Vanguard Oil

National Labor Relations Board - Board Decisions

Oct 16, 1979

246 N.L.R.B. 130 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Vanguard Oil and Service, Inc. and Vanco Heating,
Plumbing and Welding Co. and Local 553, Interna-
tional Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America and Ronald Wil-
liams. Cases 29-CA-4754 and 29-CA-4820
October 16, 1979
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND PENELLO
On August 1, 1979, Administrative Law Judge Da-
vid L. Evans issued the attached Supplemental Deci-
sion' 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 2 and brief and has decided to affirm the rulings,
findings, and conclusions of the Administrative Law
Judge and to adopt his recommended Order, as modi-
fied herein.
The Administrative Law Judge recommended that
interest on the backpay award be computed as set
forth in Florida Steel Corporation, 231 NLRB 651
(1977). However, the method of determining the in-
terest rate set forth in that Decision is not applicable
in cases in which an earlier Order of the Board pro-
viding for a different interest rate has been enforced
by a court of appeals. Accordingly, we shall order
interest to be paid at the rate of 6 percent, as ordered
in our original Decision and enforced by the court of
appeals.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent, Vanguard Oil Service, Inc.
and Vanco Heating, Plumbing and Welding Co.,
I The original Decision is not reported in volumes of Board Decisions.
2 Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
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 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
Brooklyn, New York, its officers, agents, successors,
and assigns, shall pay to Ronald Williams the sum
$4,705.80, with interest thereon at the rate of 6 per-
cent per annum as stated in our original Decision,
with appropriate deductions for taxes required to be
withheld by Respondent under Federal and state
laws.
SUPPLEMENTAL DECISION
SIATEMENI OF IHE CASE
DAVID L. EVANS, Administrative Law Judge: This sup-
plemental proceeding to determine backpay was heard be-
fore me, with General Counsel and Respondent repre-
sented, in Brooklyn, New York, on February 28 and March
26, 1979, on the specification of the General Counsel and
answer of Vanguard Oil and Service, Inc. and Vanco Heat-
ing, Plumbing and Welding Co., herein called the Respon-
dent. Generally, the issue litigated was the amount of back-
pay due from Respondent to Ronald Williams pursuant to
a Board order. The parties were afforded full opportunity to
examine and cross-examine witnesses, to introduce evi-
dence, and to present oral argument. A brief was submitted
by Respondent, and the General Counsel submitted a letter
of statement of position, both of which have been carefully
considered. Upon my observation of the witnesses, their
testimony, the exhibits, and upon the entire record in the
case I make the following findings and conclusions.
I. BA(K(GROUNI) ANI) PLEADINGS
On June 30, 1976.' Administrative Law Judge Frank H.
Itkin issued his decision (numbered JD-456 76) in which
he found, inter alia, that Respondent had, on January 14,
discharged employee Ronald Williams in violation of Sec-
tion 8(a)(3) and (1) of the Act. On August 9, by unreported
order issued in absence of exceptions, the Board adopted
Judge Itkin's recommended order. On June 16, 1977, the
Court of Appeals for the Second Circuit entered a judgment
enforcing the Board's order.
The specification alleges that Williams' backpay period
begins January 14, the date of the discharge, and ends on
July 14, the date upon which Williams was reinstated by
Respondent. The specification would exempt from the
backpay period the dates between January 22 and March I.
On January 22, Williams received a gunshot wound in his
left forearm. General Counsel contends that Williams un-
derwent a period of incapacity which lasted only until
March 1. Respondent answers that Williams was incapaci-
tated for an unspecified period beyond March I and that
during the entire backpay period Williams made no reason-
able search for work. Respondent acknowledges liability
only for the days between the discharge and the injury.
Therefore, there are two basic issues: (I) when did Wil-
liams become able to work, and (2) did he engage in a
I All dales are in 1976 unless otherwise specified.
246 NLRB No. 22
130
VANGUARD O1.
reasonable search for work during that portion of the back-
pay period in which he was not incapacitated?
11. FINDINGS
A. The Period of' Disailifi
The issue of the duration of the incapacity turns largely
upon credibility resolutions. The case is rendered particu-
larly difficult because critical testimony of both sides con-
tains inconsistencies and logical improbabilities. Moreover.
an unquestionably accurate conclusion on the issue would
require a post hoc medical opinion coupled with a precise
knowledge of the nature of Williams' work. No physicians
testified and the testimony regarding the physical require-
ments of Williams' job is essentially nonexistent.
Williams alone testified on behalf of the General Coun-
sel. Testifying on behalf of Respondent were its president,
Kenneth Butler. its vice president, Carl Willacy, Gerald
Neal, senior medical records librarian from Harlem Hospi-
tal Center in New York, and Fred Lewis. legal clerk in the
medical records department at The Brookdale Hospital
Medical Center in Brooklyn.
Williams testified that "around the 19th or the 21st of
January" he was driving an automobile in New York City
when he was involved in a traffic accident. When he got out
of his car to exchange drivers' licenses with the other party,
a sniper shot him in the left forearm with a .22 caliber
firearm. Williams was taken to Harlem Hospital where, ac-
cording to the "Emergency Record" received in evidence.
he arrived at 11:10 a.m. on January 22, which date I find to
be the date of the injury. Surgery to repair the damage was
performed on that date, and on January 29 Williams signed
himself out of the hospital. The records of his stay at Har-
lem Hospital were identified and received in evidence, but
there was no opportunity to cross-examine the individuals
who were responsible for their compilation; therefore the
conclusions which can be safely drawn from them are ex-
tremely limited. The "Discharge Summary" recites, inter
alia, "He was found to have severe median and ulnar nerve
deficits with weakness in the extensors. M-G was suggested.
However, pt. signed out AMA on 1/29/76." Neal explained
that the abbreviation "AMA" was "against medical ad-
vice" and "M-G" was a muscle graft' which is surgical pro-
cedure in addition to that performed on January 22.
Just why Williams checked out of Harlem Hospital was
disputed. The hospital records recite one specific reason
which William denied. If true, the reason recited would
tend to sully Williams' good name and character and, ab-
sent firsthand testimony on the issue on the part of the
individual who made the accusation, I decline to repeat the
substance thereof here. It suffices to say that Williams was
obviously still in need of treatment when he left Harlem
Hospital on January 29, for he reported to Brookdale Hos-
pital on the next day.
At 9:30 a.m. on January 30, Williams reported to Brook-
dale hospital. The record of that visit states that he was not
2 The transcript. p 1 15. .4. is hereby corrected to change "musclegraph"
to "muscle graft."
suffering acute distress. The sutures of the Harlem Hospital
surgery were taken out. he was given Tylenol to take
"P.R.N." (pro re nata, or, as needed) for pain, and he was
referred to the "hand clinic." for postoperative rehabilita-
tion consultation. Williams visited the Brooxkdale Hospital
Outpatient Clinic on February I1. but the record of that
visit is illegible. He visited the Brookdale outpatient clinic
again on March 3, but the physician's handwritten notes of
that visit were indecipherable by Lewis. The March 3 clinic
notes have checked, adjacent to a line bearing the question
"employable." the box designated "No." According to
Lewis, this would have been completed by the physician
who saw Williams on March 3. The Brookdale records also
include a copy of a questionnaire from The New York
Crime Compensation Board entitled "Request for Verifica-
tion of Information of the claim of'" and thereafter is in-
serted the name of Ronald Williams as "Name of Claimant
of Victim." One of the questions on the form is: "low long
was or will patient be constantly totally disabled (unable to
work)?" In response there is written in the respective blanks
"From 2'/3/76 through undetermined." The document is
signed: "Rita M. Scheler. R.N. [Registered Nursel Ass't.
Direction Ambulatory Care (Clinic)." Finally, there is a
document upon which are handwritten only the word
"Hand" and the date "3/17/76." As Lewis testified, that
document meant that Williams had an appointment at the
outpatient clinic for that date for which he did not appear.
Williams acknowledged that he did not appear for the ap-
pointment on March 17.
Williams first testified that, after recuperating, he began
looking for work by going to Respondent's place of business
"[iln February, early March." He stated that he approached
Willacy and asked for his job back, but that Willacy replied
that he could not have it because Respondent thought it
would win the then pending Board case. Williams testified
that, although he is right handed and usually carries his
toolbox in his right hand. he appeared at Respondent's car-
rying in his left hand the toolbox which weighed from 15 to
20 pounds. On cross-examination, Williams denied that
during this meeting with Willacy he was squeezing a black
rubber exercise ball; he testified "I don't think we even
talked about an injury."
Willacy places the conversation at "sometime in April
.... It was around Easter time. Because the work had just
wound down. And we had had a strike in February. And
most of the workers had returned to work. And we were
about to cut the number of workers during the summer-
time." (Easter fell on April 18, 1976; there was testimony
that the demand for heating oil slacked off in April of each
year.) Willacy denied that Williams carried a toolbox with
him during the visit and he stated three times on direct
examination that he could not recall Williams asking for his
job back or other "small talk," although he stated flatly on
cross-examination that no such request was made. He
stated that there was nothing unusual about Williams being
at the facility because other employees returned when they
were not working. Willacy testified that Williams "had the
habit of coming in the office not only to see me, but to see
other people. So I didn't ask him why, because it was a
natural thing" even though he acknowledged that Williams
131
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had not been to the office since his discharge and that he
did not know who Williams was supposed to be visiting on
that day. Willacy testified that throughout the conversation
Williams squeezed a black rubber exercise ball. According
to Willacy, he remarked to Williams that he had heard
about the shooting and asked what the ball was for and
Williams replied, "I'm squeezing it so I can get some
strength back in my hand." Willacy did not claim to have
offered Williams a job on this visit and he did not deny
telling Williams that he thought Respondent would win the
Board case.
Kenneth Butler, Respondent's president, testified that
Williams appeared at Respondent's facility "sometime, in
I'd say, late April, May, around in there." He did not re-
member who if anyone else was present, but he stated,
"most of the employees were about when he was in there."
Butler stated that Williams was there to see him, that Wil-
liams stated "he was willing to work at that particular time.
But he also admitted that he couldn't work with one hand
.... He wanted to make sure that I didn't take on another
service mechanic or service company to totally replace him
.... He couldn't do anything. He couldn't handle any work
with his left arm. It was impossible for Ronnie to do any
work with his left hand." When asked what he responded to
Williams' request, Butler replied. "I told Ronnie I'd take
him back. I had no problems with taking him back. Ronnie
simply couldn't work, he simply could not do any work. To
do any kind of service work, you have to have use of both
hands." Butler stated that he could remember no rubber
ball such as that described by Willacy in Williams' prior
visit, but did state, "I seem to remember him with a sling."
Butler quickly retreated from the reference to the sling stat-
ing hat he remembered Williams holding his left hand with
his right, palm to palm, so as to support the left arm.
On cross-examination, Butler stated that he had not seen
Williams when he came in to talk to Willacy, and he did
not recall Willacy telling him of Williams' visit after it oc-
curred. Butler was given the opportunity on cross-examina-
tion to reconcile the reference to the sling with his insistence
that Williams supported his left arm with his right hand,
but he could not do so. He insisted on cross-examination
that Williams admitted during the conversation that he had
no use of his left hand, but that "the man wanted to work
with one hand." Butler testified that he responded, "And I
wanted to know how, how he could do it, when it's hard
enough trying to work with two hands." Butler conceded
that he did not give Williams the opportunity to try to work
with one hand or two. Butler denied that Williams had his
toolbox with him during their conversation.
On rebuttal, Williams acknowledged that there was a sec-
ond visit with Butler, as well as the earlier visit with Wil-
lacy. He places the visit with Butler at the "end of March,
early April." Again Williams asserted that he had his tools
with him. He denied having his arm in a sling, stating that
he only used a sling while in the hospital, and stated that
holding his hands, palm to palm, was a usual mannerism of
his. Williams testified that he asked Butler for a job then,
not in the future, and denied admitting being unable to
work. Williams concluded on direct that he was physically
ready to work when he talked to Butler as well as Willacy.
In rebuttal, Williams was asked by General Counsel why
he did not show up for the March 17 appointment at the
Brookdale Clinic.
Q. (By General Counsel) Now, did you have an ap-
pointment at Brookdale that you canceled or did you
not show up fr?
A. Yes.
Q. Do you recall about when that was?
A. I believe it had to be in the middle of March.
That was my last early March was my last visit. It
must have been in the middle of March.
Q. Was there any particular reason why you didn't
show up for that appointment?
A. Because I felt that I didn't need what they was
telling me, all these--I felt that my arm was acting up
different -to work on my own.
Q. At the time of the canceled appointment, had
you already been to see-do you recall whether you
had gone to Vanguard or not prior to the date of that
canceled appointment?
A. I could have been before. It's around the middle
of March I went back. It could have been before.
Williams was a difficult witness, and his references to carry-
ing his 20-pound toolbox (or carrying it in his left hand
although he is right-handed and his custom was to carry it
in his right) appear to be exaggeration. However, I felt him
to be a basically honest witness, and I specifically find that
he was testifying truthfully and accurately in his last quoted
passage in which he places his visit with Willacy at "the
middle of March."
I do not believe Willacy's testimony that he did not recall
Williams asking for his job back; and I do not credit Wil-
lacy's statements that there was nothing unusual in Wil-
liams coming to Respondent's facility, as Williams was then
a discharged employee whose right to reinstatement was
being contested by Respondent-a most unusual circum-
stance. Accordingly, I do credit Williams' testimony that he
did ask Willacy for reinstatement, whether he was then car-
rying a toolbox or not.
I do not credit Butler's statement that he had "no prob-
lems" with reinstating Williams; Respondent obviously had
"problems" with reinstating Williams since it did not do so
until after the June 30 decision by Judge Itkin. I do not
credit Butler's testimony that Williams appeared with his
arm in a sling; whether he supported his hand out of habit
or debility I am unable to determine, but, as discussed
herein, the question could have been resolved by Butler's
taking Williams up on his request for employment, for work
with one hand or two, when, even according to Butler, it
was made by Williams.
As the General Counsel argued in his closing statement,
the testimony of Willacy and Butler seemingly advances the
proposition that Williams' arm atrophied between the Wil-
lacy and Butler visits and the discriminatee presented him-
self at Respondent's facility for no purpose other than to
exhibit his incapacity for work. I do not believe this. I find
and conclude that Williams presented himself to Willacy
and Butler for the purpose of securing employment, and
that there is insufficient evidence to conclude that he was
unable to work when he did so. Moreover, for purposes of
132
VANGUARD OIL
this decision. I place the date of his first appearance, and
the date to resume the running of Respondent's backpavy
obligation, at March 15.
Respondent's position is to the effect that after proof of
the injury was adduced, the burden was on Williams to
demonstrate by physician's certification when he was able
to work and/or that the burden was on the General Coun-
sel to prove precisely when the period of incapacity ended.
Failing such demonstration or presentation, Respondent ar-
gues, no liability can be assessed against it for the period
from January 22 to July 14. 1 disagree.
Williams did not have a duty even to ask Respondent for
his job back, much less a duty to present certification of
ability to perform it. Moreover, a physician's certificate of
fitness or "employability," without reference to the particu-
lar job involved, would have been meaningless. The way to
ascertain if and when Williams was able to perform his job
was to have Respondent comply with its lawful obligation
to offer Williams reinstatement or take him up on his re-
quest for reinstatement when he presented himself at Re-
spondent's facility. Then the line would have been drawn:
Williams would have had to perform or be left with in-
disputable evidence of his alleged inability manifested.
But I do not accept the General Counsel's designation of
March I as the date upon which the period of liability for
backpay resumes. There are two records in evidence which
were made by the Brookdale Clinic on March 3. One is
signed by a physician which describes Williams as not em-
ployable. The other is signed by the assistant director of the
ambulatory clinic which recites that his period of disability
is "undetermined." Since the people who are responsible for
these entries were not made available for cross-examina-
tion, I have. of course, a great hesitancy in using the docu-
ments for any purpose. However, I feel that it is improbable
that the entries were made utterly without factual founda-
tion, and I conclude that, at minimum, there existed a sub-
stantial question as to Williams' employability as of March
3. This question would necessarily have existed in Williams'
mind also, and I find he did not attempt to resolve the
question until he presented himself to Willacy "in the mid-
die of March."
In The Dayton Tire & Rubber Company. a Division of the
Firestone Tire & Rubber Company. 227 NLRB 873 (1977), a
similar case, Administrative Law Judge Melvin J. Welles
invoked a sense of "rough justice" to designate when. for
purposes of calculating backpay, a period of physical dis-
ability of a discriminatee ended. That case, as this one
must, turned on the particular facts. but the Board affirmed
Judge Welles' decisional basis.
My sense of "rough justice" is impelled to designate the
date of March 15 as the date of Williams' recovery by two
factors: (I) I believe Willianis' testimony that he appeared
at Respondent's facility "in the middle of March." and I
believe he would have at least tried to go to work if Respon-
dent had given him an opportunity to do so; (2) Williams'
failure to appear for the March 17 outpatient clinic ap-
pointment is consistent with a belief that he was no longer
in need of the clinic's services at some time before that date.
Any error in this determination could have been avoided
by Respondent's offering Williams a chance to prove his
ability, or inability, to work by offering him reinstatement
which, after all, was Respondent's legal obligation at all
times in dispute. Or, as stated bh the Fifth Circuit in
. L. R. B. v. itai (Coca-(Cola RBlotting (Comtlpativ, 360 F.2d
569, 572 573 (1966), "the Board has, as a matter of pol-
icy one that seems reasonable consistently taken the
view that when an employer's unlawful discrimination
makes it impossible to determine whether a discharged em-
ployee would have earned backpay in the absence of dis-
crimination, the uncertainty should be resolved against the
employer."
In summary, I conclude that Williams went looking for
work as soon as he was able to do so, the first place he went
was to Respondent, and that he did so in mid-March: and
"rough justice" impels me to place the precise date at
March 15. 1976.
B. Wi lliam. ' Search for W orA
Williams testified that when he was physically able to
work, he went to five different New York oil distributors in
an attempt to secure work, but there was none to be had.
He further testified that he regularly read newspapers in an
attempt to locate jobs and he further relied upon friends for
job referrals. Hie also applied at the New York State Em-
ployment Agency, although he acknowledged that it mal,
have been in the latter part of April that he did so.
Respondent placed in evidence a question and answer on
a form contained in the Regional Office's hackpil file for
Williams. The question asks if as part of his search for work
Williams referred to newspapers. and the reply is "no."
Williams credibly repudiated the reply as representing a
misunderstanding between him and the person who com-
pleted the form on his behalf, and I credit Williams' testi-
mony that he applied for work at the five different oil dis-
tributors, as well as requesting reinstatement from
Respondent twice. Respondent seeks to discredit Williams
because he relied upon references from friends; however, as
stated in Sioux Fatlls Stock Yards (Company, 236 NLRB 543,
556 (1978)., "It is not an unusual practice for individuals
looking for employ ment to seek assistance from friends and
acquaintances in helping them to find work. Nor is it evi-
dence that a reasonable search had not been made.
Williams' testimony of his search for interim employment
is unrebutted, and I find it credible. Moreover there is no
evidence that he declined any work that was made avail-
able to him. Therefore I find that Respondent has not
proved that Williams did not make a reasonable search for
work and that he is entitled to receive backpay for the peri-
ods from January 14-22 and March 15 through July 13,
1976.
()N( I.I S)NS
Having found that the backpay period is from January
14 through July 13. 1976. exclusive of the period from Janu-
ary 23 through March 14. 1976, and it not being in dispute
that but for the discrimination against him. Williams would
have earned a salary of $253 during that period, and there
having been no interim earnings by Williams, it is hereby
133
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
found that Ronald Williams is entitled to payment by Re-
spondent of the sum of $4,705.80, plus interest3 accrued to
the date of such payment,4 less tax withholdings required by
state and Federal laws.
ISee Isis Plumbing d Healing C(o. 138 NLRB 716 (19621 Florida Steel
Corporation, 231 NLRB 651 (1977).
4 In its brief, Respondent contends that the period of interest should he
suspended for the period from June 21, 1978, until the date this case was
heard. As the basis for its request, Respondent contends that the trial was
postponed that entire period because Williams was unavailable. There is no
factual support for this assertion, and no legal authority for the contention.
The request is therefore denied.
ORDER'
It is recommended that the Board adopt the foregoing
findings and conclusions.
5 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. 102.48
of the Rules and Regulations, be adopted b the Board and become its
findings. conclusions, and Order, and all objectionms thereto shall he deemed
waived for all purposes.
134