Coca-Cola Bottling Co. of Buffalo

National Labor Relations Board - Board Decisions

Apr 14, 1994

313 N.L.R.B. 1061 (N.L.R.B. 1994)

1061
313 NLRB No. 187
COCA-COLA BOTTLING CO. OF BUFFALO
1 1 We note that at par. 2 of the decision, the third sentence should
state in relevant part, ‘‘Upon due notice, a hearing was held in Buf-
falo, New York, on February 24 and 25, 1992 . . . .’’
2 In its exceptions, the Respondent contends, inter alia, that the
General Counsel failed to carry his burden regarding employee
McKissock’s gross backpay. In support of this contention, the Re-
spondent relies on Ford Bros., 284 NLRB 211 (1987). We find Ford
Bros. distinguishable. Although both the instant case and Ford Bros.
involve the ‘‘lost-work’’ theory of backpay liability, in the instant
case the General Counsel met his burden by submitting a seniority
list even though the list was that in effect after the end of the back-
pay period. In Ford Bros., supra, the Board found the ‘‘lost-work’’
theory invalid as a measure of backpay liability since the record evi-
dence cast doubt on the validity of the underlying assumption that
the most lucrative jobs were performed by the most senior employ-
ees.
3 The General Counsel has excepted to the judge’s proposed rem-
edy insofar as it provides that interest on the contributions to be
made by the Respondent to the Union’s Pension and Retirement
Fund is to be calculated in the manner prescribed by New Horizons
for the Retarded, 283 NLRB 1173 (1987), rather than Merryweather
Optical Co., 240 NLRB 1213 (1979). We find merit in the General
Counsel’s exception and modify the remedy accordingly.
1 Coca-Cola Bottling Company of Buffalo, 299 NLRB 989 (1990).
2 Reported at 936 F.2d 122.
Coca-Cola Bottling Company of Buffalo, Inc. and
Market Produce, Warehouse, Frozen Food,
Cannery Workers, Drivers & Helpers, Local
Union 558, of the International Brotherhood of
Teamsters, AFL–CIO. Case 3–CA–14611
April 13, 1994
SUPPLEMENTAL DECISION AND ORDER
BY MEMBERS STEPHENS, DEVANEY, AND COHEN
On March 31, 1993, Administrative Law Judge Rob-
ert T. Snyder issued the attached supplemental deci-
sion. The Respondent filed exceptions and a supporting
brief, and the General Counsel filed an answering brief
and an exception.
The Board has considered the decision and record in
light of the exceptions and briefs and has decided to
affirm the judge’s rulings, findings,1 and conclusions2
and to adopt the recommended Order.3
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Coca-Cola Bottling Com-
pany of Buffalo, Inc., Tonawanda and Orchard Park,
New York, its officers, agents, successors, and assigns,
shall take the action set forth in the Order.
Ronald Scott, Esq., for the General Counsel.
James A. Prozzi, Esq. (Jackson, Lewis, Schnitzler &
Krupman), of Pittsburgh, Pennsylvania, for the Respond-
ent.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE AND PROCEDURAL HISTORY
ROBERT T. SNYDER, Administrative Law Judge. On Sep-
tember 27, 1990, the National Labor Relations Board issued
a Decision and Order,1 concluding that the Respondent vio-
lated Section 8(a)(5) and (1) of the Act by, inter alia, refus-
ing to recognize the Charging Union as the collective-bar-
gaining representative of its employees employed at its Or-
chard Park, New York facility, and refusing to apply to the
latter employees the terms and conditions of its collective-
bargaining agreement with the Union covering warehouse
and production employees employed by the Respondent at its
Tonawanda, New York facility. On June 27, 1991, the
United States Court of Appeals for the Second Circuit en-
tered its judgment2 enforcing in full the backpay provisions
of the Board’s Order. Those provisions required the Re-
spondent to make whole the unit employees employed at Or-
chard Park for any loss of wages and benefits they may have
suffered because of Respondent’s failure to apply the terms
of the agreement to them, and to make whole the Union for
any moneys that would have been due it under the terms of
the agreement.
A dispute having arisen over the amount of backpay due
under the terms of the Board’s Order, the Regional Director
for Region 3, pursuant to authority conferred on him by the
Board, issued a backpay specification on October 31, 1991.
Respondent filed timely answer thereto on December 4,
1991. On due notice, a hearing was held in Buffalo, New
York, on February 24 and 25, 1993, on the issues raised by
the pleadings. All parties were afforded a full opportunity to
be heard, to introduce evidence, and to examine and cross-
examine witnesses. Posthearing briefs filed by the General
Counsel and the Respondent have been carefully considered.
Subsequently, on November 9, 1992, the Respondent filed
a motion with the Board to set aside the Board’s Order and
dismiss the compliance specification. In its motion, Respond-
ent relied on the Board’s decision in Gitano Distribution
Center, 308 NLRB 1172 (1990), in which the Board decided
that in cases when an employer transfers a portion of its em-
ployees at one location to a new location, it will no longer
utilize a ‘‘spinoff’’ analysis but will rather look to see
whether the majority of employees at the new location were
transferees from the original bargaining unit, in determining
whether the Respondent is obligated to recognize and bargain
with the Union for the employees at the new location. Id. In
Coca-Cola Bottling Company of Buffalo, supra, the underly-
ing decision, the Board found that the Respondent’s Orchard
Park facility was a spinoff from its Tonawanda warehouse
operation although one of the four employees at Orchard
Park transferred from a unit position at Tonawanda to a unit
position at Orchard Park. The Board referred to these conclu-
sions and facts in fn. 22 of Gitano Distribution, supra.
The General Counsel opposed the motion, contending that
the Board lacked authority to modify its Order where, as in
the instant case, that Order had been enforced by the court.
The Board issued an Order on November 30, 1992, deny-
ing Respondent’s motion to set aside its September 27, 1990
order, and referring the branch of the motion to dismiss the
1062 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 Although not otherwise explained on the record, just as with
John McKissock, whose claim began for the week ending August 6,
1989, Haug, who was transferred to Orchard Park from a nonunit
position at Tonawanda, probably was paid the probationary rates
under the contract for 1 year thereafter, eliminating any backpay
claims for that period.
compliance specification to me for further action consistent
with the Order.
The Board ruled that it lacked jurisdiction to set aside its
earlier September 27, 1990 order under Section 10(e) of the
Act, since it had been enforced by the court. The Board
noted that under that pre-Gitano order, Respondent had con-
tractual liability that it must satisfy and payments for that li-
ability it must make before the case could be closed on com-
pliance. The Board refrained from passing on the issue of the
effect of Gitano on periods subsequent to the Respondent’s
compliance with the Board’s Order.
Following issuance of this November 30, 1992 order by
the Board, Respondent filed with the Second Circuit Court
of Appeals a motion to recall mandate and set aside the
Board Order of September 27, 1990. That motion was denied
by order of the court filed February 1, 1993.
In view of the foregoing rulings, I am prepared to deter-
mine Respondent’s liability under the Board’s original Order.
On consideration of the entire record herein and on my ob-
servation of the witnesses, I make the following
FINDINGS AND CONCLUSIONS
I. THE BACKPAY SPECIFICATION AND ANSWER
The specification claims backpay on behalf of three em-
ployees, Michael Haug, Melvin Mingoia, and John
McKissock as well as contributions to the Union’s Pension
and Retirement Fund on behalf of each of the three. The
backpay period begins the week ending July 24, 1988, when
the Respondent opened the Orchard Park facility and staffed
it with four employees, a supervisor, and the three backpay
claimants. It ends the week ending June 9, 1991, when Re-
spondent changed the nature of its operation at Orchard Park
and transferred back to Tonawanda and included in the ware-
house and production employee bargaining unit covering that
facility the three backpay claimants.
During the backpay period, the Respondent and Union
were parties to a collective-bargaining agreement, effective
from June 1, 1987, to May 31, 1990, and a successor agree-
ment, effective from June 1, 1990, to June 4, 1994.
The specification sets forth the contractual hourly wage
rates and hourly shift premiums in effect during the relevant
periods. The hours each claimant worked during the period
for which a claim is made was multiplied by the appropriate
hourly wage rate for each calendar quarter to arrive at gross
backpay, and then from those figures the actual wages re-
ceived by each employee was then deducted to arrive at net
backpay.
In particular, with respect to the amount of backpay
claimed on behalf of John McKissock, the specification in
fn. 4 asserts that for those weeks during the period of his
claim when he was laid off for all or parts of them, had Re-
spondent adhered to the terms of the collective-bargaining
agreement, McKissock’s seniority would have allowed him
to work a full 40-hour workweek. The sum claimed for
McKissock, $16,257.27, far exceeds the claims for Haug and
Mingoia which are $959.91 and $1,565.77, respectively. In
determining the remittances due to the Union’s Pension and
Retirement Fund, the total number of hours worked (up to
a maximum of 40 hours each week) by all unit employees
during the backpay period was multiplied by the applicable
fringe benefit contribution rates in effect under the agree-
ments during those periods of time.
In its answer, Respondent disputed the net backpay cal-
culations for John McKissock, in particular. Respondent
claimed that McKissock worked part of his backpay period
in a nonbargaining unit position of driver/merchandiser.
Since he was not available for loading and related bargaining
unit work during these periods, they should be excluded from
the total weeks covered by his claim. Respondent also as-
serted that inasmuch as another employee hired in the Tona-
wanda bargaining unit at the same time as McKissock, a Mi-
chael Kriegbaum, was laid off for certain weeks, McKissock
would have likewise been laid off in those weeks and his
claim would have been accordingly reduced by these periods
of layoff.
As to the contributions due to the Union Pension Fund,
Respondent agrued that no amounts were owed to the Fund.
Respondent asserted that it had made contributions on behalf
of Haug and McKissock to its own Pension Plan which ex-
ceeded those which would have been required under the col-
lective-bargaining agreements and that Mingoia was no
longer employed by it and thus would not benefit from any
contributions made on his behalf to the Fund. In reliance on
Manhattan Eye, Ear & Throat Hospital v. NLRB, 942 F.2d
151 (2d Cir. 1991), given these facts, any sums required to
be paid to the Union Fund would constitute a windfall ex-
ceeding the Board’s remedial power and thus would be unen-
forceable.
II. THE EVIDENCE PRESENTED, ANALYSIS, AND
CONCLUSIONS
A. The Backpay Claims of Haug and Mingoia
1. The claim for Michael Haug began the week ending
July 9, 1989.3 The original claim contained in the specifica-
tion listed Respondent’s liability in the amount of $959.91.
However, at the hearing, the General Counsel and Re-
spondent stipulated to Haug’s receipt of additional pay, in
the sum of $584.12 for the third quarter of 1990, and
$343.58 for the second quarter of 1991. Neither of these pay-
ments were included in the totals for wages earned for those
quarters. As a consequence of these additional gross wages,
Haug’s claim for lost wages now asserted by the Government
totals $136.98.
2. The claim for Melvin Mingoia begins for the week end-
ing July 24, 1988, on his transfer from a unit position at
Tonawanda to Orchard Park. Respondent’s total liability al-
leged was $1,565.77. At the hearing, the parties stipulated
that the gross backpay alleged as owing to Mingoea should
be reduced by $498.70 for the third quarter of 1988, by
$435.75 for the second quarter of 1989, and by $554.35 for
the fourth quarter of 1989, since he received paychecks for
these amounts in those quarters even though they were not
reflected in the specification.
In its brief, the General Counsel also agrees with Respond-
ent’s defense that with respect to all but the last week of the
1063COCA-COLA BOTTLING CO. OF BUFFALO
third quarter of 1988, Mingoia’s wages should have been cal-
culated at the contract probationary rate, thereby independ-
ently voiding any liability for that quarter.
As a consequence of the foregoing, Respondent’s alleged
liability of $498.70 for the third quarter of 1988, $220.22 for
the second quarter of 1989, and $500 for the fourth quarter
of 1989, are all fully offset. These offsets result in a revised,
net backpay liability of $296.37, which represents the net dif-
ference between Mingoia’s third quarter 1989 earnings of
$6,007.59, and the sum of $6,303.96 which he would have
earned under the collective-bargaining agreement if it had
been applied to him.
However, as the General Counsel notes at page 6 of its
brief, while the specification (G.C. Exh. 1c, p. 2), shows
Mingoia having worked 40 hours during the week ending
August 13, 1989, the ‘‘wages earned’’ column for this week
is blank. The General Counsel speculates that Respondent
may have inadvertently failed to produce evidence of pay-
ment to Mingoia for that week.
There was uncontradicted testimony that Field Examiner
Sandra Nuereuther examined and checked Respondent’s pay-
roll records and timecards located at its Tonawanda facility
in calculating the figures to be included in the backpay speci-
fication under the supervision of Region 3 Compliance Offi-
cer Richard Friend. Yet, as the General Counsel notes, it is
highly improbable that Mingoia could have worked 40 hours
in that week without having been paid for that time. Thus,
the General Counsel offered in its brief to reexamine its posi-
tion regarding Respondent’s liability toward Mingoia should
Respondent produce posthearing evidence, subject to ver-
ification, that show Mingoia’s earnings for the week of Au-
gust 13, 1989.
Although such a proffer has not been made to date, Re-
spondent’s most recent concentration on its arguments, ulti-
mately unsuccessful, seeking reversal of any liability in this
case because of the Board’s rejection of its ‘‘spinoff’’ theory
of violation in Gitano, supra, may explain its failure up to
now to seek to correct this apparent anomaly. In any event,
while I am satisfied that on the record before me the General
Counsel has established Respondent’s circumscribed liability
toward Mingoia, in view of the General Counsel’s offer, I
will permit Respondent to produce for the General Counsel’s
inspection and review during the period during which excep-
tions may be filed by it in this proceeding, evidence, subject
to verification, which may relieve it of any backpay liability
whatsoever toward Mingoia.
B. McKissock’s Backpay Claim
John McKissock’s backpay period begins for the week
ending August 6, 1989, on the completion of his 1-year pro-
bationary period during which his salary gradually increased
and reached journeyman level. Unlike either Haug or
Mingoia, McKissock’s pay record shows that for all the
quarters but one, and for all the weeks in one particular quar-
ter, the first quarter of 1990, he was laid off for all or a por-
tion of particular weeks. These weeks, in each of which
McKissock is credited on the specification with 40 hours of
work, are noted by asteresks in the regular hours column of
the specification exhibit relating to McKissock. Nevertheless,
in many of those same weeks, McKissock also worked over-
time hours, which, under the collective-bargaining agreement,
were required to be paid at time-and-a-half the regular rate
for all hours worked over 8 in a day, 40 in the week or on
Saturday and at double time for all Sunday work, and the
specification also lists them in separate columns. However,
Respondent did not pay McKissock the overtime pay for the
overtime hours listed in the specification. Neither did Re-
spondent credit McKissock with a full 40-hour workweek for
each of these weeks in which he was laid off in whole or
in part. These differences are reflected in the General Coun-
sel’s claim of liability for backpay on the one hand and Re-
spondent’s reduced figures for which it admits responsibility,
on the other. The General Counsel seeks net backpay for
McKissock of $16,257.27 and Respondent acknowledges re-
sponsibility for only $2852.
In seeking to establish that McKissock would not have
been laid off if the collective-bargaining agreement had been
applied to him during the weeks in which he was in part laid
off and would have earned overtime pay as well, the General
Counsel relies on the seniority provisions of the contracts as
applied to McKissock. The provisions, which appear in arti-
cle IV, Seniority, section C. Where Layoff is a Factor, sub-
section 2. Layoff and Recall, remained unchanged under the
old and new agreements in effect during McKissock’s back-
pay period:
C. Where Seniority is a Factor
1. Filling Vacancies
Where the ability to perform the work is relatively
equal, the employee with the greatest plant seniority
shall have the first opportunity to be considered for fill-
ing permanent vacancies.
2. Layoff and Recall
Where the ability to perform the work is relatively
equal, the employee with the greatest departmental se-
niority shall be the last to be laid off and the first to
be rehired.
. . . .
b. A laid off employee with greater plant seniority
shall have the right to ‘‘bump’’ an employee with less
plant seniority provided the senior employee has the
ability to perform the job without a training or breakin
period. ‘‘Bump’’ is hereby defined as the right of a laid
off employee to exercise the option to stay on in a re-
tain job, thus, forcing a less senior employee into layoff
status. If the job bumped into pays a lesser rate of pay,
the bumping employee will receive the lesser rate.
An employee may not ‘‘bump’’ into a higher or
lower paid position or a shift other than his normal shift
unless he/she is unable to ‘‘bump’’ because of seniority
or qualification.
3. Overtime Opportunities
In providing overtime opportunities, employees will
be given preference on the basis of departmental senior-
ity and availability. For example, the sanitizer who has
the greatest departmental seniority and is immediately
available (as opposed to having to be called in) will be
offered the opportunity to stay over for two hours after
the completion of his shift to perform the sanitizing du-
ties.
1064 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
McKissock’s name appears 21st on a Respondent bargain-
ing unit seniority list prepared as of October 25, 1991, ahead
of 14 other unit employees. His starting date, listed as July
25, 1988, is erroneous, and was actually July 5, 1988 (see
R. Exh. 7(AJ)).
Testimony from both the General Counsel and Respondent
witnesses adduced during the hearing establishes that, in
practice, a laid-off employee may seek to exercise bumping
rights only if the layoff is of more than 1 day’s duration. The
employee must first attempt to bump on his or her own shift.
If precluded from doing so, by seniority or lack of qualifica-
tion for the job, the employee may then exercise bumping
rights on another shift. Bumping rights may not be exercised
where the employee seeking to bump would require a break-
in or training period.
McKissock was initially hired as a warehouseman at Or-
chard Park. The work entailed checking in the drivers, strip-
ping or removing empty bottles, and loading the trucks. This
work is also performed at Tonawanda, along with the pro-
duction work of filling bottles with soda. Loading and strip-
ping work at both locations was performed on a night shift,
while production was done on the day shift. Had the senior-
ity provisions of the agreement been applied to McKissock
when he was laid off for more than a day, they would not
have precluded his exercise of contractual bumping rights
into the Tonawanda plant night shift.
The compliance agent’s review of the Respondent’s pay-
roll records and timecards led, inter alia, to the conclusion
expressed in fn. 4 of the specification that McKissock had
the seniority status to remain employed at Tonawanda when
he was laid off from his position at Orchard Park.
Respondent’s defense to this allegation of liability consists,
in part, of a reliance on the actual layoff incurred by a load-
ing employee, Michael Kriegbaum, employed at the Tona-
wanda facility. On the Respondent’s seniority roster,
McKissock’s name appears directly above the following
named employees:
Nicholas Tiberio August 16, 1988
Anthony Leavy May 5, 1989
Donald Loops May 25, 1989
Michael Kriegbaum May 26, 1989
Tiberio performed loading and shipping work at all rel-
evant times, as did Loops. Kriegbaum began loading in early
1990, after several months on days, sorting and working pro-
duction. Leavy was a production employee until June 1991.
At the hearing Respondent produced timecards for
Kriegbaum showing the various weeks during which he was
laid off.
Respondent’s argument on this point, gleaned from the
hearing and its brief, is that in seeking to remedy the unfair
labor practices, the only viable recreation of the facts that ex-
isted at the time of the violations when Respondent estab-
lished a separate location and transferred employees to it, is
to assume that Orchard Park never existed and that the three
discriminatees were employed in the unit at Tonawanda. Re-
spondent argues that the seniority provision of the agreement
could only be applied to employees at Tonawanda because
the distance—between 22 and 26 miles—and variation in
size between the two warehouses—10,000 square feet at Or-
chard Park and 90,000 square feet at Tonawanda—meant that
it would not be feasible, and would require a break-in period
for any employee, such as McKissock, laid off at Orchard
Park, who sought bumping rights at Tonawanda, this pre-
cluding McKissock’s employment while laid off at Orchard
Park even if the contract covered Orchard Park. Respondent
assumes further that if Orchard Park had not been opened,
then Mingoia, Haug, and McKissock, in that order of senior-
ity, would have replaced on the seniority roster, Tiberio,
Loops, and Kriegbaum. Inasmuch as McKissock would then
have been most closely related to Kriegbaum—in effect been
‘‘paired’’ with him—McKissock would have suffered loss of
work every time Kriegbaum was laid off.
Respondent further argues that even if all six of these em-
ployees, the three discriminatees and the three others, had
been employed at Tonawanda, McKissock would have also
been laid off when Kriegbaum was, because they had been
hired at the same time. This claim is contrary to the record
evidence which shows McKissock starting on July 5, 1988,
and Kriegbaum starting more than 10 months’ later on May
26, 1989.
It is clear that Respondent’s assumptions are not valid and
comprise a clever but unsupportable effort to shield it from
the direct consequences of its unfair labor practices.
The first assumption, that Orchard Park was never estab-
lished, cannot be considered. Respondent’s violation arose
because it did establish another location to which it did trans-
fer some unit work. The aim of the remedial process is to
endeavor to place the discriminatees insofar as possible, in
the position they would have been had the violation not
taken place, i.e., had the contract been applied to them at Or-
chard Park. See NLRB v. Rutter-Rex Mfg. Co., 396 U.S. 258,
265 (1969). This process does pose a problem for Respond-
ent, because the contract, and its seniority provisions had
never been applied to more than one location. But this fact
should not create an insurmountable handicap to providing a
meaningful yet reasonable remedy for McKissock.
Respondent would reach the result that under no cir-
cumstances could McKissock have bumped into the loading
and stripping work at Tonawanda. In doing so, it assumes,
improperly, that the logistics of physically working at a site
more than 20 miles from his old one would have made his
transfer under the bumping provision not feasiable. Here, Re-
spondent witness Lawrence Finnegan, its business manager,
points to the fact that the decisions about the number of cus-
tomer orders which require loading are made earlier the same
day that the orders are processed in the evening. Salesmen
call in orders during the day, they are placed on to a com-
puter, and load sheets are then prepared for the dispatchers
for distribution to loaders for the evening shift. Finnegan did
not demonstrate in concrete terms how McKissock, who
would have been laid off more than a day earlier at Orchard
Park, would have been thereby precluded from reporting for
evening shift work at Tonawanda or from receiving timely
word that work was not available for him there, if such were
the case. The fact that McKissock may have been required
to travel a greater distance from his home to Tonawanda than
from his home to Orchard Park to go to work would not
have made McKissock’s bumping rights unachievable. Re-
spondent failed to show that other Tonawanda employees
traveled less or that McKissock’s travel time would have
been excessive. The record fails to show McKissock’s resi-
dence address. Further, as the record reflects, based on the
testimony of witness Mingoia, even if McKissock had been
1065COCA-COLA BOTTLING CO. OF BUFFALO
required to report first to one work location, before being
dispatched to the other, Mingoia’s experience shows that Re-
spondent authorized daily employee travel between the two
worksites for employees performing unit work, sometimes
more than once a day. Mingoia, who lived in Niagara Falls,
after his transfer to Orchard Park, routinely continued to
punch in for work at Tonawanda and then delivered product
by truck to Orchard Park, returning with empty product to
Tonawanda at the end of his shift. Sometimes, he returned
to Tonawanda during his shift for additional product if the
truck or trucks he was loading were short product for deliv-
ery. On these daily trips, he was paid the same rate as he
received for work at the Orchard Park warehouse.
Respondent’s other assumption in this regard is that be-
cause of the considerable size differences between the two
warehouses, McKissock would have required a break-in pe-
riod, and therefore, would have been contractually ineligible
to exercise bumping rights. It was Finnegan’s opinion that
McKissock would not have been able to locate the inventory
within the 90,000-square-foot building in Tonawanda without
a break-in and training period. But Finnegan’s opinion is
reached in a vacuum, a vacuum that one may reasonably
infer would have been filled by union enforcement and ad-
ministration of the collective-bargaining agreement. With the
Orchard Park location covered by the agreement, it is reason-
able to conclude that the parties would have been required
to deal with the application of the seniority and bumping
provision to the two location operation, either by way of bar-
gaining or with a union grievance protesting Respondent’s
failure to interpret plantwide seniority for purposes of bump-
ing to cover both locations, resulting in a settlement satisfac-
tory to both parties or to an arbitration award favorable to
the Union. At the very least, a contract modification requir-
ing early distribution of Tonawanda warehouse product lay-
out information, diagrams, and written instruction material to
employees such as McKissock who had not previously
worked at Tonawanda, in addition to a visitation by such em-
ployees to the Tonawanda warehousesite prior to their exer-
cise of bumping rights there could have served to satisfy Re-
spondent’s concerns and the conditions of the contract.
Any ambiguity resulting from the absence of a history in
applying the bumping provision to the Orchard Park facility
employees must be resolved in favor of the discriminatee
McKissock and against the wrongdoer who failed and re-
fused to apply the collective-bargaining to him and thereby
committed the unfair labor practice and must comply with
the Board’s Order by satisfying the contractual liability it
owes him. See United Aircraft Corp., 204 NLRB 1068
(1973):
[A]s the courts and the Board have generally indicated,
the backpay claimant should receive the benefit of any
doubt rather than the Respondent, the wrongdoer re-
sponsible for the existence of any uncertainty and
against whom any uncertainty must be resolved. [See
also cases cited at fn. 3.]
Surely, Respondent should not be heard to complain about
an interpretation of the collective-bargaining agreement as
applied to its Orchard Park operation reasonably designed to
remedy its unfair labor practice of refusing to apply the
agreement at all to that operation. Put another way, as did
the General Counsel in its brief, it would be inequitable to
allow Respondent to avoid liability for refusing to apply the
contract by unilaterally interpreting the very contract it re-
fused to apply in the first instance.
As to the backpay formula selected by the General Coun-
sel and its computations of gross backpay, in particular, its
allegation in fn. 4 that McKissock’s seniority would have al-
lowed him to work a 40-hour workweek, history teaches us
that in compliance cases it is sufficient for the Government
to select a formula which reasonably approximates the loss
the discriminatee suffered where greater accuracy is unlikely
to be achieved. As the Board has long recognized:
The determination of gross backpay, for example, is
not always a matter of arithmetic for . . . questions can
arise concerning how much the claimant would have
earned had he not been discharged. In cases in which
such questions exist, the Board ‘may use as close ap-
proximations as possible, and ‘‘may adopt formulas rea-
sonably designed to produce such approximations.’’
[International Trailer Co. and Gibraltor Industries, 150
NLRB 1205, 1207, JD sec. II,A (1965), cited with ap-
proval in J/B Industries., 245 NLRB 538, 541–542, JD
sec. III.]
As noted by the court in NLRB v. Brown & Root, Inc., 311
F.2d 447, 452 (8th Cir. 1963), ‘‘In solving the problems
which arise in backpay cases the Board is vested with a wide
discretion in devising procedures and methods which will ef-
fectuate the purposes of the Act.’’ When reviewing the for-
mulas used by the Board, the court’s inquiry is ordinary lim-
ited to satisfying itself that the method selected is not ‘‘arbi-
trary or unreasonable in the circumstances involved.’’ Id. at
453.
Based on the record made herein, I am satisfied that the
General Counsel’s method of computing McKissock’s gross
backpay, in particular, constitutes a reasonable approximation
of his lost earnings given Respondent’s conduct in failing
and refusing to apply the collective-bargaining agreement to
him at the Orchard Park location, and that it meets the time
honored and court approved standards for its approval.
Respondent also argues that as McKissock ‘‘transferred’’
to the nonunit position of driver-merchandiser, he was un-
available for a full week of work during 13 listed week in
which the specification claims McKissock would have earned
wages under the contract in most weeks for unit work in ex-
cess of 40 hours.
In support of this defense Business Manager Finnegan tes-
tified that on April 5, 1989, in accord with a personnel file
document showing McKissock’s change in position from
warehouseman at $8.75 per hour, to driver/merchandiser at
$6 an hour, with a 90-day review for an opportunity for an
increase, McKissock ‘‘determined that he would like to be
a driver/merchandiser and applied for that.’’ (Tr. 75.) Even
after this date, McKissock continued to function as ware-
houseman. Another personnel document shows McKissock
receiving a salary increase of $1.50, to a new
warehouseman’s rate of $10.15 an hour because he had
achieved 1-year service time with acceptable performance,
effective July 5, 1989. Finnegan explained that McKissock
had been provided the opportunity to fill in in the warehouse
1066 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
or also work in the warehouse while he was continuing to
work as a driver.
As of October 5, 1989, McKissock, having passed his 90-
day review, received a 50-cent salary increase to $7 as driv-
er, and on April 7, 1990, this rate was increased another 25
cents to $7.25 an hour. On April 1, 1991, McKissock’s sal-
ary as warehouseman was also increased from $21,320 annu-
ally to $22,279.40, before his transfer back to the Tonawanda
facility as a regular bargaining unit sorter on June 5, 1991,
when the Orchard Park loading and shipping work ceased
and the backpay period ended.
Finnegan acknowledged that McKissock performed very
little driving work during his last year employed at Orchard
Park. He began to have the option to fill in in the warehouse
and asked to work in both positions when work fell off as
driver/merchandiser.
Under cross-examination, Finnegan agreed that when as-
signing work to McKissock as a driver during the backpay
period, Respondent did not bargain with the Union about the
matter. Contrary to Finnegan’s direct testimony, he also ac-
knowledged that driving work was permitted for Tonawanda
unit employees on a temporary basis under both the old and
the successor labor agreements.
John McKissock’s testimony about the genesis of his driv-
ing work was at substantial variance with Finnegan’s version.
He recalled that he started to drive trucks for Respondent,
shortly after completing his first year of service at Orchard
Park in July 1989. He was loading one night with Chick
Riggs, a supervisor, who told him he would not be needed
the following week, that he would be laid off. About a week
later, while still on lay off, McKissock testified he was ap-
proached by Mike Smith, department manager of the premix
area, about possibly taking a premix job, delivering CO2
tanks and cans for soda fountain drinks to customers. Smith
offered him $5 an hour, and McKissock refused as he was
then receiving more on unemployment compensation. Later,
when McKissock visited the facility to check on work avail-
ability or to pick up a paycheck, he was approached by an-
other supervisor, Jeff Joy, about obtaining a class 1 driver’s
license necessary for driving a truck. McKissock agreed to
do that, received some training, and started driving work but
at $6 an hour in October 1989.
According to McKissock, he never filled out a formal ap-
plication to drive or responded to any posting of a job open-
ing. McKissock viewed the opportunity to earn a class 1 li-
cense as a useful qualification for possible further employ-
ment by a trucking company if he ever left the Respondent’s
employ.
After McKissock started driving he continued doing so,
days, on an irregular basis whenever loads were available be-
cause a regular driver called in sick at either Tonawanda or
Orchard Park. He also continued to perform warehouse work
at Orchard Park at night when such work was available and
he was called in to perform it. In spite of the driving work
assigned, McKissock was unaware of any formal change in
his job title from warehouseman, and he did not see any of
the payroll change forms received in evidence. After only a
couple of weeks or a month of driving he was pulled off the
truck and told he would be doing both driving and ware-
house work. On one occasion, after working 8 to 10 hours
overnight in the warehouse, he agreed to take a truck out in
the morning but only if he was paid his full loading rate. Re-
spondent agreed.
Although McKissock later acknowledged, under cross-ex-
amination, that he started driving in April 1989, rather than
October, he continued to maintain that it was as a result of
Respondent’s agents having approached him about perform-
ing driving work while on lay off rather than any interest on
his own, which led to his driving assignments.
McKissock’s personal account of the manner of his obtain-
ing and continuing to perform driving work for Respondent
is credited over Finnegan’s because based on his conversa-
tions with Respondent agents’ whose statements have not
been contradicted as well as McKissock’s generally trust-
worthy and detailed presentation in contrast to Finnegan’s
more general, misleading, and ambiguous testimony. Thus,
for example, Finnegan’s statement that McKissock deter-
mined he would like to drive and applied for the position
hardly explains the circumstances under which these assign-
ments came about, following McKissock’s layoff and loss of
warehouse work.
It is evident from the foregoing that McKissock’s agree-
ment to perform driving work was a means of his avoiding
further loss of the much higher paid warehouse work.
McKissock had no real option in the matter, and to claim,
as Respondent does, that McKissock voluntarily declined
warehouse work opportunities by accepting nonunit assign-
ments is preposterous. First, had Respondent provided
McKissock with the overtime opportunities it was required to
under the bumping provision of the agreement, the driving
option would not have been made available to McKissock.
Second, since Respondent’s conduct in permitting McKissock
to perform in a regular, hybrid position not permitted to em-
ployees in the Tonawanda bargaining unit was part and par-
cel of its unlawful conduct in not applying the contract to
Orchard Park employees, Respondent should not be per-
mitted to benefit unlawfully from McKissock’s multiple as-
signments, by claiming he was thereby ‘‘unavailable’’ for
unit work. If Respondent had applied the agreement to Or-
chard Park, not only would McKissock have been able to
bump into Tonawanda, according to Finnegan he would have
been required to withdraw from the Union on performing
driving work, and McKissock was never presented with this
option. McKissock did not voluntarily decline unit work, be-
cause there was no bargaining unit at Orchard Park. In fact,
whenever the work was available he was assigned it; his
driving work as a filler benefited Respondent and contributed
to a more efficient operation and should not serve to dis-
qualify McKissock for the day-to-day vageries of his work
assignments. In any event, McKissock’s earnings as
driver/merchandiser have been taken into account as actual
wages received and deducted from gross backpay in arriving
at his net backpay totals.
The burden of proving any mitigation of damages is on the
Respondent, the General Counsel being required to show
only the gross amounts of backpay due. See Kansas Refined
Helium, 252 NLRB 1156, 1157 (1980). I am satisfied that
on this question of McKissock having allegedly made him-
self unavailable for unit work, Respondent has failed to sus-
tain its burden of proof by a preponderance of evidence that
McKissock has forfeited claim to any weeks of backpay by
accepting driving assignments, and I reject its affirmative de-
fense.
1067COCA-COLA BOTTLING CO. OF BUFFALO
C. The Claim for Contributions to the Union’s Pension
and Retirement Fund
In disputing the portion of the make-whole remedy requir-
ing reimbursement of the Union’s Pension and Retirement
Fund for all contributions due the Fund on behalf of the
three claimants for the duration of the backpay period, a sum
of $10,970.80, Respondent relies exclusively on the holding
of the court in Manhattan Eye, Ear & Throat Hospital v.
NLRB, 942 F.2d 151 (2d Cir. 1991). I conclude that the
Manhattan case is readily distinguishable from the instant
one and its holding may not defeat the claims asserted here-
in.
The evidence shows that both collective-bargaining agree-
ments in effect during the backpay period required set con-
tributions to be made by Respondent to the New York State
Teamsters Conference Pension and Retirement Fund per hour
per employee for each week subject to a maximum of 40
hours. The rate of contribution was, as alleged in the speci-
fication, 60 cents per hour through the week ending Decem-
ber 31, 1988, and .625 per hour from January 1, 1989, to
June 9, 1991. Respondent does not dispute these provisions,
nor that it executed the Fund Participation Agreements re-
quired under the clause for each of the two bargaining agree-
ments.
A May 1981 booklet was also introduced into evidence
which constitutes a summary plan description of the Pension
Plan governing the jointly trusted Fund. It describes in detail
how to calculate future and past service credits, types of pen-
sion benefits provided, the manner of computation of the
monthly benefit, requirements for vesting, and related mat-
ters.
Because of questions which were raised regarding these
subjects as well as others under the Plan as presently admin-
istered, an agreement was reached to hold an off-the-record
joint long-distance conference telephone call with Fund Ad-
ministrator Al Sgaglione, who was unavailable as a witness
at the time of the scheduled hearing. A speaker phone call
was held with Sgaglione, present at which were representa-
tives and counsel for all parties. As a result of the questions
asked, and answers received a stipulation of fact was entered
into evidence providing the following information regarding
the operation of the Fund under the plan.
The Plan contains a 10-year vesting requirement, meaning
a covered employee has a right to a pension at age 65 upon
10 years of credited service for which contributions have
been made to the Fund by one or more contributing employ-
ers. An individual not vested in the Plan would lose all cred-
its on a 3-year break in service. Individual accounts are
maintained for each employee on whose behalf covered em-
ployers have made contributions. If payments were made for
the 1988–1991 backpay period under this proceeding by
order of the Board, they would be received and credited to
the account of the individual claimants if they had accounts
in the Fund. Contributions so made would also be credited
toward their continuous service requirement. Contributions
made to the Fund by a participating employer prior to an em-
ployee’s service with Respondent would also be credited to
the individual’s account. The Fund has no reciprocal agree-
ments with plans or funds not under its own authority or ad-
ministration. Since the 1981 publication, which listed a past
service benefit equal to the number of years of past service
credit multiplied by $16, the current amount by which each
year of credited service is multiplied to determine the month-
ly benefit, is $35. Sgaglione also agreed to provide the past
credits under the Fund for Michael Haug and Melvin
Mingoia, which both employees agreed may be released for
use in this proceeding.
These documents show that since his initial participation
in the Fund in 1969, through the year 1991, Haug had earned
12 years of service credits, so had a vested right to a pen-
sion. By close of 1991, Mingoia had earned 2.3 years of
service credits and so had not vested. Mingoia had also been
discharged from Respondent’s employ in September 1991, so
that if he was not reemployed by Respondent (or any other
participating employer in the Fund) by September 1994, he
would lose his past service credits toward vesting. Mingoia
was not questioned about his current and future employment
intentions, while on the witness stand, but he did file an un-
fair labor practice charge seeking his reinstatement on March
6, 1992. The charge alleged that he was terminated because
of his previous testimony in the ULP phase of the instant
proceeding. Although the charge was dismissed and no ap-
peal was taken, it does manifest an interest in reemployment
by Respondent and by inference, in the industry, including
other employer participants in the Fund.
At the time of the hearing and Sgaglione’s submissions,
McKissock had not yet earned any full year of part service
credits. However, by his continued employment he will be in
a position to earn such credits and ultimately earn a vested
right to a Pension.
The evidence further revealed that under a Pension plan
established by Respondent for its nonunit employees, spon-
sored and administered by Abarta, Inc. of Pittsburgh, Penn-
sylvania, such employees receive vesting rights after 5 years
of service. Among these employees are Michael Haug, who
became 100-percent vested under the Respondent plan on
June 1, 1991, before his transfer to coverage under the col-
lective-bargaining agreement and the Union Fund later that
month. Haug was then entitled to a monthly benefit at his
normal retirement date of March 1, 2014, in the amount of
$90.49 payable for the remainder of his life. Other provisions
of the Plan permitted reduced benefits on earlier retirement.
Contributions to this Plan in excess of those required
under the collective-bargaining agreement were made on be-
half of both Haug and McKissock during the periods of their
nonunit employment.
It is Respondents’ contention that under Manhattan, supra,
it should be credited with those contributions and further,
that since the vested benefit to be received by Haug is sub-
stantially the same as he would have received had he been
employed under the agreement during the backpay period,
Respondent should not be required to duplicate these benefits
by contributing to the Union Fund. As to Mingoia, since his
termination from covered employment requires him to be-
come reemployed by a participating employer by 1994 and
work for 6 years thereafter, his future interest in the Fund
is speculative at best, and no past contribution should be re-
quired on his behalf.
This defense ignores McKissock entirely and his future in-
terest in the Union Fund. It also ignores the fact that the
added contributions required for the back period on behalf of
both Haug and Mingoia would add to the pension benefit
Haug is already entitled to receive at age 65, and to the cred-
ited years of service for Mingoia, thereby reducing by ap-
1068 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Under New Horizons, interest is computed at the ‘‘short-term
Federal rate’’ for the underpayment of taxes as set out in the 1986
amendment to 26 U.S.C. § 6621.
5 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
proximately 3 years, the years he will need to accumulate to
achieve vesting if he becomes reemployed by a participating
employer by 1994.
In seeking to apply the principles underlying the Manhat-
tan decision to the instant proceeding, Respondent is stretch-
ing the points made by the court there beyond good reason.
First of all, the facts of Manhattan, have little relation to
the facts of the instant proceeding. In Manhattan, unlike
Coca Cola, supra, the employees had voted to decertify their
bargaining representative. After the employer had placed the
unit employees in management-run health and pension funds
and contributed to them for several years, a second decerti-
fication election was ordered, and, on its eve, the Union ne-
gotiated to keep the employees in the management plans, and
disclaimed further interest in representing them. The court re-
fused to affirm the Board’s Supplemental Decision and Order
and remanded the proceeding to the Board to recalculate the
remedy because it failed to benefit any of the employees, re-
sulted in a windfall for the Union, and was ultimately puni-
tive rather than remedial. Under the test established by Sure-
Tan, Inc., 467 U.S. 883, 900 (1984), the Board had failed
to sufficiently tailor its remedy to the actual, rather than the
merely speculative consequences of the unfair labor prac-
tices. The Board’s reliance on the rationale of Stone Boat
Yard v. NLRB, 715 F.2d 441, 446 (9th Cir. 1983), of a pre-
sumption that an employer’s failure to contribute harmed the
funds was improper in view of the disclaimer of the employ-
ees involved of all future interest in the Joint Benefit Fund
and in fact that, although the employees might still have
some economic stake in the Joint Pension Fund, the amount
was still unclear, and may have constituted a windfall since
the Board’s remedy failed to recognize that the Union Joint
Pension Fund and the Management Pension Fund had a re-
ciprocal agreement under which each Fund recognized time
accrued in the other program for determining whether pen-
sion rights have vested.
Clearly, two of the three claimants have a clear future in-
terest in the Union Pension Fund. Even Mingoia may achieve
vesting on reemployment by a participating employer by
1994 and a continued 3 years of employment, a far from
speculative event.
None of the service credits received by McKissock under
the Respondent’s Pension Plan may be applied under the
Union Plan to shorten the period of time necessary for his
vesting under it, and Haug received no service credits toward
his union pension for time accrued under Respondent’s plan.
Unlike the situation in Manhattan, supra, the Union con-
tinues as exclusive bargaining representative of the unit em-
ployees, and both it and Respondent have a strong interest
in maintaining the ability of the Union Fund to provide for
future needs of employee participants. See NLRB v. Trans-
port Service Co., 973 F.2d 562 (7th Cir. 1992), where the
court upheld a full reimbursement order after an employer’s
unlawful failure to make pension, health and welfare fund
payments. The court acknowledged the inevitable impact of
nonpayment on the future viability of the Fund, even though
only three employees were implicated. Id. at 569. The court
distinguished Manhattan on the ground that the Board had
established, such as the instant record has established, con-
crete evidence of the employees’ economic interest in the fu-
ture of the funds and the Union’s continued interest in rep-
resenting them and securing that interest.
Just as the court held in Stone Boat Yard, supra, Respond-
ent is in a poor position to complain about the extra costs
when it had illegally withheld the payments.
I conclude that the Manhattan case is distinguishable and
that Respondent is required to make the retroactive contribu-
tions sought in the specification. The Manhattan court did
not hold that the Board is not empowered in the exercise of
its broad remedial power to order restoration of the status
quo ante where an employer unilaterally discontinues pay-
ments to union-sponsored benefit funds, supra at 159. The
peculiar facts of Manhattan are absent here and because the
Union and employee claimants both have continued eco-
nomic stakes in the future financial stability of the Union
Fund, I conclude that the Respondent has an obligation to
make the payment to the Fund as called for in the specifica-
tion.
THE REMEDY
For the reasons described above, I find that the obligations
of Respondent to the discriminatees Michael Haug, John
McKissock, and Melvin Mingoia will be discharged by the
payments to them of the respective amounts as set forth in
the following recommended Order. Such amounts shall be
payable, plus interest on those sums, as computed in the
manner prescribed in New Horizons for the Retarded, 283
NLRB 1173 (1987),4 but minus tax withholdings as required
by Federal and state laws. I shall also recommend that Re-
spondent make the following contributions on behalf the
three discriminatees to the New York State Teamsters Con-
ference Pension and Retirement Fund, with interest thereon,
to be computed in the manner prescribed in New Horizons
for the Retarded, supra.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended5
ORDER
The Respondent, Coca-Cola Bottling Company of Buffalo,
Inc., Tonawanda and Orchard Park, New York, its officers,
agents, and assigns, shall make Michael Haug, John
McKissock, and Melvin Mingia whole by payment to them,
and to the New York State Teamsters Convergence Pension
and Retirement Fund on their behalf, the following sums, in
accordance with the remedy section of this decision.
Backpay
Contribution on Behalf
of Employees to Pen-
sion and Retirement
Fund
Michael Haug $136.98 $3,614.17
John McKissock 16,257.27 3,659.54
Melvin Mingoia 296.37 3,696.59