Boilermakers Local 27 (Daniel Construction)

National Labor Relations Board - Board Decisions

Aug 16, 1984

271 N.L.R.B. 1038 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
International Brotherhood of Boilermakers, Iron
Shipbuilders, Blacksmiths, Forgers, and Helpers
Local No. 27 (Daniel Construction Company)
and Paul Jones. Case 14-CB-5436
16 August 1984
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS ZIMMERMAN, HUNTER, AND
DENNIS
On 26 March 1984 Administrative Law Judge
Robert W. Leiner issued the attached supplemental
decision. The General Counsel 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 decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's rulings, findings, and
conclusions and to adopt the recommended Order
as modified. '
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, International Brotherhood of Boilermak-
ers, Iron Shipbuilders, Blacksmiths, Forgers, and
Helpers Local No. 27, St. Louis, Missouri, its offi-
cers, agents, and representatives, shall take the
action set forth in the Order as modified.
Delete the phrase "less statutory withholdings"
from the recommended Order.
I We find merit in the General Counsel's exception to that portion of
the recommended Order requiring the Respondent to deduct "statutory
withholdings" from the backpay due Paul Jones. Because the payment of
backpay by a labor organization is not treated as wages paid by or on an
employer's behalf, we shall delete that provision from the recommended
Order. .ear Cutters Local 464 (Pathmark), 237 NLRB 16 (1978).
SUPPLEMENTAL DECISION
ROBERT W. LEINER, Administrative Law Judge. This
backpay proceeding was heard in St. Louis, Missouri, on
11 January 1984, pursuant to a backpay specification and
notice of hearing issued by the Acting Regional Direc-
tor, Region 14, National Labor Relations Board on 31
August 1983. The Respondent, International Brother-
hood of Boilermakers, Local No. 27, filed a timely
answer in which it admitted and denied various allega-
tions of the backpay specification. At the hearing, where
the General Counsel amended the backpay specification
and to which Respondent made adequate contrary plead-
ings, the parties were represented by counsel, afforded a
full opportunity to be heard, file motions, amendments,
and present evidence on the issues. The parties waived
271 NLRB No. 166
closing argument. On consideration of the entire record,
including the General Counsel's posthearing brief, and
on my observation of the demeanor of the witnesses as
they testified, I make the following
FINDINGS OF FACT
1. BACKGROUND; PLEADINGS
On 6 April 1983, the National Labor Relations Board
issued its underlying Decision and Order (266 NLRB
602) concluding inter alia that International Brotherhood
of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers,
and Helpers Local No. 27 (Respondent) violated Section
8(b)(1)(A) and (b)(2) of the National Labor Relations
Act (the Act), in causing the layoff and preventing the
promotion of the Charging Party, Paul Jones, in his em-
ployment by Daniel Construction Company at its con-
struction site in Calloway, Missouri, and, inter alia, di-
recting Respondent to make Paul Jones whole, with in-
terest, for any loss of earnings resulting from these unfair
labor practices.' Thereafter, Respondent and the General
Counsel executed a stipulation providing, inter alia, for
Respondent's waiver of its right to contest the propriety
of the Board's Order and the findings of fact and conclu-
sions of law underlying that Order. A controversy
having arisen over the amount of backpay due under the
terms of the Board's Order, the Acting Regional Direc-
tor issued the above backpay specification and notice of
hearing to determine the amount of backpay due to Paul
Jones.
The backpay specification, as amended at the hearing,
provides for a backpay period running from July 9, 1981
(Respondent caused the layoff of Jones on July 8, 1981)
through June 2, 1982, when, the General Counsel con-
cedes, Jones took permanent "substantially equivalent"
employment elsewhere (Tr. 11). Thus, involved are four
calendar quarters during which the General Counsel al-
leges that backpay is due: the third quarter of 1981, the
fourth quarter of 1981, the first quarter of 1982, and the
second quarter of 1982. The amended backpay specifica-
tion alleges, inter alia, that Jones' gross backpay is de-
rived by multiplying the weekly average of all hours
worked by boilermaker mechanics employed by Daniel
Construction Company at the Calloway worksite (except
those working 24 hours or less per week) by the boiler-
maker mechanics' hourly rate of pay adjusted to a
straight time basis (by conversion of overtime hours at
the rate of 1-1/2 times the straight time hours) and then
multiplying the result by the number of weeks in the
quarter in the backpay period.2
In addition, the backpay specification provides (Ap-
pendix C) for the payment to the appropriate Employer-
Union trust fund trustees of the contractual pension fund
I Respondent's monetary obligation under the "make whole" remedy
in the Board's Order terminates with either the employer's offer of rein-
statement or the date Jones obtained "substantially equivalent employ-
ment."
2 The hackpay specification alleges, in addition to the four quarters of
backpay, a period from March 30 through April 23, 1981, when Jones
would have been an assistant foreman (at a higher rate of hourly pay
than that of a boilermaker mechanic) but for the unlawful conduct of Re-
spondent which prevented him from taking that assignment.
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BOILERMAKERS LOCAL 27 (DANIEL CONSTRUCTION)
contributions on Jones' behalf which would have been
paid into the pension fund had not Respondent caused
Jones to be unlawfully laid off.
As a result of amendments and stipulations at the hear-
ing, the gross backpay allegedly due to Jones (prior to
his admittedly gaining substantially equivalent employ-
ment on and after June 3, 1982) is the sum of $26,533.
Similarly, the amended amount alleged to cover the de-
linquent contributions to the pension trust fund which
Respondent should have contributed on Jones' behalf is
$2072.
Respondent, at the hearing, did not dispute the theory
of using the particular boilermaker mechanics as an iden-
tifiable class on which to base the backpay, nor did it
dispute the wage rates used by the General Counsel
(from Daniel Construction's files) nor the average hours
worked by the class of boilermaker mechanics during the
backpay period. Thus, Respondent does not dispute the
backpay specification's use of the particular arithmetical
figures. Rather, Respondent, at the hearing, consistent
with its answer, specified four areas in which it disputed
the backpay specification or in which it would interpose
defenses on which it had the burden: (1) the lack of
good-faith attempts by Paul Jones to find interim em-
ployment, leading to the conclusion, which Respondent
urges, that for long periods during the backpay period,
Jones engaged in willful idleness; (2) Respondent denies
the accuracy of the General Counsel's calculations in the
computation of net wages from Jones' interim employ-
ment; (3) in particular, Respondent urges a termination
date of the backpay period to be some time about March
23, 1982, when, it argues, Jones found ealier substantial
equivalent employment, rather than on June 2, 1982, the
date when, the General Counsel alleges, that substantial
equivalent employment was found; and (4) Respondent
argues that the backpay specification fails to take into ac-
count the effect of intermediate layoffs of other boiler-
maker mechanics at the jobsite during the backpay
period and the diminution resulting therefrom on the al-
leged backpay.
II. THE MERITS OF RESPONDENT'S ARGUMENTS
With regard to (4), above, Respondent did not contra-
dict the General Counsel's assertions that the record
showed that Daniel's layoffs of other boilermaker me-
chanics during the backpay period did not follow seniori-
ty or other objective considerations; rather, they were
based on a particular boilermaker mechanic's attendance
record and overall ability. The General Counsel argues
that since there is no objective basis to suggest that Jones
would have been the subject of any intermediate layoff,
there is no reason to include Jones in any intermediate
layoff. Further, since the conclusion that he would have
been laid off on an intermediate basis within the backpay
period remains speculative, any ambiguity resulting
therefrom must be laid at the feet of Respondent's unfair
labor practices. Especially since Daniel evidently desired
to promote Jones prior to Respondent's unlawful con-
duct, I agree with the General Counsel.
As noted in Kansas Refined Helium Co., 252 NLRB
1156, 1157 (1980):
It is well settled that the finding of an unfair
labor practice is presumptive proof that some back-
pay is owed [citations omitted] and that in a back-
pay proceeding the sole burden on the General
Counsel is to show the gross amounts of backpay
due-the amount the employees would have re-
ceived but for the employer's illegal conduct. [Cita-
tion omitted.] Once that has been established, "the
burden is upon the employer to establish facts
which would . . . mitigate that liability."
Another well-established principle is that, where
there are uncertainties or ambiguities, doubts should
be resolved in favor of the wronged party rather
than the wrongdoer. F. M. Broadcasting Corp. d/b/a
WHLI Radio, 233 NLRB 326, 329 (1977). In United
Aircraft Corp., 204 NLRB 1068 (1973), the Board
stated that "the backpay claimant should receive the
benefit of any doubt rather than the Respondent,
the wrongdoer responsible for the existence of any
uncertainty and against whom any uncertainty must
be resolved."
Applying the above principles to the instant facts, the
General Counsel's backpay specification did not include,
by way of diminution, any intermediate layoffs of boiler-
maker mechanics during the backpay period because
there was no objective basis on which to conclude that
Jones would have been one of boilermaker mechanics
laid off. Respondent, in its turn, did not adduce any evi-
dence to show that Jones would have been one of the
employees (boilermaker mechanics) laid off during the
backpay period. Once it is established that the formula in
the backpay specification approximates what the discri-
minatee would have earned had he not been discriminat-
ed against and if it is established that the backpay formu-
la is neither unreasonable nor arbitrary, then any uncer-
tainty or ambiguity therein must be borne by the Re-
spondent. Kansas Refined Helium, supra. As the court
noted in Bagel Bakers Council of Greater New York v.
NLRB, 555 F.2d 304 (2d Cir. 1977), a backpay award is
only "an approximation" and if uncertainties and ambigu-
ities are to be resolved against the wrongdoer and in
favor of the wronged party, F. M. Broadcasting Corp.
d/b/a WHLI Radio, supra, then Respondent must bear
the burden of its failure to prove that Jones would have
been laid off during the backpay period.
With regard to (1), above, the question of Jones' at-
tempt to find intermediate employment and the question
of any "willful idleness," the record shows that in the
third quarter of 1981, which is the first quarter of the
backpay period, Paul Jones having first telephoned Re-
spondent's hiring hall and been told there were no jobs,
engaged in self-employment. The self-employment took
the form of his engaging in the business of transporting
by bus Daniel employees from places as far as 85 miles
from the Calloway, Missouri construction site to the con-
struction site itself. In the period August through Octo-
ber 1981, Jones also looked for work in his long-estab-
lished trade, painter, in various cities in Missouri (Rolla,
St. James., Cuba, and St. Louis). He also visited the St.
1039
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Louis Painters Union office and the offices of various
large St. Louis painting contractors. In so doing, he trav-
eled no less than twice a week from his home in Cuba,
Missouri, to St. Louis, a round-trip distance of approxi-
mately 168 miles. In the same period, he sought employ-
ment in automobile tire repair shops, gasoline service sta-
tions, and shoe manufacturers in St. James, Sullivan, and
Cuba, Missouri, and unsuccessfully sought to enter
Daniel Construction Pipefitters School. In addition,
throughout the four-quarter backpay period, on a bi-
weekly basis, he visited the Missouri State Unemploy-
ment office and sought employment through it with the
officials reviewing their employment opportunity cards
in his presence.
In the period January through March 1982, he drove
to St. Louis twice a week and sought employment
through the Painters Union office, checked with major
painting contractors and sought work as a busdriver with
six small bus companies in Missouri.
About March 23, 1982, and for the succeeding 5
weeks, he was employed in St. Louis by Joseph Ward
Painting Company and worked there continuously until
the job ended at the end of 5 weeks. Prior to obtaining
the job at Joseph Ward, he sought work through the
painting contractor at the Daniel Calloway job but, after
telephoning the Jefferson City, Missouri Painters local,
and seeking work through it, no work was ever forth-
coming at that site.
During May 1982, after termination of the Ward job,
Jones again commuted to St. Louis looking for work but
was unable to find work until June when he was em-
ployed as a painter by Coatings Unlimited on June 3,
1982. He has worked for Coatings Unlimited from that
date through the time of the hearing and the General
Counsel concedes this constitutes permanent employ-
ment.
The record also shows that during the backpay period,
while Jones did not register at the Boilermakers exclu-
sive hiring hall, he did telephone its dispatcher and was
told that there was no work available for him.
Respondent failed to introduce evidence in support of
its assertion that Jones failed to exercise reasonable ef-
forts to secure interim employment and, inferentially,
that he engaged in willful idleness. As noted in Sioux
Falls Stock Yards Co., 236 NLRB 543, 545 (1978), the
burden is on Respondent to establish its affirmative de-
fenses including the obligation to show that Jones did
not make a bona fide effort to seek employment, Aircraft
Leasing, 227 NLRB 644, 646 (1976); Westin Hotel, 267
NLRB 244 (1983). This Respondent burden is not met by
presenting evidence of a lack of employee success in get-
ting interim employment or low interim earnings; rather,
Respondent must affirmatively demonstrate that the em-
ployee neglected to make a reasonable effort to find in-
terim work. NLRB v. Miami Coca-Cola Bottling Co., 360
F.2d 569, 575-576 (5th Cir. 1966). The discriminatee
must make only "reasonable efforts to mitigate the loss
of income and not undertake the highest standard of dili-
gence," NLRB v. Arduini Mfg. Co., 394 F.2d 420, 422-
423 (Ist Cir. 1968). Here, the evidence shows that Jones
made continuous efforts to gain interim employment,
commencing in the very quarter in which Respondent
caused Daniel to unlawfully terminate him, some efforts
being successful and others being unsuccessful. Jones did
all that the law requires: a good-faith effort, NLRB v.
Cashman Auto Co., 223 F.2d 832, 836 (Ist Cir. 1955). In
determining the reasonableness of Jones' effort, the em-
ployee's skills and qualifications must be taken into ac-
count, Mastro Plastics Corp., 136 NLRB 1342, 1359
(1962). Thus here, Jones' efforts at gaining interim em-
ployment ran the full gamut: he exercised continuous ef-
forts to return to his area of experience as a painter; he
also tried to gain work as a tire repairman, to work in a
gasoline station, as a busdriver, and he continuously re-
viewed with the Missouri unemployment compensation
agents available work on a biweekly basis. These efforts,
including trips to St. Louis on a biweekly basis to con-
tact the Painters Union and the large painting contrac-
tors, together with undenied efforts in the backpay
period at gaining boilermaker work with pipeline con-
tractors in Oklahoma, Wyoming, and Texas demonstrate
that throughout the backpay period, as noted, Jones did
all that the law requires of him, a good-faith effort to
find interim employment. I find that he did so. Thus, Re-
spondent, particularly in its failure to introduce any evi-
dence of Jones' failure to diligently seek interim employ-
ment, failed to support its affirmative burden of proving
either Jones' failure to diligently seek interim employ-
ment or to show willful idleness. Jones, on this record,
made diligent efforts to seek interim employment
throughout the backpay period.
Jones' Self-Employment in the Third Quarter 1981
Respondent, in (2), above, argues, inter alia, against
deduction of interest on a loan securing the purchase of a
bus which Jones used in self-employment.
In late July 1981, Jones purchased a used bus for the
business of transporting Daniel employees to and from
points in Cuba, Missouri, to the Calloway, Missouri
worksite. In consideration of this service which he ren-
dered to a maximum of about 15 employees, Jones
charged $3 to $6 per day, per round trip, for each such
employee. The one-way distance between Cuba, Missou-
ri, and the Calloway Construction site is approximately
85 miles. Operation of the truck service all in the third
quarter 1981 began on August I and ended September
30, 1981. Operations ceased because of a number of cir-
cumstances including the fact that Daniel had changed
the hours of its work shifts working at Calloway making
it impractical for Jones to continue the bus operation. In
any event, on October 30, 1981 (i.e., in the fourth quarter
of 1981), Jones sold the bus, incurring a $6050 loss on
the sale.
It is also undisputed that Jones paid a total of $1855 in
August, September, and October 1981, as interest on the
debt incurred in the purchase of the truck. The payments
were of equal amount and were paid in each such month.
Late in the hearing, the parties stipulated that, regard-
less of testimony previously appearing in the record and
regardless of the allegations and assertions in the back-
pay specification and Respondent's answer, Jones' gross
revenue from the operation of the bus transit company
(Eagle Claw Transit Co.) in the single quarter of its op-
1040
BOILERMAKERS LOCAL 27 (DANIEL CONSTRUCTION)
erations, the third quarter of 1981, was $8503. It was also
undisputed that there could be deducted as expenses in
the operation of this bus service the sum of $6307, thus
resulting in net interim earnings in the third quarter of
1981 of $2196. Thereafter, the parties having ascertained
that Jones' payment of interest on the loan for the bus
for October 1981 fell outside the third quarter of 1981, it
was agreed that approximately one-third of the $1855
total of interest payments be excluded from this deduc-
tion from net interim earnings. It was agreed that this
figure be $615. Thus, the parties agreed to add to the
$2196 in net interim earnings the sum of $615, thereby
arriving at the agreed-upon figure of $2811 as the mini-
mum quarterly interim earnings.3 Respondent argues,
however, that the entire balance of the actual third-quar-
ter interest on Jones' debt incurred in the purchase of the
bus should also be eliminated, raising the interim earn-
ings by an additional $1240 (i.e., the balance of the $1855
interest payments).
Respondent thus seeks to distinguish the ordinary and
necessary repairs and operating supplies necessary to op-
erate the bus (e.g., gasoline, oil, tires, etc.) from interest
payments necessary to secure the purchase of the capital
equipment, i.e., the bus, which forms the basis of the self-
employment itself. I do not accept this distinction.
If it is true that, as in Heinrich Motors v. NLRB, 403
F.2d 145, 148 (2d Cir. 1968), self-employment should be
treated like any other interim employment in measuring
backpay liability and that, as in Mastro Plastics Corp.,
supra at 1350, only the net profits from self-employment
ought to be included as interim earnings, then it would
appear that Respondent must take Jones' bus interest
payments, along with the other admittedly proper deduc-
tions from operating revenues (gasoline, oil, etc.) as a
necessary element in the establishment of "net profits" in
the determination of self-employment net interim earn-
ings. I see no difference in the establishment of net prof-
its between tires and gasoline on the one hand, and inter-
est payments on the other. Interest on loans is necessary
in the perpetuation of a business where the capital ma-
chinery cannot be acquired to permit self-employment
except by way of making a loan to obtain the purchase
of the machinery and paying interest thereon. No ex-
tended analysis is necessary to see that whereas tires and
gasoline constitute an ordinary operational necessity, in-
terest payments on the underlying capitalized debt con-
stitutes an ordinary financial necessity in the continued
running of the business. I therefore reject Respondent's
distinction and conclude that the interest payments of
$1240 (a total of $1855 less the agreed-upon $615, ex-
cludible as non-third quarter interest payment) should be
included as proper deductions from gross interim earn-
ings, thereby leaving third quarter 1981 net interim earn-
ings of $2811. The payment of interest on the loan for
the purchase price of the bus, being an "ordinary and
necessary expense" of the business, should be deducted
from interim earnings. See Kansas Refined Helium Co.,
252 NLRB 1156, 1161 (1980).
3 This $2811 in third quarter 1981 interim earnings, is thus S1917 more
than the $894 originally pleaded by the General Counsel as net third
quarter interim earnings
The General Counsel, in its turn, asserts that the $6050
loss incurred by Jones on the October 30, 1981 (fourth
quarter) sale of the bus should be "attributed" to third
quarter operations, thus leaving third quarter 1981 net in-
terim earnings (which I have found to be $2811) to be
actually zero.
In Board backpay proceedings, backpay is regularly
computed on a quarterly basis. F. W. Woolworth Co., 90
NLRB 289 (1950). The calculation of gross and net back-
pay as well as interest on the calendar quarterly basis, es-
tablished in F. W. Woolworth Co., was approved in
NLRB v. Seven-Up Bottling Co. of Miami, 344 U.S. 344
(1953); see Isis Plumbing Co., 138 NLRB 716 (1962);
Florida Steel Corp., 231 NLRB 651 (1977); S. E. Nichols
of Ohio, 258 NLRB 1, 9 fn. 18 (1981), and particularly
Nelson Metal Fabricating, 259 NLRB 1023 fn. 1 (1982).
While the rule establishing the quarterly balancing of
backpay against interim earnings was established to dis-
courage a respondent employer's delay in offering rein-
statement, it works to the advantage of the employee
who, during part of the backpay period, may earn wages
(whether from self-employment or otherwise) in excess
of what he would have earned had he been working for
the employer during the backpay period. While under
Nelson Metal Fabricating, supra, the employer takes the
risk that the employee will not, on a quarterly basis, earn
sufficient wages from interim employment to offset the
employer's backpay obligation in the particular quarter,
yet the employer may not be held to accept the risk that
the employee's self-employment operations, when con-
cluded, will be used in such a way as to increase deduc-
tions from interim earnings from self-employment regard-
less of the quarterly basis. In short, if the employee ac-
cepts the benefits of the quarterly basis established in F.
W. Woolworth, supra, he must also accept the obligation
to so conduct his self-employment financial activities as
to ensure, if he desires, the maximum deductions from in-
terim earnings allowed.
In the instant case, Jones sold the truck in the fourth
quarter while establishing interim earnings from self-em-
ployment in the third quarter. From Respondent's point
of view, Jones might have retained the truck for a period
of years or, indeed, indefinitely. Respondent may not, it
seems to me, be required to bear the burden of waiting
for Jones to dispose of the truck at Jones' later conven-
ience and then be forced to accept the ensuing loss in the
capital transaction reflected back to the operations of
self-employment in the third quarter of 1981. Thus, I
conclude that the Board's rules of accounting on a quar-
terly basis precluded the General Counsel's argument
and prevents Jones from deducting the fourth quarter
1981 loss from the sale of the truck as against interim
earnings of the third quarter of 1981. In view of this dis-
position, it is unnecessary for me to reach or analyze the
merits of the more basic issue whether a capital loss re-
sulting from self-employment operations is deductible
from interim earnings resulting from self-employment in
1041
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the particular calendar quarter in which the earnings
occur. 4
Respondent's apparently principal argument, (3),
above, is that the terminal date of the backpay period
should be about March 23, 1982, when Jones took the
painting job with Joseph Ward Painting Co. rather than
on June 3, 1982, when he entered employment as a paint-
er with Coatings Unlimited (where Jones has remained
through the date of the hearing and the General Counsel
concedes that Jones entered upon "substantially equiva-
lent employment" and ended the backpay period).
Respondent produced no independent evidence to sup-
port this conclusion. Rather, it relies on the testimony of
Jones himself on cross-examination. Jones testified that
when he took the job with Joseph Ward Painting Com-
pany, he formed the idea that it would be a job of indefi-
nite duration notwithstanding that the job thereafter
lasted only 5 weeks. Jones had worked for Joseph Ward
for a 6-year period prior to this time. He testified howev-
er that he neither told Ward that he expected the job to
last indefinitely nor was told by Ward that the job would
be of long, much less of indefinite, duration. On the
other hand, Ward did not tell Jones that the job would
be of short duration.
Respondent concedes that, as a commercial painter,
Jones was part of the construction industry and that, in
the construction industry, short term jobs are endemic.
I will assume, arguendo, that the subjective estimate of
Jones in his taking the Joseph Ward job about March 23
amounts to a conclusion, if the job was permanent, to
never return to Respondent's employ, I make this ar-
guendo conclusion in the face of the facts that (1) Jones
never testified that he would not return to Respondent's
employ and (2) there is no independent evidence, wheth-
er from Jones' testimony or otherwise, of an assurance
by Ward or a conclusion by Jones that this job was a
permanent job whether or not Jones thought that it was
of long duration. The cases are legion to support the
proposition that the failure to retain interim employment
does not necessarily terminate Respondent's obligation to
pay backpay. See, e.g., Big Three Industrial Gas, supra; S.
E. Nichols of Ohio, 258 NLRB 1; J. S. Alberici Construc-
tion Co., 249 NLRB 751 (1980). Assuming, therefore, ar-
guendo, that Jones' private and subjective belief that the
Jospeh Ward job was of indefinite duration amounts to a
private and subjective determination never to return to
Respondent's employ, the Board rule is that, absent an
offer or reinstatement, testimony as to subjective inten-
tions does not establish any conscious or knowing waiver
of the potential right to reinstatement. Big Three Industri-
4 To the extent that Respondent also argues that self-employment is
tantamount to a withdrawal from the job market, the Board has ruled
otherwise. See Heinrich Motors v. NLRB, 403 F.2d 145, 148; Carter's
Rental, 250 NLRB 344 (1980). To the extent Respondent suggests that
the cost of Jones' transportation from Cuba to St. Louis in his biweekly
trips to seek work should not be awarded the status of deductibility from
interim earnings in the quarter, the law is settled to the contrary. Aircraft
Leasing, 227 NLRB 644 (1976). While there may well be a question as to
whether the cost of the bus to Jones would be deductible, Big Three In-
dustrial Gas, 263 NLRB 1189, 1208 (1982); Aircraft Leasing, supra, the
General Counsel does not seek as a deduction the cost of the bus, but
only the loss resulting from its resale. As above noted, the merits of the
General Counsel's argument need not be reached.
al Gas, supra at 1203 and 1208. Moreover, even if Jones
had made the statement that he did not intend to return
to the Respondent's employ because of his employment
at Joseph Ward, and that he would not accept an offer
of reinstatement, the Board, nevertheless, has maintained
a longstanding and continuing policy to "consistently
. . .discount" employee's statements indicating unwill-
ingness to accept reinstatement except when made in a
formal, serious surrounding. See, particularly, Big Three
Industrial Gas, supra at 1203 fn. 50, citing Heinrich
Motors, 166 NLRB 783, 786 fn. 24 (1967), and its over-
ruling of English Freight Co., 67 NLRB 643 (1946); but
cf. International Business Systems, 258 NLRB 181 fn. 4
(1981). In the instant case, Jones never admitted or as-
serted that he considered his employment at Joseph
Ward commencing March 23 to be a permanent job or
to constitute an abandonment of a right to reinstatement
to the Daniel job. Rather, he manifested, at most, a sub-
jective belief that the job at Joseph Ward was of indefi-
nite duration. Under the circumstances and Board prece-
dents, I conclude that Jones did not become employed in
"substantially equivalent employment," at his 5-week job
at Joseph Ward commencing March 23, 1982; rather, he
engaged in a job of "substantially equivalent employ-
ment" only commencing June 6, 1982, at Coatings Un-
limited.
Moreover, I believe that, especially in the construction
industry, the conclusion that an unlawfully discharged
employee is engaged only in interim employment rather
than "substantially equivalent employment" can properly
be viewed from hindsight. In any event, the burden of
proof, to demonstrate that the Joseph Ward's job consti-
tuted "substantially equivalent employment" is on Re-
spondent. The record is barren concerning the compara-
bility of the Joseph Ward painting job to the Daniel boi-
lermaker job or the Coatings Unlimted job. In such cir-
cumstances, it cannot be said that Respondent met that
burden: to show substantial equivalency. Teamsters Local
559 (Mashkin Freight Lines), 257 NLRB 24 (1981).
I therefore conclude that Respondent's argument that
Jones entered upon substantially equivalent employment
and abandoned and waived his right to further backpay
in taking this 5-week job with Joseph Ward must be re-
jected.
Additions to Interim Earnings
During the course of the hearing, the parties stipulated
that there be added to Jones' interim earnings for the
first quarter of 1982 the sum of $83 by virtue of unre-
ported interim earnings on a private paint job performed
in Cuba, Missouri, about the beginning of March 1982. In
addition, it was stipulated that with regard to the first
quarter of 1982, $68 should be added to interim earnings
by virtue of a diminution of deductions from interim
earnings (private phone calls); and for the second quarter
of 1982, interim earnings should be raised by $84.
In light of the above stipulations, and on the basis of
stipulations relating to earnings from self-employment
and deductions therefrom with regard to the third quar-
ter of 1981, I find that Jones is entitled to backpay with
interest as set forth below:
1042
BOILERMAKERS LOCAL 27 (DANIEL CONSTRUCTION)
The parties ultimately stipulated that the gross wages
owed to Jones, pursuant to the backpay specification,
was $26,533; and that the pension fund moneys which
should be paid to trustees of the Boilermakers National
Pension Fund on behalf of Jones, because of the discrim-
ination against him, was $2072.
The above stipulation showing wages of $26,533 owed
to Jones occurred before further evidence showed that
interim earnings for the third quarter of 1981 were $2811
rather than the original $894. I shall add the difference
($1917) to the interim earnings for the third quarter of
1981.
I therefore make further deduction from gross backpay
based on increased interim earnings in the third quarter
of 1981 in the sum of $1917; and in view of the stipula-
tions to add to interim earnings for the first quarter of
1982, the sums of $83 (paint job in Cuba, Missouri) and
$68 (telephone calls); and for the second quarter 1982 the
sum of $84 (telephone calls) I conclude that, with regard
to net backpay, based on the parties' final stipulations,
Respondent is obligated to Jones in the following re-
spects: I deduct the figure of $2152 ($1917 plus $83, plus
$68, plus $84) from the stipulated gross backpay of
$26,533 with resulting net backpay (wages) of $24,381.
I also conclude, consistent with the stipulation, that
$2072 be paid on behalf of Jones by Respondent to the
Boilermakers National Pension Fund.
Both of the above sums shall be paid with the addition
of interest as provided in Isis Plumbing Co., 138 NLRB
716 (1962), and Florida Steel Corp., 231 NLRB 651
(1977).
On these findings of fact and conclusions of law on the
entire record, I issue the following recommended 5
ORDER
The Respondent, International Brotherhood of Boiler-
makers, Iron Shipbuilders, Blacksmiths, Forgers, and
Helpers Local No. 27, its officers, agents, and representa-
tives, shall make Paul Jones whole by payment to him of
the sum of $24,381 less statutory withholdings but with
interest as prescribed in Florida Steel Corp., supra. Addi-
tionally, Respondent shall tender to Boilermakers Na-
tional Pension Fund on behalf of Paul Jones' account the
sum of $2072 with whatever interest is customary and
usual in the cases of late payments to said fund, Team-
sters Local 559 (Mashkin Freight Lines), 257 NLRB 24, 26
except that in the event the fund, for any reason, refuses
to accept such money within 60 days of a final order in
this case, said sum of money shall be paid, with interest
as prescribed in Florida Steel Corp., supra, directly to
Paul Jones. Teamsters Local 559, supra at 26.
5 If no exceptions are filed as provided by Sec 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
1043