Daniel'S Pallet Service

National Labor Relations Board - Board Decisions

Nov 30, 1989

297 N.L.R.B. 395 (N.L.R.B. 1989)

DANIEL'S PALLET SERVICE 395
Daniel Gerhard' d/b/a Daniel's Pallet Service and
Kenneth Earley and David Crist. Cases 7—CA-
24270(1) and 7—CA-24270(2)
November 30, 1989
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On March 2, 1989, Administrative Law Judge
Marvin Roth issued the attached supplemental de-
cision The Respondent filed exceptions and a sup-
porting brief and the General Counsel filed an an-
swering brief
The Board has considered the record and the
supplemental decision in light of the exceptions and
briefs and has decided to affirm the judge's rul-
ings,' findings, 2 and conclusions and to adopt the
recommended Order 3
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Daniel Ger-
hard' d/b/a Daniel's Pallet Service, Flat Rock,
Michigan, its officers, agents, successors, and as-
signs, shall pay to David Cnst and Kenneth
In its brief to the judge after the backpay hearing, the Respondent for
the first time made factual assertions about the effect on some patients of
the medicine taken by David Cnst The judge rejected those factual as-
sertions as hearsay We adopt the judge s rejection based on the fact that
the evidence was not offered during the hearing and there is no conten-
tion that It was newly discovered or previously unavailable See Sec
102 48(d)(1) of the Board's Rules and Regulations Moreover, even if it is
correct that some patients expenence dizziness as a result of the medica-
tion, there is no evidence that It had that effect on Cnst or that the medi-
cation or its effects had any relation to Cnst's obtaining interim employ-
ment
2 The Respondent has excepted to some of the judge s credibility find-
ings 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 Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cm 1951)
We have carefully examined the record and find no basis for reversing
the findings
We adopt the judge s finding that the Respondent did not sustain its
burden of showing that Earley or Cnst were willfully Idle by introducing
into evidence microfiche copies of newspaper employment advertise-
ments from their periods of unemployment In doing so, we do not rely
on his statement that if he could not make sense of the Respondent s In-
complete and Illegible exhibit in evidence, then Earley and Cnst could
not be expected to do so Earley and Cnst testified that they looked at
the newspapers themselves, not microfiche copies of the newspapers
3 Chairman Stephens would find that Earley did not exercise the re-
quired reasonable diligence in his job search during the period between
January 16, 1987 when he was laid off by Bielec, and May 10, 1987,
when he began working for Biel= again Unlike 1986, Earley had reason
to believe that he would have no work from Melee for at least 4 months
Unlike 1988, he made no search for jobs during this period other than
registering with the Michigan Employment Security Commission Be-
cause Chairman Stephens regards his job search effort in 1988 as the min-
imum necessary to show reasonable diligence, he would find that Earley
failed to mitigate damages for the January-to-May period in 1987 and
would reduce his backpay amount accordingly
Earley, the sums set forth in the recommendded
Order
Tina Marie Pappas, Esq , for the General Counsel
Craig W Lange Esq and Christina M Brookshire, Esq , of
Troy, Michigan, for the Respondent
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
MARVIN ROTH, Administrative Law Judge This case
was heard at Detroit, Michigan, on December 5, 1988,
for purposes of resolving a controversy over the amount
of backpay due David Cnst and Kenneth Earley under
the terms of the Board's Order issued on February 26,
1987 (283 NLRB 84), enforced per cunam No 87-5461,
unreported (6th Cir 1988) The Board found that Daniel
Gerhard' d/b/a Daniel's Pallet Service (the Company or
Respondent) violated Section 8(a)(3) and (1) of the Act
by harassing, changing the working conditions, and con-
structively discharging Cnst and Earley because of their
union activities The Board issued in pertinent part a re-
instatement and backpay order directing the Company to
make Cnst and Earley whole for any loss of earnings or
other benefits suffered as a result of the discrimination
against them by payment to each of them of a sum of
money equal to that which each normally would have
earned as wages or received as benefits, from the date of
the discrimination (February 8, 1985) to the date of the
Company's offer of reinstatement, less net earnings
during such period, together with interest The Company
does not dispute General Counsel's calculation of gross
backpay, as amended at the hearing The Company also
does not dispute General Counsel's calculation of interim
earnings, to the extent that such earnings were disclosed
to the Board However the Company contends in sum
that Earley's backpay should be substantially reduced,
and Cnst should be denied all backpay, allegedly because
they were willfully idle and and willfully concealed in-
terim earnings from the Board, and because Cnst was
disabled for at least a year
All parties were afforded full opportunity to partici-
pate, to present relevant evidence, to examine and cross-
examine witnesses, to argue orally, and to file briefs On
the entire record in this case' and from my observation
of the demeanor of the witnesses, and having considered
the briefs submitted by General Counsel and the Compa-
ny, I make the following
FINDINGS AND CONCLUSIONS
A David Crist
The backpay penod for David Cnst commences on
February 8, 1985, and terminates on December 31, 1986,
when he obtained a higher paying position The Compa-
ny contends that Cnst should be denied all backpay be-
cause (1) he was willfully idle in that he sought jobs
which were not substantially similar to the one he held
at the Company, but rather, required a high school diplo-
Certain errors in the transcript are noted and corrected
297 NLRB No 57
396 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ma which he did not have, (2) he was disabled for a
period of 1 year starting in May 1985, due to disabilities
of nerves and a dislocated shoulder, both of which limit-
ed his ability to obtain work, and (3) he hid interim earn-
ings from the Board for the first quarter of 1986 The
second and third contentions are inconsistent If as con-
tended by the Company, Cnst operated a backhoe doing
excavation work in February 1986, then plainly he was
physically able to perform such work
Cnst left school after the tenth grade, and he was not
qualified at any craft or trade His job at the Company
consisted of repairing and constructing pallets and oper-
ating a hi-lo which was used to load and unload pallets
His prior experience consisted of comparable general
labor Cnst testified in sum as follows On February 15,
1985, he registered with the Monroe office of the Michi-
gan Employment Security Commission (MESC), indicat-
ing that he was able and available for full-time employ-
ment Cnst requested work at general labor or as a hi-lo
driver at at least $6 per hour (his wage at the Company )
He periodically reregistered with the Monroe office, and
also registered at the Southgate office Cnst also looked
for work on his own in the "downnver" area, i e, from
Detroit to Toledo, a distance of about 55 miles (At the
time, Cnst lived in Wyandotte, which is located in the
downnver area ) Cnst testified as to the names of numer-
ous firms where he applied for work When permitted,
he filed written applications He applied for work at,
among other firms, B & M of Newport, Ritter's Pottery,
American Sunroof, Cadon Plating, Guardian Glass,
Fruehauf, Lazy Boy, Detroit Edison, Monsanto, Hollis-
ters Drywall, Ace Paper, and McCloud Steel Cnst also
went door-to-door in industrial areas Through MESC,
Cnst filled out and submitted an auto plant questionnaire,
which is used for the purpose of determining whether
the applicant is eligible to take a test for employment in
the automobile industry Cnst also inquired of friends
concerning job opportunities, read help wanted ads in
area newspapers, and responded to such ads by tele-
phone or in person However, most of the ads listed jobs
which were too far for commuting Cnst was also limit-
ed by the costs of job hunting on his own (By late 1985
he was on welfare ) In January 1986 Cnst registered for
"Project Self-Reliance" sponsored by the Down River
Community Conferenee This was a program designed to
assist participants in developing job-seeking skills As re-
quired, Cnst attended sessions 20 hours per week for a 4-
week period, for which he was paid the minimum wage
of $3 35 per hour (Cnst earned a total of $268, which has
been deducted from gross backpay as interim earnings)
Through Project Self-Reliance, Cnst applied for jobs by
telephone and by preparing and submitting resumes to
Mobil Oil, American Sunroof, and many other firms
Cnst was unable to obtain employment through any of
these efforts
When Cnst applied for work at Detroit Edison, he
was told they would not hire him because he lacked a
high school diploma or "GED" certificate, an equivalent
of such diploma The evidence fails to indicate that any
other prospective employer gave this reason for not
hiring him Usually employers either told Cnst they
were not hiring or failed to hire him without giving a
reason However, Cnst believed that his lack of a high
school diploma was an obstacle to his obtaining employ-
ment In February 1986 Cnst registered for and on
March 3, 1986, commenced participation in an education-
al program leading to a GED certification Cnst did not
complete the program, because in May 1986 he obtained
employment with R L Baird Building Company About
January 1, 1986, Cnst had applied for work as a general
laborer with Rod Lamb Excavating Company Rod
Lamb was a friend of Cnst's father-in-law's family Cnst
testified that Lamb told him he would hire Cnst if an
opening developed, but none did However, eventually
Lamb told Cnst that Baird was hiring, and, as a result of
this lead, Cnst was hired by Baird Cnst testified that he
did not work for Lamb during the backpay period, al-
though he told people that he was going to work for
Lamb Cnst began working for Baird as a general labor-
er, working full time at $5 per hour Cnst initially under-
stood that the work was seasonal However, he was not
laid off and has been working continuously with Baird
As Cnst put it, he "grew with the Company," received
pay raises, and as of the present hearing was earning
$10 50 per hour as a heavy equipment operator
In late 1984 Cnst dislocated his shoulder while work-
ing for the Company However, this injury did not pre-
vent him from performing his work in a competent
manner Indeed Cnst was so well regarded that because
of the responsibility given to him the Company contend-
ed in the unfair labor practice proceeding that Cnst was
a supervisor Cnst testified that about the time he left the
Company he began taking medication prescribed by a
physician (Motnn, 600 milligrams) in order to reduce the
inflammation in his shoulder, and continued to do so for
about a year Cnst still has a dislocated shoulder, but this
has not prevented him from continuously performing
construction work for Baird Cnst testified in sum that
his shoulder has sometimes limited his physical ability
and still causes him pain at times, but that he has to sup-
port his family and cannot afford surgery, and therefore
he has no alternative but to live and work with his dislol
cated shoulder When Cnst registered for Project Self-
Reliance, he indicated "dislocated shoulder" in response
to a question concerning medical problems that limit
working or training He also mentioned his dislocated
shoulder to some prospective employers, but did not tell
them that it limited his working ability Cnst did not
mention his shoulder when registering with MESC or
filling out the Auto Plant Questionnaire Cnst testified
that at the time he registered for Project Self-Reliance he
was undergoing treatment and the shoulder was on his
mind In May and July 1985, when Cnst reregistered
with MESC, he indicated "nerves" as a condition which
might limit work he could accept However, he did not
list this or any other disability when responding to the
Auto Plant Questionnaire, and he did not list this when
registering for Project Self-Reliance Cnst indicated in
his testimony that his nervous condition was aggravated
by his experiences with the Company, and that when he
listed "nerves" he was taking medication (Xanax, 05 mil-
ligrams) In light of those experiences, it is not surprising
that Cnst had a nervous problem The Company subject-
DANIEL'S PALLET SERVICE 397
ed Cnst to intensive harassment (see infra), and Cnst
suddenly found himself without a job and eventually on
welfare, all while trying to support his family Cnst had
no problem that could not be cured by steady employ-
ment The evidence fails to indicate that Cnst had any
nervous problem after he began working for Baird
The Company argues that on the basis of Cnst's testi-
mony and written notations Cnst's shoulder and nerve
problems "limited his ability to do work," and therefore
he should be denied backpay for 1 year (second, third,
and fourth quarters of 1985 and first quarter of 1986) (Br
34) The Company presented no other testimony or evi-
dence, medical or otherwise, concerning Cnst's prob-
lems 2 I find the Company's argument without merit No
doctor ever told Cnst that he was unable to perform
general labor or other work, and no prospective employ-
er or agency ever told Cnst that he was rejected because
of his shoulder or nerve problems Cnst speculated that
his problems may have hindered his search for employ-
ment However speculation is not proof Even if Cnst
were rejected by prospective employers, this would not
prove that he was unable to work Also, Cnst was not
required to take medication for either his shoulder or
nerves Rather while unemployed for reasons beyond his
control, he used the opportunity to undergo treatment
He did not take medication after he obtained employ-
ment Moreover, as the Company itself impliedly ac-
knowledges (Br 29) a limitation on ability does not dis-
qualify a claimant from backpay Rather the claimant
must be unavailable, i e, unable to work because of
injury or Illness 3 The Company has failed to prove that
Cnst was unavailable for work due to injury or illness or
any time during the backpay penod
John Miller, who described himself as a friend of both
Cnst and Daniel Gerhardt, was presented as a company
witness Miller testified that in February 1986 Cnst told
him that he was working for Rod Lamb, running back-
hoe equipment, and asked him "not to tell Danny"
Miller had no other information about the matter, other
than hearsay testimony to the effect that he overheard
two employees of Lamb saying that Cnst worked with
them Miller never saw Cnst working for Lamb, and
they did not discuss pay The Company did not produce
any testimony or records from Lamb or his company I
credit Miller, and I find on the basis of his testimony that
Cnst worked for Lamb in February 1986 However, I
find that the Company has failed to prove how long he
worked for Lamb, or whether and if so how much he
was paid Lamb was a family friend, and as the Compa-
ny itself suggests (Br 42), Lamb may have done him a
favor by teaching him to run backhoe equipment In
return, Cnst may have helped Lamb without payment of
wages In February, March, and April 1986 Cnst was
2 In its brief (pp 7, 8), the Company for the first time made assertions,
based on statements attributed to a medical textbook, that Xanax and
Motnn cause dizziness or comparable side effects in some patients The
assertion is rejected as hearsay See Federal Rules of Evidence, Rule
801(18)
3 The Company's reliance un Medhne Industries, 261 NLRB 1329
(1982), is misplaced That decision did not Involve application of the
standard (Id at 1332, fn 5) However, the Company has correctly stated
the general standard See Certified Meats Inc. 235 NLRB 1286, 1288
(1978)
participating in Project Self-Reliance or the GED certifi-
cation program Therefore, he was limited as to the
amount of time he could spend working for Lamb The
Company could have produced testimony or records
from Lamb indicating whether Cnst worked for Lamb,
for how long, and what if any wages Cnst received
However the Company failed to present such evidence I
find that the Company failed to prove that Cnst earned
wages from Lamb Therefore the Company has failed to
prove that Cnst willfully concealed such earnings from
the Board, and no denial of backpay is warranted for this
reason
The Company's pnncipal argument with respect to
Cnst is that he should be totally disqualified from all
backpay because "he was willfully idle because he
sought jobs which were not substantially similar to the
one he held at Daniel's Pallet but rather, required a high
school diploma which he did not have" The Company
asserts that "Cnst was seeking employment not suitable
to his background and experience, but rather, better jobs
requiring a high school education" (Br 29, 44) The ar-
gument bears little if any relation to the facts of this
case, and indeed borders on the frivolous From the
outset of the backpay period, Cnst earnestly sought em-
ployment as a general laborer or hi-lo operator, i e, the
kind of work for which he was expenenced and quali-
fied He initially requested pay of $6 per hour, the same
pay he received at the Company (hardly a princely sum)
but as his search proved fruitless he lowered his sights
and eventually began working for Baird at $5 per hour
One employer (Detroit Edison) told him that he would
not be hired even for work which he was capable of per-
forming because he was not a high school graduate If
Consolidated Edison and possibly other prospective em-
ployers (not proven) refused to hire Cnst for this reason,
it was not his fault Cnst sought to remedy this possible
problem by pursuing a GED course of study, thereby
further demonstrating the sincerity of his efforts to
obtain employment The Company seems to think that
Cnst was willfully idle because he wits able to obtain
employment before he worked for the Company Such
speculation does not constitute prOof of willful idleness
(This argument will be discussed further in connection
with Kenneth Earley ) I find that the Company has
failed to prove that Cnst willfully 'incurred loss of earn-
ings Therefore he is entitled to full backpay as set forth
in the amended backpay specification
B Kenneth Earley
The General Counsel submits that the backpay penod
for Kenneth Earley commences on February 8, 1985,
and terminates on March 31, 1988, when he was offered
reinstatement by the Company The Company concedes
that Earley is entitled to backpay for the first and second
quarters of 1985 and the third and fourth quarters of
1986 The Company contends that Earley should be
denied backpay for all other quarters because allegedly
(1) he was willfully idle during all quarters except the
first two quarters of 1985, (2) he was willfully idle
during layoff penods from Bielec Construction Compa-
ny, and (3) he willfully concealed earnings from the
398 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Board, and therefore should be denied backpay for the
third and fourth quarters of 1985 and the first quarter of
1986
Earley left school after the 1 1 th grade, and had no
high school diploma or GED Like Crist he was not
qualified at any craft or trade Earley, who lived in
Monroe, registered for work with the Monroe office of
MESC on March 6, 1985 He requested work in con-
struction or manual labor, indicating that he could drive
a hi-lo or small truck (Earley had performed substantial-
ly the same kind of work at the Company as did Cnst )
Earley testified in sum as follows In addition to register-
ing with MESC, he applied for work on his own Earley
applied for work with firms in the downnver area, in-
cluding among others, Culligan Soft Water Conditioner,
Raters Pottery, BMI, Flat Rock Metal, S & H Auto
Parts, Flat Rock Automotive, Detroit Truck Stop, Stuart
Chevrolet, Detroit Edison, White Star Trucking, The
Trucking Company, Sedlock & Francisco, Speedway
Gas Station, Beecham Products, and a nearby sandbag-
ging company, Ottowa Silica, Gibraltar Trade Center
(responding to a newspaper ad), and Metal Finishing
Earley returned to many of these firms, sometimes two
or three times, in order to check whether there were any
openings He specifically identified firms to which he re-
turned in the summer of 1985 He also asked friends
(whom he named) about job openings and checked com-
munity bulletin boards He looked at want ads, checked
the telephone directory for names of firms, and followed
through by telephoning or visiting in response to the ads
Earley registered for a job-seeking training program, but
was not assigned to a class He continued to actively
seek employment until he began working for Custom
Carpentry by Bielec in 1986 His job-seeking efforts were
sometimes limited by the fact that he could not afford
gas for his car
Earley testified that in the summer of 1985 he obtained
temporary employment with Grodi's Farm, picking
produce and performing related work He testified that
he worked there 2 to 3 weeks and was paid $2 75 to $3
per hour, in cash Duane Mosley, a friend, referred him
to the job In January 1986 he was employed by Bielec
for 8 days, and was laid off He was paid $3 50 per hour,
substantially less than he earned at the Company Earley
registered with MESC He testified that he stopped
searching for employment in April 1986 because Bielec
had told him he might need him when he returned from
vacation, which Earley understood to be in early May
Bielec did not contact Earley In July a friend informed
Earley that he had turned down an opening at Bielec
Earley contacted Bielec, was hired, and continued work-
ing for Bielec until January 16, 1987, when he was again
laid off Earley worked for Bielec as a carpenter's helper
He was recalled by Bielec in May 1987 Earley testified
that in the interim he did not actively look for work, be-
cause he anticipated that Bielec would recall him at the
beginning of May Earley worked for Bielec until about
January 22, 1988, when he was again laid off He again
registered with MESC Earley was recalled by Biel=
about May 15, 1988, after the backpay period Earley
testified that in March 1988 he applied for work with
Perry (a builder), and with another firm whose name he
could not recall He did not otherwise look for work
after his January 1988 layoff
In March 1987 Earley filled out a questionnaire on in-
terim earnings for the Board's Regional Office Earley
indicated that he worked for Bielec from July 26, 1986,
to January 16, 1987, was laid off, and was recalled in
April or May 1987 He did not list any other interim em-
ployment Earley testified that when the parties met
prior to and in connection with the present proceeding,
the Company told him that they had seen him sitting at
the side of the road selling vegetables Earley testified
that he did not at that time recall his work for Grodi's
Farm He checked through his records and found no
record of such work When he met with counsel for
General Counsel to prepare for the present hearing, she
questioned him about the matter Earley recalled that he
worked on a vegetable farm Two days before the
present hearing, Earley notified counsel for General
Counsel that he had worked for Grodi's Farm as indicat-
ed above The General Counsel amended the backpay
specification to indicate that Earley had interim earnings
of $330 with Grodi's Farm in the third quarter of 1985
and of $130 with Melee in the first quarter of 1986
Duane Mosley, who referred Earley to Grodi's Farms,
has been employed by the company since January 1986
and was presented as a company witness Mosley initially
testified that he worked for Grodi for about 3 months in
1985, picking produce in August, September, and Octo-
ber, which was the season for such work He testified
that he was paid $3 50 per hour (in cash), that Earley
rode with him to work, and that they worked together in
the same crew However, Mosley backed away from his
initial assertion that they worked for about 3 months He
admitted that he began working after the picking season
was well underway, when the produce was "all getting
ripe" He testified that although he was paid $3 50 per
hour, the owner told him that she started new employees
including Earley, at $3 per hour Mosley thereby con-
firmed Earley's testimony that Earley began working for
Grodi after Mosley Mosley testified that Earley worked
for Grodi more than 3 weeks, but possibly less than his
original estimate of 3 months Mosley testified that his
estimate was based on the fact that he quit IBM, went to
work for Grodi, and then went to work for the Compa-
ny, and that the interim span between IBM and the
Company was 3 months In light of the fact that Mosley
began working for the Company in January 1986, his
calculations are plainly erroneous The Company did not
present any testimony or records from Grodi I am not
persuaded that Mosley's estimates are more accurate than
that of Earley
I reject the Company's argument that Earley willfully
concealed earnings from Grodi's Farm and Melee, and
therefore should be penalized by denial of 9 months'
backpay When Earley filled out the Board's question-
naire, he listed Bielec's name and address, and indicated
his periods of employment beginning in July 1986
Therefore the General Counsel and the Company had
sufficient information to check the accuracy of Earley's
recollection of the periods that he worked for Bielec It
is not surprising that Earley overlooked the fact that he
DANIEL'S PALLET SERVICE 399
initially worked for Bielec for 8 days, about 14 months
before filling out the Board questionnaire It is under-
standable that a person might not regard such a brief
period of work as "employment" in any meaningful
sense The omission falls far short of willful concealment
I further find that Earley's brief period of work for
Grades Farm falls within the same category, and I credit
Earley's testimony that he failed to recall his work for
Grodi until counsel for General Counsel jogged his
memory 4 In Retail Delivery Systems, 292 NLRB 121 fn
3 (1988), the Board recently stated as follows with re-
spect to a comparable situation
The Respondent's reliance on NLRB v Flae
Chief Inc , 640 F 2d 989, 991 (9th Cir 1981), is mis-
placed In that ease the court refused to enforce the
Board's Order and found that the discriminatee had
intentionally concealed interim earnings However,
in that case the administrative law judge totally dis-
credited the discnminatee's testimony and found
that the discnminatee's failure to report $8000 of in-
tenm earnings earned in four different jobs, which
involved steady work for penods ranging from 1
month to as long as 7 months amounted to a willful
concealment of interim earnings To the contrary, in
this case the judge credited Mayer's testimony that
it simply had not occurred to him to list on the
compliance formi sporadic odd jobs he had held for
short periods of time, for which he had never even
been on an employer's payroll and for which his
total earnings were $900 When it came to Mayer's
attention that he should have listed this income, he
informed counsel for the General Counsel and the
backpay specification was adjusted
As was pointed out by Judge Robbins in Retail Delivery
Systems (at 126) "It is inaccurate, but not particularly
unusual, for individuals to equate the term 'employer'
only with one on whose payroll the individual appears
and not to consider the giver of 'odd jobs' as one's em-
ployer" See also Rainbow Coaches, 280 NLRB 179
(1986) As the Company has failed to demonstrate with
any degree or accuracy or reliability that Earley earned
more from Grath than $330, I find no basis for altering
this estimate of interim earnings "[A]ny uncertainty in
the evidence is to be resolved against the Respondent as
the wrongdoer" (id at 80 fn 9)
I further find that the Company has failed to prove
that Earley was willfully idle at any time prior to April
1986 Earley's testimony indicates that he continued to
actively search for employment until that time The
Company argues at length that Earley should not be
credited because on his Board questionnaire, he did not
list all the employers to whom he testified he applied,
and also because he did not list any dates of search
beyond February, March, and April 1985 Earley testi-
4 The Company argues (Br 36) that I should not credit Earley's testi-
mony that he checked through his records, because Earley testified that
he kept no records of his employment seeking activities The question
here is one of records of actual employment, e g paystubs, and not of job
searches As Grodi paid its workers in cash, and for less than the mini-
mum wage, it is quite possible that Earley had no wntten records of his
work for Grodi
fled that he did not put down more names because he
ran out of space on the form, and thought he listed
enough The appearance of the questionnaire form tends
to corroborate his testimony Earley filled in every space
on the page marked "Search for Employment," proceed-
ing in chronological order At the bottom of the sheet,
Earley added that he registered for employment with
MESC in May 1985 and February 1986 It is evident that
Earley understood that he was not expected to put down
more names, and therefore added a summary entry con-
cerning MESC, in order to indicate that he continued to
search for work The Company's argument also fails to
take into account Earley's testimony that he applied two,
three, or even four times with many of these prospective
employers Plainly, Earley saw no need to add additional
dates to these names, particularly as he had no space to
do so It is evident from the questionnaires of both
Earley and Cnst that they did not understand that they
were expected to list every date and place when and
where they sought employment 5
In support of its professed incredulity that Earley and
Cnst were unable to promptly obtain interim employ-
ment, the Company presented documentary evidence
which purported to show that there were many jobs
available in the Monroe area for which they were osten-
sibly qualified The Company presented (1) a selection of
microfische copies of want ads from the Monroe
Evening News for the period from January 1985 through
March 1986, and (2) a report of the Research and Statis-
tics Department of the Michigan Department of Labor,
summarizing the number of job openings in certain job
categories which were placed with the Monroe office of
MESC during the period from July 1, 1985 to March 1,
1986 The Company has directed my attention to the fig-
ures for the category of "material handler" With regard
to the selection of want ads, I have a preliminary and
indeed fatal problem The copies are largely incomplete
and illegible I have attempted without success to corre-
spond and locate the professed ads listed in appendix A
of the Company's brief with the microfische copies (R
Exh 3) Plainly, if an administrative law judge cannot
make sense of this pile of papers, then Earley and Cnst
could hardly be expected to do so I could assume that
Exhibit A was correct However this would be unfair to
General Counsel and the Charging Parties
Neither of the exhibits presented by the Company es-
tablishes whether the jobs in question were open and
available at the time Cnst and Earley would or could
have applied, or the conditions of such jobs, or whether
the prospective employers would likely have hired either
discnminatee The General Counsel correctly points out
that the Company failed to present any affirmative evi-
dence to establish that either Cnst or Earley failed to
seek employment with a specific employer who would
have hired them, or refused to accept any job that was
offered to them while unemployed during the backpay
5 Crist did not even list specific firms or dates where and when he
sought employment Rather, he simply categorized periods of time and
the manner in which he looked for work, e g, Resameys [sic] sent (Fe-
brary 9, 1985, to May 5, 1986), Monroe MESC, Southgate MESC,
Newspaper Friends," and "Door to Door '
400 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
period Respondent's Exhibit 4 (the statistical report) is
significant in one respect which the Company has ne-
glected to mention The report which shows that there
were 567 openings in the category of material handler,
also shows 1708 applicants for such jobs during the same
period In sum, there were about three applicants for
each opening The proportion for "hand packager" was
even more lopsided The report shows six openings and
58 applicants (The report does not indicate the number
of applicants for the six indicated openings for "kitchen
helper" and two for "cleaner, commercial or institution-
al" Given the relative number of applicants to openings,
and the limited education and training of the discnmina-
tees, it is not surprising that they encountered difficulty
in obtaining interim employment The Board's language
in Laidlaw Corp, 207 NLRB 591, 594 (1973), enfd 507
F 2d 1381 (7th Cir 1974), cert denied 422 U S 1042
(1975), recently cited in Diversified Case Co, 272 NLRB
1099, 1100 (1984), is particularly appropriate to the
present case
With the exception of a bundle of unassimilated
newspaper advertisements and a letter from the
state authonties concerning the relative level of un-
employment in [the area], Respondent produced no
evidence of any employment available to any discn-
minatee, nor of the willful failure of any to accept
such employment It is not enough that the
Respondent thinks that employees should have been
able to secure jobs Suspicion and surmise are no
more valid basis for decision in a backpay hearing
than in an unfair labor practice hearing
This leaves the Company's remaining argument, that
Earley was willfully idle during periods of layoff from
Bielec and should be denied backpay for such periods I
have previously indicated that I credit Earley's testimo-
ny that he actively continued to seek employment until
April 1986 I further find that Earley was justified in not
actively seeking employment during the period from
April to July 1986, because Bielec led him to believe that
he would be rehired at the beginning of May With
regard to his subsequent periods of layoff (January to
May 1987 and January 1988 to end of backpay period),
Earley knew or had good reason to believe that he
would not be recalled until May He registered with
MESC during these periods and applied with two pro-
spective employers in March 1988, but did not otherwise
actively seek employment In determining whether
Earley exercised reasonable diligence during the periods
of layoff, his actions must be viewed in light of his over-
all conduct and experience during the backpay period
See Rainbow Tours, supra, 180 I find in the circum-
stances of this case that Earley should not be denied
backpay for these periods Earley did not "withdraw
from the labor market" during these periods (See
Murbro Parking, 276 NLRB 52, 56 (1985), cited by the
Company 6 He reregistered with MESC during each
layoff period, and did not withdraw his prior applica-
tions and inquiries (many multiple) regarding employ-
ment He remained available for work in the Monroe
area The evidence indicates that when Earley and Cnst
obtained interim employment, they did so through per-
sonal reference rather than through applying at the door
or responding to ads The evidence also indicates that
they had little success during the winter months, when
opportunities for outdoor labor, e g, construction or
farm work, were limited or nonexistent In these circum-
stances, Earley was not required to engage in acts of fu-
tility I find that Earley exercised reasonable diligence in
seeking interim employment throughout the backpay
period, and that the Company has failed to prove that he
was willfully idle at any time dunng that period
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed 7
ORDER
The Respondent, Daniel Gerhard' d/b/a Daniel's
Pallet Service, That Rock, Michigan, its officers, agents,
successors, and assigns, shall make whole David Cnst
and Kenneth Earley by paying each of them the amount
set forth below opposite their name, plus interest thereon
accrued to the date of payment and computed in the
manner set forth in New Horizons for the Retarded, 283
NLRB 1173 (1987), 8 less tax withholdings required by
Federal and state laws
David Cnst

$12,415 56
Kenneth Earley 21,056 40
6 Lundy Packing Co v NLRB, 856 F 2d 627 (4th Or 1988), cited by
General Counsel, is not in point That case dealt with the question of
whether discriminatees were obligated to continue looking for full-time
employment while engaged in interim part-time employment In the
present case, the question presented is whether Earley was obligated to
actively search for employment during periods of layoff from his interim
job
7 In the event no exceptions are filed as provided in Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, 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
8 Under New Horizons, Interest on and after January 1, 1987, is comput-
ed at the short-term Federal rate" for the undeipayment of taxes as set
out in the 1986 amendement to 26 U S C § 6621 Interest on amounts
accrued prior to January 1, 1987 (the effective date of the 1988 amende-
ment to 26 U S C § 6621) shall be computed in accordance with Florida
Steel Corp, 231 NLRB 651 (1977)