Full Line Distributors, Inc.

National Labor Relations Board - Board Decisions

Jul 27, 1979

243 N.L.R.B. 758 (N.L.R.B. 1979)

DF(CISIONS OF NAIIONAL. LABOR RELATIONS BOARI)
Full Line )istrihutors, Inc. and Antonio Mella. C('ase
29 ('A 5324
July 27, 1979
SUPPLEMENTAL DECISION AND ORDER
BY CHIAIRMAN FANNING ANI) MI!MBHIRS PNI.I.()
ANI) MURPIIY
On February 8, 1979, Administrative Law Judge
Benjamin Schlesinger issued the attached Supplemen-
tal Decision in this proceeding.' Thereafter, the Gen-
eral Counsel filed exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,2 and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent, Full Line Distributors,
Inc., Brooklyn, New York, its officers, agents, succes-
sors, and assigns, shall pay backpay and expenses to
Antonio Mella in the amount of $9,767, with interest
thereon computed as prescribed in Florida Steel Cor-
poration, 231 NLRB 651 (1977) (see, generally, Isis
Plumbing & Heating Co., 138 NLRB 716 (1962)), less
FICA and state, local, and Federal income taxes
which are required to be deducted.
' The Board's Decision and Order in this proceeding is reported at 233
NLRB 10(1977).
2 Contrary to our dissenting colleague, we agree with the Administrative
Law Judge that the amount of money employee Mella received from Re-
spondent for the use of his truck is part of Mella's gross backpay to be offset
by his interim earnings. The points raised in the dissent, to the extent they
are relevant, are answered fully by the Administrative Law Judge. However,
it should be pointed out that the dissent erroneously views the situation as a
normal commercial truck rental arrangement. Rather, Mella was not in the
truck rental business as is shown, inter alia, by the fact that he did not
attempt to rent his truck after he was unlawfully discharged but instead, as
he testified, just parked it. Further, it is clear that Respondent's use and
"rental" of the truck was incidental to Mella's employment as is shown by
the facts that Mella alone drove the truck for Respondent and that Respon-
dent's use of and payment for the truck began and ended with Mella's em-
ployment. Consequently, we are concerned here, contrary to the position
taken by the dissent, solely with the unlawful termination of an employment
relationship, and thus agree with the Administrative Law Judge that Mella's
interim earnings are to be offset from the total amount he would have re-
ceived as a consequence of that relationship had it not been unlawfully
terminated, which amount clearly includes the "truck rental."
MEMBIR PNi:I.I.O, dissenting in part:
I agree in most respects with my colleagues' back-
pay findings, including the finding that Respondent
must reimburse Antonio Mella for loss of income
from the rental of Mella's truck. However, I do not
agree that this truck rental loss of income is to be
offset by Mella's interim earnings. The Board can in-
clude a broad range of items in a make-whole order
such as wages, bonuses, vacation pay, pension fund
contributions, insurance benefits, favorable utility
rates, employer-provided housing, and other fringe
benefits. It is beyond dispute that wages which a dis-
criminatee would have earned during the backpay pe-
riod are offset by the discriminatee's net interim earn-
ings. There are, however, certain payments which
must be made to a discriminatee which are not sub-
ject to being offset by interim earnings, except to the
extent that similar benefits were received during the
interim period. Although the majority implies the
contrary, these payments can include medical ex-
pense reimbursement, bonuses, pension contributions.
and death benefits, items which are "incidental" to
the employment relationship.'
Although I do not view Mella's use of his truck as
a normal commercial truck rental arrangement, I am
of' the view that the truck rental amounts involved
herein are not subject to being offset by interim earn-
ings. The Administrative Law Judge found that Re-
spondent paid Mella a flat fee of $125 per week for
the rental of the truck. Mella received no similar pay-
ment for the rental of his truck from any other source
during the backpay period.4 A discriminatee is obli-
gated to minimize the amount of backpay due by
seeking comparable interim employment. However, a
discriminatee is not obliged to work overtime to re-
duce the amount of backpay. Similarly, interim earn-
ings from hours which substantially exceed the hours
the discriminatee would normally have worked are
not deductible from the gross amount. Furthermore,
when a discriminatee works two full-time jobs or
holds both a full-time and a part-time position during
the backpay period, only the earnings from one full-
time job are to be regarded as interim earnings.' It is
proper to deduct from gross wages on a quarterly ba-
sis the earnings which Mella received during this
backpay period up to the amount he would have been
paid by Respondent for his own labors. It is unjust
and inequitable to allow Respondent to benefit from
Mella's additional earnings during the backpay pe-
I General Teamsters Local 439, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers ofAmerica Los Angeles-Seattle Motor
Express, Inc.). 194 NLRB 446. 449 1971); Glen Raven Silk Mills, Inc., I01
NLRB 239, 250 (1952), modified on other grounds 203 F.2d 946 (4th Cir.
1953).
' Respondent did not raise a defense of failure to mitigate damages on the
truck rental. Contrary to the majonrity. the record does not indicate whether
or not Mella attempted to rent his truck after he was discharged.
5 United Aircraft Corporatrion, 204 NLRB 1068, 1073 74 (1973).
243 NLRB No. 121
758
FULL LINE DISTRIBUTORS. IN(C.
riod by deducting the fruits of Mella's own efforts
from the truck rental for which Respondent is liable.
Had Mella found a lessee for his truck during the
backpay period, it would, of course, have been fair
and proper to deduct that income from Respondent's
$125 per week truck rental liability. By subjecting the
truck rental fee to offset from Mella's interim earn-
ings, my colleagues are granting Respondent a wind-
fall by allowing an offset in excess of the wages Mella
would have earned but for the unlawful discrimina-
tion against him.6
I do not agree with the Administrative Law Judge's comparison of funds
paid for rental of a truck and the furnishing of the use of a car to an em-
ployee. The use of the car is presumably in return for services rendered hb
the employee; the payment of truck rental is in return for use of a piece of
equipment which an employee owns
SUPPLEMENTAL DECISION
1. PRELIMINARY SATElMIiNT
BENJAMIN SCHLESINGER, Administrative Law Judge: On
October 17, 1977. the National Labor Relations Board is-
sued a Decision and Order in which it affirmed the Decision
of Administrative Law Judge Stanley N. Ohlbaum and
found that Respondent herein violated Section 8(a)(3) and
(1) of the National Labor Relations Act, as amended, by
discharging Antonio Mella on or about November I and
19, 1976. because he had joined a labor organization and
had attempted to exercise his statutorily guaranteed rights
under Section 7 of the Act (233 NLRB 10 (1977)). The
Board directed that Respondent offer Mella reinstatement
and make him whole in accordance with the formula pro-
vided in F. W. Woolworth Company, 90 NLRB 289 (1950).
together with interest computed as prescribed in Florida
Steel Corporation, 231 NLRB 651 (1977).
Thereafter, on August 3. 1978. the Regional Director for
Region 29 issued a backpay specification and notice of
hearing in which he alleged that there was due and owing to
Mella from Respondent the net sum of $11,348, plus inter-
est and less standard withholdings. On or about August 16,
1978, Respondent filed its answer: and a hearing was held
before me in Brooklyn, New York. on December 21. 1978.
All parties were afforded the opportunity to file briefs: only
the General Counsel has done so.
II. ISSUES ANt) DISCUSSION
Respondent's answer, amended at the hearing, interposed
in this backpay proceeding two defenses which had been
fully litigated in the underlying unfair labor practice pro-
ceeding. I granted the General Counsel's motion to strike
those defenses. There remain for disposition the following
defenses which were properly interposed by Respondent.
They concern the computation of overtime Mella would
have received had he not been terminated: the amounts he
should be reimbursed for the use of his truck, for which he
had formerly been paid $125 per week; the deduction of
amounts paid by Respondent for truck rental because of
the celebration of holidays: and the propriety of reimburs-
ing Mella or the expense of parking of his truck, which he
had been permitted to park at Respondent's premises at no
cost and expense. I deal with these .seriatm.
A. Proper .4 tount l O/c Uirtime
The General Counsel contends that during the period
from April I. 1976. to November 1. 1976. Mella worked
overtime an average of 3 clock hours or 4-1'2 adjusted
hours per week (adjusted for time-and-a-half for overtime),
or 58-1/2 adjusted hours per quarter. Respondent does not
fault this computation. but submits that the more appropri-
ate method of calculation would be to use the period com-
mencing January 1. 1976. Since Mella did not work an3
overtime in the first quarter of the year, the average ad-
justed hours per week would. according to Respondent's
answer, drop to 3-1/2 hours per week or 45-1,/2 adjusted
hours per quarter. a difference of 13 adjusted hours per
quarter.
The question presented is which of the two periods more
accurately reflects the number of hours of o ertime Mlella
would have worked had he not been discriminated against.
Respondent's principal officer, Joseph Segal, testified that
overtime is worked principally for several weeks prior to the
major Jewish holidays. In 1976, there were no major Jewish
holidays which occurred in the first quarter of the ear, or
shortly thereafter, which would have caused overtime to be
worked. Thus, Mella worked no overtime in that quarter.
No records were produced, however, as to Mella's experi-
ence of overtime from November 20, 1975. to December 31.
1975, during which Hanukkah was celebrated. Probably.
the entire year prior to Mella's second termination would
have been the most accurate reflection of all, but neither
party sought to press those figures.
I cannot say that the General Counsel's formula is unrea-
sonable, but that is not the test by which I am guided. I
must determine which of the two proposed methods is the
more accurate. With some reluctance. I agree with the Re-
spondent's calculations, believing that a longer time period
will average out seasonal variations of heavy overtime peri-
ods of work. Although I am not satisfied that the latter part
of 1975 would not have increased Mella's overtime above
that opted for by Respondent, the General Counsel had an
opportunity to discover the overtime figures for the earlier
period and. had the figures benefited Mella. would as-
suredly have introduced them. Accordingly. I agree that
Respondent's formula more accurately reflects the overtime
that Mella would have earned had he not been discrimi-
nated against and that, based on Respondent's formula,
Mella is entitled to receive for overtime pa! the sumi of
$17.50 per week, or $227.50 per quarter.
B. Truck Rental
Respondent compensated Mella. for the use of his truck.
the sum of $125 per week. plus gasoline and tolls, in addi-
tion to Mella's $200 weekly salary The General Counsel
contends that Mella is entitled to receive $125 per week
during the entire backpay period Respondent contends.
however, that this amount was intended to compensate
Mella for the use of his truck; that the amount included
reimbursement for maintenance at $55 per week. insurance
759
I)(ISI()NS ()F NAI()NAI. IABOR RELAIIONS BOARD
at $30 per week. and "certain tolls" at $10 per week; that,
because Mella was terminated. the truck was not used but
remained idle: and that, as a result. Mella should not be
compensated for anything other than $30 per week, the dif-
ference between $125 and the abhoe-enumerated $95 ex-
penses that he did not incur.
In support of Respondent's position, the record demon-
strates that, during the backpay period. Mella's truck was
not used but remained parked in a lot in oney Island.
Brooklyn: that no repairs had been made to the truck dur-
ing that period: and that repairs had been made during the
year prior to the backpa 5 period amounting to $1.253.66'
The record reveals that Mella continued to insure his truck
during the backpay period. No credible evidence was intro-
duced that Mella incurred any nonreimbursed expenses for
tolls while employed by Respondent. Thus, removing from
consideration the sum of $30, for insurance, and $10, for
"certain tolls," because of total failure of proof; the sole
issue is whether Respondent is entitled to a setofl of $55 per
week for maintenance which Mella did not incur.
The record demonstrates that there was never an agree-
ment between Respondent and Mella for anything. but a
flat payment of $125 per week of the truck rental. Specifi-
cally, no proof was elicited that certain dollar amounts were
to be allocated to certain tolls, insurance, and maintenance.
In fact, during the first year of Mella's employment. Mella
received the weekly payment of $125 despite the fact that
the truck was new and required no maintenance. It is only
speculative to assume, although with some probability, that
Mella would have incurred any maintenance expenses dur-
ing the backpay period. It may also be speculated. with the
same probability. that the nonuse of the truck for 13
months could have caused corrosion and mechancial fail-
ures, which would have to be paid for by Mella at some
future time.
The obligation to pay Mella for losses of income from
payments for use of his truck is clearly set forth in the
Board's Order. There has been no proof that Mella received
any income from any other person for the use of his truck
during the backpay period. I find that the entire amount of
$125 per week, as set forth in the Appendix. is appropriate
to make Mella whole for his monetary losses.
The failure of Respondent, however, to prove that Mella
did not incur any normally expected expenses does not war-
rant the result that Respondent's defense is entirely lacking
in merit, for implicit in the defense is that Mella is being
awarded an amount which results in a windfall to him,
granting him more money than he would have had avail-
able had he incurred expenses related to the use of his
truck. The relief to be granted herein is to make him whole,
as if he had not been discriminated against under the Act:
such relief should not result in a windfall. Since Mella ad-
mitted to having no expenses for his truck during the entire
backpay period, the amount of $125 per week can be con-
sidered only as income to him, in the same way as his nor-
mal wages. Treated as such, it was erroneous br the Gen-
eral Counsel to lump the truck rental, an amount expected
' Respondent also attempted to prove. bh Segal's testimony relating a ele-
phone conversation with a truck mechanic. the amount of repairs which
could reasonable he anticipated for a truck of the make and year of Mella's
truck. I rejected that testimony as hearsay.
to be received from Respondent, with the garage rental.
discussed inrla, an expense which Mella actually paid out of'
pocket, so that both payments would be awarded in tlolo
regardless of the amount of' interim earnings.
The Board has consistently held that, when a discrimi-
natee had the use of a demonstrator automobile during the
course of his employment, he should receive the value of
the automobile which was denied him as a result of Re-
spondent's violation of the Act. The amount of the benefit
is t eated as additional backpayv subject to setofl by interim
earnings. Folk Chevrolet. Inc.. 176 NLRB 277 (1969): see
aIlso ,ickclV (Cheirol Salc.s, In(.. 195 NI.RB 395 (1972). 1
tail to see any substantial difference between an employer's
supply of an automobile. free of charge to an employee
the worth of which is treated as backpay. subject to reduc-
tion and an employee's supply of a truck, for which the
employer agrees to pay rental. Both result in a benefit to the
employee and should be treated as compensation (subject,
of course. to expenses). As such, Respondent's obligation to
pay Mella $125 per week should be similarly treated. In
accord with Folk Chevrolet, the sum should be subject to
setoH' of interim earnings. Because Mella's interim earnings
exceeded his gross backpay (as computed by the General
Counsel) during the second, third, and fourth quarters of
1977. it is entirely appropriate to allocate the truck rental to
gross backpay for the purpose of utilizing Mella's entire
interim earnings in order to compute net backpay.
C. Legal and Jewish Holidavs
Mella conceded that during weeks in which a holiday
was celebrated by Respondent. the entire sum of $125 per
week for the truck rental was not paid. Instead. a per diem
rate of $25 was deducted fobr each holiday. The parties
stipulated that during the backpay period. 16 Jewish holi-
days and 3 national holidays' were celebrated and Respon-
dent's place of business was closed.
However, the parties disagreed as to whether Christmas
Day, New Year's Day, and Labor Day were also treated as
nonworking paid holidays. Mella testified that in 1975 and
1976, prior to his termination, they were not celebrated
(Christmas Day 1975 and New Year's Day 1976 fell on
Saturday, and Mella stated that neither the preceding Fri-
day nor the following Monday was substituted). Segal testi-
fied that all three holidays were observed. I credit Segal to
the extent of Respondent's celebration of Christmas and
New Year's D)ay. His testimony was more direct and forth-
right and demonstrated his clear recollection. To the con-
trary. Mella testified that during a year. Respondent ob-
served about 5 or 6 Jewish holidays and 3 or 4 national
holidays. His recollection was vague and concededly quite
erroneous in his computation of Jewish holidays. Since the
parties were able to agree only upon the celebration of
Thanksgiving Day and Independence Day, there must have
been other national holidays included in Mella's approxi-
mation of 3 or 4 holidays. I find that Segal accurately stated
that Christmas Day and New Year's Day were celebrated
as holidays by Respondent. However, because Segal
' The Jewish holidays fell in the following quarters o 1977: first quarter.
one: second quarter. seven: third quarter, six: and ourth quarter, two. The
national holidays agreed upon were Thanksgiving Day, in 1976 and 1977,
and July 4. 1977.
760
FI-LL I.INE DISFRIBUTORS. IN('.
equiv ocated aboutl labor )a, and finalls conceded that he
could not remember whether Respondent sas closed in ob-
servance of that day. and because Mella recalled A ith cer-
tainty that Labor Day was not observed. I decline to deduct
any amounts for ahbor Da, 1977.
Accordingly, there were 21 holidays obser' ed by Respon-
dent, for which Respondent is entitled to credit at the rate
of $25 per day.
D. Parking
The General Counsel contends that Mella should he re-
imbursed the sum of $30 per month for the cost olf parking
his truck. which had previously been parked in Respon-
dent's Brooklyn warehouse. Respondent defends on two
grounds: (I) there was no agreement or understanding of
any kind permitting Mella to park at Respondent's ware-
house, and any benefit to Mella was not a benefit of em-
ployment because Respondent may have denied him that
right arbitrarily: and (2) Mella parked on Respondent's
premises only on the average of 2 days per month.
The evidence shows that Mella parked his truck on Re-
spondent's premises during the entire tenure of his employ-
ment. There was no permission given by Respondent to do
so, but Respondent was fully aware that Mella was parking
his car there, workdays and weekends. The only exceptions
were on approximately eight occasions when Mella took his
truck to a mechanic for repair: then the truck would be
parked at the mechanic's establishment. apparently at no
expense to Mella. over a weekend (Friday, Saturday. and
Sunday).
Even if there were no formal agreement to store his truck
at Respondent's warehouse, there was a tacit agreement to
do so; and, if there were no tacit agreement, at the mini-
mum, there was an established practice permitting Mella to
receive free garaging. There can be no doubt that Respon-
dent caused Mella to park his truck elsewhere when it fired
him. That created an expense for Mella. which Respondent
should be expected to reimburse so as to make him whole
for any loss, in accordance with the Board's Order. There is
no basis in the record to speculate, as Respondent urges,
that Respondent would have arbitrarily denied Mella park-
ing privileges: and I reject Respondent's defense.
Accordingly. I find that Mella is entitled to recover his
expenses for parking his truck.
On the basis of the foregoing rulings and the entire rec-
ord, including my consideration of the brief filed by the
General Counsel, and my observation of the demeanor of
the witnesses, I make the following:
FINDIN(iS () FACT AND CO()N(I.SItNS o)F LAw
1. The backpay period for Antonio Mella is from No-
vember 19. 1976. through December 5. 1977.
2. he measure of gross backpa. which would ha,.e been
earned bh Antonio Mella i, the tollowing:
(a) Mella's hourly rate of pay at the time of his discharge
,as $5. plus time and a half for hours worked in excess of
40 per eek. lits straight time pay tor 40 hours is thus $2(W).
(hb) I)uring the prediscrimination period frontm Januarl I.
1976 to November 19. 1976. Mella worked a total of 1()2
hours (,f o ertime. which, as adjusted. equals 3-1 2 hours at
straight time per eek. On the basis of $5 per hur. the
weekl oertinme amounts to $17.50 per week.
3. (a) In addition to the wages paid to Mella for hours
vs orked. Mella was also paid. at the time of' his discha.rge.
$125 per week for the use of his truck. less $25 fir each
workdaN holida, obser ed by the Respondent. I find that
there were 21 holidass which would hase been obserseed
during the hackpal period.
(b) uring his employment by Respondent. Mella was
allowed to and. in thact, did park his truck overnight and on
weekends on the Respondent's property) ithout charge or
cost to Mella. During the hackpay period. Mella incurred
an additional expense. at the rate of $30 per month, to park
his truck overnight and weekends on propert\ rented for
that purpose. which expense he would not have incurred
absent the discrimination against him.
4. On the basis of the 'oregoing. and the concessions of
the Regional Director in the backpa specification., ith
regard to the interim earnings of the discriminatee. ,and the
adjustments to the specifications as made in this Decision. I
find that Mella is entitled to backpay and reimbursement of
truck rental and parking expenses and I conclude that Re-
spondent's obligation to make Mella whole in accordance
with the Board's Order shall be fulfilled bh paying to him
the amount set forth in the recommended Order below.
[Quarterly computations omitted from publication.j
On the basis of the oregoing findings and conclusions, I
make the ollouing recommended:
ORDER'
The Respondent. Full Line Distributors. Inc.. Brooklyn.
New York. its officers. agents. successors, and assigns. shall
pay backpa and expenses to Antonio Mella in the amount
of $9,767. with interest thereon computed as prescribed in
Florida Sicel ('orpralrion, 231 N.RB 651 (1977): see. gen-
erally. Isis Plumbhing & Heatling ('Co.. 138 N I RB 71( 1962).
less FICA and state. local, and Federal income taxes which
are required to be deducted.
* In the eent no exceptions are filed as proided b) Sec 102 4t) ol the
Rules and Regulations o'f the National abx)r Relations Board. the findings.
conclusions. and recommended Order herein shall. as provided n Sec 102.48
of the Rules and Regulations. he adoped h the Board and become s
findings. conclusions, and Order. and all objections thereto shall be deemed
waived for all purposes.
761