Bailey Distributors

1106 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Donald Browne d/b/a Bailey Distributors and Tuno- thy Nevins Case 2-CA-18022 February 14, 1989 SECOND SUPPLEMENTAL DECISION AND ORDER BY CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On January 29, 1988, Administrative Law Judge Eleanor MacDonald issued the attached second supplemental decision The Respondent and the General Counsel filed exceptions and supporting briefs The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel The Board has considered the decision and the record' in light of the exceptions2 and briefs and has decided to affirm the judge's rulings,3 findings, and conclusions4 and to adopt the recommended Order, as modified We agree with the judge that had Nevins been hired as a helper, he would have been promoted to the position of driver First, he was promised the job The unrebutted testimony showed that by 1980, Donald Browne, the Respondent's owner, had promised Nevins several times that the next driver/salesman job would be his Second, Nevins was qualified for the job, as evidenced by the fact that Browne had promised it to him and that Browne had recalled Nevins to the relief driver po ' In excepting to Judge MacDonald s decision awarding backpay to Nevins the Respondent argues inter alia that he is not entitled to back pay because the Board found in the underlying proceeding that he had not been constructively discharged In this regard the Board in the un derlying proceeding stated that the nature of the violation was not that of a constructive discharge 283 NLRB 647 (1987) Rather the Board found that the Respondent discrimmatonly refused to hire Nevins to a job of indefinite duration To remedy the violation found the Board ordered inter alia that the Respondent offer Nevins employment for which he is qualified and make him whole for all losses suffered as a result of the Respondent s discrimination against him On August 5 1987 the United States Court of Appeals for the Second Circuit entered a judgment enforcing the Board s Order As the Respond ent s exception regarding constructive discharge relates to the violation previously found and thus in effect constitutes an attempt to relitigate matters that have already been resolved with court approval it must be rejected 2 The Respondent contends contrary to Judge MacDonald and the General Counsel it did in fact except to Judge Snyder s finding in the underlying proceeding that the job to which Nevins was not hired was one of indefinite duration Again however regardless of whether an exception was filed to Judge Snyder s finding the Board adopted Judge Snyder s finding and the Board s Order has been enforced by the court of appeals Therefore the issue of the duration of the job in question has been previously resolved and is not before the Board 3 We note that Overseas Motors 277 NLRB 552 (1985) cited by the judge was demed enforcement on other grounds 818 F 2d 517 (6th Cir 1987) 4 As requested by the General Counsel we will correct an inadvertent typographical error in the recommended Order section of the judge s de cision The backpay figure should read $171 912 sition for 3 consecutive years Third, during the penod in question, Nevins would have been the only employee in the Respondent's work force available for the promotion to driver Also, the em- ployee who took Nevins' place worked first as a helper, then as a driver Based on all of these fac- tors, we conclude that Nevins would have received the promotion to driver See Kawasaki Motors Corp, 282 NLRB 159 (1986), enfd 850 F 2d 524 (9th Cir 1988) In any event, the burden of any un- certainty in restoring the status quo through the Board's remedial order falls on the Respondent as the wrongdoer Kawasaki Motors Corp v NLRB, supra, 850 F 2d at 531, NLRB v Miami Coca-Cola Bottling Co, 360 F 2d 569, 572-573 (5th Cir 1966) Therefore, the judge correctly concluded that the General Counsel's gross backpay formula reason ably approximates what discriminatee Nevins would have received but for the Respondent's un lawful refusal to rehire him We also agree with the judge that Browne's April 27, 1987 letter to Nevins offering him a posi- tion as a helper was not a proper offer of reinstate- ment In a May 7, 1987 telephone call, Browne told Nevins, "you don't want to come back to work here Some things have surfaced about you A lot of accidents happen around here You don't want to come back to work here " We, therefore, agree with the judge that the Respondent's offer did not toll the backpay period Romal Iron Works Corp, 285 NLRB 1178 fn 1 (1987) ORDERS The National Labor Relations Board orders that the Respondent Donald Browne d/b/a Bailey Dis- tributors, Bronx, New York, its officers, agents, successors, and assigns, shall pay the amount set forth below Make whole Timothy Nevins by payment to him of the amount of $171,912, plus interest computed in the manner prescribed in New Horizons for the Retarded6 and accrued to the date of payment, minus tax withholdings required by Federal and state laws The Respondent is further ordered to pay the sum set forth in the backpay specification for Nevins as a contribution on his behalf to the Soft Drink Workers Union, Local 812, IBT pen- sion fund 7 6 The judge inadvertently failed to award pension benefits to Nevins as requested in the backpay specification We find that the Respondent is obligated to make pension contributions on Nevins behalf at the rates set forth in the backpay specification 6 283 NLRB 1173 (1987) 7 Any additional amounts owed to this fund shall be calculated in ac cordance with Merryweather Optical Co 248 NLRB 1213 1216 fn 7 (1979) 292 NLRB No 127 BAILEY DISTRIBUTORS 1107 James Wasserman Esq, for the General Counsel Alan M Stern Esq, of Mineola, New York for the Re spondent David B Horowitz Esq of New York, New York for the Charging Party SECOND SUPPLEMENTAL DECISION ELEANOR MACDONALD, Administrative Law Judge On 14 April 1987, the National Labor Relations Board issued its Supplemental Decision and Order in the above captioned case in which it affirmed the finding of Ad ministrative Law Judge Robert Snyder that Respondent violated Section 8(a)(3) and (1) of the Act by condition ing its job offer to Nevins on his accepting subscale wages and thus unlawfully refusing to hire Nevins for discriminatory reasons, 283 NLRB 647 (1987) The Board ordered that Respondent, inter alia, offer to employ Timothy Nevins in the position for which he is qualified and in which he would have been employed but for the discrimination against him or, if that job no longer exists, to a substantially equivalent position, with out prejudice to his seniority or other rights and privi leges, and make him whole for any loss of earnings or other benefits suffered as a result of the discrimination against him in the manner set forth in the remedy section of the Adminstrative Law Judge s decision On 5 August 1987, the United States Court of Appeals for the Second Circuit entered a judgment enforcing the Board s Order On 25 September 1987, the Regional Director for Region 2 issued a backpay specification and notice of hearing in the instant case The matter was heard by me in New York New York 30 November and 1 December 1987 On the entire record, including my observation of the witnesses, and due consideration of the briefs filed by the General Counsel and Respondent I make the following FINDINGS OF FACT A Background Donald Browne owns and operates Respondent, a wholesale soft drink distributorship Respondents collec tive bargaining agreement with the Soft Drink Workers Union Local 812 IBT covers drivers and helpers Nevins worked as a relief driver for Respondent at vari ous times between 1977 and 2 January 1981 when Re spondent s regular drivers were absent In the fall of 1980, Nevins worked briefly as a regular driver on a new route which was soon abolished for economic reasons At various times through 1980 Nevins also worked as a helper to Respondents driver At such times Nevins was paid in cash directly by the driver he was helping Apparently this is a widespread industry practice how ever Nevins eventually filed an unfair labor practice charge and a demand for arbitration over his failure to receive wages and benefits from Respondent pursuant to the contract when he worked as a helper The arbitrator ruled against Nevins on the issue, finding that Nevins was not an employee of Respondent Nevins unfair labor practice charge related not only to his employment as a helper through 1980 but also re lated to the events of 5 January 1981 On that day, Browne told Nevins that he was personally taking over one of the existing routes owned by Respondent 1 Browne offered Nevins a job as a helper Administrative Law Judge Snyder, in a finding not excepted to by Re spondent found that Browne offered Nevins a job of indefinite duration as a helper On 3 January 1983 Administrative Law Judge Snyder issued a decision finding that Respondent had discrimi nated against Nevins in violation of Section 8(a)(3) and (1) of the Act Judge Snyder declined to defer to the ar bitrator's award on any issues After the Board issued its decision in Olin Corp, 268 NLRB 573 (1984), the case was remanded to Judge Snyder The judge issued a sup plemental decision on 25 June 1984 that found in sub stance, that Respondent violated the Act by refusing to apply the terms of a collective bargaining agreement to Nevins while he worked as a helper at various times in 1980 and had also violated the Act by conditioning Nevins' hiring as a helper on 5 January 1981 on his will ingness to work below union scale 2 The judge again de dined to defer to the arbitrators award, which had found that Respondent had not employed Nevins as a helper in 1980, but had made no finding as to the dis criminatory denial of employment of 5 January 1981 On 21 January 1986, the Board issued its Decision and Order at 278 NLRB 103, finding that the refusal to defer to the arbitrators award was erroneous, and dismissing the complaint On 23 June 1986, the United States Court of Appeals for the Second Circuit issued its decision in Nevins v NLRB 796 F 2d 14, finding that deferral was proper as to the issue of Respondents discrimination against Nevins in 1980 but that the Board had abused its discre tion in deferring the issue whether Respondent discrimi nated against Nevins 5 January 1981 by conditioning his hiring as a helper on the acceptance of subscale working conditions The court remanded this issue to the Board The court found that on Friday, 2 January 1981 Nevins drove a truck for Respondent The court further found that on Monday, 5 January Browne offered Nevins a job as his helper The court stated that at the time of the offer of continued employment Nevins had been performing services for Browne The court framed the issue that the Board should decide as whether he was constructively discharged from his employment by the allegedly improper offer on January 5th 796 F 2d at 19 The Board accepted the remand of the court In its Supplemental Decision and Order, the Board noted its observance of the Court s opinion as the Law of the Case ' and it adopted Judge Snyder s rulings find ings and conclusions as to Nevins statutory claim of dis crimination on 5 January 1981 The court of appeals used the terms constructive dis charge in the sense that it found that Nevins was discri minatorily offered employment on 5 January 1981 when ' Browne had just fired his regular driver Walsh who had the fourth truck route of the distributorship 2 On 5 January 1981 Donald Browne offered Nevins a job as a helper for $40-$50 per day off the books that is with disregard of the wage and benefit provisions of the agreement When Nevins told Browne that he wanted to work as a union helper Browne refused 1108 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD he had been performing services for Respondent The Board pointed out that there were problems with the term constructive discharge , it did so because Nevins had not previously been employed as Browne s helper the precise position for which he had received a job offer on a discriminatory basis This purely semantic matter cannot obscure the law of the case, Nevins was offered employment of indefinite duration' in a manner that violated the Act and called for a backpay remedy and reinstatement B Amendment of the Specification The General Counsel amended the backpay specifica tion to provide as follows Yr /Qtr Gross Backpay Interim Earnings Net Backpay 1981 1st $5000 $ 0- $5000 2d 10 071 1 634 8 437 3d 10 566 1 226 9 340 4th 12 066 0 12 066 1982 1st 9 083 0 9 083 2d 6 621 0- 6 621 3d 12 896 2 352 10 544 4th 10600 1 156 9 454 1983 1st 7 325 1 490 5 835 2d 9 691 1441 8 250 3d 11 972 5 685 6 287 4th 10 719 583 10 136 1984 1st 9 689 3 863 5 826 2d 11 782 6 547 5 235 3d 11 187 5 141 6046 4th 13447 7 307 6 140 1985 1st 9 290 11 260 0 2d 7 061 1 824 5 237 3d 0 0 0 4th 7 729 2000 5 729 1986 1st 12103 275 11828 2d 11 751 7 549 4202 3d 11 943 7 696 4 247 4th 13 180 7 427 5 753 1987 1st 10 198 6 436 3 762 2d 12 523 7 500 5 023 3d 9 231 7 500 1 821 Total *$171912 * Interest to be added The gross backpay figures in the specification were calculated with reference to the earnings of three em ployees of Respondent, Carlos Martinez Jose Corpes and Joseph Buso On 16 January 1981, Martinez was hired as the helper on the fourth truck and on 15 February he became the driver of the fourth truck Corpes replaced Martinez as the dnver of the fourth truck in January 1986, and in July 1987 Buso became the driver of the fourth truck There is no dispute about the amounts earned by these three employees The General Counsel has not claimed backpay for pe nods when Nevins was not available for work due to physical disability C Discussion and Conclusions Respondents expert witnesses testified that the way for a person to gain employment in the soft dunk distn bution business is to be available to help drivers with their routes 3 When a helper has gained experience and become known to the owner of the distributorship the owner will employ the person as a relief driver on occa sion and at other times, the person will continue as a helper If the person is satisfactory as a relief dnver, the owner may eventually give him a permanent position as a dnver when an existing truck route becomes vacant or a new truck route is added to the distributorship The evidence shows that helpers on Respondent s trucks work off the books and are paid directly by the drivers they assist Relief drivers are paid on the books pursuant to the collective bargaining agreement The helper on the truck driven by Browne is paid on the books Browne only drives a truck when he is observing a helper about to be given a job as a regular dnver Respondent normally has four truck routes When one of the truckdnvers leaves Browne may drive that route for a while with a helper If the helper is satisfactory Browne ceases driving himself and gives the route to the helper who then becomes a regular route driver The uncontroverted testimony before me shows that from 1977 to 1980, Nevins was the only relief driver em ployed by Respondent Further in 1980, Browne had told Nevins that he would be given the next route that became vacant On a number of occasions before 1981 Browne told Nevins hang in there until someone re tired and then he would have steady employment I conclude that on 5 January 1981 had Nevins been employed as a helper by Browne, Nevins would have continued as a helper and eventually he would have become the dnver of the fourth truck route This is pre cisely what happened in the case of Martinez the man who became Browne s helper and who was then made dnver of the fourth truck route Once the Board has made a determination of unlawful discrimination and has ordered a backpay remedy, the General Counsel need only prove the backpay owing by utilizing a reasonable method of calculation Here the General Counsel has based the backpay calculations on the earnings of Respondents employees who performed the work Nevins had been offered by Browne Martinez became Browne s helper on 15 January 1981, then he became the dnver of the fourth route He was replaced by Corpes who was then replaced by Buso Respondent has not offered any alternative method of calculating s Five witnesses with many years experience in the soft dunk distnbu non industry testified on behalf of Respondent BAILEY DISTRIBUTORS backpay and I find that the General Counsels method is correct Respondent contends that 5 January 1981 Browne did not offer Nevins anything more than work for 1 day However, the law of the case precludes this argument Administrative Law Judge Snyder s finding not except ed to and adopted by the Board, was that Browne of fered Nevins a job of indefinite duration ' The court of appeals found that Browne offered Nevins continued employment Industry practice, as proved by Respond ent s own witnesses, shows that after a period as Browne's helper, Nevins would have become a regular driver Thus, I find that Nevins was offered a job as Browne s helper in contemplation of becoming the regu lar driver on the fourth route It is Respondents burden to show that Nevins would not have continued in his job from 5 January 1981 to the present Browne did not tes tify and there is no other evidence to meet Respondent's burden Respondent urges that Nevins is not entitled to back pay from 16 June 1982 because he did not have a valid driver s license from that time forward It was stipulated that from 16 June 1982 through 23 June 1987, Nevins' li cerise was suspended for failure to pay certain sum monses On 23 June 1987, his license was revoked for operating without insurance 4 On 30 November 1987 the first day of the hearing, Nevins obtained a restricted use license by paying all his unpaid summonses Nevins testi fled that after he was discriminated against by Respond ent and was out of work, he had no money to pay tickets issued to him and thus his license was suspended He stated that he could have obtained a restricted license at any time and could have driven a truck legally by paying the outstanding tickets Article 21-A § 530 of the New York State vehicle and Traffic Law provides that a person whose license has been suspended or revoked and for whom the holding of a valid license is a necessary incident to his employ ment may be issued a restricted use license The record evidence shows therefore that Nevins could have driven Respondents trucks legally by the act of paying any outstanding fines Nevins could have been issued a restricted license as a matter of mere rountine and his failure to pay his fines when he did not need a driver s license does not operate to bar him from his enti tlement to backpay Overseas Motors 277 NLRB 552 559 (1985) The General Counsel having established the backpay liability Respondent might have shown that Nevins failed to mitigate backpay by failing to make reasonable efforts to find equivalent employment The burden of proof on this issue is on Respondent The discriminatee need not be successful in his efforts he is not held to the highest standards in his efforts to find work, and uncer tainties in the evidence are resolved against the Respond ent who has violated the Act Further, it is understood that the discriminatee may not have kept exact records of his efforts to mitigate backpay liability and, after the passage of time his memory may be faulty * There is no dispute that at other times Nevins had the proper license to operate Respondents trucks 1109 Nevins testified that a couple of weeks after 5 Janu ary 1981, he tried to find work in the soft drink industry by contacting a Canada Dry salesman a Mr Cary This contact did not produce a job offer Sometime after this, Nevins heard of a program in the Carpenters Union He filled out an application, took a test and was admitted to Local 608 of the Carpenters Union After Nevins signed up with the Union, he was referred to various jobs by the Union He testified that each time he finished a job, he would call the local and put his name on the list of those seeking work Nevins stated that the work was sporadic, but that he worked whenever he could get work His earnings are shown on the backpay specification In addition to working as a carpenter through the Union, Nevins heard of a job building liquor displays in liquor stores He worked for several display companies doing this work The work is not well paid Further, Nevins made an unsuccessful foray into the home improvement field he earned no money and was the object of a lawsuit due to an incompetent subcon tractor Nevins testified that he always looked for work and never sat idle Nevins signed up with the state unemploy ment office Respondent urges that Nevins did not seek equivalent employment because he made no further efforts to find work in the soft drink industry Respondents own wit nesses testified that to find work as a helper, Nevins would have had to hang around a plant and hope to be employed as a helper on an ad hoc basis After 6 months to 1 year of such hanging around, he might have been employed as a relief driver or a regular driver But there is no guarantee of this Although various Respond ent s witnesses testified that driver jobs were available the evidence shows that a distributor might hire one new driver a year at the most There is no evidence as to how many applicants per job there are in the industry Nor is there any evidence as to any other factors that might have given other applicants an edge over Nevins in the hiring process such as family connections former service as a regular driver or the like Significantly, none of Respondents witnesses testified that they would have given Nevins a job as a helper or driver if he had applied to them after 5 January 1981 Thus I cannot find fault with Nevin s decision to enroll in the Carpenters Union program and seek to build a career in that indus try Nevins had no way of knowing whether if he start ed by hanging around a new distributors premises for 6 months to 1 year he would eventually gain a relief dnv er s or driver s position He might well have invested the time for naught See Rainbow Coaches, 280 NLRB 166 (1986), enfd 835 F 2d 46 (9th Cir 1987), Amshu Associ aces, 234 NLRB 791 793 (1978) Great Plains Beef Co, 255 NLRB 1410 1411 (1981) Respondent introduced a letter dated 27 April 1987 from Browne to Nevins It stated, I hereby offer you a position as a helper ' Nevins asked his wife to write a reply accepting Browne s offer Although Nevins did not know when the letter was mailed, his wife sent a letter to Browne accepting the offer as per the National 1110 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Labor relations Boards [sic] latest order This letter was dated 11 May 1987 Nevins testified that 7 May 1987, he spoke to Browne on the telephone and asked for a job Browne replied you don't want to come back to work here Some things have surfaced about you A lot of accidents happen around here You don t want to come back to work here' Nevins testified that Browne never made any appoint ment to see him about reinstatement Although Browne did not testify in this proceeding Respondent introduced circumstantial evidence purporting to show that Nevins failed to keep an appointment at Respondent's premises concerning his reinstatement Given Browne s failure to testify and offer direct evidence on this point and given Nevins uncontroverted testimony that he never had any appointement to see Brown about his job, I can not find that Nevins refused an offer of reinstatement The only record evidence before me shows that after sending Nevins a job offer, Browne threatened Nevins by imply ing that he might have an accident and told Nevins that he did not want to come back to work It is clear that Browne did not make a proper offer of reinstatement to Nevins and the backpay period has not been tolled On these findings of fact and conclusions of law and on the entire record, I issue the following recommend eds ORDER The Respondent, Donald Browne d/b/a Bailey Dis tnbutors, Bronx, New York his officers agents, succes sors, and assigns, shall pay to Timothy Nevins the sum of $171 912, plus interest 6 Because Respondent has not complied with the terms of the Board s Order and the order of the court of appeals with respect to offering im mediate reinstatement to Timothy Nevins, his backpay rights for periods after the quarters covered in this Order are reserved 11 If no exceptions are filed as provided by Sec 102 46 of the Board s Rules and Regulations the findings conclusions and recommended Order shall as provided in Sec 102 48 of the Rules be adopted by the Board and all objections to them shall be deemed waived for all put poses 6 See New Horizons for the Retarded 283 NLRB 1173 (1987)