Maddox, Bob, Plymouth, Inc.

BOB MADDOX 111AMOLITi, INC 813 Bob Maddox Plymouth, Inc. and Sidney M. Page. Case 10-CA-14079 June 22, 1981 SUPPLEMENTAL DECISION AND ORDER On February 18, 1981, Administrative Law Judge J. Pargen Robertson issued the attached Supplemental Decision in this proceeding. Thereaf- ter, Respondent filed exceptions and a supporting brief, and the General Counsel filed limited excep- tions and a brief in support thereof. The Board has considered the record and the at- tached Supplemental Decision in light of the ex- ceptions and briefs and has decided to affirm the rulings, findings, l and conclusions of the Adminis- trative Law Judge, but not to adopt his recom- mended Order.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board hereby orders that the Respondent, Bob Maddox Plymouth, Inc., Forest Park, Geor- gia, its officers, agents, successors, and assigns, shall pay the following employees the sums of net backpay shown opposite their names, together with interest as provided in Florida Steel Corporation, 231 NLRB 651 (1977), 3 less any tax withholding required by law. minated,' was heard before me on November 19, 1980, in Atlanta, Georgia, on the specifications of the General Counsel issued on October 27, 1980, as amended at the hearing, and the answer of Respondent. Upon the record made before me and my observation of the demeanor of the witnesses, and after carefully considering briefs filed by the General Counsel and Re- spondent, I make the following: By Administrative Law Judge Claude R. Wolfe's June 4, 1979, Decision, Respondent was found to have discri- minatorily discharged employees Sidney M. Page and John E. Waters on October 11, 1978. The parties were in agreement that Respondent offered reinstatement to both Page and Waters by letter dated June 8, 1979. Moreover, the facts are not in dispute that Page and Waters were actually reinstated on July 5, 1979. Although the General Counsel argues that the backpay period, as to both Page and Waters, runs from October l, 1978, to the date of actual reinstatement, July 5, 1979, he concedes that Page's calendar quarter interim earn- ings exceeded his calendar quarter gross backpay after January 2, 1979. Therefore, as to Page, the General Counsel seeks backpay for the fourth quarter of 1978. In its specifications, as amended at the hearing, the General Counsel seeks backpay for Waters for the fourth quarter of 1978 and quarters one and two of 1979. Respondent contends that the backpay periods should terminate on June 8, 1979, when it extended reinstate- ment offers. Both Page and Waters testified without rebuttal that they were involved in completing work as subcontrac- tors on June 8, 1979. Each testified that he returned to work with Respondent on July 5, 1979, when he com- pleted that work. In view of my finding herein that the particular work in process generated interim earnings and in view of there being no evidence demonstrating that the period from June 8 to July 5 was unreasonable, I conclude that the backpay period extends to the date of actual reinstatement-July 5, 1979.2 In its answer Respondent argued that Waters was of- fered reinstatement on the day following his discharge. The General Counsel argued that matter was specifically considered and was resjudicata in view of the findings of Administrative Law Judge Wolfe. However, at the hear- ing Respondent stated that it was unable to offer proof that Waters was offered reinstatement on October 12. Therefore, that matter is not in issue. Respondent did not contest the General Counsel's method of computing the discriminatees' alleged gross backpay. As amended at the hearing, the General Coun- sel conceded that both Page and Waters' gross backpay for the fourth quarter of 1978 would be 11.4 (number of weeks in that quarter after their October I I discharge) times each discriminatee's average weekly earnings in- JD 300- 74 adopted by he National I.abor Relations Board by Order dated Jluly It) 179, and enforced b Order of lUnited States Court (of Appeals for the Filfth Circuilt it Julne 2I(). Is) See Srhri rl llousewhold Product (npun. Inc. 203 NLRBH 881 17a Sidney M. Page John E. Waters $ 4,269.81 16,499.89 ' Respondent has excepted to certain credibility findings made by the Administrative Law Judge. It is the Hoard's established policy not to overrule an administrative law judge's resolutions with respect to credi- bility unless the clear preponderance of all of the relevant evidence con- vinces us that the resolutions are incorrect. Standard Dry Wall Prodxucts, Inc., 91 NLRB 544 (1950), enfd 188 F2d 362 (3d Cir. 1951). We have carefully examined the record and find no basis for reversing his findings 2 In computing the amount of backpay to which John E Waters is en- titled, the Administrative Law Judge found that Waters received $2,510.90 in gross interim earnings from Boyd's Body Shop during the first quarter of 1979. The record reveals, however, that Waters received nine payments from Bloyd's ody Shop totaling $2.807.00() Accordingls. we will issue an Order in lieu of that recommetnded by the Administra- live Law Judge reducing the backpay owed to Waters by 52'7. from $16,796.89 to $16.499.89. 3 See, generally, Isis Plumbing & Heating Co.. 138 NLRB 716 (1962) SUPPLEMENTAL DECISION IN BACKPAY PROCEEDINGS STATEMENT OF THE CASE J. PARGEN ROBERTSON, Administrative Law Judge: This supplemental proceeding to determine the amount of backpay due two employees, whose employment has previously been found to have been discriminatorily ter- 256 NLRB No. 136 1303 MADDOX PLYMOT. INC 813 814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD stead of 12 weeks as reflected in the specification. 3 Re- spondent admitted that the average weekly earnings were $520.42 for Page and $552.77 for Waters. The General Counsel contended through the specifica- tions that both Page and Waters were entitled to addi- tional wages as "Christmas Club Bonus." Respondent contests the discriminatees' entitlement to those amounts. However, unrebutted evidence through the testimony of both Page and Waters proved that both contributed to the Christmas club up to the time of their discharge at a rate of $2.50 per week. Respondent, in accord with its Christmas club program, matched the amount of each employee's contribution. Both Page and Waters testified that they would have continued to contribute to the Christmas fund if they had not been terminated. I find that each is entitled to receive an amount equal to what Respondent's Christmas club contribution would have been had each continued working during the backpay period. 4 At the hearing other issues arose which I will now treat as to each discriminatee. 1. Sidney M. Page: The backpay specification alleged that Page received no interim earnings in the fourth quarter of 1978 and that his expenses in the search for work totaled $47. Page was called by the General Coun- sel, and he testified that he sought work during October, November, and December, 1978 with some 12 specified employers. Page testified that he also sought work through the local Employment Security office. However, on cross, Page admitted that he received pay for work performed as Sidney Page Body Shop during the fourth quarter of 1978. Page also admitted that he was untruthful to both Employment Security and the Internal Revenue Service by not reporting those fourth quarter earnings. In view of those admitted mis- representations, I am unable to credit Page's testimony to the extent it conflicts with other evidence. Therefore, I have credited other evidence showing that Page did not seek employment at "Stewart Avenue Chrysler-Plym- outh" during the fourth quarter as he claimed in his testi- mony. However, Page's testimony that he sought employ- ment through the Employment Security office and with 11 other employers during the fourth quarter was unre- butted. 5 That evidence convinces me that Page did 3 Respondent did question the General Counsel's arithmetic when, at the hearing, the General Counsel amended the specification to show hat Waters' fourth quarter 1978 entitlement should be reduced from 12 weeks to 11.4 weeks. According to the General Counsel's amendment, Waters' gross backpay, reflected on Appendix B, increased from $6,080.47 to $6,302. The General Counsel pointed out that the original figure ($6,080.47) represented an arithmetic mistake. 4 In its backpay specification the General Counsel limited the Christ- mas club entitlement to the fourth quarter of 1978 as to both Page and Waters. However, in its brief the General Counsel argued that that enti- tlement should extend throughout the entire backpa period. However, I note, as to Page, the specification admits that his calendar quarter interim earnings exceeded his calendar quarter gross backpay after January 2, 1979. There is no showing that this admission would not remain opera tive even if Page's Christmas club entitlement was added to his calendar quarter gross backpay after January 2, 1980. Therefore, I find that the record does not indicate that Page is entitled to backpay in any rm beyond the date of January 2, 1979 s Even though Page's admissions cast doubt on his overall credibility, other evidence proved that Page did apply wilth he Ermploymcilt Secu- engage in a reasonably diligent search for employment. (See Corn well Company, Inc., 171 NLRB 342 (1968).) However, Respondent did offer credible evidence that Page was paid some $1,765.68 for work performed for Sam Dell's Dodge during the fourth quarter 1978. The testimony reflected that that sum was paid Page for work performed in a subcontract basis for Sam Dell's Dodge. The evidence indicated those payments represent a gross figure. In that regard, Page testified he estimated his net earnings to be $900. However, no effort was made to support Page's alleged overhead-the difference between $1,765.68 and $900. On that basis, I am unable to conclude that the entire amount did not constitute in- terim earnings. Therefore, I find that Page received in- terim earnings in the amount of $1,765.68 during the fourth quarter of 1978. I have computed Page's entitlement as follows: Fourth Quarter 1978:6 Gross Backpay Less Interim Earnings Plus Expenses -Seeking Employment Plus Christmas Club Bonus Total $5,932.79 1,765.68 42.20 60.507 $4,269.81 2. John E. Waters: Respondent also contends that John Waters should be discredited. Some of Waters' testimony was contested. He testified that he applied for work at the Employment Security office and with nine employers during the fourth quarter of 1978. Waters testified that he applied for work during that period at Stewart Avenue Chrysler-Plymouth, On direct, he was asked who he spoke to at Stewart Avenue Chrysler-Plymouth. Waters testified. " believe his name was Mr. Billy Cook." On cross. Waters was asked who did he see when he applied at Stewart Avenue. He replied, "Stew- art Avenue Chrysler-Plymouth? Billy Cook." He identi- fied Billy Cook as the shop foreman. Respondent subse- quently called Tommy Durden who testified that he was the shop foreman at Stewart Avenue Chrysler-Plymouth during the fall of 1978 and that Billy Cook was not em- ployed there after September 9, 1978. Durden also testi- fied that he did not recall Waters applying for work at Stewart Avenue Chrysler-Plymouth. Durden did admit on cross that it was possible Waters did apply and that he did not see him. rit office As to the otlher employers. Page named all the places where he allegedly sought sork l hat provided Respondent with the elements iecessar t inlc stigate his estimony Nevertheless, no rebuttal evidence was offered Under those circumstances I am unable to discredit his un- rebutted testimony. I In complluting Page's expenses seeking employment I hase not includ- cd his claimed ileage to Stew art A enue Chrysler-Plymouth for reasons explained iabhzc I colnputed other mileage in search of w ork including mileage for weckly trips to the Employment Security office The firmula I used for computing the fillowing are: (a) gross backpay (II 1.4 weeks x 52042), (hI expenses seeking employment (422 miles x 10¢), and (c) Christmas club bonus ($32 i (11 4 x $2 5))1 I age was refunded his $32 co ntributiotn to the (Christmas club on his- discharge Under the Christmas club priogram. Respondent would have inatchd that i2 pilus tIe additlonal $28 50 Page w uld have contributed had h clinlilleed s lrkilig tie renilalinig I 4 seeks ill 17X BOB MADDOX PLYMOUTH, INC. 815 Under those circumstances, I am unable to credit Waters' testimony that he applied for work at Stewart Avenue Chrysler-Plymouth. However, unlike the cir- cumstances surrounding Sidney Page's testimony, it does not appear that Waters was deliberately misrepresenting facts. In other respects Waters' testimony proved to be in line with other evidence. The facts clearly establish that Waters sought work through the Employment Security office around October 13, 1978. In the absence of conflicting evidence, I find that he also sought work with some eight other employ- ers during the fourth quarter 1978. Therefore, I find that Waters did engage in a reasonably diligent search for employment. s The backpay specification, as amended, alleges that Waters' interim earnings during the first two quarters of 1979 totaled $1,466.88 and $2,405.18, respectively. The evidence proved that Waters' interim earnings were re- ceived from Boyd's Body Shop in a subcontractor capac- ity. Boyd, the operator of Boyd's Body Shop, was called by Respondent. Boyd testified that he paid Waters S2,510.90 in the first quarter and $2,695.21 in the second quarter of 1979.9 Boyd's testimony showed that the above amounts rep- resented gross figures and that Waters was responsible for his own overhead. The only evidence offered regard- ing overhead, other than evidence regarding excess mile- age, was Waters' testimony that he paid rent in the total amount of $1,042 for the months of March through June 1979 for space necessary to perform the subcontract body work for Boyd's Body Shop.' ° That rent repre- B The evidence, including his own testimony, reflected that Waters ac- tually worked during the remaining quarters of the backpay period Therefore, I draw no adverse conclusions as to whether he sought em- ployment during 1979. Cornwell Company, supra. 9 Boyd testified that for two of the payments in the amounts of $35270 and $344.80, for the second quarter, he has not received canceled checks However, in the absence of other evidence showing that Waters did not receive those payments, I credit the evidence showing those payments were made. io Respondent contested the General Counsel's rebuttal evidence re- garding Waters' rental expenses I overruled Respondent's objection at the hearing. I also denied Respondent's request for a continuance to in- vestigate Waters' rental expenses. However. I informed Respondent on the record that I would consider a motion to reopen the record in the event his investigation brought those expenses into question In the ab- sented payments of $260.50 for each of the 4 months. Waters' testimony established that those rent payments should be deducted from his gross receipts from Boyd's Body Shop. I have computed Waters' entitlement as follows. ' [Computations t 2 omitted from publication.] ' 3 Recommendations On the basis of the foregoing findings of fact, conclu- sions, and the entire record in this proceeding, and pur- suant to Section 10(c) of the National Labor Relations Act, there is hereby issued the following recommended: ORDER 14 The Respondent, Bob Maddox Plymouth, Inc., Forest Park, Georgia, its officers, agents, successors, and as- signs, shall pay to each of the individuals listed below the amount set opposite their names. Interest is to be added as established in Florida Steel Corporation, 231 NLRB 651 (1977). ' 5 There shall be deducted from the amounts due each individual any tax withholding re- quired by law. Sidney M. Page John E. Waters $4,269.81 16,796.89 sence of such a motion, I shall not reject the eidence regarding rental payments 11 In computing Waters' expenses I have not included his claimed mileage to Stewart Avenue Chrysler-Plmouth for reasons explained above. I computed other mileage in search of work including weekly trips to the Employment Security office 12 Waters was refunded his $97.50 contribution to the Christmas club upon his discharge. Under the Christmas club program. Respondent would hare matched that 97.50 plus the additional 28 50 Waters would have contributed had he continued working the remaining 11 4 weeks in 1978 1' Waters testified that he drove some 8 miles to work at Boyd's Body Shop and that when working for Respondent he drove 4 to 5 miles Therefore. he drove an additional 3 miles to work each day (total of 6 miles per day) 4 In the event no exceptions are filed as prol ided hb Sec 102 4 of the Rules and Regulations of the National l.abor Relations Board, the findings, conclusions and recommended Order herein shall, as prosided by Sec 10248 of the Rules and Regulations, be adopted by the Board and hecome its findings. conclusions and Order. and all objections thereto shall be deemed waived for all purposes. is See, generally. Ilis Plumbing & leating Co.. 138 NLRB 716 (1962) BOB MADDOX PLYMOUTH, INC. 815