaging Machin-
ery, 271 NLRB 10 (1984), and Rental Uniform Service,
167 NLRB 190, 197-198 (1967). The address to which
Respondent sent the letter was neither correct nor Yak-
lin's last known address. Prior to September 1983, Yaklin
received neither actual notice of the offer or reinstate-
ment nor did he receive notice that a letter from the Re-
spondent was being held for him at the post office. Fur-,
ther, Yaklin, prior to his layoff, had notified an agent of
the Respondent (a secretary in personnel) that he was
moving and he had the address on his paycheck changed
to reflect his new address. It was his old address-which
Respondent was on notice had changed--to which Re-
spondent sent the letter in February 1983 offering rein-
statement. A letter Yaklin never received. In addition,
Yaklin's personnel file contained two documents from
the Michigan Employment Security Commission reflect-
ing Yaklin's new address and the fact that the address to
which the letter offering reinstatement was sent was no
longer Yaklin's address.
When the letter offering reinstatement to Yaklin was
returned marked "addressee unknown" Respondent made
no other attempt to communicate the offer of reinstate-
ment to Yaklin until September 1983-7 months later-
when it called Yaklin's sister and it was then because
Yaklin's sister told him of the Respondent's call that
Yaklin first became aware of the offer of reinstatement.
Accordingly, I agree with the General Counsel that the
backpay period terminated on 13 September 1983 and
not on 14 February 1983.
Because there were no other issues left open regarding
employee Donald Yaklin, I will order that he be paid
backpay in the amount of $6,335.38, with interest, as set
forth in the backpay specification.
B. Kenneth Parlberg
The only issue regarding Kenneth Parlberg was the
duration of the backpay period. The specification alleged
the backpay period ran from 27 January 1983 to 11 June
1985 . The Respondent , in its amended response , claims
Parlberg was offered reinstatement effective 11 June
1984, not 1985. Indeed, it claims Parlberg returned to
work for a period of time and then quit, At the hearing
the General Counsel, having determined that the Re-
spondent was correct, amended the backpay specification
to reflect that the backpay period terminated on 11 June
1984. Accordingly, the amount of backpay due and
owing Parlberg was reduced to $14,074.33, and I will
order that the Respondent pay Parlberg that amount
with interest.
C. William Humes
The only issue involving William Humes is the amount
of necessary and related expenses which he will be al-
lowed to deduct from interim earnings . Needless to say,
discriminatees are entitled to a reduction from their inter-
im earnings for expenses incurred in seeking work or in
working elsewhere , expenses that would not have been
incurred had the discriminatee not been unlawfully dis-
charged or laid off.
Humes was a machine operator for Respondent and
wore flanneled shirts, blue jeans, and safety shoes while
on the job. Following his unlawful layoff Humes became
a salesman in two different retail furniture stores-Suite
Dreams and George & Taylor. It was necessary for him
to outfit himself with clothes suitable for his new job and
Humes spent $1050.50 for new clothes needed for his job
over a period of several months. The clothes consisted of
suits, sport jacket, slacks, belts, shirts, socks, ties, shoes,
and dress sweaters. In addition, Humes paid $49.95 for a
calculator with a printout capability to be used on his
new job to show customers the cost of furniture pur-
chases, and he spent $12 for a pen and pencil set for his
desk, which was used by customers to sign contracts of
purchase for furniture.
1318 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Humes calculated that because of his promotion to
manager and transfer to a new store opened by his inter-
im employer, he accrued $250 in mileage costs based on
the extra 50 miles a day, 5 days a week for at least 5
weeks that he had to travel to Caro, Michigan, from his
home in Bridgeport . The extra mileage cost ended only
on his move to Caro. The cost of his move by a profes-
sional moving company was $450. The Board has always
considered transportation and moving costs incurred in
securing and holding interim employment to be legiti-
mate deductions from interim earnings. See, e .g., Hacien-
da Hotel & Casino, 279 NLRB 601 (1986).
Because I agree with the General Counsel that the ex-
penses incurred by Humes in securing and maintaining
interim employment were reasonable and deductible
from interim earnings, I will order that backpay, in the
amount of $5647.48, with interest, be paid to William
Humes.
D. Donald Oberg
The only issue in Donald Oberg's case is the amount
of necessary and related expenses incurred by Oberg in
securing and maintaining interim employment . Oberg se-
cured interim employment as an auto mechanic at Suski
Chevrolet-Buick, a new- and used-car dealership. When
Oberg left Respondent's employ following his unlawful
layoff he had only $50 worth of tools. Hired by Suski to
do mechanic work Oberg was required to outfit himself
at his own expense with the tools necessary to do the
job. Accordingly, Oberg had to purchase sockets, ratch-
ets, wrenches, hammers, etc., and to purchase work
clothes and boots. He claims, and I believe him, that he
paid $100 for clothes and boots. With respect to tools
Oberg claims that he paid approximately $5000 for tools
for use on his job from Mac Quality Tools, Sears, Totten
Automotive, and Snap on Tools. He brought to the hear-
ing a very large number of receipts for purchase of tools
and other equipment. The receipts added up to about
half the amount claimed , but Oberg credibly testified
that he lost and misplaced many receipts.
There is no doubt, in my mind, that Oberg was an
honest witness and is honestly and accurately estimating
that he paid approximately $5000 for tools and equip-
ment.
Kenneth Parlberg, a fellow discriminatee, whose case
is discussed above, testified that $5000 worth of tools for
a mechanic in a job like Oberg's is reasonable . Although
I am positive that Parlberg, a mechanic himself, gave his
honest opinion, I do note that he has never worked in a
car dealership.
As noted, Oberg only had receipts for about half the
amount of the purchases he claims to have made, but I
find it credible and accurate that he spent what he claims
he spent . I credit his testimony that he misplaced or lost
many of his receipts.
There was no evidence received at the hearing that
mechanics at Suski needed less than that amount of tools
and equipment to do their jobs.
Accordingly, I will order the Daniel Oberg be paid
backpay in the amount of $17,968.51, with interest.
E. Timothy Schmidt
The only issue regarding Timothy Schmidt was inter-
im earnings . The Respondent's amended response con-
tested the backpay specification's failure to list any earn-
ings from Jones Excavating as interim earnings, and
raised an issue concerning the amounts received from
two other admitted interim employers listed in the back-
pay specification. In cases in which the amount of inter-
im earnings are contested, or there is an allegation that
other earnings were concealed, the Respondent bears the
burden of proof. See, e.g., Rainbow Coaches, 280 NLRB
166 (1986). In the instant case, Respondent presented no
evidence that the dollar of interim earnings set forth in
the backpay specification, as amended by the General
Counsel's Exhibit 4, were in error. Consequently, those
amounts are accepted as accurate.
Regarding Jones Excavating the General Counsel's po-
sition is that any moneys received were not interim earn-
ings but rather were "supplemental earnings ." Supple-
mental earnings from "moonlighting" jobs constitute an
exception to the general rule regarding interim deduc-
tions and such supplemental earnings will not be deduct-
ed if the employee had the moonlighting job prior to his
unlawful discharge or lay off. Acme Mattress Co., 97
NLRB 1439, 1443 (1952); Miami Coca-Cola Bottling Co.,
151 NLRB 1701, 1710 (1965), enfd. 360 F.2d 569, 573
(5th Cir. 1966). The General Counsel's position is cor-
rect. The rationale is that earnings from such extra effort
should operate to the advantage of the backpay claimant
and not the employer. Again, the burden of proof is on
the Respondent to prove that the employee would not
have been able to work at the supplemental job before
illegal termination. Daniel Construction Co., 276 NLRB
1093 (1985).
As Schmidt testified at the hearing, he had worked for
Jones Excavating as a casual employee since at least
1975. Schmidt always worked on a cash basis and no de-
ductions from his pay were ever made. Jones Excavating
never provided Schmidt with a W-2 or 1099 form.
Schmidt worked for Jones Excavating whenever they
needed extra help because he had gone to school with
Dwayne Jones, the owner's son. Schmidt never worked
regular hours or regular days, and he might work any-
where from 2 to 8 hours at any given time . Schmidt usu-
ally worked 30-40 hours a year for Jones Excavating,
but in the summer of 1984 he estimated he worked about
140 hours without getting paid. Instead, Schmidt bar-
tered the exchange of 140 hours of work for the installa-
tion of a septic drain field at his home. Although the
work he did for Jones Excavating during 1984 did repre-
sent an increase in total hours , because he had worked
various shifts and hours while he had been employed by
Respondent, Schmidt testified that there would have
been no reason why he could not have put in 140 hours
of work with Jones Excavating even if he had still
worked for Respondent at the tune. I believe him. This
was because Schmidt did not do the work for Jones Ex-
cavating over the course of a few weeks or months but
rather worked throughout the entire summer on a part-
time basis until he accumulated 140 hours. Consequently,
although Schmidt did work more than normal for Jones
BIRCH RUN WELDING 1319
Excavating in 1984, it was only because of unusual cir-
cumstances, and the Respondent has not shown that
Schmidt could not have done the work outside of his
regular work hours while in the Respondent's employ.
At the hearing the Respondent made suggestions that
Schmidt had earnings from an employer not reported on
the backpay specification. Specifically, the Respondent
questioned Schmidt and another witness, Alan Zabarcki,
see below, concerning their "employment" with Amway
Corporation, a nationwide distributor of household prod-
ucts. Both credibly denied that either of them was any-
thing more than a member of the Amway program,
which only allowed them to buy products at a reduced
price. Neither Schmidt nor Zabarcki realized any earn-
ings by selling Amway products. Schmidt was also ques-
tioned regarding "commercial fish trucking," which
Schmidt credibly denied. No evidence was offered by
Respondent that Schmidt was employed in the commer-
cial sale of fish.
The Respondent failed to carry its burden of proof
that Schmidt in some way is guilty of concealing earn-
ings from his relationship with Amway or because of his
fishing adventures. No evidence was adduced that
Schmidt earned any money as a result of either endeav-
or. Second, there has been no showing of willful deceit
involving sufficiently egregious conduct to warrant for-
feiture of backpay. See American Navigation Co., 268
NLRB 426 (1983).
Accordingly, I will order that Timothy Schmidt be
paid backpay in the amount of $39,435.91, with interest.
F. Alan Zabarcki
The only issue in dispute about Zabarcki was his duty
to mitigate damages . At the hearing there was some evi-
dence concerning earnings Zabarcki might have had and
not reported with Amway or from fishing. Interim earn-
ings for Zabarcki was not designated as an issue by the
Board in its 30 January 1987 remand Order. But, in any
event, Zabarcki credibly denied receiving any earnings
from Amway and any money he made from fishing was
trivial-$25 after expenses-that his fishing endeavors
certainly could not, in any realistic way, be considered a
commercial venture or self-employment.
With respect to the duty to mitigate damages, the
Sixth Circuit has said that "the cases are unanimous that
the defense of willful loss of earnings is an affirmative
defense, and that the burden is on the employer to prove
the defense." NLRB v. Reynolds Pallet & Box, 399 F.2d
668, 669 (6th Cir. 1968). To meet this burden the em-
ployer must affirmatively demonstrate that the employee
neglected to make reasonable efforts to find interim
work. NLRB v. Mooney Aircraft, 366 F.2cl 809 (5th Cir.
1966). The employer fails to meet the burden by merely
presenting evidence of lack of employee success in ob-
taining interim employment or a demonstration of low
interim earnings . Rainbow Coaches, supra; Westin Hotel,
267 NLRB 244 (1983).
The Respondent did not meet its burden of proof. The
record indicates that Zabarcki did have some interim em-
ployment and further I credit his testimony that he
sought employment and filed applications for employ-
ment on over 100 occasions during his period of unem-
ployment. Zabarcki collected unemployment from the
Michigan Employment Security Commission during all
periods of his eligibility and he complied with the job
search requirements of that agency, which in itself is
prima facie evidence of a reasonable search for interim
employment. Midwest Motel Management Corp., 278
NLRB 421 (1986). Also, as part of Zabarcki collecting
welfare, he participated in a program to improve his job
search skills, which he utilized in seeking employment.
The Respondent submitted no evidence in rebuttal. Ac-
cordingly, I will order that Alan Zabarcki be paid back-
pay in the amount of $40,062.41, with interest.
G. Anthony Sparck
The only issue in the case of Anthony Sparck was did
he comply with his duty to mitigate damages.
The backpay period for Sparck ran from his unlawful
layoff on 27 January 1983 to 2 May 1983 when he en-
tered on active duty in the U.S. Navy. On 4 May 1987,
the day of the hearing on remand, Sparck was on duty
aboard the USS Cunningham, off the coast of Iran and,
obviously, unavailable to testify. His mother, Joyce
Sparck, did testify and credibly recounted how, after her
son, who lived at home with her, was laid off she ac-
companied him to a number of places where he applied
for employment. In short she was a credible eyewitness
that Sparck complied with his duty to mitigate damages
by seeking interim employment.
Respondent's president and owner, Harold Johnson,
credibly testified that shortly after Sparck was laid off,
he came to Johnson and asked for a leave of absence be-
cause he was going to enter the service. Johnson could
not remember which branch of the Armed Forces
Sparck was entering.
The Respondent, in its brief, argues that the Respond-
ent's backpay liability should end as of 15 March 1983-
rather than 2 May 1983-because any prospective em-
ployer would be reluctant to hire a person if that person
would be entering the military in a few months. Whether
that is true the fact remains that Sparck could have con-
tinued working for Respondent between 27 January 1983
and 2 May 1983 but for the Respondent's unlawful act of
laying him off. Accordingly, I conclude that Sparck fully
complied with his duty to mitigate damages by seeking
interim employment and I will order that he be paid
backpay in the amount of $3,444.89, with interest.'
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed2
' At the hearing and in its brief Respondent complaints that the Gener-
al Counsel did not turn over information it normally receives from the
Social Securtiy Administration regarding interim earnings The Respond-
ent cites no authority for this proposition or for its requested relief,
namely, that the decision be delayed until the information is obtained and
turned over to Respondent and the Respondent has had a chance to ana-
lyze it. The General Counsel in this case credibly represented that Re-
spondent was permitted to review all records in the possession of the
General Counsel on interim earnings . In the absence of any perceived
prejudice and because the burden on the issue of interim earnings is on
Respondent, I hereby deny the request to delay issuing a decision
2 If no exceptions are filed as provided by Sec 102.46 of the Board's
Rules and Regulations , the findings, conclusions , and recommended
Continued
1320 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ORDER Horizons for the Retarded, 283 NLRB 1173 (1987), minus
The Respondent, Birch Run Welding & Fabricating,
Inc., Brich Run, Michigan, its officers, agents, successors
and assigns , shall satisfy its obligation to make whole the
following named discriminatees for backpay due them by
paying them net backpay in the amount set forth oppo-
site their name, plus interest thereon accrued to date of
payment' 3 computed in the manner prescribed in New
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 pur-
poses.
8 No more backpay is due any discnminatee if his backpay claim case
was settled with approval of the General Counsel prior to the issuance of
this decision.
any tax withholding required by Federal or state law:
1. John Clark $641.81
2. Patrick Reittenback 2228.15
3. Jose Aquirre 2933.02
4. Chris Van Ness 345.60
5. Timothy Altman 472.29
6. Jeffrey Benham 447.44
7. Donald Yaklin 6355.38
8. Kenneth Parlberg 14,074.33
9. William Humes 5647.48
10. Donald Oberg 17,968.51
11. Timothy Schmidt 39,435.91
12. Alan Zabarcki 40,062.41
13. Anthony Sparck 3444.89