McDaniel Ford

National Labor Relations Board - Board Decisions

Aug 31, 2000

331 N.L.R.B. 1645 (N.L.R.B. 2000)

MCDANIEL FORD, INC. 1645
McDaniel Ford Inc., and Local 259, International
Union, United Automobile, Aerospace and Agri-
cultural Implement Workers of America, AFL–
CIO. Cases 29–CA–18811 and 29–CA–18992
August 31, 2000
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN TRUESDALE AND MEMBERS FOX
AND HURTGEN
On March 3, 2000, Administrative Law Judge Eleanor
McDonald issued the attached supplemental decision.
The Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the decision and the record
in light of the exceptions and brief and has decided to
affirm the judge’s rulings, findings, and conclusions and
to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the Administrative Law Judge and
orders that the Respondent, McDaniel Ford Inc., Hicks-
ville, New York, its officers, agents, successors, and as-
signs shall make whole the employee named below by
paying him the amount following his name, as well as
any additional amounts of backpay that may have ac-
crued since February 21, 1995, or which may accrue
hereafter, with interest to be computed in the manner set
forth in New Horizons for the Retarded, 283 NLRB 1173
(1987), minus tax withholding required by Federal and
state laws. The Respondent shall also remit to the trust
funds the contributions which the Respondent failed to
make on his behalf, plus additional amounts, if any, as
prescribed in Merryweather Optical Co., 240 NLRB
1213 (1979).1

Net Backpay
Leo Balsam $36,439.35
Unreimbursed medical benefits 457.47
TOTAL BACKPAY 36,896.82
Contributions Owed
Local 259 Pension Fund 6,082.92
TOTAL CONTRIBUTIONS 6,082.92
TOTAL AMOUNT DUE $42,979.74

1 To the extent that an employee has made personal contributions to
the funds that are accepted by the funds in lieu of the employer’s delin-
quent contributions during the period of the delinquency, the respon-
dent will reimburse the employee for amounts paid, with interest, but
the amount of such reimbursement will constitute a setoff to the amount
that the respondent otherwise owes the funds. See Donovan & Associ-
ates, 316 NLRB 169, 170 (1995).
Sharon Chau, Esq., for the General Counsel.
Mr. Henry Famularo, of Hicksville, New York, for the Re-
spondent.
Seth M. Kupferberg, Esq. (Sipser, Weinstock, Harper & Dorn
LLP), of New York, New York, for the Charging Party.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
ELEANOR MACDONALD, Administrative Law Judge. On
January 28, 1997, the National Labor Relations Board issued an
Order directing the Respondent to reinstate employee Leon
Balsam and make him whole for his loss of earnings and other
benefits, to restore the incentive pay plan and make employees
whole and to make contributions to the Local 259 Pension and
Welfare Funds and make employees whole for any losses they
may have suffered as a result of the Respondent’s failure to
make payments to the Union’s Funds.1 On August 27, 1997,
the United States Court of Appeals for the Second Circuit en-
tered a Judgment enforcing the provisions of the Board’s Order.
A controversy having arisen regarding the amount of moneys
due under the Board’s Order, the Regional Director of Region
29 issued a compliance specification and notice of hearing on
November 30, 1998. After the specification was issued, the
Regional Office and the Respondent resolved the issues relating
to the incentive plan and the contributions to the Pension and
Welfare Funds. Thus, the only issues before me involve the
amount of backpay and unreimbursed medical expense due to
Balsam and the amounts of Funds contributions due on his
behalf.
The Respondent’s answer to the specifications dated Decem-
ber 21, 1998, asserted that the backpay due to Balsam had been
erroneously computed and denied that any backpay or benefits
contributions were due. In addition, the answer alleged that
Balsam had not reported all of his interim earnings and had
falsified the resume, which he gave to prospective employers
during the interim period. A hearing was held before me in
Brooklyn, New York, on November 30, 1999.2
The Respondent’s brief was filed on January 4, 2000.
Thereafter, the General Counsel filed and served a motion to
strike portions of the Respondent’s brief and the Respondent
filed an affirmation in opposition. The Respondent’s brief
contains a number of attachments. These are in the nature of
documentary evidence and no reason has been advanced why
they could not have been introduced at the hearing here. The
Respondent has not shown that these documents amount to
newly discovered evidence. I shall strike the attachments and
the arguments based thereon from the Respondent’s brief.
On the entire record of the case, including my observation of
the demeanor of the witnesses, I make the following
FINDINGS OF FACT
I. BALSAM’S WORK LOCATION
In his decision in the underlying case, Administrative Law
Judge Steven Fish found that Balsam had been hired to work
1 322 NLRB 956.
2 Donald Rood, Esq., Counsel for the Respondent in the underlying
case and a participant in the events discussed in the underlying Deci-
sion, did not appear at the backpay proceeding. His request for an
adjournment due to his absence from New York was denied. At the
hearing the Respondent was represented by Henry Famularo, the Re-
spondent’s parts and service director.
331 NLRB No. 183
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 1646
for the Respondent by Gary Mullin, the parts department man-
ager.3 Judge Fish found that Balsam worked primarily in the
parts department, stocking parts, sweeping up the parts depart-
ment, and looking for parts. On occasion, Balsam swept the
rest of the shop. For 2 hours every workday, Balsam checked
in customer cars and drove customers home. Judge Fish made
no finding whether Balsam was employed in the parts depart-
ment or in another department.
In the proceeding before me, Balsam testified that when he
was reinstated by the Respondent he parked customer vehicles,
he drove customers home or to the train station, and he swept
up the shop. On cross-examination by the Respondent, Balsam
stated that when he was first hired by the Respondent in 1995,
he had worked in both the parts department and the service
department.
William Pickering, the financial secretary/treasurer of Local
259, testified that he spoke to manager Famularo before Balsam
was reinstated by the Respondent in 1998. They agreed that
Balsam would be brought back to work as a utility employee.
Pickering testified that the utility position is an entry-level job
in the service department. The utility person helps to stock the
shelves in the parts department, he sweeps the floors in the
service department, he checks in customer cars, he drives cus-
tomers to and from their homes, and he “runs out for parts.”
The utility employee is a part of the service department bar-
gaining unit and is covered by the collective-bargaining agree-
ment between the Respondent and the Union. Parts department
employees are not members of the bargaining unit.
Famularo did not testify in the compliance proceeding.
The uncontradicted evidence shows that Balsam was rein-
stated by the Respondent as a utility employee, the entry-level
position in the bargaining unit covered by the collective-
bargaining agreement. Pickering’s testimony establishes that
the duties of the utility employee are precisely those duties
performed by Balsam both before his discharge and after his
reinstatement. Although Famularo is the Respondent’s parts
and service director, he did not offer any testimony to contra-
dict Pickering’s description of the utility employee’s duties nor
did he contradict Balsam’s testimony about his duties while
employed by the Respondent. Although the record shows that
the utility employee performs some of his duties in the parts
department and some of his duties in the service department, it
is undisputed that the utility employee is a member of the bar-
gaining unit. I find that Balsam was a utility employee and was
a member of the bargaining unit and that he was therefore enti-
tled to the pay and benefits specified in the collective-
bargaining agreement. In addition, Balsam was entitled to
medical benefits pursuant to the collective-bargaining agree-
ment. He must therefore be compensated for medical expenses,
which were unreimbursed as a result of his unlawful discharge.
II. BALSAM’S INTERIM EARNINGS
The specification shows that after he was unlawfully dis-
charged by the Respondent, Balsam was employed during
every quarter beginning with the third quarter of 1995 up to the
time he was reinstated by the Respondent. After his discharge
in February 1995, Balsam first went to work for Competition

3 Balsam was hired in November 1994, and was unlawfully dis-
charged by the Respondent on February 21, 1995. Balsam was rein-
stated on April 10, 1998, and discharged again on May 5, 1998. There
is no allegation that this second termination was unlawful.
Imports and he stayed there until he was laid off in the fourth
quarter of 1995. Right after his layoff, Balsam began work for
Huntington Jeep Eagle. He was fired from that job at the end
of 1995 because he got sick. Balsam next worked for Bauman
Bus Corp. until the second quarter of 1996. He stated that he
quit the job at Bauman Bus because they kept changing his
hours and eventually he was working from 5 a.m. to 2 p.m., a
schedule that he found impossible to cope with. Soon after
quitting Bauman Bus, Balsam worked for Security Dodge from
the third quarter of 1996 until the first quarter of 1997. Secu-
rity Dodge had promised Balsam that he would receive medical
benefits, but when these were not forthcoming Balsam quit to
go to work at Burns Ford where he stayed until he was fired in
the first quarter of 1998. Balsam testified that Burns Ford dis-
charged him because he got sick. Soon after that, he was rein-
stated by the Respondent in April 1998.
The Respondent’s brief argues that Balsam should not be
compensated for any periods when he was not available for
work because of illness. However, the record does not contain
any facts from which I can calculate when Balsam was unavail-
able for work due to illness. Balsam’s testimony that an em-
ployer fired him because he got sick is insufficient proof that
Balsam was unavailable for employment so as to toll the back-
pay requirement. It is well established that once the General
Counsel has shown the gross amounts of backpay due, “the
burden is on the employer to establish facts which would nega-
tive the existence of liability to a given employee or which
would mitigate that liability.” NLRB v. Brown & Root, 311
F.2d 447, 454 (8th Cir. 1963).4 The Respondent has not met
that burden in this instance. In view of the fact that Balsam
worked during all the quarters of the backpay period after he
found his first new job, it does not seem that Balsam was un-
available for work. Furthermore, Balsam was entitled to medi-
cal benefits pursuant to the collective-bargaining agreement
between the Respondent and the Union. He was not obliged to
stay in a job that did not provide medical benefits in order to
mitigate the amount of backpay owed by the Respondent. Nor
was Balsam required to stay in a job where he was unable to
adjust to the shifting hours or where the duties were much more
onerous and unpleasant than when he worked for the Respon-
dent. Churchill’s Supermarkets, 301 NLRB 722, 727 (1991).
Finally, the fact that Balsam was fired from interim employ-
ment because he got sick does not relieve the Respondent of its
obligation to provide backpay to Balsam. The Respondent has
not shown that Balsam caused his discharge by deliberate or
gross misconduct. Basin Frozen Foods, 320 NLRB 1072, 1076
(1996).
III. OTHER ARGUMENTS OF THE RESPONDENT
There is absolutely no evidence in the record to support the
Respondent’s assertions that Balsam concealed any interim
earnings or that he falsified his resume so as to render himself
undesirable to a prospective employer.
The Respondent’s brief asserts that the Board should defer
the computation of Balsam’s backpay to arbitration. I note that
this defense was not raised in the answer to the specification.
At any rate, the notion that an arbitrator should undertake the
computation of backpay due under a Board order is without
merit. The matter of Balsam’s backpay is not a contract dis-
4 Any uncertainties or ambiguities should be resolved in favor of the
wronged party rather than the wrongdoer. United Aircraft Corp., 204
NLRB 1068, 1069 (1973).
MCDANIEL FORD, INC. 1647
pute. Rather, it is a question of carrying out a Board Order as
enforced by the Court of Appeals.
IV. COMPUTATION OF WAGE INCREASES AND
MEDICAL BENEFITS
The Respondent has not shown that the General’s computa-
tion of backpay, contributions, and unreimbursed medical ex-
penses, as amended at the hearing, is incorrect. Additionally,
the General Counsel presented testimony and documentary
evidence to support Balsam’s interim earnings computation and
his unreimbursed medical expenses. The evidence shows that
Balsam is owed $36,439.35 in net backpay and $457.47 in un-
reimbursed medical expenses. The Local 259 Pension Fund is
owed $6,082.92 in contributions on behalf of Balsam.
On these findings and conclusions of law and on the entire
record, I issue the following recommended5.

5 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
ORDER
The Respondent, McDaniel Ford, Inc., of Hicksville, New
York, its officers, agents, successors and assigns, shall pay to
Leon Balsam backpay of $36,439.35 minus statutory deduc-
tions, plus interest, and $457.47 for medical expenses, plus
interest. The Respondent shall pay $6,082.92 plus interest to
the Local 259 Pension Fund on behalf of Leon Balsam. Interest
shall be computed in the manner set forth in F.W. Woolworth
Co., 90 NLRB 289 (1950), and New Horizons for the Retarded,
283 NLRB 1173 (1987).

Board and all objections to them shall be deemed waived for all pur-
poses.