Overnite Transportation Co., Inc.

OVERNITE TRANSPORTATION CO., INC. 187 Overnite Transportation Company, Inc. and Chauf- feurs, Teamsters & Helpers Local Union No. 171, International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers of America. Case 5-CA-3029 July 22, 1971 SECOND SUPPLEMENTAL DECISION, ORDER, AND ORDER REMANDING BACKPAY PROCEEDING FOR FURTHER HEARING BY MEMBERS FANNING, BROWN, AND KENNEDY On March 25, 1971, Trial Examiner Louis Libbin issued' his'- Second Supplemental Decision in the above-entitled backpay proceeding finding that Re- spondent had fully complied with the Board's Orders' and recommending that the entire proceeding be dismissed, as set forth in the attached Second Supplemental- Decision? Thereafter, Chauffeurs, Teamsters & Helpers Local Union No. 171, Interna- tional Brotherhood of Teamsters, Chauffeurs,.Ware- housemen and Helpers of America, the Charging Party herein, filed exceptions to the Trial Examiner's Second Supplemental Decision and a brief in support thereof. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this proceeding to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial, error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's. Second Supplemental Decision, the ex- ceptions and brief, and the entire record in this proceeding, and hereby adopts the findings,3 conclu- sions, and recommendations of the Trial Examiner, as modified herein. The Trial Examiner found, inter alia, that the relief sought by the Union in regard to pension, health, and welfare plans, and in regard to utilization of the i 157 NLRB 1185, enfd. 372 F.2d 765 (C.A. 4), rehearing dewed (April 4, 1967, unreported), cert. denied 389 U.S. 838. 8 The Union's, request for oral argument is hereby denied as its brief and the entire record adequately present the issues and positions of the parties. 3 -The Union has excepted to certain credibility findings made by the Trial "Examiner. It is the Board's established policy not to overrule a Trial Examiner's' resolutions with respect to 'credibility unless the clear preponderance of all the relevant evidence c onvinces us that the resolutions were incorrect. Standard 1)ry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 368 (CA. 3). We have carefully examined the record and find no basis for reversing his findings. 4 Phelps Dodge Corp. v. N.L.R.B. 313 U.S. 177. predecessor employer's contractual grievance proce- dures pertaining to discharges, did not fall within the scope of the Board's original Order. We disagree and do not adopt that portion of the Trial Examiner's Decision. The courts have long and consistently held that the Board must be given broad authority to restore the status- quo ante and to make whole employees for any, losses suffered because of unfair labor practices.4 The remedies sought by the, Union, i.e., Respondent -to make contributions into the Union's pension, health, and welfare programs on behalf of the ex-Rutherford employees, and to abide by Rutherford's grievance procedure in disputes involving discharge of ex- Rutherford employees, are available under the Board's original Order.5 The record before us, however, does not permit a determination of whether such remedies would be appropriate in the circum- stances of this case. Accordingly, we-shall remand this. case to the Trial Examiner for the submission of a. Trial Examiner's Third Supplemental Decision, limit- ed.to consideration of these issues. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the ' National Labor Relations Board adopts as its Order the recommenda- tions of the Trial Examiner, as modified above, and hereby orders that the backpay proceeding be, and it hereby is, dismissed in its entirety,-except as modified below. ORDER REMANDING BACKPAY 'PROCEEDING FOR FURTHER HEARING It is hereby ordered that the above-entitled backpay proceeding be, and it hereby is, reopened and that a further hearing be held before Trial Examiner Louis Libbin for the purpose of receiving evidence bearing on the issues noted above. IT IS HEREBY FURTHER ORDERED that this proceeding be, and it hereby is, remanded to the Regional, Director for Region 5 for the purpose of arranging such further hearing and issuing notice thereof. IT Is FURTHER ORDERED that, upon the conclusion- of such further hearing, the Trial Examiner shall, on the, S Unlike the Trial Examiner, we do not read the references in the original Order to the payment to employees of sums equal to contributions made to Respondents insurance- and pension programs as precluding -the remedy - sought by the Union , regarding the unilateral- termination of the Rutherford insurance and, pension plan. Rather,: the Order specifically states, in fn. 9, that Respondent shall make the employees whole for any economic loss they suffered as a result of Respondent's unfair labor practices. In accord with this we read the above provision in the Order as merely setting forth one of the specific actions Respondent was required to take and not as indicating that Respondent need not take whatever other action is necessary to restore the status quo ante. As to the grievance procedure, unlike the Trial Examiner we find nothing in the Order which indicates that the relief sought is outside the scope of the original Order. 192 NLRB No. 25 188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD evidence received pursuant to this Order, as well as on the record As' a whole,,prepare and serve upon the parties a.'Third Supplemental Decision, containing findings of fact, conclusions of law, and recommenda- tions with respect to the remanded issues and that following--the service of such Trial Examiner's Third Supplemental., Decision on the parties, the case shall be,' transferred to the Board and the procedures of Section 102.46 of the Board's' Rules and Regulations and Statements of Procedure, Series 8, as, amended, shall thereafter apply. TRIAL- EXAMINER'S ,SECOND SUPPLEMENTAL DECISION, STATEMENT OF THE CASE, Louis LIBBIN, Trial Examiner: On March. 29, 1966, the National Labor Relations Board issued a Decision and Order in the above-entitled proceeding (157 ;NLRB 1185), finding that the Respondent had violated Section 8(a)'(1) and (5) of the National Labor Relations Act,asuamended, by unilaterally changing wages, 'hours, and conditions'lof, employment without notice to, or prior bargaining with, the Union concerning them. The Board directed, among other things, that Respondent restore the, status quo ante and make,'the employees whole for any economic loss suffered as a result of Respondent's unlawful action in the manner set forth' in` "The Remedy"` section of, said- Decision (157 NLRB' at ' 1185,` 1191, 1192). Thereafter, on February' 6, 1967, the -United,'States Court of Appeals' for the Fourth Circuit entered its decree enforcing the aforesaid Board Order.' On August 15, 1968, the Regional Director of Region 5 issued and served on the..,parties a: notice of backpay hearing without anybackpay specifications. Pursuant to said notice, I held a hearing in Roanoke, Virginia, on October 8 and' 9, 1968, for the purpose of resolving, issues which had arisen as to the remedy required by the Board's Order and,listed,in the notice, of backpay hearing. At that hearing the Union, as ,Charging Party, sought-to raise and litigate other issues' which were., not included by the Regional Director in the- notice of backpay hearing,' alleging that said issues covered matters within the scope'of the remedy required' "by the - Board's Order. I, sustained objections to' the Union's efforts to raise and litigate such additional issues. On November 27, 1968, 'I issued a Supplemental Decision in which I found that the Respon- dent had fully °`com- plied'` with the Board's Order and recommended that the entire proceeding be dismissed. On, April 30, " 1969, the Board issued a Supplemental Decision and Order (1;75 NLRB No.' 127) in which;. it adopted my Supplemental Decision. With respect to the additional matters-which'I had prevented the Union from litigating at said,Vhearing, the' Board rejected the Union's contentions, in the form of exceptions to, my ruling and- decision, observing .that there, had 'been -a; "settlement" - (except for, issues reserved for Board determination) in the proceeding, but held that in other circumstances the Union, as Charging, Party, would,not be precluded_from.,urging matters within the- contemplation of,, a Board remedial order.' On' April 23, 1970, the United States Court of Appeals' for the Fourth Circuit remanded the case to the Board in this regard (425 F.2d 157). The court held in effect that if the issues had been settled, the Board failed to define the terms of the settlement, but if the Board had in fact ruled that the Union's issues exceeded the scope of its `order the Board's decision ' failed to'-,explain the basis for-, such' ailing. The court thereupon remanded the case with directions that the Board supply relevant findings and clarify its reasons for rejecting the Union's claims in this regard. On August 26, 1970, the Board issued an order reopening record and remanding proceeding to Regional' Director for further hearing. Observing that there had been an "inadvertent finding that the issues in the proceeding had been the subject of a settlement so as to preclude litigation of the ' Union's alleged claims to additional relief,'' ' the Board stated that it was accepting the court's^remand,and was-remanding theproceeding "for further hearing before a Trial Examiner for the purpose of affording the parties an opportunity to introduce material; relevant, and competent, evidence, bearing on the issues raised by the Charging Party and, to_, determine whether the, Respondent has,Jully complied with the Board's.Order of March 29,1966."The Board "Further ordered that, upon, the conclusion of such further hearing, the Trial Examiner shall, on the evidence received pursuant to this Order, as well as on the record as a whole, prepare and serve upon 'the- parties, a Second Supplemental Decision, containing findings of fact, conclusions, of law, and recommendations with, respect to the remanded issues." Pursuant to due notice, afurtherhearingwasheld before me, in Roanoke, Virginia; on November 4. and. 5,, and December 15 and 16, 1970. All parties were represented by counsel who- appeared and -participated in the hearing. On February 16, 1971, the Union and the Respondent filed briefs, which I have fully considered, For the reasons hereinafter indicated, I find that no-further relief is 'required in this proceeding. Upon the entire record in this proceeding, I hereby make the following: FINDINGS 1. ISSUES IN REMAND HEARING The Union, as the Charging Party, contends that Respondent, frequently referred to in the record `and by the parties as Overnite, has not fully complied with the Board's Order of March 29, 1966, because it allegedly has filed to make the ex-Rutherford employees entirely whole for their economic losses in certain specific respects and, allegedly has failed "to reinstate all of the Rutherford conditions whichh it, unilaterally and' unlawfully changed on`November 19,, 1964 '- In support ofits contentions, the, Union has raised issues with respecttolhe following-items: 1. Daily and weekly guaranteedhours 1 372 'F.2d 765 '(CA.- 4); rehearing dented (Aprd 4,1967; unreported); cert. denied 389 U.S. 838. OVERNITE TRANSPORTATION CO INC. 189 2. Overtime pay 3. Holiday pay 4. Vacations 5. Pay for road trips made by local drivers 6. Lunch period at Pulaski terminal 7. Seniority in=assigning overtime 8. Welfare and pensions 9. Discharges and grievance procedure Respondent takes vigorous issue' with the Union's position on all items and contends that there has been full and complete compliaricewith the Board's Order in'all respects. At the instant hearing, the General Counsel 'took no position, and adduced no evidence on any of the items or issuesraised by the Union. H. THE MAKE WHOLE REMEDY A. Miles' Computations; Items Covered In support of, its contention, the Union offered the testimony, and worksheets=of its ,accountant, Michael F. Miles.--Based on his examination ofRespondent's timecards and payroll sheets covering all ex-Rutherford employees at both the Pulaski and Roanoke terminals for the period from November 19,, -1964 ,(the date on ,which Respondent took over Rutherford's operations)„through December 31, 1967, and a, comparison with Respondent's ,calculations and previous payments, Miles' computations, with interest to- March 15,. 1968, show that Respondent still owes $26,881.04 in backpay. Of the items raised by the Union in this proceeding, hereinabove set forth, Miles admitted that his calculations covered only the daily and weekly guaranteed, hours, overtime pay, holidaypay, vacations, the question of city drivers performing road trips and the meal period, at the Pulaski terminal. His,computations show that $15,347.32 of the above alleged total-deficiency is allocated to the item of the Pulaski lunch period. However, his computations ; disclose no breakdown of the remaining alleged „deficiency of $11,533.72 so as to, determine how much of-that sum is allocated to-any one of the remaining items covered by his computations. 1. The' Pulaski lunch period Under Rutherford,2 the employees received one-half hour for lunch at the Pulaski terminal pursuant to section 8 of article 32 of time= expired contract which provided that "no employee shall be }compelled to' take more than one- half hour for meals,' except, by mutual' agreement." Immediately "upon takeover on -November 19, 1964, Respondent instituted and-told'the'employees that-among the changed conditions there would be a 10-hour day with' I hour' for lunch. The employees did not punch out and in for lunch; they remained on, the clock 11 hours a day but were paid for 10 hours. Three `employees (Cecil Shupe, John Brown, and Mahlon Mahone) testified that some days they did not have time io take the full hour for lunch because they had too much to do. However, Brown admitted that he could take his lunch whenever he decided during the middle of the day, and could split it up into different 2 In its onginal decision enforced by the circuit court , the Board found that Respondent was the successor to Rutherford Freight Lines, herem periods. Another employee (William Chrisley) testified that he took the 1-hour lunch period but that at times it was inconvenient to take, it. There is no evidence that any employees were ' directed or 'instructed by any representa- tive" of - Respondent to' take less 'than 'the 1-hour lunch period. Indeed, the foregoing is the sole evidence adduced by the Union from employees on-the issue of '1 hour versus one-half hour for lunchat the fPulaski'terminal. Miles, the Union's accountant, testified that he was instructed, by the Union to compare=the wages,,hours, and working conditions at Respondent as shown by its records with those required by the terms of the expired contract which the Union had with Rutherford, and -that any discrepancies were to be picked up and made a part of the, backpay claim. He admitted that, in arriving at .the lunch period claim, he was not operating under section 8 of article 32 of the Rutherford contract. He testified that he operated under the belief that-.the contract provided for a, 1-hour lunch period and that the Respondent gave the employees at Pulaski only one-half hour for lunch. He therefore computed an, additional one-half hour backpay for, each day the Pulaski employees worked. Since an employee was guaranteed an 8-hour day under the contract, Miles computed that extra one-half .hour as overtime at-time and a half.,It was in this manner;that he computed the sum of $15,347.32 (including interest to May 15, 1968) as the backpay claim attributable- to the lunch period change at Pulaski. Miles further admitted that he was thefirst one to 'raise this lunch hour claim. Neither the Union nor the Board's regional personnel had ever raised this issue or made, this claim,during their numerous discussions and correspondence concerning -what was required of Respon- dent to effect full compliance with the Board's Order. It, thus appears that Miles' computations were based on a theory and factual assumption which were precisely the reverse of-the actual situation at 'Pulaski. Moreover, documentary evidence and credited testimony adduced by Respondent show that in, negotiating sessions with Respondent as- early as May 17, 1966, the Union's contract proposals contained, a meal period clause which would allow for a 1 -hour lunch period at both.4Roanoke and Pulaski. - This same clause also appeared in the Union's contract proposal submitted to Respondent in March 1967. No- other contract clauses for, lunch periods were ever submitted by the Union throughout the several years of bargaining with Respondent. - Upon consideration of all the foregoing, I find that the preponderance of the credible evidence does not,sustain the Union's backpay claim attributable to the, lunch period change at the Pulaski terminal. I accordingly, recommend that, said claim be,disallowed. After deducting the amount of this -claim, the remaining alleged deficiency claimed by the Union is reduced to $11,533.72. , 2. Overtime pay One -of the conditions of employment` at Rutherford immediately prior toy the takeover by Respondent was that the employees were entitled to pay at one and one-half called Rutherford. 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD times their regular rate ,for allwork performed over 8 hours, in a day ' and 40 hours in ; a week. - Upon takeover, Respondent paid straight time rates for all hours Worked., When Respondent made its ' original backpay computa- tions, it only, calculated overtime for each employee on the hours he worked in excess-of,404n,a week. The calculation was made in^ this manner with the concurrence of the Board s• compliance officer because of the language in the Board's Order in this4espect.3,And Respondent's payments had-been made, on the basis of this computation, with interest. At a later stage ' in the compliance proceedings, the Boaid's,Regional,Office changed its position on this point and concluded that overtime should be paid on a daily as well as a weekly,-basis.-Such- overtime occurred in those weeks where an-employee worked 40 hours or less because of an intervening holiday or absence for personal reasons but worked more than 8 hours a day during, that week. Respondent did not take issue with this new determination. However, it advised the Board and the Union that it was unwilling to assume the burden of making the necessary investigation and calculation of the, additional dollar amounts,to be paid the employees but would promptly pay whatever additionalamount,was still-due in this respect if, the Union would make the computation based on Respondent's records. After the passage of several months without any computation having been submitted, 'Respon- dent decided to calculate the amount itself. Such calcula- tions also included overtime for holidays falling in weeks where the employee worked 40 hours or less. When this computation was completed, Respondent gave copies to the Board, together with checks representing payment in full to all affected employees,' including interest. The Board gave the Union a summary of these payments. The total supplemental amount paid by the=Respondent for overtime on a daily basis, plus interest was $6,688.54. Miles admitted that he could not state -how much of the total dollar amount of the remaining alleged deficiency of $11;533.72 which the Union was claiming based on his computations= was attributable to daily overtime and that,, he had noway of making such a breakdown. He -admitted that .he had received a copy of the. above-mentioned summary of the supplemental paymentsmade byRespon- dent. He testified however that he did not know what it was other than that it was a listing of additional amounts paid to employees by Respondent but that he did not know what the payments were'for and how they were computed. The Respondent "never received any complaints from the Union or the Board concerning the accuracy of its computations on daily overtime.-Copies of the worksheets and recapitula- tions for each employee were introduced into evidence in the instant hearing. At no time has the Union attacked their accuracy in the instant remand hearing or in its brief submitted to me. Under all the circumstances, I accept Respondent's calculations on daily overtime as being accurate. I find that this', sum must be, deducted from the alleged deficiency 3 The Board's Order required Respondent to make the employees whole :'in accordance with the recommendations set forth in the section entitled The Remedy." This section required Respondent to pay each of the employees at the rate of time and a half for each hour worked over 40 claimed by the Union and that the record does not support any union claim based on daily overtime. I accordingly recommend that any such claim be disallowed.` After deducting the claim -for the Pulaski lunch period and the amount paid by Respondent for; the daily -overtime, the remaining amount of the alleged-deficiency claimed by the Union is now reduced to $4,845.18. 3. Daily and weekly- guarantee One of the conditions of, employment which existed at Rutherford before the takeover by, Respondent was a_ guarantee insuring each employee a minimum of 8 hours of work per day and 40 hours per week, with no split shifts or split workweek. Accountant Miles admitted that, if the claims for the Pulaski lunch period and for daily overtime were to be excluded, his inclusion of credits for guaranteed hours which he thought the ex-Rutherford employees had not received would account for most of the Union's remaining claim of alleged backpay deficiency on the basis of the tabulations contained in' his` worksheets. As previously noted, the remaining - amount of this-alleged deficiency claimed by the Union totals $4,845.18. Miles also admitted that his--tabulation - of credits for guaranteed hours was based , solely on' what appearedi on' Respondent's timecards - and payroll sheets; 'He ` further admitted .that, in every instance-where the timecard did not indicate why an employee did not work the-guaranteed hours, he credited him with the daily and weekly guarantee and made his computations based on his assumption that the failure to work the-guaranteed hours was =caused by Respondent and not by the - employee. He' also admitted that he personally knew of no instances where Respondent caused a man to -work for less than, the guaranteed hours except in the' case of vacations or where it was noted on the timecard; and that 'it'was not his position that Respondent should be charged with 'the daily and weekly guarantee if the man was off for personal reasons But in the absence of any notation to that effect on the timecard;-he admittedly credited the manwith the daily and weekly guarantee. It is conceded that, when Respondent "took over the Roanoke and Pulaski terminals in November 1964, it immediately instituted a 10-hour 'workday for 5 consecutive days per week, virtually the same work schedule that was in effect throughout its system. In , other. words, the. ex- Rutherford employees, went from a 40, t6'a regular 50-hour week and thereby were virtually assured of working the daily , and weekly hours guaranteed under Rutherford. -'Of course, some employees did not always work those :hours but the record shows that the timecards ,were not the,proper source, of information for an employee's absence., In accordance,, with -Respondent's , established policy, such information appears on the, terminal manager's weekly reports which were made on forms identified in the record as OTC 17.Whenever , an, employee did not work, a particular day or a full 10-hour ,day, if the payroll ,clerk found that the reason for.his absence did not appear on the, timecard, , the clerk ascertained the reason for the -employ- hours per week since November 19, 1964 ." No mention is made` of payment for each hour worked over 8 hours per day. 157 NLRB 1185, 1191, 1192. OVERNITE TRANSPORTATION CO., INC. ee's absence from the terminal manager or superintendent and noted it on the OTC 17 Form. Copies of the OTC 17 forms together with the payroll sheets were sent each week to, Respondent's, main office in Richmond, Virginia. In those instances where the payroll sheets failed to jibe with the OTC 17 forms, the terminal manager would be contacted by the Richmond office for, an explanation. Thus, if an employee had been told,by Respondent not,to come to work, or to leave work- early for any reason, including that no work-was available, that reason would appear on the OTC 17 form in accordance with Respon- dent's established practice and policy. On the third day of the instant hearing on December 15, 1970, counsel for Respondent-produced all the OTC 17 forms for both the Roanoke and Pulaski terminals, covering the period from January 1, 1965, through December 31, 1967, and made them available for inspection by counsel for the Charging Party. E. L. Fortune, who was` assistant to"Respondent Vice President Price, credibly testified that none of these forms contain any notation that any man was off from work on account of lack - of work at the, Company's direction. I informed counsel for the Charging Party that he could check these forms which were made availabe to, him to determine whether he desired to dispute the accuracy of Fortune's testimony. However, ' neither at -the resumption of the instant hearing the following day -nor in his brief has counsel claimed any such inaccuracy. Respondent also introduced into evidence the OTC 17 forms for each week that Accountant Miles' work papers and summaries showed a claim that an employee had an unexplainedishort week for" which he was crediting him with the guaranteed hours. These show that the unexplained absences were due to the employee's personal needs, such as asking off, being sick, injured, on vacation, or, other causes not attributable to Respondent.,The Charging Party has nowhere disputed the -statements of Respondent's counsel, contained in his question to Terminal Manager Dickerson, that in only three instances did the OTC 17 form fail to contain any notation as to why the respective employee was absent from work that day, "one on Waldo Hipes, one on Towe and one on Shelor." These three employees worked at the Roanoke terminal where Dicker- son was, the- manager. Terminal Manager Dickerson credibly testified, without coutradiction,4 that he knew, for a fact that on those occasions, these three employees were absent for personal reasons and were not sent home by the Company for lack of work. The only other evidence which the Charging Party adduced in support of its backpay claim based on the daily and- weekly guaranteed hours was the testimony of employees William Chrisley, Cecil Shupe, Carl Viars, and Billy Ogle. They testified as follows: - On direct examination, Chrisley testified that "I have been cut off early at times. I did work short weeks. Some of them, the Company would tell me there wouldn't be anything to do;, some of them, I asked off. I couldn't pinpoint the days or the time. But I had, most of the time, I got as much as between 48 and 50 hours and sometimes 4 Of the three employees, Towe was the only one who testified in this proceeding but was not interrogated by the Charging Party with respect to 191 more." On cross-examination, he testified that there were only "several days that I didn't get a full day" and admitted that by a full day he meant the full' 10 hours. He further admitted that he could not recall ever having been cut short more than an hour on his scheduled 10 hours, and usually it would be no more than 20 to 40' minutes. Finally, he admitted that he preferred 'a straight 50 hours a week "like I was promised, no more no less," and that when his hours varied it was generally on the long side which made it "too long a day for any man to have to handle freight." On direct -examination, Shupe testified that he was sent home a few times by the terminal manager when there was not enough work to complete his day. However, as his day consisted of 10 hours, this does not indicate that he was sent home after less than 8 hours. On cross-examination, he at first denied ever asking time off since he worked for Respondent, and then testified "I don't deny it, but I say I don't remember it. On direct examination, Viars testified that the terminal manager would sometimes "knock you off an hour or an hour and a half early." However, as his regular workday was 10 hours, he still worked more than 8 hours on those occasions. On cross-examination, he admitted that he had gotten off several times at his own request and that while "there might have been a day or two that I worked less than eight" hours, he did not know of a single day when that occurred. On direct examination, Ogle testified that he was sent home early "occasionally." On cross-examination, he admitted that he was never sent home more than 30 minutes to 1 hour before his normal quitting time and that he could not recall ever getting less than 40 hours a week unless he was sick or it was a holiday. ,On the other hand, Respondent .Vice President A, M. Price, his assistant, E. L. Fortune, and Roanoke Terminal Manager Dickerson all,credibly testified that Respondent never sent an employee home at the, Pulaski and Roanoke terminals for lack of work or for any other reason short of at least 8 hours of -work each day. Upon consideration of all the foregoing, I find that a, preponderance of the credible evidence does not support the Union's backpay deficiency claim based on the daily and weekly guarantee and accordingly recommend that said claim be disallowed. The General Counsel had reached the same conclusion after an investigation by the Board's Regional Office, and had so informed the Charging Party in a letter from the Board's compliance officer, dated July 11, 1968. In this respect, this letter states: The- weekly guarantee is included, however, our investigation fails to reveal that any regular employees have beem employed less than 8 hours per day or less than 40 hours per week because of Respondent's actions rather than employee choice. Therefore, although Respondent is required to restore the weekly guarantee, th"re is no evidence that any back pay is due employees as a result of this unilateral change. this matter. 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ,4. Vacation pay Insofar as vacation pay is concerned, Miles admitted, that "my calculations were the same as the Company's," that there was no discrepancy and that those amounts have been paid. Moreover,*spondent's accountant, Br'oml'ey, credi-' bl testified that the payments made by Respondent on'the b`§ `ofhis computations- included,vacation pay for all ex- Rut'herford employees, including those where a 3- or 4- week ' vacation was called for under the Rutherford, conditions. I find no basis for a ,backpay deficiency claim based on vacation pay and accordingly recommend that any such claim be disallowed, 5. Holiday pay Miles testified that, on examining- Respondent' s time- cards and payroll sheets, he found instances where an employee failed to get his holiday pay because the holiday occurred while he was on vacation or out sick, He was unable however to state how much of his alleged deficiency claim was attributed to this factor. He further admitted that he did not know whether, pay'-for such holidays was included in Respondent's exhibits. On the other hand, Respondent's- accountant, Bromley, credibly testified that in his computations he included holiday pay for all holidays for ex-Rutherford employees regardless of whether-the holiday occurred ' during an employee's vacation period or other period of absence, and that the employees had already been paid. I find that the record does not support a backpay deficiency, claim :based on holiday pay and accordingly recommend that such a claim be disallowed. 6. Road trips At Rutherford immediately prior to the takeover by Respondent, a trip which took the driver more than 50 air miles from his home- terminal was considered-to be a road trip by Rutherford and the Union, and a local driver making such a trip was paid on a mileage basis. For example, according to the undisputed credited testimony, trips between Roanoke and Pulaski and between Roanoke and Covington- were not regarded as road trips under Rutherford, as these runs were within 50 air miles of the home terminal, and the drivers on these runs were paid on an hourly basis as city drivers. Under Respondent's operations, ' any trip from one terminal, to another, regardless of the distance, was considered to be a road trip, and the driver's compensation was determined by comput- ing it both on a mileage and on an hourly basis and then paying him the larger ' amount. The Union's backpay deficiency claim on this item -is- based' on the differences between Rutherford's and Respondent's practices in this respect. As in the case of previously discussed items, the Union was unable to specify any dollar amount or to offer 'any calculations to serve as a'basis for determining the dollar amount claimed by the Union as an alleged backpay deficiency on this item. Miles' worksheets, introduced into evidence as Charging Party's Exhibits 17A and 17B, contain notations of road-trips for certain employees during specified weeks. In many,cases, the notation merely states "road trip" during a.certain week, without any indication of the points of origin or destination. In those cases where the points of origin and ,desfination are designated, about half of them would not constitute road trips under Rutherford's practice because they were within 50 air miles of the home terminal. Examples of these are ` d`esigna'ted trips from Pulaski to -Roanoke, from Roanoke to Pulaski 'and from Roanoke to Covington. Moreover, in all cases, the notation concludes with the comment, "Effect not known." The only other evidence adduced by the Charging Party on this item was the testimony of employees Shupe, Wilson Williams, andTowe. They testified as follows: Shupe testified that he made ' 20' or 25 road `trips for Respondent. "However, Miles" worksheets show' a much smaller number, and the driver's trip reports show that many of these trips were' between Pulaski and Roanoke, a run which was not considered a road trip under Rutherford. Moreover, h6' admitted that at the time when he was frequently engaged in road trips he was taking the place of a regular driver and was then himself conside'red' a road driver, a category' excluded by the Board from the scope of the remedial'order (175 NLRB No. 127, TXD). Wilson Williams claimed to have made over seven road trips for Respondent. Miles' worksheets fail to indicate the points,of origin or destination for any of his road trips, making it impossible to determine any basis for a backpay claim. On the other hand, the driver's trip 'reports in evidence show, that his' trips were local,' and not' road, according to the Rutherford conditions. Towe testified that' he made & 'three road trips for Respondent, without indicating `where they `were. Miles' worksheets merely note the dates when he made three road trips but "again fail to indicate the points of 'origin, or destination for any, of them. Upon consideration of all the foregoing, I find that the record does not support the Union's backpay' deficiency claim based on the item of road trips and' accordingly recommend that such-a claim be disallowed. ' ' ' B. Items Not Covered by Miles' Computations According to Miles, the following'items were in no way involved in his worksheet ' computations: (1) `seniority in assigning overtime, (2) welfare and ' pensions, and (3) discharges and grievance procedure. - ' 1. Seniority in assigning overtime The Union contends that Respondent did not give the ex- Rutherford employees preference by seniority to -work overtime or on weekends, and that this was contrary to the practice followed by Rutherford. Again the Union has failed to come forward with any dollar figure, as the backpay deficiency based-on this alleged claim nor is any method available for determining such, a figure on the record before me. In- support of its contention, the Union offered the testimony, to a great extent of a general nature, of employees-Carl Viars, Wilson Williams, John', Brown, Mahlon Mahone, William Chrisley, Billy Ogle, and David Ballinger. OVERNITE TRANSPORTATION CO., INC. As Respondent had established a 10-hour regular workday for 5 days of the week, any work over 50 hours a week obviously included overtime, usually Saturday. Viars admitted that he worked 60 hours a week. He testified that he would not deny that he got more than 50 hours every week except one week when he got 45.9 hours. Wilson Williams admittedly worked 60 hours a week regularly except for a period in 1967 and 1968. He admitted that he frequently asked the terminal manager to get off on Saturday. Brown testified that he would not deny that he regularly got over 50 hours a week. He admitted that Respondent's terminal manager assigned him to road work, which he considered a promotion because it paid more money, and that the terminal manager stated that he was selected because he was the most senior man and that it was company policy to give preference to senior men in making road assignments. Mahone admitted that all he wanted was 50 hours and' that most of the time he got more than he wanted, frequently working between 55 and 59 hours. Chrisley admitted that he had never asked for Saturday work, that he only wanted a 50-hour week, and that he got more than 50 hours a week during his whole employment with Respondent. Ogle admitted that he never asked for Saturday work, and that he was satisfied With the 50 hours which he got every week but one when he got 46 hours. Ballinger admitted that after the takeover by Respondent he got all, the overtime he wanted and eventually went on a regular 60-hour week until about July 1966. He testified that at that time the terminal manager told him that it was too much for him to work 60 hours a week on a regular basis because it was not giving him enough time with his family and therefore reduced him to 50 hours with a $5 weekly bonus. From then until he left Respondent's employ, his duties admittedly were mostly city dispatching. He further admitted that after the time when he was cut back to 50 hours, he never asked the terminal manager for Saturdaywork.5 ' According to the undisputed credited testimony, the record shows that Rutherford never gave the unit employees overtime if it could be avoided and did not allow its regular employees to perform Saturday work except in emergency cases. The reason for this was to avoid paying time and' a half as required by its contract with the Union. For that reason, Saturday work at Rutherford was generally performed with casual labor, a classification not included in the appropriate unit. E. L. Fortune, the assistant to Respondent's vice president, Price, credibly testified that upon the takeover by 'Respondent he instructed the terminal managers at Pulaski and Roanoke to assign Saturday work to the regular employees according to seniority if possible; otherwise, they were to use, casual labor. Roanoke Terminal' Manager Dickerson cedibly testified that it was his practice to determine on Friday evening how many men he would need for Saturday work, then to go around and ask each man if he wanted to work and that generally-enough work was available for all who volunteered. When some men refused to work on Saturday after having been asked several times, he credibly testified that he would finally pass them over in making his rounds 5 "All matters arising from the claim that the remedy contained in the Order issued by the Board in this case applies to David R. Ballinger" were 193 because he felt it was established that they did not want Saturday work. He also credibly testified that' he first exhausted his regular list before resorting to casual help. The preponderance of the record evidence demonstrates that Respondent had more overtime work available than could be handled by those regular employees who were willing to perform it, and that the problem was that regular employees did not wish to work Saturday because they had already worked 50 or more hours and wanted to be off. Moreover, the undisputed credited testimony shows that (1) the Union was told, in bargaining sessions that if any ex- Rutherford employees felt they. desired more overtime work, all they had to do was to make their wishes known and it would be given to them, and (2) no one responded to these invitations. Upon consideration of all the foregoing, I find that the Union has failed to establish by a preponderance of the credible evidence that, ex-Rutherford employees were not given, preference by seniority in the assignment of overtime work and accordingly recommend- that any backpay deficiency claim based on this item be disallowed. 2. Welfare and pensions Among the unilateral actions taken by Respondent upon takeover from Rutherford was the institution of a different health and welfare insurance and pension program. The Union contends that Respondent should be required to make contributions into the Union's health and welfare and pension funds, at least to the extent of Rutherford's contributions had there been no unilateral change in programs. The Respondent'contends, among other things, that the Board's Order specifically spelled out what Respondent would be required'to do as a remedy in these areas, that the Union unsuccessfully appealed from this requirement both at the Board and court level, and that Respondent has complied with this requirement in the Board's Order. The Board in its original decision specifically adopted the Trial Examiner's Recommended Order (157- NLRB 1185, 1186). The Trial Examiner's Recommended Order required Respondent to "make employees whole for Respondent's unlawful unilateral action in accordance with, the .com- mendations set forth in the section entitled The Remedy'" (at p. 1,192). In The Remedy section, the Trial Examiner recommended in this respect that Respondent "make the employees whole for' any ,economic loss they suffered as_ a result of Respondent's unlawful action .- . by paying to each employee a sum equal to any contributions he has made to insurance and pension programs since November 19, 1964" (at p. 1191). And in footnote 7 of that section, the Trial 'Examiner stated that "employees contributed to the cost of insurance and pension programs which heretofore the Employer had paid for entirely" (at p.1190). The undisputed facts are that after the takeover the employees were required to contribute to Respondent's insurance plan but were never required to make any contributions to Respondent's pension plan in which they became participants immediately upon takeover. It is also settled by written agreement signed by all parties and the Board-prior to the instant hearing. 194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD undisputed, as Accountant Miles conceded, that Respon- dent has reimbursed the employees for whatever contrib- utions they had paid towards Respondent' s - insurance program. In its exceptions filed with the Board, the Union specifically excepted to the Trial Examiner's finding in footnote 7 and to his "failure to recommend that `Respondent pay to the employees or the Trust Fund,' the health and welfare and' insurance contributions which it would have- made in accordance with the collective- bargaining agreement but -for its unilateral action." And in its brief filed with the Board in support of its exceptions, the Union stated on page 3: The The Trial Examiner inadvertently found' that the employees contributed to the cost of the insurance and pension programs set up by Respondent and to which Rutherford previously had paid for entirely. Rutherford made contributions to 'the Health, and Welfare and Pension Funds in accordance with, the labor, contract (General Counsel's Exhibit No. 7). When Respondent took over Rutherford's operations, it instituted its own insurance and pension programs to which the employ- ees contributed. In these circumstances, Respondent should be ordered to restore the status quo by reimbursing the, employees for any, contributions they made to Respondent's program.. In addition, Respon- dent should be ordered to contribute to the Health and 'Welfare and Pension Funds in accordance, with the labor contract or, if for any reason this is- not feasible or agreeable with the Union, to pay to the employees the amount of contributions which it would have made to said Fund had it been abiding by the labor contract. 'l;he Board however, adopted the Trial Examiner's remedy without commenting on the Union's specific-exception and request for, additional relief. In its original brief before the circuit court, the Union again sought a clarification, on this matter And again the court enforced the Board's Order Without commenting on the Union's request. (372 F.2d 765 C.A. 4.) By adopting the Trial Examiner's remedy, the Board thereby rejected the Union's specific exception and claim 'for substantially the same kind of relief it is now seeking.6 Under these circumstances, I feel.thatI have no authority to change or enlarge upon the specific remedy set forth in the Board's Order on this matter.` My function in this proceeding is, as the Board's remand order states, first "to determine whether those matters [named by they charging party] fall within the scope of the Boar`d' s'Order_of March 29, 1966...." It is not my function to determine whether a' different order would more fully remedy Respondent's unfair labor practices. For the reasons previously indicated, I find that the relief claimed by the Union in'this matter does not fall within the scope, of the Board's Order of March 29, 1966.7 As ' the Respondent has already fully 6 Cf. Hinson d/b/a Henhouse Market No,- 3, 175 NLRB No! 100. In this casedthe, Trial Examiner found unlawful unilateral action in the.change of a union's pension, health and welfare plans provided for,m an expired contract, but his Recommended Order contained ' no specific provision to remedy this action. The Union excepted to the Trial Examiner's failure to provide a remedy, for Respondent's unilateral action in this respect. The Board in its decision specifically took cognizance of the union's exception in this- respect and modified the Trial Examiner's Recommended-Order-to complied with the specific remedy set forth- in the Board's Order on-this matter, the Union's claim for additional relief in this respect must be disallowed. 3. Discharges and grievance procedure The Union claims that "Respondent refused to'utilize the grievance machinery of the Rutherford contract in the case of the discharge of employees Cecil Shupe, 'Kenneth Looney, and James Barber,'. asserting that such discharges may have been in violation of the terms of said contract. a. 'Cecil Shupe Shupe was employed by Rutherford at the Pulaski terminal as a peddle driver and continued in that position for 'Respondent until' January 8, 1965, when he lost his License for 1 year for speeding in his own car. He'was then put to work on the dock ' because Terminal Manager Bromfield had dock work available at that time. In June 1965, Shupe's license was returned to him by mistake and he was permitted to resume driving again. Shupe advised Bromfield of the mistake and'returned the license to the State in July ,1965. Shupe was then called into the office where Bromfield advised him that his wages would have to be cut because he had ' lost his license." When Shupe' protested that he could' not afford it, Bromfield stated that Respondent's vice president,Price, would soon arrive at the terminal. Price came'to the terminal the next day or two at which time Shupe was discharged at the end of his shift by Bromfield. Shupe's request for a leave of absence was denied although'' he pointed out that the'-Rutherford contract called for a leave of absence in this situations b. - Kenneth Looney Looney was employed by Rutherford, and.Respondent,as a city driver. He testified that,he had developed a nervous condition and could not drive, that he obtained a ,statement from his doctor that driving did no^t`agree'with him because it affected his nerves but that he was able to work on the 11 dock, that Terminal Manager Dickerson promised to call Looney While he was on his vacationin November 1965 to let him know what shift he could use him,. and that during the second week of his vacation Dickerson called and advised that Mr.' Fortune stated that Lopneywas' hired as a driver and if he was,'unable to drive they could net use him and wouldhave to lethinm go. Terminal, Manager Dickerson testified that he had an understanding with Looney that he' could go from city driving to dock work for a period of about 3 weeks and not on a permanent basis, that the doctor had suggested this be done for a period of 3 or 4 weeks until he could get' a correct diagnosis as to whether Looney would be able to continue provide forthe kind of relief which the Union is seeking'in the instant case. r The reference to -"health and welfare, -and pension provisions"in!,xhe last court decision was merely, a listing of what "in particular, the union claims" (425 F.2d 157, 159). 8 Sec. 4 of art. 4, of the Rutherford contract states that "when driver's permit has been revoked for reasons other than those for'which he can be discharged by the Company, leave shall be granted for such time as his permit has' been revoked." OVERNITE TRANSPORTATION CO., INC. 195 driving, and that when Looney failed to pass his ICC physical he was terminated. . James Barber remedy prescribed in the Board's Order of March 29, 1966, and recommend that said claim be disallowed.9 III. RESTORATION REMEDY Barber was employed by Respondent as a city driver. He had frequently asked Dickerson for a road job, and, the latter replied that "we'll see about it." In the summer of 1965 Dickerson asked Barber how he would like to go on the road. Barber expressed a willingness to go on the road. He then worked as.road driver for 2 or 3 years untilhe was discharged. d. Conclusions No formal grievances were filed by the Union in the case of these three discharges. However, Mr. Fortune credibly testified that all three cases were discussed in the bargaining sessions between Respondent and the Union. The Union contends that Respondent should be required to process these three discharge cases through the grievance machiner: y provided in the Rutherford contract and that, if it is determined through, the, grievance machinery that any of these discharges- were improper under the terms of the Rutherford contract, the usual backpay award in the case of discharges should be made. In my judgment,` the relief sought by the Union in these discharge cases does not fall within the scope of the Board's Order` of March 29, 1966, and I accordingly recommend that it be disallowed. 4. Concluding" finding I find that the, record does not support the Union' s claim that Respondent has failed to comply with the make-whole 9 The testimony of Trubie Gregory`that he never received any backpay from Respondent ,is irrelevant to this proceeding because, as I find on the undisputed testimony, Gregory was a casual employee, a classification Asserting , that the only Rutherford conditions which Respondent restored were.' Rutherford's wage rate" and "time and one-half after 40 hours a week," the Union contends that Respondent "should be ordered (again) to reinstate all of the Rutherford conditions which it unilaterally and unlawfully changed on November 19, 1964" and that "until such restoration is effected, there is no compliance with the original order of the Board as enforced by the Court." I have previously found that Respondent restored all Rutherford's conditions which were necessary, to effect full compliance with the make whole provisions of the Board's Order of March 29,1966. Assuming, without deciding, that there are additional conditions which have not been restored, this proceeding is not the appropriate forum for obtaining a remedy in - such, area. The Board's General Counsel seems to have reached a similar conclusion when his Compliance Officer notified the Union in'his July I 1968 letter that, among other things: With reference to all other issues regarding contract provisions of a non-monetary nature , e.g., grievance procedure, discharges,- seniority application, work by supervisors, the Shupe case and laid off employees, the General Counsel does not consider these unilateral changes to require a remedy. RECOMMENDATIONS I recommend that the Board adopt the foregoing Findings and Conclusions and dismiss this proceeding. which the Board found was not part of the bargaining unit. 175 NLRB No. 127 (TXD. fn. 4).