Artim Transportation System, Inc.

National Labor Relations Board - Board Decisions

Sep 17, 1971

193 N.L.R.B. 179 (N.L.R.B. 1971)

ARTIM TRANSPORTATION SYSTEM , INC. 179
Artim Transportation System, Inc., and Everett W.
Batcheller. Case 13-CA-8230
September 17, 1971
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND KENNEDY
On January 27, 1969, the National Labor Relations
Board issued a Decision and Order in the above-
entitled case I finding that the Respondent, Artim
Transportation System, Inc., had discriminated
against Everett W. Batcheller in violation of Section
8(a)(3) and (1) of the National Labor Relations Act,
as amended, and ordered that he be reinstated and
made whole for any loss of earnings, with interest
added thereto, by reason of the discrimination. On
February 12, 1970, the Court of Appeals for the
Seventh Circuit issued its opinion sustaining the
Board's Order,2 and on March 19, 1970, the court
entered its judgement enforcing said Order. Subse-
quently, the Respondent's petition to the Supreme
Court of the United States for a writ of certiorari was
denied by the Court.3
A backpay specification and notice of hearing was
issued by the Regional Director for Region 13 on
February 2, 1971, and the Respondent filed an answer
to the backpay specification on March 2, 1971.
Pursuant thereto, a hearing was held before Trial
Examiner Lloyd S. Greenidge on March 23, April 5
and 6, 1971, for the purpose of determining the
amount of backpay due to Batcheller. On June 14,
1971, Trial Examiner Greenidge issued the attached
Supplemental Decision in which he found that
Batcheller was entitled to the amount of backpay
therein set forth. Thereafter, the Respondent filed
exceptions to the Supplemental Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Supplemental Decision, the exceptions,
and the entire record in the case, and hereby adopts
the findings, conclusions, and recommendations of
the Trial Examiner.
SUPPLEMENTAL ORDER
Pursuant to Section 10(c) of the National Labor
193 NLRB No. 27
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Artim Transportation System, Inc., Hammond, Indi-
ana, its officers, agents, successors, and assigns, shall
make Everett W. Batcheller whole by payment to him
of the amount set forth by the Trial Examiner in his
attached Supplemental Decision, plus interest, less
deductions required by state and Federal laws.
1174 NLRB No 40.
2 N L R B V Arum Transportation System, Inc, 422 F 2d 853 (C A. 7).
3 400 U S 825.
TRIAL EXAMINER'S SUPPLEMENTAL
DECISION
STATEMENT OF THE CASE
LLOYD S. GREENIDGE, Trial Examiner: This proceeding
was instituted by the Regional Director for Region 13 of the
National Labor Relations Board, pursuant to authority
conferred on him by the Board, for the purpose of
determining the controversy which had arisen over the
amount of backpay, if any, due to Everett W. Batcheller,
who, according to the Board's Decision and Order herein,'
as enforced by the United States Court of Appeals for the
Seventh Circuit,2 had been discriminatorily discharged by
Artim Transportation System, Inc., herein called the
Respondent, in violation of Section 8(a)(3) and (1) of the
Act. Subsequently, the Respondent's petition to the
Supreme Court of the United States for a writ of certiorari
was denied by the Court.3 Backpay Specifications and
Notice of Hearing issued herein on February 2, 1971, and
were later amended at the hearing held before me in
Chicago, Illinois, on March 23 and April 5 and 6, 1971.
Upon consideration of the amended backpay specifica-
tions, Respondent's answer, the evidence adduced at the
hearing, and the briefs submitted by counsel for both sides,
and upon my observation of the demeanor of the witnesses,
I make the following:
FINDINGS AND CONCLUSIONS
1. PRELIMINARY STATEMENT
The specifications allege, the answer generally denies but
I find, that the backpay period runs from December 1,
1967, the day following Batcheller's discharge, to December
29, 1970, the date of his reinstatement.
The parties agree that an appropriate measure of the
gross backpay for Batcheller can be determined by
comparing his earnings for the years 1964-1966, inclusive,
to the earnings of the 10 Respondent's drivers with seniority
dates immediately preceding Batcheller's starting date and
the 10 Respondent's drivers with seniority dates immediate-
ly following Batcheller's starting date. It was also agreed
that, during the said 1964-1966 period, Batcheller's
earnings were $32,110.68, his yearly average was
1 174 NLRB No 40.
2 N L R B v Artim Transportation System, Inc., 422 F.2d 853 (C A. 7).
3 400 U S 825
180 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
$10,703.56, and that the yearly average of the earnings for
the 20 comparison drivers was $10,171 29.4 The parties
further agreed that, during the said period, Batcheller's
average yearly earnings were 105.23 per cent of the average
yearly earnings of the 20 drivers in the same period. The
amended specifications allege, and I find, that Batcheller's
gross earnings during each calendar quarter of the backpay
period are 105.23 per cent of the average gross earnings of
the 20 comparison drivers in each such calendar quarter.5
Richard B. Simon, Compliance Officer for Region 13,
testified, credibly and without contradiction, that the
figures and computations in Appendixes A and B are based
on information he obtained directly from the Company's
records. Accordingly, I find that such figures and
computations accurately reflect the earnings of Batcheller
and others during the periods indicated therem.6
Respondent contends, in substance, that: (1) Batcheller
did not engage in a diligent search for work during
December 1967, during the first, second, and third quarters
in 1968, and during October and November 1968, and in
consequence thereof backpay should not be awarded for
those periods; (2) Batcheller unjustifiably terminated
interim employment with Midwest Emery Freight System
and thereby incurred a willful loss of earnings; (3)
Batcheller's discharge by interim employer Brady Motor
Freight allegedly for having failed to report for work was, in
all the circumstances, an unjustified voluntary termination
of employment; (4) claims for $730 and $310, representing
expenses incurred by Batcheller to hold interim employ-
ment should be disallowed for the reason that they are
indefinite and speculative; and (5) claims for medical
expenses incurred by Batcheller during the backpay period
should be denied because it has not been established that
they would have been paid, in whole or in part, by
Teamsters Union No. 142, Health and Welfare Trust Fund.
II. THE EVIDENCE
A The Extent of Batcheller's Search for Work
Prior to his discharge by the Respondent on November
30, 1967, Batcheller was a truckdnver assigned to its City
Division in Hammond, Indiana. At all times relevant,
Batcheller has resided in a rural area about 14 miles south
of Lowell, Indiana. Lowell is approximately 30 miles
distant from Hammond. Following his discharge, Batchel-
4 Appendix A attached and p 2 of G C Exh 1-0
5 Appendix B attached
6 As originally drafted, the specifications covered the period 1963-1966
and showed Batcheller's average yearly earnings in this period to be 108 1%
of the average yearly earnings of the 20 drivers However, at the hearing,
the Regional Director modified the specifications by accepting the
1964-1966 period and the 105 23 percentage figure as proposed by the
Respondent
7 Batcheller recorded in two notebooks the names of the places he had
visited and the dates of such visits On occasions, his recollection of such
places and dates was refreshed by a reference to the notebooks
5 Batcheller referred in his testimony to visits to the East Chicago and
Hammond offices of the ISESD According to Batcheller, the former did
not issue identification cards to individuals seeking work but instead
recorded such visits mechanically on something resembling a credit card
which it retained Batcheller did, however, obtain employment
identification cards but, again according to Batcheller, they were issued by
the Hammond office (G C Exh 16 and 17)
M W Ruddell, manager of the Hammond office, acknowledged that
ler spent on an average of 1 full day each week in search for
employment.?
With respect to his work situation from December 1,
1967, to the end of that year, Batcheller testified that there
was a grievance hearing in connection with his discharge on
December 27; that 2 days later he filed a claim for
unemployment compensation with the East Chicago office
of the Indiana State Employment Security Division
(hereinafter ISESD) but did not register for employment at
that time; that the same day, December 29, one Carl
Marcus, a supervisor assigned to the East Chicago office,
referred him to Wonder Bread Bakeries reported to be in
need of a truckdriver; that later the same day or the next he
appeared at the Wonder Bread plant where he filled out an
application for the job of truckdriver and was then
instructed to return after the first of the year; that on or
about January 2, 1968, he returned to Wonder Bread and
was told he had not been selected for the job; and that
shortly thereafter he went back to the East Chicago office,
informed Marcus of the final result of the interview, and
requested another referral.8
Continuing in the year 1968, Batcheller testified that
during the first quarter of 1968 he made abortive attempts
to obtain work with approximately 17 different employers,
approaching I on about eight separate occasions; 9 that
during the second quarter of that year he sought without
success to secure employment with four employers,
approaching one on three occasions,10 and in addition
registered with the ISESD on March 25, April 15, and May
27; that in the third quarter of the same year he applied to
three employers but there were no openings and, further, he
made about 16 visits to the ISESD. Finally, in the fourth
quarter, Batcheller attempted to obtain employment with
four employers and, in addition, registered with the ISESD
on November 13, 29, and December 17. In October and
November 1968, Batcheller was active with an insurgent
organization called the Fraternal Group of Concerned
Teamsters which had entered a slate of candidates in an
intraunion election scheduled for early December 1968 and
was then engaged in campaigning in its behalf. Batcheller
did not, however, remove himself from the labor market as
he used what money he received from the group" to
continue his search for employment as shown by the four
trips to employers and the three visits to the ISESD in that
quarter. Later in the fourth quarter and on December 23,
G C Exh 17 which bears the stamp of the Hammond office on its face was
issued by his office and allowed that G C Exh 16 which does not bear
such a stamp could also be a record of Batcheller 's visits to the Hammond
office Ruddell went on to say that his office handles registration for work
and that until June or July 1970 the East Chicago office was only
concerned with processing claims for unemployment compensation
Ruddell's area of responsibility was the Hammond office and it was not
shown that he had personal knowledge of the day-to-day practice in the
East Chicago office at any time material herein However, accepting for the
moment Ruddell's assertion that East Chicago was strictly a claims office,
the fact is Batcheller's testimony concerning a job referral by Marcus of
that office and resulting interviews with Wonder Bread personnel stands
uncontradicted by Marcus or by anyone from Wonder Bread Accordingly,
I credit this testimony of Batcheller
9 Ruan Transport Corporation
70 D & L Transport
ti In fact, the money was a reimbursement to Batcheller for sums he
had expended to purchase food and gasoline
ARTIM TRANSPORTATION SYSTEM, INC. 181
1968, Batcheller obtained work with Carlson Trucking
Company.
As to the first quarter and part of the second quarter in
1969, Batcheller testified that his employment with Carlson
continued until March 11, 1969, that it was followed by
employment with Midwest Emery Freight System begin-
ning the same day, March 11, and continuing up to April
21, and that this employment was, in turn , followed by
employment with Tri-State Coach Lines from the latter part
of April to the end of May 1969. Again , according to
Batcheller , while employed by Tri-State , he continued to
seek other employment more suitable to his background
and training . On May 31, Batcheller journeyed to Portland
in his search for work and was away until June 17. In the
latter part of June, he sought employment with Rogers
Cartage but there were no vacancies . In the third quarter,
Batcheller filed an application with Great Lakes Express
which was rejected for reasons of age . From July through
August , he applied for work with four other employers and,
in addition , filed an application with the United States Civil
Service Commission for the position of clerk -carrier in a
Post Office . 12 In response to a newspaper advertisement,
Batcheller sought employment with Inland Steel Company,
one of the five civilian employers approached in that
quarter . After being refused a job by Inland Steel on three
or four occasions , Batcheller went to the Hammond office
of ISESD and complained to Ruddell. According to the
credited and uncontroverted testimony of Batcheller,
Ruddell stated that he had read about Batcheller 's "case,"
advised that the Indiana Employment office could not "put
pressure" on Inland Steel or on any other employer to give
Batcheller a job , and declared that , in view of all the
"controversy" surrounding his case, he (Ruddell ) consid-
ered Batcheller "unemployable in the region ." On Septem-
ber 2 , 1969, Batcheller obtained employment as a crane
operator and warehouseman with Brady Motor Freight
through a friend who had held the position but had quit
allegedly because of unsafe working conditions.
Finally, as to the first , second , and third quarters of 1970,
Batcheller testified that he continued to work for Brady
until July 3 and then sought employment with six other
employers without success . During the fourth quarter of
that year , on or about October 1, Batcheller signed up with
a local distributor for Bestline Products. This was an
attempt at self employment necessitating loans in amounts
of $2,000 from a local bank, $800 from a son, and $300
from a daughter . The venture proved unsuccessful and, on
December 28, Batcheller obtained employment with
Transamerican Freight Line , Inc., through a personal
contact . The same evening, December 28, he received a
telegram from the Respondent offering him reinstatement.
The offer was accepted and, as reported above, Batcheller
was reinstated on December 29, 1970.
It is thus evident that during the entire backpay period
12 Batcheller was unsuccessful in this effort, having failed to score a
passing grade in the written examination
13 Batcheller did not seek work with Red Top Trucking, National
Cartage, or American Transit Lines, three of the I I companies I note,
however, that Red Top did not offer substantially equivalent employment
as its drivers are required to be out of town overnight and that, in 1968 and
1969, National Cartage had a constant work complement of city or
company drivers
Batcheller was either seeking work or working. It is also
apparent that although his efforts were concentrated
initially on getting employment as a city truckdriver he did
not meet with much success in this regard; and that
thereafter some of the employment which he did obtain was
as a crane operator and warehouseman or in his own
business rather than as a truckdriver. Batcheller recounted
that, at the December 29, 1967, grievance session pertaining
to his discharge, he criticized the Union's officials and, after
this, Business Representative Jacob Abshire declared that
Batcheller would never again work in a shop under Local
142's jurisdiction. Batcheller described his frustration in
obtaining employment as follows: "In fact, I went to many,
many places looking for work . . . under contract to Local
142, and in every case I couldn't get ajob. It was evident I
had been blackballed by that union."
In support of its position that Batcheller did not exercise
due diligence in his quest for employment and also passed
up available jobs, Respondent points, in its brief, to
testimony of 11 witnesses 13 called by the Respondent. In
general these witnesses , employees of various trucking
companies, testified that substantial numbers of company
and fleet drivers were hired by them in 1968, 1969, and
1970. In this regard, Respondent calls attention to
statements by Batcheller to the effect that he made oral
applications for work at four14 and filed written applica-
tions with three 15 of the seven remaining companies, yet
not one of the witnesses remembered having received a call
or an application from Batcheller. I find no merit in the
foregoing.
A review of the testimony of the seven witnesses reveals
that four conceded a lack of personal knowledge, prior to
1970, as to who had applied for work locally and allowed
that unbeknown to them Batcheller might have approached
a subordinate with an oral request for employment. As to
written applications, William P. Frantz, safety and
personnel director for Welsh Brothers since January 4,
1971, testified at one point that there is no way to determine
whether an individual applied for work in 1968, as
Batcheller credibly averred, since it was not until January 1,
1971, that the company began to keep a file on all job
applicants pursuant to the rules and regulations of a federal
agency. However, at another point Frantz testified that,
prior to January 1971, it was company policy not to accept
an application unless a man was actually hired and only
such applications were retained. Frantz' association with
Welsh dates only from January 1971 and it is clear from the
foregoing and the record as a whole that he is not familiar
with the Company's employment practice in 1968. Accord-
ingly, I do not accept this testimony of Frantz. Peter B.
Ondrak, director of labor relations at D & L Transport for
the past 15 years, testified that his base of operations is
Cicero, Illinois, and that the Company has a terminal in
East Chicago. Ondrak went on to say that short form
Batcheller testified credibly that, in November or December 1968, he
applied to Simms Motor Transport, another of the Il employers
represented at the hearing, understandably without success as the ratio of
its owner operators to company drivers was 5 to I and, as with National
Cartage, the turnover among company drivers was practically nil
14 Ruan Transport Corporation, Rogers Cartage, Gary Transfer, and
Great Lakes Express
15 Welsh Brothers , D & L Transport, and C P.T. Freight
182 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
applications are kept for 6 years and that a search of the
Company's files had disclosed no application from
Batcheller. For his part, Batcheller testified that, on June
10, 1968, he approached a D&L dispatcher in a house
trailer; that he requested, received, filled out, and returned
an application to the dispatcher who then advised that he
would send it to East Chicago for approval. Several weeks
later someone told Batcheller that the East Chicago office
was not authorized to accept applications and that he did
not know anything about the application. Still later,
Batcheller was informed that there had been no reply from
East Chicago. Batcheller's account contains a fair amount
of corroborative detail which tends to buttress his story. It
is therefore credited. Batcheller submitted an application
for employment with D & L but it is doubtful that it ever
left the house trailer. Finally, E. M. Heisterberg, President
of C.P.T. Freight, testified that, prior to January 1, 1971, his
Company did not retain applications, allowed that
Batcheller might have filed an application with C.P.T. in
1968, as Batcheller asserted, and conceded that in such
event there would be no record of the application.
Respondent furnished evidence to show that the Gary-
Hammond-East Chicago area 16 was not a depressed
section of the country at times relevant and has requested
the Trial Examiner to consider the job market conditions
prevailing in the area during the backpay period. I have
done so and am satisfied that this was not a depressed area.
However, the problems Batcheller faced in finding
employment was not due to any lack of diligence on his
part but to the difficulties he encountered through the
ISESD which had contacts with the greatest number of
employers in the area and also to the opposition of the
Union which had contracts with many of the same
employers. Thus, considering the limitations imposed on
Batcheller it is impossible to determine how many jobs were
actually available to him. On the basis of the above, I find
that Batcheller made a diligent effort to secure employ-
ment. Accordingly I conclude, and find further, that
Respondent has not sustained its burden of showing, as it
contends, that Batcheller did not exercise due diligence in
seeking work during the backpay period and thereby
incurred a willful loss of earnings.17
B. Batcheller's Interim Employment in Dispute
Batcheller was hired by Midwest Emery Freight System
as a fleet or over-the-road driver on March 11, 1969,
following consummation of a leasing arrangement between
Carlson Trucking Company and Midwest Emery and
remained in the latter's employ until about April 21, 1969,
when he quit. However, while still employed by Midwest
Emery, he continued to look for more suitable employment.
Batcheller testified credibly that he terminated his employ-
ment with Midwest Emery because of an accumulation of
separate incidents as follows: (1) he encountered difficulty
in obtaining reimbursement of $80 which he had spent to
16 Resp Exh 1
11 In December 1968 Batcheller was referred by the ISESD to a Mr
Williams but refused the referral for the reason that he could not work on a
commission basis As this was not substantially equivalent employment,
Batcheller can not be faulted for his action in August 1970 Batcheller was
again referred by ISESD this time to Midwest Pipe but did not report The
repair a Thermo-King in a company truck; (2) the company
deducted from his pay money it had advanced to cover
road expenses; (3) on one occasion, he could not obtain an
advance to pay road expenses for a return trip to his home
base; and (4) he could not get an advance to cover expenses
required to complete a delivery of goods in Milwaukee.
Batcheller explained that he was without funds at the time
he was detailed to go to Milwaukee and needed the money
to pay a city man to help unload his truck. Norbert Kustra,
director of safety and personnel for Midwest Emery and a
witness for the Respondent, testified that his company gives
money advances and issues charge authorizations or
purchase money orders to drivers of leased equipment for
use in the event of breakdowns. He did not, however,
directly challenge the credited testimony.
Batcheller started to work for Tn-State Coach Lines on
April 24, 1969, and remained with the Company until about
the end of May when he quit this interim employer.
Batcheller drove a limousine for Tn-State between Gary
and the O'Hare airport. Under an arrangement with the
Company, he was supposed to make three trips in a 12- to
13-hour workday and average about $2.00 per hour. In
point of fact, however, after the first week, the trips were
cut to two, the workday to 8 hours. To make matters worse
still, Batcheller learned in time that drivers were expected to
make up shortages. Further, the limousine he drove had
many breakdowns and flat tires and there were with no
replacements for the flats. The incident that precipitated his
voluntary termination occurred the night he lost his wallet
amid much confusion.
Batcheller obtained employment with Brady Motor
Freight on September 2, 1969, on a referral by a friend who
had quit allegedly because of hazardous working condi-
tions. His employment with this employer terminated in
July 1970 under circumstances here in dispute.
Batcheller was assigned to operate a mill type crane of
1917 or 1918 vintage. The crane ran on tracks overhead and
was controlled from a box below. It was used primarily to
load and unload steel onto and from flat bed trucks. He
also operated a forklift truck which did the same thing.
Batcheller recounted numerous complaints voiced to
management about the condition of the crane, many
admittedly valid, among them the fact that he had received
electric shocks and had expressed a fear of being
electrocuted. On or about June 19 he observed that the
crane was not tracking properly and asked Regional
Manager Lewis to have it repaired but he refused. A few
days later, a shaft in the main drive broke and, after this,
the crane was inoperative for a period extending through
July 3. In the meantime, Batcheller used the forklift to
transport products.
About 4:30 p.m., Fnday, July 3, while operating the
forklift, a few steel pieces fell off the truck and damaged a
wall of a warehouse. Lewis ran out of his office and
remonstrated with Batcheller about moving products in an
unsafe manner. Batcheller then reminded Lewis that the
record here does not show the terms, conditions, and location of the lob
and, in the absence of such evidence, there is no warrant for finding-on
the basis of the abovementioned entry in Batcheller's record with the
ISESD-that he failed in his duty to mitigate damages by not reporting for
the same
ARTIM TRANSPORTATION SYSTEM , INC. 183
crane was inoperative and asserted that it should have been
repaired some time ago. Whereupon , and without further
ado, Lewis directed Batcheller to pack up and go home.
Batcheller asked whether he was fired and stated that, if
such were the case , he was entitled to a letter of discharge.
To this, Lewis replied that such a letter would have to
emanate from Des Moines . And, as Batcheller turned to
leave , Lewis said "Don't bother to come back Monday."
Batcheller had worked the entire week of June 30 through
July 3. Under an agreement between the Company and a
union , when a holiday falls on a Saturday or Sunday, an
employee is entitled to take off with pay the preceding
Friday or the following Monday. Batcheller did not work
Monday, July 6, and was not paid for that day. Further, he
did not report for work on July 7 and July 8. On Thursday,
July 9, Batcheller telephoned Lewis to ascertain whether
Lewis had sent a letter to Des Moines recommending his
discharge . Operations Manager Urbane answered and, on
Lewis ' instructions , told Batcheller "don't bother coming
back." 18
Respondent contends that Batcheller unjustifiably termi-
nated his employment with Midwest Emery and incurred a
willful loss of earnings . I do not agree . It has long been the
rule that ". . . a claimant who obtains a job but then leaves
it for justifiable reason is not deprived of all further claims;
the assumption is that the reason for his quitting the job
would not have been present at Respondent 's plant and
therefore the job is not substantially equivalent." 19
Applying the rule to the facts here present , I find that
Batcheller voluntarily quit his employment with Midwest
Emery for justifiable personal reasons , namely, the facts
that the Company had shortchanged him by deducting
from his earnings money he had spent to pay road expenses
and, on occasions , refusing to advance money for this
purpose ; and, further , had dragged its heels in reimbursing
him for money expended to repair its equipment. Small
wonder then that he decided to look elsewhere for work.
Moreover , the job with Midwest Emery was not substan-
tially equivalent to the job Batcheller had with the
Respondent . In view of the foregoing , the quitting did not
constitute a willful loss of earnigns.
A similar result is warranted in the case of employer Tri-
State Coach Lines. In that instance , Batcheller's earnings
were considerably less than he was led to believe they
would be . Further , the Tri-State job did not provide
substantially equivalent employment. I find , therefore, that
by quitting his employment with Tri-State Batcheller did
not violate his obligation to minimize his losses.
Finally , Respondent argues that Batcheller 's discharge by
Brady Motor Freight "was the result of his failure to report
for work and as such [must be] found to be a voluntary
leaving of employment ." There is no support in the record
is The facts above with respect to Brady are found from credited
testimony of Batcheller , as corroborated in certain particulars by
admissions of Lewis Testimony of the latter in conflict with the findings is
not credited for various reasons as follows (I) at one point, Lewis testified
that he told Batcheller not to report for work on Monday, July 6, but later
averred that he did not tell Batcheller he had Monday off, (2) Lewis
recalled having an argument with Batcheller on July 3 and telling him to
leave but did not recall telling him to return, (3) Lewis did not know
whether Batcheller was paid for Monday, (4) Lewis decided to fire
Batcheller on July 7 and the decision related back, to some extent, to an
argument on July 3 which he did not recall , and (5) Lewis did not
for the contention . The evidence is that Batcheller was
discharged by Lewis following an argument about the
operation of certain equipment in the plant . Lewis told
Batcheller on July 3 to go home and not to return the
following Monday, July 6 . Batcheller did not and was not
paid for Monday which for him was a holiday with pay.
Moreover, when Batcheller asked for a letter of discharge
Lewis did not deny that he had been discharged . Further,
even in Lewis ' view of the facts, Lewis was influenced to
some degree in arriving at his decision to discharge
Batcheller by the events of July 3. As there is no claim and
no evidence that Batcheller engaged in misconduct and as
he immediately resumed his search fcr employment, I find
that he did not incur a willful loss of earnings on July 3.
C. Expenses Incurred To Retain Interim
Employment
The Regional Director allowed an offset of $1040 from
interim earnings for expenses incurred by Batcheller to hold
interim employment . In this regard , a stipulation was
received to the effect that logs maintained by Batcheller
show that , in the first quarter of 1969 , he spent 71 days out
of the Hammond area on business for Carlson Trucking
and, in the second quarter of the same year, spent 31 days
out of the area on business for Midwest Emery , for a total
of 102 days on the road . Prior to his unlawful discharge,
Batcheller was a city driver for the Respondent at its
terminal in Hammond . Questioned as to these expenses,
Batcheller testified that , at one time , an agent for the
Internal Revenue Service had advised that he could deduct
$10.00 per day for road expenses without itemizing
provided he kept a daily log showing the days spent away
from home . Continuing Batcheller related that his expenses
were for subsistence , lodging, telephone calls, and other
general road expenditures . In its brief , Respondent invites
attention to testimony by Kubsta that certain trailers leased
by Midwest Emery were "five-axle sleeper operations,"
inferentially contending thereby that Batcheller could have
avoided motel expenses by using a trailer . There is no
substance in the contention . Notwithstanding the paucity
of proof to sustain the position , it will suffice to say that
Batcheller was not required to sleep in a trailer to mitigate
damages arising from his unlawful discharge by the
Respondent.20
I find that Batcheller 's road expenses were necessary to
retain interim employment and that $10 .00 per day is a
reasonable and proper allowance for defraying these
expenses . However , in computing Batcheller's road days
while at Carlson Trucking , the Regional Director inadvert-
ently credited him with 73 rather than with the stipulated 71
days. I have , therefore , modified the backpay specifications
remember whether the crane was inoperative on June 3 In view of this
self-contradiction , his uncertainty , vacillation , and evasion , as well as
demeanor , I regard Lewis' testimony as generally unworthy of belief and
credit it only when it conforms with other credited testimony or constitutes
an admission against interest.
19 Mastro Plastics Corporation, etc, 136 NLRB 1342, 1349, enfd on this
point 354 F 2d 170 (C A. 2), cert denied 384 U S 972; East Texas Steel
Casting Company, Inc, 116 NLRB 1336, 1347-1348, enfd . 255 F.2d 284
(C A 5), American Manufacturing Company of Texas, 167 NLRB 520, 527.
20 See My Store, Inc, 181 NLRB No. 47
184 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the extent of deducting $20 from such expenditures as
appears at footnote 2, Appendix C of this Decision.
D. Medical Expenses
Prior to Batcheller's discharge on November 30, 1967,
Respondent was a party to a collective-bargaining contract
with Teamsters Union Local No. 142, IBT and insured
under a group plan administered by the Union's Health
and Welfare Trust Fund. The premiums on such insurance
were paid solely by the Respondent. During the backpay
period, Batcheller incurred hospital and medical expenses
as the result of injuries sustained by his dependent children
in a common occurrence. Louis Morande, administrator of
this Fund, related that the health program provides basic
and major medical coverage for all eligible employees and
their dependents; that under the basic plan the Fund pays
the first $750 of hospital charges and 80% of the balance
plus a maximum of $40 per day for a hospital room; that,
while there is a $100 deductible on major medical expenses
where, as here, there is a common incident only one
deductible is assessed; and, finally, that where, again as in
this instance, the wife of a covered employee has insurance
and her carrier pays part of a claim the Fund picks up the
balance including the $100 deductible. Batcheller testified
that not one of the bills has been paid by the Fund
The Regipnal Director's amended backpay specifications
claim the 'amount of these medical bills and hospital
expenses21 to the extent that Batcheller would have been
compensated for such expenses under the group health
insurance policy then in force, less amounts paid by Mrs.
Batcheller's insurance. I find that Batcheller was an
employee covered by the Fund-applicable to all regular
employees and to new employees after 60 days of
employment-and that such coverage would have contin-
ued but for Respondent's discrimination against him.
Inasmuch as Batcheller incurred medical and hospital
expenses for which he would have been compensated by the
Fund, and as no evidence to the contrary was adduced by
the Respondent, I find further that he is entitled to $911 for
such expenses from the Respondent, and the claim therefor
as set forth in the amended specifications is allowed.
Additionally, the parties stipulated that, while employed
by Brady Motor Freight, Brady deducted $208.20 from
Batcheller's earnings to pay premiums in a group health
policy. Absent the wrongful discharge Batcheller would not
have been deprived of coverage under the Fund and
substitute insurance would not have been necessary. For
this reason, the claim of $208.20, as set forth in the
amended specifications, is also allowed. In sum, the total
amount awarded Batcheller for medical and health
insurance premium payments is $1,119.20.
E. Pension Insurance Premiums
At least since April 1, 1967, the Respondent has been
party to a pension fund agreement, created pursuant to its
collective-bargaining contract with the Union, the purpose
21 G C Exh 20(a) through (g)
22 One of the three employer trustees is R Ralph Artim , president of the
Respondent
23 The terms pension plan and pension fund are used interchangeably
of which is to provide employees "pension, death and other
such benefits ...." All regular employees are eligible to
participate in these benefits and the premiums for such
pension insurance are paid in full, weekly, by the
Respondent to the trustees of the pension fund,22 who in
turn pay them to the insurance carrier. According to
credited and uncontradicted testimony of Morande, who is
also administrator of the pension fund, in situations where
no contributions have been made on behalf of an employee
for 3 or more years, the employee forfeits his credits in the
fund for those years. He also related that no payments to
the pension fund were made by the Respondent for
Batcheller during the backpay period.
On March 10, 1971, Morande sent Batcheller a letter
which stated, in pertinent part, that "As of December 31,
1968, you have accumulated six (6) years of Pension
credit." Batcheller was hired by the Respondent in
September 1961 and, absent his discriminatory discharge,
would have had about 9 years and 6 months of creditable
service as of the date of the Morande letter.
In his amended specifications, the Regional Director
alleges that "inasmuch as Batcheller was terminated from
membership in the Pension Plan . . . by reason of his
discharge," Respondent should be required to pay to the
pension plan 23 a sum representing the contributions it
would have made to the pension plan for Batcheller during
the backpay period if he had not been wrongfully
discharged. The Regional Director also requests the Trial
Examiner to include in his Decision a provision permitting
the Director or Batcheller to reopen the record on motion
in the event the pension plan refuses to accept contributions
tendered on Batcheller's behalf or refuses to restore the
status quo ante with respect to his pension rights.
In its brief, Respondent asserts that it has "no objection
tendering to the pension fund the amount found due for
those periods in which Mr. Batcheller was engaged in a
diligent search for work or was employed by an interim
employer." Thus, it is clear, and I find, that Batcheller was
entitled to participate in the pension program during the
backpay period and that absent the discrimination would
have received all benefits which flowed from the Respon-
dent's contributions to the pension insurance . The amounts
the Respondent would have contributed during the
backpay period are not disputed and are quite
substantial.24 Accordingly, I conclude that Batcheller is
entitled to be made whole for the contributions the
Respondent would have made to his pension insurance
absent the discrimination and the claim therefor in the
amount of $1,566.00, as set forth in the Regional Director's
amended specifications, is confirmed.25
It is well settled that pension payments made by an
employer are a form of wages.26 Although "wages,"
Respondent's contributions were not paid to the discrimi-
natee but went to the Pension Fund and then to the
insurance carner as premiums for the pension insurance.
The Regional Director proposes, and I agree, that it would
be appropriate and reasonable in this backpay proceeding
24 Appendix D attached
25 NLRB v Brown & Root, Inc, 311 F 2d 447, 452 (C A 8)
28 Inland Steel Company v N LR B, 170 F 2d 247, 250-25I (C A. 7),
cert denied 336 U S 960
ARTIM TRANSPORTATION SYSTEM, INC. 185
to require the Respondent to pay the contributions omitted
during the backpay period to the Pension Fund. However,
Morande disclaimed knowledge as to whether the Fund
would accept a tender of the omitted premiums and restore
Batcheller's pension insurance in the status it would have
been absent the discrimination. The question, he went on to
say, has not been presented to the trustees who are the sole
arbiters in the matter.27 It is this uncertainty as to whether a
tender of contributions will be accepted by the Trustees and
the status quo at the time of the discrimination restored in
respect to Batcheller's pension rights that has prompted the
Regional Director to request inclusion of a provision in this
Decision granting leave to reopen the record on motion.
However, to accede to the request, and I do not, would only
invite further delay in what has already been a protracted
proceeding. More important is the fact that the contingency
the Regional Director envisions can be provided for at this
time . Under Section 10(c) of the Act, the Board has the
power to order restoration of insurance rights and to
provide alternative relief.28 Accordingly, I shall recom-
mend that Respondent attempt to procure for Batcheller
the restoration of his pension rights and privileges as they
had existed immediately prior to his unlawful discharge on
November 30, 1967, by tendering to the Pension Fund the
amount of $1,566.00 which represents the contributions
Respondent would have made to the Pension Fund during
the backpay period on Batcheller's behalf absent the
wrongful discharge or, if exact restoration is not possible,
that the Respondent procure substantially equivalent
pension insurance rights and privileges for Batcheller.
F. Vacation Time
As an employee with more than 9 years of service with
the Respondent, Batcheller is entitled to a 3-week vacation.
Sometime in March 1971 he requested and was denied a 1-
week vacation to attend this hearing. Jack McMahon,
Respondent's operation manager for its city division and
the individual who had denied the request, testified that the
application was rejected because he believed the matter of
Batcheller's vacation time and holiday pay would be
resolved in this proceeding. In his brief, the Regional
Director poses the question whether Batcheller is entitled to
normal vacation benefits in 1971. The question is moot, of
course, but if guidance is sought it is suggested that the
Region obtain compliance with the Board's Order and the
court's decree under which the Respondent is obligated to
restore Batcheller to his former or substantially equivalent
position, "without prejudice to his seniority or other rights
and privileges," and this includes the restoration of his
vacation time and holiday pay from on and after November
30, 1967.
RECOMMENDED ORDER
On the basis of the foregoing findings and conclusions
and the entire record in this case, it is hereby ordered that
Respondent, Artim Transportation System, Inc., its
officers, agents, successors, and assigns pay to Everett W.
Batcheller as net backpay herein determined to be due the
amount of $29,245.82 with interest at the rate of 6 percent
per annum computed on the basis of the quarterly amounts
of net backpay due, less any tax withholding required by
law; 29 that Respondent pay to Batcheller the amount of
$1,119.20 as reimbursement for medical expenses and
health insurance premiums; and that Respondent attempt
to procure for Batcheller the restoration of all his rights and
privileges of pension insurance as they had existed
immediately prior to his unlawful discharge on November
30, 1967 by tendering to the pension fund the amounts of
$1,566.00 which represents the contributions the Respon-
dent would have made to the pension fund during the
backpay period on Batcheller's behalf, or procure substan-
tially equivalent pension insurance rights and privileges for
Batcheller.
27 Article 17, section I, in the April I, 1967, collective-bargaining
contract between the Respondent and Teamsters Union Local No 142,
repeated in the April I, 1970, contract between the parties, recites in part
The Trustees of the Fund shall have the sole power (a) to construe the
provisions of the Trust Agreement and rules and regulations and all terms
used therein , and (b) to determine all disputes with respect to eligibility, the
right to participate in benefits of the Fund, time, method of payment,
payment during periods of Employee illness or disability, methods of
enforcement of payment and related matters, and any construction
adopted and any determination made by the Trustees in good faith shall be
final and binding upon all Employers, Employees, participants, legal
representatives, dependents, relatives, and all persons and parties
28 See, for example, CB Cottrell & Sons Company, 34 NLRB 457,
471-472, Continental Oil Company v N L R B, 113 F 2d 473, 485 (C A 10),
enforcing as modified 12 NLRB 789, remanded for other reasons 313 U S.
212
29 Appendix C attached
186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
1963 1964 1965 1966 1967
D. Pearson 2-16-59 $ 9,014.99 $ 9,410 . 94 $ 9,730.57 $ 9,845 . 77 $ 10 ,452.25
C. Byquist 6-1-59 9,258 . 29 9,854 . 00 10,451.50 10,869.84 10,914.09
L. Scheenya 1-10-59 10 , 193.80 10,680.22 10, 935.54 11,624 . 27 11,425.13
C. Graves 11-13-59 10, 110.92 10,891.67 11,200 .49 10 , 968.53 119429.18
R. Brogg 6-6-61 8,919 . 74 9,710 . 22 10 , 039.40 10,014 .70 10,374.06
D. Donato 6-5-61 9,885.36 10,255.35 11,200.41 11 , 261.01 11,081.09
R. Finch 6-27-61 9,534 .83 10 , 008.67 10,604 . 63 8,933 . 50 9,893.21
C. Hawk 8-11-61 10,070 . 26 9,460.03 10,571.45 10,072.60 9,542.17
J. Boll 8-25-61 9,436 .40 10 , 082.50 11,069.75 10,435 .87 10,752.44
R. Artier 9-5-61 8,748.18 9,549 . 00 10 ,324.26 10,137 . 15 11,020.91
Everett Batcheller 10,571 .85 10 , 124.03 10,475. 13 11,511 . 52 8,820.16
J. Oliphant 10-17-61 9,736.75 9 ,304.46 10,491 .89 10,415.17 10,218.19
D. Gardener 12-4-61 8,606 .34 8,444 . 67 9,892.45 10,056 . 45 9,755.91
R. Leesow 12-5-61 9,004 . 02 9,033 . 02 9,135.69 9,599.98 9,665.80
K. Yeas 1-28-62 9,008.94 9,843.45 10,357.20 10,700.60 10,617.41
P. De Boer 2-7-62 9 , 250.36 9,923 .32 10 , 204.26 10,400.47 10,727.44
W. Brewer 4-26-62 9, 114.33 10,708 .76 11,513 . 56 11,539.44 11,462.62
R. Ericks 2-13-63 7 ,530.76 9,512.93 9 ,311.66 9,044.49 9,968.11
C. Mathews 2-13-63 8,006 . 98 10 ,495.72 10,482 .98 10,937.05 10,817.34
C. Nelson 3-16-63 7,101.99 8,802.82 9,739.27 10, 629.31 10 , 733.62
L. Richardson 3-18-63 6,784 .46 9,086.84 10,506 . 53 9,971.07 9,852.16
Total $210,703.43
Average 10 , 535.17
105.23 of Average 11,086.16
APPENDIX B
1968 1969
3 3 4 41 2 4 1 2 1 2 3
D. Pearson $ 2,784.10 $ 3,267 . 57 $ 2,662.77 $ 2,841 . 40 $ 3,019 .86 $ 3,169 .82 $ 3,507 .85 $ 3,848 . 31 $ 2,680 .48 $ 1,072.44 $ 3,026 . 68 $ 3,415.54
C. Byquist 2 , 768.46 2,892.57 2,807 . 00 2,834.92 3,139.65 3,401 . 86 3,864.57 3,566.24 2,937.34 581.13 3,131.65 3,326.17
L. Scheenya 3,204.60 3,823.42 3,243.63 2,989.17 3,322.03 3,788.84 3,750.81 4,383 . 60 2,957.94 895.48 3,392 . 14 4,492.43
C. Graves 3,032 . 71, 3,249 . 48 3,249.13 3,018.05 3,329 . 11 3,648 . 47 3,545.18 3,963 . 24 2,938.61 861.49 2,933.73 4,239.59
R. Brogg 2,652 . 50 2,659 . 12 3,013.53 2,713.67 2,972 . 26 3,137.15 3,072.82 3 ,467.81 2,824.45 327.12 2,812 . 10 3,483.80
D. Donato 3,104 . 41 3,543.52 3,257 .77 3,073 . 06 3,292 .18 3,660.47 3,685.54 3,866.82 2,879.50 752.12 2,894.11 3,878.89
R. Finch 2,410. 57 3,033.74 2,353.49 2 , 618.18 2,421.07 3,395 . 29 3,298.49 3,414.45 2,387 . 54 917.93 3 , 071.43 3,631.97
C. Hawk 2,896 . 61 3,171.15 3,056 . 74 2,755 .30 3,081.12 3,489 . 46 3,379 . 05 3,526.09 3,364.61 196 . 11 3,021.28 3,392.90
J. Boll 2,874.00 3,152.89 3,008 . 81 2,930 . 20 3,174.24 3,044.77 3,320 .48 3,668.59 2,844.06 786.29 2,911.15 3 , 722.88
R. Artie 3,103.07 3,163 . 22 2,633.69 2,946.50 3,050.27 3,459.30 3 , 180.18 3,446 . 17 2,760.60 667.84 3,051.24 4,122.84
J. Oliphant 2,643.13 3,033 . 15 2,994 . 64 2,755.32 3,013.52 3,285 . 95 3,298.50 3,744 .86 2,503.12 431.79 2,143.44 2,441.25
D. Gardener 2,625 .30 2,732.26 2,784.59 2,547.05 2,818.02 2,996 . 07 2,750.48 2,896.22 2,458.23 703.70 2,917 . 64 3,415.54
R. Lessow 2 , 254.32 2,711 . 81 2,584 .36 2,434 .88 2,481.60 3,255 .86 2,369.44 2,835.18 2,429.77 664.77 2,173.10 2,736.34
K. Yeas 2,796 . 14 3,260 . 10 2,958.50 2,772 .42 2,919 . 22 2,754.78 3,023.34 2,791 . 51 2,244.37 453.41 2,590.67 3,386.88
P. De Boer 2,829 .89 3,113.97 2,857.70 2,729.58 3,072.48 3,239.54 3,093.32 3 ,438.55 2 ,388.16 842.75 2,914.20 3 , 698.81
W. Brewer 3 , 115.18 3,253 . 24 2,741 . 20 2,701 .47 3,071.49 3,301 .48 2,620.98 3,803.52 2,810.86 601.52 2,685.79 3,831.64
R. Ericks 2 , 629.81 3,106.45 3,220 . 26 2,829.22 2,757 . 09 3,131.48 3,365.38 3,131.00 2,693.81 673 . 41 2,856.26 3,720.09
C. Mathews 3,151.07 3 ,340.91 3,087 . 41 3,043.80 3,053 . 61 3,180,54 3,384 . 66 3,352.26 2,937 .77 582.16 2,665.01 3,459.24
C. Nelson 2 9 505.17 3,152.96 2,811.94 2 , 705.63 3,077.60 3 , 235.09 3,017.60 3 , 344.78 2,749 .74 583.79 2,733.03 3,657.33
L. Richardson 259.26 2,466 . 63 2,547.05 2,852.90 2,883.83 3,331 . 26 3,323 . 59 3,701.01 2,842.16 668.05 2 ,833.46 3,726.15
Total $55,973.65 $63,328.16 $57 , 874.21 $55,992.72 $59 , 950.25 $65,908.34 $64,852 . 26 $70 , 190.26 $54,633.12 $13,263.30 $56,758.11 $71,780.28
Average 2 , 798.68 3,116.41 2,893.71 2,799.64 2,997.51 3,295 . 42 3,242.61 3,509.51 2,731.66 663.17 2,837.91 3,589.01
105.232 of
Average 2,945.05 3 , 279.40 3 , 045.05 2,946.96 3,154.28 3,467.77 3,412.20 3 , 693.06 2,874.53 697.85 2,986.33 3,776.71
1970
00
188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX C
Calendar
Quarter
Gross
Earnings
Interim
Earni_fts
Net Back
r
4-67 $9,238.47 $8 ,820.66 $ 417.81
1-68 2 , 945.05 2,945.05
2-68 39279.40 39279.40
3-68 3 , 045.05 3,045.05
4-68 2 , 946.06 2,946.06
1-69 3,154.28 1,270.85 a1 2,478.12
115.31 1
(710.00) 1
2-69 3 , 467.77 894 .67 1 2,325.10
558.00 e/
(310.00) 1
3-69 3,412 . 20 280.80 1 3, 131.40
4-69 3,693 .06 2,250.70 l o442.36
1-70 2 , 874.53 1,940 . 85 f/ 933.68
2-70 697.85 942.75 1 -
3-70 2,986.33 461.25 1 2,525.08
4-70 3,776.71 - 3,776.71
$29,245.82
a Earnings from interim employer Carlson Trucking Company.
1 Expenses incurred in holding interim employment with Carlson*
c Earnings from interim employer Midwest Emery Freight System.
J Expenses incurred in holding interim employment with Midwest
Emery.
1 Earnings from interim employer Tri-State Coach Lines.
1 Earnings from interim employer Brady Motor Freight.
ARTIM TRANSPORTATION SYSTEM, INC.
APPENDIX D
189
Contributions Required by Contract from Artim Transportation System , Inc., to
Pension Fund of Teamsters Union. Local 142
Period Amt. per week
4-1-67 through 3-31-68 $ 8.00
4-1-68 m 3-31-69 9.00
4-1-69 m 3-31-70 10.00
4-1-70 m 10-1-70 11.00
10-1-70 m present time 12.00
Computation of Contributions which would have been made by Artim Transporta-
tion System , Inc., to Pension Fund of Teamsters Union , Local 142,on behalf of
Batcheller
1967 4 weeks @ $8.00 per week $ 32.00
1968 13 104.00
1968 39 " 9.00 351.00
1969 13 " of 117.00
1969 39 " 10.00 390.00
1970 13 " of 130.00
1970 26 " 11.00 286.00
1970 13 " 12.00 156.00
Total $1,566.00