P*I*E Nationwide

National Labor Relations Board - Board Decisions

Dec 20, 1989

297 N.L.R.B. 454 (N.L.R.B. 1989)

454 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
P*I*E Nationwide and Patrick N. Clement. Case
30-CA-8074
December 20, 1989
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
CRACRAFT AND DEVANEY
On September 30, 1988, Administrative Law
Judge Donald R Holley issued the attached sup-
plemental decision The General Counsel and the
Charging Party filed exceptions and supporting
briefs, the Respondent filed cross-exceptions and a
supporting brief, and the Respondent and the Gen-_ eral Counsel filed answering briefs
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, and
conclusions as modified, and to issue the Order as
set forth below
The judge recommended that the gross backpay
owed to discnminatee Patnck Clement be offset
beginning July 11, 1985, by the $407 per week that
he would have earned if he had not been dis-
charged by interim employer Aurora Fast Freight
We find merit in the General Counsel's and the
Charging Party's exceptions to the judge's conclu-
sion that the Aurora discharge constituted a willful
loss of earnings justifying a continuing offset from
Clement's gross backpay
After a period of unemployment, Clement was
hired by Aurora as a driver on March 29, 1985 A
few months later, on July 11, Aurora's president
discharged Clement by letter, which stated as fol-
lows
On July 10, 1985, you were instructed to
return to Milwaukee with Tractor Number 3
You refused to take that tractor and proceeded
to take a tractor that you knew had mechani-
cal problems On the trip back to Milwaukee
you broke down for five hours If you had re-
turned with the tractor you were instructed to
take we would not have had the cost of the
breakdown as well as the delay of the freight
We cannot afford to have people not doing
what they are instructed to do You are
hereby discharged effective July 11, 1985
As the judge more fully details, Clement actively
sought reemployment and subsequently worked for
three employers for various periods of time until he
was reinstated by the Respondent on July 9, 1987
The only evidence concerning Clement's dis-
charge from Aurora consists of the letter quoted
above No witness from Aurora was called to testi-
297 NLRB No 66
fy, and Clement's testimony on the issue was limit-
ed to an acknowledgment that Aurora discharged
him and that he received the letter setting forth
Aurora's allegations in support of the termination
Clement was not asked to provide his own account
of the incident in question
The judge concluded that the Respondent, by in-
troducing the letter in evidence, had established
that Clement was discharged for insubordinate con-
duct The judge held that Clement's termination
constituted a willful loss of earnings Relying on
Knickerbocker Plastic Co 1 and KSLM-AM & KSD-
FM, 2 the judge found that Clement's projected
earnings at Aurora should be offset against gross
backpay throughout the remaining backpay period
unless, on a quarterly basis, Clement earned more
than he would have earned if he had retained his
job at Aurora The judge therefore applied a quar-
terly offset of $5291 (Clement's Aurora wages) to
the gross backpay owed by the Respondent The
Aurora offset reduced Clement's total backpay
figure from $102,117 46 to $77,959 72, plus interest
We are not convinced that Clement's termination
can reasonably be equated with willful loss of earn-
ings, given the particular circumstances before us
Knickerbocker and KSLM-AM, supra, involved
claimants who voluntarily quit their interim em-
ployment for personal reasons unrelated to secur-
ing other employment or to alleged difficulties
with the interim job that might reasonably be con-
sidered justifiable cause for quitting By contrast,
there is no evidence that Clement engaged in mis-
conduct at Aurora that could reasonably be con-
strued as a willful loss of earnings
The Board has consistently held that discharge
from interim employment, without more, is insuffi-
cient to constitute willful loss of employment war-
ranting an earnings offset subsequent to the termi-
nation date 3 Although we recognize that dis-
charge for cause from interim employment may
under some circumstances mitigate an employer's
backpay obligation, 4 we find that the evidence in
the present case—a letter that constitutes hearsay
as to the truth of matters alleged in it—falls well
short of establishing that Clement engaged in delib-
erate or gross misconduct constituting willful loss
of earnings, and that reduction of the Respondent's
backpay liability because of Clement's discharge
from Aurora is therefore unjustified 5
1 132 NLRB 1209 (1961)
2 275 NLRB 1342 (1985)
'Sylvan Manor Health Care Center, 270 NLRB 72, 75 (1984), Mid-
America Machinery Co. 258 NLRB 316, 319 (1981), affd 718 F 2d 1104
(7th Cif 1983)
4 Newport News Shipbuilding, 278 NLRB 1030 at fn 1(1986)
5 See Mid-America Machinery Co, supra at 319 (business records stating
cause of discharge found insufficient evidence to show employee had not
exercised due diligence to retain his employment with interim employer)
P*I*E NATIONWIDE 455
It is true, as our dissenting colleague points out,
that unobjected-to hearsay evidence can be admit-
ted into evidence and "give[n] such weight as its
inherent quality justifies" Alvin J Bart & Go, 236
NLRB 242 (1978), quoted in Grace Fashions, 283
NLRB 842, 845 (1987), enfd mem 841 F 2d 1119
(3d Cir 1988), on which the dissent relies But, we
cannot, as he appears to conclude, find that the
hearsay evidence in this case possesses "inherent
quality" and is entitled to substantial probative
weight On the contrary, we accord little weight to
the letter of discharge and find that it alone is far
from sufficient to satisfy the Respondent's burden
of proving .that Clement incurred a willful loss of
earnings
In this regard, we find that the hearsay evidence
in this case is unlike that considered in Bart and
Grace In Bart, the Board found that the judge
properly relied on two sworn statements given by
an individual to a Board agent to the extent they
contradicted his testimony at the hearing The
statements discussed in Bart were of such high evi-
dentiary value that the Board stated that they were
arguably not even hearsay, as they were given
under oath and the declarant was subject to cross-
examination at the hearing concerning them Simi-
larly, in Grace, the judge found, with Board ap-
proval, that certain testimony of a witness was not
hearsay because the testimony concerned state-
ments made to the witness' agent Alternatively, if
hearsay, the testimony in Grace was found to be
entitled to probative weight Here, in contrast, the
statements in the letter of discharge were not made
under oath, the declarant did not appear at the
hearing and thus was not subject to cross-examina-
tion, and the statements were not made to an agent
of a witness Nor do the allegations in the letter of
discharge contain any other circumstantial indica-
tion of trustworthiness Rather, the Aurora letter of
discharge is nothing more than what it appears to
be, namely, an interim employer's self-serving and
unexamined assertions as to why it discharged
Clement The Board has found a respondent's hear-
say evidence insufficient to prove its affirmative
defense of a discharge for cause, Jennings & Webb,
Inc , 288 NLRB 682 fn 3 (1988), enfd mem 875
F 2d 315 (4th Cir 1989), and we see no reason to
reach a different result in considering the hearsay
evidence the Respondent offered in support of its
affirmative defense in the instant case After all, the
Respondent's burden here was to establish "facts
which would mitigate [its] liability," NLRB v
Brown & Root, 311 F 2d 447, 454 (8th Cir 1963)
(emphasis added), not mere assertions
Accordingly, our Order restores $24,157 74 that
the judge incorrectly offset from Clement's back-
pay, a recalculation that produces a total backpay
figure of $102,117 46
ORDER
The National Labor Relations Board orders that
the Respondent, P*I*E Nationwide, Franklin, Wis-
consin, its officers, agents, successors, and assigns,
shall pay to Patrick Clement the sum of
$102,117 46, plus interest computed in the manner
prescribed in New Horizons for the Retarded, 6 less
tax withholding required by Federal and state law,
and by paying the Teamsters Central States Pen-
sion Fund the sum of $11,603
MEMBER DEVANEY, dissenting in part
I join my colleagues in all respects except that I
agree with the judge that Clement's discharge from
interim employer Aurora Fast Freight constituted a
willful loss of earnings Clement's July 11, 1985
letter of discharge from Aurora stated, in sub-
stance, that Clement refused to take tractor number
3 and instead took another tractor that he knew
had mechanical problems, thereby incurring the
cost of a breakdown and delaying the delivery of
freight The Respondent's introduction of this letter
established a prima facie case—which was not re-
butted by the General Counsel—that Clement was
discharged from Aurora for insubordination 1 In
6 283 NLRB 1173 (1987)
'Although my colleagues emphasize the hearsay nature of the letter,
the letter was introduced into evidence at the hearing without objection,
and thus the judge was entitled to give it whatever probative weight It
deserved Cf Grace Fashions, 283 NLRB 842, 845 (1987), enfd mem 841
F 2d 1119 (3d Cif 1988) In this regard, I note that during cross-examina-
tion Clement did not dispute the facts set forth in the letter
Clement s letter of discharge is more probative than the hearsay evi-
dence found to be of little weight in Mid-America Machinery Go, 258
NLRB 316, 319 (1981), and Jennings & Webb Inc , 288 NLRB 862 fn 3
(1988), enfd mem 875 F 2d 315 (4th Or 1989), cited by the majority In
Mid-America Machinery, the respondent sought to prove a willful loss of
interim employment by offering into evidence warning notices and a ter
mination record from the interim employer stating as reasons for Swag-
gerty's discharge, absenteeism, poor quality of work and bad attitude"
and Drunk and Disorderly' In finding that the respondent did not meet
its burden of proof, the judge relied on the facts that there was no testi-
mony as to whether the conclusionary statements' listed on the forms
were true, and that Swaggerty denied that he had been drinking In Jen-
nings & Webb, the Board rejected the respondent srdefense that Armen-
trout was discharged for cause on the grounds that the respondent's testi-
mony regarding the discharge was hearsay, the respondent never con
fronted Armentrout with these allegations, and the respondent never of-
fered any specifics in support of its assertion Additionally, as found by
the judge, the respondent presented conflicting testimony as to the rea-
sons for the discharge, and Armentrout denied that he had been drinking
288 NLRB at 687
In contrast to the conclusory statements in Mid-America Machinery and
Jennings & Webb, above, Clement's letter of discharge is specific as to
time, place, and conduct Further, Clement acknowledged receipt of the
letter Unlike the situation in Mid-America Machinery, Clement, unlike
discnininatee Swaggerty there, did not deny the statements in the letter
Under the circumstances, including Clement s failure to dispute the facts
set forth, I find that the letter is sufficient to establish that Clement was
discharged for insubordination from Aurora
456 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
my view, a discharge for insubordination consti-
tutes gross misconduct, and is a basis for reducing
backpay Cf Newport News Shipbuilding, 278
NLRB 1030 fn 1 (1986)
My colleagues distinguish Knickerbocker Plastic
Co, 132 NLRB 1209, 1215 (1961), relied on by the
judge, as involving claimants who voluntarily quit
their interim employment However, from a policy
perspective, the offset formula set forth in Knicker-
bocker Plastic is equally applicable to a claimant
such as Clement, who has been discharged for
gross misconduct from interim employment It is
well settled that discnmmatees must make reasona-
ble efforts to mitigate backpay liability by seeking
suitable interim employment Associated Grocers,
295 NLRB 806, 810 (1989) (citing NLRB v Arduinz
Mfg Corp, 394 F 2d 420, 423 (1st Cir 1968)) In
order to give effect to this requirement, I believe
that a discnmmatee must exercise reasonable dili-
gence in retaining substantially equivalent interim
employment by acting reasonably and responsibly
in accordance with employer rules and instructions
This principle is based on the premise that to re-
quire a respondent to pay for the misconduct of a
discnminatee in subsequent employment would not
be consistent with the make-whole objective of the
backpay remedy Brady v Thurston Motor Lines,
753 F 2d 1269, 1277 (4th Cir 1985) 2 I would
therefore apply the offset formula of Knickerbocker
Plastic, above, in cases involving willful losses of
interim employment, including both unjustified vol-
untary resignations and discharges for gross mis-
conduct See Brady v Thurston, above at 1279 3
Accordingly, in this case I would apply the offset
formula after Clement's discharge from Aurora,
and I dissent from my colleagues' failure to do so
here 4
2 Brady v Thurston was a backpay proceeding involving claimants who
were unlawfully discharged under Title VII of the Civil Rights Act of
1964, 42 U S C § 2000e et seq The court held, Inter aim, that the action
of the claimants in violating their interim employers' rules to the extent
that they were justifiably discharged amounted to a lack of reasonable
diligence in maintaining interim employment that warranted the tolling of
the backpay period 753 F 2d at 1279
Significantly, in discussing the award of backpay in Title VII cases, the
court noted, citing Albermark Paper Co v Moody, 422 U S 405, 419
(1975), that the backpay provisions of Title VII were expressly modeled
on the backpay provisions of the National Labor Relations Act, each of
which was designed to fulfill the make whole" purpose of their respec-
tive acts 753 F 2d at 1273
3 See Associated Grocers, above, at 806 2 fn 1, in which the Board ap-
plied the offset formula set forth in Knickerbocker Plastic, above, to discn-
mmatee Anderson, who was discharged from interim employment with
the respondent
4 Because my position that Clement Incurred a willful loss of earnings
is not the majority view, I find It unnecessary to pass on the General
Counsel's alternate contention of whether, under Knickerbocker Plastic,
above, the offset of Clement's projected earnings from Aurora should
continue after Clement quit his job at Dewey Freight System, Inc
Joyce Ann Sieser, Esq , for the General Counsel
Peter Reed Corbin, Esq (Corbin & Dickinson), of Jackson-
ville, Florida, for the Respondent
Jeff Myer, Esq (Dedarvalho & Myer), of Milwaukee, Wis-
consin, for the Charging Party
SUPPLEMENTAL DECISION
DONALD R HOLLEY, Administrative Law Judge On
February 5, 1987, the National Labor Relations Board
issued its Decision and Order in this case (282 NLRB
1060) adopting the recommended order of the adminis-
trative law judge which required, inter aim, that P*I*E
Nationwide, Inc (Respondent) make whole Patrick N
Clement for any loss of earnings and benefits that he
may have suffered as a result of his unlawful termination
on October 9, 1983
On December 22, 1987, the Acting Regional Director
for Region 30 issued a backpay specification alleging that
certain amounts of net backpay were due to the named
discnmmatee Thereafter, Respondent filed an answer to
the backpay specification which contained general deni-
als of numbered paragraphs of the backpay specification
and several affirmative defenses
A hearing was held in this backpay proceeding in Mil-
waukee, Wisconsin, on April 21, 1988 At the com-
mencement of the hearing, General Counsel amended the
backpay specification to allege that Respondent owed
$11,630, plus interest accrued to date of payment, to the
Central States Pension Fund as set forth in Appendix
(A)(1) to the backpay specification 1
On the entire record, my observation of the demeanor
of the witnesses who appeared to give testimony, and
after consideration of the postheanng briefs filed by the
parties, I make the following
I ISSUES
The main issues to be resolved are
A Whether the formula utilized by General Counsel is
reasonable
B Whether Clement exercised due diligence in seeking
and retaining interim employment
C Whether Clement should be deemed to have been a
participant in Respondent's employee stock investment
plan during the period October 1985 through July 8,
1987
II THE FORMULA
General Counsel computed the gross backpay due dm-
cnminatee Clement by utilizing the earnings of Respond-
ent driver R Eaton during the backpay period Eaton
was the driver immediately below Clement in seniority
Respondent agrees the formula should be based on the
earnings of a representative employee or a group of em-
ployees In its answer to the backpay specification it al-
leged that if the earnings of a single employee are to be
utilized, the representative employee should be J
Krause, the driver directly above Clement in order of se-
niority It pleaded, in the alternative, that an unspecified
I See 0 C Exh 2
P*I*E NATIONWIDE 457
group of its drivers should be used to obtain an estimate
of the earnings Clement may have experienced during
the backpay period
The Region's compliance supervisor, Cecil Sutphen,
testified the only information supplied by Respondent to
the Region during the compliance interrogation was a
verbal assertion that employee R Eaton earned $133,052
during the backpay period and driver J Krause earned
$95,247 during the same period Sutphen testified Re-
spondent failed to produce any payroll records which
would reveal the earnings of other employees during the
backpay period Sutphen further indicated that the earn-
ings of employee R Eaton, rather than those of employ-
ee J Krause, were used to compute the gross backpay
due Clement because discrimmatee Clement and his legal
counsel, Jeff Myer, informed him that information re-
layed from active Respondent drivers indicated driver J
Krause was not conscientious about taking runs, and he
had a history of absenteeism
Discussion and Analysis
It is well settled that the finding of an unfair labor
practice is presumptive proof that some backpay is owed,
NLRB v Mastro Plastics Corp, 354 F 2d 170, 178 (2d Or
1965), cert denied 384 U S 972 (1966), and that in a
backpay proceeding the sole burden on the General
Counsel is to show the gross amounts of backpay due—
the amount the employees would have received but for
the employer's illegal conduct Virginia Electric Co v
NLRB, 319 U S 533, 544 (1984) Once that is estab-
lished, "the burden is upon the employer to establish
facts that would mitigate that liability" NLRB v Brown
& Root, 311 F 2d 447, 454 (8th Cir 1963) Any formula
which approximates what discnminatees would have
earned had they not been discriminated against is accept-
able if it is not unreasonable or arbitrary in the circum-
stances Finally, it is well established that any uncertain-
ty in the evidence is to be resolved against a respondent
as wrongdoer Miami Coca-Cola Bottling Co, 360 F 2d
569, 576 (5th Cir 1966), Southern Household Products,
203 NLRB 881 (1973)
Respondent contends, in effect, that General Counsel's
selection of R Eaton as a representative employee,
rather than J Krause or a group of its drivers, was un-
reasonable and unwarranted I reject the contention for
several reasons
Inspection of the pleadings in this case reveals that
while Respondent contends Krause or a group of its
driver should be utilized to approximate the gross back-
pay due Clement, Respondent failed when answering the
backpay specification to set forth in detail its position
"furnishing the appropriate supporting figures" as re-
quired by Section 102 54(b) of the Board's Rules and
Regulations 2 Moreover, the record reveals that while a
2 Sec 102 54(b) of the Board's Rules and Regulations provides, in rele-
vant part
As to all matters within the knowledge of the respondent, including
but not limited to the various factors entering into the computation
of gross backpay, a general denial shall not suffice As to such mat-
ters, if the respondent disputes either the accuracy of the figures in
the specification or the premises on which they are based, he shall
specifically state the basis for his disagreement, setting forth in detail
Respondent representative orally advised the Regional
Office that R Eaton and J Krause earned certain sums
during the backpay period, Respondent failed to provide
General Counsel with any payroll records during the
compliance investigation or during the hearing which
was held in this proceeding In the circumstances de-
scribed, General Counsel's choice of R Eaton as a repre-
sentative employee certainly appears to have been rea-
sonable
Assuming, arguendo, Respondent's failure to plead
with the requisite specificity and its failure to produce
payroll records did not preclude it from contending that
Krause rather than Eaton- should have been the repre-
sentative employee whose earnings were utilized to
arrive at the gross backpay due Clement, 3 I note the
record fails to reveal the precise amount of earnings ex-
perienced by employee Krause during the backpay
period Thus, the record reveals that in October 1985,
Respondent instituted an employee stock option plan
which was, in essence, a plan which contemplated that
participating employees would accept a reduction in
their wages and accept Respondent common stock in
return It is uncontroverted that employee Krause par-
ticipated in the described plan, but the record fails to
reveal the extent of his participation Indeed, while Re-
spondent witness Larry Scarbrough testified wages fore-
gone by Krause due to his participation in the stock
option plan were not included in the Krause earnings in-
formation supplied to the Regional Office, the witness
appeared to be uncertain with respect to whether the
amount was included or had been deducted from the
monetary figure supplied Significantly, it is uncontro-
verted that Eaton did not participate in the stock option
plan, and the record reveals Clement chose not to par-
ticipate in it when he was reinstated by Respondent, thus
ending his backpay period
In sum, the record reveals Respondent admitted that
driver R Eaton earned $133,052 during the backpay
period, and it is clear that Eaton was the employee im-
mediately below Clement on Respondent's seniority list
As the record fails to reveal the earnings of Krause or
any other driver during the backpay period, General
Counsel justifiably used Eaton as a representative em-
ployee when attempting to estimate Clement's probable
earnings during the backpay period Accordingly, I find
General Counsel acted reasonably in the circumstances,
and I conclude the formula utilized to compute the gross
backpay due Clement was reasonable and proper
III THE DISCRIMINATEE'S WORK HISTORY AND JOB
SEARCH EFFORTS
After he was terminated by Respondent on October
19, 1983, Clement was unemployed until he obtained em-
ployment with Barry Ernst Trucking the first week of
April 1984 During his initial period of unemployment,
he registered for unemployment benefits with the State
of Wisconsin and began receiving benefits on or about
his position as to the applicable premises and furnishing the appropri-
ate supporting figures
3 Obviously an unnamed group of drivers could not have been used as
neither their names nor their earnings were provided
458 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
November 12, 1983 The discnminatee testified he was
required to satisfy the state agency he was seeking work
each week to qualify for benefits, and he received bene-
fits until he was hired by Barry Ernst Trucking Addi-
tionally, the employee indicated he had retained newspa-
per ads for drivers he had responded to, and that he had
noted job search efforts on a calendar and in notes which
were furnished to the Regional Office during the compli-
ance investigation Those documents treating the years
1983 and 1984 were placed in the record as General
Counsel's Exhibits 8, 9, and 10 Summarized, they reveal
that Clement began his search for employment by re-
sponding to 12 ads for truckdnvers which appeared in
the Milwaukee Journal in November 1983, and that
during the period extending from November 1983 to
early April 1984, the discnminatee sought employment
by contacting approximately 40 companies
On May 29 or 30, 1984, Clement's employment with
Barry Ernst Trucking was terminated The employee in-
dicated he was fired by Barry Ernst because he failed,
after delivering a crane to Texas, to pick up a return
load in Louisiana before returning to Milwaukee Clem-
ent explained that he had been dispatched to Texas im-
mediately prior to a holiday weekend and was scheduled
to return before the weekend, but he was delayed a day
in arriving at the Texas location because the old truck he
was driving broke down According to Clement, the
breakdown prevented him from picking up the Louisiana
load before workmen there left for the 3-day weekend,
and he telephoned his wife before deciding whether he
would remain in the South over the weekend He claims
his wife informed him he had received a letter from the
Board attorney scheduled to try the underlying unfair
labor practice case, and that attorney desired to meet
with him the day before the scheduled trial to discuss the
case with him 4 Clement claimed he had to choose be-
tween meeting with the attorney or picking up the Lou-
isiana load after the holiday weekend, and he chose to
return to Milwaukee without the return load The discn-
minatee admitted his conduct gave Ernst cause to dis-
charge him
After he was terminated by Barry Ernst Trucking,
Clement was unemployed until he was employed by
Yellow Freight System, Inc in July 1984 While he was
unemployed during the month of June, he responded to
approximately 30 newspaper ads for truckdnvers 5 After
approximately a month, Clement was terminated during
his probationary period by Yellow Freight He obtained
employment shortly thereafter with Manpower Tempo-
rary Services, where he remained until October 1984
From October 1984 until March 1985, the discrimmatee
was unemployed During that period he satisfied the
State of Wisconsin he was seeking work and was award-
ed unemployment benefits The record reveals he re-
sponded to numerous newspaper ads for drivers during
the period, and the 1985 calendar he maintained reveals
4 Clement was the Charging Party in the underlying unfair labor prac-
tice case The original hearing was scheduled to begin May 31, 1984 The
decision in the case reveals Clement, the Company, and the Union en-
tered a settlement agreement on May 31, 1984, whereby it was agreed the
case would be submitted to arbitration (282 NLRB at 1062)
a See G C Exh 10
he contacted approximately 40 employers concerning
employment before he commenced work for Aurora Fast
Freight on March 29, 1985
On July 11, 1985, Clement was terminated by Aurora
(Hartmann Freight Lines) The body of the letter of ter-
mination, which was signed by the president of the cor-
poration, is as follows 6
On July 10, 1985, you were instructed to return
to Milwaukee with Tractor Number 3 You refused
to take that tractor and proceeded to take a tractor
that you knew had mechanical problems On the
trip back to Milwaukee you broke down for five
hours If you had returned with the tractor you
were instructed to take we would not have had the
cost of the breakdown as well as the delay of the
freight
We cannot afford to have people not doing what
they are instructed to do You are hereby dis-
charged effective July 11, 1985
During the period extending from July 11 to Novem-
ber 6, 1985, Clement was unemployed The record re-
veals the discnminatee responded to in excess of 25 ads
for drivers during the period, and his 1985 calendar re-
veals he contacted approximately 17 companies, some on
several occasions, seeking employment during the same
timespan
On November 6, 1985, Clement was employed by Alu-
minum Industries as a driver He severed his employ-
ment with that company on December 7, 1985, to accept
a better paying job with Dewey Freight System, Inc
Clement testified his job with Dewey involved moving
mail from Milwaukee, Wisconsin, to Williamsburg, Iowa,
and returning mail from Iowa to Milwaukee The run
was 582 miles round trip and was made 5 days a week,
except during the Christmas season when it was run 7
days a week Clement indicated he spent approximately
11 hours making the run The discnminatee testified a
Dewey Freight supervisor instructed him to cease indi-
cating the mileage if the run he was making was 582
miles on January 14, 1986, because a truckdnver could
not drive that many miles without a stopover 7 Clement
testified he quit his job with Dewey on August 23, 1986,
because making the trip continuously subjected him to so
much stress and fatigue that he did not feel he could
safely continue to drive the trip
Clement was unemployed from August 23, 1986, until
he was reinstated by Respondent on July 9, 1987 The
record reveals he sought continuously during the penod
described to obtain a position with the United States
Postal Service Thus, the record reflects that he took ex-
aminations for the following positions on the dates indi-
cated maintenance helper-9/24/86, building equipment
handler-1/21/87, and maintenance electrician-1/26/87
He filed applications for the postal positions several
6 See R Exh 6 Clement did not dispute the facts set forth in this
letter
7 The employee indicated DOT regulations permit maximum continu-
ous driving time of only 10 hours and observance of a 55 mile per hour
speed limit would result in less than 500 miles of driving in the allotted
time
P*I*E NATIONWIDE 459
weeks in advance of the exams and filed a supplemental
application on August 8, 1987 Additionally, the discn-
minatee indicated he contacted the employers listed in
General Counsel's Exhibits 13 and 14 for the purpose of
seeking work during the period under discussion Those
documents reveal that after Clement took the Postal
Service test for mechanic helpers on September 24, he
documented no search for employment in October 1986,
but listed approximately 70 employees he contacted for
the purpose of seeking employment between November
1986 and the end of June 1987
Discussion and Conclusions
'
A The Search for Employment
Here, Respondent sought, in main, by cross-examining
Clement, to show that the discnmmatee did not exercise
reasonable diligence in his search for interim employ-
ment during his backpay period The applicable standard
is one of reasonable diligence, not the highest diligence
Arlington Hotel Co, 287 NLRB 851 (1987) The burden
on the discharged employee is not onerous, and does not
mandate that the discnmmatee be successful in mitigating
damages NLRB v Master Slack, 773 F 2d 77, 84 (6th
Cir 1985) In determining the reasonableness of the
effort, the discrimmatee's skills, experience, qualifica-
tions, age, and labor conditions in the area are factors to
be considered Chem Fab Corp, 275 NLRB 21 (1985),
Laredo Packing Co, 271 NLRB 553 (1983) In determin-
ing whether an individual claimant made a reasonable
search, the test is whether the record as a whole estab-
lishes that the employee had efficaciously sought other
employment during the entire backpay period Saginaw
Aggregates, 198 NLRB 598 (1972), Nicky Chevrolet Sales,
195 NLRB 395, 398-399 (1972)
During his testimony, Clement claimed that he con-
tacted approximately 2000 companies when seeking in-
terim employment during his backpay period As indicat-
ed, supra, he documented a very large number of those
contacts Examination of the discnminatee's records es-
tablishes that he had a number of applications for em-
ployment pending at all times, and that his search for
employment during periods of unemployment was con-
tinuous Significantly, many of the employee's job search
efforts produced employment for him during the back-
pay period I am satisfied, and find, that the record as a
whole establishes that Clement efficaciously sought other
employment during the entire backpay period
B Willful Loss of Earnings
Respondent contends in its brief that Clement incurred
willful loss of earnings by engaging in the conduct which
led to his termination by Barry Ernst Trucking and
Aurora Fast Freight, and by quitting his employment at
Dewey Freight Systems, Inc
The Board has long held that if an employee obtains
substantially equivalent interim employment, he or she
must prudently retain such employment or run the risk
of having excluded from gross backpay the amount that
would have been earned had such job been retained
Knickerbocker Plastic Co, 132 NLRB 1209, 1212-1216
(1961), Gary Aircraft Corp, 211 NLRB 554, 557 (1974),
Florida Steel Corp, 234 NLRB 1089, 1091-1092 (1978)
The employer has the duty to establish willful loss of
earnings and any uncertainty is resolved against the em-
ployer Big Three Industrial Gas, 263 NLRB 1189, 1197
(1982), NLRB v Miami Coca-Cola Bottling Co, 360 F 2d
569 (5th Cir 1966)
Here, Respondent first claims that by failing to return
to Milwaukee by way of Louisiana, where he was to
pick up a return load, Clement willfully subjected him-
self to discharge by Barry Ernst Trucking It is clear that
the discnminatee incurred willful loss of earnings
through the above-described conduct if the Ernst Truck-
ing job was substantially equivalent to the position he
held at Respondent and he, in effect, quit foi personal
reasons On the other hand, if the employee subjected
himself to discharge for "compelling or justifiable" rea-
sons, he did not incur willful loss of earnings Knicker-
bocker Plastic Co, supra
The record clearly establishes that Clement, in effect,
quit his job with Barry Ernst trucking so he could, as the
Charging Party, participate in the first hearing in the un-
derlying unfair labor practice case against Respondent
Respondent's discrimination against the employee placed
him in a situation wherein he had to return to Milwaukee
without the Louisiana load or forgo participation in the
unfair labor practice proceeding I find he had a compel-
ling and justifiable reason for pursuing the course he
elected to pursue
Accordingly, I find Respondent failed to establish that
Clement Incurred willful loss of earnings by engaging in
improper conduct which resulted in his termination by
Barry Ernst Trucking
With respect to the Aurora Fast Freight situation, the
record contains only Clement's admission that he was
terminated by Aurora and the letter authored by its
president, which is quoted supra Clement was not asked
to describe his version of the situation described in the
letter, and no official of Aurora was produced to explain
the situation In the circumstances described, I conclude
Respondent established, prima facie, that Clement was
terminated by Aurora because he engaged in insubordi-
nate conduct As General Counsel failed to seek to rebut
the above-described testimony and evidence, I find Re-
spondent has established that Clement engaged in mis-
conduct which resulted in his termination by Aurora
In Knickerbocker Plastic Co, the Board indicated how
the backpay of a claimant who incurred willful loss of
earnings would be affected stating (at 1215)
We further find that, as a result of such quitting,
each of these claimants shall be deemed to have
earned for the remainder of the period for which
each is awarded backpay the hourly wage being
earned at the time such quitting occurred There-
fore, an offset computed on the appropriate rate per
hour will be deducted as interim earnings from the
gross backpay of each of these claimants This
offset shall be made applicable from the date of the
unjustified quitting throughout the remainder of the
backpay period for each particular claimant In this
connection, where the claimant has secured other
employment during the time that the offset is appli-
460 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cable, and if, on a quarterly basis, she earned a
greater amount than the offset, the offset will not be
applied, but the actual interim earnings will be de-
ducted from gross backpay If she earned less than
the offset at employment secured subsequent to the
quitting, also on a quarterly basis, the amount of the
offset will be applied
Recently, in KSLM-AM (I KSD-FM, 275 NLRB 1342,
1343 (1985), the Board reaffirmed the continuing offset
against gross backpay rule citing Knickerbocker Plastic
Go, supra
The record reveals Clement worked for Aurora from
March 29 to July 11, 1985, a period of 15 weeks Dunng
such employment he earned $6,106 02 Accordingly, the
offset to be applied to gross backpay subsequent to July
11, 1985, is $407 per week and/or $5291 per quarter
Finally, Respondent contends Clement incurred willful
loss of earnings when he quit his driving job with
Dewey Freight System, Inc As indicated, supra, the
record reveals that Dewey required Clement to violate
DOT regulations by making an 11-hour trip 5 days a
week, while DOT regulations prohibit a truckdnver
from driving continuously for more than 10 hours I
credit the discnnunatee's assertion that he quit his em-
ployment at Dewey because he did not feel he could
safely drive the run assigned him by Dewey According-
ly, I find Respondent failed to prove the discnminatee
incurred willful loss of earnings by quitting his employ-
ment with Dewey
IV THE EMPLOYEE STOCK OPTION PLAN
Through the testimony of Larry Scarbrough, Re-
spondent's line transportation manager, Respondent es-
tablished that in October 1985, the Company instituted
an employee stock option plan in an attempt to survive
economically A prospectus describing the plan was
placed in the record as Respondent's Exhibit 9 General-
ly described, the plan is one wherein participating em-
ployees forgo 15 percent of their wages through Decem-
ber 31, 1990, and the Company, in return, contributes
stated percentages (up to 49 percent) of the Company's
common stock to the plan Distribution of stock to the
employees is to occur at the end of December 1990
Scarbrough testified that roughly 86 percent of Respond-
ent's employees elected to participate in the stock option
plan It is undisputed that driver Krause participated in
the plan, but driver Eaton did not participate Clement
elected not to particiapte when he was reinstated by Re-
spondent
Respondent contends that as 86 percent of its employ-
ees elected to participate in the stock option plan, I
should find Clement would have elected to participate if
he had been employed by it in October 1985 It thus con-
tends his gross backpay should be decreased by 15 per-
cent during the period subsequent to institution of the
plan
Conclusions
Respondent has cited no authority for its above-de-
scribed contention While Clement chose not to path-
ciapte in the stock option plan when he was reinstated
by Respondent on July 8, 1987, no one knows what the
employee would have chosen to do in October 1985
The ambiguity must be resolved against Respondent Big
Three Industrial Gas Go, supra, NLRB v Miami Coca-
Cola Bottling Go, supra Accordingly, I find Respondent
is not entitled to the offset against gross backpay which
it seeks
V THE MEDICAL EXPENSES, TRAVEL EXPENSES, AND
PENSION FUND CONTRIBUTIONS
General Counsel claims the discnmmatee incurred
$900 50 in medical expenses during the backpay penod
which would have been covered by company insurance
had he been an active employee during such period Ad-
ditionally, $14 59 is claimed for mileage expense incurred
by the discnminatee when searching for interim employ-
ment Finally, as indicated, supra, the backpay specifica-
tion was amended at the commencement of the hearing
to allege, in substance, that Respondent owes the Team-
sters Central States Pension Fund contributions in the
amount of $11,630, with interest accrued to date of pay-
ment, representing contributions that would have been
made on Clement's behalf had he been continuously em-
ployed during the backpay period Respondent does not
contest the accuracy of the figures, nor does it contest
the contention that it owes the moneys indicated Ac-
cordingly, I find counsel for General Counsel properly
deducted the described amounts due the discnmmatee
for medical expenses and mileage expenses from his in-
terim earnings during appropriate quarters as revealed by
Appendix A to the backpay specification I further find
that Respondent is obligated to remit the sum of $11,630
to the Central States Pension Fund 8
For the reasons stated, I compute the net backpay due
Patrick W Clement, excluding interest, is as follows
Quarter Net Backpay
4/83 $7,678 06
1/84 9,17600
2/84 7,500 79
3/84 5,13674
4/84 7,798 70
1/85 8,971 25
2/85 3,802 23
3/85 94,299 80
4/85 1 °3,970 00
1/86 1,582 80
2/86 2,190 14
3/86 "3,892 20
8 In the absence of testimony or evidence which would establish that
late contributions are payable with interest and/or liquidated damages, I
refrain from finding Interest is due on said contributions
9 $8,858 20 less 11 4 weeks offset at $40700 and/or $4,558 40
'° $6,716 44 less offset $2,746 44 ($5,291—$2,544 56)
' $4,872 10 less $979 90 ($5,291—$4,311 10)
P*I*E NATIONWIDE 461
4/86 123,948 06
1/87 '4,l2795
2/87 '3,88500
$77,959.72
12 89,239 06 less $5,291 00
is $9,418 95 less $5,291 00
14 $9,176 00 less $5,291 00
Accordingly, I find the total backpay due Clement by
Respondent is net backpay of $77,959 72, exclusive of in-
terest, and the sum of $11,630, which is to be remitted by
Respondent to the Teamsters Central States Pension
Fund
[Recommended Order omitted from publication ]