Daniel International Corp.

National Labor Relations Board - Board Decisions

Sep 30, 1985

276 N.L.R.B. 1093 (N.L.R.B. 1985)

DANIEL CONSTRUCTION CO. 1093 -
Daniel Construction Company , a Division of Daniel
- International Corporation and North Carolina
State Building & Construction Trades Council,
AFL-CIO. Cases 11-CA-9019, 11-CA-9105,
-1l-'CA-9246, 11-CA-9288, 11-CA-9343, 11-
CA-9364, and 11-CA-9365
30 September 1985
SUPPLEMENTAL DECISION AND
ORDER
By CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 29 March 1985 Administrative Law Judge J.
Pargen Robertson issued the attached supplemental
decision setting forth the backpay he found due
pursuant to a 1982 Decision and Order in this pro-
ceeding.' The General Counsel filed exceptions
and a supporting brief. The Respondent filed an an-
swering brief, cross-exceptions, and a brief in sup-
port of its cross-exceptions.
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 briefs and has
decided to affirm the' judge's rulings , findings,2 and
conclusions3 as 'modified, but not to adopt the rec-
ommended Order.
1 264 NLRB 569 (1982), enfd 731 F 2d 191 (4:h Cir 1984)
2 The General Counsel and the Respondent have excepted to some of
the judge's credibility findings The Board's established policy is not to
overrule an administrative law judge's credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are incorrect Standard Dy'Wall Products, 91 NLRB 544 (1950), enfd
188 F 2d 362 (3d Cir 1951) We have carefully examined the record and
find no basis for reversing the findings
In sec . I, par . 3, of his decision ,' the judge erroneously referred to 17 or
18 April 1984, rather than - 1980 In sec II,B, par 6, the judge erroneous-
ly referred to 5 April 1981, rather than 1982 In sec II,C,4,(b), (par 2,
the judge incorrectly stated employee Wood's job-search notes show 10
contacts to 6 employers during 1981 They in fact show 11 contacts We
correct these inadvertent errors
Neither the General Counsel nor the Respondent excepted to the
judge's findings that employee McDowell did not suffer a willful loss of
earnings, that employee Wood was not entitled to be reimbursed for.cer-
tain expenses , nor to the judge's table of applicable interest rates
3 We agree with the judge's conclusion that the Respondent's responsi-
bility to offer to reinstate the employees it unlawfully discharged, and to
make them whole for their losses, does not terminate in the event the em-
ployees obtain substantially equivalent employment elsewhere See Phelps
Dodge Corp Y NLRB, 313 U S 177, 193-194 (1941)
We also agree that neither Perma Vinyl Corp, 164 NLRB 968 (1967),
enfd sub nom U.S Pipe & Foundry Co. v NLRB, 398 F 2d 544 (5th Cir.
1968), nor American Auto-Felt Corp, 158 NLRB 1628 (1966), requires a
different result . In each of those cases , the respondent employer sold its
operation , and the Board stated that its backpay liability should terminate
in the event the discrimmatees obtained substantially equivalent employ-
ment elsewhere . In Perma Vinyl, the respondent was no longer an em-
ployer and therefore could not terminate its backpay liability by offenng
reinstatement While the employer in American Auto-Felt continued to
maintain an additional plant, the Board stressed that its employees had no
employment expectancy at the remaining plant , nor was there any evi-
dence that the employer ever transferred employees from plant to plant.
158 NLRB at 1641
The Respondent provides maintenance and con-
struction services to manufacturers including sever-
al in the Wilmington, North Carolina area. In 1980
the Respondent discharged a number of employees
from its Du Pont Company and Hercofina Compa-
ny sites. In its 1982 Decision and Order, the Board
found, inter alia , that certain of the discharges vio- -
lated Section 8(a)(3) and (1) of the Act, and it or-
dered the Respondent to offer to reinstate the dis-
charged employees and to make them whole for
their lost backpay and benefits.4
On 6 March 1981 the Respondent's contract with
the Hercofina -Company terminated and Mundy In-
dustrial Maintenance, Incorporated. took over as
Hercofina' s maintenance and construction contrac-
tor. After interviewing 400 to 500 applicants,
Mundy hired 121 of the Respondent's 133 employ-
ees assigned to the Hercofina plant. The Respond-
ent employed all but one of its remaining Herco-
fina-site employees at other- sites.
The judge found the "probabilities . . . over-
whelming"- that either Mundy or the, Respondent
would have employed the Respondent's unlawfully
discharged Hercofina-site employees after 6 March
1981. The judge thus concluded the Respondent
was liable for their backpay after 6 March, not-
withstanding that it lost its Hercofina contract.5 He -
determined - their backpay based on what they
would have earned had they -been employed by
Mundy at the Hercofina site . We agree.
'1. We disagree, however, with the judge's con-
clusion that - discriminatee Jerry Carter's gross
backpay should not include projected overtime cal-
culated by determining the average overtime
worked by Mundy employees in Carter's classifica-
tion.
After he was discharged, Carter began working
for the Wood Tee Company and remained em-
ployed there through the time , of the hearing.
Carter's total interim earnings exceeded the gross
backpay the General Counsel projected he would
Although the Respondent here terminated its operation at Hercofina
Company when it lost its maintenance and construction contract , it main-
tained other operations in the area Also, the Respondent demonstrated it
could transfer its employees to other operations when it hired at other
sites all but one of its Hercofina-site employees not hired by Hercofina's
replacement contractor We thus find that the Respondent is able to rein-
state the employees it unlawfully discharged and that it would effectuate
the policies of the Act for it to do so Its backpay liability therefore , con-
tinues without regard to whether the employees have found, or do find,
substantially equivalent employment elsewhere
In light of our. conclusion, we find it unnecessary to pass on the judge's
discussion of whether the employees ' interim employment was substan-
tially equivalent to that from which they were discharged
4 264 NLRB at 571 , 616-617
5 See American Auto-Felt Corp, 158 NLRB at 1632, Hoke Janitorial
Service, 213 NLRB 783, 786 (1974), Haberman Construction Co, 236
NLRB 79 (1978), enf denied in part on other grounds 641 F 2d 351 (5th
Cir 1981) (en banc) -
276 NLRB No. 115
1094 - DECISIONS OF -NATIONAL LABOR RELATIONS BOARD
have earned with Mundy. Carter earned more only
because he worked far more overtime than the av-
erage Mundy employee;s. his hourly pay at Wood
Tee was less than that paid-at-Mundy. -
The judge found the General Counsel's overtime
projection uncertain, stating: "It appears. no more
logical to apply to Carter what the most ambitious
Mundy employee worked as overtime than to
apply to him what the average Mundy- employee
worked as overtime."--He thus excluded Carter's
projected overtime earnings from his projected
gross backpay., He also excluded his actual over-
time from his interim earnings. By then subtracting
Carter's interim earnings , adjusted to- 40-hour
weeks, from his projected gross backpay, also ad-
justed to 40-hour weeks, the judge determined his
net backpay. He thus reduced the General. Coun-
sel's claim for Carter from $15,181 to $9,775.
Mundy's' payroll records for the backpay period
show, however;' that -virtually -every Mundy em-
ployee in Carter's classification -worked- overtime
during the backpay period. Denying Carter the dif-
ference between his hourly pay at Wood Tee 'and
Mundy's hourly pay, for the overtime hours he
would have worked at Mundy, thus fails to restore
Carter to "the situation, as nearly as possible, to
that which would have obtained but for the illegal
discrimination. 117 Southeastern Envelope Co.,8 relied.
on by the judge, does not provide support for re-
lieving the judge of the duty to approximate what
Carter would have earned. While in that case the
Board excluded overtime from a discriminatee's
actual interim earnings, it did so because the Gen-
eral. Counsel did not seek backpay for any project-
ed overtime hours.9 Where, as here, the General
Counsel seeks- backpay for projected overtime
hours, and proves that the discriminatee would
have worked overtime but - for the unlawful dis-
crimination, the judge must approximate the hours
the discriminatee would have worked.
Unlike the judge,- we find- that averaging the
Mundy employees' hours, while not exact, is a fair
and reasonable 'method for approximating what
6'The following chart shows the weekly overtime worked by the aver-
age Mundy'employee and that worked by Carter at Wood Tee -
Average Overtime per Week*
Mundy Employees - Carter
1981•• 2 23 15 88
1982 2 33 10 62
1983 28 16 15
° Based on a 40-hour week
°f Commencing 7 March
7 Phelps Dodge Corp v NLRB, 313 U S at -194
8 246 NLRB 423 (1979)
9 Id at 424
Carter would have earned. t 0 We shall therefore
issue a new Order in which the Respondent will be
required to pay Carter an amount reflecting what
he would have earned had he been employed by
Mundy and worked the same number of overtime
hours as the average Mundy employee in his classi-
fication. -
2. We agree with the judge that-Sammy Wood
incurred a willful loss of earnings after the first
quarter of 1982. We emphasize, however, that, al-
though Wood was employed during this period,-he
was not so fully employed that he was precluded
from seeking a more suitable job.
Wood lowered his sights. in February, 1981 by
accepting work with his family' s business at an
hourly rate less than the $10.35 per.hour paid to
comparable Mundy employees in March. When-
Wood began working for his family he worked
only 8 to 16 hours each week. Although precise
figures are not available, we - estimate that Wood
worked less than .30 hours per week during the
fourth- quarter of 1982 and the first quarter of
1983.11
Under these circumstances, we agree. Wood had
a duty to continue seeking more suitable work.12
Because he failed to do so after the first- quarter of
1982, the Respondent's liability for backpay termi-
nated. -
ORDER
The National Labor Relations Board orders that -
the Respondent; Daniel Construction Company, a
Division of Daniel International Corporation, Wil-
mington, North Carolina, its officers , agents, suc-
cessors, and assigns , shall pay to the. employees' -
listed below the net backpay amounts set forth next
to their names. The Respondent shall also ,pay in-
terest on the employees' net backpay as set forth in
10 See Rice Lake Creamery Co, 151 NLRB 1113, 1118-19 (1965), enfd
in pertinent part 365 F 2d 888 (D C Cir 1966), see also NLRB v Brown
& Root, 311 F 2d 447, 452-453 (8th Cir 1963).
11 Wood was ill and unavailable for work dunng the second and third
quarters of 1982 and the General Counsel did not seek reimbursement for
this period During the fourth quarter of 1982 and the first quarter of
1983, however , Wood earned $1298 and $1114 , respectively Based on
the Federal minimum wage of $3 35, 29 U S C § 206(a)(1) (1982); Wood
could have averaged , at most, 29 8 hours and 25 5 hours per week, re-
spectively
12 See NLRB Y Madison Courier, 505 F.2d 391, 405 (D C Cir. 1974);
cf. Laredo Packing Co, 264 NLRB 245, 250 (1982) (unreasonable for em-
ployee Rodriguez to quit lower paying 30-hour-per -week job,'he had suf-
ficient time to seek more suitable work during off-duty hours), enfd 730
F 2d 405 (5th Cir 1984); contrast Big Three Industrial Gas Co, 263
NLRB 1189, 1211 (1982) (judge assumed discriminatee employed "virtu-
ally" full time "was engaged in a good -faith effort to mitigate Respond-
ent's liability, but was unable to find better paying work "), overruled,on
other grounds American Navigation Co.,_268 NLRB 426 (1983)
In agreeing with his colleagues that Wood had a duty to continue to
seek more suitable work , Chairman Dotson does not rely on the cases
referred to above
DANIEL CONSTRUCTION CO
footnote 17 of the judge's decision, 13 and shall
deduct-any tax withholdings required by law.
Jerry Carter " $15,181
Donald Rouse . 1,473
Larry McDowell 24,406
Sammy Wood -17,547
13 See generally Isis Plumbing Co, 138 NLRB 716 (1962), enf denied
.on other grounds 322 F 2d 913 (9th Cir 1963)
Paris Favors, Jr., Esq., counsel for the General ' Counsel.
Melvin Hutson and Leon Harmon, Esq., for the Respond-
ent.
- SUPPLEMENTAL DECISION
J. PARGEN ROBERTSON , Administrative Law Judge.
This matter involves issues of backpay and reinstatement
which were joined by the General Counsel 's August 31,
1984-backpay specifications and the answer filed by Re-
spondent .I Those pleadings resulted from a controversy
regarding the implementation of the remedy directed in
the Board's Order reported at 264 NLRB 569 (1982),
enfd . 731 F 2d 191 (4th Cir. 1984).
i Following the hearing, the General Counsel filed a motion to further
amend backpay specifications on December 31, 1984 On January 11,
1985, Respondent filed a response to the General Counsel's motion On
January 24, 1985, the General Counsel responded to Respondent's re-
sponse and, on February 4, 1985, Respondent protested receipt of the
General Counsel's response Due to Respondent's objections to the Gen-
eral Counsel's motion to further amend that (1) the General Counsel
failed to include in her attachments to that motion "the summary work-
sheets showing weekly regular and overtime hours for each representa-
tive Mundy employee," (2) Jerry Carter "was not produced as a witness
at the backpay heanng," and (3) the General Counsel was attempting to
include backpay figures for 1984 even though Respondent has not had an
"opportunity for cross-examination" regarding those figures, I issued a
March 4, 1985 Order to Show Cause, wherein I granted the General
Counsel's motion to further amend and directed the parties to show cause
why I should not reopen the hearing and direct production of the "sum-
mary worksheets" and afford "certain cross-examination privileges "
In the parties' responses to the aforementioned Order to Show Cause
the General Counsel stated she had no objection to a limited purpose re-
opening of the record but Respondent opposed reopening the record In
her response the General Counsel alleged that Respondent had the "sum-
mary worksheets" in its possession "since on or about January 25, 1985 "
I. agree with Respondent's position that the hearing should nbt be re-
opened I now order that the hearing be closed I also agree with Re-
spondent that the backpay figures for 1984. should be disregarded due, in
part, to the fact that Respondent has hot had cross-examination privi-
leges - -
"
However, concerning the "summary worksheets," I will not direct
their receipt into evidence in view of the entire record At the hearing I
ordered the parties to review Mundy records in an effort to more pre-
cisely compute gross backpay figures for 1981 and to submit to the
record a summary of these records with the proviso that the source
records could be submitted in the event of disagreement over the submit-
ted summary Respondent has not elected to introduce those source doc-
uments despite its asserted disagreement Moreover, Respondent has not
disputed the General Counsel's claim that it has had the "summary work-
sheets" in its possession since about January 25, 1985.
Under these circumstances I will not delay these proceedings further in
view of the record which shows that all parties have had a full opportu-'
nity to develop this particular issue
Additionally, I will draw no adverse inference from the failure of the
General Counsel to call'discnminatee Jerry Carter during the heanng As
shown below Respondent did not demonstrate a desire to examine
Carter. -
1095
As shown in the underlying decision, Respondent is a
construction company. During material times Respond-
ent was party to several maintenance and construction
contracts with various companies in North and South
Carolina, as well as in other States. The issues raised in-
volve two such contracts near Wilmington, North Caro-
lina, at the Du Pont and Herconfina sites.
At the hearing I approved a partial settlement which
was subsequently consummated by Respondent paying
backpay to five discriminatees formerly employed at the
Herconfina site and six discriminatees formerly employed
at the Du Pont site.2 I have been advised by Respondent
that those payments, including net backpay and interest,
totaled $271,390.
Two issues remained and were litigated in Wilming-
ton, North Carolina, on October 23 and 24, 1984:
(1) Respondent contends that discriminatee Heber
Norris accepted its offer, of reinstatement and agreed to
return to work on April 21, 1980. Although Norris, on
his own accord, did not report to work on April 21,
1980, Respondent contends that its post-April 21 backpay
and reinstatement obligations were fully satisfied by its
offer to reinstate Norris.3
(2) On March 6, 1981, Respondent's contract at the
Herconfina site terminated. Beginning on March 7, 1981,
another construction and maintenance contractor,
Mundy Industrial Maintenance, Incorporated, replaced
Respondent as the Herconfina contractor.
Respondent contends that its backpay and reinstate-
ment obligations ' to those discriminatees formerly em-
ployed by it at the Herconfina site ceased when it lost
the Herconfina contract on March 6, 1981.4
Therefore, -the issues remaining here include the ques-
tions of whether Respondent's backpay/reinstatement
duty ended 'as to its former Du Pont site (hereafter Du
Pont) employee Heber Norris on April 21, 1980, and its
former Herconfina site employees Larry McDowell,
Donald Rouse, Jerry Carter,, and Sammy Wood on
March 6, 1981. If either of the above results is a negative
answer, then this inquiry must additionally consider the
measure of Respondent's obligations absent a determina-
tion that. Respondent's alternate arguments against liabil-
ity are meritorious.
On the entire record, my observation of the witnesses,
and in consideration of posthearing briefs and motions, I
make the following
2 The General Counsel's backpay specifications show seven discrimina-
tees from the Du Pont site and four discrimtnatees from Herconfina
James Stokes is shown as "Herconfina" by Respondent's brief and as Du
Pont in the backpay specifications That confusion is immaterial since
Stokes' backpay claim has been fully settled -
3 Respondent paid Norris his backpay claim for the period before
April 21, 1980, in the aforementioned partial settlement
4 The General Counsel's backpay claims for the period before March
7, 1981, for the discriminatees formerly employed at Respondent's job at
Herconfina were fully satisfied through the aforementioned partial settle-
ment
1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS.
I. HEBER NORRIS
The seminal question here is whether Respondent
made a valid offer of reinstatement to Norris before
April 21, 1980. Norris admitted that he was phoned
before April 21, 1980, by his supervisor, Sheet Metal
Foreman James Whitehead, regarding Norns returning
to work. Norris contends that Whitehead did not offer
him a job. Whitehead, on the other hand, testified that he
did offer reinstatement to Norris and that,Norris accept-
ed the offer but never reported to work.
An examination of the record cast serious doubt about
the total accuracy of the testimony from both Heber and
James Whitehead.
For example, James Whitehead testified that he called
and offered reinstatement to Norris on April 17 or 18,
1984. Whitehead's testimony was supported by White-
head's immediate supervisor, J. C. Wiggins, and the
project manager of the Du Pont site, Charlie Garrett.
However, the record developed that Heber Norris gave
an affidavit to an NLRB agent on April 8, 1980, wherein
he discussed the contested phone- conversation with
James Whitehead. In the affidavit Norris recalled the
phone call occurred on March 27. Obviously, if the
phone conversation had.occurred on April 17 or 18, as
recalled by Whitehead, Wiggins, and Garrett, it would
have been impossible for Norris to have told a Board
agent about the call some 9 or 10 days before-April 17 or
18.
Concerning the accuracy of Heber Norris' testimony,
the record illustrates several possible conflicts. During
the hearing, Norris again -recalled that the phone conver-
sation occurred on March 27. Norris testified that he re-
called that day because he had read his affidavit and
March 27 was the date specified in the affidavit. Norris'
testimony tracked closely his April '8, 1980 affidavit
wherein he testified:
Jim Whitehead called me around 3-27-80 at my
home. He told me that he knew nothing of the
layoff before it happened. He also said that Daniel
would be hiring more employees around 4-21-80.
He told me to come out and see if I could get a job.
I asked Whitehead if they've accomplished anything
by laying me off.
At the hearing herein, Norris testified: -
[Whitehead] told me 'that he heard they may be
hiring more employees around the 21st of April; for
me to come down and see if I could get my job
back He did not say they would hire me back,_he
did not say they wouldn't.
However, on May 8, 1984, Norris gave a second affi-
davit to an NLRB agent. On that occasion. he testified:
I, Heber Norris, was phoned by someone from
Daniel Construction Co. (I do not recall who called
me) asking if I wanted to return to work. This was
shortly after I was laid off-but I do not recall ex-
actly when.
The person who called was inquiring if I was inter-
ested in going back to work for Daniel. No offer of
reinstatement was made; no offer of backpay was
made; no date to return to work was given me.
I did not receive a letter asking me to return"_to
work, along with the phone call.
Now that I think on it, it was Jim Whitehead, my
foreman at Daniel, who called me.
James Whitehead testified as follows regarding his
phone call to Norris:
I told [Norris] I had talked to the superintendent,
and he told me it was all right for [Norris] to come
back to work, and if he would report, back Monday
he could go to work.
Whitehead agreed with Norris that April 21 was the
date when Norris should have gone onto the job. Ac-
cording to Whitehead, Norris told him that he would
report for work on April 21, 1980.
'Norris admittedly did not-show up on April 21, 1980.
According 'to his testimony he was working for his
father that day.5
Discussion
It is noteworthy that Heber Norris' most recent affida-'
vit testimony. is more supportive of James Whitehead's
version of their pre-April 21, 1980 phone conversation
than'it is of Norris' testimony at the hearing. In his May
8, 1984 affidavit, Norris admitted that Whitehead in-
quired if he was interested in returning to work. That
testimony does not fully square with Norris' testimony in
his earlier affidavit, and at the hearing, that Whitehead
said Norris should come out and see if he could get a
job.
Moreover, Norris' other testimony raises 'a serious
question about his credibility: For example, when asked
if he reported to Daniel's Du Pont site on April 21,
Norris testified, "No, sir, I was working with my father
that day."
Perhaps Norris was working with his father on April
21. However, Norris' job. search records show that he-
was actively searching for work immediately before and
after April 21. According to Norris"notes, he sought
work at Dallas Metal Works on April 10 and April 18,,
1980; at "Mintz Plumbing" on April 16, 1980; at "Wil-
mington Elect." on April 17, 1980; and at "North Caroli-
na Equip ." on April 22, 1980.
It is'inconsistent for someone to refuse what he re-
garded as an invitation to seek work from an employer
that was admittedly hiring on April 21 while,.during the
same period, engaging in extensive travels to seek work
from other employers that were not known to be hiring.
Norris' notes also show that he -sought work at
Mundy6 on June 17 and July 10, 1980. Norris admitted
5 Noms began working for his father on a shrimp boat shortly after he
was terminated by Respondent. '
6 Spelled "Monday's" in Norris' notes
DANIEL CONSTRUCTION CO.
on cross-examination that this notes referred to Mundy at
the Herconfina site and that the dates he noted were in-
correct.
Indeed, those dates are incorrect. As shown below in
his decision, Mundy's contract at Herconfina did not
begin until March 7, 1981. Nevertheless, Norris' job
search notes for calendar year 1980 list two job search
visits to Mundy in the summer of 1980.
Norris' approach to documentation of his search for
jobs exceeds the realm of carelessness. He allegedly tried
to reconstruct notes which were lost. However, the ap-
parent discrepancy between his testimony as to why he
did not seek work with Respondent on April 21 and the
notes showing extensive job search activity during that
immediate period casts grave doubt on the accuracy of
Norris' testimony and his notes. The inclusion of-an em-
ployer that did not appear until after 1980 on those 1980
notes convinces me that Norris fabricated that portion of
his job search documentation.
When the above credibility difficulties are considered
alongside Norris' differing accounts of the James White-
head phone conversation, I find that I must discredit
Norris' testimony which is in conflict with other evi-
dence. Therefore, I do not credit Norris' testimony that
James Whitehead did not offer him reinstatement.
Moreover, I am convinced that portions of Norris' af-,
fidavit testimony support Whitehead. For example, in his
April 8, 1980 affidavit Norris, after Whitehead asked him
to come to the job on April 21, "asked Whitehead if,
they've accomplished anything by laying me off." That
statement carries the implication that Norris believed the
"layoff" had ended. Subsequently, of course, in his May
8, 1984 affidavit, Norris recalled that Whitehead asked
him if he "wanted to return to work"-"if I was interest-
ed in going back to work for Daniels." -
The above testimony illustrates that Norris, in March
and April 1980, felt he was being given the choice of re-
turning to work. That impression is inconsistent with his
other testimony that Whitehead simply suggested that
Norris come out and apply.
If Norris' testimony had been limited to that at the
hearing and in his initial affidavit , I would be more in-
clined to accept his version of the phone. conversation
with Whitehead. Norris' subsequent affidavit -and the
other difficulties mentioned above make it apparent that
at least some of Norris ' testimony is inaccurate.
Respondent has the burden of proving that it extended
a valid reinstatement offer to Norris . In considering
whether that burden was satisfied , I must consider the
entire record. The record shows, without question, that
James Whitehead phoned Heber ' Norris in March . or
April 1980. According to Norris' admission , Whitehead
inquired into Norris ' interest in returning to work and
told Norris that Respondent would be hiring on April
21, 1980. As shown above, Norris' testimony reveals that
he felt Whitehead was offering him reinstatement.
Against that background, I am convinced that White-
head extended an offer to Norris to return to work on
April 21, 1980. Respondent's offer was a valid offer
which had the effect of terminating its backpay and rein-
statement obligation to Heber Norris on April 21, 1980.
Whitehead 's credited testimony shows a specific and un-
1097
equivocal , offer of reinstatement was extended to Heber
Norris. No conditions were attached to that offer. I find
that the offer to Heber Norris constitutes a valid offer of
reinstatement . Cf. Diversified Case Co., 272 NLRB 1099
(1984); Standard Aggregate Corp., 213 NLRB 154 (1974).
II. THE HERCONFINA QUESTION
On March 6, 1981, Respondent lost its maintenance
and construction contract at Herconfina. The above-
mentioned partial settlement resulted in full satisfaction
of Respondent's backpay obligations through that date.
On March 7, 1981, another contractor, Mundy Industrial
Maintenance, Incorporated (Mundy) took over the Her-
confina contract.
The record evidence proved that Respondent is not as-
sociated with Mundy and that Mundy is a competitor of
Respondent.
Mundy's vice president W. G. Nixon testified that
preference in hiring at the Herconfina site was given to
Respondent's employees employed at Herconfina on
March 6, 1981. According to Nixon, Mundy interviewed
between 400 and 500 applicants for the 150 to 160 super-
visory and employee positions at Herconfina.
On March 6, 1981, Respondent employed 133 employ-
ees at Herconfina. Of the 133 former employees of Re-
spondent at Herconfina, 121 were employed in Mundy's
original work force.
Within 1 month - of March 6, 1981, Respondent em-
ployed 8 of its 133 former Herconfina site employees at
other sites: Thereafter Respondent employed three addi-
tional former Herconfina site employees at other sites.
Respondent argues that its backpay and reinstatement
obligations to discriminatees McDowell, Rouse, Carter,
and Wood terminated when it lost the Herconfina con-
tract on March 6, 1981. Those four discriminatees were
former employees at the Herconfina site. Respondent did
not continue to dispute that the four discriminatees
would have been employed by Respondent at Hercon-
fina on March 6 , 1981, but for Respondent 's illegal dis-
crimination as found in the underlying decision. As
shown above , the partial settlement resolved all matters
on and before March 6, 1981.
A. The Question of Law
The instant question involves what, if any,. effect does
Respondent's March 6, 1981 loss of the Herconfina con-
tract have on the rights of discriminatees McDowell,
Rouse, Carter, and Wood to reinstatement and backpay
for-periods after March 6.
The law requires that the General Counsel must prove
damages in the form of gross backpay but it is the Re-
spondent's burden to shown diminution (Mastro Plastics,
136 NLRB 1342, 1346 (1962); Montauk Iron & Steel, 135
NLRB 181 (1962); Ozark Hardwood Co., 119 NLRB 1130
(1957)). •
The burden is on the Respondent to show that, follow-
ing a discriminatory layoff or discharge, the discrimina-
tees would have been laid off nondiscriminatorily.
Buncher v. NLRB, 405 F.2d 787 (3d Cir. 1968); Nabors v.
NLRB, 323 F.2d 686 (5th Cir. 1963), cert. denied 376
U.S. 911 (1964).
1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Simply stated, the instant question revolves into a de-
termination of whether Respondent proved that its
backpay/reinstatement obligation to the four above-men-
tioned discriminatees ceased when it lost its Herconfina
contract on March 6, 1981. The facts show that only '11
of 133 employees were employed by Respondent at
other sites after March 6. However, 121 of those 133
continued to be employed at Herconfina by another em-
ployer.7 Therefore, it was proved, and I find, that the
probabilities are overwhelming that, but for Respond-
ent's illegal discrimination, the four discriminatees would
have continued to work at Herconfina (for Mundy) after
March 6, 1981. The probabilities are even more over-
whelming that the four discriminatees would have either
continued working at Herconfina or have worked for
Respondent at other sites after March 6 but for Respond-
ent's discriminatory action.
In similar situations the Board has held that an em-
ployer's backpay/reinstatement obligations are not tolled
when the job on which the discnminatees were formerly
employed is terminated (Haberman Construction Co., 236
NLRB 79 (1978); American Auto-Felt Corp., 158 NLRB
1628 (1966); Hoke Janitorial Service, 213 NLRB 783
(1974)).
B. Substantially Equivalent Employment
Respondent argues that its loss of the Herconfina con-
tract and the subsequent acquisition of "substantially
equivalent positions" by discnminatees McDowell,
Rouse, and Carter should result in the termination of its
obligations to those employees.
The General Counsel agrees that Donald Rouse ac-
quired substantially equivalent employment when he was
hired by Mundy Industrial Maintenance at Rouse's
former position at Herconfina in April 1982 However, in
all other respects, the General Counsel disputes Re-
spondent's defense of substantially equivalent employ-
ment.
The basic rule in backpay/reinstatement remedial
orders by the Board is rooted in Phelps Dodge Corp. v.
NLRB, 313 U.S. 177 at 189 (1941), where the Supreme
Court found that a reinstatement remedy by the Board
was proper regardless of whether the particular discri-
minatee had obtained equivalent employment elsewhere.
The general rule enunciated in Phelps Dodge is found
implicit in the Board's underlying Decision and Order.
By that Decision and Order, Respondent is obligated to
reimburse each discriminatee for wages lost due to Re-
spondent 's discriminatory conduct until such time as Re-
spondent offers that respective discriminatee reinstate-
ment to-his former position or, if that position no longer
exists , to a substantially equivalent position.
Respondent argues that the instant case falls under the
rule announced in American Auto-Felt Corp., supra and
.Perma Vinyl Corp., 164 NLRB 968 (1967), which, ac-
cording to Respondent, abridges the Phelps Dodge rule-to
? Mundy terminated 69 employees within 10 months of March 7,1981
Over o: a-half of those 69 terminations were based on the employees' fail-
ure to fulfill expectations during their probationary . period However,
there was no evidence demonstrating that the discnminatees would have
been terminated if they had been employed by Mundy and the law does
not permit me to make such an inference
the extent of holding that where the respective discri-
minatee's former position no longer exists because Re-
spondent has sold its business , backpay may be perma-
nently tolled on the discriminatee finding substantially
equivalent employment elsewhere.
The General Counsel concedes that backpay should be
tolled herein where the respective discriminatee was
hired at his old job by the replacement contractor at
Herconfina. That was the situtation in the case of
Donald Rouse and the General, Counsel specified, that
Rouse's backpay stopped when he started work at
Mundy (Herconfina site) on April 5, 1981.
However, in other respects it does not appear that Re-
spondent should be released from liability under the rule
of American Auto-Felt and Perma Vinyl. Unlike those
cases where the employers ceased to be employers upon
sale of their businesses, Respondent continued,to operate
several jobs in the Wilmington, North Carolina area after
Mundy took over the Herconfina job. Respondent could,
and in some instances did, continue to employ its former
Herconfina site employees. Therefore, Respondent failed
to establish that it should be released from continuing li-
ability because Respondent did - not prove that it was
unable, after March 6, 1981, to comply with the Board's
reinstatement -order. After that date, Respondent's con-
tinued operations in the Wilmington area may have in-
cluded substantially equivalent positions to the positions
formerly held by discriminatees Carter, McDowell,
Rouse, and Wood. In that regard, Industrial Relations
Manager Emerson Johnson testified that during 1981 Re-.
spondent had jobs in the Wilmington area at "a Diamond
Shamrock project in Castlehane, GE in Castlehane, the
Du Pont job in Leland and we had a Pfisher Chemical
job at South Point."8
As shown herein, Respondent has the burden of prov-
ing diminution. It has failed to satisfy that burden above
its contention regarding "substantially equivalent em-
ployment."
C. The Findings as to each Herconfina'Discriminatee
According to the amended specifications, Respondent's
backpay/reinstatement obligations are continuing con-
cerning former Herconfina site employees Carter,
McDowell, and Wood. None of those three has been of-
fered reinstatement. Although the final discriminatee,
Donald H. Rouse, has not been offered reinstatement, the
backpay specifications and the General Counsel in her
brief concede that Rouse secured "substantial equivalent
employment" in April 1982.
As shown above, the issues before me involve alleged
obligations after March 6, 1981. Respondent's liability to
Carter, Rouse, McDowell, and Wood for all periods on
and before March 6, 1981, was satisfied through the
above-mentioned partial settlement.
8 Johnson admitted that Respondent had 47 jobs in North Carolina and
52 jobs in South Carolina in the March-April 1980 period
DANIEL CONSTRUCTION CO 1099
1. Jerry Carter9
The amended specifications show the alleged backpay
obligation to Carter extends past 1983.10 The General
Counsel reserves the right to have a determination of
further backpay obligation.
Respondent contends that Carter acquired substantially
equivalent employment at Wood Tee Company. Carter
was employed at Wood Tee from August 12, 1980. His
employment continued at the time of the hearing herein.
Additionally Respondent contends that the - General
Counsel improperly deducted from Carter's gross interim
earnings amounts earned while working what was'
termed excess overtime at Wood Tee. -
As to the issue of substantially equivalent employment:
As noted above, Respondent has the burden of proving
diminution of gross backpay. Therefore, it is Respond-
ent's burden to prove its ' assertion that backpay/-
reinstatement should be terminated at some point because
Carter secured substantially equivalent employment.
As noted above, I have found that the law does not
support Respondent's general argument that the Board
must terminate an employee's backpay/reinstatement en-
titlement when the employee finds substantially equiva'-
lent, employment elsewhere (Phelps Dodge Corp. v.
NLRB, 313 U.S. 177 (1977)). -
Moreover, as to Jerry Carter, there is no showing on
the record that Carter's interim employment with Wood
Tee Company was substantially equivalent to his former
job with Respondent or to the job he may have had with
Mundy absent Respondent's discrimination. For example,
the record- does not reflect Carter's working c onditions
at Wood Tee. Therefore, I find that assuming arguendo
that a question exists regarding substantially- equivalent
interim employment, Respondent has failed-to satisfy its
burden of proving that point (cf. Western Wirebound Box, '
188 NLRB 164 (1971);'Mooresville Cotton Mills v. NLRB,
110 F.2d 179 (4th Cir. 1940); Winn Dixie Stores, 170
NLRB 1734 (1968); Trinity Valley Iron & Steel Co., 158
NLRB 890 (1966)).
As to the issue of excessive overtime, the record
shows that Carter's interim earnings exceeded gross
backpay. However, according to the General Counsel,-it
was necessary for Carter to work overtime in excess of
that worked by the average Herconfina site comparable
employees in order to earn his total interim earnings.
The General Counsel contends that- Carter's pay for
those overtime hours in excess what the average Hercon-
fina site employee worked should be deducted from his
interim earnings.
The General Counsel's practice exercised herein of de-
ducting excess :overtime earnings from total interim earn-
9 In its "Response" dated January 10, 1985, at par 5, p 4, Respondent-
stated that Carter was not produced at the backpay hearing That is true
However, there was no showing by Respondent either that Carter was
unavailable , • that Respondent made reasonable efforts to have Carter
appear , that Carter 's testimony was necessary, or that the General Coun-
sel refused to cooperate and produce Carter Under the circumstances, I
am unable to make a determination that Respondent was unjustly harmed
in any manner by the fact that Carter did not appear
10 As shown above I shall not now consider the specifications past
1983
ings is rooted in United Aircraft Corp, 204 NLRB 1068,
1073 (1973). .
The payments for "excess overtime'.' are,, of
course, earnings and not collateral benefits . .. - . It
- would, therefore, be anomolous, in all the circum-
stances of this case, to hold that the Respondent's
backpay obligation to D'Andrea would not be di-
minished to the extent that he worked on a "moon-
lighting" job, but would be to the extent that he
performed, in addition to a regular full-time job,
overtime work in excess of the hours he would
have worked if employed by the Respondent. Ac-
cordingly, I find that the Respondent has shown no
adequate basis, in all the relevant circumstances, for
reducing the amount of backpay that the Specifica-
tion, as amended, claims to be due to D'Andrea.
Respondent, in its brief, concedes that it is the Board's
established - policy to deduct excess, overtime earnings
from total interim earnings , but quarrels with the Gener-
al Counsel's computation of excess overtime. Respondent
argues that Carter's excess overtime should be reduced
by the number of overtime hours'that are standard in the
industry without regard to whether the exact same
number of hours have been worked by Daniel or Mundy
at-the Herconfina site. Respondent argues that the Gen-
eral Counsel has understated the number- of overtime
hours worked by the average Mundy employee and that
some Mundy employees work significantly more, over-
time hours than others. Therefore, Respondent 'argues
that Carter's interim earnings should include his overtime
earnings or alternatively: should include-his overtime, to
the extent representative Mundy employees worked
overtime. - • '
Respondent's arguments have a basis in reason. How-
ever, that reasoning, when applied against the --record
evidence, results in confusion (i.e., the record does not
show how many overtime hours Jerry Carter .would
have worked for Respondent or Mundy at Herconfina
after March 6, 1981, but for his illegal termination): It
appears • no more logical to apply to Carter, what the
most ambitious Mundy employee worked as overtime
than to apply to -him what the average Mundy employee
worked as overtime. The record supports' neither equa-
tion. -
However, it is proper, as shown in Southeastern' Enve-
lope Co., 246-NLRB 423,-424 (1979),^to exclude overtime
from interim earnings in instances where projected over-
time is not included in gross backpay. Due to the uncer-
tainty of the General Counsel's overtime projection in
Carter's gross backpay figures, it' would be appropriate
to exclude those figures -provided Carter's actual interim
overtime earnings are not included as interim ' earnings
(Southeastern Envelope Co., supra). In view of -Respond-
ent's contentions,' I find that the most appropriate meas-
ure of Carter's net backpay should be computed by ex-
cluding projected overtime, from gross backpay and
actual overtime from interim earnings.
Therefore, I -have'determined to disallow the General
Counsel's claimed overtime earnings as an addition to
gross back wages . Additionally, in view of the holding in
1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Southeastern Envelope Co., supra , I shall reduce Carter's
total interim earnings by that portion of his earnings rep-
resenting overtime.
'
Year/Qtr.
3
Gross
Backpay
5592
Interim
Earnings
5733
Net
Backpay
- 0Carter s net backpay entitlement through 1983 is as 4. 6276 6644 0follows: - 1982/1 6752 5996 ,756
Year/Qtr.- Gross
Backpay
Interim
Earnings
Net
Backpay
1981/1 $1366 $1188 $ 178
2 5085 4421 664
3 5182 4573 609
4 5151 4603 548
1982/1 5769 4725 1044
2 5661 4597 1064
3 5730 4723 1007
4 5593 4665 928
1983/1 5430 4529 901
2 5708 4761 947
3 5705 4758 947
- 4 5653 4715 938
3. Larry McDowell
The amended specifications allege that Respondent's
backpay obligation to McDowell continued beyond 1983.
As in the case of Jerry Carter , the General Counsel con-
tends that Respondent 's obligation is 'continuing as to
McDowell.
In addition to arguments of Respondent considered -
above , Respondent argues that McDowell's claimed ex-
penses of $ 197 for the fourth quarter of 1981 is not sup-
ported by record evidence; that McDowell , obtained.sub-
stantially equivalent employment at Babcock & Wilcox;
that McDowell had .a willful loss of earnings after a
second layoff from Babcock & Wilcox ; and that earnings
from a secondary employer should be included as.interim
earnings.
Concerning Respondent's substantially equivalent em-
ployment argument , as shown above , I have found that,
from a general issue standpoint , the General Counsel
must prevail . Moreover , concerning McDowell, the
record shows . that he did not acquire substantially equiv-
alent employment . Unfortunately , from _ Respondent's
standpoint , the record has the advantage of viewing
McDowell 's Babcock & Wilcox employment , which Re-
spondent claims constitutes substantial equivalent em-
ployment , from hindsight which illustrates that that job
resulted first in a temporary layoff then a permanent
layoff of McDowell . McDowell was permanently laid
off when Babcock & Wilcox closed its plant on August
5, 1983 . Conversely , Respondent has continued to main-
tain jobs in. the Wilmington area and the Mundy job at
Herconfina has also continued . Therefore, it is clear and
I find that the record -shows that McDowell never ac-
quired substantially equivalent employment.
Concerning McDowell's claimed expenses, it is true
that McDowell testified that the $197 claim for the
fourth quarter of 1981 was within "a dollar or two" of
his record expenses . In view of that testimony, I shall
reduce the figure by $2. Respondent also asserts that
McDowell "could produce no records to substantiate the
claimed expenses of $197 .00." The record does not sup-
port Respondent's assertion . In fact , McDowell testified
that he had "the phone bill, and an estimated mileage" at
his home. The record shows that McDowell was never .
asked to produce those records . In view of McDowell's
testimony , which was not rebutted , I shall - award ex-
penses of $195. -
Concerning the argument that McDowell engaged in
willful loss of earnings after his permanent layoff from
Babcock & Wilcox on August 5, 1983: Again , Respond-
ent's position finds no support in the record : The record
shows that McDowell continued to work part -time with'
Brunswick Technical College and, after the Babcock &
Wilcox plant closed , he went to work for "West Bruns-
2. Donald Rouse
The General Counsel admitted , as shown above, that
Rouse voluntarily resigned his interim employment on
April 2 , 1982, to accept substantially equivalent employ-
ment with Mundy at Herconfina on April 5, 1982.
While Respondent does not contest the above , it con-
tends - further that Rouse accepted substantially equiva-
lent employment with "B.E. & K." from March 7, 1981,
until April 2, 1982 . As shown above I have found that
the law does not . support Respondent in that regard.
Moreover , as in the case of Jerry Carter, the record does
not show that Rouse was substantially equivalently em-
ployed from March 7 , 1981. For example, the record
shows that Rouse was required to drive a greator dis-
tance to work for B . E. & K (15 miles) and Rouse re-
signed that position to return to his former job with
Mundy at Herconfina.
Additionally , Respondent argues that Rouse 's supple-
mentary employment at Southeastern Community Col-
lege of $1237 during May, June , and July 1981 , while he
was primarily employed at BE. &.K., should be added
to his interim earnings.
The record failed to prove that Rouse would not have
been able to work at Southeastern Community College
before his illegal termination by Respondent . Rouse testi-
fied that he was never "on call" during off-duty hours
and there was no showing that he would have been re-
quired to , forgo supplementary employment because of
compulsory overtime or otherwise . Therefore, under
standard Board jurisprudence , I will not add supplemen-
tary employment earnings to Rouse 's interim earnings.
See United Aircraft Corp ., 204 NLRB 1068, 1073 (1973);
Miami Coca-Cola Co ., 151 NLRB 1701 (1965 ), enfd. 360
F.2d 569 (5th Cir. 1966).
Year/Qtr.
Gross Interim Net
Backpay Earnings Backpay
1981/1 $1550 $833 $717
2 5872 • 6340 0
DANIEL CONSTRUCTION CO.
wick this past school year full-time." The record does
not show that McDowell failed to testify or produce
records" regarding his employment or job search after
August 5, 1983. McDowell's testimony shows that he
was never examined regarding the specifics of his post-
August 5, -1983 job search. As shown above, Respondent
has the burden of proving diminution of gross backpay.
Respondent has failed to prove that McDowell engaged
in willful loss of earnings during any relevant period.
Regarding secondary employment, McDowell is gov-
erned by the rule as discussed above. He was employed
by Brunswick Technical School and, solely concerning
those periods when McDowell was permanently em-
ployed by Babcock & Wilcox, the General Counsel has
not included his Brunswick Technical earnings as interim
earnings . The evidence proved that, while working with
Respondent, McDowell occasionally worked overtime,
usually on a voluntary basis, and once a month he was
on call for emergencies. However, McDowell testified
that it was permitted to arrange to have other employees
substitute for the emergency on-calls . i 2 Respondent con-
tends that McDowell could not have held secondary em-
ployment during his employment with-Daniel and,, for
that reason, his interim secondary -earnings should be in-
cluded as interim earnings . Again, the record does not
support Respondent's contention. A careful review of the
material testimony fails to prove that either the on-call
or overtime program practiced by Respondent at Her-
confina would have -interfered with McDowell's second-
ary employment. Regarding McDowell's secondary em-
ployment.at Brunswick Tech there was no showing of
how overtime or on-call requirements could have inter-
fered with that job Therefore, I find that the General
Counsel is correct in his assertion that McDowell's sec-
ondary employment should not be included as interim
earnings. -
The record also reflects that McDowell, while at Bab-
cock & Wilcox, received vacation and holiday time -and
insurance benefits. Those matters are collateral and do
not constitute - interim earnings or otherwise offsets
against gross backpay. Medline Industries, 261 NLRB
1328, 1337 (1982).
McDowell's net backpay entitlement through 1983 is
as follows:
Year/Qtr. Gross
Backpay
Interim
Earnings
Net
Backpay
1981/1 $1550 - $1151 $399
2 5872 5487 385
3 - 5592 4590 1002'-
- 4 6276 13937 5339
1982/1 6752 3294 3548
11 R Exh 6 was the only record introduced by Respondent regarding
McDowell 's job search and that record was limited to the period of time
before McDowell was rehired after his temporary layoff by Babcock &
Wilcox
12 Although Respondent 's industrial relations manager Emerson John-
son testified that Daniel at one time changed its on-call policy at Hercon-
fina to a policy that did not permit substitution , Johnson admitted that he
had no knowledge of Respondent 's actual on-the-job practice regarding
the on -call program - -
13 Interim earnings of $1132 minus expenses of $195
.
1101
Year/Qtr. Gross ,
Backpay
Interim
Earnings
Net
Backpay
2- 6205 4640 •1565
3 -5010 4930 80
4 5957 5386 571
1983/1 5750 4679 1071
'2
-
6892 4896 1996
3 6156 2586 3570
4 6786 1906 4880
4. Sammy Wood
The amended specifications 'show that Respondent's
backpay obligation to Wood totals $39,250 through the
end of 1983 and is continuing. As in the above cases, the
partial settlement herein resolved Respondent's backpay
obligations on and before March 6, 1981.
-Concerning Sammy Wood, -Respondent presents two
defenses: (1) Respondent claims that the General Coun-
sel's claim of $42 in expenses for the first quarter of 1981
are unsupported by record evidence; and (2) Respondent
argues that Wood incurred willful loss of earnings by
failing to pursue a search for suitable work after Wood
properly "lowered his sights" and accepted a lower
paying job in February 1981.
a.. Expenses for first quarter 1981
As shown above, the only period of the first quarter
1981 which remained material after the partial settlement
was the few days in March after Respondent lost the
Herconfina contract on March 6, 1981. -
During the hearing Wood was questioned about ex-
penses incurred after March 6. Wood testified that some
of those expenses were incurred in February-1981 and
that he did not recall how much of the claim occurred
after March 6. -
In view of Wood's testimony, I agree with Respond-
ent. The record does not support the General Counsel's
claim that Wood incurred interim expenses after March 6
in the first quarter of 1981. Wood began work at Wood
Painting Contractors on February 26, 1981. There was
no showing of specific expenses through job search or
otherwise after February 26 and before the end of March
1981.
b. Willful loss of earnings
Sammy Wood worked for Respondent at Herconfina
as a multicrane operator until his termination in April
1980. Subsequently, Wood was unable to find compara-
ble 'work. Respondent admitted in its brief that Wood
properly lowered his sights in February 1981 when he
accepted lower paying work in his family's business,
Wood Painting Contractors.
However, Respondent argues' that by lowering his
sights Wood was not absolved from a continuing obliga-
tion to seek suitable interim employment. The record
shows that Respondent is correct in certain aspects. Ac-
cording to Wood's testimony, he continued to seek work
to the extent he was financially able after February 26,
1981. In that regard, Wood offered his notes which were
1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
received in evidence as Respondent's Exhibit 7. The
back page of that exhibit shows that Wood made some
10 contacts to 6 of those employers and that he accepted
employment with the seventh. Additionally, Wood testi-
fied about other employers he contacted after March
1981 . No contrary evidence was offered to Wood's testi-
mony in that regard and I find that Wood continued to
seek suitable work throughout 1981 and into the first
quarter of 1982.14
However, no documentation was offered to show that
Wood continued to seek suitable work after March 1982.
Moreover, Wood's testimony regarding subsequent job
searches came under serious attack.
Wood testified as to only one specific employer he
contacted after mid-1982. He testified that he applied for
work with Respondent on their Diamond Shamrock job
in August 1983. However, Respondent's industrial rela-
tions manager Emerson Johnson testified that Respond-
ent's contract at Diamond Shamrock expired in Decem-
ber 1981 and that Respondent was not on that job in
1983. No evidence was offered to dispute Johnson's testi-
mony. I was impressed with Emerson Johnson 's demean-
or and I credit his testimony regarding the Diamond
Shamrock job. I find that Wood was mistaken in his tes-
timony that he sought work with Respondent at Dia-
mond Shamrock after 1981.
In view of the above, I find that the record illustrates
that Wood did not continue to seek suitable interim em-
ployment after the first quarter of 1982. Therefore, I
shall limit Respondent's backpay obligation to the end of
March 1982. NLRB v. Madison Courier, 505 F.2d 391
(D.C. Cir. 1974).
Wood's backpay settlement is as follows:
14 Wood testified about interim employment he acquired with Steve
Wood Painting Contractors during July and August 1982 However, the
amended specifications show that Wood was unavailable for work due to
illness from April I to October 20, 1982 In view of his unavailability, I
find that Wood was mistaken about the dates of his work with Steve
Wood Painting Contractors. As shown below there was no credible evi-
dence that Wood continued to seek suitable work after his April 1 to Oc-
tober 20, 1982 illness
15 Claimed expenses of $42 not permitted.
Year/Qtr.
Gross
Backpay
Interim
Earnings
Net
Backpay
1981/1 $ 1550 15$1089 $461
2 5872 132 5740
3 5164 1760 3404
4 6276 2921 3355
1982/1 6752 02165 4587
Conclusions
To the extent shown above, I have concluded that the
formulas used in the amended backpay specifications
were reasonable and appropriate and that the mathemati-
cal calculations based on those formulas were accurate. I
have concluded that Respondent's proposed alternate fig-
ures were unreasonable and would not provide a just
measure of the backpay owed to the discriminatees under
the underlying Board Order and enforcement decree of
the Fourth Circuit Court of Appeals. As shown above, I
have determined that Respondent sustained the burden of
proving that the backpay entitlement of Heber Norris
was tolled when he was offered reemployment on April
21, 1980, and that the backpay entitlement of Sammy
Wood was tolled when he failed to seek suitable interim
employment after March 1982. As shown in the amended
specifications, Donald Rouse's backpay entitlement was
tolled when he accepted his former job at the Hercon-
fina site with Mundy.
Concerning discriminatees Larry McDowell and Jerry
Carter, Respondent's backpay/reinstatement obligations
were shown to be continuing and, to the extent backpay
entitlement for McDowell and Carter may be specified
for periods after 1983, I recommend that I shall retain ju-
risdiction of this matter to properly consider appropriate
specifications which the General Counsel may submit in
the future.
[Recommended Order omitted from publication.]