Seminole Asphault Refining, Inc.Download PDFNational Labor Relations Board - Board DecisionsSep 8, 1976225 N.L.R.B. 1202 (N.L.R.B. 1976) Copy Citation 1202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Seminole Asphalt Refining , Inc. and United Steel- workers of America , AFL-CIO. Case 12-CA-5550 September 8, 1976 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN MURPHY AND MEMBERS JENKINS AND WALTHER On May 18, 1976, Administrative Law Judge Paul L. Harper issued the attached Supplemental Decision in this proceeding. Thereafter, Respondent filed ex- ceptions 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 Decision in light of the exceptions and brief and has decided to affirm the rulings, findings,' and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that the Respondent, Seminole Asphalt Refin- ing, Inc., St. Marks, Florida, its officers, agents, suc- cessors, and assigns, shall take the action set forth in the said recommended Order. 1 The Respondent has excepted to certain credibility findings made by the Administrative Law Judge It is the Board's established policy not to over- rule an Administrative Law Judge's resolutions with respect to credibility unless the clear preponderance of all of the relevant evidence convinces us that the resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544 (1950), enfd 188 F 2d 362 (C A 3, 1951) We have carefully examined the record and find no basis for reversing his findings SUPPLEMENTAL DECISION STATEMENT OF THE CASE PAUL L. HARPER, Administrative Law Judge' On Novem- ber 9, 1973, the National Labor Relations Board issued its Decision and Order (207 NLRB 167 (1973)) directing Re- spondent to take certain affirmative action to remedy the unfair labor practices found, including reinstatement and backpay to certain individuals, and reinstatement, upon application, to certain other individuals. On July 18, 1974, the Board's Decision and Order was enforced, in pertinent part, by the United States Court of Appeals for the Fifth Circuit (497 F.2d 247 (1974) ). At the time of the subject hearing all compliance matters had apparently been re- solved with the exception of the amounts of backpay due John Heard, Percy Stewart, and R.W. Dunn. A hearing was held before me at Tallahassee, Florida, on February 19 and 20, 1976. Briefs, which have been careful- ly considered, have been received from the General Coun- sel and Respondent. Upon the entire record in the case and upon my observa- tions of the witnesses, I make the following: FINDINGS OF FACT 1. THE ISSUES The primary issue herein centers on the backpay period for John Heard and Percy Stewart, and in a somewhat different manner to R. W. Dunn. The first question to be resolved is whether or not Respondent's offer of reinstate- ment to Heard and Stewart, by letter dated June 28, 1973, was a timely and unconditional offer. Both letters were forwarded by Respondent by certified mail postmarked Saint Marks, Florida, on June 28, 1973. Heard's letter was postmarked by the delivering post office at Woodville, Florida, on July 2, 1973; Stewart's at Tallahassee, Florida, on June 30, 1973. The letters were received by Heard and Stewart on July 2, 1973. June 28 fell on Thursday, June 30 on Saturday, and July 2 on Monday. Thus, a weekend in- tervened between the mailing and receiving dates. July 2 was the deadline for acceptance of the offer, the same date of their receipt by Heard and Stewart The next question to be resolved concerns the response of Heard and Stewart upon their receipt of the June 28 letter, and the reaction of Respondent's personnel manag- er, Jimmie Dale Lee, to their response. General Counsel contends that Heard and Stewart responded timely and, but for the conditions attached to such offer by Respon- dent, would have accepted reinstatement Respondent con- tends that Heard and Stewart were either too late in re- sponding to its offer of June 28 or indicated lack of interest in reinstatement. The backpay specification alleges that the backpay peri- od for unfair labor practice strikers Heard and Stewart be- gan March 29, 1972, when Respondent rejected their re- quest for reinstatement; that said initial backpay period ended April 27, 1972, for Heard and on May 8, 1972, for Stewart, when both refused individual offers of reinstate- ment in order to continue their unfair labor practice strike. Respondent admits such allegations. Therefore I find the initial backpay period for Heard runs from March 29 to April 27, 1972, and for Stewart from March 29 to May 8, 1972. The specification further alleges that a second backpay period for Heard began on March 27, 1973, and for Stew- art on April 19, 1973, when each of them abandoned the strike and made unconditional individual applications for reinstatement on the dates indicated. Respondent so stipu- lated but reserved the right to challenge their specified in- terim earnings which could possibly reduce their respective net backpay. General Counsel further alleges and contends that, since Respondent's purported reinstatement offer on June 28 225 NLRB No. 171 SEMINOLE ASPHALT REFINING, INC 1203 was not unconditional, the second backpay period of Heard and Stewart has not tolled and continues to run until an unconditional reinstatement offer is made. A. The Issue of Whether or Not the June 28 Letter Was a Valid Offer of Reinstatement The pertinent language contained on both letters is iden- tical and is quoted as follows: June 28, 1973 You are hereby offered an opportunity to return to Seminole Asphalt Refining, Inc. as a truck driver If you are interested, please contact me as soon as possi- ble but not later than Monday, July 2, 1973, at 5:00 p.m. Sincerely, SEMINOLE ASPHALT REFINING, INC. / J.D. Lee The letters were sent by certified mail to both Heard and Stewart return receipt requested. As noted above, both let- ters were dated June 28, 1973, and Respondent's copy of the return receipt was stamped at Saint Marks, Florida, on the same date. Heard's certified receipt was postmarked by the delivering post office in Woodville, Florida, on July 2, and Stewart's at Tallahassee, Florida, on June 30 Stewart however testified that he did not receive the letter until July 2. Therefore, both Heard and Stewart received the letter on the same day they were required to notify Respondent of their interest in returning to work for the Respondent. There is much testimony in this record, much of it con- tradictory, regarding the response, or lack of response, by Heard and Stewart to the June 28 letter of the Respondent. However, I find, without reaching any of the events subse- quent to their receipt of the June 28 letter, that the letter, by its own terms, does not constitute a valid unconditional offer of reinstatement. This finding is based primarily on the unreasonably limited time that both discriminatees herein were allowed in which to contact the Respondent and accept the purported offer of reemployment. In National Tape Corporation, 187 NLRB 321, 325 (1970), the Board, in a similar situation, found that an employer's reinstatement offer was inadequate where the claimant was required, as in the subject case to accept such offer on the same day it was received. Thus the Board stated: Moreover, even if the offer were considered valid in these respects, we would still find it to be inadequate by its own terms since it was limited timewise to an unreasonably short period in that Morber was re- quired to accept such offer on the very day it was received by him Under these circumstances, we do not consider the offer of reinstatement to be a valid one. In another case the Board found a reinstatement offer conditioned upon acceptance and return within 4 days to have been an unreasonable limitation. Thus, in Thermoid Company, 90 NLRB 614, 616 (1950), the Board stated as follows: We are unable to find that the Respondent made an adequate, good faith offer of reinstatement to Gadd. In the first place, the offer was conditioned upon Gadd's returning within 4 days. This time limitation is most likely to have been too short to enable Gadd to have given his new employer reasonable notice. .. . In Penco Enterprises, Inc., Penco of Ohio, and Acoustical Contracting and Supply Corp., 216 NLRB 734, 735 (1975), the Board, in reversing the Administrative Law Judge, held as follows: While we do not attempt to prescribe what is reason- able in every circumstance, we do not view the time allotted herein as reasonable. Mooney would have had to inform Respondent of his intentions the same day he received the letter or else report for work on the following morning. We find this totally inadequate. Thus, contrary to the conclusion of the Administrative Law Judge, we find that Respondent did not make a valid offer of reinstatement to Mooney. Judged on the principles enunciated in the Board's deci- sion noted above, I conclude and find that Respondent's June 28 letter to Heard and Stewart did not, by its own terms, constitute a valid and unconditional offer of rein- statement. Accordingly I find that their backpay, as urged by the General Counsel, continues to run until a valid and unconditional offer of reinstatement has been made by the Respondent. In view of possible reversal of this finding by the Board or courts it is necessary to consider and make findings and conclusions with respect to the events subsequent to the June 28 letter. As the conversations between Respondent's personnel manager, Lee, and the claimants occurred at dif- ferent times and under different circumstances they will be discussed separately. B. The Conversation Between Respondent Personnel Manager Lee and John Heard Regarding the June 28 Letter Heard testified he received the Respondent's letter on July 2 at the Woodville, Florida, post office where he maintains a postbox. He stated he signed the certified re- turn receipt about 5 p.m., already too late to contact Re- spondent since the Employer's office normally closed at 5 p.m. The deadline for such contact was 5 p.m. on July 2. On July 3 Heard left his house at 4 a.m. to report for work with his then current employer at 6 a.m. This was before Respondent's office normally opened for business. That evening, on July 3, he arrived home "late," after Respondent's office had closed. July 4 was a holiday and Respondent's office was not open. On July 5 Heard was off work earlier than usual and, apparently by chance, ran into Lee at a local grocery and service station in Woodville. According to Heard, he first asked Lee if he would be put back on his old truck and Lee said no, somebody else was driving his old truck, and he would have to come back as a 1 See also C E Collins, and 0 C Collins, d/b/a Collins Mining Company, 177 NLRB 221, 242 (1969), Harrah's Club, 158 NLRB 758, fn 1 (1966), Betts Baking Company, 173 NLRB 1018 (1968) 1204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "junior" employee, and further that Heard hadn't "re- sponded by the deadline on the letter." This is about the extent of Heard's recall concerning his conversation with Lee, allegedly occurring on July 5. Lee recalled the conversation with Heard at the service station, but testified it occurred sometime in August 1973, at least a month after Heard received the June 28 letter. In support of this contention Respondent produced gas pur- chase tickets, invoices, and canceled checks which indi- cated Lee had made no gas purchase from the Woodville Service Station during the entire month of July. The rec- ords revealed purchases on August 7 and 21. Counsel for General Counsel did not challenge the accuracy of these records. Lee testified the only reason he ever stopped at the Woodville Service Station was to buy gas. Lee's version of the conversation, except for the date of its occurrence, is not in substantial conflict with that of Heard. Lee testified that Heard approached him and first asked if it was "too late" to consider reinstatement Lee testified he told Heard "we had made him an offer and he didn't respond to that offer." Lee acknowledges that Heard asked if he "were ever to get to come back-if he would get it (his old truck) back...." Lee further admits he told Heard he "couldn't promise him anything like that." Contrary to Heard's fail- ure to recall anything being said about seniority, other than he would have to come back as a "junior" driver. Lee re- called that Heard "asked if there was any way he could get his seniority back." Lee replied that because the case was "still under appeal" he "just couldn't really discuss that with him." Concluding Findings Lee's testimony that the only reason he ever visited Woodville Grocery and Service Station was to purchase gas, buttressed by records (purchase tickets, invoices, and canceled checks which were in mutual balance) showing no gas purchases during the entire month of July, is somewhat persuasive but not wholly convincing that it was impossible for Lee to have been on the scene on July 5 as indicated by Heard. I find it dust as plausible that Heard would have recalled such an event occurring, as he claimed he did, the day following the July 4 holiday. There was nothing in Heard's demeanor that would tend to adversely reflect on his reliability as a witness. He appeared to be responsive to interrogation by counsel and to attempt to recall events, occurring nearly 3 years ago, to the best of his ability. In any event, the scales are tipped in this conflict over the date of the conversation by Respondent's admission that even if the conversation occurred on July 5 it would still have been too late to consider Heard for reinstatement. Further, it is clear from Lee's own testimony that Re- spondent, during Lee's conversation with Heard on July 5, did not make a valid and unconditional offer to reinstate Heard in conformity with the Board's court-enforced Or- der Thus, Lee admitted that he told Heard he "just couldn't really discuss that [his seniority] with him." It is also admitted by Respondent that seniority, although not considered important in making assignments of equipment or routes, was indeed the basis of determining vacation privileges. Based on the above considerations, I find that Respon- dent, either by its June 28 letter or in the subsequent con- versation between Personnel Manager Lee and discrimina- tee Heard, has not made a valid and unconditional offer of reinstatement to Heard in compliance with the Board's court-enforced Order. Accordingly, I find that Respon- dent's backpay liability to John Heard continues to run from the second backpay period set forth in the specifica- tion, beginning on March 27, 1973, until a valid and un- conditional offer of reinstatement has been made to Heard by the Respondent C. The Telephone Conversation Between Respondent's Personnel Manager Lee and Percy Stewart Regarding the June 28 Letter It is undisputed that Stewart telephoned and talked with Lee on the morning of July 2, before the 5 p.m. deadline. There is conflict in the testimony of Lee and Stewart over what was said during this conversation. I credit Lee's ver- sion over that of Stewart.2 Briefly, Stewart testified that in his phone conversation with Lee he asked Lee if he would get his seniority and his old truck back Lee replied "no, it would just-that would be-just I'd have a job, just go back to work, and I'd be starting over as a junior man." Stewart responded, "I told him that I'd have to wait awhile ... that if I went back to work then it would be a hardship on me because I'd have to go back and wait two weeks before I got paid down there." Stewart, testified further that he told Lee he couldn't return under the circumstances because he would be "sitting on the bench" since he would be a "junior" man. Lee testified that Stewart first asked him if he was seri- ous about "the offer." Lee replied, "You've got the offer in your hand. We are making you an offer to return to work at Seminole." According to Lee, Stewart then asked "would [he] get [his] seniority back." Lee admitted he told Stewart "that it was being decided by the courts and that .. I dust could not discuss it with him at that time." Lee testified again that seniority was of no consequence regard- ing equipment or route assignments, but admitted it was used as a basis in determining vacation privileges. Concluding Findings There is much testimony in the record concerning the type and condition of the trucking equipment handled by Heard and Stewart before the strike, and whether or not they would be entitled to the same equipment should they accept Respondent's offer. Both Heard and Stewart testi- fied that Lee told them they would not be driving their old trucks should they return to work. Lee testified he told 2 Stewart's demeanor while testifying was characterized by such hesitancy and evasiveness in his responses to interrogation of counsel as to make most of his testimony completely unreliable Nevertheless, portions of Stewart's testimony are not in substantial conflict with that of Lee This is signifi- cantly true with respect to the matter concerning seniority Lee denied using the term "junior" and I credit his denial On the other hand he does not deny, as in the case of Heard, that he told Stewart he "just could not discuss it [seniority] with him at that time " SEMINOLE ASPHALT REFINING, INC. both of them he could give them no answer one way or the other, that they might get their old equipment back, newer or older equipment, or better or worse equipment than their previous rigs, depending on the circumstances. The General Counsel strongly argues in his brief that Respondent's failure to offer Heard and Stewart to return to work on trucks driven by them before the strike is ample evidence of Respondent's failure to make a valid offer of reinstatement. The burden of proof of such contention is on the General Counsel and I find the evidence insufficient to sustain such an allegation. As the credible evidence shows, after a lapse of about 3 years, new equipment has been purchased, other equipment has been overhauled, some sold, and various pieces of equipment have been as- signed and reassigned among various drivers. The General Counsel did not show, by substantial and credible evi- dence, that there were actual advantages or disadvantages in driving different pieces of trucking equipment, or that if the trucks driven by Heard and Stewart about 3 years ago were in better or worse condition than any other piece of equipment. Moreover, the evidence is unrefuted that as- signments of equipment and routes are made purely on a judgmental basis unrelated to seniority or other criteria. Accordingly, I find Respondent's lack of assurance to Heard and Stewart that they would be driving their old trucks should they return to work to be insubstantial and not to constitute a condition for acceptance of Respondent's offer. Notwithstanding the above findings, I find that Respondent's offer, based on Lee's own testimony, was in fact not a valid and unconditional offer of reinstatement to either Heard or Stewart in compliance with the Board and court order. Lee admitted in his testimony that Stewart, as did Heard, inquired of him if the June 28 offer contemplat- ed reinstatement without loss of seniority. Lee testified that Stewart asked him "would [he] get [his] seniority back." Lee replied, "I just could not discuss it with him at that time." Based on all the above considerations I find that Re- spondent has not made a valid and unconditional offer to reinstate Stewart by the June 28 letter or during Lee's sub- sequent conversation with Stewart on July 2. I further find that, inasmuch as both Heard and Stewart had obtained interim employment and were currently employed at the time they received Respondent's June 28 letter, as well as during their conversations with Personnel Manager Lee, it was not incumbent upon either of them to accept Respon- dent's conditional offers. Accordingly, I find that Respondent's backpay liability to Stewart continues to run from the beginning of the second backpay period set forth in the backpay specification until Respondent makes a val- id and unconditional offer of reinstatement to Stewart in compliance with the Board's court-enforced Order D R. W. Dunn The parties are in agreement that Respondent owes Dunn $ 970.69 in backpay for the period from March 29 to May 8, 1972. At the hearing , Respondent waived its right to offer proof regarding any possible interim earnings of Dunn. 1205 The General Counsel alleges in the backpay specifica- tion that backpay for unfair labor practice striker R. W. Dunn is not set forth "because he cannot be located at the present time." In his brief, counsel for General Counsel requests that the amount of $970.69, plus interest to date of payment, be ordered to be deposited with the Regional Director for Region 12 for a period of 24 months from date of such deposit; that in the event Dunn is not located with- in the 24-month period, the entire sum be refunded to Re- spondent. However, counsel for General Counsel states that such refund should not operate to extinguish Respon- dent's liability to Dunn should he appear in the indefinite future. Counsel for General Counsel further requests that, in the event Dunn is located during the 24-month escrow period, the parties be afforded an opportunity to examine Dunn and other witnesses with relevant testimony and to intro- duce evidence bearing on the amount of backpay due Dunn; and that additionally, provision be made for the agency to seek additional backpay for Dunn should it de- velop that Dunn, during the escrow period or thereafter, unconditionally offered to return to work and was not of- fered unconditional reinstatement by Respondent on or af- ter May 15, 1972. Respondent admits backpay liability of $970.69 to Dunn from March 29, 1972, when it admittedly refused Dunn's reemployment request, to May 8, 1972, when Dunn failed to respond to Respondent's valid offer of reinstatement. Respondent further urges in its beef that any escrow peri- od should run 2 years from the Board's Decision and since about 3 years have now elapsed no escrow deposit is ap- propriate. In support of this contention, Respondent cites Robert Haws Company, 161 NLRB 299 (1966), wherein the Board approved an escrow deposit period running 1 year from the date of such deposit with the Regional Director. The Administrative Law Judge had recommended, based on the merits of the case, such a period, inasmuch as more than a year had elapsed from the original recommended Order in the case. In Haws, contrary to the subject case, it was not necessary for the Board to seek enforcement of its Order. The Board's Order in this case was enforced on July 18, 1974, so that less than 2 years have elapsed from the date of the court order to the date of the subject hearing. Nevertheless, Dunn's whereabouts have been unknown to the General Counsel for a considerable period of time since the commencement of proceedings in this matter. Under all the circumstances, I am of the opinion that the escrow period should not exceed 1 year from the date of deposit. I therefore direct the Respondent to deposit the sum of $970.69 to be held by the Regional Director of Region 12 in Tampa, Florida, in escrow subject to the con- dition that if Dunn is located within a period of 1 year from the date of deposit, a determination (including a fur- ther hearing if requested by Respondent) shall be made as to the amount of net backpay due to Dunn at that time. But, if Dunn shall not be located within said period, the entire sum deposited shall be refunded to Respondent. However, such refund shall not operate to extinguish Respondent's liability of any backpay which may be due to Dunn. Since Dunn admittedly has made no application for reemployment with the Respondent since the end of his 1206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD first backpay period on May 8, 1972, he is entitled to no further backpay under the given circumstances at the time of the subject hearing. Any further backpay liability by Respondent to Dunn will be dependent upon circum- stances occurring subsequent to the close of this hearing on February 20, 1976. 11. THE REMEDY For the reasons described above, I find that Respondent's obligations to the discriminatees herein will be partially discharged by the payments to them of the respective amounts set forth in the Appendix attached hereto. Such amounts shall be payable, plus interest at the rate of 6 percent per annum in accordance with the formu- la set forth in F. W. Woolworth Company, 90 NLRB 289 (1950), and Isis Plumbing & Heating Co., 138 NLRB 716 (1962)3 Upon the basis of the foregoing findings and conclusions and upon the entire record in this proceeding, I hereby issue the following recommended: ORDER4 Respondent, Seminole Asphalt Refining, Inc., its offi- cers, agents, successors, and assigns, shall make the em- ployees involved in this proceeding whole (to the extent noted in the section entitled "Remedy") by payment to them of the following amounts, together with interest at the rate of 6 percent per annum, and continuing until the amounts are paid in full, minus tax withholding required by Federal and state laws. John Heard $4,882.10 Percy Stewart 5,254.36 R.W. Dunn 970.69 3 Backpay to Heard and Stewart continues to run until Respondent has made an unconditional offer of reinstatement to each of them in compliance with the Board's court-enforced Order Respondent stipulated and agreed to the accuracy of the backpay specification reserving at the hearing only the right to present evidence of wilful loss, if any, with respect to the interim employment opportunities of Heard and Stewart No such evidence was presented Subsequent to the close of the hearing the parties jointly filed a motion with me to accept their stipulation agreeing upon gross interim earn- ings for Percy Stewart for the four quarters in 1975 The motion is granted and the stipulation received into evidence However, since the backpay specification does not include gross backpay for Stewart for the fourth quar- ter of 1975 no net backpay has been calculated for this period at this time 4 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, conclusions, and recommended Order herein shall, as provided in Sec 10248 of the Rules and Regulations. be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes APPENDIX John Heard Gross Interim Net Interim Net Quarters Backpay Earnings Expenses Earnings Backpay 1972--1 $ 83.64 None $ 83.64 -2 674.16 None 674.16 -3 None -4 None 1973--1 None -2 2545.27 $1931.41 $ 25.00 $190641 638.86 -3 2424.38 2425.98 - - None -4 2589.69 1625.25 131.82 1493.43 1096.26 1974--1 2334.13 1525.00 25.00 1500.00 834.13 -2 2223.13 1211.05 25.00 1186.05 1037.08 -3 2546.96 3429.29 38.40 3390.89 None -4 2659.93 2642.29 281.60 2360.69 299.24 1975--1 2161.25 2056.01 62.40 1993.61 167.64 -2 2447.38 3152.34 62.40 3089.94 None -3 2306.33 3152.34 62.40 3089.94 None $4,831.01 51.09* $4,882.10 Percy Stewart Net Gross Interim Interim Net Quarters Backpay Earnings Expenses Earnings Backpay 1972--l $ 83.64 None None None 83.64 -2 887 05 $ 541.67 None $ 541.67 345.38 -3 -4 1973--1 -2 1879.58 900.92 900.92 978 66 -3 243048 2031.02 2031.02 399.46 -4 2589.73 1755.00 1755.00 834 73 1974--1 2334.15 2283.70 2283.70 50.45 -2 2223.13 2283.70 2283.70 None -3 2546.96 2542.38 2542.38 4.58 -4 2659.93 2542.38 2542.38 117.55 1975--1 2161.25 709.38 709.38 1451.87 -2 2447.38 1924.78 1924.78 522.60 -3 2306.33 1924.78 1924.78 381.55 -4 - - $5,170.47 83.89* $5,254.36 * prestrike vacation benefits Copy with citationCopy as parenthetical citation