Teamsters Local 164

National Labor Relations Board - Board Decisions

Mar 13, 1985

274 N.L.R.B. 909 (N.L.R.B. 1985)

TEAMSTERS LOCAL 164
Truck Drivers Union Local 164, International Broth-
erhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, and International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America; and the
Teamsters Affiliates Pension Plan and Evelyn
McCann and Mishele McCann Wilkins. Cases
,7-CA-14751(l),and 7-CA-14751(2)
13 March 1985
SUPPLEMENTAL DECISION AND
ORDER
BY CHAIRMAN DOTSON AND MEMBERS
HUNTER AND DENNIS
On 10 August 1983 Administrative Law Judge
James M. Fitzpatrick issued the attached supple-
mental decision.' The three Respondents and the
General Counsel each filed exceptions and support-
ing 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,2 and
conclusions, as modified, and to adopt the recom-
mended Order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
i The Board's Decision and Order is reported at 243 NLRB 704
(1979), affd 651 F 2d 455 (6th Cir 1981)
a Respondent Local 164 has excepted to some of the judge's credibility
findings The Board's established policy is not to overrule an administra-
tive law judge's credibility resolutions unless the clear preponderance 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 re-
versing the findings
We find merit in Respondent Local 164's exception to the judge's find-
ing that Evelyn McCann is entitled to gasoline and telephone benefits In
the initial unfair labor practice proceeding, Administrative Law Judge
Ladwig found that the Respondent permitted employees, including
McCann, to make personal long-distance telephone calls at the Respond-
ent's expense in partial compensation for unpaid overtime hours of work
Since the Respondent's discharge of McCann, the Respondent has paid
the employee replacing McCann for working overtime hours, there is no
indication the Respondent is also compensating this employee for over-
time work with telephone privileges While we find it appropriate that
McCann's backpay be calculated based on the hours worked by the re-
placement employee, we will not also include the value of telephone
privileges, as this would be duplicative With regard to gasoline privi-
leges, the record shows that the Respondent's employees were permitted
to fill their automobiles' tanks at the Respondent's expense in exchange
for the use of their cars on business Gasoline was a quid pro quo for the
Respondent's access to the employees' automobiles, rather than an aspect
of the employees' benefits Therefore, we shall exclude it from McCann's
backpay award Coincidentally, while the judge found McCann entitled
to these benefits, he inadvertently failed to include them in the Order
Therefore, the Order accurately reflects our findings, and we need not
make any modifications
The General Counsel has excepted to the judge's finding that Mishele
McCann Wilkins refused a reinstatement offer made by Respondent
Local 164 We find merit in this exception and note that the record
shows that Wilkins accepted the Respondent's 4 September 1979 offer of
reinstatement
909
judge and orders that the Respondents, Truck
Drivers Union Local 164, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America; International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America; and the Teamsters Affiliates Pension
Plan, their officers, agents, successors, and assigns,
shall take the action set forth in the Order:"
SUPPLEMENTAL DECISION
JAMES M. FITZPATRICK, Administrative Law Judge.
This is a backpay proceeding supplemental to the deci-
sion of the National Labor Relations Board on July 26,
1979 (243 NLRB 704), in which the Board ordered
Truck Drivers Union Local 164, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and
Helpers of America (Local 164) to make whole Evelyn
McCann and Mishele McCann (now Mishele McCann
Wilkins) for loss of pay and other benefits resulting from
its unfair labor practices On July 14, 1981, the United
States Court of Appeals for the Sixth Circuit (Case 80-
1344) enforced the Board's Order A controversy having
arisen over the amount of backpay due, the Regional Di-
rector for Region 7 of the Board, pursuant to Section
102 52 et seq of the Board's Rules and Regulations, on
December 21, 1981, issued a backpay specification and
notice of hearing to Local 164 The specification was
amended September 22, 1982, to add the International
Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America (the International), and the
Teamsters Affiliates Pension Plan (the Plan) as Respond-
ents i Two additional amendments to the specification
were made when the hearing opened Respondents' an-
swers, taken together, put in issue the definition of gross
backpay, the backpay period applicable to Evelyn
McCann, the formula for computing the backpay of both
McCann and Wilkins, and the appropriateness of includ-
ing telephone and gasoline privileges, medical expenses,
pension fund contributions, and severance account con-
tributions in the backpay computations, and the adequa-
cy of the reinstatement of McCann. Local 164 further
raises what counsel refers to as affirmative defenses, as
follows: that the discrimmatees are not entitled to the
amounts claimed because they willfully removed them-
selves from the 'fob market, that the amounts claimed
should be reduced by all their interim income, that vaca-
tion pay and Christmas bonuses are not includable as
backpay, that the amounts claimed are excessive and, if
paid, would bankrupt Local 164 thereby depriving its
current employees of employment, and finally that the
two discriminatees are unworthy, vindictive, persons
who do not deserve to be made whole. The International
questions whether it is able, or can be required, to take
any action respecting these claims, including whether the
Board has jurisdiction to order such action. It also con-
tends that to the extent the Board seeks to compel the
International to induce the Plan to breach its duties as a
' Neither the International nor the Plan was a respondent in the initial
unfair labor practice proceeding
274 NLRB No. 134
910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fiduciary such is contrary to law and public policy and
that the specification fails to state a claim against it upon
which relief may be granted. The Plan raises the same
issues as the International and, in addition, asserts that
the provisions of the Employee Retirement Income Se-
curity Act of 1974, as amended (ERISA), provide the
exclusive remedy in claims against the Plan, that the
relief sought against it would require it to violate ERISA
as well as Section 4975 of the Internal Revenue Code,
and would put in peril the Plan's tax-exempt status under
the Internal Revenue Code, and that the discriminatees
have failed to exhaust administrative remedies provided
by the Plan
A backpay hearing on the specification was held
before me at Jackson, Michigan , on November 17, 18,
and 19, 1982, and January 4, 1983. Based on the entire
record in this proceeding, including my observation of
the witnesses and consideration of the briefs filed by the
General Counsel and each Respondent, I make the fol-
lowing
FINDINGS AND CONCLUSIONS
II. THE BOARD'S FINDINGS
In its decision of July 26, 1979, the Board found that
Local 164 on December 2, 1977, unlawfully discriminat-
ed against Evelyn McCann by reducing her salary and
on January 5, 1978, unlawfully discharged her and her
daughter, Mishele McCann (now Wilkins). The Board's
Order, as enforced by the court, requires Local 164 to
make them whole for "any loss of pay and other bene-
fits" and offer them immediate 'and full reinstatement In
September 1979 Local 164 offered both reinstatement.
Wilkins refused. McCann accepted, but a dispute exists
as to whether she was properly reinstated.
The Board adopted the decision of Administrative
Law Judge Marion C. Ladwig who, in ruling on the de-
fense of Local 164 to the allegations of unfair labor prac-
tices, found, inter aha, that in consideration of unpaid
overtime worked, the office staff, including McCann,
were allowed certain benefits including use of the office
telephone for personal long-distance calls, and in return
for the occasional use of their personal cars on union
business , McCann and employee Marjorie Lester were
allowed to purchase gasoline at the expense of the Local.
1. THE RESPONDENTS
As found by the Board in its initial decision, Local 164
is located in Jackson, Michigan. The International has of-
fices in Washington, D.C. It charters various local labor
organizations, including Local 164, which periodically
transmit to it per capita taxes on the membership of these
locals. Local 164 and the International are labor organi-
zations within the meaning of Section 2(5) of the Nation-
al Labor Relations Act of 1947, as amended (the Act).
The Plan is a qualified plan approved by the Internal
Revenue Service under Section 401(a) of the Internal
Revenue Code of 1954, as amended, 26 U.S.C § 401(a),
and is an employee pension benefit plan within the mean-
ing of Section 3(2) of the Employee Retirement Income
Security Act of 1974, as amended (ERISA), 29 U.S C. §
1002(2).
Pursuant to a resolution adopted at the 18th conven-
tion of the International in 1961 an agreement and decla-
ration of trust was entered into on April 23, 1962, be-
tween the International on behalf of its membership, and
trustees of the Plan. On January 29, 1976, this instrument
was revised and reexecuted. Under this latter agreement,
the trustees administer a pension plan for employees of
local unions affiliated with the International pursuant to
the terms of ERISA The Plan is funded out of the per
capita tax payments which these affiliated locals make to
the International, the amount of such funding being
based upon an annual determination by the Plan's actuar-
ies of the amount required to preserve actuarial sound-
ness of the Plan and to meet funding standards imposed
by law. The International then remits to the Plan the in-
dicated amount from the per capita tax receipts. At the
time local employees participating in the Plan retire, the
trustees, in computing their pension entitlement, credit
them with service time as certified by the employing
local.
III. GROSS BACKPAY
A. Gross Backpay Defined
It is undisputed that gross backpay here means the
amount of earnings the employee would have received
had the discrimination not occurred. The backpay speci-
fication alleges, and Local 164 disputes, whether this in-
cludes pension contributions, severance fund contribu-
tions, in the case of McCann the value of telephone and
gasoline privileges, and reimbursement for medical ex-
penses.
Employees of Local 164 were covered by the Central
States Southeast and Southwest Pension Plan, such cov-
erage being one of the benefits of their employment.
Both Wilkins and McCann were so covered and are enti-
tled to be made whole by having such contributions,
which are at a flat rate not keyed to the employee's
wages, made by Local 164 for the period of discrimina-
tion Fibreboard Corp., 180 NLRB 142, 151-152 (1969),
and see Rice Lake Creamery, 151 NLRB 1113, 1126-29,
1160-70 (1965).
Another of the benefits of employment with Local 164
was its contributions to a severance fund each week of
an amount equal to 10 percent of the employee's weekly
pay, excluding overtime pay, bonuses, and vacation pay,
but including vacations worked. Both Wilkins and
McCann are entitled on the same basis to reimbursement
for such contributions not made during the period of dis-
crimination.
The Board in adopting Judge Ladwig's decision has al-
ready determined that telephone and gasoline privileges
were among the benefits of McCann's employment. As
noted above, the make-whole remedy ordered by the
Board and enforced by the court of appeals includes ben-
efits as well as wages. Obedience to that order requires
that McCann be made whole for telephone and gasoline
benefits which are included in gross backpay The de-
fense, that the discriminatee must be employed by the
TEAMSTERS LOCAL 164
Local during the time period involved and the Local
must actually have the use of her car to justify such
remedy, lacks merit because if it were not for the dis-
crimination she would have continued to receive those
benefits as well as her salary
Reimbursement for medical expenses incurred during
the period of discrimination is also appropriately part of
gross backpay because one of the benefits of employment
with Local 164 is health and accident insurance coverage
and if the discriminations had not occurred, such medical
expenses would have been met by that insurance to the
extent indicated in the appendix hereto. Central Freight
Lines, 266 NLRB 182 (1983); Golay & Co., 184 NLRB
241 (1970).
B. Backpay Periods
1 Backpay period for Mishele McCann Wilkins
It is undisputed that the backpay penod for Wilkins
commenced January 5, 1978, when she was discharged,
and continued until September 4, 1979, when Local 164
offered her reinstatement to her former position, an offer
she did not accept, thereby terminating the backpay
period as to her.
2. Backpay period for Evelyn McCann
The backpay specification alleges, and Local 164
denies, that the backpay period for McCann commenced
December 2, 1977, when Local 164 began its discrimina-
tion against her . This question , when the backpay period
started , was determined by the Board in the prior pro-
ceeding in which it concluded that Local 164 unlawfully
discriminated against her by reducing her salary on De-
cember 2, 1977. Therefore, it is settled that the backpay
period started on that date. The Board further found that
thereafter on January 5, 1978, Local 164 unlawfully dis-
charged her In its answer Local 164 denies that her
wages were unlawfully reduced during the period De-
cember 2, 1977, through January 6, 1978, and asserts in-
stead that she voluntarily resigned from the higher
paying position and the reduction in her wages resulted
from such resignation . This is a patent effort to relitigate
an unfair labor practice already found by the Board and
warrants no further consideration here
After the Board's Order, Local 164 in September 1979
offered McCann reinstatement . At the time she was
living in California and returned to Michigan to accept
the offer. However, on reporting for work she was in-
formed by Martin Hands, the chief operating officer of
Local 164 and the official who had discharged her, that
he would reinstate her daughter Mishele Wilkins but not
her because "we would never get along." I find she was
not permitted to return to work until July 1981 , follow-
ing the circuit court of appeals' enforcement of the
Board 's Order and, even then , she was offered only the
job of insurance clerk , a position with lesser duties and
pay than the position she held before the discrimination.
She was not thereby made whole because she was not
reinstated to her former position . It is uncontradicted
that the job duties she previously performed still exist.
She has never been properly reinstated . Accordingly, the
backpay period for Evelyn McCann continued through
911
the period of her reemployment by Local 164 and until
her retirement on February 27, 1982
C. Computation of Central States Southeast and
Southwest Pension Plan Contributions
As employees of Local 164 who were covered by the
Central States Southeast and Southwest Pension Plan,
both Wilkins and McCann are entitled to be made whole
by having Local 164 make such contributions, which are
at a flat rate not keyed to the employee's wages, for the
backpay period of each which it would have made had
the discriminations not occurred. Artim Transportation
System, 193 NLRB 179 , 184-185 (1971).
Wilkins is entitled on this basis to have the following
contributions made- $336 for the first quarter of 1978,
$403 each for the last three quarters of 1978 and the first
quarter of 1979, $533 for the second quarter of 1979, and
$369 for the third quarter of 1979, totaling $2850 to that
pension fund on her behalf.
Evelyn McCann is also entitled to be made whole in
the same manner . Contributions on her behalf should be
as follows. $336 for the first quarter of 1978, $403 each
for the last three quarters of 1978 and the first quarter of
1979, $533 each for the last three quarters of 1979 and
the first quarter of 1980, $598 each for the last three
quarters of 1980 and the first quarter of 1981, $663 for
the second quarter of 1981 and $153 for the third quarter
of 1981 , totaling $7288.
D. Computation of Severance Fund Contributions
For Wilkins Severance Fund contributions in the back-
pay period should have been $162 for the first quarter of
1978, $175 for the second quarter of 1978, $161 50 for
the third quarter of 1978, $203.50 for the fourth quarter
of 1978, $221 each for the first and second quarters of
1979, and $153 for the third quarter of 1979. The total
amount due her for the severance fund is $1297 as set
out in the appendix hereto
As to McCann , her entitlement to reimbursement for
failure to pay into the severance fund includes the period
following her discharge until her reemployment by
Local 164 and also thereafter until her retirement be-
cause severance fund contributions were not made for
her during that period All such contributions should
have been at 10 percent of the base weekly rate of pay
she would have gotten if the discrimination had not oc-
curred Accordingly , she is entitled to severance fund
contributions as follows- $21 for the fourth quarter of
1977, $305 for the first quarter of 1978, $325 each for the
last three quarters of 1978 and the first three quarters of
1979, $355 for the fourth quarter of 1979, $373.75 each
for the first three quarters of 1980, $401.35 for the fourth
quarter of 1980, $418 . 60 each for the first three quarters
of 1981, $449.51 for the fourth quarter of 1981, and
$175 77 for the first quarter of 1982. The total amount
due her for the severance fund is $6034 . 68 as set out in
the appendix hereto.
912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
E. Computation of Backpay for Mishele McCann
Wilkins
1. Gross backpay for Wilkins
Computation of Wilkins' gross backpay as set out in
the backpay specification as corrected at the hearing is
based on the compensation, including overtime, received
by Betty Huey who replaced her as insurance clerk This
is an appropriate method of computation and Respond-
ents do not contend otherwise. C & D Coal Co., 93
NLRB 799, 803 (1951). This computation, with the ex-
ception of the pay period ending September 1, 1978,
during which I find she was away on her honeymoon
and not available for employment, is included in the ap-
pendix. I find the appendix accurately states her gross
backpay
2. Interim earnings of Wilkins
In these proceedings the General Counsel has the
burden of showing losses suffered by the discriminatees
and Respondents have the burden of negating liability
therefor Amshu Associates, 234 NLRB 791, 794 (1978);
Keller Aluminum Chairs Southern, 171 NLRB 1252, 1256
(1968). A respondent's liability is diminished by the
amount of a discriminatee's interim earnings during each
calendar quarter of the backpay period received for
work or services performed. Income from other sources
are not considered. Local 164 contends that Wilkins did
not make a reasonable search for interim employment
and is not entitled to backpay. Discriminatees are re-
quired to make a reasonable effort to mitigate backpay
liability by seeking interim employment, that is, an
honest, good-faith effort in light of all the circumstances.
Wilkins worked for Local 164 as an insurance clerk, a
job involving limited clerical duties. She lacks broad ex-
perience and possesses only narrow secretarial skills. Her
job with Local 164 involved daytime work and was lo-
cated within 3 miles of her home
She testified credibly that following her discharge she
sought similar interim employment but was not success-
ful. During the first 6 months of unemployment she reg-
istered with the Michigan Employment Security Com-
mission (MESC) which provides job referrals to regis-
trants, renewing her registration at 2-week intervals. She
received no referrals. Additionally, during the entire
backpay period she sought employment directly from
many employers. Between January 1978 and August
1979 she made 67 such contacts by telephone, in person,
or by answering blind newspaper advertisements. She
prepared a resume which she offered employers. She
regularly checked classified newspaper advertisements
for available jobs. She placed her own weeklong news-
paper classified advertisement titled "Work Wanted-
Female" which indicated she was seeking work, either
full or part time, and had experience in health insurance
and general office work There were no responses. She
made numerous inquiries of friends and acquaintances as
to availability of employment at particular establish-
ments.
Local 164 attacks her good faith on various grounds.
Counsel criticizes her for not preserving bits and scraps
of paper on which she made notes when she applied for
a job and from which she composed a running log of her
efforts Such might now be convenient for counsel, but is
not essential to establish the extent of her effort, particu-
larly in view of her availability to testify See Big Three
Industrial Gas, 263 NLRB 1189 (1982).
From the time of discharge in January 1978 through
August of that year, an 8-month period, her efforts to
obtain employment were limited to seven applications
and to registering with MESC. Local 164 argues such ef-
forts were inadequate. I find to the contrary that she
made a reasonable effort under applicable standards
Sioux Falls Stock Yards Co, 236 NLRB 543, 551, 566
(1978), Mastro Plastics Corp, 136 NLRB 1342, 1359
(1962); Golay & Co., 184 NLRB 241, 244 (1970).
Counsel similarly ridicules her recitation of inquiries to
friends and acquaintances regarding availability of em-
ployment with particular establishments Personal refer-
rals, however, are a frequent source of leads to available
jobs, and such inquiries tend to show a continuing effort
to find work. Instances where she sought work for
which she had no special qualification or experience
were not outlandish applications indicating a desire not
to succeed. These include applications for dental assistant
positions and for paralegal work. I find instead that they
demonstrate her willingness to go beyond her limited
background in seeking employment. Had she confined
her search to jobs substantially equivalent to that from
which she was discharged, her effort would have been
reasonable. Keller Aluminum Chairs Southern, supra She
is not to be faulted for doing more In one instance
pointed to by Local 164, she asked a friend about the
possibility of work in a retail sporting goods store, a job
dissimilar to the one from which she was fired but not
unrelated to other prior experience in retailing men's
clothing. The same may be said of her two inquiries at a
supermarket. Along the same line, Local 164 criticizes
her inquiring about a job with a friend in the construc-
tion business in California when she visited her mother
there. I find nothing to criticize. Absent some showing
(which is not made here) that she would, under no cir-
cumstances, accept employment in California, the inquiry
tends to show an expanded effort rather than absence of
good faith. Similarly, counsel discounts her trips made to
employers around Jackson, Michigan, located substantial-
ly farther from her home than the office of Local 164,
without first determining whether they were hiring. But
whether such trips were efficient or not is not the issue
The issue is whether she made the effort. I find she did.
Wilkins testified she inquired at or applied to a number
of medical or dental offices for employment. These were
not illogical targets. Her work as insurance clerk with
Local 164 involved medical claims She was, or had
been, a patient at a number of these offices, a fact which
counsel uses to suggest that her inquiries and applications
are fabrications. The fact that she was a patient at some
offices does not indicate fabrication, nor does the fact
that she did not obtain copies of applications where she
submitted them. Written applications are usually on
forms of the employer, copies of which are not necessari-
ly provided applicants. As to those where she made in-
TEAMSTERS ' LOCAL 164'
quiry but filed no application, counsel implies her effort
was deficient. But again, there is no evidence she failed
to file an application with any employer that would
accept one.
Counsel makes a special issue of Wilkins' testimony
that in March 1979 she answered a help wanted adver-
tisement by Dr Paul Earnest for a receptionist and that
he interviewed but did not hire her. In the course of the
interview she told him about her discharge by Local 164,
explaining the reason given for the discharge, and that
unfair labor practice proceedings were pending before
the Board.2 He remarked that if she was going to go
back to her former position, he needed someone for a
long time. The advertisement appeared in March 1979
Dr. Earnest did not recall seeing her but in view of the
time lapse admitted he might have spoken with her. He
interviewed the first 10 applicants for the job and asked
the balance, 20 or more, to submit resumes. The require-
ments for the job were quite specialized and I find Wil-
kins would not have qualified for the position In answer
to specific questions the doctor testified he did not recall
any applicant saying they had been discharged for dis-
honesty, adding he would remember it if they had Dr.
Earnest was a credible and disinterested witness But his
testimony does not directly contradict Wilkins. Although
he opined he would remember a reference to dishonesty,
the thrust of his testimony is that he does not recall the
interview. Whether he recalls any of the 10 interviews is
conjectural, and the lapse of time admittedly may have
impaired his memory. By contrast, she was explicit, an
attribute indicating better recollection The existence of
the advertisement and the fact that 10 applicants were
actually interviewed are circumstances which lend sup-
port to her version that she also was Accordingly, I
credit her account
Counsel for Local 164 implies she is not forthright in
her testimony because in 1978 she sought a job in a su-
permarket through a friend who since has moved to
Texas. In doing so Respondent thus endeavors to shift
the burden to the discriminatee who over 4 years later is
asked to describe details of her search for other employ-
ment. Uncertainties arising in a situation such as this are
resolved in favor of the discriminatee and against the em-
ployer responsible for the unfair labor practices United
Aircraft Corp., 204 NLRB 1068 (1973); Amshu Associates,
supra; Neely's Car Clinic, 255 NLRB 1420 (1981)
Local 164 is also critical of her September 1978 adver-
tisement because she kept no copy of it, had no receipt
for payment for it, and received no response from it.
Documentary evidence establishes beyond question that
the advertisement appeared in the newspaper and it is
clear that she made that effort. The reasonableness of a
search for work is not determined by the success of the
effort Sioux Falls Stock Yards Co, supra at 551. Nor
does the fact she enjoyed no interim earnings tend to
show she failed to make a reasonable search for work
Highview, Inc, 250 NLRB 549, 553 (1980)
2 Local 164 discharged her for alleged dishonesty but the Board found
this a pretext and that she was discharged for union activities She testi-
fied that whenever a prospective employer asked about her former job,
she truthfully reported what had happened as well as her desire to return
to Local 164 if reinstated
913
Counsel is critical of Wilkins' inability to document
her testimony that she applied for a position with the
probation office in Jackson, Michigan, the implication
being that she did not in fact do so. But the burden of so
proving is Respondent's. The office of the official to
whom she applied, a Mr. Wells, is in the same building
where this hearing was held, yet he was not called to
testify and there is no showing of unavailability.
In October 1978 and again in February 1979, Wilkins
applied to Foote Hospital in Jackson Counsel for Local
164 complains that she limited her application to the day-
time shift whereas a greater chance for employment ex-
isted on the night shifts It is not apparent that she even
knew this, and even if she did, she was not required to
search for work substantially different from her job with
Local 164 where she worked days
Local 164 shows generally that during Wilkins' back-
pay period jobs were available in the Jackson, Michigan
area. This does not demonstrate her failure to make a
reasonable search because nothing indicates specifically
whether such jobs were in fact suitable for her as to pay,
location, working conditions, or in relation to her past
experience. Counsel reasons that because employment
opportunities generally existed, her lack of success in ob-
taining a replacement job shows she really did not look
for work. These general circumstances raise a suspicion,
but do not disprove the specific efforts she did make.
There is no evidence indicating she rejected any job
offers She credibly testified she did not refuse any job
offer It is immaterial that many of her inquiries were
verbal or that she received only two written rejections.
Many of her inquiries resulted in verbal rejections or in
no response at all The pertinent issue is whether she
made a reasonable search I find she did Local 164
argues that she is not credible and, therefore, the evi-
dence showing general availability of employment in the
area establishes her lack of a good-faith effort. But I find
her a credible witness whose account is corroborated on
many points by other evidence such as her resume, her
newspaper advertisement, employment applications, let-
ters from possible employers, advertisements which she
testified she answered, and the testimony of Janet Blair
respecting her application to Foote Hospital I conclude
that Local 164 has not successfully carried its burden of
showing that Wilkins failed to make a reasonable search
for interim employment. Accordingly, she is entitled to
backpay in accordance with the appendix
F Computation of Backpay for Evelyn McCann
1 Gross backpay for McCann
The figures and computations respecting gross back-
pay for McCann as set out in the appendix and alleged in
the backpay specification I find to be accurate and rea-
sonable.
a Regular and overtime pay
During the initial portion of the backpay period,
namely, from the unlawful reduction of McCann's pay
on December 2, 1977, until her discharge on January 5,
1978, she continued in the employ of Local 164 at a rate
914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of pay less than she would have received had the, dis-
crimination not occurred. Accordingly, the basis for
computing her gross backpay during this time is her rate
of pay immediately preceding the discrimination of De-
cember 2, 1977, and should include her Christmas bonus
in accordance with this earlier rate of pay. Although she
received a Christmas bonus at a lower rate, she should
have received a bonus for 2 weeks at $50 more per
week. Thus, she should have received $310 more than
she did in the fourth quarter of 1977 The same approach
applies to the first quarter of 1978 because during the
first week her pay continued at a rate $50 less than the
prediscrimination rate
The method for computing gross backpay after her
discharge on January 5, 1978, differs because Local 164
ceased paying her anything. The backpay specification
calculates her gross backpay for the period from January
7, 1978, to September 28, 1979, on the basis of the earn-
ings of Marjorie Lester who replaced her, including
overtime and bonuses. Local 164 does not dispute this
calculation except that it denies the appropriateness of in-
cluding overtime pay and bonuses. The only bonuses in-
volved are the Christmas bonuses to which she clearly
was entitled. For the period September 29 through Octo-
ber 31, 1979, the backpay specification calculation is
based on McCann's base rate in her former position of
$250 a week to which is added the average overtime pay
worked by her replacement. Local 164 similarly does not
dispute this method of calculation except that it denies
the appropriateness of including overtime compensation.
For the period subsequent to November 1, 1979, the
backpay specification calculates the gross backpay based
on contractual rates in effect to which is added compen-
sation for overtime work based on the average overtime
worked by her successor. Again Local 164 does not dis-
pute the formula for the base rate but does dispute the
inclusion of the overtime.3 The weekly pay for the job
in question was raised to $287.50 effective November 1,
1979, until November 1, 1980, when it was raised to $322
until November 1, 1981, when it was raised to $360.64
The record as a whole shows that the duties which
McCann performed prior to the discrimination continued
to be performed by successor employees at the rates indi-
cated. I find she would have received such pay had she
not been unlawfully discharged.
As to the overtime, credible evidence indicates that
before the unlawful discrimination McCann worked, but
was not specifically paid for, overtime work. Marjorie
Lester who immediately replaced her worked overtime
and was paid for it. There is no evidence to indicate that
McCann would not similarly have performed and been
paid for overtime work at that time if she had not been
unlawfully discharged. The work and pay of her replace-
ment is a valid basis for inferring that she would have
received similar pay and benefits. Ellis & Watts Products,
143 NLRB 1269, 1270 (1963). Local 164 contends that a
computation allowing her overtime compensation is
3 In its answer to this portion of the specification Local 164 states,
"The Respondent [Local 1641 admits that the calculations were made by
the claimant based on the contractual rate in effect on November 1, 1979,
to present but denies that the calculations properly included overtime
paid to the replacement employee "
flawed because she would not have received overtime
pay had she not been discharged. I find this contention
lacks merit because no evidence suggests she would not
have worked overtime and the logical and reasonable in-
ference from the experience of her replacement is that
McCann would have worked and been paid for compara-
ble overtime.
It is undisputed that Local 164 has been paying for
overtime work at one and one half-times the regular rate
of pay. Thus, prior to March 21, 1980, this overtime
hourly rate for the job in question was $9.38 through
October 1979, from November 1, 1979, through October
1980 it was $11.51, and thereafter it was $12.89 The for-
mula used in the backpay specification for assessing over-
time compensation, which I find to be reasonable, is to
multiply the applicable overtime hourly rate by the aver-
age of the overtime worked by the replacement employ-
ee during each quarter or, where the data for overtime
actually worked is not available, to estimate it by pro-
jecting the average from the preceding quarter. Thus,
during the year 1978 replacement Lester worked and
was paid for 672 hours overtime for an average of 12.94
hours overtime per week. Payroll records for the first
three quarters of 1979 demonstrate that Lester worked
426 65 hours of overtime for an average of 10.94 hours
per week. No payroll records were made available for
the fourth quarter of 1979, but it is reasonable to project
the average of the first three quarters through the fourth
quarter so that the average weekly overtime used to
compute overtime for the entire year of 1979 is 10.94
hours After 1979 there is a paucity of information on
which to determine overtime. Overtime worked by
Lester during the first quarter of 1980, the last period for
which records were made available, averaged 5.46 hours
per week. In the absence of conflicting data, it is reason-
able to infer she continued to work overtime at that rate
until her discharge December 12, 1980. If McCann had
held the job from which she was unlawfully discharged,
it is reasonable to infer she would have worked overtime
at that rate and at the applicable pay scale until her re-
tirement. See Everspray Enterprises, 253 NLRB 922, 926
(1980) Precision is not required in backpay computation;
it is only essential that a rational basis exist for the com-
putation NLRB v. Kartarik, 227 F 2d 190 (8th Cir. 1955).
In this latter connection it should be noted that the
hourly overtime rate of pay for most of 1979 was $9.38.
This included the first three quarters of the year and 5
weeks into the fourth quarter The applicable rate for
overtime during the last 8 weeks of the fourth quarter of
1979 increased to $11 51 based on the increase of the reg-
ular weekly wage to $287.50.
This same overtime rate of $11.51 continued in 1980
through the first 5 weeks of the fourth quarter. As noted
previously, on November 1, 1980, the weekly wage rate
increased to $322 and on November 1, 1981, to $360.64.
Thus, the time-and-a-half rate increased to $12.89 on No-
vember 1, 1980, and on November 1, 1981, to $14.43, this
latter overtime rate continuing through the balance of
the fourth quarter of 1981 and into the first quarter of
1982 and until McCann retired on February 27, 1982.
TEAMSTERS LOCAL 164
b. Christmas bonus and vacation pay for McCann
In addition to regular pay and overtime pay McCann
was entitled to a Christmas bonus in the fourth quarter
of each year in the amount of 2 weeks' regular pay On
this basis she would have received fourth quarter Christ-
mas bonuses of $575 in 1979, $644 in 1980, and $371.28
more than she in fact received in 1981 . Hickman Gar-
ment Co., 196 NLRB 428, 429 (1972) Similarly, she
would have been entitled to an annual vacation with pay.
Because of her seniority, she earned 5 weeks' paid vaca-
tion annually. Established personnel practice at Local
164 allowed employees to work during their vacation
time and thereby receive both regular and vacation pay.
McCann usually did this prior to her discharge. Accord-
ingly, her gross backpay figure for each third quarter
after her discharge includes this additional 5 weeks' va-
cation pay. Richard W. Kaase Co., 162 NLRB 1320, 1325
(1967); Central Freight Lines, 266 NLRB 182 (1983).
c. Unused sick leave of McCann
Employees of Local 164 accumulate paid sick leave
through seniority. It has been the practice of Local 164
to compensate retiring employees for unused sick leave.
At the time of her retirement and based on her seniority,
Evelyn McCann had earned 26 weeks' sick leave of
which she had used 10 weeks, leaving a balance of 16
weeks of unused sick leave Upon retirement she was not
compensated for this unused balance. She did receive
pay for 5 weeks, but that apparently was for paid vaca-
tion which she had requested and to which she was enti-
tled. Accordingly, compensation for 16 weeks of unused
sick leave in the amount of $5,770.24 is appropriately in-
cluded in her gross backpay computation.
d. Telephone and gasoline benefits for McCann
In the initial unfair labor practice case Judge Ladwig
found that McCann 's estimated telephone calls at union
expense approximated $20 per year . Accordingly, the
computation of her gross backpay includes quarterly
charges of $5 to a total of $70 77
As for gasoline benefits , her replacements , Marjorie
Lester and later Catherine McGee, similarly purchased
gasoline at the expense of Local 164, and the payroll
records of their purchases are a reasonable basis for com-
puting the value of the benefit to Evelyn McCann on a
weekly basis for each quarter from the beginning of 1978
through the third quarter of 1981. These average $12.34
per week during 1978, $17.60 in 1979, $26.40 in 1980,
and $27.80 in 1981 By quarter these total $ 148.08 in the
first quarter of 1978 and $ 160.42 in the second , third, and
fourth quarters . In 1979 the total for each quarter is
$228.80, in 1980 $343 .20 for each quarter , and in 1981
$361.40 for the first two quarters and $83.40 for part of
the third quarter The entire telephone and gasoline ben-
efit amounts to $3,794.31.
e. Medical expenses of McCann
During the backpay period, McCann incurred certain
medical costs which would have been paid by health in-
surance provided by Local 164 but for her unlawful dis-
charge These amounted to $84.76 in the third quarter of
915
1979, $17 03 in the fourth quarter of 1979, $540 in the
second quarter of 1980, $645 64 in the third quarter of
1980, and $19.12 in the third quarter of 1981. All togeth-
er these amount to $1,306 55 for which she is entitled to
reimbursement . Central Freight Lines, 266 NLRB 182
(1983); Golay & Co., 184 NLRB 241 (1970).
2. Interim earnings of Evelyn McCann
During the first period of her discrimination in the
fourth quarter of 1977 McCann worked full time for
Local 164, but at a discriminatory rate of pay respecting
which she should be made whole. For that time she re-
ceived no interim earnings to offset her claim for back-
pay and the net backpay figure is the same as the gross
backpay figure
At some point during the backpay period McCann re-
ceived a sum of money in settlement of a workers' com-
pensation claim, which sum Local 164 contends must be
deducted from her gross backpay . Such receipts, which
are not usually offsets to backpay liability, see Gullett
Gin Co. v. NLRB, 340 U S. 361 (1951 ); Canova Moving &
Storage Co., 261 NLRB 639 (1982), American Mfg. Co. of
Texas, 167 NLRB 520 ( 1967), are not included here as
interim earnings , there being no showing that they are
compensation for pay lost during the backpay period for
which backpay is claimed.
Following her discharge on January 5, 1978 , she re-
mained unemployed until June 1978 when her brother in
California began paying her for housekeeping . She had
no other employment until March 1980 when she began
working in her brother 's liquor store. These were the
only jobs she held during the backpay period other than
her work for Local 164 referred to above. Local 164
contends she should have obtained other employment to
mitigate its backpay liability and asserts she has engaged
in a willful loss of earnings Aside from the periods
during which she worked for Local 164 or in her broth-
er's liquor store , she made numerous efforts both in
Michigan and California to find temporary work until
she would be recalled by Local 164 . Generally speaking
her search involved inquiries to friends and acquaint-
ances as to possible employment at specific establish-
ments and responses to employment advertisements in
local newspapers . She looked for work in Michigan
while she resided there and in California during periods
she resided there. In both locations she sought referrals
from the respective state employment service.
Immediately following her discharge on January 5,
1978, she registered for employment with the Michigan
Employment Security Commission (MESC ). But about
the same time she suffered a nervous breakdown, for
which she was hospitalized, and continued under the
care of a psychiatrist for about a year . She was unavail-
able for employment from January 14 to June 2, 1978,
and no claim for backpay is made for that period. Prior
to June 2 she had no interim earnings . In spite of her ill-
ness, she made several efforts to find work . These includ-
ed answering two "blind " newspaper advertisements in
March by sending in her resume to which she received
no reply; inquiring in April of Neil Dalton , the principal
officer of Teamsters Local 486 in Saginaw , Michigan,
916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about, a job with that local; making similar inquiries in
May in Jackson at Way Baking Co and Central Trans-
port Co, and reregistering in May with MESC. None of
these efforts resulted in job offers. I base these findings
on her credited testimony I further find that, although
she, could not have held a job because of her health, her
efforts demonstrate her intention to find interim work.
In an effort to prove she failed to make a reasonable,
good-faith, effort, Local 164 attacks her credibility.
However, her testimony regarding Saginaw Local 486,
Central Transport Co , and her reregistration with
MESC is uncontradicted Counsel questions her assertion
that she in fact asked Dalton for a job in view of the fact
that Saginaw is 102 miles from her home in Jackson and
she failed to seek a job with Nellie McKim at Local 580
in Lansing, only 38 miles away. However, she testified
credibly that she personally would be more comfortable
working for Dalton in Saginaw than for McKim in Lan-
sing Local 164 also offered the testimony of John Way,
retired head of Way Baking Co., ostensibly to show that
she really did not seek a job with him. Way testified that
he has known her for many years, that he did not recall
her asking for a job, that he was sure she had been in his
office, and that no application for her was on file. As to
this last, item, she had not indicated she ever filed an ap-
plication Way, a sincere but elderly witness, obviously
had a poor memory. The thrust of his testimony is that
he does not recall whether or not she asked for a job,
and he does not deny that she did. His belief that she had
been in his office tends to corroborate her account, as
does his view that it would not be for the best for her to
work for the company because of its collective-bargain-
ing relationship with Local 164 She testified he made
that comment when she spoke to him about a job. In
these circumstances, I credit her account.
In March 1978 McCann prepared a resume of her em-
ployment qualifications and history for use in seeking a
job I infer it was this resume with which she answered
the "blind" advertisements in that month. At the end of
this resume she added the following postscript
In all fairness I must add that I was fired from the
Teamsters and I have a case pending with the
NLRB.
Sometime in 1979 she composed a second resume which
she concluded as follows:
I should add that I have a case pending with the
National Labor Relations Board in Michigan in
regard to my employment with the Teamsters.
She testified that whenever she discussed employment
with a prospective employer, she verbally indicated that
she intended to return to her job with Local 164 if she
were reinstated as a result of the Board proceedings.
Local 164 argues that the language in her resumes and
her verbal statements when interviewed would influence
employers not to hire her. I find that to be a likely possi-
bility. Local 164 further argues that such language dem-
onstrates an intention to avoid employment which might
mitigate the backpay liability of Local 164 I disagree
There is no evidence of malice on her part. The state-
ments were truthful They indicate forthrightness rather
than malice This record demonstrates beyond question
that what she desired most was reinstatement to her job
with Local 164 from which she had been fired. To fault
her for saying so would invite dishonesty and, in my
view, would be contrary to public policy. Implicitly the
defense requires a discrimmatee to seek permanent em-
ployment elsewhere, thereby diminishing a respondent's
risk of having to abide by the Board's order to reinstate
the discriminatee and placing a premium on delay in of-
fering reinstatement, as happened in this case. I find no
merit in this defense.
In late May or early June 1978 her brother took her to
Sonoma, California, where she kept house for him and
for which he paid her At this point she was again em-
ployable and het earnings of $250 from this work are de-
ductible from gross backpay liability of Local 164. While
working for her brother in June 1978, she consulted a
physician, Dr. Robert Hedges, for medical reasons and
during the consultation inquired if he had a job opening.
He did not. She also inquired at an automobile dealer-
ship, but without success.
Local 164 contends that by going to California she re-
moved herself from the job market of Jackson, Michigan,
with a population of over 45,000 and a low rate of unem-
ployment to go to Sonoma, California, with a population
of only slightly over 6000 where, so it is argued, pros-
pects for employment were patently less Actually she
spent substantial periods in both Jackson and Sonoma.
After her discharge in January 1978, she remained in
Jackson approximately 5 months during which she was
unavailable for work because of her health In June 1978
she went to Sonoma for about a month, returning in
early July to Jackson where she remained about 4
months until November 1978. She then went again to
Sonoma for about 2 months, returning to Jackson in
early January 1979 and remaining about 2 months until
March 6, 1979 On March 6 she again went to Sonoma
for about 4-1/2 months , returning to Jackson July 18,
1979. She remained in Jackson about 5-1/2 months until
January 1980 In January she went back to Sonoma, re-
maining until she was recalled to work by Local 164
July 20, 1981, some 19 months later. In short, during
1978 she spent about 9 months in Michigan and 3 months
in California; in 1979 about 7-1/2 months in Michigan
and 4-1/2 months in California; and all of 1980 and
almost 7 months of 1981 in California where she resided
at the time of her recall The record shows she was will-
ing at all times to return to Jackson for reinstatement. It
is also clear that she went to California initially to be
with her family and not to exploit better opportunities
for employment Apparently Jackson at that time was a
better job market than in later years. The average per-
centage of unemployment in Jackson was 5.8 percent in
1978, 7 2 percent in 1979, 11 3 percent in 1980, and 11.4
percent in 1981 . No comparable figures for Sonoma
appear in the record In somewhat similar circumstances
the Board has found that a discriminatee incurred a will-
ful loss of earnings by moving from a large community
where the unlawful discharge occurred to a small com-
munity which the Board concluded would provide lesser
TEAMSTERS LOCAL 164
job opportunities. Knickerbocker Plastics Co., 132 NLRB
1209, 1216 (1961) The circumstances in the present case
differ from Knickerbocker Plastics in that McCann spent
substantial periods of time in both Jackson and Sonoma
The numerous efforts, detailed hereinafter, she made in
both localities to find interim work indicate she did not
intend to remove herself from the labor market The
work she did find in California, the earnings from which
constitute an offset to backpay liability, indicate the same
thing, as do her frequent returns to Jackson, her willing-
ness throughout to return to Local 164, and the fact that
she did return when offered employment by the Local.
See Keller Aluminum Chairs Southern, 171 NLRB 1252,
1257 (1968). While the record is clear that in Jackson un-
employment was higher in 1980 and 1981 than it was in
1978 and 1979, no comparative data respecting Sonoma
is in the record and there is in general a paucity of infor-
mation about employment opportunities there. In 1980
and 1981, during which the employment picture in Jack-
son progressively darkened, McCann spent much less
time in Jackson than in Sonoma which by then may well
have become the preferable employment market. Given
all these circumstances, which I think make this a differ-
ent case than Knickerbocker Plastics, I find Local 164 has
not established willful loss of earnings by her intermit-
tently residing in California. Amshu Associates, 234
NLRB 791, 794 (1978); Vanguard Oil & Service, 231
NLRB 146, 147 (1977); NHE/Freeway, 218 NLRB 259
(1975); Keller Aluminum Chairs Southern, supra
After McCann went to California in June 1978, she
only stayed for a month, returning to Michigan in early
July. On July 10, she asked her friend, Joe Bane, the
chief operating officer of Teamsters Local 164 in Ponti-
ac, Michigan, if he had an opening. He told her he
would let her know if an opening came up As with her
inquiry to Dalton at the Saginaw local, Respondent sug-
gests that an inquiry for work at such a distance (83
miles) from Jackson cannot be taken seriously. However,
the evidence indicates she was a longtime friend of both
Bane and Dalton. Further, she testified credibly that she
had a place to live near Pontiac, her friend, Sarah List,
having offered her a place to stay if she could line up a
job there. On July 20 she inquired of Orlie Aukerman, a
friend at Aukerman Construction Company in Jackson,
as to the possibilities of a job there and was told he
would let her know if and when there was an opening.
On August 4 she inquired of Howard Wilkinson, presi-
dent of the National Child Safety Council, and a long-
time friend and business associate of her and her de-
ceased husband. She testified he did not have any open-
ings then but introduced her to his bookkeeper whom he
instructed to attempt to find her some work. Even
though McCann testified she had not filed an application,
Local 164 called Wilkinson to testify about their business
dealings and to the fact that no application of hers was in
his organization 's files.
On August 10 she inquired at the All Star Dairy,
where a friend had referred her, and was told that be-
cause of the company's union agreement with Local 164,
it would be best if she not work there
In September she talked to another friend, Bob Rus-
sell, who referred her to Darlene Baker at Power Trans-
917
mission Company. She telephoned Baker and was told
there were no openings. In an effort to contradict her,
Local 164 called Baker who, however, did not contra-
dict her. She testified she had no knowledge of an appli-
cation by McCann, that the company had no application
on file, and she would not be able to recall the name of
anyone who called. McCann had not testified she filed
an application, only that she had telephoned.
She remained in Jackson during October 1978 and in
that time sought work at four establishments- Arch
Supply Company, where there were no openings; Gener-
al Motors, to which she sent a resume but received no
reply, National Supply Company, where there were no
openings; and Consumer Consultants, who were unwill-
ing to train her if she would be returning to Local 164.
In November and December 1978 she kept house for
her brother in Sonoma . On November 27 she asked a
friend from Schiller Construction Company if there were
openings and was told there were none then but she
would be considered for future openings. On December
10 she sought a job with Valley of the Moon Realty
Company, where they were unwilling to hire her if she
was going to return to Local 164.
In early January 1979 she returned to Jackson and on
January 29 again registered with MESC which referred
her to a Mr. Golden. She was not hired. On February 1
she responded to a "blind" newspaper advertisement by
sending in her resume. On the same day she answered an
advertisement of Kellogg Industries, which gave a tele-
phone number, and was informed they wanted a perma-
nent employee She did not claim to have filed an appli-
cation. Shirley Johnson, the office manager of that com-
pany, in testifying they had no application nor corre-
spondence from her, did not thereby contradict her. On
February 4 she sent a resume to Unisorb Machinery In-
stallation System Division of Afelters Company in Jack-
son. An employee of that company testified that no ap-
plications and resumes are kept by the company unless
the applicant is hired McCann's notes also show that she
sent her resume to a box indicated in a newspaper adver-
tisement on both February 4 and 10 but there is no indi-
cation as to the identity of the employer or employers or
the nature of the work. On February 10, in response to a
similar advertisement , she sent a resume to Box 66. On
February 6 MESC referred her to Ken Turner at United
Color Studio in Jackson for a part-time job. She testified
(and her notes reflect) that she made an effort to apply
there in person but that her car broke down and she was
unable to get there. The fact that a MESC official could
not find reference to that employer in its records does
not establish that she did not make this effort in view of
her testimony, her notes, and the referral form from the
agency . On February 23, according to her notes, she an-
swered three more "blind" newspaper advertisements by
sending in her resume . On March 1 she sought part-time
work from Snelling and Snelling , an employment
agency. Nothing developed and on March 6 she went to
California again
In Sonoma she continued to seek interim work in the
same fashion as in Michigan , searching the newspaper,
answering "blind" advertisements, registering with the
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
California Employment Development Department
(CEDD), and asking friends Thus, on April 5 she sent in
her resume in answer to a "blind" advertisement On
April 12, May 5, 11, 18, and 25, June 1, 8, 10, 22 and 28,
and July 6 and 13 she registered with the CEDD. On
April 19 she inquired at the Sonoma Valley Hospital,
which took her name and telephone number, and also at
the Mission Convalescent Hospital in Sonoma, where a
position open earlier was already filled On May 17 she
answered an advertisement for work in the dental office
of a Dr. Alan Guerin by telephoning the number indicat-
ed and talking with someone in that office. The same day
she sent in her resume in answer to another "blind" ad-
vertisement, and applied by telephone to a Reverend
Steven Smith. On May 31 she again inquired at Sonoma
Valley Hospital.
On June 1, as a result of a CEDD referral, she applied
for office work with the Nicholas Turkey Farm. They
accepted her application and resume, but did not hire
her On June 7 she sent her resume in answer to another
"blind" advertisement On June 18 she had a lead at Ken
Hunter-Aerosport where they took her name and tele-
phone number On June 22 she was referred to a Miss
Fisher, but on following it up, the job was filled. On the
next day she applied in answer to an advertisement for a
records clerk with the Sonoma Valley School District
and was interviewed on July 5. They later filled the job
with another applicant, but placed her on a waiting list
of eligible applicants. On July 6 she responded to an ad-
vertisement for a job as receptionist and bookkeeper with
medical records experience with radiologists Drs. Titus
and Peterson. Although she filed an application, she
overheard someone reviewing the application remark,
"My God, the Teamsters Union, got fired, who needs
her." That remark sums up the general problem she, as a
discriminatee of Local 164, faced in seeking interim em-
ployment. When she called back on July 10, the job was
filled. On July 27 she sought employment with Superior
Metal Products Company, but they would not hire her
On July 31 she received the Board's decision of July
26 finding the unfair labor practices (243 NLRB 704). In
late August she received a letter from Local 164 offering
reinstatement to her former position and instructing her
to report for duty in Jackson on Tuesday, September 4,
1979. She traveled from California to Michigan to report
for duty. However, Martin Hands would not allow her
to work, saying he did not want her back, that he just
wanted her to take early retirement because they would
never get along . She replied she would have to think
about it and wished to consult with the Board's compli-
ance officer and the attorney on the case. The Board's
Regional Director, for obvious reasons of public policy,
did not approve partial compliance with the Board's
Order. See Finishline Industries, 181 NLRB 756, 758-759
(1970).
By January 1980, her reinstatement having fallen
through, she returned to Sonoma and resumed efforts to
find interim work. She learned that Leila's Boutique
needed clerical help and applied there on January 26, but
the job already was filled. On February 5 she applied for
work at St. Laurent Chevrolet, an automobile dealership,
but because she hoped to return to Local 164, they did
not hire her. On February 10 she applied to Olson Asso-
ciates, a manufacturers representative, but found no job
available. She also registered with CEDD on February
10 and again on March 7 Finally, she was hired as a
clerk in J. B. Liquors, a new retail enterprise of her
brother, working 30 to 35 hours a week Her interim
earnings from that job, which she held until her recall by
Local 164 on July 20, 1981, to a job as insurance clerk,
are reflected in the attached schedule and constitute an
offset to the backpay liability of Local 164.
Local 164 also endeavors to establish willful loss of
earnings during the backpay period by attacking
McCann's credibility generally. However, I found her to
be a credible witness both in demeanor and in substance.
Her testimony was forthright. Efforts to contradict her
were unsuccessful. Counsel emphasizes her failure over a
long period to find interim employment But lack of suc-
cess in finding work is not the test. Highview, Inc., 250
NLRB 549, 550-551 (1980). The test is whether the em-
ployee made a reasonable effort in all the circumstances
Mastro Plastics Corp, 136 NLRB 1342, 1359 (1962); Sioux
Falls Stock Yards Co., 236 NLRB 543, 551 (1978). The
record here demonstrates that she made a reasonable
effort. The defense points to things she did not do, but
such points do not counteract the credible and uncontra-
dicted evidence of what she did do which demonstrates
her effort. It is true that she filed few written applica-
tions, and also that her search, in view of the postscripts
in her resumes and her similar verbal comments to pro-
spective employers, in effect was limited to interim em-
ployment pending her reinstatement. But she made a
great many inquiries for employment, both in Michigan
and California. She did not refuse to accept any job
offer. She repeatedly returned to the Jackson area and
renewed her job search there. She remained eager to
return to the employ of Local 164, ultimately accepting a
lesser job than she was entitled to in order to do so.
Except for the period of her illness prior to June 1978, as
noted above, she remained available for interim employ-
ment. Considering all the circumstances I find she made
a reasonable effort to seek such employment and did not
indulge in a willful loss of earnings
G. The Affiliates Pension Plan
During their employment by Local 164 both Wilkins
and McCann were covered by the Affiliates Pension
Plan, such coverage constituting a fringe benefit of their
employment . Because funding for the Plan is provided
by per capita taxes paid by members of locals affiliated
with the International , including Local 164, no moneys
are paid by employees of the Local, or from funds of the
Local itself as their employer . The obligations of the
Local are to transmit per capita tax moneys to the Inter-
national and to verify to the Plan the earnings of the em-
ployee involved In order to carry out the orders of the
circuit court and the Board which are designed to fulfill
the purposes of the Act, it is necessary to make Wilkins
and McCann whole with respect to this fringe benefit.
Fibreboard Corp , 180 NLRB 142, 151-152 ( 1969).
McCann has not been made whole in this regard and it is
stipulated that the Plan will take a similar position re-
TEAMSTERS LOCAL 164
specting credited service for Wilkins. When McCann re-
tired on February 27, 1982, the Plan did not give her
credit for the entire period for which it would have
given her credit had the discrimination not occurred.
The length of credited service is a defining factor in de-
termining the amount of individual benefit. On her retire-
ment the Plan credited her with service from the date of
hire on August 1, 1955, through December 31, 1977, and
from January 1, 1982, until her retirement February 27,
1982. It did not credit her with service for the calendar
years 1978 through 1981, including the backpay period,
on the grounds she either did not perform services for
Local 164 or did not perform 1000 or more hours of
service in each of those calendar years By applying the
trust agreement in this way, the Plan significantly re-
duced her pension benefits from what she would be enti-
tled to had the unfair labor practice not occurred, thus
giving these unfair labor practices a continuing coercive
impact on her and on other employees which can only
encourage their repetition and discourage union activity
The parties stipulate that in order for these discrimina-
tees to receive credit under the Plan as if each had in
fact been a regular full-time employee in the continuous
service of Local 164 during their respective periods of
discharge, the following would be necessary (a) the Plan
would have to alter, amend, or override its governing
documents, treat the discharge periods as credited serv-
ice, and compute the discriminatees' earnings for such
credited service, (b) if, as a result of the above, Plan ac-
tuaries were to advise the Plan that additional contribu-
tions are required to fund increased benefits, the Plan
would have to notify the International in that regard and
the International would have to remit to the Plan such
additional amounts out of per capita tax receipts; (c)
Local 164 would have to verify to the Plan on the ap-
propriate form for each discrimmatee their respective
backpay periods and the amount of earnings during said
periods. In the circumstances here presented and, con-
trary to the contentions of the International and the
Plan, the Board has jurisdiction to order the Plan and
the International, which are for limited purposes the
agents of Local 164, to take the actions specified in the
stipulation in order to achieve service credits for the dis-
criminatees even though, because of the unlawful dis-
crimination neither performed actual services for Local
164 in the backpay period. Such an order does not con-
flict with their fiduciary obligations nor the provisions of
ERISA. Longshoremen ILA Local 1593 (Caldwell Ship-
ping), 243 NLRB 8 (1979), enfd 644 F 2d 408, 411 (5th
Cir. 1981). Nothing in this record establishes that the
Plan will thereby lose its tax-exempt status or violate
Section 4975 of the Internal Revenue Code. I find it ap-
propriate that Local 164, the Plan, and the International
take such action and that they be ordered to do so. It is
clear that the backpay specification as amended states a
course of action against the International and the Plan as
to which relief may be ordered. Longshoremen ILA Local
1593, supra. Whatever remedies employees may have
under the Plan are not a substitute for the statutory
remedy for unfair labor practices provided by the Act
919
H. Additional Defenses of Local 164
Part of the general defense of Local 164 appears to
attack the characters of the discriminatees Such a de-
fense is irrelevant They either are or are not entitled to
the claimed remedies by application of established back-
pay standards Neither is a respondent in these proceed-
ings Local 164 is. The remedies ordered are in vindica-
tion of public, not private, rights Finishline Industries,
181 NLRB 756, 758-759 (1970); Big Three Industrial Gas
& Equipment Co., 263 NLRB 1189 (1982).
Local 164 also characterizes the amounts claimed in
the backpay specification as so excessive as to force the
Local into bankruptcy The amounts involved are sub-
stantial but I find the formula used in computing them to
be reasonable and appropriate in the circumstances. The
amounts claimed are not the private claims of the discri-
minatees but rather result from the calculations of the
Board's compliance officer under the direction of the
Board's Regional Director They reflect losses of the dis-
criminatees resulting from the unfair labor practices.
They also reflect the many advantages of employment
with Local 164, the loss of which increases the impact of
discrimination. In part the size of the amounts now
claimed results from the passage of time Local 164, in-
stead of limiting its liability by prompt, appropriate, rein-
statement, postponed compliance pending further litiga-
tion It is not inappropriate that it, as the perpetrator of
the unfair labor practices, bear the risk of that delay.
Counsel for Local 164 argues that as a labor organization
representing large numbers of employees, it should be
treated more gently than enterprises for profit and
should be sheltered by the Board from the financial
impact of the backpay liability involved here. Unions, of
course, are not the only nonprofit organizations subject
to remedial orders of the Board under the Act. Whether
the financial distress of this respondent entails a greater
risk of adverse consequences for individuals and the
community than would similar financial distress of other
types of respondents is irrelevant. There is no legal basis
in the Act or Board precedents for treating a respondent
employer-union differently from any other type of em-
ployer.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed4
ORDER
The Respondents, their respective officers, agents, suc-
cessors, and assigns, shall make Mishele McCann Wilkins
and Evelyn McCann whole for wages and benefits lost,
in accordance with the Board and court orders herein, as
follows-
1. Local 164 shall
(a) Pay each of them the amounts of net backpay set
forth opposite her name, with interest computed thereon
4 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations, the findings , conclusions , and recommended
Order shall, as provided in Sec 102,48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
920 DECISIONS OF NATIONAL iLABOR. RELATIONS BOARD
in the,manner prescribed in the Board's Order, making
the appropriate deductions from said amounts of any tax
withholding required by state and Federal laws.
Mishele McCann Wilkins $14,044 76
Evelyn McCann 70,809.19
(b) Pay each of them as reimbursement for medical ex-
penses the amount set opposite her name
Mishele McCann Wilkins $ 193 00
Evelyn McCann 1,306.55
(c) Pay to the Central States Southeast and Southwest
Pension Plan contributions to the credit of each the
amounts set forth opposite her name
Mishele McCann Wilkins $2,850
Evelyn McCann 7,288
(d) Pay to the Local 164 severance fund contributions
to the credit of each the amounts set forth opposite her
name.
Mishele McCann Wilkins $1,297.00
Evelyn McCann 6,03468
(e) Verify to the Teamsters Affiliates Pension Plan the
earnings of each during their respective backpay periods
as if Local 164 had not discriminated against them as
found by the Board.
2 The Teamsters Affiliates Pension Plan shall credit
Mishele McCann Wilkins and Evelyn McCann with
service in the employ of Local 164 during their respec-
tive backpay periods, as specified in the stipulation
herein
3 The International shall take the actions specified in
the stipulation herein to permit the application of service
credits for Mishele McCann Wilkins and Evelyn
McCann for service in the employ of Local 164 during
their respective backpay periods
APPENDIX
MISHELE MCCANN WILKINS
Calendar Quarter Gross Backpay
Interim
Net Backpay
Medical
Severance Fund
Earnings Expenses
Pension Fund*
1-1978
2-1978
3-1978
4-1978
1-1979
2-1979
3-1979
Totals
$2,057 59
1,792 57
1,530 49**
2,39600
2,403 83
2,219 57
1,644 71
$14,044 76
$2,057 59
1,79257 $ 22
1,53049 43
2,396 00
2,403 83 30
2,219 57 42
1,64471 56
$14,044 76 $193
$ 16200
17500
161 50
203 50
221 00
221 00
15300
$1,297 00
$ 336
403
403
403
403
533
369
$2,850
EVELYN MCCANN
Calendar
Quarter
Gross Backpay
Interim
Earnings Net Backpay
Medical Severance
Expenses Fund
Pension
Fund
Telephone
Gasoline
Benefits
4-1977 $ 31000 $ 31000 $ 2100
1-1978 37200 372 22 30500 $ 336 $15270
2-1978 2,09420 $ 250 1,84420 325.00 403 165 42
3-1978 5,972 66 5,972 66 325.00 403 165.42
4-1978 4,49102 450 4,04102 32500 403 165.42
1-1979 4,605 40 350 4,255 40 325 00 403 233 80
2-1979 4,611 53 650 3,961 53 325 00 533 233.80
3-1979 5,785 06 300 5,485 06 $ 84 76 32500 533 233 80
4-1979 5,645 00 5,645 00 17 03 35500 533 233 80
1-1980 4,554 48 400 4,154 48 373 75 533 348 20
2-1980 4,55448 1,200 3,35448 54000 373 75 598 348 20
3-1980 5,991.98 1,300 4,691 98 645 64 373.75 598 348 20
4-1980 5,534 76 1,300 4,234.76 401 35 598 348 20
1-1981 5,10094 1,300 3,80094 418 60 598 366 40
2-1981 5,10094 800 4,30094 418 60 663 366 40
3-1981 6,70794 2,725 3,982 94 19 12 418 60 153 84 55
4-1981 6,198 62 2,625 3,573 62 449 51
TEAMSTERS LOCAL 164 921
Calendar
Quarter Gross Backpay
Interim
Earnings
Net Backpay Medical Severance PensionExpenses Fund Fund
Telephone
Gasoline
Benefits
1-1982 7 , 527.96 700 6,827.96 175.77
Totals $85,159.19 $70,809 19 $1,306.55 $6 ,034 68 $7 , 288 $3,794 31
' Central States , Southeast and Southwest Pension Plan
** Unavailable for work during I week.