Brotherhood of Teamsters & Auto Truck Drivers

National Labor Relations Board - Board Decisions

Jul 31, 1974

212 N.L.R.B. 714 (N.L.R.B. 1974)

714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Brotherhood of Teamsters & Auto Truck Drivers, Lo-
cal No. 70, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen & Helpers of America
(Sea-Land of California , Inc.) and James Reliford.
Case 20-CB-2394
ministrative Law Judge's Supplemental Decision, the
exceptions and briefs, and hereby adopts the find-
ings,3 conclusions, and recommendations of the Ad-
ministrative Law Judge.
July 31, 1974
SUPPLEMENTAL DECISION AND ORDER
By CHAIRMAN MILLER AND MEMBERS FANNING
AND PENELLO
On May 25, 1972, the National Labor Relations
Board issued its Decision and Order (197 NLRB 125)
in the above-entitled proceeding, finding, inter aha,
that the Respondent violated Section 8(b)(2) and
(1)(A) of the Act by causing Sea-Land of California,
Inc., to discharge the Charging Party, James Reliford,
for nonpayment of dues to Respondent at a time
when Reliford could not lawfully be required to pay
such dues as a condition of continued employment. In
consequence, the Board ordered the Respondent to
notify Sea-Land that it had no objection to the em-
ployment of Reliford and to make Reliford whole for
any loss he may have suffered as a result of the unlaw-
ful discrimination against him. On December 5, 1973,
the U.S. Court of Appeals, Ninth Circuit, granted the
Board's petition for enforcement.'
Pursuant to a backpay specification and appropri-
ate notice issued by the Regional Director for Region
20, a hearing was held on February 25, 1974, before
Administrative Law Judge Jerrold H. Shapiro, for the
purpose of considering various issues concerning the
amount of backpay due.
On April 18, 1974, the Administrative Law Judge
issued the attached supplemental decision in which he
found certain of the proposed modifications to the
Regional Director's backpay specification to have
merit and others to be without merit and in which he
awarded backpay to Reliford. Thereafter, the Charg-
ing Party and Respondent filed exceptions to the Ad-
ministrative Law Judge's Supplemental Decision and
supporting briefs and the General Counsel filed cross-
exceptions and material in support of his cross-excep-
tions.2
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has reviewed the rulings of the Adminis-
trative Law Judge made at the backpay hearing and
finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has consid-
ered the entire record in the case, including the Ad- 2 490 F 2d 87
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Supplemental Order of the Administrative Law Judge
and hereby orders that Brotherhood of Teamsters &
Auto Truck Drivers, Local No. 70, International
Brotherhood of Teamsters, Chauffeurs, Warehouse-
men & Helpers of America, Oakland, California, its
officers, agents, and representatives, shall take the ac-
tion set forth in said recommended Supplemental Or-
der.
'490F2d87
2 The General Counsel filed in support of his cross-exceptions his brief to
the Administrative Law Judge amplified in certain regards by a letter which
in effect was a brief
3 Though we agree with the General Counsel and Charging Party that
Respondent 's letter of October 18, 1972 , to Sea-Land could have been more
incisive we, nevertheless , find that it was sufficient to toll, as the Administra-
tive Law Judge concluded, the running of the backpay period It was a
sufficient notice to have caused a reasonable man to seek reemployment with
Sea-Land, which Charging Party here apparently did not do
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO. Administrative Law Judge. On May
25, 1972, the National Labor Relations Board issued a Deci-
sion and Order in the above-entitled case' finding that
Brotherhood of Teamsters & Auto Truck Drivers, Local
No. 70, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America (herein called
the Respondent), violated Section 8(b)(2) and (1)(A) of the
National Labor Relations Act (herein called the Act), by
causing an employer, Sea-Land of California, Inc., to dis-
charge employee James Reliford for nonpayment of union
dues accruing during periods when the Respondent had no
right to compel union membership as a condition of em-
ployment. The Board's Order, as amended on December 20,
1972, requires the Respondent, inter alia, to notify Sea-Land
that it has no objection to the reinstatement of James Reli-
ford without prejudice to his seniority or other rights and
privileges, and to make Reliford whole for any loss of pay
suffered by reason of the discrimination against him. There-
after the Board's Order, as amended, was enforced by the
United States Court of Appeals for the Ninth Circuit?
On January 25, 1974, the Regional Director for Region
20 issued a backpay specification. Respondent answered the
i 197 NLRB 125
212 NLRB No. 108
BROTHERHOOD OF TEAMSTERS & AUTO TRUCK DRIVERS 715
specification. On February 25, 1974, a hearing was held on
the issues raised by the pleadings.3
The issues raised by the pleadings and litigated at the
heanng are whether: (1) the Regional Director correctly
computed the gross backpay for the fourth quarter 1970; (2)
the Respondent tolled its backpay liability by sending a
letter to Sea-Land and Reliford on October 18, 1972; (3) the
evidence demonstrates a willful loss of earnings or a failure
to use reasonable diligence by Reliford, during all or part
of the backpay period, in seeking interim employment; and
(4) Reliford received earnings from interim employment
which are not included in the backpay specification.
Upon the entire record,' from my observation of the de-
meanor of the witnesses, and having considered the post-
heanng briefs, I make the following:
FINDINGS AND CONCLUSIONS
Although the Regional Director in computing Reliford's
gross backpay for the fourth quarter 1970 might have prop-
erly used the formula suggested by the Respondent, I am of
the opinion, it was not mandatory that he do so, but only
that he use a method which was not unreasonable or arbi-
trary. See, e.g. N. L. R. B. v. Brown & Root, Inc, 311 F.2d 447,
452 (C.A. 8, 1963). The method, described above, used to
compute Reliford's gross backpay for this quarter is not
arbitrary or unreasonable. In addition, there is no evidence
or even a suggestion that the use of Respondent's method
of computation would have made any difference in
Reliford's gross backpay for the fourth quarter 1970. In
sum, there is no showing that the Respondent has been
unfairly penalized by the use of the Regional Director's
formula. For these reasons, I deny the Respondent's motion
to strike the portion of the backpay specification dealing
with the fourth quarter 1970.
1.
The Regional Director used the earnings of employee
Cody, the employee just below Reliford on Sea-Land's se-
niority list, as the yardstick for determining the amount of
earnings Reliford would have received at Sea-Land during
the backpay period; his so-called gross backpay. Respon-
dent does not contest the use of this replacement formula
in computing Reliford's gross backpay but contends that
the formula was incorrectly applied for one quarter, the
fourth quarter 1970.
Reliford was discriminatorily discharged November 10,
1970, the middle of the fourth quarter. In computing
Reliford's gross backpay for this quarter, the Regional Di-
rector computed Reliford's earnings for the quarter up to
the date of his discharge, November 10, and subtracted
them from Cody's earnings at Sea-Land for the whole quar-
ter. The Respondent points out that, under this formula, if
Cody from October 1 through November 9 earned more
money at Sea-Land than Reliford that the Respondent
would in effect be reimbursing Reliford for moneys he did
not earn.5Respondent urges that the more appropriate
method to compute Reliford's gross backpay for this quar-
ter would have been to determine Cody's earnings at Sea-
Land following Reliford's discharge, November 10 through
December 31. The General Counsel urges that the method
used by the Regional Director in computing Reliford's gross
backpay for the fourth quarter 1970 is an appropriate one.
3 The backpay specification was amended at the hearing to correct an error
in computation
4 At the hearing, the Charging Party's attorney, over the objection of the
General Counsel and Respondent, moved that the Backpay Specification be
amended to include his fees I denied this motion for the reason that the
Charging Party had not previously urged the Board to adopt such a remedy
and the Board did not grant such a remedy The Charging Party. in my
opinion, cannot for the first time in this supplementary proceeding on the day
of the hearing urge that the Board erred in failing to grant this type of relief
Moreover, the Board has consistently refused to grant attorney's fees or
litigation costs absent extraordinary circumstances not present in this case
See, e g, Heck's Inc, 191 NLRB 886, John Singer, Inc, 197 NLRB 88, Fuqua
Homes Missouri, Inc, 201 NLRB 130
5 Conversely, if Reliford during this period earned more money than Cody
then, according to Respondent's argument, Reliford would be the one alleg-
edly receiving unfair treatment.
II
The General Counsel contends that Reliford's backpay
period began on November 10, 1970, and still continues to
run. Respondent admits that the backpay period began on
November 10, 1970, but takes the position that its backpay
obligation was tolled on October 18, 1972, or at the very
latest on January 4, 1973. The evidence pertinent to this
issue can be briefly stated.
The Board's Order, as corrected on August 3, 1972, inter
alia, at paragraph 2(a) ordered Respondent to: "Notify Sea-
Land that Respondent has no objection to the employment
of James Reliford and to furnish James Reliford a copy of
such notification" and, at paragraph 2(b), to make Reliford
whole for any loss of pay or other benefits by paying to him
a sum equal to that which he would have earned from the
date of his discharge "to a date which is 5 days after Re-
spondent advises Sea-Land that it has no objection to the
employment of Reliford.. .. "
On October 18, 1972, Respondent, by letter, notified Sea-
Land and Reliford that it had no objection to Sea-Land's
employment of Reliford The letter reads as follows:
This letter is written in accordance with Paragraph
2(a) of the Order of the National Labor Relations
Board in Case No. 20-CB-2394 that Teamsters Local
70 has no objection to the employment of James Reli-
ford.
This letter is written without prejudice to the right of
Local 70 to seek judicial review of the aforesaid order
of the Board, and to insist upon the uniform applica-
tion of Local 70's contract with Sea Land to all employ-
ees, including James Reliford, in the event he is
employed by you.
On November 7, 1972, Sea-Land 's lawyers, by letter, noti-
fied the Respondent's attorney that they had advised Sea-
Land , "We are unable to read the [Respondent 's] letter of
October 18 as either a recommendation or consent that
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sea-Land reemploy Reliford in the same status with respect
to seniority, etc., which he had on November 10, 1970."
Sea-Land's lawyers told the Respondent's attorney, "[I]f it
is in fact [the Respondent's] intention to recommend that
Reliford be restored to his November 10, 1970, seniority
status, we assume this intention will be communicated to
Sea-Lund by supplemental letter."
On November 9, 1972, the Respondent's attorney sent the
following reply letter to Sea-Land's lawyers:
In accordance with the foregoing revision, Teamsters
Local 70 hereby notifies Sea-Land that Local 70 has no
objection to the reinstatement of James Reliford with-
out prejudice to his seniority or other rights and privi-
leges. This letter is written without prejudice to the
right of Local 70 to seekjudicial review of the aforesaid
order of the Board and to insist upon the uniform
application of Local 70's contract with Sea-Land to all
employees, including James Reliford, in the event he is
employed by you.
This is in response to your letter of November 7, in
the above case.
The letter of October 18, 1972 from Teamsters Local
70 is intended to comply with Paragraph 2(a) of the
Board's Order in case No. 20-CB-2394 issued on May
25, 1972. That provision of the Board's Order requires
that Local 70 notify Sea Land that Local 70 has no
objection to the employment of James Reliford, and
the letter of October 18, 1972 conforms precisely with
that requirement. Neither more nor less is intended by
the letter.
If you have any questions with respect to the mean-
ing of the Board's Order I would suggest that you com-
municate with a representative of the National Labor
Relations Board. Any further action by Local 60 in
connection with Paragraph 2(a) will be guided by the
requirements of that provision. If there is a problem of
any kind I will be in touch with the Labor Board in
order to obtain its views and advise Local 70 accord-
ingly.
On or about November 10, 1972, the General Counsel,
without opposition from the Respondent, filed a motion
with the Board to amend the Board's Order to delineate
more clearly the action which Respondent must take to
remedy the unfair labor practices. In response, the Board
on December 20, 1972, issued an Order in which it noted
that it had considered the General Counsel's motion to
amend, "and, in view of the lack of opposition thereto,
grants the motion in full." Accordingly, paragraph 2(a) of
the Board's Order which directed Respondent to, "notify
Sea-Land that Respondent has no objection to the employ-
ment of James Reliford and furnish James Reliford a copy
of such notification" was amended to read, "notify Sea-
Land that Respondent has no objection to the reinstate-
ment of James Reliford, without prejudice to his seniority or
other rights and privileges, and furnish James Reliford a
copy of such notification." (Emphasis supplied.)
On January 4, 1973, the Respondent sent the following
letter to Sea-Land and Reliford:
This letter is written in accordance with the Board's
Order, as revised on December 20, 1972, in case No.
20-CB-2394.
On or about January 5, 1973, Reliford was reinstated by
Sea-Land to his formerjob and given his former position on
Sea-Land's seniority roster with no loss of seniority or other
rights and privileges previously enjoyed.
On January 17, 1974, the Court of Appeals for the Ninth
Circuit entered its judgment enforcing in full the backpay
provisions of the Board's Order, as amended.
The Board's amended Order, as described above, re-
quired the Respondent, inter alia, to notify Sea-Land and
Reliford that it has no objection to the reinstatment of
Reliford without prejudice to his seniority and other rights
and privileges and further directed the Respondent to make
Reliford whole for lost wages from the date of his discharge,
until 5 days after the Respondent took the remedial action
just described. The Respondent contends that its letter of
October 18, 1972, complied with the Board's Order and
terminated its responsibility for Reliford's subsequent loss
of pay. The General Counsel contends that the letter was
equivocal and because of this did not terminate the
Respondent's backpay liability.
The parties' positions on this question must be evaluated
in the light of the following standard:
Where a union undertakes to remedy its prior unlawful
conduct, the Board has recognized the inequity in con-
tinuing to charge it with backpay liability simply be-
cause the employer, whose actions the union cannot
control, declines to hire the victim of the past, union-
caused discrimination. Nonetheless, the Board has in
this type of case required clear, unequivocal action by
the union, so as not to permit it to escape liability by
virtue of a token act not calculated or likely to achieve
a correction of the wrong committed. (Reinforcing Iron
Workers Local Union No. 426 (Tryco Steel Corp), 192
NLRB 97).
Tested by this standard, I am convinced that the
Respondent's letter of October 18, 1972, terminated its re-
sponsibility for Reliford's subsequent loss of pay. Cf. West-
wood Plumbers, 131 NLRB 562.
In reaching the conclusion that Respondent's letter of
October 18, 1972, terminated its responsibility for Reliford's
subsequent loss of pay, I have been motivated by the follow-
ing considerations. The letter unequivocally stated that Re-
spondent had no objection to the employment of Reliford
by Sea-Land .6 The letter complied with the terms of the then
6 The evidence is insufficient to demonstrate that the Respondent' s insis-
tence that its contract be uniformly applied to all employees, including
BROTHERHOOD OF TEAMSTERS & AUTO TRUCK DRIVERS
outstanding Board Order against Respondent , and, there is
insufficient evidence to establish that the Respondent was
not making a good -faith effort to cure its previous misdeeds.
The circumstances surrounding the letter do not indicate a
lack of good faith . To the contrary, Respondent did not
object to the motion by the General Counsel to clarify the
Board Order and, as soon as the Board clarified the Order,
the Respondent immediately complied with the amended
Order in pertinent part . In short , Respondent has made a
sincere effort to cure its misdeeds , at all times , by complying
with the Board's original and amended Order. The fact that
Sea-Land's attorney viewed the letter of October 18, 1972,
with skepticism is not relevant , in my opinion , because the
letter complied with the then outstanding Board Order and
there is a lack of evidence to indicate that the Respondent
was acting in bad faith or even intended to object if Sea-
Land reinstated Reliford without prejudice to his past se-
niority. I realize that the Respondent 's attorney , in response
to the letter from Sea-Land's attorney, could have easily
reassured Sea-Land that Respondent would not object if
Reliford was reinstated with his seniority . But, when the
entire record is considered , I am unable to conclude that
this one bit of conduct is sufficient to taint the letter of
October 18, 1972. On balance, I am of the opinion, that the
equities in this case favor the Respondent and that its letter
of October 18, 1972, effectively terminated the
Respondent 's backpay liability. Accordingly, I find that the
backpay liability of the Respondent terminated on October
23, 1972.7
Respondent in its answer urges that its backpay liability
should be mitigated because Reliford during the backpay
period "did not use due diligence in seeking employment,
and specifically alleges that he did not seek to use the hiring
hall facilities of Respondent. .. .
Respondent operates a hiring hall for casual employees.
During the hours of 5 a.m. to 4 p.m. for 5 days a week it
dispatches employees to jobs as truckdrivers, drivers-help-
ers', and tojobs loading and unloading trucks. The referrals,
1 day in duration, are known in the trade as casual work.
Employers use the Respondent's hiring facility when they
cannot handle the work load with their ordinary comple-
ment of employees. If an employer likes the work of a
particular casual and has a continuing need for extra men
it can, and usually does, continue to request the casual by
name for a number of consecutive days, or whenever a
casual is needed.
Of the various registration lists maintained at
Respondent's hiring facility, Reliford signed four: The
heavy-duty drivers list for Class A drivers; the grocery list
for drivers and helpers employed by the large grocery
chains; the night dock list for loading and unloading trucks
at night ; and the lumpers list for loading and unloading
trucks for less than a full day. Reliford was required by the
Reliford, was intended or calculated to qualify the unequivocal nature of its
expressed lack of objections to Reliford's employment
The Board's usual policy is to terminate backpay liability 5 days after
such notification
717
rules of the Respondent's hiring hall to register on the sever-
al out-of-work registers between 5 a.m. and 7:30 a.m. He
could register on all four of the above lists simultaneously.
He remained registered until his name was called out for a
job. If Reliford accepted the referral, his name was stricken
from each one of the registers he had signed. Likewise, it
was stricken if he was not in the hall and failed to answer
when his name was called for referral. When his name was
signed on the heavy-duty drivers list, Reliford had to stay
at the hall until 12 noon to avoid missing a referral and
thereby having his name scratched from the registration
lists . And, according to the Respondent's Secretary-Trea-
surer Mack, when Reliford registered for work on the night
dock or lumper lists and "possibly" the grocery list, he had
to remain at the Respondent's hiring facility throughout the
afternoon as well as the morning to make sure that his name
was not called out and scratched from the registration lists
in his absence.
Reliford testified, in effect, that from his discharge on
November 10, 1970, through April 1971 he registered for
work at the Respondent's hiring facility approximately two
or three times .8 He also testified that from June through
September 1971 he registered about once a month.
Respondent's registration roster for class A drivers from
November 1970 through April 1971 reveals that Reliford
registered on this roster five times .9 Based on the foregoing,
I find that between November 10, 1970, the date he was
discharged, through May 1971 Reliford registered approxi-
mately five times at the Respondent's hiring facility for
casual work and from June through September 1971 regis-
tered, at the most, once a month. In other words, the record
establishes that from November 10, 1970, through Septem-
ber 1971 Reliford did not regularly register for work at the
Respondent's hiring facility. I further find that if Reliford
regularly registered during this period he would have re-
ceived a certain amount of work depending on the amount
of casual work available. How much work Reliford would
have received, however, is speculative.10 In any event, the
amount of money that Reliford would have earned or the
amount of casual work he would have secured if he had
regularly registered at the Respondent's hiring facility is not
the issue in this case . The issue is whether the whole record,
including Reliford's failure to regularly register at the
Respondent's employment facility, preponderates in favor
of a showing of a willful loss of employment or a lack of
reasonable diligence on the part of Reliford in seeking em-
ployment. In this regard, the law is settled that the Respon-
dent may mitigate its backpay liability by showing that
Reliford "willfully incurred" loss by a "clearly unjustifiable
8 To the extent that Reliford's affidavit, submitted by him to the Regional
Director, p 2, creates the inference that he registered each day during a
3-month portion of this period , I reject the inference as being inconsistent
with his oral testimony
e Respondent's registration rosters were unavailable for the period from
Many 1971 through April 1972 having been destroyed by fire
I do not believe that the $5 ,000 earned by the Respondent 's secretary-
treasurer . Chuck Mack , as a casual employee between December and May
can be used as a guideline A substantial amount of this work was the result
of employers calling Mack for referral by name Mack is an articulate college
graduate who between 1966 and 1970 served the Respondent as an elected
business agent and in 1971 was a lobbyist for the Teamsters Union On the
other hand. Reliford impressed me as an ordinary worker with very little
education who has a difficult time communicating
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
refusal to take desirable new employment." Phelps Dodge
Corp. v. N.L.R.B., 313 U.S. 177, 199-200 (1941). "The cases
are unanimous," however, that the defense of willful loss of
earnings is an "affirmative defense" and the burden is on
the Respondent to prove the necessary facts. N.L.R.B. v.
Mooney Aircraft, Inc., 366 F.2d 809, 813 (C.A. 5, 1966). "It
was incumbent upon the Respondent to demonstrate by a
fair preponderance of evidence that [Reliford] did not make
reasonable efforts, when considered in the light of all the
surrounding circumstances, to seek out work that might
have been available to [him]," Cornwell Company, Inc., 171
NLRB 342, 343. Moreover, while the Respondent may show
that Reliford failed to make "reasonable efforts to mitigate
[his] loss of income . . . [Reliford is] held . . . only to rea-
sonable exertions in this regard, not the highest standard of
diligence." N.L.R.B. v. Arduini Manufacturing Corp., 394
F.2d 420, 423 (C.A. 1, 1968). "Success" is not the measure
of the sufficiency of Reliford's search for interim employ-
ment; the law "only requires an honest good faith effort."
N.L.R.B. v. Cashman Auto Company and Red Cab Company,
223 F.2d 832, 836 (C.A. 1, 1955). Further, it is settled that
any uncertainty is resolved against the wrongdoer, the Re-
spondent, whose conduct made certainty impossible.
N.L.R.B. v. Miami Coca-Cola Bottling Company, 360 F.2d
569, 572-573, (C.A. 5, 1966). Tested by these principles, I
believe that Reliford made a reasonable effort, in the cir-
cumstances of this case, to secure employment.
Reliford testified, in substance, that he did not regularly
register at the Respondent's hiring hall for casual work for
the reason that at certain times there was little work avail-
able and, for the further reason that he would not register
if he believed he would not be referred to a job the same day.
Reliford, in this regard, testified that he had been informed
by an agent of the Board that he was obliged to go around
to as many places as possible to look for jobs.
It is undisputed that, in an effort to secure employment,
Reliford took the following steps: 11
(1) In December 1970, Reliford registered for work at the
State of California employment office and from that date
until about May 1972 went to this office twice a week to
inquire about employment. During 1971 he was referred by
the employment office to two jobs which he applied for
unsuccessfully.
(2) Reliford visited three local Teamsters unions which
have jurisdiction over newspaper, construction, and auto-
motive work and also visited two other local Teamsters
unions with jurisdiction in the trucking industry.
(3) During the backpay period, a total of about 102
weeks, Reliford throughout the period personally visited
between 51 and 55 different employers, some more than
once, where he applied for a job.1 Reliford did not limit his
search for work to the georgraphical area immediately adja-
cent to his home but went as far south as Compton, Califor-
nia, and as far north as Eureka, California.
In sum, as described above, I find that Reliford during
11 Reliford was handicapped in his quest for work due to the fact that
about 4 months after his discharge his automobile was repossessed because
of his inability to continue to make payments.
12 At the very least, Reliford visited 24 of these employers during 1971. In
the first quarter, 7 , second quarter , 5; third quarter, 5 and fourth quarter, 7
the backpay period through various labor organizations, the
State of California employment agency, and on his own
made a reasonably diligent effort to obtain employment.
There is no evidence that his efforts were not undertaken in
good faith. I further find that the Respondent has failed to
sustain the burden of establishing that Reliford willfully
incurred a loss of interim earnings at any time during the
backpay period. In concluding that Reliford's failure to
regularly register at the Respondent's hiring facility does
not constitute evidence, by itself, to establish a willfull loss
of earnings, or otherwise mitigate Respondent's backpay
liability, I have considered the nature of the employment
involved. At the time he was unlawfully discharged, Reli-
ford was employed as one of Sea-Land's senior employees
with a guarantee of steady work. I do not believe that, upon
being unlawfully discharged, he was obligated to immedi-
ately register regularly at the Respondent's hiring facility
and accept intermittent casual employment. Indeed, such a
requirement would interfere with Reliford's effort to secure
regular employment. For, as described above, in order to
maintain his place on the registration list, Reliford was
forced to remain at the hiring facility at least until noontime
each day and under,certain situations all day. For these
reasons, in my opinion, Reliford was entitled to forego casu-
al employment through the Respondent's hiring facility and
to seek out steady employment for at least a reasonable
period of time. Reliford did this. After he failed to secure
a steady job, Reliford commencing in about July 1972 regu-
larly registered at the Respondent's hiring facility for casual
work. Based on the foregoing, I am of the opinion that the
claim of willful loss or lack of reasonable diligence in
Reliford's case has not been affirmatively established by a
preponderance of the evidence.13
IV.
For the reasons described above, I have concluded that
by failing to regularly register at the Respondent's hiring
facility that Reliford did not incur a willful loss of earnings
or engage in the type of conduct which establishes that he
was not engaged in a diligent search for work or which
enables the Respondent to otherwise mitigate its liability.
But, the record does indicate that on certain dates Reliford
was referred by the Respondent to certain employers, and
his earnings from said employers were not included in the
Backpay Specifications. Respondent introduced into the re-
cord referral slips made out by, the Respondent's hiring hall
dispatchers during the normal course of business, which
13 In arriving at this conclusion , I have considered that during the last
quarter 1970 Rehford's search for work was limited to registering at
Respondent 's hiring facility on three occasions , applying for work with the
U S. Post Office and registering for work with the State department of em-
ployment. This, however, was the period of time immediately following his
unlawful discharge and encompassed a limited period of about 35 working
days. It is undisputed that during this period there were not many employees
being referred through the hiring facility inasmuch as work was slow. This
is vividly illustrated by the fact that although Reliford registered on Decem-
ber 9 his name was not reached for a I-day job until December 21. Under
these circumstances, and in the light of Reliford's efforts to secure work
during the entire backpay period I am of the opinion that the evidence does
not preponderate in favor of a showing that he failed to make a diligent
search for work during the 35 working days immediately after his discharge,
or was obligated to regularly register at Respondent 's hiring facility.
BROTHERHOOD OF TEAMSTERS & AUTO TRUCK DRIVERS 719
indicate that on specific dates Reliford was referred to spe-
cific employers. These referral slips establish prima facie
that Reliford in fact was referred and worked for the named
employer for I day, the day he was referred. A comparison
between the Regional Director's backpay computation
(Resp. Exh. 3), upon which the backpay specification is
based and the names of the employers to whom Reliford
was referred and the dates of the referrals , establish that in
the second, third, and fourth quarters of 1972 Reliford was
referred to the employers named in Appendix A attached
herein , on the dates aside of their respective names and that
his earnings from these referrals were not included in the
interim earnings contained in the backpay specification. 14
Accordingly, as detailed in Appendix A, Reliford's interim
earnings should be increased in the second quarter of 1972
by $155.04; in the third quarter of 1972 by $480.64 and in
the fourth quarter of 1972 by $300.005
At the request of the Respondent, the General Counsel
after the close of the hearing, with the cooperation of Reli-
ford , secured a copy of the income tax return filed by Reli-
ford with the Internal Revenue Service for 1972.16 Reliford's
income tax return shows earnings of $7,167 for 1972 where-
as the Regional Director 's backpay specification shows
earnings of $6,282 .69 for 1972 , a difference of $884.31. In
the circumstances of this case, Reliford 's income tax return
contains more reliable evidence of his interim earnings for
1972 than the figures relied on by the Regional Director.17
Murray Ohio Manufacturing Co., 151 NLRB 1430. There is
no way to exactly compute during which quarter in 1972
these additional interim earnings were earned . Under the
circumstances, I shall divide by four the $884 of additional
interim earnings , thereby, prorating the amount over the
four quarters . This results in additional interim earnings of
$221 for each quarter in 1972. Regarding the fourth quarter,
inasmuch as Respondent's backpay liability was tolled Oc-
tober 23, 1972, and there is no exact way to determine on
this record what percentage of the additional interim earn-
ings occurred between October 1 and 23, I have divided the
additional $221 by 63, the number of work days in the
fourth quarter excluding Christmas and Thanksgiving, and
on this basis prorated the $221 over the 16-work days for
which backpay is owned in the fourth quarter. This totals
$56.
In reviewing the Respondent's registration records, I have
considered the possibility that on certain dates when
Reliford 's name was scratched off the registration lists,18
14 There is no indication that the above earnings were deliberately withheld
from the Board by Reliford His records were destroyed by fire and it appears
these were jobs he inadvertently omitted
15 These earnings are computed based on the testimony of Secretary-Trea-
surer Mack (Tr 115-117) In this regard , I also note that Reliford, in effect,
testified that he preferred truckdriver work and for the most part registered
for truckdriver work
16 The parties entered into a posthearing stipulation agreeing to the receipt
into evidence of Reliford 's 1972 income tax return Accordingly , the afore-
said income tax return and stipulation are a part of the record
17 It is clear that Reliford , without the aid of a complete set of records, was
supplying the Regional Director with only the best estimate of his interim
earnings The record , however , does not establish fraudulent conduct or the
deliberate withholding of interim earning information by Reliford
15 The parties stipulated that when Reliford's name was scratched from the
registration lists it was because of either one or two occurrences He was
either referred to a job or did not respond when his name was called out for
under circumstances which indicate that he was not referred
to a job, i.e., the absence of the issuance of a referral slip,
that it should be presumed that Reliford in effect willfully
rejected employment on those days and that the
Respondent's backpay liability should be reduced to that
extent. The Respondent's registration records indicate that
during the backpay period this situation occurred on the
following dates:
Registration Scratched
11/30/70 12/1/70
12/9/70 12/21/70
12/14/70 12/21/70
4/15/71 4/23/71
4/21/71 4/26/71
5/30/72 5/30/72
9/21/72 9/22/72
10/18/72 10/18/72
10/19/72 10/19/72
I am of the opinion that a claim of willful loss has not
been affirmatively established by a preponderance of the
evidence by the failure of Reliford to respond when his
name was called out for a job on the dates described above.
There is no showing that Reliford willfully refused to take
a job on those occasions. It is just as reasonable to presume
that he was not present in the hiring hall when his name was
called. As described earlier, it is necessary for a registrant
to remain at the Respondent's hiring facility from about 5
a.m. to 12 noon and in the case of Reliford who signed the
grocery, lumpers, and night dock lists to stay into the af-
ternoon in order to make sure that his name was not called
out and scratched from the registration lists because of his
absence. For the reasons expressed earlier, I do not believe
that Reliford was obligated to stay at Respondent's hiring
facility for hours or days on end hoping to be referred to a
casual job which would normally only last 1 day. It was
more productive to do what Reliford testified the Board
agent told him to do; namely, to ¢o around and personally
seek out regular employment. Under the circumstances, and
mindful of Respondent's burden and the fact that any un-
certainty is to be resolved against it, I am of the opinion that
Respondent has not sustained its burden of proving Reli-
ford willfully incurred a loss of earnings on the above dates
on which his name was scratched from the Respondent's
registration lists.
To recapitulate I have found that the Respondent's back-
pay liability was tolled on October 23, 1972, and that certain
sums of money should be added to Reliford's interim earn-
ings in 1972. In all other respects, the Regional Director's
backpay specification, as amended, properly defines the
Respondent's liability. Because of the foregoing changes in
the basis for computing interim earnings and gross backpay,
I have recomputed Reliford's interim earnings, gross back-
pay, and net backpay as follows. When the additional inter-
im earnings found above for the first, second, and third
quarters of 1972 are deducted from Reliford's gross back-
pay for these periods it results in a total of $22,819 net
a job
720 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
backpay owed Reliford from November 10, 1970 through
the third quarter of 1972. The backpay period ends in the
fourth quarter on October 23, 1972. It is not possible, how-
ever, on this record to exactly compute the net backpay
owed Reliford for this 23-day period. Under the circum-
stances, I have divided Reliford's gross backpay and interim
earnings for the entire fourth quarter 19 by 63, which is the
number of workdays in the fourth quarter 1972 excluding
Christmas and Thanksgiving, and prorated these amounts
over the 16 workdays for which backpay is owed during the
fourth quarter. This totals, in round numbers, gross back-
pay $1,180 and interim earnings $565 to which must be
added the additional interim earnings of $300 and $56 for
this period previously found. Accordingly, Reliford's net
backpay for the fourth quarter of 1972 is $259.
On the basis of the foregoing, I recommend that Reliford
be awarded backpay in the amount of $23,078.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
SUPPLEMENTAL ORDER 20
Respondent, Brotherhood of Teamsters & Auto Truck
Drivers, Local No. 70, International Brotherhood of Team-
sters, Chauffeurs, Warehousemen & Helpers of America, its
officers, agents, and representatives , shall pay James Reh-
ford as net backpay the sum of $23,078 and the pension
trust fund, $1,170, together with interest thereon at 6 per-
cent per annum less any tax withholdings required by Fed-
eral and state law.
19 Based upon the backpay specification, Reliford's gross backpay for this
period is $4,644 and his interim earnings, $2,235 38
20 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec 102 48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and order, and all objections thereto shall be deemed
waived for all purposes
APPENDIX A
2d Quarter
employer earnings
5/22/72-Inter Lyons 51.68
5/26/72-ONC 51.68
6/5/72-U.S. Cold Storage 51.68
155.04
3d Quarter
employer earnings
7/3/72-Ohio Medical 60.08
7/6/72-Transcontinental 60.08
7/7/72-Marathon 60.08
7/10/72-SF Trucking 60.08
8/14/72-Transcontinental 60.08
8/16/72-Hunts Foods 60.08
8/ 17/72-Transcontinental 60.08
9/5/72-Central 60.08
480.64
4th Quarter
employer earnings
10/2/72-Consolidated 60.08
10/3/72-Haslett 60.08
10/4/72-Secunty 60.08
10/9/72-Security 60.08
10/1 1/72-Simmons 60.08
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