3 States Trucking, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1980

252 N.L.R.B. 1088 (N.L.R.B. 1980)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3 States Trucking, Inc., and its successor, Southern
Illinois Minerals Corporation and United Mine
Workers of America. Cases 14-CA-9688, 14-
CA-9700, and 14-CA-9714
September 30, 1980
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN FANNING AND ME.MBERS
JENKINS AND PENELLO
On February 29, 1980, Administrative Law
Judge Platonia P. Kirkwood issued the attached
Supplemental Decision in this proceeding. There-
after, the General Counsel filed exceptions and a
supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and
to adopt her recommended Order, as modified
below.
The General Counsel excepts, inter alia, to the
Administrative Law Judge's failure to grant the
General Counsel's motion to strike the Respon-
dent's answer and amended answer to the backpay
specification issued herein and to her failure to
treat as admitted all matters alleged in the aforesaid
specification pertaining to the appropriateness of
the formula used in computing backpay due em-
ployee John Fisher. Accordingly, the General
Counsel contends that the Administrative Law
Judge erred in permitting the Respondent to
adduce evidence at the hearing challenging the se-
lection of Dwight Jackson as the representative
employee in computing the backpay due Fisher.
Alternatively, the General Counsel excepts to the
Administrative Law Judge's conclusion, based on
the facts adduced at the hearing, that the earnings
of Darryl Sanders, rather than those of Jackson,
constitute the appropriate measure in computing
Fisher's backpay. We find merit in the General
Counsel's exceptions, on the facts and for the rea-
sons set forth below.
The backpay specification duly served on the
Respondent states that, pursuant to Section 102.54
of the Board's Rules and Regulations, an answer
thereto shall be filed within the time required and,
further, that to the extent such an answer fails to
deny allegations of the specification in the manner
required by the aforesaid Rules and Regulations,
and the failure to do so is not adequately explained,
252 NLRB No. 153
those allegations shall be deemed have been ad-
mitted as true and the Respondent shall be pre-
cluded from introducing any evidence controvert-
ing them.
To the extent here relevant, the backpay specifi-
cation alleges that an appropriate measure of the
quarterly gross pay Fisher would have received
from January 3 through November 25, 1977, is the
average weekly hours worked during that period
by Dwight Jackson, the individual performing the
work Fisher would have performed, multiplied by
Jackson's hourly rate of pay.
In its answer and amended answer, Respondent 3
States denies these allegations, asserting that it is
without knowledge as to the appropriate measure
of quarterly gross pay Fisher would have received
during the period in question:
. . . for the reason that John Fisher would not
have performed work for 3 States Trucking,
Inc. nor for an employer in the operation of a
mine beyond the date of February 9, 1977, nor
would 3 States have had any control over the
employment of Mr. Fisher after February 9,
1977 had he been employed.
The Respondent thus interposed two affirmative
defenses: (1) that Fisher was ineligible for further
employment because he lacked the required skills;
and (2) that, in any event, 3 States is not liable for
any backpay due Fisher after mine operations were
Sec 11)2.54(b) aind (c) 1,1 the National Labor Relations Board Rules
and Regulations, Series 8, as amended, provides as follows:
(bh) Contents of the answer to specificaion-The answer to the
specification shall he in writrig, the original being signed and sworn
to by the respondent or h a duly authorized agent with appropriate
power of attorney affixed, and shall contain the post office address
of the respondent Te respondent shall specifically admit, deny, or
explain each and every allegation of the specification, unless the re-
spondent is without knowledge, in which case the respondent shall
so state, such statement perating as a denial. Denials shall fairly
meet the substance of the allegations of the specification denied.
When a respondent intends to deny only a part of an allegation, the
respondent shall specify so much of it as is true and shall deny only
the remainder. As to all matters within the knowledge of the respon-
dent, including but not limited to the various factors entering into
the computation of gross backpay, a general denial shall not suffice
As to such matters, if the respondent disputes either the accuracy of
the figures in the specification or the premises on which they are
based, he shall specifically state the basis fr his disagreement, set-
tig fiorth in detail his position as to the applicable premises and fur-
nishing the appropriate supporting figures.
(c) Effe' t of failure to answer or to plead specifically and in detail to
the pecification.-lf the respondent fails to file any answer to the
specification within the time prescribed by this section, the Board
may, either with or without taking evidence in support of the allega-
lions of the specification and wilhoul notice to the respondent, find
the specification to be true and enter such order as may be appropri-
ate. If the respondent files an answer to the specification but fails to
denly ay allegation of the specification in the manner required by
subsection (b) of this sectinon, and the failure so to deny is not ade-
quately explained. such allegation shall be deemed to be admitted to
be true, and may be so found by the Board without the taking of
eidenrce upporting such allegation, and the respondent shall be pre-
cluded from introducilng any evidence controverting said allegation
1088
3 STATEFS TRUCKING. INC. FT AL.
taken over by Southern Illinois Minerals Corpora-
tion (hereinafter SIMCO), 3 States' successor, as 3
States has no control over SIMCO's hiring prac-
tices. The Administrative Law Judge rejected these
defenses and we adopt her Decision with respect
thereto.
As to the question concerning whether Jackson,
or some other individual, should have been select-
ed as the representative employee for the purpose
of determining Fisher's quarterly gross pay after
the takeover by SIMCO, the Respondent's answer
amounts to no more than a general denial. The suf-
ficiency of such an answer under the Board's Rules
depends on whether or not, under all the circum-
stances in this case, matters relating to the selection
of the representative employee may reasonably be
considered to be within the knowledge of the Re-
spondent. We find such knowledge attributable to
the Respondent and, therefore, that its answer
lacks the specificity required by the Board's Rules.
In this respect, the record shows and the Admin-
istrative Law Judge found that the Union struck 3
States on February 9, 1977, causing a total shut-
down of the latter's mining operations. Thereafter,
on February 23 and 24, James Burks, 3 States' gen-
eral manager, hosted certain meetings at his home,
which also served as the Company's "operating
office," with a view toward ending the strike and
resuming operations. In attendance at these meet-
ings were representatives of 3 States, the Union,
and certain individuals identified as "proposed new
owners of a company to be known as SIMCO," in-
cluding Burks himself and others identified as
stockholders of 3 States.2 The parties in attendance
reached an agreement under which SIMCO, as an
"independent contractor" and successor to 3 States,
would own and operate the mines in question with
the acquiescence of the Union. In turn, SIMCO,
the proposed successor, would grant preferential
employment to current employees of 3 States "who
have the ability to step in and perform the work,"
to be selected from an agreed-upon list of names
drawn up by the parties and, thereafter, grant "vol-
untary recognition" to the Union on proof of ma-
jority, once SIMCO hired its complement of em-
ployees.3 Burks, who became SIMCO's president
and general manager, was a central figure in deter-
mining employee "acceptability," because of his as-
serted knowledge of the 3 States employees, their
qualifications, and the tasks they would be called
upon to perform for the successor. Thus, he testi-
fied:
2 It was Burks' idea It form a new comnpany hitch toduld take o,:er
the mines and operate in a clrhinate deoid of labor disputes
a Fisher's name was rnot on the list of preferred emploecs
There were people that were not acceptable
to myself and other people that were to be the
owners of the new corporation known as
SIMCO, as well as some of the proposed man-
agement people, foremen and so forth that we
would have. We went over these lists and dis-
cussed it one by one, the names of the people,
the qualifications, their abilities to do the job
that we would have to be performed which
would not necessarily have been things that
had been done in the prior ten, eleven, twelve
months or two years, whatever you want to
discuss.
The foregoing facts, revealing Burks' familiarity
with all of the employees involved and the tasks
assigned to them by SIMCO, demonstrate clearly
that, from the outset of resumed operations, the
Respondent, through Burks, was in a position to as-
certain which individual in its view should have
been selected as the representative employee for
the purpose of determining Fisher's quarterly gross
pay. Therefore, had it chosen to do so, the Respon-
dent could have challenged Jackson's selection as
the representative employee for that purpose when
it filed its answer and amended answer, "Setting
forth in detail [its] position as to the applicable
premises and furnishing the appropriate supporting
figures." 4 Yet, this challenge was not raised until
the second day of the hearing herein, indeed
through the testimony of Burks himself. The Re-
spondent does not claim that Burks was unavailable
for that purpose during the time alloted for filing
an answer to the backpay specification. According-
ly, no good cause to the contrary being shown, we
shall strike those portions of the Respondent's
answer and amended answer to the backpay speci-
fication, pertaining to the selection of Dwight
Jackson as the representative employee in comput-
ing the backpay due John Fisher, and find those al-
legations of the specification to be true.5
However, even if we were to draw a conclusion
on review of the evidence hereby excluded, we
would nevertheless conclude, contrary to the Ad-
ministrative Law Judge, that the allegations con-
tained in the backpay specification, referred to
above, are correct as set forth. In this respect we
note that both Fisher and Jackson were employed
in the classification of "laborer"; that individuals
employed by SIMCO in that classification were
paid at the same hourly rate without any differen-
tial established for those possessing different de-
grees of skill; that Jackson was originally hired by
4 See f I. upra
A .rports Service Lines, Incl. 231 NRH 1272 (1977). enfd 589 F 2d
1115 () C Cir 1978)
108(9
I)ECISIO(NS ()OF NA'IO()NAL ABOR REIAIIONS BOARD
3 States after Fisher; and that Jackson was also the
first laborer hired by SIMCO who had less senior-
ity than Fisher.
Nevertheless, the Respondent contends that
Jackson's gross earnings at the coal preparation
plant, which were higher than the earnings of
other laborers employed at the mines, do not con-
stitute an appropriate measure in computing Fish-
er's backpay, because Fisher, less skilled than Jack-
son, was not qualified to perform the work Jackson
did at the plant.
The Respondent's contention is not substantiated
by the testimony it adduced in support thereof.
When asked to describe Jackson's duties at the coal
preparation plant, Burks responded as follows:
Well, that is a-I don't want to say it is a
complicated operation but it is a preparation
plant where the raw coal from the mine is de-
livered for proper sizing, cleaning and applica-
tion of oil for stoker use and coal is prepared
in different sizes to go to different users. It is a
lot of machinery, screening and-it is a little
more skilled operation than just out doing
manual labor.
No evidence was ever proffered as to precisely
what tasks Jackson performed or what skills were
required at the preparation plant, nor was a com-
parison made between his work and that previously
done by Fisher at the mines, including, among
other things, pumping water, making minor ma-
chinery repairs, drilling and packing holes with ex-
plosives, working with others in wiring the explo-
sives, and replacing drag line cables. Burks merely
asserts:
Dwight Jackson was on a specialized job.
He was assigned and worked on the prepara-
tion plant, away from the mine site, like that
preparation plant is at a different location, 20
miles away. There were like four people that
were-that would work at that preparation
plant and Dwight Jackson was one of the
people that worked at the preparation plant. 6
In these circumstances we would find that the Re-
spondent has failed to demonstrate that Jackson's
earnings were an inappropriate measure of the
quarterly gross pay due Fisher for the period in
question.
Based on the foregoing, we find that the total
net backpay due Avery remains $3,830, as shown
in Appendix A attached hereto; and that, pursuant
to the revised computations reflecting Jackson's se-
lection as the representative employee for deter-
mining the quarterly gross pay due Fisher during
the periods in question, as shown in Appendix B at-
tached hereto, the total net backpay due Fisher is
$8,603.19, as shown in Appendix C attached
hereto. We shall modify the Administrative Law
Judge's recommended Order, accordingly.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied herein, and set out in full below, and hereby
orders that the Respondent, 3 States Trucking,
Inc., and its successor, Southern Illinois Minerals
Corporation, their officers, agents, successors, and
assigns, shall pay to William Avery the sum of
$3,830 and to John Fisher the sum of $8,603.19, to-
gether with interest as set forth in Isis Plumbing &
Heating Co., 138 NLRB 716 (1962), and Florida
Steel Corporation, 231 NLRB 651 (1977).
8 No claim was advanced that Fisher would have been unable or un-
willing to work at the plant in question.
APPENDIX A
VAME: William Avery
Calendar Quarter
1976-3
1976 4
Total Net Backpay
.Vet
Total Ilourly Gross Travel & Inerim
flours Rate Backpay Expenses Earnings
330.25 $4.00 $1,321.00 NONE NONE
627.27 $4.00 2,509.00 NONE NONE
,yet
Backpay
$1,321.00
2,509.00
$3,830.00
I (91)
3 SIAIl:S IRtUCKIN(L INC I Al ,
APPENDIX
I'.-i.l Jn ivhcr
(ulodar Quarrtlr
1976 4
1977-1
1977-2
1977-3
I977 4
. g. lire.
X 'orA cd
IPer W'cl'e
43 49
43 49
37 55
37 55
37 55
37.55
37.55
37 55
37.55
Fi/her
H'orAq 4
5h
4
4
9
42
3.8
Iourv (iros
Rant Backpay
5 (X)
5 X)
7 3()
73()
7 4()
740()
7.49
7.49
7 54
52,478 93
1,217.72
274.12
1,0)9h 48
2,5 () x
1,.11 48
2,531.35
1.181.25
1,)75 89
APPENDIX C
.\4M. John Fiilher
Calendar Quarter
1976-4
1977-1
1977-2
1977-3
1977-4
Total Net Backpay
SUPPLEMENTAL DECISION
Interimn Emplover
NONE
NONE
Wilkins Implement Co.
Self-Employed
Wilkins Implement Co
Wilkins Implement Co
Gross
Inlerimr
Earning5
NONE
NONE
5947.70
30)00
2.570 20
1 ,36.96
Netravel &
Interings
Expenoes Earning
NONE
NONE
$50.00
NONE
NONE
NONE
NONE
$927.70
2,57().20
1,366.96
STAT IEMINT OF THE CASF
PILATONIA P. KIRKWOOI), Administrative Law Judge:
This matter, heard by me in St. Louis. Missouri, on Janu-
ary 25 and 26, 1979, involves a determination of the
backpay liability of Respondent 3 States Trucking, Inc.
(herein called 3 States), and its successor, Southern Illi-
nois Minerals Corporation (herein called SIMCO), for
unfair labor practices 3 States committed in discharging
discriminatees John Fisher and William Avery and refus-
ing at the end of a strike to reinstate discriminatee Wil-
liam Avery.
The Board's Decision and Order in the underlying
unfair labor proceeding was issued September 21, 1977.'
The Board there found that 3 States had violated Section
8(a)(3) and (1) of the Act by: (1) refusing, after the end
of a strike, to return Striker-William Avery to his job
(or to a substantially equivalent one) when it became
available on August 20, 1976; and (2) terminating John
Fisher on October 7, 1976, because of his union or pro-
tected concerted activities. The Board, pursuant to an
unopposed motion of the General Counsel, joined
SIMCO as a party. (See 232 NLRB 242, fn. 1.) The
Board directed 3 States and its "officers, successors and
assigns" to reinstate discriminatees and to make them
The Board's decision is reported at 232 NlRB 242
whole for losses suffered as a result of 3 States' discrimi-
nation against them.
On October 16, 1978, the United States Court of Ap-
peals for the Seventh Circuit enforced the Board's Order
against 3 States and its successor, SIMCO.2
A controversy subsequently arose as to backpay liabil-
ity; and the Regional Director for Region 14, for the Na-
tional Labor Relations Board, issued the instant backpay
specification (herein called Specification) and notice of
hearing on January 2, 1979. The same was served on 3
States and on SIMCO.
An answer and amended answer to the specification
was filed by 3 States, which admitted certain allegations
of the specification, denied others, and asserted as to
some that it was without sufficient information to admit
or to deny.:' Post-hearing briefs were filed with me by
the General Counsel and by 3 States.
2 N. L. R. s. 3 Starlts Trucking. Inc, and succesvr, .Southern /IIhnol
iineral C('rporation. No 7- 1223, unreported
' SIMCO filed no answer, and no one entered a formal appearance n
its behalf at the hearing Accordingly. at the outset of the hearing. the
General Counsel med that the allegaions of the specification he
deemed admitted for all purposes as to it, and that a summary judgment
order he enteired against it I granted those motions However. as will
hereafter appear, I find that certain deductions from the specification are
In rder As the liahility of SIMCO, as a successor-employer, for pay-
Contlnuied
Net
Backpay
$2,478. 3
1.491.84
2,669.61
1.,072.63
890.18
$8,603.19
1(1
D)E CISIONS O() NA'I'I()NAL ABO()R RLATII()NS ()ARI)
Upon the entire record in this case, including the
briefs and arguments, and from my observation of the
demeanor of the witnesses, I make the following:
FINI)IN(;S ANI) CONCI USIONS
I. WIitH RSP'LC tO IHE ISSUFS OF BACKPAY I)tI
TO )ISCRIMINAEI AVIERY
The specification alleges Avery's backpay period as
commencing on August 20, 1976, and ending on Decem-
ber 5, 1976, 4 and computes gross backpay of $1,321 for
the third quarter of 1976, and $2,509 for the fourth quar-
ter or a total gross backpay of $3,830. The General
Counsel pleads no expenses in seeking work, nor any in-
terim earnings for Avery.
3 States raises no question concerning the computa-
tions of Avery's gross backpay; but asserts that certain
deductions are in order.
First, 3 States claims that, during the third quarter of
1976, Avery had interim earnings in excess of $1,500,
which would offset the gross backpay set out in the
specification for that period. I find this claim unproved
on the evidence before me.
5
3 States adduced certain evidence which shows that
on November 3, 1976, Avery filed an employment appli-
cation with General Tire Company. Answering questions
on that application, Avery stated that from September
1975 to October 1976, he had been employed by Avery
Trucking Company as a truckdriver at a rate of pay of
$150 (without stating the period this covered) and that
this job terminated when he was laid off for lack of
work. Avery testified that the foregoing statements en-
tered by him on the above application were untruthful;
that, in truth, he never in fact worked for Avery Truck-
ing-a business operated by his uncle; and that he had
put the figure of "$150 a week" on the application be-
cause that was what he had been earning at 3 States, his
last previous employer. As explanation for the false state-
ments on the application, Avery testified that he knew
General Tire to be a nonunion employer, and, hence, felt
that had he disclosed his most recent employment to
have been at 3 States, whose involvement with the
Union was a matter of common knowledge in the com-
ment of the amounts hereafter found to be due as backpay can be no
greater than that of Respondent 3 States, the "Summary Judgment"
order I issued at the outset of the hearing will be modified accordingly.
' Avery's backpay period ended December 5, 1976, by reason of his
reinstatement on that date by 3 States.
5 It is well established that.
While the general burden of proof is upon the General Counsel
to establish the damage which has resulted from Respondent's eiotab-
Ished discriminatory discharge, i.e., the gross backpay over the back-
pay period, the burden of proof is upon Respondent as to diminution
of damages, whether from the willful loss of earnings by the failure
to Itook for or keep a substantially equivalet job or from the unavai-
lability of a job at Respondent's plant for some reason unconnected
with the discrimination . Absent a showing by Respondent that
the individual claimant acted unreasonably or willfully or that a job
would not have been available had the discrimination not occurred,
the General Counsel has established a prima facie case. Masuro Plas-
tics Corporation and French-.4meriica Reeds Manufacturing Co., Inc.,
136 NLRB 1342, 1346 47 (1962). [Emphasis supplied.)
munity, he would not have been employed by General
Tire.
I am convinced antd find that Avery's above-recited
factual report was truthful.7 There being no rebutting
evidence,x I conclude that 3 States did not carry its
burden of proving that Avery, in fact, had gainful em-
ployment with the Avery Trucking Company, as it
claimed, during the third calendar quarter of 1976.
The additional claim advanced by 3 States is that, in
any event, it is entitled to be relieved of the obligation to
pay Aver any part of the backpay pleaded in the speci-
fication, for the asserted reason that Avery's testimony
does not establish "diligent" efforts to look for a job at
all material times herein. I have carefully reviewed
Avery's testimony about his job-search efforts in light of
the guidelines provided by here applicable Board law,
and find no merit in Respondent's claim.
Avery credibly testified that during the backpay
period he went to a number of coal mine operations in
the area seeking work but that most of these were not
hiring. When given an application to fill out, however,
he completed it and followed through by checking back,
in person or by telephone, to find out if work had
become availableY Avery also maintained his registration
at the state unemployment service during this period.
Furthermore, as earlier set out, Avery filed an applica-
tion for employment with General Tire and Rubber
Company during the periods relevant herein, and ulti-
mately got work (in February 1977) with that Company.
To be sure, Avery admitted that he did not go out
filing applications for work for a 3-week period preced-
ing 3 States' reemployment of him on December 6, 1976
(the terminal point of the pleaded period for the running
of the backpay obligation imposed on Respondents). But,
as review of all his testimony on that subject shows, he
The record shows that about 60 days after being reinstated by 3
States. Avery was offered employmen by General Tire He then quit 3
States to work fr General 'Fire, where he was employed at the time of
the hearing before me.
I In arriving at this credibility determination. I have taken into account
not only the favorable feeling left with me about Avery's veracity under
oath, as I observed him on the stand. but also certain other considerations
which lend an aura of credibility to his explanation of why he falsified his
application to General T'ire. It is clear from the Board's underlying deci-
sion in this case that at the time Avery filed tha application, 3 States had
rejected and ignored Avery's application to return to work at his former
job for the unlawfully discriminatory reason that Avery had participated
in the UMW strike (See 232 NLRB 244.) In these circumstances, I have
no difficulty i viewing, as understandable, his apprehension that any
clue on the employment application form which would connect him with
the Ulion or its strike activity would operate to the prejudice of his obvi-
ous interest in getting work. The fact that he saw fit to supply the name
of an employer for whom he had not in fact worked in listing his experi-
ence proves no more, for purposes of this case, than that Avery needed
work badly enough to go to the length of "falsifying" his job application
so as to obtain such work by adding information he believed would aid
him in so doing
" 3 States did not I observe, seek to subpena Avery Trucking Compa-
ny's records, nor call an agent of that firm to testify about the matters
involved herein.
" Although Avery could not supply the precise dates of his visits to
such companies I do rlot regard his inability to recall those dates as
proof that he had unot made them This hearing was held more than 2
years after the events here in issue and the difficulty of recalling precise
dates in such circumstances seems to me quite understandable Cf. South-
ern lhousehold Producis (C'ompany. Inc., 203 NLRB 881, fn 4 (1973).
1092
3 STATES TRUCKING, INC.. ET AL.
had not done so because 3 States' general manager,
Burks, had advised him, in early November 1976, that 3
States would be recalling him and several others back to
work. I do not regard his conduct in this respect to be
conduct "inconsistent with the inclination to work and to
be self-supportive." ° Nor would I find, without more,
that he lost his entitlement to backpay because his search
for work was not conducted on a regularly scheduled
basis. Furthermore, while 3 States argues that Avery's
job-search efforts were inadequate, it offered no evidence
to show that work, which Avery was qualified to do,
was readily available in the community, or even that any
employers were advertising for workers with Avery's
qualifications at dates herein relevant.
It bears repeating that an employer who has, by his
unlawful action-put an employee into a state of unem-
ployment-bears a heavy burden in a proceeding such as
this to prove entitlement to offsets against backpay af-
forded that employee under the remedial policies of the
Act. 3 States did not, I find, meet that burden with re-
spect to Avery.
It follows from the above that Avery is entitled to
backpay as pleaded in the specification. I so conclude.
The Issues With Respect to Backpay Due to
Discriminatee John Fisher
1. The "Joint and Several Liability" issue
The General Counsel fixes the backpay period for
Fisher as running from October 7, 1976, through No-
vember 25, 1977, the date of his discriminatory termina-
tion by 3 States,'' through November 25, 1977, the date
on which SIMCO, the Employer named as the "succes-
sor" to 3 States in this case, made an unconditional offer
to reemploy Fisher, which Fisher refused.
Inasmuch as the Court-enforced Board Order continu-
ing the provisions for making Fisher whole for monetary
losses attributable to his discriminatory termination im-
poses the make whole obligation on both 3 States and
SIMCO; the General Counsel asserts that the two Re-
spondents are jointly and severally liable for the total
amount of net backpay due Fisher.
Although 3 States questions the accuracy of the speci-
fied "net backpay due" figure on certain other grounds
later described, it is appropriate to take up first, its dispu-
lo The quoted words appear in Ma.iro Plastrcs Corp., supra at 1359.
where the Board set out what it regarded to be "reasonable effort by a
discriminatee to find a substantially equivalent job " It stated, in rel-
evant part, that. broadly speaking, such reasonable effort
requires conduct consistent with an inclination to work and to
be self-supporting . [Such] inclination is best evidenced not by a
purely mechanical examination of the number or kind of applications
for work which have been made, but rather by the sincerity and rea-
sonaoleness of the efforts made by an individual in his circumstances
to relieve his unemployment. Circumstances include the economic
climate in which the individual operates, his skill and qualifications,
his age, atid his personal limitations.
I The allegations of the specification which describe the method used
by the General Counsel to compute what Fisher would have earned as
wages. but for his discriminatory termination, speak in terms of Fisher',
hourly rate in certain "payroll periods." the first of hiclh is payroll
period for "October 3, 1976 through March 27. 1977" There is no con.
tention and no claim that tile General Co(unsel's computations include the
4-day period betveen October 3 an;d 7
tations, on certain other grounds, of the "joint and sever-
al" obligation the General Counsel would enforce against
it for net backpay due Fisher not only for the period
when it directly owned and operated the mines at which
Fisher had worked before his discharge, but also for a
period beyond that. The "special grounds" 3 States ad-
vances as reason for seeking relief from the "joint and
several" obligation to finance the whole of the sum speci-
fied as being due Fisher as net backpay is that, fairly
viewed, the recited evidentiary facts below establish
either or both that: (a) it "lost" all power to provide
Fisher or any other mine worker gainful employ, at will,
because of strike activities engaged in by the UMW di-
rected at its mines beginning February 9; or (b) in strike-
settlement negotiations which, as will appear below,
were held about February 24, and the terms for a ta-
keover by SIMCO of the ownership of the mining enter-
prise and its reopening were set, 3 States could not do
more than recommend to UMW and SIMCO, giving to
Fisher "the same consideration as all other of its employ-
ees," in the effectuation of "hiring arrangements" the
UMW proposed as a condition of letting SIMCO open
the mines for operation, and to which SIMCO agreed.
The evidentiary facts underlying the above contentions
are as follows:
On February 9, 1977, United Mine Workers
(herein called UMW) struck 3 States' mines and set
up picket lines which brought about the total shut-
down on that very day of 3 States' mining oper-
ations. The strike is identified by 3 States' witnesses
as a "recognition" strike. Certain efforts made by 3
States up through February 23, 1979, to resume op-
erations proved unsuccessful. 2
On February 23 and 24 certain meetings were held for
the purpose of discussing the cessation by UMW of its
strike and picketing activities, and the resumption of the
operations at the struck facilities. Those meetings took
place at the residence of James Burks, general manager
of 3 States.'3 Present at portions or all of the meetings
were Burks himself; certain officials of 3 States and 3
States' legal counsel;' 4 and certain individuals identified
in Burks' testimony as "proposed new owners of a com-
pany to be known as SIMCO."' 5 The testimony of J.
12 It appears, inter alia, that 3 States filed certain CB and CP charges
with the Board naming UMW as the party charged shortly after the
strike commenced and that on February 21, it issued to all its "person-
nel" a notice stating, in relevant part as follows:
We can no longer permit our expenses to continue and to increase.
without immediately resuming operations If we are unable to
resume operations on Wednesday, due to economic conditions. it
will be necessary that the Company consider the possibility of clos-
ing down operations
If employees are able to report to work under peaceful circum-
stances, we hope to resume operations Wednesday morning (Febru
ary 23.) It further appears that no employees accepted 3 States'
above "invitation" to return to work
' Burks testified that his residence had served. for over a year before.
ai "the operating office for 3 States."
4 Attorney William Cody is the same counsel who represented 1
States in the instant proceeding
' Burks testified that before the February 23 and/or 24 meetings
above referred to took place, "there had been ongoing discussions be-
Continued
1093
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kenneth Merten, 3 States' comptroller, I observe, con-
tains statements indicating that the idea of forming a
"new company" as "his own" originated with Burks and
was presented by him to 3 States and the UMW, who
both reacted favorably to it.
A written document titled "Settlement," and signed by
a UMW official and dated February 25, 1977, was made
part of the record in this case by stipulation of all parties
that it was an "accurate representation" of certain oral
understandings or agreements arrived at by the agents of
3 States, SIMCO, and the UMW on February 24, 1977.
That "Settlement" contains, in part, provisions for the
presentation by 3 States of a request for the withdrawal
of all outstanding unfair labor practice charges it had
previously filed against the UMW; the concurrent pre-
sentation by UMW of a request for withdrawal of all
outstanding charges it previously filed against 3 States;
and the reopening of the mines by (the new proposed
company) and then operation by the latter as an "inde-
pendent contractor" or employing enterprise. The "Set-
tlement" also provides for SIMCO's grant, on takeover,
of "preferential hiring" rights to "current employees of 3
States," but on the terms and conditions of employ to be
set by SIMCO alone and on the basis of "seniority rec-
ognized by SIMCO" 1 6; the issuance by 3 States of notice
to its employees of "curtailment of operations and of
their being laid off and . . . of its referring all its em-
ployees to SIMCO as Purchaser for consideration of
preferential employment", the grant by SIMCO to UMW
of "voluntary recognition" on proof of its majority once
the latter hired its employees; the UMW's withdrawal of
all "picketing by former 3 States employees upon the
signing of this agreement," and its promise to "take all
reasonable efforts to remove any 'stranger' United Mine
Worker picketing."
Certain of the evidence provided through 3 States'
witnesses to show the "context" in which the "hiring ar-
rangements" of the "new proposed company" were dis-
cussed and formulated on February 23 and 24, for the
purposes of arriving at the "Settlement's" terms, indi-
cates that those present (including Burks) had before
them a list compiled by 3 States of the employees on the
latter's "current" payroll together with the dates of hire
and their "classifications"; that Burks indicated he could
not need as many men as were on that list; that Fisher's
name was not on that list; that Fisher's name was
brought up for discussion: that Burks said he would not
tween the existing owners at that time of 3 States and the new proposed
owners of a company t(l be known as SIMCO." and certain legal counlsel
of each, looking to the estahlishment of new ecollmic climate in hich
the business enterprise at the struck locations could be made operable
without further strike or picketing pressures being exerted by UM\4 of a
kind it had been exerting off and on over the previous "two and a half
three years HBurks identified ertain of those interested in the formation
of the "new proposed company" as 3 States stockholders. While urks
did not expressly ideltify himself as one of the then proposed nlew
owners," it is clear from the record that he was aong that group As
will appear, he was istalled a SIMCO's resident and general manalager
when. later. SIMCO becarne the corporate ovrner-olperator of the mine
facilities invol ed herein
1" Certain language contained in that paragraph of the "Settlenenl"
expresses the idea that SIMC() would not hire any "other per,on" until
"current" emplhyees of 3 States "who harvi the h/lia, to step i otrl pier-
Jbrml he work shall have been offered the right oif first refusal to such
employmenl" (IEmphais supplied)
hire him assertedly because he lacked the skills or abili-
ties Burks would require in deciding "eligibility" for hire
by the "new proposed company"; that the UMW agents
"agreed" with Burks' characterization of Fisher's compe-
tence to "step into" a job at the new operation; that At-
torney Cody (3 States' counsel) then tried to "get" the
UMW agents to "settle" the 8(a)(3) charges involving
Fisher; and that an interchange of talk between Attorney
Thomas Gumbel, legal counsel for the UMW, and Attor-
ney Cody took place. Remarks attributed to Gumbel in-
dicate he expressed the idea that he could not "settle"
the charges as the unfair labor practice case was then
"before the NLRB"; 17 that Cody then said, "Well, if
there is any kind of payment, will the UMW pay it?" to
which Gumbel replied, "No way I am going to pay the
backpay due Fisher. It is going to be what the NLRB
discusses." Cody then said, "O.K."
To go on with the chronological narrative of what
took place of some import to the backpay-liability issue
raised here by 3 States: SMCO reopened the mines as
the "new" owner and operator on or about March 3,
1979. James Burks, as president and general manager of
SIMCO, selected the employees who composed
SIMCO's initial complement. He made his selections for
that complement from individuals named on the "refer-
ral" list supplied by 3 States to SIMCO. That list was
identical in content to that which had been supplied at
the pre-"Settlement" meetings. (Fisher's name was not
on it.) Burks hired, in number, less than the number of
men on the "referral list."
The Board, as noted, issued its Decision and Order on
September 21. 1977; and about 2 months later, SIMCO
made to Fisher the reinstatement offer which stopped the
running of any backpay due Fisher.
Reviewing the above facts in its brief, the General
Counsel asserts, in substance, that even though the eco-
nomic circumstances in which 3 States "sold" the mining
enterprise from which Fisher was discriminatorily fired,
may be somewhat unusual, they do not, in the last analy-
sis, provide a proper base for withholding application of
the Board's "policy" ruling as enunciated in Perma-Vinyl
Corporation, Dale Plastics Co. and United States Pipe and
Laundry Company, 164 NLRB 968 (1967), and approved
by the Supreme Court in Golden State Bottling Co., Inc.,
Formerly Pepsi-Cola Bottling Co. of Sacramento, et al. v.
.. L.R.B., 414 U.S. 168, 186 (1973). That ruling is that, in
a successorship situation, both the initial and successor
employers are to be held jointly and severally liable for
any backpay due a discriminatee like Fisher. I must and
do hold with the General Counsel on this matter.
In Golden State, supra, the Supreme Court expressly
addressed, and resolved against the offending predeces-
sor-employer (Golden State) a "challenge to the validity
of the imposition of joint and several liability" by the
Board's Perma-Vinyl rule on it, in circumstances where
as is arguably here the case, it was "apparent that had
'7 The documenltation of the NLRB proceedings show that Adminis-
trative L.aw Judge Welles. before whom the unfair labor practice case
"ias heard, had issued his decision at that point, 3 States had taken excep-
tiuon to his 8(a)(3) findings, and that the issues raised by the latter had not
been ruled orl by the HBoard
1094
3 STATES TRUCKING. INC., ET Al.0
[the offending employer] already reinstated [the there
named discriminatees] with backpay before the sale of its
business" . . . to the purchase employer, the latter
"would have no more obligation to employ him in the
continuing business than it had to employ" any of the of-
fending employer's "other employees." S In holding
against Respondent Golden State on the issue it raised,
the Court, inter alia, cited, with approval (414 U.S. at
186-187), the following language in the Board's Perma-
Vinyl decision (164 NLRB at 970.):
With respect to the offending employer himself, it
must be obvious that it cannot be in the public in-
terest to permit the violator of the Act to shed all
responsibility for remedying his own unfair labor
practices by simply disposing of the business. If he
has unlawfully discharged employees before trans-
ferring ownership to another, he should at least be
required to make whole the dischargees for any loss
of pay suffered by reason of the discharges until
such time as they secure substantially equivalent
employment with another employer. 164 NLRB at
970.
The Court added to the above, its observation that:
. . .joint and several liability will more fully insure
that the employee is fully recompensated by pro-
tecting him, e.g., against the insolvency of the suc-
cessor. The possibility that the successor will unjus-
tifiably delay reinstatement to the predecessor's
prejudice can be met by a protective provision in
the contract of sale.
I perceive nothing in the above evidence proffered to
me by Respondent which suggests the existence of some
special considerations of equity or policy overriding
those which lie at the base of the Board's establishment
of the Perma-Vinyl rule and its approval by the Supreme
Court. I find unimpressive Respondent's apparent argu-
ment, to the contrary stressed by Respondent in its
brief--that, as part of the bargain struck with it to "sell"
its operational right or assets to SIMCO, it was "forced"
to let SIMCO decide who it should hire and on what
standards, and hence "lost" all power in fact or law, to
do more for Fisher than it was able to do for any other
of its employees. The loss by the seller of a business en-
terprise of the power to control or dominate the pur-
chaser's hiring decisions is, it seems to me, a matter
common to all successorship situations involving an
' The aboce-quoted ords are to hbe fioud in the Supreme Courtsl
decisionl. at 414 S Ih and l 9l . fi It)
"arms-length" business transfer' 9 -and certainly it was
present in Perma Vinyl. 20
In sum, I conclude and find that Respondent has not,
with the above-recited evidence, made out a factually or
legally valid case for tolling, as to it, the running of the
backpay period for Fisher on or at any date after Febru-
ary 9.21 It is the offending employer; its discriminatory
terminations of Fisher and Avery are the heart of this
case; and, having been ordered by the Board and the
Court to take certain remedial action, specifically includ-
ing a make-whole remedy for Fisher, it must, I hold,
comply with the Board's "make-whole" order in the
manner plainly called for by the Perma- Vinyl rule.
2. The question about the General Counsel's
method of calculating Fisher's gross backpay.
As noted, the General Counsel specifies the period
Fisher is due backpay to be from October 3, 1976,
through November 25, 1977. For this total period, divid-
ed into five separate quarters, the General Counsel
claims the gross backpay due Fisher is $13,468.05; that,
in addition, he is due $50 as reimbursement for "fuel" ex-
pense incurred by him in seeking interim employment. 2 2
19 It bears mentioning here that, although I am responding to Respon-
dent's arguments on the assumption that-as it seems to claim-its own
contract with SIMCO covering the transfer of operational rights and
assets to the latter was a "bona fide" transfer-i.e., one in which 3 States
reserved no right to supervise or interfere with SIMCO's conduct of its
business affairs once the transfer was consummated-I make no finding
that this was in fact the case. No documentation was supplied of the
Iransfer-arrangements between SIMCO and 3 States, and of the specific
properties involved. All that appears, as part of Burks' testimony, is that
on unspecified dates after February 25. " there was an agreement of
intent and then there was agreement as to stipulated prices of different
pieces of equipment. Another document covering leases. Another docu-
ment covering a mining contract whereby we were to continue working
under permits that were already outstanding to 3 States."
2o See 164 NLRB
9 69-where the Board discussed that part of its de-
cision which imposed remedial obligations on the successor, and stated:
In imposing this responsibility upon a bona fide purchaser, we are
not unmindful of the fact that he . . .continues to operate the busi-
ness without any connection with his predecessor
21 In so holding. I have not overlooked the apparent "waiver" argu-
ment it has presented by referring me to evidence allegedly proving that
the UMW and SIMCO agreed that Fisher should not be hired as part of
the hiring arrangements, and the "consideration." therefore, given by the
UMW to cease its strike activity and to request withdrawal of pending
CA charges it had filed (which may have imposed more financial liability
on SIMCO if pressed to adjudication, under the concepts here discussed)
To the extent that Respondent 3 States may be arguing that the Board
should not enforce against it, the backpay obligation to Fisher (or a por-
tion therof) because the Union agreed to waive whatever "rights" Fisher
might have had to be employed by SIMCO, I reject the argument See
Safeway Stores. Incorporated, 148 NLRB 860 (1964).
I observe, in addition, that SIMCO's failure to offer employment to
Fisher has no real relevance to the applicability of the Permo- Vinvl reme-
dial rule Respondent is resisting here.
22 In the specification and notice of hearing, the General Counsel had
included certain additional amounts as being due Fisher for "expenses"
he would not have incurred during the backpay period were it not for 3
States discriminatory termination of his employ After Fisher was exam-
ined at the hearing about such "expenses" 3 States moved that the "ex-
pense" items be struck from the specifications on grounds that the Getter-
al Counsel did ot prove that Fisher's claim of "expenses" were in fact
expenses Fisher would not have incurred had he remained in the job
fromn which 3 States had discriminatorily terminated him I reserved
rulilg on that motlion pending review of the record Except for a 50
item of "expenses." I grant this motion
(ontinued
1095
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the General Counsel allows credits against that gross
figure for moneys earned by Fisher in interim employ-
ment in the amount of $4,914.86,23 and sets the "net"
backpay due Fisher, accordingly, in the amount of
$8,603.19. The computations of gross backpay made by
the General Counsel were divided into two parts. For
the period from October 3, 1976, through February 9,
1977, he used, as a basis for calculating the gross back-
pay, the average number of hours per week worked by
Fisher when he was actively employed by 3 States as a
"laborer" and multiplied this by Fisher's rate of pay im-
mediately prior to 3 States' unfair labor practice. Re-
spondent does not challenge the accuracy of the General
Counsel's gross pay figure for this period.
For all the period beginning after SIMCO's takeover
of the mine facilities, the General Counsel used as a basis
for calculating the gross backpay figure, the average
weekly hours worked during that period by employee
Dwight Jackson, the individual who is identified by the
General Counsel as an employee who occupied a job at
SIMCO, representative of that Fisher had occupied at
the mine facilities before he was discriminatorily fired.
The General Counsel used as a multiplier the hourly rate
of Jackson's pay during that period.
Respondent challenges the propriety of the General
Counsel's identification of Dwight Jackson as occupying
a job at SIMCO representative of that Fisher occupied at
3 States. Respondent asserts that Jackson's job and rate
of pay was not an appropriate method of arriving at the
gross pay figure, assertedly because Jackson worked at a
different situs at the mines than that at which Fisher had
worked, and performed tasks requiring higher skills than
Fisher possessed.
Roy Hayden, the Board's compliance officer who was
responsible for making the calculations, testified that he
worked out his computations by reference to informa-
tion, as supplied to him by 3 States and SIMCO, in writ-
ten form, containing: (a) 3 States' list of its employees at
dates here relevant, together with the employees' job
titles and dates of hire; (b) SIMCO's similar list of its em-
ployees; and (c) SIMCO's payroll sheets which con-
tained for all employees with "laborer" job titles, the
actual hours and weeks worked by each such employee
during the backpay period and a calculation both of the
"average hours" worked by each per week and the aver-
age "weekly hours per laborer."
Compliance Officer Hayden further testified that he
used Dwight Jackson as the "representative" employee
because: (a) Jackson had been employed at 3 States as a
"laborer" (Fisher's classification, as well) at the time
Fisher was employed there, and had been hired by 3
States at a date later than Fisher; (b) Jackson was the
first "laborer" hired by SIMCO who had a seniority date
later than Fisher; and (c) employees carried on 3 States'
payroll lists with job titles other than "laborers" ap-
In his post-hearing brief, the General Counsel acknowledges, in es-
sence, the merits of 3 States position with respect to $444 of the 494
"expense" items pleaded in the specification as framed, and would cor-
rect the "net backpay" calculations in accord.
2:' Of this amount. $30 represented moneys Fisher earned during the
second quarter of 1977 from self-employment; the remaining $4,884 86
represented wages earned for employment at Wilkins Implement Co.
during the second, third, and fourth quarters of 1977
peared to have-from their job titles certain specialized
skills or jobs. SIMCO's "payroll sheet" also carried the
hourly rate at which all employees classified as "labor-
ers" were paid at dates herein relevant. It showed that
all of them on each of three shifts were paid at the same
rate; and that the first shift "laborers" received the
lowest rate.
In arriving at the specification's figure reflecting the
number of hours Fisher would have worked during the
backpay period herein under consideration, Compliance
Officer Hayden computed from the payroll sheet fur-
nished him by SIMCO and from certain other informa-
tion he obtained from the SIMCO office personnel, the
average number of hours per week which Jackson had
worked during the backpay period (including overtime
hours converted to straight time hours);24 and used that
figure times the lowest hourly rate SIMCO's payroll
sheet identified as being paid to "laborers" during the
backpay period.
It was admitted by Compliance Officer Hayden,
during cross-examination, that he had made no inquiry at
all either as to the precise work tasks Jackson or any
other of SIMCO's "laborers" were assigned to do, or as
to the particular part of the mine operation to which
each such "laborer was normally assigned to work.
Respondent subsequently developed, through
SIMCO's president and general manager, James Burks, 25
evidence showing inter alia, that Jackson, and one other
of SIMCO's 16 "laborers" regularly worked at a coal-
preparation plant; 4 such "laborers" were employed at
the mine in general "laborer" work; and of the remaining
"laborers" 2 were regularly engaged in driving trucks, I
in operating a loader, 2 in mechanic-helper work, I as a
licensed dynamiter, and I as the latter's assistant. Each of
the above had been employed at 3 States in about the
same kind of work.
Burks' testimony described the kind of work per-
formed by Jackson at the coal-preparation plant (one lo-
cated about 20 miles from the mine) as follows:
A. Well, that is a-I don't want to say it is a com-
plicated operation but it is a preparation plant
where the raw coal from the mine is delivered for
proper sizing, cleaning and application of oil for
stoker use and coal is prepared in different sizes to
go to different users. It is a lot of machinery,
screening and-it is a little more skilled operation
than just out doing manual labor.
24 As the sheet, on its face, indicated no hours worked by Jackson for
a 12-week period, Compliance Officer Hayden, on inquiry to SIMCO's
payroll office, found out that Jackson was actually at work during that
time, but was on a "specialized" job assignment and was hence carried by
SIMCO for that 12-week period on a different payroll sheet For that 12-
week period. Compliance Officer Hayden made an assumption for his
computations, that Jackson had worked only 37-1/2 straight time hours
per week As for I of the 2-week payroll periods. which showed Jackson
as working less than 48 hours, an assumption was made that the work
was performed in a -week period.
5 As noted earlier, Burks had served as 3 States' general manager
while 3 States was operating the mining facilities herein involved
1096
3 STATES TRUCKING, INC., ET AL.
In further testimony on the matter, Burks averred
that: 2 6
It took us quite awhile to be able to get back in op-
eration so some of these gentlemen were put on as a
laborer on an interim basis until the machinery
could be started up and put in operation.
In another part of the record, and in response to ques-
tions asked, Burks testified that there were "other
people" on his operation who "did the same category of
work Fisher had performed", but that Jackson was on a
"specialized job" at the preparation plant 20 miles away.
Reviewing all the above testimony and the record as a
whole, I find, in accord with Respondent that Dwight
Jackson's earnings during the gross pay period are not
"an appropriate measure of the quarterly gross pay
Fisher would have received." I find further that the
earnings of Darryl Sanders, one of the four of SIMCO's
"laborers" at the mines whose job was comparable to
Fisher's, are an appropriate measure of the quarterly
gross pay Fisher would have received, inasmuch as he
was the first such "laborer" SIMCO hired with a senior-
ity date (at 3 States) lower than Fisher's. 27 I have there-
fore recalculated the gross backpay for Fisher precisely
as did General Counsel except for the substitution of
Sanders' hours in lieu of Jackson's; and I have corrected
the net backpay in accord. [(Appendixes B and C omit-
ted from publication.] 28
2e A part of Burk,' tesilmony on the above-recited "laborer" jobs was
received by me over objections made by the General Counsel on the
ground that, inasmuch as 3 States answer merely denied 'knowledge" of
the specification's allegation identifying Jackson as the "representative"
employee used for the calculations, 3 States was precluded from present-
ing affirmative evidence obviously directed at proving that General
Counsel had erred in using Jackson's earnings for the computation.
Thereafter, the General Counsel moved that I strike 3 States' entire
answer and amended Answer (the Answer herein) fi)r the asserted reason
that Burks' testimony overall and particularly that portion the above
quoted showed, contrary to all "denial of knowledge" aerments in 3
States' answer to those portions of the allegations relating to "backpay
due Fisher after SIMCO emerged as 3 States' successor," to be untruth-
ful I denied the motion to strike for reasons set out in the record The
General Counsel's brief renews his motion to strike, arguing inter alia
that "it defies credulity to believe that Respondent was unaware of the
employees hired by SMCO and their respective job duties in view of the
extended negotiations among SIMCO, 3 States and the Union in which
employees were discussed."
The General Counsel also asserts that it was Respondent's obligation to
propose, in his answer, the "formula" or method he believed to be cor-
rect to measure Fisher's gross backpay I deny the General Counsel's re-
newed motion to strike, and stand by the rulings I made on record There
is little uestion that the General Counsel bears the responsibility of es-
tablishing the gross backpay due a discriminatee and that the adoption of
a proper formula for arriving at such determination is part of that respon-
sibility See Mastro Plastict Corp.. upra, fn 5 See also American Manfac-
ruring Company of Texas. 167 NLRB 520 (1967)
27 I have considered Respondent's proposal of the use of a "represen-
tative group" formula, as set out in his brief But, in my view, except for
the use of the wrong employee as the measuring stick of the gross back-
pay due Fisher, the General Counsel's formula was appropriate, and ap-
pears to me to best serve the interests of all parties herein
2n In calculating the "average weekly hours worked" figure 1. like the
General Counsel, assumed that a less than 48-hour figure per payroll
period in (.C. Exh 3 represented work done in a I-week period I con-
verted -week hours over 37 5 to osertime hours
3. The alleged willful loss of earnings
Respondent claims that, during the second quarter of
1977, Fisher absented himself from the job market by
taking vocational courses at John Logan College. I find
no merit in this claim.
Fisher's uncontradicted testimony, which I credit,
shows that his schooling was part time, without pay, and
vocational in nature. He attended school in the morning;
finished around noontime; and utilized his free afternoons
to pursue job possibilities. Fisher continued to seek em-
ployment while attending school and continued to utilize
the unemployment office services during this time. In
testimony which I find credible, Fisher indicated that he
would have left school had a job opportunity arisen.
The Board has held that an employee who attended
trade school classes, but who was registered with state
unemployment services and continued his job search,
was not rendered unavailable for work by virtue of his
school attendance. American Compress Warehouse Divi-
sion of Frost-Whited Company, Inc., 156 NLRB 267
(1965).
4. Alleged unreported interim earnings
Respondent contends that it is entitled to offset from
net backpay, certain profits Fisher got from operating a
hauling business during 1977. I find no merit in this con-
tention. Fisher credibly testified that he had operated
that same business from a time predating his termination
at 3 States and was continuing to operate it notwith-
standing his current full-time job.
Respondent also contends that it is entitled to offset as
interim earnings, moneys received by Fisher for "swap-
ping and trading" certain personal property he and/or
his wife owned. I find no merit in this contention.
5. Other alleged offsets against gross backpay
Respondent claims that it is entitled to the tolling of
gross backpay from May 26, 1977, or at best, from June
24, 1977 on, because: (a) on May 26, 1977, Fisher com-
menced work at the Wilkins Implement Co. and was still
working there when, in November 1977, he rejected
SIMCO's offer of reinstatement to his mining job; (b) on
June 24, 1977, Fisher told Compliance Officer Hayden
he was not interested in returning to work at the mines.
It is Respondent's position that although the job at the
Wilkins Implement Co. carried a smaller pay rate than
that reflected by the gross "backpay" figures, it should
be interpreted, in the above circumstances, as the kind of
"substantially equivalent job" which would relieve Re-
spondent from backpay under the Perma-Vinyl rule,
supra. I disagree with Respondent's interpretation. See
Burnup and Sims, Inc., 157 NLRB 366, 367-374 (1966)
and (employees Davis and Harmon). See also Heinrich
Motors, Inc., 166 NLRB 783, 785 (1967); and W. C.
McQuaide, Inc., 237 NLRB 177 (1978).
Expenses
The General Counsel alleges that Fisher expended 50
for gasoline during the second quarter of 1977 while
searching for work. Fisher testified in affirmation and
1097
DECISIONS OF NAIO()NAL ILABOR RIATIO()NS I()ARD)
produced certain records he and his wife maintained to
show expenses during that period. Included thereill is an
item estimating gasoline used for his auto at $10 per
week in searching for work. I credit his testimony.
Inasmuch as Respondent's motion to strike expenses
(see fn. 16, supra) covered all "expense" items contained
in the specification, I have assumed Respondent is con-
testing this $50 item as well. I reject Respondent's chal-
lenge of this item.
Although the $50 represents an "estimated" sum, it
does not seem overly high to me. I find this item allowa-
ble, as claimed by the General Counsel.
Concluding Findings
On the entire record in this case, I find that the sum,
infra, in Appendixes A, B, and C [omitted from publica-
tion] are those which properly reflect the gross backpay,
expenses, interim earnings, and net backpay for each of
the employees named, as calculated on the basis specified
in the Board's remedial order, 232 NLRB 244 and the
Judgment of the Seventh Circuit Court of Appeals en-
forcing that Order. Accordingly, I hereby issue the fol-
lowing recommended:
ORDER 2 9
Upon the basis of the foregoing findings and conclu-
sions, it is hereby ordered that Respondents, 3 States
Trucking, Inc., and its successor, Southern Illinois Min-
erals Corporation, their officers, agents, successors, and
assigns, shall pay to William Avery the sum of $3,830,
and to John Fisher the sum of $5,124.16, together with
interest on each of said sums to be calculated as provided
for in Florida Steel Corporation, 231 NLRB 615 (1977).:"
29 In the event no exceptions are filed as provided b Sec 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 o the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes
:" See, generally, /i Plumbing & Hearing Co., 138 NLRB 716 (1962).
1098