General Teamsters, Local 439

446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD General Teamsters Local 439, International Brother- hood of Teamsters, Chauffeurs, Warehousemen & Helpers of America (Los Angeles-Seattle Motor Express, Inc.) and Lyle C. Corey. Case 20-CB-1758 December 6, 1971 SUPPLEMENTAL DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND KENNEDY On September 3, 1968, the National Labor Rela- tions Board issued a Decision and Order in the above- entitled proceeding,) which was enforced by the United States Court of Appeals for the Ninth Circuit on July 23, 1970.2 In its Decision, the Board found, inter alia, that Respondent unlawfully attempted to cause and did cause Los Angeles-Seattle Motor Express, Inc., herein referred to as LASME, to discharge Lyle C. Corey on October 30,1967, because of his lack of membership in the Respondent Union, in violation of Section 8(b)(2) and (1)(A) of the National Labor Relations Act, as amended. Accord- ingly, the Board ordered, inter alia, that Respondent make Lyle C. Corey whole for losses suffered between October 30, 1967, and 5 days after the date on'which Respondent notified Los Angeles-Seattle Motor Express, Inc., that it had no objections to the employment of Lyle C. Corey in his former or substantially equivalent position without prejudice to seniority or other rights and privileges he would have acquired absent the discrimination against him. LASME was so notified by the Respondent on November 15,1968. On February 9,1971, the Board's Regional Director for Region 20 issued and served upon the parties a Backpay Specification and Notice of Hearing. Pur- suant to notice, a hearing was held on June 2 and July 8, 1971, by Trial Examiner Martin S. Bennett for the purpose of determining the amounts of backpay due. On August 26, 1971, the Trial Examiner issued his Supplemental Decision, which is attached hereto, finding that Respondent is obligated to pay Lyle C. Corey $10,964, for losses suffered, with interest at 6 percent per annum. In addition, the Trial Examiner further found that the sum of $420.80 is due and payable by Respondent to the Western Conference of Teamsters Pension and Trust Fund in Lyle C. Corey's behalf. Thereafter, Respondent filed exceptions to the Supplemental Decision and a supporting brief. The General Counsel submitted its brief to the Trial Examiner in answer to Respondent's exceptions and brief. 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 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 Supplemental Decision, the Respondent's exceptions and brief, the General Counsel's brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner. 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 Trial Examiner and hereby orders that Respondent, General Teamsters Local 439, Interna- tional Brotherhood of Teamsters, Chauffeurs, Ware- housemen & Helpers of America, its officers, agents, and representatives, shall make whole Lyle C. Corey by payment to him the sum of $10,964 with interest at 6 percent per annum and by payment of $420.80 to the Western Conference of Teamsters Pension and Trust Fund, in his behalf. 1 172 NLRB No. 231. 2 N.L.R.B. v. General Teamsters[Local 439, 429 F.2d 1313 (C A. 9). SUPPLEMENTAL TRIAL EXAMINER'S DECISION MARTIN S. BENNETT, Trial Examiner : This matter, heard at Stockton, California, on June 2 and July 8, 1971, stems from a backpay specification previously issued on February 9 by the Regional Director for Region 20, as amended, to determine the amount of backpay owed Lyle C. Corey due to the causation of his discharge by Respondent , General Teamsters Local No. 439, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America. The Order of the Board is reported at 172 NLRB No. 231 and the Judgment of the United States Court of Appeals enforcing same is reported at 429 F.2d 1313 (C.A. 9). The General Counsel seeks backpay for Corey covering the period from November 1, 1967, through November 15, 1968, when the discharging employer , Los Angeles-Seattle Motor Express, Inc., herein LASME, was notified by Respondent that it had no objections to his further employment. Respondent, in turn, alleges that Corey did not make reasonable efforts to obtain new employment, that similar work was available to him , and that he declined available employment of a substantially equivalent nature. Briefs have, been submitted by the General Counsel and Respondent. Upon the entire record in the case, and from my observation of the witnesses, I make the following: 194 NLRB No. 71 GENERAL TEAMSTERS, LOCAL 439 447 FINDINGS OF FACT AND CONCLUSIONS OF LAW A. The Issue The burden of the General Counsel herein is to establish what Corey would have earned but for the unfair labor practice committed by Respondent. In turn, the burden of proof to mitigate its liability is on Respondent and this is therefore an affirmative defense. N.L.R.B. v. Mooney Aircraft, Inc., 366 F.2d 809 (C.A. 5). As will appear, the General Counsel', has, in effect, aided Respondent in this last area by voluntarily and openly conceding certain interim earnings by Corey. B. Gross Backpay Due Corey was ousted by Respondent as an employee on run no, 53 of LASME. General Counsel contends, Respondent does not dispute, and I find, that the gross liability of Respondent is the loss of earnings by Corey as reflected in the earnings of the drivers who performed run no. 5,3 during the backpay period. Thus, as an initial computation, I find that the following tabulation reflects the gross earnings of the drivers who variously replaced Corey during the backpay period: GROSS EARNINGS OF DRIVERS PERFORMING RUN NO. 53 DURING BACYPAY PERIOD Calendar Quarter Driver on Run No. 53 1967---4th Ellis R. Allee ( 11/1 to 12/31) 1968--- 1st Ellis R. Allee 1968---2nd Ellis R. Allee Clarence Keathley 1968---3rd Clarence Keathley 1968---4th Clarence Keathley ( 10/1 to 11/15) Gross Earnings $ 1,922.00 3,108.00 1,492.00 1,706.00 $ 3,198.00 $ 2,849.00 1,525.00 $12,602.00 C. Gross Backpay Less Net Interim Earnings gross backpay due Corey less interim earnings, as they may be, in the respective quarters. I shall treat below Respondent's contention that interim earnings could have Initially, I set forth the computation of the General been greater.' The computation by the General Counsel Counsel wherein he breaks down , on a quarterly basis , the reflects the following: 1 This is entirely aside from the comment of the Court of Appeals that Respondent's opposition to the order of the Board "borders on the frivolous." 448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD QUARTERLY BACKPAY COMPUTATIONS LESS NET INTERIM EARNINGS Year Quarter Quarterly Back ay Computations 1967 4 Cross backpay from Backpay (11/1 to Specification . . . . . . . . . . $ 1,922.00 12/31 ) Interim Earnings: None Net backpay for quarter . . . . . $ 1,922.00 1968 1 Gross backpay . . . . . . . . . . Interim Earnings: $ 3,108.00 None Net backpay for quarter . . . . . $3,108.00 1968 2 Gross backpay . . . . . . . . . . Interim Earnings: $ 3,198.00 LASME. . . . . . . . . . $ 76.00 United Buckingham Freight. . . . . . . . . 611.00 Less ( 1) Travel expenses from Redding, Cal. to Yreka , Cal. and return for LASNE job. (184 miles at 10 cents per mile.) Less ( 2) Travel expenses from Redding, Cal. to Spokane , Wash- ington for United Buckingham Freight job. (691 miles at 10 cents per mile.) (18.00) (69.00) Net interim earnings. . . . . . . 600.00 Net backpay for quarter . . . . . $2,598.00 1968 3 Gross backpay . . . . . . . . . . 2,849.00 Interim Earnings: United Buckingham Freight. . . . . . . . . $318.00 LASNE. . . . . . . . . . $320.00 GENERAL TEAMSTERS, LOCAL 439 449 Year Ouarter Quarterly Backpay Computations Less travel expenses from Spokane , Washing- ton to Redding, Cal. (691 miles at 10 cents per mile.) Less travel expenses for 3 trips from Redding, Cal. to Yreka, Cal. and return for LASE job. (3 trips of 184 miles at 10 cents per mile.) ($69.00) ( X5.00) Living expenses in Spokane , Washington ( 68.00) Net interim earnings . . . . . . . . $ 446.00 Net backpay for quarter . . . . . . $ 2,403.00 1968 4 Gross backpay ( 10/1 to Interim Earnings: 11/15) LASNE. . . . . . . . . . $665.00 Cascade Drayage . . . . . 233.00 Buckhorn Fish Hatchery . 81.00 Less travel expenses for 5 trips from Redding, Cal. to Yreka, Cal. and return. $ 1,525.00 (5 trips of 184 miles at 10 cents per mile .) ( 92.00) Net interim earnings . . . . . . . . 887.00 Net backpay for quarter . . . . . . $ 638.00 Net backpay due. . . . . . . . . 10 , 669.00 Medical expenses 2/ . . . . . . 33.00 Vacation pay due . . . . . . . . 262.00 TOTAL NET BACKPAY DUE (exclusive of interest ) 3/ . . . $10,964.00 TOTAL NET PENSION CONTRIBUTIONS DUE [as shown belowl . . . . . . . . 420.80 450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD D. Analysis and Conclusions It is established that expenses incurred in obtaining employment are deductible from gross earnings. As reflected by the foregoing, and by the record, Corey made nine round trips of 184 miles each from his home in Redding, California, to handle truck runs for LASME from its Yreka truck terminal. His documented testimony reflects that these took place between April and October of 1968. Not shirking his obligation to seek work, he drove from Redding, California, to Spokane, Washington, and worked as a line driver for United Buckingham Freight, the one- way distance being 691 miles. As noted, the General Counsel concedes a deduction of but $68 for living expenses in Spokane, although the sum was manifestly higher, because of the absence of supporting living-expense records. The record discloses an item of dental expense incurred by Corey's wife which would otherwise have been covered by his insurance with LASME. Under the provisions of the health and welfare plan, and the expenses are documented herein, he is entitled to reimbursement in the amount of $33.00. [Actually $32.85, but all figures herein have been rounded off to the nearest dollar except in the item below.] Again, as shown above, the General Counsel contends, and I agree, that Respondent owes such contributions to the Western Conference of Teamsters Pension Trust Fund as would have been made by LASME for the work to be performed by Corey on Run No. 53 during the backpay period. The contract, in effect, provides contributions of $8 per week after April 1, 1967, this sum increasing to $9 effective April 1, 1968. Thus, the General Counsel comes up with a total, and I concur, of $420.80 as reflected below: PENSION CONTRIBUTIONS LASME WOULD HAVE BEEN REQUIRED TO MAKE TO TRLTST FUND ON COREY'S, BEHALF UNDER ARTICLE 63, SECTION 1 OF COLLECTIVE-BARGAINING AGREEMENT DURING BACKPAY PERIOD Period Number of Weeks Contribution Rate Contribution Due Trust Fund on Behalf of Discrininatee Corey 11/1/67 22 $8.00 per week $176.00 to 3/31/68 4/1/68 33 $9.00 per week $297.00 to 11/15/68 Pension contributions LASME would have paid on Corey's behalf for Run No. 53 during backpay period . . . . . . . . . . $473.00 Less contributions paid by LASME to Trust Fund on behalf of Corey during backpay period $ 52.20 NET CONTRIBUTIONS DUE BY RESPONDENT $420.80 Similarly, a claim is proffered and accepted for vacation the general tabulation above. pay due Corey. This is spelled out below and is reflected in VACATION PAY DUE COREY UNDER ARTICLE 60 OF COLLECTIVE-BARGAINING AGREEMENT Total Gross Earnings Vacation Pay Rate Vacation During Backpay Period Linder Article 60 4/ Pay Due $ 12,602.00 1/52 of gross annual earnings $242.00 GENERAL TEAMSTERS, LOCAL 439 451 Respondent's basic defense is that Corey did not diligently seek other employment and that he refused to accept available work. Bearing in mind that available work means work in the community which does not entail a move to another area, I find that the evidence preponderates in favor of the position of the General Counsel that the backpay liability should not be mitigated, except as already conceded by him. Respondent has contended that Corey did not want to work after his discharge, but generalizations are not sufficient. N.L.R.B. v. Reynolds, 399 F.2d688 (C.A. 6). And the record discloses considerable effort on his part to obtain work. Corey had worked for 30 years as a line driver or over-the-road ariver, the last 19 years at the Redding, California, terminal of Pacific Intermountain Express. When this terminal was eliminated, he was laid off and this lead to his abortive attempt to obtain work with LASME. This type of work is entirely different from local pickup and delivery work. As testified by Business Representative Frank Wood of Local 137 in Redding, a local driver spends 80 percent of his time loading and unloading freight, whereas 80 percent of over-the-road runs involve no loading or unloading; and, in the remainder, the loading or unloading involves about 20 percent of working time. Corey continually attempted to obtain work as a line driver, with some success. He registered with the state unemployment office and received unemployment pay for the entire backpay period. See Fibreboard Paper Products Co., 180 NLRB No. 133, and Keller Aluminum Chairs Southern, Inc., 171 NLRB No. 158. Corey registered at the hiring hall in the Redding office of Local 137 on a number of occasions, and Business Representative Wood, who considered him a top driver, was aware at all times of his availability. See L Posner, Inc., 154 NLRB 202.5 He uncontrovertedly testified, and I find, that he contacted a large number of named trucking firms and sought employment with little' success. He spent time daily at a Redding truck service center where line drivers stop for fuel, repairs, and food, and did obtain some work by learning of opportunities from the drivers. I find that he made a reasonable search for employment throughout the backpay period. And, as pointed out by the General Counsel, Respondent had unlawfully caused a large trucking firm to terminate Corey and its objection to his employment had not been withdrawn. See Cornwell Co., Inc., 171 NLRB No. 43. I note, too,- that the Board has pointed out that discriminatees are not required to "lower their sights" to take jobs not substantially equivalent with their former posts. Southern Silk, 116 NLRB 769, and 5 Hence, I deem it not significant that he did not register each and every month of the backpay period. The fact is that he was available at all times except when working and, indeed, Wood did dispatch him to jobs In Florence Printing Co., 158 NLRB 775, enfd. 376 F.2d 215 (C.A. 4). Respondent has stressed that Corey, as is the fact, refused to accept employment with Pacific Intermountain Express at its terminals in Reno, Nevada; Sacramento, California; and San Pablo, California. All of these would have required a move of his family from Redding because the distances were much too far for commuting. Corey also uncontro- vertedly testified, and I find, that the Reno winters were too severe for the health of his wife. The record further disclosed that the Sacramento post was a type of work known as volume tender work, this requiring a 12-hour shift every other day for Corey whose age was 50. As noted, Corey had decided to move to Stockton for his abortive hire by LASME, but his reluctance to get burned a second time, as shown in his testimony, is readily understandable. Bearing in mind his long-term residence in Redding, his home ownership, and one young child in school, his decision was not unreasonable. The facts here are quite similar to those in Florence Printing Co. v. N.L.R.B., supra, where the court commented that a discriminatee was not disqualified from backpay by refusing an offer which required him to sell his home, abandon his native community, remove one child from school, and move 100 miles; the court noted that one was not "necessarily obligated to accept employment at a distance from his home." See also Oman Construction Company, 144 NLRB 1534. While there were no interim earnings in the first two quarters of the backpay period, there were in the next three. I find that Corey made a reasonable search for employment and did not unjustifiably refuse to accept available jobs. See Local 18, Bricklayers, Masons and Plasterers Interna- tional Union of America, AFL-CIO (Union County Bldg. Contractors Assn.), 188 NLRB No. 14. I find that Lyle Corey is due from Respondent the sum of money set forth in the backpay specification, namely, $10,964, with interest at 6 percent per annum. I further find that the sum of $420.80 is due and payable by Respondent to the Western Conference of Teamsters Pension and Trust Fund in his behalf. RECOMMENDED ORDER On the basis of the foregoing findings and conclusions, it is ordered that Respondent, General Teamsters Local 439, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America, its officers, agents, and representatives, forthwith make the respective pay- ments described and specified above. addition, Wood testified that Corey did speak to him about work as early as November and December of 1967. He also testified that line drivers need not register each month.