K.C. Cartage, Inc.

National Labor Relations Board - Board Decisions

Jun 23, 1992

307 N.L.R.B. 934 (N.L.R.B. 1992)

934
307 NLRB No. 147
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The name of the Charging Party has been changed to reflect the
new official name of the International Union.
2 Of the nine discriminatees named in the compliance specification,
the Respondent disputed only the amounts of backpay alleged as to
two, Lonsinger and Boese. The judge’s supplemental decision
awarded backpay only to these two discriminatees, but noted in pass-
ing that the Respondent did not dispute the amount of backpay al-
leged to be due the other seven. The General Counsel excepted to
the judge’s apparently inadvertent failure to award backpay to those
seven discriminatees. We grant the General Counsel’s exception in
this regard, and award backpay in accordance with the General
Counsel’s compliance specification.
1 The underlying Board Decision and Order dated May 30, 1990,
finding that Respondent had unlawfully discharged nine unfair labor
practice strikers in violation of Sec. 8(a)(3) of the Act was enforced
by the U.S. Circuit Court of Appeals for the Sixth Circuit on April
1, 1991.
2 General Counsel contended at the hearing that Respondent’s an-
swer should be stricken as insufficient under the Board’s Rules and
Regulations as to discriminatees Boese and Lonsinger and moved
that summary judgment be entered on behalf of General Counsel.
Respondent was permitted at the hearing to amend its answer to set
out a theory of its dispute with the formula applied to determine
Boese’s backpay. The answer being deemed by me to be otherwise
sufficient, General Counsel’s motions were denied.
3 All dates refer to 1989 unless otherwise indicated.
K.C. Cartage, Inc. and Local 299, International
Brotherhood of Teamsters, AFL–CIO.1 Case 7–
CA–29730
June 23, 1992
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On February 25, 1992, Administrative Law Judge
Peter E. Donnelly issued the attached supplemental de-
cision. The General Counsel filed exceptions and a
brief in support.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the supplemental decision
and the record in light of the exceptions and brief and
has decided to affirm the judge’s rulings, findings, and
conclusions as modified, and to adopt the rec-
ommended Order as modified.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, K.C.
Cartage, Inc., Carleton, Michigan, its officers, agents,
successors, and assigns, shall take the action set forth
in the Order.
IT IS FURTHER ORDERED that the Respondent shall
pay to the following individuals2 the amounts of back-
pay set forth in the General Counsel’s backpay speci-
fication, with interest thereon to be computed in the
manner prescribed in New Horizons for the Retarded,
283 NLRB 1173 (1987), and F. W. Woolworth Co., 90
NLRB 289 (1950). The amounts of backpay are as fol-
lows:
Timothy Carpenter $2,580.77
David Herrara 1,900.00
Willie Hodges 2,159.88
Sharon Jones 1,544.00
Mark Milioni 2,028.00
Andrew Roof 1,206.00
Joseph Salisbury 1,944.75
John Ciaramitaro, Esq., for the General Counsel.
Kenyon S. Calendar, Esq., of Carlton, Michigan, for the Re-
spondent.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
PETER E. DONNELLY, Administrative Law Judge. A dis-
pute having arisen over the amount of backpay due,1 the Re-
gional Director, on May 31, 1991, issued a compliance speci-
fication and notice of hearing alleging an amount of net
backpay due to each of the nine discharged unfair labor prac-
tice strikers. Respondent, K.C. Cartage, Inc., represented by
its president, Kenyon S. Calendar, responded by a letter
dated August 13, 1991, stating that it had no dispute with the
amounts of backpay due to and on behalf of seven of the
nine discriminatees. Those discriminatees were Timothy Car-
penter, David Herrara, Willie Hodges, Sharon Jones, Mark
Milioni, Andrew Roof, and Joseph Salisbury. Calendar does,
however, dispute the amounts of backpay due to and on be-
half of two discriminatees, Mike Boese and Russell
Lonsinger. A hearing was held before me on October 15,
1991. Subsequently, briefs were filed on behalf of Respond-
ent and General Counsel, which have been duly considered.2
A. Facts
1. Boese
It was the practice of Respondent to employ driver train-
ees. This was how Boese came to work for Respondent ap-
proximately a week before the unfair labor practice strike
began on September 25, 1989.3 Boese was not compensated
by Respondent during his short employment prior to his dis-
charge on September 25. However, the record discloses he
was working with the expectation that following a short
training period he would be placed on the payroll as a paid
employee. Respondent’s payroll records for the year 1989
disclose that 10 individuals thereon classified as trainees
were compensated while employed in that classification.
Lonsinger was Boese’s trainer. Lonsinger testified that he
was under the impression that Boese had been given a writ-
ten examination previously. He gave Boese a driving test the
935K.C. CARTAGE
4 Calendar is uncertain as to when he received this letter, and testi-
fied that while Schafer’s date stamp shows September 5, a copy may
have been faxed to him directly by Northland rather than sent to him
by Schafer.
first day of his employment which Boese passed. Lonsinger
testified that he saw nothing in Boese’s performance that
would cause him to recommend that Boese not be retained.
2. Lonsinger
Lonsinger was employed by Respondent in 1989 and ap-
parently was a competent employee. He was promoted to
lead driver on September 8, effective September 11, shortly
prior to the strike and his discharge on September 25. At that
time, his hourly rate went from $9 per hour to $11 per hour.
It also appears that on May 3, Lonsinger was given a traf-
fic citation for running a stop sign while driving a truck for
his Employer and was convicted on June 28. He testified that
he turned this ticket in to the Respondent at that time as re-
quired by Department of Transportation and Respondent’s
regulations. Thereafter, Calendar was advised, apparently in-
formally, by his insurance agent, Larry Schafer, that his in-
surance carrier, Northland Insurance Company, was taking
the position that Lonsinger, among others, did not meet un-
derwriting guidelines because they had three moving viola-
tions within the calendar year 1989. In late August, Calendar
spoke to Lonsinger about the problem. Calendar told
Lonsinger that because of his driving record, he would have
to ‘‘step down’’ from driving but was not told whatever
other duties he might be assigned. He was not, however, dis-
charged. By letter dated August 4,4 Northland formally ad-
vised Respondent’s insurance agent, Larry Schafer, that
Lonsinger’s driving record, i.e., three moving violations
within the calendar year, made him unacceptable as a driver
under Northland’s guidelines and demanded that a ‘‘Driver’s
Exclusion Form’’ be submitted for both him and Norman
Morehead, another driver with an unacceptable driving
record. Calendar testified that this form was submitted for
Lonsinger. The form certifies that Lonsinger is not driving
any autos insured by Northland and obligates Respondent to
reimburse Northland for the payment of any losses it in-
curred while Lonsinger is driving.
Calendar testified that he wrote a termination letter dated
August 31 to Lonsinger reading:
DUE TO EXCESSIVE VIOLATIONS REFLECTED BY YOUR
CURRENT MVR, NORTHLAND INSURANCE COMPANY HAS
MADE THE DETERMINATION THAT YOU ARE UNACCEPT-
ABLE FOR DRIVING STATUS. THEREFORE SEPARATION
ACTION MUST BE TAKEN WITHIN THIRTY DAYS OF LET-
TER. UNLESS THESE VIOLATIONS ARE REMOVED FROM
YOUR MVR, K C CARTAGE, INC. IS LEFT WITH NO AL-
TERNATIVES. PLEASE ADVISE ME OF ANY CHANGES RE-
LATING TO YOUR MVR.
Calendar testified that he did not mail the letter to Lonsinger
but only ‘‘showed’’ it to him, and Lonsinger denies ever
having seen the letter. Having reviewed the relevant testi-
mony, I am satisfied that Lonsinger’s account is correct and
that he did not see the August 31 letter.
In any event, in about the second week in September, in
an effort to preserve Lonsinger’s driving status, Calendar
went with Lonsinger to traffic court where, in discussions
with the appropriate functionaries, Lonsinger appealed the
May 3 ticket and a court date for hearing on the appeal was
set for October 9. As set out in detail in the underlying
Board decision, an economic strike ensued and Lonsinger
was unlawfully discharged on September 25. On October 9,
the court accepted Lonsinger’s explanation that faulty equip-
ment, for which he was not responsible, caused him to run
the stop sign. His driving record was cleared of the three
points previously assessed for the violation and reduced
Lonsinger’s point total for the year to a satisfactory level
under Northland’s guidelines for drivers. It does not appear
that Respondent was ever made aware of the court’s action
by Lonsinger at any time after October 9. Lonsinger was of-
fered reinstatement on November 17.
B. Discussion and Analysis
1. Boese
The backpay for all the discriminatees was arrived at by
first calculating an average gross weekly earnings figure.
This calculation was made by dividing each discriminatee’s
total earnings prior to his discharge by the total number of
weeks worked prior to discharge. The amount of ‘‘gross
backpay’’ due to each discriminatee is calculated by pro-
jecting and summing by calendar quarter. The average gross
weekly earnings throughout the backpay period, which in this
case would be from the date of the unlawful discharges on
September 25, 1989, until the date discriminatees received
Respondent’s offer of reinstatement by letter dated Novem-
ber 17, 1989.
Finally, from this gross backpay figure, any interim earn-
ings during the backpay period are deducted to arrive at the
net backpay figure.
With respect to Boese, it is undisputed that he had no
earnings during his period of employment with the Company.
This being the case, the General Counsel concluded that it
would allot to Boese as an ‘‘average gross weekly earnings
figure’’ the same figure as the lowest figure of any of the
nine discriminatees. That figure was $377, the same figure
allotted to Lonsinger.
Respondent contests that figure and argues that since
Boese was never paid, the ‘‘average gross weekly earnings
figure’’ for him would be zero and therefore Boese is not en-
titled to any backpay.
The object of relief pursuant to orders of the Board and
the courts under the National Labor Relations Act is to re-
store, insofar as possible, the status quo ante. With respect
to discriminatees, this means to restore them to the employ-
ment status they had prior to the discrimination occurring
and, where appropriate, to award backpay from the date of
the discrimination until the date Respondents makes an un-
conditional offer of reinstatement.
In my opinion, the General Counsel’s backpay computa-
tion for Boese is appropriate. The facts of this record support
the conclusion that Boese would have begun compensated
employment at about the time he was unlawfully discharged
along with the other economic strikers on September 25. The
record discloses that Respondent needed drivers; that Boese
had passed a written test and a road test; that he was a satis-
factory trainee; and would have been recommended for em-
ployment as a driver. While the possibility exists that he
936 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
would not have been retained, that possibility is not likely
and, in any event, whatever doubts may remain in that re-
gard, was generated by Respondent’s unlawful discharge of
economic strikers, including Boese on September 25. It is ax-
iomatic that in determining appropriate backpay for the pur-
poses of enforcing backpay specifications, doubts must be re-
solved against the malfeasor. Bailey Distributors, 292 NLRB
1106 (1989).
Respondent’s contention that no backpay is appropriate be-
cause Boese was employed as a trainee is further diminished
since the record discloses that other trainees were in fact
compensated while employed in trainee status. In fact, one
of those, Larry James Wilcox, was paid at an average gross
weekly rate that exceeds the rate assigned to Boese for back-
pay purposes.
2. Lonsinger
The General Counsel’s formula for arriving at a net back-
pay figure is to calculate gross backpay during the backpay
period minus any interim earnings. The backpay period runs
from September 25 through November 17, when Lonsinger
was offered reinstatement. Respondent does not contest the
September 25 date as the beginning of the backpay period
but contends that its backpay obligation terminated on Sep-
tember 30, since that is the date that Lonsinger’s employ-
ment would have been terminated pursuant to the terms of
Calendar’s letter to Lonsinger dated August 31.
In my opinion, the General Counsel has met its burden of
establishing backpay and Respondent has not satisfied its
burden of establishing that the backpay period should be lim-
ited as it contends.
I am satisfied, based on all the probative evidence in this
record, that Respondent did not, despite its letter of August
31, terminate Lonsinger effective September 30. First of all,
the letter is equivocal. It contemplates separation only if the
traffic citation was not removed from his record enabling
him to drive. Lonsinger was a highly regarded employee. His
services were so valued that Calendar went with him after
the date of the termination letter to see if the citation could
be removed from his driving record. Calendar was aware that
the conviction was being appealed and, if successful,
Lonsinger could continue as a driver. It is strange that while
the matter is pending primarily due to Calendar’s interven-
tion and assistance in obtaining an appeal of the citation,
Calendar would have terminated Lonsinger.
That Lonsinger’s employment, in some nondriving capac-
ity, would have continued is clear from Calendar’s conversa-
tion with Lonsinger wherein they discussed the matter in late
August and Lonsinger was told only that he would have to
step down from driving, not to be discharged.
Another significant factor suggesting that Lonsinger would
not have been terminated September 30 is the fact that well
after Calendar became aware of the problem, and after the
August 31 termination letter, he was promoted to lead driver
on September 11.
In these circumstances, I am not satisfied, as Respondent
contends, that Lonsinger’s termination became effective on
September 30. I further conclude that he would have been
employed throughout the entire backpay period and that the
backpay calculations set out in the compliance specification
for Lonsinger are correct.
C. Conclusions
Based on the entire record here, I conclude that Lonsinger
and Boese are due the amounts of backpay from Respondent
as set out in the General Counsel’s backpay specification as
follows:
Russell Lonsinger $2,121.76
Mike Boese 2,262.00
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended5
ORDER
The Respondent, K.C. Cartage, Inc., Carleton, Michigan,
its officers, agents, successors, and assigns, shall pay to Rus-
sell Lonsinger the sum of $2,121.76, and to Mike Boese the
sum of $2,262.00, the backpay provided for herein, with in-
terest thereon to be computed in the manner prescribed in
New Horizons for the Retarded, 283 NLRB 1173 (1987), and
F. W. Woolworth Co., 90 NLRB 289 (1950). These shall be
deducted from the amounts due any tax withholding required
by law.