Associated Transport Co. of Texas, Inc.

National Labor Relations Board - Board Decisions

Nov 9, 1971

194 N.L.R.B. 62 (N.L.R.B. 1971)

62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Associated Transport Company of Texas , Inc., and
Transamerica Transport , Inc. and General Drivers,
Warehousemen & Helpers Local Union No. 968,
affiliated with International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers of
America. Cases 23-CA-2636, 23-CA-2690, and
23-CA-2690-2
November 9, 1971
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN MILLER AND MEMBERS JENKINS
AND KENNEDY
On October 8, 1968, the National Labor Relations
Board issued its Decision and Order in the above-
entitled proceeding, finding that Respondent Associ-
ated Transport Company of Texas, Inc., had, inter
alia, violated Section 8(a)(3) and (1) of the National
Labor Relations Act, as amended.' The Board's
Order directed Respondent Associated, its officers,
agents, successors, and assigns, to offer immediate
and full reinstatement to 17 employees and to make
them whole for the period of time for which they were
discriminatorily denied employment. On June 2,
1970, the Court of Appeals for the Fifth Circuit
granted the Board's Motion for Judgment by Default
and on June 23, 1970, issued its judgment enforcing
the Board's Order in full against Respondent Associ-
ated, "its officers, agents, successors and assigns." 2
On October 8, 1970, the Regional Director for
Region 23 issued and served on the parties a backpay
specification and notice of hearing which alleged,
inter alia, that Respondent Transamerica Transport,
Inc., was an "alter ego" and/or "successor" employer
of Respondent Associated, and as such was jointly
and severally liable with Respondent Associated for
remedying the unfair labor practices found. Thereaft-
er, Respondent Associated filed an answer to the
specification and Respondent Transamerica filed an
answer and a first amended answer.
Respondent Associated's answer did not specifical-
ly dispute the accuracy of the figures used in
computing gross backpay set forth in the backpay
specification and made no effort to explain its failure
to do so, as provided by Section 102.54(b) and (c) of
1 173 NLRB 100.
2 N.L.R.B. v. Associated Transport Company of Texas, Inc, No. 28469.
3 The Trial Examiner granted the General Counsel 's motion forj
udgment on the pleadings against Respondent Associated.
4 Respondent Transamerica moved that the record be reopened so that
it might have an opportunity to subpena witnesses necessary for its defense
and to permit testimony on the backpay of Leonard R. Dravecky. The
motion is denied for the reasons that Respondent had ample opportunity
to subpena witnesses during the course of the hearing which extended from
January 26 to March 9 , 1971, and we have accepted, see infra, social
security records pertaining to the interim earnings of Leonard R
the Board's Rules and Regulations, Series 8, as
amended. On November 20, 1970, the General
Counsel filed a motion to strike a portion of the
answer of each Respondent, a motion that specific
calculations of the amounts of net backpay be
deemed true and correct, and a motion for judgment
on the pleadings against both Respondents. Respon-
dent Transamerica filed an opposition thereto. On
January 14, 1971, Trial Examiner Arthur Leff issued
rulings on General Counsel's motions wherein he
granted the motion that specific calculations of the
amounts of backpay due be deemed to be admitted as
correct because of Respondent Associated's failure to
plead specifically as required by Section 102.54(b) of
the Board's Rules. The Trial Examiner also granted
the motion to strike part of Respondent Associated's
answer because it attempted to put in issue subject
matter which had been fully litigated and determined
adversely to Respondent Associated in the prior
unfair labor practice proceeding. However, the Trial
Examiner referred the motion for judgment on the
pleadings against Respondent Associated to the Trial
Examiner conducting the hearing, and denied both
motions as to Respondent Transamerica without
prejudice.
On May 28, 1971, Trial Examiner Asher issued the
attached Supplemental Decision in which he found
that 17 claimants were entitled to backpay.3 Thereaft-
er Respondent Transamerica filed exceptions to the
Supplemental Decision and a supporting brief.4 The
General Counsel filed limited cross-exceptions to the
Trial Examiner's Supplemental Decision. On Septem-
ber 2, 1971, Respondent Transamerica filed a supple-
mental memorandum brief.5
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 proceeding 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 briefs, and the entire record in this proceeding,
and hereby adopts the findings,6 conclusions, and
Dravecky.
5 On June 8, 1971, the Board issued an Order To Show Cause why the
Board should not receive evidence in the form of Social Security
Administration documents , or why Respondent Transamerica should not
be permitted to file a supplemental brief with the Board based on said
documents . The General Counsel, on June 15 , 1971, in a response to the
Board's Order To Show Cause stated that he had no objection to the
receipt of the Social Security documents attached to the Board's Order or
to Respondent Transamerica being permitted to file a supplemental brief
based on this exhibit.
6 In section B, 2, (a), (ii), and fn . 18 of his Supplemental Decision the
194 NLRB No. 12
ASSOCIATED TRANSPORT CO. OF TEXAS, INC. 63
recommendation of the Trial Examiner, as modified
herein.
1. The Trial Examiner found, and we agree, for the
reasons set forth in his Supplemental Decision that
Transamerica is a successor to Associated and that
both are jointly and severally liable for all backpay to
the 17 claimants listed in the attached Appendix.
We also find, however, that Transamerica is the
"alter ego" of Associated. Thus, the record shows that
Calvin Barker, Sr., former president of Associated, in
documents filed with the Railroad Commission of
Texas, swore under oath that he "controls" Transam-
erica. In J. Howard Jenks, d/b/a Glendora Plumbing,?
the Board found that a successor was an "alter ego"
where the "principal investor in the new Company
... the owner of [the predecessor] . . . remained in
control." As the record shows that control of the two
Respondents has not changed, we find that Transam-
erica is an alter ego of Associated. Accordingly, we
find that the Trial Examiner's grant of the General
Counsel's motion for judgment on the pleadings
against Respondent Associated is applicable as well
to Associated's alter ego, Transamerica.
2. In its supplemental memorandum brief, Tran-
samerica requested, inter alia, that the social security
records be ruled controlling as to any interim earnings
not testified to by claimant Leonard R. Dravecky or,
in the alternative, if it appears that there are
discrepancies, that the hearing be reopened unless
Dravecky waives said discrepancies. The General
Counsel and the Charging Party, having been served
copies of Respondent Transamerica's supplemental
memorandum brief, have not responded thereto. In
these circumstances, and in the abence of any
objection, we grant Respondent Transamerica's
request to admit the documents into evidence8 and
deny its request to reopen the hearing.
The use of such reports from the Social Security
Administration has been well recognized by the
Board and the courts .9 Accordingly, we find that the
social security records are controlling as to interim'
earnings of Leonard R. Dravecky where his testimony
is at variance with those records. We include as
interim earnings, however, those amounts testified to
by Dravecky which are not included in the social
security records.
An analysis of these records shows certain discre-
pancies in Dravecky's testimony as to the source and
the amounts of money he earned during certain
quarters of the backpay period and we have modified
the amount of backpay due. We find that Dravecky is
entitled to backpay as follows:
1967--3 (3 weeks)
Gross backpay due (3x155) 465
Less: interim earnings 0 0
Net backpay
465 465
1967-4 (9 weeks)
Gross backpay due (9x155) 1,395
Less : interim earnings
Key Oil Company 415 415
Net backpay 980
1968--1 (1 week)
Gross backpay due 155
Less: interim earnings
Hardy Equipment Co.
Key Oil Company 10
82 10/M.W
180 62
Net backpay 0
1968-2 (13 weeks)
Gross backpay due (13x155) 2,015
Less : interim earnings
Hardy Equipment Co. 88
Wilcox Construction Co. 580 668
Net backpay 1,347
Trial Examiner inadvertently stated that certain events relatmg to Leonard 10/ Contrary to the Trial Examiner we include
R. Dravecky occurred in February and March 1970. The record shows that
$180 as interim earnings during this periodthese events took place in 1968. We hereby correct these inadvertent errors.
7 172 NLRB No. 197. as it was reported by Key Oil Company to
8 The social security records are marked Resp. Exh. 3.
the Social Security Administration as wages.9 Cf. L. B. Hosiery Co, Incorporates 99 NLRB 630, 638; East Texas
Steel Castings Company, Inc, 116 NLRB 1336, 1340.
64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1968-3 (11-1/2 weeks)
' Gross backpay due (11-1/2x155) 1,783
Less : interim earnings
Wilcox Construction Co. 561 561
Net backpay 1,222
1968-4 (13 weeks)
Gross backpay due (13x155) 2,015
Less: interim earnings
Wilcox Construction Co. 796
Wyatt's Division, U.S.
Industries 122 918
Net backpay 1,097
1969-1 (13 weeks)
Gross backpay due (13x155) 2,015
Less : interim earnings
Wyatt's Division, U.S.
Industries 113
North Loop Equipment Co. 426
Atlas Truck Lines 42
R. W. McKinney 29
Norman & Son Inc. 16 626,
Net backpay 1,389
1969-2 (13 weeks)
Gross backpay due (13x155) 2,015
Less: interim earnings
North Loop Equipment Co. 1,592
R. W. McKinney 270 1.862
Net backpay
1969-3
Gross backpay due
interim earnings exceeded
gross backpay due
1969-4 (4 weeks)
Gross backpay due (4x155)
Less : interim earnings
Humble Oil & Refining Co. 11
(Larson's Enco Service Station)
Net backpay
620
228
153
392
11 Social security records show that Dravecky had interim earnings in amounts
of $228 and $364 in 1969--4 and 1970-1, respectively, from Humble Oil &
Refining Co., whereas Dravecky testified that he had interim earnings during
these same periods from Larson's Enco Service Station. Since we are unable
to resolve this conflict from the'record we direct the Regional Director to
ascertain whether Larson' s Enco Service Station is a subsidiary or lessee,
etc., of Humble Oil & Refining Co. If that is so,then the backpay remains the
same . If the Regional Director determines that Dravecky received wages from
both Larson's Enco and Humble Oil & Refining Co. during the period then his
backpay should be adjusted accordingly. 4
ASSOCIATED TRANSPORT CO. OF TEXAS, INC.
1970-1 ( 13 weeks)
Gross backpay due (13x155)
Less : interim earnings
Humble Oil & Refining Co. -
(Larson ' s Enco Service Station) Llj
Coulter & Bayett (C & B Truck &
Material Services)
Net backpay
1970-2 (13 weeks)
Gross backpay due (13x155)
Less : interim earnings
Coulter & Bayett (C & B Truck &
Material Services)
C.C. Dean
L.O. Block
Net backpay
1970-3 (13 weeks)
Gross backpay due (13x155)
Less : interim earnings
L.O. Block
Willful loss 7-1/2x155
Net backpay
Total net backpay due through 1970---3
SUPPLEMENTAL ORDER
Pursuant to Section 10(c) of the National Relations
Act, as amended, the National Labor Relations Board
hereby orders that Respondents, Associated Trans-
port Company of Texas, Inc., and Transamerica
Transport, Inc., their officers, agents, successors, and
assigns , shall pay to the employees involved in this
proceeding, as net backpay herein determined to be
due, the amounts set forth opposite their names in the
attached Appendix, plus interest accrued to the date
of payment in accordance with the formula set forth
in Isis Plumbing & Heating Co., 138 NLRB 716.
APPENDIX
William E. Allen $ 877
Marvin Lee Ayles 93
Joe T. Bailey 788
Clifford R. Buck 871
Thomas E. Courtney 0
Leonard R. Dravecky, 8,9991
Elmer H. Henry 974
Hollis Jack Holmes 424
Leonard C. Jenkins 138
Conda Muse 443
Hurles E. Pace 483
Harvey H. Sanders 111
Carl E. Satcher 333
C. W. Stone 626
364
858
165
268
949
632
863
65
2,015
1,222
'793
2,015
1.382
633
2,015
1,495
520
$8,991.00
C. B. Trout 130
Roy L. Wiggins 696
David W. Williams 104
1 This figure is backpay due through the third calendar quarter of 1970 .
only. For this period Dravecky is entitled to backpay in the amount of
$8,991 . Net backpay from October 1, 1970, through January 26, 1971, the
date that Dravecky was offered reinstatement, is still to be determined -
TRIAL EXAMINER'S SUPPLEMENTAL
DECISION
SYDNEY S. ASHER, Trial Examiner: On October 8, the
Board issued its Decision and Order directing Associated
Transport Company of Texas, Inc.,' herein called Respon-
dent Associated, among other things, to make whole
William E. Allen, Marvin L. Ayles, Joe Bailey, Clifford R.
Buck, Thomas E. Courtney, Leonard R. Drevecky, Elmer
H. Henry, H. J. Holmes, Leonard C. Jenkins, Conda Muse,
Hurles E. Pace, Harvey H. Sanders, Carl E. Satcher, C. W.
Stone, C. B. Trout, Roy Wiggins, and David W. Williams
for their losses resulting from unfair labor practices
committed by Respondent Associated in violation of
Section 8(a)(1) and (3) of the Act 2 On June 2, 1970, the
United States Court of Appeals for the Fifth Circuit
granted the Board's motion for judgment by default and on
June 23, 1970, issued its Judgment enforcing the Board's
Order against Respondent Associated, "its officers, agents,
successors and assigns." 3
i Mr. Klepak filed an answer on behalf of Respondent Associated but
withdrew his appearance prior to the hearing and did not participate
thereafter.
2 173 NLRB No. 23.
3 N.LR.B v. Associated Transport Company of Texas, Inc., No. 28469
(C.A. 5).
66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A controversy having arisen over the amounts of backpay
due under the terms of the Board Order and court decree,
on October 8, 1970, the Board's Regional Director for
Region 23 issued backpay specification and notice of
hearing setting forth the specific amounts of backpay which
the General Counsel claims are due each of the claimants.
This alleged, among other things, that Respondent
Associated ceased operations on or about December 15,
1969, and that Transamerica Transport, Inc., herein called
Respondent Transamerica, is an "alter ego" and/or
"successor" employer of Respondent Associated and, as
such, jointly and severally liable with Respondent Associat-
ed in remedying the unfair labor practices found by the
Board. A copy of the backpay specification and notice of
hearing was served upon each of the Respondents.
Thereafter Respondent Associated filed an answer and
Respondent Transamerica filed an answer and a first
amended answer. Respondent Associated's answer alleges,
among other things, that Respondent Associated "ceased
active operations in December 1969" and entered into a
contract of sales with Transamerica on December 11, 1969,
whereby Transamerica agreed to purchase "all trucks,
trailers, auto parts, and office furniture owned by
Associated." Thereafter the General Counsel filed a motion
to strike a portion of the answer of each Respondent, a
motion that certain factual allegations of the backpay
specifications (specific calculations of the amounts of net
backpay due) be deemed true and correct, and a motion for
judgment on the pleadings against both Respondents.
Respondent Transamerica filed an opposition thereto. On
January 14, 1971, Trial Examiner Arthur Leff issued rulings
on General Counsel's motion to strike portion of answer
and motion for judgment on the pleadings. As to
Respondent Associated, he granted the motion that specific
calculations of the amounts of net backpay due be deemed
to be admitted as correct, and also granted the motion to
strike part of Respondent Associated's answer. The motion
for judgment on the pleadings against Respondent
Associated was "referred to the Trial Examiner conducting
the hearing for such disposition as he may deem
appropriate." As to Respondent Transamerica, Trial
Examiner Leff denied both motions without prejudice.
Pursuant to notice, a supplemental hearing was held
before me in Houston, Texas, on January 26 and March 9,
1971. All parties were given an opportunity to be
represented and to participate fully in the hearing. After the
close of the hearing the General Counsel and Respondent
Transamerica filed briefs, which have been duly
considered.4
Upon the record of the supplemental hearing, and from
my observation of the witnesses who testified' therein, I
make the following:
FINDINGS OF FACT
A. Liability of Respondent Associated
As mentioned above, Trial Examiner Leff ruled that the
computations of the net backpay due each of the claimants
4 Respondent Transamerica's brief contains a request "that no Trial
Examiner's decision be filed in this matter until such time as the Social
Security Administration 's and other records relating to the backpay of
Leonard Drevecky be furnished to counsel for Transamerica and
"be deemed admitted by Respondent Associated to be true
and that said Respondent be ... precluded from
introducing any evidence at the hearing controverting said
allegations." As these allegations must be deemed to be
true, and as there is no further question of the liability of
Respondent Associated with regard thereto, the General
Counsel's motion for judgment on the pleadings against
Respondent Associated, on which Trial Examiner Leff
reserved ruling, is now granted. Accordingly, Respondent
Associated is liable for backpay to the various claimants in
the following amounts:
1. William E. Allen
Gross weekly backpay: J $104. Period : 9/11/67
through 7/13/68.
1967--3 (3 weeks)
Gross backpay (3 x $104)
Less: Interim earnings
(South Hampton Co.) $ 312
Net backpay 171
141
1967-4
Gross backpay (13 x $104) 1,352
Less: Interim earnings
(Younger Bros.) 608
(Teamsters Local No. 968) 300 908
Net backpay 444
1968-1
Gross backpay (13 x $104) 1,352
Less: Interim earnings
(Younger Bros .) 1.060
Net backpay
292
Total $877
In each remaining calendar quarter in
his backpay period, interim earnings
exceeded gross backpay due.
2. Marvin Ayles
Gross weekly backpay: $121. Backpay period:
9/11/67 through 11/10/68.
1967-3 (3 weeks)
Gross backpay (3 x $121) $ 363
Less : Interim earnings
(Industrial Personnel) 270
Net backpay
93
Total $93
In each remaining calendar quarter in
his backpay period, interim earnings
exceeded gross backpay due.
reasonable time for the preparation and filing of a supplemental Brief by
counsel for Transamerica be granted." The request is denied.
5 Computed in accordance with a formula described in the
specifications , to which neither Respondent objects.
ASSOCIATED TRANSPORT CO. OF TEXAS, INC. 67
12 weeks)
3. Joe T. Bailey
d
1969--3 (
Gross backpay (12 x $88)
Less: Interim earnings
1,056
0161s
Gross week back : $89• Back9a__
y perio
9/11/67 through 9/23/68.
1967--3 (3 weeks)
267
(City of Beaumont)
Net backpay
.
40
Total $871
Gross backpay (3 x $89)
$
-0-
Less: Interim earnings
267
Net backpay . Thomas E. Courtney
1967--4 Gross weekly backva : $93. Backpay period:
Gross backpay (13 x $89)
1,157
Less: Interim earnings
l Fowler)
840
9/'11/67 through 1/1/69.
I(Erce 317
Net backpay
19681
n each calendar quarter during his
entire backpay period , interim earnings
exceeded gross backpay due.
Gross backpay (13 x $89)
1,157
Less: Interim earnings
(Ercel Fowler) 494
le Transport Co.) 45 9953(E
6. Leonard R. Drevecky
Gross weekly backpay: $155. Backpay period:
ag
204
Net backpay
September 11, 1967, through present.
Excepted periods: December 3, 1967, through
Total $788
In each remaining calendar quarter in
January 26, 19968, February 24 through
May 15, 1968, and July 17 through December 1,
1969.
his backpay period, interim earnings 1967--3 (3 weeks)
exceeded gross backpay due. Gross backpay (3 x $155) $ 465
4. Clifford R. Buck Less : Interim earnings -0-
Net backpay $465
Gross weekly backpay: $88. Backpay period:
9/11/67 through 9/20/69. 1967-4 (9 weeks)
In 1967--3 (3 weeks only) interim earnings
Gross backpay (9 x $155) 1,395
Less : Interim earnings
exceeded gross backpay due. (Key Oil Co.) 415
Net backpay 980
1967--4
Gross backpay (13 x $88) 1,144 1968-1 (4 weeks)
Less: Interim earnings Gross backpay (4 x $155) 620
(Adair Construction) 120 Less: Interim earnings
(Beaumont Transit Co.) 150 (Key Oil Co.) 180
(Beaumont , Pound Dept.) 625 895 (Hardy Equipment) 82 262
Net backpay 249 Net backpay 358
1968--1 1968--2 (6 weeks)
Gross backpay (13 x $88) 1,144 Gross backpay (6 x $155) 930
Less: Interim earnings Less : Interim earnings
(City of Beaumont) 834 (Hardy Equipment) 88
Net backpay 310 (Wilcox Constr., Co.) 580 668
Net backpay 262
1968--2
Gross backpay (13 x $88) 1,144 1968--3
Less: Interim earnings Gross backpay (13 x $155) 2,015
(City of Beaumont) 1.001
Less : Interim earnings
Net backpay 143 (Wilcox Constr. Co.) 561
Net backpay 1,454
1968-3
Gross backpay (13 x $88) 1,144 1968-4
Less: Interim earnings Gross backpay (13 x $155) 2,015
(City of Beaumont) 1,015 Less : Interim earnings
Net backpay 129 (Wilcox Constr. Co.) 796
Net backpay 1,219
1968--4, 1969-1, & 1969-2,
interim earnings exceeded gross
backpay
68
1969--l
Gross backpay (13 x $155)
Less : Interim earnings
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(North Loop Equipment)
Net backpay
1969--
Gross backpay (13 x $155)
Less : Interim earnings
(North Loop Equipment)
Net backpay
2,015
425
1,590
2,015
In 1969-3 (2 weeks) interim earnings exceeded
gross backpay.
1969--4 (4 weeks)
Gross backpay (4 x X155)
Less : Interim earnings
(Larson's Enco)
Net backpay
620
320
1970--1
Gross backpay (13 x $155)
Less : Interim earnings
(Larson's Enco) 320
(C & B Truck Material) 858 1.178
Net backpay
2,015
1970--2
Gross backpay (13 x $155)
Less: Interim earnings
(C & B Truck)
(C. C. Dean)
(L. 0. Block)
Net backpay
1970--3
Gross'backpay (13 x $155)
Less : Interim earnings
(L. 0. Block)
Net backpay
2,015
300
837
115
268
949 1,332
683
2,015
632
1.383
Total 9 $9,954
7. Elmer H. Henry
Gross weekly backpay: $89. Backpay period:
September 11, 1967, through November 8,
1968. In each of 1967--3 (3 weeks only),
1967--4. and 1968--1, interim earnings
exceeded gross backpay due.
1968-2
Gross backpay (13 x $89) 1,157-
Less : Interim earnings
(Jenkins Sand Co.) 618
Net backpay 539
1968--3
Gross backpay (13 x $89) 1,157
Less : Interim earnings
(Scurlock Oil Co.) 33
(Beard & 1a rtin) 689 722
Net backpay
868
Total $974
In 1968--4 (5 weeks only) interim earnings
exceeded gross backpay due.
8. Hollis Jack Holmes
Gross weekly backpay: $95. Backpay period:
September 11, 1967, through June 10, 1968.
1967-3 (3 weeks)
Gross backpay (3 x $95) $ 285
Less : Interim earnings
(Burns Intl. Detective) 249
Net backpay 36
1967--4
Gross backpay (13 x $95) 1,235
Less: Interim earnings
(Burns Detective) 1,036
Net backpay
1968--1
Gross backpay (13 x $95) 1,235
Less: Interim earnings
(Burns Detective) 1.128
Net backpay
1968--2 (10 weeks)
Gross backpay (10 x $95) 950
Less: Interim earnings
(Burns Detective)
Net backpay
9. Leonard C. Jenkins
435
199
107
82
Total $424
Gross weekly backpay: $93. Backpay Period:
September 11, 1967, through present.
1967--3 (3 weeks)
Gross backpay (3 x $93) $ 279
Less: Interim earnings
(.Maritime Guard)
Net backpay
198
81
In each calendar quarter from 1967-4
through 1970--3, with the exception of
1969--3, interim earnings exceeded gross backpay.
1969--3
Gross backpay ( 13 x $93)
Less : Interim earnings
(Maritime Guard)
Net backpay
$ 1,209
1,152
57
Total J $138
6 Up to the end of 1970-3 only.
Net backpay due thereafter not
mcluded.
7 Up to the end of 1970-3 only. Net backpay due thereafter not
included.
ASSOCIATED TRANSPORT CO. OF TEXAS, INC.
10. Conda Muse
Gross week) backpay : $105. Back a Period:
September 11, 1967 , through October 20,
1966 . Excepted period : September 13 through
November 15, 1967.
1967--4 (6-1/2 weeks)
Gross backpay (6-1/2 x,$105)
Less : Interim earnings
(Teamsters Local 968)
Net backpay
683
650
33
1968--1
Gross backpay ( 13 x $105) 1,235
Less: Interim earnings
(Big Mack Trucking) 655
(Teamsters Local 988 ) 300 955
Net backpay 410
Total $443
In each remaining calendar quarter in his
backpay period, interim earnings exceeded
gross backpay due.
11. Merles E. Pace
Gross weekly backpay : $95. Backpay period:
September 11, 1967, through August 5, 1968.
1967--3 (3 weeks)
Gross backpay (3 x $95) $ 285
Less: Interim earnings
(Farm & Ranch Agri-Chemical) 223
Net backpay 57
1967--4
Gross backpay (13 x $95) 1,235
Less : Interim earnings
(Farm & Ranch) 26
(N.P.C., Inc.) 47
(Woodward Inc.) 368
(Younger Bros .) 368
809 426Net backpay
Total $483
In each remaining calendar quarter in his
backpay period, interim earnings exceeded
gross backpay due.
12. Harvey H . Sanders
Gross weekly backpay: $77. Backpay period:
September 11, 1967 , through February 12,
1968.
1967--3 (3 weeks)
Gross backpay (3 x $77) $ 231
Less: Interim earnings
(John Dollinger, Jr.) 32
(Herman Weber) 27
(Carey Architectural Millwork) 77 136
Net backpay
For 1967--4 interim earnings exceeded gross
backpay.
1968--1 (6 weeks)
Gross backpay (6 x $77)
Less : Interim earnings
(John Dollinger)
Net backpay
13. Carl E. Satcher
462
446
69
95
16
Total $111
Gross weekly backpay : $97. Backpay Periods:
January 12 through January 19, 1967, and
September 11, 1967, through May 31, 1968.
1967-- 1 (1 week)
Gross backpay (1 x $97) $ 97
Less : Interim earnings
Net backpay
For 1967--3. 1967--4. & 1968--1 interim
earnings exceeded gross backpay.
1968-2 (9 weeks)
Gross backpay (9x $97)
Less : Interim earnings
(Dixie Transport) 43
(South Hampton ) 594 637
Net backpay
873
236
Total $333
14. C. W. Stone
Gross weekly backpay : $53. Backpay period:
September 11, 1967, through February 13,
1968.
1967--3 (3 weeks)
Gross backpay (3 x $58) $ 174
Less: Interim earnings -00-
Net backpay 174
1967--4
Gross backpay (13 x $58) 754
Less : Interim earnings
(Teamsters Local 968) 650
Net backpay
1968- 1 (6 weeks)
Gross backpay (6 x $53)
Less : Interim earnings
Net backpay
104
Total $626
70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
15. C. B. Trout
Gross weekly backpay: $130. Backpay periods:
May 8 through May 15, 1967, and September 11,
1967 through September 1, 1968.
1967-2 ( 1 week)
Gross backpay (1 x $130) $ 130
Less : Interim earnings -0-
Net backpay 130
Total $130
In each calendar quarter in the second
backpay period, interim earnings exceeded
gross backpay due.
16. Roy L. Wiggins
Gross weekly backpay: $95. Backpay periods:
February 5 through February 12, 1967, and
March 24, 1967, through March 31, 1969.
1967-1 (2 weeks)
Gross backpay (2 x $95)
Less : Interim earnings
$ 190
(Consolidated Freightways) 111
Net backpay
1967-2
Gross backpay (13 x $95)
Less : Interim earnings
(Leeway Motor Freight) 29
J. V. Harrison Truck) 189
(Consolidated Freightways) 82
1,235
(Texas Solvent $ Chemicals ) 658 958
Net backpay
1967-3
Gross backpay (13 x $95 ) $1,235
Less : Interim earnings
(Texas Solvent) 542
(Pacific Molasses Co.) 353 895
Net backpay
79
277
340
Total $696
In each remaining calendar quarter in his`
backpay period, interim earnings exceeded
gross backpay due.
17. David W. Williams
Gross weekiy backpay: $104. Backpay period:
February 5 through February 12, 1967.
1967--1 (1 week)
Gross backpay ( 1 x $104) $ 104
Less : Interim earnings
Net backpay
-0-
$104
Total $104
B. Liability of Respondent Transamerica
1. In general
a. Facts as to successorship
As the Board previously found, Respondent Association
is a Texas corporation with its principal office in Dallas,
Texas, and previously operated terminals in Dallas,
Houston, and Beaumont, Texas. The Dallas terminal was
closed before December 15, 1969 . Respondent Association
was, prior to December 15,8 engaged in the business of
transporting by truck petroleum, petroleum products, and
dry bulk commodities. Respondent Transamerica filed
Articles of Incorporation with the secretary of state of
Texas on December 3, and its corporate existence began
shortly thereafter. Its stated purposes include: "To engage
in the business of truck transportation, whether as a
common carrier or otherwise."
On December 11 both Respondents entered into a
contract, to take effect on December 16, whereby
Respondent Associated sold all its tangible assets (tractors,
trailers, parts, tools, office furnishings, etc.) and some
intangible assets (prepaid insurance and utility deposits) to
Respondent Transamerica in return for a promissory note
in the sum of $2,500 and the assumption by Respondent
Transamerica of liens outstanding on this equipment.
Respondent Associated retained some intangible assets,
such as accounts receivable and a bank account.
December 15 was the last date on which Respondent
Associated carried out its primary function of transporting
goods, and it did not retain any employees after that date.
Thereafter, its only operation appears to have been to
"phase out" its accounts receivable. It "retained one little
office in the corner" of its former principal office at 6840
Forest Park Road, Dallas. No Certificate of Dissolution has
been filed by Respondent Associated, and it is still legally
in existance.
On December 16 Respondent Transamerica began
operations at all the former locations of Respondent
Associated, including 6840 Forest Park Road, Dallas.
These were the same operations in which Respondent
Associated had engaged. There was no hiatus; the
operations continued without interruption when Respon-
dent Transamerica took over. Respondent Associated had
operated under two certificates issued by the Railroad
Commission of Texas. Shortly after December 16 both
Respondents jointly applied to the Commission for leave to
transfer these certificates to Respondent Transamerica. The
commission ultimately approved the transfer.
Calvin A. Barker was president and a stockholder of
Respondent Associated. He made all major management
decisions. He has no financial interest or corporate office in
Respondent Transamerica and is considered "retired." His
son Calvin A. Barker, Jr. who had been on the payroll of
Respondent Associated, is currently general manager of
Respondent Transamerica. Adrian F. Peterson, at one-time
vice president and a stockholder of Respondent Associated,
became president, a director, and a stockholder of
Respondent Transamerica upon its inception. Edna
8 All dates hereafter refer to the year 1969, unless otherwise noted
ASSOCIATED TRANSPORT CO. OF TEXAS, INC. 71
Frenzel, secretary-treasurer and a stockholder of Respon-
dent Associated on and before December 15, became
secretary-treasurer, a director, and a stockholder of
Respondent Transamerica upon its inception. There was no
change in her duties. Marc H. Richman, who had been on
the payroll of Respondent Associated at one time, became
vice president, a director, and a stockholder of Respondent
Transamerica at its inception.
The equipment used by Respondent Transamerica at first
was confined to that which it had obtained from
Respondent Associated. However, this property was
insured by a different insurance carrier. Respondent
Associated did not acquire any replacement or additional
equipment for some time. At least at the Beaumont
terminal, the tractors bore the name of Respondent
Associated painted on their sides until June 1970, when the
name of Respondent Transamerica was substituted.
As of December 1 Respondent Associated had about 5
shop employees and employed 25 drivers, excluding lease
operators. In addition to their regular pay (20 percent of
their total revenue) those drivers who grossed $3,000 or
more in any month for the company had received a bonus
of 1-1/2 percent, and those who earned $4,000 or more for
the company in any month had been paid a bonus of 3
percent. All employees of Respondent Associated contin-
ued to work in the same capacities for Respondent
Transamerica without interruption,9 and the same is true of
the terminal managers. Eventually, of course, there were
changes in personnel. The above-described system of
compensation established by Respondent Associated for its
employees, including the bonus, was continued in effect by
Respondent Transamerica without change.10 After Decem-
ber 15 the employees of Respondent Transamerica
continued to receive their pay in checks bearing Respon-
dent Associated's name and drawn on Respondent
Associated's payroll bank account. Just how long this
practice continued is not clear.11 In addition, for some time
after December 15 the quarterly reports for unemployment
taxes levied by the State of Texas were filled out in the
name of Respondent Associated. This practice was
eventually changed, probably in April 1970.12
After December 15 Respondent Transamerica served the
same customers who had previously been serviced by
Respondent Associated. Eventually some old customers
were lost and some new ones acquired. For about 3 months
the printed waybills used by Respondent Transamerica
bore the name of Respondent Associated, but after that
period of time they were altered.
Prior to December 15 Respondent Associated had
9 There is evidence tending to indicate that the terminal managers were
instructed to have each employee fill out an application to work for
Respondent Transamerica. However, Hollis J. Holmes, a driver in the
Beaumont terminal, testified that he never filled out such an application.
Although the General Counsel called for the production of such
applications, it is not clear from the record whether they ever were, in fact,
produced.
10 Respondent Associated had established a group health insurance
program for its employees, paid for entirely by the employees. It is not
clear whether this program was continued by Respondent Transamerica.
11 Hollis J. Holmes, a driver employed at Respondent Transamenca's
Beaumont terminal, testified that he was still receiving his pay on checks
drawn on Respondent Associated 7s bank account as late as January 1971.
On the other hand, Frenzel (who worked at Respondent Transamerica's
Dallas office) testified that her paycheck was no longer drawn on
entered into interlining agreements with certain other
carriers. These contracts continued to be honored by
Respondent Transamerica for some time after December
15. Ultimately, new agreements in Respondent Transameri-
ca's name were executed.
From its inception, Respondent Transamerica main-
tained a separate bank account and its own set of financial
records. However, as late as February 1970 its safety
engineer addressed a communication to its drivers on paper
bearing Respondent Associated's name typed at the top.
And until March or April 1970 the dispatcher at
Respondent Transamerica's Beaumont terminal continued
to answer the telephone by saying "Associated."
b. Contentions and conclusions regarding
successorship
The backpay specification alleges, and the answers deny,
that Respondent Transamerica is an "alter ego" and/or
"successor employer" of Respondent Associated, and as
such is jointly and severally liable with Respondent
Associated in remedying unfair labor practices found to
have been committed by Respondent Associated , including
backpay. Respondent Transamerica, in its brief, strenuous-
ly maintains that the General Counsel "did not prove that
Respondent Transamerica . . . is an alter ego and/or
successor employer of Respondent Associated."
Respondent Transamerica points out in its brief that
there was record evidence "that the continuity of custom-
ers, employees and corporate name was temporary and due
to delay in approval of the transfer of operating permits."
In addition Frenzel , a witness for the General Counsel,
testified that Respondent Transamerica paid its employees
with checks drawn on Respondent Associated 's payroll
account , and filed quarterly tax returns in Respondent
Associated's name , only temporarily pending receipt of an
employer's identification number from the Federal
Government .13 Those arguments do not impress me. In the
light of the continuity of operations , the continuity of
employment and the identical employee complement
(including terminal managers), the identical customers
served, the identical interlining arrangements utilized, afid
the identical equipment used, I am convinced, and find,
that the employing industry remained substantially un-
changed and that Respondent Transamerica is a successor
employer of Respondent Associated.14
In Perma Vinyl Corporation, et al., the Board stated: 15
We are persuaded that one who acquires and
operates a business of an employer found guilty of
Respondent Associated 's account by April 1970.
12 It is not entirely clear whether the employees at Beaumont and
Houston were advised of the change of ownership. Frenzel testified that
notices were typed for posting at the terminals . But Holmes testified that
he never saw any such notice in Beaumont.
13 Respondent Transamerica produced no clear cut evidence of the date
on which it received word of the approval of the transfer of the permits, or
received a Federal employer's identification number, although such proof
presumably was readily at hand. It is therefore difficult to determine
whether it acted promptly after receiving such information.
14 Golden State Bottling Company, Inc., d/b/a Pepsi-Cola Bottling
Company of Sacramento and All American Beverages, Inc. d/b/a Pepsi-Cola
Bottling Co of Sacramento, 187 NLRB No. 142.
15 164 NLRB 968, 969, enfd . 398 F .2d 544 (C.A. 5).
72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unfair labor practices in basically unchanged form
under circumstances which charge him with notice of
unfair labor practice charges against his predecessor
should be held responsible for remedying his predeces-
sor's unlawful conduct. [Fn. omitted.]
When a new employer is substituted in the employing
industry there has been no real change in the employing
industry insofar as the victims of past unfair labor
practices are concerned, or the need for remedying
those unfair labor practices. Appropriate steps must still
be taken if the effects of the unfair labor practices are to
be erased and all employees reassured of their statutory
rights. And it is the successor who has taken over
control of the business who is generally in the best
position to remedy such unfair labor practices most
effectively. The imposition of this responsibility upon
even the bona fide purchaser does not work an unfair
hardship upon him. When he substituted himself in
place of the perpetrator of the unfair labor practices, he
became the beneficiary of the unremedied unfair labor
practices. Also, his potential liability for remedying the
unfair labor practices is a matter which can be reflected
in the price he pays for the business, or he may secure
an indemnity clause in the sales contract which will
indemnify him for liability arising from the seller's
unfair labor practices. [Fn. omitted.] ,
* * * *
Our discussion thus far has dealt only with the bona
fide purchaser of the employing enterprise. With respect
to the offending employer himself, it must be obvious
that it cannot be in the public interest to permit the
violator of the Act to shed all responsibility for
remedying his own unfair labor practices by simply
disposing of the business. If he has unlawfully
discharged employees before transferring ownership to
another, he should at least be required to make whole
the dischargees for any loss of pay suffered by reason of
the discharges until such time as they secure substan-
tially equivalent employment with another employer.
To the extent and in the manner indicated herein, the
offending employer and his successor share a joint and
several responsibility in the matter of backpay.
On November 17, 1969, Peterson, as vice president of
Respondent Associated, signed the "Notice to All Employ-
ees" required by the Board's Order of October 8, 1968, and
a certificate of posting submitted to the Regional Director
in compliance therewith. He is currently president of
Respondent Transamerica. In view of this fact it is found
that Respondent Transamerica must be charged with notice
of the unfair labor practices committed by its predecessor.
It follows that, under the teaching of Perma Vinyl, both
Respondents are jointly and severally liable for the
backpay due the discriminatees, as found above,16 except
16 In this posture of the case, I deem it unnecessary to determine
whether, as the General Counsel maintains, Respondent Transamerica is
the alter ego of Respondent Associated.
17 The General Counsel, in his brief, concedes that the original backpay
specification omitted interim earnings as follows: 1968-4- U S Industries,
that Respondent Transamerica's liability to claimant
Drevecky shall be limited as determined below.
c. Findings as to commerce
At the hearing the General Counsel, the Union, and
Respondent Transamerica stipulated, and it is now found,
that between January 1 and November 1, 1970, Respondent
Transamerica performed services valued at more than
$50,000 for firms (such as Humble Oil and Gulf Oil) each of
which meets a jurisdictional standard of the Board. It is
accordingly concluded that Respondent Transamerica is
engaged in commerce within the meaning of the Act, and
that its operations meet the Board's standards for the
exercise of jurisdiction.
2. In specific cases
a. Leonard R. Drevecky
At the hearing the General Counsel, the Union, and
Respondent Transamerica stipulated that all computations
of gross backpay and interim earnings contained in the
backpay specifications are true and correct, except that as
to Leonard R. Drevecky Respondent Transamerica
"reserves the right to show additional interim earnings,
possibly, as well as other defenses, for instance, that Mr.
Drevecky did not seek employment, or something of that
nature." The General Counsel, in his brief, agrees to
increase Drevecky's interim earnings in several respects.17
In its brief, Respondent Transamerica raises five defenses
in mitigation of backpay due.
(i) Respondent Transamerica contends that Drevecky is
not entitled to backpay for any time prior to .November
1967 because his inability to obtain a job during this period
was due to a "hearing problem which made him unfit for
work." In this connection, Drevecky testified that, from the
beginning of his backpay period until he obtained
employment with Key Oil Company in November 1967, he
applied for work as driver or mechanic at five different
firms and was refused by all because of bad hearing. He
explained: "I am hard of hearing at different times and
stages. My ears plug up:" And he also testified that it is "the
type of thing that comes and goes." Furthermore, it is clear
and I find that he had had this ear problem when he had
been employed by Respondent Associated, as far back as
1965. At most, the record indicates an ailment which might
have made it more difficult temporarily for Drevecky to
find suitable employment. But in disagreement with
Respondent Transamerica, I find insufficient evidence to
justify a finding that Drevecky was physically "unfit for
work" and therefore "out of the job market" prior to his
employment by Key Oil Company in November 1967.
(ii) Drevecky broke his collarbone on December 3, 1967,
and his doctor did not release him for work until May 15,
1968. The backpay specifications exclude two parts of this
period, December 3, 1967, through January 26 1968, and
February 24 through May 15, 1968, but Respondent
Inc., $122; 1969-1- Wyatt's Division, $210, and Atlas Truck Lines, $42.
However, the record shows that Drevecky worked for Wyatt's Division for
approximately 3 weeks, at a weekly wage of $72. The figure for Wyatt's
Division should therefore be $216 instead of $210.
ASSOCIATED TRANSPORT CO. OF TEXAS, INC.
Transamerica maintains that the entire period should be
excluded.
Drevecky was injured on the job while working for Key
Oil. He drew workmen's compensation benefits for a while.
But in addition an official of Key Oil told him to "be in the
office and walk around" for which, in January 1968, Key
Oil supplemented his workmen's compensation benefits by
paying him $180. Drevecky's testimony shows clearly that
this was a donation:
They gave me that on their own account to help me
because they knew I was hard up. I didn't work even.
... They felt sorry for my family and gave me so much
money every week to help feed my family.
They helped me out , but not as a salary. They gave me
what is called a donation from the company.
* * * * *
I didn't do no work when I was back there.
In February 197018 Drevecky was injured in a bus
accident. As a result, he was "sore" and "bruised up" for
about 3 weeks. Before Drevecky was released by his
physician from the collar bone injury, he went to work for
Hardy Construction-probably in the last week of March
1970-doing "just manual labor." He testified:
Q. And your doctor cleared you on that?
A. I was on temporary duty. I had to do,something,
as long as I was on temporary duty, that is on my
record.
Q. My question is did your doctor clear you to do
that work?
A. I didn't ask the doctor.
Q. In other words you were capable of doing that
work before your doctor cleared you?
A. I was on temporary duty, so I figured, I was
capable of doing something.
I conclude that the money Drevecky received from Key
Oil as a donation should not be counted as interim
earnings. I further conclude that from the time of his
accident on December 3, 1967, until March 23, 1968, the
approximate date he began working for Hardy Construc-
tion, he was physically unfit for work, and this period must
be excluded. As for the period from March 23, 1968, when
he started to work for Hardy Construction, until he was
released by his doctor on May 15, 1968, I find that despite
the doctor's delay' in releasing him, he was physically fit for
work, as shown by the fact that he actually did work for
Hardy Construction. Accordingly, this period will be
included.
(iii) In September 1968, while working for Wilcox
Construction Company, Drevecky fell off a roof because of
heat exhaustion. He was totally incapacitated for work for a
week, and his physical condition limited him to part-time
work for a period of about an additional week. Respondent
Transamerica argues in its brief that "the 6 days which
Drevecky was disabled and the 2 or 3 months which he was
18 Drevecky testified that it was before he worked for Hardy Equipment
Company, and the record indicates that he started at Hardy in March
1970
73
partially disabled, should not be counted." But Drevecky's
disability, total or partial, did not extend into the fourth
calendar quarter of that year. I conclude that 1 week of
total disability and another week of partial (50 percent)
disability would fairly reflect the extent of Drevecky's
incapacity. Accordingly, 1-1 /2 weeks should be excluded in
the third calendar quarter of 1968.
(iv) Respondent Transamerica maintains that Drevecky
voluntarily quit the employ of Wilcox Construction
Company without adequate cause. After leaving Wilcox, he
went to work for U.S. Industries, Inc., and then for Wyatt's
Division. The record is not clear as to how much time, if
any, elapsed after he quit Wilcox until he secured other
employment. Assuming without deciding that he was not
justified in leaving Wilcox, there is no way of determining
the extent of the willful loss caused thereby, if any.
Respondent Transamerica further contends that Dre-
vecky's backpay period should be tolled "during the times
he voluntarily removed himself from the labor market for
no good reason," specifically, after he quit the employ of
Wyatt's Division "because of family problems." The record
shows that while Drevecky was working for Wyatt's
Division his wife "had [him] picked up and put in a
hospital" over Friday night, Saturday, and Sunday. On
Monday, when he was discharged from the hospital, he
returned to Wyatt's Division and discovered that he had
lost his job because he "didn't call in when [he] was to come
in before." For about a month after that Drevecky was out
of work. During this month, he applied for work at three
refineries, and was registered with the Texas Employment
Commission. I conclude that he was separated from his
employment at Wyatt's Division through no fault of his
own, but involuntarily, and that he thereafter made
reasonable and adequate efforts to obtain new employ-
ment . Therefore his backpay should not be tolled during
this period.
(v) Drevecky voluntarily left the employ of L. O. Block
after about 5-1/2 weeks of the third calendar quarter of
1970.19 He was being paid at the rate of $1.25 per load and
his gross weekly pay averaged between $115 and $120. He
worked full time, weather permitting. When asked why he
left Block's employ, he replied: "I just went looking for a
better job." He further testified:
There were a lot of things they did that I didn't like, for
the reason their truck equipment, you ask them to have
something done to the truck and you couldn't get it
done.
Respondent Transamerica contends that Drevecky
"voluntarily removed himself from the labor market and his
backpay should be tolled from that point." Although under
some circumstances a discriminatee may be justified in
attempting to minimize backpay loss by looking for a better
paying job, the facts do not convince me that this was such
a case . I find that Drevecky quit Block's employ without
sufficient justification and willfully incurred a loss. It does
not follow, however, that his backpay should be tolled from
that point. Instead, gross backpay due for 1970-3 will be
continued throughout that calendar quarter and interim
19 This figure is derived by dividing $632, his gross earnings in the third
- calendar quarter of 1970, by $115, the average weekly gross pay.
74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
earnings to offset gross backpay due will be computed as,
"the amount of money he would have earned had he
retained that job."20
The parties stipulated at the hearing that Drevecky was
offered reinstatement on January 26, 1971, thus ending his
backpay period.
Taking into consideration the original backpay specifica-
tions and the above-described modifications, I calculate
Drevecky's backpay through the end of the third calendar
quarter of 1970 to be as follows:
Gross weekly backpay: $155. Backpay period:
September 11, 1967, through January 26,
1971. Excepted periods: December 3, 1967,
through March 23, 1968, September 1, 1968,
through October 10, 1968, and July 17
through December 1, 1968.
1967--3 (3 weeks)
Gross backpay (3 x $155) $ 465
Less: Interim earnings -0-
Net backpay $465
1967--4 (9 weeks)
Gross backpay (9 x $155) 1,395
Less: Interim earnings
(Key Oil Co.) 415
Net backpay
1968--1 (1 week)
Gross backpay (1 x $155) 155
Less : Interim earnings
(Hardy equipment Co.) 82
Net backpay
1968-2
Gross backpay (13 x $155) 2,015
Less: Interim earnings
(Hardy Equipment Co.) 88
(Wilcox Constr. Co.) 580 668
Net backpay
1968-3 (11-1/2 weeks)
Gross backpay (11-1/2 x $155) 1,783
Less: Interim earnings
(Wilcox Constr. Co.) 561
Net backpay
1968-4
Gross backpay (13 x $155) 2,015
Less: Interim earnings
(Wilcox Constr. Co.) 796
(U. S. Industries) 122 918
Net backpay
980
73
1,347
1,222
1,097
1969--1
Gross backpay (13 x $155) 2,015
Less: Interim earnings
(Wyatt's Div.) 216
(North Loop Equipment) 425
(Atlas Truck Lines) 42 683
Net backpay 1 1,332
1969-2
Gross backpay (13 x $155) 2,015
Less: Interim earnings
(North Loop Equipment) 1,592
Net backpay
1969-3 (2 weeks)
Interim earnings exceeded gross backpay. 21
1969-4 (4 weeks)
Gross backpay (4 x $155) 620
Less: Interim earnings
(Larson ' s Enco Service
Station) 320
Net backpay 300
1970-1
Gross backpay (13 x $155) 2,015
Less: Interim earnings
(Larson ' s Enco Service
Station) 320
(C & B Truck & Haterial)858 1,178
Net backpay 837
1970-2
Gross backpay (13 x $155) 2,015
Less: Interim earnings
(C & B Truck & Material)115
(C. C. Dean) 268
(L. 0. Block) 949 1,332
Net backpay 683
1970--3
Gross backpay (13 x $155) 2,015
Less: Interim earnings
(L. 0. Block) 632
Wilfully incurred loss
(7-1/2 x $155) 863 1,495
Net backpay 520
Total net backpay through 1970--3 $9,279
Drevecky's backpay from October 1, 1970,
through January 26, 1971, is still to be
calculated.
21/ During this calendar quarter Drevecky
worked for North Loop Equipment Company
as he had in 1969--1 and 1969--2. He is
currently suing that Company for $242 in'
backpay (overtime). Should he recover
all or part of this amount, the receipts
will have to be allocated to the three
calendar quarters in question and
possibly some adjustments must be made.
20 Mastro Plastics Corporation, 136 NLRB 1342, 1352, enfd. in part 354
F.2d 170 (CA. 2), cert. demed 384 U.S 972.
ASSOCIATED TRANSPORT CO. OF TEXAS, INC.
Drevecky's backpay from October 1, 1970, through January
26, 1971, is still to be calculated.
b. Leonard C. Jenkins
Although the matter is not entirely clear, it appears from
statements made by the General Counsel at the hearing that
Jenkins was offered reinstatement in February 1971, and
that in the calendar quarters 1970-4 and 1971-1 his interim
earnings exceeded gross backpay due. Apparently the
General Counsel does not claim that any net backpay is
due Jenkins for these additional calendar quarters but only
for the $138 referred to above.
RECOMMENDED ORDER
On the basis of the foregoing, it is recommended that
Associated Transport Company of Texas, Inc., Dallas,
Texas, and Transamerica Transport, Inc., Dallas, Texas,
their officers, agents, successors, and assigns, shall jointly
and severally pay to each of the individuals listed below the
sum of money appearing opposite his name, plus interest as
75
set forth in Isis Plumbing & Heating Co., 138 NLRB 716,
less deductions required by State and Federal laws:
William E. Allen $877
Marvin Lee Ayles 93
Joe T. Bailey 788
Clifford R. Buck 871
Thomas E. Courtney -0-
Lenorad R. Drevecky22 9,954
Elmer H. Henry 974
Hollis Jack Holmes 424
Leonard C. Jenkins 138
Conda Muse 443
Hurles E. Pace 483
Harvey H. Sanders 111
Carl E. Satcher 333
C. W. Stone 626
C. B. Trout 130
Roy L. Wiggins 696
David W. Williams 104
22 This figure is backpay due through the third calendar quarter of 1970
only. For this period, Respondent Associated 's liability shall be linuted to
the sum of $9,279 00. Net backpay from October 1, 1970, through January
26, 1971, is still to be determined.
194 NLRB No. 17