Mine Workers District 17 (Joshua Industries)

National Labor Relations Board - Board Decisions

Oct 30, 1997

324 N.L.R.B. 884 (N.L.R.B. 1997)

884
324 NLRB No. 146
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. 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.
1 As described by Administrative Law Judge Schwarzbart, origi-
nally this case was consolidated with Joshua Industries, Inc., Case
9–CA–28151. Judge Schwarzbart severed the cases and granted the
General Counsel’s Motion for Summary Judgment against Joshua In-
dustries, Inc., finding that it had violated Sec. 8(a)(3) and (1) of the
Act by laying off White. On August 20, 1992, the Board issued an
Order affirming the decision of the administrative law judge. Joshua
Industries, supra at 1052. Thereafter, on June 24, 1994, the Board
issued a Supplemental Decision and Order finding, inter alia, that
White was owed $25,741.06 in backpay by the Employer. On June
5, 1995, the United States Court of Appeals for the Fourth Circuit
issued a judgement enforcing the Board’s Supplemental Order.
District 17, United Mine Workers of America (Josh-
ua Industries, Inc.) and Phillip Lee White.
Cases 9–CB–7767 and 9–CB–7805
October 30, 1997
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS FOX AND
HIGGINS
On June 25, 1997, Administrative Law Judge Wil-
liam G. Kocol issued the attached supplemental deci-
sion. The Respondent filed exceptions and a supporting
brief.
The National Labor Relations 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,1 and conclusions and to adopt the rec-
ommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended order of the administrative law judge and
orders that the Respondent, District 17, United Mine
Workers of America, Logan, West Virginia, its offi-
cers, agents, and representatives, shall pay to Phillip
Lee White the sum of $22,007.96, with interest to be
computed in the manner prescribed in New Horizons
for the Retarded, 283 NLRB 1173 (1987), minus tax
withholdings required by Federal and state laws.
Deborah Jacobson, Esq., for the General Counsel.
Charles F. Donnelly, Esq. (Hostler & Donnelly, L.C.), of
Charleston, West Virginia, for the Respondent.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
WILLIAM G. KOCOL, Administrative Law Judge. In Mine
Workers District 17 (Joshua Industries), 315 NLRB 1052
(1994), the Board issued a Decision and Order finding, inter
alia, that Respondent violated Section 8(b)(1)(A) and (2) of
the Act by causing the layoff of employee Phillip White. It
ordered that Respondent, jointly and severally with Joshua
Industries, Inc. (the Employer), make White whole for any
loss of earnings he incurred as a result of the layoff.1 On
May 13, 1996, the United States Court of Appeals for the
Fourth Circuit issued a judgment enforcing the Board’s
Order.
This case was tried in Charleston, West Virginia, on April
28, 1997, based on a compliance specification that issued
November 5, 1996. As amended at the hearing, it asserts that
Respondent owes White $22,007.96 in net backpay. Re-
spondent filed a timely answer that disputes the amount
owed to White and asserts a number of affirmative defenses.
On the entire record, including my observation of the de-
meanor of the witnesses, and after considering the briefs
filed by the General Counsel and Respondent, I make the
following
FINDINGS OF FACT
I. BACKGROUND
White was employed by the Employer, which operated a
coal mine, from 1981 until his layoff on August 12, 1990.
White performed a number of different duties, all involving
the production of coal. The Employer had a contractual rela-
tionship with United Mine Workers of America, and White
performed work covered by that contract. However, for his-
torical reasons, White was paid in excess of the contractual
rate until sometime in 1990. The Employer ceased operations
and went into Chapter 7 bankruptcy proceedings after it had
laid off White; those proceedings were still pending at the
time of the hearing in this case.
II. THE SPECIFICATION AND ANSWER
The specification asserts that the backpay period runs from
August 12, 1990, the date White was unlawfully laid off, to
January 28, 1991, the date that the Employer allegedly
ceased operations and laid off all of its employees. Respond-
ent denies that the backpay period ends as alleged; instead
it asserts that the backpay period ends Decmber 29, 1990.
The specification alleges that an appropriate measure of
backpay is White’s prelayoff average weekly earnings multi-
plied by the number of weeks in the backpay period. Re-
spondent contends that a more appropriate measure of back-
pay is the average weekly earnings of an employee who con-
tinued to work for the Employer producing coal after White
was laid off. It also disagrees with the amount of overtime
used by the General Counsel in computing backpay. Re-
spondent also pleads a number of affirmative defenses. It as-
serts that ‘‘The grievance filed by [White] was (is) without
merit.’’ Respondent also asserts that White failed to mitigate
his damages; that White is estopped from asserting any right
to damages because while he was employed with the Em-
ployer he was paid well in excess of the contractual wage
scale; and that those ‘‘extra contractual’’ wages paid to
White should be used to offset any backpay owed. Also, in
light of the pending bankruptcy proceedings involving the
Employer, Respondent argues that the initiation of a compli-
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885MINE WORKERS DISTRICT 17 (JOSHUA INDUSTRIES)
2 As the Employer’s president, Claude Tiller, testified, ‘‘[i]t’s been
so dang long [ago] I don’t remember.’’
3 I reject Respondent’s assertion that Tiller should be treated as an
adverse witness, apparently under Rule 611(c) of the Federal Rules
of Evidence. Respondent failed to establish that the Employer should
be considered an adverse party in this case. To the contrary, under
the circumstances of this case it appears that both the Employer and
Respondent would have an interest in attempting to minimize the
backpay owed to White. Nor was there any indication of hostility;
it appeared that Tiller was fully cooperative with Respondent.
4 The parties agree that the proper straight time hourly rate for
White is the contractual rate of $16.62 per hour.
ance proceeding against it is inappropriate, and that the spec-
ification is inconsistent with positions taken by the General
Counsel in those bankruptcy proceedings. Respondent also
claims that the Employer and Local Union 5921, UMWA are
indispensable parties to this proceeding. Finally, in its brief
Respondent claims that the Employer should have been held
primarily liable and it secondarily liable to remedy the unfair
labor practice involving White. Respondent asserts that if its
affirmative defenses are found meritless, then the amount of
gross backpay it owes is $11,808.38.
III. ANALYSIS
A. General Principles
The Board holds that the finding of an unfair labor prac-
tice of the type involved in this case is presumptive proof
that some backpay is owed. La Favorita, Inc., 313 NLRB
902 (1994), enfd. 48 F.3d 1232 (10th Cir. 1995). Uncertainty
and doubt that may be inherent in the process of precisely
computing backpay should be resolved in favor of the
discriminatee and against the wrongdoer responsible for the
existence of the uncertainty. Id. at 903. The General Counsel
has the burden of proving gross backpay; it is Respondent’s
burden to prove facts that would mitigate that amount. Id. at
902. Concerning the backpay formula, any formula which
approximates what the discriminatee would have earned had
he or she not been discriminated against is acceptable so
long as it is reasonable and not arbitrary. Id.
Regarding the search for interim employment, it is not
necessary that this be successful, but it does require an hon-
est, good effort to find work. Lloyd’s Ornamental & Steel
Fabricators, 211 NLRB 217 (1974). The burden is on the
Respondent to show that the discriminatee did not make rea-
sonable efforts to find work. Thalbo Corp., 323 NLRB 630
(1997).
A respondent is not free to relitigate matters decided in the
unfair labor practice proceeding. Schorr Stern Food Corp.,
248 NLRB 292 (1980).
The uncertainty and lack of precision that are sometimes
an inherent part of the effort to ascertain backpay are even
more evident in this case because apparently all the Employ-
er’s records which would have been so useful here have been
destroyed due to a flood and are not available. Thus, the res-
olution of the issues raised in this case will turn on the testi-
mony of individuals concerning events that occurred nearly
7 years ago.2
B. The Issues
1. The backpay period
As indicated, the General Counsel contends that the back-
pay runs until January 28, 1991; Respondent contends it ends
December 29, 1990. In the previous proceeding the adminis-
trative law judge indicated that the Employer ‘‘ceased doing
business around January 28, 1991.’’ District 17, supra at
1053. In the remedy section of his decision, the administra-
tive law judge stated ‘‘the period for which backpay is due
should run from August 12, 1990, until January 28, 1991,
subject to such adjustments as may be indicated at the com-
pliance stage of this proceeding.’’ The General Counsel
bases her argument on these findings, which, as indicated,
were affirmed by the Board and the court of appeals.
In support of its contention that the backpay period should
end earlier, Respondent presented the testimony of Em-
ployer-president, Tiller. Tiller testified generally that the Em-
ployer ceased production at its coal mine sometime before
Christmas 1990. Thereafter, it used several supervisors and
nonunit employees to perform nonunit work. It also used one
unit employee—an electrician—to perform work such as
moving the mine equipment out of the mine. I do not credit
the testimony of Tiller except where specifically found other-
wise. I found Tiller’s demeanor to be unpersuasive; his testi-
mony was sometimes evasive and generally imprecise, and
his questioning at times was by leading questions.3 I con-
clude that Respondent has not established that White’s em-
ployment would have terminated before January 28, 1991.
Accordingly, in the absence of credible, probative evidence
to the contrary, I rely on the findings in the prior case. I con-
clude that the backpay period runs from August 12, 1990,
until January 28, 1991.
2. The backpay formula
In computing gross backpay, the General Counsel used
White’s average prelayoff earnings and projected those earn-
ings for the backpay period. Certainly, this is a commonly
accepted manner of computing gross backpay. I note that the
prelayoff period used by the General Counsel was suffi-
ciently large as to seem to be reliable and that it was the pe-
riod of time immediately before the layoff. Moreover, the
backpay period here is only a matter of months, thereby
making it less likely that major events could have occurred
that would have made this formula less reliable. Finally, as
Field Examiner Morgan testified, the absence of business
records from the Employer narrowed the range of possibili-
ties available of the General Counsel in computing gross
backpay. This formula results in the computation that White
would have worked an average of 49.6 hours a week during
the backpay period,4 for a total gross backpay amount of
$22,007.96.
However, as is the case with any gross backpay formula,
the general reliability of this gross backpay formula may be
negated by the facts in a particular case. Respondent con-
tends that gross backpay should be measured by using the
hours worked by an employee who actually worked during
the backpay period—John Browning. Using this formula, Re-
spondent computes an average weekly workweek of 35.8
straight time hours and 5.7 hours of overtime, for a total
gross backpay of $11,808.38. For this backpay formula to be
reliable, it must be established that the employee used in the
formula worked hours similiar to the hours the discriminatee
would have worked. In support thereof, Respondent pre-
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886 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 I base the foregoing findings on the testimony of White; I find
him to be a fully credible witness.
6 Logan County is where the Employer was located. Based on doc-
uments contained in Respondent’s brief, I take administrative notice
that the population of that county in 1993 was 43,032.
7 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.
sented testimony to that effect from Tiller. However, for rea-
sons stated above, I do not credit his testimony. Thus, Re-
spondent has failed to establish that using the hours worked
by Browning would have resulted in a more accurate meas-
ure of gross backpay than using the formula espoused by the
General Counsel. Accordingly, I shall use the gross backpay
formula described in the specification, and I conclude, based
thereon, that the amount of gross backpay owed White by
Respondent is $22,007.96.
3. Search for work
The General Counsel admits no interim earnings by White.
Respondent has not established any such interim earnings but
asserts that White has not properly searched for work during
the backpay period. The evidence shows that White regularly
searched for work after his layoff. During the backpay period
White went from coal mine to coal mine looking for work.
He did this about every other day. At the hearing he named
Southern Star Coal Company, W. P. Coal Company, and
Teanik Coal Company specifically as coal mines where he
applied for work. In addition, White listed seven other coal
mines where he looked for work during the third calendar
quarter in 1990; this was representative of the search White
made for work in the coal mining industry throughout the
backpay period. Also, White applied for work in areas other
than coal mining.5 This certainly satisfies White’s obligation
to make reasonable efforts to find work.
Respondent relies on a State of West Virginia, Bureau of
Employment Programs, Office of Labor and Economic Re-
search, generated computer printout. This doument lists 16
job orders in the coal mining industry in Logan County,
West Virginia,6 for the period of time from August 1990
through January 1991. Of the positions listed, White was
clearly not qualified for at least nine of those positions such
as accountant, personnel manager, administrative assistant,
secretary, and electrician. Thus, that document shows that
there were only seven positions available in the county in the
coal mining field during a 6-month period. This supports,
rather than detracts from, White’s explanation of his inability
to find work during the backpay period. I conclude that Re-
spondent has not met its burden of showing that White failed
to make an adequate search for work.
4. Respondent’s affirmative defenses
Respondent’s defenses that the grievance involved in the
underlying unfair labor practice case was nonmeritorious and
that it should have been held secondarily, rather than jointly
and severally liable, to pay backpay to White are clearly at-
tempts to relitigate matters decided in the earlier unfair labor
practice case. Respondent may not relitigate those matters in
a subsequent compliance proceeding. Respondent asserts that
the Employer and a local union are indispensable parties to
this proceeding, but it does not explain why. Indeed, there
is no apparent reason why those parties should be joined in
this proceeding to liquidate the amount of money Respondent
owes to White. Its defense that White’s backpay should be
offset by the earnings he made above the contractual levels
before 1990 is frivolous and deserves no further mention. Fi-
nally, Respondent seeks to delay this proceeding until the
bankruptcy matter involving the Employer is resolved. How-
ever, there is no certain date by which that will happen, and
there is no certainty that White will be made whole when
that proceeding is completed. In any event, White was un-
lawfully laid off in August 1990. It is now almost 7 years’
later and he has yet to be made whole by either the Respond-
ent or the Employer. It is truly regrettable that, for whatever
reasons, the time for promptly remedying the unfair labor
practice committted against White has already passed. Cer-
tainly it would be unconscionable to further delay these pro-
ceedings. Respondent’s defenses are all meritless.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended7
ORDER
The Respondent, District 17, United Mine Workers of
America, Logan County, West Virginia, its officers, agents,
and representatives, shall make Phillip Lee White whole by
paying him the amount of $22,007.96, plus interest computed
in accordance with New Horizons for the Retarded, 283
NLRB 1173 (1987), minus tax withholdings required by Fed-
eral and state law.
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