Basin Frozen Foods

National Labor Relations Board - Board Decisions

Mar 28, 1996

320 N.L.R.B. 1072 (N.L.R.B. 1996)

1072
320 NLRB No. 102
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
1 Unless otherwise specified, all dates refer to 1994.
Basin Frozen Foods, Inc. and Teamsters, Food
Processing Employees, Public Employees,
Warehousemen and Helpers Local Union No.
760, a/w Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, AFL–CIO. Case
19–CA–21029
March 28, 1996
SUPPLEMENTAL DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS COHEN
AND FOX
On December 5, 1995, Administrative Law Judge
Michael D. Stevenson issued the attached supplemental
decision. The Respondent filed exceptions and a sup-
porting brief, and the General Counsel filed an answer-
ing brief to the Respondent’s exceptions.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Basin Frozen Foods, Inc.,
Warden, Wyoming, its officers, agents, successors, and
assigns, shall pay to Earl Lee Wheelock the sum of
$20,449, with interest to be computed in the manner
set forth in F. W. Woolworth Co., 90 NLRB 289
(1950), and New Horizons for the Retarded, 283
NLRB 1173 (1987), minus tax withholdings required
by Federal and state laws.
Max Hochanadel, Esq., for the General Counsel.
Nels A. Hansen, Esq., of Ephrata, Washington, for the Re-
spondent.
SUPPLEMENTAL DECISION
MICHAEL D. STEVENSON, Administrative Law Judge. On
July 20, 1992, the Board affirmed Administrative Law Judge
Timothy D. Nelson’s decision in the underlying case [307
NLRB 1406] (G.C. Exhs. 1(a), (b)). That decision was en-
forced by unpublished memorandum of the Ninth Circuit
which decision issued on March 4 (G.C. Exh. 1(c)).1
The parties were thereafter unable to resolve their dif-
ferences over the amount of backpay due and owing to
discriminatee Earl Lee Wheelock as a result of the Board’s
Order to Respondent to make Wheelock ‘‘whole for any loss
of earnings and other benefits suffered as result of the dis-
crimination against him.’’ Accordingly on October 24, a
compliance specification (G.C. Exh. 1(d)) issued, and on De-
cember 2, an amendment to compliance specification (G.C.
Exh. 1(i)) issued. The latter document made certain changes
in the backpay quarterly computation so that the backpay al-
leged to be due and owing to Wheelock was reduced from
the original compliance specification of $21,844 to the figure
contained in the amended document, $21,118.
On March 28, 1995, a 1-day hearing was held in Moses
Lake, Washington, with respect to ascertaining the appro-
priate backpay owed to Wheelock. As will be reflected in the
facts below, there is no issue with respect to reinstatement,
and there is no issue with respect to the formula chosen by
the General Counsel to compute backpay.
The parties agreed and stipulated at hearing that the rel-
evant backpay period began on July 26, 1990, when
Wheelock was terminated and ended on September 22, when
Wheelock declined a proper offer of reinstatement to Re-
spondent. (Tr. 65–66.)
Issues
1. Whether Wheelock failed to exercise reasonable dili-
gence in seeking interim employment; and whether
Wheelock was grossly negligent in losing two interim em-
ployment positions.
2. Whether Wheelock failed to report to the General Coun-
sel certain interim earnings and whether Wheelock claimed
excessive mileage deduction while working for an interim
employer SRTC; and if Wheelock did either or both of the
above, how is Respondent’s backpay obligation affected, if
at all.
3. Whether the Region properly included in the computa-
tions an employee named Warren and properly excluded an-
other employee named Washburn.
A. Facts
Discriminatee Wheelock, age 51, has lived in Moses Lake
for about 8 years. Prior to that, he lived in California. He
has no family and supports only himself. In January 1988,
Wheelock purchased a 10-acre farm in the Moses Lake area;
Wheelock lives on the farm and works it as I will recite in
more detail below. With the farm, Wheelock also purchased
at least two pieces of farm equipment, a digger and planter.
Wheelock testified that one of his first regular jobs in the
Moses Lake area—a job before his employment for Re-
spondent—was at Flodine, a food processing machinery
maker. After about a month’s time, doing work as a welder
and helper, Wheelock was laid off along with about 8 other
employees out of the 10-person workcrew. The owner of the
business, Flodine, told Wheelock that he would recall
Wheelock, but that never happened. In fact, after the layoffs,
company signs were removed from the business and
Wheelock was under the impression that the Company had
gone out of business.
Respondent’s only witness, Kevin Weber, president and
co-owner with other family members of Respondent, testified
1073BASIN FROZEN FOODS
2 In an application for employment dated September 25, 1992 (R.
Exh. 4), which Wheelock filled out before returning temporarily to
work at Respondent, Wheelock wrote that he worked at Ottem’s be-
tween May 1, 1991, through September 26, 1992. In a Board form
entitled, ‘‘Claimant Expenses & Search for Work Report’’ (R. Exh.
5) Wheelock wrote that he worked at Ottem’s from July 1 through
September 30, 1991, and was still there as of the end of the third
quarter, 1991. When the discrepancy was called to his attention, he
testified, ‘‘This is all off of memory, it’s all I can do.’’ (Tr. 127.)
that Flodine was not out of business—he had talked to its
owner a few days before the hearing—but had simply relo-
cated its business to another location. Wheelock credibly tes-
tified in rebuttal he was not aware of the relocation.
Another pre-Respondent job held by Wheelock in Moses
Lake was as a motorcycle mechanic at Moses Lake Honda
& Yamaha. In addition, at times other than when he worked
for Moses Lake Honda & Yamaha, and including certain pe-
riods during the backpay period, Wheelock worked as a free-
lance motorcycle mechanic. If friends or acquaintances were
able to obtain a replacement part, Wheelock would perform
the repair in his shed on his farm or on the premises of an
employer named, ‘‘Ottem’s Outdoor Power Equipment,’’
who, according to Wheelock, gave him permission to do
freelance motorcycle repairs when the business at Ottem’s
was slow. Wheelock estimated that over the past 4 years, he
earned about $300 to $400 doing freelance motorcycle re-
pairs. For this work Wheelock kept no records and did not
report any earnings from freelance work on his tax returns.
Still another pre-Respondent job held by Wheelock was at
American Foods/Susspice Potato for a few weeks of part-
time work. (Wheelock could not recall any additional details
about this job.)
In February 1990, Wheelock went to work for Respondent,
where he worked as a mechanic and welder.
After his termination on July 26, 1990, and while perform-
ing certain work on his farm, Wheelock obtained a part-time
job at Ottem’s repairing lawnmowers and other small mo-
tors.2 After Wheelock lost his job as a schoolbus driver in
March 1992 as I will recite below, Wheelock was offered an
increase in hours at Ottem’s from the several hours per week
he had been working to 20 hours per week. For the hours
he had been working at Ottem’s as of May 1991, Wheelock
received a base pay of $42.50 per week. The longer hours
were paid at the rate of $4.25 per hour.
Immediately after his termination from Respondent,
Wheelock registered at the Job Services of the State Unem-
ployment Security Division and also perused the job wanted
ads of the daily newspaper. In August or September 1990,
Wheelock learned from word of mouth, of a job vacancy
driving a schoolbus for the Moses Lake School District. Ap-
parently this job was as a substitute busdriver for the 1990–
1991 school year. During this same period, Wheelock also
worked as a substitute schoolbus driver for the Warden
School District. Then beginning in the 1991–1992 school
year, Wheelock became a regular, full-time busdriver, in
Moses Lake, working approximately 20–22 hours per week
during the time school was in session. For this work,
Wheelock was paid $490 per month based on a 12-month
year.
Sometime in early 1991, Wheelock was accused of strik-
ing children on the schoolbus. At hearing Wheelock allowed
as how he may have raised his voice on the bus to control
unruly children, but he denied striking any. As soon as these
allegations came to light, Wheelock was immediately sus-
pended from his job, and after hearing some parents had
gone to the police about the matter, Wheelock retained legal
counsel. No charges were ever filed, however. Instead, in
March 1992, Wheelock was fired by the school district. After
termination, Wheelock discussed the matter with a union rep-
resentative, who allegedly told Wheelock that any appeal
would be a waste of time and that the Union would not rep-
resent him. Accordingly, Wheelock did not pursue the mat-
ter.
After he lost his job as a schoolbus driver, Wheelock con-
tinued to work on his farm and for Ottem’s until September
1992 when he accepted an offer to return full time to Re-
spondent as a mechanic/welder/fabricator at $6 per hour.
Wheelock left this job in February 1993 to work for Carna-
tion. All agree that Wheelock’s reinstatement by Respondent
at this time did not toll backpay because Wheelock was not
being paid an appropriate wage. Other mechanics and fab-
ricators at this time were making $10 per hour.
Wheelock obtained his job lead for Carnation by seeing a
notice on the bulletin board at Jobs Services. According to
Wheelock, Carnation is a potato processing plant making
french fries. For 2 months, Wheelock worked as a potato
trimmer, cutting off bad parts of the potato. Then Wheelock
became a mechanic at which time his wages increased from
$6.80 to $10.50 per hour. On March 1, 1994, Wheelock was
fired from Carnation for violation of safety rules on two oc-
casions and for one other reason. More precisely, in violation
of Carnation’s safety rules, Wheelock was repairing equip-
ment without putting a padlock on a circuit breaker to ensure
that no one could turn on the machinery while he was work-
ing on it. For this violation Wheelock was warned, then he
violated the same safety rules again. Then he inspected a
bearing, found it suitable, only to have it fail soon after. For
these three reasons, Wheelock was fired.
Wheelock returned to the Job Services Agency and found
a temporary job at Skills, Resources & Training Center
(SRTC), a day labor agency. Wheelock was referred by
SRTC to Stemilt in Wenatchee, Washington, a location 78
miles one way from Wheelock’s farm. During May and June
Wheelock worked on this job for 32 days as a welder and
fabricator, making $11 per hour. In addition, Wheelock re-
ceived a mileage allowance of $10 per day.
On July 1, Wheelock began working as a mechanic for
Moses Lake Kawasaki, a job he continued to hold through
the day of hearing and perhaps currently. According to Re-
spondent’s Exhibit 3, purporting to be a payroll register for
Moses Lake Kawasaki, Wheelock earned $1296 in the sec-
ond quarter and $4,044.60 in the third quarter. In the amend-
ment to compliance specification (G.C. Exh. 1(i)), appendix
B, it is alleged that Wheelock earned $5341 in the third
quarter (this is the sum of the two amounts referred to
above). Wheelock could not account for the discrepancy ex-
cept to explain he began working for Kawasaki on July 1,
the day the business opened. The Board agent who along
with attorney for the Region, James Sand, performed the
backpay computations in this case, speculated in his testi-
mony that the discrepancy could be an accounting error. (Tr.
60.) No one from Kawasaki was called to testify in this case.
I turn now in conclusion of this segment to discuss
Wheelock’s farm activities during the backpay period. As
1074 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 For the years 1991 and 1992, Wheelock testified he performed
farm-related work: first quarter about 20–30 hours per week; second
quarter, same; third quarter, about 40 hours per week; and fourth
quarter, about 15 hours per week. This estimate included such tasks
as recordkeeping, efforts to sell crops, and related activities. (Tr.
135–137.)
4 In 1993, while working at Carnation, Wheelock did not plant a
crop of sweet corn.
5 I do not understand Respondent to be arguing that Wheelock
failed to find substantially equivalent employment; rather Respond-
ent argues that Wheelock failed to search diligently for any employ-
ment. In any event, either argument lacks merit. The reasonableness
of the effort to find substantially equivalent employment should be
evaluated in light of the individual’s background and experience and
the relevant job market. NLRB v. Westin Hotel, 798 F.2d 1126, 1130
(6th Cir. 1985). While it is true that a job as a busdriver is less
skilled and lower paid than that of a mechanic, in the absence of
evidence to show that Wheelock acted improperly, I find that he was
entitled to lower his sights by seeking less remunerative work after
he unsuccessfully attempted for a reasonable period of time to locate
interim employment comparable to his improperly denied position.
NLRB v. Madison Courier, Inc., 472 F.2d 1307, 1321 (D.C. Cir.
1972).
previously noted Wheelock owns a 10-acre farm. His most
consistent crop has been apples grown on about 3-1/2 acres.
By 1994, Wheelock had hired a person to prune the trees,
to irrigate, and to otherwise look after the orchard. The ac-
tual harvest of the apples is performed by migrant workers.
It is unclear whether this hired hand and the person who
rented a portion of Wheelock’s farm are one and the same.
In any event, Wheelock also planted potatoes and sweet
corn, both of which, like the apples are harvested in the fall.
The work required for the farm varies by the season with
more required in the spring and fall, and less required in the
winter and summer.3 Whatever season, given the relatively
small size of the farm and the fact that Wheelock hired oth-
ers to do some of the work, Wheelock testified that he was
not precluded from seeking full-time work when he didn’t
have any nor was he precluded from performing full-time
work when he had it.4 The farm’s profit and loss is reported
appropriately on Wheelock’s income tax return.
B. Analysis and Conclusions
1. Legal principles
I begin with some basic principles of applicable law. As
held in La Favorita, Inc., 313 NLRB 902 (1994), ‘‘It is well
settled that the finding of an unfair labor practice is presump-
tive proof that some backpay is owed. . . . 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.’’ In discharging its burden, the General
Counsel has discretion in selecting a formula which will
closely approximate the amount due. The Government need
not find the exact amount due nor adopt a different and
equally valid formula which may yield a different result. Mi-
nette Mills, 316 NLRB 1009 (1995).
Once the General Counsel has shown the gross backpay
due in the specification, the employer bears the burden of es-
tablishing affirmative defenses which would mitigate its li-
ability, including willful loss of earnings and interim earn-
ings to be deducted from any backpay award. La Favorita,
Inc., supra; NLRB v. Brown & Root, 311 F.2d 447, 454 (8th
Cir. 1963). Any uncertainties or ambiguities should be re-
solved in favor of the wronged party rather than the wrong-
doer. United Aircraft Corp., 204 NLRB 1068, 1069 (1973).
A discriminatee must make reasonable efforts to secure in-
terim employment in order to be entitled to backpay. The
burden is on the Respondent to establish that the discrim-
inatee failed to exercise reasonable diligence in searching for
work—‘‘[The Board] emphasizes that the standard is that of
reasonable diligence, not the highest diligence, [and] that the
sufficiency of a discriminatee’s efforts to mitigate backpay
are determined with respect to the backpay period as a whole
and not based on isolated portions of the backpay period.’’
See Electrical Workers IBEW Local 3 (Fischbach & Moore),
315 NLRB 1266 (1995).
2. Wheelock’s alleged failure to remain in the labor
market and alleged failure to search diligently
for employment
In this segment, Respondent contends in effect that
Wheelock worked too long and too hard on his farm and in
‘‘other employment’’ to satisfy his obligation to mitigate
damages. Little time need we spend on this argument. First,
Respondent does not specify what ‘‘other employment’’ is
being referred to. This may be a reference to Wheelock’s oc-
casional repair of motorcycles, either on his farm or while
working at Ottem’s. The record does not show how much
time Wheelock spent repairing motorcycles for friends, but
judging by his meager earnings, it can not reasonably be ar-
gued that motorcycle repair was an impediment to seeking
employment.
As to Wheelock’s work on the farm, this at least presents
a colorable claim. It may be answered as follows: The duty
of mitigation does not require a discriminatee to exhaust
every possible potential employment opportunity. Only a
‘‘reasonable’’ effort is required. See, e.g., Southern Silk
Mills, 116 NLRB 769, 773 (1956).
Based on the evidence in the record, I find that Respond-
ent has not proven that Wheelock failed to remain in the
labor market and failed to search diligently for employment.
As noted above, Wheelock owned his farm since 1988, and
there is no showing that the amount of farm-related work
performed by Wheelock in 1991 and 1992 was any greater
than the amount of farm-related work performed in prior
years, when Wheelock was also employed full time at Re-
spondent or elsewhere. Accordingly, I find no evidence to
support Respondent’s contention that Wheelock left the labor
market to work on his farm.
Similarly, Respondent has also failed to show what more
Wheelock would have done to search diligently for employ-
ment.5 In this regard, I agree with the General Counsel’s ar-
gument (Br. at 4) that Wheelock’s diligent efforts are proven
by the fact that he found several jobs during the backpay pe-
riod from the various sources he used.
In sum, I find that registration with the state agency Job
Services, periodic visits to that agency for job leads on the
bulletin board (even though the usual procedure for job refer-
rals was for the state agency to call the registrant when an
appropriate position opened up), and, perusal of newspaper
want-ads, and utilization of a word of mouth network con-
1075BASIN FROZEN FOODS
6 Respondent’s reliance on two cases, NLRB v. Arduini Mfg. Corp.,
394 F.2d 420 (1st Cir. 1968), and NLRB v. Pugh & Barr, Inc., 207
F.2d 409 (4th Cir. 1953), is misplaced. First, both cases reversed the
Board on the issue of a diligent job search. Since I am bound by
decisions of the Board, even where reversed by a court of appeals,
see Iowa Beef Packers, 144 NLRB 615, 616–617 (1963), these cases
do not constitute binding precedent. In any event, they may both be
distinguished on their facts. The discriminatees in the cited cases ap-
parently only registered with the state unemployment offices, while
in the instant case, Wheelock did that and more and unlike the
discriminatees in the cited cases, was somewhat successful for his
efforts.
stituted adequate diligence in the context of all the evidence
produced in this case. See Electrical Workers IBEW Local 3
(Fischbach & Moore), supra; NLRB v. Miami Coca-Cola
Bottling Co., 360 F.2d 569, 575–576 (5th Cir. 1966).6
3. Wheelock’s alleged failure to report all his
interim earnings
In Paper Moon Milano, 318 NLRB 962 (1995), the ad-
ministrative law judge recited the proper legal standard:
In American Navigation Co., 268 NLRB 426 (1983),
the Board determined that discriminatees would be de-
nied backpay for all quarters in which it is found that
they intentionally concealed employment or earnings
from the Board. The Board stated (id. at 428): ‘‘The
remedy will be applied, of course, only in cases where
the claimant is found to have willfully deceived the
Board, and not where the claimant, through inadvert-
ence, fails to report earnings.’’ In a footnote to this
statement, the Board stated that it is confident that the
administrative law judges were capable of distinguish-
ing honest error from deceit.’’
At pages 6-7 of his brief, Respondent makes several con-
tentions in support of his general claim that Wheelock con-
cealed interim earnings.
a. Farm income
Respondent never showed that Wheelock had net earnings
from his farm operation. Only net earnings are considered to
be interim earnings deductible from gross backpay. Regional
Import & Export Trucking Co., 318 NLRB 816 (1995). And
even if Respondent had shown the farm had net earnings,
Respondent has also failed to show why the net earnings
would not be considered supplemental income which is in-
come from a moonlighting job held by the discriminatee
prior to the unlawful discharge. See Birch Run Welding &
Fabricating, 286 NLRB 1316 (1987). Supplemental income
is not considered to be interim earnings.
b. Income from motorcycle repair
Respondent argues that Wheelock had earned $300 to
$400 per year fixing motorcycles. As a basis for this conten-
tion, Respondent directs my attention to Wheelock’s testi-
mony in the transcript (p. 80), to which I now turn:
Q. MR. HOCHANADEL: Now, can you give us an esti-
mate for, say, for instance, for the last four years of
how much money you would have earned—you did
earn as a motorcycle mechanic?
A. Oh, probably 3 or $400.
At page 104 of the transcript, the same subject was revisited:
Q. MR. HOCHANADEL: Now, apart from the $300 in
private motorcycle repairs which you estimated your
made over the past four years or so, did you have any
other earnings during the backpay period from July of
1990 through September of 1994 which were not re-
ported on any of your tax returns for those periods of
time?
A. MR. WHEELOCK: Not that I can remember.
Based on the two references to the transcript, I conclude
that Respondent is in error when he argues that Wheelock
earned $300 to $400 per year. Instead, the $300 to $400 is
over 4 years’ time. To the extent there is ambiguity or uncer-
tainty in the evidence, and I don’t find any, these doubts are
resolved against Respondent the wrongdoer, because an of-
fending respondent is not allowed to profit from any uncer-
tainty caused by its discrimination. Minette Mills, supra at
1011.
Moreover, I find that these earnings constitute supple-
mental income and were properly considered by the General
Counsel in the amendment to compliance specification, ap-
pendix B, footnote 3. (G.C. Exh. 1(i).) In sum, I find that
Respondent has failed to prove that Wheelock willfully failed
to report any earnings from motorcycle repair as interim
earnings. See Arthur Young & Co., 304 NLRB 178 (1991).
c. Part-time earnings at Ottems
As noted in the facts, footnote 2, there is a discrepancy
in the dates as to when Wheelock worked at Ottems, but not
as to the amount he was making, $42.50 per week. To at-
tempt to clarify this matter further, I turn back to Wheelock’s
testimony in the transcript:
Q. GENERAL COUNSEL: Now there’s confusion about
whether you worked from May 1, 91 to September the
1st, 92 right at Ottem’s? You see that.
A. Yes.
Q. Where one could gather that’s the time you
worked there. But then when you look at Resp.’s 5, you
could also conclude that you worked there from July
the 1st, 1991 till September the 30th 1991. Do you see
that?
A. Yes.
Q. Do you have a recollection today of when you
worked at Ottem’s, what year and for how long?
A. I worked there part-time off and on and I can’t
remember the dates.
Q. Well, we’re talking about a period of a whole
year.
A. yeah.
Q. From May the 1st, 1991, till September the 26th,
1991, is one period of time. But then when you go
from September the 26th, ’91, to September the 26th,
’92, is a whole year. Take you time now and see if you
can remember when you worked there.
A. Well, I know for sure I worked there from the
time I was fired as a bus driver until I was offered the
job at Basin Frozen Foods.
Q. And when were you fired as a bus driver?
1076 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
A. March of ’92?
Q. Well—
A. I think that’s when it was. It’s been three years.
I can’t remember for sure. I think it was about March
of ’92.
Q. Okay. And do we have any other records, do you
know of any other records that would show when you
went to work and when you stopped working at
Ottem’s?
A. I don’t know, just my W-2’s and——
(Tr. 127–28.)
All of this is important because in the amendment to compli-
ance specification (G.C. Exh. 1(i)), appendix B, there is no
allowance for interim earnings at Ottem’s until the second
quarter of 1992. In the application for employment (R. Exh.
4) where Wheelock stated he started at Ottem’s on May 1,
1991, the document is dated September 28, 1992. And in the
Claimant Expense & Search for Work Report (R. Exh. 5)
where Wheelock stated he started at Ottem’s on July 1, 1991,
the document’s date is not readable, but it was submitted
shortly after September 30, 1991.
Based on this evidence and keeping in mind that employ-
ees are not disqualified for backpay merely because of poor
recordkeeping or uncertainty as to memory. See Hickory’s
Rest, 267 NLRB 1274, 1276 (1983); Diversified Case Co.,
272 NLRB 1099 (1984), and also keeping in mind that the
Respondent must not profit from ambiguity in the record, I
make the following findings. I will credit Wheelock’s written
statement to the Board (R. Exh. 5) and find interim earning
of $42.50 per week times 12 weeks for the third quarter of
1991. Thus, with gross of $3345 less interim of $2327 (origi-
nal figure) increased by $510 equals new interim of $2837
and a new net of $508 for third quarter of 1991.
d. Mileage deduction for SRTC job (second
quarter 1994)
In driving to the 32-day job at SRTC, Wheelock deducted
mileage of 156 miles per day roundtrip. This figure should
have been reduced by 24 miles per day as the amount of
miles Wheelock would have had to drive from his farm to
Respondent if he had never been fired. So the proper mileage
figure is 132 miles per day rather than the 150 miles claimed
by the General Counsel in footnote 9 of appendix B. Repeat-
ing the calculation recited in footnote 9, I take 132 miles per
day roundtrip times .25 cents per mile. This yielded a $33
per day offset less Wheelock’s $10 per day mileage allow-
ance from SRTC. Accordingly $23 per day for 32 days
($736) should be deducted from SRTC interim earnings of
$2811 as an allowable expense to give a net interim figure
of $2075. This changes the net quarterly backpay figure to
$2617 ($159 net savings in backpay).
4. Wheelock’s termination from two interim jobs
As noted in the facts, Wheelock was fired from his jobs
at the Moses Lake School District (March 1992) and at the
Carnation Company (March 1994). At pages 7–8 of its brief,
Respondent contends that these facts, ‘‘precludes him from
recovering from the employer.’’
In Ryder System, 302 NLRB 608, 610 (1991), enfd. 983
F.2d 705 (6th Cir. 1993), the Board stated that discharge
from interim employment, without more, is not enough to
constitute willful loss of employment. (Citation omitted.)
Rather the Board said, ‘‘A respondent must show deliberate
or gross misconduct on the part of the discharged employee
in order to establish a willful loss of employment.’’ By this
standard, I find that Respondent has failed to make the nec-
essary showing.
As to the schoolbus driver job, Wheelock was terminated
based on the allegations of one or more children. He denied
the allegations at hearing and absent additional proof, I am
unable to determine whether or not he actually committed the
acts in question.
Wheelock’s loss of his job at Carnation under the cir-
cumstances recited in the facts presents a much closer ques-
tion. But here again, I note that Wheelock was promoted to
a job as mechanic just 2 months after being hired as a trim-
mer, and his pay increased from $6.80 per hour to $10.50
per hour. There was no evidence relating to the facts and cir-
cumstances of Wheelock’s discharge other than what he him-
self testified to. Therefore, I will first recite Wheelock’s rel-
evant testimony on direct examination:
Q. I see. So you got discharged at Carnation for
what reason again?
A. For—well, they had three instances in there, and
two of them were with the lock-out tag-out procedures,
and one of them was a bearing failed that I had in-
spected.
Q. So you got discharged.
A. Yes.
Q. And what was the reason for your discharge?
A. Failing to use the lock-out tag-out procedures and
not inspecting a bearing.
Q. Well, what happened? Why did you not use the
lock-out procedures?
A. I just—the thing was clear across—the switch
thing was clear across the yard, and there was a switch
right beside the machine I was operating, and it was
during shutdown, so I just turned it off and repaired the
machinery.
Q. What is it? A double switch and you just turned
this one off?
A. Yes.
Q. Okay. Let’s call that Switch 1, Switch 1 being the
closest to you.
A. Yeah.
Q. Switch 2 being across the football field, or what-
ever.
A. Yeah.
Q. If Switch 1 is off, can you turn the machine on
with Switch 2?
A. No.
Q. So you had the thing under total control at the
Switch 1, in close proximity to where you were
working—
A. Yes.
Q. —and you turn it off.
A. All Switch 2 is is a circuit breaker.
Q. Okay. So that if Switch 2 is on—or off, Switch
1 won’t work.
A. Yeah. Yes.
1077BASIN FROZEN FOODS
7 The two Board employees declined Weber’s offer to contact
Lucas by telephone in another state and make him available for a
telephone interview.
8 According to Warren’s application for employment, dated April
4, 1990, he applied for a position in ‘‘maintenance,’’ and he pos-
sessed experience as a ‘‘maintenance electrician.’’ Warren also wrote
Continued
Q. But if Switch 2 is on, Switch 1 will work to turn
it off and on.
A. Yes.
(Tr. 98–99.)
And on cross-examination:
Q. You worked at Carnation for about two years.
A. No, about a year.
Q. About one year. Okay. You’re right. So in Feb-
ruary of ’94, you were terminated from Carnation for
violating some safety rules?
A. Yes.
Q. And where were you supposed to put this pad-
lock? On the circuit breaker or on the switch?
A. On the circuit breaker.
Q. Okay. And this was so the machine wouldn’t be
turned on while somebody is working on it?
A. Yeah, so the line going to the machine couldn’t
be activated.
Q. And were you working there alone or were others
also working there?
A. What do you mean?
Q. Well, were there other mechanics working in the
same area?
A. On the two that—on those two, no, they weren’t.
Q. You were working alone.
A. Yes.
Q. And so you figured you turned the switch off and
that was good enough.
A. Yeah, I turned it off where I was working. The
switch was right where I was working.
Q. You didn’t go over and turn off the circuit break-
er.
A. I flat forgot it.
Q. And that happened on two occasions?
A. Yes.
Q. And you were warned once.
A. Yes.
Q. And then the second time you were terminated.
A. Pretty much, yeah.
Q. Well, do you want to add to that?
A. Well, the—I forgot a bearing, forgot to check a
bearing.
Q. Okay. You were supposed to inspect a bearing?
A. Yeah.
Q. And you didn’t do it?
A. I did, but it was good when I left.
Q. Then it failed shortly after that?
A. Yes, it did.
Q. How soon after that?
A. They said half an hour after the start of the next
shift.
(Tr. 118–119.)
In reviewing this testimony line by line, it appears
Wheelock has been forthright in his testimony. I also find
that Wheelock’s termination does not equal or exceed the
Board’s standard for willful loss of earnings. He committed
no offense involving moral turpitude and his conduct was not
otherwise so outrageous as to suggest deliberate courting of
discharge. Ryder System, supra. According to Wheelock’s
testimony, his failure to lock the circuit breaker did not place
him or anyone else in immediate jeopardy. Second, while he
was warned once, there is no evidence that he was told that
he faced discharge for a second transgression. As to the
failed bearing, this seems like an event that would happen
to anyone, even the most experienced and careful mechanic.
Moreover, the Board has held that a discharge based on work
performance does not constitute willful loss of earnings. Ar-
thur Young & Co., supra at 180–181. For the reasons stated,
I find that Respondent has failed to meet its burden of proof
with respect to this contention. See P*I*E Nationwide, 297
NLRB 454 (1989), enfd. in pertinent part 923 F.2d 506 (7th
Cir. 1991).
5. Was employee Warren properly included and
employee Washburn properly excluded in the General
Counsel’s calculations
In this segment, Respondent challenges the decision of
Board Agent James Kobe, witness for the General Counsel,
and Board Attorney James Sand, who did not testify, to in-
clude and exclude certain individuals.
Before deciding this issue, certain background will be
helpful.
a. Background
In August, Kobe and Sand went to Respondent’s place of
business, and for a period of 2 days examined payroll
records and personnel files, and consulted with Weber and
his attorney as to which employees should be included and
which excluded in the comparable employee formula utilized
in this case. Apparently due to a misunderstanding, a long-
term employee and apparent supervisor named Jim Lucas
was absent. Lucas was believed to have a knowledge of em-
ployee classifications which in some cases was greater than
company records which Kobe described as inconsistent and
disorganized. In the absence of Lucas,7 Kobe and Sand per-
formed their job as well as they could, given the condition
of company records.
The Board agents then compiled a list of mechanics and
their pay rates for the relevant backpay period. Some em-
ployees were classified in company records as mechanics but
did primary refrigeration or fabrication work. In some cases,
Weber objected that a certain employee tentatively selected
as a comparable should be excluded because of a demon-
strably higher wage rate for long period of time. Where this
could be shown, the employee was excluded so as not to
skew the comparable wage rate. Kobe testified that ulti-
mately the Board agents computed a median figure rather
than an average, because the median was more fair to both
sides.
b. Warren
Neither Warren nor Washburn testified. However, accord-
ing to Weber, Warren was hired as an electrician8 and was
1078 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that he had experience working as an electrician in a mine in Ne-
vada. (R. Exh. 1.)
9 I note in Wheelock’s application for employment, dated Septem-
ber 28, 1992, Wheelock listed position desired ‘‘Mechanic’’ with ex-
perience as ‘‘welder’’ (R. Exh. 4).
10 Kobe gave names of other employees who he said were
undisputedly mechanics, Washburn, Phillips, and Sullivan and whose
wages were consistent with Warren’s. Another person named Lang
Weber was a highly paid specialist doing fabricating and special
projects and Kobe agreed to exclude him.
11 In light of this conclusion, it is unnecessary to comment on Re-
spondent’s alleged new calculations without Warren. (Br. at 8.) In
passing, I do observe that Respondent has made no showing as to
how he arrived at the figures recited in his brief.
12 Kobe also described a policy to exclude any employee from the
calculations when it couldn’t be known for certain if the employee
was a mechanic for the entire quarter. (Tr. 41.)
13 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided in Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
paid more than a mechanic. Subsequently, electricians and
mechanics began to be used interchangeably with apparently
some cross-training involved. The question came up whether,
had Wheelock not been fired by Respondent, would
Wheelock have qualified as an electrician. Weber responded,
‘‘As far as the electrician, I don’t believe so. He, you know,
was mechanically inclined, moving parts. That’s what he did
all of his life, working on motorbikes, and that’s moving
parts, not electrical.’’ (Tr. 146.) I reject this testimony of
Weber and find under Board law, Wheelock is entitled to the
benefit of the doubt that he would have qualified for elec-
trical work with higher pay and therefore Warren was prop-
erly included in the calculation.9
I further credit Kobe’s testimony that for most, but not all
quarters, Warren’s wages were around the median for and
consistent with mechanics’ wages.10 In the third quarter,
1990, however, Warren was the highest paid employee
(wages $4847, next to employee Child—$4115, next to em-
ployee Washburn $3904).
Finally, I also credit Kobe’s testimony that when he and
Sand were on Respondent’s premises and reviewing records,
neither Weber nor anyone else protested that Warren should
not be included.
Based on the discussion above, I conclude that Warren
was properly included in Kobe’s and Sand’s calculations be-
cause the evidence shows he was a comparable employee.11
c. Washburn
Washburn was included in the calculation for all relevant
quarters except for one, first quarter, 1992. Respondent chal-
lenges this single quarter exclusion. According to Kobe,
Washburn was excluded for the quarter in question because
his earnings were ‘‘anomalous,’’ that is, a comparison of his
earnings for the quarter with those earned by other com-
parable employees in the group shows Washburn’s were far
below what other people earned.
In attempting to explain the anomaly, Kobe testified that
Washburn was terminated on July 21, 1991, and then rehired
sometime in the first quarter of 1992, but the exact date
could not be ascertained from company records.12 Respond-
ent’s attorney reported Washburn’s earnings for the first
quarter of 1992 as $2,957.82. (Tr. 38–40.)
I accept and credit Kobe’s testimony and find Respondent
has the burden of showing why the decision as to Washburn
and Warren were improper and Respondent has failed to do
so. Accordingly, I reject Respondent’s contention as to both
Warren and Washburn.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended13
ORDER
The Respondent, Basin Frozen Foods, Inc., Warden, Wyo-
ming, its officers, agents, successors, and assigns, shall pay
to Earl Lee Wheelock the sum of $20,449, the backpay pro-
vided, with interest thereon to be computed in the manner
described in F. W. Woolworth Co., 90 NLRB 289 (1950),
and New Horizons for the Retarded, 283 NLRB 1173 (1987).
There shall be deducted from the amounts due any tax with-
holding required by law.
APPENDIX
SUMMARY OF QUARTERLY INTERIM AND NET BACKPAY
COMPUTATIONS
Quarter GROSS INTERIM Net
3-90 $4,115 $2,574 $1,541
4-90 3,647 2,888 759
1-91 4,441 2,327 2,114
2-91 4,427 2,327 2,100
3-91 3,345 2,837 508
4-91 4,826 2,327 2,499
1-92 3,736 2,546 1,190
2-92 3,798 1253 2,545
3-92 4,497 1253 3,244
4-92 4,243 2911 1,332
1-93 3,742 3,951 0000
2-93 4,230 7,252 0000
3-93 4,862 7,252 0000
4-93 334,543 7,252 0000
1-94 4,682 6,048 0000
2-94 4,692 2,075 2,617
3-94 4,032 5,341 0000
Total $20,449
3 For the fourth quarter, 1993, the original gross backpay figure
was $3669. Then in the amendment to compliance specification, it
was changed to $34,543 without explanation. This appears to be an
error.