Michigan Roads Maintenance Company

National Labor Relations Board - Administrative Judge Opinions

Sep 26, 2006

07-CA-046891 (N.L.R.B. Sep. 26, 2006)

JD–74–06
Trenton, MI

UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES

MICHIGAN ROAD MAINTENANCE
COMPANY, LLC, d/b/a MICHIGAN
ROADS MAINTENANCE COMPANY, LLC

and Case No. 7-CA-46891

JEFFREY A. CRAWFORD, an Individual

Robert Buzaitis, Esq., and
Judith A. Champa, Esq.,
for the General Counsel
William M. Donovan, Esq.,
of Rochester, Michigan
for the Respondent

SUPPLEMENTAL DECISION

Statement of the Case

Eric M. Fine, Administrative Law Judge. This supplemental proceeding was heard in
Detroit, Michigan on June 6, 2006. A compliance specification and notice of hearing was issued
on March 29, 2006,1 predicated on a Decision and Order of the Board dated May 11, 2005,
(344 NLRB No. 77), which provided, inter alia, that Michigan Road Maintenance Company, LLC,
d/b/a Michigan Roads Maintenance Company, LLD (Respondent), take certain affirmative
action, including offering full reinstatement and making whole Jeffrey A. Crawford, for any loss
of earnings he may have suffered as a result of the Respondent's discharge of Crawford in
violation of Section 8(a)(3) and (1) of the Act. By stipulation dated March 16, 2006, Respondent
waived its right to contest either the propriety of the Board's Order or the findings of fact and
conclusions of law underlying the Board's Order, except as to the amount, if any, of backpay
due Crawford. Respondent filed an answer to the compliance specification, wherein it
challenged the formula used in computing gross backpay, asserted length of the backpay period
was incorrect, and that unemployment payments should be deducted from Crawford’s
backpay.2

Based on the entire record, including the Board’s Decision and Order, the testimony of
the witnesses, and my observations of their demeanor,3 documents, stipulations of the parties,
and the briefs filed by the General Counsel and Respondent, I make the following findings
Continued
1 Counsel for the General Counsel amended the compliance specification at the hearing to
show an increase in Crawford’s interim earnings.
2 There is a dispute between the General Counsel and Respondent as to whether
Respondent’s answer also appropriately challenges claimed expenses for mileage, union dues,
and interest rates.
3 There were three witnesses who testified in this proceeding Board agent Patricia Zane,
Respondent official Thomas Cicotte, and Jeffrey A. Crawford. I found, considering their
demeanor and the content of their testimony, that they all testified in a credible fashion to the

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_________________________

A. General Principles

In United States Can Co., 328 NLRB 334, 337 (1999), enfd. 254 F.3d 626 (7th Cir. 2001),
it was stated that:
It is well-settled that the finding of an unfair labor practice is presumptive proof that some
backpay is owed, and that in a compliance proceeding the sole burden on the General
Counsel is to show the gross amounts of backpay due, that is the amounts the
employees would have received but for the employer's unlawful conduct. NLRB v.
Mastro Plastics Corp., 354 F.2d 170, 178 (2d Cir. 1975); Basin Frozen Foods, 320 NLRB
1072, 1074 (1996).
* * * *
Once the gross backpay amounts are established, the burden shifts to the employer to
establish facts that would negate or mitigate its liability. NLRB v. Mastro Plastics, 354
F.2d 170 (2d Cir. 1965), cert denied 384 U.S. 972 (1966)...

The General Counsel has discretion in selecting a formula which will closely
approximate backpay. “The government need not find the exact amount due nor adopt a
different and equally valid formula which may yield a different result.” See, Basin Frozen Foods,
Inc., 320 NLRB 1072, 1074; Minnete Mills, Inc., 316 NLRB 1009 (1994); and Coca Cola Bottling
Company of Buffalo, Inc., 313 NLRB 1061. In Alaska Pulp Corp., 326 NLRB 522, 523 (1998), it
was stated that, “If, due to the variables involved, it is impossible to reconstruct with certainty
what would have happened in the absence of a respondent's unfair labor practices, we will
resolve the uncertainty against the respondent whose wrongdoing created the uncertainty.”

In Performance Friction Corp., 335 NLRB 1117, 1117 (2001), the Board stated:

Both the Board and the courts have applied a broad standard of reasonableness in
approving numerous methods of calculating gross backpay. Any formula which
approximates what the discriminatees would have earned had they not been
discriminated against is acceptable if not unreasonable or arbitrary in the circumstances.
La Favorita, Inc., 313 NLRB 902, 903 (1994), enfd. mem. 48 F.3d 1232 (10th Cir. 1995).
The Board is required only to adopt a formula which will give a close approximation of
the amount due; it need not find the exact amount due. NLRB v. Overseas Motors, 818
F.2d 517, 521 (6th Cir. 1987), citing NLRB v. Brown & Root, Inc., 311 F.2d 447, 452 (8th
Cir. 1963). Nonetheless, the objective is to reconstruct as accurately as possible what
employment and earnings the discriminatee would have had during the backpay period
had there been no unlawful action. American Mfg. Co. of Texas, 167 NLRB 520 (1967);
CHM Section 10532.1. Where, as here, the Board is presented with conflicting backpay
formula arguments, the Board must determine the “most accurate” method of
determining backpay. Woodline Motor Freight, 305 NLRB 6 (1991), affd. 972 F.2d 222
(8th Cir. 1992); East Wind Enterprises, 268 NLRB 655, 656 (1984). The Board may
borrow elements from the suggested formula of each party to account for conditions
described in the evidence and thereby meet its objective of accurately reconstructing
backpay amounts. Hill Transportation Co., 102 NLRB 1015, 1020 (1953).

Thus, it is the job of the administrative law judge to make recommendations to the Board as to
the most accurate method of determining the amount of backpay due. Kansas Refined Helium
extent their memories would permit.

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Company, 252 NLRB 1156, 1158 (1980), enfd. 683 F.2d 1296 (10th Cir. 1982). See also
American Manufacturing Company of Texas, 167 NLRB 520 (1967). As provided for in the
underlying decision, Jeffrey A. Crawford is entitled to be made whole for any loss of earnings
and other benefits, computed on a quarterly basis from the date of his discharge, September 24,
2003, to the date of a proper offer of reinstatement, less any net interim earnings, as prescribed
in F.W. Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in New Horizons for the
Retarded, 283 NLRB 1173 (1987).

B. Jeffrey A. Crawford

1. The gross backpay formula

As revealed from the findings in the underlying decision, Respondent, located in
Trenton, Michigan, is a trucking company engaged in the business of transporting gravel, dirt,
stone, and sand to outside construction sites. Respondent was formed in April 2003, and began
operations in May. Drivers Crawford, Feist, Sawyer, Gardner, and Fesko were among the first
drivers hired by Respondent, and they were hired in late May 2003. Respondent witness
Thomas Cicotte has been affiliated with Respondent for about 2 years. Cicotte testified
Respondent’s has grown in the last year and a half, but business was fairly level during
the first year and a half. Cicotte testified Respondent’s business is seasonal in nature,
slowing down in the winter months due to weather and the state frost law impacting on
road usage. Cicotte testified normally the busiest time of the year for Respondent is
between May and October. Down time starts in mid November continues into late March
to early to mid April. Cicotte testified the truck drivers are paid based on a percentage of
the gross earnings on their load. The rate can vary per customer and the distance the
truck has to go. Drivers are selected randomly based on availability of work. He testified
there was no seniority at Respondent at that time Crawford was there, and no guarantees
of a minimum amount of loads per driver.

Patricia Zane is a field examiner working for Region 7. Zane, the author of the
compliance specification, testified on behalf of the General Counsel. Zane testified
through phone calls to Respondent’s attorney William Donovan, and then to Cicotte, Zane
requested gross earnings of truck drivers who worked during the backpay period, which
Zane testified was from September 24, 2003, to December 8, 2004, the date Crawford was
given to respond by in Respondent’s November 23, 2004, certified letter offering him
reinstatement. Zane testified she only made verbal requests for Respondent’s records,
and that she did not limit the number of drivers for whom she was requesting the records.

Zane received a fax from Donovan dated December 15, 2005, stating that attached
are the wage records Zane requested. The records included pay records for the time they
each worked, during the period ending May 31, 2003, to December 31, 2004, for drivers:
Thomas, Page, Green, Zamorski, Sawyer, Fesko, DeRome, and McKinney. Zane testified
she eliminated Fesko from her gross backpay calculations as a comparable employee for
Crawford because Fesko had a lot of weeks where he had very low or no earnings. Zane
testified that Page, Green, and Zamorski were eliminated from her gross backpay
calculations as comparable employees because they had very high earnings during the
time they worked, and Zane felt they would skew the calculation. Zane selected the
following four drivers from Respondent’s tendered records to make her gross backpay
calculations: Thomas, Sawyer, DeRome, and McKinney. Zane testified she eliminated
some weeks of work from the four selected drivers from the gross backpay calculation
when there were no earnings or the earnings were low compared to other drivers. Zane
testified Crawford worked almost every day at Respondent and that Zane had a “fair idea”

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of what Crawford earned when he was working, so she tried to select employees who
worked a fair number of weeks with earnings in Crawford’s range. Zane could not recall at
the time of her testimony whether she had copies of Crawford’s payroll records, although
she testified, “I may have had copies of his pay stubs.” She testified she never made a
specific comparison between the selected employees pay records and that of Crawford.
However, she testified, “I tried to pick employees that I thought would be representative of
what Mr. Crawford would have made had he been working…”. Using the four selected
drivers, and eliminating certain weeks for low or no earnings, Zane came up with a weekly
average of $920.14, for comparable drivers which she applied across the entire backpay
period in calculating Crawford’s gross backpay.

Cicotte prepared an exhibit using the wage rates of about 45 drivers, who he
testified were employed during periods of time during the backpay period. Cicotte testified
the purpose of the exhibit was to come up with an average wage by week for all drivers
employed during the back pay period. Cicotte did not include in his calculation any weeks
for which a driver had zero income. Cicotte calculated the total weeks worked for all the
drivers during the period of September 23, 2003 to November 23, 2004 and divided that
into the total gross earnings for an average of $862.01 per week. Cicotte testified that
everything Zane requested for wage information was provided to her.

The General Counsel entered into evidence copies of Crawford’s pay stubs for the
weeks ending June 7 to September 20, 2003. They show the following:

Week ending Gross pay
6/07/03 970.05
6/14/03 946.47
6/21/03 1,196.86
6/28/03 1,179.21
7/05/03 834.55
7/12/03 979.79
7/19/03 1,195.32
7/26/03 1,137.22
8/02/03 1,193.69
8/09/03 1,386.50
8/16/03 1,119.07
8/23/03 957.94
8/30/03 825.00
9/06/03 1,106.70
9/13/03 931.52
9/20/03 1,058.08

During the period of June 7 to September 20, 2003, for which Crawford’s records
were entered into evidence, he averaged $1063.62 a week. There were only three other
drivers for whom payroll records were provided showing earnings during the time period
Crawford was employed by Respondent. They are listed as follows: Thomas Green during
July 18 to September 19, 2003 averaged 1197.68;4 Thomas Fesko, during of June 6 to
September 19, 2003, averaged $1002.27; and Tim Sawyer during June 6 to September
19, 2003, averaged $949.61.
4 The week of July 11, 2003, was not included in Green’s calculation because it was his first
week of employment and it appears he did not work a full week.

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2. Analysis Concerning the Gross Backpay Formula

NLRB compliance officers compute gross backpay in accordance with the Agency’s
Compliance Manual, which while not legally binding, provides consistency and objectivity in
calculating backpay. See 3 NLRB Casehandling Manual (Sept. 1993). The Compliance Manual
directs NLRB compliance officers to apply one of three basic formulas: 1) the average hours
and/or earnings of the discriminatees prior to discharge; or 2) the hours and/or earnings of
comparable employees during the backpay period; or 3) the hours and/or earnings of
replacement employees. In the instant case, both the General Counsel and Respondent have
relied on formula number 2 calling for the use of comparable employees. However, they differ
in the selection of those employees with Respondent using a pool of all drivers who worked
during the backpay period, and the General Counsel using a select pool of drivers. The General
Counsel and Respondent also differ as to the length of the backpay period. However, for
reasons set forth below, I have concluded the General Counsel correctly asserts the backpay
period runs from September 24, 2003, until December 8, 2004. Both the General Counsel and
Respondent used their pool of comparable drivers to calculate an average weekly pay rate
which they applied over the length of the backpay period.

Section 10532.3 of the Compliance Manual demonstrates the use of a gross backpay
formula based on the earnings of comparable employees. The manual specifically cites the
usage of this formula as an example if “the discriminate is one of a number of truck drivers
working for an employer whose operations are seasonal. Available work is shared among the
employees, and their average earnings are about the same, but their earnings vary substantially
over time. Using this method, gross backpay would be based on the average earnings of the
other truck drivers during the backpay period.” The Compliance Manual states, “If the
comparison is with a group of employees, care must be taken to ascertain that an appropriate
group is defined. Further, care must be taken to ascertain that the group does not contain
employees—such as new employees, employees with unusual rates of absenteeism, or
employees at different wage rates—who are not comparable and whose inclusion in the group
will skew its average.”

I find Respondent’s suggested pool of comparable drivers is problematic. Crawford,
although he worked a short period of time and during Respondent’s busy season, had
consistent earnings averaging $1063.62 a week. He also showed the second highest
earnings of the four drivers who worked during that period, and whose earnings records
were introduced into evidence. Yet, in calculating its weekly average, Respondent used
all drivers including those who had low earnings and who worked a short time such as
Craanen, Duraz, Timmerman, and Richman, or who had absenteeism such as Fesko and
who at times showed earnings substantially below his peers. While Respondent did not
include in its calculation weeks where a driver had no earnings, it included in its
calculations drivers with poor earnings records who would unfairly skew gross backpay
against Crawford given his prior work record.5
Continued
5 I do not find the General Counsel’s argument persuasive that Respondent should be
barred from using all the drivers in its backpay calculation because it only provided the Region
with a partial listing in response to the Region’s inquiry for records to compute backpay. First,
Zane did not confirm her request concerning the records in writing to the Respondent. Thus, I
attribute Respondent’s initial failure to supply records for all drivers as a misunderstanding since

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_________________________

I find the General Counsel’s gross backpay formula to be appropriate and the most
accurate here. I find Zane’s selection of Thomas, Sawyer, DeRome, and McKinney as
comparable employees for Crawford’s gross backpay calculation to be reasonable. First,
despite Respondent’s using drivers with low earnings in its calculation, the weekly average
for the employees used by the General Counsel was only $58.13 more than Respondent’s
calculation. I also find Zane did not act in an arbitrary fashion when she eliminated certain
low earning weeks from her four selected drivers in calculating the Crawford’s gross
backpay. Crawford’s records at Respondent reveal consistent earnings for the time he
was there, as well as relatively high earnings compared to his peers for whom records
were tendered who worked during Crawford’s term of employment. The earnings for the
weeks Zane excluded for comparable drivers were substantially below the drivers in
Zane’s selection pool, as well as below the majority of all the long term drivers in the pool
of records Respondent supplied in attachments to its answer to the compliance
specification.6 See, City Disposal Systems, 290 NLRB 413 (1988), where, given the
discriminatee’s strong work record, the Board approved a gross backpay formula which
included a formula eliminating weeks of low earnings for comparable drivers in calculating
gross backpay.

3. Respondent’s other defenses.

The General Counsel contends the backpay period should run from September 24,
2003, until December 8, 2004, the last day Crawford was given to respond in Respondent’s
November 23, 2004, offer of reinstatement. In American Mfg. Co. of Texas, 167 NLRB 520, 521
(1967), the Board stated it is settled law that when an offer of reinstatement is made, “the
backpay period is tolled … in the case of discriminatees who did not reply, on the date of the
last opportunity to accept the offer of reinstatement.” See also, Cliffstar Transportation Co., 311
NLRB 152, 154-155 (1993); and Southern Household Products Co., 203 NLRB 881, 882 (1973).
Respondent argues two alternative theories as to the length of the backpay period in its answer
to the compliance specification. First, that the backpay should run until November 23, 2004, the
Respondent had no reason not to tender a complete set of records at the time of Zane’s request
if it understood those were the records she was requesting. The Region also received
Respondent’s answer containing the complete records on April 17, 2006, and the hearing was
not until June 6, 2006, allowing the Region to correct its calculation if it thought such a
correction was warranted. In reaching this conclusion, I am mindful that there may be
circumstances where a respondent is purposefully not cooperating in a backpay proceeding
thereby wasting agency resources. In that case I would reach a different result concerning
arguments based on records provided in an intentionally dilatory fashion.
6 The weeks Zane excluded from her calculation for gross pay from her selected field of
comparable drivers can be found marked in yellow in GC Exh. 4. Upon a review of all the
weeks selected by Zane, I find her elimination of those weeks to be reasonable. For example,
the $415.23 for driver DeRome for the week ending 9/27/03 was the second lowest amount
earned that week by all 16 of Respondent’s drivers who worked that week; the $124.63 for
DeRome for the week ending 2/13/04 was the second lowest amount earned out of all 13
drivers who worked that week; and the $590.78 excluded for DeRome during the week ending
3/27/04 was the fourth lowest earnings for all 13 drivers who worked that week. Those drivers,
who earned less than DeRome during the week ending 3/27/04, included: Fesko, who missed a
lot of time during this period; Timmerman, who was only in his second full week of work; and
Calloway, another short term driver at the time, who had a history of low earnings. (See, Resp.
Ans. Exh. 1, page 1-3).

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date of its November 23, 2004, certified letter the delivery of which Walker refused to accept.
Respondent argues if he had accepted delivery he could have been reinstated immediately.
Respondent maintains this argument in its post-hearing brief but cites no case law in support of
its contention. Respondent’s position is contrary to Board law and it is rejected.

Respondent posits a second theory in its answer to the compliance specification that the
backpay period should end on March 23, 2004, claiming Respondent was told by Zane and
Board attorney Mary Foy that it could not have any direct contact with Crawford until a decision
by the Board, and that Crawford no longer wanted his job back and that he obtained other
employment. However, Respondent put no evidence on the record to support this contention.
First, Zane credibly denied she made any such remarks to Respondent. Cicotte testified he
had conversations with a lot of different people from the NLRB, including Zane. He
testified he was told at one point, although he could not recall by whom, that Crawford did
not want to return to work for Respondent. Cicotte testified the conversation occurred
prior Respondent’s sending the November 23, 2004 offer of reinstatement. Yet, Cicotte
testified Respondent sent Crawford the November 23, 2004 offer of reinstatement because
“we were told we had to do that to comply with the requirements of the ruling.” He
testified, “It was in the Board order that we had to offer him reinstatement.” He testified
regardless of what a Board agent may have told him, he knew Respondent had to make
Crawford a reinstatement offer. Cicotte also testified he was never told by anyone from
the NLRB that he was not allowed to contact Crawford. Respondent also appears to have
dropped its March 23, 2004, contention in its post-hearing brief, stating at page 2 that, “In
addition the number of weeks used by the NLRB was 63 weeks. Respondent believes 61
weeks is the appropriate measure because the offer of reinstatement letter was sent to
Crawford November 23, 2004 and Crawford could have accept(ed) his employment back
at that time.”

In sum, Respondent’s asserted November 23, 2004, date to ending the backpay
period is contrary to Board law, and its March 23, 2004, date is not supported by the
record evidence. I therefore find the backpay period ends on December 8, 2004, as
contended by the General Counsel.

Respondent raised at the hearing several other contentions for the reduction of
Crawford’s backpay. I reject Respondent’s contention that Crawford’s unemployment
insurance benefits should be deducted from his backpay because unemployment benefits
are not interim earnings and are not normally offset against backpay liability. See United
Enviro Systems, 314 NLRB 1130, 1131 (1994). Similarly, Crawford credibly testified he
was required to be a union member for one of his interim employers and the Board has
held union dues are an expense deductible from interim earnings when the dues are paid
pursuant to a union shop agreement. See Carter Lumber, 227 NLRB 730, 736 (1977),
enfd. 573 F.2d 387 (6th Cir. 1978).

Respondent also challenged the mileage expenses deducted from interim earnings
for Crawford’s commute to his interim employer George Campbell and Sons.7 Crawford
credibly testified that he did not commute to George Campbell and Sons’ Detroit address
listed on the compliance specification. Rather, he split time commuting to that employer’s
Troy and Ann Arbor jobsites, which he testified were each about 33 miles one way from
his home. Crawford testified he was working for George Campbell and Sons’ six to seven
7 Respondent official Cicotte testified Respondent was not disputing Crawford’s mileage
expense for his other interim employer Mark’s Trucking.

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days a week. Respondent did not dispute the actual mileage calculation for the Troy and
Ann Arbor commute. However, Cicotte testified the mileage from Crawford’s home to the
Detroit address should be used because it was the only address listed on the compliance
specification, and it was a significantly shorter commute than the Troy and Ann Arbor
locations. Since I have credited Crawford’s testimony that he did not commute to Detroit, I
reject Respondent’s contention that the mileage claims listed in the compliance
specification are improper. I therefore find the mileage expenses claimed by the General
Counsel are appropriate.8

The General Counsel amended the compliance specification at the hearing to
reflect increased interim earnings on behalf of Crawford, thereby reducing his claimed net
backpay. Zane testified the interim earnings increase was due to her inadvertently leaving
out certain earnings from the calculation and was not caused by any late submission by
Crawford. Respondent did not place anything in the record that would call into question
the interim earnings reported by Crawford, nor does it maintain in its post-hearing brief
that those earnings are inaccurate. I find Crawford’s interim earnings are appropriately
listed in the amended compliance specification. See, United States Can Co., 328 NLRB 334,
337 (1999), enfd. 254 F.3d 626 (7th Cir. 2001).

Conclusion

For the reasons stated, I accept in all respects the General Counsel’s amended
backpay specification and calculations therein as summarized in General Counsel Exh.
1(i). Accordingly, the backpay owed Crawford is $27,881.74. On the above findings of
fact and conclusions of law and on the entire record, I issue the following recommended9

ORDER

IT IS HEREBY ORDERED that Respondent, Michigan Road Maintenance Company,
LLC, d/b/a Michigan Road Maintenance Company, LLC, Inc, its officers, agents, successors,
and assigns, shall pay Jeffrey A. Crawford the sum of $27,881.74, as the backpay owed from
September 24, 2003, through December 8, 2004, plus interest computed in the manner
described in New Horizons for the Retarded, 283 NLRB 1173 (1987), minus tax withholdings
required by Federal and state laws.

Dated, Washington, D.C. September 26, 2006

_____________________
8 Since I have rejected Respondent’s substantive arguments concerning union dues and
mileage reimbursement, I do not need to decide the dispute between Respondent and the
General Counsel as to whether Respondent’s answer was specific enough to bring these items
into dispute. Respondent also states in Exhibit 2 to its answer that it is disputing interest rates.
Respondent presented no evidence on this point and did not brief the matter. I therefore find,
as required in the underlying decision, that the Board’s standard method for computing interest
on the backpay as set forth in New Horizons for the Retarded, 283 NLRB 1173 (1987) is
appropriate.
9 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules and
Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec.
102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed
waived for all purposes.

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Eric M. Fine
Administrative Law Judge