Mash Transportation, Inc

National Labor Relations Board - Board Decisions

Mar 21, 1989

293 N.L.R.B. 404 (N.L.R.B. 1989)

404 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Mash Transportation , Inc and Mark S Combs
Case 25-CA-17484
March 22, 1989
SECOND SUPPLEMENTAL DECISION
AND ORDER
By CHAIRMAN STEPHENS AND MEMBERS
JOHANSEN AND CRACRAFT
On November 29, 1988, Administrative Law
Judge Michael 0 Miller issued the attached deci-
sion The Respondent filed exceptions and a sup-
porting brief and the General Counsel filed excep-
tions and an answering brief to the Respondent's
exceptions
The National Labor Relations Board has delegat
ed its authority in this proceeding to a three
member panel
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings,' and
conclusions and to adopt the recommended Order
as modified 2
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Mash Trans-
portation, Inc, Whiteland, Indiana, its officers,
agents, successors, and assigns, shall pay Mark S
Combs and Arthur Craig Scheid3 the sums set out
in the judge's recommended Order, as modified by
the addition of $27 03 to the net backpay due
Combs
' To the extent that the Respondents exceptions can be read to except
to some of the judge s credibility resolutions we note that the Board s
established policy is not to overrule an administrative law judge s credi
bility resolutions unless the clear preponderance of all the relevant evi
dence convinces us that they are incorrect Standard Drywall Products 91
NLRB 544 (1950) enfd 188 F 2d 362 (3d Cir 1951) We have carefully
examined the record and find no basis for reversing the findings
2 In accord with the General Counsel s exceptions we shall modify the
judge s recommended Order to include an additional $27 03 in the net
backpay award for Mark Combs The parties stipulated at the hearing
that this figure represented additional expenses incurred in searching for
interim employment Accordingly the total net backpay award for
Combs will be increased to $17 221 62
3 The judge inadvertently referred to Arthur Craig Scheid as Arthur
C Craig in his recommended Order
SUPPLEMENTAL DECISION
MICHAEL 0 MILLER, Administrative Law Judge I
heard this matter September 7, 1988 in Indianapolis In
diana pursuant to a backpay specification and notice of
hearing issued by the Regional Director for Region 25 of
the National Labor Relations Board (the Board) Decent
ber 4 1987, an answer filed by Mash Transportation De
cember 28, 1987, as amended March 31 1988 and a Sup
plemental Decision and Order of the Board,' which
issued June 10 1988
All parties were represented by counsel and were of
forded the opportunity to examine and cross examine
witnesses offer documentary evidence, and argue orally
The General Counsel and Respondent have filed briefs
which I have carefully considered On the entire record
including my observation of the demeanor of the wit
nesses 2 I make the following
FINDINGS OF FACT
A Background
On September 11 1986, the Board issued a Decision
and Order in this proceeding,3 in which it held that
Mash Transportation, Inc (Respondent) had discrimina
torily discharged Mark S Combs and Arthur Craig
Scheid because they had engaged in protected concerted
activity Respondent was ordered to offer Combs and
Scheid reinstatement to their former positions and to
make them whole for any loss of pay and benefits they
may have suffered because of Respondents discrimina
tion The Board s Decision and Order was enforced by a
judgment of the Seventh Circuit 4
About December 28, 1987, Respondent filed a re
sponse to the previously issued backpay specification as
setting that the discrimmatees were ineligible to work
during the backpay period and had been hired and re
ceived temporary clearances to handle mail for the Post
Office only because they had misrepresented their driv
ing records They were, therefore, not entitled to back
pay according to Respondent On March 15, 1988 the
General Counsel filed a motion to strike answer and a
Motion for Summary Judgment asserting that Respond
ent s answer failed to comply with the regulatory re
quirements that it be sworn to and specifically admit or
deny each allegation of the specification In the alterna
tive, the General Counsel sought a partial summary judg
ment restricting the scope of the hearing to the issues
raised in Respondents response to the backpay specifica
tion, i e its affirmative defenses
Subsequent thereto, Respondent filed an amended
answer properly admitting or denying the specification s
allegations and setting forth similar affirmative defenses
regarding the employees entitlement to backpay That
answer met the regulations technical requirements
On June 10 1988 the Board issued its Supplemental
Decision and Order accepting the amended response as
having cured the procedural defects The General Court
sel s motion to strike and Motion for Partial Summary
Judgment was denied
B The Issues
In its amended answer , Respondent disputed the Gen
eral Counsel's methodology in computing gross back
1 289 NLRB 49 (1988)
2 The joint motion to reopen the record is granted and the stipulation
of facts and R Exhs 8 9 10 and 11 are received in evidence The
record is now closed
3 281 NLRB 444 (1986)
4 Unpublished
293 NLRB No 46
MASH TRANSPORTATION 405
pay 5 In addition Respondent reasserted its affirmative
defenses contending that the discriminatees were not en
titled to any backpay because they were ineligible to
work for the Postal Service Respondents only custom
er, and had only been employed because they had mis
represented their driving records The Board s Supple
mental Decision and Order specifically held that these
affirmative defenses and the answer raised substantial and
material issues of fact regarding discnminatees gross
backpay warranting a hearing I am bound by the
Board s Supplemental Order, which directs me to consid
er the affirmative defenses, notwithstanding the General
Counsels contention that Respondent is estopped from
litigating them because it was aware of the alleged mis
conduct and had the opportunity to raise it as a defense
to reinstatement and backpay in the initial unfair labor
practice hearing 6 As urged by the General Counsel,
however I deem the findings of fact and conclusions of
law set forth in the initial decision to be conclusive See
Steel Workers (Doxsee Food), 281 NLRB 1275 (1986), and
cases cited there
C The Alleged Misrepresentations
The applications that Combs and Scheid submitted
before they were hired in November 1984 and February
1985, respectively, required applicants to list all traffic
convictions and forfeitures within the past 3 years and to
state whether their driving licenses had ever been sus
pended or revoked Respondents practice at that time
was to then secure copies of the applicants driving
records On being hired by Respondent, a driver would
go to a Postal Service facility where he would complete
a Contract Personnel Questionnaire, Post Office Form
2025 (calling for much the same information as the em
ployer s application form), and be fingerprinted The
Postal Service would then issue the driver a temporary
permit authorizing him to have access to the mail and
postal facilities At some later time when a more corn
plete background check had been completed, that em
ployee would either receive a permanent permit or be
disqualified from handling the mail
Under the Postal Service regulations, a permanent
permit would not be issued to a driver whose license had
been suspended once within the last 3 years or twice
within 5 years, or to a driver who had one driving of
fense within the prior year, three within the prior 3 years
or 5 or more within the prior 5 years
Mark Combs submitted his application on November
17, 1984, that application listed one speeding conviction
in May 1984, but did not list Combs eight convictions
for speeding between December 1981 and June 1983
S Respondent also denied the General Counsel s allegations concerning
interim earnings and expenses At the hearing however Respondent stip
ulated that the interim earnings and expenses as set forth in the specifica
tion were correct
6 I note in this regard the Board s express reservation to the compli
ance stage of this proceeding of issues concerning Scheid s reinstatement
and backpay in light of his alleged loss of Postal Service clearance See
fn 3 of the Board s initial Decision and Order I note further that the
Boards Supplemental Decision expressly directing a hearing on the
issues raised by the affirmative defenses is consistent with the alternative
position urged by the General Counsel in her Motion for Partial Summa
ry Judgment
However, as found by Judge Saunders in the initial hear
ing, before he was hired Combs told Herman Mullikin
Respondents president and manager, about as many of
his convictions as he could remember Four days later,
when he completed the Postal Services Form 2025,
Combs listed all nine of his convictions for speeding
since 1981 7
Some time thereafter, Mullikin did not recall when,
but presumably during Combs tenure Respondent se
cured a copy of Combs driving record, which showed
eight convictions for speeding Respondent did not ter
minate Combs when he acquired that record, neither did
the Postal Service deny Combs a temporary permit or
move to revoke the one it had issued even though his
Form 2025 showed more traffic offenses than its regula
tions would appear to tolerate Indeed, he was issued a
permanent permit in January 1986
Arthur Scheid submitted his application to Respondent
August 15, 1984, approximately 6 months before he was
hired In it , he checked No to the question asking
whether his license had ever been suspended In fact, his
license had been suspended in August 1980 for failing to
appear in response to a ticket for a nonspeeding offense
(missing headlight) 8 As with Combs, Respondent se
cured a copy of Scheid s driving record, which showed
the suspension but retained him in its employ On March
27, 1986, after Respondent had terminated Scheid it re
ceived notification from the Postal Service that Scheid
had been denied access to the mail and postal property,
effective March 3 1986 No reason was given The Gen
eral Counsel does not seek backpay for Scheid after
March 3, 1986
Although Respondent contends that it would not have
hired Combs and Scheid had they submitted accurate ap
plications, the record reflects that it has employed and
continues to employ, drivers with poor driving records
whose applications contained similar apparent misrepre
sentations Thus, dnver AF9 submitted an application on
July 20 1983 that indicated one speeding violation in
1980 his official Summary of Driving Record shows two
other speeding violations and a DWI (driving while in
toxicated) offense within the past 3 years Similarly, EB
listed three speeding convictions in 1983 and 1984 and
one suspension on his May 1984 application His record
7 Even if I deemed myself free to reconsider Judge Saunders factual
finding I would find insufficient basis on this record for doing so Thus I
note that when asked by his counsel whether Combs ever told him of the
additional convictions Mullikin only replied I do not recall him ever
telling me a thing like that Such an answer is insufficient to overcome
Combs testimony to the contrary and the earlier finding Combs subse
quent accurate recall of his driving record while casting some doubt on
his testimony could conceivably be explained by any of a number of pos
sibilities Perhaps he acquired a copy of his driving record or tried harder
to recall them all Respondent has failed to establish that it could not be
innocently explained and as it is Respondent who seeks to overcome the
earlier finding it is Respondent who would bear the burden of proof if
this issue was open to reconsideration
8 Scheid completed Post Office Form 2025 on February 28 1985
shortly after he was hired That form did not ask whether his license had
ever been suspended or revoked
8 To avoid undue embarrassment and possible economic loss the em
ployees referred to in this paragraph will be identified by their initials
Their job applications and driving records are in evidence as G C Exhs
14 through 17
406 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
shows two other suspensions and a speeding ticket in
1982 JS 1982 application states that his license was
never suspended, his driving record indicates a suspen
sion , for failure to appear, in 1981 CM applied in August
1988, he listed three speeding violations between 1983
and 1987 His driving record shows five such convic
tions He was hired even though, by 1988, Respondent
was requiring applicants to supply a copy of their driv
ing records before they could be hired
Based on all the foregoing, I am compelled to con
clude that the alleged falsifications of their employment
applications do not warrant denial of backpay to either
Combs or Scheid As found by Judge Saunders and the
Board, Combs did not mislead Mullikin Scheid did mis
state his driving record regarding a suspension That sus
pension, however, was not imposed within 3 years of his
being hired and, therefore, would not have disqualified
him from employment Mullikin, moreover, did not ter
minate them when he acquired copies of their driving
records Similarly, Mullikin hired and retained other
drivers who had similar records of speeding violations
and suspensions In essence, Respondent has condoned
both the speeding violations and suspensions and the fail
ure to accurately complete its employment applications
by job applicants and employees, including Combs and
Scheid, by hiring and retaining them notwithstanding his
knowledge of their driving records See Bentex Mills, 213
NLRB 296 (1974)
Moreover, both Combs and Scheid submitted accurate
questionnaires to the Postal Service and both were grant
ed temporary permits Combs, in fact, ultimately re
ceived a permanent permits, notwithstanding his record
of speeding violations Their driving records did not pre
clude their employment by Respondent on behalf of the
Postal Service
Respondent has not shown that it would not have
hired Combs and Scheid if they had submitted accurate
employment applications Accordingly I find and con
clude that Respondent has failed to sustain its burden of
proof regarding its affirmative defenses Mark Combs
and Arthur Scheid are entitled to backpay for the pert
ods set forth in the specification
D Gross Backpay
According to Respondent its drivers take 2 day runs,
earning 24 hours pay and are then off for 2 days Over
an extended period of time, this schedule averages out to
42 hours per week In fact, the payroll records indicate
that during his period of employment Combs averaged
just slightly over and Scheid averaged just under 42
hours per week Forty two hours per week, Respondent
contends, should be the proper measure of gross back
pay
The General Counsel has computed gross backpay
using the combined average quarterly earnings of four
drivers who worked throughout the backpay period
Bryant, Callahan, Dunbar, and Fields The General
Counsel noted as the records and testimony show, that
drivers sometimes took extra runs or filled in on replace
ment runs for other drivers, thus averaging more than 42
hours per week Respondent has failed to show that the
discriminatees would not have worked such extra and re
placement runs had they remained within its employ and
I find that the General Counsel s use of the average
hours worked by other employees during the backpay
period is a reasonable method of calculating gross back
pay Rainbow Coaches, 280 NLRB 166 (1986), and cases
cited there
According to the General counsels calculations, these
four drivers averaged 43 49 hours per week during the
backpay period It was on the basis of their average
earnings in each quarter that the gross backpay was cal
culated 10 In the alternative, the General Counsel has
proposed that backpay be calculated on the basis of the
average number of hours per week of all nine employees
who worked throughout the backpay period So calcu
lated, the average workweek during this period was
42 20 hours As the General Counsel has offered no ra
tionale for selecting four employees on whose hours or
earnings the gross backpay should be computed, I find it
more reasonable to use the average workweeks of the
nine Accordingly, I shall recompute the backpay due
Combs and Scheid based on the assumption that had
they worked, they would have averaged 42 20 hours per
week during each 13 week quarter in the backpay
period (In the alternative, their gross backpay could
have been computed based on the average hours worked
by the nine employees in each quarter, rather than over
the entire period the difference would be negligible As
Respondent, on brief, has argued for the computation to
be based on an overall average number of hours worked,
in 13 week quarters I have chosen this simpler and more
direct method of computation )
Respondent established that Combs and Scheid were
each paid for their last trips through September 12,
1985 Thus, as Respondent calculates their losses, they
were without compensation for at most, 3 weeks in the
quarter ending September 30, 1985 In the specification
however the General Counsel claimed gross backpay for
each of them of $2195 71 apparently based on the aver
age earnings of four employees who worked during that
period I find Respondents point to be well taken and
shall recompute their gross backpay to accurately reflect
the number of weeks they actually lost in that quarter (3)
and at the average number of hours they might have
been expected to work in each week but for their dis
charges (42 20)
E Interim Earnings-Mark Combs
Respondent asserts that because Combs voluntarily
left interim employment at Freight Movers because
the company's safety standards did not meet his own
and then instituted another lawsuit against an em
ployer under which he might also be awarded backpay
for the same time periods, his motivation should be ques
tioned Respondent contends that Combs should, at best,
be awarded nominal damages
10 The parties stipulated to the mathematical accuracy of the spcifica
tion However if the average hours per week as shown for employee
Bryant in Attachment A of the General Counsels brief are correct he
only averaged 41 84 hours per week over the entire period not 46 51
This would reduce the weekly average of the four from the General
Counsels 43 49 to 42 58 hours per week
MASH TRANSPORTATION
Respondent who bears the burden of proof on such an
issue (Rainbow Coaches, supra), has failed to show that
Combs quit his employment at Freight Movers or that,
if he did so , that quitting was unjustified so as to consti
tute a willful loss of interim earnings Combs testified
without contradiction, that he was discharged by Freight
Movers in a dispute over improperly maintained trucks
Even assuming Combs had quit for such a reason the
Board has long held that the quitting of interim employ
ment for safety related reasons is justifiable See, for ex
ample , American Mfg Co, 167 NLRB 520, 526 (1967)
(employee Wallace) I find no basis in Combs' termina
tion from Freight Movers or in his legal action against
that employer to disqualify him from receiving backpay
It is true that there is a potential for Combs to receive
backpay twice for the same period of time if he prevails
in his litigation against Freight Movers However , at this
point in time, that is a mere potentiality , while Respond
ent s primary liability for this loss is an established reali
ty If Combs prevails against Freight Movers in his pend
ing litigation , whatever backpay he receives as a result of
that action might be reduced by what he is entitled to
here I shall leave that for determination by the forum
hearing the subsequent matter in the event that Combs is
found to have been improperly terminated by the
Freight Movers 11
CONCLUSIONS OF LAW
Based on all the foregoing , I find and conclude that
the discriminatees suffered backpay losses and are enti
tied to backpay in the amounts set forth below because
of Respondents discriminatory discharges of them on
September 12, 1985
Mark S Combs
Calendar
Quarter Gross Backpay
Interim
Earnings
Net Backpay
1985 III 12$148690 None $ 148690
1985 IV 6443 19 $5165 85 1277 34
11 Respondents claim that Combs testimony before me was maccu
rate thus calling his veracity into question is without ment He did not
lie when he replied Well I in not going to sit here and say I made more
money but I did make good money to a question whether he made
more money at Freight Movers than he had at Mash His earnings at
Freight Movers were set forth in the specification were stipulated to be
correct and were not in issue Moreover his earnings at both companies
were roughly comparable
12 Based on an average workweek of 42 20 hours at the wage and
benefit rates set forth in the specification the average weekly wage
would have been $495 63 through June 28 1987 and $539 59 thereafter
Mark S Combs
407
Calendar Interim
Quarter Gross Backpay Earnings Net Backpay
19861 6443 19 7520 01 None
198611 6443 19 752001 None
1986111 6443 19 2749 59 3693 60
1986 IV 6443 19 1528 73 491446
19871 6443 19 5038 08 1405 11
198711 6443 19 3786 50 2656 69
1987111 539590 3712 41 1683 49
(to 9/12/87)
Subtotal 17 117 59
Expenses 77 00
Total $17 194 59
Arthur C Scheid
Calendar
Quarter
Gross
Backpay
Interim
Earnings Net Backpay
1985 III $148690 None $148690
1985 IV 6443 19 $185590 4587 29
19861 446067 3038 05 1422 62
(to 3/3/86
9 wks )
Subtotal 7 496 81
Expenses 77 00
Total $7 573 81
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend
ed13
ORDER
The Respondent, Mash Transportation , Inc, White
land, Indiana , shall make Mark S Combs whole by the
payment to him of $17 , 194 59 , plus interest and shall
make Arthur C Craig whole by the payment to him of
$7573 81 , plus interest , as the net backpay due them as a
result of Respondent's unfair labor practices , as set forth
in the remedy section of the Board s underlying decision
13 If no exceptions are filed as provided by Sec 102 46 of the Board s
Rules and Regulations the findings conclusions and recommended
Order shall as provided in Sec 102 48 of the Rules be adopted by the
Board and all objections to them shall be deemed waived for all pur
poses