Ron's Trucking Service

National Labor Relations Board - Board Decisions

Jun 20, 1978

236 N.L.R.B. 1065 (N.L.R.B. 1978)

RON'S TRUCKING SERVICE
Ronald Hackenberger d/b/a Ron's Trucking Service
and William F. Brown, Sr. Case 8-CA-8622
June 20, 1978
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS PENEI.LO
AND MURPH'r
On May 9, 1977,1 Administrative Law Judge
Ralph Winkler issued the attached Supplemental De-
cision in this proceeding.' Thereafter, Respondent
filed exceptions and a supporting brief.
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 Supplemental Decision in light of the excep-
tions and brief and has decided to affirm the rulings,
findings,3 and conclusions of the Administrative Law
Judge.
Respondent contends that the denial of its request
for information under the Freedom of Information
Act,4 hereinafter call FOIA, constituted a denial of
due process and prevented Respondent from engag-
ing in meaningful cross-examination. We find no
merit to this contention inasmuch as the requested
information was supplied to Respondent at the be-
ginning of the hearing, and Respondent has failed to
show that it was prejudiced by the failure to produce
the information earlier.5
The record establishes that Respondent sought
documents concerning the interim earnings of Wil-
liam Brown, the discriminatee herein, under FOIA.
On February 18, the request was denied by the Re-
gional Director. Thereafter, the hearing was held on
February 22. At the start of the hearing, prior to the
examination of any witnesses, the General Counsel
gave Respondent's counsel all the documents which
Brown had provided to the Regional Office to assist
in the computation of the backpay specification.
Thus, the General Counsel proffered: a list of all the
employers Brown had contacted in his search for in-
I All dates hereinafter are 1977 unless otherwise indicated.
2 The original Decision and Order in this proceeding is reported at 217
NLRB 736 (1975).
3Respondent has excepted to certain credibility findings made hb the
Administrative Law Judge II is the Board's established policy not to oser-
rule an Administrative I.;as Judge's resolutilns with respect toi credibilit.
unless the clear preponderance of all of the relevant esidence consinces us
that the resolutions are incorrect. Standard Dr. 1 all Pro/.l irs, In, 91
NLRB 544 $1950). enfd. 188 F2d 362 (C(A 3, 1951). We have carefully
terim employment, social security forms, tax returns,
and the results of a physical examination showing
Brown's fitness for truckdriving work. Thereafter, the
hearing proceeded and Respondent was afforded a
full opportunity to cross-examine the witnesses.
The record further indicates that Respondent
made no effort to pursue its remedies under FOIA.
Thus, the Regional Director's denial of Respondent's
request for the information clearly stated that under
the National Labor Relations Board Rules and Reg-
ulations, Series 8, as amended, Section 102.117
(b)(2)(ii), Respondent had 20 days to appeal the Re-
gional Director's ruling to the General Counsel.
However, there is no evidence of an appeal to the
General Counsel nor of any further attempts to ob-
tain the information requested prior to the hearing.
Accordingly, we conclude that Respondent's failure
to comply with the Board's Rules and Regulations in
seeking the information requested precludes it from
now asserting that the denial violated FOIA and/or
Respondent's right to due process of law.6
In this regard we note that Respondent has failed
to offer any substantiation of its claim of prejudice
with respect to the denial of the information request-
ed. As noted above, Respondent was given the infor-
mation at the start of the hearing, yet there is no
evidence that Respondent requested additional time
to examine the documents, and, in fact, Respondent
proceeded to cross-examine the General Counsel's
witnesses with the aid of the information earlier sup-
plied by the General Counsel. Under these circum-
stances we find no merit to Respondent's contention
that it was prejudiced by the Regional Director's de-
nial of Respondent's request for information under
FOIA.7 We therefore conclude, in agreement with
the Administrative Law Judge and for the reasons
stated by him, that Respondent is obligated under
the Board's Order to pay Brown the amount stated in
the backpay specification.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
examined the record and find no basis for reversing his findings
5 U.S C. 552. as amended. 88 Stat 1561. 1563
5Case Concrete Co, Inc. 220 NI RB 1306 (1975).
6Mlid-ie.zs Praper Product ('o, 223 NIERB 1367, fn. I (1976); see also The
Stride Rite Cotrpiratirn. 228 NL.RB 224 (1977).
LUnder I 0IA a request for information is made to the Regional Director
and his decision i' appeallable to the Office of the General Counsel within
20 days after receipt iof the notification Thereafter, judicial review may be
had In the district court
236 NLRB No. 117
1065
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lations Board hereby orders that the Respondent, annum on the basis of the quarterly amounts of
Ronald Hackenberger d/b/a Ron's Trucking Ser- backpay due, in accordance with the formula as set
vice, Norwalk, Ohio, his agents, successors, and as- forth in Isis Plumbing & Heating Co., 138 NLRB 716
signs, shall pay the following amounts as listed in the (1962). There should be deducted from the amount
attached backpay specification as Appendixes A and due any tax withholding required by Federal and
B. Interest is to be added at the rate of 6 percent per state law.
APPENDIX A
Calendar Quarter
1974 III
1974 IV
1975 I
1975 II
1975 III
1975 IV
1976 I
1976 II
1976 III
1976 IV
Weeks
1
13
13
13
13
13
13
13
13
6
Average
Weekday
Earnings
$242.63
$242.63
$242.63
$242.63
$242.63
$242.63
$242.63
$242.63
$242.63
$242.63
Gross
Backpay
$ 242.63
$3,154.19
$3,154.19
$3,154.19
$3,154.19
$3,154.19
$3,154.19
$3,154.19
$3,154.19
$1,455.78
Net
Interim
Earnings
-0-
-0-
$212.10
$148.05
$285.87
-0-
-0-
-0-
-0-
-0-
Net
Backpay
$ 242.63
$3,154.19
$3,006.14
$2,868.32
$3,154.19
$3,154.19
$3,154.19
$3,154.19
$3,154.19
$1,455.78
RON'S TRUCKING SERVICE
APPENDIX B
Quarterly Breakdown of Net Backpay
Calendar Quarter 1974 I II III IV
Net backpay $242.63 $2,847.19
Interest 36.39 384.37
Total $279.02 $3,231.56
1974 Subtotal: $3,510.58
Calendar Quarter 1975 I II III IV
Net backpay $2,942.19 $3,006.14 $2,868.32 $3,154.19
Interest 353.05 315.64 258.14 236.56
Total $3,295.14 $3,321.78 $3,126.46 $3,390.75
1975 Subtotal: $13,134.13
Calendar Quarter 1976 I II III IV
Net backpay $3,154.19 $3,154.19 $3,154.19 $3,154.19
Interest 189.25 141.93 94.62 47.31
Total $3,343.44 $3,296.12 $3,248.81 $3,201.50
1976 Subtotal: $13,098.87
Calendar Quarter 1977 I II III IV
Net backpay
Interest
Total
$1,941.04
-0-
$1,941.04
1977 Subtotal: $1,941.04
Total backpay and interest due as of March 31, 1977:
1067
$31,675.62
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
RALPH WINKLER, Administrative Law Judge: In a Deci-
sion and Order issued on May 2, 1975, the Board issued a
conventional reinstatement and backpay order upon find-
ing that Respondent had discriminatorily discharged Wil-
liam F. Brown, Sr., on September 24, 1974 (217 NLRB
736). The Court of Appeals for the Sixth Circuit enforced
the Board's Order (531 F.2d 364 (1976), cert. denied 429
U.S. 830).' A hearing was held in this supplemental matter
on February 22, 1977, upon a backpay specification issued
by the Regional Director for Region 8 on November 30,
1976, and Respondent's answer.
Upon the entire record, including my observation of the
demeanor of the witnesses and due consideration of Re-
spondent's brief, I make the following:
FINDINGS AND CONCLUSIONS
Respondent does not question the gross backpay figures
in the specification, attached hereto as Appendices A and
B [omitted from publication], either as to the appropriate-
ness of the method used or as to the resulting calculations.
However, its answer presents the following affirmative de-
fenses:
7. William Frederick Brown, Sr., has failed to make
a reasonable effort to find other employment in mitga-
tion of the backpay award and demands proof thereof.
8. Respondent has no knowledge that William
Frederick Brown, Sr., has made proper application to
the Bureau of Unemployment Compensation and de-
mands proof thereof, and/or that William Frederick
Brown, Sr., was engaged in any enterprises of his own
and demands proof thereof.
9. Respondent has no knowledge that William
Frederick Brown, Sr., is physically qualified or that he
has been physically qualified to perform within the
rules and regulations of the Interstate Commerce
Commission's and/or Public Utilities Commission's
physical and/or medical requirements and demands
proof thereof.
10. The final backpay award figure was not com-
puted correctly in that among other things it failed to
account for and reduce or eradicate the award based
on the projected work absenteeism of William Freder-
ick Brown, Sr., compensation awards, individual re-
muneration, or other income.
Before taking up Respondent's defenses, it may be ap-
propriate to set forth the principles applicable here as stat-
Although the Supreme Court denied certiorari on October 4, 1976, Re-
spondent did not offer the required reinstatement until more than 4 months
later.
ed in N.L.R.B. v. NHE/Freeway, Inc., et al.. 545 F.2d 592,
593 (C.A. 7, 1976):
While NHE makes no contest here of the Board
Findings as to the gross amount of back pay due, it
does insist that the Board should have found that the
willful failure of Ms. Patton and Ms. Young to seek
other work during the back pay period relieved it of
liability for back pay. In this connection, we view the
duty of NHE differently. As was held in N.L.R.B. v.
Mastro Plastics Corp., 354 F.2d 170. 178 (2nd Cir.
1965), cert. den. 384 U.S. 972 . . . (1965), the "finding
of an unfair labor practice . . . is presumptive proof
that some back pay is owed." And the Board has dis-
charged its burden when it finds the gross amount of
the back pay due. N.L.R.B. v. J. H. Rutter-Rex Mfg.
Co., 396 U.S. 258 . . (1969). The burden then shifts
to the violator "of establishing affirmative defenses
which would mitigate his liability...." N.L.R.B. v.
Mastro Plastics Corp., 345 F.2d 170, 174 n. 3 (2nd Cir.
1965), cert. den. 384 U.S. 972.
"The burden of proving such willful loss is on the em-
ployer," and the discharged employee "is merely required
to make 'reasonable efforts' to mitigate his loss of earn-
ings." Hyster Co. v. N.L.R.B., 549 F.2d 807 (C.A. 9, 1977).
However, a discriminatee may not quit an interim job
"without good reason." Mastro Plastics Corp., supra at 174,
fn. 3.
Brown's Efforts To Mitigate Backpay Losses
Administrative Law Judge Harmatz found in the origi-
nal hearing in this matter that Brown was a "trustworthy"
witness whose testimony was "straighforward and candid"
(217 NLRB at 739), and I was equally impressed with his
trustworthiness.
Brown, it is recalled, was discriminatorily discharged in
Norwalk, Ohio, on September 24, 1974. He is married and
has six children ranging in age from 8 to 18 years. Brown
went to the Norwalk unemployment office 2 days after his
discharge to register for unemployment compensation.
which was denied him, and to seek employment. He has
continually checked in with that office since then to inquire
about work, but has obtained no job referrals from them.
Brown registered his availability at the Norwalk office for
work as a driver, janitor, machine operator, carpenter, and
"anything I can get." Brown also registered for work at the
Sandusky unemployment office early in January 1975.
(Sandusky is approximately 20 miles from Norwalk.) The
Sandusky office has not referred Brown to any jobs, and he
visited them on at least three occasions in 1975 and has
also responded to notices from that office advising them of
his availability and that he had not found employment.
In 1974, 1975, 1976, and 1977, Brown also went to Fre-
mont, Ohio (about 30 miles from Norwalk), to seek em-
ployment through the Teamsters union office there but
1068
RON'S TRUCKING SERVICE
without success. 2 Brown also was unsuccessful in seeking
work from a Teamsters Union in Cincinnati. Ohio (about
215 miles from Norwalk), in the period from October 1975
until February 1976. While in Cincinnati at that time, he
also applied for work at several trucking establishments
but without results. During the period of his unemploy-
ment, Brown also applied to various other employers, in-
cluding nontrucking concerns, in Youngstown, Ohio,
Mount Vernon, Ohio (25-30 miles from Norwalk), Tyro,
Ohio (about 20 miles from Norwalk), Perrysburg. Ohio
(some 20-30 miles from Norwalk), Sandusky, Ohio, De-
troit, Michigan, and Lorain, Ohio (about 45 miles from
Norwalk). He also went to Salyerville, Kentucky, for 4
weeks in 1976 to look for work in coal mines there. In
searching for work, Brown also has regularly read the help-
wanted advertisements in local newspapers, and he used
his niece's telephone in Norwalk to inquire about job op-
portunities appearing in those papers for which he thought
he might qualify.
Apart from attempting to impeach Brown's veracity, Re-
spondent made no effort to show that jobs were actually
available and that he would have obtained employment
had he sought work as he testified.
Interim Employment
Brown obtained a job on September 28, 1974, with a
company engaged in cleaning and sealing up government
financed houses left by their occupants. Brown averaged
between 5 or 10 hours to 20 hours weekly on this job. Some
of this work was performed in Youngstown, Ohio, on
which occasion the workmen stayed in a camper. Brown's
hourly rate on the job was $2.00 and was $2.50 when he
worked out-of-town in Youngstown. Brown quit this job
on December 7, 1974, under the following circumstances.
He had been instructed by his boss to strip paneling from
the walls and to take this paneling from the house (the boss
wanted the paneling for his personal use). His boss further
instructed him that, if anyone inquired about this removal,
he should say they had found the paneling already disen-
gaged from the walls and that they were merely cleaning
out the house. A local resident observed Brown carrying
the stripped paneling from the house to the company truck
and asked why he was taking the paneling; Brown re-
sponded along the lines his boss had instructed him to give.
Brown quit that same day because, as he testified, "I was
afraid I would get in trouble over stripping the houses." 3
Brown's next interim employment was at an Imperial gas
station in Norwalk where his son Billy had previously
worked. Brown applied for the job to the station manager,
Roger Parker, and Parker hired him as a station attendant
on or about January 15, 1975, at an hourly rate of $2.10. In
addition to gas and oil, the station sold clocks, lamps, jack-
ets, ashtrays, and other merchandise. Three attendants, in-
cluding Brown, were on Brown's shift. Brown's day off was
on February 7, 1975, and he went to the station that day to
pick up his check. Parker told Brown there was a purported
' The union business agent referred Brown to an inside bakery job. hut
the baking compans did not believe Brown would be suitable
cash shortage of approximately $90 and that he would not
give the attendants their salary checks from Imperial unless
they agreed to endorse the checks to be cashed by Parker
and then allow Parker to retain $30 from each attendant's
check to make up the shortage. Brown was not responsible
for handling all the money, and he informed Parker that he
would not be back.4 Brown thus quit.
Some months later that year (1975), Brown's son, Billy,
then living in Kentucky, asked Brown to inquire whether
Billy could return to work at the Imperial station in Nor-
walk, and the station manager said he could. Meanwhile,
Billy was injured in an accident and was unable to report
for work, and Brown thereupon went to work a second
time for Imperial beginning on June 6, 1975. Brown
worked without incident until July 19, 1975, and mean-
while Parker had been replaced as station manager. When
Brown was given a salary check on July 19, the new man-
ager (Bill Simson) said that Brown would have to make up
a shortage of $28 for merchandise sold by Brown. Brown
had in fact sold merchandise in that amount and had given
the money to another attendant, one Bob, who "carried the
money" on that occasion and who also made the change
for Brown at the time of the sale. Brown explained this to
Simson, but Simson said that Brown would have to pay the
$28. Brown paid the money and quit.5
During a period of approximately 6 months immediately
prior to this hearing, Brown picked up "a little bit of scrap
here and there" and sold it to a junkyard. He did not keep
a record of such sales, and Respondent did not interrogate
him further concerning that matter to establish if he made
even as much as $10 from such effort.
On cross-examination by Respondent, Brown denied
having had any interim employment at a junkyard called
Jheme's Auto Wrecking Service. Principally, to impeach
the credibility of Brown's testimony respecting his efforts
to seek employment and concerning his separation from
his aforementioned interim employers, Respondent called
Esther Mae Sheppard as a witness. Mrs. Sheppard testified
that she participated with her husband in the management
of Jheme's Auto Wrecking Service and that they are in the
' Brown did not report this matter to the authorities, and Respondent
thereupon urges that Brown's testimony concerning his quitting should not
be believed
4 Respondent introduced in evidence through Marvin Smith. the division
manager of Imperial Refineries Corporation. Brown's personnel records
with that Company. Smith is the custodian of the records but has no per-
sonal knowledge of their contents Ras Carroll is the distnct manager and
Smith's supervisor The personnel record recites that Brown's February 7
sep;ilation was because he "just did not want to work any more outdoorls]."
Smith testified that this explanation was inscribed by Carroll and that Car-
roll obtained the information from the station manager (presumably Par-
ker) Respondent did not call or claim the unavailability of Parker or Car-
roll or anyone else with direct knowledge of Brown's separation. Brown
truthfully denied having been unwilling to work outdoors and he also credi-
bly denied having discussed such matter with any supervisor or that he quit
for suchl reason
'Respondent also introduced through Division Manager Smith the per-
sonnel record of Brown's July 19 separation (see fn. 4, supra). This record
recites in Carroll's hand that Brown "was let go because of way he dressed
& shortagr.' this too was based on information purportedly given Carroll
by the station manager. Respondent did not call the station manager, Bob
(the other attendant), or anyone else having personal knowledge of the inci-
dent Brown credibly denied that he was discharged for shortages or for any
other reason on July 19. His credible testimony is that he quit and was not
fired
1069
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
business of "cleaning up the junk yard." Mrs. Sheppard
testified that, shortly after Brown's 1974 discharge by Re-
spondent, they hired him on a temporary basis to clean and
straighten up the junkyard, a job she believed would take 2
days; that she told her husband to fire Brown after Brown
had spent 3 weeks on the job; and that they hired someone
else who completed the job in 2 days. Mrs. Sheppard testi-
fied, on cross-examination, that Brown did not work on a
"specific 9-5" basis and that she did not know whether he
had worked more than 32 hours altogether or that they had
even paid him for more than 20 hours' work. When asked
on cross-examination whether she had checked over her
records in preparing her testimony, Mrs. Sheppard re-
sponded that "we didn't have any records on cleaning up a
junk yard" and that they had no records indicating that
Brown or "anybody" had ever worked for them. Mrs.
Sheppard testified in explanation that they paid Brown in
cash, that they made no record of such disbursement for
tax purposes, and that "there is no record at all of this
transaction."
Respondent did not call Mr. Sheppard as a witness or
assert at the hearing that it desired to do so but that Shep-
pard was unavailable. Nor has Respondent made any re-
quest that the record be reopened for the purpose of taking
Sheppard's testimony. Nonetheless, in its brief filed after
the hearing, Respondent attached a copy of a sworn affida-
vit executed by Sheppard on March 14, 1977, with purport-
ed records of cash payments to Brown, such records pur-
portedly having been in Sheppard's possession since
approximately April 1975.
Asserting that the record in this matter was closed on
February 22, 1977, without any indication that Respondent
intended to call further witnesses or to submit additional
evidence, and Respondent's not having made any request
to reopen the record, the General Counsel filed a motion
on April 6, 1977, to strike Respondent's brief. The General
Counsel urges that the inclusion in the brief of the Shep-
pard affidavit and attachments is "highly improper and
irregular. It is in patent disregard of General Counsel's ba-
sic right to cross-examine witnesses and/or to offer rebut-
tal testimony.... Moreover, it constitutes an attempt to
prejudice a trier of fact by communications with him on a
substantive issue without benefit of the most basic proce-
dural safeguards normally accorded litigants." In answer-
ing the "Motion To Strike," Respondent asserts that its
brief was not filed as "evidence" or as an "attempt to intro-
duce evidence," but merely to represent Respondent's
"opinion" of the case.
Citation of authority is hardly necessary to document
the soundness of the General Counsel's objection to in-
cluding and relying on matters outside the record. Rather
than strike the entire brief, however, I shall strike the Shep-
pard affidavit and attachments and all references in the
brief to such affidavit. The General Counsel may be as-
sured, moreover, that my decision in this case has not been
affected by my having read the stricken materials.
Brown's "Physical and/or Medical" Qualifications
At Respondent's request, Brown was examined on De-
cember 20, 1976, by a physician of Respondent's own
choosing. The doctor issued a certificate on that date stat-
ing that Brown "is qualified physically in accord with Rule
191.2 in the physical examination procedures prescribed by
the Motor Carriers' Safety Regulations, etc., of the Inter-
state Commerce Commission."
Concluding Findings
When not employed since his unlawful discharge in
1974, Brown continually made a good-faith effort to obtain
other employment, and Respondent has wholly failed to
meet its burden that Brown has not done so. Moreover, it
may not be found, at least I cannot find, that Brown was
unreasonable in quitting his employment with his two in-
terim employers given the circumstances and the provoca-
tion he had in each instance. Nor in the circumstances of
this case, and contrary to Respondent's contention, may it
reasonably be found that Brown withdrew from the labor
market during the 6-month period he was picking up scrap
metal.6
In brief, I conclude that Respondent has not established
that Brown willfully incurred a loss of earnings, nor that
the General Counsel's specification as amended at the
hearing 7 does not accurately reflect the backpay to which
Brown was entitled through the sixth week of the fourth
quarter of 1976. By letter of March 19, 1977, Respondent
advised all other parties that it had reinstated Brown on
March 2, 1977. The General Counsel, on March 10, 1977,
submitted an updated computation of backpay due,
amounting to $31,675.62, based on the assumption that
Brown would be reinstated on or about March 1, 1977, and
including interest at 6 percent per annum calculated
through March 31, 1977 (Appendix C [omitted from publi-
cation] contains relevant material from this updated com-
putation. I have placed this computation with covering let-
ter in the exhibit files).
Accordingly, I conclude upon the entire record in this
case that Respondent is obligated under the Board's Order
to pay to Brown a total amount of $31,675.62 and that
interest shall continue running front April 1, 1977, and
shall be added to the amount due until payment of all
backpay. Payment of this sum shall be less any taxes re-
quired to be withheld by Respondent under Federal and
state law.8
6 In addition to checking with the Norwalk unemployment office during
this period, he continued checking with trucking and nontrucking concerns,
including plants in Lorain and Sandusky, Ohio
7A net earnings figure of $307 was added in the fourth quarter of 1974.
a In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board. the findings
and conclusions herein shall, as provided in Sec. 102.48 of the Rules and
Regulations, be adopted by the Board and become its findings and conclu-
sions, and objections thereto shall be deemed waived for all purposes
APPENDIX A
Computation of Average Weekly Earnings
Base Period 6/4/74-9/24/74
Total Earnings $3,882.17
Number of Weeks 16
Average $242.63
1070