M.D. Miller Trucking and Topsoil, Inc., (2017)

Docket Number:13-CA-104166
 
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NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Executive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes.

M.D. Miller Trucking & Topsoil, Inc. and General Teamsters Local Union No. 179, affiliated with the International Brotherhood of Teamsters. Case 13–CA–104166

April 12, 2017 SECOND SUPPLEMENTAL DECISION AND ORDER BY ACTING CHAIRMAN MISCIMARRA AND MEMBERS

PEARCE AND MCFERRAN

On November 4, 2016, Administrative Law Judge John T. Giannopoulos issued the attached supplemental decision. The Respondent filed exceptions and a supporting brief, and the General Counsel filed an answering brief.

The National Labor Relations Board has considered the decision and the record in light of the exceptions and briefs and has decided to affirm the judge’s rulings, findings,1 and conclusions and to adopt the recommended Order.2

ORDER

The National Labor Relations Board orders that the Respondent, M.D. Miller Trucking & Topsoil, Inc., Rockdale, Illinois, its officers, agents, successors, and assigns, shall make whole Edward McCallum as follows:

1. Pay to McCallum the following amounts:

Net backpay: $145,714.00 Health insurance expenses: 6,224.98 Search for work expenses: 38.00

plus interest computed and compounded daily as prescribed in New Horizons, 283 NLRB 1173 (1987), and Kentucky River Medical Center, 356 NLRB 6 (2010),

1 The Respondent has excepted to some of the judge’s credibility findings. The Board’s established policy is not to overrule an administrative law judge’s credibility resolutions unless the clear preponderance of all the relevant evidence convinces us that they are incorrect. 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.

In the background section of his decision, the judge inadvertently stated that the Respondent’s owner, Marlene Miller, called discriminatee Edward McCallum “stupid” and swore at him. However, in the underlying decision, the Board adopted the judge’s finding that these statements were made by the Respondent’s supervisor, Chad Miller. 361 NLRB No. 141 (2014). This inadvertent finding does not affect the result herein.

2 There are no exceptions to the judge’s findings that the Respondent owes McCallum $6,224.89 for health insurance expenses and $38 for his search-for-work expenses.

accrued to the date of payment, minus tax withholdings required by Federal and State law.

2. Pay McCallum $7,984.00 for the adverse tax consequences of the multiyear lump sum backpay award, as prescribed in AdvoServ of New Jersey, Inc., 363 NLRB No. 143 (2016), and Don Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB No. 10 (2014).

3. Pay Local 179 Pension Fund $15,876.00 on behalf of McCallum, plus interest accrued to the date of payment at the rate provided for in the applicable fund documents and any penalties.

Dated, Washington, D.C. April 12, 2017

______________________________________

Philip A. Miscimarra, Acting Chairman

______________________________________

Mark Gaston Pearce, Member

______________________________________

Lauren McFerran, Member

(SEAL) NATIONAL LABOR RELATIONS BOARD

Kevin McCormick, Esq., for the General Counsel.

Michael R. Lied, Esq. (Howard & Howard, P.L.L.C.), for the

Respondent.

SUPPLEMENTAL DECISION

STATEMENT OF THE CASE

JOHN T. GIANNOPOULOS, Administrative Law Judge. This is a supplemental proceeding to determine the amount of backpay M.D. Miller Trucking & Topsoil, Inc. (Respondent or M.D. Miller) owes Edward McCallum (McCallum) based upon a December 16, 2014, Decision and Order by the National Labor Relations Board (Board). The hearing in this matter was held on May 9 and July 6, 2016, in Chicago, Illinois. Both the General Counsel and Respondent presented witness testimony, including the testimony of McCallum, along with documentary evidence. Based upon the entire record, including by observation of the demeanor of the witnesses, and considering the briefs filed by the General Counsel and Respondent, I make the following Findings of Fact and Conclusions of Law.1

1 The joint motion to supplement the record by placing R. Exhs. 7– 10 into the record is granted. These Exhibits were admitted into the record at hearing, but were inadvertently excluded from the official record prepared by the court reporter.

365 NLRB No. 57

2

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD

I. FACTS

  1. Background

    The facts surrounding McCallum’s employment history at M.D. Miller are fully set forth in M.D. Miller Trucking & Topsoil, Inc., 361 NLRB No. 141 (2014). Briefly, from April 2002 until April 11, 2013, McCallum worked for Respondent hauling construction material and debris to and from jobsites. Respondent’s drivers work seasonally—in the spring, summer, fall, and early winter; the operation closes when the weather is poor in the winter and employees return in the spring. General Teamsters Local Union No. 179, affiliated with the International Brotherhood of Teamsters (Union) represents Respondent’s drivers. In May 2010, McCallum was diagnosed with multiple sclerosis, causing him difficulty with his left leg.2

    On April 11, 2013, Respondent’s owner and president, Marlene Miller held a group meeting for drivers, telling them the company was having economic problems and asking drivers to either take a pay cut or come up with alternatives to allow the company to stay in business. McCallum spoke out against the plan and Miller called him “stupid” and swore at him. After McCallum asked her not to speak to him in such manner, Miller fired McCallum for insubordination.

    On April 22, Respondent was to ordered reinstate McCallum with backpay, as a result of a grievance filed by the Union on McCallum’s behalf.3 Instead of reinstating McCallum, later that day Miller left him a voicemail saying he needed to submit a “long form” medical examination report before he could return to work. McCallum delivered a long form report, dated 1 month earlier, but Miller asked him to get a second opinion. On May 9, 2013, McCallum was examined by a doctor certified by the Federal Motor Carrier Safety Association, who gave him another long form examination report clearing him to drive, along with a Department of Transportation medical card. McCallum tried to contact Respondent about his medical clearance, but Respondent never responded; McCallum was never reinstated. The Board found that Respondent violated Section 8(a)(1) and (3) of the Act when it refused to accept McCallum’s current medical certification and requiring him to complete multiple medical certifications before he could return to work.4

    Because Respondent did not comply with the Board’s Order, on May 29, 2015, the Regional Director for Region 31 issued a compliance specification and notice of hearing (Specification), alleging the amounts owed to McCallum. (GC Exh. 1(c).)5

    “On June 29, the Respondent filed an answer to the Specifica

    2 Facts taken from M.D. Miller Trucking & Topsoil, Inc., 361 NLRB No. 141, slip op. at 3–8.

    3 Although McCallum was later paid just over $800, he was never reinstated.

    4 The Board noted that there was “no practical difference between ordering reinstatement and ordering respondent to accept McCallum’s current medical certification, which necessitates his reinstatement after his successful grievance.” M.D. Miller Trucking & Topsoil, Inc., 361 NLRB No. 141, slip op. at 2.

    5 Citations to the transcripts will be denoted by “Tr.” with the appropriate page number. Citations to the General Counsel’s Exhibits, Respondent’s Exhibits, Union Exhibits, and Joint Exhibits will be denoted by “GC Exh.” “R. Exh.” “U. Exh.” and “Jt. Exh.” respectively.

    tion (Answer), asserting that: (a) McCallum could not be reinstated because he lacked the required medical certification to work; (b) McCallum lacked medical certification throughout the entire backpay period; (c) the Regional Director’s calculations conflicted with pay documents that Respondent attached to its answer; and (d) the Respondent lacked sufficient information to respond to the Regional Director’s calculations.” M.D. Miller Trucking & Topsoil, Inc., 363 NLRB No. 49 (2015), slip. op. at 1.6

    Based upon the Answer, the General Counsel moved for summary judgment, and on November 25, 2015, the Board issued a Supplemental Decision and Order granting in part, and denying in part, the General Counsel’s motion. Id. The Board granted summary judgment with respect to the backpay period (specification pars. I and XV), gross backpay calculations (specification par. III), pension fund contributions (specification pars. IX–XI), and excess tax allegations (specification par.

    XIII)...

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