Interurban Gas Corp.

576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD er than Smith, to work for a period of 2 weeks in March 1964 does not establish an act of discrimination against Smith . No evidence was adduced to show any policy or practice on the part of the Company regarding recall of former em- ployees for temporary work. Without more, I cannot draw any conclusion adverse to the Respondent by reason of its failure to have offered Smith 2 weeks' temporary employment in March 1964.15 Although the credited evidence relied upon by the General Counsel indicates that Neumann considered Smith to be a "strong" union man, there is no proof in this record that Neumann was opposed to the Union or objected to union activities by the Company's employees. The General Counsel argues that Smith was discharged because of his complaints to Neumann. Although Neumann might have been irritated by some of Smith's complaints, the evidence does not establish that Neumann was disposed to terminate Smith for that reason. Fur- thermore, I find that Respondent for valid economic reasons during the month of December 1963 reduced its complement of operating engineers to one and its retention of Russell Mulley, an employee with 14 years' seniority with the Company, who also was a member of the Union, instead of Smith, who had only 3a years' service with the Company, has not been proved to have been discriminatorily motivated. Accordingly, I find that General Counsel has not proved by a preponderance of the evidence that Smith was terminated on Decem- ber 27, 1963 , for discriminatory reasons. CONCLUSIONS OF LAW Respondent has not violated Section 8 (a)(1) and (3) of the Act as alleged in the complaint. RECOMMENDED ORDER On the basis of the foregoing findings of fact and conclusions of law and upon the entire record in the case, I recommend that the complaint be dismissed in its entirety. 15 In reaching this conclusion I am cognizant of the testimony of Rodas that in November 1963 Neumann told him that Smith would not be back in the spring. Interurban Gas Corporation and Donald Gillingham. Case No. 7-CA-3202. November 6, 1964 SUPPLEMENTAL DECISION AND ORDER On January 29, 1962, the Board issued a Decision and Order in the above-entitled case,' which was enforced by the United States Court of Appeals for the Sixth Circuit by a decree entered on May 27, 1963.1 Thereafter, pursuant to a backpay specification and ap- propriate notice issued by the Regional Director for the Region 7, a hearing was held for the purpose of determining the amount of back- pay due to Donald Gillingham, the Charging Party in this case. On March 10, 1964, Trial Examiner C. W. Whittemore issued his attached Supplemental Decision, recommending the award of a spe- cific amount of backpay to Gillingham, as of September 30, 1963, plus an undetermined amount from that date to date of a valid offer of reinstatement. Thereafter, the Respondent filed exceptions to the Trial Examiner's Supplemental Decision and a supporting brief. It 1136 NLRB 604. 2 N.L.R.B. v. Interurban Gas Corporation, 317 F. 2d 724. 149 NLRB No. 57. INTERURBAN GAS CORPORATION 577 also filed certain motions which are considered below. Thereupon, the General Counsel filed an opposition to Respondent's motions-and a brief in answer to the exceptions. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Chairman McCulloch and Members Leedom and Jenkins]. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the entire record in this case, including the Supplemental Decision, the excep- tions, motions, and briefs, and hereby adopts the findings, conclu- sions, and recommendations of the Trial Examiner with the follow- ing additional comments. Respondent's defense to the backpay specification was variously expressed in its answer, in testimony and arguments made at the hearing, in a motion to vacate or stay backpay proceedings which it filed in the Sixth Circuit Court of Appeals,3 in a motion for leave to amend its answer, and in a motion for leave to take additional evidence. The defense, in its various manifestations, was considered and rejected by the Trial Examiner. In substance it is that Gilling- ham would have been terminated for nondiscriminatory reasons if he had remained in Respondent's employ, and, consequently, that Re- spondent is not obligated to reinstate him or to reimburse him for pay lost after such termination would have occurred. The Board found, in the original proceeding, that Gillingham had been discharged on March 14, 1961, because of his activities on behalf of a union. It thereby rejected Respondent's contention that he had been discharged because of inefficiency and a shortage of gas cylinders which it had discovered. Respondent now argues in this proceeding that, after Gillingham's discharge, it became aware of certain customer complaints about Gillingham's conduct as a driver- salesman which would in any event have resulted in his discharge shortly after the date of his discriminatory termination. We note, however, that this information was available to Respondent at the time of the first hearing, and although it did not call the complain- ing customers as witnesses, Gillingham's alleged deficiencies were thoroughly developed in the testimony of Respondent's officials. Our finding as to the true reason for Gillingham's discharge on March 14, 1961, is now res adjudicata, and will not be disturbed. To the extent that Respondent now argues that it should not be required to reinstate Gillingham because it might mean a loss of those cus- tomers who found him unsatisfactory, this conjectural eventuality s Denied 55 LRRM 2299 (C.A. 6), December 19, 1963. 770-076-65-vol . 149-38 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cannot now be permitted to defeat Respondent's obligation to remedy its violation of Gillingham's statutory rights. Respondent further contends that it would have laid Gillingham off for nondiscriminatory reasons the month following his actual dis- charge, when it hired Allen, a serviceman, as replacement for Janisse, a combination serviceman and driver. Janisse had taken over Gillingham's driving duties after the latter's discharge. In effect Respondent argues that it should not have to reinstate the victim of its discrimination because it is better satisfied with its new employee than with its former employees. We consider it quite irrelevant whe- ther Allen is more competent than either of Respondent's former servicemen.4 If Gillingham's reinstatement means that Allen is a superfluous employee, this is a hazard that Respondent should have foreseen. Nothing in our order would preclude Respondent, after it reinstates Gillingham and provides him with sufficient opportunity to prove himself as a driver-salesman, to exercise its normal non- discriminatory business policies with respect to the retention or termination of individual employees. Finally, Respondent points to the fact that late in June 1962, 15 months after his discharge, it rehired Gillingham to do odd jobs at his former rate of pay, and that a little more than a month later, it laid him off when its odd jobs ran out. It argues therefrom that as Gillingham's last layoff was for a nondiscriminatory reason, it has no further obligation toward him. However, the essential point which Respondent has ignored is that Gillingham was not recalled to his former job as a driver or to any substantially equivalent job, as required by our order in the -original proceeding. Moreover, in deter- mining whether Respondent has yet met the obligation imposed by that court enforced order, it is immaterial that no one was hired to replace another employee who left in June 1962.5 It is clear from the stipulation between the General Counsel and Respondent that Allen was hired as part of the reshuffling of duties among Respondent's em- ployees which took place after Gillingham's discharge. If Respondent is inconvenienced or burdened by the obligation to reinstate Gilling- ham, such inconvenience or burden is the consequence of its own ac- tion and should not be allowed to affect adversely the amount of backpay due to Gillingham. Respondent's motions for leave to take additional evidence and for leaveto amend its answer are denied, since the facts proposed to be adduced, even if established, would not, in any event, affect the deci- sion we reach here. 4 Respondent's motion for leave to take additional evidence relates to Allen 's greater competency than the other servicemen's. 5 Respondent's motion for leave to amend its answer relates to the fact that no one was hired to replace Gillingham after his second period of employment. INTERURBAN GAS CORPORATION 579 ORDER On the basis of the foregoing Supplemental Decision and the entire record in his case, the National Labor Relations Board hereby orders that the Respondent, Interurban Gas Corporation, its officers, agents, successors, and assigns, shall pay to Donald Gillingham, as net backpay herein determined to be due (less any amounts required to be withheld by law) the amount set forth by the Trial Examiner in his Supplemental Decision. SUPPLEMENTAL TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE On January 29, 1962, the National Labor Relations Board issued its Decision and Order in the above-entitled case,' adopting in full Trial Examiner Ramey Donovan's Intermediate Report and directing the Respondent immediately to offer employee Donald Gillingham full reinstatement to his former or substantially equivalent position as driver-salesman. On May 27, 1963, the Court of Appeals for the Sixth Circuit entered its Decree enforcing in full the backpay provisions of the Board Order [317 F. 2d 724]. A controversy arose over the amount of backpay due Gillingham. On October 15, 1963, the Acting Regional Director for Region 7 issued his backpay specification and notice of hearing thereon. On November 11, 1963, the Respondent filed an answer to the specification, admitting certain allegations and denying others. Pursuant to notice, a hearing was held in Detroit, Michigan on January 27, 1964, before Trial Examiner C. W. Whittemore. At the hearing General Counsel and the Respondent were represented by counsel and were afforded full opportunity to present evidence pertinent to the issues. After the close of the hearing a stipulation from the parties relating to the hire of one William Weber was received. While the Trial Examiner fails to see the materiality of it, it may be made a part of the record herein. Upon the record thus made, and from his observation of the witnesses, the Trial Examiner makes the following: FINDINGS OF FACT A. The issues In his specification and in full accordance with Board policy, the Acting Regional Director has set forth in detail, by year and quarter, the gross backpay due Gillingham, his net earnings, and the net backpay, during a period from the first quarter of 1961 through the third quarter of 1963. The attached sum- mary appears marked "Appendix." The specification further alleges that to date the Respondent has failed to offer Don Gillingham full reinstatement to his former or substantially equivalent position as required by the Board order, and that therefore the backpay period has not yet ended. The Respondent's answer does not question the accuracy of the backpay calcula, lions,' but denies the periods specified. It affirmatively claims that Gillingham was offered and accepted reinstatement on June 25, 1962. As apparent afterthoughts, the points not being set out in the answer,2 at the hearing counsel for the Respondent introduced two additional contentions: (1) because of new information received by management Gillingham would have been discharged for cause on March 16, 1961, 2 days after his unlawful discharge on March 14; and (2) because of hiring a new employee, one Allen, on April 10, 1961; management would have laid Gillingham off on that date. 3135 NLRB 604. 2 In its answer, the Respondent refers to a certain "Motion To Vacate-or Stay Backpay Proceedings" it had filed with the United States Court of Appeals for the Sixth Circuit. What the grounds for this motion may be, -the record before the Trial Examiner does not reveal. Even if they include the two points noted above, sinde the motion was not filed until November 7, 1963, it is clear that they were not raised as issues until 2% years •after the alleged events. 5,80 DECISIONS, OF II?ATIONAL LABOR, RELATIONS BOARD Thus, in effect, in its effort to delay the course of compliance with a court decree, the Respondent bestraddles three stools: it claims that backpay ended on March 16 and April 10, 1961 , and on June 25, 1962. B. The issues, of March 14 and April 10, 1961 At the hearing counsel for the Respondent conceded that "the issue of whether or not Gillingham would have been discharged on any date subsequent to March 14 (1961 ) was not in any way an issue in the previous case, nor was any argument made on this problem , nor was any decision made on those issues ." The original hearing before Trial Examiner Donovan was held on September 12, 1961, many months after the two dates in question. Although the Trial Examiner is inclined to believe that such questions are belatedly raised , their merits will be here considered. At the opening of the hearing counsel for the Respondent expressed, in effect, his own doubt as to the validity of the first point: the claim that because of information received between March 14 and 16, Gillingham would have been discharged for cause on the latter date. Counsel admitted that April 10, 1961, was the "more important" date he was claiming. Two witnesses, Alden Day and Jessie Smith, were called by the Respondent for the apparent purpose of supporting its contention as to the March 16 date. The Trial Examiner is unable to rely upon the testimony of either as such support. Early in his testimony Day could place neither the name nor the identity of Don Gillingham , and merely remarked that he had had "three different drivers since 1962"-which was a year after Gillingham had been unlawfully dis- charged. Not until counsel for the Respondent stated, in Day's presence , that he intended to have him testify that he had complained to management on "the 14th or 15th of March" and had said he "would no longer buy gas from this company," did Day then agree that "service rendered "-without identifying the driver-had at some time been unsatisfactory. And when counsel for the Respondent pointed out Don Gillingham in the bearing room Day agreeably said that he was the man who had given "unsatisfactory service." But contrary to counsel's leading statement, Day said "We never called Interurban," but merely "complained" to the driver who took Gillingham's place after the discharge. And he said that he did not speak to the driver about the matter until "about a week after" the replacement. Obviously Day's complaint, if any, could not have come to management's attention until after March 16. Smith's testimony was equally unimpressive . Whatever the reason, her testi- mony was so colored and exaggerated as to nullify completely the Respondent's carefully prepared position. She claimed that she had made many complaints concerning Gillingham , and to General Manager Millstead himself , before the discharge and while he was still working. She further stated that all such_com- plaints were made while he was still driving. Obviously, had management considered her complaints , if any, as sufficient to warrant a discharge, she would have been called as a witness at the previous hearing. In short, the Trial Examiner concludes and finds that there is no credible evidence in the record to support the Respondent 's belated claim that Gillingham would have been discharged on March 16, 1961, and that the backpay period ends of that date. As to the April 10 cutoff date, it is the substance of the claim made by Ralph Wyatt, service manager, that Don Gillingham, because of lack of seniority, would have been laid • off on that date, when he hired a new employee, one Allen. In short, Wyatt said that he had been seeking, for "several " months before April, a "qualified" serviceman to replace two "unqualified" service men who had been doing this work for a "few" months, employees Janisse and Bill Gillingham , brother of Don. Completely depriving Wyatt's claim of credibility is the fact that when Allen was hired , he was not assigned to relieve Bill Gillingham, the one serviceman against whom the manager made specific and serious allegations of work endang- ering lives., Janisse, who had worked part time on service, was relieved • of this work and put - on Don Gillingham's job as driver-salesman immediately after the latter's discharge. Bill Gillingham remained at his regular service work for several months thereafter, until he finally and voluntarily quit. There is no credible evidence, in the opinion of the Trial Examiner, warranting the conclusion that April 10, 1961, should be the cutoff date for backpay due Don Gillingham. SECURITY ALUMINUM COMPANY C. The issue of reinstatement 581 There is agreement that Don Gillingham was reemployed by the Respondent on June 25 , 1962, and terminated again on August 4, 1962. There is disagree- ment as to whether this reemployment constituted compliance with the Board and court order of reinstatement. The evidence fully supports General Counsel's contention that the Board order requiring reinstatement has not yet been complied with. When Don Gillingham was rehired he was not put back on his original or any other driver-salesman job, but was assigned to such tasks as painting pipes, cutting grass and weeds, and according to Millstead was let go in August when there was no more work for him to do of this nature. D. Conclusions The Trial Examiner concludes and finds that the Respondent has failed to meet its burden of presenting credible evidence to refute or modify the backpay specification. The attached summary of such specification is adopted in full by the Trial Examiner, and appears marked "Appendix." Upon all the foregoing findings and conclusions, including the adopting of the specification, it is concluded that the obligations of the Respondent as of September 30, 1963 , to make whole employee Don Gillingham will be dis- charged by payment to him of the amount of $9,846 .07, plus an undetermined amount of backpay from October 1, 1963 , to the date of a valid offer of reinstate- ment, less any tax withholdings as required by Federal, State, and local law. APPENDIX Year and quarter Weekly salary Number of weeks Gross backpay Net interim earnings Net backpay 1961-1 ------------------------------------ $105.00 23,1 $273 . 00 0 $273.00 1961-2 ------------------------------------ 105.00 13 1 , 365.00 0 1 , 365.00 1961-3 ------ ------------------------------ 105.00 13 1,365 . 00 $64.00 1,301.00 1961-4 ------------------------------------ 105.00 13 J 1,365.00 1 156.60 1,233.40 l 25 . 00 j 1962-1 ------------------------------------ 105.00 13 1 , 365.00 921 . 39 443.61 1962-2 ------------------------------------ 105.00 13 1,365 . 00 135 . 00 1,230.00 1962-3 ------------------------------------ 105.00 13 1 , 365.00 525 . 00 840.00 1962-4---------------- -------------------- 105.00 13 1,365.00 1 50.40 1,339.60 1 25.00 J 1963-1___ ___ _____________________________ 105.00 1 ------------ ------------ _ 114.40 12 1,477 . 80 1,056 . 32 421.48 1963-2 ------------------------------------ 114.40 13 1 , 487.20 740. 27 746.93 1963-3 ------------------------------------ 114. 40 13 1,487 . 20 835 . 15 652.05 Total net backpay---------------------- - ------------ ---------`-- ------------ ------------ 9,846.07 Security Aluminum Company and Truckdrivers and Helpers Union Local No. 164, International Brotherhood of Teamsters, Chauffeurs, Warehousemen , and Helpers of America, Ind., Petitioner. Case No. 7-RC-6265. November 6, 1964 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, a hearing was held before Hearing Officer James R. McCormick. The Hearing Officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. 149 NLRB No. 61.