Dependable Truck Leasing, Inc.

422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Dependable Truck Leasing, Inc. and Leonard Johnson. Case 13-CA-9042 May 19, 1971 SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS FANNING AND BROWN On June 26, 1970, the National Labor Relations Board issued a•Decision and Order in the above-enti- tled case' finding, inter alia, that the Respondent, De- pendable Truck Leasing, Inc., had discriminated against Leonard Johnson, in violation of Section 8(a)(3) and (1) of the National Labor Relations Act, as amended, and ordering that he be reinstated and made whole for any loss of earnings, with interest added thereto, by reason of the discrimination. On November 28, 1970, the Regional Director for Region 13 issued and served on the parties a Backpay Specification and Notice of Hearing. Thereafter the Respondent filed a timely answer. Pursuant to notice, a hearing was held before Trial Examiner Anne F. Schlezinger on December 22, 1970, for the purpose of determining the Respondent's backpay obligation to Leonard Johnson. On February 10, 1971, the Trial Examiner issued the attached Supplemental Decision, in which she found the discriminatee herein to be entitled to backpay in the amount specified. Thereafter, Respondent filed excep- tions to the Trial Examiner's Supplemental Decision 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 powers in connection with this case to a three-member panel. The Board has reviewed the rulings made by the Trial Examiner at the supplemental hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the en- tire record in this case, including the Supplemental Decision, and the exceptions and brief, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Pursuant to Section 10(c) of the National Labor Re- lations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Dependable Truck Leasing, Inc., Chicago, Illinois, its officers, agents, successors , and assigns, shall pay Leonard Johnson the amount set forth in the attached Trial Examiner's Supplemental Decision. ' 183 NLRB No 118 TRIAL EXAMINER'S SUPPLEMENTAL DECISION ANNE F. SCHLEZINGER, Trial Examiner: On April 7, 1970, the National Labor Relations Board issued its Decision and Order in the above-entitled proceeding,' finding that De- pendable Truck Leasing, Inc, herein called the Respondent, had discriminatorily terminated Leonard Johnson, and di- recting that the Respondent offer Johnson reinstatement and "make him whole for any loss of earnings he may have suff- ered by reason of the discrimination against him by payment to him of a sum of money equal to that which he normally would have earned from December 6, 1968, the date of John- son's layoff, to the date of the offer of reinstatement, less Johnson's net earnings during the said period." On November 28, 1970, the Regional Director for Region 13 issued backpay specifications and notice of hearing, to which the Respondent filed a timely answer. Pursuant to notice, a hearing was held before me in Chicago, Illinois, on December 22, 1970, for determination of the amount of back- pay due Johnson.' All the parties appeared and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to present evidence. Subsequent to the hearing, the General Counsel filed a brief and the Respondent filed a brief and a supplemental brief, all of which have been duly considered. Upon the entire record in this proceeding and from my observation of the witnesses, I hereby make the following: FINDINGS OF FACT 1. The Backpay Specifications The Respondent is engaged in the leasing of trucks and the transportation of freight. Prior to his termination Johnson worked as an over-the-road driver out of the Respondent's Chicago facility. He drove equipment of the Respondent, in which he hauled materials for the Respondent or for lessees of the Respondent under lease arrangments whereby the Re- spondent furnished a driver as well as a truck. When driving leased equipment, Johnson, in accord with the requirements of the Interstate Commerce Commission, was paid by the lessee. The parties stipulated at the instant hearing that the trucks were owned by the Respondent, which paid for the insurance and licenses. In computing the gross backpay due Johnson, the Backpay Specifications allege that an appropriate measure of his earn- ings during the backpay period, which extends from Decem- ber 7, 1968, the day following his discriminatory termination, to July 6, 1970, the date on which the Respondent offered him reinstatement, should be based upon the quarterly average earnings he received during the 18-week period immedi- ately prior to his discharge; that during this period Johnson earned $4,544.42, or a weekly average of $245.64, that of the total earnings of $4,544.42, Johnson received 1,549.57 from the Respondent, and the remainder from three lessees of the Respondent in the amounts of $2,794 from National Video, $66.20 from Marvel Metal Products, and $134.65 from Duro Chrome; that Johnson during this period incurred dental expenses of $170 which, but for his discharge, would have been paid by a union group dental insurance plan of which Johnson was a member while employed by the Respondent; and that Johnson's interim earnings during this period were those set forth below by calendar quarters: 183 NLRB No. 118 The Respondent on July 6, 1970, offered Johnson reinstatement, which Johnson declined 190 NLRB No. 79 DEPENDABLE TRUCK LEASING 423 Calendar Quarter Gross Backpay Interim Earnings Net Backpay 1968 -- IV 3 weeks each $245.64 = $ 736.92 $ 0.68 $ 736.92 1969 -- I 13 weeks each 245.64 = 3193.32 119.68 3073.64 1969 -- II 13 weeks each 245.64 = 3193.32 2342.13 751.19 100.00 1969 -- III 13 weeks each 245.64 = 3193.32 2664.39 528.93 1969 -- IV 13 weeks each 245.64 = 3193.32 3055.46 137.87 1970 -- I 13 weeks each 245.64 = 3193.32 2990.79 202.53 1970 -- II 13 weeks each 245.64 = 3193.32 3387.16 0 1970 -- III 1 week each 245.64 = 245.64 305.11 0 $5431.08 Dental Expenses . . . . . . . . . . . . . . . . . . . . . . . . 170.00 TOTAL $5601.08 The specifications allege, based upon the facts and calcula- tions summarized above, that the Respondent's obligation to make Johnson whole under the Board Order would be dis- charged by payment to Johnson of the sum of $5,601.08, plus interest accrued to the date of payment, minus the tax with- holdings required by Federal and State laws. 2. The Respondent's contentions The Respondent contends that, to the extent Johnson was paid by the Respondent's lessees, he was employed by those lessees, and, therefore, that the amount of backpay due John- son from the Respondent should be determined on the basis of the wages paid him by the Respondent, exclusive of the wages paid him by the lessees. The Respondent argues in its brief, accordingly, that as Johnson's interim earnings ex- ceeded the wages paid him by the Respondent, Johnson "suffered no loss or damage by reason of his release." 3. The evidence In the original Board Decision in this proceeding, there is reference to the Respondent's truck leasing operations; to National Video as one of the Respondent's chief customers; and to a statement by Newburger, the Respondent's presi- dent, at a meeting with union representatives and employees, including Johnson, "that if he wanted he could cancel his contract with National Video and if he did not have work for his drivers they would not have to work." Johnson testified at the instant hearing that, while em- ployed by the Respondent, he reported for work daily at the Respondent's premises. There one of the Respondent's dis- patchers gave Johnson his work orders, and informed him whether he would be driving for the Respondent or for a lessee. If the latter, the dispatcher told Johnson whether the load to be delivered was at the premises of the lessee or of the Respondent. Johnson then took the Respondent's tractor to the lessee's premises to pick up the Load for delivery, or took the Respondent's already loaded trailer tractor directly from the Respondent's truck station to its destination, based on the instructions given him by the Respondent's dispatcher. Johnson also testified that the procedure varied somewhat when Johnson was driving leased equipment depending upon which lessee was involved. When Johnson was to pick up a load at the premises of National Video, the Respondent gave him his dispatch papers, instructions, and an advance check for the trip expenses. Johnson then drove the Respondent's tractor to National Video, hooked the tractor onto a loaded trailer, and picked up the shipping manifest there if he had not already received it from the Respondent. When he re- turned, he would generally take the trailer and the signed bills of lading to National Video, and then take the tractor back to the Respondent and, as Johnson testified, "wait for further orders." When Johnson "pulled a load" for Duro Chrome or Marvel Metal Products, the Respondent's dispatcher notified him where the trailer was and where delivery was to be made. When Johnson thereupon hooked on the trailer, which was usually at a railroad parking lot, the bills of lading were in the trailer. Johnson testified that most of the time he did. not see any employee of the lessees although occasionally a dispatcher at National Video might give him some routine instructions about a particular load. When Johnson was "pulling a load" for any of the lessees, he had a lease in the truck showing that the equipment was on lease from the Respondent to the les- see. These leases were furnished to the driver by the Respond- ent's dispatcher Mattison,' who was called as a witness by the Respondent, had been hired by the Respondent as a dispatcher about 2 months prior to the instant hearing, which was after John- son's termination. Mattison had at a previous time been em- ployed by National Video for about 5 years as assistant traffic manager, but this was apparently prior to Johnson's employ- ment by the Respondent. In any event, Mattison testified that he did not know Johnson. Mattison also testified that while he was at National Video trucks were leased from the Re- spondent as "we didn't own any of our own trucks." He repeatedly volunteered his opinion that nevertheless "our road drivers were employed by National Video." He testified that the drivers furnished by the Respondent with the leased trucks were not accepted by National Video until they filled out applications with National Video and furnished medical certificates, and that he had rejected drivers sent by the Re- spondent. He admitted, however, that this occurred "not too ' This witness, who spelled his name thus at the hearing, is referred to in the Respondent's brief as Madison 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD often," and that he could not even estimate how many were rejected in the 5 years he was at National Video because he did not know. He testified further that he sometimes gave the drivers instructions as to their destinations , but he admitted that this information might also be called in directly to the Respondent's garage because the Respondent had to make the determination as to the equipment it had that was licensed to be driven in the areas in question . He also admitted that: "Usually, the only time there would be a change, any change in orders, would be on the return load. Usually our load was -we would set a load up and they would go there, you know, there would be no change , it would go to a certain customer." Mattison testified further that he did not know who made the Social Security payments for these drivers, but he did know the National Video made out the drivers ' paychecks, which were held at National Video until picked up by the drivers, or mailed to the drivers' homes, or sent to the Respondent and distributed there, in accordance with each driver's prefer- ence. Johnson was paid by the lessees for work he did for them by checks sent to the Respondent and delivered to him by the Respondent's dispatcher CONCLUSIONS I found Johnson a more candid and impressive witness than Mattison, and discredit Mattison 's testimony whenever it is in conflict with that of Johnson . On the basis of Johnson's credited testimony and the entire record , I find that Johnson received his day-to-day work instructions from the Respond- ent's dispatcher , drove equipment belonging to the Respond- ent, and transported goods for the Respondent 's lessees pur- suant to the Respondent's lease agreements and the directions given to Johnson by the Respondent 's dispatcher There is no question that Johnson was paid by the lessees for hauling he did for them pursuant to their leases with the Respondent. It is apparent, however, from the record as a whole, and I find, that this work for the lessees was available to Johnson as a direct result of his employment by the Respondent, and that the Respondent determined the availability and the amount of this work through its control of the lease contracts and through the driving assignments made by its dispatchers. The Board found in its original decision that Johnson was an employee of the Respondent who was unlawfully terminated by the Respondent . It was not alleged or found that Johnson was employed or terminated by the Respondent's lessees I find that the evidence presented at the instant hearing does not warrant a different conclusion regarding Johnson's em- ployee status.' Furthermore, it is well established that the Board has broad authority in determining backpay remedies that will "bring about a restoration of the situation as nearly as possi- ble, to that which would have obtained but for the illegal discrimination,"5 and that will make a dischargee whole for The opinions cited in the Respondent's brief and supplemental brief holding that the drivers of leased equipment were employees of the lessees were issued by agencies other than the Board , arose under legislation other than the Act, and are not determinative of the issues in this case ' Phelps Dodge Corp v NLRB, 313 U S 177, NLRB v US Air any loss of earnings suffered as a result of the unlawful dis- charge.' In accord with this authority, the Board in appropri- ate cases assesses backpay against an employer or labor or- ganization responsible for the discrimination ' based on what the discnminatee would have earned from a source other than the respondent employer or labor organization . For example, a general contractor held to be responsible for the discrimina- tory discharge of employees of its subcontractors was ordered to make these employees whole even though no employer- employee relationship existed between the contractor and the discharged employees.' And a union which causes an em- ployer to discharge employees or to fail or refuse to hire employees discriminatorily is required to restore these em- ployees "as closely as possible, to the ... financial status they would have occupied if it had not been for the discrimina- tion "I The Board requires the union in such cases to reim- burse these individuals for what they would have earned as employees of the employer who discharged them or who failed or refused to hire them 10 In conclusion, I find, from all the relevant evidence, that, but for his unlawful termination, Johnson would have con- tinued, in the course of his employment by the Respondent, to earn not only what the Respondent paid him directly but also what he earned by driving the Respondent 's equipment under lease to the Respondent 's lessees. In order, therefore, to make Johnson "whole for any loss of earnings he may have suffered by reason of the discrimination against him," as required by the Board Order , the backpay remedy in this case must include the earnings Johnson received from the lessees of the Respondent's trucks. I shall therefore recommend that the Backpay Specifications be adopted and that Johnson be awarded the amount of net backpay set forth therein Upon the basis of the foregoing findings and conclusions, and upon the entire record in this case , I recommend that the Board issue the following: SUPPLEMENTAL ORDER The Respondent, Dependable Truck Leasing, Inc, Chicago, Illinois, its officers , agents, successors , and assigns, shall satisfy its obligation to make Leonard Johnson whole by payment to him of the sum of $5,601.08, plus interest thereon accrued to the date of payment at the rate of 6 percent per annum, minus any tax withholdings required by Federal and State laws." Conditioning Corporation, 336 F 2d 275 (C A 6) 6 Golden State Bottling Co, Inc, 187 NLRB No 142, Lee Cylinder Division ofGolay & Co, Inc, 184 NLRB No 28, StarBabyCo, 140 NLRB 678 ' Sec 10(c) of the Act provides that "back pay may be required of the employer or labor organization , as the case may be , responsible for the discrimination " ° Hurd Corporation, 143 NLRB 306 ° Pen and Pencil Workers Union, Local 19593 (Parker Pen Co), 91 NLRB 883, 888 1° See, for example , Local 17, Union of Operating Engineers, etc, 143 NLRB 29 11 Henry Colder Company, 186 NLRB No 143