Glenn���s Trucking Co.

National Labor Relations Board - Board Decisions

Mar 21, 2005

344 N.L.R.B. 377 (N.L.R.B. 2005)

GLENN’S TRUCKING CO.
344 NLRB No. 41
377
Glenn’s Trucking Co., Inc. and United Mine Workers
of America. Case 9–CA–35666
March 21, 2005
SUPPLEMENTAL DECISION AND ORDER
REMANDING
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On September 25, 2003, Administrative Law Judge
Lawrence Cullen issued the attached supplemental deci-
sion. The Respondent filed exceptions, a supporting
brief, and a reply brief. The General Counsel filed an
answering brief.
The Board has considered the supplemental decision
and the record in light of the exceptions and briefs and
has decided to affirm the judge’s rulings,1 findings, and
conclusions as modified and to adopt the recommended
Order as modified.
In this compliance proceeding, the judge concluded
that the compliance specification accurately set forth the
backpay due the named discriminatees.2 We adopt the
judge’s supplemental decision in all respects except that
we shall modify the cutoff date for the backpay due dis-
criminatee Michael Hayes.
Backpay Period for Michael Hayes
The judge concluded that discriminatee Hayes was en-
titled to backpay for the entire backpay period ending
September 3, 1998 (the date the Respondent offered
Hayes reinstatement). He rejected, as unsupported by the
evidence, the Respondent’s contention that Hayes’ enti-
tlement to backpay should be tolled no later than No-
vember 22, 1997.
The Respondent excepts, alleging that the date of
Hayes’ disabling stroke was November 22, 1997, and
that his backpay should therefore be tolled as of that
date. In the alternative, the Respondent submits that
Hayes failed to mitigate damages. We do not pass on the
Respondent’s former contention, but we agree with its
alternative claim.
As more fully discussed by the judge, Hayes initially
told the Region’s compliance officer that his stroke oc-
curred on November 22, 1997, but he later reported that

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
2 In the underlying case, the Board found that the Respondent vio-
lated Sec. 8(a)(3) and (1) by delaying the employment of, or denying
employment to, 23 named discriminatees. See Glenn’s Trucking Co.,
Inc., 332 NLRB 880 (2000), enfd. 298 F.3d 502 (6th Cir. 2002).
he believed his stroke occurred on November 22, 1999.
The Respondent submits that the evidence supports a
finding that Hayes’ stroke occurred on the earlier date,
but the judge found to the contrary. However, we need
not resolve the dispute regarding the date of Hayes’ dis-
ability. In the hearing, the Respondent adduced testi-
mony from the Board’s compliance officer that Hayes
filed four applications for employment between August
and October 1997, and none thereafter.
A discriminatee is entitled to backpay if he makes a
reasonably diligent effort to obtain substantially equiva-
lent employment. See Moran Painting, Inc., 330 NLRB
376 (1999). However, a discriminatee’s search for work
must be more than sporadic. Id. at 376. Here, there is no
evidence that Hayes made any effort to seek employment
after October 1997. Therefore, we find that the Respon-
dent has satisfied its burden of establishing that Hayes
failed to exercise reasonable diligence in searching for
work after October 1997, and thus Hayes failed to miti-
gate damages after that date. See Moran Painting, supra
(employee Dixon). Accordingly, we find that backpay
for Hayes is tolled as of October 31, 1997.
ORDER
The National Labor Relations Board adopts the rec-
ommended Supplemental Order of the administrative law
judge as modified herein and orders that the Respondent,
Glenn’s Trucking Co., Inc., Hazard, Kentucky, its offi-
cers, agents, successors, and assigns shall satisfy the ob-
ligation to make whole the following discriminatees by
paying them the following amounts, together with inter-
est thereon accrued to the date of payment computed in
the manner described in New Horizons for the Retarded,
283 NLRB 1173 (1987), minus tax and withholdings
required by Federal and State laws.
Reed Brewer $ 2,626
Kermit Campbell 9,205
Clyde David Cockrell 9,963
John M. Fugate 13,490
Spencer Godsey 8,315
James H. Haddix 2,866
Tommy Hurley 16,416
Destry Mullins 166
Ray Napier 377
Raymond Robinson 2,903
James Larry Stacy 10,062
Kenneth Williams 0
Douglas E. Bush Jr. 756
Charles Caudill 10,919
Mike Combs 10,073
Roy Gayheart 253
Harold Guerra 14,775
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD378
Danny W. Lovins 14,355
Grover Napier 8,799
Jerry Noble 3,417
Leander Ronk 377
Donnie Strong 7,370
TOTAL: $147,483
IT IS FURTHER ORDERED that this case is remanded to
Region 9 for the limited purpose of recalculating the
backpay award for Michael Hayes consistent with this
Supplemental Decision and Order Remanding.
Eric J. Gill, Esq., for the General Counsel.
George J. Miller, Esq., for the Respondent.
Charles H. Dixon, for the Charging Party.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
LAWRENCE W. CULLEN, Administrative Law Judge. This
backpay case was heard before me on July 15, 2003, in Hazard,
Kentucky. This case arises from a decision issued by the Na-
tional Labor Relations Board (the Board) on October 25, 2000,
(Glenn’s Trucking Co., 332 NLRB 880 (2000)), and affirmed
by the United States Court of Appeals, Sixth Circuit on May
23, 2002 (Glenn’s Trucking Co. v. NLRB, Nos. 99-2358; 01-
1053). The Board held and the Court affirmed that Respondent
Glenn’s Trucking Co., Inc., violated Section 8(a)(1) and (3) of
the National Labor Relations Act (the Act) by failing to hire
employees who were listed on a preferential hiring list pre-
sented to Respondent by the United Mine Workers of America
after Respondent was awarded a coal hauling contract by Cy-
press Mountain Coal Corporation. The Board held that the
General Counsel met its evidentiary burden under Wright Line,
251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981),
cert. denied 445 U.S. 989 (1982), with respect to Respondent’s
refusal to hire or delay in hiring, the named discriminatees for
the Starfire Mine as set out in the Board’s and the administra-
tive law judge’s decision. The Board further concluded that
Respondent failed to satisfy its Wright Line burden by showing
that it would not have hired the discriminatees or would have
delayed in hiring them or offering them jobs, even in the ab-
sence of their union sympathies. FES, 331 NLRB 9, 12 (2000).
Applicable Legal Principals for Backpay Cases
See Minette Mills Inc., 316 NLRB 1009, 1010–1011 (1995).
When loss of backpay is caused by a violation of the Act, a
finding by the Board that an unfair labor practice was commit-
ted is presumptive proof that some backpay is owed. Arlington
Hotel Co., 287 NLRB 851, 855 (1987), enfd. on point 876 F.2d
678 (8th Cir. 1989). With regard to the end of the backpay
period an offer of reinstatement “must be unequivocal, specific
and unconditional” A-1 Schmidlin Plumbing & Heating Co.,
312 NLRB 191 (1993). In compliance proceedings General
Counsel bears the burden of proving the amount of gross back-
pay due. Florida Tile Co., 310 NLRB 609 (1993). The Gen-
eral Counsel has discretion in selecting a formula which will
closely approximate the amount due. The General Counsel is
not required to determine the exact amount due or to adopt a
different and equally valid formula which may yield a some-
what different result. NLRB v. Overseas Motors, 818 F.2d 517
(6th Cir. 1987). The administrative law judge in a compliance
proceeding may recommend a different method to the Board
than the one asserted by the General Counsel when a more
accurate method is established in the record. Frank Mascali
Construction, 289 NLRB 1155, 1157 (1988). The burden is on
the employer who committed the unfair labor practice to estab-
lish facts that reduce the amount due for gross backpay. Flor-
ida Tile, supra. The burden of showing any interim earnings or
a willful loss of interim earnings falls to the employer. Arling-
ton Hotel, supra. However, the General Counsel has a volun-
tary policy to assist in gathering this information and including
it in the compliance specification, Florida Tile, supra. Interim
employment means comparable work (substantially equivalent
employment). A discriminatee’s obligation to mitigate backpay
is to assert a reasonable standard of diligence in seeking em-
ployment Florida Tile, supra. In backpay cases the Board ad-
heres to the standard that any doubts must be resolved against
the wrongdoer whose violation of the Act was the cause of the
uncertainty. Intermountain Rural Electric Assn., 317 NLRB
588 (1995).
In his opening statement the General Counsel noted that the
backpay specification lists 23 named discriminatees and sets
out the gross backpay for each discriminatee as well as the net
backpay. He also contended that all attempts by Respondent to
raise issues not related to the derivation of backpay liability that
have already been litigated in the underlying case must be re-
jected. He contends that the date of the commencement of
liability for calculating backpay has already been fully litigated
in the underlying trial.
In his opening statement Respondent’s counsel contended
there are three and possibly four issues to be litigated in this
case. The first is the duration of the backpay period for each
discriminatee which issue he contended was not decided by the
Board as reflected in the last paragraph of the circuit court
opinion where the court stated, “The exact start date for the
backpay period for each of the discriminatees is yet to be de-
termined at a compliance proceeding. Based upon the General
Counsel’s representation that July 26, 1997, is simply the earli-
est date from which backpay can accrue, we find no error in the
Administrative Law Judge’s determination.” From this Re-
spondent’s counsel concludes that the backpay period has not
been decided and is yet to be decided at this hearing. Respon-
dent’s counsel contends the method of computing the gross
backpay used by the General Counsel is too complicated and
that under Board policy as set forth in the Board Case Handling
Manual, there is an easier, different way to do it. A third possi-
ble issue may be the accuracy of the calculations. A fourth
issue raised as an affirmative defense is the failure of discrimi-
natee Mike Hayes to mitigate damages which Respondent’s
counsel contended he will rely on cross-examination to estab-
lish as he did not foresee that he would offer any proof of the
alleged failure to mitigate in his case in chief. Respondent’s
posthearing Exhibits 7 and 8 are received in evidence.
GLENN’S TRUCKING CO. 379
The General Counsel’s Case
In support of its case the General Counsel called as a witness
John Grove, the compliance officer Region 9 of the Board, who
identified the compliance specification and underlying docu-
mentation. He testified at length as to how he had prepared the
compliance specification, including the methodology used and
the basis for the establishment of the parameters of the backpay
period and the arrival at the gross backpay and net backpay for
each of the discriminatees. He also testified concerning infor-
mation regarding the various discriminatees’ availability for
work during the backpay period.
The backpay specification lists 23 discriminatees and their
gross backpay, interim earnings, and net backpay owed them.
The specification defines the starting date for backpay calcula-
tions as August 10, 1997, which is the date by which Respon-
dent had hired a sufficient number of employees that, absent
discrimination, all of the discriminatees would have been hired.
The administrative law judge in the underlying case found:
. . . respondent (in August 1997) hired 28 employees; 6 of
these were former Leatherwood employees, but 22 were not;
of these 22 non-Leatherwood employees, only 1 employee
whose name appeared on the Union’s ‘Preferential Hiring
List’ (Durham) was hired. Respondent has emphasized that it
rejected 100 applicants in addition to the 100 other rejected
applicants that applied in August, or before. In fact, Baker’s
secretary Hall testified that she could find no rejected applica-
tions that were filed in the beginning of operations, other than
those of the alleged discriminatees. Therefore, the August
figures alone are evidence of a discriminatory motive . . . .
By the week of August 10, 1997, Respondent had hired
enough employees for drivers’ jobs that all of the discrimina-
tees would have been hired to perform, absent discrimination.
During the week of August 10, 1997, Respondent had em-
ployed at least 36 employees to drive trucks. In this case Re-
spondent’s Exhibit 2 was received in evidence but was not
submitted at the underlying hearing. It shows that Respondent
hired a sufficient number of employees during August 1997,
that the discriminatees could have been hired. General Counsel
notes that although the hire dates indicated in Respondent’s
Exhibit 2 were spread through August 1997, most of the em-
ployees listed on the document are shown to have been hired in
the beginning and middle of August 1997, and that several of
the employees on this list were hired prior to August 10, 1997,
but to formulate the starting date, the determination was made
to use August 10, 1997, as the beginning date to remedy the
unfair labor practice.
The backpay period ends, as shown on the backpay specifi-
cation, on September 3, 1998, which was the date Respondent
made its offer of instatement for the discriminatees. However,
there are exceptions for Charles Caudill, whose backpay period
ends on January 31, 1998; for Mike Combs, whose backpay
period ends on March 9, 1998; for John M. Fugate, whose
backpay period ends on March 9, 1998; for Spencer Godsey,
whose backpay period ends on December 15, 1998; for Ray
Napier, whose backpay period ends on September 8, 1997; for
Leander Ronk, whose backpay period ends on September 8,
1997; and for James L. Stacy, whose backpay period ends on
January 15, 1998.
Gross backpay was calculated on a quarterly basis. Each
quarter has 13 weeks. Seven weeks of the third quarter of 1998,
fell within the backpay period. Interim earnings of wages
earned by the discriminatees during the backpay period were
deducted from their gross backpay to arrive at the net backpay
owed to the discriminatees.
The compliance officer used an excel spreadsheet to calcu-
late gross backpay using the quarterly payroll summaries sub-
mitted to the Region by the Respondent. For the first quarter of
the backpay period gross backpay was based upon the wages of
employees who were employed as of August 3, 1997, through
the end of the backpay period. For the subsequent quarters,
only the wages of employees who were employed in the quarter
prior to the indicated quarter and during the quarter after the
indicated quarter were used. This was done to include the gross
wages of only those employees who were fully employed dur-
ing the quarter being measured.
Only employees who had earned more than $1000 in the
quarter being measured were used. The compliance officer
assumed that employees who earned less than $1000 during a
quarter did not work for part of the quarter because of an injury,
illness, or other reason. He used only the wages of employees
who had earned the entire quarter to ensure fairness and to
avoid skewing the calculations.
The gross backpay for the last quarter in the backpay period,
or the third quarter in 1998, was calculated differently. Re-
spondent did not supply the Region with quarterly payroll
summaries for that quarter. As a result the compliance officer
calculated gross figures for that quarter by computing the me-
dian of the highest wages and the lowest wages for the previous
quarters in the backpay period. Those wages of employees that
fell within the median range were then used to calculate the
backpay for the third quarter of 1998. The compliance officer
testified that the median wages of the employees who had
worked for Respondent during the backpay period rather than
the mean wages were used because there were a number of
employees who had only worked for Respondent for a short
time. Using a mean wage would thus skew the backpay too
low.
At this hearing Respondent attempted to relitigate issues that
had been litigated during the underlying trial. Respondent at-
tempted to show it was only interested in hiring truckdrivers
who had Class A commercial drivers’ licenses and who were
“experienced” as tractor trailer drivers. However, the adminis-
trative law judge totally rejected Respondent’s defense that the
discriminatees were not hired because they lacked the qualifica-
tions for the positions. He stated, “I have found that all 23 of
the alleged discriminatees except Mullins, Ronk, and Ray
Napier possessed class A licenses when they applied for work
on July 11 or 14, or they secured class-A licenses immediately
after they applied, and they did so at Baker’s (Respondent’s
owner’s) instructions . . . .” The General Counsel contends that
this issue has thus been fully litigated and must be rejected,
citing Task Force Security & Investigations, 323 NLRB 674 fn.
2 (1997), citing Kidd Electric Co., 322 NLRB 33 (1996), as a
respondent may not relitigate in a compliance proceeding any
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD380
matters previously decided in the prior unfair labor practice
proceeding.
General Counsel also contends that Respondent’s attempt to
provide its own “compliance specification” in order to limit its
backpay liability should be rejected. Respondent’s introduction
of alternative methods to derive backpay formula does not
prove that the backpay specification prepared by the Board is
erroneous or incorrect in any way. The Board’s test for fash-
ioning an appropriate backpay formula is that the backpay for-
mula not be arbitrary. The goal of any method for computing
backpay remedies is to place the discriminatees in the posture
that they were likely to have been in had respondent treated
them in a nondiscriminatory manner. To the extent that a rea-
sonable approach to allocating and computing backpay is im-
precise, the deficiency is construed against the wrongdoer.
Intermountain Rural Electric Assn., supra.
Respondent’s Case
Respondent contends in brief that the gross backpay and net
backpay for each discriminatee, as shown on Appendix A of the
Compliance Specification, as amended at the hearing in this
matter is incorrect. Respondent does not dispute the allegations
in the Compliance Specification with regard to interim earnings
of discriminatees, except for discriminatee Mike Hayes. The
compliance officer testified that Hayes told him in an interview
that he had suffered a disabling stroke on November 22, 1997.
Hayes later called him back and told him that the correct date
when he suffered the stroke was November 22, 1999, and he
believes Hayes called him back and confirmed this. He testi-
fied further that “I am quite certain he checked and called back
and reconfirmed that it was ‘99.’” Respondent also asked the
compliance officer on cross-examination whether the unem-
ployment period extending into 1999 was an unusually long
period of unemployment warranting “special attention.” The
compliance officer testified this was not an unusually long pe-
riod of unemployment and particularly since it was in Hazard,
Kentucky. On redirect the compliance officer testified he re-
ceived a report from Hayes listing four separate employers
where he searched for work. The report also showed that he
had registered for work with unemployment services. All the
places he applied for work were listed for the period from Au-
gust to October 1997, with no indication that he made any sub-
sequent efforts to find employment.
Respondent also contends that the correct gross backpay fig-
ures are shown on its Exhibit 7 which is its post-hearing exhibit
of calculations made by Respondent’s paralegal, Sarah Vander-
grift, who also testified at the hearing. Under the methodology
of this exhibit, the gross backpay figures are attained by assum-
ing that the discriminatees would have filled half of all open-
ings for tandem truckdrivers and would have been hired in
order of seniority. In the alternative if the discriminatees were
qualified to fill tractor-trailer openings from the time they first
applied for work, the Respondent’s position is that the dis-
criminatees would have been hired to fill half of all openings
for drivers and the correct gross backpay figures are set forth on
Respondent’s Exhibit 6. Finally, and also in the alternative, if
it is found that the discriminatees would have been hired by the
week of August 10, 1997, then Respondent’s position regarding
gross backpay is shown on Respondent’s Exhibit 5.
Analysis
I find that the compliance specification as amended at the
hearing with respect to Mike Combs prepared by the compli-
ance officer for the calculations of backpay is correct and that
the discriminatees should be awarded the sums of backpay as
set out in the amended compliance specification plus interest as
computed in New Horizons for the Retarded, 283 NLRB 1173
(1987), at the “short term Federal rate” for underpayment of
taxes as set out in the 1986 amendment to 26 U.S.C. Section
6621. I find no merit to any of the Respondent’s defenses in
the backpay hearing substantially for the reasons asserted by
the General Counsel in his opening statement and brief and
under the standards set out in the above-cited case law.
Initially, the discriminatees incurred a loss of backpay
caused by Respondent’s violation of the Act. Minette Mills,
supra; Arlington Hotel, supra. The end of the backpay period is
undisputedly on September 3, 1998, with the exception of cer-
tain employees as set out above. Schmidlin Plumbing, supra.
General Counsel has met his burden of proof of the amount of
gross backpay. The General Counsel has properly exercised his
discretion by the use of the formula utilized by the compliance
officer in calculating backpay in this case. The record supports
a finding that the compliance specification and the calculations
used to derive the net backpay were not arbitrary but were a
reasonable method of arriving at a reasonable approximation of
the amounts due the discriminatees. Florida Tile, supra, NLRB
v. Overseas Motors, supra. I do not find that the Respondent
has established any facts that would require the acceptance of
its version of what the compliance schedule, formula of calcu-
lation and backpay should reflect. Respondent has not met its
burden of establishing any facts which would or should super-
sede the Compliance Specification prepared by the compliance
officer in this case. Arlington Hotel, supra. I find as contended
by the General Counsel that much of Respondent’s concerns in
this case such as its discussion regarding the qualifications of
the applicants have been resolved by the administrative law
judge in the underlying case as upheld by the Board and the
Sixth Circuit Court of Appeals. Respondent’s efforts are
merely an attempt to relitigate matters that have been resolved
and are not properly a matter to be raised in a compliance hear-
ing. Florida Tile, supra.
With respect to the issue of the proper cutoff date of backpay
for Michael Hayes, and with respect to Respondent’s conten-
tion that Hayes did not engage in a meaningful search for work
during the backpay period, the Respondent put on no evidence
whatsoever to support its position that Hayes’ backpay should
be cut off in 1997, because of a disabling stroke and that he
engaged in a willful loss of interim earnings during the backpay
period. It is the Respondent’s burden to establish facts that
reduce the amount due for gross backpay or a willful loss of
earnings. With respect to the proper cutoff date of backpay for
Hayes because of his stroke, the Respondent could have sub-
poenaed medical records or otherwise verified that correct date.
Any doubt concerning this date must be resolved against Re-
GLENN’S TRUCKING CO. 381
spondent as the wrongdoer whose unlawful conduct gave rise to
the uncertainty. Florida Tile, supra.
The applicable backpay as set out in the compliance specifi-
cation as amended at the hearing is as follows:
Reed Brewer $ 2,626 Douglas E. Bush Jr. $ 756
Kermit Campbell 9,205 Charles Caudill 10,919
Clyde David Cockrell 9,963 Mike Combs 10,073
John M. Fugate 13,490 Roy Gayheart 253
Spencer Godsey 8,315 Harold Guerra 14,775
James H. Haddix 2,866 Michael Hayes 22,909
Tommy Hurley 16,416 Danny W. Lovins 14,355
Destry Mullins 166 Grover Napier 8,799
Ray Napier 377 Jerry Noble 3,417
Raymond Robinson 2,903 Leander Ronk 377
James Larry Stacy 10,062 Donnie Strong 7,370
Kenneth Williams 0
CONCLUSIONS OF LAW
1. The General Counsel has met its burden of establishing
the backpay due the discriminatees as set out above.
2. The Respondent has failed to establish that the Compli-
ance Specification as amended at the hearing is incorrect.
3. The Respondent has failed to establish that the calculation
of the backpay of Michael Hayes is incorrect because of an
improper date for the end of his backpay period as a result of a
disabling stroke.
4. The Respondent has failed to establish that Michael
Hayes incurred a willful loss of earnings during the backpay
period.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended1
ORDER
The Respondent, Glenn’s Trucking Co., Inc., its officers,
successors, and assigns shall pay to the discriminatees the
amounts set out above opposite their names with interest.

1 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.