Pope Concrete Products

National Labor Relations Board - Board Decisions

Nov 18, 1993

312 N.L.R.B. 1171 (N.L.R.B. 1993)

1171
312 NLRB No. 198
POPE CONCRETE PRODUCTS
1 On July 8, 1993, Administrative Law Judge Lowell M. Goerlich
issued the attached supplemental decision. The Respondent filed ex-
ceptions and a supporting brief.
2 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.
3 We note that the distances between Hollow Rock, Holladay, and
Murray were not so great that it would have been impossible for
Buie to visit all three cities in a single day. In fact, Buie frequently
traveled long distances in a day to apply for jobs in several different
cities.
1 305 NLRB 989 (1991).
2 ‘‘We have heretofore held, with court approval, that in a backpay
proceeding the burden is on the General Counsel to show only the
gross amounts of backpay due.’’ United States Air Conditioning
Corp., supra at 1280.
Pope Concrete Products, Inc. and Oil, Chemical
and Atomic Workers International Union,
AFL–CIO, Local 3-987. Cases 26–CA–13404
and 26–CA–13472
November 18, 1993
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
The issue in this case is whether the judge correctly
rejected the Respondent’s affirmative defenses to the
General Counsel’s compliance specification for
discriminatee Daythel Buie.1 The National Labor Rela-
tions 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,2 and conclusions,
as further explained below, and to adopt the rec-
ommended Order.
1. In finding that Buie diligently searched for alter-
native work, the judge relied in part on personal job
search records maintained by Buie and his wife. Buie’s
personal records indicate that on January 14, 1991,
Buie applied for jobs in Hollow Rock and Holladay,
Tennessee. The employment and expense data sheets
which Buie submitted to Region 26 make no reference
to Tennessee jobsite applications on that date, but they
indicate that Buie applied for a job in Murray, Ken-
tucky. The Respondent argues that this discrepancy
shows that the Buies fabricated evidence and under-
mines their credibility.3 We disagree. The differences
cited between Buie’s personal records and the records
submitted to the Region are an insufficient basis, in
light of the record as a whole, on which to overturn
the judge’s credibility resolutions.
2. The Respondent claims that Buie was unavailable
to work from September 21 to October 7, 1990, while
his daughter was hospitalized in critical condition. In
support of this argument, the Respondent relies on an
application for unemployment compensation by Buie
on October 2. Buie indicated there that he was unavail-
able to work afternoons because of child care respon-
sibilities. We find that the application, which implicitly
indicated Buie’s continuing availability for work at
times other than in the afternoon, fails to meet the Re-
spondent’s burden of proving that Buie removed him-
self from the job market during the period in question.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Pope Concrete Products,
Inc., Paris, Tennessee, its officers, agents, successors,
and assigns, shall take the action set forth in the Order.
Jack L. Berger, Esq., for the General Counsel.
Rayford T. Blankenship and Martin Howe, Esqs., of Green-
wood, Indiana, for the Respondent.
Hugh A. Jacks, International Representative, of Chattanooga,
Tennessee, for the Charging Party.
SUPPLEMENTAL DECISION
LOWELL M. GOERLICH, Administrative Law Judge. This
matter is here on the General Counsel’s first amended speci-
fication, as amended, in which it is alleged that there is back-
pay due to Daythel Buie under the Board’s Order.1 In its an-
swer to the amended specification, the Respondent admits the
following allegations in the first amended specification:
An appropriate measure of the earnings Daythel Buie
would have earned during each quarter of his backpay
period is the average earnings of other individuals who
were employed during the backpay period in Buie’s job
category.
The quarterly gross backpay computation for Daythel
Buie is set forth on Appendix A.
Calendar quarter net interim earnings is the dif-
ference between quarter interim earnings and calendar
quarter expenses.
Calendar quarter net backpay is the difference be-
tween quarter gross backpay and calendar net interim
earnings.
The first amended specification is also admitted as to ap-
pendix A of the amended specification and as to Buie’s em-
ployment and earnings at Houston Trucking Company
(Houston).
Because the gross backpay2 owing Buie has been admitted
and the method of computing the backpay has not been chal-
lenged and the method of computing backpay is reasonable
and fair, the burden shifted to the Respondent ‘‘to establish
facts which would negative the existence of liability to a
given employee or which would mitigate that liability.’’
United States Air Conditioning Corp., 141 NLRB 1278, 1280
(1963), enfd. 336 F.2d 275 (6th Cir. 1964).
In this case of NLRB v. Mooney Aircraft, 366 F.2d 809,
812 (5th Cir. 1966), the court commented:
1172 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Buie’s wife usually accompanied D. Buie in his job searches. Be-
cause D. Buie’s reading and writing abilities were limited, P. Buie
filled out the job applications for her husband. She also maintained
written records of the job searches including the information on job
searches sent to the National Labor Relations Board recorded on the
National Labor Relations Board employment and expense data
sheets.
4 Ray Houston’s testimony. Houston also testified, ‘‘[I]f you stop
it up you could get covered with dust.’’
While the General Counsel has the burden of prov-
ing unlawful discrimination on the part of the employer,
and hence that backpay is due, the employer usually
has the burden of establishing affirmative defenses
which would mitigate his liability. NLRB v. Miami
Coca-Cola Bottling Co., supra [360 F.2d 569]; NLRB v.
Brown & Root, Inc., 8 Cir. 1963, 311 F.2d 447. Among
these affirmative defenses are the unavailability of jobs
because of nondiscriminatory factors . . . the employ-
ees’ interim earnings to be deducted from the backpay
award.
The cases are unanimous that the employer must es-
tablish these defenses by a preponderance of the evi-
dence. NLRB v. Miami Coca-Cola Bottling Co., supra;
NLRB v. Master Plastics Corp., 2 Cir. 1965, 354 F.2d
170; NLRB v. Brown & Root, Inc., supra.
The fact that the General Counsel included deductions of
interim earnings in his backpay computation in no manner
lessened the Respondent’s burden.
The Respondent raises several affirmative defenses which
shall be considered below.
First: The Respondent asserts that Buie did not use reason-
able exertions to find interim employment. Apparently the
Respondent attempts to sustain this assertion by discrediting
Daythel D. Buie, the discriminatee, and his wife Patsy June
Buie,3 who testified as to Buie’s job search; by claiming that
Buie’s job search in certain quarters did not meet mitigation
requirements; and by producing newspaper ads for truck-
driver jobs and the testimony of the Respondent’s witness
which disclosed that a substantial number of truckdriver jobs
were available during the backpay period.
In the case of Florence Printing Co., 158 NLRB 775, 777
(1966), enfd. 376 F.2d 216 (4th Cir. 1967), the Board held
that the respondent failed to meet its burden to establish facts
which would negative the existence of liability to a given
employee or which would mitigate that liability when the re-
spondent failed to show that employees did not seek jobs ad-
vertised in the newspaper or available jobs. See also Airports
Service Lines, 231 NLRB 1272 (1977). Likewise, in the in-
stant case, the Respondent has failed to meet this burden. In
fact, P. Buie testified that she looked at job placement ads
in the Paris, Tennessee papers, some of which were an-
swered. Moreover, there is no credible proof that the adver-
tised jobs were substantially equivalent employment.
In regard to the claim that Buie was lax in certain quar-
ters, on this subject the Board has opined:
A discriminatee who has otherwise made reasonable ef-
forts to seek out new employment is not required in
each specific quarter to repeat job applications which
from her past efforts she knows are foredoomed to fu-
tility in order to protect her claim of backpay for that
particular quarter. Rather, the entire backpay period
must be scrutinized to determine whether throughout
that period there was, in the light of all surrounding
circumstances, a reasonable continuing search such as
to foreclose a finding of willful loss. [Cornwell Co., 171
NLRB 342, 343 (1968).] [Emphasis added.]
In regard to the credibility of D. Buie and P. Buie, based
on their demeanor and an examination of the record as a
whole, I find them to be credible witnesses in respect to the
matters involving job search. The test is whether the
discriminatee had made reasonable efforts to find new em-
ployment which is substantially equivalent to his prior posi-
tion. American Mfg. Co. of Texas, 167 NLRB 520, 525
(1967). On the basis of the record as a whole, I find that
Buie diligently searched for alternative work. In fact he not
only searched for work, but also he found work and accepted
employment at the Houston Trucking Company.
An employee has not willfully incurred a loss of earning
where he has made a good-faith effort to obtain interim em-
ployment. A ‘‘wrongfully-discharged employee is only re-
quired to make a reasonable effort to mitigate damages, and
is not held to the highest standard of diligence. This burden
is not onerous, and does not mandate that the [employee] be
successful in mitigating the damage.’’ NLRB v. Westin Hotel,
758 F.2d 1126, 1130 (6th Cir. 1985).
It is well established that ‘‘any uncertainty must be re-
solved against the wrongdoer whose conduct made certainty
impossible.’’ Fibreboard Paper Products Corp., 180 NLRB
142, 143 (1969).
The Respondent’s foregoing defense is not well taken.
Second: The Respondent further asserts that Buie quit sub-
stantially equivalent employment without just cause.
Buie first contracted psoriasis when he was 14 years old.
Doctors told him that ‘‘grease, oil, chemicals would irritate
it.’’ While he worked for the Respondent from March 27 to
September 27, 1989, driving a sand and gravel dump truck
his psoriasis condition was not adversely effected.
On February 26, 1990, Buie went to work for Houston
Trucking Company where he remained employed until Au-
gust 31, 1990, at which time he quit. Buie’s job at Houston
was to pull a bulk tanker. The tanker carried clay in a pow-
dered or dust form. The clay dust is composed of approxi-
mately 39.5 percent aluminum oxide. (G.C. Exh. 6, p. 552.)
The clay is called ball clay, Al2O32SiO22H2O, hydrous alu-
minum silicate, kaolinate. (R. Exh. 7.)
While loading and unloading the tanker, the driver is ex-
posed to the clay dust which escapes. For example when a
tanker is overloaded ‘‘they blow off’’ the excess clay dust
some times ‘‘back into a silo, but there’s times they’ll just
blow it off on the ground.’’4 Sometimes the dust was 6 to
8 inches deep. While working at the job, Buie was exposed
to the clay dust which settled on his person.
When Buie went to work for Houston, his psoriasis was
‘‘under control.’’ ‘‘It continuously got worse. I started break-
ing out again about three, three and a half months after I
went to work there, and it just continually got worse til it
got unbearable.’’ During the period, Buie was using medica-
tion and seeing Dr. Robert J. Kaplan, who specializes in der-
matology. Buie testified, ‘‘I went to the doctor, he told me
to avoid the chemicals, stay out of the dust. . . . I told him,
1173POPE CONCRETE PRODUCTS
5 Houston testified that about 2 weeks before Buie quit, Buie had
mentioned to him that he had a skin problem with clay.
I said this is all that this man has for me to do. And he made
the suggestion that I get out of it, and I asked him to give
me a letter to where I could present to Mr. Houston.’’ Dr.
Kaplan furnished such a letter dated September 6, 1990, in
which appears, ‘‘This is to certify that I am treating Mr.
Daythel Buie for severe generalized psoriasis. Exposure to ir-
ritating or toxic chemicals can exacerbate his psoriasis and
I advised Mr. Buie to avoid such exposures as much as pos-
sible. P. Buie testified, ‘‘It [the psoriasis] was not clearing
up, he was itching, he was scratching, he would scratch him-
self raw, he would scratch in his sleep and bleed on the bed,
on his clothes.’’
After being advised by Dr. Kaplan to avoid being exposed
to chemicals, Buie returned to Houston and told them he was
quitting ‘‘because that the clay was irritating my skin prob-
lem and that the doctor had advised me to.’’5
Buie testified that he quit his employment with Houston,
‘‘[b]ecause I was going on the advice of my doctor, and it
was itching so bad that I would claw the blood out of my
arms and legs. And it was just unbearable. I could not put
up with it.’’
After Buie ceased working at Houston the psoriasis
‘‘cleared up.’’ P. Buie testified that after Buie no longer
worked at Houston, ‘‘I observed the parts going away, the
scabs, and it beginning to—instead of building up so high,
it began to thin down and to go away. I quit having blood
on the sheet every morning and his clothes were not
bloody.’’
The record conclusively establishes that exposure to ball
clay dust exacerbated Buie’s psoriasis condition to the point
that the psoriasis became ‘‘unbearable.’’ Interim employment
which exposed Buie (who had successfully filled a job for
the Respondent) to working conditions which caused him se-
vere hardship to the point where he could not tolerate the
working environment without unbearable physical discomfort
may not be held to be substantial equivalent employment.
Nor did the duty to mitigate require Buie to work under such
dire circumstances when, had he remained in the employ-
ment of the Respondent, he would have been able to have
performed his job without the exposure which caused the se-
vere exacerbation of his psoriasis. The Respondent’s defense
is not well taken. Cf. Airports Service Lines, 231 NLRB
1272, 1273 (1977).
Third: The Respondent asserts that Buie was fully rein-
stated pursuant to the Board’s Order.
The General Counsel has compared the average hourly
earnings and average daily earnings of Buie and Dalton Hall
as derived from General Counsel’s Exhibits 7 and 8 and Re-
spondent’s Exhibits 31(a)–(b) as follows:
DAYTHEL BUIE
Week Ending Gross Pay Days Worked Total Hours Average $ Per Hour Average $ Per Day
3/12/92 $184 3 27.00 $6.81 $61.33
3/19/92 295 4 38.25 7.71 73.75
3/26/92 253 5 *41.40 6.10 50.60
4/2/92 309 5 *47.50 6.51 61.80
4/9/92 307 5 57.00 5.39 61.40
4/16/92 278 4 46.25 6.01 69.50
6-wk. avg. $6.42 $63.06
* Weekly hours estimated inasmuch as copies of timecards [R. Exhs. 31(c) and (d)] do not indicate minutes.
DALTON HALL
Week Ending Gross Pay Days Worked Total Hours Average $ Per Hour Average $ Per Day
3/12/92 $367 5 47.00 $7.81 $73.40
3/19/92 448 5 48.00 9.33 89.60
3/26/92 276 3 26.00 10.62 92.00
4/9/92** 302 4 40.00 7.55 75.50
4/16/92 463 5 52.50 8.82 92.60
5-wk. avg. $8.83 $84.62
** There is no evidence to indicate that Hall worked the week ending 4/2/92.
Dalton Hall drove the truck which replaced the truck Buie
had driven when Buie had worked for the Respondent prior
to his discharge. Buie was assigned a truck which was driven
home by Jeff Pope each day. Because Jeff Pope returned the
truck to the Respondent’s premises later than the hour Buie
had gone to work before he was discharged, Buie was de-
prived of worktime. Before his discharge he had been given
a key to enter the Respondent’s facility earlier in the morn-
ing to get his truck. By the new arrangement, whereby he
had to wait for Jeff Pope’s arrival, one load was eliminated
(Buie’s wages were based on the tonnage hauled).
The whole comparison between the wages of Buie and
Hall, above set out, discloses that Buie was not given the
runs enabling him to make the wages he had earned before
his discharge. Had Buie been fully reinstated, he would not
1174 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 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.
7 There being no opposition thereto, the General Counsel’s motion
to correct the record is granted, and the record is corrected.
have been assigned to the truck driven home by Jeff Pope
but would have been assigned to the truck assigned to Dalton
Hall which was the truck he would have driven had he not
been discharged. Thus, the Respondent’s defense is not well
taken.
Fourth: The Respondent asserts that the Respondent’s
backpay obligation should be reduced by $1,277.33 because
Buie’s truck was inoperative, and Buie would have been laid
off for 28 days while the truck was being repaired. The Re-
spondent plants its claim on the fact that the truck Buie was
driving was out of service for 28 days beginning September
26, 1989, by reason of a ‘‘blow up’’ of the engine until Oc-
tober 25, 1989.
The Respondent’s claim is highly speculative. Buie had
worked for the Respondent for over 6 months. Moreover,
Buie was qualified to drive the Respondent’s concrete mixer
trucks, which on occasion Buie did drive. Had Buie not been
wrongfully discharged, it is as likely that he would have
been given a concrete truck to drive as to have been laid off.
Bill Metcalf, who took Buie’s place, was transferred from a
concrete truckdriving job. Because the probability of Buie’s
being laid off must be construed less favorably as to the Re-
spondent wrongdoer, I reject the Respondent’s defense as too
speculative on which to base a finding.
Fifth: The Respondent asserts that the Respondent’s back-
pay obligation should be reduced by $1,479.70 because
Buie’s truck was destroyed in an accident, and Buie would
have been laid off for 59 days until a replacement truck was
put in operation.
On November 3, 1989, 9 days after the truck Buie had
been driving was repaired, the truck was totally destroyed in
an accident. At the time of the accident, Bill Metcalf was
taken off of a concrete truck and was driving the repaired
truck. After the accident Metcalf went back to the concrete
truck. In fact, Albert Pope testified:
Q. Have you ever had an occasion to lay off a sand
and gravel driver because a truck was down?
A. I don’t believe so.
The Respondent’s claim is highly speculative. It is quite
possible that if Buie had been driving the truck there would
have been no acident. In any event, Metcalf was not laid off.
It would seem reasonable that Buie would have been treated
likewise. The Respondent’s defense, being highly specula-
tive, is not well taken.
Sixth: The Respondent asserts that Buie was not available
for the entire backpay period.
The Respondent claims that from September 21 to October
7, 1990, Buie was unable to look for interim employment.
This claim is based on the following entry in one of the
records of job search kept by P. Buie:
9–21 thru 10–7 daughter in auto accident in critical
condition in hospital.
Because I have already found that Buie had satisfied his
duty in respect to job search throughout the backpay period,
this defense is not well taken. Even had he refrained from
searching for work for this short period, his overall efforts
satisfied his duty to mitigate.
Seventh: The Respondent asserts that interest which ac-
crued on backpay after April 22, 1992, should cease due to
the Board’s willful refusal to proceed in a timely manner to
resolve the issues without good cause.
The Respondent plants this assertion in a letter which it
addressed to ‘‘Compliance National Labor Relations Board,
Region 26,’’ as follows:
This to advise your office that the employer in the
above entitled action stands ready to comply with the
Board’s Order.
Please contact my office and give me directions as
to what you require.
The record does not disclose that the Respondent, although
it sent the above letter, has ever fully complied with the
Board’s Order. In fact in this compliance hearing, it is resist-
ing compliance with the Board’s Order. The Respondent’s
claim for the tolling of interest as of April 22, 1992, is de-
nied.
One further issue raised by the Respondent remains, i.e.,
whether to strike the testimony of Buie and Johnny Moody
because during the testimony of Charging Party witness
Danny Owen, witnesses Moody and Buie were present in
court in violation of the order for separation of witnesses.
The Respondent requests that ‘‘Mr. Moody’s testimony
should be striken from the record in its entirety and Buie’s
testimony should be stricken as to the working conditions at
Houston and Respondent.’’ (R. posthearing Br. 13.)
I deem it unnecessary to pass on the Respondent’s motion,
because my decision would have been the same whether I
had considered the testimony of Moody or Buie on the sub-
ject of working conditions at Houston.
Accordingly, there being no material and credible evidence
presented in this case which supports a finding that the Gen-
eral Counsel’s computations are not drawn according to law
or technically correct, I adopt them and approve them.
On the foregoing, I issue the following recommended6
ORDER
The Respondent, Pope Concrete Products, Inc., Paris, Ten-
nessee, its officers, agents, successors, and assigns, shall pay
to Daythel D. Buie the amount of $32,421.93 plus interest
accrued to the date of payment, minus taxes.7