Dorn's Transportation Co., Inc.

National Labor Relations Board - Board Decisions

Mar 2, 1970

181 N.L.R.B. 403 (N.L.R.B. 1970)

DORN'S TRANSPORTATION CO.
Dorn 's Transportation Company, Inc. and
International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of
America , Local 294. Case 3-CA-3098
March 2, 1970
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS
On November 27, 1967, the National Labor
Relations Board issued a Decision and Order in the
above-entitled proceeding ,' finding , inter alia, that
the Respondent , Dorn ' s Transportation Company,
Inc., had discriminatorily discharged Richard A.
Rodgers in violation of Section 8(a)(3) and (1) of
the National Labor Relations Act, as amended, and
ordering that the discriminatee be offered
reinstatement and made whole for any loss of pay
suffered by reason of the discrimination against him.
On January 9, 1969 , the Board's Order was enforced
in relevant part by the United States Court of
Appeals for the Second Circuit 2
A Backpay Specification and Notice of Hearing
and an Amended Backpay Specification and Notice
of Hearing were issued by the Regional Director of
Region 3 , and pursuant thereto a hearing was held
on September 4, 1969, before Trial Examiner Harry
H. Kuskin for determination of the amounts of
backpay due to Rodgers . On December 8, 1969, the
Trial Examiner issued the attached Supplemental
Decision in which he found that Rodgers was
entitled to the amounts of backpay therein set forth.
Thereafter, the Respondent filed exceptions to the
Supplemental Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
Act, the Board has delegated its powers in
connection with this case to a three-member panel.
The Board has reviewed the rulings made by the
Trial Examiner at the hearing and finds that no
prejudicial error was committed . The rulings are
hereby affirmed.3 The Board has considered the
entire record in this case , including the Trial
Examiner 's Supplemental Decision , the exceptions
and the brief, and hereby adopts the findings,4
conclusions , and recommendations of the Trial
Examiner.
1168 NLRB No 68
'N L R B v Dorn 's Transportation Company. Inc, 405 F 2d 706
'Respondent 's request for oral argument before the Board is hereby
denied as the record and Respondent 's brief adequately present the issues
and positions of the parties
'Respondent contends that the Union had an obligation to report in its
annual report to the Secretary of Labor, all loans to members in excess of
$250 It further contends that the Union failed to report the $3,450 given
Rodgers as a loan and this failure established that $3,450 was not a loan.
We do not agree It is for the Secretary of Labor, not the Board, to
determine the Union 's reporting obligations and whether the Union has
met those obligations However, even assuming that the Union had an
obligation to report a contingent loan, its failure to do so can only be
considered as some evidence of the nature of the transaction, that evidence
SUPPLEMENTAL ORDER
403
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Dorn's Transportation Company, Inc., Albany, New
York, its officers, agents, successors, and assigns,
shall pay Richard A. Rodgers as net backpay the
,amounts set forth as the amounts determined to be
due by the Trial Examiner in his attached
Supplemental Decision.
to be weighed with the other evidence in the record It is obvious that the
Union could have granted a loan of this type (Respondent does not
contend that a loan of this type to a member who is not an employee of
the Union would be in itself illegal ) and then neglect to report it Assuming
the facts as detailed by Respondent are correct and assuming that the
Union had an obligation to report this transaction , we would still conclude,
based on the other evidence in the record as detailed by the Trial
Examiner , that the money was not given Rodgers for services to the
Union , but as a contingent loan to be repaid only if Rodgers collected
backpay in this proceeding Therefore, we do not deduct the $3,450 from
the backpay found due by the Trial Examiner
TRIAL EXAMINER'S DECISION IN BACKPAY
PROCEEDING
HARRY H. KusKIN, Trial Examiner: This proceeding
was instituted by the Regional Director for Region 3 of
the National Labor Relations Board, pursuant to
authority conferred upon him by the Board, for the
purpose of determining the controversy which had arisen
over the amount of backpay, if any, due to Richard A.
Rodgers, who, according to the Board's Decision and
Order herein,' as enforced in relevant part by the United
States Court of Appeals for the Second Circuit,' had been
discriminatorily discharged by Dorn's Transportation
Company, Inc., herein called Respondent, in violation of
Section 8(a)(3) and (1) of the Act. A Backpay
Specification and Notice of Hearing and An Amended
Backpay Specification and Notice of Hearing issued
herein on July 3 and July 22, 1969, respectively A hearing
was held before me in Albany, New York, on September
4, 1969
Upon consideration of the amended backpay
specification which superceded the original backpay
specification, Respondent's answer, as thereafter amended
at the outset of the instant hearing with consent of
counsel, the evidence adduced at the hearing, and the
briefs submitted by counsel, and upon my observation of
the demeanor of the witnesses, I make the following
findings of fact and reach the following conclusions of
law:
1 Respondent's contentions with respect to the
backpay claim
Respondent opposes any award of backpay to Rodgers
on the grounds that (1) Rodgers did not use due diligence
in securing other employment after his discharge on
October 7, 1966, until he returned to work for Respondent
on March 24, 1969; (2) Rodgers' records of interim
earnings are unreliable and totally lacking in credibility
and therefore do not support his backpay claim; and (3)
an appropriate credit in the amount of $3,450 has not
'168 NLRB No 68.
'N L R B v. Dorn 's Transportation Company. Inc. 405 F 2d 706
(CA 2)
181 NLRB No. 60
404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been given to Respondent - the said sum representing
funds received by Rodgers from International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, Local 294, the charging union in
the initial unfair labor practice proceeding herein, in the
form of 23 checks of $150 each from the week of
November 18, 1966, to the week of April 21, 1967. 1 shall
now consider the first of these contentions; the remaining
two contentions shall thereafter be considered together.
a. The extent of Rodgers' search for work
Prior to his discharge by Respondent on October 7,
1966, Rodgers had been working with freight rates as an
overcharge agent . He supplemented his income by
operating a camera shop during nonworking hours under
the name of Latham Camera Repair for a maximum of
10 hours a week After his discharge, during such periods
as he was not working for other employers, Rodgers
operated his camera shop on a full-time basis, spending 40
or more hours a week in that endeavor. With respect to
his work situation from October 7, 1966, to the end of
that year, Rodgers testified, without contradiction, that
soon after his discharge he worked for General
Expressways, a trucking concern, on an emergency or
part-time basis;' that he was occupied for the balance of
that year only in the operation of his camera repair
business ; and that he also checked the help-wanted
advertisements in the newspapers and applied in person
and by telephone to various companies, without success.
The parties stipulated, in this connection, that, if Rodgers
were called upon to testify as to where he applied during
this particular period, he would testify that he made
abortive applications during either November or
December 1966, to four named trucking companies, and
also to Encyclopedia Britannica , General Electric Service
Center and Sunbeam Appliances.'
As to the year 1967, Rodgers testified that he "was in a
sense employed because [he] had his camera business,"
but that contemporaneously therewith he followed the
want-ads in the newspapers. Rodgers testified further that,
during the first quarter of 1967, he obtained some work at
General Expressways through personal contact; that
during June of that quarter he obtained some employment
as a salesman with Roberts Motor Express through
answering a newspaper advertisement; that during the
third quarter of that year he obtained employment as a
salesman with LaSalle Extension University by personal
contact (which employment continued into the fourth
quarter of 1967); and further that at one point in the
fourth quarter, during his employment with LaSalle
Extension University, he also worked for the Chamber of
Commerce of the United States. In addition, Rodgers
testified that he applied to the Moore Employment
Agency on December 19, 1967, and shortly thereafter to
the New York State Employment Agency; that he
received several referrals to nonmotor carrier jobs from
the Moore Employment Agency which proved
unproductive; and that he also applied for work to
Nationwide Insurance Company and to Cornwall Studio
during December 1967, without success
'According to Rodgers he applied to General Expressways thereafter in
December 1966 , for full employment but there were no openings
'While Respondent 's counsel indicated that he was not admitting the
truth of the foregoing , he added that he did not intend to produce evidence
in refutation . In these circumstances, the stipulation is, I find, tantamount
to undenied testimony of Rodgers, and I credit it
As to the year 1968, Rodgers testified that he obtained
a job with Almart Stores during the first quarter of that
year by answering a newspaper advertisement. According
to the uncontroverted part of the amended backpay
specifications herein, this employment continued through
the second quarter and part of the third quarter, and was
followed by employment with Roberts Motor Express'
beginning in September up to and including December,
and this employment was, in turn, followed by
employment with G.E.X.,' during December of the same
fourth quarter.
Finally, as to the first quarter of 1969, up to the time
of Rodgers reinstatement on March 24, 1969, the
uncontroverted part of the amended backpay
specifications herein also shows that Rodgers continued to
work for G.E.X. and then for General Expressways.
According to Rodgers, the change from G E.X. to
General Expressways was of his own doing, as he was
offered a job by the latter which was more in line with his
customary work and which paid more money.
It is thus apparent that, during the entire backpay
period, Rodgers was always working either in his own
camera business or for some one else, and that, during the
periods that he was self employed, he kept seeking work
in order to resume his status as an employee. It is also
apparent that, although his efforts were concentrated
initially on getting employment as a claims agent or rate
clerk, he did not meet with much success; and that
thereafter most of the employment which he did get was
in the field of selling, rather than in rate work. Rodgers
described his early experience in looking for rate work as
follows- "I know that I started looking for work at these
trucking companies immediately and I found that after
checking around with a number of them they were
reluctant to hire me and it was obvious to me that I
couldn't get a job with a trucking company."
In support of its position that Rodgers did not exercise
due diligence in seeking employment and that he also
passed up available jobs, Respondent points, in its brief,
to Respondent's Exhibit 4, in evidence, which is a list in
outline form of 72 help-wanted advertisements placed in
the Times Union, a local newspaper in Albany, during the
period from October 1966 to March 1969, by trucking
companies, motor carriers and industrial concerns,
seeking, variously, rate clerks, rate analysts, rate auditors,
salesmen and supervisors.' In addition, it argues that
"Respondent should not be held responsible for Rodgers'
excursion into myriad fields in no way related to his
training, background and experience"; and it characterizes
as not to be "condoned," Rodgers' attempt to conduct the
camera repair business, which was an area in which
Rodgers did have skills, "in view of the fact that,
according to his own records, the profit earned during the
fourth quarter of 1966 amounted to less than $100 " I find
no merit in the foregoing. Respondent's Exhibit 4, without
more, falls short of establishing for which of these jobs
Rodgers was qualified by background and experience,'
what likelihood there was that Rodgers would be offered a
'The parties stipulated that he worked in the rate and claims department
of this company during this period
'It would appear that he was employed by G E X as a salesman
'The parties stipulated to the receipt of this exhibit in evidence without
any testimony as to the authenticity of the information compiled therein,
with the proviso that the listing showing Daniels Motor Express as
advertising for help on one occasion was to be omitted from the
stipulation I admitted the stipulation into evidence, as so qualified
'As already pointed out some of the listed jobs were for auditors,
salesmen, supervisors , and rate analysts
DORN'S TRANSPORTATION CO. 405
job for which he was qualified had he applied, and
whether the terms, conditions and location of the job were
such that Rodgers would have failed in his duty to
mitigate damages had he refused same. In the absence of
such evidence, and in view of the fact that Rodgers did, in
fact, obtain employment from Roberts Motor Express as
a rate clerk at or about the time in September 1968 that
Roberts Motor Express was advertising in the Times
Union for such an employee, there is no warrant for
finding, on the basis of the above mentioned
advertisements in the Times Union, that Rodgers incurred
a willful loss of earnings. Nor can I attach any
significance adverse to Rodgers because a goodly portion
of the employment of Rodgers during the backpay period
was not in rate work It is idle to contend, in the absence
of any affirmative showing that Rodgers willfully shunned
work in this field,' that Rodgers is to be disadvantaged for
his enterprise in finding other employment during his
backpay period, albeit it was in no way related to his
training and experience in rate work. And with specific
reference to Rodgers' camera work, it is clear that
Rodgers could properly have chosen to pursue, on a
full-time basis, his camera repair business, which he had
been conducting on a part-time basis before his discharge
in order to supplement his earnings with Respondent,
without being considered as having withdrawn from the
labor market.'° And the fact that, although his earnings
from the camera repair business during the last quarter of
1966 were poor, Rodgers continued to pursue that
business during 1967 constitutes no basis for condemning
Rodgers. One can hardly expect the long range prospects
of operating profitably on a full-time basis a business
which had formerly been operated 10 or less hours a week
to become manifest during the first 2 months of such
full-time operation. Therefore, Rodgers' operation of the
camera repair business in 1967 constituted a reasonable
effort to stay within, rather than withdraw from, the labor
market. Furthermore, Rodgers did seek other employment
during 1967 and did find work at General Expressways,
Roberts Express, LaSalle Extension University and the
Chamber of Commerce of the United States, the latter
employment being contemporaneous with his work for
LaSalle Extension University; and Rodgers did earn
during this year $1,801 from such other employment.
Indeed, I view Rodgers' efforts in seeking employment
during this period, when his camera repair business was
not too profitable, as an indication of Rodgers' diligence
in seeking interim work, and as inconsistent with an intent
to willfully forego greater earnings " Accordingly, I
conclude, and find, that Respondent has not sustained its
burden of showing, as it contends, that Rodgers did not
exercise due diligence in seeking work during the backpay
period and incurred willful loss of earnings.
b. Rodgers' interim earnings
As heretofore indicated, Respondent contends that
Rodgers' records of interim earnings are unreliable and
totally lacking in credibility; it points to (1) claimed
inconsistencies between Rodgers' earnings from camera
repair work as they appear in representations made by
him in two applications for employment dated January 4,
1968, and December 31, 1968, respectively, on the one
hand, and as they appear in the amended backpay
specifications prepared in accordance with records and
data furnished by him, on the other hand; (2) Rodgers'
admission of apparent error in including as an expense of
operating his own camera repair business of a $220 legal
fee; (3) Rodgers' admitted inclusion as expenses of
operating his own camera repair business of all amounts
incurred by him in the operation of a car and a bank
account, irrespective of the fact that the car and the bank
account served both the camera repair business and
himself in his personal affairs, and (4) the inclusion of the
"unbusinesslike" expense of lodge dues for Rodgers as a
charge against the camera repair business. I shall consider
these contentions seriatim.
As to (1), the record shows that Rodgers' application
for employment to Almart Stores on January 4, 1968,
states under the heading of work experience that he was
employed, from October 1966 until the time of the
application, by Latham Camera Repair at a weekly salary
of $125, and that prior thereto and since October 1961 he
was employed by Lewis Studio as a photographer at $100
plus per week; in contrast to this application, Rodgers'
application for employment to G.E.X. on December 31,
1968, states under a comparable heading that he was
employed, from January 1963 to September 1968, by
Lewis Studio as a photographer at a weekly salary of
$125. Thus, both applications make identical
representations as to earnings of $125 per week from
camera work, albeit from different employers, for the
period with which we are here concerned, namely from
October 1966 until December 31, 1967,' 2 and these
representations stand in sharp contrast with the statement
in the amended backpay specifications, which were based
on Rodgers' own records and which show earnings of $99
during the fourth quarter of 1966, and of $263 during the
first and also during the second quarter of 1967." When
confronted with both applications, Rodgers admitted that
he had not been employed by Lewis Studio as a
photographer as stated therein, that Lewis Studio has
been, and is, no more than a customer of Latham Camera
Repair, for which the latter has done and now does
camera repair work, and further that he disguised the
name of his last employer on the application to Almart
Stores because of his fear that, if he disclosed that he had
been employed by Respondent, he would not be able to
get the necessary recommendation from Respondent in
order to be hired by Almart Stores. I am persuaded that,
when confronted on the witness stand with evidence of his
dissembling and misrepresentation as to his prior
employment with Lewis Studio, Rodgers gave a frank
explanation of what motivated his conduct. While the
motivation does not render Rodgers' improper conduct
any the less reprehensible, I am nevertheless convinced
that the stated earnings from Lewis Studio set forth in the
'It is well established that , in a backpay proceeding , the burden is on
Respondent to show that a claimant willfully incurred loss of earnings
during his backpay period See Brown & Root , Inc , 132 NLRB 486, enfd
311 F.2d 477 (C A. 8).
"See Cashman Auto Company, 109 NLRB 720, enfd 223 F 2d 832
(C A. 1), Mastro Plastics Corp, 136 NLRB 1342, enfd . 354 F 2d 170
(CA 2)
"There is not a scintilla of evidence showing that Rodgers ever refused
to accept work offered to him
"The records show that Respondent is not claiming any setoff by virtue
of Rodgers' self employment during all of 1968 and during the part of the
first quarter of 1969 which antedated March 24, at which time Rodgers
was reinstated by Respondent
"Although the amended backpay specifications do not show any
earnings from self employment during the third and fourth quarters of
1967, the parties agreed that any earnings during these quarters could, on
the basis of a stipulated formula set forth hereinafter, be applied in
mitigation of backpay due.
406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
application filed with G E.X. are not entitled to probative
weight on the issue of earnings during the backpay period
And I reach the same conclusion as to the stated earnings
from Latham Camera Repair during the backpay period
set forth in the application filed with Almart Stores. The
claimed earnings of $125 per week set forth in each
application were, I find, part of the overall dissembling
technique and puffing utilized by Rodgers in order to gain
employment at a salary which he could accept
The remaining contentions of Respondnet, i.e. (2), (3),
and (4), set forth above, are leveled at the accuracy of the
records kept by Rodgers in connection with his self
employment, which records formed the basis of the
computations set forth in the amended backpay
specifications herein As to (2), Rodgers was questioned
by counsel for Respondent about an entry in his records
for the month of December 1966 of an expense of $220
for legal fees There was made available to Respondent's
counsel, in this connection, (I) an itemized bill in that
amount from a law firm to Latham Camera Repair for
legal services rendered from October 8, 1966, to October
26, 1966, and (2) the check stubs of Latham Camera
Repair from February 1966 to June 1967. Rodgers
testified, at first, that he had paid the bill. However, he
was unable to find any record of a check to cover that
transaction among the check stubs, when asked to do so
by Respondent's counsel, adding that if a check had been
issued it would have been issued in the name of Latham
Camera Repair When questioned thereafter by counsel
for the Regional Director as to whether he had paid the
above bill, Rodgers testified, "I honestly don't know."
And finally when confronted by counsel for Respondent
with the fact that his 1966 income tax return, which
included earnings from Latham Camera Repair, showed
as the sole legal expense for 1966 the amount of $21 on
September 17, he was unable to reconcile this entry with
the $220 figure in the December 1966 records of Latham
Camera Repair. Rodgers testified further that the $220
figure "appears to be" an error, and "it appears the tax
form is correct " It is evident from all the foregoing, and
I find, that Rodgers falsified his records in this regard,
and that his earnings for the last quarter of 1966 should
be increased by these $220 i'
Rodgers also made available to Respondent the
following records kept by him: (1) a set of records
consisting of 10 pages of entries on looseleaf notebook
paper, which set was introduced into evidence as
Respondent's Exhibit 6 and was identified by Rodgers as
containing itemized information as to the expenses
incurred in the operation of the business of Latham
Camera Repair during the last quarter of 1966; and (2)
General Bookkeeping and Income Tax Records which
were not introduced into evidence but which Rodgers
identified as containing itemized information of this type
as to subsequent periods. However, as will appear
hereinafter, in many instances these records lump the
expenses of Latham Camera Repair with Rodgers'
personal expenses, and, as will further appear, such figures
were used in ascertaining the net earnings of Latham
Camera Repair set forth in the amended backpay
specifications as if they were applicable only to Latham
Camera Repair. Although I am unable to find, on the
basis of the entire record, that these records were prepared
by Rodgers with the express intention of increasing
"I need not, and do not, decide whether the $21 listed in Rodgers' 1966
income tax return is correctly stated As the entry bears date of September
17 it would not be applicable in mitigation of backpay for the fourth
quarter of 1966, when the backpay period herein commences
Respondent's backpay liability, I am satisfied, and find,
that Rodgers was responsible for the way in which these
records were interpreted and reflected in the amended
backpay specifications. Buttressing this finding are my
findings above as to Rodgers' claim for legal fees never
expended by him and as to his dissembling and
misrepresentation in his two applications for employment.
Accordingly, I shall hereinafter, in determining what
probative force to give to those records which Respondent
has specifically questioned, resolve all doubts against
Rodgers, the claimant herein
It is apparent from Respondent's Exhibit 6, in evidence,
that a deduction of $22 12 to cover bank service charges
was made from his gross earnings during the last quarter
of 1966 in arriving at his net earnings of $99 for that
period Yet, Rodgers testified that one bank account
served both Latham Camera Repair and him personally.
As Rodgers acknowledged that, in respect to the expenses
of operating one automobile which served in such a dual
capacity his 1966 income tax return allocated 40 percent
of such expenses to Latham Camera Repair, it follows by
parity of reasoning, and I find, that the same allocation is
applicable to such bank service charges Accordingly, only
$8.85 of the $22 12 is properly allocable to Latham
Camera Repair, and the remaining $13.27 was improperly
deducted.
Rodgers admitted that the following expenses listed in
Respondent's Exhibit 6 for the fourth quarter of 1966
were also deducted in arriving at the net earnings of
Latham Camera Repair: (a) registration fees of $24.75,
repair charges of $60.15 and insurance costs of $63 90 for
the above mentioned automobile, (b) $76 to one Glenn
Hardy, a co-worker during Rodgers' employment with
Respondent, for cleaning projectors, (c) $80 as tuition
payments for a correspondence course he was taking at
the National Camera Repair School; and (d) $41.30 for
his membership dues to a Masonic Lodge. With respect to
(a) above, for the reasons already given, I shall also
recommend an allocation to Latham Camera Repair of 40
percent of these automobile expenses. Accordingly, only
$59.52 of the $148 80 involved is properly allocable to
Latham Camera Repair and the remaining $89.28 was
improperly deducted As to (b) and (c), as these
expenditures appear to be totally related to Latham
Camera Repair, and as Respondent adduced no testimony
reflecting on the correctness of the amounts involved, I
conclude, and find, that these expenditures are proper
deductions from Rodgers' gross earnings during this
period As to (d), however, as it appears from Rodgers'
testimony that he has been a member of the Masonic
Lodge since before 1966, I find that this expense was
incurred without relation to the operation by Rodgers of
Latham Camera Repair It follows therefore, and I find,
that the amount of $41.30 paid as dues to the lodge
during this quarter was improperly deducted from gross
earnings In sum, therefore, Rodgers improperly deducted
from gross earnings during this quarter, in addition to the
$220 for legal fees, $13.27, $89.28 and $41.30, amounting
to a total of $363 85. The correct interim earnings figure
for this quarter in the amended backpay specifications
should thus be $488 85 instead of $125.
Rodgers, in effect, admitted further that the following
expenses pertaining to Latham Camera Repair are shown
in his General Business Bookkeeping and Income Tax
Records and that they were deducted in arriving at net
earnings of Latham Camera Repair for the first quarter of
1967: $103.07 for automobile brakes, $140 for automobile
tires and shock absorbers, and $52 02 for gasoline. In this
DORN'S TRANSPORTATION CO. 407
connection, I note that Rodgers acknowledged, after being
shown his 1967 federal income tax return, that 50 percent
of such automobile expenses was allocated to Latham
Camera Repair In these circumstances, it follows by
parity of reasoning, and I find, that only 50 percent of the
above expenditures, namely $147.55 out of a total of
$295.09 is properly chargeable to Latham Camera Repair,
and that the remaining $147.54 was improperly deducted
The correct interim earning, for this quarter in the
amended backpay specifications should thus be $614.54
instead of $467
With respect to the second quarter of 1967, Rodgers
identified the following expenses pertaining to Latham
Camera Repair in his General Business Bookkeeping and
Income Tax Records- $22.58, $36.75 and $15.37 for
gasoline for the automobile, and $150 as automobile
insurance. Here, too, as in the first quarter of 1967 and
for the same reason, I find that only 50 percent of the
above automobile expenses, namely, $112.35 out of a total
of $224.70 is properly chargeable to Latham Camera
Repair, and that the remaining $112 35 was improperly
deducted. The correct interim earnings for this quarter in
the amended backpay specifications should thus be
$695 35 instead of $583
Also bearing upon the interim earnings of Rodgers
during the last quarter of 1966 and the first two quarters
of 1967 is the contention of Respondent that Rodgers
received money from International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, Local 294, herein called Local 294, or the
Union, for which Respondent was not given appropriate
credit on the amended backpay specifications. The record
establishes, in this connection, that one, Howard A.
Bennett, secretary-treasurer of Local 294, appeared, with
counsel, at the hearing in response to a subpoena served
upon the Union by Respondent However, Respondent's
counsel did not call Bennett as a witness. Instead, he
obtained from - counsel for Bennett the following
stipulation as to what Bennett would have testified, if
called, and introduced it into evidence, with the agreement
of counsel for the Regional Director, in lieu of testimony
by Bennett: "That moneys were advanced [to Rodgers]
because Rodgers claimed that because of his
unemployment he needed funds to support his family. It
was agreed by the Union that he would be advanced $150
per week for a period of time then not determined, which
sum was to be repaid by him from a recovery of his unfair
labor practice case then pending It was agreed, however,
that if there was no recovery there would be no obligation
on Rodgers' part to pay. The Union books show entries
that the moneys paid to Rodgers was [sic] listed "Union
Expense-Organization " In addition, counsel herein
stipulated that they were shown 23 checks by Bennett,
which were issued to Rodgers, and that these checks
aggregated $3,450, and covered the period beginning the
week of November 18, 1966, and ending the week of April
21, 1967. Rodgers testified, in corroboration of the above,
that the above moneys represented a loan from Local 294
to him and that he understood that, if he recovered
$3,450, he would have to turn over that amount to Local
294.
It is the position of Respondent that the sum of $3,450
was received by Rodgers as compensation for his efforts
to organize the clerical unit at Respondent's Albany, New
York, place of business where Rodgers had been
employed prior to his discharge, which discharge gave rise
to the instant backpay proceeding. Respondent points, in
this connection, to (1) the entries on the Union's books of
accounts which refer to these $ 150 checks as "Union
Expense-Organization"; ( 2) the testimony of Rodgers that
he neither signed a promissory note nor entered into any
written agreement with the Union in respect to the loan;
(3) Section 431 of the Labor- Management Reporting and
Disclosure Act, Title 29 USCA, which requires every
labor organization to file annually with the Secretary of
Labor a financial report showing assets and liabilities at
the beginning of the fiscal year, including "direct and
indirect loans made to any . employee or member,
which aggregated more than $250 during the fiscal year,
together with a statement of the purpose , security, if any,
and arrangements for repayment "; and (4 ) Section 503 of
the same Act which provides that "no labor organization
shall make directly or indirectly any loans or loans to any
officer or employee of such organization which results in a
total indebtedness on the part of such officer or employee
to the labor organization in excess of $2,000," and further
provides for fine or imprisonment , or both, for willful
violation thereof.
As to ( 1), Rodgers denied that he was employed as an
organizer by the Union during the period of November
and December 1966 when he was receiving these $150
checks," and Respondent adduced no affirmative evidence
that Rodgers either did any organizing among
Respondent ' s employees after his discharge or was
employed by the Union at any time during the backpay
period herein to do such organizing Indeed , Respondent
stipulated that Bennett, the secretary -treasurer of the
Union , would have testified , if called as its witness, that
the checks were in the form of a loan , implying thereby
that these checks were not in remuneration for any
employment . In these circumstances , and in view of the
ambiguity inherent in the words "Union
Expense-Organization ," entered by the Union in its books
of account in reference to these checks , I am unable to
find that the record preponderates in favor of a finding
that Rodgers was paid the sum of $3,450 by the Union as
compensation for his alleged efforts to organize
Respondent ' s clerical employees
As to (2), while it is true that Rodgers testified that he
neither signed a promissory note nor entered into any
written agreement with the Union in respect to the loan,
the fact that the transaction was handled in this manner
when considered alone, or as part of (1) above, also falls
short of establishing that Rodgers was paid by the Union
the sum of $3,450 as compensation for his alleged efforts
to organize Respondent 's clerical employees.
As to (3) and (4), Respondent asserts that " it must be
conclusively presumed that the reports filed by the Union
with the Secretary of Labor did not disclose the alleged
arrangement between the Union and Rodgers as a loan
that would be repaid from funds secured by Rodgers from
Respondent herein " In substance, its argument is that for
the Union to have shown this arrangement as a loan on its
reports would have been to declare that it had acted in an
illegal and inappropriate manner and "there is a
presumption in law that the individuals and organizations
involved in [this ] transaction , attempted to act in a legal
and appropriate manner "
It is clear that the enforcement of the above sections of
the Labor-Management Disclosure Act does not fall
within the province of the Board But , in any event, no
reasonable basis exists for invoking a conclusive
presumption as to how the Union disclosed its
"Rodgers was not questioned in this vein with respect to the first two
quarters of 1967 when he was also receiving such checks
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
arrangement with Rodgers to the Secretary of Labor,
where such presumption would have to be premised on
speculation as to what was, in fact, set forth in the
Union's filings with the Secretary pursuant to the
requirements of the Labor-Management Disclosure Act.
In these circumstances, I find, here too, that no warrant
exists for concluding that Rodgers was paid the $3,450 by
the Union in weekly payments of $150 beginning with the
week of November 18, 1966, and ending with the week of
April 21, 1967, as compensation for his alleged efforts to
organize Respondent's clerical employees. Accordingly,
such weekly payments as were received by Rodgers during
the last quarter of 1966 and the first two quarters of 1967
are not to be applied in mitigation of back pay during
these respective quarters
Rodgers testified further that he has been operating
Latham Camera Repair since the end of the second
quarter of 1967 up to the time of the instant hearing.
However, as heretofore noted, the amended backpay
specifications make no reference to net profit from self
employment for any quarters subsequent to the first two
quarters of 1967 Of this entire period, Respondent
contended, and counsel for the Regional Director agreed,
that Rodgers' net profit from self employment, if any, for
the third and fourth quarters should be applied in
mitigation of backpay And they agreed further to the
following formula for determining net profit* Based on the
fact that, for 2 weeks during the third quarter, Rodgers
was self employed and had no other employment during
those 2 weeks, and on the further fact that during the
fourth quarter, Rodgers was self employed for 7 weeks
and had no other employment during those 7 weeks, his
net earnings to be deducted in mitigation of backpay for
the third quarter and fourth quarter are to be computed
by taking one sixth and seven twelfths of the net earnings
from self employment during each of such quarters,
respectively.
With respect to the third quarter of 1967, Rodgers
testified, in effect, on the basis of his General Business
Bookkeeping and Income Tax Records, that he had a net
profit from self employment of $332.14.16 He testified
further that, in arriving at these figures, he included as
business expenses $31.96, $44.50, $15.15, and $37 17 for
gasoline, $27 15 for rent; $46 33 for a tape recorder in
order to record information to be used in typing business
letters; and $70 for tuition. I am unable to find on this
record that the expenses for rent, for the tape recorder,
and for tuition were improper charges against the camera
repair business However, it is clear, in the light of my
findings heretofore, that only 50 percent of the
expenditures for gasoline are properly chargeable to
Latham Camera Repair. Accordingly, I find that $64.39
of the $128 78 expended for gasoline was improperly
deducted, with the consequence that the net profit for the
third quarter is to be increased by the addition of the
$64.39 so as to make the amount of net profit for that
period $396.53 instead of $332 43 And applying the
formula set forth above as to the third quarter, I find
further that one sixth of $396.53 or $66 09 is properly
deductible as net profit for that quarter in mitigation of
backpay. The correct interim earnings for this quarter in
the amended backpay specifications should be $368 63
instead of $302.54.
With respect to the fourth quarter of 1967, Rodgers
testified from the above mentioned records that he had a
net loss from self employment of $224.65 " He testified
further that, in arriving at these figures, he included as
business expenses $125 49 for the purchase of automobile
tires; $100.50 for automobile insurance; $15.55, $27.93,
$10.10, $3.67, $5.98, $16.75, $16, $12 06, and $32.83 for
gasoline and for necessities for the automobile, $27.15 as
monthly rental payments; $33 17 for lumber used to
improve the working area of the camera repair business;
and $40 for enlargements used in camera work. I am
unable to find on this record that the expenses for rent,
for the lumber, and for the enlargements were improper
charges against the camera repair business However, it is
clear, here too, in the light of my findings heretofore, that
only 50 percent of the charges for automobile tires,
automobile insurance, gasoline and car necessities are
properly chargeable to Latham Camera Repair.
Accordingly, I find that $183.43 of the $366 86 expended
for these items was improperly deducted, with the
consequence that the net loss of $224.65 for the fourth
quarter is to be reduced by $183 43, leaving as a final
figure a net loss of $41.22. Therefore, I conclude, and
find, that no deductions due to self employment are to be
made for the last quarter of 1967 in mitigation of backpay
due for that period
In view of all the foregoing, I shall incorporate into the
amended backpay specifications my modifications as to
Rodgers' net earnings from self employment for the last
quarter of 1966 and the first three quarters of 1967. The
resulting gross and net backpay by calendar quarters
during the entire backpay period is as follows
Calendar
Quarter
Gross
Backpay
Interim
Earnings
1966-4 1375.00 488.85
1967-1 1843 00 614.54
1967-2 1857 00 695 35
1967-3 1872 00 368.68
1967-4 2002.00 861.00
1968-1 2002 00 1525.00
"This consists of a loss of $252 55 during July, and profits of $252 26
and $332 43 during August and September
Expenses
Net Interim
Earnings
Net
Backpay
none 488 85 886.15
none 614.54 1228.46
none 695 35 1161 65
112.00 256 68 1615 37
200 00 661.00 1341.00
none 1525 00 477.00
"This consists of a net profit of $5 98 during October, a net loss during
November of $271 89 and a net profit of $41 26 during December
DORN 'S TRANSPORTATION CO 409
Calendar
Quarter
Gross
Backpay
Interim
Earnings
1968-2 2010.00 1741 00
1968-3 2015 00 1357.69
1968-4 2015 00 2009 00
1969-1 1860 00 2180.00
Net Interim Net
Expenses Earnings Backpay
none 1741 00 269 00
none 1357 69 657 31
none 2009.00 6 00
none 2180 00 none
Total Net Backpay $7641 94
RECOMMENDED ORDER to him of the sum $7,641.94 together with interest accrued
to the date of payment, pursuant to the Board Order
herein, minus the tax withholding required by Federal and
Summarizing the above calculations and my findings State laws
and conclusions herein, I recommend that Respondent's I recommend that the Board adopt the foregoing
obligation to make Rodgers whole be satisfied by payment findings, conclusions and recommendations