Oman Construction Co., Inc.

National Labor Relations Board - Board Decisions

Nov 13, 1963

144 N.L.R.B. 1534 (N.L.R.B. 1963)

1534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT engage in , or induce or encourage any individual employed by
Avalon Painting & Drywall Co. to engage in, a strike or a refusal in the course
of such individual 's employment to use or handle any materials , or to perform
any services , with an object of forcing or requiring Avalon Painting & Drywall
Co. to cease using, handling, or otherwise dealing in any products of, or to
cease doing business with, Hamilton Materials , Inc.; or to threaten , coerce, or
restrain Avalon Painting & Drywall Co. for such an object.
PAINT MAKERS LOCAL UNION #1232,
Labor Organization.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date of such posting and
must not be altered , defaced , or covered by any other material.
Information regarding provisions of this notice and compliance with its terms
may be secured from the Regional Office of the National Labor Relations Board,
849 S . Broadway, Los Angeles 14, California, Telephone No. Richmond 9-4711,
Extension 1031.
Oman Construction Co., Inc. and William H. Nelson . Case No.
26-CA-1141. November 13, 1963
SUPPLEMENTAL DECISION AND ORDER
On May 10, 1962, the Board issued a Decision and Order in the
above-entitled case, finding that Respondent had discriminated against
employee William H. Nelson in violation of Section 8(a) (1) and
(3) of the Act. Thereafter, the Board's Order was enforced in toto
by the U.S. Court of Appeals for the Sixth Circuit on May 14, 1963.
On July 2, 1963, the Acting Regional Director for the Twenty-
sixth Region issued a backpay specification, the Respondent filed an
answer thereto, and a hearing was held before Trial Examiner Leo F.
Lightner, for the purpose of determining the amount of backpay due
Nelson.
On September 5, 1963, the Trial Examiner issued his Supplemental
Decision, attached hereto, in which he found that Nelson was entitled
to backpay amounting to $4,772. Thereafter, the Respondent filed ex-
ceptions to the Supplemental Decision, and a supporting brief.
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 [Members Leedom, Fanning,,and Brown].
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 and the ex-
ceptions and brief, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.'
i Respondent 's request for oral argument is hereby denied as , in our opinion , the record,
including the exceptions and brief, adequately presents the issues and the positions of the
parties.
144 NLRB No. 150.
OMAN CONSTRUCTION CO., INC. 1535
ORDER
The Board, hereby adopts the Conclusions and Recommendations of
the Trial Examiner, and directs the Respondent to pay to William H.
Nelson as backpay the sum of $4,772, less the tax to be withheld, as
and if required by Federal and State laws.
TRIAL EXAMINER'S SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
This supplemental proceeding to determine backpay, with all parties represented,
was heard before Trial Examiner Leo F. Lightner in Nashville, Tennessee, on Au-
gust 1 , 1963, on the specification of the General Counsel and the answer of the
Respondent . Generally, the issue litigated was the amount of backpay due, if any,
from the Respondent to William H. Nelson . All parties were afforded full oppor-
tunity to examine and cross-examine witnesses , to introduce evidence, to present oral
argument , and thereafter to file briefs. A brief filed by the Respondent has been
carefully considered.
Upon my observation of the witnesses , and upon consideration of the pleadings,
testimony, exhibits , and the entire record in the case, I make the following:
FINDINGS AND CONCLUSIONS
Background and Pleadings
On May 10, 1962 , the Board issued its Decision and Order , reported in 137 NLRB
111, directing , i nter aka, that the Respondent make whole William H. Nelson, who
the Board found had been denied employment by reason of the discriminatory
conduct of Respondent , Oman Construction Co., Inc. On May 14, 1963, upon
petition for enforcement of the foregoing court order, the U.S. Court of Appeals for
the Sixth Circuit entered its decree enforcing the Board 's Order in toto. N.L .R.B. v.
Oman Construction Co., Inc., 316 F.2d 230.
It is undisputed that the backpay period began with the week ending May 25, 1961,
more particularly May 22, the date the Board found as the date of the discriminatory
layoff of Nelson, and ended October 6, 1962, the last workday preceding Nelson's
reemployment on Monday , October 8, 1962.
The Issue of Jurisdiction
Respondent asserts, in its brief, that the Board is without authority to conduct a
backpay hearing, and inferentially to render a decision , " in the absence of remand
of the case by the Court to the Board for such purpose." Acknowledging that this
issue was not raised by its pleadings, or, in fact , during the hearing , Respondent
nevertheless asserts that "general jurisdiction of the subject matter does not have
to be pleaded as a matter of law."
The Supreme Court has held that: Section 10 (c) of the National Labor Relations
Act authorizes the Board , once an unfair labor practice has been found, to require,
inter alia, the person who committed it to "take such affirmative action, including
reinstatement of employees with or without back pay, as will effectuate the policies
of this Act." The fixing of the backpay is one of the functions confided solely to
the Board. At the time an order of the Board is enforced the amount of backpay
is often not computed . Once an enforcement order issues the Board must work
out the details of the backpay that is due and the reinstatement of employees that
has been directed . This may be done by negotiation ; or it may have to be done in
a proceeding before the Board . The computation of the amount due may not
be a simple matter. It may require , in addition to the projection of earnings which
the employee would have enjoyed had he not been discharged and the computation
of actual interim earnings , the determination whether the employee willfully incurred
losses, whether the backpay period should be terminated because of offers of
reinstatement or the withdrawal of the employee from the labor market, whether the
employee received equivalent employment , and the like. Nathanson v. N.L.R.B.,
344 U.S. 25, 29 , 30. See also Phelps Dodge Corp. v. N.L.R.B., 313 U.S. 177, 199,
200; N.L.R.B. v. Deena Artware, Inc., 361 U.S. 398, 411 (Frankfurter , J., concur-
1536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ring ); N.L.R B. v. New York Merchandise Company, 134 F. 2d 949, 951 (C.A. 2);
Wallace Corporation v. N L.R.B., 159 F. 2d 952, 954 (C.A 4).
I find no merit in Respondent 's contention.
The Formula
The backpay specification utilizes a formula traditionally applied by the Board
in proceedings of this kind, and includes the following:
(a) It is alleged that an appropriate measure of the earnings Nelson would have
earned during the week of the backpay period is the average earnings of representa-
tive employees, Clyde Weakley and Buford Ingram, who are employed in the same
capacity as Nelson, i.e., as lowboy operators (truckdrivers) and at the same rate
of pay; (b) Nelson's quarterly gross backpay was determined by adding the average
earnings of the representative employees named during each quarter of the backpay
period, plus, for the fourth quarter of 1961 and 1962, the amount of the Christmas
bonus Nelson would have received; (c) calendar quarter net interim earnings is the
difference between the calendar interim earnings and the calendar quarterly ex-
penses; (d) calendar quarter net backpay is the difference between calendar quarter
gross backpay and calendar quarter net interim earnings; and (e) the total net
backpay due Nelson is the sum of the calendar quarter amounts of net backpay
due him.
Issue of Representative Employees
Respondent, in its answer, denied that the average earnings of Weakley and
Ingram was an appropriate measure for the determination of the earnings Nelson
would have earned during each week of the backpay period, alleging that Weakley
and Ingram were not employed in the same capacity as Nelson, and asserting that
the proper measure of such backpay earnings, if any, would be the amount earned
by Joe Long. This contention is next considered.
Nelson's undisputed testimony was that prior to March 11, 1961, he and Weakley
and Ingram were the three truckdrivers employed by Respondent. Nelson drove a
B-87 Mack, otherwise described as a "low boy." Weakley drove a tandem trailer,
which was identified as a lowboy. Nelson drove a triple axle trailer, and like the
other two hauled heavy equipment with an extra tandem trailer. Since his reinstate-
ment on October 8, 1962, Nelson has driven the same equipment as previously, the
B-87 Mack. It is true that Long replaced Nelson on the B-87 Mack after March
11, 1961, and on numerous occasions in the backpay period Long drove that equip-
ment. However, Long's undisputed testimony was that he worked as a mechanic
in the shop "on a lot of occasions," during the backpay period. Long asserted that
he, on occasions, would work in the shop as long as a week at a time when Weakley
and Ingram were on the road. Long asserted, "I had a farm that I could work on
which I preferred to do work on, and at that time it didn't make any difference to
me whether I got the run or not." Long advised that shopwork was confined to
10 hours a day while some of the trips, driven by Weakley and Ingram, required
as much as 14 hours. The hourly rate Long earned in the shop was the same as
the hourly rate for the truckdrivers. In addition, Long asserted that he frequently
asked for time off in order to work on his farm and that these requests for time off,
without pay, were during periods included within the backpay period. It is patent
that, by reason of voluntary absence and lower daily hours worked, while working
in the shop, Long during the backpay period earned substantially less than either
Ingram or Weakley. The respective gross earnings of each permit no other con-
•clusion. Respondent's records reflect that these earnings were: Long, $6,870.63;
Ingram, $7,997.02; Weakley, $7,765.66.1 Part of this difference, however, was due
to the fact that Long did not work for the Respondent during September and
October 1962.
In view of the testimony of Long relative to his voluntary absences during the
backpay period and his testimony that he voluntarily elected to work shorter hours,
as a garage mechanic, during portions of the backpay period, I find Respondent's
contention that the proper measure of the backpay earnings of Nelson should be the
actual amount earned by Long to be without merit. Having found that Weakley
and Ingram were driving equipment comparable to that which Nelson would have
driven absent discrimination, I find, as contended by General Counsel, that the
I Errors in the specification are set forth infra. To the extent these findings Cary from
the testimony of George A. Collin, treasurer of Respondent, I do not credit Collin. Collin
asserted the earnings were: Long, $6,870.63; Ingram, $7,991.72; Weakley, $7,758.14.
OMAN CONSTRUCTION CO., INC. 1537
average earnings of these two named employees constitutes the proper measure for
determining the gross backpay Nelson would have earned absent said discrimination?
Issue as to Whether Claimant Willfully Incurred Loss of Earnings
The undisputed testimony of Nelson was that after he was laid off by Respondent,
he registered with the Tennessee Department of Employment Security, he kept that
registration current while unemployed, and he registered with the Union on its
extra board; in addition he made numerous applications for employment by various
construction companies, at a filling station, and at Tennessee University. During
the backpay period Nelson worked for: Wilson Truck Company, Inc., in the third
and fourth quarters of 1961; for Road Builders, Inc., in the first quarter of 1962;
and for Ray Carter, Inc., in the second, third, and fourth quarters of 1962, until
reinstated by Respondent. Respondent contends that Nelson declined employment
and thus willfully incurred loss of earnings. This contention is next considered.
Nelson's home is in Nashville where he is buying a house. There are six in his
family. Nelson asserted that 90 percent of the time between 1953 and 1961 he
worked for Respondent. During this period he transported equipment to various
places "from the Florida line to New York," but he was never permanently stationed
anywhere other than Nashville. However, Nelson acknowledged that he spent 1
week, working for Respondent, in Tuscaloosa, Alabama, 3 weeks in Kentucky, and
he was in Cheatham County (adjacent to Davidson County, in which Nashville is
located) from approximately March 1959 until March 1960. During all of these
periods his home remained in Nashville.
Nelson related that while working for Road Builders, Inc., at Nashville, on
April 2, 1962, he was advised by Herman Moore, superintendent, and J. C. Smart
(capacity not identified) that in order to continue working it would be necessary for
him to accept a job in Memphis driving a dry concrete trailer, at the same rate he
was making in Nashville, which was $1.65 an hour. After consulting his wife, Nelson
advised Moore and Smart that he did not see how he could keep two homes going
on the rate he was receiving and accordingly refused to go to Memphis. Among the
factors he considered, Nelson related, was the fact that when it was raining they did
not pour concrete. Memphis is more than 200 miles from Nashville. Nelson was
then advised that Road Builders, Inc., had no further employment for him in Nash-
ville. It is Nelson's undisputed testimony that he was not penalized by the Tennessee
Unemployment Board for voluntarily leaving the employment of Road Builders, Inc.,
under the circumstances.
Respondent did not produce either Moore or Smart to dispute the testimony of
Nelson, whom, on the basis of demeanor and on the entire record, I find a credible
witness.
Ernest C. Onks, vice president of Road Builders, Inc., acknowledged that he was
not present during the conversation between Moore, Smart, and Nelson. Onks
testified that the records of the Company indicated that Nelson declined to accept
the job in Memphis, and that fact was reported to the Tennessee Department of
Employment Security. Onks acknowledged that the company records reflected that
one driver in Memphis received $1.85 an hour while the other driver received
$1.65 an hour.3
As a result of Nelson's failure to accept the proffered employment in Memphis,
it appears that he was unemployed from April 2 until May 18, 1962. His employ-
ment on May 18, 1962, was by Ray Carter, Inc., at Memphis, Tennessee, where he
earned $75 a week plus commission on what he hauled. He was expected to work
45 hours a week. This employment was the hauling of heavy equipment to
Memphis, Oklahoma City, Staten Island, Chattanooga, Rice, Virginia, and Louis-
ville, Kentucky. During the period from May 18 to, and including, October 5,
1962, he rented a room in Memphis for 2 days and the rest of the time he was
on the road However, Carter did his best to have Nelson home on weekends.
There is no evidence in this record of the number of hours Nelson would have
worked between April 2 and October 5, 1962, had he accepted employment, in
2 Knickerbocker Plastic Co, Inc, 118 NLRB 1607; Pugh and Barr, Inc, 102 NLRB
502; Prigg Boat Works, 97 NLRB 290.
3 While Onks asserted that if Nelson had worked on the trailer dock in Memphis, his
pay would have been $1.65 an hour, that if he had been directly on the (construction) job
"instead of being hauling for a material producer it would have been $2.28," there is no
evidence, or claim, that Nelson was so advised.
1538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Memphis, by Road Builders, Inc. Neither does the record permit a comparison of
Nelson's actual earnings from May 18 to October 5, 1962, with the earnings he might
have received had he accepted Road Builders' offer of employment in Memphis.
Board and court decisions hold that a discriminatee who accepts work away from
home is entitled to certain expenses incidental thereto, which, if Nelson had accepted
such employment, would have been deductible from the rate offered him of $1.65
an hour. The period during which he was unemployed as the result of refusing
to accept employment in Memphis is confined to the period commencing April 2
and ending May 18, 1962.
I find that a discriminatee is not required to accept employment 200 miles from his
home in order to avoid a finding of willful loss of earnings .4 I find no merit in
Respondent's contention.
The Issue as to Deduction for Unemployment Compensation Payments
Respondent contends that it should be permitted to deduct from Nelson's back-
pay claim the amount of contributions it made to the State of Tennessee for
unemployment compensation. I find no merit in this contention since such amounts
are nondeductible. See Gullett Gin Co. v. N.L.R.B., 340 U.S. 361.
Issue as to Quarterly Computation
Respondent acknowledged in its brief that "backpay computation by quarters has
been approved by the Supreme Court of the United States where reinstatement has
been ordered with backpay." Respondent then asserts "but quarterly computation
has no relevance where the Order is a `make whole' order, since any amount other-
wise due on a quarterly basis must be offset by amounts actually earned, or which
could have been earned if reasonable offers of employment had been accepted."
In its answer Respondent denied the right of the Board to compute gross backpay on
a quarterly basis. I find it unnecessary to treat at length with this contention in
view of the acknowledgment of the Respondent of the decisions of the Supreme
Court with respect to this matter. I find no merit in Respondent's contention.
Issue as to Christmas Bonus
General Counsel contends that Nelson , as part of his backpay claim, is entitled
to a Christmas bonus in the amount of $25 for the year 1961 , and a like amount for
the year 1962 , less $10 received in the latter year . Respondent contends that the
Christmas bonuses were gifts, that since Nelson was not employed in the year 1961,
he was not entitled to a Christmas bonus, and since he worked only a portion of
the year 1962, he is not entitled to more than the $10 bonus which he was given.
R. H. Godwin, executive vice president of Respondent, asserted that Respondent
does not have a written plan under which it is required to pay a Christmas bonus.
Such bonuses were determined by the board of directors , on the basis of the earnings
of the Company , and a bonus in the amount of $25 was paid to the truckdrivers,
and others , in each of the years 1961 and 1962. Godwin acknowledged that had
Nelson worked the entire year in 1961 and 1962 , he would have received the same
bonus as the others.
That such Christmas bonuses constitute a part of an employee's remuneration and
are included in the Board 's Order to make a discriminatee "whole" appears in-
disputable . Moss Planing Mill Co., 110 NLRB 933, 935; N.L.R.B. v. Niles-Bement-
Pond Company , 199 F. 2d 713 (C.A. 2).
Accordingly , I find that Nelson , as part of the backpay due him , is entitled to the
Christmas bonuses he would have received had he been employed, as he would have
been except for Respondent 's discrimination , as previously found by the Board.
The Claim Litigated
I have found, supra, that Nelson is entitled to the average of the gross pay received
by Weakley and Ingram during the backpay period, less his interim earnings. In
addition, Nelson is entitled to the amounts paid as a Christmas bonus in 1961 and
1962, less the amount he received. These amounts, I find, are:
4 Ozark Hardwood Company, 119 NLRB 1130; Harvest Queen Hill eC Elevator Company,
90 NLRB 320
BROWARD COUNTY PORT AUTHORITY
Calendar Quarters
1539
1961-2 (May 22-June 30)------------------------------- $634.00
1961-3------------------------------------------------ 1,051.00
1961-4------------------------------------------------ 5665.00
1962-1------------------------------------------------ 689.00
1962-2----------------------------------------------- 6 1,164.00
1962-3------------------------------------------------ 488.00
1962-4------------------------------------------------ 81.00
Total net amount--------------------------------- 4,772.00
Concluding Findings
On the basis of the evidence in the record as a whole, I find that Nelson promptly
effected an unemployment registration ; in addition he registered with the Union and
sought work elsewhere by applying to individual employers in the Nashville area.
It is obvious that he was successful in obtaining temporary work , and at all times
when not employed he was registered with the State employment agency. Accord-
ingly, I find that the General Counsel has established a prima facie case. Respond-
ent has failed to establish any facts which would negate or mitigate its liability to
the discriminatee , beyond that reflected by the interim earnings contained in the
specification?
CONCLUSIONS AND RECOMMENDATIONS
Accordingly , for the reasons set forth , I find and conclude that William H. Nelson
is entitled to payment by the Respondent of the sum of $4,772, less the tax with-
holding required by Federal and State laws.
It is recommended that the Board adopt the foregoing findings and conclusions.
s While the specifications Indicate the earnings of Ingram for the week ending Decem-
ber 21 were $54.40, Respondent 's records reflect payment of $154.40 on December 23. The
specification is corrected accordingly.
6 While the specifications Indicate the earnings of Weakley for the week ending April 5
were $87.60 , Respondent's records reflect payment of $89 . 20. The specification is cor-
rected accordingly.
7 United States Air Conditioning Corporation , 141 NLRB 1278; Mastro Plastics Corpora-
tion, 136 NLRB 1342; Monroe Feed Store, 122 NLRB 1479; International Association of
Heat and Frost Insulators and Asbestos Workers, Local 31 (Rhode Island Covering Com-
pany ), 119 NLRB 801 ; Alaska Steamship Company, 114 NLRB 1264.
Broward County Port Authority and Order of Railroad Teleg-
raphers and Brotherhood of Maintenance Way Employees.
Case No. A0-64. November 13, 1963
ORDER DISMISSING PETI'T'ION FOR ADVISORY OPINION
This is a petition filed on October 14, 1963, by Broward County
Port Authority, herein called the Petitioner, pursuant to Sections
102.98 and 102.99 of the Board's Rules and Regulations, Series 8, as
amended, requesting an Advisory Opinion with respect to the juris-
dictional issue raised in the injunction proceeding filed by the Peti-
tioner against the Order of Railroad Telegraphers and Brotherhood
of Maintenance Way Employees, herein called the Unions, and against
two officials of the Unions. In the injunction 'action, presently pend-
ing in the Circuit Court, 15th Judicial Circuit, Broward County, Fort
Lauderdale, Florida, Docket Number C63-3397 (Tedder, Sr.), the
144 NLRB No. 115.
727-083-64-vol . 144-98