Mash Transportation, Inc

404 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD Mash Transportation, Inc and Mark S Combs Case 25-CA-17484 March 22, 1989 SECOND SUPPLEMENTAL DECISION AND ORDER By CHAIRMAN STEPHENS AND MEMBERS JOHANSEN AND CRACRAFT On November 29, 1988, Administrative Law Judge Michael 0 Miller issued the attached deci- sion The Respondent filed exceptions and a sup- porting brief and the General Counsel filed excep- tions and an answering brief to the Respondent's exceptions 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 exceptions and briefs and has decided to affirm the judge's rulings, findings,' and conclusions and to adopt the recommended Order as modified 2 ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge and orders that the Respondent, Mash Trans- portation, Inc, Whiteland, Indiana, its officers, agents, successors, and assigns, shall pay Mark S Combs and Arthur Craig Scheid3 the sums set out in the judge's recommended Order, as modified by the addition of $27 03 to the net backpay due Combs ' To the extent that the Respondents exceptions can be read to except to some of the judge s credibility resolutions we note that the Board s established policy is not to overrule an administrative law judge s credi bility resolutions unless the clear preponderance of all the relevant evi dence convinces us that they are incorrect Standard Drywall Products 91 NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951) We have carefully examined the record and find no basis for reversing the findings 2 In accord with the General Counsel s exceptions we shall modify the judge s recommended Order to include an additional $27 03 in the net backpay award for Mark Combs The parties stipulated at the hearing that this figure represented additional expenses incurred in searching for interim employment Accordingly the total net backpay award for Combs will be increased to $17 221 62 3 The judge inadvertently referred to Arthur Craig Scheid as Arthur C Craig in his recommended Order SUPPLEMENTAL DECISION MICHAEL 0 MILLER, Administrative Law Judge I heard this matter September 7, 1988 in Indianapolis In diana pursuant to a backpay specification and notice of hearing issued by the Regional Director for Region 25 of the National Labor Relations Board (the Board) Decent ber 4 1987, an answer filed by Mash Transportation De cember 28, 1987, as amended March 31 1988 and a Sup plemental Decision and Order of the Board,' which issued June 10 1988 All parties were represented by counsel and were of forded the opportunity to examine and cross examine witnesses offer documentary evidence, and argue orally The General Counsel and Respondent have filed briefs which I have carefully considered On the entire record including my observation of the demeanor of the wit nesses 2 I make the following FINDINGS OF FACT A Background On September 11 1986, the Board issued a Decision and Order in this proceeding,3 in which it held that Mash Transportation, Inc (Respondent) had discrimina torily discharged Mark S Combs and Arthur Craig Scheid because they had engaged in protected concerted activity Respondent was ordered to offer Combs and Scheid reinstatement to their former positions and to make them whole for any loss of pay and benefits they may have suffered because of Respondents discrimina tion The Board s Decision and Order was enforced by a judgment of the Seventh Circuit 4 About December 28, 1987, Respondent filed a re sponse to the previously issued backpay specification as setting that the discrimmatees were ineligible to work during the backpay period and had been hired and re ceived temporary clearances to handle mail for the Post Office only because they had misrepresented their driv ing records They were, therefore, not entitled to back pay according to Respondent On March 15, 1988 the General Counsel filed a motion to strike answer and a Motion for Summary Judgment asserting that Respond ent s answer failed to comply with the regulatory re quirements that it be sworn to and specifically admit or deny each allegation of the specification In the alterna tive, the General Counsel sought a partial summary judg ment restricting the scope of the hearing to the issues raised in Respondents response to the backpay specifica tion, i e its affirmative defenses Subsequent thereto, Respondent filed an amended answer properly admitting or denying the specification s allegations and setting forth similar affirmative defenses regarding the employees entitlement to backpay That answer met the regulations technical requirements On June 10 1988 the Board issued its Supplemental Decision and Order accepting the amended response as having cured the procedural defects The General Court sel s motion to strike and Motion for Partial Summary Judgment was denied B The Issues In its amended answer, Respondent disputed the Gen eral Counsel's methodology in computing gross back 1 289 NLRB 49 (1988) 2 The joint motion to reopen the record is granted and the stipulation of facts and R Exhs 8 9 10 and 11 are received in evidence The record is now closed 3 281 NLRB 444 (1986) 4 Unpublished 293 NLRB No 46 MASH TRANSPORTATION 405 pay 5 In addition Respondent reasserted its affirmative defenses contending that the discriminatees were not en titled to any backpay because they were ineligible to work for the Postal Service Respondents only custom er, and had only been employed because they had mis represented their driving records The Board s Supple mental Decision and Order specifically held that these affirmative defenses and the answer raised substantial and material issues of fact regarding discnminatees gross backpay warranting a hearing I am bound by the Board s Supplemental Order, which directs me to consid er the affirmative defenses, notwithstanding the General Counsels contention that Respondent is estopped from litigating them because it was aware of the alleged mis conduct and had the opportunity to raise it as a defense to reinstatement and backpay in the initial unfair labor practice hearing 6 As urged by the General Counsel, however I deem the findings of fact and conclusions of law set forth in the initial decision to be conclusive See Steel Workers (Doxsee Food), 281 NLRB 1275 (1986), and cases cited there C The Alleged Misrepresentations The applications that Combs and Scheid submitted before they were hired in November 1984 and February 1985, respectively, required applicants to list all traffic convictions and forfeitures within the past 3 years and to state whether their driving licenses had ever been sus pended or revoked Respondents practice at that time was to then secure copies of the applicants driving records On being hired by Respondent, a driver would go to a Postal Service facility where he would complete a Contract Personnel Questionnaire, Post Office Form 2025 (calling for much the same information as the em ployer s application form), and be fingerprinted The Postal Service would then issue the driver a temporary permit authorizing him to have access to the mail and postal facilities At some later time when a more corn plete background check had been completed, that em ployee would either receive a permanent permit or be disqualified from handling the mail Under the Postal Service regulations, a permanent permit would not be issued to a driver whose license had been suspended once within the last 3 years or twice within 5 years, or to a driver who had one driving of fense within the prior year, three within the prior 3 years or 5 or more within the prior 5 years Mark Combs submitted his application on November 17, 1984, that application listed one speeding conviction in May 1984, but did not list Combs eight convictions for speeding between December 1981 and June 1983 S Respondent also denied the General Counsel s allegations concerning interim earnings and expenses At the hearing however Respondent stip ulated that the interim earnings and expenses as set forth in the specifica tion were correct 6 I note in this regard the Board s express reservation to the compli ance stage of this proceeding of issues concerning Scheid s reinstatement and backpay in light of his alleged loss of Postal Service clearance See fn 3 of the Board s initial Decision and Order I note further that the Boards Supplemental Decision expressly directing a hearing on the issues raised by the affirmative defenses is consistent with the alternative position urged by the General Counsel in her Motion for Partial Summa ry Judgment However, as found by Judge Saunders in the initial hear ing, before he was hired Combs told Herman Mullikin Respondents president and manager, about as many of his convictions as he could remember Four days later, when he completed the Postal Services Form 2025, Combs listed all nine of his convictions for speeding since 1981 7 Some time thereafter, Mullikin did not recall when, but presumably during Combs tenure Respondent se cured a copy of Combs driving record, which showed eight convictions for speeding Respondent did not ter minate Combs when he acquired that record, neither did the Postal Service deny Combs a temporary permit or move to revoke the one it had issued even though his Form 2025 showed more traffic offenses than its regula tions would appear to tolerate Indeed, he was issued a permanent permit in January 1986 Arthur Scheid submitted his application to Respondent August 15, 1984, approximately 6 months before he was hired In it, he checked No to the question asking whether his license had ever been suspended In fact, his license had been suspended in August 1980 for failing to appear in response to a ticket for a nonspeeding offense (missing headlight) 8 As with Combs, Respondent se cured a copy of Scheid s driving record, which showed the suspension but retained him in its employ On March 27, 1986, after Respondent had terminated Scheid it re ceived notification from the Postal Service that Scheid had been denied access to the mail and postal property, effective March 3 1986 No reason was given The Gen eral Counsel does not seek backpay for Scheid after March 3, 1986 Although Respondent contends that it would not have hired Combs and Scheid had they submitted accurate ap plications, the record reflects that it has employed and continues to employ, drivers with poor driving records whose applications contained similar apparent misrepre sentations Thus, dnver AF9 submitted an application on July 20 1983 that indicated one speeding violation in 1980 his official Summary of Driving Record shows two other speeding violations and a DWI (driving while in toxicated) offense within the past 3 years Similarly, EB listed three speeding convictions in 1983 and 1984 and one suspension on his May 1984 application His record 7 Even if I deemed myself free to reconsider Judge Saunders factual finding I would find insufficient basis on this record for doing so Thus I note that when asked by his counsel whether Combs ever told him of the additional convictions Mullikin only replied I do not recall him ever telling me a thing like that Such an answer is insufficient to overcome Combs testimony to the contrary and the earlier finding Combs subse quent accurate recall of his driving record while casting some doubt on his testimony could conceivably be explained by any of a number of pos sibilities Perhaps he acquired a copy of his driving record or tried harder to recall them all Respondent has failed to establish that it could not be innocently explained and as it is Respondent who seeks to overcome the earlier finding it is Respondent who would bear the burden of proof if this issue was open to reconsideration 8 Scheid completed Post Office Form 2025 on February 28 1985 shortly after he was hired That form did not ask whether his license had ever been suspended or revoked 8 To avoid undue embarrassment and possible economic loss the em ployees referred to in this paragraph will be identified by their initials Their job applications and driving records are in evidence as G C Exhs 14 through 17 406 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD shows two other suspensions and a speeding ticket in 1982 JS 1982 application states that his license was never suspended, his driving record indicates a suspen sion, for failure to appear, in 1981 CM applied in August 1988, he listed three speeding violations between 1983 and 1987 His driving record shows five such convic tions He was hired even though, by 1988, Respondent was requiring applicants to supply a copy of their driv ing records before they could be hired Based on all the foregoing, I am compelled to con clude that the alleged falsifications of their employment applications do not warrant denial of backpay to either Combs or Scheid As found by Judge Saunders and the Board, Combs did not mislead Mullikin Scheid did mis state his driving record regarding a suspension That sus pension, however, was not imposed within 3 years of his being hired and, therefore, would not have disqualified him from employment Mullikin, moreover, did not ter minate them when he acquired copies of their driving records Similarly, Mullikin hired and retained other drivers who had similar records of speeding violations and suspensions In essence, Respondent has condoned both the speeding violations and suspensions and the fail ure to accurately complete its employment applications by job applicants and employees, including Combs and Scheid, by hiring and retaining them notwithstanding his knowledge of their driving records See Bentex Mills, 213 NLRB 296 (1974) Moreover, both Combs and Scheid submitted accurate questionnaires to the Postal Service and both were grant ed temporary permits Combs, in fact, ultimately re ceived a permanent permits, notwithstanding his record of speeding violations Their driving records did not pre clude their employment by Respondent on behalf of the Postal Service Respondent has not shown that it would not have hired Combs and Scheid if they had submitted accurate employment applications Accordingly I find and con clude that Respondent has failed to sustain its burden of proof regarding its affirmative defenses Mark Combs and Arthur Scheid are entitled to backpay for the pert ods set forth in the specification D Gross Backpay According to Respondent its drivers take 2 day runs, earning 24 hours pay and are then off for 2 days Over an extended period of time, this schedule averages out to 42 hours per week In fact, the payroll records indicate that during his period of employment Combs averaged just slightly over and Scheid averaged just under 42 hours per week Forty two hours per week, Respondent contends, should be the proper measure of gross back pay The General Counsel has computed gross backpay using the combined average quarterly earnings of four drivers who worked throughout the backpay period Bryant, Callahan, Dunbar, and Fields The General Counsel noted as the records and testimony show, that drivers sometimes took extra runs or filled in on replace ment runs for other drivers, thus averaging more than 42 hours per week Respondent has failed to show that the discriminatees would not have worked such extra and re placement runs had they remained within its employ and I find that the General Counsel s use of the average hours worked by other employees during the backpay period is a reasonable method of calculating gross back pay Rainbow Coaches, 280 NLRB 166 (1986), and cases cited there According to the General counsels calculations, these four drivers averaged 43 49 hours per week during the backpay period It was on the basis of their average earnings in each quarter that the gross backpay was cal culated 10 In the alternative, the General Counsel has proposed that backpay be calculated on the basis of the average number of hours per week of all nine employees who worked throughout the backpay period So calcu lated, the average workweek during this period was 42 20 hours As the General Counsel has offered no ra tionale for selecting four employees on whose hours or earnings the gross backpay should be computed, I find it more reasonable to use the average workweeks of the nine Accordingly, I shall recompute the backpay due Combs and Scheid based on the assumption that had they worked, they would have averaged 42 20 hours per week during each 13 week quarter in the backpay period (In the alternative, their gross backpay could have been computed based on the average hours worked by the nine employees in each quarter, rather than over the entire period the difference would be negligible As Respondent, on brief, has argued for the computation to be based on an overall average number of hours worked, in 13 week quarters I have chosen this simpler and more direct method of computation ) Respondent established that Combs and Scheid were each paid for their last trips through September 12, 1985 Thus, as Respondent calculates their losses, they were without compensation for at most, 3 weeks in the quarter ending September 30, 1985 In the specification however the General Counsel claimed gross backpay for each of them of $2195 71 apparently based on the aver age earnings of four employees who worked during that period I find Respondents point to be well taken and shall recompute their gross backpay to accurately reflect the number of weeks they actually lost in that quarter (3) and at the average number of hours they might have been expected to work in each week but for their dis charges (42 20) E Interim Earnings-Mark Combs Respondent asserts that because Combs voluntarily left interim employment at Freight Movers because the company's safety standards did not meet his own and then instituted another lawsuit against an em ployer under which he might also be awarded backpay for the same time periods, his motivation should be ques tioned Respondent contends that Combs should, at best, be awarded nominal damages 10 The parties stipulated to the mathematical accuracy of the spcifica tion However if the average hours per week as shown for employee Bryant in Attachment A of the General Counsels brief are correct he only averaged 41 84 hours per week over the entire period not 46 51 This would reduce the weekly average of the four from the General Counsels 43 49 to 42 58 hours per week MASH TRANSPORTATION Respondent who bears the burden of proof on such an issue (Rainbow Coaches, supra), has failed to show that Combs quit his employment at Freight Movers or that, if he did so, that quitting was unjustified so as to consti tute a willful loss of interim earnings Combs testified without contradiction, that he was discharged by Freight Movers in a dispute over improperly maintained trucks Even assuming Combs had quit for such a reason the Board has long held that the quitting of interim employ ment for safety related reasons is justifiable See, for ex ample, American Mfg Co, 167 NLRB 520, 526 (1967) (employee Wallace) I find no basis in Combs' termina tion from Freight Movers or in his legal action against that employer to disqualify him from receiving backpay It is true that there is a potential for Combs to receive backpay twice for the same period of time if he prevails in his litigation against Freight Movers However, at this point in time, that is a mere potentiality , while Respond ent s primary liability for this loss is an established reali ty If Combs prevails against Freight Movers in his pend ing litigation, whatever backpay he receives as a result of that action might be reduced by what he is entitled to here I shall leave that for determination by the forum hearing the subsequent matter in the event that Combs is found to have been improperly terminated by the Freight Movers 11 CONCLUSIONS OF LAW Based on all the foregoing, I find and conclude that the discriminatees suffered backpay losses and are enti tied to backpay in the amounts set forth below because of Respondents discriminatory discharges of them on September 12, 1985 Mark S Combs Calendar Quarter Gross Backpay Interim Earnings Net Backpay 1985 III 12$148690 None $ 148690 1985 IV 6443 19 $5165 85 1277 34 11 Respondents claim that Combs testimony before me was maccu rate thus calling his veracity into question is without ment He did not lie when he replied Well I in not going to sit here and say I made more money but I did make good money to a question whether he made more money at Freight Movers than he had at Mash His earnings at Freight Movers were set forth in the specification were stipulated to be correct and were not in issue Moreover his earnings at both companies were roughly comparable 12 Based on an average workweek of 42 20 hours at the wage and benefit rates set forth in the specification the average weekly wage would have been $495 63 through June 28 1987 and $539 59 thereafter Mark S Combs 407 Calendar Interim Quarter Gross Backpay Earnings Net Backpay 19861 6443 19 7520 01 None 198611 6443 19 752001 None 1986111 6443 19 2749 59 3693 60 1986 IV 6443 19 1528 73 491446 19871 6443 19 5038 08 1405 11 198711 6443 19 3786 50 2656 69 1987111 539590 3712 41 1683 49 (to 9/12/87) Subtotal 17 117 59 Expenses 77 00 Total $17 194 59 Arthur C Scheid Calendar Quarter Gross Backpay Interim Earnings Net Backpay 1985 III $148690 None $148690 1985 IV 6443 19 $185590 4587 29 19861 446067 3038 05 1422 62 (to 3/3/86 9 wks ) Subtotal 7 496 81 Expenses 77 00 Total $7 573 81 On these findings of fact and conclusions of law and on the entire record , I issue the following recommend ed13 ORDER The Respondent, Mash Transportation , Inc, White land, Indiana, shall make Mark S Combs whole by the payment to him of $17 , 194 59, plus interest and shall make Arthur C Craig whole by the payment to him of $7573 81 , plus interest, as the net backpay due them as a result of Respondent's unfair labor practices, as set forth in the remedy section of the Board s underlying decision 13 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 pur poses