Interurban Gas Corp.

National Labor Relations Board - Board Decisions

Nov 6, 1964

149 N.L.R.B. 576 (N.L.R.B. 1964)

576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
er than Smith , to work for a period of 2 weeks in March 1964 does not establish
an act of discrimination against Smith . No evidence was adduced to show any
policy or practice on the part of the Company regarding recall of former em-
ployees for temporary work. Without more, I cannot draw any conclusion adverse
to the Respondent by reason of its failure to have offered Smith 2 weeks' temporary
employment in March 1964.15
Although the credited evidence relied upon by the General Counsel indicates
that Neumann considered Smith to be a "strong" union man , there is no proof
in this record that Neumann was opposed to the Union or objected to union
activities by the Company's employees. The General Counsel argues that Smith
was discharged because of his complaints to Neumann . Although Neumann
might have been irritated by some of Smith's complaints, the evidence does
not establish that Neumann was disposed to terminate Smith for that reason. Fur-
thermore , I find that Respondent for valid economic reasons during the month
of December 1963 reduced its complement of operating engineers to one and
its retention of Russell Mulley, an employee with 14 years' seniority with the
Company, who also was a member of the Union, instead of Smith, who had
only 3a years' service with the Company, has not been proved to have been
discriminatorily motivated. Accordingly, I find that General Counsel has not
proved by a preponderance of the evidence that Smith was terminated on Decem-
ber 27, 1963 , for discriminatory reasons.
CONCLUSIONS OF LAW
Respondent has not violated Section 8 (a)(1) and (3) of the Act as alleged
in the complaint.
RECOMMENDED ORDER
On the basis of the foregoing findings of fact and conclusions of law and
upon the entire record in the case , I recommend that the complaint be dismissed
in its entirety.
15 In reaching this conclusion I am cognizant of the testimony of Rodas that in November
1963 Neumann told him that Smith would not be back in the spring.
Interurban Gas Corporation and Donald Gillingham . Case No.
7-CA-3202. November 6, 1964
SUPPLEMENTAL DECISION AND ORDER
On January 29, 1962, the Board issued a Decision and Order in
the above-entitled case,' which was enforced by the United States
Court of Appeals for the Sixth Circuit by a decree entered on May 27,
1963 .1 Thereafter, pursuant to a backpay specification and ap-
propriate notice issued by the Regional Director for the Region 7, a
hearing was held for the purpose of determining the amount of back-
pay due to Donald Gillingham, the Charging Party in this case.
On March 10, 1964, Trial Examiner C. W. Whittemore issued his
attached Supplemental Decision, recommending the award of a spe-
cific amount of backpay to Gillingham, as of September 30, 1963,
plus an undetermined amount from that date to date of a valid offer
of reinstatement. Thereafter, the Respondent filed exceptions to the
Trial Examiner's Supplemental Decision and a supporting brief. It
1136 NLRB 604.
2 N.L.R.B. v. Interurban Gas Corporation , 317 F. 2d 724.
149 NLRB No. 57.
INTERURBAN GAS CORPORATION 577
also filed certain motions which are considered below. Thereupon,
the General Counsel filed an opposition to Respondent's motions-and
a brief in answer to the exceptions.
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 [Chairman McCulloch and Members Leedom and
Jenkins].
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. The Board has considered the entire
record in this case, including the Supplemental Decision, the excep-
tions, motions, and briefs, and hereby adopts the findings, conclu-
sions, and recommendations of the Trial Examiner with the follow-
ing additional comments.
Respondent's defense to the backpay specification was variously
expressed in its answer, in testimony and arguments made at the
hearing, in a motion to vacate or stay backpay proceedings which it
filed in the Sixth Circuit Court of Appeals,3 in a motion for leave
to amend its answer, and in a motion for leave to take additional
evidence. The defense, in its various manifestations, was considered
and rejected by the Trial Examiner. In substance it is that Gilling-
ham would have been terminated for nondiscriminatory reasons if he
had remained in Respondent's employ, and, consequently, that Re-
spondent is not obligated to reinstate him or to reimburse him for
pay lost after such termination would have occurred.
The Board found, in the original proceeding, that Gillingham
had been discharged on March 14, 1961, because of his activities on
behalf of a union. It thereby rejected Respondent's contention that he
had been discharged because of inefficiency and a shortage of gas
cylinders which it had discovered. Respondent now argues in this
proceeding that, after Gillingham's discharge, it became aware of
certain customer complaints about Gillingham's conduct as a driver-
salesman which would in any event have resulted in his discharge
shortly after the date of his discriminatory termination. We note,
however, that this information was available to Respondent at the
time of the first hearing, and although it did not call the complain-
ing customers as witnesses, Gillingham's alleged deficiencies were
thoroughly developed in the testimony of Respondent's officials. Our
finding as to the true reason for Gillingham's discharge on March 14,
1961, is now res adjudicata, and will not be disturbed. To the
extent that Respondent now argues that it should not be required
to reinstate Gillingham because it might mean a loss of those cus-
tomers who found him unsatisfactory, this conjectural eventuality
s Denied 55 LRRM 2299 ( C.A. 6), December 19, 1963.
770-076-65-vol . 149-38
578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cannot now be permitted to defeat Respondent's obligation to remedy
its violation of Gillingham's statutory rights.
Respondent further contends that it would have laid Gillingham
off for nondiscriminatory reasons the month following his actual dis-
charge, when it hired Allen, a serviceman, as replacement for
Janisse, a combination serviceman and driver. Janisse had taken
over Gillingham's driving duties after the latter's discharge. In effect
Respondent argues that it should not have to reinstate the victim of
its discrimination because it is better satisfied with its new employee
than with its former employees. We consider it quite irrelevant whe-
ther Allen is more competent than either of Respondent's former
servicemen.4 If Gillingham's reinstatement means that Allen is a
superfluous employee, this is a hazard that Respondent should have
foreseen. Nothing in our order would preclude Respondent, after it
reinstates Gillingham and provides him with sufficient opportunity to
prove himself as a driver-salesman, to exercise its normal non-
discriminatory business policies with respect to the retention or
termination of individual employees.
Finally, Respondent points to the fact that late in June 1962, 15
months after his discharge, it rehired Gillingham to do odd jobs at
his former rate of pay, and that a little more than a month later, it
laid him off when its odd jobs ran out. It argues therefrom that as
Gillingham's last layoff was for a nondiscriminatory reason, it has no
further obligation toward him. However, the essential point which
Respondent has ignored is that Gillingham was not recalled to his
former job as a driver or to any substantially equivalent job, as
required by our order in the -original proceeding. Moreover, in deter-
mining whether Respondent has yet met the obligation imposed by
that court enforced order, it is immaterial that no one was hired to
replace another employee who left in June 1962.5 It is clear from the
stipulation between the General Counsel and Respondent that Allen
was hired as part of the reshuffling of duties among Respondent's em-
ployees which took place after Gillingham's discharge. If Respondent
is inconvenienced or burdened by the obligation to reinstate Gilling-
ham, such inconvenience or burden is the consequence of its own ac-
tion and should not be allowed to affect adversely the amount of
backpay due to Gillingham.
Respondent's motions for leave to take additional evidence and for
leaveto amend its answer are denied, since the facts proposed to be
adduced, even if established, would not, in any event, affect the deci-
sion we reach here.
4 Respondent's motion for leave to take additional evidence relates to Allen 's greater
competency than the other servicemen's.
5 Respondent 's motion for leave to amend its answer relates to the fact that no one was
hired to replace Gillingham after his second period of employment.
INTERURBAN GAS CORPORATION 579
ORDER
On the basis of the foregoing Supplemental Decision and the
entire record in his case, the National Labor Relations Board hereby
orders that the Respondent, Interurban Gas Corporation, its officers,
agents, successors, and assigns, shall pay to Donald Gillingham, as
net backpay herein determined to be due (less any amounts required
to be withheld by law) the amount set forth by the Trial Examiner
in his Supplemental Decision.
SUPPLEMENTAL TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
On January 29, 1962, the National Labor Relations Board issued its Decision
and Order in the above-entitled case,' adopting in full Trial Examiner Ramey
Donovan's Intermediate Report and directing the Respondent immediately to offer
employee Donald Gillingham full reinstatement to his former or substantially
equivalent position as driver-salesman. On May 27, 1963, the Court of Appeals
for the Sixth Circuit entered its Decree enforcing in full the backpay provisions
of the Board Order [317 F. 2d 724]. A controversy arose over the amount
of backpay due Gillingham. On October 15, 1963, the Acting Regional Director
for Region 7 issued his backpay specification and notice of hearing thereon. On
November 11, 1963, the Respondent filed an answer to the specification, admitting
certain allegations and denying others. Pursuant to notice, a hearing was held in
Detroit, Michigan on January 27, 1964, before Trial Examiner C. W. Whittemore.
At the hearing General Counsel and the Respondent were represented by counsel
and were afforded full opportunity to present evidence pertinent to the issues.
After the close of the hearing a stipulation from the parties relating to the hire
of one William Weber was received. While the Trial Examiner fails to see the
materiality of it, it may be made a part of the record herein.
Upon the record thus made, and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
A. The issues
In his specification and in full accordance with Board policy, the Acting
Regional Director has set forth in detail, by year and quarter, the gross backpay
due Gillingham, his net earnings, and the net backpay, during a period from
the first quarter of 1961 through the third quarter of 1963. The attached sum-
mary appears marked "Appendix."
The specification further alleges that to date the Respondent has failed to
offer Don Gillingham full reinstatement to his former or substantially equivalent
position as required by the Board order, and that therefore the backpay period
has not yet ended.
The Respondent's answer does not question the accuracy of the backpay calcula,
lions,' but denies the periods specified. It affirmatively claims that Gillingham
was offered and accepted reinstatement on June 25, 1962.
As apparent afterthoughts, the points not being set out in the answer,2 at
the hearing counsel for the Respondent introduced two additional contentions:
(1) because of new information received by management Gillingham would
have been discharged for cause on March 16, 1961, 2 days after his unlawful
discharge on March 14; and (2) because of hiring a new employee, one Allen, on
April 10, 1961; management would have laid Gillingham off on that date.
3135 NLRB 604.
2 In its answer, the Respondent refers to a certain "Motion To Vacate-or Stay Backpay
Proceedings" it had filed with the United States Court of Appeals for the Sixth Circuit.
What the grounds for this motion may be, -the record before the Trial Examiner does not
reveal. Even if they include the two points noted above, sinde the motion was not filed
until November 7, 1963, it is clear that they were not raised as issues until 2% years
•after the alleged events.
5,80 DECISIONS , OF II?ATIONAL LABOR, RELATIONS BOARD
Thus, in effect, in its effort to delay the course of compliance with a court
decree, the Respondent bestraddles three stools: it claims that backpay ended
on March 16 and April 10 , 1961 , and on June 25, 1962.
B. The issues, of March 14 and April 10, 1961
At the hearing counsel for the Respondent conceded that "the issue of whether
or not Gillingham would have been discharged on any date subsequent to March 14
(1961 ) was not in any way an issue in the previous case, nor was any argument
made on this problem , nor was any decision made on those issues ." The original
hearing before Trial Examiner Donovan was held on September 12, 1961, many
months after the two dates in question.
Although the Trial Examiner is inclined to believe that such questions are
belatedly raised , their merits will be here considered.
At the opening of the hearing counsel for the Respondent expressed, in effect,
his own doubt as to the validity of the first point: the claim that because of
information received between March 14 and 16 , Gillingham would have been
discharged for cause on the latter date. Counsel admitted that April 10, 1961,
was the "more important" date he was claiming.
Two witnesses , Alden Day and Jessie Smith , were called by the Respondent
for the apparent purpose of supporting its contention as to the March 16 date.
The Trial Examiner is unable to rely upon the testimony of either as such support.
Early in his testimony Day could place neither the name nor the identity
of Don Gillingham , and merely remarked that he had had "three different drivers
since 1962"-which was a year after Gillingham had been unlawfully dis-
charged . Not until counsel for the Respondent stated, in Day's presence , that he
intended to have him testify that he had complained to management on "the
14th or 15th of March" and had said he "would no longer buy gas from this
company," did Day then agree that "service rendered "-without identifying
the driver-had at some time been unsatisfactory. And when counsel for the
Respondent pointed out Don Gillingham in the bearing room Day agreeably
said that he was the man who had given "unsatisfactory service ." But contrary
to counsel 's leading statement , Day said "We never called Interurban ," but merely
"complained" to the driver who took Gillingham's place after the discharge.
And he said that he did not speak to the driver about the matter until "about a
week after" the replacement.
Obviously Day's complaint , if any, could not have come to management's
attention until after March 16.
Smith 's testimony was equally unimpressive . Whatever the reason, her testi-
mony was so colored and exaggerated as to nullify completely the Respondent's
carefully prepared position. She claimed that she had made many complaints
concerning Gillingham , and to General Manager Millstead himself , before the
discharge and while he was still working . She further stated that all such_com-
plaints were made while he was still driving.
Obviously, had management considered her complaints , if any, as sufficient
to warrant a discharge , she would have been called as a witness at the previous
hearing.
In short , the Trial Examiner concludes and finds that there is no credible
evidence in the record to support the Respondent 's belated claim that Gillingham
would have been discharged on March 16 , 1961, and that the backpay period
ends of that date.
As to the April 10 cutoff date, it is the substance of the claim made by
Ralph Wyatt , service manager , that Don Gillingham , because of lack of seniority,
would have been laid • off on that date, when he hired a new employee, one
Allen. In short , Wyatt said that he had been seeking, for "several " months
before April, a "qualified" serviceman to replace two "unqualified" service men
who had been doing this work for a "few " months, employees Janisse and
Bill Gillingham , brother of Don.
Completely depriving Wyatt's claim of credibility is the fact that when Allen
was hired , he was not assigned to relieve Bill Gillingham , the one serviceman
against whom the manager made specific and serious allegations of work endang-
ering lives ., Janisse , who had worked part time on service , was relieved • of this
work and put - on Don Gillingham 's job as driver-salesman immediately after
the latter 's discharge . Bill Gillingham remained at his regular service work
for several months thereafter , until he finally and voluntarily quit.
There is no credible evidence , in the opinion of the Trial Examiner, warranting
the conclusion that April 10, 1961, should be the cutoff date for backpay due
Don Gillingham.
SECURITY ALUMINUM COMPANY
C. The issue of reinstatement
581
There is agreement that Don Gillingham was reemployed by the Respondent
on June 25 , 1962, and terminated again on August 4, 1962. There is disagree-
ment as to whether this reemployment constituted compliance with the Board
and court order of reinstatement.
The evidence fully supports General Counsel's contention that the Board order
requiring reinstatement has not yet been complied with.
When Don Gillingham was rehired he was not put back on his original
or any other driver -salesman job, but was assigned to such tasks as painting
pipes, cutting grass and weeds, and according to Millstead was let go in August
when there was no more work for him to do of this nature.
D. Conclusions
The Trial Examiner concludes and finds that the Respondent has failed to meet its
burden of presenting credible evidence to refute or modify the backpay specification.
The attached summary of such specification is adopted in full by the Trial
Examiner, and appears marked "Appendix."
Upon all the foregoing findings and conclusions , including the adopting
of the specification , it is concluded that the obligations of the Respondent as
of September 30, 1963 , to make whole employee Don Gillingham will be dis-
charged by payment to him of the amount of $9,846 .07, plus an undetermined
amount of backpay from October 1 , 1963 , to the date of a valid offer of reinstate-
ment , less any tax withholdings as required by Federal, State, and local law.
APPENDIX
Year and quarter Weekly
salary
Number of
weeks
Gross
backpay
Net interim
earnings
Net
backpay
1961-1 ------------------------------------ $105.00 23,1 $273 . 00 0 $273.00
1961-2 ------------------------------------ 105.00 13 1 , 365.00 0 1 , 365.00
1961-3 ------ ------------------------------ 105.00 13 1,365 . 00 $64.00 1,301.00
1961-4------------------------------------ 105.00 13
J 1,365.00 1
156.60 1,233.40l 25 . 00 j
1962-1 ------------------------------------ 105.00 13 1 , 365.00 921 . 39 443.61
1962-2 ------------------------------------ 105.00 13 1,365 . 00 135 . 00 1,230.00
1962-3 ------------------------------------ 105.00 13 1 , 365.00 525 . 00 840.00
1962-4---------------- -------------------- 105.00 13
1,365.00 1
50.40 1,339.601 25.00 J
1963-1___ ___ _____________________________
105.00 1 ------------ ------------_
114.40 12 1,477 . 80 1,056 . 32 421.48
1963-2 ------------------------------------ 114.40 13 1 , 487.20 740. 27 746.93
1963-3 ------------------------------------ 114 . 40 13 1,487 . 20 835 . 15 652.05
Total net backpay---------------------- - ------------ ---------`-- ------------ ------------ 9,846.07
Security Aluminum Company and Truckdrivers and Helpers
Union Local No. 164, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen , and Helpers of America, Ind.,
Petitioner . Case No. 7-RC-6265. November 6, 1964
DECISION AND DIRECTION OF ELECTION
Upon a petition duly filed under Section 9(c) of the National
Labor Relations Act, a hearing was held before Hearing Officer
James R. McCormick. The Hearing Officer's rulings made at the
hearing are free from prejudicial error and are hereby affirmed.
149 NLRB No. 61.