Vanguard Oil and Service, Inc.

National Labor Relations Board - Board Decisions

Aug 5, 1977

231 N.L.R.B. 146 (N.L.R.B. 1977)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Vanguard Oil and Service, Inc., and Vanco Heating,
Plumbing and Welding Co. and Jack Fantauzzi
and Local 553, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Help-
ers of America and James Howard. Cases 29-CA-
3871, 29-CA-3805, and 29-CA-4086
August 5, 1977
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND PENELLO
On May 27, 1975, Administrative Law Judge
Milton Janus issued his Decision in the above-
entitled proceeding finding, inter alia, that Respon-
dent had violated Section 8(a)(3) and (1) of the
National Labor Relations Act, as amended, by
discriminatorily discharging employees James How-
ard and Eugene Hester. The Administrative Law
Judge recommended that they be reinstated and
made whole for any loss of earnings suffered by
reason of the discrimination against them. No
exceptions were filed to the Decision of the Adminis-
trative Law Judge. Thereafter, pursuant to Section
10(c) of the National Labor Relations Act, as
amended, and Section 102.48 of the National Labor
Relations Board Rules and Regulations, Series 8, as
amended, the National Labor Relations Board, on
July 16, 1975, issued its Order' adopting the findings
and conclusions of the Administrative Law Judge as
contained in his Decision, and ordered that Respon-
dent take the action set forth in the recommended
Order of the Administrative Law Judge.
On February 23, 1976, the United States Court of
Appeals for the Second Circuit issued its judgment 2
enforcing the Board's Order. Thereafter, on April 5,
1976, the Regional Director for Region 29 issued and
served on the parties a backpay specification and
notice of hearing. Respondent filed an answer on
April 20, 1976. On July I and 20, 1976, a hearing was
held before Administrative Law Judge Charles W.
Schneider for the purpose of determining the issues
and amounts of money due under the backpay
specification.3
i Not reported in bound volumes of Board Decisions.
' Docket 75-4222.
:' During the course of the hearing on July I, 1976, an agreement was
reached between the parties Ibr the settlement of the backpay claim of
James Howard.
4 Not reported in bound volumes of Board Decisions. Member Jenkins
was of the opinion that there was no need for a remand.
, Evidence adduced at the hearing revealed that Hester made approxi-
mately 10 trips for Clifton Bus Lines in 1974. However, it was found that
only one of these trips, occurring on May 30, 1974. fell within the backpay
period. Based on Hester's testimony that he was paid approximately $35 per
231 NLRB No. 30
On September 15, 1976, Administrative Law Judge
Charles W. Schneider issued the attached Supple-
mental Decision in this proceeding fixing the amount
of backpay due Eugene Hester. Thereafter, Respon-
dent filed exceptions and a supporting brief.
By order dated January 26, 1977, the National
Labor Relations Board 4 remanded the instant
proceeding to the Administrative Law Judge for the
purpose of receiving further evidence on the issue of
Eugene Hester's interim earnings from Clifton Bus
Lines, and for a reconsideration of Hester's credibili-
ty in light thereof. The Administrative Law Judge
was ordered to prepare and issue "a supplemental
decision containing any such findings of fact,
conclusions of law, and recommendations . . .
warranted by the additional evidence received during
the course of the reopened hearing." On April 20,
1977, the Administrative Law Judge issued his
Second Supplemental Decision, also attached hereto,
in which he resolved Hester's credibility as a witness
and reaffirmed, as modified by his Second Supple-
mental Decision, 5 his findings of fact, conclusions of
law, and recommended Order as made on September
15, 1976. Thereafter, Respondent filed exceptions to
the Administrative Law Judge's Second Supplemen-
tal Decision and a brief in support of its exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Supplemental Decision and Second Supple-
mental Decision in light of all of the exceptions and
briefs and has decided to affirm the rulings, find-
ings, 6 and conclusions of the Administrative Law
Judge and to adopt his recommended Order as stated
in the Second Supplemental Decision.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Vanguard Oil
and Service, Inc., and Vanco Heating, Plumbing and
Welding Co., Brooklyn, New York, its officers,
trip, the Administrative Law Judge accordingly deducted $35 from the
amount of money he had found was due Hester at the onginal backpay
hearing.
6 The Respondent has excepted to certain credibility findings made by
the Administrative 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 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
146
VANGUARD OIL AND SERVICE, INC.
agents, successors, and assigns, shall take the action
set forth in the said recommended Order.
SUPPLEMENTAL DECISION AND ORDER
STATEMENT OF THE CASE
CHARLES W. SCHNEIDER, Administrative Law Judge:
This supplemental proceeding to determine the amount of
backpay due Eugene Hester, whose employment was
discriminatorily terminated by the Respondent, was heard
before me on July I and 20, 1976, at Brooklyn, New York,
on the backpay specification of the General Counsel issued
April 5, 1976, and the Respondent's answer filed April 20,
1976.1 All parties were afforded full opportunity to be
heard, to introduce and to meet material evidence, and to
argue the issues on the record. A brief was filed by the
Respondent on August 18, 1976, and has been considered.2
Upon the record made before me, and from my
observation of the demeanor of the witnesses, and
consideration of the contentions of counsel, I make the
following:
FINDINGS OF FACT
The Issues
The only issue raised is as to alleged willful loss of wages
by Hester. The Respondent contends that Hester did not
fulfill his obligation to seek employment, thus willfully lost
earnings, and is therefore not entitled to any backpay.
The Applicable Principles
An employee claiming backpay under the National
Labor Relations Act, as a result of discriminatory termina-
tion of his employment, must make reasonable effort to
secure suitable new employment, and if he fails to do so he
may not be reimbursed for wage losses willfully incurred.
Phelps Dodge Corp. v. N.L.R.B., 313 U.S. 177 (1941);
Harvest Queen Mill & Elevator Company, 90 NLRB 320
(1950).
Pursuant to the Supreme Court's directive in the Phelps
Dodge case to the effect that the Board "may give
appropriate weight to a clearly unjustifiable refusal to take
desirable new employment" (313 U.S. at 199-200), it has
been held that under certain circumstances a discriminatee
may be required to "lower his sights" and accept available
and comparable employment outside his trade. N.LR.B. v.
Madison Courier, Inc., 505 F.2d 391 (C.A.D.C., 1974);
Florence Printing Co. v. N.LR.B., 376 F.2d 216, cert.
denied 389 U.S. 840 (1967); Southern Silk Mills, Inc., 242
F.2d 697 (C.A. 6, 1957), cert. denied 355 U.S. 821 (1957).
The Court of Appeals for the Second Circuit has held
that the General Counsel has the burden of producing
testimony by each discriminatee that a willful loss of
earnings was not incurred. N.L.R.B. v. Mastro Plastics
Corporation, 345 F.2d 170 (C.A. 2, 1965), cert. denied 384
t The order of the Board pursuant to which this heanng was held is dated
July 16, 1975, and the judgment of the Court of Appeals for the Second
Circuit enforcing that order is dated February 23, 1976.
2 The complaint involved an additional issue as to the amount of
hackpay due James Howard, who had also been discriminatonly discharged
U.S. 972 (1966). However, that court, and apparently all
other courts which have considered the point, has held that
"the burden of persuasion as to willful loss ... [remains]
on the employer .... " Mastro Plastics, supra at 175-176.
The Court of Appeals for the District of Columbia put
the controlling principles as to willful losses thusly in the
case of Oil, Chemical and Atomic Workers International
Union (Angle, d/b/a Kansas Refined Helium Company) v.
N.LR.B., 92 LRRM 3185, 3188, 79 LC ¶ 11, 493
(C.A.D.C., 1976):
The Phelps Dodge Court made it clear that the willful
loss of earnings doctrine was adopted not so much to
effect "the minimization of damages" but rather to
encourage "the healthy policy of promoting production
and employment." ...
The boundaries of the willful loss of earnings
doctrine have been defined in subsequent opinions.
Backpay may be reduced to the extent that the
employee "fails to remain in the labor market, refuses
to accept substantially equivalent employment, fails
diligently to search for alternative work, or voluntarily
quits alternative employment without good reason."
.... The burden of proving such willful loss of
earnings is always upon the employer ..
The discriminatee is merely required to make
"reasonable efforts" to mitigate his loss of income, and
only unjustified refusals to find or accept other
employment are penalized under this rule.... An
employee need not "seek employment which is not
consonant with his particular skills, background, and
experience," or "which involves conditions that are
substantially more onerous than his previous position."
. . . He is not required to accept employment which is
located an unreasonable distance from his home....
Efforts at mitigation need not be successful; all that is
required is an "honest good faith effort .... "
In the instant case, the General Counsel produced the
discriminatee, Eugene Hester, for examination and cross-
examination as to his interim earnings and his efforts to
find employment, and Hester so testified. His testimony,
despite occasional lapses and uncertainties, establishes a
prima facie basis for finding that he made reasonably
diligent effort to find new employment. The burden is
therefore on the Respondent to establish that Hester
incurred willful loss of earnings.
The backpay period for Hester, a fuel oil truckdriver,
began on January 14, 1974, and ended on November 3,
1975, when he was reemployed by the Respondent.
The fuel oil business is seasonal. The bulk of employ-
ment for drivers is from October to April or May. In the off
period all but a skeleton force are laid off, and there is
substantially no employment available for drivers. Drivers
who are seasonally laid off are generally recalled in the fall.
Hester is married, his wife does not work, and he did not
apply for welfare benefits.
by the Respondent. However, during the course of the hearing on July I.
1976, agreement was reached between the General Counsel, James Howard,
and the Respondent for settlement of the claim as to Howard. Accordingly,
his case is no longer involved.
147
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Hester's uncontradicted and credited testimony is that
upon being discharged by the Respondent he registered
with the state unemployment office, which has a special
section for drivers of fuel oil trucks. Hester reported there
at subsequent intervals over the period of the next year.
However, he was not referred to any job.
Hester's further testimony is that he also sought employ-
ment on his own during the backpay period. This effort
consisted of inquiries of his friends as to possibilities of
employment and applications to various identified employ-
ers. Most of these were fuel companies. Some, however,
were in other forms of transportation. Among the compa-
nies were Heatmaster, Howard Fuel Oil, Stern Brothers
(Peerless Utilities), Bergen Fuel Oil Company, Five
Borough Fuel Oil Company, Allen Transportation, Auto-
mated Bread, Clifton (C and B) Bus Lines, Citgo Fuel,
Island Transportation, Mobil Oil, Texaco, Barrow Fuel,
Venable Fuel Corporation, East 51st Street Peoples Fuel,
and Modern Fuel. At some of these places, according to
Hester, he filled out written applications and was advised
that if employment became available he would be called;
at others applications were oral and he was told merely
that there was nothing available. He also followed leads in
newspapers and inquired at private employment agencies.
His testimony is that he continued these efforts to find
employment throughout the period of his unemployment.
In addition, Hester considered the purchase of his own rig,
but was unable to provide the necessary financing.
Hester did secure some employment as indicated
hereafter.
Hester's gross backpay, the amount he would have
earned with the Respondent if he had not been discharged
(with appropriate deduction for seasonal layoffs, spring to
fall), is conceded to be $14,522.90. The General Counsel's
specification of gross wages and interim earnings is given in
the Appendix attached hereto. To be subtracted from that
$14,522.90 is $1,178.42 in admitted interim earnings of
Hester in other employment during the backpay period.
The employment secured by Hester is as follows.
In February 1974, shortly after his discharge by the
Respondent, Hester obtained a job as a driver at Stern
Brothers (Peerless Utilities). He worked about a month and
was laid off in March.
During the spring of 1974 he obtained occasional
employment "off the books" as a busdriver for Clifton Bus
Lines (C and B Bus Company) on charter trips around the
New York City or surrounding area. For these he was paid
on a trip basis, usually a percentage of the charter fee. He
also worked for Clifton on the same basis during the spring
of 1974 and 1975. The amount of such earnings during the
spring of 1974 is not established, hence no calculation can
be made. The earnings from the summer work are not
available as a setoff to Hester's gross backpay due, for the
reason that they occurred in the third quarters of 1974 and
1975-a period when there is no charge of gross backpay.
Hester would not have been working for the Respondent
duri ng those periods because of seasonal layoffs.
In addition, during the spring and summer of 1974,
Hester received some employment on a share basis from
:' The recess in the hearing from July I to July 20, 1976, was for the
purpose of permitting the Respondent to investigate Hester's testimony in
Five Borough Fuel Company, earning $497 in that
employment. He was ultimately laid off from that job. The
exact dates of these earnings are not disclosed, but no issue
appears to be raised as to them. The $175 interim earnings
for the second quarter of 1974, given in the General
Counsel's specification, presumably represent a proper
allocation of the $497 as between deductible and nonde-
ductible (seasonal and nonseasonal) earnings.
Contentions and Conclusions
As we have seen, the only issue raised by the Respondent
is that Hester willfully lost wages. The Respondent
contends that Hester did not fulfull his obligation to seek
employment diligently, thus willfully lost earnings, and is
therefore not entitled to any backpay.
Hester's testimony as to his efforts to find employment
are in large part undenied. The Respondent contends that
his testimony should not be credited. In support of this
contention the Respondent offered testimony by officials
of three of the fuel oil companies at which, according to
Hester, he applied for employment. These were, respective-
ly, Heatmaster, Venable Fuel, and East 51st Street Peoples
Fuel.
Presumably the Respondent made an investigation at all
15 of the existent employers who were identified by Hester
as places where he applied for employment.3
Since evidence was introduced by the Respondent as to
only 3 of the 15 employers, it is to be inferred that the other
12 would either corroborate or not contradict Hester's
testimony. Hester's testimony as to those 12 is therefore
credited. We turn then to the other three.
Heatmaster
Hester testified that he applied to Michael Zucker of
Heatmaster, a firm for which Hester had previously
worked. Zucker testified that he had no record or
recollection of Hester's applying to him for employment
during the backpay period. However, Zucker's records
were not complete, and his recollection was not definite.
Thus he admitted that it was possible that Hester had
checked with him through another driver as to the
possibilities of employment, as Hester testified. In addition,
Zucker admitted that he had a conversation with Hester at
Heatmaster's premises during the backpay period in which,
according to Hester, he asked for employment. Zucker's
testimony as to that conversation is that he did not recall
whether Hester asked for employment: Zucker did not
think that he did, but he was not sure.
There appears no reason why Hester should have called
on Zucker except to ask for employment. In view of the
uncertain nature of Zucker's recollection, it is found that
his testimony will not support a finding that Hester did not
apply to Heatmaster for employment.
In any event, there is no evidence that Heatmaster had
work available for Hester during the backpay period, or
that it hired any new drivers during that period of time.
James Howard, the discriminatee whose case was settled,
testified that he applied at Heatmaster on several occasions
that regard given on July 1. One of those employers, Automated Bread, is
now out of business.
148
VANGUARD OIL AND SERVICE, INC.
without success. In the light of these facts, it cannot be said
that there was employment available at Heatmaster which
Hester might have received, and that a failure to apply
there resulted in a loss of wages, willful or otherwise, by
Hester.
Venable Fuel Corporation
Hester testified that he called at Venable's office and
applied for employment on the recommendation of a driver
for Venable named Kasool, that he was told by Venable's
receptionist that no work was available, and that he
thereafter kept in touch with employment possibilities at
Venable through Kasool, without results. That testimony is
undenied.
However, Alfred Reid, office manager of Venable,
testified that he had no record of a written application from
Hester, though he had one from James Howard dated
September 1, 1974; and, further, that Venable's receptionist
is under orders to take a written application from all
applicants and to refer them to Reid for interview.
In view of Hester's specific testimony as to the circum-
stances of his application at Venable, his uncontradicted
identification of the employee, Kasool, as his contact at
Venable, and the fact that, as found, he made applications
at other fuel oil companies, Hester's testimony that he
applied at Venable is credited.
In any event, as in the case of Heatmaster, there is no
evidence that Venable hired any new drivers in 1974 or
1975. James Howard applied in September 1974 and was
told that he would get a call, but did not. Thus it cannot be
said that there was employment available at Venable which
Hester might have received, and that failure to apply there
resulted in a loss of wages, willful or otherwise, by Hester.
East 51st Street Peoples Fuel, Inc.
Hester's original testimony, given on July 1, 1976, did not
contain a representation that he made an application for
employment at East 51st Street Peoples Fuel, Inc. How-
ever, about May 14, 1975, Hester filed a form with the
Board's Regional Office, in connection with his backpay
claim, in which he listed East 51st Street Peoples Fuel Inc.,
as one of the places where he applied and was told to
"come back."
As part of its case, on July 20, 1976, the Respondent
presented Kenneth Pollack, evidently an official of East
51st Street Peoples Fuel, Inc.
Pollack testified that he had no application for employ-
ment from Hester. Thereafter, Hester testified that he did
not file a written application with East 51st Street Peoples
Fuel, Inc., but that he telephoned them and was told that
there was no work. Pollack's testimony is that, when
persons telephone for employment and none is available,
his secretary tells them that the Company is not hiring, but
that the applicant can come in and file an application in
writing; that such applicants are then interviewed by
Pollack, and are given priority for any future vacancies.
Pollack further testified that, if Hester had come in during
the winter and filed a written application, he would have
4 The evidence indicates that a gypsy cab is one which is permitted to
respond to calls. but is not permitted to cruise for business, in contrast to
"medallion" (conventional) cabs
received some part-time work. It is not disclosed how this
would have been possible during a period of high
unemployment, if Peoples had a full staff of regular
employees.
In my opinion, the evidence as to East 51st Street
Peoples Fuel establishes (I) that Hester made telephonic
application and was told that no work was available and
(2) that if he had come in and filed a written application
during the winter, he might have received some part-time
work of indeterminate amount. I do not regard that as
substantial evidence of willful loss of wages. That there
might be part-time employment available somewhere does
not establish a failure to seek employment. What is
required is reasonable effort. The evidence as to East 51st
Street Peoples Fuel, Inc., does not disclose unreasonable
lack of effort by Hester.
Employment as a Cab Driver
Hester's direct testimony on July I, 1974, did not contain
a representation that he applied for work as a taxicab
driver. However, asked on cross-examination by the
Respondent whether his vehicle operator's license permit-
ted him to drive taxicabs, he replied that it authorized him
to drive trucks, tractor-trailers, and taxicabs. Asked
whether he applied for employment as a cab driver, he
testified that he applied to Black Pearl, a "gypsy" cab
company, apparently without success.4 Hester sought
employment as a truck and tractor driver at transportation
companies.
During the backpay period advertisements appeared in
the New York Times for medallion drivers. Hester did not
apply for such employment, testifying that he did not
consider himself to be a "qualified" taxi driver. From this
the Respondent argues that Hester did not "lower his
sights" and therefore should be denied backpay.
I do not deem that principle applicable here. Hester
made reasonable attempts to find employment in his own
field of endeavor and in the area of general and specialized
trucking. In addition he drove for Clifton Bus Company,
carrying bus passengers for hire. He applied for work as a
gypsy cab driver, but did not feel himself qualified to be a
medallion driver. I do not view his hesitancy in that regard
as evidence of willful wage loss. Encouragement of the
public policy of seeking gainful employment should not
become a vehicle for allowing malefactors to transfer the
economic burden of their offenses to their victims. The
record establishes, in my opinion, that Hester made
reasonable effort to find employment, thus effectuating the
public policy. He was deprived of income by the Respon-
dent's unfair labor practice, and was unable by reasonable
effort to recoup. To hold that in such a circumstance a
failure to seek employment in another field of activity, for
which he felt himself unqualified, disqualifies him from
recovery of any portion of his loss would, in my view, not
effectuate public policy, but violate it, and seem little short
of capricious. There is no evidence that Hester refused any
offer of employment. To conclude, against the background
of his demonstrated efforts, that, if he had applied for a job
149
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as a medallion cab driver, he would have been hired and
would have earned sufficient money to liquidate the
Respondent's financial obligations to him, is pure conjec-
ture and speculation.
The Respondent also appears to urge that the small
amount of interim earnings of Hester ($1,178.42, and only
$175 from April 1, 1974, through November 3, 1975)
indicates lack of diligent effort. It is to be noted, however,
that 1974 was a year of high unemployment, and 1975 even
more so. U.S. Bureau of Labor Statistics figures, of which I
take judicial notice, disclose that in 1974 unemployment in
New York City averaged 6.6 percent, and in 1975 averaged
10.6 percent. In contrast, unemployment in that area in
1968, 1969, and 1970, more normal years, averaged 3.1
percent, 3.6 percent, and 4.8 percent, respectively. In these
circumstances the amount of interim earnings of Hester
does not tend to establish a lack of diligent effort to find
employment.
I therefore find that the Respondent has not sustained
the burden of persuasion that Hester willfully lost wages.
I conclude that Hester is entitled to recover from the
Respondent the sum of $14,522.90, with interest, in order
to make him whole in accordance with the Board's Order,
for loss of earnings incurred by reason of the discrimina-
tion against him.
Recommendations
On the basis of the foregoing findings of fact, conclusions
of law, and the entire record in this proceeding, and
pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
SUPPLEMENTAL ORDER 5
Vanguard Oil & Service, Inc., and Vanco Heating
Plumbing and Welding Co., its officers, agents, successors,
and assigns, shall pay to Eugene Hester the sum of
$14,522.90, plus interest at the rate of 6 percent per annum
on the basis of quarterly amounts of backpay due, in
accordance with the formula set forth in Isis Plumbing &
Heating Co., 138 NLRB 716 (1962). There shall be
deducted from the amount due any tax withholding
required by law.
I 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 by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
APPENDIX
Computation of Backpay Due to Eugene
ies ter
Backpay Periodi January 14, 1974 -
November 3, 1975
1974 - let Quarter (from 1/14 only)
11 wks. at $190 per wk. $2,090.00
OT - 186.10 hri. at 7.125 1.325.96
Cross backpsy 3,415.96
Interim earnings 1 003.42
Net backpay $2,412.54
1974 - 2nd Quarter
13 wka. act 190 per vk.
OT - 13.31 hra. at 7.125
Cross backpay
Interim earnings
Net backpay
1974 - 3rd Quarter
Cross - layoff period
1974 - 4th Quarter
13 wks. at $200 per wk.
OT - 106.23 hrs. at 7.50
Gross backpay
Interim earnings
Net backpay
1975 - lit Quarter
13 vks. at $225 per wk.
OT - 159.85 hrs. at 8.43
Cross backpay
Interim eariings
Net backpay
1975 - 2nd Quarter
10 wks. at $225 per wk.
(3 wks. wevre layoff)
OT - 45.20 hrs. at 8.43
Gross backpay
Interim earnings
Net backpay
1975 - 3d Quarter
Cross - layoff period
1975 - 4th Quarter
5 vwk. at $260.00
OT - 12.33 hra. at 9.75
Cross backpay
Interim earnings
Net backpay
$2,470.00
94.83
2,564.83
175.00
$2, 39.83
-0-
$2,600.00
796,73
3,396.73
-0-
$3,396.73
$2,925.00
1.347.54
4,272.54
-0-
$4,272.54
$2,250.00
381.04
2,631.04
2,000.00
$ 631.04
-0-
$1,300.00
120. 22
1,420.22
-0-
$1,420.22
Total Backpay Owvd to Hester-$14,522.90
1/ This $2,000 represents a payment by
the Respondent to Hester during the
course of negotiations for a settlement
of the matter.
SECOND SUPPLEMENTAL DECISION AND
ORDER
STATEMENT OF THE CASE
CHARLES W. SCHNEIDER, Administrative Law Judge: On
September 15, 1976, I issued a Supplemental Decision and
Order fixing the amount of backpay due to Euguene
Hester. On January 26, 1977, the Board ordered the record
in the proceeding reopened and directed that a hearing be
held before me for the purpose of receiving further
evidence.
The essential portions of the Board's Order are as
follows:
The record discloses that Hester, after his discharge
from Respondent, performed services for and received
compensation from Clifton Bus Lines. However, there
is insufficient evidence in the record upon which to
calculate the earnings received by Hester, which
earnings are to be deducted as interim earnings from
the gross backpay due him. The Administrative Law
150
VANGUARD OIL AND SERVICE, INC.
Judge found that no such calculation could be made
and therefore made no deduction from the gross
backpay due to Hester. The Respondent excepts to this
finding, claiming that there is sufficient evidence upon
which to base an estimate of such earnings.
The Respondent further excepts to a ruling made at
the hearing by the Administrative Law Judge regarding
certain testimony of Hester. Hester testified that, at the
time he received compensation from Clifton Bus Lines,
he was receiving unemployment compensation from
the State, and that, contrary to requirement of law, he
did not report these earnings to the state agency. The
Respondent excepts to the Administrative Law Judge's
ruling that this testimony is of no probative value,
arguing that such testimony is relevant in evaluating
Hester's credibility as a witness.
The Board, having duly considered the matter,
deems it necessary to reopen the record to receive
further evidence bearing on the issue of Hester's
interim earnings from Clifton Bus Lines, and for a
reconsideration of Hester's credibility in light of any
further evidence adduced at the hearing.
Accordingly,
It is hereby ordered that the record in this proceed-
ing be, and it hereby is, reopened, and that a further
hearing be held before Administrative Law Judge
Charles W. Schneider for the purpose of receiving
further evidence relevant to Eugene Hester's earnings
from Clifton Bus Lines and for reconsideration of
Hester's credibility as a witness in light of such further
evidence.
IT IS FURTHER ORDERED that this proceeding be, and
it hereby is, remanded to the Regional Director for
Region 29 for the purpose of arranging such further
hearing, and that the said Regional Director be, and he
hereby is, authorized to issue notice thereof.
IT IS FURTHER ORDERED that, upon conclusion of
such hearing, the Administrative Law Judge shall
prepare and serve upon the parties a supplemental
decision containing any such findings of fact, conclu-
sions of law, and recommendations which the Adminis-
trative Law Judge finds warranted by the additional
evidence received during the course of the reopened
hearing, and that, following the service of such
supplemental report upon the parties, the provisions of
Section 102.46 of the Board's Rules and Regulations
shall be applicable.
Pursuant to the Board's Order a further hearing was held
before me on March 1, 1977, at Brooklyn, New York. All
parties appeared and were afforded full opportunity to be
heard, to introduce and to meet material evidence, and to
argue the issues on the record. A statement in the nature of
a memorandum of law was submitted by the Respondent
on March 29, 1977. and has been considered.
Upon the basis of the entire record, I make the following.
I Memher Jenkins sees no need for a remand and wrould proceed to a
determination of the backpa? due to Hester.
Further Findings
The scope of the supplemental proceedings, as stated in
the Board's Order, is (I) the holding of a hearing for the
purpose of receiving further evidence relevant to Hester's
earnings from Clifton Bus Lines, (2) reconsideration of
Hester's credibility as a witness in the light of such further
evidence, and (3) the issuance of a supplemental decision
containing any further findings, conclusions, or recommen-
dations deemed warranted by the additional evidence. The
hearing has been held and all further evidence offered
relevant to Hester's earnings and employment at Clifton
Bus Lines has been received. The Board did not specifically
direct reconsideration of the Administrative Law Judge's
ruling to the effect that Hester's failure to report his
earnings at Clifton Bus Lines to the state unemployment
compensation agency while receiving such compensation
was of no probative value in evaluating Hester's credibility
as a witness. However, in view of the Board's mention of
the matter in the Order, and its direction to the Adminis-
trative Law Judge to report any findings or recommenda-
tions which he deemed warranted by the additional
evidence, I conclude that the Board wishes that ruling to be
reconsidered also, even though the Board did not directly
say so.
I have therefore reviewed Hester's former testimony in
that connection, as well as his other testimony in the
reconvened hearing, and have reconsidered the question of
his credibility pursuant to the Board's directive. In
addition, I have reconsidered the amount of backpay due
Hester as a consequence of the further evidence.
The Evidence at the Reconvened Hearing
Prior to the reconvened hearing, the Respondent issued a
subpoena duces tecum on John Logan, of Clifton Bus Lines,
Inc., returnable at the hearing, for the production of the
payroll and other records of Clifton Bus Lines concerning
Eugene Hester, including applications for employment and
reports to the governmental authorities. Logan did not
respond to the subpena. During the hearing, telephonic
inquiries were made by counsel for the Respondent to
ascertain whether the subpena would be complied with,
and what information Clifton or Logan could supply.
Counsel for the Respondent reported that in a telephone
conversation Mrs. Logan told him that John Logan was
out of town and that she did not know when he would
return. Counsel stated further that in that conversation
Mrs. Logan advised him that Clifton had "no records of
Hester's employment and that he did not work for them,"
although Hester had submitted an application for employ-
ment in 1975. Counsel further stated that in a prior
conversation Mrs. Logan had told him that, as far as she
recalled, Hester had not worked for Clifton in 1974, but
had worked 2 or 3 days in 1975, that all payments made to
him were off the books, and there were no official records
of his employment. Counsel then stated his belief that
further evidence to be adduced through Clifton Bus Lines
would not be of any help in making a determination of the
facts, and that he therefore did not deem it in the best
151
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
interests of justice to ask for an adjournment for the
purpose of having the subpena enforced.
Hester's Further Testimony
At the request of the Respondent, Hester further
testified, as on cross-examination, at the reconvened
hearing. At the time Hester was able to provide more
definite information than he did at the original hearing, as
to the extent of his employment by Clifton Bus Lines and
his earnings there. Hester's additional testimony is as
follows.
According to his best recollection, Hester worked for
Clifton only in 1974, and not in 1975. On July 19, 1975,
Hester filled out an application for employment with
Clifton, but was not employed. His explanation is that he
would have had to take ICC-required examinations, such
as medical, at his own expense, at a cost of some $50 to
$60, and that in view of the small amount of work he would
be likely to receive in return "it didn't make sense to invest
that kind of money." In the first hearing Hester testified
that he worked for Clifton in the summer of 1975, "one or
two trips," and (although his testimony as to this point is
not quite clear) perhaps 3 days a week in September. Work
in September 1975 for Clifton would not be within the
backpay period, since there is no claim of backpay for
Hester in the third quarter of the year (July, August,
September). In the reconvened hearing, however, Hester
indicated that that testimony given in the prior hearing was
mistaken: he thought that he had the years "mixed up."
Hester's testimony in the reconvened hearing in that
connection was as follows:
A. I don't remember that [the former testimony]. I
think what it was, is that I had the year mixed up
because I didn't work for Clifton the year I went back
to Vanguard. I went back to work for Vanguard in '75.
Q. Your impression is that you didn't work for
Clifton during that year?
A. I'm almost sure of that.
That was the last of Hester's testimony on that subject.
The work for Clifton was irregular, Hester operating as a
fill-in driver, Clifton having a regular staff of drivers. The
employment was off the books, he was paid in cash, no
deductions were made, and he was not given, nor did he
have, any records of it. The pay averaged not over $35 a
trip, consisting of a percentage of the charter fee for the
bus, which was from $290 to $350. The specific trips which
Hester recalled, which he thought covered all his employ-
ment with Clifton,2 were as follows.
(I) A trip from Central Avenue in which he took a rally
group to a school in the Bronx.
(2) A senior citizens group to the Adam Clayton Powell
Church in Manhattan.
(3) A day care children's group from the Bushwick Day
Care Center to the zoo.
(4) The same or a different day care group to the Staten
Island Zoo.
2 Thus his testimony: "There may have been one or two more, I doubt it,
though."
(5) A church group to Bear Mountain.
(6) A "private" group to the Westchester State Park.
(7) A senior citizens group to a picnic.
In addition, Hester twice took a bus to New Jersey for
repairs. Hester was unable to recall the amount of money
he received for those two trips.
Hester was unable to pinpoint the times of those trips
other than that they were in warm weather, and sometime
between April I and September 1. However, in the prior
hearing Hester referred to a trip in which he took a group
of children on an excursion on May 30. That trip would
thus definitely fall within the backpay period. This makes a
total of 10 trips.
As to the amount of earnings at Clifton, Hester's
testimony at the reconvened hearing was, "I would say
roughly about $400."
Hester's Credibility
As before, the Respondent continues to question Hester's
credibility, urges that he is not to be believed, and
consequently says that it must be concluded that Hester
did not make a diligent search for employment and thus
forfeits his entire claim for backpay.
On the basis of the prior record, I concluded then that
Hester was a reliable witness, and that his testimony should
substantially be accepted. It is true that his recollection
was, both then and now, at times faulty, but that is a failing
common to many of us. When it is remembered that the
events which Hester is asked to recall took place several
years ago, and that there is little documentary evidence or
records to assist him, it is not surprising that some of his
testimony may be halting, uncertain, hesitant, and at times
even inconsistent. Such failures may be more attributable
to honesty than to its opposite. Hester was definitely not
the glib, inventive, and self-assured liar.
Hester's testimony at the reconvened hearing is plausi-
ble. He has now recited the complete history of his
employment by Clifton, including the specific trips, and his
testimony in that regard is undenied. It is true that in the
reconvened hearing he concluded that he had not worked
for Clifton at all in 1975, whereas he had previously
indicated that he had. However, I do not regard that
retraction as evidence of mendacity. On the contrary, if
Hester were the practiced liar the Respondent deems him,
he would scarcely have provided so obvious an opportunity
for the Respondent to attack him further. If we were to
atribute to him the venality suggested by the Respondent,
the record of the resumed hearing should show studied
effort on Hester's part to conform his testimony to the
prior record, to buttress his position, and, above all, to
place all of his Clifton earnings in a time period not subject
to deduction. If it be urged that his hesitations and his
admissions against his own interest are merely disguises to
deceive the hearer, that assumes a subtlety which, on
observation, I deem quite beyond Hester.
In assessing the probabilities, it must be kept in mind
that Hester's employment by Clifton was not something
which the Respondent discovered in investigating his
152
VANGUARD OIL AND SERVICE, INC.
actions, or reluctantly wrung from him in searching cross-
examination. Hester volunteered the information on direct
examination by the General Counsel on the first day of the
hearing. If he were a fabricator, it clearly was against his
interest to provide the Respondent with information which
might decrease the Respondent's liability. Equally, he
would, I think, have told a much more facile story about
the Clifton employment both then and now, and particu-
larly now after he has had opportunity to perfect any
inventions. Thus, I do not find in Hester's testimony, as to
additional facts of his employment by Clifton Bus Lines,
any ground to question my original judgment as to his
credibility.
We turn then to Hester's failure to report the Clifton
employment to the unemployment compensation authori-
ties.
Against the background recited above, and my own
appraisal, based on observation and demeanor, that Hester
appeared to be a reliable witness in the essential particu-
lars, I do not regard the failure to report that employment
as requiring a contrary conclusion as to his probity. There
is no evidence that Hester's statements to the state
authorities were under oath. His testimony before me,
however, was. As a witness he readily admitted that he
failed to report the Clifton interim earnings. He did not
attempt to equivocate or to lie-as he might have done in
order to avoid possible prosecution by local authorities, or
to avoid diminution of his claim before the Board-in the
hope that the evasion or the lie might escape detection.
This frankness suggests to me an unwillingness to testify
falsely under oath-a state of mind which reinforces
credibility rather than impairs it. I am therefore of the view
that, in the circumstances presented here, Hester's failure
to notify the local unemployment compensation authorities
of his interim employment does not reflect adversely on the
credibility of his testimony before me. 3
In the light of these various considerations, I conclude,
upon the basis of the entire record, that Hester is a credible
witness and that his testimony should be accepted.
The Amount of Backpay
The remaining question to be resolved is, what is the
effect on the amount of backpay due Hester, of the new
evidence as to his employment earnings with Clifton Bus
Lines. As has been seen, Hester's estimate as to the amount
of his earnings at Clifton is $400. While the Respondent
contends that Hester's testimony in the original hearing
establishes that he worked 30 at a minimum of $80 per
week, and thus earned at least $2,400 at Clifton, I find that
contention not sustained. In my opinion, Hester's testimo-
ny in the prior hearing is not susceptible of the interpreta-
:1 Cf. Enterprise Industrial Piping Companr, 117 NLRB 995 (1957), where
examination of a discriminatee witness, for the purpose of affecting his
credibility, as to whether he made false statements in his application for
unemployment compensation, was held to have been properly foreclosed.
And see Birmingham Publishing Company, 118 NLRB 1380, 1384-85 (1957):
Liberty Scrap Materials, Inc.. el al., 152 NLRB 480, 484 (1965). In the latter
two cases false statements by discriminatees to unemployment compensa-
tion agencies were found not to establish their incredibility.
tion given by the Respondent-particularly in view of the
fact that the Respondent's calculation was based on the
assumption that Hester worked at Clifton throughout the
summer of 1975-an assumption that Hester's testimony in
the reconvened hearing disclosed to be erroneous. More-
over, earnings in the third quarter are not deductible.
As of this date, the record evidence shows that Hester
worked 10 trips for Clifton Lines, 2 of them consisting of
driving a bus to New Jersey for repairs at a rate of pay
Hester was unable to give. But if it be assumed that he was
paid $35 for each of those two, and the maximum $35 for
each of the other eight trips, the resulting sum, $350, is
short of $2,400 as well as short of Hester's own estimate of
$400 from Clifton earnings. But, whatever the sum, the
facts available do not provide a basis for apportioning
more than $35 of it to earnings during a period when
backpay is applicable. That $35 is the May 30 trip carrying
school children to an excursion. As to the remainder of
$350 or $400, whichever figure is used, it has not been
established that it was earned during the backpay period.
The burden being on the Respondent to establish any
diminution of gross backpay, and that burden having been
met only as to the $35, it follows that the amount of interim
earnings chargeable to Hester are to be increased by $35
during the second quarter of 1974-leaving net back pay
due him for that quarter in the amount of $2,354.83, rather
than $2,389.83-as found in the appendix to the original
Supplemental Decision and Order of September 15, 1976.
Consequently, the sum $14,522.90 stated in that decision to
be due Hester should be reduced to $14,487.90. In all other
respects the findings and calculations made in that decision
as to the amount due Hester are reaffirmed.
Additional Recommendation
On the basis of the foregoing findings of fact, conclusions
of law, and the entire record in this proceeding, and
pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
SECOND SUPPLEMENTAL ORDER 4
The Respondent, Vanguard Oil & Service Inc., and
Vanco Heating Plumbing and Welding Co., its officers,
agents, successors, and assigns, shall pay to Eugene Hester
the sum of $14,487.90, plus interest at the rate of 6 percent
per annum on the basis of quarterly amounts of backpay
due, in accordance with the formula set forth in Isis
Plumbing & Heating Co., 138 NLRB 716 (1962). There shall
be deducted from the amount due any tax withholding
required by law.
Manifestly, my conclusions do not affect the authority of the state agency
to take whatever action it deems proper for the protection of its processes.
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.
102.48 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.
153