Baddour, Inc.

National Labor Relations Board - Board Decisions

Aug 27, 1991

304 N.L.R.B. 681 (N.L.R.B. 1991)

681
304 NLRB No. 85
BADDOUR, INC.
1 The judge provided several grounds for concluding that the Respondent
failed to comply with the Board’s Order to reinstate Williams. In agreeing
with the judge that the Respondent has not satisfied the Board’s reinstatement
order, we find it unnecessary to rely on his statement that ‘‘assuming arguendo
that the cart controller position had been eliminated, this did not satisfy the
Board’s Order to return Williams to his former position or to a substantially
equivalent position if his former position no longer existed,’’ or his statement
that ‘‘the layoff was not based on seniority and Respondent has not sustained
its burden of proof to show that Williams would have been included in the
layoff.’’
2 The judge incorrectly listed that date as May 23, 1984.
3 263 NLRB at 1202.
Baddour, Inc. and Highway and Local Motor
Freight Employees, Local 667, affiliated with
International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America and Jerry Leonard Williams. Cases
26–CA–9846, 26–CA–9957, and 26–CA–10121
August 27, 1991
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On February 27, 1991, Administrative Law Judge
Lawrence W. Cullen issued the attached supplemental
decision. The Respondent filed exceptions and a sup-
porting brief, and the General Counsel filed cross-ex-
ceptions and a supporting brief and a reply to the Re-
spondent’s exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions, cross-exceptions, and
briefs and has decided to affirm the judge’s rulings,
findings, and conclusions as modified below.
We adopt the judge’s finding that Jerry Leonard
Williams is entitled to the amount of backpay set out
in the compliance specification.1 We also adopt his
finding that the sums earned by Larry Mayes in the
first and second quarters of 1983 as set out in the com-
pliance specification are proper. Contrary to the judge,
we find that Mayes is entitled to the travel expenses
he incurred when he moved from Memphis, Ten-
nessee, to El Paso, Texas, and then when he moved
back to Memphis from El Paso. We shall consider
these expenses as offsetting the interim earnings that
Mayes had in the relevant calendar quarters, and we
shall recompute the net backpay owed Mayes accord-
ingly.
Larry Mayes was illegally discharged by the Re-
spondent, which is located in Memphis, Tennessee, on
August 27, 1982. At that time, he was earning $6.50
per hour as a maintenance mechanic. He obtained in-
terim employment at Memphis State University as a
heating, ventilation, and air-conditioning mechanic on
November 1, 1982. His starting pay rate was $6.19 per
hour. Mayes left his job with Memphis State on No-
vember 6, 1983, while still earning $6.19 per hour, to
move to El Paso, Texas, to go to work with his brother
in his brother’s business called Better Business Prod-
ucts. The job in El Paso resulted in Mayes receiving
a $70-a-week increase in pay, a company car, and a
promise of a future opportunity to take over the busi-
ness. His moving expenses to El Paso were $895.80.
Mayes remained in El Paso until May 23, 19852 when
he returned to Memphis. He left El Paso as a result of
his difficulties in dealing with his brother’s wife who
was also involved with the business and ultimately dif-
ficulties with his brother and his observation of finan-
cial problems encountered by the business which sub-
sequently closed. Mayes had secured employment in
Memphis at Burnett Freeman before he left El Paso.
He was paid $7.15 per hour there. His moving ex-
penses back to Memphis were $921.63. Mayes eventu-
ally returned to work at Memphis State in the fourth
quarter of 1987.
In the compliance specification, the General Counsel
sought reimbursement for Mayes of his moving ex-
penses to and from El Paso and the judge denied those
expenses. Based on the reasoning set out in Big Three
Industrial Gas, 263 NLRB 1189, 1202–1203 (1982)
(regarding the backpay entitlement of John E. Coryell),
we shall reverse the judge and award those expenses.
In Big Three, the Board awarded moving expenses
to Coryell, who had resigned his interim employment
in Houston, Texas, and moved to California. Coryell
lived and worked in California before moving to Hous-
ton to work for Big Three. After Coryell was fired by
Big Three in August 1976, he secured interim employ-
ment in Houston which paid $7.77 per hour rather than
the $7.20 per hour he had earned at Big Three. He
worked at the interim employer for approximately 3
months and then quit ‘‘because he preferred California
living and because he knew he could find acceptable
employment there [footnote omitted].’’3 In fact,
Coryell found regular employment by the first quarter
of 1977 in California.
In the backpay proceeding, Big Three argued that
Coryell was not entitled to moving expenses to Cali-
fornia because he had resigned from a higher paying
interim job in Houston and had traveled to California
for personal reasons where his earnings were lower
than those he could have earned had he stayed at the
Houston interim job. The judge rejected Big Three’s
contentions. First, he found that although Big Three
had shown that the interim job had a higher hourly rate
than the one at Big Three, it was conceivable that the
employees at that job did not work the same amounts
of substantial overtime that Big Three’s employees did
and thus Big Three had failed to show ‘‘that Coryell’s
overall earnings [at the interim employer] would have
been at least equal to those he would have received’’
682 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4 Id. at 1202.
5 Id. at 1202.
6 Overtime apparently was not a factor in either job.
7 The Respondent does argue that Mayes’ quitting his initial interim employ-
ment at Memphis State was unjustified. We have already rejected that conten-
tion.
at Big Three.4 The judge rejected the argument that
Coryell willfully avoided offsetting interim earnings by
quitting the interim employer. Regarding Coryell’s de-
cision to return to California, the judge noted that this
in and of itself did not reflect a willful failure to seek
comparable employment. The judge found that, be-
cause of Coryell’s longstanding residency in Califor-
nia, he was familiar with the job markets there,
promptly obtained employment there, and eventually
obtained a regular, long-term position at which he
earned more than if he had stayed at Big Three. The
judge concluded that because Coryell obtained com-
parable work in California at comparable earnings that
the California job market was comparable to the Hous-
ton market and Big Three had thus failed to show that
Coryell unreasonably failed to mitigate Big Three’s
backpay liability by quitting the interim employer and
returning to California.
Applying the analysis in Big Three here, it is clear
that, as in Big Three, the Respondent has ‘‘failed in its
burden of showing that [Mayes’] overall earnings [at
the interim employer] . . . would have been at least
equal to those he would have received’’ at the Re-
spondent.5 Indeed, it is clear that those earnings were
less when Mayes left Memphis State than he would
have been receiving at the Respondent. His rate then
at Memphis State was $6.19 per hour for a 37.5-hour
workweek. At the Respondent, he had been earning
$6.50 per hour for a 40-hour workweek.6 Thus, in ac-
cord with Big Three, Mayes’ quitting his Memphis
State job did not establish a willful avoidance of off-
setting interim earnings. In Big Three, given the cir-
cumstances of Coryell’s decision to move to Califor-
nia, the judge next found that Big Three had failed to
show that Coryell unreasonably failed to mitigate its
backpay liability by moving to California. Similarly
here, the Respondent has failed to show that Mayes’
quitting his Memphis State job and moving to El Paso
constituted an unreasonable failure to mitigate the Re-
spondent’s backpay liability. Particularly is this so
when it is noted that the position that Mayes’ took in
El Paso paid even more than the job at Memphis State,
thus reducing the Respondent’s backpay liability from
that incurred when he worked at Memphis State.
In refusing to award Mayes his moving expenses to
El Paso, the judge found that Mayes’ position at Mem-
phis State was substantially equivalent to his original
position at the Respondent and it therefore was not
necessary for him to move to El Paso to secure sub-
stantially equivalent employment and that the Re-
spondent should not pay his moving expenses in his
doing so. In response, we note that although Mayes’
position at Memphis State may be considered substan-
tially equivalent employment to the extent that it
would defeat a claim that working there constituted a
willful loss of earnings, such a finding does not answer
the question before us here. Rather, based on Big
Three, the question is whether Mayes’ overall earnings
at Memphis State would have been at least equal to
those he would have received at the Respondent and
further what type of position he sought to pursue else-
where. Answering those questions as we have above,
we find Mayes is entitled to his moving expenses from
Memphis to El Paso.
Mayes remained in El Paso for approximately a year
and a half. We have noted above the reasons Mayes
offered for his decision to leave the position he had in
El Paso. The judge found that ‘‘Mayes’ actions in
seeking and finding new employment in Memphis
were prudent in view of the tenuous circumstances as
they developed in the El Paso position.’’ We agree
with this assessment. Further, while not a requisite to
our determination that Mayes is entitled to moving ex-
penses back to Memphis from El Paso, we note that
Mayes already had a job offer—at Burnett Freeman—
before he returned to Memphis. There is no argument
that by taking this particular position at Burnett Free-
man, Mayes engaged in a willful loss of earnings.7 Ac-
cordingly, we will also reimburse Mayes for his mov-
ing expenses from El Paso to Memphis.
Summarizing, we note that Mayes moved to El Paso
in the fourth quarter of 1983. He had interim earnings
of $3,560.52 from which we shall subtract his $895.80
in moving expenses yielding net interim earnings of
$2,664.72 and a net backpay due Mayes in that quarter
of $923.68. Mayes moved back to Memphis in the sec-
ond quarter of 1985. He had interim earnings then of
$3,984.06 from which we shall subtract $921.63 in
moving expenses for net interim earnings of $3,062.43
and net backpay due of $745.57 in that quarter. These
revisions to the backpay due Mayes results in a total
backpay of $9,693.53 plus interest due him.
ORDER
The Respondent, Baddour, Inc., Memphis, Ten-
nessee, its officers, agents, successors, and assigns,
shall pay to Larry Mayes $9,693.53 plus interest and
to Jerry Leonard Williams $32,890.63 plus interest.
John H. Goree, Esq., for the General Counsel.
William E. Hester, III, Esq. (Kullman, Inman, Bee, Downing
& Banta), of New Orleans, Louisana, for the Respondent.
Duria Jones, Jr., Organizing Agent, of Memphis, Tennessee,
for the Charging Party.
683BADDOUR, INC.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
LAWRENCE W. CULLEN, Administrative Law Judge. This
case was heard before me on March 6, 1990, at Memphis,
Tennessee. The hearing was held pursuant to a compliance
specification issued on May 4, 1989, by the Regional Direc-
tor for Region 26 of the National Labor Relations Board (the
Board) and following an Order of the Board issued on Janu-
ary 4, 1990, denying Respondent’s Motion for Partial Sum-
mary Judgment. The compliance specification, as amended in
the first amended compliance specification and as further
amended at the hearing is joined by Respondent’s answer
thereto filed May 24, 1989, and its answer to the first
amended compliance specification and as also amended at
the hearing and involves a dispute between the parties re-
garding the appropriate amount of backpay and expenses, if
any due discriminatees Larry Mayes and Jerry Williams.
On the entire record in this proceeding, including my ob-
servations of the witnesses who testified, and after due con-
sideration of the briefs filed by the General Counsel and
counsel for the Respondent, I make the following
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. BACKGROUND AND FACTS
On September 26, 1986, the Board issued its Decision,
Order, and Direction of Second Election in Baddour, Inc.,
281 NLRB 546, directing the Respondent to reinstate and
make whole employees Larry Mayes and Jerry Williams and
two other employees not here involved. The Board’s Order
was enforced by the United States Sixth Circuit Court of Ap-
peals by its Orders issued on August 15 and November 21,
1988. The controversies involving backpay and expenses in
this case are as follows:
A. Larry Mayes
Mayes was discharged by Respondent from his position as
a maintenance mechanic on August 27, 1982, and obtained
interim employment with Memphis State University as a
heating, ventilation, and air-conditioning mechanic on No-
vember 1, 1982, Mayes testified he was contacted by his
brother, the owner of Better Business Products located in El
Paso, Texas, offered a $70-a-week increase in salary and an
automobile with all expenses including insurance paid with
the possibility of later taking over the business, and left his
employment with Memphis State University on November 6,
1983, for the position with his brother’s firm. Mayes in-
curred expenses in the move to El Paso, Texas, for himself
and his family. Mayes continued to work for Better Business
Products until May 23, 1984, when he returned to Memphis
for a job with Burnett Freeman as a result of his difficulties
in dealing with his brother’s wife who was also involved
with the business and ultimately difficulties with his brother
and his observation of financial difficulties encountered by
the business which subsequently closed. Mayes also incurred
expenses in his move back to Memphis. After his return to
Memphis, Mayes subsequently returned to work with Mem-
phis State University.
Respondent is contesting the expenses incurred by Mayes
for his moves from Memphis to El Paso and from El Paso
back to Memphis. Respondent also contends that when
Mayes voluntarily terminated his employment with Memphis
State and moved to El Paso to obtain work in a business run
by a relative he abandoned his substantially equivalent em-
ployment with Memphis State. Respondent thus contends it
should not be held liable for expenses incurred by Mayes for
his moves to and from El Paso. Respondent also contends
that the backpay for the first and second quarters of 1983
should be reduced as Mayes did not work all the scheduled
hours available to him at Memphis State and would have
earned $3,018.11 during each of these quarters rather than
his actual earnings of $2,788.98 and $2,793.67 for these two
quarters. Respondent thus contends that if Mayes were not
available to perform work at Memphis State, he would not
have been available for all work with the Respondent and
thus the gross backpay figures for the first and second quar-
ters of 1983 should be reduced or the possible interim earn-
ings with Memphis State for those quarters should be in-
creased to reflect $3,018.11.
In support of its position Respondent cites NLRB v. Madi-
son Courier, 472 F.2d 1307, 1318 (D.C. Cir. 1972), wherein
the court discussed the rule for an alleged discriminatee’s en-
titlement to backpay as follows:
In order to be entitled to backpay, an employee must
at least make reasonable efforts to find new employ-
ment which is substantially equivalent to the position
[which he was discriminatorily deprived of] and is suit-
able to a person of his background and experience.
Respondent contends the job in El Paso was not com-
parable or substantially equivalent to Mayes’ original posi-
tion with Respondent and that Mayes’ decision to abandon
his job at Memphis State was not a reasonable one thus sup-
porting its argument that it should not be charged with any
loss such as expenses incurred by Mayes as a result of his
abandonment of his job with Memphis State. Respondent
also cites NLRB v. Mastro Plastics Corp., 354 F.2d 170, 174
fn. 3 (2d Cir. 1965), for the proposition that an alleged
discriminatee is not permitted to voluntarily abandon interim
employment without good reason. Respondent concedes that
the Board has ordered the payment of travel expenses in the
past but contends that those cases all involved situations
where the discriminatees could not obtain substantially
equivalent employment in the same general geographic area
and were forced to travel to other locations to obtain interim
employment which necessitated the incurrence of travel ex-
penses, whereas in this case the decision to leave his em-
ployment at Memphis State was an abandonment of his sub-
stantially equivalent employment for a job that was dissimi-
lar to his original position with Respondent and that Mayes’
decision was thus not a reasonable decision and Respondent
should not be penalized therefor.
The General Counsel contends, however, that Mayes made
diligent efforts to obtain interim employment during the
backpay period and was successful in his original position
with Memphis State and his subsequent positions with Better
Business Products in El Paso, Texas, and his return to Mem-
phis for a job with Burnett Freeman and his subsequent re-
turn to Memphis State where he was employed at the time
of the supplemental hearing. The General Counsel further
notes that Respondent’s argument with respect to Mayes’
684 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
travel expenses for his employment in El Paso, Texas, and
his subsequent return to Memphis ignores Respondent’s will-
ingness to take advantage of the higher level of pay received
on the El Paso job as opposed to the Memphis State Univer-
sity job but would deny the travel expenses necessary to
move to El Paso and also would deny the necessary travel
expenses to return to Memphis for another position when the
stability of the position in El Paso appeared in doubt.
My review of the evidence and the testimony of Mayes,
which I credit in its entirety, convinces me that Mayes in all
respects made reasonable and diligent efforts to obtain in-
terim employment. Mayes’ decision to move to El Paso to
take the job with his brother’s business with a $70-a-week
increase in pay a company car, and a promise of a future op-
portunity to take over the business does not appear to be an
unreasonable abandonment of his job at Memphis State Uni-
versity such as would disqualify Mayes from future backpay
if that were involved here. Electrical Workers IBEW Local
401 (Stone & Webster), 266 NLRB 870 (1983); Laborers
Local 1440 (Southern Wisconsin Contractors), 243 NLRB
1169, 1172 (1979).
However, I also find that although the travel expenses in-
curred by Mayes and his family for the move to El Paso
were incurred in his obtainment of this interim employment
they should not be deducted from the interim backpay earned
at the El Paso job. I also find that Mayes is not entitled to
expenses for his move back to Memphis to obtain a position
with Burnett. I credit Mayes’ unrebutted testimony that the
position in El Paso did not work out and appeared in jeop-
ardy as a result of the attitude of his brother’s wife and his
brother toward him and the general downturn in the business.
Although it appears that Mayes’ actions in seeking and find-
ing new employment in Memphis were prudent in view of
the tenuous circumstances as they developed in the El Paso
position, I do not find that Mayes is properly entitled to the
travel expenses listed by the General Counsel. In denying
Mayes the travel expenses to and from El Paso I do not find
that his decisions to move to and from El Paso were unrea-
sonable such as to cut off Respondent’s backpay liability.
However, it is clear that Mayes had a position at Memphis
State University which was substantially equivalent to his
original position with Respondent. Under these circumstances
it clearly was not necessary for him to move to El Paso to
secure equivalent interim employment and thus his incur-
rence of travel expenses for the trip to El Paso was the result
of his voluntary actions based on his individual choice and
to require the Respondent to underwrite these expenses
would go beyond the concept of a make-whole remedy and
would be punitive in nature. Similarly the move back from
El Paso to Memphis resulted at least in part from the original
voluntary move to El Paso and the Respondent should not
be required to underwrite the expense of this move. The
General Counsel has cited no case which would require an
employer to underwrite travel expenses in such a cir-
cumstance.
I find that the sums earned by Mayes during the first and
second quarters of 1983 are proper as set out in the compli-
ance specification. I find that the Respondent has failed to
establish that the lesser amount of earnings in these periods
as compared to other periods were the result of the failure
of Mayes’ to report for work during this period. I have con-
sidered the testimony of Joe J. Katterjohn, the assistant direc-
tor of personnel at Memphis State, concerning Mayes’ hav-
ing worked all available hours during the first and second
quarters of 1983 and the exhibits prepared to show the hours
available to Mayes during these periods. Although I credit
Katterjohn’s testimony which would tend to show that there
were more hours available to Mayes than Mayes actually had
earnings for, I also credit Mayes’ testimony that he worked
all hours available to him and that the earnings in the third
quarter in 1983 may have been higher than those in the ear-
lier quarters as the result of an additional pay period in the
third quarter. There was no evidence presented that Mayes
at any time failed to report for work as required during his
employment at Memphis and I find no basis for inferring that
he did. At most, the difference in earnings between the first
two quarters and the third quarter of 1983 gives rise to an
uncertainty as to why Mayes’ earnings were lower in the first
two quarters of 1983 and it is well established that in a back-
pay case all doubts are resolved against the wrongdoer who
created the situation giving rise to a need for backpay. Kan-
sas Refined Helium Co., 252 NLRB 1156 (1980).
B. The Backpay of Jerry Williams
The record shows that Williams was demoted from his job
as a cart controller to a consolidator in October 1982 and
that Williams sustained injury to his back while performing
as a consolidator and was off work on workmen’s compensa-
tion disability until April 11, 1983. Williams’ demotion to
the consolidator position was found to be violative of Section
8(a)(3) and (4) of the Act by an administrative law judge in
the underlying decision in this case which was subsequently
adopted by the Board and affirmed by the United States Cir-
cuit Court of Appeals for the Sixth Circuit. In the administra-
tive law judge’s decision adopted by the Board the Respond-
ent was ordered to offer to return Williams to his original
job as a cart controller or to a substantially equivalent posi-
tion if that position no longer existed. On April 11, 1983,
when Williams returned to his job as a cart controller from
his disability on workmen’s compensation he was permitted
to work for that morning but was then told after working that
morning that he was being laid off. Respondent contends this
was part of a general layoff occurring around that time
frame. Williams has not since been permitted to work for
Respondent or offered any substantially equivalent employ-
ment.
Respondent contends that the layoff of Williams was part
of a general layoff of employees which occurred in this pe-
riod, that the positions of cart controller and consolidator
were eliminated and subsequently incorporated into the work
of other employees as required, and that any violation of the
Act based on the layoff of Williams is time barred by Sec-
tion 10(b) of the Act as there has never been a charge filed
with the Board alleging the layoff as a violation of the Act.
The General Counsel contends that Respondent did not
comply with the original order in the underlying unfair labor
practice case, to return Williams to his original position as
a cart controller or to a substantially equivalent position if
that position no longer existed. In support of its position the
General Counsel called several employees (Michael Dean, a
former employee; Elton Hill, a current employee, and An-
thony Graham, a current employer all, of whose testimony I
credit), who testified that the cart controller duties were per-
formed by other employees who were assigned to this job
685BADDOUR, INC.
after Williams was demoted. These employees as well as
Williams also testified that there were several other positions
which Williams could have been trained on or have initially
performed such as maintenance apprentice, lift truckdriver, or
order picker. Williams testified he was licensed as a lift
truckdriver. Respondent concedes that seniority was not fol-
lowed in the general layoff that occurred and that there were
several jobs that did not require training or that new employ-
ees without any experience were routinely trained on by on-
the-job training. Respondent’s witness, Vice President Larry
Hunsucker, also conceded that he was relying on an elimi-
nation of a job classification rather then his observations of
the cart controlling process in his testimony that the cart con-
troller position had been eliminated. Respondent contends
that the duties of cart controller were assimilated by a num-
ber of its other employees as a result of the consolidation of
its jobs coincidental with its reduction of its work force by
the general layoff occurring in the spring of 1983 which it
contends was economically motivated.
In addition to this issue, the Respondent contends that, as-
suming arguendo the ‘‘layoff’’ of Williams were found to
have been violative of the Act, Williams is not entitled to
backpay for various periods of unemployment between April
1983 and the present because of his failure to make a good-
faith effort to obtain employment which would have miti-
gated the loss of income sustained by him. In this regard it
should be noted that once the General Counsel comes for-
ward and shows the calculation of the gross backpay in a
backpay case, the Respondent has the burden of going for-
ward and establishing that the General Counsel’s calculations
are inaccurate or that there is another reason mitigating
against the award of backpay or a portion thereof. Respond-
ent does not dispute the formula or calculations submitted by
the General Counsel but rather contends that backpay should
not be awarded to Williams in whole or in part because of
willful idleness on his part and his failure to make a diligent
effort to find or retain work. Initially Respondent points to
the lengthy period of unemployment sustained by Williams
from April 1983 to the third quarter of 1984 and to other pe-
riods of unemployment and a termination of employment by
an interim employer as evidence that Williams did not make
a reasonable good-faith search for work and that when he did
find work he either abandoned it or was terminated for cause
because of his own malfeasance. Respondent presented no
evidence to sustain its burden in this regard but rather relied
on the length of the unemployment periods and its cross-ex-
amination of Williams who testified at length concerning his
difficulties and attempts to find employment during the back-
pay period. Williams testified that on the advice of his attor-
ney that he could be discharged and precluded from future
possible workmen’s compensation benefits, if he did not dis-
close his previous back injury, he put down his previous
back injury on applications he filed for employment. He tes-
tified that he made numerous inquiries and applications for
employment in an industrial area in Memphis and at fast
food outlets to no avail and it was not until he ceased report-
ing his back injury on his employment applications that he
found work. As a result of difficulty in obtaining employ-
ment in the Memphis area he went to Atlanta, Georgia, at
the suggestion of his sister where he located employment at
a tire center where he was required to change heavy truck
tires which aggravated his back injury and he thereafter left
that job. He subsequently returned to Memphis. He also
worked as a guard in Memphis but was unable to get to cer-
tain of the jobs because of transportation problems as he did
not have an automobile and the cost of commuting across
town for the minimal wages he received on these jobs. He
also worked at one cleaning establishment which closed and
another cleaning establishment where he was discharged be-
cause of his supervisor’s dissatisfaction with the method he
used in cleaning a carpet.
C. Analysis
Initially I find that the Respondent failed to comply with
the Board’s Order in the underlying unfair labor practice case
to return Williams to his job as a cart controller or to a sub-
stantially equivalent position. I find that Respondent’s actions
in permitting Williams to return to his cart controller position
for all of one morning and then terminating him on the
ground that this job had been eliminated constituted no offer
of reinstatement whatsoever, Middle Earth Graphics, 283
NLRB 1049 (1987). I find it obvious from the credited testi-
mony of other employees of Respondent that the job of cart
controller was not actually eliminated but rather that other
employees were transferred either on a full- or part-time
basis to this position to perform the work. Furthermore, as-
suming arguendo that the cart controller position had been
eliminated, this did not satisfy the Board’s Order to return
Williams to his former position or to a substantially equiva-
lent position if his former position no longer existed. I find
based on Williams’ testimony and the testimony of other em-
ployees and former employees called by the General Counsel
in this case that there were substantially equivalent positions
to which Williams could have been returned if the Respond-
ent had complied with the Board’s Order in this case such
as lift truckdriver, maintenance apprentice, or order picker.
Williams was a licensed lift truckdriver and the evidence as
conceded by Respondent’s vice president of personnel, Don
Eure, disclosed that newly hired employees are routinely
hired into these positions and trained on the job. Moreover
the layoff was not based on seniority and Respondent has not
sustained its burden of proof to show that Williams would
have been included in the layoff. Accordingly I find that Re-
spondent failed to comply with the order to restore Williams
to his former position or to a substantially equivalent posi-
tion if this position no longer existed. I reject Respondent’s
10(b) defense as I find it was unnecessary for a separate
charge to be filed for the ‘‘layoff’’ of April 11, 1983, of
Williams as I find Respondent’s permitting Williams to re-
turn to his cart controller position for all of one morning be-
fore telling him he was laid off was no offer of reinstatement
at all and did not comply with the Board’s Order to return
Williams to his former position or to a substantially equiva-
lent position if his former position no longer existed.
With respect to the amount of backpay due Williams, I
find that the calculations of backpay as amended at the hear-
ing submitted by the General Counsel were proper and
should be awarded to Williams in that amount. Initially, I
find on the basis of the foregoing credited testimony and the
evidence as a whole that Williams made a reasonably dili-
gent search for work during the backpay period and was suc-
cessful in obtaining work during much of this period not-
withstanding his back injury and other setbacks which oc-
curred. I credit Williams’ testimony that he made earnest ef-
686 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 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 objec-
tions to them shall be deemed waived for all purposes.
2 In accordance with our decision in New Horizons for the Retarded, 283
NLRB 1173 (1987), interest on and after January 1, 1987, shall be computed
at the ‘‘short-term Federal rate’’ for the underpayment of taxes as set out in
the 1986 amendment to 26 U.S.C. § 6621. Interest on amounts accrued prior
to January 1, 1987 (the effective date of the 1986 amendment to 26 U.S.C.
§ 6621), shall be computed in accordance with Florida Steel Corp., 231 NLRB
651 (1977).
forts to obtain employment during this backpay period. See
Electrical Workers IBEW Local 401 (Stone & Webster), 266
NLRB 870 (1983); Keller Aluminum Chairs Southern, 171
NLRB 1252, 1257 (1968); Fort Lock Corp., 233 NLRB 78
(1977); NLRB v. Brown & Root, 311 F.2d 447 454 (8th Cir.
1963).
II. CONCLUSIONS AND RECOMMENDATIONS
The backpay figures for Mayes and Williams set forth in
the specification by the General Counsel as amended at the
hearing are correct and Respondent has failed to meet its
burden of proof in attacking their accuracy. According to my
calculations from the specifications as amended at the hear-
ing, the net backpay due Mayes is $7,876.16 plus interest
and the net backpay due Williams is $32,890.63 plus interest.
Mayes is not entitled to expenses for the trips of himself and
his family to and from El Paso, Texas.
On the basis of the foregoing findings of fact and conclu-
sions of law and on the entire record in this case, I issue the
following recommended1
ORDER
The Respondent, Baddour, Inc., Memphis, Tennessee, its
officers, agents, successors, and assigns, shall pay to Larry
Mayes $7,876.10 and to Jerry Leonard Williams $32,890.63,
both awards with interest thereon as set forth in New Hori-
zons for the Retarded, 283 NLRB 1173 (1987).2