Brown Co.

National Labor Relations Board - Board Decisions

Sep 30, 1991

305 N.L.R.B. 62 (N.L.R.B. 1991)

62
305 NLRB No. 10
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall 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 concluding that the Respondent’s backpay obligation did not
end in April 1988, when it terminated its cement train operation, the
judge implicitly found that the Respondent’s liability would be tolled
only if it thereafter offered the discriminatees substantially equiva-
lent employment. This is incorrect in light of our decision in Moun-
taineer Petroleum, 301 NLRB 801 at 802, Member Devaney dis-
senting at fn. 5 (1991), a decision which the judge did not have the
benefit of when he wrote his decision. The Board held that when
an employer has lawfully closed the facility at which the
discriminatees previously worked, and the employer has no substan-
tially equivalent positions elsewhere, the employer can satisfy its re-
instatement obligation by offering the discriminatees nonequivalent
positions, in descending order of equivalence, provided that such
discriminatees retain the right to transfer to substantially equivalent
positions as and when they become available. Further, if the em-
ployer makes such an offer, backpay would be tolled.
Consistent with his position in Mountaineer Petroleum, supra at
fn. 5, Member Devaney agrees with the judge that the Respondent’s
reinstatement obligations would have been tolled by offering the un-
lawfully laid-off employees reinstatement to substantially equivalent
employment.
3 On June 14, 1991, the Board issued an order approving a partial
settlement agreement entered into by the General Counsel, the
discriminatees, and Respondent Symons Corporation, Livingston-
Graham Inc. Division (Symons). Under the terms of the approved
partial settlement agreement the discriminatees waived all backpay
and interest claims against Symons in return for periodic fixed-sum
payments, a supplemental order by the Board, and a consent judg-
ment by an appropriate United States court of appeals. The partial
settlement agreement does not resolve the issue of pension fund con-
tributions allegedly owed for certain discriminatees, nor does it bar
further processing of this case against the remaining Respondents.
We adopt the judge’s conclusion that a calendar-year method is
appropriate for determining net backpay in this case. Because the
Respondent stipulated to the use of that method and has shown no
compelling reason to disregard the stipulation, we need not reach the
merits of its arguments or the judge’s analysis.
Brown Company; Brown Company, Livingston-
Graham Division; Brown Company, Tri-City
Concrete Division; L-T Transport, Inc. and
successors with liability Gulf & Western Indus-
tries, Inc., Livingston-Graham Inc. Division;
Symons Corporation, Livingston-Graham Inc.
Division; Riverside Cement Company, Living-
ston-Graham Inc., Division and Kris A. Borum
Brown Company, Livingston Division; and succes-
sors with liability Gulf & Western Industries,
Inc., Livingston-Graham Inc. Division; Symons
Corporation, Livingston-Graham Inc. Division;
Riverside Cement Company, Livingston-
Graham Inc. Division and Kris A. Borum.
Cases 21–CA–14732–1(B) and 21–CA–14732–
2(B)
September 30, 1991
SECOND SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS DEVANEY, OVIATT, AND
RAUDABAUGH
On June 13, 1990, Administrative Law Judge Wil-
liam J. Pannier III issued the attached decision. The
Respondent filed exceptions and a supporting brief and
the Charging Party and the General Counsel filed an-
swering briefs.
The National Labor Relations Board has delegated
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 de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions2 and to adopt the recommended Order.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Brown Company; Brown
Company, Livingston-Graham Division; Brown Com-
pany, Tri-City Concrete Division; L-T Transport, Inc.
and successors with liability Gulf & Western Indus-
tries, Inc., Livingston-Graham Inc. Division; Symons
Corporation, Livingston-Graham Inc. Division; River-
side Cement Company, Livingston-Graham Inc. Divi-
sion, Vernon and El Monte, California, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
Paul H. Fisch, for the General Counsel.
Stuart H. Young Jr. and James Bowles (Hill, Farrer &
Burrill), of Los Angeles, California, for the Respondent.
David B. Finkel, of Santa Monica, California, and Neil M.
Herring, of Sebastopol, California, for the Charging Party.
DECISION
STATEMENT OF THE CASE
WILLIAM J. PANNIER III, Administrative Law Judge. I
heard this case in Los Angeles, California, on July 18
through 20, 1989, based on a backpay specification and no-
tice of hearing issued by the Regional Director for Region
21 of the National Labor Relations Board (the Board), on
May 8, 1989. That specification is based on orders issued by
the Board on July 30, 1979 (243 NLRB 769), but remanded
by unpublished opinion of the United States Court of Ap-
peals for the Ninth Circuit on September 2, 1981, and on
February 28, 1986 (278 NLRB 783), enforced without pub-
lished opinion by that same circuit court on November 6,
1987 (663 F.2d 1078), certiorari denied on May 2, 1988 (485
U.S. 1039).
In those proceedings, the employers named as Respondent
were Brown Company; Brown Company, Livingston-Graham
Division; Brown Company, Tri-City Concrete Division; and,
L-T Transport, Inc. The Board concluded, and the circuit
court did not disagree, that they constituted a single em-
ployer within the meaning of the Act (243 NLRB at 769;
63BROWN CO.
1 No similar allegation is made concerning Gulf & Western Indus-
tries, Inc., whose ownership of the Livingston-Graham Division oc-
curred after issuance of the Board’s 1979 Order and, furthermore,
during the initial 2-year period after the Ninth Circuit’s remand of
this proceeding.
2 These were multiemployer-multiunion contracts between Rock
Products and Ready Mixed Concrete Employers of Southern Cali-
fornia and a number of Teamsters local unions.
278 NLRB at fn. 2). However, since this litigation com-
menced, several subsequent changes in ownership have oc-
curred. Thus, in December 1980 Gulf & Western Industries,
Inc. purchased the Livingston-Graham Division from Brown
Company. Then, on September 8, 1983, Symons Corporation
purchased that division from Gulf & Western, with knowl-
edge of the unfair labor practices of the single employer and,
moreover, with the understanding that it would assume re-
sponsibility for making whole the claimants who suffered
losses as a result of them. Finally, on April 29, 1987, River-
side Cement Company purchased the Livingston-Graham Di-
vision from Symons, again with knowledge of the unfair
labor practices proceeding. It is undisputed that Symons Cor-
poration is a successor of Brown Company and, in turn, that
Riverside Cement Company is its successor.1 Therefore, the
Employers enumerated in the caption shall be collectively re-
ferred to herein as Respondent.
Based on the entire record, on the briefs filed on behalf
of the parties, and on my observation of the demeanor of the
witnesses, I make the following
FINDINGS OF FACT
I. BACKGROUND AND ISSUES
This proceeding originates from a relatively straight-
forward sequence of events that occurred in late December
1975 and in early January 1976. However, they occurred in
more complicated circumstances that, in turn, generated a se-
ries of compliance issues that have led to this proceeding.
The sequence of events was that in 1975 Livingston-Graham
Division had been employing 12 drivers to operate seven ce-
ment trains—special tractor-trailer trucks designed to haul
bulk cement—from locations in Vernon and El Monte, Cali-
fornia. As that decade had progressed, those operations were
conducted increasingly at a competitive disadvantage. As a
result, L-T Transport, Inc. was formed for the purpose of
taking over the bulk cement hauling operations that Living-
ston-Graham Division had been conducting. This occurred on
January 2, 1976, with L-T Transport, Inc. using the equip-
ment that had been used by Livingston-Graham Division
prior to that date. However, none of the 12 drivers was trans-
ferred. Instead, totally different individuals were assigned to
drive the cement trains on and after January 2, 1976. Lacking
employment as cement train drivers, nine of the former ce-
ment train drivers bumped into other jobs with Livingston-
Graham Division. Lacking sufficient seniority to follow a
similar course, the other three drivers were laid off.
The unfair labor practice proceeding in this matter arose
because of the circumstances in which that sequence of
events occurred. In 1975, the cement train drivers had been
part of a bargaining unit of some 200 Livingston-Graham Di-
vision employees represented by Building Material & Dump
Truck Drivers Local 420, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of America,
AFL–CIO (Local 420). Historically that bargaining unit had
been covered by collective-bargaining contracts commonly
referred to as ‘‘blue-book’’ contracts.2 However, more favor-
able economic terms were available to employers who were
signatory to a different collective-bargaining contract, the so-
called ‘‘for-hire’’ contract, to which a number of Teamsters
locals, including Local 420, were parties. Because many of
its competitors were parties to for-hire contracts, Livingston-
Graham Division felt that those contracts were the reason
that it was operating at a competitive disadvantage. As a re-
sult, it proposed to Local 420 that L-T Transport, Inc. be-
come the operator of the cement trains and employer of their
drivers under a for-hire contract. Under this proposal, any of
the 12 cement train drivers who chose not to accept that ar-
rangement would be allowed to bump into other jobs, senior-
ity permitting, at Livingston-Graham Division. Initially,
Local 420 was favorably disposed toward this proposal. But
when all 12 of the drivers objected, Local 420 rejected it.
Despite that rejection, the proposal was implemented on De-
cember 31, 1975. In light of Local 420’s objection, the ce-
ment trains were relocated to Redlands, California, thereby
removing them from the geographic jurisdiction of Local 420
to that of Local 467, a local union willing to agree that for-
hire contracts could be applied to cement train operations.
In its 1979 decision, the Board concluded that the transfer
of operations to L-T Transport, with the accompanying ce-
ment train relocation, violated Section 8(a)(3) and (1) of the
Act, because the sole purpose for that action had been to es-
cape the existing blue-book contract economic obligations by
action that partially abrogated that contract. However, the cir-
cuit court held that in reaching that conclusion, the Board
had failed to examine certain blue-book contractual provi-
sions and it remanded the case so that the Board could do
so. The Board again concluded that the Act had been vio-
lated. However, it discarded its reasoning under Section
8(a)(3) of the Act in favor of a violation based on Section
8(a)(5) of the Act, because the transfer of operations and ce-
ment train relocation had constituted a unilateral midterm
modification of the then-existing blue-book contract.
The change in statutory subsection did not affect the af-
firmative relief ordered by the Board. Thus, to the extent per-
tinent to this proceeding, the Supplemental Decision and
Order, as had the initial Order, directs continued recognition
and bargaining with Local 420 in the appropriate historic
bargaining unit which includes cement train drivers; that ce-
ment hauling operations formerly carried on at Vernon and
El Monte be resumed at those two locations, transferring
back the cement trains previously relocated to Redlands; and,
that immediate and full reinstatement as cement train drivers
be offered to the 12 drivers who had been performing that
work prior to December 31, 1975, ‘‘or, if their former posi-
tions no longer exist, to substantially equivalent positions
without prejudice to their seniority or other rights and privi-
leges previously enjoyed, and make them whole for any loss
of pay they may have suffered.’’ However, the change in
violated subsection of the Act necessitated a change in the
cease-and-desist portion of the Board’s Order. In the one is-
sued in 1979, the Board directed that there be no discontinu-
ance of cement hauling operations at Vernon and El Monte,
and no sale and transfer of trucks used to conduct those op-
64 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
erations there, nor discontinuance of any other work encom-
passed by the blue-book contract with Local 420, with the
object of escaping obligations imposed by that contract. In
contrast, the Supplemental Order substituted the following
cease-and-desist order:
While its current collective-bargaining agreement
with [Local 420] is in effect, discontinuing its cement
hauling operations at Livingston-Graham’s Vernon and
El Monte locations and selling and transferring its
trucks to L-T Transport, Inc. at Redlands, without Local
420’s consent.
In view of the passage of time since commission of the
unfair labor practices, and concomitant number of events that
occurred over so long a period, a myriad of compliance
issues are presented. First, in 1977 Respondent secured Local
427’s agreement to apply for-hire contract terms to cement
train drivers and retransferred the cement trains back to
Vernon and El Monte. They were operated from those loca-
tions until April 1988, when Respondent sold the last of
them and ceased altogether operating cement trains. Never-
theless, the General Counsel and the Charging Party contend
that Respondent remains obliged to resume cement train op-
erations out of Vernon and El Monte, because it has never
resumed conducting operations there under blue-book, as op-
posed to for-hire, contracts.
Second, because no reinstatement offers ever have been
made to any claimant, the General Counsel, supported by the
Charging Party, argues that the overall backpay period is on-
going, although conceding that backpay periods for 10 claim-
ants have concluded due to particular circumstances unique
to each of them. In contrast, Respondent argues that since the
discharges were held to be unlawful under Section 8(a)(5) of
the Act, it has complied with the remedial order by negoti-
ating a new blue-book contract in September 1977 or, alter-
natively, by securing Local 420’s agreement during the fol-
lowing month to apply for-hire contract terms to cement
trains operating from Vernon and El Monte. Even if those
arguments are rejected, argues Respondent, the overall back-
pay period should toll as of April 1988, when cement train
operations ceased.
Third, independent of the overall backpay period dispute,
Respondent argues that the backpay period for claimants
Robert Reilly and Kris A. Borum must conclude earlier than
is alleged by the General Counsel and the Charging Party.
In Reilly’s case, Respondent asserts that his backpay period
should culminate when he suffered a disabling injury on
April 4, 1985, or, if not on that date, on August 1, 1986,
when he retired. However, the General Counsel contends that
Reilly’s injury had been incurred while, in effect, engaging
in interim employment and, further, was of a type that would
not have occurred had Reilly been operating a cement train.
Moreover, asserts the General Counsel, Reilly did not intend
to retire until his 62d birthday, on January 10, 1989, but had
been forced to retire prematurely in 1986, because his injury
prevented him from operating a cement mixer truck, the
work that he had been assigned to perform by Respondent.
In these circumstances, the General Counsel argues, Reilly’s
backpay period should not toll until January 10, 1989.
In the case of Borum, Respondent argues that her testi-
mony and a certain other incident demonstrate that she was
attempting to pervert the compliance proceeding by con-
cealing evidence of her interim earnings and, consequently,
that she should be barred altogether from receiving backpay
or, at least, should be barred from receiving it during the
time that she was self-employed as an owner-operator. Alter-
natively, Respondent contends that her backpay period
should toll from July 14, 1976, because she abandoned fur-
ther employment with Respondent as a cement mixer truck-
driver. Respondent also denies, contrary to the specification’s
allegation, that it must reimburse Borum for certain yearly
health care expenditures that she incurred from 1986 through
1988: $335 for basic hospital and medical coverage, $178 for
vision care, and $215 for prescription drugs. In doing so, Re-
spondent asserts that it has no information that such expendi-
tures actually were made by Borum.
Fourth, the General Counsel has computed backpay using
calendar years, instead of calendar quarters, due to the dif-
ficulty in locating sufficient records. Respondent does not
take issue with the rationale for this substitution. However,
it argues that since the underlying violations were based on
Section 8(a)(5) of the Act, there should be only a single,
unsegmented backpay period, under the doctrine of Ogle
Protection Service, 183 NLRB 682 (1970), thereby allowing
excesses of interim earnings over gross backpay for 1 year
to be carried over to offset gross backpay for other years.
Fifth, there is no argument about the method for calcu-
lating the multiplicand of the gross backpay formula: for
each year through 1987, dividing average total number of av-
erage regular and overtime hours worked by cement train
drivers who drove that full year for Respondent, and for
1988 and January 1989, dividing the number of years from
1976 through 1987 into the total number of average regular
and overtime hours worked by cement train drivers who
drove for a full year for Respondent during each particular
year. However, there is a dispute concerning the appropriate
multiplier used to determine the gross backpay. The General
Counsel and the Charging Party argue that the appropriate
pay rate should be the one set forth in the successive blue-
book contracts effective over the course of those 13 years
and 1 month. In contrast, Respondent contends that, since it
violated Section 8(a)(5) of the Act and since Local 420
agreed ultimately to apply for-hire contract terms to cement
trains operated from Vernon and El Monte after September
1977, therefore rates from successive for-hire contracts
should be used as the multiplier for computing gross back-
pay. In support of their alternative theories, the General
Counsel and the Respondent each have submitted calcula-
tions for each claimant. Subject to resolution of the fourth
issue described above, each agrees to the mathematical accu-
racy of the other’s calculations, depending on the multiplier
chosen.
Sixth, Respondent denies that it must make retroactive
contributions to the Western Conference of Teamsters Pen-
sion Trust on behalf of claimants Borum, Reilly, Clarence
Hudson, and James Jaworski. Neither its answer nor its
posthearing brief explicate the basis for this denial. Presum-
ably, it has been advanced to be consistent with the second
above-enumerated issue, pertaining to duration of the back-
pay period. That is, if the backpay period tolled on one of
the earlier dates specified by Respondent, then it would fol-
low that no pension contributions would be owing for later
months. Similarly, consistent with its contention regarding
65BROWN CO.
the multiplier, set forth above as the fifth issue, Respondent
asserts that if there is a determination that it must make ret-
roactive pension contributions, then their amounts should be
calculated under for-hire, as opposed to blue-book, contract
rates.
Seventh, with respect to Reilly, Respondent argues that if
there is a determination that his backpay period extends to
January 10, 1989, then an additional deduction of $674
should be made for each month after July 1986, because he
received that amount during each retirement month from the
pension trust. In opposition, the General Counsel asserts that
those amounts should not be deducted, because Reilly will
have to repay $674 to the trust for each month of his retire-
ment for which he receives backpay.
Eighth, concerning Borum, Respondent contends that even
if she is awarded backpay, and awarded it for the period
after July 14, 1976, the evidence discloses that her interim
earnings were understated in the specification and, further,
that there were periods when she was ill and unavailable for
work during which her backpay period should be tolled. In
fact, after the hearing closed, the General Counsel did recal-
culate Borum’s backpay to reflect the evidence presented at
the hearing. However, along with the Charging Party, the
General Counsel opposes further revision of Borum’s net
backpay on the basis that it is not warranted by the evidence.
Finally, all parties agree that, on December 30, 1988, Re-
spondent offered to employ Borum as a new employee work-
ing off the extra board. However, the General Counsel and
the Charging Party challenge Respondent’s contention that
the offer sufficed as a valid one for reinstatement, with the
result that Borum’s backpay period tolled as of that date.
II. RESTORATION OF CEMENT TRAIN OPERATIONS
This is not an issue covered, nor even contemplated, by
the remedial order. Prior to issuance of the Supplemental De-
cision and Order, and of the circuit court’s judgment, one or
another of the entities comprising the single employer had
been continuing to conduct cement train operations. Con-
sequently, as Respondent points out in its brief, the remedial
order was unconcerned with which of those entities actually
continued to operate cement trains, so long as they were re-
transferred back to Vernon and El Monte. In that respect, re-
transfer sufficed to restore the status quo ante.
Not encompassed by the remedial order was a situation
where none of the entities comprising the single employer,
nor any of their successors, engaged at all in cement train
operations. Yet, that is the very situation presented. By the
late 1970s or early 1980s, the magnitude of demand for ce-
ment in the Los Angeles market had outgrown domestic
sources of supply. As a result, cement began to be imported
for that market. However, the haul rate for cement from the
Los Angeles harbor, where imported cement is picked up, is
significantly lower than the rate for cement hauled from do-
mestic sources. For example, Anton Dyck, Respondent’s vice
president and general manager, testified without contradiction
that it cost Respondent approximately 30 to 35 cents per
hundredweight to deliver cement from the harbor to down-
town Los Angeles, but that Respondent received only 21-1/2
cents per hundredweight for doing so.
Apparently, this was not an immediate problem for Re-
spondent, because imported cement was not a great propor-
tion of the cement market. However, as the years passed, the
volume of imported cement grew in relation to cement ob-
tained from domestic sources. Indeed, by the time of the
hearing, Dyck testified that imported cement sales constituted
90 to 95 percent of the Los Angeles market. Faced with this
situation, Respondent began to cease repairing cement trains
that broke down. In fact, when one of them burned in 1983,
Respondent simply did not replace it. In December 1987, Re-
spondent made a decision to phase out cement hauling oper-
ations and to dispose of its by-then unrepaired, but admit-
tedly repairable, cement trains. The last one was sold in
April 1988.
Nothing in the remedial order obliges Respondent to con-
tinue cement hauling operations in perpetuity. As quoted in
section I, supra, Respondent had been ordered only to cease
and desist from ‘‘discontinuing its cement hauling operations
. . . at [the] Vernon and El Monte locations and selling and
transferring its trucks to L-T Transport, Inc. at Redlands.’’
(Emphasis added.) The entire thrust of the Board’s Order,
and of its underlying decision, was to prohibit a shell game
from being conducted among the various entities that com-
prised the single employer—to prevent them from escaping
blue-book contract terms by relocating cement trains to an-
other of the single employer’s entities. Beyond that prohibi-
tion, the order is silent.
Pointing to the fact that the Respondent’s decision to
phase out cement hauling operations was made during the
month immediately following the one in which the judgment
was filed, the General Counsel argues that there had been a
causal relationship between the two events: ‘‘It is clear[] that
Respondent took the action for the s[o]le purpose [of]
avoid[ing] having to place its cement trains under the ‘Blue
Book’ agreement.’’ Yet, if that had been the fact—if Re-
spondent truly had been so motivated—its discontinuance of
cement hauling operations would have constituted an unfair
labor practice, just as the Act earlier was violated by their
relocation to avoid continued application of the blue-book
contract’s terms. However, there has been no decision to that
effect by the Board. Indeed, so far as the record shows, there
has been neither charge nor complaint making that allegation.
To the extent that a compliance proceeding in one case
might serve as a springboard for litigating unfair labor prac-
tices occurring after issuance of the order that generated that
compliance proceeding, there was no notice here of that in-
tention. The specification alleges only that Respondent re-
mains obliged to ‘‘reinstate operations of the cement trains
under the Blue Book Agreement as mandated by the Board’s
Supplemental Order, as enforced by the Court.’’ At no point
during the hearing was the specification amended, nor was
any representation of counsel made, that would have pro-
vided notice that restoration was being sought on a basis
independent of the scope of the Order issued as a result of
the 1975–1976 unfair labor practices.
In sum, there is no basis in this compliance proceeding for
ordering Respondent to do something that the Board has not
directed it to do and, further, for ordering Respondent to do
so because it did something that the Board did not prohibit
it from doing. Especially, is this so where such an order must
be based on conduct that has not been determined by the
Board, after notice and hearing, to be a violation of the Act.
In this connection, it is worth noting that to comply with a
restoration order in this case, Respondent would have to
make capital expenditures to purchase equipment necessary
66 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 There was no challenge to the reservation for further determina-
tion of the ‘‘obligation of Respondent to all discriminatees [sic] . . .
for all periods after January 31, 1989.’’
4 For two other claimants, Donald Thomas and Robert Shaffer, set-
tlements were negotiated prior to commencement of the hearing and
the motion was granted to delete their names from the specification.
to resume an operation that it previously could not operate
profitably. Such an order might well be construed as ‘‘un-
duly burdensome.’’ Lear Siegler, Inc., 295 NLRB 857
(1989). See, e.g., Hood Industries, 273 NLRB 1587 (1980),
and Triumph-Adler-Royal, 298 NLRB 609 (1990). In any
event, concern in seeking and opposing it appears to have
been motivated by a belief that its resolution will affect other
issues. As discussed infra, this simply is not the fact.
III. BACKPAY PERIOD DURATION
A. Overall Backpay Period
As stated in section I, supra, Respondent argues that the
overall backpay period should conclude in September 1977,
when it negotiated a successive blue-book contract with
Local 420, or, alternatively, during the following month,
when it secured Local 420’s consent to apply for-hire con-
tract terms to cement trains operated from Vernon and El
Monte. Respondent based these alternative arguments on the
fact that the violations in this case occurred under Section
8(a)(5) of the Act and, accordingly, ‘‘the period for a make-
whole remedy in a Section 8(a)(5) case terminates at such
time as the employer bargains in good faith to an impasse
or a contract.’’ However, contrary to the situations under-
lying the treatise propositions relied on to support that argu-
ment, this case did not present a situation where an employer
discontinued an operation without satisfying its bargaining
obligation. Instead, as pointed out in section II, supra, Re-
spondent continued to conduct cement train operations, albeit
from a different location, after December 31, 1975. It simply
replaced the drivers who had been driving those vehicles.
As a remedy for that type of violation of Section 8(a)(5)
and (1) of the Act, to the extent pertinent here, the Board
ordered, with subsequent approval by circuit court, Respond-
ent to do two things: retransfer cement train operations to
Vernon and El Monte and, second, offer reinstatement to the
12 drivers who had been deprived of operating cement trains
as a result of the unlawful relocation of the vehicles to Red-
lands. It is not disputed that there never has been compliance
with that second affirmative order: Respondent did not offer
reinstatement to any of those 12 claimants. ‘‘An employer
may toll its backpay liability by offering reinstatement to
employees improperly dismissed,’’ Canova v. NLRB, 708
F.2d 1498, 1505 (9th Cir. 1983), but until such an offer is
forthcoming, ‘‘Respondent’s obligation continues to accrue.’’
(Citation omitted.) Stevens Ford, Inc., 271 NLRB 628 fn. 2
(1984). Consequently, because Respondent never has fulfilled
its obligation to offer reinstatement to any of the 12 claim-
ants, the overall backpay period is not shortened by its his-
tory of bargaining with Local 420 during and after Sep-
tember 1977.
Furthermore, the ongoing duration of the overall backpay
period is not affected by Respondent’s discontinuance of ce-
ment train operations in 1988. As quoted in section I, supra,
the Board’s affirmative reinstatement order provides that if
the claimants’ former position no longer exists, they are to
be offered substantially equivalent positions—and that offer
is to be made ‘‘without prejudice to [the claimants’] seniority
or other rights and privileges previously enjoyed.’’ There is
no evidence that Respondent made such an offer to any of
the claimants during and after April 1988. True, as noted in
the final issue enumerated in section I, Respondent did offer
to employ Borum as a new employee working off the extra
board. But, Respondent has not shown that such employment
is substantially equivalent to the position of fulltime cement
train driver. To the contrary, the offer to rehire Borum as a
new employee ‘‘connotes loss of seniority and accrued bene-
fits,’’ Canova v. NLRB, supra, and, as such, fails to comply
with the express terms of the reinstatement order. Therefore,
neither the offer of employment to Borum in December
1988, nor the Respondent’s discontinuance of cement train
operations earlier during that same year, served to toll the
ongoing overall backpay period.
Nor was the reinstatement obligation satisfied, and the
backpay period of individual claimants concomitantly cut off,
by the fact that, following relocation of cement trains to Red-
lands, Respondent provided other jobs to most, if not all, of
the 12 claimants. So far as the evidence shows, bumping into
other jobs occurred prior to April 1988. Accordingly, it took
place at a time when Respondent was continuing to operate
cement trains. But, reemployment does not constitute rein-
statement. See Colorflo Decorator Products, 228 NLRB 408,
420 (1977), enfd. mem. 99 LRRM 3327 (9th Cir. 1978);
Canova v. NLRB, supra. For example, relatively extensive
evidence was adduced concerning the comparative merits of
operating cement mixer trucks versus cement trains. Yet,
even if driving the two types of vehicles is identical in com-
plexity and desirability, an offer of employment driving the
former does not satisfy a reinstatement order to a job driving
the latter, so long as Respondent continued to operate cement
trains. ‘‘Generally, when . . . the NLRB orders reinstatement
to [employees’] former or substantially equivalent positions,
the employer does not have a choice. . . . If the former po-
sition still exists, he must offer that one.’’ NLRB v. Jackson
Farmers, Inc., 457 F.2d 516, 518 (10th Cir. 1972). See also
NLRB v. Draper Corp., 159 F.2d 294, 297 (1st Cir. 1947).
To toll the backpay period, ‘‘a full and unconditional offer
of reinstatement to the employee’s former position is re-
quired.’’ Oil Workers v. NLRB, 547 F.2d 598, 601 fn. 3
(D.C. Cir. 1976), cert. denied 429 U.S. 1078.
Inasmuch as Respondent retransferred the cement trains to
Vernon and El Monte, but never offered to reinstate any of
the 12 claimants as their drivers, and inasmuch as there is
no evidence of substantially equivalent employment offers
following discontinuance of cement train operations in April
1988, the overall backpay period never has tolled. For eight
of the claimants, that conclusion resolves any further ques-
tions concerning the duration of their backpay periods which
commenced on January 1, 1976: Louis Bering, to December
31, 1988; William Cannon, to April 27, 1984; Anthony
Giangreco, to November 30, 1976; Clarence Hudson, to May
26, 1976; James Jaworski, to December 8, 1977; Harry Potts,
continuing after January 31, 1989;3 Carmon Rosselli, to Au-
gust 31, 1984; and, James Wilson, to July 29, 1988.4 Fur-
thermore, this also resolves the question of Respondent’s ob-
ligation to pay retroactive pension contributions on behalf of
Hudson and Jaworski during the backpay period of each of
them, an issue enumerated as the sixth one in section I,
67BROWN CO.
supra. Of course, still remaining for consideration is the sep-
arate issue of the proper multiplier to be utilized in calcu-
lating the gross backpay and the amount of pension contribu-
tions. That subject is discussed infra.
B. Backpay Period for Kris A. Borum
As set forth in the third issue enumerated in section I, ad-
ditional arguments have been advanced by Respondent with
regard to the individual backpay periods of Borum and of
Reilly. The most significant of these is the argument that
Borum attempted to conceal interim earnings and, so, should
be denied backpay under the doctrine of American Naviga-
tion Co., 268 NLRB 426 (1983). In making that argument,
Respondent relies on a series of factors: that her testimony
was inherently incredible when she claimed that fear of being
fired had motivated her not to file a workers compensation
claim after her injury in 1976, when she had been operating
a cement mixer truck for Respondent; the equivocal, and
sometimes assertedly inconsistent and inaccurate, nature of
her testimony concerning her period of self-employment and
her subsequent period of employment with Blue Marlin Res-
taurant; the fact that she filed no income tax return for her
self-employment period and possessed few financial records
from that period; her equivocal testimony that she ‘‘could’’
have earned amounts exceeding those enumerated in the
specification as interim earnings and the asserted efforts to
conceal certain documents from a separate lawsuit, purport-
edly showing that to be a fact; and, her general lack of recall
and inexactitude when questioned by Respondent’s counsel,
in contrast to her more precise answers when responding to
questions of her own counsel and the General Counsel.
A claimant will be precluded from all, or a portion, of
backpay whenever the record establishes that he/she has
‘‘attempt[ed] to pervert an order issued in the public interest
into a scheme for unjustified personal gain.’’ American Navi-
gation Co., supra at 428. To satisfy that standard, there must
be a showing of intention to accomplish that result, such as
by ‘‘intentionally conceal[ing] interim employment from the
Board.’’ (Citations omitted.) Ad Art, Inc., 280 NLRB 985 fn.
2 (1986). This is so because deprivation of backpay con-
stitutes ‘‘denial of the normal remedy [which] leaves the ef-
fects of the Respondent’s unlawful conduct unremedied and
thus fails to effectuate the policies of the Act.’’ (Citations
omitted.) Owens Illinois, 290 NLRB 1193 (1988).
As a result, a claimant is not deprived of backpay merely
because he/she failed to maintain perfect records of interim
employment, nor because he/she failed to report all interim
earnings to the Board during the compliance investigation.
Big Three Industrial Gas & Equipment Co., 263 NLRB
1189, 1190–1191 (1982). Absent a showing of deliberate
withholding or destruction of records, or of attempts to de-
ceive the Board, Kansas Refined Helium Co., 252 NLRB
1156, 1159–1160 (1980), enfd. 683 F.2d 1296 (10th Cir.
1982), a claimant is entitled to backpay in spite of ‘‘poor
recordkeeping, uncertainty as to memory, and perhaps exag-
geration.’’ Pat Izzi Trucking Co., 162 NLRB 242, 245
(1966), enfd. 395 F.2d 241 (1st Cir. 1968). Indeed, it has
been held that even a claimant’s lack of total candor regard-
ing efforts to seek interim employment does not satisfy the
standard imposed for disqualification from backpay. McDon-
nell Douglas Corp., 270 NLRB 1204 fn. 3 (1984); Service
Garage, Inc., 256 NLRB 931 (1981).
Here, a preponderance of the evidence is not sufficient to
establish a deliberate intention by Borum to conceal interim
earnings, nor to otherwise deceive the Board and frustrate an
accurate compliance determination. Due to her seniority
standing, as a result of the unlawful relocation of cement
trains, Borum was laid off on December 31, 1975. In May
of the following year, she was recalled by Respondent to op-
erate a cement mixer truck, a job that did not constitute rein-
statement for the reasons set forth above. On June 4, 1976,
she sustained an injury, discussed more fully in section VI,
infra, that she testified had been work related. On July 14,
1976, she submitted to Respondent a physician’s report
which, although entitled ‘‘RELEASE FOR WORK,’’ specified
that she was ‘‘Not to return to work until physically capa-
ble.’’ In fact, she never did return to work for Respondent.
Instead, she purchased her own tractor and began self-em-
ployment as an owner-operator on August 1, 1976. However,
the tractor was repossessed in February 1979. She testified
that all her records had been in the tractor and that they had
disappeared by the time that she later had been allowed ac-
cess to it. As a result, she was unable to provide added docu-
mentation regarding her interim employment—with one ex-
ception.
That exception arose as a result of her testimony when
called as a witness by Respondent. Borum had been living
in Texas and had returned to California for this hearing. In
response to questions by Respondent’s counsel about her
lack of records, Borum mentioned that, ‘‘I searched my dad’s
garage when I got in Thursday, and I found one small case
of records,’’ which she had placed in the automobile in
which she had ridden to the hearing. The record does not in-
dicate that counsel for the General Counsel had been aware
of the records’ existence. Apparently, counsel for the Charg-
ing Party had been aware of their existence, but had not re-
viewed them before Borum testified. As requested, Borum
brought them to the hearing room and delivered them to Re-
spondent’s counsel. However, before they actually were
turned over, counsel for the Charging Party removed some
documents from the case. This generated a dispute between
counsel over whether or not those removed documents also
should have been turned over to Respondent. As it turned
out, an initial assertion of attorney-client privilege was with-
out merit and, ultimately, the removed documents were
turned over. Some of them then were utilized to further inter-
rogate Borum. Others suggested an avenue that led to
posthearing admission of additional documents, obtained
from sources other than the small case, bearing on the
amount of Borum’s interim earnings while self-employed, as
discussed in section VI, infra.
It is essentially on these facts that Respondent bases its ar-
gument that Borum should be barred from receiving backpay.
Yet, she appeared to be attempting to testify truthfully. It is
accurate that there were variances between portions of her
account and the specification’s recitation of interim earnings.
However, amounts of interim earnings enumerated in speci-
fications show no more than the General Counsel’s ‘‘willing-
ness to admit without proof objectively verifiable facts which
go to diminish the maximum amount of the wage loss in
order to expedite the hearing process.’’ Heinrich Motors, 166
NLRB 783, 783 (1967), enfd. 403 F.2d 145 (2d Cir. 1968).
A variance could arise from a claimant’s lack of candor in
reporting interim earnings during the compliance investiga-
68 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tion. But it also could arise because of an insufficient pre-
hearing investigation or due to a claimant’s imprecise mem-
ory in reporting interim earnings to the General Counsel.
Here, there is no evidence that Borum deliberately misled the
General Counsel during the prehearing compliance investiga-
tion. That is, there is nothing that would support such a con-
clusion to the exclusion of the other two possibilities: insuffi-
cient investigation or imprecise memory of Borum.
Indeed, it was my impression that genuine lack of memory
caused most of the infirmities in Borum’s testimony to which
Respondent now points, in arguing that she should be barred
totally from receiving backpay. She testified at the end of a
decade about events that had occurred at the beginning of
that decade, as well as about events occurring during the pre-
ceding decade. ‘‘[T]he lapse of time between [those events]
and [the] current proceeding necessarily had the effect of
limiting the evidence available.’’ Kansas Refined Helium
Co., supra, 252 NLRB at 1160 (relying on Bagel Bakers
Council of New York, 226 NLRB 622, 626 (1976)). In light
of that time lapse, it is not surprising that her memory,
unaided by prior examination of records lost when her tractor
had been repossessed, was imperfect.
Nor is it surprising that her recollection was imperfect
when she was interrogated by Respondent’s counsel, but was
more precise when she was interrogated by her own counsel
and by the General Counsel. Respondent had been the initial
party to call Borum and its counsel had been the first one
to question her about the specific facts of her interim em-
ployment. Obviously, counsel had not had an opportunity to
meet with Borum before the hearing to review what areas
would be covered by his interrogation—to alert her to sub-
jects about which she should be thinking to improve her
recollection before being called as a witness. Borum testified
that after these subjects had been raised during Respondent’s
examination, she was able to begin thinking about what she
had been asked and to begin recalling more specifically what
had occurred. As a result, she was able to answer more ex-
plicitly when later questioned about these same subjects by
the General Counsel and by her own counsel. That expla-
nation is logical and it was advanced by Borum with seem-
ing honesty.
Indeed, at several points Borum gave testimony that tend-
ed to favor Respondent’s position—testimony that she likely
would not have given if she truly had been attempting to en-
gage in deception to secure backpay higher than the amount
to which she is entitled. Thus, her response that she ‘‘could’’
have earned more than the interim earnings’ figures enumer-
ated in the specification for particular years was testimony
that aided Respondent’s effort to reduce the amount of her
net backpay. Borum impressed me as a perceptive individual
who seemed to appreciate the consequences of that testi-
mony. That, nonetheless, she conceded that there ‘‘could’’ be
added earnings tends to enhance her credibility, rather than
to diminish it, as Respondent contends. Most significantly, if
she had been attempting to conceal interim earnings, it is
highly unlikely that she freely would have revealed the exist-
ence of the case that she had located in her father’s garage.
There is no evidence that Respondent had been aware of it.
Nor is there any basis for concluding that Borum could have
perceived that Respondent would have unearthed its exist-
ence, by other means, if she did not admit that it existed.
Nevertheless, she freely volunteered that there was a case of
records and she freely offered to submit it for Respondent’s
inspection.
True, production of the case led to a heated dispute over
the obligation to produce certain items. In fact, in the end,
the argument against production not only was incorrect, but
was based on representations that were not accurate. Yet,
there is no evidence that Borum, personally, had been re-
sponsible for this state of affairs. To the contrary, her testi-
mony was a partial cause for ultimate production of the re-
maining documents from the case. In such circumstances, her
credibility should not be impaired by someone else’s sponta-
neous adversarial reaction, creating ‘‘a Donny Brook fair
. . . for the feel of the fighting.’’ Winn & Lovett Grocery
Co. v. NLRB, 213 F.2d 785, 786 (5th Cir. 1954).
Obviously, no one condones such matters as failure to file
federal income tax returns. But violation of other statutes
does not bar the Act’s protection. See, e.g., Sure-Tan, Inc.
v. NLRB, 467 U.S. 883 (1984). Nor does it require that a
witness not be credited. Although I have considered these
factors, as well as the other evidence underlying Respond-
ent’s contentions, I felt that Borum was a candid witness
when she testified and nothing in my review of the record
leads me to reverse that conclusion. Moreover, there is no
independent evidence that would support the conclusion that
Borum has been deliberately withholding information in an
effort to deceive the Board and to frustrate its compliance
proceeding. Therefore, I conclude that the amount of her
backpay should not be diminished under the doctrine of
American Navigation Co., supra.
Nor do I agree with Respondent’s alternative argument
that Borum’s backpay period should toll because she never
returned to work as a cement mixer truck driver after June
4, 1976. Borum testified that she never did so, because she
regarded the job of cement mixer driver to be an undesirable
one. To support that assertion, she enumerated a series of as-
pects of mixer driving that were difficult for her and that she
did not encounter when driving cement trains: carrying 40 to
60-pound chutes from the fender to the back of the mixer,
lifting those chutes to attach them so that cement could pour
down them from the mixer to the jobsite, and having to
sometimes twist a chute and pound on it with a hammer to
get it to attach before pouring and to disattach after the pour
was completed. Although evidence was adduced that some
drivers regarded mixer truck driving as preferable to cement
train driving, there was no dispute about the fact that dif-
ferences did exist and that the above-described tasks had to
be performed by a mixer driver, but not by a cement train
driver.
While Respondent now disputes the fact, a preponderance
of the evidence supports the conclusion that Borum did sus-
tain a work-related injury on June 4, 1976, while operating
a cement mixer truck. She testified that her shoulder had
been injured when a chute fell on her. There is no evidence
contradicting that testimony. To the contrary, on that very
date, Plant Manager Ed Papp prepared an industrial accident
report, reciting that Borum had been injured by a falling
chute. She was sent for emergency treatment at Chatsworth
Medical Center. Six days later, a doctor selected by Re-
spondent examined her and prescribed daily physical therapy
for a 2-week period, after which she was to return, on June
24, 1976, for further examination by him. However, Borum
did not complete the therapy and did not return to the doctor.
69BROWN CO.
5 Based on dicta in four cases, Respondent argues that where self-
employment generates ‘‘little or nothing’’ in earnings, it continues
as appropriate interim employment only if the self-employed claim-
ant begins to seek other employment. However, it is settled that ‘‘a
person is not required to look for other employment while he is rea-
sonably engaged in self employment.’’ (Citation omitted.) Heinrich
Motors v. NLRB, 403 F.2d 145, 149 (2d Cir. 1968). See also F. E.
Hazard, Ltd., 297 NLRB 790 (1990). Nor is Respondent’s propo-
sition a logical one. For, it would oblige self-employed claimants to
divide their efforts, by seeking employment while continuing, at the
same time, to succeed in self-employment. As a result, time and ef-
fort spent pursuing one alternative would detract from time and ef-
fort that could be directed to the other, thereby diminishing the po-
tential success of both.
Instead, she chose to undergo chiropractic treatment. Un-
aware of Borum’s decision, on July 7, 1976, Respondent sent
her a letter, telling her to report for work with either a doc-
tor’s release or a doctor’s statement concerning treatment for
a continuing disability. The letter concluded with the warning
that, ‘‘If you fail to do either of these requirements . . . ,
your employment will terminate as a voluntary quit.’’
In response to that letter, Borum submitted the above-de-
scribed ‘‘release.’’ So far as the record discloses, Respondent
never questioned the legitimacy of Borum’s continued dis-
ability and never terminated her employment in 1976. Rath-
er, it continued her status as its employee until June 6, 1977,
when it nondiscriminatorily discharged her for failing to per-
form work during the preceding 1-year period. Consequently,
at no point during 1976 and 1977 did Respondent challenge
the fact that Borum had been injured and, further, that the
injury had been a work-related one.
Now, it argues that her failure to file a workers’ com-
pensation claim in connection with that injury shows that it
had not been a work-related one. Yet, nowhere is it written
that such a claim must be filed as a condition precedent for
establishing that an injury is work related. Moreover, Borum
testified that she had not done so because she feared that, if
she did, Respondent would no longer consider her for em-
ployment. Regardless of whether Respondent is, or is not,
disposed to retaliating against employees who file workers
compensation claims—an issue not before me—there is no
evidence contradicting Borum’s testimony that she genuinely
harbored such a fear. Nor, in light of her unlawful layoff
only a few months earlier, is there a basis for saying that she
acted irrationally and without any justification in formulating
that fear. Accordingly, I conclude that Borum did suffer an
injury while operating a cement mixer truck on June 4, 1976.
Further, I conclude that it was the type of injury that could
not have occurred had she been operating a cement train,
based on Borum’s uncontradicted testimony that nothing in-
volved in driving a cement train could have caused the
shoulder injury that she sustained from the falling chute.
In the foregoing circumstances, Borum’s backpay should
not toll because she abandoned further interest in driving a
cement mixer for Respondent. As concluded above, regard-
less of the comparative desirability of driving one or the
other type of truck, employment as a cement mixer driver
did not suffice as reinstatement for an unlawfully displaced
cement train driver. Moreover, the differences between driv-
ing the two types of vehicles were such that Borum legiti-
mately felt that regularly continuing to drive a mixer was too
strenuous. Indeed, she had been injured doing so. In this con-
nection, Respondent points to her testimony that she always
had wanted to be an owner-operator and, based on that testi-
mony, contends that Borum’s decision to abandon further
mixer truck employment had nothing to do with its desir-
ability. Rather, argues Respondent, she simply chose to in-
dulge a longstanding ambition and Respondent should not be
held responsible financially for her lack of success in that en-
deavor.
Despite her longstanding desire to become an owner-oper-
ator, Borum denied expressly that she had contemplated actu-
ally trying to become one as of the date of her injury. Cer-
tainly, there has been no evidence produced to show that,
prior to June 4, 1976, she had engaged in any conduct that
would tend to indicate that she had been preparing to become
self-employed. Accordingly, a preponderance of the evidence
does not support the contention that Borum used her injury
as a pretextual excuse for an endeavor that she had intended
all along to pursue. Furthermore, there is no evidence show-
ing that, during mid-1976, Borum could not, and did not,
fairly anticipate that self-employment would not be success-
ful. In fact, as discussed in section VI, infra, she did not be-
come a successful owner-operator. However, absent some
showing that such a result could reasonably have been antici-
pated in mid-1976, there is no basis for diminishing her
backpay because her self-employment turned out to be a fail-
ure. For, ‘‘the principle of mitigation of damages does not
require success; it only requires an honest and good faith ef-
fort.’’ Cashman Co. v. NLRB, 223 F.2d 832, 836 (1st Cir.
1955). Nothing in the record shows that Borum failed to sat-
isfy that standard of conduct.5 ‘‘It is indisputable that self-
employment is an adequate and proper way for the injured
employee to attempt to mitigate his loss of wages.’’ (Cita-
tions omitted.) Heinrich Motors v. NLRB, supra, 403 F.2d at
148.
The fact that Borum would be driving a vehicle other than
a mixer truck does not show that she had abandoned further
interest in employment with Respondent. It shows only that,
as the doctor recited in his ‘‘release,’’ she could not drive
one particular type of truck. That she could have driven other
types is shown by the fact that, at some point between June
14 and August 1, 1976, she drove a tractor-trailer to make
a haul for Fox Hollow from Los Angeles to Nevada City,
in the process mitigating her loss by the $276.18 that she re-
ceived for doing so. Yet, Respondent never offered her a job
driving another type of truck. So far as the record shows, it
never even indicated to her that an alternative type of vehicle
could be made available for her to drive.
In fact, contrary to the implication of Respondent’s argu-
ment, Borum’s effort at self-employment contained a poten-
tial benefit for Respondent. For, considerably less net back-
pay could have resulted from her self-employment earnings,
had the latter turned out to be greater in amount. In contrast,
there is no indication of how long she would have been un-
able to resume cement mixer truck driving, due to her dis-
ability, after July 14, 1976. Although Respondent argues that
her backpay period should toll from June 4 through July 14,
1976, an issue discussed in section VI, infra, it does not con-
test liability for backpay thereafter, presumably due to the
doctor’s ‘‘release.’’ As a result, it is not disputed that unmiti-
gated backpay liability would have continued for an undeter-
mined period, until Borum again was able to drive a cement
mixer truck, but for her independent efforts to drive another
70 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
type of vehicle, first for Fox Hollow and, then, as a self-em-
ployed individual. Therefore, I conclude that Borum’s back-
pay period should not toll, nor her amount of backpay be di-
minished, because she chose to become self-employed, rather
than wait to resume driving a cement mixer truck for Re-
spondent, once she again was physically able to do so.
Inasmuch as the duration of Borum’s backpay period is
ongoing, it follows, as it did with respect to Hudson and Ja-
worski, that Respondent must make appropriate retroactive
pension contributions on her behalf. In addition, as men-
tioned in section I, supra, the specification alleges that Re-
spondent is obliged to reimburse Borum for certain health
care expenditures from 1986 through 1988. However, Re-
spondent denied being obliged to make such payments to
Borum, in part, because it had no knowledge that she actu-
ally had made those expenditures. No evidence was pre-
sented to show that she had done so. Accordingly, there is
no basis upon which Respondent can be ordered to pay
Borum for asserted expenditures that the record fails to show
that she ever made.
C. Backpay Period for Robert Reilly
The General Counsel contends that Robert Reilly’s back-
pay period terminated on January 10, 1989, when he became
62 years old and had planned to retire. However, Respondent
contends that his backpay period should end either in 1985,
when Reilly was unable to return to work due to an injury,
or after August 1, 1986, when he actually did retire. In re-
sponse, the General Counsel argues that Reilly sustained his
injury while working for Respondent as a cement mixer
truckdriver, a position not substantially equivalent to that of
cement train driver, and that, thereafter, he was forced into
early retirement because he could no longer perform the du-
ties of that position and Respondent offered him no alter-
native employment, even though by that time it was oper-
ating cement trains from Vernon and El Monte.
Reilly had been on vacation when the unlawful relocation
of cement trains to Redlands had occurred. Because his posi-
tion no longer existed when he returned, he bumped into the
position of cement mixer truckdriver. He continuously drove
a mixer until the spring of 1985. After work on April 4,
1985, Reilly experienced pain in his right shoulder. By the
evening of the following day, his shoulder began to hurt so
badly that he scheduled an examination by Dr. Mike My
Lehoang, a physician selected by Respondent, on April 10,
the earliest available date he could obtain. As a result of the
examination, the doctor prescribed treatment with Feldene
and a course of physical therapy during the following 2-week
period. For that 2-week period, Dr. Lehoang recommended
that Reilly be placed on total temporary disability. Neverthe-
less, he attempted to work on April 11 and 12, but continued
to experience pain. Accordingly, Reilly was placed on dis-
ability status and filed an industrial accident report on April
13.
As it turned out, Reilly was off work for almost 2 months.
At Dr. Lehoang’s suggestion, he returned to work as a mixer
driver on June 3. In a letter to CNA Insurance, the doctor
explained that he had recommended that Reilly ‘‘do full
work so that determination can be done as to weather [sic]
he can handle his usual and customary chore[s].’’ Although
Reilly worked through September 25, he continued to experi-
ence shoulder pain and had difficulty lifting chutes. Ulti-
mately, he concluded that he had been returned to work too
soon and went to another doctor. That doctor concluded that
Reilly had a torn rotator cuff and operated to repair it on
September 26, 1985.
Thereafter, Reilly was off work until April 2, 1986. On the
preceding day, his doctor had suggested that he return to as-
certain ‘‘if you can do the work.’’ On returning to work as
a cement mixer driver, Reilly continued to experience pain
when lifting chutes. In fact, he was unable to carry, and to
attach and disattach, them without assistance from someone
else. After performing arthroscopic surgery on the same
shoulder, the doctor concluded, on July 18, 1986, that Reilly
was physically unable to perform the job of cement mixer
driver. There is no evidence that Respondent offered to let
him drive another type of truck. Thus, on July 25, Reilly
took early retirement, effective August 1, 1986, although he
testified that it had not been his plan to retire until he
reached the age of 62, on January 10, 1989. Following his
retirement, Reilly received a monthly early retirement benefit
of $674 from the pension trust.
Initially, Respondent contends that Reilly’s backpay period
should terminate as a result of his physical disability on
April 4, 1985. In so contending, Respondent argues that the
evidence is not sufficient to show that the injury was work
related and, further, that the evidence is not sufficient to sup-
port the conclusion that the rotator cuff surgery had been ne-
cessitated by any injury that Reilly may have incurred during
that month. Alternatively, Respondent contends that the dura-
tion of Reilly’s backpay period should end as of the time that
he actually retired, since he made no effort to obtain employ-
ment from Respondent in any capacity other than driving ce-
ment mixers and, in any event, the Board should not make,
in effect, open-ended disability awards based simply on an
employee’s word.
At no point did Reilly claim that he could say with abso-
lute certainty that his shoulder had been injured while work-
ing on April 4, 1985. He had a history of bursitis and
tendonitis in both shoulders. On the industrial accident re-
port, he wrote that he did ‘‘NOT REMEMBER ANY SPECIFIC IN-
CIDENT THAT OCCURRED THAT CAUSED THE INJURY.’’ How-
ever, when he testified, Reilly explained that he had made
that statement in the report because he had not been, and still
was not, certain of the specific activity that had caused his
injury: ‘‘whether it was pounding, twisting, yanking, any
number of things I did.’’
Nonetheless, both in the report and when he testified,
Reilly described an incident that occurred on April 4, 1985,
stating that he felt that it had caused his injury. While mak-
ing a particular delivery of cement that day, he needed to use
a hammer to pound two cement chutes together, so the ce-
ment could be poured from the mixer. Afterward, he had to
repeat the hammering procedure and, also, had to twist and
pull to get the chutes to disengage from each other. Reilly
testified that he was reasonably certain that his injury had
been caused by something that he had done in the course of
attaching and disattaching the chutes while unloading cement
at that location that day. He credibly testified that he could
think of nothing else that he had done, either on that day or
on the following one, that could have caused his injury.
Respondent has adduced no evidence that would support
an alternative conclusion: that is, that would show that the
injury had been caused by some other activity on April 4 or
71BROWN CO.
5, 1985. In fact, not only is there no evidence that anyone
challenged the work relatedness of Reilly’s injury at the time
of his medical examination, but in his initial report to CNA
Insurance on April 10, 1985, Dr. Lehoang specifically char-
acterized Reilly’s injury as one ‘‘sustained during the course
of his employment.’’ In its brief, Respondent points out that,
‘‘Reilly operated the mixer for almost a decade without inci-
dent.’’ Yet, nowhere is it written that to be characterized as
work related, an injury must occur on the first day of em-
ployment on a job, or shortly thereafter. There is no evidence
showing a correlation between employment length at a par-
ticular job and diminished numbers of work-related injuries.
Consequently, I conclude that a preponderance of the evi-
dence shows that Reilly sustained a work-related injury on
April 4, 1985.
Respondent does not challenge the fact that Reilly was
suffering a torn rotator cuff that required surgery in Sep-
tember 1985. However, it does argue that ‘‘that surgery was
remote in time from the April incident and the tear may well
have been due to other or intervening activity.’’ Yet, Re-
spondent has presented no evidence showing any specific
‘‘other or intervening activity’’ that could have caused
Reilly’s torn rotator cuff. The only possible alternative cause
even remotely suggested by the record was that Reilly may
have torn it while working after June 3, 1985, when he had
returned to mixer truck driving so that Dr. Lehoang could
determine if he could ‘‘handle his usual and customary
chore[s].’’ But, if the tear actually occurred during that pe-
riod, because of the work that he performed, it could not be
characterized as unrelated to performance of mixer truck op-
eration.
When he testified, Reilly stated that Dr. Lehoang initially
had said that the rotator cuff was torn. Respondent contests
that testimony, pointing out that in his letter of April 10,
1985, Dr. Lehoang stated expressly that he diagnosed the in-
jury as ‘‘sprain to the right shoulder, rule out rotator cuff
tear.’’ However, Dr. Lehoang was not called as a witness by
Respondent and, standing alone, the statement does not nec-
essarily demonstrate that he had not made the comment at-
tributed to him by Reilly. Moreover, despite the seeming cer-
tainty of the above-quoted diagnosis, it appears to be contra-
dicted by another statement made by Dr. Lehoang in that
very letter. Thus, in the ‘‘DISCUSSION’’ section of the letter,
he explains that although he ‘‘believe[d] that [Reilly] sus-
tained a sprain to the right shoulder with the possibility of
a reoccurrent bursitis in his shoulder,’’ he continues on to
state that, ‘‘because of the weakness of abduction against re-
sistance, the possibility of a tear of the rotator cuff should
be borne in mind. This will then be a new injury on April
4, 1985.’’ (Emphasis added.) In sum, a preponderance of the
evidence shows that Reilly’s torn rotator cuff had been work
related, regardless of whether it actually occurred on April
4, 1985, or whether it occurred because of aggravation while
working between June and September 1985, when he had
been returned to work so that Dr. Lehoang could ascertain
whether Reilly could ‘‘handle his usual and customary
chore[s].’’
In its brief, Respondent appears to contend that it cannot
be said that Reilly’s injury would not have occurred even
had he been driving a cement train in April 1985. True, Dr.
Lehoang’s reports do indicate that Reilly may have been dis-
posed to an eventual rotator cuff tear due to a ‘‘weakness of
abduction against resistance.’’ Yet, Respondent has not
shown with particularity that duties involved in driving a ce-
ment train likely could have led to a torn rotator cuff. In
contrast, the evidence is not disputed that vigorous arm
movement occurs in connection with operating cement mixer
trucks, especially when pounding and twisting to assemble
and disassemble chutes. Similar arm movements are not re-
quired of cement train drivers, at lease so far as the record
discloses. And, so far as the evidence shows, it had been
those very types of activity that led to Reilly’s torn rotator
cuff. Consequently, there is insufficient evidence to show
that he likely would have suffered a rotator cuff tear had he
been operating a cement train, instead of a mixer truck, on
April 4, 1985.
Neither is Respondent helped by its argument that Reilly
should have sought alternative employment with Respondent
once he ascertained that his injury prevented him from oper-
ating a mixer truck. In the final analysis, this is but a modi-
fied version of the rejected argument that wrongfully dis-
charged employees should be compelled to ‘‘come back, hat
in hand, and seek favorable consideration as possible em-
ployees if the employer [who discharged them should choose
to invite them to reapply for work].’’ Hydro-Dredge Acces-
sory Co., 215 NLRB 138, 139 (1974). It is Respondent who
carried the burden of taking the initiative concerning Reilly’s
reinstatement. As the victim of Respondent’s unfair labor
practice, he was under no obligation to make overtures to
Respondent about possible alternative employment.
Especially is this true in the context of this case. During
1985 and 1986, Respondent was operating cement trains in
Vernon and El Monte. Accordingly, there was alternative
employment that could have been offered to Reilly had Re-
spondent chosen to do so. Further, by doing so, Respondent
could have resolved whatever doubts it now claims to harbor
regarding Reilly’s willingness to continue working. As the
events of 1985 and 1986 demonstrate, Reilly continued to try
to report for work. But he was continually assigned to ce-
ment mixer driving. Consequently, Respondent cannot dis-
regard its own responsibility, as the party in control of the
work, by trying to shift the burden to Reilly with regard to
possible alternative employment to cement mixer driving.
As set forth above, Reilly testified that he had intended to
retire when he reached the age of 62, on January 10, 1989.
As a result, the General Counsel concedes that his backpay
period ends on that date. However, also as set forth above,
the General Counsel contends that Reilly should receive
backpay to that date, because he had been unable to continue
driving a cement mixer truck after July 1986. While noting
in its brief that, following his injury, Reilly ‘‘abandoned any
effort at further employment in any capacity,’’ Respondent
does not contend that Reilly’s backpay should be reduced for
lack of effort to diligently seek interim employment after
July 1986. Nor did Respondent even attempt to elicit evi-
dence in connection with such a contention. Instead, it as-
serts that ‘‘Respondent should not bear the burden of back-
pay for such an extended period, terminable only upon a date
that the employee selects as the date he would have retired
in any event.’’
To support that argument, Respondent contends that
Reilly’s ‘‘disability has persisted since April 1985, for more
than four years.’’ However, in making that particular conten-
tion, Respondent somewhat overstates the duration of
72 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Nor is the backpay period shortened by anything found in
Canova Moving & Storage Co., 261 NLRB 639 (1982), enfd. 708
F.2d 1498 (9th Cir. 1983). In that case, the claimant was found ‘‘to
be physically unable to resume employment in his former capacity.’’
(261 NLRB at fn. 3.) Here, no evidence was adduced concerning
whether Reilly’s torn rotator cuff would have prevented him from
resuming work as a cement train driver and, as found above, Re-
spondent never offered him the opportunity to try to do so.
Reilly’s actual period of disability retirement. As set forth
above, Reilly returned to—and Respondent accepted him
back for—work 2 months after the injury had occurred.
Thereafter, he worked, apparently continuously, for almost 4
months before again going on leave for surgery. However,
there is no evidence that Respondent regarded Reilly’s em-
ployment to be terminated because of that absence. So far as
the evidence discloses, it freely allowed him to resume work-
ing on April 2, 1986, without treating him as a new em-
ployee. Moreover, while he apparently was again on leave
after that date, due to inability to perform the nondriving du-
ties of a cement mixer truck operator, Respondent did not re-
gard his employment as having terminated. Rather, so far as
the record discloses, it continued to regard him as its em-
ployee until he chose to retire. Consequently, while the ef-
fects of Reilly’s injury lasted from April 1985, the injury
was not regarded by either Reilly or Respondent as totally
disabling, at lease insofar as cement mixer truck driving was
concerned, until August 1, 1986.
Of course, that still means that, under the General Coun-
sel’s theory, Respondent’s backpay liability continued to ac-
crue for 2 years and 5 months following his retirement. Yet,
contrary to Respondent’s argument, there is no case holding
that the Act, or other general principles, precludes a backpay
award because a period of that length is too prolonged. In
its brief, Respondent points out that the Board has observed
that it ‘‘do[es] not know that [it] should be in the business
of making open-ended awards for disability in the manner of
a court in a civil tort action.’’ (Citation omitted.) Greyhound
Taxi Co., 274 NLRB 459, 459 (1985). However, the Board
did not hold in that case that the over 5-year backpay period
was an unduly long one. Rather, it concluded that the evi-
dence did not sufficiently support the alleged connection be-
tween the disability and the unfair labor practice. Signifi-
cantly, that conclusion was rejected on appeal and, in doing
so, the circuit court voiced no reservation about the length
of the backpay period resulting from its reversal of the
Board’s Supplemental Decision and Order. Wakefield v.
NLRB, 779 F.2d 1437 (9th Cir. 1986).
Indeed, several years earlier, the Board did not balk at a
backpay order requiring ongoing backpay for an injury.
Graves Trucking, 246 NLRB 344 (1979). In that case, the
circuit court did object to the Board’s remedy. However, its
objection was based less on the duration of the backpay pe-
riod than on the fact that it was an open-ended one. Graves
Trucking v. NLRB, 692 F.2d 470, 476–477 (7th Cir. 1982):
An open-ended award of that type goes about as far as
possible in supplanting the loss of earnings portion of
a tort recovery. More significantly, we think, it con-
templates determination from time to time in compli-
ance hearings of questions of the continued existence of
disability and its cause and extent. Such questions may
well be difficult and are outside the scope of those usu-
ally dealt with by the Board. The open-ended character
of the remedy exacerbates all the problems of limited
expertise to which the Board has referred in union vio-
lence decisions.
However, having said that, the court selected a period of 2
years as its alternative backpay period for the disability.
Since that is only a few months short of the period between
Reilly’s actual and projected retirement, and inasmuch as it
does not create a backpay period that is open-ended, there
is no problem in this case similar to that which confronted
the court in Graves.6
Of course, that case involved a situation where the injury
resulted from the respondent’s unfair labor practice, as op-
posed to occurring during interim employment which, in ef-
fect, is the situation here. Yet, that fact does not serve to
shorten the backpay period alleged in the specification. A re-
spondent is liable for backpay during a period of absence
caused by injury at interim employment, if that injury likely
would not have occurred performing the job of which the
claimant was deprived unlawfully. See Colorado Forge
Corp., 285 NLRB 530, 543 (1987). As concluded above,
there is no evidence that duties performed in connection with
cement train driving likely would have caused Reilly to en-
gage in the type of vigorous arm activities that led to his torn
rotator cuff while operating a cement mixer truck. Con-
sequently, Respondent remained responsible for backpay dur-
ing the period of absence from work caused by that injury.
In view of the foregoing conclusions, Reilly is entitled to
backpay for a period ending on January 10, 1989. Moreover,
like Hudson, Jaworski, and Borum, he is entitled to have ret-
roactive pension contributions made on his behalf by Re-
spondent. In that connection, Respondent argues that since
Reilly has received $674 per month in early retirement bene-
fits since August 1986, those amounts should be added to his
interim earnings for the period during which they were re-
ceived. The General Counsel argues that Reilly will have to
reimburse the pension fund for amounts received during
months for which Reilly ultimately receives backpay. While
an effort was made to provide evidence about that subject,
that evidence was ambiguous at best. The current pension
fund’s manager for the pension department testified ulti-
mately that, ‘‘My feeling is that [Reilly] would have to pay
them back . . . but I would likely present this type of a sce-
nario to the Benefits Review Committee . . . because it is
an aberrant situation.’’ Such a course now becomes ripe for
pursuit, because I am ordering that backpay be paid to Reilly
through January 10, 1989.
In the interest of making an accurate determination—one
that neither unjustly enriches Reilly by allowing him to re-
tain the retirement payment that he has received, as well as
duplicating backpay, nor one that deprives him of backpay
covering amounts that he must return to the pension fund—
I shall follow a procedure similar to the one that I utilized
in Colorado Forge Corp., supra, 285 NLRB at 544. That is,
I shall direct that Respondent make payment of the full
amount of net backpay for the period through January 10,
1989. However, until the benefits review committee makes
its determination, as to whether or not Reilly must return
payments made for months covered by the backpay period,
the Regional Director will withhold the amount equal to that
which was paid to Reilly as pension benefits through January
73BROWN CO.
7 The record in this regard is somewhat muddied by injection of
the city of Irwindale into the pleadings. In its answer to the speci-
fication, Respondent alleged that it had ‘‘transferred the cement
trains back into . . . Local 420’s geographic jurisdiction (at
Irwindale, California).’’ Of course the Board directed retransfer back
to Local 420’s geographic jurisdiction, but at Vernon and El Monte.
Thus, facially, a transfer to Irwindale, even if in Local 420’s geo-
graphic jurisdiction, would not satisfy the retransfer portion of the
Order.
However, in his brief, the General Counsel, in effect, conceded
that the retransfer had been made to the proper locations: ‘‘The ce-
ment trains were still operating out of Respondent’s Vernon and El
Monte locations . . . on February 28, 1986.’’ Moreover, while ques-
tioning claimant Reilly, Charging Party’s counsel referred to ‘‘the
Irwindale/El Monte location[.]’’ In fact, in describing his own oper-
ation of a cement train prior to 1976, Reilly first testified that, ‘‘The
cement train was based at the Irwindale plant,’’ and later testified
that he had been ‘‘based at the Vernon plant.’’ Consequently, in the
context of Respondent’s operations, references to Irwindale appear to
be no more than an interchangeable reference to the El Monte loca-
tion.
10, 1989. That amount will be returned to Respondent if the
benefits review committee determines that Reilly need not
repay the pension benefits, but will be paid over to Reilly
if the committee reaches a contrary conclusion. If there is a
dispute concerning this aspect of this case, the money will
be placed into escrow and a further supplemental compliance
proceeding can be conducted with regard to it.
IV. SEGMENTATION OF THE BACKPAY PERIOD
According to the specification, ‘‘since quarterly records on
backpay are not available,’’ apparently due to the unusual
lapse of time since commission of the unfair labor practices,
backpay cannot be calculated by means of the conventional
calendar quarter method specified in F. W. Woolworth Co.,
90 NLRB 289 (1950). No one quarrels with that proposition
regarding calendar quarters. As of the close of the hearing,
there was no dispute about substituting a calendar year meth-
od for determining net backpay.
After the hearing had closed, however, Respondent moved
to withdraw from its stipulation concerning the accuracy of
net backpay amounts. That motion was based on Respond-
ent’s argument that posthearing research disclosed that where
unfair labor practices involve repudiation and failure to apply
terms of collective-bargaining contracts, the Board does not
apply the Woolworth method of segmenting the backpay pe-
riod. Instead, only a single, overall backpay period exists in
those situations. Because the underlying unfair labor prac-
tices here arose from a partial repudiation of the blue-book
contract, Respondent contends that the backpay period should
not be segmented, but rather should commence on January
1, 1976, carrying through, without segmentation, until it con-
cludes for each particular claimant.
To support its contention, Respondent cites Ogle Protec-
tion Service, 183 NLRB 682 (1970). However, that case is
not so expansive as Respondent would have it be read. It is
true that the Board held that it would be unfair to apply the
Woolworth formula to cases where there had been a repudi-
ation and failure to honor the terms of a collective-bargaining
contract. But, the Board specifically confined application of
that holding to situations that did ‘‘not involve cessation of
employment status or interim earnings that would in the
course of time reduce backpay.’’ (183 NLRB at 683.) That
limitation of the Ogle doctrine has been repeated by the
Board in subsequent cases. See, e.g., Catholic Medical Cen-
ter of Brooklyn, 236 NLRB 497 fn. 1 (1978).
In this case, because there was a cessation of employment
and interim earnings caused by the unfair labor practices,
Ogle Protection provides no basis for disregarding applica-
tion of the Woolworth method of calculating backpay, albeit
on a calendar year, rather than quarter, basis. Therefore, I
deny Respondent’s motion, inasmuch as it is based solely on
a misapplication of the Ogle remedial doctrine, and since the
motion advances no other basis for seeking to withdraw from
the stipulations.
V. THE MULTIPLIER
The issue that draws the most attention, and one that ap-
pears latently to underlie others, is whether gross backpay
should be calculated using blue-book or for-hire contract
rates. To support its contention that the latter supplies the
correct multiplier, Respondent makes essentially a two-
pronged argument. First, it points out that the cease-and-de-
sist portion of the Board’s Order is confined to the ‘‘current
collective-bargaining agreement with . . . Local 420.’’ Sec-
ond, the unfair labor practices were based on a violation of
Section 8(a)(5) of the Act and, emphasizes Respondent,
therefore were rooted in a refusal to bargain. Thereafter, Re-
spondent secured Local 420’s consent to application of for-
hire contract terms to Vernon and El Monte cement train op-
erations. Accordingly, concludes this argument, since Re-
spondent later did comply with its statutory bargaining obli-
gation, the Board must respect the bargain that it struck with
Local 420 as a result of doing so. However, there is a major
problem with consideration of this argument at this stage of
this proceeding.
The cease-and-desist provision has no application to the
issue presented here. As pointed out in section II, supra, it
is confined to a situation where Respondent later sells and
transfers cement trains to L-T Transport, Inc. at Redlands,
and discontinues cement hauling operations at Vernon and El
Monte, after the vehicles first have been returned to those
two locations. Regardless of how the phrase ‘‘its current col-
lective-bargaining agreement’’ should be interpreted—and
relatively considerable argument is directed to that ques-
tion—it has no more application to the multiplier issue than
it does to the restoration issue.
The crucial issue here is whether or not the Board’s Order
contemplates application of blue-book contract terms to re-
transferred operations during the backpay period. In this re-
spect, the terms of the Order are neutral. They neither spe-
cifically require, nor specifically preclude, application of that
contract’s terms. Nonetheless, that very issue was encom-
passed by an argument addressed to the Board and, later, to
the circuit court. As a result, it appears to be one that already
has been litigated and resolved.
By the time the Board’s Supplemental Decision and Order
issued, Respondent already had retransferred the cement
trains back to Vernon and El Monte.7 That occurred after
Respondent had secured Local 420’s consent, in October
1977, to apply for-hire contract terms to cement trains oper-
ated from those two locations. And it occurred even though
during the previous month, Respondent had executed a suc-
cessor blue-book contract with Local 420. However, as noted
74 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 Reliance on briefs to ascertain an administrative agency’s posi-
tion is neither improper nor unprecedented. See discussion Service
Employees Local 535 (North Bay Center), 287 NLRB 1223 at 1226
fn. 7 (1988).
supra, Respondent did not offer reinstatement to any of the
12 claimants, but instead transferred the Redlands cement
train drivers along with their vehicles to Vernon and El
Monte. Thereafter, Respondent and Local 420 negotiated and
executed successive blue-book contracts on June 1, 1979;
June 1, 1982; March 26, 1984; and, March 30, 1987, with
the latter being effective through April 1, 1990. Local 420
also negotiated and executed successive for-hire contracts
with Respondent on March 1, 1980; July 1, 1982; and, July
1, 1985, with the latter being effective through June 30,
1988, by which time Respondent had ceased cement hauling
operations altogether, as described in section II, supra. De-
spite the continued existence of blue-book contracts, Local
420 agreed that for-hire contract terms could be applied to
Vernon- and El Monte-based cement train drivers.
Based on those events, after issuance of the Supplemental
Decision and Order, Respondent filed with the Board a mo-
tion for reconsideration and/or reopening of the record. In
that motion, and its accompanying declaration, Respondent
advised the Board that for 9 years it had been a party to for-
hire contracts with Local 420 and that requiring resumption
of operations under blue-book contracts would,
apparently require Respondent to breach existing—and
longstanding—agreements with Teamsters Local 420.
Since it is supposedly the bargaining duty owing to
Teamsters Local 420 that Respondent has breached, the
remedy must take into account the subsequent bar-
gaining that has occurred. Any other remedy would be
punitive and disruptive of established conditions.
The General Counsel’s opposition to that motion dispels
any doubt that the Board was on notice of, and considered,
the issue of nullifying application of for-hire contracts, re-
placing their terms with blue-book ones, during the period
prior to retransfer of operations and reinstatement of the
claimants—in other words, until Respondent had satisfied all
terms of the affirmative portion of the Order. For, in that op-
position, the General Counsel stated explicitly that abrogation
of for-hire contracts was required, and warranted, by the re-
medial order:
Therefore, by abrogating Respondent’s For Hire Agree-
ment with Local 420, it would not as Respondent
claims be breaching its agreement with [Local 420] but
rather reestablishing the ‘‘status quo ante’’ which ex-
isted prior to Respondent’s unlawful conduct and which
might have still existed but for their conduct.
Through its deputy executive secretary, the Board denied the
motion on September 2, 1986, because, in part, ‘‘it contains
nothing not previously considered by the Board.’’
Respondent renewed that same contention on review to the
Ninth Circuit. Its brief makes the identical, above-quoted, ar-
gument. In opposing it, the Board urged specifically in its
brief that, ‘‘none of the cases cited [by Respondent] involved
a situation in which the employer abrogated a binding con-
tract in midterm and thereafter succeeded in negotiating an
agreement on behalf of other employees,’’ and, further, that
there was no merit to the contention ‘‘that Local 420’s ac-
ceptance of the for-hire agreement constitutes a ‘waiver’ of
restoration as a remedy.’’ The court left undisturbed the re-
transfer and reinstatement order, including the appropriate
collective-bargaining contract contemplated by it.
In sum, from the arguments made in connection with Re-
spondent’s postsupplemental decision and in the briefs to the
circuit court,8 it is clear that Respondent understood that the
Board’s Order required replacement of for-hire with blue-
book contract terms with respect to the backpay portion of
the Order. In fact, a contrary conclusion would not be logical
in the circumstances of this case. Although Local 420 had
been agreeable initially in 1975 to that substitution, when the
cement train drivers objected, so too did Local 420. After the
unlawful relocation, and while the cement trains still were
being operated from Redlands, Local 420 did agree that for-
hire contract terms could be applied to cement trains oper-
ated from Vernon and El Monte. However, the only evidence
adduced concerning the circumstances in which that agree-
ment had been reached was the testimony of Oliver Traweek,
Local 420’s secretary-treasurer. He testified that he had made
that agreement in 1976, ‘‘Because they weren’t using any ce-
ment trains at that time under the blue book in our jurisdic-
tion.’’ That explanation is a logical one. It was not contra-
dicted by any other evidence. Accordingly, it had been the
effects of its unfair labor practices that had allowed Respond-
ent to obtain Local 420’s agreement to the substitution of
contract.
Respondent points to the uncontradicted fact that Local
420 never demanded reinclusion of Vernon and El Monte ce-
ment train drivers under the blue-book contract following the
retransfer. Rather, Local 420 continued to execute successive
for-hire contracts on behalf of those drivers. Yet, along with
the cement trains, Respondent moved the Redlands drivers to
Vernon and El Monte in 1977. None of the claimants, who
had driven those vehicles prior to 1976, were offered rein-
statement to drive them, even though many of them were
working for Respondent in other capacities. Of course, the
Redlands drivers had been willing, so far as the evidence dis-
closes, to drive cement trains from Vernon and El Monte
under for-hire contract terms. After all, they had been doing
so during the immediately preceding period, when the ce-
ment trains were stationed at Redlands. In contrast, Respond-
ent, who bears the burden of mitigating backpay, has failed
to show that, had they been reinstated, claimants would have
felt differently about driving under for-hire contracts than
they had prior to the relocation. Certainly, nothing in the
record suggests a reason, other than the possibility of re-
peated unfair labor practices, that logically would have led
any of them to change his/her opposition to discontinuing
coverage under the blue-book contract.
Nor is there any basis for concluding that Local 420 would
have ceased to support the claimants in that regard. To the
contrary, Traweek testified that he would not have agreed in
1977 to application of the for-hire contract to Vernon and El
Monte cement train drivers had the 12 claimants still been
employed at those locations. No other evidence has been pro-
duced that would provide a basis for inferring that Local 420
later would have abandoned the claimants’ desires and sud-
denly agreed that they had to work from Vernon and El
75BROWN CO.
9 Actually, she had to purchase a second one, after the first one
had been stolen on December 1, 1977.
Monte under for-hire contracts. Of perhaps equal signifi-
cance, there is no evidence showing that Respondent would
have insisted to the point of impasse on such a change dur-
ing negotiations that occurred after 1976.
In sum, in the circumstances, it appears that the Board’s
Order contemplates application of blue-book contract terms
to reinstated cement train drivers. It follows that blue-book
rates should be utilized as the multiplier for backpay owed
to claimants until that reinstatement obligation is satisfied.
That conclusion is supported by the history of the litigation
in this proceeding, as well as by the absence of evidence that
would support a conclusion that, had the claimants been rein-
stated, there would have been agreement to substitute for-hire
contracts for blue-book contracts.
For 9 of the 10 claimants still involved in this proceeding
that conclusion, in conjunction with the ones reached in pre-
vious sections, resolves all further dispute concerning their
net backpay, since the parties have stipulated to the accuracy
of the computations in the appendices to the specification. It
also resolves the accuracy of the hourly rate to be utilized
for calculating retirement fund contributions and the amounts
of contributions to be made on behalf of Hudson, Jaworski,
and Reilly.
VI. NET BACKPAY FOR KRIS BORUM
Left for consideration are the particularized contentions
pertaining to Kris Borum’s backpay. Two of them are based
on events during 1976. First, as noted in section III, supra,
Respondent contends that Borum’s backpay should toll from
the date her shoulder was injured by the falling chute until
June 14, 1976. Second, Respondent contends that her con-
ceded interim earnings of $1572 for that year have been un-
derstated. The evidence, however, does not support either of
these arguments.
Borum had been laid off by Respondent on December 31,
1975, and was recalled as a cement mixer driver by letter
dated May 13, 1976. Respondent did not contend that she
earned any income during that 4-1/2-month period and there
is no evidence showing that she did so. From May until June
4, 1976, when she was injured, she worked steadily as a
mixer driver. So far as the evidence shows, her earnings for
that work have been taken into account in the specification.
At least, Respondent has not shown, nor argued, to the con-
trary. From June 4 through July 31, 1976, she was off work
due to her shoulder injury, as discussed in section III, supra.
While she earned $276.18 for driving the single haul for Fox
Hollow at some point, Respondent has not argued that that
amount has not been taken into account in determining her
interim earnings. On August 1, 1976, she purchased her trac-
tor and commenced self-employment as an owner-operator.
The contention that Borum’s backpay should toll from the
date of her injury until July 14 is apparently based on the
lack of a doctor’s excuse for that period. However, as set
forth in section III, supra, a preponderance of the evidence
shows that her injury was work related. Further, she was
treated initially by medical personnel selected by Respond-
ent. More importantly, there is no evidence either that Re-
spondent had requested a doctor’s statement for the pre-July
14 period or, given her injury, that Borum could not have
supplied one, had it been requested. Indeed, there is an inher-
ent inconsistency between tolling backpay for the period im-
mediately following a work-related accident, but then not
doing so for a later period of absence caused by that same
accident. Accordingly, the record will not support the conclu-
sion that Borum’s backpay should toll from June 4 until July
14, 1976.
The principal dispute pertaining to Borum’s 1976 backpay,
as well as for the succeeding 2 years, centers on her earnings
while self-employed. She filed no income tax returns for
1976 through 1979 and her records for that period of self-
employment were lost when her truck had been repossessed.
Borum was unable to recall what loads she had hauled in
1976 while self-employed. She acknowledged that she
‘‘could’’ have earned more than $1572 during 1976. But she
also testified that her reference to ‘‘earnings’’ meant the
gross revenues she derived from self-employment as an
owner-operator and that 90 percent of those earnings were al-
located to her expenses of operating. ‘‘Only the net profits
from self-employment ought to be included in interim earn-
ings.’’ California Dental Care, 281 NLRB 578, 582 (1986).
See also Boilermakers Local 27 (Daniel Construction), 271
NLRB 1038, 1041 (1984). Consequently, even if Borum
‘‘could’’ have earned more from self-employment during
1976, that would not establish that her interim earnings for
that year were so great that more than $1572 should be de-
ducted from gross backpay.
Aside from the fact that only net income from self-em-
ployment is allocated to interim earnings, there are several
personal aspects of Borum’s situation that must be consid-
ered in connection with her ability to support herself and two
children on seemingly low interim earnings. When Respond-
ent laid her off, she had approximately $10,000 in a savings
account and owned 3 houses and 17 horses. Ultimately, to
support herself and her two children, she exhausted her sav-
ings and sold her houses and horses, one by one. She also
used her jewelry to pay someone to care for her children dur-
ing a period when she was on the road making a haul. In
addition, she borrowed $1800 from her mother, close to
$3000 from her father, and another $1800 to $2000 from a
finance company. Eventually, she and her children were re-
duced to having to live in the tractor before it was repos-
sessed. As a result of these events, it is not implausible that
Borum and her children could have survived during 1976
through 1979 on interim earnings that were so low.
According to the specification, she had no interim earnings
for 1977. Whatever income she received during that year was
derived from her self-employment. Even before she testified
about the existence of the case of records in her father’s ga-
rage, Borum freely acknowledged having earned more than
$1572 in 1977, although she was unable to estimate how
much more. Nor was she able to estimate the number of
loads she had hauled during that year. The records from the
case confirmed he acknowledgement of earnings in excess of
$1572. Check stubs showed that she had received a total of
$3130 from Calavo Growers for hauls.
However, from the revenues that she earned, Borum had
to pay the expenses of operating her tractor, as well as a re-
frigerated trailer which she purchased at some point.9 Thus,
she had to pay principal and interest for the equipment and
she had to pay for fuel, maintenance, repairs, and several dif-
ferent types of insurance. In short, there is no evidence that
76 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
10 Ultimately, a settlement was achieved in that case. However,
there is no contention, and no evidence to support one had it been
made, that any portion of the amount received by Borum had been
allocated specifically to lost earnings.
the revenues received by her from self-employment during
1977 had exceeded her costs of operation. Moreover, it was
during this particular year that she had begun selling houses
to pay personal expenses. It also was during 1977 that she
used her jewelry for child care payments. In the cir-
cumstances, there is no objective basis for challenging the
specification’s computation of zero interim earnings for
1977.
The events of 1978 cannot be considered without some re-
gard for what occurred during the first 2 months of the fol-
lowing year. As mentioned in section III, supra, in February
1979 Borum’s tractor was repossessed from a location where
it had been undergoing repairs since December 1978. In con-
nection with her subsequently suit for wrongful repossession
and conversion, she claimed that she lost net monthly income
of $4800.10 That estimate was based on Borum’s self-em-
ployment earnings prior to the tractor’s breakdown in De-
cember 1978. However, the specification’s appendix for her,
as amended after close of the hearing, recites only $9600 as
the amount of Borum’s interim earnings for 1978. Respond-
ent contends that this amount is understated.
Borum testified that the amount stated as monthly net
earnings in her lawsuit had been based on what she would
have earned under a steady hauling arrangement with Holly
Farms. However, she testified that the arrangement had not
existed until around October 1, 1978. Prior to then, she testi-
fied, she never had received even approximately the monthly
amount of money from self-employment that she would be
receiving from Holly Farms. In fact, the only specific evi-
dence of any other revenue received by her during 1978 was
$560 earned in May for hauling a single load for Produce
West—representing the amount that remained from the gross
amount of $2400 after deduction of advances to cover oper-
ating expenses and a late charge.
Of course, steady hauling for Holly Farms during the final
3 months of 1978 would have generated more net income
than the $9600 interim earnings acknowledged by the Gen-
eral Counsel for that year. But, in fact, due to tractor break-
downs, Borum hauled steadily only during the month of Oc-
tober. Because the tractor was being repaired, she hauled
only for approximately 3 weeks and 1 or 2 days in Novem-
ber and, due to another breakdown, for only about 1-1/2
weeks in December. Thus, apparently the General Counsel
calculated her interim earnings for 1978 by adding the No-
vember and December weeks of actual operation together,
treating them as a single month, and, then, adding that con-
structive month to the month of October to derive an overall
interim earnings figure of $9600.
Respondent might well argue that another week should be
added to Borum’s interim earnings in the final quarter of
1978, to account for the 1 or 2 extra days work in November
and the one-half week extra hauling in December. It might
also be argued that the General Counsel failed to include in
interim earnings the $560 received from Produce West ear-
lier that same year. Yet, in the context of this case, those ar-
guments fail. For, as discussed in section IV, supra, the par-
ties agreed that backpay periods need not be segmented into
calendar quarters. Rather, they are segmented into calendar
years. Consequently, in calculating Borum’s interim earnings
for 1978, the entire year must be taken into account. As a
result, all self-employment expenses for 1978 must be de-
ducted from all her income for that year to derive her interim
earnings for 1978. There is no showing that the General
Counsel did not do so. Viewed from that perspective, the
record does not establish that Borum’s net income from self-
employment during 1978 exceeded $9600.
As was true of 1978 and 1979, there is a degree of overlap
from 1979 into 1980. A few days after repossession of her
trailer in February 1979, Borum suffered a nervous break-
down that rendered her unavailable for employment. More-
over, she testified generally that, following her breakdown,
she had been unable to stay at any job and that this problem
had not truly been corrected until she began working for
North Line Bus. Her employment there commenced during
the final calendar year 1980. Respondent contends that her
backpay period should toll from February 1979 to October
1980, to reflect her admitted period of unemployability. The
Charging Party contends the backpay period should toll for
only a few months after her breakdown, although no specific
period is suggested. However, the General Counsel has
amended the appendix for Borum ‘‘to reflect the 8 months
[she] did not actively seek employment [in 1978].’’
Despite Borum’s general estimate of her period of inca-
pacity, the evidence shows that she did seek and obtain em-
ployment during 1979. In fact, she identified four specific
employees for whom she had worked during that year: Mis-
sion Petroleum, Custom Ready-Mix, Holiday Inn Airport,
and Blue Marlin Restaurant. Further, there is no evidence
that she either quit or had been fired by any of those em-
ployers. To the contrary, in interrogatories filed on June 4,
1980, in connection with her lawsuit stemming from repos-
session of her tractor, Borum answered that she then was
employed by Blue Marlin Restaurant and had been working
there for 9 months. Moreover, the General Counsel acknowl-
edges that Borum received $4144 as interim earnings during
1979. Since she did not earn any revenue from self-employ-
ment, because her tractor had been undergoing repairs from
the beginning of the year until it was repossessed, those
earnings could only have been received during the latter part
of 1979, after she again had begun seeking employment fol-
lowing convalescence from her breakdown. Therefore, de-
spite her generalized testimonial estimate about the duration
of the effects of her nervous breakdown on her availability
for interim employment, a preponderance of the specific evi-
dence shows that she did seek employment during latter
1979 and had been gainfully employed during that period.
There is no basis in the record for extending the tolling of
her backpay period beyond the 8-month period that the Gen-
eral Counsel conceded it should be tolled.
For 1980, the specification recites that Borum’s interim
earnings were $1889. While, as set forth above, she had
worked for Blue Marlin Restaurant for the entire first part of
the year until, at least, June, she testified that she had been
paid only tips for that work. Thus, it is perhaps not sur-
prising that her earnings for that period would not have been
lavish. According to social security records, she earned
$1,115.10 working as a cleaning lady for North Line Bus
during the last calendar quarter of that year. In addition, she
testified that during that year, possibly between working at
77BROWN CO.
11 Borum was absent from work for 3 weeks during 1983 due to
outpatient surgery for carpel tunnel syndrome of both hands. Her ap-
pendix to the specification deducts 3 weeks’ regular and overtime
hours from her gross backpay for that period of unavailability for
employment.
12 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended 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 purposes.
Blue Marlin and for North Line, she had worked again brief-
ly for Holiday Inn Airport and, also, for Grain Transport,
driving a bottom dump to haul grain from rice fields, for ap-
proximately 2 weeks to 1 month. Given the amount of her
North Line Bus earnings, it would seem that she could have
earned more at interim employment than the General Coun-
sel concedes. Yet, she did file an income tax return for 1980
and her social security records for her work at Grain Trans-
port were referred to when she was questioned during the
hearing. Respondent did not claim lack of access to either of
these records. However, it adduced no evidence of interim
earnings for 1980 greater than the amount recited by the
specification. Therefore, there is no basis in the record for
concluding that Borum’s interim earnings exceeded $1889
during calendar year 1980.
Borum continued working for North Line Bus until June
1981, when she began working as a bus driver for Kerrville
Bus Company in Texas. She worked for the latter for the re-
mainder of the backpay period covered by the specification.
No dispute occurred concerning her interim earnings figure
for 1981, nor did one arise concerning her interim earnings
figures recited in the appendix for 1982 through 1984.11
During 1985, Borum continued driving a bus for Kerrville
until September 3, when two vertebrae were broken in her
neck, requiring fusion surgery. She was unable to work from
that date until late April 1988, when she resumed working
as a driver for Kerrville. It is uncontroverted that her only
income during that approximately 2-1/2 year period had been
derived from workmen’s compensation. The General Counsel
has deducted that amount as interim earnings for 1985
through April 1988, as required when such payments are a
substitute for lost wages. See Canova Moving & Storage Co.,
261 NLRB 639, 640 (1982), enfd. 708 F.2d 1498 (9th Cir.
1983).
Respondent, however, argues that Borum’s backpay period
should toll altogether for that entire period, arguing that it
has not been shown that her injury had been caused by a par-
ticular factor that made bus driving more difficult than ce-
ment train driving and, further, that the General Counsel has
failed ‘‘to show that any interim employment is ‘so unusual
or so dissimilar’ that an injury would not have occurred but
for the Respondent’s violation of the Act,’’ citing City Dis-
posal Systems, 290 NLRB 413 fn. 2 (1988). However, that
argument misconstrues what is required in this type of situa-
tion. The question is not whether the interim employment,
per se, is more difficult than the job of which the claimant
was deprived unlawfully. Rather, the issue is whether the in-
jury would ‘‘[likely have occurred] if working for respond-
ent.’’ Central Freight Lines, 266 NLRB 182 at 184 fn. 13
(1983). See also Colorado Forge Corp., supra, 285 NLRB at
27–28.
Borum testified that she had been injured by pulling on a
handle in an effort to open the manually operated bus door.
Moreover, she testified that nothing involved in driving a ce-
ment train would have required her to engage in that type
of activity and to sustain that type of injury. No evidence
was presented to refute that testimony. Therefore, I conclude
that the backpay period of Borum should not be tolled during
the period that she was incapacitated by the injury caused by
trying to pull open the bus door.
No dispute is raised concerning the amounts of interim
earnings recited by the General Counsel for the remainder of
1988 and for January 1989. Respondent does contend that
the record shows that Borum suffered an injury on March 13,
1989, and argues that ‘‘this injury should toll further accrual
of backpay.’’ However, this event occurred outside the, in ef-
fect, agreed-on cutoff date for the overall backpay period.
Consequently, I make no finding concerning its effects, if
any, on Borum’s right to further backpay.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended12
ORDER
It is ordered that the Respondent, Brown Company; Brown
Company, Livingston-Graham Division; Brown Company,
Tri-City Concrete Division; L-T Transport, Inc. and succes-
sors with liability Gulf & Western Industries, Inc., Living-
ston-Graham Inc. Division; Symons Corporation, Livingston-
Graham Inc. Division; Riverside Cement Company, Living-
ston-Graham Inc., Division, Vernon and El Monte, Cali-
fornia, its officers, agents, successors, and assigns, shall
1. Pay $43,390 to Louis Bering, $252,236 to Kris Borum,
$36,016 to William Cannon, $2493 to Anthony Giangrece,
$9916 to Clarence Hudson, $20,450 to James Jaworski,
$96,136 to Harry Potts, $166,027 to Robert Reilly, $51,941
to Carmen Rosselli, and $100,566 to James Wilson, with in-
terest accrued to the date of payment in accordance with
standard Board formula as required by the Board in its Sup-
plemental Decision and Order issued February 28, 1986, and
with backpay obligations to all claimants reserved for future
determination for all periods after January 31, 1989. The Re-
gional Director for Region 21 shall withhold from payment
to Robert Reilly, and hold in an escrow account if necessary,
an amount equal to total retirement benefits paid monthly to
him from August 1986 through January 1989. That amount
shall be paid to Reilly if it is determined that he must repay
the pension benefits that he received during that period, but
shall be returned to Respondent if it is determined that Reilly
does not have to repay those benefits.
2. Pay to Western Conference of Teamsters Pension Trust
retroactive contributions in the amounts of $52,275 on behalf
of Kris Borum, $541 on behalf of Clarence Hudson, $562 on
behalf of James Jaworski, and $21,078 on behalf of Robert
Reilly, with interest accrued to the date of payment, if appro-
priate, in accordance with standard Board formula as re-
quired by the Board in its Supplemental Decision and Order
issued February 28, 1986, and with contributions on behalf
of claimants reserved for future determination for all periods
after January 31, 1989.
78 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
IT IS FURTHER ORDERED that the backpay specification be,
and it hereby is, dismissed insofar as it seeks restoration of
cement train operations by Respondent and insofar as it al-
leges an obligation to reimburse Kris Borum for basic hos-
pital and medical coverage, vision care, and prescription
drugs for the years 1986 through 1988.