Best Glass Co.

National Labor Relations Board - Board Decisions

Jul 31, 1986

280 N.L.R.B. 1365 (N.L.R.B. 1986)

BEST GLASS CO.
Searle Auto Glass , Inc. d/b/a Best Glass Company
and Bruce W. Haase . Case 31-CA-10124
31 July 1986
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS JOHANSEN , BABSON, AND
STEPHENS
On 30 September 1982 the National Labor Rela-
tions Board issued its Decision and Order" in the
above-entitled proceeding, finding that the Re-
spondent had violated Section 8(a)(1) of the Na-
tional Labor Relations Act by discharging employ-
ee Bruce W. Haase for engaging in protected con-
certed activities and directing the Respondent,
inter alia, to reinstate Haase and make him whole
for any loss of earnings suffered as a result of the
Respondent's unfair labor practice.
On 4 June 1985 the Board's Decision and Order
was enforced by the United States Court of Ap-
peals for the Ninth Circuit.2
On 21 March 1986 Administrative Law Judge
Michael D. Stevenson issued the attached supple-
mental decision in this proceeding. The Respond-
ent 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,
findings, 3 and conclusions and to adopt the recom-
mended Order as modified.
The Respondent excepted to the judge's reim-
bursement for medical expenses, contending that
the General Counsel failed to establish that the
claimed medical expenses, were covered by the ap-
plicable plans. Although we agree with the judge
that the medical expenses incurred in the third
quarter of 1983 and the first quarter of 1984 are re-
imbursable, we agree with the Respondent that the
medical expenses incurred in the third quarter of
1980 are not reimbursable.
The 1980 expenses were incurred when Haase's
wife had gallbladder surgery. During this period
the Respondent's employees were covered by the
264 NLRB 1313 (1982).
• 762 F.2d 769
In agreeing with the judge that the backpay period runs from 16
June 1980 to 25 July 1985 because Haase's unlawful discharge caused him
to lose the opportunity to become a permanent employee, we do not rely
solely on Haase 's foreman's statement that the Respondent hoped to keep
Haase on as a permanent employee. We also rely on the evidence show-
ing that the Respondent's work volume doubled after Haase's discharge,
that Haase was told by his foreman that he was a "good" employee, and
that the number of the Respondent's employees doing the type of work
performed by Haase increased
1365
Union Health and Welfare plan.4 At the hearing,
however, the Board's compliance officer admitted
that he did not have a complete copy of the Union
Health and Welfare plan and could not compare
the incurred expenses with the plan's covered ex-
penses .5 Thus, the General Counsel did not show
that the Union Health and Welfare plan then in
effect covered dependents or that the specific ex-
penses involved here (gallbladder surgery) was
covered. Therefore, there is no evidence to estab-
lish that, but for the unlawful discrimination, the
incurred medical expenses would have been cov-
ered under the Union Health and Welfare plan.6
Accordingly, the medical expense claimed for the
third quarter of 1980 is disallowed.?
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Searle Auto Glass, Inc. d/b/a Best Glass
Company, Las Vegas, Nevada, its officers, agents,
successors, and assigns, shall take the action set
forth in the Order as modified.
Substitute the following as paragraph 2.
"2. The Respondent shall also pay to Bruce W.
Haase the sum of $2540 as reimbursement for the
payment of dependent medical expenses."
4 Subsequent to the 30 June 1981 expiration of the collective-bargain-
ing agreement and its provision requiring the Respondent to contribute to
the Union Health and Welfare plan, the Respondent obtained separate
health insurance for its employees.
" The compliance officer did have a copy of the Respondent 's plan,
which was in effect at the time the 1983 and 1984 expenses were incurred
and confirmed that these expenses were covered by the plan . This plan
was admitted into evidence as R. Exh. 9.
Although the General Counsel did establish that the Union Health
and Welfare plan was in effect at the time 1980 expenses were incurred
and that the claimed expenses were, in fact , incurred , this showing was
insufficient to meet the General Counsel 's prima facie burden . See Famet
Inc., 222 NLRB 1180, 1183 (1976).
r The Respondent also excepted to the reimbursement of the 1980
medical expenses because Haase 's church had paid for the operation and
reimbursement would constitute a windfall for Haase . Since we disallow
the 1980 medical expense based on other grounds we do not address this
exception.
Arthur Yuter, Esq., for the General Counsel.
Francis J. Morton, Esq., of Las Vegas, Nevada, for the
Respondent.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
MICHAEL D. STEVENSON, Administrative Law Judge.
On 4 February 1982 Administrative Law Judge James
M. Kennedy issued his decision in the above-captioned
case, finding that Respondent did not violate Section
8(a)(1) of the Act by, on 16 June 1980,1 discharging em-
' All dates refer to 1980 unless otherwise indicated.
280 NLRB No. 159
1366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployee Bruce W . Haase. On 30 September 1982 the
Board, Member Hunter dissenting, reversed Judge Ken-
nedy and found that Respondent did violate Section
8(a)(1) of the Act by about 16 June, discharging Haase
(264 NLRB 1313) (G.C. Exh. la).2
The Board's Order directed Respondent to offer Haase
reinstatement to his former or substantially equivalent
position, and to make Haase whole for any loss of earn-
ings he may have suffered as a result of the discrimina-
tion against him. More specifically , the Board directed
that Haase was to receive payment "of a sum equal to
what he would have earned from the date of his dis-
charge to the date of a bona fide offer of reinstatement,
less net interim earnings during that period . Backpay
shall be computed in the manner prescribed in F. W.
Woolworth, 90 NLRB 289 (1950), with interest computed
in the manner set forth in Florida Steel Corp., 231 NLRB
651 (1977). See generally Isis Plumbing Co., 138 NLRB
716 (1962)."
A dispute having arisen over the amount of backpay
due the claimant under the Board's Order described
above, on 24 October 1985 the Regional Director for
Region 31 of the National Labor Relations Board issued
a backpay specification and notice of hearing (G.C. Exh.
ic). I heard the matter in trial on 17 December 1985 in
Las Vegas, Nevada.
At the conclusion of the hearing, the General Counsel
made a closing argument in lieu of a posthearing brief.
Conversely, Respondent waived its closing argument and
filed a posthearing brief. Both the closing argument and
brief have been carefully considered.
FINDINGS AND CONCLUSIONS
Based on the record as a whole , including my observa-
tion of the witnesses and their demeanor, I make the fol-
lowing finding and conclusions.
1. ISSUES
A. What is the appropriate backpay period?
B. What is the appropriate formula for calculating the
gross backpay amount?
C. What effect, if any, does a strike have on Respond-
ent's backpay obligation when the strike occurred subse-
quent to Haase 's unlawful discharge and caused a repre-
sentative employee to quit his job?
D. Is Respondent required to reimburse Haase for de-
pendent medical expenses when some of the expenses
were paid by money from Haase's church and other ex-
penses were allegedly incurred outside the period of enti-
tlement?
E. Is Respondent required to reimburse Haase for
moving and traveling expenses incurred when Haase left
Las Vegas to seek work in an area where relatives lived?
U. PRELIMINARY MATTERS
This case presents several difficult issues for decision.
It is therefore well to begin by noting two areas on
2 The Board's Order was enforced by the U.S. Court of Appeals for
the Ninth Circuit in a decision issued on 4 June 1985: NLRB v. Best Glass
Co., 762 P.2d 769.
which the parties agree. Respondent accepts the General
Counsel's statement of Haase 's interim earnings (Tr. 281).
And Respondent accepts the General Counsel's computa-
tions regarding form.
I should also note that prior to hearing , the General
Counsel filed a Motion for Partial Summary Judgment
(G.C. Exh. 1f). After argument on the day of hearing, I
denied this motion (Tr. 17). I now regard the motion as
moot.
Also prior to hearing, the General Counsel was per-
mitted to amend Appendix A to' the backpay specifica-
tion as follows: 2d quarter 1981 Col. 5, Interim Earnings
& Employer, change $960 Mintie to $2,515. 16; change
Col. 7, Net Interim Earnings for the same quarter from
$3,527.40 to $5,082.56; change Col. 8, Net Backpay for
the same quarter from $2,619.96 to $1 ,064.80, and change
Col. 9, Total Net Backpay from $31,426.29 to $29,871.13.
According to the General Counsel , Respondent current-
ly owes $29,871.13 to Haase plus appropriate interest
computed in accord with the Board's formula . In addi-
tion, the General Counsel claims that two other sums are
due and owing : $772 in pension fund payments to be
made by Respondent to the Glazier & Glassworkers Pen-
sion Trust Fund on behalf of Haase (G.C. Exh. lc, App.
B) and $5,447.51 in dependent medical expenses to be
paid to Haase (G.C. Exh. ic, p. 5).3
M. ANALYSIS AND CONCLUSIONS
Before turning to the specific issues in this case, I
begin with some general principles of law which govern
all backpay cases. In Midwest Motel Management Corp.,
278 NLRB 421 (1986), the Board affirmed a decision of
Judge McLeod, who wrote as follows regarding backpay
cases:
The Supreme Court stated long ago in Phelps Dodge
Corp. v. NLRB, 313 U.S. 177, 197 (1941):
Making the workers whole for losses suffered
on account of an unfair labor practice is part of
the vindication of the public policy which the
Board enforces.
A Board backpay order , the Supreme Court has
stated, "should stand unless it can be shown that it
is a patent attempt to achieve ends other than those
which can be fairly said to effectuate the policies of
the Act." NLRB v. Seven-Up Bottling Company of
Miami, Inc., 344 U.S. 344, 346, 347 (1953). The Su-
preme Court has also recognized that "the computa-
tion of the amount due may not be a simple matter.
... Congress made the relation of remedy to
policy an administrative matter, subject to limited
judicial review, and chose the Board as its agent for
the purpose." Nathanson v. NLRB, 344 U.S. 25, 29-
30 (1952). In exercising the broad discretion granted
to it, the Board, with court approval, has consistent-
ly applied the principle stated in New England Tank
Industries, Inc., 147 NLRB 598, 601 (1964):
The General Counsel 's amended Appendices A and B are repub-
lished as Appendices A and B to this decision.
BEST GLASS CO.
[W]hile the general burden is on the General
Counsel to establish for each discriminatee the
loss of pay which has resulted from Respondent's
established discriminatory conduct, i.e., the gross
backpay over the backpay period, the burden of
proof is on Respondent to show diminution of
that amount whether such diminution results
from the claimant's willful loss of earnings, or
from the unavailability of a job at Respondent's
operation for some reason unconnected with the
discrimination.
The fording of an unfair labor practice is "presumptive
proof that some backpay is owed." NLRB v. Madison
Courier, 472 F.2d 1307, 1316, 1318 (D.C. Cir. 1972). See
also NLRB v. Reynolds Pallot Co., 399 F.2d 668, 669 (6th
Cir. 1968); Dayton Tire Co. v. NLRB, 591 F.2d 566, 571
(10th Cir. 1979).
A. The Appropriate Backpay Period
The General Counsel contends that the appropriate
backpay period runs from 16 June, date of Haase's dis-
charge, to 25 July 1985, when Respondent made a
formal offer of reinstatement. However, for the last five
quarters of that period-3d/1984 through 3d/1985-
Haase 's interim earnings exceeded backpay. Accordingly,
no backpay is claimed. Further, no pension payments are
claimed after 2d/1981 because Respondent no longer had
a collective-bargaining relationship with the Union after
this period. Finally, no medical expenses are claimed
after lst/1984.
To support his claim for backpay and other reimburse-
ments in this case, the General Counsel called James
Middleton as a witness . An NLRB field examiner as-
signed to the compliance section, Middleton made the
calculations in the instant case. Middleton testified that
he computed the backpay period by reasonably interpret-
ing the Board's unfair labor practice decision in this case.
Because I have no authority to alter facts found by the
Board,' I turn to the Board's decision to consider it in
light of the General Counsel's contentions and various
alternative arguments raised by Respondent.
The Board found that prior to his unlawful discharge,
Haase had worked for Respondent as a residential glazier
during four separate time periods . Beginning in the
summer 1979, Haase first worked for 2 days; in Septem-
ber 1979, Haase worked for a week; in late November
1979, Haase was again hired and continued working until
14 February. At this time , the North Las Vegas store
where Haase worked was temporarily closed and all em-
ployees working there were discharged. On 9 June
Haase was rehired for the fourth time as a replacement
for an employee named Ed Short, who had gone on va-
cation. At footnote 4 of its decision, the Board noted:
"At the time of his [last] hire, Haase was told by Shop
Foreman Steve Pence that Respondent `hoped' to keep
Haase as a permanent employee." On 16 June, Respond-
ent unlawfully discharged Haase.
Respondent first argues (Br. p. 2) that Haase would
have been discharged by Respondent's chief executive
4 Flom Construction Co., 149 NLRB 583, 584-585 (1964).
1367
officer William Krummel on 16 June for legitimate rea-
sons, and is not therefore entitled to any backpay. This
contention must be quickly rejected. At page 6 of the
Board's decision, it labeled Respondent' s claim of a le-
gitimate reason for Haase 's discharge as pretextual.
Krummel testified in the original hearing as he did in the
instant case . The Board rejected his testimony on this
point, and I must do the same.5
Moreover, Respondent's claim is not consistent with
the principle of law cited above, that the fording of an
unfair labor practice is presumptive proof that some
backpay is owed.
As an alternative argument, Respondent contends that
because Haase was hired as a vacation replacement for
Short, Haase would have been discharged on Short's
return from vacation on 10 July (Br. p. 3, R. Exh. 8). I
assume without finding that Short would have returned
from vacation on 10 July. However, in light of the
Board's footnote 4, quoted above, I ford that Haase prob-
ably would have been kept on. The Respondent' s unlaw-
ful conduct deprived Haase of the opportunity to
become a permanent employee, as Foreman Pence had
envisioned.
I note further that when the strike started on 3 July
1981, Pence left Respondent's employ along with a
number of other employees. This fact does not affect my
view of the backpay period because Respondent has not
shown that Haase 's continued employment would have
been dependent on Pence's continued employment.
In John Cuneo, Inc., 276 NLRB 75 (1985), the discri-
minatee , Brite, had been a laid-off permanent employee
of another employer when hired by Respondent. Re-
spondent argued that Brite was not entitled to backpay
for the period after he was recalled by his former em-
ployer. In rejecting the claim that Brite was only a tem-
porary employee-even though treated by Respondent
as a permanent employee-the Board held that Respond-
ent did not show that Brite would have left its employ
and returned to the prior employer, had Respondent not
discharged him unlawfully. Brite, like Haase in the
present case, could have remained with Respondent in-
definitely.
Another important case is Nelson Mfg. Co., 138 NLRB
883, 884 (1962). There an employee was hired as a tem-
porary employee, but the superintendent intended to
keep him on as a permanent employee. The Board or-
dered reinstatement and full backpay.6
As still another alternative argument (Br. p. 4), Re-
spondent argues that about 3 July 1981 when a strike oc-
curred, a lockout also occurred, "followed by a refusal
on the part of Respondent to rehire bargaining unit
members ." According to Krummel, Walt Featherstone,
Respondent's owner and then chief executive officer, de-
cided that anyone on strike had voluntarily terminated
employment and would not be hired back. In the mind
6 I regard the Board's finding as res judicata on the issue.
6 Compare Circle Bindry, Inc, 232 NLRB 1185 (1977), in which an em-
ployee was hired on a temporary basis and the employer specifically
stated at the hiring interview that the employee was being hired on a 30-
day trial basis and the employer was not sure it could use the employee's
services indefinitely
1368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of witness Krummel , this decision constituted a lockout.
It is unnecessary in this case to define the rights of eco-
nomic and unfair labor practice strikers to be reinstated
to their former jobs once the strike or their participation
in the strike has concluded . It suffices to say generally
that employees who strike do not thereby forfeit their
jobs, even when management says so . What Krummel
has described in his testimony is not a lockout , but a pos-
sible unfair labor practice. In any event, I find the back-
pay period continued through the term of the strike. This
issue, however, must be re-examined below, in light of
the representative employee formula used by the General
Counsel in this case.
Finally, Respondent argues that because the General
Counsel is not seeking backpay for 1985, the backpay
period must have ended on 31 December 1984. This ar-
gument has no practical significance in this case and I
note that the General Counsel also seeks no backpay pay
for the third and fourth quarters of 1984. To be consist-
ent, Respondent should claim that the backpay period
ended on 30 June 1984 . A consistent argument , even if
made, would not be a valid argument . It simply does not
follow that because in one quarter interim earnings
exceed backpay, the backpay period is terminated. Surely
it often happens that a discriminatee 's interim earnings
may decline in subsequent quarters and therefore back-
pay would be due.7
B. The Appropriate Backpay Formula
An administrative law judge considering conflicting
backpay formula arguments must determine the most ac-
curate method of determining backpay amounts. J. S. Al-
berici Construction Co., 249 NLRB 751 (1980); American
Mfg. Co., 167 NLRB 520 (1967). Coupled with this obli-
gation, however, is the fundamental notion that uncer-
tainties will be assessed against the wrongdoer. NLRB v.
Miami Coca-Cola Bottling Co., 360 F.2d 569 (5th Cir.
1966). Thus, the Board has rejected theoretical formulas
for determining backpay offered by respondents which,
while internally consistent , did not reflect the realities of
the events involved. See, e.g., Fruin-Colnon Corp., 244
NLRB 510 (1979). It follows that I should carefully con-
sider the proposed formulas and calculations offered by
each party and determine what formula and what calcu-
lations produce the most accurate gross backpay amount,
keeping in mind that uncertainties must be resolved
against Respondent whose illegal conduct in terminating
the backpay claimant produced both the uncertainties at
issue and the injury the instant litigation is intended to
remedy.
In the present case, the General Counsel contends that
the most equitable formula is the so-called representative
employee formula. As explained, in Teamsters Local 164,
274 NLRB 909 (1985), this formula means nothing more
than assuming that an unlawfully discharged employee
would have earned the same wages as a similarly situated
Net backpay due Haase is computed on a quarterly basis during the
period of discrimination in accordance with the formula set forth in F.
W. Woolworth Co., 90 NLRB 289, 292-293 (1950) This formula has re-
ceived subsequent approval from the Board and courts . See Carter-Jones
Lumber Co., 198 NLRB 1036 (1972); NLRB v. Seven- Up Bottling Co., 344
U.S. 344 (1953).
employee who did work.8 The reason the General Coun-
sel did not use the more common method of taking
actual earnings of an employee in a representative period
prior to his discharge and then projecting these earnings
into the backpay periods is because Haase 's prior em-
ployment was too sporadic to yield an equitable result.
Claiming the General Counsel 's formula yields an
unfair result , Respondent has prepared a "formula" by
which it computes Haase's pretermination work hours as
a percentage of total work hours available . Then Re-
spondent takes that percentage , 13.8, and projects it into
the entitlement period to compute the amount of earn-
ings that Haase would probably have earned subsequent
to 16 June (Br. p. 5). Thus, Respondent admits to owing
Haase $1,622 .77 in net backpay . I find that Respondent's
formula does not apply to the instant case : The Board's
finding at footnote 4 of its earlier decision clearly indi-
cates to me the likelihood that Haase would have contin-
ued to work after 16 June, on a full-time basis. This con-
clusion is also supported by the record in the present
case. For example, Respondent's chief executive officer
Krummel was asked the following question and gave the
following answer on re -direct:
Q. MR. MORTON: Has the volume of your work
increased at any time since Mr. Haase's termination?
A. Yes sir . It's doubled-more than doubled.
[(Tr. 278-279).]10
I also find that the representative employees relied on by
the General Counsel are in fact representative of the
hours Haase probably would have worked and the earn-
ings Haase probably would have made if he had not been
terminated . I turn now to consider the three representa-
tive employees noting that none testified.
For the period 16 June to 30 June 1981, the General
Counsel relied on the hours of Darrell Benninger who
was hired to work in the North Store, 4 days after Haase
was terminated . Before his discharge, Haase had worked
a total of 532 hours of which 75.69 percent were residen-
tial hours and 11.31 percent were journeyman hours. The
latter is a higher pay classification according to the then
existing collective-bargaining agreement . (G.C. Exh. 6.)
Benninger was hired as a B worker, i .e., a lower classifi-
cation than either journeyman or residential, although his
pay was comparable to Haase's . To compute Haase's
gross backpay, Middleton took Benninger's total quarter-
ly hours and computed them into the 75.69 percent and
11.31 percent of Haase's hours referred to above; then
8 See also C & D Coal Co., 93 NLRB 799, 803 (1951). The formula has
also received judicial approval See NLRB v. S F Nichols of Ohio, 704
F.2d 921 , 924 (6th Cir. 1983).
o This method was recognized with Board approval in Chef Nathan
Sez Eat Here, Inc., 201 NLRB 343, 345 (1973), as "the most fair, suitable
and equitable formula to employ , and [one that) should not be departed
from in the absence of special circumstances "
10 According to the transcript , Mr. Krummel went on to say that the
number of people who performed the same kind of work as Haase did
decreased (Tr 279). This appears to be a mistake in the transcript. Based
on the surrounding coloquy between myself and counsel and what Re-
spondent's attorney stated he was attempting to show, the work should
be "increased."
BEST GLASS CO.
Middleton multiplied these two totals times the rates of
pay for the two classifications.
According to the Benninger payroll record (R. Exh.
4), and the testimony of Krummel , Benninger left his job
voluntarily about 30 June 1981 due to the strike.
About 1 July 1981 Respondent hired Thomas Norris
to work at the North Store as a glass installer. Norris
was hired at a lower rate of pay than other employees
because Respondent had lowered employee pay once the
strike began . Accordingly , Middleton varied his formula
slightly to use Norris ' gross earnings . (This method as-
sumes Haase's rate would have been lowered like those
of other employees .) Norris' hours were used until 30
September 1982 . Norris was terminated about 2 Decem-
ber 1982 for poor work. (R. Exh. 6.)
Beginning in the fourth quarter of 1982, Norris was re-
placed by employee Mark Gluck who had been working
at another of Respondent 's stores . Sometime during the
fourth quarter of 1982, Gluck transferred to the North
Store . Middleton used the same method for Gluck as he
did for Norris , taking his gross earnings . According to
Krummel , Gluck had been an auto glass installer at the
other store , but he had prior experience in residential
areas . He later became qualified in the journeyman classi-
fication (Tr. 252) (R. Exh. 7).
I find that in this case the use of successive representa-
tive employees is appropriate to compute Haase's back-
pay properly. I find further that even though Benninger
left due to the strike , Board law requires me to assume
that Haase would have worked during the period of the
strike . I t Hence, Benninger was properly replaced by
Norris as a representative employee.
C. Is Respondent Obligated to Reimburse Haase for
Medical Expenses, Including that Portion Paid by his
Church?
As a general proposition, reimbursement for medical
expenses incurred during the period of discrimination is
also appropriately part of gross backpay because one of
the benefits of employment is health and accident insur-
ance coverage and, if the discrimination had not oc-
curred, such medical expenses would have been met by
that insurance. 12
At page 6 of its brief, Respondent challenges the Gen-
eral Counsel 's award of medical expenses for the period
after 3 July because it claims Haase would not have
worked subsequent to that date. I have found the back-
" Inland Empire Meat Co., 255 NLRB 1306, 1307 (1981). During the
hearing, Respondent's attorney attempted to ask Haase whether he would
have crossed the picket line to work during the strike . Ultimately, I sus-
tained the objection (Tr. 157). I note the case of Northwest Metal Prod-
ucts, 275 NLRB 1042 (1985), in which the Board remanded a case to my
colleague, Judge Robbins , to permit Respondent's attorney to ask a dis-
criminatee whether he would have crossed a picket line and gone back to
work before the strike ended . Assuming without finding that this issue
has been properly preserved in the present case, I find that Northwest
Metal Products does not apply here : at the time of the strike , Haase was
no longer in the Union ; further Haase had been terminated long before
the strike began, finally , the case does not apply where a representative
employee formula is used.
is Teamsters Local 164, supra, Knickerbocker Plastics Co., 104 NLRB
514 (1953).
1369
pay period extends to 25 July 1985. Accordingly, I reject
this portion of Respondent's argument.
Next, Respondent claims that a portion of Haase's
medical expenses was a gift from his church . During the
third quarter of 1980, Haase incurred a debt of $2,907.51
for his wife's gall bladder operation. He was unable to
pay the debt so the bishop of his church paid the bill
(Church of Latter Day Saints). This was done by direct
payment to the physician and hospital. Haase's under-
standing with the bishop is that Haase would repay the
money when he was able to do so . Haase signed no note
promising to repay the amount in question , nor is there
any due date or rate of interest . The bishop did not testi-
fy.
The bishop has no legally enforceable claim against
Haase for the amount of the medical bills. Rather any
contemplated repayment is strictly a private matter be-
tween the two of them. I find that so far as this proceed-
ing is concerned that the payment of Haase's medical
bills was a collateral benefit to him.
In Medline Industries, 261 NLRB 1329, 1337 (1982), a
backpay case , the father of the discriminatee paid the Tat-
ter's medical bills. The parties agreed that if the discri-
minatee had still been employed by Respondent when
the medical bills had been incurred , the insurance carrier
would have paid the bills. In refusing to reimburse the
discriminatee for his medical bills, the Respondent raised
the same argument as Respondent in the instant case.
The administrative law judge in Medlin rejected Re-
spondent's contention and the Board affirmed the deci-
sion . More specifically , the judge in Medline wrote the
following which is directly applicable to the present
issue:
[C]ollateral benefits, such as unemployment com-
pensation and union strike benefit payments are not
deductible as interim earnings or other offset against
gross backpay, even when the amount of such col-
lateral benefits equals or exceeds the gross backpay
claim . "Since no consideration has been or should
be given to collateral losses in framing an order to
reimburse employees for their lost earnings, mani-
festly no consideration need be given to collateral
benefits which employees may have received." Gul-
lett Gin Company v. N.L.R.B., 340 U.S. 361, 364
(1951). Robert Kenney's action in paying his son's
medical expenses, whether such payment be deemed
as a gift, loan, conditional loan or the meeting of a
moral obligation to one's offspring, constituted a
collateral benefit which is not an offset against
Mark Kenney's claim for lost benefits, because such
payment did not constitute compensation to Mark
Kenney for services performed . N.L.R.B. v. My
Store, Inc., 468 F.2d 1146, 1149-50 (7th Cir. 1972),
cert. denied 410 U.S. 910 (1973); Associated Trans-
port Company of Texas, Inc., 194 NLRB 62, 73
(1971). In My Store, the court, in agreement with
the Board , held that weekly payments by a union to
unfair labor practice strikers who were improperly
denied reinstatement to their jobs were not deducti-
ble from gross backpay. The payments were equal
in amount to the wages which the strikers would
1370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have received (exclusive of fringe benefits), and
were given as "loans ," with a commitment that the
strikers would repay the money when the employer
honored its backpay obligations to them. The court
held that these payments were collateral benefits
which were not deductible from gross backpay be-
cause they were not given as compensation for
picketing or other services. The facts in My Store
are analogous to those in the present case, and the
principles set forth therein are also here applica-
ble.1 s In sum, I find that Mark Kenney sustained a
compensable loss of medical and income continu-
ation insurance benefits, and that his father's action
in paying his medical expenses was a collateral ben-
efit which is not deductible from gross backpay.
is In Deena Artware, supra 112 NLRB at 375, 382, the Board
ordered that the employer reimburse 12 female discriminatees for
maternity insurance benefits which they lost when they each gave
birth during the backpay period . The Board did not inquire into
whether any third person paid the hospital and other medical ex-
penses in question , although it is at least plausible that in at least
some instances the father paid the bill.
Based on the Medline precedent, I find that Respond-
ent is obligated to reimburse all of Haase's medical ex-
penses as set forth in the General Counsel's Appendix,
including that portion paid by the bishop.
D. The Claim for Moving and Traveling Expenses
In raising this issue, Respondent again claims (Br. p. 7)
that the expenses were incurred after the period of enti-
tlement . I fmd that the claim is within the period of enti-
tlement and that further discussion is not warranted.
Next, Respondent claims that Haase's failure to pro-
vide receipts for travel or moving somehow impeaches
his claim . This argument must also be rejected. I found
Haase to be a credible witness and believed his testimony
in toto regarding his moving and travel expenses. Haase
testified that when he moved to Tacoma , Washington,
where he now resides, he moved two or three times
before fording a permanent residence. During these
moves, the receipts were lost (Tr. 161-162). The fact
that expense computations are based on estimates does
not preclude their acceptance . Aircraft & Helicopter Leas-
ing, 227 NLRB 644, 645 (1976). Even, the failure to keep
records as a matter of practice would not in and of itself
defeat a claim for expense reimbursement. Master Slack,
269 NLRB 106, 116 (1984). Finally, I find the amounts of
these expenses to be reasonable under the existing cir-
cumstances.
As a third and last objection to the expenses , Respond-
ent claimed that Haase 's primary motivation in moving
was to visit family, although Haase's secondary motiva-
tion was to seek work . The record refutes these asser-
tions.
First of all, Respondent has mixed together all Haase's
moving and travel expenses which is confusing. Haase
had relatives only in Santa Fe, New Mexico . Haase made
two trips from Las Vegas to Santa Fe primarily to look
for work, and secondarily to visit his relatives , who de-
ferred much of Haase's expenses . His claim of $90 and
$70 for these two trips seem extremely conservative con-
sidering the round -trip distance of 1200 miles. Haase's
job opportunities in Las Vegas were limited once he was
dropped from the Union for failure to pay dues.
Ultimately Haase did obtain work at a company called
G & M Enterprises. He claimed no job hunting expenses
here because he obtained the job while on vacation in
Santa Fe (Tr. 133). Haase then moved to Santa Fe but
due to oversight failed to claim his moving expenses in
the Board's specification (Tr. 197). Subsequently, Haase
received information that work might be available in
Tacoma, Washington . In the third quarter of 1983, Haase
made a trip there to explore possibilities of employment.
Subsequently, in the fourth quarter of 1983, he moved
there . The expenses for the two trips were $500 and
$2205 respectively . For the move to Tacoma, Haase was
moving away from his relatives.
"A discharged employee is not confined to the geo-
graphic area of former employment ; he or she remains in
the labor market by seeking work in any area with com-
parable employment opportunities ." Mandarin v. NLRB,
621 F . 2d 336 (9th Cir . 1980). Moreover, a claimant is en-
titled to be compensated for transportation expenses in-
curred in seeking interim employment and, procedurally,
that is handled by deducting such transportation ex-
penses from interim employment . See, e.g., Electrical
Workers IBEW Local 401, 266 NLRB 870, 872 fn. 12
(1983), and cases cited therein.
In this case , I find no credible evidence that Haase left
Las Vegas for personal rather than employment -related
reasons. See, e.g., Gary Aircraft Corp., 210 NLRB 555,
557 (1974). Respondent refers to the testimony of Krum-
mel, cited elsewhere in this decision , to the effect "that
there was growth in the industry in Las Vegas over the
past five years . To look elsewhere (than Las Vegas]
would be frivolous and in the nature of personal choice."
(Br. p. 7 .) 1 believe that the glazier industry grew in Las
Vegas; however, I fail to see how that fact defeats
Haase's good-faith job search in other areas.13
I note that apart from challenging Haase 's moving and
travel expenses, Respondent does not otherwise contest
Haase's leaving of one interim employment in order to
get a better position . Accordingly, I have not discussed
that issue.14
In conclusion, Respondent faults the General Counsel
for failing to support its claim for pension contributions
from Respondent , after Haase was discharged. Clearly,
this is part of the "make whole remedy" ordered by the
Board and not subject to reasonable dispute . International
Harvester Co., 169 NLRB 787 (1968); W. C. Nabors Co.,
134 NLRB 1078 (1961). Respondent must pay only
through the second quarter of 1981, when its relationship
with the Union ended . (See attached App. B.)
13 See Teamsters Local 164, supra. Compare , KSLM-AM & KSD-FM,
275 NLRB 1342, 1343 (1985).
14 However, I note that a discruninatee does not incur a willful loss of
earnings by quitting an interim job for a justifiable reason. See Electrical
Workers IBEW Local 453 (Sachs Electric), 277 NLRB 1129 fn. 2 (1985)
Here , Haase left Santa Fe for a better job in Tacoma.
BEST GLASS CO.
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed"
ORDER
The Respondent, Searle Auto Glass, Inc. d/b/a Best
Glass Company, Las Vegas, Nevada, its officers, agents,
successors, and assigns, shall make Bruce W. Haase
whole for wages, and benefits lost, and expenses in-
curred, in accordance with the Board and court Orders
as follows:
's If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions , and recommended
1371
1. Respondent shall pay to Bruce W . Haase the sum of
$29,871 . 13 as net backpay , with interest computed there-
on in the manner prescribed in the Board 's Order,
making the appropriate deductions from said amounts of
any tax withholding required by state and Federal laws.
2. Respondent shall also pay to Bruce W . Haase the
sum of $5,447 . 51 as reimbursement for the payment of
dependent medical expenses.
3. Respondent shall also pay to the Glazier and Glas-
workers Pension Trust Fund the sum of $772 as pension
fund contributions to the credit of Bruce W . Haase.
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
APPENDIX A
Yr./Qtr. Hrs. Pay P/H
1980/2 ..................... (a) 50 ...................... (a) $10.68 ...............
(b) 16 ...................... (b) 11.76.................
1980/3 ..................... (a) 328 .................... (a) 11.76 .................
(b) 40 ...................... (b ) 17.02 .................
1980/4 ..................... (a) 456 .................... (a) 11.76 .................
(b) 16 ...................... (b) 17.02.................
1981/1 ..................... (a) 456 .................... (a) 11.76.................
(b) 56 ................... (b ) 17.02 ..............
1981/2 ..................... (a) 488 .................... (a) 11.76.................
(b) 24 ................. (b) 17.02...............
1981 /3 .....................
1981/4 .....................
1982/1 .....................
1982/2 .....................
1982/3 .....................
..............................
..............................
..............................
..............................
..............................
..............................
..............................
..............................
..............................
..............................
1982/4 .....................
1983/1 .....................
1983/2 .....................
1983/3 .....................
1983/4 .....................
1984/1 .....................
1984/2 .....................
1984/3 .....................
1984/4 .....................
1985/1 .....................
1985/2 .....................
1985/3 .....................
Total Net
Backpay.
..............................
..............................
..............................
..............................
..............................
..............................
..............................
..............................
..............................
..............................
..............................
..............................
..............................
..............................
..............................
..............................
..............................
..............................
..............................
..............................
..............................
..............................
..............................
..............................
Gross Interim Earnings &
Backpay Employer
Net
Exp. Interim
Earnings
Net
Backpay
$722.16 0.......................................... 0 0 $722.16
4,538 . 08 $1,200 C & H Concrete .... 0 $1,200.00 3,338.08
5,634 . 88 667.38 Olson Glass ........... 90 577.38 5,057.50
6,315.68 2,620.54, Nay Mech .; 70 2,885 . 54 3,430.14
335, Mintie Corp..
6,147.36 1,586.40, Nay; 2,515.16, 0 5,082.56 1,064.80
Mintie ; 887, Del
Webb Sahara; 94, SW.
Constr..
3,368 . 50 2,477 Sahara Hotel ........... 0 2,477.50 891.00
5,113.00 3 ,540 Sahara Hotel ........... 0 3,540 .00 1,573.00
4,769 . 76 3,590 .75 Sahara Hotel ....... 0 3,590 .75 1,179.01
5,002 .26 3,590 .75 Sahara Hotel ....... 0 3,590.75 1,411.51
5,788 .00 3,400, G&M Enterprises; 0 3,952 .42 1,835.58
552.42, Sahara.
4,831 . 65 Exceed backpay ................ 0
4,819.98 4,186, G&M ....................... 0 4,186.00 33.98
5,634.89 4,414, G&M ....................... 0 4,414.00 1,220.89
4,767 . 15 5,053 , G&M ....................... 500 4,553.00 214.15
4,676 .08 920, G & M; 1,294.84, 2,205 9.84 4,666.24
Coast Alum..
5,206 . 57 3,402.40, Intermtn. West.. 0 3,402.40 1,804.17
5,968 . 72 5,139 .80, Intermtn ............. 0 5,139 .80 828.92
- Exceed backpay ................ - - 0
- Exceed backpay ................ - - 0
- Exceed backpay ................ - - 0
- Exceed backpay ................ - - 0
- Exceed backpay ................ - - 0
.......................................... $29,871.13
1372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX B
Hourly
Yr./Qtr. Pension
Rate
Hrs in
Qtr-
Net
Pension
Payment
1980/2 .......................................... $.40 66 $ 26.40
1980/3 .......................................... .40 368 147.20
1980/4 .......................................... .40 472 188.80
1980/1 .......................................... .40 512 204.80
1980/2 ...................................... .40 512 204.80
Total Net Pension Fund
Payment .......................... $772.00