General Teamsters, Local 439

National Labor Relations Board - Board Decisions

Dec 6, 1971

194 N.L.R.B. 446 (N.L.R.B. 1971)

446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
General Teamsters Local 439, International Brother-
hood of Teamsters , Chauffeurs, Warehousemen &
Helpers of America (Los Angeles-Seattle Motor
Express, Inc.) and Lyle C. Corey. Case
20-CB-1758
December 6, 1971
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
On September 3, 1968, the National Labor Rela-
tions Board issued a Decision and Order in the above-
entitled proceeding,) which was enforced by the
United States Court of Appeals for the Ninth Circuit
on July 23, 1970.2 In its Decision, the Board found,
inter alia, that Respondent unlawfully attempted to
cause and did cause Los Angeles-Seattle Motor
Express, Inc., herein referred to as LASME, to
discharge Lyle C. Corey on October 30,1967, because
of his lack of membership in the Respondent Union,
in violation of Section 8(b)(2) and (1)(A) of the
National Labor Relations Act, as amended . Accord-
ingly, the Board ordered, inter alia, that Respondent
make Lyle C. Corey whole for losses suffered between
October 30, 1967, and 5 days after the date on'which
Respondent notified Los Angeles-Seattle Motor
Express, Inc., that it had no objections to the
employment of Lyle C. Corey in his former or
substantially equivalent position without prejudice to
seniority or other rights and privileges he would have
acquired absent the discrimination against him.
LASME was so notified by the Respondent on
November 15,1968.
On February 9,1971, the Board's Regional Director
for Region 20 issued and served upon the parties a
Backpay Specification and Notice of Hearing. Pur-
suant to notice, a hearing was held on June 2 and July
8, 1971, by Trial Examiner Martin S. Bennett for the
purpose of determining the amounts of backpay due.
On August 26, 1971, the Trial Examiner issued his
Supplemental Decision, which is attached hereto,
finding that Respondent is obligated to pay Lyle C.
Corey $10,964, for losses suffered, with interest at 6
percent per annum. In addition, the Trial Examiner
further found that the sum of $420.80 is due and
payable by Respondent to the Western Conference of
Teamsters Pension and Trust Fund in Lyle C. Corey's
behalf. Thereafter, Respondent filed exceptions to the
Supplemental Decision and a supporting brief. The
General Counsel submitted its brief to the Trial
Examiner in answer to Respondent's exceptions and
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 reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Supplemental Decision , the Respondent's
exceptions and brief, the General Counsel's brief, and
the entire record in the case, and hereby adopts the
findings , conclusions , and recommendations of the
Trial Examiner.
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 Order of the Trial Examiner and hereby orders that
Respondent , General Teamsters Local 439 , Interna-
tional Brotherhood of Teamsters , Chauffeurs, Ware-
housemen & Helpers of America, its officers, agents,
and representatives , shall make whole Lyle C. Corey
by payment to him the sum of $10 ,964 with interest at
6 percent per annum and by payment of $420.80 to
the Western Conference of Teamsters Pension and
Trust Fund, in his behalf.
1 172 NLRB No. 231.
2 N.L.R.B. v. General Teamsters[Local 439, 429 F.2d 1313 (C A. 9).
SUPPLEMENTAL TRIAL EXAMINER'S
DECISION
MARTIN S . BENNETT, Trial Examiner : This matter, heard
at Stockton , California, on June 2 and July 8 , 1971, stems
from a backpay specification previously issued on February
9 by the Regional Director for Region 20, as amended, to
determine the amount of backpay owed Lyle C. Corey due
to the causation of his discharge by Respondent , General
Teamsters Local No . 439, International Brotherhood of
Teamsters , Chauffeurs, Warehousemen & Helpers of
America . The Order of the Board is reported at 172 NLRB
No. 231 and the Judgment of the United States Court of
Appeals enforcing same is reported at 429 F .2d 1313 (C.A.
9).
The General Counsel seeks backpay for Corey covering
the period from November 1, 1967, through November 15,
1968, when the discharging employer , Los Angeles-Seattle
Motor Express , Inc., herein LASME , was notified by
Respondent that it had no objections to his further
employment. Respondent , in turn, alleges that Corey did
not make reasonable efforts to obtain new employment,
that similar work was available to him , and that he declined
available employment of a substantially equivalent nature.
Briefs have , been submitted by the General Counsel and
Respondent.
Upon the entire record in the case, and from my
observation of the witnesses, I make the following:
194 NLRB No. 71
GENERAL TEAMSTERS, LOCAL 439 447
FINDINGS OF FACT
AND
CONCLUSIONS OF LAW
A. The Issue
The burden of the General Counsel herein is to establish
what Corey would have earned but for the unfair labor
practice committed by Respondent. In turn, the burden of
proof to mitigate its liability is on Respondent and this is
therefore an affirmative defense. N.L.R.B. v. Mooney
Aircraft, Inc., 366 F.2d 809 (C.A. 5). As will appear, the
General Counsel', has, in effect, aided Respondent in this
last area by voluntarily and openly conceding certain
interim earnings by Corey.
B. Gross Backpay Due
Corey was ousted by Respondent as an employee on run
no, 53 of LASME. General Counsel contends, Respondent
does not dispute, and I find, that the gross liability of
Respondent is the loss of earnings by Corey as reflected in
the earnings of the drivers who performed run no. 5,3 during
the backpay period. Thus, as an initial computation, I find
that the following tabulation reflects the gross earnings of
the drivers who variously replaced Corey during the
backpay period:
GROSS EARNINGS OF DRIVERS
PERFORMING RUN NO. 53 DURING BACYPAY PERIOD
Calendar Quarter Driver on Run No. 53
1967---4th Ellis R. Allee
( 11/1 to 12/31)
1968--- 1st Ellis R. Allee
1968---2nd Ellis R. Allee
Clarence Keathley
1968---3rd Clarence Keathley
1968---4th Clarence Keathley
( 10/1 to 11/15)
Gross Earnings
$ 1,922.00
3,108.00
1,492.00
1,706.00
$ 3,198.00
$ 2,849.00
1,525.00
$12,602.00
C. Gross Backpay Less Net Interim Earnings gross backpay due Corey less interim earnings, as they may
be, in the respective quarters. I shall treat below
Respondent's contention that interim earnings could have
Initially, I set forth the computation of the General been greater.' The computation by the General Counsel
Counsel wherein he breaks down , on a quarterly basis , the reflects the following:
1 This is entirely aside from the comment of the Court of Appeals that
Respondent's opposition to the order of the Board "borders on the
frivolous."
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
QUARTERLY BACKPAY COMPUTATIONS
LESS NET INTERIM EARNINGS
Year Quarter Quarterly Back ay Computations
1967 4 Cross backpay from Backpay
(11/1 to Specification . . . . . . . . . . $ 1,922.00
12/31 ) Interim Earnings: None
Net backpay for quarter . . . . . $ 1,922.00
1968 1 Gross backpay . . . . . . . . . .
Interim Earnings:
$3,108.00
None
Net backpay for quarter . . . . . $3,108.00
1968 2 Gross backpay . . . . . . . . . .
Interim Earnings:
$3,198.00
LASME . . . . . . . . . . $ 76.00
United Buckingham
Freight . . . . . . . . . 611.00
Less ( 1) Travel
expenses from Redding,
Cal. to Yreka , Cal. and
return for LASNE job.
(184 miles at 10 cents
per mile.)
Less ( 2) Travel
expenses from Redding,
Cal. to Spokane , Wash-
ington for United
Buckingham Freight job.
(691 miles at 10 cents
per mile.)
(18.00)
(69.00)
Net interim earnings. . . . . . . 600.00
Net backpay for quarter . . . . . $2,598.00
1968 3 Gross backpay . . . . . . . . . . 2,849.00
Interim Earnings:
United Buckingham
Freight. . . . . . . . . $318.00
LASNE. . . . . . . . . . $320.00
GENERAL TEAMSTERS, LOCAL 439 449
Year Ouarter Quarterly Backpay Computations
Less travel expenses
from Spokane , Washing-
ton to Redding, Cal.
(691 miles at 10 cents
per mile.)
Less travel expenses
for 3 trips from
Redding, Cal. to Yreka,
Cal. and return for
LASE job. (3 trips
of 184 miles at 10
cents per mile.)
($69.00)
( X5.00)
Living expenses in
Spokane , Washington ( 68.00)
Net interim earnings . . . . . . . . $ 446.00
Net backpay for quarter . . . . . . $ 2,403.00
1968 4 Gross backpay
( 10/1 to Interim Earnings:
11/15) LASNE. . . . . . . . . . $665.00
Cascade Drayage . . . . . 233.00
Buckhorn Fish Hatchery . 81.00
Less travel expenses for
5 trips from Redding, Cal.
to Yreka, Cal. and return.
$ 1,525.00
(5 trips of 184 miles at
10 cents per mile .) ( 92.00)
Net interim earnings . . . . . . . . 887.00
Net backpay for quarter . . . . . . $ 638.00
Net backpay due. . . . . . . . . 10 , 669.00
Medical expenses 2/ . . . . . . 33.00
Vacation pay due . . . . . . . . 262.00
TOTAL NET BACKPAY DUE
(exclusive of interest ) 3/ . . . $10,964.00
TOTAL NET PENSION CONTRIBUTIONS
DUE [as shown belowl . . . . . . . . 420.80
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. Analysis and Conclusions
It is established that expenses incurred in obtaining
employment are deductible from gross earnings. As
reflected by the foregoing, and by the record, Corey made
nine round trips of 184 miles each from his home in
Redding, California, to handle truck runs for LASME from
its Yreka truck terminal. His documented testimony
reflects that these took place between April and October of
1968.
Not shirking his obligation to seek work, he drove from
Redding, California, to Spokane, Washington, and worked
as a line driver for United Buckingham Freight, the one-
way distance being 691 miles. As noted, the General
Counsel concedes a deduction of but $68 for living
expenses in Spokane, although the sum was manifestly
higher, because of the absence of supporting living-expense
records.
The record discloses an item of dental expense incurred
by Corey's wife which would otherwise have been covered
by his insurance with LASME. Under the provisions of the
health and welfare plan, and the expenses are documented
herein, he is entitled to reimbursement in the amount of
$33.00. [Actually $32.85, but all figures herein have been
rounded off to the nearest dollar except in the item below.]
Again, as shown above, the General Counsel contends,
and I agree , that Respondent owes such contributions to
the Western Conference of Teamsters Pension Trust Fund
as would have been made by LASME for the work to be
performed by Corey on Run No. 53 during the backpay
period . The contract, in effect, provides contributions of $8
per week after April 1, 1967, this sum increasing to $9
effective April 1, 1968. Thus, the General Counsel comes up
with a total, and I concur, of $420.80 as reflected below:
PENSION CONTRIBUTIONS LASME WOULD HAVE BEEN REQUIRED TO MAKE
TO TRLTST FUND ON COREY'S, BEHALF UNDER ARTICLE 63, SECTION 1
OF COLLECTIVE-BARGAINING AGREEMENT DURING BACKPAY PERIOD
Period
Number of
Weeks Contribution Rate
Contribution Due
Trust Fund on Behalf
of Discrininatee Corey
11/1/67 22 $8.00 per week $176.00
to
3/31/68
4/1/68 33 $9.00 per week $297.00
to
11/15/68
Pension contributions LASME would have
paid on Corey's behalf for Run No. 53
during backpay period . . . . . . . . . . $473.00
Less contributions paid by LASME to
Trust Fund on behalf of Corey during
backpay period $ 52.20
NET CONTRIBUTIONS DUE BY RESPONDENT $420.80
Similarly, a claim is proffered and accepted for vacation the general tabulation above.
pay due Corey. This is spelled out below and is reflected in
VACATION PAY DUE COREY UNDER ARTICLE 60 OF
COLLECTIVE-BARGAINING AGREEMENT
Total Gross Earnings Vacation Pay Rate Vacation
During Backpay Period Linder Article 60 4/ Pay Due
$ 12,602.00 1/52 of gross
annual earnings
$242.00
GENERAL TEAMSTERS, LOCAL 439 451
Respondent's basic defense is that Corey did not
diligently seek other employment and that he refused to
accept available work. Bearing in mind that available work
means work in the community which does not entail a move
to another area, I find that the evidence preponderates in
favor of the position of the General Counsel that the
backpay liability should not be mitigated, except as already
conceded by him.
Respondent has contended that Corey did not want to
work after his discharge, but generalizations are not
sufficient. N.L.R.B. v. Reynolds, 399 F.2d688 (C.A. 6). And
the record discloses considerable effort on his part to obtain
work. Corey had worked for 30 years as a line driver or
over-the-road ariver, the last 19 years at the Redding,
California, terminal of Pacific Intermountain Express.
When this terminal was eliminated, he was laid off and this
lead to his abortive attempt to obtain work with LASME.
This type of work is entirely different from local pickup
and delivery work. As testified by Business Representative
Frank Wood of Local 137 in Redding, a local driver spends
80 percent of his time loading and unloading freight,
whereas 80 percent of over-the-road runs involve no
loading or unloading; and, in the remainder, the loading or
unloading involves about 20 percent of working time.
Corey continually attempted to obtain work as a line
driver, with some success. He registered with the state
unemployment office and received unemployment pay for
the entire backpay period. See Fibreboard Paper Products
Co., 180 NLRB No. 133, and Keller Aluminum Chairs
Southern, Inc., 171 NLRB No. 158. Corey registered at the
hiring hall in the Redding office of Local 137 on a number
of occasions, and Business Representative Wood, who
considered him a top driver, was aware at all times of his
availability. See L Posner, Inc., 154 NLRB 202.5 He
uncontrovertedly testified, and I find, that he contacted a
large number of named trucking firms and sought
employment with little' success. He spent time daily at a
Redding truck service center where line drivers stop for
fuel, repairs, and food, and did obtain some work by
learning of opportunities from the drivers.
I find that he made a reasonable search for employment
throughout the backpay period. And, as pointed out by the
General Counsel, Respondent had unlawfully caused a
large trucking firm to terminate Corey and its objection to
his employment had not been withdrawn. See Cornwell Co.,
Inc., 171 NLRB No. 43. I note, too,- that the Board has
pointed out that discriminatees are not required to "lower
their sights" to take jobs not substantially equivalent with
their former posts. Southern Silk, 116 NLRB 769, and
5 Hence, I deem it not significant that he did not register each and every
month of the backpay period. The fact is that he was available at all times
except when working and, indeed, Wood did dispatch him to jobs In
Florence Printing Co., 158 NLRB 775, enfd. 376 F.2d 215
(C.A. 4).
Respondent has stressed that Corey, as is the fact, refused
to accept employment with Pacific Intermountain Express
at its terminals in Reno, Nevada; Sacramento, California;
and San Pablo, California. All of these would have required
a move of his family from Redding because the distances
were much too far for commuting. Corey also uncontro-
vertedly testified, and I find, that the Reno winters were too
severe for the health of his wife. The record further
disclosed that the Sacramento post was a type of work
known as volume tender work, this requiring a 12-hour shift
every other day for Corey whose age was 50. As noted,
Corey had decided to move to Stockton for his abortive hire
by LASME, but his reluctance to get burned a second time,
as shown in his testimony, is readily understandable.
Bearing in mind his long-term residence in Redding, his
home ownership, and one young child in school, his
decision was not unreasonable.
The facts here are quite similar to those in Florence
Printing Co. v. N.L.R.B., supra, where the court commented
that a discriminatee was not disqualified from backpay by
refusing an offer which required him to sell his home,
abandon his native community, remove one child from
school, and move 100 miles; the court noted that one was
not "necessarily obligated to accept employment at a
distance from his home." See also Oman Construction
Company, 144 NLRB 1534.
While there were no interim earnings in the first two
quarters of the backpay period, there were in the next three.
I find that Corey made a reasonable search for employment
and did not unjustifiably refuse to accept available jobs.
See Local 18, Bricklayers, Masons and Plasterers Interna-
tional Union of America, AFL-CIO (Union County Bldg.
Contractors Assn.), 188 NLRB No. 14.
I find that Lyle Corey is due from Respondent the sum of
money set forth in the backpay specification, namely,
$10,964, with interest at 6 percent per annum. I further find
that the sum of $420.80 is due and payable by Respondent
to the Western Conference of Teamsters Pension and Trust
Fund in his behalf.
RECOMMENDED ORDER
On the basis of the foregoing findings and conclusions, it
is ordered that Respondent, General Teamsters Local 439,
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen & Helpers of America, its officers, agents,
and representatives, forthwith make the respective pay-
ments described and specified above.
addition, Wood testified that Corey did speak to him about work as early
as November and December of 1967. He also testified that line drivers
need not register each month.