Future Ambulette, Inc.

National Labor Relations Board - Board Decisions

May 29, 1992

307 N.L.R.B. 769 (N.L.R.B. 1992)

769
307 NLRB No. 121
FUTURE AMBULETTE
1 The name of the Charging Party has been changed to reflect the
new official name of the International Union.
2 In light of the outcome of this case, we find it unnecessary to
pass on the General Counsel’s motion to strike R. Exhs. 3 and 4,
and the testimony of witnesses Jeannetti and Cunningham.
3 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
The Respondent contends, inter alia, that discriminatee Tomas
Gaton voluntarily departed from interim employment with the Hertz
Corporation. The record demonstrates that unlike his former position
with the Respondent, Gaton’s job with Hertz required computer
skills. Gaton did not possess these skills and he received no com-
puter training from Hertz. Accordingly, we find that the Hertz posi-
tion was not substantially equivalent employment and that Gaton’s
abandonment of that job does not constitute a willful loss of earn-
ings.
4 In enforcing the Board’s decision in the underlying case, the
court of appeals modified the Board’s remedy to limit the cir-
cumstances in which discriminatee Howell would be entitled to an
award of backpay. In the subsequent compliance proceeding, the
judge found that the court’s criteria for a backpay award to Howell
were satisfied because it was shown that during the period from
Howell’s discharge to his offer of reinstatement, the Respondent em-
ployed other unlicensed drivers. We adopt the judge’s determination
that Howell is entitled to backpay. We further note that the Board
has addressed elsewhere the court’s modification of the Board’s rem-
edy in this case. See De Jana Industries, 305 NLRB 845 (1991). 1 293 NLRB 884.
Future Ambulette, Inc. and Local 1034, Inter-
national Brotherhood of Teamsters, AFL–
CIO.1 Cases 2–CA–22232, 2–CA–22232–2, and
2–CA–22312–2
May 29, 1992
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On January 10, 1992, Administrative Law Judge D.
Barry Morris issued the attached supplemental deci-
sion. The Respondent filed exceptions and a supporting
brief, and the General Counsel filed an answering
brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings,2 findings,3 and con-
clusions and to adopt the recommended Order.4
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Future Ambulette, Inc.,
New York, New York, its officers, agents, successors,
and assigns, shall take the action set forth in the Order.
Larry Singer, Esq., for the General Counsel.
Stuart M. Kirshenbaum, Esq., of Mineola, New York, for the
Respondent.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
D. BARRY MORRIS, Administrative Law Judge. On April
28, 1989, the National Labor Relations Board issued an
Order1 directing Future Ambulette, Inc. (Respondent) to
make whole Anthony Williams, Tomas Gaton, Raymond
Rodriquez, and Jeffrey Howell (the discriminatees) for their
losses resulting from Respondent’s unfair labor practices. On
June 11, 1990, the United States Court of Appeals for the
Second Circuit entered its judgment enforcing the backpay
and reinstatement provisions of the Board Order except for
a modification with respect to Howell. A controversy having
arisen over the amount of backpay due the discriminatees, on
October 31, 1990, the Regional Director for Region 2, issued
a compliance specification and notice of hearing. Respondent
filed its answer to the specification on November 6, 1990.
A hearing was held before me in New York City on Feb-
ruary 13–15 and March 4 and 6, 1991. All parties were given
full opportunity to participate, produce evidence, examine
and cross-examine witnesses, argue orally, and file briefs.
Briefs were filed by the General Counsel and by Respondent.
On the entire record of the case, including my observation
of the demeanor of the witnesses, I make the following
FINDINGS OF FACT
I. TOMAS GATON
Efforts to Obtain Employment
Tomas Gaton, who had been employed by Respondent as
an ambulette driver prior to his unlawful discharge, credibly
testified that he sought interim employment soon after his
discharge by contacting business establishments, telephoning
prospective employers, contacting the Union, and looking in
newspaper classified sections on a daily basis. Gaton esti-
mated that he contacted between 40 to 50 employers, includ-
ing several ambulette companies, in seeking interim employ-
ment. The only interim employment Gaton was able to ob-
tain was as a customer sales representative for Hertz. Gaton
was offered reinstatement on December 31, 1988.
II. ANTHONY WILLIAMS
A. Efforts to Obtain Employment
Anthony Williams, who also had been employed by Re-
spondent as an ambulette driver prior to his unlawful dis-
charge, credibly testified that he sought interim employment
immediately after being discharged by Respondent. His
records reflect that he sought employment at nine companies
and contacted the Union and the New York City Department
of Labor during the 2-month period after his discharge. From
May 29 until July 3, 1987, he was employed by American
Ambulette Service. He left this position for a higher-paying
job at Wildcat in mid-July. In September 1987 Williams was
770 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
2 The General Counsel’s motion to correct the transcript by sub-
stituting the name ‘‘Ben’s Auto Parts’’ for ‘‘Advance Auto Parts’’
is granted.
told that there was no longer any work available for him at
Wildcat and he almost immediately thereafter obtained em-
ployment at the Hertz Corporation. Williams worked at Hertz
through early October 1987 until he was laid off due to lack
of work. On being laid off from Hertz, Williams once again
began his search for interim employment by searching news-
paper advertisements. He then began employment with
Alamar Carting Corporation. He began working for Kaplan
Brothers-Blue Flame Corp. on February 3, 1988, and contin-
ued to work there until May 1988. He began employment
with Nick Penachio on June 12, 1988. As of the date of the
hearing, Williams was employed at Penachio and his interim
earnings exceeded the gross backpay alleged in the specifica-
tion.
B. Offer of Reinstatement to Williams
Respondent contends that on October 25, 1988, an offer of
reinstatement was sent to Williams by certified mail ad-
dressed to 2411 8th Avenue, Apartment 5K, New York, New
York 10027. Williams credibly testified that he never re-
ceived any communication from Respondent or its attorneys
offering him reinstatement. Williams testified that he moved
to the Bronx soon after his discharge and that he had fur-
nished Respondent with his driver’s license which contained
his post office box address. Respondent did not introduce
into evidence a return receipt to indicate the receipt by Wil-
liams of the October 25, 1988 letter.
III. JEFFREY HOWELL
Efforts to Obtain Employment
Jeffrey Howell, who had been employed by Respondent as
an ambulette driver prior to his unlawful discharge, credibly
testified that he began his efforts to obtain interim employ-
ment immediately after his discharge. He sought employment
through union referrals, prior employers, newspaper classi-
fied advertisements, and at other ambulette companies. How-
ell was offered reinstatement by Respondent on August 21,
1987.
IV. RAYMOND RODRIGUEZ
A. Efforts to Obtain Employment
Raymond Rodriguez, who had also been employed by Re-
spondent as an ambulette driver prior to his unlawful dis-
charge, credibly testified that he began his efforts to obtain
interim employment immediately after his discharge. He vis-
ited jobsites, asked friends about job availability, sought help
from the Union, and searched classified advertisements for
interim employment. Rodriguez obtained his initial interim
employment at Ben’s Auto Parts in late February 1988.2 He
remained employed at Ben’s for approximately 3 months
until he found a better paying job at A.G.I. Contractors, Inc.
In December 1988 Rodriguez relocated to Long Island and
began working at D & B Power. He worked at D & B for
2 to 3 months and quit when he found a higher-paying posi-
tion. In March or April 1989 Rodriguez began working at
Academy Broadway, where he worked until September or
October 1989 when he was laid off due to the seasonal na-
ture of the business. During the last quarter of 1989
Rodriguez was employed at Midway Ambulette, where he
was still employed as of the date of the hearing.
B. Offer of Reinstatement to Rodriguez
Respondent contends that on December 30, 1988, it sent
a letter to Rodriguez offering him reinstatement. The letter
was addressed to Rodriguez at 3204 Holland Avenue, Bronx,
New York 10467. Rodriguez credibly testified that he never
received the letter. Rodriguez testified that at the time of his
discharge he was living at a different address, 1604 Metro-
politan Avenue, Bronx, New York. Rodriguez also testified
that Charles Dippolito, general manager and secretary-treas-
urer of Respondent, knew that Rodriguez was not living at
the Holland Avenue address because Dippolito had driven
Rodriguez home to the Metropolitan Avenue address after
having been injured in an accident while still employed by
Respondent. In addition, Rodriguez testified that he specifi-
cally informed Dippolito of the change of address. The
record contains a letter dated January 25, 1988, sent by
Dippolito to Rodriguez, addressed to Rodriguez’ mother’s
apartment, located at 660 E. 183d Street, Apartment 2J,
Bronx, New York 10453. Respondent did not offer into evi-
dence a return receipt indicating that Rodriguez had received
the letter of December 30, 1988.
V. DISCUSSION AND CONCLUSIONS
A. Efforts to Obtain Employment
An employer may mitigate his backpay liability by show-
ing that a discriminatee ‘‘willfully incurred’’ loss by a
‘‘clearly unjustifiable refusal to take desirable new employ-
ment.’’ Phelps Dodge Co. v. NLRB, 313 U.S. 177, 199–200
(1941). This, however, is an affirmative defense and the bur-
den is on the employer to prove the necessary facts. NLRB
v. Mooney Aircraft, 366 F.2d 809, 813 (5th Cir. 1966); Sioux
Falls Stock Yards, 236 NLRB 543, 551 (1978); O.K. Ma-
chine & Tool Corp., 279 NLRB 474, 477 (1986). The record
contains evidence demonstrating the efforts made by the
discriminatees in attempting to seek employment. I find that
Respondent has not sustained its burden of showing that the
discriminatees did not ‘‘make reasonable efforts to find in-
terim work.’’ NLRB v. Miami Coca-Cola Bottling Co., 360
F.2d 569, 575–576 (5th Cir. 1966).
B. Offers of Reinstatement
1. Williams
The record contains a copy of a letter dated October 25,
1988, addressed to Williams at 2411 8th Avenue, Apartment
5K, New York, New York 10027. The letter indicates that
it was to be sent certified mail. Respondent did not introduce
into evidence the green return receipt card. Williams credibly
testified that he did not receive the letter, nor any other offer
of reinstatement, from Respondent. Joanne Cunningham, the
then secretary to Respondent’s counsel, testified that when a
green card would be returned to the office it would be sta-
pled to the copy of the letter. Helen Jeannetti, the secretary
whose initials appear on the October 25 letter to Williams,
also testified that when a green card was returned to the of-
fice it was the standard procedure to attach it to the copy of
771FUTURE AMBULETTE
3 As the Supreme Court noted in Northern Railway Co. v. Page,
274 U.S. 65, 74 (1927):
[T]he omission by a party to produce relevant and important evi-
dence of which he has knowledge, and which is peculiarly with-
in his control, raises the presumption that if produced the evi-
dence would be unfavorable to his cause.
See also 2 Wigmore, Evidence, § 285 (Chadbourne rev. 1979); Mas-
ter Security Services, 270 NLRB 543, 552 (1984).
4 See Northern Railway Co. v. Page, supra, 274 U.S. at 74.
5 Although App. D–1 of the specification stated that the General
Counsel reserved the right to amend the specification with respect
to Howell, no amendment was requested.
the letter. Jeannetti did not specifically remember mailing the
letter to Williams. Williams testified that his mailing address
was a post office box number, which appeared on his driv-
er’s license, and which was provided to Respondent.
In Burnup & Sims, 256 NLRB 965, 966 (1981), the Board
held that where a respondent makes a good-faith effort to
communicate a valid offer of reinstatement to the
discriminatee, although it does not relieve Respondent of the
obligation to reinstate the discriminatee, it does toll Respond-
ent’s backpay liability. In that case Respondent’s letter was
mailed to the only address the discriminatee ever provided to
Respondent. The Board pointed out, ‘‘there was no showing
that alternative means for communicating with [the
discriminatee] were available to Respondent’’ (id. at 966).
In the instant proceeding Respondent’s counsel’s secretary
testified that the offer of reinstatement was mailed to Wil-
liams by certified mail. Both secretaries also testified that
when a green card was received, standard office procedure
was to attach it to the copy of the letter. Respondent offered
into evidence a copy of the letter to Williams but did not
offer the green card. It must be presumed, therefore, that ei-
ther the green card was not returned, or that when it was re-
turned it did not indicate that Williams received the letter.3
Under such circumstances, I believe that Respondent was put
on notice that the letter was not received by Williams. I note
that Williams testified that he provided to Respondent his
post office box address. Respondent made no further efforts
to communicate with Williams. I find, therefore, that Re-
spondent has not made a good-faith effort to communicate a
valid offer of reinstatement to Williams.
2. Rodriguez
The record contains a copy of a letter dated December 30,
1988, addressed to Raymond Rodriguez at 3204 Holland Av-
enue, Bronx, New York 10467. Rodriguez credibly testified
that he never received the letter or any other offer of rein-
statement from Respondent. The copy of the December 30
letter indicates that it was to be mailed certified mail. How-
ever, Respondent did not offer into evidence the green return
receipt card.
Rodriguez testified that at the time of his discharge he was
living at another address, 1604 Metropolitan Avenue, Bronx,
New York, and that Dippolito was aware of this location be-
cause Dippolito had driven him home to this address after
Rodriguez had been injured in an accident while he was still
employed by Respondent. In addition, on January 25, 1988,
Respondent mailed a letter to Rodriguez at his mother’s East
183d Street address. This letter was forwarded to Rodriguez
by his mother.
As pointed out above, the standard office procedure was
to attach the green card to the copy of the letter. Respondent
did not offer into evidence the green card. As was the case
with Williams, I presume, therefore, that the green card was
not returned or did not indicate that Rodriguez received the
letter.4 Under such circumstances, Respondent was put on
notice that the letter was not received by Rodriguez. Re-
spondent was aware that Rodriguez had alternate addresses,
inasmuch as Dippolito had driven Respondent to an address
at 1604 Metropolitan Avenue in the Bronx and Respondent
had mailed a letter to Rodriguez at his mother’s East 183d
Street address. Thus, unlike Burnup & Sims, supra, there
were alternative means for communicating with Rodriguez,
which were available to Respondent. I find, therefore, that
Respondent has not made a good-faith effort to communicate
a valid offer of reinstatement to Rodriguez.
3. Unlicensed driver status
The United States Court of Appeals for the Second Circuit
modified the reinstatement and backpay portion of the
Board’s Order with respect to Howell. The court ordered
(903 F.2d 140, 145 (1990)):
4) . . . Howell is entitled to backpay until the earlier
of his actual reinstatement, his refusal of reinstatement,
or his failure to timely present his driver’s license. 5)
The backpay obligation of paragraph 4) shall be limited
to those periods during which either Future Ambulette
employed other unlicensed drivers or Howell himself
had a valid license.
Howell was offered reinstatement by Respondent on Au-
gust 21, 1987. The specification requests backpay for Howell
only through the third quarter of 1987.5 Under the terms of
the court order it is necessary to determine whether Respond-
ent employed other unlicensed drivers prior to August 21,
1987, the date of Howell’s reinstatement.
In the underlying decision, Administrative Law Judge
Morton stated (293 NLRB at 890):
On the same day Howell was discharged [May 6,
1987], Dippolito asked another driver, Stephen Gurito,
for his license. He was unable to produce it. As of the
hearing [February and March 1989], Gurito still does
not have a valid license and is nonetheless still in Re-
spondent’s employ as a driver. For that matter, the driv-
ing abstracts of many of Respondent’s current drivers
disclose that their licenses have been suspended or have
expired.
Howell testified that in August 1987 he did not possess a
valid driver’s license. In addition, Howell testified that other
drivers, including Joe Rodriguez, Robert Francis, and
‘‘Julio’’ and Jackie Randolph were employed as drivers after
August 1987 and that they did not have valid drivers’ li-
censes. This testimony was not controverted.
It would appear that Respondent employed drivers without
valid drivers’ licenses on May 6, 1987, the date of Howell’s
discharge, and after August 21, 1987, the date of Howell’s
reinstatement. The record does not show, however, whether
the same situation existed between May 6 and August 21,
1987. The General Counsel subpoened documents from Re-
spondent, including documents relating to the drivers’ license
772 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 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.
7 See generally Isis Plumbing Co., 138 NLRB 716, 717–721
(1962).
8 The amended backpay amount is reflected on App. 1 to General
Counsel’s brief.
issue. Respondent refused to comply with the subpoena. Re-
spondent called no witnesses nor produced any evidence to
indicate that it employed only drivers with valid licenses dur-
ing the period May 6 to August 21, 1987.
As stated in Auto Workers v. NLRB, 459 F.2d 1329, 1336
(D.C. Cir. 1972):
[W]hen a party has relevant evidence within his control
which he fails to produce, that failure gives rise to an
inference that the evidence is unfavorable to him.
See also Northern Railway Co. v. Page, supra, 274 U.S. at
74; 2 Wigmore, Evidence, § 285, supra.
Respondent employed drivers without valid drivers’ li-
censes until May 6, 1987, and after August 21, 1987. There
is no reason to imply that the situation was any different dur-
ing the period May 6 to August 21. Indeed, as Judge Morton
pointed out in the underlying decision, Gurito was unable to
produce his driver’s license on May 6, 1987, and as of early
1989 he still did not have a valid license (293 NLRB at
890). It can be presumed that he did not have a valid driver’s
license during the period May 6 to August 21, 1987. In addi-
tion, inasmuch as Respondent failed to comply with the sub-
poena, I infer that the evidence would have shown that dur-
ing the period May 6 to August 21, Respondent continued
to employ drivers without valid drivers’ licenses.
Accordingly, I find that during the period May 6 to Au-
gust 21, 1987, Respondent employed drivers without valid
drivers’ licenses.
4. Respondent’s motion to deny Williams backpay
During the course of the hearing Williams admitted that he
worked as a taxi driver during a portion of the backpay pe-
riod. He testified, without contradiction, that he did not earn
a profit during this time because his costs were greater than
his income. Williams failed to report this activity to the
Board’s compliance officer. Respondent has moved that Wil-
liams be denied any backpay as a result of this omission.
The Board stated in American Navigation Co., 268 NLRB
426, 428 (1983):
We find that a remedy which denies backpay for the
quarters in which concealed employment occurred will
discourage claimants from abusing the Board’s proc-
esses for their personal gain and will also deter re-
spondents from committing future unfair labor prac-
tices. This remedy will be applied, of course, only in
cases where the claimant is found to have willfully de-
ceived the Board, and not where the claimant, through
inadvertence, fails to report earnings. [Footnotes omit-
ted.]
I deny Respondent’s motion. Even if a claimant is found
to have fraudulently concealed income, the claimant is only
denied backpay for the quarter in which he willfully deceived
the Board. Williams credibly testified that his expenses ex-
ceeded his income during the time that he worked as a taxi
driver. I do not find that Respondent has made the requisite
showing that Williams ‘‘willfully deceived the Board.’’ See
also Allied Lettercraft Co., 280 NLRB 979, 983 (1986).
Conclusions
I find that the backpay computation set forth in the com-
pliance specification, as amended, is appropriate. Inasmuch
as I have found that Respondent had not made valid offers
of reinstatement to Anthony Williams and Raymond
Rodriguez, I recommend that their rights to additional back-
pay continue beyond the backpay periods covered by this
proceeding.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended6
ORDER
The Respondent, Future Ambulette, Inc., New York, New
York, its officers, agents, successors, and assigns, shall pay
to each of the following employees, as net backpay, the
amounts set forth opposite each name, plus interest computed
in the manner prescribed in New Horizons for the Retarded,
283 NLRB 1173 (1987),7 less tax withholdings required by
Federal and state laws:
Anthony Williams $12,926
Tomas Gaton 25,812
Raymond Rodriguez 834,550
Jeffrey Howell 5,925