Alamo Express, Inc.

National Labor Relations Board - Board Decisions

Apr 16, 1975

217 N.L.R.B. 402 (N.L.R.B. 1975)

402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Alamo Express, Inc. and Alamo Cartage Company and
General Drivers, Warehousemen & Helpers Local
Unions Nos. 657 and 988, affiliated with Interna-
tional Brotherhood of Teamsters , Chauffeurs, Ware-
housemen & Helpers of America. Case 23-
CA-4007
April 16, 1975
SECOND SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS FANNING, JENKINS, AND PENELLO
On November 9, 1972, the National Labor Relations
-Board issued its Decision and Order in the above-enti-
tled proceeding,' directing Respondent, inter alia, to
make whole 14 employees for their losses resulting
from unfair labor practices committed by Respondent
in violation of Section 8(a)(1) and (3) of the National
Labor Relations Act, as amended. Thereafter, the
Board's Order was enforced by the United States Court
of Appeals for the Fifth Circuit.'
Pursuant to a backpay specification and appropriate
notice issued by the Regional Director for Region 23,
a hearing was held on July 9, 1974, before Administra-
tive Law Judge Benjamin B. Lipton, for the purpose of
determining the amount of backpay due the dis-
criminatees.
On November 22, 1974, the Administrative Law
Judge issued the attached Second Supplemental Deci-
sion., Thereafter, Respondent filed exceptions to the
Administrative Law Judge's Second Supplemental De-
cision and a brief in support thereof. The General
Counsel also 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 Supplemental Decision in light of the exceptions
and briefs and has decided to affirm the rulings,
findings,' and conclusions of the Administrative Law
Judge, as modified below, and to adopt his recom-
mended Order as modified.
1 200 NLRB 178 On April 30, 1973, the Board issued its Supplemental
Decision and Order in this proceeding 203 NLRB 410.
2 NL.R.B. v. Alamo Express, Inc., 489 F.2d 1311 (1974)
3 Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd. 188 F.2d 362 (CA. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings However,
we do not adopt or concur in his comments characterizing the Respondent's
questioning of the witnesses as "improper and unfair" or his comments
concerning the limitations he appears to place on a respondent's examina-
tion of witnesses in backpay proceedings
General Counsel contends,, inter alia, that the Ad-
ministrative Law Judge used the wrong figures in com-
puting discriminatee Walker's first-quarter" 1971 earn-
ings. We agree.
The Administrative Law Judge found that Walker's
first-quarter 1971 earnings consisted of the following:
Oscar Ford, $488; Manpower, Inc., $19; General Sup-
ply, $111; and Cutting Lawns, $115, for a total of $733.
The Administrative Law Judge notes in his Decision
that he derived the above $488 figure covering Walker's
earnings from Oscar Ford from Walker's testimony
that he earned approximately $150 a month for the 3
months that he worked for Oscar Ford, "which readily
reconciles with the amount of $488.00 deducted in the
Specifications."
General Counsel claims, however, that the $488 fig-
ure referred to in the specification included the follow-
ing amounts: Oscar Ford, $350; Manpower, Inc., $19;
and General Supply, $111, for a total of $480.4 Thus,
General Counsel contends that by using the $488 figure
in the specification which had already included Walk-
er's Manpower and General Supply earnings, and by
again adding to that Walker's earnings from Man-
power and General Supply, the Administrative Law
Judge added the Manpower and General Supply earn-
ings twice. We agree.
However, General Counsel now concedes, in light of
Walker's testimony at the hearing, that the correct fig-
ure for Walker's first-quarter earnings from Oscar
Ford is $450 instead of the $350 figure which it initially
used in the backpay specification. Using this figure
then, the correct revised total first-quarter earnings for
Walker amount to the following: Oscar Ford, $450;
Manpower, Inc., $19; General Supply, $111; and Cut-
ting Lawns, $115, for a total of $695. Accordingly, the
sum of $695 is to be subtracted from $1,163, the
amount Walker would have earned in the first quarter
of 1971 had he not been discriminatorily denied rein-
statement by Respondent, which results in a net total
of $468 backpay due him for the first quarter of 1971.
His adjusted total backpay award then becomes $936.
Our Supplemental Order below reflects this adjustment
in the backpay that Respondent will be directed to pay
Walker. As already noted, in all other respects we
adopt the Administrative Law Judge's recommended
Supplemental Order as our own.
ORDER
Respondent, Alamo Express, Inc., and Alamo Cart-
age Company, its officers, agents, successors, and as-
signs, shall pay to the discriminatees listed below the
" Although General Counsel nowhere explains where the extra $8 in the
backpay specification came from, it appears to have been an inadvertent
error in adding the subfigures set forth above
217 NLRB No. 63
ALAMO EXPRESS, INC. 403
amount set forth opposite their names, with interest -at
6 percent per annum computed on the basis of calendar
quarters,5 less the tax withholding required by Fed-
eral and state laws.
Veanes Jenkins $2,439.00
Elmer Thorton 356.00
Benjamin J. Walker 936.00
L. Boone 127.68
M. Dunn 792.96
W. C. Fletcher 456.96
W. T. Henderson 994.56
R. J. Richards 873.60
R. L. Tolder 463.68
A. Adams 540.36
J. Crowder 136.80
M. Crowder 143.64
R. Glenn 348.84
L. Lofton 403.56
Total $9,013.64
5 Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
SECOND SUPPLEMENTAL DECISION
BENJAMIN B. LIPTON, Administrative Law Judge: This sup-
plemental proceeding was instituted for the sole purpose of
determining the amounts of backpay due: 14 employees under
the terms of the Board's Order as enforced by the Fifth
Circuit Court of Appeals.' On July 9, 1974; a hearing in
part was held before me in Houston, Texas.'
Upon the entire record, including the posthearing briefs
filed by General Counsel and Respondent, I make the follow-
ing
1200 NLRB 178, enfd 489 F.2d 1311 (1974)
2 At the time of this hearing , Respondent indicated its desire to examine
one witness , Benjamin J . Walker, who was not available to testify for an
estimated period of 1 to 3 months because of illness and confinement in a
hospital for tubercular patients It was agreed by the parties that Walker's
testimony would be taken by deposition as soon as conveniently possible,
and a motion for continuance was granted for this limited purpose. There-
aftei, pursuant to specified appropriate procedures, a deposition from
Walker was taken on September 19, 1974, by order of the Administrative
Law Judge . Since no further evidence was necessary to be taken , the deposi-
tion was incorporated in the record and the hearing was closed as of the
latter date
I FINDINGS AND CONCLUSIONS
A. The Remedial Order Relating to Backpay
Respondent was found to have violated Section 8(a)(3) and
(1) of the Act (a) in refusing to reinstate, upon their uncondi-
tional application, strikers Veanes Jenkins, Elmer Thorton,
and Benjamin J. Walker on January 5, 5, and 6, 1971, respec-
tively; (b) in discharging Jenkins again on January 27, 1972;
and (c) in discriminating against 11 named employees who
returned to work on January 4, 1971, from a strike which
commenced in May 1968 by giving them less working hours
than the employees who did not go out on strike and those
who were hired between May 1968 and January 4, 1971.
B. Issues in the Computations of Backpay
The backpay specification was issued on May 20, 1974, and
Respondent's answer thereto was filed on June 3, 1974. At
the hearing, certain agreed amendments were made in the
specification and the answer , and are so reflected in the re-
vised amounts of backpay found herein. As to the computa-
tions contained in the specification, as amended, two issues
remain to be resolved.
(1) As derived from the enforced decision of the Board, the
backpay period in the specification for Jenkins, Thorton, and
Walker are not in question.3 The dispute concerns the com-
putations for these three discriminatees in the first quarter of
1971. The specification claims 12-3/5 weeks for Jenkins and
Thorton, and 12-2/5 weeks for Walker. Respondent contends
these figures should be reduced by 1/5 week in each case.
Counting 5 working days for each week within the respective
backpay period for the months of January through March,
there are 62 days for Jenkins and Thorton, or 12-2/5 weeks;
and 61 days for Walker, or 12-1/5- weeks. No basis is in-
dicated by General Counsel for the inclusion of an additional
day. These figures will therefore be revised accordingly.'
(2) Concerning the remaining 11 discriminatees, the speci-
fication provides the formula for computing gross backpay as
the average weekly hours worked during the backpay period
by all full-time nonstriking employees in the specific classifi-
cations. Respondent contends that the formula should be the
average weekly hours during the backpay for all full-time
employees in the specific classifications , regardless of
whether they were formerly strikers or nonstrikers. It argues
that there were just so many man-hours to be performed in
the workweek, and the sum of these hours actually worked
should be distributed equally among the former strikers and
nonstrikers. General Counsel asserts that this very issue had
been decided by the Board and the court, and that Respond-
ent is merely seeking to escape the consequences of its dis-
criminatory treatment of the returning strikem as already
determined. I agree. Thus, it was found in the Board's deci-
sion, inter alia, that the returning strikers were told that if
they "got through breaking out before [they] got 8 hours"
they should "hit the clock," while nonstrikers were permitted
3 Inadvertently Walker's backpay period was shown in the specification
to commence on January 5 instead of January 6 , 1971, at the hearing
General Counsel amended the computations to show 12-2/5 instead of
12-315 weeks of backpay in the first quarter of 1971.
4 The respective amounts for the one day are computed as $26 for Jenkins
and Thorton, and $19 for Walker.
404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to "help somebody else or piddle around his own truck" to
make extra hours. Therefore, as appears, Respondent deliber-
ately departed from the normal system of making assign-
ments on the basis of the available work, in order to discrimi-
nate against the returning strikers. Accordingly, I find that
the formula used in the specification was required by the
Board's decision, and is fair and reasonable.5
C. Mitigation of Backpay Liability
While the General Counsel has the general burden of
showing the gross amounts of backpay, Respondent bears the
burden of proof as to diminution of damages, e.g., from the
willful loss of earnings by failure of the claimant either to look
for or to keep an interim job substantially equivalent to that
from which he was unlawfully discharged.' In addition to
preparing and serving the backpay specification, General
i Counsel furnished Respondent with his investigative data,
including responses to questionnaires received from employ-
ers and reports of earnings from the Social Security Adminis-
tration; also, General Counsel assisted in making the dis-
criminatees available as witnesses. Respondent undertook to
examine only Jenkins and Walker concerning their interim
earnings and search for employment.
1. Jenkins
As revised in accordance with the findings above, the speci-
fication shows:
First Quarter 1971: Gross backpay due (12-2/5 weeks only)
582.7 hrs. at $2.80 = $1,632 , less interim earnings from
Readers Wholesale Distributors, Inc. of $997, leaves net
backpay of $635.
Second Quarter 1971: Gross backpay due, 611 hrs . at $2.80
_ $1,711 , less interim earnings from Readers Wholesale Dis-
tributors, Inc., of $1 ,010, Allstate Trucking Co., Inc., of $118,
and Hamilton 's Exxon Service Station of $72 , leaves net back-
pay of $511.
Third Quarter 1971: Gross backpay due, 582 hrs. at $2.80
$1,630, less interim earnings from Allstate Trucking Co.,
Inc., of $1 ,287, leaves net backpay of $343.
Fourth Quarter 1971: Gross backpay due (6-1/5 weeks
only), 277 . 5 hrs. at $2.80 = $777, less interim earnings from
Universal Terminal Whse. Company of $627, leaves net back-
pay of $150.
First Quarter 1972. Gross backpay due (9-1/5 weeks only),
429.6 hrs. at $2.94 = $1 ,263, less interim earnings from
Houston Popcorn & Supply Co. of $ 104, and Readers Whole-
sale Distributors , Inc., of $422, leaves net backpay of $737.
Second Quarter 1972: Gross backpay due (5 weeks only),
214.7 hrs. at $2.94 = $631, less interim earnings from Read-
ers Wholesale Distributors , Inc., of $434, leaves net backpay
of $197, or a total net backpay of $2,573.
The specification sets forth two backpay periods for
Jenkins-from January 5 through November 12, when he
was initially reinstated by Respondent, and from January 27,
5 See, e.g , American Manufacturing Company of Texas, 167 NLRB 520,
528-530 (1967).
6 Brown and Root, Inc., etc., 132 NLRB 486, 501, 540-543 (1961), enfd.
311 F.2d 447 (CA 8, 1963); L Posner, Inc, etc, 154 NLRB 202, 204
(1965).
1972, when -he was again unlawfully discharged, through
May 3, 1972, the second reinstatement.
Jenkins testified that, while he was at Readers earning
$2.10 an hour, he applied at Allstate for a truckdriving job
at $2.50 an hour. He was told by Allstate that he was needed
and advised that he would be called, but was given no definite
date. Upon such advice, he terminated his employment at
Readers on June 8. He commenced to work at Allstate on
June 18. During this interval, he made job applications with
two other specified companies.
A discriminatee is entitled to change from one interim job
to another in order to improve earnings or conditions, partic-
ularly where, as here, he had been holding less than substan-
tially equivalent employment.' In the process, however, he
is bound by the mitigation principle and may not intention-
ally incur any period of idleness. I cannot construe Jenkins'
testimony as indicating that, as of June 8, he was actually
hired by Allstate to begin work at an unspecified future date,
or if he was led to believe he would be hired, that he had any
basis for knowing when he would be put to work. No justifia-
ble reason appears to explain why he did not stay with Read-
ers until he had definite word from Allstate. Thus, as I find,
the risk he assumed in quitting Readers, which could have
involved, as it did, a substantial period of unemployment,
must be regarded as a failure to mitigate Respondent's liabil-
ity for backpay.g The period from June 8 to June 18 consists
of 8 working days. Therefore, the net backpay due Jenkins
will be reduced by the amount of $134, covering 64 hours at
$2.10 per hour, the rate he received at Readers.'
The specification deducts $1,287 from the gross backpay as
interim earnings of Jenkins while he was employed at Allstate
in the third quarter of 1971. This amount of $1,287 translates
into 515 hours at $2.50 an hour, or about 13 weeks, virtually
embracing the entire third quarter.10 General Counsel fur-
nished to Respondent the reply received from Allstate to a
questionnaire concerning the earnings and periods of employ-
ment of Jenkins." This document contains various remarks
in handwriting and in type apparently made by different
individuals. As observed, one entry reflects that Jenkins was
employed from June 18 to July 23, 1971, which is incomplete
and inaccurate, upon any perusal of the other notations made
on the exhibit and the computations used in the specification,
supra. Universal, the subsequent employer of Jenkins, sub-
mitted a reply (Resp. Exh. 3) stating that Jenkins was hired
on October 3, 1971. Jenkins was examined by Respondent's
counsel as follows:
Q. Now, Mr. Jenkins, let me hand you Respondent's
No. 2 and 3 which show, I will point out to you, that you
terminated at Allstate on July 23rd, '71, and went to
' See, e.g., Sam Tanksley Trucking, Inc., 210 NLRB 656 (1974)
8 E g, J. H. Rutter-Rex Manufacturing Company, Inc., 158 NLRB 1414,
1424 (1966)
9 Gary Aircraft Corporation, 211 NLRB 554 (1974)
10 There is no indication that Jenkins worked overtime during this quarter
Indeed, the unquestioned testimony, discussed infra, shows that available
work substantially declined toward the end of his period of employment
with Allstate. In the second quarter, he did some work for Hamilton's Exxon
on weekends while holding his full-time job at Allstate.
11 Resp. Exh. 2, copy of which is attached hereto as Appendix
[Omitted from publication ]
ALAMO EXPRESS, INC 405
work for Universal Terminal October 3, '71. Can you see
that, sir , those dates?
A. Yes.
Q. That is a period of over 2 months' difference. What
did you do those 2 months?
A. I was looking for a job.
The suggested 2 months of unemployment were nonexistent.
About 3 years had elapsed until the time of this hearing. It
is evident that Respondent's questions were grossly unfair,
and this clearly unsophisticated and unprepared witness was
placed at a decided disadvantage in attempting to be respon-
sive. The examination of Jenkins proceeded in depth as to his
diligence in seeking employment. Counsel's questions explic-
itly contained the assumption that Jenkins terminated at All-
state on July 23 and was next employed at Universal on
October 3. Jenkins testified that he left Allstate when "work
ran out," i.e., when he was afforded only 20 to 25 hours of
work a week. Explaining his search for work, Jenkins stated
that he responded to newspaper ads and similar sources, but
did not register with the Texas Employment Commission. He
refused to accept certain jobs he encountered because they
paid only $1.25 an hour or involved cafeteria work. Respond-
ent contends that, for the period from July 23 to October 3,
(a) Jenkins incurred a willful loss of earnings by quitting his
job at Allstate, and (b), because he did not diligently seek
employment, backpay should be diminished by the amount
that he could have earned had he remained in gainful employ-
ment with Allstate, namely 20 to 25 hours per week at $2.50
per hour.
1 t has already been shown that Jenkin's cessation of work
at Allstate did not occur on July 23, as Respondent persists
in arguing, and that his departure from Allstate took place
very shortly before he was hired at Universal on October 3.
Jenkins' testimony is unchallenged that, at the time he left
Allstate, the amount of work he was afforded at $2.50 an
hour had been curtailed from 40 hours to 20 to 25 hours per
week. In these circumstances, it is found that Jenkins was
reasonably justified in quitting a job at which earnings had
deteriorated to a level below that of suitable
employment," or indeed, as apparent here, below that of
the necessities of bare subsistence. It is further found that, in
the brief interval between the Allstate and Universal jobs,
Jenkins searched for suitable employment with sufficient dili-
gence and incurred no willful loss of earnings.
In a reply to a questionnaire sent in by Houston Popcorn
(Resp. Exh. 4), a handwritten notation on the form states:
"only worked from 2-10-72 to 2-22-72 and was off work
Feb. 17, 18, 22, 1972. Veanes went to Louisiana and came
back to his job at Alamo instead of to us."13 As to whether
he missed "any days work" at Houston Popcorn, Jenkins
testified, "Not that I can remember." Respondent's counsel
offered this exhibit, and it was admitted in evidence, without
the above-quoted notation and not "as a conflict of the wit-
ness' testimony because [Respondent is] convinced that he
12 A backpay claimant is not required to accept or continue employment
which is not suitable or not substantially equivalent to the position from
which he was discriminatorily discharged. See, e.g., N.LR.B. v. Oman Con-
struction Co. Inc, 316 F.2d 230 (C A. 6, 1963), enfg. 137 NLRB 111 (1962).
13 In fact, as shown in the specification, Jenkins went from Houston
Popcorn to Readers in the first quarter of 1972.
did not go back to work for Readers . . . on 2-22-72, and
didn't go to Louisiana." Respondent's contention is therefore
rejected "that backpay should be denied Jenkins for at-least
a three-day period during February 1972, during which time
he voluntarily held no job." In the previously described ex-
amination of Jenkins based on the stated premise that he was
unemployed from July 23 to October 3 between his jobs at
Allstate and Universal, Respondent inquired, "did you stay
in Houston or did you go somewhere else?" Jenkins re-
sponded that he "went out of town one time for three-or four
days." Upon further questions in pursuit of this line, Jenkins
indicated that he went to Louisiana to visit relatives on days
"through the week," during which he did not look for work.
There is little doubt that Jenkins was confused when con-
fronted with the improper assumption that he was out of
work during a 2-month period, while in fact he was employed
at Allstate. It is certainly not clear that Jenkins had lost any
pay for any workdays during which he might have been
absent from Allstate or, particularly, that he incurred an
unjustifiable loss of mitigable pay. Indeed, as shown, interim
earnings were deducted to Respondent's credit for essentially
the entire third quarter of 1971. Respondent has not met its
burden of proof to demonstrate that Jenkins "voluntarily
removed himself from the labor market by taking a trip for
personal reasons," an alternative contention presented in its
brief. In light of all of the foregoing, this contention is not
sustained.
Accordingly, as computed in the amended Specification, it
is found that Jenkins is entitled to the total net backpay, after
the deduction of $134, supra, of $2,439.
2. Walker
As revised in accordance with the findings above, the Spec-
ification shows:
First Quarter 1971. Gross backpay due (12-2/5 weeks
only), 582 hrs. $2 = $1,163, less interim earnings from Oscar
Ford (used cars) of $488, leaves net backpay of $675.
Second Quarter 1971: Gross backpay due, 618.8 hrs. $2 =
$1,238, less interim earnings from Lackland AFB Garbage
Contractor of $858, leaves net backpay of $380.
Third Quarter 1971: Gross backpay due (6 weeks only),
270 hrs. $2 = $540, less interim earnings from Lackland
AFB Garbage Contractor of $452, leaves net backpay of $88,
or a total net backpay of $1,143.
For Walker," the backpay period extends from January 6
through August 12, 1971. He earned $1.60 an hour as a
dockhand when he last worked for the Respondent prior to
the discrimination, and it is not disputed that his backpay rate
is $2 an hour, as shown above. In the first quarter of 1971,
Walker worked for Oscar Ford stripping wrecked cars for
salvage. He estimated that he earned $150 in each of the
months, or $450 for the quarter, which readily reconciles
with the amount of $488 deducted in the specification.
Within this period, he was also engaged with a partner in
mowing lawns, having the use of Oscar Ford's truck for such
purpose. He estimated that in this occupation he earned
$70-$75 in January, $45 in February, and nothing in March.
The General Counsel concedes the additional interim earn-
14 Deposed at a tubercular hospital on September 19, 1974, supra.
406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ings of $115. Walker further testified, and it appears in his
Social Security report that he was employed through Man-
power, Inc., in March, with earnings of $19.20. These
amounts of $115 and $19 will therefore be deducted from his
net backpay.15
The Social Security report also reflects that, during the first
three quarters of 1971, Walker worked for General Supply
Co., which is the same firm described in the specification as
Lackland AFB Garbage Contractor. His rate of pay on this
trash collection job was $1.60 an hour. As shown in the Social
Security report, Walker's earnings at General Supply were
$111.20, $857.89, and $452.16, respectively, in each of the
three quarters. However, the specification appropriately de-
ducts, such amounts only for the second and third quarters.
Although Respondent has not claimed such interim earnings
of $111.20 in the first quarter, nor has General Counsel ex-
plained the absence of this deduction from the specification
(apparently by inadvertence on the part of both), this sum
will be credited to Respondent. Thus, it is apparent that
Walker's job at General Supply actually began in March and
continued until sometime in the third quarter. Questioned by
Respondent, Walker initially estimated that he worked for
General Supply about 3 or 4 months, which essentially con-
forms with the Social Security report. He testified he had to
sever his job at General Supply, located at Lackland Air
Force Base, because he no longer had transportation to and
from work. The man who had regularly transported him lost
the use of his automobile by theft; Walker had no car of his
own and could not buy one; and the city buses did not Stop
reasonably close to the air base and, in any event, could not
get him to the job at his starting time of 6 a.m. In the third
quarter, Walker earned $452 at General Supply, or equivalent
to 7 base weeks of 40 hours at the rate of $1.60.16' This
period would account for virtually the entire amount of time
until he was reinstated by Respondent on August 13." In
any case, it is clear that Walker did not incur any willful loss
of earnings when he terminated his job at General
Supply.18 In the plain context of the foregoing, Respondent
plied Walker with a series of confusing questions which pro-
duced confusing answers. To illustrate:
Q. O.K. Do you remember how long a period of time
it was that you were out of work, when you lost your ride
at Lackland, before you went back to Alamo?
A.. .. let's see, well, I am going to say, I will say four
months, I was out of work four months there [prior to
August 12] . .. .19
Q. Why didn't you work steady through June, July
and August of `71 at General Supply?20
15 Respondent's alternate contention that Walker's backpay should be
denied for the entire first quarter because "he failed .. to search for
alternative work" is unsupported and rejected
16 His earnings of $858 in the second quarter show 13-1/3 base weeks of
solid employment during this entire -period.
17 At one point, Walker specifically indicated he was still working at
General Supply when he received word of Respondent's offer of reinstate-
ment.
15 See, e.g., international Trailer Company, Inc. and Gibraltar Industries,
Inc, 150 NLRB 1205, 1220 (1965)
19 With obvious inaccuracy, Respondent states in its brief that Walker was
"out of work approximately 4 months before he went back to work for
Respondent"
20 Walker had not so testified
A. Well, I really, you know, you don't keep up with
this things ....
Q. Did you register at the Texas Employment Com-
mission at any of this time?
A. Uh-huh.
Q. And when did you look for a job down there, what
month?
A. [Lengthy unresponsive reply indicating the only
available work through the employment commission re-
quired the use of an automobile or involved inadequate
bus transportation.]
Walker was further examined at some length concerning his
search for work, how he supported himself, and how much
it cost him to live (with details of his personal life), after his
termination of employment with General Supply. His re-
sponses show that he personally reported twice to the em-
ployment commission; at other times a "buddy" of his who
worked at the commission told him about certain available
jobs (which he declined for reasons which I find would have
been valid); in June he helped a friend in painting work for
which he received $25; and he was able to sustain himself
during this period through loans and assistance from his
family and from unspecified amounts he purportedly won
shooting pool and craps.21
As in Jenkins' case, supra, this intensive interrogation of
Walker by Respondent was patently unfair in the described
circumstances, and in particular view of the specific data
shown in the Social Security report and the specification. This
is a specialized proceeding which has the limited function of
determining the amounts of backpay which Respondent, as
the wrongdoer, must pay the discriminatees. It is certainly
not a forum broadly to be used by Respondent to confuse and
discredit the discriminatees, testifying as its own witnesses,
unless good reason otherwise appears, which it does not in
this case. As shown, Walker's answers stemmed directly from
Respondent's improper and unfair questioning, and can only
be considered in such light. Particular testimony so induced
cannot serve to support Respondent's arguments that Walker
was unemployed, when in fact he was not, and that he failed
to mitigate his backpay during such an alleged period of
unemployment. Thus, I find totally without merit the conten-
tions of Respondent in substance: (a) that Walker be denied
backpay from June to August 12, 1971, assertedly because he
"did not demonstrate a good faith effort" to find or accept
interim work, and assertedly because, "by his own admission,
did not seek employment, but only waited for the Respondent
to call him back to work";22 and (b) in the alternative, that
21 There were subsequent questions, e.g :
Q So in June of'71 you didn't look for a job and in July you didn't
look for a job, and you went back to Alamo in August the 12th, right?
A. That seems to be right, I think .. .
Q . . And you worked for [General Supply] up through May or so
7 1? '7i When did your ride peter out on you?
A. . Well, now, this, let's see, June or July, let's say June or July
when my ride played out.
22 The argument is contrary to the facts found. Even assuming a short wait
for reinstatement, after Walker received such notice, see J. H. Rutter-Rex
Manufacturing Company, supra at 1496 (Drake), where a claimant was
entitled to backpay for a 2-week period from the time of her application with
ALAMO EXPRESS, INC. 407
Respondent be credited with the amounts earned by Walker
for painting and an estimated sum for his gambling
winnings.23
the respondent employer until she was actually reinstated, although she did
not look for work elsewhere while she waited to be called.
23 Demonstrably and understandably , Walker's memory was maccurate
in the circumstances shown . I do not accept his testimony as to the timing
of his painting work, nor the fact, timing , or extent of his gambling winnings.
In any case, it cannot be found that Respondent has borne the burden of
proof as to such items . Any uncertainties in the record must be resolved
against the wrongdoer N.LR.B. v. Miami Coca-Cola Bottling Company,
360 F.2d 569 (C.A 5, 1966).
II. CONCLUSIONS AND RECOMMENDATIONS
In accordance with the foregoing, the amounts of $115,
$19, and $111 are deducted as interim earnings in the first
quarter of 1971, leaving the total net backpay for Walker in
the amount of $898.
[Recommended Order omitted from publication.]