Glover Bottled Gas Corp.

National Labor Relations Board - Board Decisions

Nov 22, 1993

313 N.L.R.B. 43 (N.L.R.B. 1993)

43
313 NLRB No. 20
GLOVER BOTTLED GAS CORP.
1 The judge inadvertently stated that the job Leone left when he
moved to Florida was with Sinkoff Beverage. In fact, Leone left the
job with Treadways Express. This does not affect the result.
2 See also Rice Lake Creamery Co., 151 NLRB 1113 (1965)
(discriminatee entitled to backpay after moving from Wisconsin to
Washington ‘‘for personal reasons’’ and because he believed the em-
ployment opportunities would be better there).
3 As we cannot determine from the record before us what the
amount of the reduction should be, we leave those computations to
further compliance proceedings.
4 Less the 1 week’s vacation pay for Robert Cabral, as discussed,
supra.
Glover Bottled Gas Corp.; Vogel’s, Inc.; New York
Propane Corp.; Synergy Gas Corp.; Synergy
Group, Inc. and Ralph Kendrick
Glover Bottled Gas Corp.; Vogel’s, Inc.; New York
Propane Corp.; Synergy Gas Corp.; Synergy
Group, Inc. and Local 282, International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, AFL–CIO.
Cases 29–CA–11302, 29–CA–10641, 29–CA–
10763–1, 29–CA–10763–2, 29–CA–10795–1, 29–
CA–10795–2, and 29–CA–12653
November 22, 1993
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On February 18, 1993, Administrative Law Judge
James F. Morton issued the attached supplemental de-
cision. The Respondent filed exceptions and a support-
ing brief and the General Counsel filed a brief in sup-
port of the judge’s decision.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions
and briefs and has decided to affirm the judge’s rul-
ings, findings, and conclusions as modified and to
adopt the recommended Order as modified.
1. The Respondent has excepted to, among other
things, the backpay award to Joseph Leone. The Re-
spondent contends that Leone was not justified in quit-
ting his job at Treadways Express and any backpay
should end in August 1986.
Leone had worked at Sinkoff Beverage from late
1983 through late 1985. In late 1985 he began working
as a truckdriver on a casual basis for Treadways Ex-
press. In the winter when work slowed down at
Treadways, Leone took a job as a temporary employee
with Career Temporary Force. He did temporary work
for several months and then went back to Treadways,
where he continued to do casual, fill-in driving. In the
spring and summer of 1986 Treadways had enough
work to keep Leone busy full time. In August 1986
Leone moved to Florida ‘‘to make a better life’’ for
his family.1
As noted by the judge, a discriminatee who, without
good cause, quits a comparable job with an interim
employer has thereby incurred a willful loss of earn-
ings, warranting a reduction in backpay. Shell Oil Co.,
218 NLRB 87 (1975). A discriminatee, however, is
under no obligation to retain nonequivalent employ-
ment. Newport News Shipbuilding Co., 278 NLRB
1030 (1986). During those periods when Treadways
needed Leone’s services, he worked many hours and
had earnings comparable to those he had had at the
Respondent. When work at Treadways was slow, as it
often was however, Leone was forced to seek tem-
porary employment. We are not persuaded that the cas-
ual, sporadic Treadways Express job was comparable
to Leone’s full-time position with the Respondent. As
we have determined that Leone’s job with Treadways
was not equivalent to his job at Glover, we conclude
that when he left the Treadways job to seek employ-
ment and better opportunities in Florida, he did not
incur a willful loss of interim earnings. Florida Steel
Corp., 234 NLRB 1089 (1978).2 We note, in addition,
that Leone secured employment within 2 weeks of his
arrival in Florida and has now been with that same
employer for the past 6 years.
2. Former striker Robert Cabral left his job at Crest-
wood Metals in late 1987 to begin work as a cross-
country truckdriver for Big Bee Transportation. Before
Cabral began his new job, he took a 1-month vacation.
The judge concluded that Cabral’s vacation at Crest-
wood Metals was roughly equivalent to the vacation he
would have earned at the Respondent, in the absence
of the Respondent’s discrimination. Our analysis of the
record reveals, however, that the judge was in error in
computing Cabral’s vacation time at the Respondent.
Thus, in February 1983 when Cabral went on strike,
he would only have been entitled to 3 weeks’ vacation.
As a result, we find that his backpay should be re-
duced by 1 week in the third quarter of 1987.3
ORDER
The Respondent, Glover Bottled Gas Corp.,
Patchogue, New York; Vogel’s, Inc., Farmingdale,
New York; New York Propane Corp., Farmingdale,
New York; Synergy Gas Corp., Deer Park, New York;
and Synergy Group, Inc., Farmingdale, New York, its
officers, agents, successors, and assigns, shall take the
action and pay the amounts set forth in the judge’s
Order.4
44 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The amounts sought in the backpay specification had been re-
vised during the course of the hearing. The last revision is set out
in G.C. Exh. 18.
2 The Respondent, at the hearing, stated that there is a question as
to how much overtime work would have been available for all strik-
ers had they been reinstated properly. It argued that the Respondent
‘‘was able to operate with just 11 people.’’ The appropriate formula,
as set out in the pleadings, is not based on the hours worked by the
replacements but on the hours the discriminatees worked prior to the
strike. If the Respondent was endeavoring to contest the appropriate-
ness of the formula, it has not proposed a different one. Further, as
noted in the underlying case, employees of companies affiliated with
the Respondent performed work for the Respondent during the back-
pay period. The Respondent argued then, as reflected at page 877,
that it ‘‘is impossible to determine’’ whether one of these employees
worked considerable overtime for it. There is no basis for me to dis-
regard the backpay formula as established in the pleadings, one that
has been long accepted as an appropriate measure for determining
gross backpay for discriminatees. See Honda of Mineola, 303 NLRB
676 (1991), and F & W Oldsmobile, 272 NLRB 1150 (1984).
3 The original backpay specification named two other former strik-
ers, Raymond Frey and Nickolas Kahn. As no backpay is due them,
their names have been deleted from the specification.
4 The Respondent argued that Bradley worked on a temporary
basis and that he was not a permanent replacement. At best, that
contention might pertain to a possibility that Wnenta’s backpay pe-
riod would have ended prior to the date on which the Respondent
ultimately did offer him reinstatement. Such speculation is no reason
to ignore the Board’s finding.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
JAMES F. MORTON, Administrative Law Judge. Backpay
totaling $132,701.921 plus interest on a quarterly basis is
sought from the Respondent to make whole 10 employees
who had been unlawfully denied reinstatement to their jobs
and also another employee who was later unlawfully dis-
charged, as found in the decision of the Board, reported at
292 NLRB 873 (1989). The Respondent contends that it is
liable for substantially less, based on various grounds, dis-
cussed below.
I heard this backpay matter in Brooklyn, New York, on 5
days, beginning on August 3, 1992, and ending on October
8, 1992. On the entire record, including my observations of
the demeanor of the witnesses, and after due consideration
of the briefs filed by the General Counsel and the Respond-
ent, I make the following
FINDINGS OF FACT
A. Background
Fifteen of the Respondent’s employees took part in an eco-
nomic strike which began on February 3, 1983. On April 15,
of that year, an unconditional offer to return to work was
made on their behalf to the Respondent. By then, the Re-
spondent had hired 11 replacements. There were thus open-
ings for four jobs. None of the strikers were recalled at that
time. The Board adopted the administrative law judge’s find-
ing that the Respondent had, as of April 15, 1983, unlawfully
failed to reinstate those 4 of the 15 striking employees who
had the most seniority. The Board also held that, as nine
other positions had become available after April 15 to permit
the Respondent to reinstate others, the Respondent’s failure
to offer reinstatement to these other strikers was unlawful.
Another employee, Ralph Kendrick, was found to have been
unlawfully discharged on July 10, 1984.
B. The Gross Backpay Formula for the Striking
Employees
The amended backpay specification states, in substance,
that an appropriate measure of the gross backpay for the
strikers and also for the other discriminatee, for whom back-
pay is sought on a quarterly basis in their respective backpay
periods, is the average weekly hours, regular and overtime,
they worked while on the Respondent’s payroll, multiplied
by their wage rates as of the start of the strike, together with
increases to the rates which were given to employees after
April 15, 1983.
The answer filed by the Respondent admits that the for-
mula is appropriate.2
C. The Backpay Periods for the Former Strikers
1. Their seniority status
Backpay is sought for 10 former strikers,3 named below
according to their seniority status with the Respondent:
Gary Estes Robset Zak
Harry Serres William Jones
Richard Dean Joseph Leone
David Wahlfield Thomas Clark
Stanley Wnenta Robert Cabral
2. The respective starting dates of the backpay periods
of these 10 employees
For the reason noted above, the first four of their former
strikers should have been reinstated on April 15, 1983. Their
backpay is to be calculated beginning on that date.
There is an issue as to when the remaining six should have
been reinstated. General Counsel contends that the next sen-
ior individual, Stanley Wnenta, should have been reinstated
in July 1983 when the Respondent, instead, engaged Robert
Bradley as a route driver, as noted in the underlying decision
at page 876. The Respondent contends that Bradley replaced
another unit employee who had not participated in the strike
and that Bradley was not a striker replacement. The Board,
however, has found to the contrary and that determination is
binding here. The Board adopted the finding that a position
had become available in August and September 1983 when
Bradley was assigned bargain unit work. Thus, Wnenta’s
backpay period began with the third quarter of 1983.4
As to the next senior former striker, Robert Zak, the Gen-
eral Counsel contends that his backpay period began on Au-
gust 20, 1983, when a replacement, Karlin, left the Respond-
ent’s employ. In the underlying decision, it was found that
a position became available then for the next senior former
striker. Accordingly, Zak’s backpay period began on August
20, 1983.
The next job opening occurred on September 20, 1983,
when a replacement, Krol, quit. That date starts the backpay
period for William Jones.
The backpay period of Joseph Leone begins on November
15, 1983, when a replacement, Pinto, quit.
45GLOVER BOTTLED GAS CORP.
The backpay period for Thomas Clark began on June 1,
1984, when another replacement quit.
The last of the 10 former strikers, Robert Cabral, should
have been hired on July 23, 1984, instead of a replacement,
Higgin, who began working there for the Respondent.
Cabral’s backpay begins to run as of July 23, 1984.
3. The ending dates
The Respondent sent a letter on December 14, 1983, to
each of the strikers and enclosed with it a questionnaire as
described at page 876 of the report of the underlying deci-
sion. The Respondent has urged that I find that those letters
constituted valid reinstatement offers which terminated the
backpay period for all strikers. That contention was consid-
ered and rejected by the Board in its adoption of Judge
McLeod’s decison, as reported on page 877. It is thus with-
out merit. A joint exhibit in evidence sets out the following
respective dates on which the former strikers named above
either were reinstated or were given valid offers of reinstate-
ment. These dates terminate the respective backpay periods:
Estes—August 1, 1983
Serres—October 1, 1983
Dean—September 1, 1983
Wahlfield—March 1, 1991
Wnenta—March 1, 1991
Zak—April 23, 1984
Jones—March 4, 1991
Leone—March 4, 1991
Clark—January 25, 1988
Cabral—March 4, 1991
D. The Strike Benefits
The Respondent contends that the backpay awards sought
for the former strikers should be reduced by the approxi-
mately $50 a week they each received as strike benefits from
the Union.
In Marlene Industries Corp., 234 NLRB 285 (1978), the
Board allowed, as an offset to backpay, a union’s payment
of moneys to a discriminatee whom it had hired to picket the
employer in that case during an organizational drive. In
Tubari Ltd., 303 NLRB 529 (1991), the Board noted that
payments by the union there of $175 a week to each of the
discriminatees for picketing from 7:30 a.m. to 3:30 p.m.
daily constituted significant compensation for picketing du-
ties and thereby were interim earning deductible from gross
backpay. See also Superior Warehouse Grocers, 282 NLRB
802 (1987). There the Board distinguished cases that held
that strike benefits are not in the nature of pay for interim
employment and do not constitute interim earnings. In NLRB
v. Rice Lake Creamery Co., 365 F.2d 888, 893 (1966), the
court affirmed the Board’s finding that strike benefits paid to
discriminatees based on their performing some picketing
were ‘‘collateral’’ to the association the discriminatees there
had with their union and thus were not deductible like wages
or earnings resulting from interim employment. In My Store,
Inc., 181 NLRB 321, 329–330 (1970), strike benefits made
pursuant to loans given discriminatees were held not to be
interim earnings; other payments made by the union there to
the discriminatees were held to be interim earnings as the
union filed Federal wage information forms thereon and fur-
nished the payees with related income tax forms. In Standard
Printing Co. of Canton, 151 NLRB 965, 966 (1965), the
Board held that there must be a showing that strike benefits
were given only on condition that the discriminatees picket,
in order for the benefits to be treated as interim earnings and
that a mere requirement that a discriminatee must sign a
strike roll each day, to demonstrate that he is not employed
elsewhere to be eligible for benefits, will not convert those
benefits into interim earnings. The burden is on the Respond-
ent to prove that the amounts received by the former strikers
from the Union were in the nature of pay for interim em-
ployment and not strike benefits. See Sioux Falls Stock Yards
Co., 236 NLRB 543, 549 (1978), and cases cited therein.
These cases looked at the arrangements the unions had
made with the striking employees to determine whether or
not they effectively spelled out an employment relationship.
Thus, if a striker was required to picket and is compensated
for the hours he picketed, an employment relationship will
be found. Similarly if a union in effect has ‘‘hired’’ a
discriminatee to picket, an employment relationship will be
found. In both instances, strike benefits paid to those
discriminatees are viewed as interim earnings. If however,
the evidence establishes that strike benefits to pickets are
‘‘collateral’’ to their union membership or to their activities
as a union supporter or where the totality of the cir-
cumstances do not otherwise warrant a finding of an em-
ployer-employee relationship between a discriminatee and his
union, strike benefits are not viewed as interim earnings.
In the case before me, some of the former strikers testified
in conclusory form that they were paid for picketing or that
they had to picket to receive strike benefits. It does not ap-
pear that they were ever told by the Union what the require-
ments were for them to be eligible for strike benefits. The
evidence indicates that each week a list of the employees
who went on strike was handed in at the Union’s office and
the benefits clearly were then given to one of the strikers or
to a union business agent for distribution to the strikers. The
benefits ultimately came from the Union’s International
which advised the Union that any arrearages in union dues
by a discriminatee must be deducted from his benefits, that
a member must be in good standing to receive benefits and
that a member who receives 3 days of work in a week shall
not be eligible for ‘‘out-of-work benefits for that week.’’ A
business agent of the union testified that he believed a striker
had only to be ‘‘available’’ for picketing duty to qualify for
strike benefits.
I find that the Respondent has not met its burden of prov-
ing that a relationship, akin to one of employment, existed
vis-a-vis the strikers and the Union. Rather, it appears that
the strike benefits were payments which were collateral to
the protected activities of the strikers. Accordingly, I reject
the Respondent’s contention that these benefits are offsets to
gross backpay.
E. The Respective Backpay Claims for the 10
Former Strikers
The Respondent asserts that the awards sought for four of
the former strikers (Estes, Serres, Dean, and Wahlfeld)
should be materially reduced based on its contention that
they did not mitigate its damages in that they failed to seek
employment during their respective backpay periods. The Re-
spondent also asserts that two of the others (Leone and
46 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 The Respondent contended that the awards sought for the other
four (Wnenta, Zak, Jones, and Clark) should be reduced based on
its arguments as to strike benefits and as to the starting dates of their
backpay periods. Those arguments have been found, above, to be
without merit. Accordingly, I find that the awards sought for those
four should be confirmed.
6 The Respondent placed in evidence copies of newspaper job ad-
vertisements. It urges that Estes could have been successful in find-
ing work as a truckdriver. Other witnesses have testified that the job
market in Long Island was badly depressed. To use the language of
Judge Harmatz, in a decision adopted by the Board in an analogous
case, the generalized evidence offered by the Respondent is too
speculative and imprecise to warrent a reduction in Estes’ backpay
claim. See Delta Data Systems Corp., 293 NLRB 736, 737–738
(1989).
Cabral) should lose backpay as they had quit jobs they held
during their backpay periods and also as they had found sub-
stantially equivalent employment. These contentions as to
these six named former strikers are discussed next.5
1. Gary Estes
Estes had worked for the Respondent for 18 years when
the strike began in February 1983. He was an installer of
propane tanks and a service technician. As the most senior
of the strikers, he should have been reinstated on April 15,
1983. He was not reinstated until September 1, 1983. He tes-
tified that, in that 4-1/2 month interval, he sought work
‘‘through the unemployment.’’ I construe that to mean that
he has registered for work referrals at an office of the New
York State Department of Labor. He also had filed job appli-
cations with companies which delivered propane gas, sought
referrals from the Union’s hiring hall and searched through
newspaper advertisements for jobs in his field.6
The case law is clear that the Respondent must prove that
a discriminatee willfully failed to seek interim employment.
See Associated Grocers, 295 NLRB 806, 810 (1989). As
noted there, a discriminatee is not held to the highest degree
of diligence in seeking interim employment; a discriminatee
had but to make reasonable efforts in that regard.
Based on the evidence before me, I find that the Respond-
ent has not met its burden as to Estes. I therefore further find
that Estes is entitled to the amount sought for him in the
specification, as amended.
2. Harry Serres
Serres began working for the Respondent in 1969 also as
an installer. As the second most senior striker, he too should
have been recalled on April 15, 1983, the start of his back-
pay period. He returned to work when recalled on October
1, 1983. In his 5-1/2-month backpay period, he sought work
with propane gas companies on Long Island, at the Union’s
hiring hall and via the unemployment office. He also
checked newspaper ads for jobs. For the same reasons noted
above as to Estes’ claim, I find that the Respondent has not
shown a willful failure on Serres’ part to seek interim em-
ployment. Thus, he is entitled to the award sought for him.
3. Richard Dean
Dean was a bulk truckdriver when he went on strike. His
backpay period started on April 15, 1983, and ended on Sep-
tember 1, 1983, when he returned to work for the Respond-
ent. In that interval, he sought work through the employment
office, at the Union’s hiring hall and by searching for adver-
tisements in Long Island newspapers. As with Estes’ and
Serres’ claim, I find that the Respondent has not shown a
willful loss of interim earning by Dean and there conclude
that he is entitled to the award sought for him in the backpay
specification, as amended.
4. David Wahlfield
Wahlfeld was an installer and serviceman for the Respond-
ent. His backpay period began on April 15, 1983. In the third
quarter of 1983, he obtained employment with his present
employer. No backpay is sought for him after that quarter as
his earnings thereafter have exceeded any earnings he would
have received from the Respondent. As with Estes, Serres,
and Dean, he had sought employment in mid-1983 by check-
ing newspaper advertisements, by registering at the Union’s
hiring hall, and with the unemployment office. He testified
that he also talked with various persons looking for leads. As
noted above, his search proved successful during the third
quarter of 1983.
The Respondent has not proved that Wahlfeld willfully
failed to seek interim employment. He is entitled to the
award sought for him as backpay.
5. Joseph Leone
Leone had worked for the Respondent as a delivery driver.
As found above, his backpay period began on September 17,
1983. The amended backpay specification acknowledges that
his backpay period ended on March 4, 1991, when the Re-
spondent offered him reinstatement. In that almost 8-year in-
terval, Leone has worked for long periods with two employ-
ers one of which is his present employer. No backpay is
sought for him in the last 4 of those years as his interim
earnings exceeded his gross backpay.
The Respondent quoting excerpts from Laidlaw Corp., 171
NLRB 1366, 1368 (1968), contends that Leone had secured
other regular and substantially equivalent employment during
his backpay period and that therefore, his rights to backpay
expired. In Little Rock Airmotive, 182 NLRB 666 (1970),
however, the Board held that Laidlaw did not intend that a
striker’s status be determined by a mechanistic application of
the literal language of the statute. See Christie Electric
Corp., 284 NLRB 740, 759 (1987), and cases cited therein
holding that an employee, who took a job tendered as ‘‘per-
manent’’ and which paid moore than his job with the struck
employer, did not thereby abandon the struck job.
The Respondent has the burden of demonstrating that
Leone had abandoned his employment with it as of the time
when a job opening for him became available.
The guidelines set out in these cases relate to the evidence
before me as to the jobs Leone held during his backpay pe-
riod. Shortly after it began, he got a job delivering beer for
Sinkoff Beverage Co. He was paid per load. In December
1983, as noted above, the Respondent had written all the
strikers inquiring as to their availability should the Respond-
ent seek to offer them reinstatement. By then, the Respond-
ent was already 3 months late in offering to reinstate Leone.
It argued that its inquiries in December 1983 constituted
valid offers of reinstatement to the strikers; that argument
was rejected by the Board. The Respondent now cites
Leone’s response to the inquiry it sent him as evidence that
47GLOVER BOTTLED GAS CORP.
7 The Respondent also had stated that Kendrick failed to seek in-
terim employment but it did not pursue that contention further. In
any event, the evidence is insufficient to find that, in the quarters
during which Hendrich was unemployed, he willfully failed to seek
work.
8 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
Continued
Leone had abandoned his job with it. Leone had responded
that he was not interested then in returning to work for the
Respondent because he had a job and as the job was paying
about the same as he had earned in the Respondent’s em-
ploy. It is now well settled that, absent an offer of reinstate-
ment, testimony as to subjective intention does not establish
a conscious or knowing waiver of the protected right to rein-
statement. In that regard, see Big Three Industrial Gas Co.,
263 NLRB 1189, 1263 fn. 50 (1982). I find no merit in the
Respondent’s contention that Leone by working for Sinkoff
Beverages, had abandoned his right to reinstatement by the
Respondent.
The Respondent separately argues that Leone, by later
quitting his job with Sinkoff and, also by having quit a job
he held for a week in the third quarter of 1983, forfeited
backpay. He worked for about a week with Gould Inc. as a
driver in the third quarter and left because Gould had re-
quired him to drive for consecutive hours exceeding DOT
safety regulations. He left Sinkoff in 1986 when business got
very slow. He moved to Florida then and got steady work
in 2 weeks. His earnings after a year on the job, which he
has held to the present, exceeded his gross backpay. No
backpay after 1987 is sought for him.
A discriminatee who, without good cause, quits a com-
parable job with an interim employer has thereby incurred a
wilful loss of earnings, warranting a reduction in backpay.
Shell Oil Co., 218 NLRB 87 (1975). See also Rainbow
Coaches, 280 NLRB 166, 191 (1986). The evidence before
me, however, fails to support the Respondent’s claim that
Leone, in leaving Gould or Sinkoff, willfully failed to miti-
gate its damages. It is not unlikely that, had Leone stayed
with Sinkoff when its business got slow, his interim earnings
would have fallen, possibly resulting in an extended liability
for the Respondent. I therefore find no merit in this conten-
tion by the Respondent and find, further, that Leone is enti-
tled to the award backpay sought for him.
6. Robert Cabral
The Respondent contends that, during his backpay period,
Cabral had employment substantially equivalent to the job he
had held with it prior to the strike and that he is therefore
not entitled to any backpay. It also asserts that Cabral, in
quitting a job during the backpay period, thereby forfeited
backpay.
Cabral had worked for the Respondent as a driver, deliver-
ing propane gas. His backpay period began on September 1,
1989, and ended 8 years later, in 1991. Backpay for him is
sought for only two quarters, the last two in 1987. In all the
other calendar quarters, his interim earnings exceeded his
gross backpay.
Cabral got a job, before his backpay period began, with
Crestwood Metals Corp as a driver and yard laborer. On the
basis and as he was earning more from Crestwood. The Re-
spondent asserts he was therefore employed by Crestwood in
substantially the same job that he had with it prior to the
strike. Apparently, I am asked to disregard that aspect of his
work with Crestwood as a yard laborer and also to assume
that all the other terms and conditions of his employment
with Crestwood parallel those he had when working for the
Respondent. The Respondent carries the burden of proof. I
find it has failed in that regard as the evidence is entirely
inadequate to sustain its first contention. Further, for the rea-
sons noted above in discussing Leone’s claim, I find that the
Respondent failed to prove that Cabral had abandoned his
job with the Respondent.
As to the record, the evidence is that Cabral left Crest-
wood in late 1987 to work as a cross-country driver for Big
Bee Transportation Co. Before starting his new job, he took
a month’s vacation which, as General Counsel has stated,
was roughly comparable to the vacation he would have
earned, absent the discrimination. His earnings for the last
two quarters of 1987 were less than his gross backpay.
Thereafter, he received interim earnings higher than his gross
backpay. Thus, no backpay for him is sought after 1987.
As noted above, a discriminatee, in quitting equivalent in-
terim employment without good cause, thereby will suffer a
reduction in backpay. A discriminatee, however, is under no
obligation to retain nonequivalent employment. Newport
News Shipbuilding Co., 278 NLRB 1030, 1033 (1986).
The Respondent has not shown that Cabral’s employment
with Crestwood was substantially the same as the job he held
with it. It cannot now urge that Cabral must, nontheless,
have stayed with Crestwood until it, the Respondent, offered
to reinstate him—an offer it had unlawfully withheld for 6
years. In these circumstances, Cabral’s leaving Crestwood in
search of a more desirable job does not constitute a willful
loss of interim earnings. Florida Steel Corp., 234 NLRB
1089 (1978). That Cabral in fact had, during his backpay pe-
riod, exhibited considerable success in obtaining work which
materially offset his gross backpay claim forcefully negates
any contention that he had willfully failed to mitigate the Re-
spondent’s damages.
The award sought for Cabral should be confirmed.
F. Ralph Kendrick’s Claim
Kendrick had been unlawfully discharged on July 10,
1984. His backpay period ended on March 4, 1991. The for-
mula used to calculate his gross backpay is the same as that
used for the former strikers.
The Respondent contends7 that any award to Kendrick
would be a windfall as his total interim earnings greatly ex-
ceeded his total gross backpay. It does not dispute that in 4
of the 27 calendar quarters of his backpay period, he had no
earnings to offset the gross backpay due him for each of
those quarters. The Respondent’s argument addresses the pol-
icy set forth by the Board is F. W. Woolworth Co., 90
NLRB 289 (1950), and, in effect, seeks modification of the
Board’s remedial Order in the instant case, which provided
for use of the Woolworth formula. I am required to follow
that order and thus must reject this contention of the Re-
spondent. Thus, I find that Kendrick is entitled to the award
sought for him.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended8
48 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
adopted by the Booard and all objections to them shall be deemed
waived for all purposes.
ORDER
The Respondent, Glover Bottled Gas Corp., Vogel’s Inc.,
New York Propane Corp., Synergy Gas Inc., and Synergy
Group, Inc., its officers, agents, successors, and assigns, shall
pay to the discriminatees whose names appear on Appendix,
amended, the quarterly amounts listed for each with interest
thereon as provided for in the prior Order of the Board.
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APPENDIX
Yr./Qtr. Estes Serres Dean Wahlfeld Wnenta Zak Jones Leone Clark Cabral Kendrick
1983/2d $3,553.95 $3,736.81 $3,956.07
1983/3d *2,331.89 4,445.51 *3,916.32 $4,693.15 $2,521.38 $1,062.30
1983/4th 3,610.88 1.986.96 2,993.88 $1,718.50 $653.80
1984/1st 1,081.45 2,144.27
1984/2d 280.51 2,157.52 $1,177.20
1984/3d 2,187.27 3,858.60
1984/4th 2,723.56 2,369.16
1985/1st 2,856.32 706.43
1985/2d 2,949.07 26.77 782.73
1985/3d 3,360.93 919.88 1,159.87
1985/4th 3,642.91 2,862.54 1,430.19
1986/1st 3,550.42 1,339.28 906.69 $1,698.12
1986/2d 3,582.22 2,735.52 932.85
1986/3d 3,581.04 3,635.46 1,133.41
1986/4th 1,913.92 1,133.41
1987/1st 1,299.69 1,275.59 532.16
1987/2d 1,299.69 1,319.20
1987/3d 1,299.69 1,319.20 $847.43
1987/4th 1,967.37 2,039.04 1,675.20
1988/1st 2,661.14
1988/2d
1988/3d
1988/4th
1989/1st
1989/2d
1989/3d
1989/4th
1990/1st 8,986.96
1990/2d
1990/3d
1990/4th
1991/1st
Total $6,085.84 $8,182.32 $7,872.39 $8,304.03 $4,508.34 $5,418.18 $34,454.03 $19,950.61 $21,543.57 $2,522.63 $13,878.38
* Includes vacation pay.