Hansen Bros. Enterprises

National Labor Relations Board - Board Decisions

Nov 26, 1993

313 N.L.R.B. 599 (N.L.R.B. 1993)

599
313 NLRB No. 76
HANSEN BROS. ENTERPRISES
1 On November 1, 1987, the Teamsters International Union was re-
admitted to the AFL–CIO. Accordingly, the caption has been amend-
ed to reflect that change.
2 279 NLRB 741.
3 Hansen Brothers Enterprises v. NLRB, Case No. 86–1277 (un-
published).
4 The original backpay specification issued on July 29, 1988, and
was amended on August 2, 1988, and again on April 21, 1989.
5 In its answer, the Respondent argued that the parties had reached
a bargaining impasse on the issue of payments to the Health and
Welfare Fund as of November 1, 1983, and therefore that its obliga-
tions to the Fund ceased. The judge would not permit evidence to
be introduced concerning the alleged impasse on the ground that im-
passe would be irrelevant to the issue here. The Respondent excepts.
We need not reach the merits of the legal argument, however, be-
cause the Respondent did not make an offer of proof at the hearing
on the bargaining impasse issue, did not contend at the hearing and
does not now contend that it made a final contract offer concerning
elimination of payments to the Fund, and, in its exceptions, states
only generally that the parties had reached a bargaining impasse and
not specifically an impasse over the Health and Welfare Fund.
6 Two types of out-of-pocket medical expenses were claimed:
those that would have been covered by the Health and Welfare Trust
Fund occurring between the onset of the claimants’ backpay period
and the Respondent’s lawful withdrawal of recognition of the Union
and those occurring thereafter that would have been reimbursed by
the health plan the Respondent had provided to its replacement
workers.
7 G. Zaffino & Sons, 289 NLRB 571, 573 (1988).
Hansen Brothers Enterprises and Chauffeurs,
Teamsters and Helpers Local Union No. 150,
International Brotherhood of Teamsters, AFL–
CIO.1 Case 20–CA–18393
November 26, 1993
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND RAUDABAUGH
On April 30, 1986, the National Labor Relations
Board issued a Decision and Order in this proceeding,2
directing Hansen Brothers Enterprises, the Respondent,
inter alia, to make whole employees for their losses re-
sulting from its unfair labor practices. The United
States Court of Appeals for the District of Columbia
Circuit enforced the Board’s Order in its entirety on
March 12, 1987.3 A controversy having arisen over the
amount of backpay due under the terms of the Board’s
Order, as enforced by the court of appeals, the Re-
gional Director for Region 20 issued an amended back-
pay specification and notice of hearing on June 28,
1991.4 The Respondent filed an answer. A hearing was
held on October 8, 9, and 10, 1991, before Administra-
tive Law Judge Richard J. Boyce.
On December 17, 1992, the administrative law judge
issued the attached Supplemental Decision and Order.
The Respondent filed exceptions and a supporting
brief, the General Counsel filed cross-exceptions and a
supporting brief, and the Respondent filed an answer-
ing brief in response to the General Counsel’s cross-
exceptions.
The Board has considered the record and the at-
tached supplemental decision in light of the exceptions
and briefs and, for the reasons set forth below, has de-
cided to affirm the judge’s rulings, findings, and con-
clusions, as modified below.5
In the underlying decision, the Board found that on
September 7, 1983, the Union had conveyed to the Re-
spondent a valid offer to return to work on behalf of
strikers it represented and that the Respondent had vio-
lated Section 8(a)(3) and (1) of the Act by failing and
refusing to reinstate the strikers. The Board ordered the
Respondent to make whole the strikers for wages and
benefits lost due to this failure to reinstate.
We agree with the judge’s conclusions except those
regarding medical expenses and expenses deductible
from interim earnings.
A. Medical Expenses
The judge disallowed all medical expense claims,
holding that the General Counsel had failed to offer
any reliable evidence in support of the claimed out-of-
pocket medical expenses set forth in the amended
backpay specification.6 The General Counsel excepts
to this finding. We find merit in the exception al-
though, for the reasons set forth below, we do not
award the amounts in the specification and leave it to
compliance to reconcile differences between those
amounts and the amounts listed in the claimants’ back-
pay forms.
The General Counsel introduced into evidence back-
pay data forms filled out by the claimants. Among
other things, the forms asked the claimants to ‘‘[l]ist
any medical expenses or health insurance expenses
[they] would not have had if [they] were still working
for [their] former employer.’’ One claimant’s packet
also contained a document entitled ‘‘Hansen Brothers
Medical Expenses Questionnaire.’’ The General Coun-
sel did not question the claimants at the hearing about
their entries.
The judge found that the backpay forms were unreli-
able because of certain inconsistencies between the
amounts on some of the forms and the amounts in the
specification. He additionally noted that many of the
forms were not signed. The judge also found that there
was no probative evidence of the coverage that was
available under the Respondent’s later medical plans.
It is customary to include out-of-pocket medical ex-
penses in make-whole remedies for fringe benefits lost
where a respondent has not introduced evidence that
would negate or mitigate its liability.7 No such evi-
dence was introduced in this case and the reasons prof-
fered by the judge are insufficient to deny medical ex-
600 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 We note that the judge was incorrect in stating that the compli-
ance officer was provided with a copy of the Respondent’s health
plan. The compliance officer testified without contradiction that she
was provided with a copy of the health plan that the Respondent put
into effect for a portion of the time in question, but not a copy of
the plan in effect for the entire backpay period.
9 Honda of Mineola, 303 NLRB 676 fn. 3 (1991).
10 Mastro Plastics Corp., 354 F.2d 170, 178 (2d Cir. 1965), cert.
denied 384 U.S. 972 (1966).
11 NLRB v. Brown & Root, Inc., 311 F.2d 447, 458 (8th Cir.
1963).
12 Colonie Hill Ltd., 256 NLRB 1076, 1079 (1981).
13 The backpay amounts are subject to reconciliation of the
claimed medical expenses as set forth infra.
penses.8 Thus, that many of the claim forms were un-
signed does not serve to make the claimants’ figures
unreliable in the circumstances. We note that the Gen-
eral Counsel was prepared to introduce the forms
through each claimant. The Respondent could have ob-
jected to the claim forms’ introduction, but instead
chose generally to waive any objection as to founda-
tion for all succeeding claimants after the first set of
forms was introduced through the claimant who had
filled them out.
The relatively small discrepancies between the
amounts listed on some of the claimants’ backpay
forms and the amounts in the specification is hardly
sufficient reason to deny awards of medical expenses
entirely. Plainly, some of the claimants were entitled to
some medical expenses, although on this record the
exact amounts are uncertain in some instances. We
shall therefore leave to compliance the reconciliation
of these discrepancies.9
B. Expenses Deductible from Interim Earnings
The specification alleged that 12 claimants incurred
certain expenses while seeking or retaining interim em-
ployment. The Respondent’s answer alleged lack of
knowledge to admit or deny the allegation, but stated
that the amounts alleged ‘‘represent[ed] the maximum
amounts of deductible expenses.’’ The appendices in-
corporated in the Respondent’s answer contained fig-
ures that were designated as ‘‘Maximum Deductible
Expenses’’ for the 12 claimants. Each entry was ac-
companied by a footnote stating, inter alia, that the Re-
spondent reserved its right to present evidence showing
that the actual amount of deductible expenses was less
than that set forth in either the specification or in its
answer.
The General Counsel introduced a packet of material
for each claimant with the claimant’s listing of ex-
penses sustained while searching for interim employ-
ment or while working for interim employers. The
judge, while not finding any specific deficiencies with
respect to the amounts set forth in the specification,
concluded that the evidence proffered had no probative
value and instead determined that the amounts set forth
in the Respondent’s answer were the proper amounts
to deduct from the claimants’ interim earnings.
The General Counsel excepts. We find merit in the
General Counsel’s exception. The General Counsel’s
burden in backpay cases is simply to show the gross
backpay due each claimant.10 The burden then shifts to
the respondent to establish facts that negate or mitigate
its liability.11 We find that the General Counsel has
met her burden of establishing the claimants’ expenses
deductible from interim earnings by listing these ex-
penses in the backpay specification, as supported by
the introduction of the claimants’ backpay forms. The
burden then shifted to the Respondent to rebut the
General Counsel’s submission. Thus, the Respondent
had the burden of showing why any modifications
should be made to the amounts set forth in the back-
pay specification. The Respondent made no such
showing.12 Therefore, contrary to the judge, we will
allow the amounts of expenses deductible from interim
earnings as set forth in the amended backpay specifica-
tion.
ORDER
The National Labor Relations Board orders that the
Respondent, Hansen Brothers Enterprises, Grass Val-
ley, California, its officers, agents, successors, and as-
signs, shall make whole the following claimants by
paying each the amount opposite his name, plus inter-
est:
13Net Backpay
Ronald J. Baker $38,231
William A. Browning 18,321
Richard L. Desmond Estate 5,531
Gerald J. Gomes 15,982
George L. Horner 47,544
William J. Locatelli 56,695
Larry McConnell 28,229
Thomas W. Osborne Jr. 28,714
Thomas Resetar 37,870
Keith E. Sonke 18,099
Edward J. Tellam 54,121
Gerald L. Tennell 19,321
David M. Vaars 53,513
Hubert W. Woodruff 26,246
The Respondent shall make whole Thomas Brown-
ing by paying him $60,615, together with any addi-
tional amounts attributable to the third quarter of 1984,
plus interest, plus medical expenses. The General
Counsel shall recompute Thomas Browning’s entitle-
ment for the third quarter of 1984, resolving the ambi-
guities concerning gross backpay and interim earnings,
and factoring in deductible expenses of $2954. Regard-
ing the claimants’ medical expenses, the compliance
officer shall also reconcile the differences in the
601HANSEN BROS. ENTERPRISES
14 Interest and late payment penalties owing the Pension and
Health and Welfare Trusts shall be computed in accordance with
Merryweather Optical Co., 240 NLRB 1213 (1979).
1 The original compliance specification herein issued on July 29,
1988, and was amended on August 2, 1988, and April 21, 1989. The
present specification, styled amended compliance specification, su-
perseded the original specification in toto. 2 The specification also calls for interest wherever money is owing.
amounts set forth in the claimants’ backpay forms that
were introduced into evidence and the amounts set
forth in the backpay specification.
On behalf of the respective claimants, the Respond-
ent shall pay $30,316.44, plus interest and late pay-
ment penalties, to the Western Conference of Team-
sters Pension Trust, and $32,687.40, plus interest and
late payment penalties, to the Construction Teamsters
Health and Welfare Trust Fund for Northern Califor-
nia.14
CHAIRMAN STEPHENS, dissenting in part.
I would adopt the decision and recommended Order
of the judge in full; and I therefore dissent from the
reversal of his disposition of the claims for medical ex-
penses and expenses incurred in seeking and holding
interim employment.
Lucile L. Rosen, Esq., for the General Counsel.
Robert L. Rediger, Esq. (Thierman, Cook, Brown & Prager),
of Sacramento, California, for the Respondent.
Michael Tobin, Business Representative, of Sacramento,
California, for the Charging Party.
SUPPLEMENTAL DECISION
RICHARD J. BOYCE, Administrative Law Judge. I heard
this compliance matter in Sacramento, California, on October
7, 8, 9, and 10, 1991.
I. PROCEDURAL HISTORY
By decision and order dated April 30, 1986, reported at
279 NLRB 741, the National Labor Relations Board (Board)
directed Hansen Brothers Enterprises (Respondent) to:
Offer to economic strikers on whose behalf the
Union offered to return to work immediate and full re-
instatement to their former jobs or, if those jobs no
longer exist, to substantially equivalent positions, with-
out prejudice to their seniority or other rights or privi-
leges previously enjoyed, and make them whole for any
loss of earnings and other benefits suffered as a result
of the discrimination against them . . . .
The Board’s Order was enforced by an unreported order
dated March 12, 1987, from the United States Court of Ap-
peals, District of Columbia Circuit.
The compliance specification as now constituted issued on
June 28, 1991, was amended during the hearing, and lists 15
claimants.1 The claimants and their alleged entitlements are:
Ronald Baker, $46,463 in backpay, plus $200 in reimburs-
able medical expenses; Thomas Browning, $63,730 in back-
pay, plus $1251 in reimbursable medical expenses; William
Browning, $21,526 in backpay, plus $530 in reimbursable
medical expenses; the estate of Richard Desmond, $5,531 in
backpay; Gerald Gomes, $19,253 in backpay, plus $1037 in
reimbursable medical expenses; George Horner, $61,901 in
backpay, plus $1801 in reimbursable medical expenses; Wil-
liam Locatelli, $61,726 in backpay, plus $6332 in reimburs-
able medical expenses; Larry McConnell, $28,229 in back-
pay, plus $1575 in reimbursable medical expenses; Thomas
Osborne, $26,250 in backpay, plus $150 in reimbursable
medical expenses; Thomas Resetar, $40,778 in backpay, plus
$1899 in reimbursable medical expenses; Keith Sonke,
$19,665 in backpay; Edward Tellam, $73,228 in backpay,
plus $5300 in reimbursable medical expenses; Gerald
Tennell, $23,507 in backpay, plus $770 in reimbursable med-
ical expenses; David Vaars, $53,513 in backpay; and Hubert
Woodruff, $27,441 in backpay.
The specification also alleges that Respondent owes the
Western Conference of Teamsters Pension Trust (Pension
Trust) $30,316.44 and the Construction Teamsters Health and
Welfare Trust Fund for Northern California (Health and Wel-
fare Trust) $32,687.40 on behalf of the respective claimants.2
II. OVERVIEW
The latest bargaining agreement between Respondent and
the Union expired on July 1, 1983. The strike began on Au-
gust 18, and Respondent hired temporary replacements. On
September 7, as the Board found in the decision below, the
Union conveyed to Respondent a valid offer to return on be-
half of all the strikers. The Board concluded that Respondent
violated Section 8(a)(3) and (1) of the Act by failing and re-
fusing to reinstate the strikers on receiving that offer.
Respondent adhered to the terms of the expired agreement
until the strike. It hired the replacements at wage rates below
those specified in the agreement, and ceased contributing to
the Pension and Health and Welfare Trusts on behalf of its
employees effective November 1, 1983.
On September 24, 1984, Respondent withdrew recognition
from the Union. The General Counsel does not challenge the
withdrawal’s validity.
By letters sent and received on about November 3, 1987,
Respondent offered the 14 surviving claimants recall to their
former positions, giving them a 1-week acceptance deadline.
Respondent extended the deadline to November 16 by subse-
quent correspondence, and the Union advised Respondent on
November 13 that 11 named claimants were ‘‘ready, willing
and able to return to work.’’ The advisory added that the
Union had been unable to ‘‘contact’’ George Horner or
Thomas Resetar ‘‘on such short notice.’’ It did not mention
Keith Sonke.
By letter dated November 24, 1987, the Union’s attorney
asked Respondent’s attorney ‘‘when employment will be
available to those individuals requesting it.’’ Apart from a
letter by which Respondent directed Locatelli to report on
December 11, the record is silent whether or how Respond-
ent answered.
None of the claimants rejoined the payroll.
III. CONTROLLING LEGAL PRINCIPLES
Among the legal principles applicable to compliance pro-
ceedings are these:
602 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 136 NLRB 1342 at 1346 (1962).
4 Alaska Chapter, AGC, 119 NLRB 663, 667 fn. 8 (1957).
5 Trinity Valley Iron & Steel Co. v. NLRB, 410 F.2d 1161, 1177
fn. 28 (5th Cir. 1969).
6 NLRB v. Overseas Motors, 818 F.2d 517, 520 (6th Cir. 1987),
quoting from Bagel Bakers Council v. NLRB, 555 F.2d 304, 305 (2d
Cir. 1977).
7 United Aircraft Corp., 204 NLRB 1068, 1068 (1973).
8 136 NLRB at 1346.
9 Best Glass Co., 280 NLRB 1365, 1367 (1986); Sumco Mfg. Co.,
267 NLRB 253, 254 (1983).
10 Alone or in combination with others who succeeded to their po-
sitions.
First, quoting from Mastro Plastics Corp.:3
[T]he general burden of proof is upon the General
Counsel to establish the damage which has resulted
from Respondent’s established [misconduct], i.e., the
gross backpay over the backpay period . . . .
Second, the General Counsel ‘‘has wide discretion in se-
lecting criteria for reconstructing what would have happened
. . . but for the discrimination,’’4 and ‘‘is only required to
employ a formula reasonably designed to produce the ap-
proximate awards due.’’5 Although ‘‘several equally valid
methods of computation’’ may be available, ‘‘each yielding
a somewhat different result,’’ the choice of ‘‘one method
rather than another hardly makes out a case of abuse of dis-
cretion.’’6 Moreover, ‘‘the backpay claimant should receive
the benefit of any doubt rather than . . . the wrongdoer re-
sponsible for the existence of any uncertainty.’’7
Third, again quoting from Mastro Plastics Corp.8
[T]he burden of proof is upon the Respondent as to
diminution of damages, whether from the willful loss of
earnings by the [claimant’s] failure to look for or keep
a substantially equivalent job or from the unavailability
of a job . . . for some reason unconnected with the dis-
crimination.
IV. THE GENERAL COUNSEL’S BURDEN
A. Gross Backpay
1. The backpay periods
a. The positions of the parties
The specification alleges that the backpay periods for all
claimants began on September 7, 1983, coincident with the
Union’s return-to-work offer, and that the period for each of
13 surviving claimants ended on a stated later date in No-
vember or December 1987 when he refused reinstatement;
that the period for Ronald Baker ended on November 11,
1987, when he retired from the labor market; and that for
Richard Desmond ended with his death on September 19,
1985.
The answer alleges that a valid offer to return never was
made on behalf of the claimants. It does not dispute the ter-
mination dates of the several backpay periods should the
offer to return be found valid.
The answer further alleges that unnamed claimants de-
clined recall offers in September 1983. Respondent particu-
larizes in its brief that two claimants, Thomas Browning and
Thomas Osborne, declined recall offers on September 7. It
argues in support of this contention that Judge Heilbrun
‘‘found,’’ in the underlying decision, that it offered recall to
Browning and Osborne on September 7; and that, while the
Board affirmed Judge Heilbrun’s ‘‘rulings, findings, and con-
clusions only to the extent consistent with’’ the its decision
and order, it tacitly adopted the judge’s ‘‘finding’’ as con-
cerns these two claimants inasmuch as it ‘‘did not take issue
with or even mention’’ that aspect of the judge’s decision.
b. Conclusions
Respondent, by its answer, impermissibly seeks to reliti-
gate the Board’s determination that the September 7 return-
to-work offer was valid.9 I conclude, consistent with the
Board’s determination and in agreement with the specifica-
tion, that the backpay periods began on September 7. So
doing, I reject Respondent’s contention with regard to
Browning and Osborne as outside the Board’s intendment.
I further conclude that the backpay periods ended on the
respective dates set forth in the specification. Not only are
those dates compatible with the evidence, but, as dictated by
Section 102.56 of the Board’s Rules and Regulations, Re-
spondent effectively conceded their appropriateness by fail-
ing to propose alternative dates in its answer.
2. The backpay formula
a. The positions of the parties
The specification regards replacements10 who were on the
payroll for at least 11 weeks in a calendar quarter, or an
equivalent portion of a partial quarter, as ‘‘full-quarter re-
placements’’; and posits that a like number of the most sen-
ior claimants would have worked their average hours in such
a quarter but for the discrimination.
For that portion of the backpay periods predating the with-
drawal of recognition in September 1984, the specification
states in essence that the proper measure of the most senior
claimants’ wage rates is their average hourly rates from Janu-
ary 1, 1983, until they struck in August—that is, rates de-
rived from the agreement; and that the gross wages properly
due them are the product of those rates times their replace-
ments’ average hours.
For the postwithdrawal portion of the backpay periods, the
specification states that the gross wages properly due the
most senior claimants are the product of the replacements’
average rates times their average hours.
The specification regards replacements not identified as
full-quarter replacements as ‘‘partial-quarter replacements’’;
and posits that the remaining claimants, by seniority, would
have worked their hours. The specification states that the
gross wages properly due these claimants are to be figured
by an averaging process analogous to that proposed for the
most senior claimants.
The specification alleges, further, that the expired agree-
ment provided that each employee receive credited an hourly
$2 vacation-allowance credit, and that each claimant properly
should be credited accordingly for hours he would have
worked, but for the discrimination, until the September 1984
withdrawal of recognition.
The answer admits that the hours worked by the replace-
ments otherwise would have worked by the claimants. It
603HANSEN BROS. ENTERPRISES
11 Service Electric Co., 281 NLRB 633, 642 (1986).
12 The exception concerns Thomas Browning’s gross backpay for
the third quarter of 1984. The specification inexplicably contains two
sets of entries. One states that Browning’s gross backpay for that
quarter is $1339 and that he had no interim earnings. The other
gives his gross backpay as $8125, and his interim earnings as $6434.
In my recommended Supplemental Order below, I direct the General
Counsel to recompute Browning’s entitlement for the quarter, resolv-
ing the ambiguities concerning gross backpay and interim earnings.
13 I find below that Hubert Woodruff was unavailable for work for
2 weeks during the second quarter of 1984, consequently concluding
that his gross backpay for that quarter should be reduced by two-
thirteenths.
14 I do not mean to imply by this conclusion that Respondent acted
improperly when it stopped making contributions. As just noted in
connection with wage rates, an employer can unilaterally alter strik-
er-replacements’ terms and conditions without violating the Act.
Moreover, Respondent’s stoppage of payments to the trusts was
never litigated and cannot be found unlawful at this late date, regard-
less. Machinists Lodge 1424 (Bryan Mfg. Co.) v. NLRB, 362 U.S.
411 (1960). Respondent’s impasse argument thus misses the point.
seems to dispute the appropriateness of seniority as a deter-
minant of the claimants’ relative priorities, however, citing
the language in the latest labor agreement requiring that se-
niority dictate order of layoff and recall only when ability
‘‘is approximately equal.’’
The answer alleges that the appropriate wage rates at all
times, not only following the withdrawal of recognition, are
those paid the replacements. The answer also takes issue
with the claimants’ entitlement to a vacation-allowance cred-
it, contending that it ‘‘is nothing more than an attempt . . .
to inflate the backpay computations.’’ The answer does not
deny, however, that the employees received such a credit
under the expired agreement, and thus presumably until the
strike.
b. Conclusion
I conclude, absent convincing presentation of an objective
alternative approach, that the use of seniority as a deter-
minant of the claimants’ respective priorities was well within
the broad discretion accorded the General Counsel in recon-
structing what would have happened but for the discrimina-
tion.
I further conclude, given the General Counsel’s broad dis-
cretion in compliance matters and that the wrongdoer must
bear the brunt of uncertainties created its misconduct, that
the specification properly factors in the claimants’ prestrike
wage and vacation-allowance levels for that portion of the
backpay periods preceding the withdrawal of recognition.
I base this latter conclusion on the reasonable supposition
that, had Respondent recalled the strikers as the law requires,
it would have maintained their preexisting wage and vaca-
tion-allowance levels at least until the withdrawal of recogni-
tion. While an employer permissibly can pay striker-replace-
ments below preexisting rates without bargaining,11 I reject
Respondent’s contention that the lesser rates are the appro-
priate standard for determining the prewithdrawal entitle-
ments of those improperly denied recall.
I conclude, as well, that the averaging methods used by
the General Counsel to arrive at the wage and hour multi-
pliers underlying the gross backpay calculations not only are
appropriate in the circumstances, but more conducive to fair-
ness than Respondent’s alternatives.
3. Gross backpay findings
Having adopted the backpay periods as advanced by the
specification, together with the formula therein for computing
the several entitlements and, with one exception, having no
reason to question the underlying calculations, I perforce also
adopt the specification’s gross backpay figures—with the one
exception.12 I thus find the claimants’ gross backpay, by
quarters, to be as set forth in Appendix A, attached.13
B. Fringe Benefit Contributions
1. The positions of the parties
Alleging once more that Respondent was obligated to
maintain levels consistent with the expired agreement until
the September 1984 withdrawal of recognition, the specifica-
tion demands that Respondent make contributions to the Pen-
sion and Health and Welfare Trusts on behalf of each claim-
ant for each hour that claimant would have worked to that
time but for the unlawful failure to recall.
The answer alleges that Respondent has no obligation to
the Pension or Health and Welfare Trusts beyond November
1, 1983, when its contributions ceased. The answer claims in
support of this position that the parties reached a bargaining
impasse on November 1 which legitimized the cessation of
contributions.
2. Conclusion
Again mindful of the broad discretion enjoyed by the Gen-
eral Counsel and that uncertainties are to work against the
wrongdoer, I conclude that the demand for contributions ac-
cruing until September 24, 1984, is appropriate.
I base this conclusion, as I did that concerning wage and
vacation-allowance levels, on the reasonable supposition that
Respondent would have maintained preexisting benefit levels
until the withdrawal of recognition had it recalled the strikers
in September 1983 as the law requires, and on my rejection
of Respondent’s contention that the reduced benefits ac-
corded the replacements are an appropriate prewithdrawal
standard.14
C. Medical Expenses
1. The positions of the parties
The specification alleges that certain of the claimants in-
curred out-of-pocket medical expenses between the onset of
their backpay periods and Respondent’s withdrawal of rec-
ognition that would have been reimbursed by the Health and
Welfare Trust, and that they thereafter incurred medical ex-
penses that would have been reimbursed by Respondent’s
medical plan for the replacements.
The answer alleges lack of knowledge to admit or deny
this allegation, and denies that the medical expense amounts
alleged in the specification are correct.
2. Evidence
As earlier indicated, the expired agreement incorporated a
health and welfare plan, which Respondent funded through
October 1983. Respondent then adopted a new plan in Janu-
ary 1984. Neither plan is in evidence.
604 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 Locatelli entered on his forms, in the section calling for job
search and extra job expenses, that he had paid $110 per month for
‘‘insurance.’’ He did not indicate what kind of insurance.
16 The agreement stated that the employer shall make specified
contributions for ‘‘hospital, medical, surgical, dental care, visual
care, prescription drug and such other welfare benefits as the Board
of Trustees deem advisable,’’ and that the trustees ‘‘shall determine
. . . the nature, extent, and cost of such benefits.’’
17 The only evidence of the coverages under Respondent’s plan ap-
pears in a letter dated November 11, 1987, from Respondent’s attor-
ney to his union counterpart. It states without elaboration that Re-
spondent ‘‘provides health insurance which includes medical, dental
and vision coverage with an option for spouse and child coverage
of which the employer will pay 30% of the cost.’’ The General
Counsel argues in effect that I should draw an inference adverse to
Respondent—thereby crediting the specification with regard to
postwithdrawal medical expenses—because Respondent failed to
‘‘give complete and detailed information’’ about the plan when the
specification was being prepared. The General Counsel made no ef-
fort to develop that information during the hearing, however, and
Board Agent Karen Thompson, who participated in the preparation
of the specification, testified that she ‘‘was provided with a copy’’
of Respondent’s plan.
18 Without more, neither the General Counsel’s quarterly backpay
computations nor claimant entries on backpay data forms carry pro-
bative value. Cf. Woodline Motor Freight, 305 NLRB 6 (1991). See
also NLRB Casehandling Manual, Part 3, Compliance Proceedings,
Sec. 10740.1 and .3 (1989).
19 Best Glass Co., supra; Famet, Inc., 222 NLRB 1180, 1183
(1976). When Respondent makes the Health and Welfare Trust
whole as directed herein, the Trust presumably will extend retro-
active coverage to the claimants, thereby providing relief to Septem-
ber 24, 1984.
In support of the specification, the General Counsel intro-
duced a packet of materials for each claimant. I received the
first of the packets, that pertaining to Richard Desmond, over
the hearsay objection of Respondent’s counsel. Counsel
agreed to the admission of the remaining packets without
foundation, but with the recurrently stated understanding that
he did not thereby concede the truthfulness of their entries.
Each packet includes forms containing the General Coun-
sel’s quarterly backpay computations and forms captioned
‘‘Claimant’s Backpay Data Form.’’ The claimants ostensibly
submitted the backpay data forms to the General Counsel’s
compliance officer from time to time during the backpay pe-
riods. Many are unsigned.
The backpay data forms contain this item:
C. List any medical expenses or health insurance ex-
penses which you would not have had if you were still
working for your former employer: $ lll (attach a
separate sheet)
The packet for one of the claimants, Gerald Gomes, also
includes a one-page document entitled ‘‘Hansen Brothers
Medical Expenses Questionnaire.’’
The General Counsel did not question any of the claimants
about their item C entries, ask Gomes about the entries on
his questionnaire, or otherwise attempt to verify the entries.
The claimants for the most part simply entered a dollar fig-
ure, without explanation, in response to item C; and in sev-
eral instances that figure does not correspond with the
amount claimed in the specification. Thus:
(a) While the specification demands medical-expenses re-
imbursement for William Browning for the last quarter of
1984 and the first three quarters of 1985, he made no item
C entries for those quarters.
(b) George Horner’s item C entries differ wildly from the
specification amounts. To cite a few of many instances, he
claimed that he had $5000 in medical expenses in the fourth
quarter of 1983, whereas the specification demands nothing;
he claimed $300 for the second quarter of 1984, and the
specification $374; and he claimed $4000 for each of the last
two quarters of 1984, and the specification $54 and $121.
(c) William Locatelli made no item C entries for the last
quarter of 1983 or the first quarter of 1984, yet the specifica-
tion demands $330 for each quarter.15
(d) Thomas Resetar entered that he incurred $187 in item
C expenses in the first quarter of 1986; the specification
makes no demand for that quarter.
Apart from the demonstrable unreliability of the backpay
data forms, the specification demands medical-expenses re-
imbursement for Larry McConnell for the last quarter of
1983, all of 1984, and the third quarter of 1985. McConnell’s
packet contains no backpay data forms for any of those quar-
ters, nor any other documents from which a basis for the
specification figures might be gleaned.
The record contains no probative evidence of the cov-
erages under the two plans in question. The expired agree-
ment is in evidence, but it incorporated the union plan only
by reference.16 The General Counsel elicited no testimony
about the plan. She did not offer Respondent’s plan, either,
or call anyone to testify about it.17
3. Conclusion
The General Counsel proffered no reliable evidence in
support of the medical-expenses claims made by the speci-
fication.18 Not only are the alleged expenses devoid of reli-
able, nonhearsay verification, but the record leaves to specu-
lation the coverages of the plans in question. I conclude,
therefore, that the General Counsel has not met her burden
in this regard, and so disallow all medical-expense claims.19
D. Expenses Deductible from Interim Earnings
1. Positions of the parties
The specification alleges that 12 claimants incurred speci-
fied expenses, to be deducted from their interim earnings, in
seeking or retaining interim employment. The answer alleges
lack of knowledge to admit or deny this allegation, yet as-
serts that the amounts alleged ‘‘represent the maximum
amounts of deductible expenses.’’ Appendices incorporated
in the answer contain stated figures for the 12 claimants,
which are designated ‘‘Maximum Deductible Expenses.’’
Each of those entries is accompanied by a footnote stating
in part:
The Respondent reserves its right to present evidence
. . . showing that the actual deductible expenses . . .
are less than the amounts stated . . . in the Amended
Compliance Specification or set forth herein.
605HANSEN BROS. ENTERPRISES
20 Respondent’s bottom-line figure for Thomas Browning is
$29,451. It neglected to include $2353 for the second quarter of
1984—a figure contained in the specification which the answer in-
corporates by reference.
21 Respondent’s bottom-line figure is $2906. My totaling of the
constituent entries, rounded off, comes to $2908.
22 Respondent’s bottom-line figure, $16,582, reflects an error in
addition. I have substituted the correct total.
23 Respondent’s bottom-line figure is $6,045. My totaling of the
constituent entries, rounded off, comes to $6046.
24 Respondent’s bottom-line figure, $4,208, reflects an error in ad-
dition. I have substituted the correct total.
25 Respondent’s bottom-line figure, $14,633, reflects an error in
addition. I have substituted the correct total.
26 Cf., Garsart Construction Corp., 282 NLRB 1331, 1332 (1987).
The deductible-expense amounts thus set forth, rounded to
the nearest dollar, are:
Claimant Specification Answer
Ronald Baker $1,067 $1,003
Thomas Browning 34,358 2031,802
William Browning 3,290 212,908
Gerald Gomes 13,380 11,720
George Horner 1,109 1,049
William Locatelli 9,422 8,565
Larry McConnell 18,487 2217,323
Thomas Osborne 7,092 236,046
Thomas Resetar 8,555 6,314
Keith Sonke 2,388 242,105
Gerald Tennell 5,705 5,005
Hubert Woodruff 19,389 2517,183
2. Evidence
The evidence in support of this portion of the specification
consists of the packets described above in the medical-ex-
penses section. Respondent did not present any substantial
evidence modifying the amounts stated in the appendices to
its answer.
3. Conclusion
The General Counsel’s evidence suffers the same infir-
mities as that supporting the claimants’ alleged medical ex-
penses. I therefore assign it no probative value. In light of
the admissions implicit in the appendices to Respondent’s
answer, however, and absent contradicting evidence, I find
that the several claimants’ expenses are as there stated.26
The claimants’ quarterly expenses, to be deducted from in-
terim earnings, are set forth in Appendix B, attached.
V. RESPONDENT’S BURDEN
A. The Positions of the Parties
While not the General Counsel’s burden, the specification
admits that each of the claimants realized stated interim earn-
ings and that interim employers made stated contributions to
the Pension and Health and Welfare Trusts on behalf of
some of them.
Respondent alleges in its answer that the claimants real-
ized, at a minimum, the interim earnings stated in the speci-
fication. The answer also alleges, among other things, that
interim employers made contributions to the Pension and
Health and Welfare Trusts beyond those admitted in the
specification and that ‘‘some or all’’ of the claimants failed
to ‘‘mitigate their damages,’’ ‘‘made themselves unavailable
for work,’’ and engaged in ‘‘serious acts of misconduct’’ dis-
qualifying them from backpay.
Respondent makes sundry additional contentions in its
brief—that so-called strike benefits received by the claimants
should be treated as interim earnings, that various of the
claimants forfeited their entitlements in whole or part by de-
liberately concealing interim earnings or because of subpoena
noncompliance, etc.
B. Strike Benefits as Interim Earnings
1. Evidence
The Union paid some of the claimants so-called strike ben-
efits from time to time during the backpay periods. The spec-
ification does not treat these payments as interim earnings.
Michael Tobin, a business representative for the Union,
testified that, as dictated by the constitution of the parent
International, strikers are paid $45 weekly from the second
through the fifth weeks of a strike, and $55 per week there-
after. Tobin recalled that the Union’s membership and execu-
tive board eventually raised the claimants’ weekly payments
to $155. Neither Tobin nor any of the claimants could testify
definitively when this last increase occurred. The yearly
amounts paid some of the claimants indicate that it probably
occurred in early 1984.
Tobin termed these payments ‘‘an out-of-work benefit.’’
He explained that strikers are ‘‘not necessarily’’ required to
picket to qualify; that it ‘‘has nothing to do with’’ time on
the picket line. Similarly, claimant Thomas Browning testi-
fied: ‘‘It wasn’t for picketing. This was for being on strike.
That was the strike benefit.’’
Tobin had no duties in connection with the strike in ques-
tion. The business representative who did, one Lomoscolla,
did not testify. Asked if a striker would continue receiving
payment if he/she ‘‘did not show up and picket for several
weeks,’’ Tobin testified:
[T]hat’s the responsibility of the administrator or
business representative dealing with that particular unit
on strike or lockout. . . . They would have to make
that determination. Clearly, if the person did go back to
work, in . . . another local union jurisdiction, then he
wouldn’t be receiving his strike benefits.
Tobin and Browning to the contrary, various of the claim-
ants testified unequivocally that the payments were contin-
gent upon their picketing. Thus:
(a) Ronald Baker testified that his payments were ‘‘com-
pensation for [his] engaging in the picketing.’’
(b) George Horner testified that he was paid ‘‘for picket-
line activity.’’
(c) William Locatelli testified that certain moneys he re-
ceived were ‘‘compensation for [his] picket-line activities.’’
(d) Thomas Resetar testified that he ‘‘received compensa-
tion . . . if [he] was on the picket line,’’ and that he did not
if he did not picket.
(e) Keith Sonke testified that he received payments ‘‘only
when [he] was on picket duty.’’
606 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
27 The record fails to reconcile Baker’s receiving $8060 in 1985
with the fact that $155 x 52 equals $7960. Perhaps the $8060 in-
cludes payment for 1984 picketing.
28 Baker testified that he received weekly payments of $45 from
the August 18 strike onset through December 31, 1983, and that his
1986 weekly payments were $145. I find, based on Tobin’s testi-
mony, that Baker’s 1983 payments began with the strike’s second
week and increased to $55 after the fifth week—which is to say, the
week beginning September 22—and that his 1986 weekly payments
were $155. I credit Tobin in all instances where the claimants’ recol-
lections of their weekly payments differ from his testimony.
29 Browning testified that he received payments of $45, then $55,
from the start of the strike. I find, based on Tobin’s testimony, that
payments began with the strike’s second week.
30 Tellam testified that he received payments totaling $950 in
1983. I assume, absent a more precise breakdown, that $90 of that
(2 x $45) derived from his picketing before the September 7 onset
of his backpay period—that is, during the strike’s second and third
weeks.
31 Tennell testified that he received payments totaling $895 in
1983. I assume, absent a more precise breakdown, that $90 of that
(2 x $45) derived from his picketing before the September 7 onset
of his backpay period—that is, during the strike’s second and third
weeks.
32 Woodruff testified that he also received an unknown number of
$45 payments in 1983. Since he could have received two such pay-
ments before the onset of his backpay period, the record does not
support a finding that he received such payments during the backpay
period.
33 Tubari Ltd., 303 NLRB 529 (1991); Superior Warehouse Gro-
cers, 282 NLRB 802, 803–804 (1987).
34 I note in this regard that picketing took place after, as well as
before, at least some of the backpay periods.
(f) Edward Tellam testified, when asked if all the strikers
received money from the Union, ‘‘If they picketed, they were
compensated.’’
(g) Hubert Woodruff testified that the Union paid him
‘‘whenever he picketed.’’
Respondent established that 11 of the claimants accord-
ingly received payments as follows during the backpay peri-
ods:
(a) Ronald Baker: Weekly payments totaling $145 (two of
$45, one of $55) in the third quarter of 1983 after September
7; weekly payments totaling $715 (13 of $55) in the fourth
quarter of 1983; weekly payments totaling $5790 in 1984
and $8060 in 1985;27 and an unknown number of $155
weekly payments in the first and second quarters on 1986.28
(b) Thomas Browning: Weekly payments of $45 for an un-
certain period in 1983, and of $155 for an uncertain later pe-
riod.
(c) William Browning: Weekly payments totaling $145
(two of $45, one of $55) in the third quarter of 1983 after
September 7; weekly payments totaling $715 (13 of $55) in
the fourth quarter of 1983; and weekly payments totaling
$2345 in the first 4 months of 1984.29
(d) Gerald Gomes: Weekly payments totaling $785 in the
fourth quarter of 1983, $1040 in 1984, $3100 in 1985, and
$625 in 1986.
(e) George Horner: Weekly payments totaling $2255 in
1984, $3830 in 1985, $3975 in 1986, and $6975 (45 of
$155) in 1987 to the November 13 end of his backpay pe-
riod.
(f) William Locatelli: Weekly payments totaling $1705 in
1984 and $3455 in 1985.
(g) Thomas Resetar: Weekly payments totaling $3875 in
1984.
(h) Keith Sonke: Weekly payments totaling $140 in 1984
and $1495 in 1986.
(i) Edward Tellam: Weekly payments totaling $860 in
1983, $7150 in 1984, $7750 in 1985, and $4860 in the first
8 months of 1986.30
(j) Gerald Tennell: Weekly payments totaling $805 in
1983 and $4050 in 1984.31
(k) Hubert Woodruff: An unknown number of weekly pay-
ments at $55 per week in 1983, an unknown number of
weekly payments in 1984, and weekly payments totaling
$2470 in 1985.32
2. Conclusion
The weight of evidence compels the conclusion that the
so-called strike benefits in reality were payment for and con-
tingent upon picketing. I agree with Respondent, therefore,
that these payments should be treated as interim earnings, to
be deducted from the claimants’ quarterly net backpay enti-
tlements, to the extent that a nonspeculative determination of
dollar amounts can be made.33
Where the record does not enable a quarterly breakdown,
I will assume payments were received proportionately
throughout the defined larger period. In the case Ronald
Baker’s $5790 in 1984, for instance, I will divide that
amount by 4 to arrive at a quarterly allocation ($1447).
Where the record affords no basis for dividing the total re-
ceived in a given period, as in the case of Baker’s receiving
an unknown number of $155 payments in the first and sec-
ond quarters of 1986, I will assume that he received only one
such payment in each quarter. Similarly, since Hubert Wood-
ruff received an unknown number of $55 payments in the
fourth quarter of 1983 and payments in an unknown amount
in 1984, I will assume that he received two $55 payments—
one in each year.
Finally, where the record leaves to speculation whether
payments were received within a given backpay period, as in
the case of the weekly payments of $45 received by Thomas
Browning for an uncertain period in 1983 and of $155 for
an uncertain later period, I conclude that Respondent has not
met its burden.34
Applying these guidelines, I find that the claimants real-
ized additional interim income, in the form of payment for
picketing, as follows:
(a) Ronald Baker: $145 in the third quarter of 1983; $715
in the fourth quarter of 1983; $1447 in each quarter of 1984;
$2015 in each quarter of 1985; and $155 in each of the first
two quarters of 1986.
(b) William Browning: $145 in the third quarter of 1983;
$715 in the fourth quarter of 1983; $1759 in the first quarter
of 1984; and $586 in the second quarter of 1984.
(c) Gerald Gomes: $785 in the fourth quarter of 1983;
$260 in each quarter of 1984; $775 in each quarter of 1985;
and $156 in each quarter of 1986.
(d) George Horner: $564 in each quarter of 1984; $957 in
each quarter of 1985; $994 in each quarter of 1986; $2015
in each of the first three quarters of 1987; and $930 in the
fourth quarter of 1987.
(e) William Locatelli: $426 in each quarter of 1984; and
$864 in each quarter of 1985.
(f) Thomas Resetar: $969 in each quarter of 1984.
607HANSEN BROS. ENTERPRISES
35 Mastro Plastics Corp., supra, 136 NLRB at 1350.
36 North Slope Mechanical, 286 NLRB 633, 640 (1987); Carter’s
Rental, 250 NLRB 344, 348 (1980).
37Tubari Ltd., supra, 303 NLRB at 529.
38 136 NLRB at 1349–1350.
39 See also United Aircraft Corp., 204 NLRB 1068, 1077–1078
(1973).
40 North Slope Mechanical, supra, 286 NLRB at 640.
(g) Keith Sonke: $35 in each quarter of 1984; and $374
in each quarter of 1986.
(h) Edward Tellam: $161 in the third quarter of 1983;
$699 in the fourth quarter of 1983; $1787 in each quarter of
1984; $1937 in each quarter of 1985; $1822 in each of the
first two quarters of 1986; and $1216 in the third quarter of
1986.
(i) Gerald Tennell: $151 in the third quarter of 1983; $654
in the fourth quarter of 1983; and $1012 in each quarter of
1984.
(j) Hubert Woodruff: $9 in the third quarter of 1983; $46
in the fourth quarter of 1983; $14 in each quarter of 1984;
and $617 in each quarter of 1985.
C. Total Interim Earnings
I find, adding the claimants’ proven picketing incomes to
their other interim earnings, admitted by the specification,
that their quarterly interim earnings are as set forth in Ap-
pendix C, attached.
D. The Alleged Failure to Mitigate
1. Ronald Baker
a. Respondent’s position
Respondent states in its brief that Baker ‘‘should not be
entitled to any backpay’’ because he ‘‘willfully failed to
mitigate his damages.’’ In support of this assertion, Respond-
ent cites Baker’s testimony that he could have worked for
Jordan Logging at $50 per load whenever he wanted to from
the third quarter 1983 through 1987.
b. Evidence
Baker testified that Jordan Logging offered him a job in
1983, and that he turned it down because he already was
working. Baker then testified that he could have worked for
Jordan Logging whenever he wanted from the third quarter
of 1983 through the end of 1987. He later credibly testified
that Jordan Logging offered only seasonal employment; that
operations ceased when the ground was snowy or wet. Baker
did work for Jordan Logging in 1986 and 1987.
The specification admits that Baker had $41,013 in interim
earnings during his backpay period, and that he realized por-
tions thereof in all but four scattered quarters during his
backpay period. And, as earlier found, he received picketing
pay, to be treated as interim earnings, from 1983 into 1986.
c. Conclusion
I reject Respondent’s contention. First, a claimant is not
deprived of his entire claim by unjustifiably quitting or refus-
ing employment, ‘‘but only so much as he would have
earned had he retained or obtained the interim job.’’35 Sec-
ond, Respondent has not proved that Baker unjustifiably re-
fused employment. Not only has it failed to establish that he
declined opportunities with Jordan Logging when unem-
ployed, but it has not shown what he would have earned had
he worked for Jordan Logging other than when he did.36
Third, Respondent overlooks that Baker’s working as a paid
picketer was interim employment, the suitability of which
must be assumed absent a contrary showing by Respond-
ent.37
2. Gerald Gomes
a. Respondent’s position
Respondent states in its brief that Gomes should be denied
backpay because he quit his interim employment at Flowers
Transportation without cause in 1983.
b. Evidence
Gomes testified that he obtained an interim job with Flow-
ers Transportation in 1983, which he then quit. He quit, he
testified, because ‘‘they were running too many hours’’ and
he ‘‘couldn’t handle it.’’ He added: ‘‘I would have had to
run two logbooks, and that was illegal, and I didn’t want to
do that.’’
The specification admits that Gomes had interim earnings
of $101,459, including approximately $18,000 spread over
the four quarters of 1984. And, as earlier found, he received
picketing pay, to be treated as interim earnings, from 1983
to 1986.
c. Conclusion
I reject Respondent’s contention. Gomes’ stated reasons
for quitting were credible and justified his doing so. Extract-
ing from Mastro Plastics Corp.:38
[A] claimant who obtains a job but then leaves it for
a justifiable reason is not deprived of all further claim;
the assumption is that the reason for his quitting the job
would not have been present at Respondent’s plant and
therefore the job is not substantially equivalent. . . .
Only if the evidence supports a finding that the claim-
ant would have left Respondent’s plant for the same
reason that he left the interim job or in order to obtain
this particular new job is his claim from that time dis-
allowed.39
Moreover, Respondent has failed to demonstrate that
Gomes’ quitting entailed any diminution of interim income.40
3. William Locatelli
a. Respondent’s position
Respondent states in its brief that Locatelli’s claim should
be denied based on his admission that he never looked for
work during his backpay period.
b. Evidence
Respondent’s counsel asked Locatelli at one point: ‘‘Was
there ever a point in time from August 1983 . . . until De-
cember 1987 when you actually started looking for work?’’
Locatelli answered: ‘‘I don’t think I was looking for work.
I know they came, a couple guys asked me to go to work
608 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
41 See generally Brown Co., 305 NLRB 62 (1991).
42 Tubari Ltd., supra.
43 North Slope Mechanical, supra at 641; Lundy Packing Co., 286
NLRB 141, 142 (1987).
44 Carter’s Rental, supra, 250 NLRB at 350, 352.
for them.’’ Counsel then asked: ‘‘So you were not actively
looking for work during any of that time period, or a portion
of it?’’ Locatelli answered: ‘‘No.’’ Counsel pressed on in
that vein, and Locatelli, as if suddenly grasping the thrust of
the inquiry, testified: ‘‘Oh, I see. Yes, I looked for a job.
Yes.’’
Locatelli later named four firms he sought employment
with, adding that he also went to ‘‘a few others’’ he could
not recall by name. Locatelli testified, as well, that his name
was placed on the Union’s out-of-work list shortly after the
strike, and that he checked with the Union ‘‘about once a
week’’ about job possibilities when not employed.
The specification admits that Locatelli had interim earn-
ings of $46,294. And, as earlier found, he received picketing
pay, to be treated as interim earnings, in 1984 and 1985.
c. Conclusion
I reject Respondent’s contention. True, Locatelli seemed to
admit that he never sought interim employment. I am per-
suaded from observing his performance during that exchange
and throughout his recital, however, that he either is hard of
hearing or has some other cognitive difficulty, and that he
truly misunderstood the sense of counsel’s questions. I am
further persuaded that, once focused, Locatelli credibly de-
scribed his job search, and that it was sufficiently diligent to
preclude an adverse finding. His considerable interim earn-
ings indicate as much.41
4. Edward Tellam
a. Respondent’s position
Respondent states in its brief that Tellam described him-
self as retired on his 1984 Federal tax return, and that he is
not entitled to backpay while he so considered himself.
b. Evidence
Tellam conceded that he listed himself as retired on his
1984 return. He testified that he did this as ‘‘a survival
move,’’ explaining that, without income from Respondent, he
was forced to take early retirement from the Union to obtain
pension income. Tellam also testified that he signed the
Union’s out-of-work list soon after the strike’s onset; that he
sought employment with R. J. Miles Company, for whom he
worked ‘‘off and on’’ starting in 1985; and that he became
a business agent for the Union in October 1986.
The specification admits that Tellam had $25,388 in in-
terim earnings, none of which he realized before the third
quarter of 1985. And, as earlier found, he received picketing
pay, to be treated as interim earnings, from 1983 to 1986.
c. Conclusion
I reject Respondent’s contention. As it did in the case of
Ronald Baker, Respondent overlooks that Tellam’s working
as a picketer—for which he received $7150 in 1984, $7750
in 1985, and $4860 in the first 8 months of 1986—was in-
terim employment, the suitability of which must be assumed
absent a contrary showing.42 At $155 per week, this signifies
full-time employment during that period, and Tellam’s admit-
ted interim earnings thereafter hardly bespeak retirement or
a lack of diligence. A claimant, after all, is not held to ‘‘the
highest standard of diligence’’ in seeking interim employ-
ment.43
E. The Alleged Subpoena Noncompliance and
Concealment of Interim Earnings
1. Thomas Browning
a. Respondent’s position
Respondent argues in its brief that Thomas Browning
failed to produce subpoenaed documents, including tax re-
turns for 1983 to 1985, that this prevented it from proving
interim earnings beyond those admitted in the specification,
and that his entitlement should be reduced accordingly.
b. Evidence
Respondent directed a subpoena to Browning demanding
that he produce a broad range of documents, records, and
other papers, including Federal and state tax returns for 1983
through 1987. Browning produced his 1986 and 1987 tax re-
turns, but not those for the prior years. He testified: ‘‘I don’t
have any of the others. . . . What you have is what I have.
I don’t have any others.’’ Citing their nonexistence, Brown-
ing also failed to produce certain other subpoenaed materials.
c. Conclusion
I reject Respondent’s contention. I do not doubt Brown-
ing’s testimony that the unproduced materials do not exist.
A claimant’s entitlement is not compromised because of his
failure to produce the nonexistent.44
2. Richard Desmond
a. Respondent’s position
Respondent states in its brief that, although it served a
subpoena on one Katherine Moffett at Desmond’s last known
address, neither she nor anyone else complied on behalf of
Desmond or his estate. Respondent argues that it thus was
precluded from proving the offsets to which it is entitled, and
that the Desmond claim consequently should be disallowed
in toto.
b. Evidence
On October 13, 1988, Respondent directed a subpoena
duces tecum to the ‘‘Estate of Richard Desmond.’’ The affi-
davit of service states that it was personally served on Kath-
erine Moffett, whom it describes as Desmond’s ‘‘housemate
for eight years.’’ On August 23, 1991, Respondent’s counsel
mailed a copy of the subpoena to ‘‘Estate of Richard
Desmond c/o Katherine Moffett,’’ together with a letter stat-
ing that the hearing herein would convene at 11 a.m. on Oc-
tober 7 at a site to be determined. On October 2, counsel
sent a letter to ‘‘Estate of Richard Desmond c/o Katherine
Moffett’’ setting forth the site, as well as time and date, of
the hearing.
609HANSEN BROS. ENTERPRISES
45 Cf., Mastro Plastics Corp., supra, 136 NLRB at 1347–1348.
46 Carter’s Rental, supra, 250 NLRB at 350, 352.
47 Given the difficulty in assessing the return to Horner, in mone-
tary terms, of his work for Tim Smith Construction, and its plainly
minimal nature, I see no warrant to alter Horner’s entitlement be-
cause of it. Laredo Packing Co., 264 NLRB 245, 249 (1982).
48 Discussed earlier.
49 United Aircraft Corp., supra, 204 NLRB at 1073–1074.
The record does not disclose Moffett’s status, if any, vis-
a-vis the Desmond estate.
c. Conclusion
I reject Respondent’s contention. The circumstances de-
scribed do not warrant an inference adverse to the Desmond
estate, thereby relieving Respondent of its burden as to dimi-
nution of gross backpay.45
3. George Horner
a. Respondent’s position
Respondent argues in its brief that Horner failed to
produce subpoenaed documents and ‘‘sought to conceal in-
terim earnings’’ until ‘‘confronted with specific evidence of
employment,’’ and that his claim therefore should be dis-
allowed.
b. Evidence
Respondent directed a subpoena to Horner demanding that
he produce a broad range of documents, records, and other
papers, including Federal and state tax returns and W-2
forms for 1984 through 1987. He produced his 1984 and
1985 Federal returns, but no others. He testified that he did
not file for 1986 or 1987 because he ‘‘didn’t make any
money.’’ He did not produce any W-2 forms either, indicat-
ing (‘‘They wasn’t in there.’’) that none exist. Nor did he
produce any of the other materials called for by the sub-
poena. Respondent’s counsel did not develop through Horner
whether any of those materials exist.
Examined by Respondent’s counsel, Horner testified at one
point that he had worked for Tim Smith Construction in
1985. He earlier had testified that he had worked for no one
in 1985 ‘‘other than what we’ve identified,’’ which did not
include Tim Smith Construction. Horner recounted that his
work for Tim Smith consisted of ‘‘cement work and fencing
and stuff like that’’; that he ‘‘didn’t get paid in cash, per
se,’’ but worked off a loan from Smith of about $300 ‘‘to
get a car repaired.’’ Horner presently recalled that Smith also
‘‘might have bought [him] a case of beer or something now
and then,’’ and ‘‘slipped [him] some cash or something once
in a while.’’
Horner ‘‘imagine[d]’’ that the Tim Smith job lasted a
‘‘couple weeks.’’ Later, refreshed by tickets he had signed
evidencing the receipt of cement from Respondent, Horner
recalled that he worked for Tim Smith on May 22 and 31,
June 27, and September 17.
Horner testified, as well, that he worked for Ron Langley
in 1986. Again refreshed by a delivery ticket he had signed,
he recalled that this occurred on September 22, and was
‘‘probably’’ a 2-1/2 or 3-hour job. He testified that no
money ‘‘changed hands in that deal’’; that he was repaying
Langley in kind for helping him build a fence.
c. Conclusion
I reject Respondent’s contention. The record contains no
intimation that Horner withheld existing subpoenaed mate-
rials, or that he failed to make a reasonable effort to locate
such materials. As earlier noted, a claimant’s entitlement is
not compromised because of his failure to produce that
which does not exist or cannot be found.46 Further, I fail to
see that Horner’s inability to recall aspects of his brief stints
with Tim Smith and Ron Langley until refreshed betrayed an
intent to conceal.47
4. William Locatelli
a. Respondent’s position
Respondent argues in its brief that Locatelli’s claim should
be disallowed not only because he failed to seek interim em-
ployment,48 but because he was ‘‘less than forthcoming’’
concerning interim income from painting cars, thereby pre-
venting Respondent from proving the offsets to which it is
entitled.
b. Evidence
Locatelli testified that he painted perhaps two cars a year
during his backpay period, that he also painted cars before
the strike, and that, aspiring to become ‘‘an expert painter,’’
he took no compensation other than reimbursement for mate-
rials.
c. Conclusion
I reject Respondent’s contention. Locatelli’s car-painting
activities seemingly were a ‘‘moonlighting’’ variant, of sub-
stantially the same character before and after the strike. In-
come from them consequently is not deductible from gross
backpay.49 Whether Locatelli was ‘‘less than forthcoming’’
about his income in this regard thus is irrelevant.
5. Larry McConnell
a. Respondent’s position
Respondent argues in its brief that McConnell’s entitle-
ment should be reduced because he ‘‘intentionally tried to
conceal [interim] earnings’’ and failed to produce certain
subpoenaed materials.
b. Evidence
Respondent directed a subpoena to McConnell demanding
that he produce a broad range of documents, records, and
other papers, including Federal and state tax returns for 1983
through 1987 and loan applications and bank statements for
those years.
McConnell did not produce his state tax returns, loan ap-
plications, or bank statements. He testified that he ‘‘must
have left’’ the state returns ‘‘at home,’’ and that he did not
produce the loan applications because he ‘‘didn’t even think
them necessary.’’ Respondent’s counsel asked him if he
could provide the documents before the close of the hearing,
and I directed him to do so. He said he would, and that he
would be available to testify about them the following Fri-
day.
610 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
50 Original Oyster House, 281 NLRB 1153, 1155 (1986).
51 Carter’s Rental, supra, 250 NLRB at 350, 352.
52 Vaars testified: ‘‘I don’t play with the IRS.’’
Respondent’s counsel later represented that he had re-
ceived the subject documents, that the tender was ‘‘accept-
able,’’ and that he saw no need for McConnell to testify fur-
ther.
Examining McConnell, Respondent’s counsel established
that he had certain 1983 earnings—from Citron and from
R. W. Mickel, Inc.—that he did not report on any of the
backpay data forms he submitted to the General Counsel.
Asked why he did not report the Citron earnings, McConnell
testified: ‘‘That’s a good question. I don’t have an answer.’’
Asked the same question concerning R. W. Mickel, he an-
swered: ‘‘I didn’t know the exact amount when I filled this
out.’’
Having obtained an itemized statement of McConnell’s
1983-1987 earnings from the Social Security Administration,
the General Counsel knew of the earnings in question before
preparing the backpay specification.
c. Conclusion
I reject Respondent’s contention. McConnell complied
with the subpoena to Respondent’s satisfaction before the
close of the hearing, and I am unable to conclude that his
isolated and long-ago failure to report certain earnings to the
General Counsel bespoke willful deception.50 Further, his
failure to report did not compromise the integrity of the spec-
ification.
6. Thomas Osborne
a. Respondent’s Position
Respondent argues in its brief that Osborne’s entitlement
should be reduced because he ‘‘intentionally tried to conceal
[interim] earnings’’ and failed to produce certain subpoenaed
materials.
b. Evidence
Respondent directed a subpoena to Osborne demanding
that he produce a broad range of documents, records, and
other papers, including Federal and state tax returns and W-
2 forms for 1983 through 1987, bank statements for those
years, and records showing the mileage he drove to and from
work from 1983 through 1985.
Osborne produced his 1983 and 1984 Federal tax returns,
but no others. Nor did he produce W-2 forms for 1985–1987,
bank statements, or mileage records. He testified that he
could not find the materials he failed to produce.
Examining Osborne, Respondent’s counsel established that
he had earnings of $35.80 from Granite Construction Com-
pany in the last quarter of 1983 that he did not report on any
of the backpay data forms he submitted to the General Coun-
sel. Having obtained an itemized statement of Osborne’s
1983–1987 earnings from the Social Security Administration,
the General Counsel knew of those earnings before preparing
the backpay specification.
c. Conclusion
I reject Respondent’s contention. I credit Osborne that he
could not locate the unproduced materials, and have no rea-
son to suppose that he exerted less than a reasonable effort
to find them. Again, a claimant’s entitlement is not impaired
because of his inability, after reasonable effort, to find sub-
poenaed materials.51
I am unable to conclude, moreover, that Osborne’s single
failure to report interim earnings of $35.80 signified an intent
to conceal; and, as in the case of McConnell, that failure did
not compromise the integrity of the specification.
7. Keith Sonke
a. Respondent’s position
Respondent argues in its brief that Sonke’s entitlement
should be reduced because he ‘‘intentionally tried to conceal
[interim] earnings.’’
b. Evidence
Respondent directed a subpoena to Sonke demanding that
he produce a broad range of documents, records, and other
papers, including loan applications for 1984 through 1987
and all records of income received in those years but not re-
ported as such to the Federal or state governments.
Sonke produced neither loan applications, nor records of
unreported income. He testified that he could not find the f
ormer, and that he had no unreported income.
c. Conclusion
I reject Respondent’s contention. Crediting Sonke’s testi-
mony, I see no evidence of intentional concealment.
8. David Vaars
a. Respondent’s position
Respondent argues in its brief that Vaars’ entitlement
should be extinguished or reduced because he ‘‘intentionally
tried to conceal [interim] earnings.’’
b. Evidence
Respondent directed a subpoena to Vaars demanding that
he produce a broad range of documents, records, and other
papers, including Federal and state tax returns and W-2
forms for 1983 through 1987, loan applications and bank
statements for those years, etc.
When first examined by Respondent’s counsel, Vaars dis-
closed that he had brought none of the subpoenaed docu-
ments. He testified that he previously had provided the Gen-
eral Counsel with his tax returns, and ‘‘understood’’—‘‘I do
not understand why they’re not here’’—that she would bring
them to the hearing. He added that he had records of ‘‘every
dime [he’d] ever made,’’ and pledged to bring them to the
hearing the next day.
The next day, Vaars brought tax returns, bank statements,
and a list of some 18 logging firms for which he hauled
while self-employed during his backpay period. Questioned
by Respondent’s counsel about income from this or that
logger, Vaars testified that, while his tax returns accurately
set forth his aggregate income and that it was ‘‘all prov-
able,’’52 he could not say what he had received from a spe-
cific logger ‘‘without going clear back through the
611HANSEN BROS. ENTERPRISES
53 Foster identified the spitter as ‘‘Crazy George,’’ adding, ‘‘I’m
not sure what his last name was.’’ Horner testified that he goes by
that sobriquet.
54 Desmond was exonerated in an ensuing criminal prosecution,
Foster testified, reportedly because of testimony that Foster ‘‘had
started the confrontation.’’
55 Judge Heilbrun’s trial took place on April 3, 1984.
56 Axelson, Inc., 285 NLRB 862, 863–864 (1987).
57 Cf., Petoskey Geriatric Village, 295 NLRB 800, 802 fn. 8
(1989).
spreadsheets and stuff.’’ Counsel did not state an interest in
seeing the spreadsheets, nor did he express dissatisfaction on
this second day with the extent of Vaars’ subpoena compli-
ance.
c. Conclusion
I reject Respondent’s contention. Vaars’ initial failure to
comply with the subpoena apparently derived in large part
from his mistaken assumption that the General Counsel
would bring the materials he previously had given her, and
the record indicates that he cured that failure to Respondent’s
satisfaction the next day.
F. The Matter of Hubert Woodruff’s 1984 Disability
1. Respondent’s position
Respondent notes in its brief that Woodruff ‘‘admitted
missing ‘two to three’ weeks of employment in 1984 due to
being hospitalized,’’ the implication being that his entitle-
ment should be reduced accordingly.
2. Evidence
Woodruff testified:
I believe I was off for two to three weeks—I can’t
remember the month, I believe it was in May. . . . I
believe it was—I’m not too sure on this—’84. . . . I
had a cyst on my hand removed.
The specification makes no allowance for this disability.
3. Conclusion
I find, based on Woodruff’s commendably forthright ad-
mission, that the disability occasioned by removal of the cyst
rendered him unavailable for work for 2 weeks in the second
quarter of 1984. I therefore conclude that his gross backpay
for that quarter, as set forth in the specification, should be
reduced by two-thirteenths—from $5879 to $4975.
G. Alleged Claimant Misconduct
1. Evidence
Orson Hansen, Respondent’s president, testified that all
but one of Respondent’s trucks was damaged on September
23, 1983. He elaborated that brake hoses and hydraulic lines
were cut, that radiators were damaged, that nuts and bolts
were placed inside the valve covers of several engines, that
dirt was put in fuel tanks, etc.; and that the damage was ‘‘in
the vicinity of $100,000.’’
Hansen testified that he believed the picketers to have
been the culprits. Asked the basis for this belief, he testified:
Their general attitude, which was abusive and abra-
sive to everyone who entered or exited either our plant
or our La Barr Meadows yard. The continuous nails,
spikes, that were being placed in the entrances . . . to
our Greenhorn plant, and the nails that were continu-
ously being placed at the entrance to our La Barr
Meadows yard.
Hansen testified, in addition, that he found ‘‘a type of
cigar that was smoked by’’ Larry McConnell in the area of
the damaged trucks.
Ronald Foster, whose trucking company has had a busi-
ness relationship with Respondent for about 20 years, testi-
fied that, early in the strike, someone twice left messages on
his answering machine that he would ‘‘be dead’’ if he
crossed the picket line. Asked if he had any idea who made
the calls, Foster testified: ‘‘It’s hard to say, but I believe it
was Tom Resetar.’’
Foster also testified that, as he exited Respondent’s yard
on La Barr Meadows Road early in the strike, Resetar stood
in front of his truck, forcing him to stop briefly, whereupon
George Horner spit tobacco on the truck.53
Foster testified, as well, that he had an ‘‘altercation’’ with
Richard Desmond on September 12, 1983. Foster elaborated
that Desmond ‘‘confronted’’ him on the street in Grass Val-
ley, ‘‘hit [him] in the jaw, and knocked [his] glasses off.’’
Foster was not performing work for Respondent at the time.
He testified that he presently reported the incident both to the
Grass Valley police and to Respondent.54
Foster testified, finally, that he suffered ‘‘two or three’’
flat tires, ‘‘probably’’ in October, November, or December
1983, because of nails placed in his path by unidentified
picketers.
2. Conclusion
I reject Respondent’s misconduct argument. First, and
most fundamentally, it is untimely. All of the cited conduct
occurred well before the underlying trial on the merits.55 Re-
spondent consequently bore the burden of demonstrating in
that proceeding, as an affirmative defense, that it denied re-
call to the claimants because of ‘‘an honest belief’’ that they
had engaged in strike misconduct.56 It therefore is estopped
from now raising this defense.57
Estoppel aside, except for Horner’s alleged spitting and the
Desmond-Foster altercation, Respondent failed to link the al-
leged misconduct to any of the claimants with requisite par-
ticularity. Moreover, a single instance of spitting on a truck
is not of disqualifying seriousness; and, remembering that
Desmond was not picketing at the time of his alleged alterca-
tion with Foster, that the incident occurred away from Re-
spondent’s premises, and that Foster was not then on a mis-
sion for Respondent, Foster’s depiction of their encounter
was insufficient in context and circumstances to warrant dis-
qualification.
VI. SUMMARY
To summarize:
(a) Gross backpay, with one exception, is as set forth in
the specification and in Appendix A. The exception concerns
612 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the uncertainty about Thomas Browning’s gross backpay for
the third quarter of 1984, which I cannot resolve. In addition,
I have reduced Hubert Woodruff’s gross backpay for the sec-
ond quarter of 1984 by two-thirteenths from the amount in
the specification.
(b) Expenses deductible from interim earnings are as ad-
mitted by Respondent in its answer. They appear in Appen-
dix B.
(c) The so-called strike benefits, to the extent proven, are
includable as interim earnings. Interim earnings are as set
forth in Appendix C.
(d) The claimants’ entitlements do not include reimburse-
ment for medical expenses.
(e) Synthesizing the foregoing, quarterly net backpay is as
set forth in Appendix D.
(f) Respondent’s obligations to the Pension and Health and
Welfare Trusts are as set forth in the specification.
[Recommended Order omitted from publication.]
APPENDICES
A. Claimants’ Quarterly Gross Backpay1
Yr. 1st 2d 3d 4th
Ronald Baker
1983 $1,116 $5,968
1984 $4,136 7,855 4,645
1985 $909 4,608 5,863 6,383
1986 4,620 6,005 6,869 7,373
1987 4,169 6,267 6,883 2,620
Thomas Browning2
1983 $2,350 $6,031
1984 $4,781 6,057 ? 6,654
1985 4,967 7,084 6,902 8,733
1986 5,352 8,133 9,078 9,616
1987 4,844 7,951 8,846 7,153
William Browning
1983 $2,279 $5,850
1984 $4,637 $5,875 7,708 4,645
1985 3,495 5,008 5,863 6,383
1986 4,620 6,005 6,869 7,373
1987 4,169 6,267 6,883 3,974
Richard Desmond
1984 $1,198 $325
1985 $1,152 3,576
Gerald Gomes
1983 $2,282 $5,857
1984 $4,643 $5,882 7,604 4,645
1985 3,495 5,008 5,863 6,383
1986 4,620 6,005 6,869 7,373
1987 4,169 6,267 6,883 4,198
George Horner
1984 $4,986 $4,645
1985 $3,055 5,863 6,383
1986 $1,201 6,005 6,869 7,373
1987 1,459 6,267 6,883 2,799
William Locatelli
1983 $2,305 $5,916
1984 $4,690 $5,942 7,791 4,645
1985 3,498 5,008 5,863 6,389
1986 4,620 6,005 6,869 7,373
APPENDICES—Continued
A. Claimants’ Quarterly Gross Backpay1
Yr. 1st 2d 3d 4th
1987 4,169 6,267 6,883 4,366
Larry McConnell
1983 $1,900 $5,875
1984 $3,912 $5,901 7,686 4,645
1985 3,495 5,008 5,863 6,383
1986 4,620 6,005 6,869 7,373
1987 4,787 6,267 6,853 4,086
Thomas Osborne
1983 $2,326 $5,542
1984 $4,731 $5,994 7,855 4,645
1985 3,495 5,008 5,863 6,383
1986 4,620 6,005 6,869 7,373
1987 4,169 6,267 6,883 5,598
Thomas Resetar
1984 $1,926 $7,735 $4,645
1985 $524 3,456 5,863 6,383
1986 3,373 6,005 6,869 7,373
1987 4,169 6,267 6,883 2,799
Keith Sonke
1984 $5,003 $1,765
1985 $1,903 5,863 5,617
1986 $508 2,762 6,869 6,488
1987 459 4,074 6,883 3,415
Edward Tellam
1983 $2,279 $5,850
1984 $4,637 $5,875 7,708 4,645
1985 3,495 5,008 5,863 6,383
1986 4,620 450 6,869 7,373
1987 4,169 6,267 6,883 4,198
Gerald Tennell
1983 $1,808 $5,950
1984 $2,877 $4,123 7,832 4,645
1985 3,495 5,008 5,863 6,383
1986 4,620 6,005 6,869 7,373
1987 4,169 6,267 6,883 3,974
David Vaars
1983 $2,083 $5,994
1984 $4,751 $6,020 7,887 4,645
1985 3,495 5,008 5,863 6,383
1986 4,620 6,005 6,869 7,373
1987 4,169 6,267 6,883 4,422
Hubert Woodruff3
1983 $2,281 $5,853
1984 $4,640 $5,879 7,712 4,645
1985 3,495 5,008 5,863 6,383
1986 4,620 6,005 6,869 7,373
1987 4,169 6,267 6,883 4,086
613HANSEN BROS. ENTERPRISES
B. Claimants’ Quarterly Expenses4
(To be deducted from interim earnings)
Yr. 1st 2d 3d 4th
Ronald Baker
1984 $202 $287
1987 $298 144 72
Thomas Browning
1984 $1,162 $2,353 $2,697 $2,557
1985 1,501 2,747 3,532 2,111
1986 1,095 2,256 2,136 2,304
1987 823 1,495 1,638 1,395
William Browning
1984 $181 $189
1985 $79 205 202 $176
1986 172 269 269 269
1987 143 269 269 216
Richard Desmond
None
Gerald Gomes
1984 $491 $694 $1,013 $574
1985 332 743 939 688
1986 382 853 941 987
1987 630 967 967 518
George Horner
1985 $1,049
William Locatelli
1984 $72 $192 $60
1985 630 756 582
1986 1,110 1,210 930
1987 $930 756 776 562
Larry McConnell
1983 $1,280
1984 $1,387 $1,161 $1,161 1,165
1985 1,189 1,041 124 882
1986 1,528 534 1,090 1,031
1987 821 1,110 1,128 691
Thomas Osborne
1983 $250
1984 $164 $1,147
1985 $504 1,706 1,537 680
Thomas Resetar
1984 $286
1985 $70 257 $349 $628
1986 802 908 668
1987 967 273 1,002 104
Keith Sonke
1984 $341 $180
1985 $311 672 601
Edward Tellam
None
Gerald Tennell
1984 $302 $354
1985 $264 $417 401 379
1986 228 444 429 474
B. Claimants’ Quarterly Expenses4
(To be deducted from interim earnings)
Yr. 1st 2d 3d 4th
1987 222 418 453 220
David Vaars
None
Hubert Woodruff
1984 $1,245 $526 $1,120 $578
1985 1,320 1,275 1,265
1986 1,275 1,275 1,275 1,275
1987 1,274 1,275 1,275 931
C. Claimants’ Quarterly Interim Earnings5
Yr. 1st 2d 3d 4th
Ronald Baker
1983 $145 $3,404
1984 $1,672 2,529 1,765
1985 $2,015 5,010 8,002 6,455
1986 2,573 4,688 6,308 1,982
1987 2,250 4,410 1,376
Thomas Browning6
1984 $785 $4,232 ? $4,155
1985 4,730 7,610 $8,397 12,533
1986 4,028 9,552 13,508 8,987
1987 242 2,045 4,948 5,022
William Browning
1983 $145 $715
1984 $1,759 $4,534 4,380 5,138
1985 2,703 5,473 6,171 5,856
1986 3,923 6,594 7,573 8,038
1987 3,753 6,899 7,617 4,374
Richard Desmond
1984 $656 $64
Gerald Gomes
1983 $2,064
1984 $2,687 $6,103 $8,107 3,845
1985 1,634 5,053 9,002 9,209
1986 3,647 8,367 9,372 9,638
1987 5,400 8,497 9,273 5,108
George Horner
1984 $564 $564 $564 $564
1985 957 957 3,953 957
1986 994 994 994 994
1987 2,015 2,015 2,015 930
William Locatelli
1983 $522
1984 $536 $1,699 $5,080 1,191
1985 864 3,426 3,426 7,098
1986 3,697 4,170 4,391
1987 3,036 4,837 4,607 2,874
Larry McConnell
1983 $3,390
1984 $2,449 $3,637 $3,055 4,009
614 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
C. Claimants’ Quarterly Interim Earnings5
Yr. 1st 2d 3d 4th
1985 3,422 4,887 5,613 6,050
1986 4,343 5,757 9,432 10,138
1987 8,087 9,734 9,733 3,706
Thomas Osborne
1983 $1,125 $1,125
1984 $3,206 7,989 3,065
1985 $2,658 7,215 8,262 3,708
1986 270 5,518 7,244 7,919
1987 4,443 6,822 7,533 6,073
Thomas Resetar
1984 $969 $2,159 $2,967 $2,967
1985 668 1,141 4,552 5,979
1986 3,901 1,648 3,577
1987 4,398 4,398 4,398 2,199
Keith Sonke
1984 $35 $35 $1,826 $934
1985 1,403 4,211 4,023
1986 374 2,442 4,352 5,082
1987 3,809 6,217 1,224
Edward Tellam
1983 $161 $699
1984 $1,787 $1,787 1,787 1,787
1985 1,937 1,937 2,935 2,028
1986 1,893 1,965 1,216 6,025
1987 188 747 9,855 7,269
Gerald Tennell
1983 $151 $654
1984 $1,012 $1,012 5,196 6,274
1985 3,543 5,647 6,217 6,363
1986 3,357 6,494 7,177 7,919
1987 3,111 6,694 7,509 3,358
David Vaars
1984 $525 $7,233 $144
1985 $2,781 4,133 5,727
1986 5,615 10,878
1987 5,315 10,540
Hubert Woodruff
1983 $9 $46
1984 $2,086 $3,342 7,862 4,268
1985 1,887 7,458 8,788 5,948
1986 4,257 8,183 8,987 8,946
1987 5,734 8,466 4,686 5,461
D. Claimants’ Quarterly Net Backpay7
Yr. 1st 2d 3d 4th
Ronald Baker
1983 $975 $2,564
1984 $2,465 5,528 3,167
1986 $2,047 1,317 560 5,391
1987 4,169 4,315 2,617 1,316
Total $36,431
D. Claimants’ Quarterly Net Backpay7
Yr. 1st 2d 3d 4th
Thomas Browning8
1983 $2,350 $6,031
1984 $4,781 4,178 ? 5,056
1985 1,738 2,221 2,037
1986 2,419 837 2,933
1987 4,844 7,401 5,536 3,526
Total *$55,888
William Browning
1983 $2,134 $5,135
1984 $2,878 $1,522 3,517
1985 871 703
1986 869
1987 559
Total $18,188
Richard Desmond
1984 $542 $261
1985 $1,152 3,576
Total $5,531
Gerald Gomes
1984 $2,447 $473 $510 $1,374
1985 2,193 698
1986 1,355
Total $9,050
George Horner
1984 $4,422 $4,081
1985 $2,098 2,959 5,426
1986 $207 5,011 5,875 6,379
1987 4,252 4,868 1,869
Total $47,447
William Locatelli
1983 $5,394
1984 $4,154 $4,315 $2,903 3,514
1985 2,634 2,212 3,193
1986 4,620 3,418 3,909 3,912
1987 2,063 2,186 3,052 2,054
Total $53,533
Larry McConnell
1983 $1,900 $3,765
1984 $2,850 $3,425 5,792 1,801
1985 1,262 1,162 374 1,215
1986 1,805 782
1987 1,071
Total $27,204
Thomas Osborne
1983 $1,201 $4,667
1984 $4,731 $2,952 1,013 1,580
1985 1,341 3,315
1986 4,350 487
Total $25,637
Thomas Resetar
1984 $53 $4,768 $1,678
1985 2,572 1,660 1,032
1986 $274 5,265 6,869 4,464
1987 738 2,142 3,487 704
Total $40,474
615HANSEN BROS. ENTERPRISES
D. Claimants’ Quarterly Net Backpay7
Yr. 1st 2d 3d 4th
Keith Sonke
1984 $3,518 $1,011
1985 $811 1,924 2,195
1986 $134 320 2,517 1,406
1987 459 265 666 2,191
Total $17,417
Edward Tellam
1983 $2,118 $5,151
1984 $2,850 $4,088 5,921 2,858
1985 1,558 3,071 2,928 4,355
1986 2,727 5,653 5,520
Total $54,127
Gerald Tennell
1983 $1,657 $5,296
1984 $1,865 $3,111 2,938
1985 $216 47 399
1986 1,491 121
1987 1,280 836
Total $19,257
David Vaars
1983 $2,083 $5,994
1984 $4,226 $6,020 654 4,501
1985 3,495 2,227 1,730 656
1986 4,620 390 7,373
1987 4,169 952 4,422
D. Claimants’ Quarterly Net Backpay7
Yr. 1st 2d 3d 4th
Total $53,512
Hubert Woodruff
1983 $2,272 $5,807
1984 $3,799 $2,159 970 955
1985 $1,608 1,700
1986 1,638
1987 3,472
Total $24,380
* Plus amounts attributable to the third quarter of 1984 as recom-
puted.
1 Only quarters in which gross backpay is attributable to a claim-
ant are included.
2 Regarding Thomas Browning’s gross backpay for the third quar-
ter of 1984, see fn. 12 in the body of the decision.
3 I later reduce Woodruff’s gross backpay for the second quarter
of 1984 by two-thirteenths. See text under ‘‘F. The Matter of Hubert
Woodruff’s Disability in 1984.’’
4 Rounded off to the nearest dollar. Only quarters in which the
claimant had deductible expenses are included.
5 Only quarters in which the claimant had interim earnings are in-
cluded.
6 Regarding Thomas Browning’s interim earnings for the third
quarter of 1984, see fn. 12 in the body of the decision.
7 Only quarters in which the claimant has an entitlement are in-
cluded.
8 In my Supplemental Order, I direct the General Counsel to re-
compute Thomas Browning’s entitlement for the third quarter of
1984.