Coast Delivery Service, Inc.

National Labor Relations Board - Board Decisions

Aug 22, 1972

198 N.L.R.B. 1026 (N.L.R.B. 1972)

1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Coast Delivery Service, Inc. and Teamsters and
Warehousemen Local 381, International Brother-
hood of Teamsters , Chauffeurs, Warehousemen
and Helpers of America . Case 31-CA-847
August 22, 1972
SUPPLEMENTAL `DECISION AND
ORDER
BY MEMBERS FANNING, KENNEDY, AND
PENELLO
On May 10, 1972, Trial Examiner Stanley Gilbert
issued the attached Supplemental Decision and
Order in this proceeding. Thereafter, the General
Counsel filed exceptions and a supporting brief, and
the Respondents' filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions and to adopt his
recommended Supplemental Order.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Supplemental Order of the Trial Examiner and
hereby orders that Respondents, Coast Delivery
Service, Inc., and Western Transfer & Storage, Santa
Maria, California, their officers, agents, successors,
and assigns, shall pay to the discriminatees, or to the
Regional Director for Region 31 to be held in escrow
as provided in the Trial Examiner's recommenda-
tions, as appropriate, as net backpay the amounts
determined to be due by the Trial Examiner in the
attached Supplemental Decision.
1 Western Transfer & Storage, Santa Maria Van & Storage, Inc, and
Harrison Van & Storage, Inc, are also named in the backpay specification
as liable
2 The General Counsel has renewed its motion , originally made to and
denied by the Trial Examiner, to amend the backpay specification to
impose backpay liability on James A Harrison as an individual In
agreement with the Trial Examiner, the motion is denied.
TRIAL EXAMINER'S SUPPLEMENTAL
DECISION
STANLEY GILBERT, Trial Examiner: On October 26, 1968,
the National Labor Relations Board issued its Decision
and Order in this proceeding directing Coast Delivery
Service, Inc., its officers , agent , successors , and assigns, to,
inter alia, make whole Salvador Casillas, Ted Searle, Frank
Vasquez , Sr., and Manuel Vasquez , Jr., for their losses
resulting from unfair labor practices committed by said
Respondent , Coast Delivery Service , Inc., in violation of
Section 8(a)(3) and ( 1) of the Act.' On March 25, 1971, the
United States Court of Appeals for the Ninth Circuit
entered its Judgment enforcing the Board's Order includ-
ing the monetary provisions thereof .2 The aforesaid Board
Order and court judgment also provided for the reinstate-
ment of the above-named employees.
It appears that the Respondent , Coast Delivery Service,
Inc., has failed to reinstate and make whole the above-
named discnminatees in accordance with the court
judgment and Board Order . It further appears that a
controversy has arisen over the amount of backpay due
under the aforesaid court judgment and Board Order and
also as to the obligation thereunder , if any , of the three
other enterprises which are named as co-Respondents in
the backpay specification herein (Santa Maria Van &
Storage , Inc., Harrison Van & Storage , Inc., and Western
Transfer & Storage 3).
On October 22, 1971 , the Board 's Acting Regional
Director for Region 31 issued the aforesaid backpay
specification setting forth the amounts of backpay which
General Counsel claims are due to each of the claimants.-
Said backpay specification further alleges , among other
things, that Santa Maria Van & Storage, Inc., Harrison
Van & Storage , Inc., and Western Transfer & Storage are,
together with Respondent Coast Delivery Service, a "single
employer" and/or that Santa Maria Van, Harrison Van,
and Western Transfer are "successors" to Coast Delivery,
and/or they are "alter egos" of Coast Delivery and of one
another. Based on said allegations , the backpay specifica-
tion further alleges that Santa Maria Van, Harrison Van,
and Western Transfer are jointly and severally liable with
Coast Delivery in remedying the unfair labor practices
found by the Board . Thus, in issue in this proceeding are
the appropriate amounts of backpay due to the aforesaid
discriminatees and what obligation and liability , if any,
may appropriately be imposed upon the aforesaid co-
Respondents.
Pursuant to notice , a hearing was held in this supplemen-
tal proceeding in Santa Maria , California , on January 11,
12, 13, 14, 18, and 19, before the duly designated Trial
Examiner . After the close of hearing , briefs were filed.
General Counsel filed his brief on March 9, 1972, and
Rodney Robertson filed his brief on March 8 , 1972, on
behalf of "Coast Delivery Service, Inc., Santa Maria Van &
1 172 NLRB No. 214
2 437 F 2d 264
3 As is set forth more fully below Western Transfer & Storage is in
,bankruptcy. Although Mr. Robertson stated that he got "authority" to
appear for Western, he is "not officially appearing " for said enterprise. It
,appears that the trustee in bankruptcy was not served with the backpay
(specification and notice of hearing Mr Robertson also entered his
appearance on behalf of James A. Harrison and Bridget Harrison as
individuals They, however, are not named in the backpay specification as
individual parties to this proceeding
198 NLRB No. 146
COAST DELIVERY SERVICE, INC. 1027
Storage, Harrison Van & Storage, James A. Harrison, and
Bridget Harrison." 4
Upon the record in this supplemental hearing 5 and from
my observation of the witnesses who testified, I make the
following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
A. The Issue of Derivative Liability
The principal dispute in this proceeding is whether or not
derivative liability may be imposed on Santa Maria Van
and Harrison Van which are apparently the only two
viable business entities of the parties to this proceeding. It
appears that Coast Delivery is hopelessly insolvent (it is no
longer operating , although not dissolved ) and that Western
Transfer is part of the bankrupt estate of Russell Stowell
who entered bankruptcy in late 1967 or early 1968.
It is well established that liability for backpay and
reinstatement of discnminatees may be imposed upon a
party to a supplemental proceeding, even though he had
not been a party to the proceeding in which the unfair
labor practices were found , if he was sufficiently closely
related to the party found to have committed the unfair
labor practices or had removed its assets in attempted
evasion of the backpay liability. N.L.R.B . v. Deena
Artware, Inc., 361 U .S. 398 (1960); N. L.R.B. v . C. C. C.
Associates, 306 F.2d 534 (C.A. 2, 1962); N.L.R.B. v. Mastro
Plastics Corporation, 354 F.2d 170, 179-180 (C.A. 2, 1965);
Perma Vinyl Corporation, 164 NLRB 968 (1967 ), enfd. sub
nom. United States Pipe and Foundry Company v. N. L. R. B.,
398 F.2d 544 (C.A. 5, 1968 ); Associated Transport Company
of Texas, Inc., 194 NLRB No . 12 (1971); Riley Aeronautics
Corp., 178 NLRB 495, 499 ( 1969). (Such liability imposed
upon a party to a supplemental proceeding is frequently
referred to as "derivative liability." ) The Board and the
courts have used the terms "successor," "single employer,"
and "alter ego" to describe the relationship between the
party to the original unfair labor practice proceeding and
the additional entity made party to the supplemental
proceeding to indicate that it was sufficient to warrant the
imposition of derivative liability . These terms are used in
other unfair labor practice proceedings which do not
involve the issue of derivative liability, but such cases are
not wholly reliable as precedents for establishing the
sufficiently close relationship to warrant imposition of
derivative liability. Extreme examples of such cases are
those in which companies wholly unrelated to each other
except as members of a multiemployer bargaining group
are held to be a "single employer " for jurisdictional
purposes . Another group of such cases are those in which a
4 It is not clear whether Mr Robertson did not include Western Transfer
& Storage among the parties on whose behalf he was filing his brief because
he had not been retained by the trustee in bankruptcy representing Western
or because said trustee had not been served a copy of the backpay
specification and notice of hearing . Further, it is not clear why he included
among the parties on whose behalf he filed his brief James A Harrison and
Budget Harrison as individuals , since neither of them is a party to this
proceeding Budget Harrison was at no time named in this proceeding as a
party and was only referred to in the backpay specification as an officer of
Santa Maria Van and Harrison Van James A. Harrison was apparently an
officer of Coast Delivery, but it does not appear that the General Counsel
contends that he was obligated to remedy the unfair labor practices merely
by reason of the fact that he was an officer of Coast Delivery. On the last
"successor" was found to be bound by a predecessor's
contract with a union or bound to continue his recognition
and bargaining obligations with a union which represented
the predecessor's employees. It is noted that in N.L.R.B. v.
Mastro Plastics Corporation, supra, at 180, the court, in
considerating the question of imposing derivative liability,
stated:
Whether a successor corporation is liable is a question
of fact which turns on whether, for example, it is the
alter ego of the original respondent or whether it has
participated in an attempted evasion of obligations
imposed by the Board.
In Deena Artware, supra, the Supreme Court considered
the appropriateness of imposing the backpay liability of
one corporation upon another. It stated , at 402, ". . . we
think the Board is entitled to show that these separate
corporations are not what they appear to be, that in truth
they are but divisions or departments of a `single
enterprise.' " The Court continued, at 403:
... as Mr. Justice Cardozo said in Berkey v. Third
Avenue R. Co., 244 N.Y. 84, 95, 155 N.E. 58, 61,
"Dominion may be so complete, interference so
obtrusive, that by the general rules of agency the parent
will be a principal and the subsidiary an agent. Where
control is less than this, we are remitted to the tests of
honesty and justice." That is not a complete catalogue.
The several companies may be represented as one.
Apart from that is the question whether in fact the
economic enterprise is one, the corporate forms being
largely paper arrangements that do not reflect the
business realities . One company may in fact be
operated as a division of another; one may be only a
shell, inadequately financed; the affairs of the group
may be so intermingled that no distinct corporate lines
are maintained. These are some , though by no means
all, of the relevant considerations, as the authorities
recognize. [Footnotes deleted.]
For the reasons set forth hereinbelow, it is found that
Western Transfer was sufficiently closely related to Coast
Delivery as to warrant the finding that it is derivatively
liable to remedy the unfair labor practices of Coast
Delivery, but that the record will not support a similar
finding with respect to Santa Maria Van and Harrison
Van.
Coast Delivery was incorporated in California on
November 30, 1960, by Donald C. Lundgren, L. J.
McGinley, Phil Jacobson, and Stowell. Sometime in 1965,
Harrison was employed as manager of Coast Delivery and
received a salary for his services. At that time the only
stockholders were Lundgren and Stowell. Shortly thereaf-
day of the hearing, the General Counsel moved , at the close of his case, to
amend the specification to "name" James Harrison "individually liable for
the backpay on the same basis as the four Respondents named" in the
original specification This motion was denied . It appears that General
Counsel contends that the record would support a finding, and he so argues
in his brief, that Harrison , as an individual , in effect owned and operated all
four of the above-named enterprises Although said motion was denied, this
contention is considered hereinbelow, since it is closely interrelated to the
issue of whether or not the four enterprises are a "single employer" or alter
egos of each other
5 The backpay specification was amended during the course of the
hearing with respect to various aspects of the computation of backpay.
General Counsel's unopposed motion to correct the transcript is granted
1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ter, Stowell obtained all of the stock issued by the
corporation. It appears that as early as the beginning of
1966 Harrison not only served as manager of Coast
Delivery but also represented himself as president thereof.
Western Transfer was apparently a sole proprietorship of
Stowell with its principal place of business in San Diego. In
April 1966 it opened a branch in Santa Maria under the
managership of Harrison. Western Transfer ceased operat-
ing in May 1968. As aforesaid, Stowell went into
bankruptcy around the start of 1968.
Santa Maria Van was incorporated in California in
December 1966. It apparently began operating as a
partnership of Harrison and Robert Shepherd in Septem-
ber 1966. Although there is some testimony that Stowell
may have had an interest in Santa Maria Van, Harrison's
denial thereof is credited. Shepherd retained his ownership
interest in Santa Maria Van for about 2 years. It appears
that the officers of Santa Maria Van included Bridget
Harrison, president, and Harrison, secretary-treasurer. It is
found that Harrison managed the operation or comanaged
it with his wife, Bridget.
Harrison Van began its operations as a sole proprietor-
ship of Harrison in May 1967 and it was incorporated in
California on May 22, 1969. The corporation is wholly
owned by Harrison and his wife, Bridget, and since its
inception has been managed by them.
All of the four above-mentioned enterprises were in the
same line of business, that of acting as agents for various
domestic and overseas carriers. The principal business of
all four enterprises was with the military at Vandenberg
Air Force Base on behalf of the respective carriers they
represented. On May 1, 1966, military regulations were
promulgated which limited to three the number of
domestic camers for whom a single van and storage
company could serve as agent but permitted unlimited
representation of overseas carriers until sometime in 1968
when the number of overseas carriers was limited to four.
It is noted as a chronological point of reference that the
unfair labor practices found in the original proceeding
occurred in August, September, and early October 1967
and that the union activity commenced in August 1967. It
is further noted that the three additional Respondents to
this supplemental proceeding started their operations prior
thereto.
Stowell opened a branch of his San Diego operations
(Western Transfer) on or about May 1, 1966, at the time
the military regulation was promulgated limiting an agent
to three domestic carriers. Coast Delivery had six carriers
and three were shifted from Coast Delivery to Western.
Two domestic carriers (Burnham Van Lines and Continen-
tal Van Lines) contacted Harrison in the latter half of 1966
for the purpose of obtaining representation. It appears that
in order to handle this new business it was necessary to
form a new company. Harrison consulted Stowell about
the formation of a new company but was told that he was
not interested. Stowell, however, suggested Shepherd, one
of his employees, as a prospective investor. Thus, Santa
Maria commenced operation as a partnership of Harrison
and Shepherd.
In May 1967, Global Van Lines informed Harrison that
it wanted primary representation by him. In order to
comply, Harrison started Harrison Van as an individual
proprietorship.
Early in 1967, Coast Delivery lost two of its major
accounts to outside companies, but, in May 1967, Harrison
obtained another major carer for Coast Delivery, despite
the fact that he could have placed it with one of the two
enterprises in which he had a financial interest (Santa
Maria Van and Harrison Van). By 1968, both Coast
Delivery and Western Transfer had lost all their domestic
carriers. Harrison credibly testified that because of the
bankrupt status of Stowell as the principal, if not sole,
stockholder in Coast Delivery, it became impossible to
obtain for it representation of any domestic carriers. As
noted hereinabove, Western was part of the bankrupt
estate of Stowell by the beginning of 1968. It appears that
Coast Delivery, until the end of 1971, did do a minimal
amount of business on behalf of overseas camers. The
payroll records of the four companies show that Western
Transfer had no employees on its payroll after the second
quarter of 1968 and Coast Delivery none after the fourth
quarter of 1968.
It is concluded that Western Transfer commenced
business in Santa Maria for the purpose of taking over part
of the business of Coast Delivery and that it and Coast
Delivery were commonly owned and managed. It is further
concluded that neither Santa Maria Van nor Harrison Van
was formed in order to take over any of the business of
Coast Delivery but rather they were formed to assume new
business which could not be undertaken by either Coast
Delivery or Western Transfer. While all four were
commonly managed, it is found that Stowell, who was the
sole owner of Coast Delivery and Western Transfer, had
no ownership interest in either Santa Maria Van or
Harrison Van and that Harrison and his wife, Bridget, who
owned Santa Maria Van and Harrison Van, had no
ownership interest in either Coast Delivery or Western
Transfer. It appears that the Harrisons were carried on the
payroll of Coast Delivery, but not after 1967.
While there was a blurring of the distinction between
Harrison, Harrison Van, and Western Transfer as eviden-
ced by tax returns and between Harrison, Western
Transfer, Coast Delivery, and Santa Maria Van as
evidenced by insurance coverage, the Trial Examiner is of
the opinion that the evidence with regard thereto is not
sufficient to establish that Harrison was operating all four
enterprises as a single enterprise in the context of all the
circumstances.
The record establishes that all four enterprises used the
same office space, that the small office force serviced all
four businesses, that to a large extent they divided the
warehouse space between them, that to a large extent they
shared the supplies and equipment, and that to a
considerable extent they used the same working personnel.
It appears, however, that each enterprise maintained
separate books and separate payrolls and that the expenses
of operating were allocated among the four enterprises. As
to working personnel , separate timecards were maintained
for them. It further appears that at times one or another of
the enterprises paid out money for the others, but it also
appears an accounting was kept on such advances and
reflected in each of the books by way of credits and debits.
COAST DELIVERY SERVICE , INC. 1029
Coast Delivery had little in the way of physical assets and
they were of negligible value. The only physical assets of
some value owned by any of the enterprises consisted of a
few trucks which to some extent were used by other of the
enterprises. Also, to some extent they shared leased
transportation equipment.
As aforesaid, it appears that to a considerable extent the
four enterprises utilized a common pool of working
personnel but maintained separate timecards. For example,
an individual employee might work for two or more
enterprises during the same day, but he was required to
distribute the hours worked on the timecard maintained by
each of the enterprises.
During the year 1967, the names of a total of 40 men
appeared on the payrolls of the four enterprises. Of the 27
who appeared on the payroll of Coast Delivery, 15 of them
also appeared on the payroll of Santa Maria Van or
Harrison Van or both. It is noted that in the original
proceeding it was found that, on August 17, 1967, seven
employees of Coast Delivery constituted an appropriate
bargaining unit; four of the seven are the discriminatees
for whom backpay is sought in this proceeding. Of these
four, Frank Vasquez, Sr., worked for all four enterprises in
the second and third quarters of 1967. Manuel Vasquez,
Jr., worked for Coast Delivery in the second and third
quarters, for Western Transfer in the third quarter, for
Santa Maria Van in the third quarter, and for Harrison
Van in the third quarter. Ted Searle worked for Coast
Delivery in the second and third quarters, Western
Transfer in the second and third quarters, Santa Maria
Van in the third quarter, and Harrison Van in the second
and third quarters. Salvador Casillas worked for Coast
Delivery in the third quarter, Western Transfer in the third
quarter, and Harrison Van in the third quarter, but
apparently never worked for Santa Maria Van. At the time
of the issuance of the complaint and the hearing in the
original proceeding, the General Counsel knew, or should
have known of, many of the facts upon which he relies to
sustain his contention with respect to derivative liability,
particularly the employment of the discnminatees by the
other Respondents herein besides Coast Delivery. Never-
theless, the General Counsel is not estopped from litigating
the relationship between the four Respondents in this
supplemental proceeding, even though said additional
parties to this proceeding might well have been made
Respondents in the original proceeding.
It is concluded that derivative liability should be
imposed on Western Transfer. It and Coast Delivery were,
in effect, commonly owned and Western Transfer started
operations in Santa Maria as a device to circumvent the
military regulations that no single agency could represent
more than three domestic carriers. Consequently, in all of
the circumstances, it appears appropriate to find that
Western Transfer was the alter ego of Coast Delivery
during the period it operated in Santa Maria .6
On the other hand, it is concluded that, in all of the
circumstances, derivative liability cannot appropriately be
imposed on Santa Maria and Harrison Van or either of
them. It is apparent that in 1968, Western Transfer and,
shortly thereafter, Coast Delivery were virtually forced out
of doing business because of the bankruptcy of Stowell,
and that after 1968, Coast Delivery did a negligible amount
of business because of its financial status . There was no
degree of common ownership between Santa Maria Van
and Harrison Van, on the one hand, and either of the two
enterprises Coast Delivery and Western Transfer, on the
other hand. The record will not support a finding that
Harrison operated all four enterprises as a single enterprise
of his own. Profits of Coast Delivery and Western
Transfer, if any, would have accrued to the bankrupt estate
of Stowell. There were good business reasons for the
establishment of Santa Maria Van and Harrison Van and
there is no basis for finding that in forming or operating
the said two enterprises there was any depletion or
diversion of the assets of Coast Delivery or of its clients or
attempt to accomplish such results.7 There is no evidence
that there was fraud, concealment , or purpose to defeat
backpay by the establishment of Santa Maria Van and
Harrison Van or through their operations. While the
interrelationship between the four enterprises does lend
color to the contention of the General Counsel, it is found
that said interrelationship was not sufficiently close as to
make appropriate the imposition of derivative liability on
Santa Maria Van and Harrison Van. The fact that
Harrison served as an officer or manager of all four
enterprises does not furnish a basis for imposing liability
upon him individually for the backpay obligation of Coast
Delivery and its alter ego Western Transfer. Riley Aeronau-
tics Corporation, 178 NLRB 495, 501.8
B. The Backpay Computation
One of the principal problems which must be resolved in
determining the amount of backpay due the discriminatees
is that of establishing their appropriate average weekly
earnings. The backpay specification computes the average
weekly earnings on the basis of what each of the
discriminatees earned during the third quarter of 1967 not
only from Coast Delivery but also from the other
enterprises made Respondents to this supplemental pro-
ceeding. As noted hereinabove, all of the discriminatees
except Casillas worked for all four enterprises during said
quarter. Casillas worked for Coast Delivery, Western
Transfer, and Hamson Van but did not work for Santa
Maria Van in said quarter of 1967 (or apparently at any
other time). It appears that as a result of their discriminato-
ry discharges from the employ of Coast Delivery they were
also deprived of earnings they would have received from
the aforesaid three other enterprises which utilized their
services while they were in the employ of Coast Delivery.9
6 As to the lack of service upon the trustee in the bankruptcy of Stowell,
it is noted that the claim against his bankrupt estate must be filed in the
bankruptcy proceeding, and,-in any event, Harrison, who ostensibly was
managing Western Transfer for the trustee, was served
r There is no basis for finding that the few carriers which transferred
their business to Harrison's enterprises were prompted to do so by anything
but business necessity
8 In his brief General Counsel renewed his motion to amend the backpay
specification to name Harrison individually liable which motion is hereby
again denied.
B While it is possible that in discharging the four discriminatees,
Harrison also discriminatorily discharged them from employment with the
(Continued)
1030 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Therefore, it appears appropriate that, in order to make
said discriminatees whole, their average earnings should be
computed on the basis of what they earned in the third
quarter of 1967 not only from Coast Delivery but also from
the other three enterprises.
Further, there is the problem of when, if at all, the
backpay period should be terminated. It appears that
Coast Delivery had no employees after the end of 1968.
Consequently, it is concluded that the cutoff date for
backpay should be at the end of the fourth quarter of
1968.10 It does not appear to be appropriate to speculate
whether the aforesaid discriminatees would have been
employed by Santa Maria Van and Harrison Van after the
fourth quarter of 1968 had they not been discriminatorily
discharged by Coast Delivery (apparently their primary
employer in view of the findings in the original proceed-
ing).
It is concluded that the average weekly earnings for each
discriminatee is correctly set forth in the backpay specifica-
tion as follows:
Earnings in
3d Calendar
Qtr. '67
No. Weeks
Worked in
3d Calendar
Qtr. '67
Weekly
Average
Frank Vasquez , Sr. $2,200.00 12 $183.33
Manuel Vasquez , Jr. $1,275.60 12 $106.30
Salvador Casillas $1,423.97 11 $129.45
Ted Searle $1,112.26 12 $92.70
Before computing the backpay due the discriminatees, it
is noted that two matters were raised by Respondents with
respect to the appropriateness of the computation of the
backpay due each of the discnminatees. There is evidence
that for varying periods at least three of the discriminatees
were paid "strike benefits" or "out of work benefits" at the
rate of $25 per week . Respondents contend that such
payments should be treated as interim earnings . It does not
appear that said benefits were paid to the discriminatees
for services performed for the Union. There is no showing
that there is any relationship between the amounts paid
them and the number of hours which discriminatees might
have spent picketing . The uniform amount of $25 per week
indicates that it was not related to hours of "work"
performed . Consequently, it is concluded that said sums
should not be considered as interim earnings . Rice Lake
Creamery Company, 151 NLRB 1113, 1131; Lozano
Enterprises, 152 NLRB 258, 260; Florence Printing Compa-
ny, 158 NLRB 775, 777.
In their brief , Respondents state that the backpay
specification indicates that , with respect to all four
discriminatees , union dues were charged as expenses and
that the three discriminatees who testified at the hearing
testified that union dues were included as part of their
expenses . An examination of the backpay specification
does not reveal a basis for concluding that union dues were
included among their expenses and the record fails to
other enterprises in this proceeding , such a finding should have been made
in the unfair labor practice proceeding (The 10(b) period expired long
before the backpay specification was issued .). It is not appropriate in this
supplemental proceeding to make a finding that the other three enterprises
also committed a violation of Sec. 8(a)(3) and ( 1) of the Act at the time the
discnmmatees were discharged in 1967 Any liability which can be imposed
reveal that the discriminatees testified as Respondents
!claim.
Following is the computation of the backpay due to each
of the discriminatees during the period from the date of his
discharge to the aforemention cutoff date, the end of the
fourth quarter of 1968:
Manuel Vasquez, Jr.: As stated above , it is found that his
laverage weekly earnings were $106 .30. Based upon said
finding, the above conclusions, and the record, the
backpay due to him for the period between his discharge
land the date of cutoff (as of the end of the fourth quarter
,of 1968) is found to be as follows:
Calendar Gross
Qtr. I Backpay
Interim Net Net
Exps. Earnings I Earnings Backpay
4th/67 1$1,275.601$50 $ 0 -$ 50.00 $1,325.60
1st/68 1,381.90 75 647.65 572.65 809.25
Remaining qtrs. of 1968 Net Earnings exceeded
Gross Backpay 0
Total Backpay $2,134.85
Salvador Casillas: As stated above , it is found that his
average weekly earnings were $129 .45. Based upon said
finding, the above conclusions, and the record, the
backpay due to him for the period between his discharge
and the date of cutoff (as of the end of the fourth quarter
of 1968) is found to be as follows:
Calendar Gross
Qtr. Backpay
Interim Net Net
Exps. Earnings Earnings Backpay
3d/67 $ 258.90 $20 $ 88.75 $ 68.75 $ 190.15
4th/67 ( 1,682.851 50 70.00 20.00 1662.85
let/68 1,682.85 50 1,389.87 1,339.87 342.98
2d/68 Net Earnings exceeded Gross Backpay 0
3d/68 Net Earnings exceeded Gross Backpay 0
4th/68 1 1,682.85(100 1,600.4111,500.411 182.44
'Total Backpay $2,378.42
Frank Vasquez, Sr.: As stated above , it is found that his
average weekly earnings were $183.33. Based upon said
finding, the above conclusions , and the record, the
backpay due to him for the period between his discharge
and the date of cutoff (as of the end of the fourth quarter
of 1968) is found to be as follows:
Calendar Gross Interim Net Net
Qtr. Backpay Exps. Earnings Earnings Backpay
3d/67 $ 183.33 $10 0 $ 10.00 i s 193.33
4th/67 2,383.29 50 0 50.00 2,433.29
let/68 2,383.29 50 769.1 719.13 1,664.16
2d/68 2,383.29 50 1,509.3 1,459.34 923.95
3d/68 2,383.29 50 2,361.6 2,311.52 71.67
4th/68 2,383.29 50 2,343.7 2,293.72 89.57
Total Backoav $5.375.97
Ted Searle: As stated above, it is found that his average
weekly earnings were $92.70. General Counsel did not
upon them in this proceeding must be based on their relationship to Coast
Delivery , not on their conduct with respect to the discharges.
10 At that time it appears that Coast Delivery virtually ceased operating
for nondiscriminatory reasons and the discnminatees would, therefore, have
lost their employment with Coast Delivery at that time for lawful reasons
Riley Aeronautics Corporation, supra at 500.
COAST DELIVERY SERVICE, INC. 1031
produce Searle at the hearing due apparently to his
inability to find Searle. Thus, General Counsel could not
examine him as to his interim expenses and Respondents
did not have the opportunity to examine him with respect
to his interim earnings. However, Respondents did have
records from an interim employer which were received in
evidence.[[ In view of the fact that the amount of Searle's
interim earnings and expenses cannot be determined at this
time, the net backpay due him is labeled as "tentative" in
the computation hereinbelow. Based upon the above
finding of his average weekly earnings, the above conclu-
sions, and the record, the tentative backpay due to him for
the period between his discharge and the date of cutoff (as
of the end of the fourth quarter of 1968) is found to be as
follows:
Gross
Tentative
Interim Net
Qtr. Backpay Earnings Backpay
3d/67 $ 92.701 $ - - $ 92.70
4th/,67 1,205.10( - - 1,205.10
lst/68 1,205.10 1,205.10
2d/68 1,205.10 111.00 1,094.10
3d/68 1,205.10 1,765.50
4th/68 1,205.10 1,229.01
Tentative Total
Backpay $3,597.00
It will be recommended that Respondents, Coast
Delivery Service, Inc. and Western Transfer & Storage, be
ordered jointly and severally to pay to the Regional
Director for Region 31 the above amount of tentative
backpay ($3,597) to be held in escrow for a period not
exceeding 1 year from the date of this Supplemental
Decision and Order.12 It is further recommended that the
Regional Director be instructed to make suitable arrange-
ments to afford the aforesaid Respondents together with
the General Counsel's representative an opportunity to
examine Searle and any other witnesses with relevant
11 Although General Counsel conceded the records to be authentic, he
objected to their receipt in evidence because Searle was not present to testify
with respect to his interim expenses for the quarters involved The Trial
Examiner ruled that this was not a sufficient reason to exclude the aforesaid
evidence of intenm earnings Steve Alm Ford, Inc, 190 NLRB No 131
12 Steve Alot Ford, Inc, supra
,testimony and to introduce any relevant and material
evidence bearing on the amount of backpay due to Searle.
It is further recommended that the Regional Director make
a final determination whether any interim earnings or
,other amounts in excess of those shown here or any other
factors are revealed which may alter the amount of
backpay due under existing Board precedent. In the event
the Regional Director determines that deductions are
warranted, it is recommended that the amount so deducted
be returned to the Respondent or Respondents who have
deposited money in escrow. In addition, it is recommended
that the Regional Director, when this matter has been
finally resolved, promptly and no later than one year from
the date of this Supplemental Decision and Order report to
the Board the status of this matter.
In view of the above findings and conclusions that
derivative liability cannot appropriately be imposed upon
Santa Maria Van & Storage, Inc. and Harrison Van &
Storage, Inc., it will be recommended that the backpay
specification be dismissed as to these said two parties.
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended: 13
SUPPLEMENTAL ORDER
Respondents, Coast Delivery Service, Inc. and Western
Transfer & Storage, their officers , agents , successors, and
assigns, shall:
(1) Jointly and severally pay to the three discriminatees
named hereinbelow as net backpay the amounts set forth
below:
Manuel Vasquez, Jr. $2,134.85
Salvador Casillas $2,378.42
Frank Vasquez, Sr. $5,375.97
(2) Jointly and severally pay to the Regional Director for
,Region 31 $3,597, the tentative amount of backpay found
to be due Ted Searle, to be held by him in escrow pursuant
to the recommendations set forth hereinabove.
(3) In addition to the above amounts, pay interest at the
rate of 6 percent per annum computed on the basis of each
quarterly amount of net backpay due less any tax
withholding required by law.
The backpay specification should be, and is hereby,
dismissed against Santa Maria Van & Storage, Inc. and
Harrison Van & Storage, Inc.
13 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 findings,
conclusions , and recommended Supplemental 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 Supplemental Order, and
all objections thereto shall be deemed waived for all purposes.