Kenston Trucking Co., Inc.

National Labor Relations Board - Board Decisions

Mar 30, 1976

223 N.L.R.B. 502 (N.L.R.B. 1976)

502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kenston Trucking Company , Inc. Kenston Warehous-
ing Corp ., and Rhein Express, Inc. and George Hill
and Local 808, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America . Cases 29-CA-3184 and 29-CA-2888
March 30, 1976
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS FANNING, JENKINS , AND PENELLO
On October 3, 1975, Administrative Law Judge
Herbert Silberman issued the attached Supplemental
Decision in this proceeding. Thereafter, the General
Counsel filed exceptions and a supporting brief, and
Respondent filed a brief in answer to the General
Counsel's exceptions.
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 briefs
and has decided to affirm the rulings, findings, con-
clusions, and recommendation of the Administrative
Law Judge, to the extent consistent herewith.
The General Counsel excepts to the Administra-
tive Law Judge's finding that the backpay period for
Thomas Walker terminated in June 1973. We find
merit to this exception.
According to the General Counsel, Walker's back-
pay period ran between May 12, 1972, and February
21, 1975. No backpay, however, is claimed for the
fourth quarter of 1972 and for all of 1973 because
during this period Walker's quarterly earnings ex-
ceeded what his earnings would have been had he
continued in Respondent's employ.
Respondents I argued at the hearing that
Respondent's president, Luhrs, made Walker a valid
offer of reinstatement sometime during June 1973 2
and for that reason, Walker's backpay period should
have terminated as of that date.
At the hearing, Walker and Luhrs gave conflicting
accounts of the conversation during which, Respon-
dent contends, the alleged unconditional offer was
1 The decision regarding the unfair labor practice involving Walker is
reported at 205 NLRB 1050 (1973). The Respondent in that case is Kenston
Trucking Company. Inc. On March 11 . 1975. a stipulation was entered into
by Kenston Trucking Company , Inc.. Kenston Warehousing Corp.. and
Rhein Express , Inc., which provides that for the purpose of the instant
proceeding Rhein Express, Inc.. and Kenston Warehousing Corp., "consti-
tute an integrated enterprise and are the successors in interest to Kenston
Trucking Company, Inc.. the Respondent in these proceedings."
2 The Administrative Law Judge found this conversation occurred on
either June 10 or 17, 1973.
made. At the time this conversation occurred, Walk-
er was employed by Anchor Motor Freight. The Ad-
ministrative Law Judge credited Luhrs' testimony
and concluded that an unconditional offer of rein-
statement had been made to Walker during this con-
versation. We do not agree that Luhrs' testimony
supports this conclusion.
The record indicates that the alleged unconditional
offer was phrased as a question. When asked what
the language of the alleged offer had been, Luhrs
answered, ". . . I did ask, you know; if he was satis-
fied where he was or if he wanted to come back to
work, so forth." This testimony indicates that Luhrs
was asking Walker what his job preferences were,
and, as such, appears to be directed at determining
Walker's interest in or availability for a job with Re-
spondent. For this reason, we do not find Luhrs'
question could have been interpreted as a categorical
invitation to return to work.' Since a dischargee is
not required to make a choice of employment before
receiving an unconditional offer of reinstatement,4
Walker had no obligation to make a decision about
returning to work during his conversation with
Luhrs. We, therefore, find Respondent's backpay
obligation to Walker was not terminated in June
1973. Since Respondent did not contend that
Walker's backpay period should have terminated for
any other reason before February 21, 1975, we fur-
ther find that the backpay period did not terminate
until this latter date.
Accordingly, as the backpay specification indi-
cates that Respondent's backpay obligation is
$12,544, plus interest at the rate of 6 percent per an-
num, we shall order that Respondent reimburse
Walker for that amount.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board hereby orders that the Respondents,
Kenston Trucking Company, Inc., Kenston Ware-
housing Corp., and Rhein Express, Inc., Brooklyn,
New York, their officers, agents, successors, and as-
signs, shall:
1. Pay to the discriminatee, Thomas Walker, as
3 See Leeding Sales Co.. Inc., 155 NLRB 755. 756 (1965). We do not find
that Walker's inquiry about what Luhrs would pay him meant that Walker
interpreted Luhrs' question as an offer of reinstatement to his former job.
For this reason, and because of the way the question was phrased. this case
is distinguishable from Moro Motors, Ltd., 216 NLRB 192 (1975). There, the
Board found that the employer's remark amounted to an unconditional
offer of reinstatement for the specific job formally held by the discrimina-
tee, even though phrased as a question. The Board decided the employer's
question was specific enough to have been construed as an offer of rein-
statement and found that the discriminatee had actually interpreted the
question as such. Member Fanning adheres to his Moro dissent.
Leeding Sales Co.. supra.
223 NLRB No. 68
KENSTON TRUCKING COMPANY 503
net backpay the amount of $12,544.
2. In addition to the above amount, pay interest at
the rate of 6 percent per annum computed on the
basis of each quarterly amount of net backpay due,
less any tax withholding required by law.
MEMBER JENKINS, dissenting in part:
I disagree with the finding of my colleagues that
Respondent did not make a valid offer of reinstate-
ment to Walker in June 1973. As between the con-
flicting accounts of the meeting between Walker and
Respondent's president, Luhrs, the Administrative
Law Judge credited Luhrs' testimony. The record
discloses no basis for reversing that credibility reso-
lution. Luhrs' testimony showed that Luhrs asked
Walker "if he was willing to come back to work for
me," that Walker asked what the rate of pay would
be, that Luhrs answered "it would be at the rate of
pay that he was making when he left," and that
Walker then laughed and showed Luhrs his previous
week's pay stub indicating he was getting much more
than Respondent had paid, and that, after some dis-
cussion, Luhrs told Walker he would be foolish to
leave a job that paid so well.
While the language is not as precise as lawyers
might employ, it seems plain to me that these facts
constitute a proper offer to reinstate Walker, which
terminated Respondent's backpay liability. The fact
that questions instead of declarative sentences were
used hardly precludes the making of an offer, any
more than threats lose their character because
couched as questions.
SUPPLEMENTAL DECISION
settlement. An issue remains as to the amount of backpay
due to Thomas Walker. Upon consideration of the plead-
ings, the arguments made on the record in the case, the
brief filed by General Counsel, the entire record in this
case, and from my observation of the witnesses, I find as
follows:
Amount in Dispute
According to the specification, the backpay period com-
menced during the week ending May 12, 1972, and termi-
nated on February 21, 1975, when Thomas Walker sus-
tained a back injury and no longer was capable of
performing the type of work he had performed when in
Respondents' employ.
The parties agree that in accordance with the backpay
specification there is owed to Thomas Walker the sums of
$481, $85, and $1,532 for the period beginning with the
week ending May 12, 1972, and ending at the end of the
third quarter in the year 1972. Thus, the parties are in
agreement that a total of $2,098, plus interest, is due to
Thomas Walker for that period of time.
No backpay is claimed to be due to Thomas Walker for
the fourth quarter of 1972 and for the entire year of 1973
because during that period Walker's actual quarterly earn-
ings exceeded the amounts he would have earned had he
been employed by Respondents.
In dispute is whether Walker is entitled to receive back-
pay from the Respondents for each of the quarters in 1974
and for the first quarter in 1975 through February 21, 1975.
The amounts set forth in the backpay specification as
being due to Thomas Walker for those five quarters are not
in dispute. Respondents claim, however, that in June 1973
Thomas Walker was offered unconditional reinstatement
to his former job and refused to accept such reinstatement,
and for that reason Walker is not entitled to backpay
thereafter.
HERBERT SILBERMAN , Administrative Law Judge: This
proceeding to determine the amounts of backpay due to
seven employees under the terms of the Decision and Or-
der of the National Labor Relations Board, reported at 205
NLRB 1050 (1973),' was initiated by service on the parties
of a backpay specification, dated June 11, 1975, prepared
by the Regional Director for Region 29.2
Pursuant to notice, a hearing was held in Brooklyn, New
York, on August 4, 1975. At the hearing the parties entered
into an agreement providing for the settlement of the
amounts of backpay due to Richard Parker, John Barr,
Frank Stewart, Salvatore DiChristiani, Joseph Barrier, and
George Hill. I have been advised by the Compliance Offi-
cer for Region 29 that Respondents have made all the pay-
ments required to be made pursuant to the terms of the
1 The Respondent in the cited case is Kenston Trucking Company, Inc.
On March 11, 1975, a stipulation was entered into by Kenston Trucking
Company, Inc., Kenston Warehousing Corp., and Rhein Express, Inc.,
which provides that for the purpose of the instant proceeding Rhein Ex-
press. Inc., and Kenston Warehousing Corp. "constitute an integrated en-
terprise and are the successors in interest to Kenston Trucking Company,
Inc., the Respondent in these proceedings."
2 The specification was amended during the backpay hearing.
The Evidence
When Thomas Walker was discharged by Respondents,
he was employed as a truckdriver at a gross weekly salary,
before all deductions, of $185. In September 1972, Walker
obtained a permanent position with Anchor Motor Freight
as a truckdriver. Walker was discharged by Anchor Motor
Freight approximately 16 months later, in January 1974,
because he had been involved in a vehicular accident.
While Walker worked for Anchor Motor Freight he earned
approximately $300 per week net, after all deductions, or
about twice the amount he earned when he had been em-
ployed by Respondents.
Walker met with Respondents' president, John Luhrs, at
the latter's request, on a Sunday, either June 10 or 17, 1973,
at Respondents' premises. (The Decision of Administrative
Law Judge Bernard J. Seff in the instant case issued on
April 27, 1973. Exceptions to the Decision were filed by
Respondents, and the Board's Decision issued on August
27, 1973.) During this meeting Luhrs offered to reinstate
Walker to his former position. The only question is wheth-
er, as testified to by Luhrs, the offer was unconditional or,
as testified to by Walker, the offer was conditioned upon
504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Walker settling his backpay claim against Respondents for
the sum of $1,000. Walker testified that previous to the
meeting he had been advised by a representative of the
Board that Respondents owed him more than a $1,000 as
backpay.
In substance , Walker testified that after an exchange of
pleasantries Luhrs pointed to a pile of $100 bills laying on
his desk and said to him that he could take up to $1,000.
Luhrs further said that for the $1,000 Walker would have
to "forget everything that happened . . . concerning this
here trouble, to sign the papers saying you are willing to
forget it" and he would be given his job back. Walker re-
plied that although $1,000 looked good, he was not money
hungry because during the previous week, when he had
worked only 4 days, he had made more than $700. Walker
showed Luhrs his pay stub. Walker then said that $1,000
didn 't excite him and Respondents owed him more than
that amount. According to Walker, Luhrs responded,
"[T]alking to you is no good, we can't reach no decision,
you are just wasting my time." Walker replied that Luhrs
also was wasting his (Walker 's) time and left.
John Luhrs testified that in their conversation he asked
Walker if Walker were willing to return to work.3 Walker
asked at what rate of pay and Luhrs replied it would be at
the same rate of pay he had been earning when he last
worked for the Company. Walker laughed at the offer and
showed Luhrs his paycheck for the previous week. Accord-
ing to Luhrs, he made an unequivocal offer of reinstate-
ment to Walker and Walker clearly turned down the offer.
Before Walker left, Luhrs asked whether they could discuss
a settlement with respect to the backpay so as to conclude
the NLRB proceedings . Walker asked Luhrs what his offer
was and Luhrs suggested the figure of $1,000 . Walker re-
plied that $ 1,000 was not enough, that he had worked all
his life and did not have anything to show for it, that this
was the first opportunity he had to make a bundle, and
that he was going to ride it until the end to get his bundle.
Luhrs denied that he had any cash lying on his desk. Luhrs
further testified that before he spoke with Walker he had
consulted counsel and counsel had advised him with re-
spect to the Company's obligations in the matter and that
an offer of reinstatement had to be unconditional. Luhrs
I disagree with General Counsel's contention that Luhrs did not offer
reinstatement to Walker but merely was inquiring what Walker would do
should such an offer be made.
was not cross-examined by General Counsel or by the
Union's representative.
Both Walker and Luhrs testified at the instant hearing
about a conversation that had taken place 2 years earlier.
Further, both Walker and Luhrs understood at the time
they testified that critical to the decision in this case is
whether the admitted offer of reinstatement was made with
or without any condition attached. It is not surprising, in
the circumstances, that the recollections of the parties con-
cerning their conversation favor their respective positions.
Luhrs testified only briefly. No attempt was made to im-
peach his testimony by cross-examination. Luhrs' testimo-
ny was short, straightforward, and unimpeached. It ap-
pears from his testimony that after Administrative Law
Judge Seff issued his Decision Luhrs sought to settle Re-
spondents' obligations insofar as they involved Walker.
Luhrs was advised that in order to do so he had to make an
unconditional offer of reinstatement to Walker. When he
learned that Walker was earning about twice as much with
Anchor Motor Freight as he had been earning when em-
ployed by Respondents, the logic of the situation would
have impelled Luhrs to offer to unconditionally reinstate
Walker because Luhrs could anticipate that such offer
would be rejected. Walker was examined at the hearing
more extensively than was Luhrs. Although Walker did not
impress me as being an untruthful witness, I obtained the
impression that Walker is not unsophisticated and, as to be
expected, is anxious to prevail in this proceeding. He un-
derstood no less than Luhrs what he had to testify to in
order to prevail. I must make my decision as to where the
truth lies based upon the impression the witnesses made
upon me, the relevant proceedings in the matter, including
the Decision and Order of the Board (205 NLRB 1050) and
the inherent probabilities of the situation. It is my opinion,
and I find, that in June 1973 Respondents made to Walker
an unconditional offer of reinstatement to his former posi-
tion, which Walker rejected, and therefore Respondents'
backpay obligations to Walker terminated as of that date.
Conclusions
I find that the backpay period in this proceeding termi-
nated in June 1973. Accordingly, I find that there is due to
Thomas Walker as backpay the sum of $2,098, together
with interest thereon. I direct that the Respondents make
payment of such sum to Thomas Walker.