M.D. Miller Trucking and Topsoil, Inc.

National Labor Relations Board - Board Decisions

Apr 12, 2017

365 NLRB No. 57 (N.L.R.B. 2017)

365 NLRB No. 57
NOTICE: This opinion is subject to formal revision before publication in the
bound volumes of NLRB decisions. Readers are requested to notify the Ex-
ecutive Secretary, National Labor Relations Board, Washington, D.C.
20570, of any typographical or other formal errors so that corrections can
be included in the bound volumes.
M.D. Miller Trucking & Topsoil, Inc. and General
Teamsters Local Union No. 179, affiliated with
the International Brotherhood of Teamsters.
Case 13–CA–104166
April 12, 2017
SECOND SUPPLEMENTAL DECISION AND ORDER
BY ACTING CHAIRMAN MISCIMARRA AND MEMBERS
PEARCE AND MCFERRAN
On November 4, 2016, Administrative Law Judge
John T. Giannopoulos issued the attached supplemental
decision. The Respondent filed exceptions and a sup-
porting brief, and the General Counsel filed an answering
brief.
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 rulings, find-
ings,1 and conclusions and to adopt the recommended
Order.2
ORDER
The National Labor Relations Board orders that the
Respondent, M.D. Miller Trucking & Topsoil, Inc.,
Rockdale, Illinois, its officers, agents, successors, and
assigns, shall make whole Edward McCallum as follows:
1. Pay to McCallum the following amounts:
Net backpay: $145,714.00
Health insurance expenses: 6,224.98
Search for work expenses: 38.00
plus interest computed and compounded daily as pre-
scribed in New Horizons, 283 NLRB 1173 (1987), and
Kentucky River Medical Center, 356 NLRB 6 (2010),

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
In the background section of his decision, the judge inadvertently
stated that the Respondent’s owner, Marlene Miller, called discrimi-
natee Edward McCallum “stupid” and swore at him. However, in the
underlying decision, the Board adopted the judge’s finding that these
statements were made by the Respondent’s supervisor, Chad Miller.
361 NLRB No. 141 (2014). This inadvertent finding does not affect the
result herein.
2 There are no exceptions to the judge’s findings that the Respondent
owes McCallum $6,224.89 for health insurance expenses and $38 for
his search-for-work expenses.
accrued to the date of payment, minus tax withholdings
required by Federal and State law.
2. Pay McCallum $7,984.00 for the adverse tax conse-
quences of the multiyear lump sum backpay award, as
prescribed in AdvoServ of New Jersey, Inc., 363 NLRB
No. 143 (2016), and Don Chavas, LLC d/b/a Tortillas
Don Chavas, 361 NLRB No. 10 (2014).
3. Pay Local 179 Pension Fund $15,876.00 on behalf
of McCallum, plus interest accrued to the date of pay-
ment at the rate provided for in the applicable fund
documents and any penalties.
Dated, Washington, D.C. April 12, 2017
______________________________________
Philip A. Miscimarra, Acting Chairman
______________________________________
Mark Gaston Pearce, Member
______________________________________
Lauren McFerran, Member
(SEAL) NATIONAL LABOR RELATIONS BOARD
Kevin McCormick, Esq., for the General Counsel.
Michael R. Lied, Esq. (Howard & Howard, P.L.L.C.), for the
Respondent.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
JOHN T. GIANNOPOULOS, Administrative Law Judge. This is
a supplemental proceeding to determine the amount of backpay
M.D. Miller Trucking & Topsoil, Inc. (Respondent or M.D.
Miller) owes Edward McCallum (McCallum) based upon a
December 16, 2014, Decision and Order by the National Labor
Relations Board (Board). The hearing in this matter was held
on May 9 and July 6, 2016, in Chicago, Illinois. Both the Gen-
eral Counsel and Respondent presented witness testimony,
including the testimony of McCallum, along with documentary
evidence. Based upon the entire record, including by observa-
tion of the demeanor of the witnesses, and considering the
briefs filed by the General Counsel and Respondent, I make the
following Findings of Fact and Conclusions of Law.1

1 The joint motion to supplement the record by placing R. Exhs. 7–
10 into the record is granted. These Exhibits were admitted into the
record at hearing, but were inadvertently excluded from the official
record prepared by the court reporter.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD2
I. FACTS
A. Background
The facts surrounding McCallum’s employment history at
M.D. Miller are fully set forth in M.D. Miller Trucking & Top-
soil, Inc., 361 NLRB No. 141 (2014). Briefly, from April 2002
until April 11, 2013, McCallum worked for Respondent hauling
construction material and debris to and from jobsites. Re-
spondent’s drivers work seasonally—in the spring, summer,
fall, and early winter; the operation closes when the weather is
poor in the winter and employees return in the spring. General
Teamsters Local Union No. 179, affiliated with the Internation-
al Brotherhood of Teamsters (Union) represents Respondent’s
drivers. In May 2010, McCallum was diagnosed with multiple
sclerosis, causing him difficulty with his left leg.2
On April 11, 2013, Respondent’s owner and president, Mar-
lene Miller held a group meeting for drivers, telling them the
company was having economic problems and asking drivers to
either take a pay cut or come up with alternatives to allow the
company to stay in business. McCallum spoke out against the
plan and Miller called him “stupid” and swore at him. After
McCallum asked her not to speak to him in such manner, Miller
fired McCallum for insubordination.
On April 22, Respondent was to ordered reinstate McCallum
with backpay, as a result of a grievance filed by the Union on
McCallum’s behalf.3 Instead of reinstating McCallum, later
that day Miller left him a voicemail saying he needed to submit
a “long form” medical examination report before he could re-
turn to work. McCallum delivered a long form report, dated 1
month earlier, but Miller asked him to get a second opinion.
On May 9, 2013, McCallum was examined by a doctor certified
by the Federal Motor Carrier Safety Association, who gave him
another long form examination report clearing him to drive,
along with a Department of Transportation medical card.
McCallum tried to contact Respondent about his medical clear-
ance, but Respondent never responded; McCallum was never
reinstated. The Board found that Respondent violated Section
8(a)(1) and (3) of the Act when it refused to accept McCallum’s
current medical certification and requiring him to complete
multiple medical certifications before he could return to work.4
Because Respondent did not comply with the Board’s Order,
on May 29, 2015, the Regional Director for Region 31 issued a
compliance specification and notice of hearing (Specification),
alleging the amounts owed to McCallum. (GC Exh. 1(c).)5
“On June 29, the Respondent filed an answer to the Specifica-

2 Facts taken from M.D. Miller Trucking & Topsoil, Inc., 361 NLRB
No. 141, slip op. at 3–8.
3 Although McCallum was later paid just over $800, he was never
reinstated.
4 The Board noted that there was “no practical difference between
ordering reinstatement and ordering respondent to accept McCallum’s
current medical certification, which necessitates his reinstatement after
his successful grievance.” M.D. Miller Trucking & Topsoil, Inc., 361
NLRB No. 141, slip op. at 2.
5 Citations to the transcripts will be denoted by “Tr.” with the ap-
propriate page number. Citations to the General Counsel’s Exhibits,
Respondent’s Exhibits, Union Exhibits, and Joint Exhibits will be de-
noted by “GC Exh.” “R. Exh.” “U. Exh.” and “Jt. Exh.” respectively.
tion (Answer), asserting that: (a) McCallum could not be rein-
stated because he lacked the required medical certification to
work; (b) McCallum lacked medical certification throughout
the entire backpay period; (c) the Regional Director’s calcula-
tions conflicted with pay documents that Respondent attached
to its answer; and (d) the Respondent lacked sufficient infor-
mation to respond to the Regional Director’s calculations.”
M.D. Miller Trucking & Topsoil, Inc., 363 NLRB No. 49
(2015), slip. op. at 1.6
Based upon the Answer, the General Counsel moved for
summary judgment, and on November 25, 2015, the Board
issued a Supplemental Decision and Order granting in part, and
denying in part, the General Counsel’s motion. Id. The Board
granted summary judgment with respect to the backpay period
(specification pars. I and XV), gross backpay calculations
(specification par. III), pension fund contributions (specifica-
tion pars. IX–XI), and excess tax allegations (specification par.
XIII). Id. at 2–3. The Board denied summary judgment re-
garding the allegations involving interim earnings, expenses,
and net backpay (specification pars. IV–VII) finding that
“[w]here information is not within the respondent’s knowledge,
such as a discriminatee’s interim earnings and expenses, a gen-
eral denial is sufficient to warrant a hearing on those issues.”
Id. at 3. Therefore, the Board ordered a hearing limited to the
issues of McCallum’s interim earnings, expenses, and net
backpay.7 Id.
At the hearing ordered by the Board both the General Coun-
sel and Respondent presented witness testimony, including the
testimony of McCallum, along with documentary evidence
related to the issues set forth by the Board. Based upon the
entire record, including the observation witness demeanor, and
considering the briefs filed by the General Counsel and Re-
spondent, I make the following findings of fact and conclusions
of law.
B. McCallum’s Search for Work and Interim Earnings
McCallum testified about his search for work and interim
earnings.8 According to McCallum he was available to work at
all times after being fired by Respondent, and maintained his
commercial driver’s license (CDL) throughout the backpay
period. Notwithstanding, he did not have any interim earnings
until he went to work as a driver for Price Gregory International
on May 28, 2015. McCallum testified that, after he was fired
from M.D. Miller, he applied for work every 2 weeks, and
learned about available work through internet sites like
Craigslist and monster.com, by looking through local newspa-
pers, driving by advertisements, and walking into businesses to
ask if they were hiring. (Tr. 14, 21–22, 110–111, 131–32.)

6 See also, GC Exh. 1(e).
7 The Board also granted summary judgment to specification para-
graphs VIII and XIV, which both incorporate charts summarizing the
total backpay obligations due to McCallum. However, the Board noted
that while they find the gross backpay amounts are as alleged in the
specification, the net backpay calculations are subject to the hearing
ordered regarding McCallum’s interim earnings and expenses. Id at 3
fn. 8.
8 Although it was the original Charging Party, the Union did not
make an appearance at the compliance hearing.
M.D. MILLER TRUCKING AND TOPSOIL, INC. 3
McCallum applied for, and was granted, unemployment by
the State of Illinois in April 2013.9 As part of the requirements
for unemployment, McCallum testified that, every 2 weeks, he
had to certify his availability to work.10 He received unem-
ployment through 2015, but could not remember the exact
number of weeks he received benefits each year.11 (Tr. 14–18,
123–125; GC Exhs. 2–4.)
McCallum testified that the NLRB recommended to him
“very strongly” that he keep records of his job search. (Tr.
103) Notwithstanding, McCallum’s documentation of his job
search was not extensive.12 For the 24-plus month backpay
period, the documentary evidence of McCallum’s job search
consists of: (1) a job application at Peak Fitness; (2) a job ap-
plication for work as a driver at Promotional Physical Therapy;
(3) an internet print-out showing the web address for Holland
Regional/USF Holland Trucking company; (4) an undated letter
from 160 Driving Academy, stating that McCallum applied for
work as a driving instructor; and (5) partially completed
“Search for Work” reports, on forms provided for by the
NLRB, and completed by McCallum, for 8 months (August
2013—October 2013 and June 2014—October 2014). (GC Exh.
5, 6, 7, 8, 9; R. Exh. 9; GC Exh. 9; Tr. 32.)13 Specifically the
NLRB Search for Work reports show the following contacts
McCallum documented regarding his work search:
Date Employer Name
August 2013 Pro Motion Physical Therapy
September 2103 Premier Truck Driving School, Joliet Jr.
College
September 2013 160 Driving Academy
October 2013 Star Truck Driving School
June 2014 Black Horse Carriers
June 2014 USF Holland
July 2014 Toys R Us
July 2014 Renzenberger, Inc.

9 While McCallum testified that he first filed for unemployment in
May 2013, the documentary evidence shows otherwise. (Tr. 14–15.)
The finding by the Illinois Department of Economic Security that
McCallum was eligible for unemployment was mailed on April 15,
2013, and notes that McCallum’s “last day worked” was on April 11.
(GC Exh. 2.) Thus, McCallum must have filed for unemployment
sometime between April 11 and 15.
10 This certification was done via the telephone. (Tr. 15.)
11 The evidence shows that McCallum’s weekly unemployment ben-
efit was $413. (GC Exh. 2.) McCallum’s 1099G forms show that he
received a total of $17,461 in unemployment benefits in 2013; $10,440
in 2014; and $4686 in 2015. (GC Exh. 3–4.) Based on these numbers,
it is reasonable to estimate that McCallum received unemployment for
significant portions of 2013—2014, and for about 11 weeks in 2015.
12 In some instances McCallum testified that he submitted job appli-
cations via company websites, but did not print-off the final application
as proof that he was submitting it over the internet. (Tr. 107.)
13 McCallum testified that R. Exh. 9 is the most accurate out of
Exhs. 7, 8, and 9. (Tr. 119.)
August 2014 EcoLab
August 2014 Calhoon Trucking
August 2014 Unknown employer, contact named
“Nick”
September 2014 Home Depot
September 2014 A&R Trucking
September 2014 Craigslist Job Posting, name unknown
October 2014 Craigslist Job Posting, name unknown
October 2014 Priority Staffing
McCallum testified that he made other job applications but
he did not write them down and could not remember all the
places he applied to during that time. (Tr. 37, 102, 104–105,
120.) Also, in some instances he submitted job applications via
company websites, but did not print-off the final application as
proof of submission. (Tr. 107.)
1. Search for work in 2013
In May 2013, McCallum testified that he asked Union Busi-
ness Agent Gregory Elsberry to place his name on the Union’s
out-of-work referral list. (Tr. 20, 125.) However, according to
Elsberry, members cannot register for the referral list by asking
to be put on the list. (Tr. 172.) Furthermore, Elsberry testified
that it is the employee’s responsibility to get on the list, and to
complete and sign all the necessary paperwork required by the
Union.14 (Tr. 166.) The Union’s referral list rules specifically
state that employees must renew their registration on the refer-
ral list every 90 days, or their name will be removed from the
list. (GC Exh. 15 p. 1.) There is no evidence that McCallum
ever completed any paperwork for registration on the referral
list. Respondent introduced into evidence the Union’s referral
list for the time period in question; McCallum’s name does not
appear anywhere on the list. (R. Exh. 16.)
Along with reaching out to the Union, in May 2013,
McCallum applied for a front desk position at Peak Fitness, a
local gym. (Tr. 26–27, 29; GC Exh. 5.) In June 2013, he ap-
plied for a general shop position with Road Therapy, a motor-
cycle repair shop. (Tr. 35–36.) In August 2013, he applied for
a driver position at Promotion Physical Therapy. (Tr. 23, 119;
GC Exh. 6.) He sought for two truckdriver instructor jobs in
September 2013, one with 160 Driving Academy, for which he
had an interview but was not hired, and one with Joliet Junior
College—Premier Truck Driving School. (Tr. 21, 115–118; GC
Exh. 8.) In October 2013, he applied for another truckdriver
instructor position with Star Truck driving School in Oswego,
Illinois. (Tr. 21, 115.) He testified that in 2013, he also applied

14 Elsberry did speak with McCallum at least once a month, where
McCallum would ask him if there was work available. Elsberry testi-
fied that he was cautious to put McCallum on a job where he would end
up quitting to go back to work at Respondent. Indeed, Elsberry stated
that he “did not send Ed on a couple of jobs, because” he thought
McCallum was going back to work with Respondent as the Union had
won the grievance on McCallum’s behalf. Thus Elsberry was trying to
get McCallum some type of temporary job, assuming that McCallum
would be reinstated. (Tr. 126–127, 183–185.)
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD4
for a job that he saw on Craigslist with A&R Trucking, in
Channahon, Illinois, and for a job at Sun Cleaners. (Tr. 128–
129.) He also stopped off at a temporary employment agency
in Shorewood, Illinois, named Pro Staffing, to ask if they had
any positions available—however they did not hire him. (Tr.
38, 129.) Finally, regarding the job applications he document-
ed in his “Search for Work” forms, McCallum testified that he
made other job applications during August and September
2013, but he did not write them down on the form. (Tr. 116.)
2. Search for work in 2014
McCallum testified that his job search continued in 2014, us-
ing the same methods he previously used to look for employ-
ment: the internet; newspapers; posted advertisements; and
walking into businesses. (Tr. 39.) In 2014, McCallum applied
for jobs at Priority Staffing, Toys R Us, Renzenberger, Inc.,
Ecolab, Calhoun Trucking, A&R Trucking,15 and for USF Hol-
land.16 (Tr. 39–46; GC Exh. 9.) He also testified that there was
an unnamed employer whose job was posted on Craigslist that
he applied for, and he spoke with someone at the company
named “Nick.” (Tr. 43.) He also applied for three other posi-
tions he saw on Craigslist—one at Home Depot and two for
unnamed employers.17 (Tr. 43–45.) In June 2014, he also ap-
plied for work at Black Horse Carriers. He testified that he
applied for other employers in June and July 2014, but he did
not write them down. (Tr. 40, 104–105; GC Exh. 9.)
3. Search for work in 2015
According to McCallum, he continued his job search in
2015, using the same methods to search for work. (Tr. 48.)
However, McCallum testified that he could not remember any
of the employers that he applied for in 2015. (Tr. 48.) Eventu-
ally, McCallum got a job as a driver with Price Gregory,
through the Union. He started on May 28, 2015, transporting
laborers to and from their various jobsites. (Tr. 111–113, 183.)
4. Costs incurred while searching for work
McCallum testified that he travelled approximately 50 miles
while searching for work, and also had to pay $10 for records
from the Department of Motor Vehicles for his application to
160 Driving Academy. (Tr. 49, 132.)
After he was fired, he also incurred health insurance related
expenses. The Union allowed him to “self-pay” his health in-

15 McCallum testified that the A&R Trucking application in 2014
was separate than the application he made in 2013. This was in 2014
for a dispatcher. (Tr. 46, 107.)
16 Regarding his application at USF Holland, McCallum testified
that he drove to their facility and they gave him a piece of paper with a
web address to complete an application online. He then went to the
website and submitted the application. (Tr. 31–32, 35; GC Exh. 7.)
Although McCallum testified that he applied twice for jobs online at
USF Holland (Tr. 107), the evidence from the company shows that he
only submitted one application, on June 28, 2014. (R. Exh. 17.) I find
that McCallum was mistaken in his testimony about applying twice to
USF Holland, and that the credited evidence shows that he only applied
once, as shown by the company’s records.
17 One of the Craigslist jobs was with a local trucking company driv-
ing in rail yards; however they were looking for someone with rail yard
experience. McCallum could not remember the name of the company,
but spoke to somebody named “Bill.” (Tr. 130–131.)
surance, which cost him $625 per month. In total, McCallum
paid $2500 to self-pay his insurance through the end of 2013.
(Tr. 132, 150; GC Exh. 10–13.) McCallum also paid $61.89 to
express mail his insurance checks to the Union. (GC Exh. 10–
13.)
In January 2014 McCallum maintained his health insurance
through his wife’s employer; the monthly premium was $214
per month. (Tr. 55, 133.) Thus, through May 2015, McCallum
paid $3683 for health insurance through his wife’s insurance
plan.18 In total, the evidence shows that McCallum paid at total
of $6224.89 to maintain his health insurance during the back-
pay period.
C. Respondent’s Evidence of Job Availability During
the Backpay Period
Respondent presented evidence to show that, during the
backpay period, there were comparable employment opportuni-
ties in the relevant geographic area for McCallum.19 At the
hearing, Respondent called Derek Heider, dispatcher for “D
Construction,” as a witness to testify about jobs in the Chicago-
land area that were available with his company. D Construc-
tion is a road construction company located in Coal City, Illi-
nois, and its operations are at the same physical location as
Respondent. D Construction employs drivers with CDL licens-
es, and has a CBA with the Union; it was subject to the Union’s
CBA during the relevant time. During the backpay period, D
Construction hired 19 drivers who were members of the Union.
According to Heider, the company hires drivers by having peo-
ple come into the office and complete a job application. When
jobs are available, they go through the completed applications
on file. (Tr. 63–68; R. Exh. 1.)
Respondent also called David Allen Mashek, the director of
labor relations for Prairie Material, as a witness.20 Prairie Ma-
terial is signatory to two CBAs with the Teamsters, one with
the Union, and one with another local. During the years 2013–
2015, Prairie Material hired 477 CDL drivers.21 (R. Exh. 2–6;
Tr. 70–83.) To hire drivers, the company calls the union hiring
halls but they also advertise, because the various unions gener-
ally cannot supply the number of drivers needed by the compa-
ny. (Tr. 75.) Prairie Material has no record of McCallum ever

18 McCallum also testified that he had a higher deductible when he
switched to his wife’s insurance plan, going from a $300 deductible to
$350, and a higher out-of-pocket expense, going from $2000 to $4350.
(Tr. 59–60.) After that amount, everything was covered 100 percent.
(Tr. 59–60.) However, no evidence was introduced that McCallum met
these threshold amounts, and therefore incurred any increased out-of-
pocket expenses because of these higher levels.
19 See St. George Warehouse, 351 NLRB 961, 967 (2007) (when
“respondent raises a job search defense and satisfies its burden of com-
ing forward with evidence that there were substantially equivalent jobs
in the relevant geographic area available for the discriminatee during
the backpay period, the burden shifts to the General Counsel to produce
competent evidence of the reasonableness of the discriminatee’s job
search.”)
20 Prairie North America, which is located in a Chicago suburb, is
the local brand name for Votorantin North America. (Tr. 70–71.)
21 This number is for Prairie Material facilities in Illinois, Indiana,
and Wisconsin. (Tr. 85.) For the 218 drivers hired in 218, the compa-
ny had between 1600–1700 applicants. (Tr. 87.)
M.D. MILLER TRUCKING AND TOPSOIL, INC. 5
applying for a job with the company during the backpay period.
(Tr. 71.) Evidence was also presented about the hiring done by
USF Holland, another company that hires drivers in the area.
During the period of April 22, 2013, through June 1, 2015, the
company hired 592 drivers in Illinois.22
II. LEGAL STANDARD
“Longstanding remedial principles establish that backpay is
not available to a discriminatee who has failed to seek interim
employment and thus incurred a willful loss of earnings. St.
George Warehouse, 351 NLRB 961, 963 (2007) (citing Phelps
Dodge Corp. v. NLRB, 313 U.S. 177, 198 (1941); NLRB v.
Mastro Plastics Corp., 354 F.2d, 170, 175 (2d Cir. 1965)). A
claim that a discriminatee did not make reasonable efforts to
find interim employment, and thus failed to mitigate damages,
is an affirmative defense for which the employer bears the ul-
timate burden of proof. St. George Warehouse, 351 NLRB
961, 961 (2007). The Board has noted that “[t]he term ‘burden
of proof’ typically encompasses two separate burdens:” (1)
producing evidence, satisfactory to the trier of fact, of a particu-
lar fact at issue—referred to as the “burden of production;” and
(2) the burden of persuading the trier of fact that the alleged
fact is true—referred to as “the burden of persuasion.” Id at 963
(citing McCormick on Evidence, Section 336 (4th Ed. 1992)).
In St. George Warehouse, the Board set forth a burden-
shifting standard regarding the issue of mitigation, noting that
“[t]he contention that a discriminate has failed to make a rea-
sonable search for work generally has two elements: (1) there
were substantially equivalent jobs within the relevant geograph-
ic area,23 and (2) the discriminate unreasonably failed to apply
for these jobs.” 351 NLRB at 961. The respondent-employer
has the burden of going forward with evidence to show that
there were substantially equivalent jobs within the geographic
area. Id. If the respondent satisfies this burden, then “the bur-
den shifts to the General Counsel to produce competent evi-
dence of the reasonableness of the discriminatee’s job search.”
Id at 967. The General Counsel may meet this burden by pro-
ducing the discriminatee to testify as to his efforts at seeking
employment,” or by introducing other competent evidence
regarding the discriminatee’s job search.24 Id at 964.
Significantly, in St. George Warehouse, the Board “mod-
if[ied] the principles governing the issue of willful loss of earn-
ings in one respect only.” Id. at 964. “When a respondent
raises a job search defense to its backpay liability and produces
evidence that there were substantially equivalent jobs in the
relevant geographic area available for the discriminatee during
the backpay period . . . the General Counsel [has] the burden of

22 Of the 592 drivers hired, 502 were full-time drivers and 90 were
part time. (R. Exh. 17.)
23 This first element of the defense can be met by presenting suffi-
cient evidence of comparable employment opportunities in the relevant
job market. St. George Warehouse, 351 NLRB at 961.
24 Regarding a discriminatee’s job search, in trying to secure compa-
rable employment, a wrongfully-discharged “worker is not held to the
highest standard of diligence.” Atlantic Limousine, Inc. v. NLRB, 243
F.3d 711, 721 (3d Cir. 2001). Instead, “reasonable exertions” are suffi-
cient. Id. See also, Retail Delivery Systems, Inc., 292 NLRB 121, 125
(1988); Synergy Gas Corp., 302 NLRB 130, 131 (1991)
producing evidence concerning the discriminatee’s job search.”
Id. at 964. The Board did not make any changes to the ultimate
burden of persuasion on the issue of a discriminatee’s failure to
mitigate; “the burden remains on the respondent to prove that
the discriminatee did not mitigate his damages ‘by using rea-
sonable diligence in seeking alternate employment.’” Id at 964
(citing Mastro Plastics, 354 F.2d 170, 175 (2d Cir. 1965)
III. ANALYSIS
Respondent asserts that McCallum is entitled to no backpay,
because he failed to mitigate damages throughout the backpay
period. Applying the burden-shifting framework set forth in St.
George Warehouse, I find that the credible evidence shows
otherwise; Respondent has failed to satisfy its ultimate burden
of showing that McCallum failed to mitigate damages.
Respondent met its initial burden by presenting “evidence
that there were substantially equivalent jobs within the relevant
geographic area available for [McCallum] during the backpay
period.” St. George Warehouse, 351 NLRB at 964. The evi-
dence showed that at least three companies in the area hired
over 1000 drivers with CDL’s during the relevant period. As
such, the burden shifted to the General Counsel to produce
competent evidence showing the reasonableness of
McCallum’s job search. Id at 967. The General Counsel met
this burden.
Almost immediately after Respondent’s discrimination
against McCallum, he applied for, and was granted, unem-
ployment by the State of Illinois. Synergy Gas Corp., 302
NLRB 130, 131 (1991) (in making an adequate search for em-
ployment, discriminatee registered for unemployment and be-
gan speaking with counselor about available positions within a
few days of his termination). In Illinois, an individual can re-
ceive unemployment benefits only if he “was actively seeking
work for the period in question.” Moss v. Department of Em-
ployment Sec., 830 N.E.2d 663, 668 (2005) (citing 820 ILCS
405/500 (West 2002)). McCallum received unemployment for
2013, 2014, and 2015, thereby satisfying the job search re-
quirements set forth by the State of Illinois during these peri-
ods. “Board precedent establishes that ‘[t]he receipt of unem-
ployment compensation pursuant to the rules regarding eligibil-
ity constitute prima facie evidence of a reasonable search for
interim employment.’” NLRB v. KSM Industries, Inc., 682 F.3d
537, 548 (7th Cir. 2012) (quoting Taylor Machine Products,
338 NLRB 831, 832 (2003)).
McCallum testified that he applied for work every 2 weeks,
and found out about potential jobs through local newspapers,
driving by advertisements, cold-calling potential employers,
and by using internet sites like monster.com and Craigslist.25
For 2013, the evidence shows that McCallum sought employ-
ment from: Pro Motion Physical Therapy; Premier Truck Driv-
ing School—Joliet Jr. College; 160 Driving Academy; Star

25 In determining the reasonableness of McCallum’s job search, I do
not rely on the General Counsel’s argument that McCallum utilized the
Union’s hiring hall and that he was placed on the Union’s out-of-work
referral list. GC Br. at 4. The evidence showed that McCallum did not
follow the Union’s referral list requirements, and that he never com-
pleted paperwork to register for the referral list. Moreover,
McCallum’s name did not appear anywhere on the Union’s referral list.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD6
Truck Driving School; Peak Fitness; Road Therapy; A&R
Trucking; Sun Cleaners; and Pro Staffing. For 2014,
McCallum inquired about work at: Black Horse Carriers; USF
Holland; Toys R Us; Renzenberger, Inc.; EcoLab; Calhoon
Trucking; Priority Staffing; Home Depot; A&R Trucking; two
unknown employers he found on Craigslist; and another un-
known employer where he spoke to someone named “Nick.”
McCallum could not remember any of the employers that he
applied for in 2015, but testified that he used the same methods
to search for work as he did in 2013 and 2014.26 During the
relevant period, McCallum also testified that, at various times
during the backpay period, he made other job applications but
did not write them down and could not remember all the appli-
cations he made during that time.
It appears that McCallum’s situation here is similar to one of
the individuals in United States Can Co., 328 NLRB 334, 344
(1999), where the employer claimed that one of the workers did
not mitigate damages because his search-for-work form showed
only five to seven contacts per quarter in 1 year, and none for 2
consecutive years thereafter. However, the employee had cred-
ibly explained that his search-for-work form did not include all
the job contacts he made during the backpay period. The Board
affirmed the trial judge who noted that “given that he collected
state unemployment benefits for at least 6-months following his
layoff, it is reasonable to assume [the discriminatee] would
have made at least three job contacts per week, as was required
by the State of Illinois.” Id. Moreover, the fact the discrimi-
natee was unable to recall more names of employers to include
in his search forms “is neither unusual nor suspicious, and in-
deed readily understandable, and does not automatically dis-
qualify him from receiving backpay.” Id. The Seventh Circuit
enforced the Board’s decision. United Can Co. v. NLRB, 254
F.3d 626 (7th Cir. 2001)
The same holds true here. McCallum credibly explained that
his search for work forms did not include all the job contacts he
made during the backpay period, and his lapse of memory is
“neither unusual nor suspicious, and indeed readily understand-
able.” United States Can Co., 328 NLRB at 444. Moreover,
his receipt of unemployment benefits throughout the backpay
period is prima facie evidence of a reasonable search for inter-
im employment.” NLRB v. KSM Industries, Inc., 682 F.3d 537,
548 (7th Cir. 2012). As such, I find that the General Counsel
has produced competent evidence showing the reasonableness
of McCallum’s job search. The Respondent has not met its
ultimate burden to prove “that the discriminatee did not miti-
gate his damages by using reasonable diligence in seeking al-
ternate employment.” St. George Warehouse, 351 NLRB at
964. Accordingly, I find that Respondent owes McCallum

26 The fact McCallum could not recall any specific employers for
2015 is a more concerning than his memory lapses for the earlier years;
in 2013 and 2014 there also existed documentary evidence regarding
his job search. However, McCallum did ultimately gain employment in
May 2015, which supports a finding that he was actively seeking em-
ployment during that time. Moreover, it is not disputed that McCallum
received unemployment insurance payments from the State of Illinois
during 2015, for approximately 11 weeks, which is “prima facie evi-
dence of a reasonable search for interim employment.” KSM Indus-
tries, Inc., 682 F.3d at 548.
$145,714 in net backpay, plus interest, as set forth in the Speci-
fication.27
The General Counsel also seeks reimbursement for
McCallum’s health insurance premiums, over and above what
he would have paid had he been working at Respondent, during
the backpay period. The Board customarily includes reim-
bursement of substitute health insurance premiums in make-
whole remedies. Seaport Printing & Ad Specialties, Inc., 2011
WL 3663398, at *3 (August 18, 2011) (unpublished order).
The evidence shows that it cost McCallum a total of $6224.89
to maintain his health insurance during the backpay period.28
As such, I find that Respondent also owes McCallum $6224.89
for health insurance replacement costs.
The General Counsel further seeks reimbursement for mile-
age expenses of $28, and $10 in expenses for records obtained
from the Department of Motor Vehicles. The evidence intro-
duced at hearing supports these expenses. McCallum testified
that he drove about 50 miles while searching for work, and
needed the driving records, which cost $10, for his job applica-
tion at 160 Driving Academy. Thus, I find that Respondent
also owes McCallum $38 for his search for work expenses.
Finally, the Board granted summary judgment as to the pen-
sion fund payments and excess tax assessments in the Specifi-
cation. M.D. Miller Trucking & Topsoil, Inc., 363 NLRB No.
49 (2015), slip. op. at 3. Therefore, Respondent also owes
McCallum $7984 in excess tax assessments, and $15,876 in
pension fund contributions.
Accordingly, based on the above findings and the record as a
whole, I issue the following supplemental
ORDER
The Respondent, M.D. Miller Trucking & Topsoil, Inc.,
Rockdale, Illinois, its officers, agents, successors, and assigns,
shall make whole Edward McCallum as follows:
1. Pay to McCallum the following amounts:
Net backpay: $145,714.00
Health insurance expenses: $6,224.98
Search for work expenses: $38.00
plus interest computed and compounded daily as prescribed in
New Horizons, 283 NLRB 1173 (1987), and Kentucky River
Medical Center, 356 NLRB 6 (2010), accrued to the date of

27 I note that adding the “Net” backpay column in “Table A” of the
Specification shows that the total “Net” backpay is $145,713, not
$145,714 as stated in the Specification. However, the $1 error is due to
the quarterly “Net” backpay numbers being rounded to the nearest
dollar. Absent the rounding of the quarterly backpay numbers, the total
net backpay is $145,714.
28 “Table A” of the Specification states that McCallum incurred
$8,588 in medical expenses. However, the evidence introduced at
hearing only shows expenses of $6,224.89. While McCallum testified
that deductibles and out-of-pocket thresholds increased with his post-
discrimination insurance plans, no evidence was introduced that he
actually had to pay any deductibles, or any out-of-pocket expenses
whatsoever.
M.D. MILLER TRUCKING AND TOPSOIL, INC. 7
payment, minus tax withholdings required by Federal and
State law;
2. Pay McCallum $7,984.00 for the adverse tax consequences
of the multiyear lump sum backpay award, as prescribed in
Don Chavas, LLC d/b/a Tortillas Don Chavas, 361 NLRB
No. 10 (2014); and
3. Pay the Local 179 Pension Fund the amount of $15,876.00
on behalf of McCallum plus any applicable interest and/or
penalties.
Dated, Washington, D.C. November 4, 2016