Alamo Cement Co.

National Labor Relations Board - Board Decisions

May 23, 1990

298 N.L.R.B. 638 (N.L.R.B. 1990)

638 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Alamo Cement Company and United Cement, Lime,
Gypsum and Allied Workers Division, Interna-
tional Brotherhood of Boilermakers, Iron Ship-
builders, Blacksmiths , Forgers and Helpers,
AFL-CIO, and its Local Lodge D-560. Cases
23-CA-8880 and 23-CA-9279
May 23, 1990
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On May 23, 1989, Administrative Law Judge
George F. Mclnerny issued the attached supple-
mental decision. The Respondent filed exceptions
and a supporting brief.
The National Labor Relations Board has delegat-
ed ,its authority in this proceeding to a three-
member panel.
The Board has considered the supplemental deci-
sion and the record in light of the exceptions and
brief and has decided to affirm the judge's rulings,
i The Respondent has excepted to some of the judge 's credibility find-
ings. 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.
We find it unnecessary to adopt the judge's characterization of the
remedy ordered by the Board in the underlying unfair labor practice
cases as "the Transmarme backpay remedy."
2 We agree with the judge's finding that the employees ordered to be
made whole were not "temporary " employees when they were hired.
Therefore, we reject the Respondent 's contention that its offers of rein-
statement to temporary positions would cut off its backpay liability under
Arrow Automotive Industries, 284 NLRB 487 (1987), enf. denied 853 F.2d
223 (4th Cir 1988), because the offers were not to the same or substan-
tially equivalent positions . Furthermore, contrary to the Respondent's
contention , traditional mitigation rules do not require claimants to accept
offers to positions that are not substantially equivalent to their former po-
sitions . See Mastro Plastics Corp., 136 NLRB 1342, 1350 (1962), enfd. in
pertinent part 354 F.2d 170 (2d Or. 1965); Powell Valley Electric Coopera-
tive, 236 NLRB 1040, 1044 (1978)
The Respondent contends that Ramiro Sotelo Jr. willfully failed to
report interim earnings of $132 as shown in the Texas Employment Com-
mission (TEC) records We find the Respondent's contention untimely.
Sotelo testified after the TEC records were introduced, and the Respond-
ent never asked hun about the amount in question . Furthermore, in its
answer to the backpay specification , the Respondent admitted the amount
of interim earnings alleged in the specification. We find American Naviga-
tion Co., 268 NLRB 426 (1983), distinguishable In that case, the claimant
deliberately concealed earnings and lied about it in his testimony. In the
instant case the Respondent has not established that the amount in ques-
tion was not included in the amount of interim earnings alleged by the
General Counsel.
The Respondent contends that Donald Wesohck willfully lost earnings
by quitting Midwestern and that his earnings there should act as a con-
tinuing offset against subsequent backpay. His salary at Midwestern was
$5.75 per hour. He worked 55 hours a week and was paid an overtime
rate for hours worked over 40 At his new job at Tausch, he earned $6
per hour for 50 hours. Because of the overtime paid at Midwestern his
weekly salary at Tausch was slightly less. As found by the judge, Weso-
hck had an artificial leg that caused hun to miss work often. He testified
that one reason he left Midwestern was that they suspended him for a
week because of absenteeism . Obviously , his health problems caused a
rate of absenteeism greater than was acceptable to Midwestern. As a
findings,' and conclusions2 and to adopt the rec-
ommended Order.3
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Alamo
Cement Company, San Antonio, Texas, its officers,
agents, successors, and assigns, shall take the action
set forth in the Order.
result, he lost a week's salary. In these circumstances, we agree with the
judge that Wesohck's departure from Midwestern was not unjustified.
We correct the judge's apparent inadvertent error in fn. 30 of his deci-
sion that Michael McKee earned about $200 from his own business
McKee testified that he earned $500 or $600.
No specific exceptions were filed to the judge's findings concerning
employees Cobarruvias, Orozco, Cervantes, Johnston, White, and
Wagner.
a We correct the following inadvertent errors in the judge's recom-
mended Order. the name of claimant Brian P. Johnston was misspelled,
and the citation for Starlite Cutting, Inc. (Starlite II), should read 284
NLRB 620 (1987).
Guadalupe Ruiz, Esq., for the General Counsel.
Christopher C. Howe and Robert S. Bambace, Esq. (Ful-
bright & Jaworski), of Houston, Texas, for the Re-
spondent.
Stephen B. Rubin, Esq. (Asher, Pavalon, Gittler & Green-
field), of Chicago, Illinois, for the Charging Party.
SUPPLEMENTAL DECISION
GEORGE F. McINERNY, Administrative Law Judge.
On November 12, 1985, the National Labor Relations
Board (the Board) issued Decisions and Orders in Cases
23-CA-8880 (277 NLRB 309) and 23-CA-9279 (277
NLRB 333)1 adopting the fmdings and conclusion of
Administrative Law Judges Leonard M. Wagman in
Case 23-CA-8880, and Richard J. Linton in Case 23-
CA-9279. Alamo Cement Company (the Company or
Respondent), was ordered to compensate a number of
employees on account of what the Board found was dis-
crimination against them. These employees were:
Ramiro Sotelo, Jr.
Hipoleto Valdez
Alfredo Estrada
Clemente Cobarruvias
David Orozco
Michael McKee
Geronimo Mendez, Jr.
Jaime Zuniga
James W. Bell
Orlando Sanchez
Candelario Cervantes
John Coronado
Brian P. Johnston
Jeffrey White
Donald Wesolick
Randy Cowan
Benny Torres
Ron W. Wagner
The Board directed that these employees be made
whole for any loss of pay they may have suffered as a
i The Charging Party in these cases was and has been described
throughout as United Cement, Lime, Gypsum and Allied Workers Inter-
national Union and its Local 560, AFL-CIO. In its brief, the Union rep-
resented that it had merged into the International Brotherhood of Boiler-
makers. The Union moved that its name be changed to that shown above.
There being no objection, the motion is allowed and the name of the
Union appears above as changed by its merger
298 NLRB No. 74
ALAMO CEMENT CO. 639
result of what the Board found were violations of Sec-
tion 8(a)(5) and (1) of the Act with interest to be com-
puted in accordance with Florida Steel Corp., 231 NLRB
651 (1977); Isis Plumbing Co., 138 NLRB 716 (1962);
Olympia Medical Corp., 150 NLRB 146 (1980); and New
Horizonsfor the Retarded, 283 NLRB 1173 (1982).
On January 5, 1987, the United States Court of Ap-
peals for the Fifth Circuit issued a decision enforcing the
Board's Decision and Orders, Civil 86-4056 et al.
1. THE HEARING
On March 7, 1988, a controversy having arisen over
the amount of backpay due the above employees under
the Board's order, as enforced, the Acting Regional Di-
rector for Region 23 issued a backpay specification and
notice of hearing.
Pursuant to said notice, a hearing was held before me
at San Antonio, Texas, on April 25, 26, and 27, 1988.
Briefs were later filed by the General Counsel and by
the Respondent. Following this, on July 6, 1988, the
General Counsel moved to strike part of Respondent's
brief, and to reopen the hearing. I found merit in that
portion of this motion requesting that the hearing be re-
opened, and under date of August 12, 1 ordered that the
hearing be reopened on September 13, 19881 The hearing
then continued on September 13 and 14, 1988, and briefs
were subsequently filed by all parties.
My colleague, Administrative Law Judge Wagman,
found in his decision in Case 23-CA-8880 dated July 15,
1983, that the Respondent failed to give the Union ade-
quate notice and the opportunity to bargain regarding
the hiring of new employees at its plant located on Farm
Road 1604 near San Antonio (1604 or the 1604 plant)
and the transferring of unit employees from its plant lo-
cated on Broadway in the city of San Antonio (the
Broadway plant) to 1604. By these unilateral actions,
Judge Wagman found that the Respondent had violated
Section 8(a)(1) and (5) of the Act. Further, the judge
found that the Respondent, by refusing to bargain with
the Union concerning the effects of the transfer of unit
employees from the Broadway facility to the 1604 plant,
the Respondent "violated and continues to violate Sec-
tion 8(a)(5) and (1) of the Act.'''
With respect to the Respondent's violation of Section
8(a)(5) and (1) by unilaterally laying off employees,
Judge Wagman, in the remedial section of his decision,
recommended to the Board that the Respondent be re-
quired to make whole the employees laid off in 1982 "by
paying to them their normal wages from the date of their
layoff until the earliest of the following conditions are
met: (1) mutual agreement is reached; (2) good-faith bar-
gaining results in a bona fide impasse; (3) the failure of
the Union to commence negotiations within 5 days of the
receipt of Respondent's notice of its desire to bargain
with the Union; or (4) the subsequent failure of the
Union to bargain in good faith."3
2 227 NLRB 309, 314 (1985).
tId at 316
The judge's recommendations were adopted by the
Board in its Decision and Order dated November 12,
1985.4
The Respondent appealed this decision of the Board to
the United States Court of Appeals for the Fifth Circuit,
which affirmed the Board's ruling.5
II. THE REMEDY
It is settled that the "finding of an unfair labor practice
by the Board is presumptive proof that some backpay is
owed." NLRB v. Mastro Plastics Corp., 354 F.2d 170, 178
(2d Cir. 1965). Any "backpay remedy must be sufficient-
ly tailored to expunge only the actual and not merely
speculative consequences of -the unfair labor practices
...." Sure Tan, Inc. v. NLRB, 467 U.S. 883 (1984). In
this regard, as Respondent pointed out in the course of
this hearing, and in its brief, the Board is limited to at-
tempting to achieve "the economic status quo that would
have obtained but for the unfair, labor practice." NLRB
v. J. H. Rutter-Rex Mfg. Co., 396 U.S. 258 (1969). The
Board exceeds this limited authority by ordering a' mini-
mum backpay award without concern for a claimant's
"actual economic losses or legal availability for work,"
Sure Tan, supra at 904-905.
In Respondent's view, one conclusion is certain a
remedy must seek only to remove the "consequences of
violation," and nothing more. Carpenters Local 60 v.
NLRB, 365 U.S. 651 (1961).
The Board is likewise abjured to tailor its remedy
"where the jobs affected by the illegal discharge would
have been phased out anyway regardless of the unfair
labor practices ... for only actual losses should be made
good." Sure Tan, supra.6
In this case , the Board has imposed a limited remedy
designed to effectuate the policies of the Act by requir-
ing the Respondent to bargain with the Union concern-
ing the effects of layoffs upon the laid-off employees. In-
cluded in that remedy was a limited backpay require-
ment designed to make the laid-off employees whole for
losses suffered as a result of the violation, to remedy the
loss of opportunity to bargain through their chosen col-
lective-bargaining representative at a time when the Re-
spondent might still have been in need of their services,
and at a time when a measure of balanced bargaining
power existed,7 and to recreate a situation in which the
Respondent's failure to bargain in good faith is not lack-
ing economic cnsequences reasonably related to the ef-
fects of that failure on those employees.
The limited make-whole order issued in this case,
sometimes referred to as the Transmarine backpay
remedy, is a traditional remedy imposed', by the Board
and accepted by the courts for an employer's failure to
bargain over the effects of a discrimination of operations
4 277 NLRB 309, supra. The Board's decision notes that the Respond-
ent filed exceptions to the administrative law judge's decision , together
with a supporting brief.
S Civil No. 86-4056, et al.
6 See Discussion, infra, on the question of whether the laid -off employ-
ees involved here were or would have been laid off anyway, in the ab-
sence of the violation found by the Board.
7 Sheffield Tube Corp., 285 NLRB No. 94, slip op. at 6 (Sept. 11, 1987)
(not published in bound volumes).
640 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
on unit employees; Transmarine Navigation Corp., 170
NLRB 389 (1968); Ladies' Garment Workers' Union v.
NLRB, 463 F.2d 907, 921 (D. C. Cir. 1982); Morrison
Cafeterias Consolidated v. NLRB, 431 F.2d 254, 258 (8th
Cir. 1970); NLRB v. Drapery Mfg. Co., 425 F.2d 1026,
1028-1029 (8th Cir. 1970); Globe Security Services, 229
NLRB 460, 462-463 (1977), P1i£ mem. 582 F.2d 1275 (3d
Cir. 1978); Empire Dental Co., 211 NLRB 860, 861
(1974), enf. mem . sub nom. NLRB v. Williams, 538 F.2d
337 (9th Cir. 1976; Burgmeyer Bros., 254 NLRB 1027
(1981); Peuntech Papers, Inc., 263 NLRB 264 (1982); Gar-
wood-Detroit Truck Equipment, 274 NLRB 113 (1985).
Respondent's argument that the Transmarine remedy
fashioned by the administrative law judge here was puni-
tive is untimely. If, indeed, this argument was made to
the Board and to the court, both have rejected it without
comment. In any event, the authorities cited above make
it clear that the Transmarine remedy has been adopted
and approved as a valid exercise of the Board's authority
at least since 1968.
Respondent further argues, first, employees here
would have been laid off for valid economic reasons
even in the absence of the unfair labor practice, and
second that it had (more than once) offered to reinstate
these employees "to their former positions as temporary
employees." Therefore, the Respondent's backpay liabil-
ity is more limited than that claimed by the General
Counsel.
The burden of proof in respect to these arguments
rests on the Respondent, "in keeping with traditional eq-
uitable principles that the wrongdoers shall bear the risk
of any uncertainty arising from actions." Rubber Workers
Local 250 (Mack-Wayne Closures), 290 NLRB 817 (1988).
Where evidence of the reasons Respondent took the ac-
tions it did is "peculiarly in the possession of and avail-
able to the Respondent," Boland Marine & Mfg. Co., 280
NLRB 454 (1986), "the burden falls to Respondent to
prove by convincing evidence that the discriminatees
would have been terminated at a subsequent date for le-
gitimate business reasons." Pacemaker Drivers Service, 290
NLRB 405 (1988).
The Transmarine-type remedy applied in this case by
the Board provides for backpay for the emloyees laid off
on July 2 and 7, 1982, from the date of the layoff until
the earliest of the following conditions are met: (1)
mutual agreement is reached; (2) good-faith bargaining
results in a bona fide impasse; (3) the failure of the Union
to commence negotiations within 5 days of the receipt of
Respondent's notice of its desire to bargain with the
Union; or (4) the subsequent failure of the Union to bar-
gain in good faith.
There is no argument here that the Respondent has
not complied with any of the enumerated conditions in
the Board's Order. However, the Respondent argues that
the four conditions are not an absolute which must be
met in order to stop the backpay from running, citing
Globe Security Services, 229 NLRB 460 (1977), in which
the Board added to its Transmarine remedy in that case
the words "of course (the employer's) backpay obliga-
tion to any individual employee shall cease to run should
(the employer) offer, such employee reinstatement to a
substantially equivalent position at any of its facilities,"
(parentheses from Respondent's brief). In a more recent
case the Board reaffirmed this exception to its remedy:
"of course, if the Respondent decides to reopen the .. .
plant and offers to reinstate the above employees to their
same or substantially equivalent positions, its liability will
cease as of that date"; Arrow Automotive Industries, 284
NLRB 487 (1987).8
III. THE EMPLOYMENT STATUS OF THE LAID-OFF
EMPLOYEES
This Company and its predecessor, San Antonio Port-
land Cement Company, had been in busness for many
years at the Broadway (also referred to as the Cement-
ville) location. According to the undisputed testimony of
Manuel P. Galindo, a veteran of 39 years with the Com-
pany as personnel manager from the 1970s to 1983, and
thereafter personnel affairs consultant, the Company was
faced in the mid-1970s with serious competitive prob-
lems. As a result it was decided to build an entirely new,
state-of-the-art, energy efficient, automated plant out on
Farm Road 604, a few miles from the old Broadway
plant.
Without extraneous detailing the facts from this record
and from Judge Wagman's decision in the underlying
unfair labor practice case, it appears that the Company
established a phased opening of quarrying, grinding,
firing, finishing, and shipping processes at the 1604 with
a shutdown of matching manufacturing processes at
Broadway.
In the same time period, according to Galindo's testi-
mony in this proceeding, the Company began, in late
1979 or early in 1980,9 to hire temporary employees who
would fill in for injured or retired employees, and to take
care of breakdowns and clean-up work required by the
phased in transition from Broadway to 1604.
Galindo testified that all of the emplyees for whom
backpay is claimed in this proceeding were informed
when they were hired that their employment was tempo-
rary only, and that they would be laid off when the need
for their services no longer existed.
The hiring dates of the employees involved here, so
far as can be determined from their testimony and by
copies of Respondent's records submitted in evidence are
as follows:
8 I note that in Arrow, as in the instant case, there are no provisions in
the Board's orders for the reinstatement of employees to their former or
substantially equivalent positions . However, Arrow appears to relax the
Respondent's Transmarine burden where reinstatement to the same or
substantially equivalent positions is offered. While the Board in Arrow
seems to contemplate a permanent reopening of the plant with concomi-
tant permanent reinstatement of employees, I cannot presume to infer
that a temporary reopening , or offers of temporary positions, would be
either accepted or rejected by the Board as satisfaction of the conditions
of the Transmanne remedy.
9 1 note, however, the finding by Judge Wagman apparently based on
testimony by Galindo that the hiring of temporary employees did not
begin until January 11, 1982. Citing the case of an employee named Ray-
mond Duran (not one of the employees involved here), Judge Wagman
found that Galindo told Duran that his "tenure would be only for a few
weeks or months." Duran was laid off on July 7, 1982, as were the em-
ployees in this case, but his name does not appear in Judge Wagman's
recommended Order, nor in the backpay specification in this case.
ALAMO CEMENT CO. 641
Ramiro Sotelo, Jr. testified that he was hired on
August 11, 1980 by Bill Dimmick, a former plant
manager . The date of his hire was corroborated by
a copy of his Company Employment Record.10
Hipoleto Valdez was not asked about his date of
hire, but a copy of his Company Employment
Record shows that he was hired sometime before
November 30, 1980.11
Alfredo Estrada was not asked about his date of
hire, but his Company Employment Record shows
his employment before September 1981.
Clemente Cobarruvias died in August 1987. This
Company Employment Record shows that he was
hired on June 11, 1980.
David Orozco was not asked about his date of
hire but the Company Employment Record shows
that he was hired on June 29, 1981.
Michael McKee was not asked about his date of
hire, but he is listed on the Company's Employment
Record as hired on July 7, 1981.
Geronimo Mendez Jr. testified that he was hired
on July 7, 1981 by Galindo. Galindo told him that
he was on probation for 90 days and after that he
would be made permanent. Mendez testified that
Galindo told him later that he was made permanent.
There was no Company Employment Record for
Mendez introduced in evidence here.
Jaime Zuniga was not asked about his hire, but
his Company Employment Record shows his em-
ployment commencing on August 3, 1981.
James W. Bell recalled that he was hired by the
Company on August 17, 1981. A Company "Em-
ployment Change of Status Report" shows his
achieving "permanent" status as of November 17,
1981.
Orlando Sanchez was not asked about his hire,
but his Company Employment Record shows his
employment on September 14, 1981.
Candelario Cervantes testified, and his Company
Employment Record verifies, that he was hired on
October 5, 1981.
John Coronado thought he might have been
hired in May of 1982 but was not sure. He was sure
that it was nine months before his layoff on July 7,
1982 which would have been in October or Novem-
ber of 1981. His Company Employment Record
shows that he was hired on November 2, 1981.
Brian P. Johnston was not called as a witness, but
his Company Employment Record shows that his
was hired on January 2, 1982.
Jeffrey White died in an accident on June 13,
1987. His Company, Employment Record shows
10 I note in Judge Wagman's decision that Ramiro Sotelo, Sr, this em-
ployee's father , was one of those employees of Respondent transferred
from the Broadway plant to 1604 in late 1977, and was reported by
Judge Wagman as still there as of the hearing-m Case 23-CA-8880 in
1982 or 1983
11 In compiling the exhibits in this case the reporter used a three-hole
punch which perforated Mr Valdez' employment record at the month
when he was hired.This also happened to other portions of exhibits. I
would hope that the General Counsel would note this to the reporter
who, otherwise, did a most capable job of reporting the evidence at this
hearing.
that he was hired on October 5, 1981. Another em-
ployment document, an undated Company Change
in Status Report, shows White as a permanent em-
ployee effective 10/5/82, temporarily assigned to
the 1604 plant as a laborer.
Donald Wesolick came to work at Alamo
Cement sometime in 1980 when the Company ac-
quired another employer called Midwestern where
Wesolick was working. There are no Company
records of his employment in evidence here.
Randy Cowan testified that he was hired on Jan-
uary 16, 1982 on 90 days probation. The Company's
"Change in Status Report" verifies this. According
to Cowan, he was hired by Joe Fernandez, mainte-
nance supervisor at the 1604 plant. Cowan, along
with Benny Torres, anothr employee hired at the
same time, was interviewed by Galindo, who told
them that if they kept a good work record they had
possibilities of staying with the Company for a "real
long time, as long as some of the people that had
been there for 20 years or so." Galindo told them
that they were on a 90 day probation period and
when the probation was over they "would go ahead
and be with the Company as Alamo Cement."
Benny Torres testified that he talked to Galindo
about employment and was hired on January 16,
1982 for the 1604 plant. He testified that Galindo
told him that he would be on 90 days probation,
and after that a permanent employee. The date of
hire and the 90 days probation are verified by the
Company's Change in Status Report.
Ron W. Wagner did not testify in this proceeding
and no employment records concerning his employ-
ment were offered or received.
Galindo attempted to explain these records which not
only showed that the employees were employed on 90
days' probation, as admittedly was the case for employ-
ees destined for permanent employment, but also that in
most cases the progression of the, employees to perma-
nent status,' z or promotion.13 The testimony of all of
those employees who did testify was uniform in stating
that they were hired as 90-day probationers, to become
permanent employees at successful completion of the
probationary period. These witnesses impressed me as
candid and credible, and their 'understanding of their
status is corroborated by the Company's own records.14
I do not credit Galindo's assertions that the records
were in error. He was generally a credible witness, and I
closely observed his demeanor while he was testifying,
noting his obvious discomfort with his own assertions
that his own records were in "error" or "mistakes."
Based on these credibility resolutions andn the Compa-
ny's employment records, I find that all of the employees
involved in this case were hired as regular employees, el-
12 See company employment records for Valdez, Orozco, Zuniga, Bell,
Cervantes, and Coronado.
1s See company records for Estrada, Cobarruvias , McKee, Sanchez,
and White.
14 I specifically credit the testimony of Cowan and Torres relative to
their conversations with Galindo at the time of their hire, even though
their employment records do not show their transfer to permanent status.
642 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
igible to become permanent at the successful completion
of a 90-day probationary period. 1 5
Galindo testified clearly and unequivocally, and his
testimony is verified by employment records and by the
testimony of some employees, that all offers of reinstate-
ment made to the employees here were for temporary
employment only. I find, whither or not the Transmarine
order discussed above would not be satisfied, by Re-
spondent's offers of reinstatement here, those offers of re-
instatement were not to the same or substantially equiva-
lent positions , Arrow Automotive Industries, supra, and are
not effective to toll the running of backpay. NLRB v.
J. H. Rutter-Rex Mfg. Co., supra.
IV. THE EFFECT OF THE CLOSING OF THE BROADWAY
PLANT ON THE LAID-OFF EMPLOYEES
The Respondent argues that the laid-off employees
here would have been laid off anyway, whether or not
the Company bargained or did not bargain with the
Union concerning the effects of the layoff, at one of two
times; first, on July 7, 1982, when, as the Respondent
states "the claimants would have been laid off in any
case because of the shutdown of several parts of the
Broadway plant"; or, second, "upon the complete phased
down of the entire Broadway operation when no sub-
stantial need for temporary employees remained." This
argument incorporates the arguments discussed in section
III, above, that the laid-off employees were, after all,
only temporarily, employed, and that recalls by the
Company would have tolled backpay or kept backpay
amounts to a minimum.
Beyond the Point that I have already decided, that the
laid-off employees here were not temporary employees,
the Respondent's arguments are inconsistent with Judge
Wagman's findings, and, indeed, admissions made by the
Respondent and its counsel, in the underlying case,16
and are not borne out by the evidence submitted in this
case.
In Judge Wagman's decision, he found that the Re-
spondent had begun transferring employees to the 1604
plant from the Broadway plant as early as the latter part
of 1977 to work on the construction of the former plant,
277 NLRB 309. In this case, Galindo stated that the con-
struction of the 1604 plant did not begin until 1979.17 He
did not mention the earlier transfer.
Judge Wagman also found, as admitted in Respond-
ent's answer in that, case and testified to by Galindo
there, that the Company began hiring new employees for
the 1604 plant between April and September 1981. Ibid.
Further, Respondent's counsel was quoted in Judge
Wagman's decision as stating that none of the employees
at the Broadway plant would suffer termination because
15 With respect to Ron Wagner, who did not testify here, his employ-
ment status must have been known to the Respondent. Nothing was of-
fered in evidence to show that his status was any different than the other
employees who either testified, or concerning whom company employ-
ment records were submitted in evidence. Such records would "peculiar-
ly in the possession of the Employer" and the burden for producing such
evidence rests on the Respondents here. Boland Marine & Mfg. Co., 280
NLRB 454 (1986).
16 San Antonio Portland Cement Co., 277 NLRB 309 (1985).
17 In fact he testified that the Company "began to consider" the build-
ing of the new plant in the middle or latter part of 1979.
of the opening of the new plant, ibid.18 In this case Ga-
lindo testified that the Broadway plant in the late seven-
ties had about 130 employees, and that a "study" showed
that the 1604 plant would be able to function with 75 to
80 employees. Galindo also testified in this case about
pamphlets and bulletins distributed to employees about
the move and progress on construction at 1604, speeches
to employees by then Company President Bill Hopper
and Chairman Robert Koch,19 and concerns by employ-
ees in the early eighties about the prospects for fewer
employees and a faster work pace at 1604. None of these
limitations on the broad statements of Respondent's
counsel as reported by Judge Wagman were, apparently,
revealed at Judge Wagman's hearing.
The employees who testified in this backpay proceed-
ing stated that they were hired as probationers, with the
expectation of permanent employment at the end of the
probation period.20 None testified about pamphlets or
bulletins, or speeches by company officials, or notifica-
tion that as temporary employees, they would be laid off
when 1604 went into full operation. I would have more
confidence in Galindo's denials of these employees' testi-
mony if the record in this case was in any substantial
way consistent with the findings by Judge Wagman on
the matter hiring at 1604 and transfer from Broadway to
1604. The contradictions in the testimony of Galindo
from the underlying case to this backpay case, together
with my previous findings of credibility as between Ga-
lindo and the laid-off employees leads me to reiterate my
conclusion that the employees not only were not tempo-
rary employees, but were not predestined by the terms
under which they were hired to be laid off on July 7,
1982.
The next question, is whether the employees here
would have been laid off, in any event, whether they
were temporary or permanent employees, on July 7,
1982, or on December 31, 1985. In this regard "the
burden is on the employer to establish facts which would
negative the existence of liability to a given employee or
which would mitigate that liability," NLRB v. Brown &
Root, Inc., 311 F.2d 447, 454 (8th Cir. 1963). The exist-
ence of liability has not been dispelled. The evidence
submitted here which would tend to show that these em-
ployees were laid off because they were only temporary
has not been credited. In any case, there has been no
showing that by the terms of the seniority policy, or se-
niority list21; or by the provisions of needed skills tests,
18 This unequivocal statement was modified by a letter dated May 21,
1981, from the Company to the Union stating that "most of the nonsuper-
visory personnel required" at the 1604 plant would come from "Current
bargaining unit employees" at Broadway. Ibid.
19 These officials , according to Galindo assured "permanent type em-
ployees" that none of them , "permanent type employees ," would lose
their jobs, and that people who would be leaving would be temporary
employees.
2O Several employees, Coronado, Mendez, McKee, and Sotelo, were
sons of long-time employees , who presumably would know what to
expect from his Company. One new employee, Randy Cowan who was
hired in January 1982 for work at 1604, said that Galindo told him that
he could look forward to staying with the Company for a "real long
time."
E1 Galindo testified in this proceeding that the Company utilized se-
niority as a criterion for laying off employees, but nothing of that sort
was introduced here.
ALAMO CEMENT CO. 643
or particular jobs to be filled; or numbers of employees
available at Broadway in December or 1985 as compared
with the openings at 1604; or by any other standard,
these employees were chosen to be laid off, instead of
those hired specifically for 1604 positions, either before
or after the laid-off employees. There was testimony by
Manuel Galindo about attrition, about an aging work
force concerned about a faster pace at the new location,
and about an early retiremen plan, but he never specified
the number of employees required to be laid off when
the Broadway plant closed in December 1985.22 There is
no way from this record from any of us, including Re-
spondent, to know or even to speculate as to when, if
ever, these employees would have been laid off if the
Company had not violated their rights under the Act, or
had reinstated them to their former or substantially
equivalent positions, U. S. Mineral Products Co., 276
NLRB 140 (1985). In these circumstances, I do not be-
lieve that Respondent has met the burden of showing
that there laid-off employees would have been laid off,
inevitably, either on July 7, 1982, or on December 30,
1985, NLRB v. Brown Root, supra; Buncher Co., 405 F.2d
787 (3d Cir. 1968); W. C. Nabors, 323 F.2d 686 (5th Cir.
1963); McDonnell Douglas Corp., 270 NLRB 1204 (1984);
Midwest Hanger, 221 NLRB 911 (1975).
V. MITIGATION OF BA(;KPAY LIABILITY
The backpay specification issued by the General Coun-
sel in this case runs from July 1982 (third quarter)
through December 1987 (fourth quarter). There were
discussions between counsel both on and off the record
on the termination date of backpay liability. There was,
however, no agreement, except that the General Counsel
made no offer to amend the specification, and none of
the parties examined any witnesses or introduced any
documentary evidence about matters occurring after De-
cember 31, 1987. I, therefore, will make no finding con-
cerning any backpay liability beyond that date.
The Respondent did not place in issue the amounts of
gross backpay or interest thereon as computed in the
General Counsel's specification, but did amend its
answer at' the hearing to contest the interim earnings fig-
ures applicable in each case in mitigation of backpay li-
ability.
I will therefore, discuss each individual case based
upon evidence adduced in this record, retaining the same
order of employees as set out in the original specification
and answer.
A. Ramiro Sotelo Jr.
Sotelo testified that as soon as he was laid off he
moved to New Braunfels, Texas.23 He collected unem-
ployment for a couple of weeks, then took a job for a
little over $4 per hour for a month. He went to work for
General Portland Cement on August 31, 1982, starting at
22 Even after this date, Galindo testified, some employees remained at
Broadway to empty storage silos, to clean up, and to prepare the plant
for shutdown.
zs Sotelo testified that New Braunfels is 32 miles from San Antonio.
United States Census figures from 1980 show San Antonio with a popula-
tion of 785,940 and New Braunfels 22,402.
$5 per hour, then to $5.50 after 90 days. He was still em-
ployed at General at the time of this hearing, earning
$9.10 per hour as of April 26, 1988.
Respondent argues that since Sotelo did not look for
jobs paying $8 or so per hour, the kind of job from
which he was laid off at Alamo Cement, he is not enti-
tled to backpay. Sotelo, however, testified that he took
the first job, as a truckdriver, with Boise Cascade, then,
late in August, took a job with General Portland Cement
as a utility man. Those jobs were not jobs at which
Sotelo had no experience, and to describe him as "labor-
er," as Respondent has done in its brief, is inaccurate and
unfair. In these circumstances I do not find that the stric-
tures adopted by the Board in Knickerbocker Plastic Co.,
132 NLRB 1209 (1961), apply.24
I find that Sotelo is owed backpay of $9,096.64 with
interest to December 31, 1987, of $5,653.70 for a total of
$14,750.34, together with additional interest up to the
date of payment.
B. Hipoleto Valdez
Valdez testified that he went to the Texas Employ-
ment Commission after his layoff on July 7, 1982, but
failed to report in as required by the Commission (The
Texas Employment Commission was generally referred
to herein as "TEC"). He filled out applications for work
in the construction business because, as he claimed, he
had experience in carpentry, roofing, and fencing work.
He also applied in "a few mechanics shops." He did
obtain work in the third quarter of 1982 and earned
about $338 from Berry Construction and Elmore Enter-
prises, and quit his job at Elmore because he did not like
the person in charge.
Valdez was vague about his activities from the third
quarter of 1982 to the first quarter of 1984, and was also
vague about working for a man named Joseph Alandedo
during that period. At one point Valdez said he made
$6000 from March 1983 to the end of 1983, but at an-
other point did not recall what he made. He had no
records, no W-2 forms, had no taxes withheld, and either
could not or would not recall where Alandedo lived
then, or at the time of the hearing.
In April 1984, Valdez obtained a job with Capital
Cement which he kept during the year 1984 and into the
first part of 1985. He stayed unemployed during much of
1985, working a temporary job with someone named
Hawkins, then hiring on with Finn Construction later in
the year. This job did not last and Valdez worked for
other employers, during 1985 and through 1986. In Feb-
ruary 1987, he began working for Continental Florist,
and stayed there through 1987.
The Respondent properly objects to the payment of
backpay for periods when Valdez apparently was wilful-
ly unemployed. But comparing the testimony summa-
rized above, with the specification, I note that no back-
pay is being claimed for the periods from the fourth
24 New Braunfels is neither too small nor too distant from San Antonio
to warrant denying backpay on the grounds followed in Knickerbocker
Plastic.
644 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
quarter of 1982 through the 1st quarter of 1985.25 In
regard to other periods when Valdez' employment was
at best casual, the Respondent claims that "he continued
to look for work solely in the construction field."26
I do not find in this case a wilfull failure to find or
persevere at suitable work during any period for which
backpay is claimed. Valdez is owed $49,583.68 in back-
pay together with $13,047.90 in interest up to December
31, 1987, with interest continuing until the time of pay-
ment.
C. Alfredo Estrada
Estrada testified that he filed for unemployment with
the TEC on his lay off on July 7, 1982, and collected un-
employment benefits until around February 1983.27
When the unemployment insurance ran out Estrada de-
cided to go into business for himself as an auto mechan-
ic. He had some business cards printed and distributed
them locally. His business unfortunately, did not flourish,
and by early 1984 he was forced to take a job with
someone named John T. Saunders. Estrada then, on May
23, 1984, took a job with the City of San Antonio Water
Board where he remained at the time of this hearing.
Despite Respondent's position that Estrado's self-employ-
ment was not "bona-fide full self-employment," NLRB v.
Armstrong Tire & Co., 263 F.2d 680 (5th Cir. 1959), there
is no evidence and only conjecture on the part of Re-
spondent that Estrada did not exert every effort in a
bona fide, legitimate way, to make this little business a
success. If he could not, then that is too bad, but that
should not be held to be a wilfull loss of earnings. NLRB
v. Arduini Mfg. Co., 395 F.2d 420 (1st Cir. 1968).28
Accordingly, I fmd that Estrada is owed $52,378.64 in
backpay with $25,821 in interest through December 31,
1987, and with interest continuing until payment is made.
D. Clemente Cobarruvias
Cobarruvias died on August 4, 1987. The General
Counsel claimed that he was due $43,984.78 in backpay
through the second quarter of 1987 together with
$21,220.13 in interest through the end of 1987. The Re-
spondent does not contest these amounts and I fmd that
such amounts, together with interest to the time of pay-
25 If Valdez did in fact earn $6000 or so in the 1982-1983 period at this
under-the-table job, his testimony that he told the General Counsel about
it is credible and not refuted by other evidence.
26 Compare Respondent 's finger-pointing at Sotelo for not seeking
work in his field Apparently Respondent agrees with Lorenzo Dow's
definition of Calvinism; "you'll be damned if you do-and you'll be
damned if you don't."
27 A word about TEC records received from Respondent : in this case,
I have no knowledge that the records received here are the only records
the TEC has regarding the individual employees. With regard to some
employees the records are voluminous , showing all the biweekly reports
required of claimants , often for months on end . For others, including Al-
fredo Estrada, the only TEC records offered and received reflect not the
TEC's role as disburser of benefits, but its function as the collector and
recorder of insurance payments made by employers on account of their
employees . In the absence of any explanation of the selection of records
submitted , or not submitted , or of the meaning of TEC internal codes and
language, I can draw no inferences, for example, that the lack of payment
records and claimant's reports in the case of Mr. Estrada , means or im-
plies that he did not report and draw benefits as he testified he did.
28 A case with which, in younger and happier days, I had some pass-
ing acquaintance.
ment are owed to the estate of Clemente Cobarruvias.
The General Counsel also claimed in her specification
that Cobarruvias' estate is due $20,000 on account of
company paid life insurance to which the estate would
have been entitled but for the discrimination against him.
Respondent objected to this, asserting that Cobarruvias'
estate was entitled to at least equal insurance benefits
from the city of San Antonio, his employer at the time of
his death. This assertion is borne out by documents sub-
mitted by Respondent showing the payment of what ap-
pears to be over $20,000 under a city employee life insur-
ance policy in Cobarruvias' name . Accordingly, I do not
fmd that Cobarruvias' estate is entitled to any payments
on account of life insurance.
E. David Orozco
Orozco was laid off on July 7, 1982, and accepted
recall by Respondent on September 20, 1982. He worked
at the Company until he resigned on August 1984. The
General Counsel has specified backpay only for the third
quarter of 1982 in the amount of $2136 with interest
through December 1987 of $1,924.41. The Respondent's
counsel questioned Orozco at this hearing about his in-
terim earnings, but raised no questions about Orozco in
the brief. I fmd that Orozco is due backpay in the
amount of $2136 with interest of $1,924.41 up to the end
of 1987, with additional interest up to the time of pay-
ment.
F. Michael McKee
McKee was laid off on July 7, 1982, and initially ob-
tained temporary employment with a contractor at the
1604 plant construction site. He then got a permanent
job with a rug cleaner in August 1982, remaining until
January 1985. At that time McKee moved to a town
called Uvalde, about 77 miles almost due west of San
Antonio.29 Respondent's comment in its brief that
McKee moved to Uvalde "simply" to get away from
San Antonio is simply not true, since the sentence in
which he testified that he moved to get away from San
Antonio concludes with the words "and since my wife's
relatives are all down there I was going down there
looking for a job." I also note in regard to this move that
Mckee and his family were given a place to live by his
in-laws while they were there, and McKee testified that
if he couldn't have found a decent job he "probably
would have moved back to San Antonio." McKee tried
to start a carpet cleaning business in Uvalde, but could
not make any money at it.20 He then had to make do
29 McKee thought it was 82 miles, but the 1986 Rand McNally United
States Road Atlas shows the distance to be 77 miles.
20 Respondent also argues that McKee "willfully deceived the Board"
by failing to disclose earnings from this failed business and that backpay
should be tolled for the first quarter of 1986, American Navigation Co,
268 NLRB 426 (1983) However, the evidence is not clear as to whether
there was a failure to disclose earnings, or that any such failure was wil-
full McKee testified that he had no records of that income, which could
have been about $200, and did not recall whether he notified the Board
of these earnings . This testimony is so vague, and the amounts so small,
as to lead me to conclude that it has not been established that McKee
made any profit from his business, or that he did not notify the Board of
the facts about the business.
ALAMO CEMENT CO.
with odd jobs until he obtained full-time employment
with Rock Products of Texas in February 1986.
The question of disqualification for the move to
Uvalde is closer than in the case of Ramiro Sotelo Jr.,
who moved to New Braunfels. Uvalde is farther away
from San Antonio, 77 miles compared to 34 miles, and
smaller , 14,178 compared to 22,402 (1980 census figures).
There are distinctions between McKee's case and those
of the individuals considered , for instance, in Knicker-
bocker Plastics, supra, but in both instances the moves to
less populated localities were undertaken for personal
reasons, and searches for employment were not success-
ful, in this case, at least, for an entire year. However, in
this case I note also testimony of McKee 's fellow laid-off
employees who remained in San Antonio3 a and had as
much if not more difficulty in finding employment, even
in jobs at or just above the minimum wage. In these par-
ticular economic circumstances I distinguish the situa-
tions in Knickerbocker Plastics, and find that McKee did
not willfully withdraw from the labor market during the
first year he was at Uvalde. I find, therefore, that McKee
is owed $36,743.27 in backpay together with $14,225.51
in interest through December 1987, with additional inter-
est to the time of payment.
G. Geronimo Mendez Jr.
After his layoff by Respondent on July 7, 1982,
Mendez stayed on unemployment for almost a year. In
June 1984 he went to work for a company called A & H
Industries . In March 1984 Mendez' quit this job because,
as he put it, "the promises the man had made me he
never gave me. He never did what he told me he was
going to do . He said I was going to get trained, never
did. He said I was going to make more money . That's
the first and only reason why I took that job offer, be-
cause I was supposed to be making more money, and I
never got it, never received it." It seems to me that
under the most elementary principles of contract law,
there has been a breach of promises here by Mendez'
employer, justifying recession by Mendez of the contract
of employment . In such circumstances, I find Mendez'
quitting his job with A & H to be justifiable.32
The Respondent also alleges that Mendez was fired by
an employer named Specialized Cargo on November 21,
1985 . Mendez disputed this, saying that he had in fact
been laid off by an employer which was going bankrupt.
While the TEC ruled against Mendez, I think the matter
is not free from doubt, and it has not been established to
my satisfaction that reasons given by the former employ-
er, and accepted by the TEC are sufficient to disqualify
Mendez from backpay on that account.
Finally, in December 1987, Mendez admitted that he
was fired by L & H Packing, but he testified that he got
another job about 2 weeks later which paid more money.
Under the circumstances I must agree that Mendez'
work was "spotty" but I cannot find that Respondent
has established that he willfully failed to pursue or to
31 See for example, testimony of Valdez, Zumga , Estrada, and Mendez
92 Similarly, Mendez' later quitting at Dean Coley was justified by the
fact that he was assigned to do a job other than the one he was lured to
do.
645
retain the job opportunities he had. Accordingly, I find
that Mendez is owed $41,700.87 in backpay, with interest
through December 1987, with interest continuing to the
date of payment.
H. Jaime Zuniga
After his layoff on July 7, 1982, Zuniga did not obtain
employment until early in 1983. He was recalled to
Alamo Cement in 1983 and remained employed there
until December 1985 when he was laid off again. He was
then unemployed for about 14 months. The Respondent
claims that these two "prolonged" periods of unemploy-
ment "patently evidence" a wilfull loss of earnings.
However, Zuniga testified credibly and without contra-
diction (beyond Respondent's partisan skepticism, unsup-
ported by any evidence) that he had contacted over 200
employers in the 1982-1983 period, and more than 50 in
the 1986-1987 period. In the latter period Zuniga ful-
filled all the requirements of the TEC and was awarded
benefits for almost the entire time he was unemployed.
The Respondent has presented no evidence that
Zuniga did not do what he said he did, and asks that I
deny him backpay because of its disbelief in what he
said . I do believe him and fmd that he is entitled to
$34,730.32 in backpay, with interest of $11,331.12 up to
December 31, 1987, and continuing to the time of pay-
ment.
1. James W. Bell
Bell's experience in the July 1982 layoff is unique.
About 2 weeks before the layoff on July 7, on a Friday,
he broke his arm while employed at the Broadway
plant.33 He did not file for workers' compensation be-
cause on the following Monday he was called by the
plant safety manager who asked him to return to "light
duty." Bell remained at work until the layoff on July 7
when he was laid off with the others.
On July 9, Galindo called Bell and told him that the
Company was calling the mechanics back, but not Bell.
Galindo told him that when his arm was healed and he
could do regular labor, to call and talk about coming
back to work.
Bell's testimony about what happened next is worth
quoting in its entirety, to demonstrate the underlying
logic of a seeming "Catch-22" situation:
in the meantime I had a heck of difference trying to
get a little money together because I didn't know
what to do. I went to unemployment (TEC) and
they said hey you can't draw unemployment you
got a brused arm. I said well how am I supposed to
get any money. And she said well where did you
hurt it at. I said I hurt it at work. She said well you
should be drawing workmen's compensation. So I
called workmen's compensation, they said, well first
I called Mr. Galindo. And I told him, Mr. Galindo,
31 11 find that the arm was broken while Bell was at work , based on his
somewhat ambiguous statement that "I was mechanic , Mechanic B, and
when I broke my arm, I was working on a kiln out there;" and his un-
equivocal testimony that he told the people at the TEC that he hurt his
arm at work.
646 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
I says, I need to call workmen 's comp because I
need some money, I got to get some money, you
know . So he said well go ahead and call them. So
then when I called them she told me , she said you
cannot draw workmen's comp . I said well the lady
at unemployment said I could because I broken [sic]
my arm while I was working . She said no , I realize
you broke your arm while you was working but
you were laid off.
Both of these women who talked so matter -of-factly,
and seemingly insensitively, to Bell were probably right.
He would not be eligible for unemployment insurance
because he could not work, and he would not be eligible
for workers ' compensation because he had returned to
work in spite of his injury , and then been laid off. So
Bell remained out of work (and, presumably, out of
money) until his doctor released him for general duty
about August 30 . He went to the plant , talked to Ga-
lindo, and returned to work on the 30th.
The Respondent, joining the two women from the
State of Texas, now compounds this catch -22 situation
by stating , again correctly, that since Bell was not in-
jured while engaged in interim employment, he "absent-
ed" the labor market and is entitled to no backpay for
the period July 7-August 30 . American Mfg. Co of
Texas, 167 NLRB 520 (1967).
What Respondent neglects to observe, however, is
something that the woman from the Texas Workers'
Compensation office noted ; namely, that Bell was unem-
ployed not because he was injured , but because he was
laid off. Indeed, he had been asked to report back to
work even with his broken arm. The Respondent has of-
fered no reason here as to why, if he was acceptable
before July 7, he was not acceptable on July 9 . Thus, I
find that the Respondent is not now in a position to
argue that Bell should be denied backpay when it was its
own equivocal actions which resulted in his remaining
out of work from July 7 to August 30.
Respondent also asserts that Bell showed a lack of dili-
gence in seeking work after his December 1985 layoff by
the Company . Records of the TEC show , however, that
he made repeated inquiries about work at seven different
employers during a 6 -month period . Bell did file with the
TEC, and there is no evidence that he failed to follow
any orders or instructions given him by that agency. The
Board and the courts are consistent, moreover, that a
backpay claimant is held "only to reasonable exertions, in
this regard , not the highest standard of diligence ... .
The principle of mitigation of damages does not require
success , it only requires an honest good faith effort"
NLRB v. Arduini Mfg. Co., supra . I find here that Bell
exerted honest and good-faith efforts to find employment
in the period after December 1985.
Accordingly, I find that Bell is entitled to $15 ,392.65
in backpay with $3,957 .57 in interest through 1987, with
interest continuing to the date of payment.
J. Orlando Sanchez
Sanchez was laid off in July 1982, and worked on a
fairly steady basis through the fouth quarter of 1985.
From this point on he was confused about what he did.
He worked for some employers and testified that while
he filed for unemployment with the TEC he received
only one check from that agency during 1986. The Re-
spondent claims that the TEC had no records of a claim
by Sanchez during 1986. There is no evidence in the
record to support this claim , but I think the testimony of
Sanchez is confused, evasive , and suggestible to ques-
tions put by Respondent' s counsel . I think he probably
did not file with the TEC during 1986, and he did quit a
job with an employer called Newell Industries in April
1987. I think, however, that Sanchez' testimony shows
that he did actively seek work during 1986 and 1987, and
that his leaving of Newell Industries was prompted by
the knowledge that he was marked for layoff, "at some
future point" as argued by Respondent, but in the imme-
diate future. I cannot find that by these actions and in
the absence of any other testimony or evidence on the
matter that Sanchez wilfully removed himself from the
job market, or was unjustified in quitting Newell Indus-
tries. These matters are not free from doubt, but in such
cases, all doubts should be resolved in favor of the claim-
ant, rather than the Respondent wrongdoer, United Air-
craft Corp., 204 NLRB 1068 (1973).
I, therefore, find that Sanchez is entitled to $18,907.76
in backpay, together with $2,804.89 in interest up to the
end of 1987 and continuing until the date of payment.
K. Candelario Cervantes
Cervantes was laid off on July 7, and he testified that
he went to work with Elmore Enterprises, a contractor
at the 1604 plant, for a month or two. He admitted that
he had not notified the Board the he worked there. Re-
spondent argues that Cervantes should receive no back-
pay for the third quarter of 1982, during which time he
held this undisclosed job. American Navigation Corp., 268
NLRB 426 (1983). I agree, and will recommend that
Cervantes be paid backpay in the amount of $2974.48,34
together with interest computed to the date of payment.
L. John Coronado
After he was laid off on July 7, Coronado collected
unemployment and actively looked for work as a paint
and body person, a field in which he had been trained in
school. About 6 weeks later he got a job with United
Utility. About the middle of 1983 he was laid off by
United Utility, and 2 weeks later obtained a job with
V.K. Knowlton, a construction company, as a heavy
equipment painter. He remained there until July 1985
when he quit to move to a small town called Bracket-
ville, population about 1600, 120 miles west of San Anto-
nio (and 40 miles west of Uvalde). Once there, Coronado
tried to get work, but none was available.35 The TEC
refused him unemployment payment because he had quit
his job at Knowlton.
This case is quite different than those of the other two
employees who left the San Antonio area, Sotelo and
94 Using the revised fourth quarter figures supplied by the General
Counsel in an amended specification for Cervantes.
35 Including an attempt to start his own paint and body shop , but that
did not work out.
ALAMO CEMENT CO.
McKee. First, Coronado quit his job without any justifi-
cation which can be found in this record, and second, he
moved over 100 miles to a very small town with very
limited opportunities. I find none of the reasons here
which led me to justify the moves by Sotelo and McKee.
Accordingly, I find that by leaving his job, and the San
Antonio area in July 1985, Coronado incurred a willful
loss of employment which continued down to the time of
this hearing. He is entitled, therefore, to no backpay
from the end of the second quarter of 1985. He is enti-
tled to backpay in the amount of $10,648.08 from the
third quarter of 1982 through the second quarter of 1985,
with interest thereon up to the date of payment.
M. Brian P. Johnston
Johnston did not testify in this proceeding. The specifi-
cation claims that he is entitled to $2,775.45 in backpay
with $2,245.92 in interest through 1987. The Respondent
raised no argument concerning these amounts. I, there-
fore, find that Johnston is entitled to the amount set out
in the specification, with interest continuing to the date
of payment.
N. Jeffrey White
White was killed in a boating accident on June 13,
1987. The backpay specification claims that at the time
of his death through the 'second quarter of 1987, White
was owed $25,280.88 in backpay, $11,934.49 in interest
through the end of 1987, and $16,000 in life insurance to
which his estate would have been entitled if he had been
employed at Alamo Cement. The Respondent introduced
no evidence, nor does it argue, that the backpay and in-
terest figures are incorrect. It does assert, however, and
has introduced evidence to show that White was cov-
ered by a life insurance policy maintained through his
then employer, Aleman Food Service, and his Union, In-
dustrial, Technical and Professional Employees Division,
National Maritime Union of America, AFL-CIO (ITPE-
NMU). The record shows that as of June 22, 1988, the
death benefits paid to White's widow, Jane H. White, to-
talled $14,800 with $4800 in monthly payments remain-
ing, for a total of $19,600. It thus appears that the
$16,000 in insurance claimed by the General Counsel is
more than offset by the insurance which is actually being
paid. Thus, I find that the backpay figures given above,
together with interest to the date of payment and not
adding the insurance amount as claimed by the General
Counsel, constitute the proper amounts of backpay and
interest due to the estate of Jeffrey White.
0. Donald J. Wesolick
As I noted in section III, above, Donald Wesolick tes-
tified that he worked for a company called Midwestern
which had been acquired by Alamo Cement. Wesolick
transferred to Alamo in 1980, and he testified, returned
to Midwestern (which apparently had retained its sepa-
rate identity) after he was laid off by Alamo on July 7,
1982. He remained there until the end of October 1984,
when he left for reasons which are somewhat obscure.
According to Wesolick's own words, he "just got tired
of working there and all that. I was trying to hope I was
647
going to get back over at Alamo and I had got laid off,
and other reasons." Wesolick stated that he had had
problems with absenteeism36 at Midwestern, and had
been suspended for a week sometime before he left. The
day before he left Midwestern, Wesolick called the office
manager and told him that he had another job and would
not be in the next day. He then went to work on that
next day for one Clarence Tausch at Helotes materials.
He was paid $6 per hour at the new job as opposed to
$5.75 per hour at Midwestern, but made a little less
money because of different overtime rates.
Wesolick stayed with Clarence Tausch until April
1985. He was missing days because of problems with his
leg, but his testimony was unequivocal that he quit be-
cause he "didn't get along too good" with Tausch. From
that point he was unemployed for about a year. He did
not file for unemployment, but lived on his wife' s income
during that period. He did testify that he looked for
work at a number of places but unsuccessfully.37
After he left 'Tausch, Wesolick testified that he went
to work for Zumwalt Paving late in 1985, and worked
there running a loader until late 1986.38 He then went on
unemployment until the end of 1986. He obtained a job
with Southwest Texas Delivery in March 1987, but quit
after 2 weeks, and then worked for an employee leasing
operation called Peak Load until September 1987, when
he was laid off.
I do not agree with Respondent that Wesolick's depar-
ture from Midwestern was unjustified, or that his interim
earnings from that job should offset subsequent gross
backpay. However, I do think that Wesolick did incur a
willful loss of earnings when he quit Clarence Tausch.
Even though he maintained that he had missed work be-
cause of his leg on that job, he was clear that the reason
he left was that he did not get along with Tausch. This
action was not justifiable, and I find that his interim
earnings for the first quarter of 1985 should offset the
gross backpay figures from that point until the end of
1987. Thus the net backpay for the first quarter of 1985
would be $1,657.80, for the second quarter of 1985,
$1,657.80, and so on, adjusting for the increased gross
backpay figures in subsequent quarters except where the
interim earnings figures are higher. The total backpay
owed, by my' calculations, is $22,467.97 together with in-
terest down to the date of payment.
P. Randy Cowan
Cowan was laid off on July 7, 1982, was subsequently
recalled several times by Alamo, and worked for other
employers. The Respondent states in its brief that TEC
Se Wesolick has an artificial leg which apparently gives him problems
from time to time, requiring him to miss work more often than is accept-
able to some employers.
37 Respondent is critical of Wesolick for not seeking "any type of
office employment," but Wesolick pointed out in his testimony that he
was "not too good at that," and most of those jobs require a "college
degree and all of that."
as The amended backpay specification for Wesolick shows that he re-
ceived no interim earnings for the first three calendar quarters of 1986,
but Wesolick's testimony is clear that he worked for Zumwalt , and for D
& B Materials, a subsidiary of Zumwalt, in that year through September
15, 1986. These interim earning computations are obviously in error.
648 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
records in evidence here indicate that Cowan received
$140 during March 1986, from an employer called Bauer
Shedding Co. which he failed to report to the General
Counsel. There are two problems with this allegation.
First, Cowan was never asked about the matter when he
was on the witness stand, and the specification for the
first quarter of 1986 shows interim income of $840,
which could include the $140 alleged to have been con-
cealed from the Government. Second, and more impor-
tant, there is no citation in Respondent's brief to which a
specific TEC record is referred. Those records were sub-
mitted originally without identification or explanation of
the symbols, shorthand, and meaning of the various
forms and communications used. Many of the exhibits
are indistinct or illegible. I have searched through these
records throughout this case, in writing this decision, and
I have used the records in coming to the conclusions I
have reached here. With respect to Cowan, I searched
the records thoroughly, and I believe that what Re-
spondent is referring to is Respondent's Exhibit 15(g) a
TEC claim form covering a period from March 3 to
March 17, 1986. On the front page of that form are
blanks for the claimant to state whether he earned any
wages in that 2-week period. There are spaces for "yes"
and "no" and it appears that the "yes" blank is checked.
Below that there are spaces for employers' names, ad-
dresses, and amounts earned. There are things written
there but those writings are illegible. I cannot make find-
ings based on illegible documents in evidence.
Thus, I do not believe that Respondent has shown th
Cowan earned any money in March 1986. But if he did,
Respondent has not shown that this was not disclosed to
the General Counsel. I find that Cowan is owed
$4,462.42 in backpay, with interest of $1,823.46 up to the
end of 1987, and continuing until the date of payment.
Q. Benny Torres
Torres testified that after his layoff on July 7, 1982, he
was recalled by Galindo after 2 weeks. He was laid off
at the end of December, then recalled again, remaining
with Respondent until the end of December1985.
The Respondent claims that Torres should be denied
backpay of the first quarter of 1986 because he told the
TEC "from December 27, 1985 to the end of March,
1986 he did not look for work" because he was on tem-
porary layoff from Alamo. The TEC records do show
that Torres did not report to them the names of places
where he sought work from the week ending December
27, 1985, through the week ending February 28, 1986,
listing on the form merely that he was on temporary
layoff from Alamo. In the weeks ending March 7 and 14,
the records show that Torres claimed that he had looked
for work at Alamo; then in the weeks ending March 21
and 28 he reported that he went somewhere. But unfor-
tunately, as so many times here, the records are illegible.
It does not seem to me to be unreasonable, considering
Torres' experience with Respondent, that he would fully
expect to be recalled very soon, and it would be wasteful
of his time, as well as that of prospective employers, for
him to go around and seriously look for work elsewhere.
Moreover, Torres was questioned by counsel for Re-
spondent and was given no opportunity to explain this
lapse.39 I cannot find that Respondent has shown that
Torres willfully removed himself from the job market,
even for those few weeks early in 1986.
Accordingly, I find that Torres is entitled to $15,634 in
backpay, together with interest of $2,425.32 up to the
end of 1987, and continuing to the date of payment.
R. Ronald W. Wagner
The backpay specification for Wagner claims an
amount of $100,113.92 in backpay, with interest of
$32,299.85 through 1987. However, the General Counsel
stated in a memorandum attached to the specification
that Wagner has not been located by the Board and in-
terim earnings have not been calculated and deducted
from the total amounts in the specification.
On the foregoing findings, and upon the entire record
in this case, I issue the following recommended40 -
ORDER
That the Respondent, Alamo Cement Company, its of-
ficers, agents, successors, and assigns, shall satisfy its ob-
ligation to make the following employees whole by pay-
ment to them of the amounts listed by their names
below, plus interest thereon accrued to the date of pay-
ment computed in the manner described in New Horizons
for the Retarded, 283 NLRB 1173 (1987),41 minus any
tax withholding required by Federal or state law:
Name Backpay Interest to 12/31/87
Ramiro Sotelo, Jr. $9,096.64 $5,653.70
Hipolito Valdez 49,583.68 13,047.90
Alfredo Estrado 52,378.64 25,821.13
Clemente Cobarruvias 43,984.78 21,220.13
David Orozco 2,136.00 2,921.41
Michael McKee 36,743.27 14,225.51
Geronimo Mendez, Jr. 41,700.87 to be recomputed
Jaime Zuniga 34,730.32 11,331.12
James W. Bell 15,392.65 3,957.57
Orlando Sanchez 18,907.76 2,804.89
Canderlario Cervantes 2,974.48 to be recomputed
John Coronado 10,648.08 to be recomputed
Brian P. Johnston 2,775.45 2,245.92
Jeffrey White 25,280.88 11,934.49
Donald J. Wesolick 22,467.97 to be recomputed
Randy Cowan 4,462.42 1,823.46
Benny Torres 15,634.00 2,425.32
Ronald W. Wagner 100,113.92 32,299.85
39 Whether, for example, Galindo, or some other company official, had
told him that he would soon be recalled.
40 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 pur-
poses.
41 Note: Interest on backpay amounts accruing before January 1, 1987,
apparently was computed in accordance with Florida Steel Corp., 231
NLRB 651 (1977), as described in the backpay specification herem. Inter-
est from and after January 1, 1987, will be computed at the "short-term
Federal rate" for the underpayment of taxes as set out in the 1986 amend-
ment to 26 U.S.C. § 6621; New Horizons for the Retarded, supra.
ALAMO CEMENT CO. 649
The Regional Director shall hold in escrow the pay-
ments for Ronald W. Wagner for a 1-year period begin-
ning either on the date of Respondent 's compliance by
payment of the backpay for deposit in to escrow, or on
the date the Decision and Order becomes final , including
enforcement thereof, whichever is later. At the end of
this 1-year escrow period , the Respondent 's backpay ob-
ligation to Wagner will lapse in the absence of a showing
by the discriminatees by a preponderance of the evidence
that there were compelling reasons to justify his failure
to come forward during that period . Starlite Cutting, 280
NLRB 1071 (1986) (Starlite 1); Starlite Cutting, Inc., 284
NLRB 53 (1987) (Starlite Il); Muney Design , 285 NLRB
289 (1987).
Interest for the period after December 31, 1987, shall
be computed by the Regional Director and added to the
amounts here set out.