Florida Steel Corp.

National Labor Relations Board - Board Decisions

Mar 1, 1978

234 N.L.R.B. 1089 (N.L.R.B. 1978)

FLORIDA STEEL CORPORATION
Florida Steel Corporation and United Steelworkers of
America, AFL-CIO. Cases 12-CA-6032(4) and
12-CA-6067(3)
March 1, 1978
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBERS JENKINS. MURPHY, AND
TRUESDALE
On November 26, 1974, the National Labor Rela-
tions Board issued its Decision and Order in the
above-entitled proceeding,' directing Respondent,
inter alia, to make whole W. C. Martin and Richard
L. Purscell for their losses resulting from unfair labor
practices committed by Respondent in violation of
Section 8(a)(3) and (1) of the National Labor
Relations Act, as amended. Thereafter, the Board's
Order was enforced, in relevant part, by the United
States Court of Appeals for the Fifth Circuit. 2
Pursuant to a backpay specification and appropri-
ate notice issued by the Regional Director for Region
12, a hearing was held on May 9 and 10, 1977, : t
before Administrative Law Judge Robert C. Batson
for the purpose of determining the amount of
backpay due the discriminatees.
On September 29, the Administrative Law Judge
issued the attached Supplemental Decision. Thereaf-
ter, the General Counsel and Respondent filed
exceptions and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Supplemental Decision in light of the
exceptions and briefs and has decided to affirm the
rulings, findings, and conclusions of the Administra-
tive Law Judge as herein modified.
We agree with the Administrative Law Judge's
conclusion that employees Martin and Purscell did
not incur willful losses of earnings by either quitting
various interim jobs or moving from the Tampa area
to other localities. We disagree, however, with the
Administrative Law Judge's finding that the gross
backpay for each of the discriminatees should be
reduced by the amount listed in the specification as
"earned accrued vacation pay" and that the backpay
should be computed with interest at the rate of 7
percent per annum beginning with the third calendar
quarter of 1975.
The backpay specification explicitly states that the
net backpay due each discriminatee is the "sum of
the calendar quarter amounts of net backpay plus
accrued vacation pay due him" and sets forth these
234 NLRB No. 174
sums. Respondent did not allege in its answer to the
specification that vacation pay was improperly add-
ed to backpay nor did it seek to amend its answer or
otherwise raise the issue during the hearing. Indeed,
it appears from the record that Respondent first
raised this defense in its brief to the Administrative
Law Judge. According to Section 102.54 of the
Board's Rules and Regulations, Series 8, as amended,
"[t]he Respondent shall specifically admit, deny, or
explain each and every allegation of the specification
unless the respondent is without knowledge, in which
case the respondent shall so state, such statement
operating as a denial." In the instant case, Respon-
dent's answer clearly admitted that "the footnotes [in
the specification] accurately reflect the amount of
vacation the claimants would have received at
Florida Steel Corporation." Accordingly, on the
basis of the foregoing, we find that Respondent is
precluded from now asserting its defense to the
inclusion of the vacation pay in the backpay award
inasmuch as Respondent admitted in its answer the
correctness of the specification and failed to timely
raise its defense or amend its answer at the hearing. 4
The Administrative Law Judge recommended that
interest on the backpay award be computed as set
forth in Florida Steel Corporation, 231 NLRB 651
(1977). However, the method of determining the
interest rate set forth in that decision is not applica-
ble in cases in which an earlier Order of the Board
providing for a different interest rate has been
enforced by a court of appeals. Accordingly, we shall
order interest to be paid at the rate of 6 percent, as
ordered in our original Decision and enforced by the
court of appeals.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Florida Steel Corporation, Tampa, Florida, its offi-
cers, agents, successors, and assigns, shall make the
following named employees whole by payment to
them of the following amounts, together with interest
at the rate of 6 percent per annum, less any lawful
tax withholdings.
Richard L. Purscell
W. C. Martin
$10,934.71
$11,425.76
1 215 NLRB 97 (1974).
2 29 F.2d 1225(1976).
3 All dates hereinafter are 1977 unless otherwise indicated.
I Southland Manufacturing Corp., 193 NLRB 1036 (1971). enfd. 475 F.2d
414(C.A.D.C., 1973).
1089
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
SUPPLEMENTAL DECISION
ROBERT C. BATSON, Administrative Law Judge: On May
4, 1976, the United States Court of Appeals for the Fifth
Circuit entered judgmentI enforcing, in part, the Board's
reported Decision and Order2 in this matter directing
Respondent herein to, inter alia, make whole W. C. Martin
and Richard Purscell for any loss of pay they may have
suffered as a result of the discrimination practiced against
them, with interest at 6 percent per annum. Controversy
having arisen over the amount of backpay due Martin and
Purscell under the terms of that Decision and Order, the
issues raised in a backpay specification issued April 13,
1977, and answered April 26, 1977, were heard by me as
supplemental proceedings at Tampa, Florida, on May 9
and 10, 1977.
Upon the entire record in this case, including my
observation of the testimonial demeanor of the witnesses,
and upon consideration of briefs filed by counsel for the
General Counsel and Respondent, I make the following:
FINDINGS OF FACT
There is no dispute as to the backpay periods for each of
the discriminatees; for Purscell, June 11, 1973, to June 2,
1976; and for Martin, July 3, 1973, to June 2, 1976, or with
respect to the formula upon which gross backpay is
computed. Further, Respondent does not take issue with
the accuracy of the General Counsel's admitted interim
earnings for either claimaint. Respondent contends that
each claimaint incurred willful loss of earnings by quitting
various jobs which were suitable and substantially equiva-
lent and moving from the Tampa area to areas which
afforded less opportunity for suitable employment. a Re-
spondent also takes issue with the travel and moving
expense and failure to include strike pay as interim
earnings as to Purscell.
Richard L. Purscell was employed by Respondent for
more than a year as a rebar checker before his discharge on
June 11, 1973, at which time he was earning $3.67 per hour.
About June 19, 1973, he went to work as a general laborer
for Cement Roofing Industries, Inc., at $3.50 per hour.
Purscell quit after I week because he had received only 2
i Florida Steel Corporation v. N.L.R.B., 529 F.2d 1225 (C.A. 5, 1976).
2 Florida Steel Corporation, 215 NLRB 97 (1974).
3 In its brief, Respondent raises for the first time an issue with respect to
the computation of the vacation pay for both claimants. The contention is
that this is "apparently . . . a clerical error in calculating .. . vacation
pay." This issue will be dealt with infra.
' Purscell's testimony with respect to the dates he began work and left
most of his interim employers is unreliable. He admittedly had a great deal
of difficulty reconstructing such dates and had no concept of time after he
moved to Des Moines. He testified that he worked about 6 weeks at Rovner
Sanitary Services during late October, November, and December 1973,
which is not incompatible with the admitted interim earnings from Rovner
of $736.25 during the fourth quarter of 1974. He testified that he then
worked for Great Plains Bag Corp.. for about 3 months which is again
compatible with the admitted interim earnings from Great Plains of $255.60
for the fourth quarter, 1973, and $1.712.08 for the first quarter, 1974.
However, Purscell testified that he left Great Plains and immediately went
to work at AMF in late January or early February 1974 and a short time
later, in February 1974, participated in a strike for 8 months, or until
September 1974. Based upon the admitted interim earnings from Great
Plains of $1,712.08 for the first quarter, 1974, at the rate of pay stated by
him, which amount or date is not disputed by Respondent. It appears that
he would have had to work substantially the entire quarter with liberal
days' work due to inclement weather. About July 1, 1973,
Purscell began work at Ware Construction Company as a
carpenter apprentice, earning $2.50-$3 an hour. He quit
this job about September 24, 1973, because he did not want
to become a carpenter and began work at Robins Manu-
facturing Company as a truckdriver earning $2.50 an hour,
for 40 hours per week. About October 24, 1973, Purscell
quit Robbins and moved to Des Moines, Iowa, where
friends had told him jobs were available. The General
Counsel deducts from 1973-4 interim earnings $200 for
moving expenses computed as $35, trailer and hitch rental;
$35, meals and lodging (2 days and I night); and $130 at 10
cents per mile for 1,300 miles. Such expenses, if allowable,
have been established.
Within 2 or 3 days of arriving in Des Moines, Purscell
obtained employment at Rovner Sanitary Services, Inc., as
a truckdriver earning a salary of about $160 per week,
considerably more than at Robbins. About mid-December,
he quit Rovner because he reasonably feared an impending
layoff and immediately began work at Great Plains Bag
Corp., as a forklift operator for about $2.75 an hour, with
some overtime. After obtaining a job at AMF as a forklift
operator earning $4-$4.50 an hour, with little or no
overtime, he quit Great Plains about the middle of March
1974. About mid-June 1974 a strike commenced at AMF
which lasted about IS weeks, or until about the last week of
September. 4 During the strike Purscell sought and obtained
employment at J. C. Penney Company, Modern Moving
and Storage, and Target Stores, and from such employ-
ment earned about $900. He also received $35 per week
from the union, United Automobile Workers. He testified
that he was available for work at those interim employers
"except for those days I had to take off for picket duty
which would be I day a week, and sometimes I didn't have
to take off if it [the picket duty] was at night." 5
The Union gave Purscell a statement of the amount
received as strike benefits and instructed him to report such
as income for income tax purposes. Presumably the Union
did the same for all strikers receiving such benefits. Purscell
reported such moneys on his income tax returns. In
September 1974, the strike ended and Purscell returned to
work. He worked until February 1975, at which time he
overtime to have had these earnings. Moreover, he immediately went to
work for AMF and is credited with interim earnings of $125.44 for the first
quarter, 1974. He also has admitted interim earnings of S1,948.18 from
AMF for the second quarter of 1974. This would require that he work a
minimum of 10 weeks in the second quarter, 1974, assuming a rate of $4.35
per hour for 40 hours a week. Interim earnings from AMF of $132.07 are
also admitted for the third quarter, 1974. While both counsel for the General
Counsel and the Respondent, in their briefs, accepted Purscell's testimony
that he was on strike from February to September 1974. or for a period of 8
months, and make their respective arguments with respect to the inclusion
as interim earnings of strike benefits paid Purscell for that 8-month period, I
find such to be totally incompatible with, and unsupported by. the record as
a whole. Therefore, I have made the above finding that the strike started
about mid-June and ended the last week in September, or a period of 15
weeks, based upon the record as a whole. There is no evidence that AMF
continued to pay Purscell while he was on strike. I do not believe that
Purscell deliberately prevaricated or testified falsely. He simply did not
remember and had obviously not had the advantage of reviewing informa-
tion upon which admitted interim earnings were based, for the purpose of
refreshing his recollection.
I p. 30, In. 20, of the official transcript is hereby corrected by changing
"not" to "night."
1090
FLORIDA STEEL CORPORATION
was laid off until November 1975, when he was recalled; he
continues to work at AMF. During his layoff, Purscell
drew unemployment compensation, a condition of which
was to apply for at least two jobs a week. lie unsuccessfully
sought jobs at John Deere Company, Massey Furgeson,
Firestone Tire and Rubber, American Can, and others,
some on more than one occasion. The $17.60 dedvztion
from interim earnings for mileage searching for work
during this period of time had been established by the
General Counsel.
W. C. Martin was employed by Respondent for about 7
years as an overhead crane operator and, at the time of his
discharge on July 3, was earning $3.67 per hour with about
2 hours per week overtime. About July 16, 1973, Martin
obtained employment at Tampa Municipal Incinerator as
an overhead crane operator at $2.98 per hour straight time
for 48 hours per week. Martin testified the crane at Tampa
differed in several repects from that which he operated at
Respondent. The controls were located on the side as
opposed to the front and the operation required a faster
movement. After I week he quit for a job at Tampa Ship
Repair & Drydock Co. as a gantry crane operator earning
$4.49 per hour. Martin quit this job after 7 weeks and a
near accident which he vividly described. Martin stated
that on his last night of employment he was signaled to
hoist a section of a barge weighing 15 tons. He set his boom
for 20 to 25 tons as a margin of safety. He attempted to
hoist the load which refused to give. He set his levers and
left the cab, which is 70 to 80 feet high, to check his wheels,
stating that it felt as if he were about to turn over. The
ground crew continued to motion him to hoist and he tried
a little more, then refused to hoist anymore for fear of
turning over. He later learned that the barge section had
not been cut free, as it should have, but was still welded
down. Martin never returned to work at Tampa Ship
Repair because of the near accident and his fear of
operating the crane.
Martin immediately borrowed money, purchased a
truck, and became an entrepreneur in the junk car hauling
business. He remained in this unsuccessful enterprise about
2 months, during which he earned $353.35. In December
1973, Martin obtained employment at Tampa Wholesale
Co. (Kash and Karry) as a selector at $2.90 per hour. After
a 2-week training period he was converted to an incentive
basis with a guarantee of $2.90 per hour. In May 1974,
Martin quit Tampa Wholesale and moved to Foster,
Kentucky, his home prior to moving to Tampa 16 years
earlier. He testified that he went back to Kentucky to get
help from his family since he was behind on "his bills" and
had let his brother take up payments on his home in
Tampa to avoid foreclosure. Furthermore, he had lost
some furniture because he was unable to meet his pay-
ments and had lost a "piece of land" which he had
purchased and upon which he had drilled a well in
anticipation of building a home, prior to his discharge from
Respondent. Jack L. Porter, office manager for Tampa
Wholesale, testified that Martin had quit "in bad stand-
ing." Why Martin was in bad standing is not disclosed by
the record. However, Porter stated that when a selector fell
below a certain standard of production he would probably
be terminated.
Martin immediately began seeking work in and around
Bracken County, Kentucky. He testified that he sought
work at Fort Thomas Sanitation in Campbell County,
Kentucky, Campbell County Waterworks, Black River
Mine in Pinkerton County, and Karpays Plastic Company
in Augusta, Kentucky. Three or 4 weeks after moving to
Kentucky he obtained employment at Butler Products at
Butler, Kentucky, about 10 miles from his home. At Butler
Products, Martin operated a drill and earned $2.60 to $2.70
per hour for 40 hours a week. Martin worked a short time
at Butler Products and quit to work for Bill Strange
Construction Co., at Cold Springs, Kentucky, about 30
miles from Martin's home, at a highei rate of pay. The
record does not disclose what Martin's rate of pay has
been, or what type of work he performed while with
Strange. Martin continued to work for Strange for the
remainder of the backpay period. Work was apparently
regular except for the winter months when Martin was laid
off due to inclement weather or lack of work. During his
periods of layoff in the winters of 1974 and 1975, Martin
sought employment through the Kentucky Employment
Security Commission at Fort Thomas Sanitation, Campbell
County Water Works, and a mine at Coyntown, Kentucky.
Martin lived about 40 miles from the Employment Security
Office, and during his layoff in 1974-75 he made seven or
eight trips; during the 1975-76 layoff, he made five or six
trips to the office. During these periods of layoff Martin at
all times remained eligible for and drew unemployment
compensation.
Analysis and Conclusions
Richard L. Purscell. Respondent contends that Purscell
incurred a willful loss of earnings when he quit his job at
Robbins Lumber Company in Tampa and moved to Des
Moines, Iowa, and it is, therefore, entitled to an offset in
Purscell's net backpay equal to what he would have earned
at Robbins, or his actual interim earnings during each
quarter, whichever is greater. It further contends that the
$35 per week strike pay Purscell received while on strike at
AMF in Des Moines should be added to the amount he
would have earned at Robbins. It further contends that the
$200 moving expenses claimed by the General Counsel
should not be deducted from interim earnings, and that,
apparently due to an error in computations of vacation
pay, the General Counsel is claiming double vacation pay
for Purscell. Respondent concludes that using this formula
Purscell's net backpay for the 3-year backpay period is
$5,489.50 and not $11,459.71 as claimed by the General
Counsel.
Mitigation of damages, for which the burden of proof is
on Respondent,6 is the primary issue in these supplemental
proceedings. It is well settled that a discriminatorily
discharged employee must make a reasonably diligent
search for suitable interim employment and must accept
such employment if offered. Phelps Dodge Corporation v.
N. LR.B., 313 U.S. 177 (1941). It is equally well settled that,
6 N.L.R. B. v. Brown & Root, Inc., 311 F.2d 447, 454(C.A 8. 1963).
1091
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
having obtained substantially equivalent suitable interim
employment, a discriminatee must prudently retain such
employment or run the risk of being subjected to an
exclusion from gross backpay the amount that would have
been earned had such job been retained. Knickerbocker
Plastic Co., Inc., 132 NLRB 1209, 1212-16 (1961); Gary
Aircraft Corporation, 211 NLRB 554, 557 (1974). Thus, the
question posed here is whether or not Purscell's employ-
ment as a truckdriver at Robbins Manufacturing Company
at $2.50 per hour for 40 hours a week is suitable interim
employment and, if so, whether his reason for quitting, i.e.,
to move to Des Moines, Iowa, where friends told him
employers were hiring, is an excusable reason.
In its brief, Respondent argues "[E]xcusable exceptions
keys [sic] most frequently to the term 'unsuitable'; ordinar-
ily applied to mean unprestigious, annoying jobs or those
certain to create unacceptable disruptions in the discrimi-
natee's private life." Respondent does not, apparently,
recognize that the term "suitable" is also keyed to reason-
ably comparable pay for comparable work.
Respondent does not contend that Purscell's quitting
Cement Roofing Industries, Inc., because of sporadic work,
or Ware Construction Co., Inc., because he decided he did
not want to become a carpenter, constitutes a willful loss of
earnings. During the brief time Purscell worked at Rob-
bins, he earned $2.50 per hour and worked 40 hours a week
providing an income of $100 per week. During the same
period of time Purscell's replacement, W. J. McQueen,
whose earnings are used as the bases for gross backpay,
which formula is admitted by Respondent, averaged 43.05
hours a week at $3.67 per hour for an income of
approximately $158 weekly. Thus, Purscell's earnings at
Robbins amounted to slightly more than 60 percent of
those of his replacement. Purscell's work at Robbins was
comparable to that at Respondent, for at the time of his
discharge he was being trained to operate a tractor or
truck. Florida Steel Corporation, 215 NLRB 97 (1974).
However, I find that the pay was not comparable to that at
Respondent and Purscell's job at Robbins was not suitable
interim employment and his quitting upon reliable infor-
mation that jobs were available in Des Moines, and moving
to that city, does not constitute a willful loss of earnings.
Indeed, had Purscell remained on the job at Robbins,
incurring approximately $650 per quarter net backpay
liability on Respondent, Respondent might well have
complained that he did not make a sufficient effort to find
a better job to further mitigate damages.
Within 2 or 3 days after arriving in Des Moines, Purscell
obtained a job as a truckdriver for Rovner Sanitary
Service, Inc., netting $145 a week. He testified that his
gross pay was about $160 to $170 per week. Thus, the first
job he obtained was substantially equivalent to that at
Respondent. He left after several weeks when Rovner
began laying off, because he feared he would also be laid
off. Respondent does not attack Purscell's reason for
leaving Rovner or contend that such incurred a willful loss
of earnings. Purscell then went to work for Great Plains
Bag Corp., as a truckdriver at $2.75 per hour with some
7 See fn. 4, supra.
8 N. L. R. B v. Miami Coca-Cola Bouling ('omparny, 360 F.2d 569 (C.A. 5,
1966).
overtime. He worked at Great Plains until late March 1974,
when he went to AMF at $4 to $4.50 per hour, again
comparable to what he would have been making at
Respondent.
In mid-June 1974, Purscell participated in a strike at
AMF, which lasted about 15 weeks.7 Respondent does not
contend that Purscell removed himself from the labor
market during the strike, and the evidence does not
establish such. He had three interim employers during the
strike. Respondent contends that the $35 per week received
from the Union as strike benefits should be added to
Purscell's interim earnings. I agree. While there is some
uncertainty in the record as to whether such moneys were
earned by performing picket duty, and I am cognizant that
such uncertainties are normally resolved against the wrong-
doer whose conduct made the uncertainty possible,s in this
case the uncertainty is not so great as to warrant the
application of that principle. Purscell testified that he was
not available for work on days he had to picket (once a
week for 4 hours) and the Union gave him and others a
statement of the amounts paid to them and instructed them
to report such as earnings for income tax purposes. Purscell
reported such earnings. The applicable law is well settled
that where strike benefits received by a claimant consti-
tutes wages or earnings resulting from interim employment
they are proper deductions from gross pay. However, if
these sums represent collateral benefits flowing from the
association of the claimant with the Union, they are not
deductible, Rice Lake Creamery Co., 151 NLRB 1113, 1131
(1965). Collateral benefits flowing from association with
the Union most often take the form of loans to be repaid in
the event backpay is recovered from the employer, or they
are payments based on the particular needs of striking
employees.9 The General Counsel argues in his brief that
there is no showing that Purscell was required to picket 4
hours a week in order to receive these benefits. He
apparently concedes that, if it is found that such was a
requirement, then the benefits constitute interim earnings.
While not given controlling weight by the Board, the fact
that the Union considered, and presumably treated for its
own tax purposes, these benefits to be earned income, such
treatment is accorded some weight by the Board.' 0 More-
over, by Purscell's own testimony he was not available for
work on the "days he had to picket." Thus, I am persuaded
that a condition of receiving these benefits was performing
weekly picket duty. During this period of time the General
Counsel was computing Purscell's gross backpay at ap-
proximately $164 per week, or slightly less than $35 per
day. Whether Purscell is tolled I day a week for this period,
which is the minimum finding permitted by this record, or
the strike benefits are added as interim earnings, the net
result is about the same. Therefore, I shall add $35 per
week for a period of 15 weeks, 3 weeks during the second,
and 12 weeks during the third quarter of 1974 to Purscell's
interim earnings, such amount being $525.
Purscell returned to work at AMF in September 1974, at
the conclusion of the strike, and worked until February
1975, at which time he was laid off in a reduction in force.
9 See Gary Aircraft Corporation, 211 NLRB 554, 556 (1974): and My
Store, Inc., 181 NLRB 321, 325, 326 (1970).
iU My Store, Inc., ibid
1092
FLORIDA STEEL CORPORATION
He remained on layoff for 10 months, during which time he
drew unemployment compensation. Purscell testified that
throughout his layoff he sought work and, as a condition of
drawing unemployment compensation, had to prove that
he applied for at least two jobs per week. In its brief
Respondent does not address the issue of willful loss of
earnings or failure to mitigate damages for this period. Nor
was any evidence adduced demonstrating a failure to
diligently seek interim employment. The requirements to
remain eligible for unemployment benefits have been held
to be sufficient to satisfy requirements to remain eligible
under the Act." Respondent failed to present any evidence
refuting Purscell's testimony in this respect. I find that he
made a diligent search for employment.
Respondent's final contention, raised first in its brief, is
that the General Counsel apparently made a clerical error
in calculating the vacation pay for both Purscell and
Martin by using 52 weeks each calendar year, based on the
earnings of their respective replacements, and then adding
the vacation pay, I week in Purscell's case for 1973, and 2
weeks, less vacation pay received from his interim employ-
er, in each 1974 and 1975. Thus, Respondent argues that
Purscell could not have worked 13 weeks each quarter and
taken the vacation allowance in addition thereto. Appendix
B of the backpay specification, which is the computation of
Purscell's gross backpay based upon the earnings of his
replacement, shows that the gross backpay was computed
on the basis of 13 weeks each quarter, but does not indicate
whether or not the replacement received vacation pay in
addition thereto or whether such vacation pay is included
in the gross earnings. In any event, it appears that the gross
backpay includes all wages and benefits paid Purscell's
replacement for a 52-week period each year and, based
upon the General Counsel's formula for computing such,
which does not specify additional vacation pay, I conclude
that the amount Purscell would have received as vacation
pay is already included as gross backpay and I shall reduce
the gross backpay by the following sums; third quarter
1973, $146.80; first quarter 1975, $252.40; and, first quarter
1976, $264.
W. C. Martin: Respondent contends that Martin's
quitting his jobs at Tampa Municipal Incinerator and at
Tampa Wholesale constitutes a willful loss of earnings, and
that it is entitled to an offset against gross backpay for his
potential earnings for either of these jobs for the remainder
of the backpay period. It proposes that, since Municipal
Incinerator was the first job Martin quit, that his potential
earnings from that job be offset. Respondent elicited from
C. H. Haley, assistant superintendent of Municipal Incin-
erator, testimony as to the raises its crane operators
received after Martin quit and according to its computa-
tions of Martin's potential earnings, based upon 48 hours
per week to January 1, 1975, when the employer began
paying overtime, and 52 hours 12 per week thereafter, its net
backpay due Martin is $954.92.
As noted, at the time Martin was at Tampa Municipal
Incinerator he earned $2.98 per hour straight time for 48
hours a week. Thus, Martin was working 48 hours a week
to earn $15 less than his replacement at Respondent who
11 J H. Rutter-Rex Manufacturing Company, Inc., 194 NLRB 19. 24
(1971).
worked approximately 42 hours a week. While this job was
substantially equivalent to the one at Respondent under
current Board standards, I cannot fault Martin for quitting
to take a much higher paying job, $4.49 per hour, at Tampa
Ship Repair & Drydock Company as a gantry crane
operator. It is true that Martin had no experience as a
gantry crane operator, but it is not shown that he had no
reasonable expectancy that he would be able to learn the
operation of the gantry crane, nor is it shown that Martin
was aware that the job was temporary. Joe E. McGlomery,
personnel manager for Tampa Ship Repair & Drydock Co.,
testified that Martin's replacement was laid off in October
1973, as Martin would have been had he not quit earlier.
McGlomery also stated that Martin would probably not
have been recalled since they obtained their crane opera-
tors through the Operating Engineers' hiring hall. There-
fore, I find that Martin did not incur a willful loss of
earnings by quitting Municipal Incinerator.
Martin quit Tampa Ship Repair & Drydock after 7 weeks
and the near accident heretofore described, after which he
testified that he was "scared" to operate the gantry crane. I
find that Martin's fear of the crane after the near accident
was genuine and not without grounds. Therefore, his
quitting was justified. Indeed, the Board has held that
under some circumstances quitting a job because one
dislikes it is justifiable if such dislike is reasonably
grounded. In My Store, Inc., supra at 341, the Administra-
tive Law Judge found that claimant Mahan was justified in
quitting his job with Peabody Coal Company after being
transferred to underground work, simply because he did
not like to work underground.
After leaving Tampa Ship Repair and Drydock, Co.,
about September 1973, Martin purchased a truck and for 2
months was self-employed hauling junk cars. The Board
has held many times that it will not penalize an individual
who attempts to start in business for himself and is
thereafter unsuccessful, particularly, where, as here, Martin
did not unduly belabor his venture after earning only $353
in a 2-month period.
In December 1973, Martin started work at Tampa
Wholesale, as a selector at $2.90 an hour for 2 weeks and
was thereafter on an incentive basis. He quit this job in
May 1974 and moved to Foster, Kentucky. Respondent
urges that this move by Martin was foolish and imprudent
in view of the fact that during the last 17 weeks of
employment he had averaged working 45 hours a week and
earned an average of $143 per week, which is within 90
percent of what he would have earned at Respondent.
Respondent contends that it is at least entitled to an offset
in the amount of his potential earnings at Tampa Whole-
sale for the remainder of the backpay period. Respondent
also contends that, while in Tampa. Martin did not search
for crane operators jobs; Respondent cross-examined him
extensively concerning his failure to read the classified
advertisements of certain publications of a local newspaper
where such jobs were purportedly available. No such
evidence was introduced and Respondent has not shown
that such jobs were available or that Martin would have
been hired had he applied for them. Similarly, Respondent
12 There is no record evidence that Martin would have worked 48 and 52
hours dunng this period.
1093
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
elicited testimony from C. H. Haley, assistant superinten-
dent of Municipal Incinerator, that Martin was eligible for
rehire. However, there is no testimony that any overhead
crane operators were hired, except Martin's replacement,
or that Martin would have been hired had he applied.
As heretofore noted, Martin quit his job at Tampa
Wholesale and moved to Foster, Kentucky, located in
Bracken County, with a population of about 7,000, accord-
ing to a stipulation of the parties based upon the 1970 U.S.
Census. Respondent contends that Martin moved back to
his home area for personal reasons and convenience and a
desire to be with "his family," rather than, as Martin
claims, that the move was prompted by economic necessity
to obtain assistance from his family to "get back on his
feet" and to extricate himself from the economic plight
brought about by his unlawful discharge by Respondent.
Martin testified credibly, and without contradiction, that
after his discharge by Respondent he was forced to let his
brother assume the payments on his home to avoid
foreclosure; that he lost some land he was purchasing and
upon which he had drilled a well in anticipation of building
a home, and he had some furniture repossessed because he
was unable to make payments on it. He further testified
that he was getting further behind with "his bills." With
respect to Martin's economic plight, Respondent observes
in its brief, "[I]f the entire truth were known, it was
probably this futile attempt at self-employment [the 2
months in which Martin was engaged in the junk car
hauling business] which caused all of Martin's alleged
financial difficulties and could have been avoided if Martin
had used just a little common sense." One might ponder
the validity of this observation: however, one need not
ponder the fact that at this time, some 10 months after his
termination by Respondent, he had already sustained
losses in excess of $2,500, or about $250 per month, as a
result of his unlawful discharge, which obviously played a
far greater role in his economic plight than his brief venture
as an entrepreneur.
In support of its contention that Martin's motivation in
moving back to Kentucky was a desire to be with his
family and because it was home, Respondent elicited
testimony from Patricia Caudill, an investigator for Pinker-
ton's Incorporated, and introduced into evidence an
interview report based upon an interview with Martin in
March 1975. After surreptitiously gaining admission to
Martin's home under the pretext of looking for a "Martin"
with a similar name, Caudill engaged Martin in what
appeared to be casual conversation. During the course of
the conversation, according to Caudill, Martin told her that
he had lived in Florida a number of years and had worked
for Florida Steel, but had moved back to Kentucky
because it was home and he enjoyed living there. He
further told her there were plenty of jobs in Florida. Martin
testified that he told her that he moved back to Kentucky
because he was having difficulty mking a living in Florida
and denied that he told anyone there were plenty of jobs in
Florida. Respondent contends that Caudill should be
credited and that Martin's statement to her with respect to
his reasons for moving to Kentucky and the fact that there
were plenty of jobs in Florida should be construed as an
admission against interest. On cross-examination Martin
did not remember any conversation with Caudill. However,
after Caudill testified, Martin's memory was refreshed to
some extent. Even then I am of the opinion that Martin
had little independent recollection of this casual conversa-
tion occurring 2 years earlier. While I was impressed with
Martin's simple honesty and forthright answers, I believe
that Caudill's version of the conversation is more accurate.
I disagree with Respondent that the statements allegedly
made by Martin under these circumstances constitute an
admission against interest. Apparently Respondent would
contend that Martin owed an obligation to a stranger to
candidly disclose intimate details of his life, including the
embarrassing admission that he could not make a living in
Florida and had come back home to get help. Therefore, I
accord no weight to Caudill's testimony.
In determining whether a backpay claimant incurs a
willful loss of earnings by quitting a substantially compara-
ble job and moving to a less densely populated area, all the
circumstances, including the claimant's economic position,
should be considered. Having obtained substantially com-
parable employment, the Board has held only that a
claimant must exercise a degree of prudence in retaining
the job and not foolishly quit and incur a willful loss of
earnings. The Board has never held that a claimant must
always exercise the legendary wisdom of the biblical
Solomon or unerringly pursue the course which hindsight
reveals would have greater mitigated a respondent's back-
pay liability.
Respondent does not take issue with the financial plight
that Martin was in at the time he made the decision to
move back to Kentucky and get assistance from relatives,
nor does it propose, even in retrospect, a viable alternative
Martin might have pursued in Tampa to extricate himself
from this plight except to remain in Tampa at a lower
paying job and get further behind in "his bills." While
other courses may have been open to Martin which would
have ultimately resulted in a greater mitigation of backpay
liability, I find that under all the circumstances here
Martin's actions were not so imprudent or foolish as to
warrant an offset from gross backpay the amount he would
have earned had he remained at Tampa Wholesale.
Moreover, there is a serious question as to whether Martin
would have had the option of remaining at Tampa
Wholesale for the remainder of the backpay period. As
heretofore noted, Respondent elicited testimony from Jack
L. Porter that at the time Martin quit he was in bad
standing. However, Respondent did not adduce testimony
as to why Martin was in bad standing or whether it was
because of some avoidable misconduct on his part. In this
case I must apply the usual rule and construe the
uncertainty against the wrongdoer whose conduct made
the uncertainty possible. Miami Coca-Cola Bottling Co.,
supra.
Respondent has not sustained its burden of establishing
that Martin's move to Kentucky was foolish or imprudent
in that he removed himself from a good job market to one
where job prospects were dim. The parties stipulated that
based upon the 1970 U.S. Census Bureau report the
population of Hillsbourgh County, Florida (Tampa), was
484,000 and Bracken County, Kentucky, was 7,000. There
is no evidence as to the population of the counties
1094
FLORIDA STEEL CORPORATION
surrounding Bracken, e.g., Campbell, Pinkerton, and other
areas in which Martin sought work. Furthermore, there is
no evidence as to the amount of or types of industry,
compared to the population in the two areas. Undoubtedly
an inference is warranted that there are more industry and
jobs in the Tampa area than in the Bracken County area, as
counsel for the General Counsel aptly observed in his brief,
so there are also more people seeking those jobs.
In support of its contention that Martin's move from
Tampa to a less populated area is the type of action which
the Board has construed constitutes a willful loss of
earnings, Respondent cites Midwest Hanger Co., 221
NLRB 911, 920-921 (1975). In that case the Board
affirmed without comment the Administrative Law Judge's
finding that claimant Buckley incurred a willful loss of
earnings by quitting an interim job paying $1.70 an hour
(she had been earning $2.10 an hour at the time of her
discharge) and moving from Kansas City to Smithville,
Missouri, a town of less than 5,000 population. Buckley
stated as her reason her inability to pay the higher rent in
Kansas City on her reduced income and that friends had
told her she would be able to obtain employment at a
hospital in Smithville. Buckley did not make inquiry of the
hospital prior to moving and tried but never did obtain a
job there. She actively sought employment at Smithville.
However, she had no private transportation and public
transportation was not readily available at Smithville.
Moreover, there were concededly few jobs in the area. It
appears that, in Buckley's case, one of the factors consid-
ered in finding that she incurred a willful loss of earnings
by moving to a small town was the fact that she had no
private transportation, and public transportation was not
available, as in Kansas City, and she, therefore, further
limited herself in accepting jobs which may have been
available in the area. In Martin's case he was available for,
and sought employment, in a three-or four-county area in
Kentucky, and while I find there were fewer jobs than in
the Tampa area it has not been shown that Martin's
chances of obtaining a comparable job there were relative-
ly less than in Tampa. Indeed, it appears that, during the
remaining 25 months of the backpay period after Martin
returned to Kentucky, his interim earnings were compara-
ble to those he had during the initial 10 months after his
discharge in Tampa.
Therefore, I find that Martin did not incur a willful loss
of earnings by quitting his employment at Tampa Whole-
sale, employment which there is some uncertainty about
whether he could have retained, and moving to Kentucky.
In view of the factors motivating Martin in his decision to
move to Kentucky, I shall not offset any amount for the 2
or 3 weeks which it took him to get settled in Kentucky and
obtain employment at Butler Products. Respondent does
not contend that Martin incurred any willful loss of
13 The Board's Decision and Order in Florida Steel, supra, issued August
25, 1977. At fn. 12 the Board stated, "We shall apply the current 7-percent
rate to pending cases for backpay and other monetar) awards accruing in
periods prior to the issuance of this Decision in which the 'adjusted prime
interest rates' as used by the U.S. Internal Revenue Service in calculating
interest on tax payments was at least 7 percent." On July I. 1975, the U.S
earnings in Kentucky by failing to make a diligent search
for employment or that he refused any suitable employ-
ment. Moreover, the record establishes that Martin actively
sought employment in a wide area and accepted all
employment offered. Also, during period of layoff from Bill
Strange Construction Co., Martin sought employment and
at all times qualified for unemployment compensation.
As in the case of Purscell, the General Counsel computed
Martin's gross backpay based upon the earnings of his
replacement for 13 weeks each quarter and then adding an
amount equal to 80 hours pay at the straight time hourly
rate as vacation pay. For the reasons set forth in the section
of this Decision dealing with Purscell, I shall deduct from
Martin's net backpay for the first quarter 1974, $293.60;
the first quarter 1975, $316; and for the first quarter 1976,
$357.60.
THE REMEDY
For reasons set forth above, I find that Respondent's
obligations to the discriminatees herein will be discharged
by the payment to them of the respective amounts shown
in the Appendix annexed hereto. Such amounts shall be
payable plus interest at the rate of 6 percent per annum to
accrue commencing on the last day of each calendar
quarter of the backpay period for the amount due and
owing for such quarter as set forth in the Appendix, from
the beginning of the respective backpay periods through
the second quarter, 1975, as provided in Isis Plumbing &
Heating Co., 138 NLRB 716 (1962), and from the third
quarter, 1975, at the adjusted prime interest rate, currently
7 percent per annum, and continuing at such rate, as
modified from time to time by the Secretary of the
Treasury as provided in the Board's Order in Florida Steel
Corporation, 231 NLRB 651,'3 and continuing until the
date this Decision is complied with, minus any tax
withholdings required by Federal and state laws in accor-
dance with the Board's formula in F. W. Woolworth
Company, 90 NLRB 289 (1950).
The gross backpay figures in the Appendix are based
upon those set forth in the specifications and admitted by
Respondent. The net interim earnings in the Appendix are
based upon those set forth in the specifications as amended
at the hearing after deducting travel expenses as establish-
ed by the General Counsel, except as modified herein with
respect to the inclusion of earnings by Purscell from the
United Automobile Workers. 14 The next backpay due each
quarter is based upon those set forth in the specifications as
amended, except as to the deduction of additional vacation
pay as found herein.
Internal Revenue Service began calculating interest on tax payments at 7
percent.
4' The Appendix does not name the interim employers inasmuch as the
record does not establish any error, except as noted herein, in those
admitted in the specifications.
1095
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER 15
The Respondent, Florida Steel Corporation, Tampa,
Florida, its officers, agents, successors, and assigns, shall
make the following named employees whole by payment to
them of the following amounts, together with interest as set
i' In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board. the findings,
conclusions and recommended Order herein shall, as provided by Sec.
AP
YR. & QTR.
GROSS
B ACKPAY
forth in the section of this Decision entitled "The Reme-
dy," and continuing until the amounts are paid in full.
Richard L. Purscell
W. C. Martin
$10,271.51
$10,458.56
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.
'P ENDIX
NET
INTERIM
EARNINGS
NET
B ACKPAY
Richard L. Purscell
1973-2
(from 6-11-73)
1973-3
1973-4
1974-1
1974-2
1974-3
1974-4
1975-1
19 75-2
1975-3
1975-4
1976-1
1976-2
(to 6-2-76)
$ 473.98
2,053.92
2,045.76
1,965.65
2,093.37
2,131.69
2,198.91
2,189.20
2,298.96
2,373.12
2,409.36
2,418.00
1,675.20
$ 136.50
1,383.38
930.91
1,873.52
2,053.18
1,448.56
1,883.59
1,524.01
106.43
.00
975.44
2,765.20
1,358.09
$ 337.48
670.54
1,114.85
128.13
40.19
683.13
315.32
665.19
2,192.53
2,373.12
1,433.92
.00
317.11
$10,271.51
W. C. Martin
1973-3
(from 7-3-73)
1973-4
1974-1
1974-2
1974-3
1974-4
1975-1
1975-2
1975-3
1975-4
1976-1
1976-2
(to 6-2-76)
$2,083.39
2,111.97
2,073.00
2,138.17
2,157.73
2,213.07
2,158.46
2,271.52
2,347.91
2,384.16
2,385.12
1,654.15
$1,398.15
713.67
1,851.50
1,223,62
1,819.00
1,553.00
239.00
1,209.75
2,345.38
1,702.60
284.50
1,180.00
$ 685.24
1,398.30
221.50
914.55
338.73
660.07
1,919.24
1,061.77
2,,53
681.56
2,100.92
474.15
$10,458.56
1096