Colorado Forge Corp.

National Labor Relations Board - Board Decisions

Aug 31, 1987

285 N.L.R.B. 530 (N.L.R.B. 1987)

530 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Colorado Forge Corporation and Colorado Springs
Die Sinkers, Local No. 520 . Cases 27-CA-6499
and 27-CA-6692
31 August 1987
SUPPLEMENTAL DECISION AND
ORDER
CHAIRMAN DOTSON AND MEMBERS JOHANSEN
AND BABSON
On 8 June 1983 Administrative Law Judge Wil-
liam J. Pannier III issued the attached supplemental
decision.' The Respondent filed exceptions and a
supporting brief. The General Counsel filed an an-
swering brief.
The National Labor Relations Board has delegat-
ed 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
decided to affirm the judge's rulings, findings,2 and
conclusions and to adopt the recommended
Order.3
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Colorado
Forge Corporation, Colorado Springs, Colorado,
its officers, agents, successors, and assigns, shall
take the action set forth in the Order.
' Original decision reported at 260 NLRB 25 (1982)
8 The Respondent has excepted to some of the judge's credibility find-
ings The Board's established policy is not to overrule an administrative
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 reversing
the findings
3 In his order, the judge specifies that the net backpay of employees
Collins and Whiteaker should be held in escrow by the Regional Direc-
tor Regarding the possible lapse of Collins' backpay award, we note that
the Regional Director should follow the requirements of Petal Pink Nov-
elty, Inc, 280 NLRB 1071 (1986), as amended by 284 NLRB 620 (1987)
Whiteaker's escrow fund also was established to resolve several issues
which affect net backpay We note that the Regional Director should, in
addition to resolving these issues, resolve a discrepancy between the date,
29 February 1981, when Whiteaker claims he quit an interim job, and 10
February 1981, when the interim employer claims he quit the same job
Chairman Dotson adopts the judge's findings that the Respondent has
failed to demonstrate that Stanley R Whiteaker engaged in willful con-
cealment of interim earnings and therefore finds no basis for disallowing
Whiteaker the backpay he is found to be entitled to See Chairman Dot-
son's dissenting opinion in Ad Art, Inc, 280 NLRB 985 (1986)
Interest will be computed in accordance with our decision in New Ho-
rizons for the Retarded, 283 NLRB 1173 (1987) Interest on amounts ac-
crued prior to 1 January 1987 (the effective date of the 1986 amendment
to 26 U S C § 6621) shall be computed in accordance with Florida Steel
Corp, 231 NLRB 651 (1977)
William J. Daly, Esq, for the General Counsel
Martin Semple, Esq. (Semple & Jackson), of Denver, Col-
orado, for the Respondent.
285 NLRB No. 63
David S. Tempia, of Colorado Springs, Colorado, for the
Charging Party.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
WILLIAM J. PANNIER III, Administrative Law Judge.
This matter was heard by me in Colorado Springs, Colo-
rado, on January 25, 1983 On February 9, 1982, the Na-
tional Labor Relations Board issued a Decision and
Order' finding, insofar as is pertinent in this proceeding,
that Colorado Forge Corporation (Respondent) had vio-
lated Section 8(a)(1) of the National Labor Relations
Act, 29 U.S C. § 151 et seq (the Act), by discharging
Stanley R. Whiteaker, Frank Trujillo, Joe Hunt, Kavin
Shepherd, Robert Collins, and Bernard Kathman on
April 18, 1980, because of their protected concerted ac-
tivities. Thereafter, Respondent entered into a stipulation
providing in pertinent part that subsequent enforcement
or review of the Board's Order would be limited to the
validity of the backpay due and, further, to the question
of whether Respondent has fulfilled its obligations under
the Order with respect to reinstatement of Whiteaker.
On September 3, 1982, the Regional Director for Region
27 of the National Labor Relations Board issued a back-
pay specification and notice of hearing. Based on the
entire record, on briefs filed on behalf of the parties, and
on my observation of the demeanor of the witnesses I
make the following
FINDINGS OF FACT AND CONCLUSIONS
I. BACKGROUND AND ISSUES
By way of background, and as set forth more fully in
the Board's Decision and Order, Respondent engages in
the manufacture and sale of steel forgings in Colorado
Springs. One of the two major production departments
in its forging operation is the hammer shop. Following
economically motivated layoffs earlier in the year, result-
ing in a reduction in force in both departments, there
were four hammer crews-each consisting of a hammer-
man, a heater , and trimmer-working in the hammer
shop on April 17, 1980. one on which hammerman Whi-
teaker worked, another on which hammerman Trujillo
worked, a third on which Hunt was hammerman and, fi-
nally, one on which an unidentified hammerman worked.
With respect to the other three discriminatees, on that
date, Collins had been working as a heater and Kathman
as a trimmer on Whiteaker's crew, and Shepherd had
been assigned as a trimmer on Hunt's crew Supra, 260
NLRB 25. The Board concluded that Respondent violat-
ed Section 8(a)(1) of the Act by discharging those six
employees on April 18, 1980, and ordered that each of
them be offered "immediate and full reinstatement to
their former positions or, if those positions no longer
exist , to substantially equivalent positions without preju-
dice to their seniority and rights and privileges previous-
ly enjoyed." Id. Obviously, the backpay periods for each
of the discriminatees commenced on April 18, 1980. Due
' 260 NLRB 25
COLORADO FORGE CORP
to certain postdischarge misconduct, described in the
Decision and Order, Respondent's liability for backpay
to Kathman tolled on May 28, 1980. In the backpay
specification, the General Counsel pleads that the back-
pay periods for Hunt, Collins, and Shepherd run until
February 7, 1982, when employees more senior than
each of them had been laid off by Respondent. With
regard to Trujillo, the specification pleads that his back-
pay period ends on March 14, 1982, and, further, alleges
that the backpay period for Whiteaker had not ended as
of the time of issuance of the specification.
Respondent makes four general challenges to the gross
backpay computation and, in addition, poses various con-
tentions with respect to certain of the discriminatee-
claimants, most specifically with regard to Whiteaker. In
connection with the general challenges, due to the irreg-
ularity of the incomes of the three hammerman-claimants
(Whiteaker, Trujillo, and Hunt), the General Counsel has
devised a formula, denominated as an earnings percent-
age or multiplier.2 In essence, the General Counsel de-
termined the average earnings for a hammerman em-
ployed by Respondent during, the period January 1 to
April 18, 1980, and then compared the individual earn-
ings of Whiteaker, Trujillo, and Hunt against that aver-
age, arriving at a percentage of average earnings for
each hammerman-claimant. Then, for each week of the
post-April 18, 1980 backpay period, the General Counsel
projected gross backpay for each hammerman-claimant
by multiplying the average pay of hammermen who ac-
tually had worked for Respondent during that week by
the earnings percentage or multiplier for each of the
hammerman-claimants, thereby arriving at'a projected,
estimated gross backpay figure for each hammerman-
claimant for each week of the backpay period.
Respondent does not dispute the necessity for devising
a formula to compute the gross backpay for the hammer-
man-claimants. Nor does it contend that the methodolo-
gy of the earnings percentage or multiplier devised by
the General Counsel is inappropriate. However, it argues
that for Whiteaker and Trujillo, the base period chosen is
too short and that, instead, their earnings record for all
1979, as well as for the period of 1980 preceding their
discharges, should have been included as well.3
Respondent's second general contention pertains to the
durations of the backpay periods for all hammerman-
claimants and for Shepherd as well. According to Re-
spondent, the fluctuating complement of personnel em-
ployed by it after April 18, 1980, would have mandated
that each one of them be terminated or, at least, laid off
for certain periods. Thus, Respondent argues that the
backpay of at least one hammerman-claimant must cease
2 The gross backpay for the remaining three discrimmatee-claimants
(Shepherd, Collins, and Kathman) has been computed by a measure that
"is the average of regularly employed employees' earnings working in
the classifications of the heater, trimmer, and helper on a weekly basis,
and then added to compute quarterly earnings." Respondent poses no
challenge to this method of measuring the gross backpay of these three
discriminatee-claimants
3 In addition, urges Respondent, the computation for Whiteaker fails to
take account of the fact that he had been unable to work due to injury
between March 10 and 28, 1980, with the-result that, although Whiteaker
had been compensated during that period, any money that he had re-
ceived was not the result of "earnings from employment "
531
as of October 6, 1980, when hammerman Wilson Fields
had been terminated and never had been replaced; the
backpay of another hammerman-claimant must cease as
of January 13, 1981, when hammerman Rudy Brito had
been terminated and never had been replaced; and
"Hammerman Lawrence . . . was in a layoff status from
October 19 through November 30, 1981, for lack of
work, so that no back pay should have been calculated
for any of the hammermen for that period ...." With
respect to Shepherd, Respondent argues "that the reduc-
tion in the work force at [Respondent] would have af-
fected Shepherd at the time Breeden was laid off for lack
of work from 1/13/81 through 1/19/81, and from 2/6/81
through 4/2/81, a thirteen-week period, and from the
termination of House on 12/31/80, until the hiring of
Thompson on 3/11/81, a period of fourteen weeks
11
Respondent's third general argument is that during the
periods immediately following their unlawful termina-
tions, on April 18, 1980, each of the discriminatee-claim-
ants had failed to exercise reasonable diligence to secure
substantially equivalent employment. In support of that
argument, Respondent contends that the evidence shows
that Whiteaker had made only two formal applications
for interim employment between April 18 and May 27,
1980, and, further, that Whiteaker admitted that he had
only "fooled around" during that period of time; that
Trujillo had made only four applications for employment
between April 18 and July 11, 1980; that Hunt had sub-
mitted only six formal applications for interim employ-
ment from April 18 to July 7, 1980; that Shepherd had
made only seven or eight formal applications for employ-
ment between April 18 and August 27, 1980, and, fur-
ther, had noted on a compliance form that he had been
on "Vacation" from "4/18/80-5/2/80"; that Collins had
sought employment from but five prospective employers
from April 18 to September 1980; and that Kathman had
submitted only four applications for interim employment
between April 18 and May 28, 1980.
Respondent's final general argument is that as the dis-
criminatee-claimants were not working on at least some
of the days of the unfair labor practices hearing in this
matter-July 31 and August 1, 11, and 12, 1980-and,
further, had not been seeking interim employment on
those days, excluded from gross backpay should be the
days on which each of them had attended the hearing.4
In addition to these general arguments, Respondent
makes specific additional contentions directed toward the
activities of particular individual claimants during the
backpay period of each of them. Inasmuch as these con-
tentions are numerous and are closely related to the indi-
vidual circumstances of each particular claimant, they
will be recited in section II, D, infra, in the subsection of
each claimant to which they are applicable.
4 Given the number of substantial arguments presented in this matter,
this argument is not one on which further analysis should be wasted For,
"the law is clear that an employee who has been the target of an unfair
labor practice need not choose between mitigation of damages and the
vindication of his statutory rights " NLRB Y. Pilot Freight Carriers, 604
F 2d 375, 378 (5th Cir 1979) Accord: Sopps, Inc, 189 NLRB 822 (1971)
532 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
iI. ANALYSIS
A. The Earnings Percentage or Multiplier
As set forth above, due to the irregularity of the
weekly earnings of Respondent 's hammermen , the Gen-
eral Counsel has chosen a formula to measure projected
earnings of the three hammerman-claimants during their
backpay periods Respondent does not dispute the pro-
priety of this procedure nor, in the final analysis, can it
do so "A back pay order is a reparation order designed
to vindicate the public policy of the statute by making
the employees whole for losses suffered on account of an
unfair labor practice ." Nathanson Y. NLRB, 244 U.S. 25,
27 (1952). "And in applying its authority over back pay
pay orders , the Board has not used stereotyped formulas
but has availed itself of the freedom given it by Congress
to attain just results in diverse , complicated situations."
Phelps Dodge C o r p . v. NLRB, 313 U S 177, 198 (1941).
Thus, in devising backpay formulas where "it is difficult
to determine precisely the amount of back pay which
should be awarded to an employee the Board may
use as close an approximations as possible , and may
adopt formulas reasonably designed to produce such ap-
proximations ." NLRB v. Brown & Root, 311 F.2d 447,
452 (8th Cir. 1963) Indeed , "the Board is only required
to employ a formula reasonably designed to produce to
approximate awards due." Trinity Valley Iron Co. v.
NLRB, 410 F.2d 1161 , 1177 fn. 28 (5th Cir . 1969). And
"an order of restoration by way of back pay . 'should
stand unless it can be shown that the order is a patent
attempt to achieve ends other than those which can
fairly be said to effectuate the policies of the Act."'
NLRB v. Seven - Up Bottling Co. of Miami, 344 U.S 344,
346-347 ( 1953), quoting from Virginia Electric & Power
Co. v. NLRB, 319 U S . 533, 540 ( 1943).
Respondent , however , takes issue with the General
Counsel's choice of the period January 1 to April 18,
1980, as the basis for computing the earnings percentage
or multiplier . In doing so , Respondent does not contend
that the General Counsel is seeking to accomplish a non-
statutory objective . That is, Respondent does not con-
tend that the General Counsel has chosen that period "to
achieve ends other than those which can fairly be said to
effectuate the policies of the Act " Id Rather , Respond-
ent argues that because Whiteaker and Trujillo had
greater percentages of absences during 1979 , an earnings
percentage or multiplier that included all that year, as
well as the portion of 1980 prior to their unlawful dis-
charges, would be a "more representative time frame"
and would yield "a truer representation " of their em-
ployment history Although a facially logical argument,
closer analysis of it in the circumstances presented by
this case warrants the conclusion that it cannot be said
that the General Counsel has chosen an inappropriate
period as the basis for formulating the earnings percent-
age or multiplier for Whiteaker and Trujillo.
The ultimate objective of any gross backpay formula is
prospective ; it is intended as a means for determining
what discriminatees would have received had they not
been unlawfully terminated . Consequently , it is a pro-
spective measure True, such a formula can be based, as
here, on retrospective information But that information
is used only as a basis for purposes of projection. Conse-
quently, it is important that such information not be stale
or unrepresentative and, further, that it reflect as nearly
as possible circumstances as they existed during the back-
pay period. In the instant case, Respondent's proposal
fails on both these counts.
In the first place, although Respondent has shown that
Whiteaker's and Trujillo's absence rates during 1979 had
been higher than in that portion of 1980 prior to their
unlawful discharges, it has made no showing that their
absences during 1979 were representative of their likely
attendance rate during the backpay period or, for that
matter, of their overall attendance rate while employed
by Respondent. It is not unusual for absence rates to be
higher during certain periods than during other periods,
reflecting periods of unusually prolonged or unusually
recurring illnesses. Trujillo first had been employed by
Respondent in the mid-1970s and Whiteaker had been
employed by it since mid-1978. Yet, Respondent makes
no argument that these periods prior to January 1, 1979,
should be taken into account in ascertaining their earn-
ings percentages or multipliers Presumably, if its true
concern had been with developing as accurate a reflec-
tion of their attendance rates as possible, it would have
included their earlier employment periods as well. That
it did not do so is some indication that its argument is
based on no more than the fact that Whiteaker's and
Trujillo's records during 1979 were such that Respond-
ent derives a benefit from inclusion of that year
This conclusion is but reinforced when considered in
light of the fact that Respondent makes no similar argu-
ment with respect to the earnings percentage or multipli-
er of hammerman-claimant Hunt, even though he had
become employed by Respondent in late October 1979.
In short, in arguing for inclusion of 1979 earnings in
computing the earnings percentage or multiplier of Whi-
teaker and Trujillo, it cannot be said that Respondent is
doing other than the very thing that it accuses the Gen-
eral Counsel of doing- isolating an arbitrary period. But,
in contrast to Respondent's proposed period, there is a
basis in law for the General Counsel's choice of the
period immediately prior to the unlawful discharges as
the appropriate one for formulating the earnings percent-
age or multiplier, inasmuch as at least one circuit court
of appeals has held that formulation of a measure of
gross backpay based on the period immediately prior to
unlawful action is "a reasonable formula " NLRB v. Pilot
Freight Carriers, supra, 604 F 2d at 379.
In addition, there is present in this case a factor that
serves virtually to preclude consideration of earnings
prior to 1980 in formulating the earnings of Respondent's
hammermen as occasioned by such matters as amount of
work and overtime available, in addition to matters pecu-
liar to particular individual hammermen, such as rate of
absenteeism or speed at which specific hammermen
work. Yet, as found in the underlying decision, at the be-
ginning of 1980, Respondent made a determination "that
the personnel cutbacks and reduction in the number of
parts manufactured would be necessary," and to imple-
ment that decision, Respondent formulated "an hourly
schedule measured by the minimum number of employ-
COLORADO FORGE CORP 533
ees needed to achieve an 80 percent productivity level."
260 NLRB at 31. Inasmuch as Respondent 's operations
during the backpay period were conducted , so far as the
record discloses , in accordance with its early 1980
changes in the nature of its operations , it cannot be said,
at least on the basis of this record , that earnings during a
prior period , before the changes, would more accurately
measure the hammerman -claimants ' earnings during the
backpay period than would their earnings during the
most recent period , between initiation of the changes and
their unlawful terminations.
In sum , Respondent has failed to show that the 1979
absentee rates of Whiteaker and Trujillo had been typical
and, more important , that their earnings during that year
could be concluded to be either typical or more likely to
reflect their earnings during the backpay period, had
they not been unlawfully terminated . Conversely, the
General Counsel has chosen to use a period more proxi-
mate to the time of their unlawful discharges , and one
which occurs after Respondent 's determination to reduce
the number of parts that it manufactured and to schedule
"the miminum number of employees needed to achieve
an 80 percent productivity level." Id In these circum-
stances, it cannot be said that the earnings percentage or
multiplier formulated by the General Counsel achieves
ends other than ones that effectuate the policies of the
Act, nor that the period used to formulate the earnings
percentage or multiplier is one that is not designed to ap-
proximate as nearly as possible the gross backpay that
Whiteaker and Trujillo would have earned after April
18, 1980, had they not been unlawfully terminated on
that date.
As set forth above, in the area of the earnings percent-
age or multiplier , Respondent makes an added argument
to the effect that inasmuch as Whiteaker had been unable
to work from March 10 to 28, 1980, due to injury to his
finger suffered while working for Respondent, any
money that he had received during that period had rep-
resented disability compensation and, accordingly , should
not be counted as "earnings ." However, in computing in-
terim earnings , only disability payments awarded as repa-
ration for physical damage suffered are excluded in de-
termining net backpay. By contrast, where workers'
compensation payments constitute payments for wages
lost, they are counted as interim earnings and are deduct-
ed from gross backpay American Mfg. Co. of Texas, 167
NLRB 520, 522-523 (1967 ). In the final analysis, the in-
stant situation presents no more than the reverse side of
the American Mfg. Co. coin That is, if certain disability
payments are treated as "wages" and others are not so
treated in determining interim earnings, logic and parallel
reasoning dictate that the same approach be followed
whenever , as here, disability payments become involved
in gross backpay computations.
The sole explanation of the nature of the disability
payments paid to Whiteaker in March 1980 was provided
by Whiteaker himself Not surprisingly , given the rela-
tive complexity of the subject , he appeared confused
when interrogated concerning their nature Thus, when
asked whether the Workmen 's Compensation Board had
classified him as partial permanent disability, Whiteaker
replied, "Right I forget what it was . They had it going
three ways, disability in my hand, my arm, and my
body." Nevertheless, any conclusion that might be
drawn from this testimony to the effect that the pay-
ments had constituted reparation for physical damage
suffered is dispelled by his subsequent description of the
actual nature of the disability suffered and, further, by
his testimony that by April 1980, "I was getting in pretty
good shape. My hand was starting to heal pretty good I
could run a hammer. The three bore I couldn't have no
trouble with. The 6500, the bigger hammer, the bigger
steel, I had a lot of trouble " These latter accounts tend
to show that he had been recovering from his injury and
had suffered no permanent impairment as a result of it
In the final analysis, it is Respondent, as the wrongdo-
er, who bears the burden of "establish[ing] facts which
would negate the existence of liability to a given employ-
ee or which would mitigate that liability " NLRB v
Brown & Root, supra, 311 F 2d at 454 Accord Golay &
Co. V. NLRB, 447 F.2d 290, 295 (7th Cir 1971), cert.
denied 404 U.S 1058 (1972), NLRB v. Madison Courier,
472 F.2d 1307, 1318 (D.C. Cir. 1972) Respondent has
failed to show either that Whiteaker had suffered a per-
manent disability as a result of his finger injury or, of
possibly greater significance to its argument here, the
payments made to Whiteaker had been categorized as
reparation for physical damage, as opposed to being pay-
ments for wages lost. Yet, the injury had occurred while
Whiteaker had been working for Respondent and pre-
sumably it possessed, or at least had access to, documen-
tation that would show whether Whiteaker's award had
been for the former, rather than for the latter That it
failed to produce any such documents leaves Respondent
in the position of having failed to meet its burden of
showing that those payments had not been categorized as
wages and, accordingly, should not be included as earn-
ings in computing Whiteaker's earnings percentage or
multiplier See, e.g., A. S. Abell Co., 257 NLRB 1012
(1981). To the contrary, by confining its argument only
to the contention that "Whiteaker had no earnings from
employment" (emphasis added) between March 10 and
28, 1980, Respondent tacitly concedes that those pay-
ments had not been reparation for physical damage suf-
fered
In the final analysis, there is no basis on which to con-
clude that the disability payments to Whiteaker, for the
period March 10 to 28, 1980, had been other than wages
and, consequently, includable in earnings used to com-
pute his earnings percentage or multiplier Respondent
has not contended that the payments were reparation for
permanent partial disability There is no evidence to sup-
port such a contention because there is no evidence that
Whiteaker had suffered any type, no matter how limited,
of permanent disability Therefore, these payments are
properly included in Whiteaker's earnings between Janu-
ary 1 and April 18, 1980.
B. The Lengths of the Backpay Periods
Respondent argues that the backpay specification erro-
neously assumes that all three hammerman -claimants
would have been employed by it throughout the backpay
period when, urges Respondent , one hammerman had
534 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
been terminated on October 6, 1980, and never been re-
placed, another one had been terminated on January 13,
1981, had never been replaced, and a third one had been
on layoff status from October 19 through November 30,
1981, due to lack of work To support that assertion, Re-
spondent produced an abstract (R. Exh 1) on which is
listed the names of hammermen employed by it on and
after April 18, 1980, and its principal owner and former
president George J. Fiedler Jr. testified that the reason
for the approximately 40-day layoff in late 1981 had been
due to lack of work inasmuch as Respondent had not
been able to keep the hammers going during that time
In his brief, counsel for the General Counsel argues
that "it must be assumed that three hammermen existed
throughout the backpay period," characterizing Re-
spondent's Exhibit 1 as "no more than a handwritten
compilation of assertions " Yet, the fact is that, at the
commencement of the hearing, a 57-minute recess was
taken to allow counsel to examine records that each in-
tended to offer Immediately on resumption of the hear-
ing following that recess, Respondent offered Respond-
ent's Exhibit 1, explaining that it "is a summary indicat-
ing who were employed as hammermen from 4-18, 1980,
up through the present time with their seniority date,
dates on which any of those individuals were laid off;
dates of recall; and termination date " Asked if there was
any objection to its receipt, counsel for the General
Counsel replied that he had no objection, save for "a
matter of clarification with regard to Mr Whiteaker.
The seniority date is listed as 10-31-79 We have a dis-
pute about that, and I certainly wouldn't stipulate to
that " Moreover, as the hearing neared conclusion, coun-
sel for the General Counsel stated, with reference to Re-
spondent's Exhibit 1, "I assume that the list is in for all it
says right now," an assumption that was not contradicted
and one that illustrates that counsel for the General
Counsel clearly realized that the information recited on
Respondent's Exhibit I was something "more than a
handwritten compilation of assertions "
A review of Respondent's Exhibit I discloses that, in
addition to the hammerman-claimants, Respondent had
employed five nonsupervisory hammermen on and after
April 18, 1980: Wilson Fields, David Warnick, Scott
Fraser, Rudy Brito, and Junior Lawrence Nevertheless,
even accepting the information recited on Respondent's
Exhibit 1, there is a problem in this area resolved neither
by Respondent's Exhibit 1 nor by other evidence re-
ceived in this proceeding. As set forth above, the Board
concluded that on April 17, 1980, Respondent had em-
ployed four hammermen• Whiteaker, Trujillo, Hunt, and
an unidentified individual. It is the identity of the latter
that gives rise to a problem in relying fully on Respond-
ent's Exhibit 1. According to the information on that ex-
hibit, Fraser and Brito had both been hammermen since
they had commenced working for Respondent on De-
cember 21, 1979, and on April 8, 1980, respectively That
is, in contrast to Fields and Warnick-each of whom is
shown as having been reclassified to hammermen after
April 18, 1980-no similar notation of reclassification is
shown for Fraser and Brito Consequently, if reliance is
placed wholly on Respondent's Exhibit 1, as Respondent
urges that it should be, then it would follow that Fraser
had been working as a hammerman for Respondent since
December 21, 1979, and that Brito had been doing so
since April 8, 1980 But, of course, that conclusion
would be contrary to the one reached in the Board's de-
cision-that as of April 17, 1980, there had been only
one other hammerman in addition to Whiteaker, Trujillo,
and Hunt 5
Furthermore, other documentation presented in this
case creates doubt as to whether either Fraser or Brito
had been working as a hammerman on April 17, 1980
Respondent's own seniority list for January 1980 lists
Fraser as a "Cold Inspector " Moreover, Respondent's
seniority list for April 25, 1980, lists Brito as a "Utility-
man " Accordingly, contrary to the implication of the in-
formation listed on Respondent's Exhibit 1, neither
Fraser nor Brito had been working as a hammerman
throughout the duration of their employment with Re-
spondent 6 This, of course, means that, at least insofar as
the evidence in this proceeding shows, neither Fraser nor
Brito could have been the unidentified hammerman who
had been working on April 17, 1980.
Nor is his identity clarified by examination of Re-
spondent's January 1980 seniority list, at least not absent
further evidence that is not present in this case Accord-
ing to that seniority list, Respondent employed both
Lawrence and William L Vincent as hammermen in Jan-
uary 1980 Lawrence was laid off on January 4, 1980, as
part of the group layoff that the Board concluded had
been economically motivated. So far as the record dis-
closes, Vincent had continued working after that date
Yet, Vincent's name does not appear on the April 25,
1980 seniority list and there is no evidence describing the
point at which he had ceased to be employed by Re-
spondent. However, to the extent that it is accurate, Re-
spondent's Exhibit 1 purportedly reflects the hammermen
complement on and after April 18, 1980. Inasmuch as
Vincent's name is not included on that list, that would
lead to the conclusion that his employment with Re-
spondent had ceased prior to April 18, 1980, and, ac-
cordingly, that he could not have been the hammerman
listed as being unidentified in the Board's decision.
A similar gap arises even if consideration of the matter
is expanded to include employees in the classification
"Hammerman-Learner " On the January 1980 seniority
list, Hunt is so classified. So, too, are Wilson Fields and
Sam R. Sanchez. On Respondent's Exhibit 1, Fields is
listed as a hammerman but a notation by his name reads
"was trainee under 4-21-80" Consequently, he could not
have been the unidentified hammerman referred to in the
5 It Is important to keep in focus that I lack authority to redecide mat-
ters already decided by the Board in Its Decision and Order of February
9, 1982, and, further, lack authority to consider the evidence adduced at
the underlying unfair labor practice proceeding leading to findings of fact
reached in that decision Fire Alert Co, 223 NLRB 129 , 130 fn 5 (1976),
enfd 566 F 2d 696 (10th Cir 1977)
6 It IS, of course , possible that Fraser had been transferred to the posi-
tion of hammerman between the time that the January 1980 seniority list
had been prepared and April 17 , 1980 However , even if that is a fact-
and there is no evidence in the record to support finding it to be one-
that transfer is not reflected by R Exh I Consequently , the exhibit's In-
accuracy remains even if such an assumption were to be made
COLORADO FORGE CORP 535
Board's decision. Sanchez' name does not appear on Re-
spondent's Exhibit 1 and the seniority list for April 25,
1980, lists him as a "Heater." Accordingly, there is no
basis for concluding that Sanchez, like Hunt, had been
reclassified from learner to hammerman between Janu-
ary, when the seniority list had been prepared, and April
18, 1980-at least not without further evidence that is
lacking here. In these circumstances, there is no basis for
inferring that Sanchez could have been the unidentified
hammerman.
All of which leads to the following analysis. In its de-
cision, the Board found that four hammermen had been
employed on April 17, 1980. No evidence has been pre-
sented in this proceeding that would warrant reexamina-
tion of that conclusion, by which I am bound: that a
fourth unidentified person had been employed in that
classification immediately prior to the unlawful dis-
charges of Whiteaker, Trujillo, and Hunt. Although Re-
spondent's Exhibit 1 purportedly lists completely all
hammermen employed on and after April 18, 1980-and,
indeed, does include the names of Whiteaker, Trujillo,
and Hunt-there is no one listed on Respondent's Exhibit
1 who could qualify as the unidentified individual whom
the Board concluded had been employed as one immedi-
ately prior to the unlawful terminations. Nor is there any
evidence on which to base a conclusion that the uniden-
tified hammerman had been laid off or terminated on
April 17, 1980. Consequently, there is some basis for
questioning not the accuracy of the information listed on
Respondent's Exhibit 1, as far as it goes, but for doubting
the completeness of the information listed on it.7 The
doubt is only heightened by examining one further aspect
of the information that is included on Respondent's Ex-
hibit 1, in conjunction with Respondent's argument con-
cerning that aspect and in light of certain other evidence.
According to Respondent's Exhibit 1, Fields had been
reclassified to hammerman on April 21, 1980, and Law-
rence had been recalled as a hammerman on May 13,
1980. Consequently, as of the latter date, according to
Respondent's Exhibit 1, Respondent had employed four
hammermen in the following order of company seniori-
ty:' Fields, Fraser, Brito, and Lawrence. Fields was ter-
minated on October 6, 1980. Brito was terminated later,
on January 13, 1981. No evidence was produced to show
they had been replaced following their terminations.
Indeed, Fielder testified specifically that Brito had not
been replaced inasmuch as, at the time of his termination,
Respondent had "cut back at that time." Based on Field-
er's testimony and in the absence of evidence that either
Fields or Brito had been replaced, Respondent argues
that backpay for one hammerman-claimant should end
on October 6, 1980, when Fields had been terminated
and, further, that backpay for another hammerman-
' Consequently, although the General Counsel had an opportunity to
examine Respondent's records underlying the information recited on R
Exh I, that would not resolve the question of whether additional infor-
mation had existed that had pertained to matters not included on R Exh
I
Fiedler testified that an employee's seniority commences as of the
time of that employee's most recent commencement of employment with
Respondent and, further, that subsequent reclassifications or changes in
position do not affect that seniority date
claimant should end on January 13, 1981, when Brito
had been terminated. Yet, this argument is valid only if
these terminations would have occurred notwithstanding
the identities of the particular people occupying the clas-
sification from which the termination had been made.
That is, but for Respondent's unlawful terminations of
Whiteaker, Trujillo, and Hunt, the latter, along with the
unidentified hammerman, would have continued working
for Respondent after April 18, 1980. So far as this record
shows, Fields and Brito became hammermen only be-
cause of the unlawful terminations of April 18, 1980, and
absent those terminations they would not have had the
opportunity to become hammermen because there would
have been no vacancies in that classification for them to
fill. The issue, then, is whether the terminations of Octo-
ber 6, 1980, and January 13, 1981, would have occurred
if the hammerman-claimants had continued working or,
put another way, whether the terminations occurred be-
cause of factors unique to Fields and Brito.
Other than Fiedler's "cut back" remark, in connection
with Brito's termination, Respondent has presented no
evidence about why Fields had been terminated on Octo-
ber 6, 1980, and about why Brito had been terminated on
January 13, 1981. Seemingly, Fiedler was saying that
Brito's termination had been motivated by business consi-
deratons and, presumably, that economic considerations
had motivated Respondent's decision to terminate him.
Yet, there is one overriding factor that tends to contra-
dict any argument, at least on the basis of this record,
that Brito's termination, and that of Fields as well, had
resulted from economic considerations.
During the hearing, Respondent agreed that "as a gen-
eral principle" seniority determines the employees select-
ed for layoff whenever there is a reduction in force. But,
at the time that Fields had been terminated, he had been
the most senior of the four employees shown on Re-
spondent's Exhibit 1 as having been classified as hammer-
man-having approximately 6 months' seniority over
Fraser, 10 months' seniority over Brito, and 11 months'
seniority over Lawrence. Similarly, when he had been
terminated, Brito had been more senior than Lawrence,
who had been recalled and, thus, whose seniority had re-
started, over a month after Brito had been hired on April
8, 1980 In short, had these terminations resulted from an
economic reduction in force, hammermen other than
those chosen would have been selected for termination
under Respondent's seniority policy That this policy had
not been followed in terminating Fields and, later, Brito,
and that the record is devoid of any explanation about
why it was not followed, is a strong indication that they
had not been terminated because of economic consider-
ations that would have led to the termination of two
hammermen in any event, without regard to the identi-
ties of the occupant of that classification, as opposed to
factors unique to each of them that had led Respondent
to single out Fields and Brito for termination.
That conclusion-that Fields and later Brito had been
singled out for reasons other than economic ones-is but
reinforced by one other factor. According to Respond-
ent's Exhibit 1, Respondent has chosen to treat Fields
and Brito as having been "TERMINATED" as of Octo-
536 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ber 6, 1980, and as of January 13, 1981, respectively. Yet,
Respondent's Exhibit I contains a separate column for
"LAID OFF." In instances where Respondent undispu-
tedly took action because of economic considerations-
such as in the case of Lawrence on October 19, 1981,
and of Whiteaker on May 28, 1982-it has listed those
personnel actions in that later column. But for some un-
explained reason, it chose, instead, to list Fields as
"TERMINATED" on October 6, 1980, and Brito as
"TERMINATED" on January 13, 1981. Clearly, there is
a certain finality to terminating, rather than laying off, an
employee. That Respondent resorted to the former in the
case of Fields and Brito tends to show that it had consid-
ered their employment with Respondent culminated alto-
gether. That is, that it did not view them as being eligi-
ble to be "RECALLED," another column on Respond-
ent's Exhibit 1, at some later date as had been the case,
for example, with Lawrence when he had been laid off
for lack of work in October 1981 and then had been re-
called at the end of the month.
The ultimate question at this point is whether, had
they not been terminated unlawfully on April 18, 1980,
Whiteaker, Trujillo, and Hunt would have ceased work-
ing steadily for Respondent at some point in time after
that date. It is Respondent who bears the burden of
showing this. Buncher Co. v. NLRB, 405 F.2d 787, 789
(3d Cir. 1969), cert. denied 396 U.S. 828 (1969). It has
chosen to support its claim that two of them would have
ceased work-one on October 6, 1980, and another on
January 13, 1981-by relying on Respondent's Exhibit 1
and on the "cut back" testimony of Fiedler. The latter is
quite vague. The record is devoid of any evidence show-
ing the exact status of Respondent's economic situation
at that time Moreover, it tends to be contradicted by the
choice of Brito for layoff when a less senior hammer-
man, Lawrence, had continued working, notwithstanding
Respondent's policy of following seniority in selecting
employees when there is a reduction in force. It tends
also to be contradicted by the evidence that, at that time,
Brito had been "TERMINATED" rather than simply
"LAID OFF." I place no weight on Fielder's vague, un-
corroborated, and unconvincing assertion of a "cut back"
on January 13, 1981.
As far as it goes, Respondent's Exhibit 1 lists no ham-
merman as having been added to Respondent's comple-
ment immediately after Fields and, then, Brito had been
"TERMINATED " Yet, no evidence whatsoever is pre-
sented concerning Respondent's reason for not having
replaced Fields-whether because Respondent had made
a decision not to replace him or, instead, had sought
without success to hire a replacement or, alternatively,
had simply replaced him with another employee or em-
ployees on an ad hoc basis, without reclassifying those
replacements on those occasions. Again, other than
Fielder's "cut back" remark, there is no direct evidence
concerning Respondent's reason for not having replaced
Brito• whether because of conscious choice, unsuccessful
efforts to locate a replacement, or transfer of hammer-
men's work on an ad hoc basis for performance by em-
ployees who were not reclassified. Indeed, ultimately
Brito had been replaced inasmuch as Warnick was classi-
fied permanently as a hammerman in July 1981. No evi-
dence was presented to show why this had occurred or
even concerning the circumstances leading to selection
of Warnick for reclassification In fact, Respondent did
not produce any evidence showing for how long War-
nick had been performing hammerman's duties prior to
the time that he actually had been reclassified from
heater to hammerman Fielder was interrogated regard-
ing the matter, but was unable to recall who had been
operating the hammer after Brito's termination. In fact,
Fielder conceded that, based on the payroll records,
Warnick could have been doing so
In the final analysis, it is Respondent who bears the
burden of producing evidence that would negate or miti-
gate the hammerman-claimants' gross backpay. NLRB v.
Brown & Root, 311 F.2d 447 (8th Cir. 1963). Here, it was
shown that a hammerman was "TERMINATED" on
October 6, 1980, and that another one was "TERMI-
NATED" on January 13, 1981. However, in neither in-
stance has Respondent presented specific and credible
evidence as to the circumstances leading to those termi-
nations. Although it argues, based on the absence of evi-
dence of immediate replacement of either terminated em-
ployee, that their terminations had been economically
motivated, there is no evidence to support that argument
and, as described above, several factors that tend to
refute it and to show, instead, that their terminations had
been for reasons peculiar to Fraser and Brito, as individ-
ual workers. In these circumstances, there is no basis for
concluding that had Whiteaker, Trujillo, and Hunt not
been unlawfully terminated-and had they continued
working for Respondent, along with the unidentified
hammerman, after April 18, 1980-Fraser and Brito
would ever have become hammermen after that date
and, more importantly, that Whiteaker, Trujillo, or Hunt
would have been engaged in the same type of conduct
that had led Fraser and then Brito to be "TERMINAT-
ED."
A more troubling issue emerges from Respondent's 40-
day layoff of Lawrence on October 19, 1981. The infor-
mation on Respondent's Exhibit 1 discloses that as of
that date, at least, Fraser, Warnick, and Lawrence had
been employed as hammermen. Unaccounted for, of
course, is the unidentified hammerman that the Board
concluded had been employed on April 17, 1980, and
still, so far as the record discloses, had been working on
October 19, 1981. Because the record is devoid of infor-
mation concerning that individual, it cannot be said that
there is evidence showing that one of the hammerman-
claimants would have been selected for layoff at that
time, when Lawrence had been laid off, rather than the
unidentified hammerman. To the extent that it might be
speculated that Fraser had been the unidentified hammer-
man-having been reclassified between publication of the
January 1980 seniority list and April 17, 1980-the short
answer is that, under any measure, he had been less
senior than Whiteaker, Trujillo, or Hunt 9 As a result,
' There is a dispute concerning whether Whiteaker's seniority had
been restarted in October 1979, or whether he had been rehired immedi-
ately or I week after a termination that had occurred during that month
However, inasmuch as Fraser had not been hired until December 21,
Continued
COLORADO FORGE CORP 537
consistent with Respondent's policy of following seniori-
ty when there is a reduction in force, it would have been
Fraser-not Whiteaker, not Trujillo, and not Hunt-that
would have been laid off on October 19, 1981, even, as-
suming that Fraser had not earlier been terminated.
The possibility that Fraser might have been the ham-
merman who was unidentified in the Board's decision
raises one other factor that, although doubt rooted in
speculation (because that fourth hammerman remains un-
identified), leads to an argument made by Respondent
and one that must be addressed. Once Lawrence had
been laid off, there had been, according to Respondent's
Exhibit 1, only two hammermen left working: Warnick
and Fraser. Thus, proceeds the argument, even if Whi-
teaker, Trujillo, and Hunt had not been unlawfully termi-
nated and even if the unidentified hammerman (assumed
to be Fraser for purposes of this and the succeeding
paragraph) had still been employed on October 19, 1981,
the fact that Respondent had continued operations for 40
days thereafter with only two hammermen, according to
Respondent's Exhibit 1, shows 1 hat only two of the ham-
merman-claimants , at best, could have survived the
layoff of October 19, 1981. In short, concludes this argu-
ment, if four hammermen had been working prior to that
date, two of them would have been laid off.
Yet, although this argument appears logical, the record
to support it is, at best, quite sparse. Other, than Fiedler's
testimony that Respondent "couldn't keep the hammers
going at that time," there is no specific evidence con-
cerning Respondent's economic situation leading to the
October 19, 1981 layoff of Lawrence. Moreover, at no
point did Fiedler, specifically, or Respondent, generally,
describe what action Respondent would have taken had
four hammermen (Whiteaker, Trujillo, Hunt, and Fraser,
or the unidentified hammerman) been working on that
date. That is, there was no assertion by Respondent that
it would have taken the step of laying off two hammer-
men at that time. Accordingly, any conclusion that a
second hammerman would have been laid off at that
time is one that would have to be based solely on sheer
speculation as to how Respondent would have handled
the situation had it been employing four hammermen on
October 19, 1981. Yet, the Board and the circuit courts
of appeals repeatedly have cautioned against making
business judgments for respondents. See, e.g., Super Tire
Stores, 236 NLRB 877 fn. 1 (11978); Keosaian v. NLRB,
630 F.2d 36, 40 fn. 4 (1st Cir. 1980), and, more specifical-
ly, against constructing defenses for respondents that
have not been advanced. See, e.g., Inland Steel Co., 257
NLRB 65, 67-68 (1981), enfd. mem. 681 F.2d 819 (7th
Cir. 1982). Therefore, even had Whiteaker, Trujillo, and
Hunt not been unlawfully terminated in April 1980, and
even assuming that Fraser had been the fourth hammer-
man prior to their terminations, it cannot be concluded,
based on the evidence, that Respondent would have laid
off two of them on October 19, 1981. There is simply no
basis for concluding that any one other than Fraser, the
least senior, would have been laid off at that time, nor
1979, whether Whiteaker's seniority date was September 17, 1978, as the
General Counsel contends, or October 31, 1979, as Respondent contends,
this argument does not affect his seniority standing vis-a-vis Fraser.
for concluding that either Whiteaker, Trujillo, or Hunt
would not have survived the layoff and would not have
continued working for Respondent after that date.
In sum, had Whiteaker, Trujillo, and Hunt not been
unlawfully terminated on April 18, 1980, it can only be
presumed that they would have continued working for
Respondent in that capacity until, at least, the late winter
of 1982.110
Respondent further argues that Shepherd would have
been laid off for lack of work from January 13 to 19 and,
again, from February 6 through April 2, 1981. Moreover,
and apparently alternatively, Respondent argues that
Shepherd would not have worked from the termination
of House on December 31, 1980, until the hiring of
Thompson, on March 11, 1981. At the outset, this latter
contention was not one that Respondent raised either in
its answer or in its supplement to answer filed in this
proceeding. Accordingly, it does not pertain to an issue
framed by the pleadings and, at least properly, is not a
contention entitled to consideration at this stage under
Board's Rules and Regulations, Section 102.54(b), inas-
much -as information pertaining to it clearly was among
the "matters within the knowledge of the respondent."
Moreover, to say simply that House had been terminated
is to say no more than what Respondent has said about
the terminations of Fields and Brito. That is, that some
event had occurred with regard to House that had led
Respondent to conclude that it no longer wanted to
employ him. Of itself, House's termination does not show
that Shepherd, had he not earlier been unlawfully dis-
charged and had he still been employed by Respondent
at the end of 1980, would have been terminated on that
day, as had been House. Nor is there any other evidence
that can be said to show as much.
Similarly, of itself, the fact that Thompson had not
been hired until March 11, 1981, fails to show that Re-
spondent had decided to leave the position occupied by
House vacant until that time. Nor is there other evidence
that Respondent had made such a decision although,
again, clearly it was within Respondent's power to
present such evidence if it had existed. The fact that the
position vacated by House had remained unoccupied
until March 11, 1981, is as consistent with inability to
locate a replacement as it is with unwillingness to retain
a replacement. In sum, this issue is not framed by Re-
spondent's pleadings and Respondent has failed to show
that Shepherd, had he not earlier been unlawfully termi-
nated, would have been unemployed from December 30,
1980, to March 11, 1981, as a result of the discharge of
an employee on the former date and its failure to hire an
employee in that same classification until the latter date.
Respondent's argument based on the two temporary
layoffs of Breeden is quite vague. Clearly, Breeden had
been laid off from January 13 to 19, and again from Feb-
ruary 6 to April 2, 1981. Yet, Breeden is less senior than
10 The General Counsel concedes that Hunt's backpay period ends on
February 7, 1982, and that Trujillo's backpay period ends on March 14,
1982 As discussed in further detail infra, due to an issue concerning
whether Respondent made a valid offer of reinstatement to him, Whi-
teaker's backpay period has not yet tolled according to the General
Counsel
538 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Shepherd, having been hired on October 30, 1980, al-
though laying off employees in order of seniority when
there is a reduction in force, and absent any explanation
as to why an exception likely would have been made to
that policy for Breeden and Shepherd, had the latter still
been working for Respondent during early 1981, there is
no basis for an assumption that Breeden would not have
been chosen for layoff even had Shepherd continued
working after April 18, 1980.
Presumably, Respondent's point is that Breeden had
been employed, in the final analysis, to fill the vacancy
created by the termination of Shepherd and thus, but for
the latter event, Breeden never would have been on the
payroll and Shepherd would have been the least senior
trimmer on January 13 and February 6, 1981. But, there
is no evidence showing that Breeden, in effect, had re-
placed Shepherd. Certainly, the over 6 months' lapse of
time between Shepherd's termination and Breeden7s
hiring does not support that equation. In any event, even
if it could be concluded that Breeden would not have
been on Respondent's payroll but for Shepherd's unlaw-
ful termination, the evidence shows that Shepherd would
not have been the least senior trimmer on Respondent's
payroll as of the two crucial dates in early 1981. Re-
spondent's Exhibit 2, an abstract of trimmers employed
on and after April 18, 1980, lists "4-10-80 MILLER"
and shows that he had been "TERMINATED" on
March 8, 1981, after each of Breeden's layoffs had been
effected. The seniority list for April 25, 1980, lists a
Quinton Miller as trimmer , and like Respondent's Exhibit
1, shows a hire date of April 10, 1980. Shepherd had
been hired on March 17, 1980. Consequently, the latter
was more senior than Miller. Inasmuch as Miller contin-
ued to be employed after Breeden's layoff,1 t had Shep-
herd been employed on those dates, Miller, not Shep-
herd, would have suffered the effects of any economic
layoff under Respondent's policy. Therefore, I conclude
a preponderance of the evidence has not established that
Shepherd would have been laid off on January 13, and
again , on February 6, 1981, had he not earlier been un-
lawfully terminated by Respondent.
C. Efforts to Locate Interim Employment Following
the Unlawful Termination
Although employees who have been unlawfully dis-
charged are entitled to backpay for losses suffered as a
result of the unfair labor practices directed against them,
they are not free to remain idly unemployed while await-
ing reinstatement . Rather, to promote production and
employment, discriminatees are obliged to exercise rea-
sonable diligence to secure substantially equivalent inter-
im employment. See discussion , Electrical Workers IBEW
Local 401 (Stone & Webster), 266 NLRB 870 (1983), and
cases cited there. In assessing claims that employees have
failed to exercise reasonable diligence to secure substan-
11 Although Miller had been "TERMINATED" on March 8, 1981,
there is no evidence that his termination had been motivated by econom-
ic considerations Accordingly, as was true of the terminations of Fields,
Brito, and House, there is no basis for inferring that Miller's termination
had been caused by other than conduct unique to him, nor for speculat-
ing that Shepherd, had he remained employed by Respondent, would
have been terminated on March 8, 1981, rather than Miller
tially equivalent interim employment, certain basic prin-
ciples must be kept in focus. First, the burden of proof
rests with the respondent to show that there has been
failure by a claimant or claimants to satisfy the standard
of reasonable diligence. "Consistent with the policies of
the Act, the rule is that once the General Counsel of the
Board has established the amount of backpay due the dis-
charged employee, the burden is upon the employer to
produce evidence to mitigate its liability." NLRB v.
Mercy Peninsula Ambulance Service, 589 F.2d 1014, 1017
(9th Cir. 1979). Accord: NLRB v. Brown & Root, supra,
311 F.2d at 454; Marlene Industries Corp. v. NLRB, 440
F.2d 673, 674 (6th Cir. 1971); Heinrich Motors, 166
NLRB 783 (1967). Second, "the employer does not meet
its burden by proving that the employee failed to find in-
terim employment. The law only requires of the employ-
ee `reasonable exertions in this regard, not the highest
standard of diligence."' NLRB v. Pilot Freight Carriers,
supra, 604 F.2d at 377. Finally, "an employee, discrimina-
torily laid off or discharged need not instantly seek new
work; rather the test is whether, on the record as a
whole, the employee has diligently sought other employ-
ment during the entire backpay period." Saginaw Aggre-
gates, 198 NLRB 598 (1972). Accord: Keller Aluminum
Chairs, 171 NLRB 1252, 1257 (1968).
As set forth in section I, supra, in the case of Whi-
teaker, Respondent argues that the fact that he had filed
but two formal applications for interim employment and,
at one point, testified that he had "fooled around" be-
tween his unlawful discharge on April 18, 1980, and the
time that he had commenced work with Interstate Forge
approximately 5 weeks later, on May 27, 1980, estab-
lishes that he had failed to exercise reasonable diligence
to secure substantially equivalent interim employment.
Yet, the first part of this argument incompletely recites
Whiteaker's account of his actions following his termina-
tion by Respondent and the second part isolates a por-
tion of Whiteaker's testimony in a fashion that creates a
mischaracterization of the import of this remark. Whi-
teaker testified that in addition to the prospective em-
ployers with whom he had filed written applications for
employment, he had "applied at several other places that
wouldn't accept an application." Further, he explained
that he had been to "various construction sites, just driv-
ing down the road, see a construction site, building
houses or apartments or something, I'd pull in and see if
they needed any laborers or any kind of help or not."
Consequently, it is clear that Whiteaker did much more
than merely apply at two interim employers following
his termination by Respondent. Although it is accurate
that he had filed only two formal applications for interim
employment, it is undisputed that that had been the
result of unwillingness by employers to accept them-
not because of lack of effort on Whiteaker's part.
True, as Respondent points out, when testifying, Whi-
teaker had not been able "to provide a single name, date,
or shred of evidence," as Respondent phrases it in its
brief, concerning these other employers. Yet, it must not
be overlooked that "[t]he hearing in this case was con-
veyed over 2 years after [Whiteaker's] discharge, and
[Whiteaker] apparently kept no detailed notes of his job
COLORADO FORGE CORP. 539
search." Neely's Car Clinic, 255 NLRB 1420 (1981).
Indeed , Whiteaker testified, without contradiction, that
he had not even received the compliance forms that he
had completed until "last Spring, I believe it was," a
point in time consistent with issuance of the Board's de-
cision on February 9, 1982, and a point in time, accord-
ingly , almost 2 years after Whiteaker had been unlawful-
ly terminated and had commenced seeking interim em-
ployment. Consequently , neither his testimony nor the
information that he had provided on the compliance
form tends to contradict his assertion that he had been
attempting to find work following his termination by Re-
spondent , but that his efforts to file written applications
for employment had, for the most part , been rebuffed.
As noted above, Respondent points to Whiteaker's
"fooled around" remark and asserts , in essence, that by
it, Whiteaker admitted his failure to diligently seek inter-
im employment . However , that testimony was given in
connection with the sequence of events that had led him
to decide,to contact Interstate Forge's plant manager to
ascertain if work was available with it in Texas. In
making that remark, Whiteaker appeared to be character-
izing the lack of results that his efforts in the Colorado
Springs area had produced , as opposed to his own inac-
tion . That is, from the tenor and content of his remark,
he was observing that , gauged from the unsuccessful ef-
fects of his efforts to obtain employment in the Colorado
Springs area, he only had been "fooling around." In
point of fact, as described above, Whiteaker had been
making efforts to obtain interim employment following
his unlawful termination by Respondent.
In the final analysis , within approximately 5 weeks of
his unlawful discharge , Whiteaker had taken the initia-
tive to locate and move to interim employment located
approximately 1000 miles from Colorado Springs. Fur-
ther, though he changed jobs with relative frequency
during the backpay period framed by the specification,
nonetheless he continued to seek and continued to accept
employment throughout that portion of his backpay
period which, as set forth above, is the correct perspec-
tive for measuring the efforts of claimants to obtain inter-
im employment . Saginaw Aggregates, supra. Moreover,
even with regard to the relatively isolated 5 -week period
immediately after his discharge , Respondent has failed to
produce any evidence to contradict Whiteaker's descrip-
tion of his search for work. Indeed, and perhaps most
importantly, "Respondent presented no probative evi-
dence that there were jobs available in the area for a
[hammerman] of [Whiteaker's] skills and qualifications,
or that [Whiteaker] rejected suitable employment."
Neely 's Car Clinic, supra, 255 NLRB at 1421. Cf. NLRB
x Madison Courier, supra. Therefore , a preponderance of
the evidence fails to support the contention that Whi-
teaker had failed to exercise reasonable diligence in seek-
ing interim employment between the time that he had
been unlawfully discharged , and the time that he had
commenced employment with Interstate Forge.
Trujillo had been unemployed from April 18 to July
14, 1980, when he had commenced working for Saf-Loc
Systems in Englewood , Colorado. On his compliance
form for the second quarter of 1980 (covering the period
from his discharge until June 30 of that year), Trujillo
listed four employers to whom he had applied for inter-
im employment . At the hearing, he identified four addi-
tional employers with whom he had sought employment
during that same period, testifying that he had forgotten
to list them at the time that he had completed the form
for that period . Inasmuch as Whiteaker had not received
his compliance forms until after issuance of the Board's
decision , and in the absence of the evidence that Trujillo
had received his forms at some earlier point in time, it is
not surprising that Trujillo would not have recalled, at
the time that he had completed the form, "the specifics
of each and every job contact" made almost 2 years ear-
lier. Neely's - Car Clinic, supra. Moreover, his explanation,
under examination of Respondent 's counsel, that the
latter had recalled having applied to those firms when
"going through some papers that I had at home, and 'I
seen where I put it down" was not inherently incredible
and Trujillo appeared to be testifying truthfully in this
respect. i 2
Consequently , during the 10-week period following his,
unlawful discharge, Trujillo had sought work with eight
employers. Although , in the abstract , it might be argued
that Trujillo could have gone to other places to attempt
to find work , the Colorado Springs area is not one of the
larger metropolitan areas in the country. Respondent has
produced no evidence "that there were jobs - available in
the area for a [hammerman] of [Trujillo 's] skills and
qualifications, or that [Trujillo] rejected suitable employ-
ment." Neely's Car Clinic, supra. Moreover, in point of
fact, shortly after the third quarter of 1980 had com-
menced, Trujillo did secure employment with a firm for
whom he still was working at the time of the hearing in
this matter.
Inasmuch as Trujillo did secure interim employment
within 3 months of his unlawful termination by Respond-
ent and thereafter remained employed throughout the
backpay period , cf. NLRB v. Mercy Peninsula Ambulance
Service, supra, and in the absence of any evidence that he
never had rejected suitable interim employment offered
to him between April 18 and July 14, 1980, or, in fact,
that there ever had been jobs available in the Colorado
Springs area for a qualified hammerman during that
period , I conclude that a preponderance of the evidence
fails to establish , viewed from the perspective of his
backpay period as a whole, that Trujillo had not exer-
cised reasonable diligence to secure substantially equiva-
lent employment'prior to commencing work on July 14,
1'980.
Respondent argues that "since Hunt made six formal
applications for employment from April 18, 1980, until
July 7, 1980, it cannot be reasonably maintained that he
diligently sought interim employment ," for, urges Re-
spondent , "a mere six applications over the course of
twelve weeks' time does not rise to the level of reasona-
ble diligence in seeking employment ." But, not only does
Hunt's compliance form list six employers with whom he
12 In its brief, Respondent argues that "those documents were never
produced" and, indeed, Trujillo testified that he did not have those
papers with him and had never given them to the General Counsel Nev-
ertheless , at no point did Respondent request that the papers to which
Trujillo was referring be produced for its inspection
540 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
had filed formal applications for work during that
period, but it also shows that he had worked for
G. E. M. Contractors from June 6 to July 7, 1980, earn-
ing $5 an hour. Additionally , he testified that , "In be-
tween times of looking for work , I was going down to
the day labor looking for , you know , trying to go to
work for a day is what they do. If they need somebody,
they come back and pick them up . Out of about eight
tries there , I went to work about four times for Silica
Sand, and I think it was during this period right here.
I'm sure it was, in June."13
It might be argued that , ideally, Hunt should have pur-
sued some other course that would have made it possible
for him to seek work with more employers than he did.
However, Respondent has failed to even suggest what al-
ternative course it would oblige Hunt to have pursued.
Moreover, this is not simply a numbers game or a paper
shuffle. Since July 7, 1980, Hunt has remained employed
regularly, save for a period during which he had been in-
jured in 1981 , as discussed more fully infra. There has
been no showing by Respondent that Hunt ever had re-
jected or had ignored job possibilities in the Colorado
Springs area during the 12-week period following his un-
lawful termination . Nor has there been any showing that
between April 18 and July 7, 1980, job opportunities had
existed for hammermen that would have resulted in em-
ployment for Hunt had he but pursued another course of
action during that period. In these circumstances, I con-
clude that a preponderance of the evidence does not es-
tablish that Hunt failed to exercise reasonable diligence
to secure substantially equivalent employment during the
period immediately following his termination.
For the approximately 5-1/2-week period between his
unlawful termination and May 28 , 1980, when his back-
pay period was tolled , Kathman listed on his compliance
form the names of four employers with whom he had
sought interim employment . Based on that fact and the
further fact that Kathman had been ' attending classes
during this period-which Respondent argues "casts fur-
ther doubt on his testimony that he was actively looking
for work during this time"-Respondent argues that it
cannot be said that Kathman had exercised reasonable
diligence in, seeking substantially equivalent interim em-
ployment.
Yet, when he testified , Kathman identified additional
employers with whom he had sought employment, al-
though it is not altogether clear that these contacts had
occurred before the backpay period had been tolled.
Further, one of the sources listed on Kathman 's compli-
ance form is an employment service which , presumably,
would have afforded him access to a number of jobs had
ones been available in the area. As noted above, claim-
ants are not obliged to commence their searches for in-
terim employment immediately following their unlawful
terminations , Saginaw Aggregates , supra, and Keller Alu-
minum Chairs , supra; and a 5-week period hardly can be
said to be so prolonged that it can be inferred that Kath-
man would have located substantially equivalent interim
13 Hunt's earnings while working for Silica Sand are not listed among
his interim earnings in the backpay specification, a matter discussed fur-
ther infra
employment had he but tried harder . Cf. NLRB v. Mercy
Peninsula Ambulance Service, supra . Indeed , the signifi-
cance of this point should not be overlooked. While
working for Respondent , Kathman had been a trimmer.
Respondent has made no showing that there had been
jobs available in the area for an employee of his experi-
ence and qualification had he but been more diligent in
his search for them , nor has it shown that Kathman had
rejected any jobs offered to him during the 5-week
period after April 18, 1980. Neely's Car Clinic, supra. Cf.
NLRB v. Madison Courier, supra . Kathman had been
obliged only to make a reasonable effort to locate interim
employment . In view of the circumstances set forth
above, I cannot conclude that a preponderance of the
evidence shows that he had failed to satisfy that stand-
ard.
Shepherd's postdischarge activities require somewhat
greater discussion . Respondent argues that "no back pay
should be awarded for the period beginning April 18,
1980, through August 27, 1980, when Shepherd obtained
employment with Wright Glass. During this period of
approximately 18 weeks, Shepherd was either on vaca-
tion or not making a reasonably diligent effort to secure
interim employment ." With respect to the vacation por-
tion of this argument , each of the compliance forms con-
tains a section headed: "LIST HERE PERIODS OF
ILLNESS, INCLUDING PREGNANCY, ON VACA-
TION, IN MILITARY SERVICE, IN JAIL OR
ASYLUM, DURING WHICH YOU WERE UNABLE
TO WORK." Under that heading on his form for the
second quarter of 1980, Shepherd wrote: "4/ 18/80-
5/2/80 Vacation." Of course, had Shepherd ' actually
chosen to take a vacation during that period, he would
have removed himself from the labor market and, since
he had not been exercising reasonable diligence to seek
substantially equivalent interim employment , would not
be entitled to any backpay for that 2-week period. See,
e.g., Electrical Workers IBEW Local 401, supra.
However, when he was interrogated by Respondent's
counsel concerning the "Vacation" notation , Shepherd
denied expressly having taken a vacation during that
time. In response to further questioning , he explained
that he had entered that notation because he had "misun-
derstood the question on that." This explanation was not
challenged during the course of further questioning. Fur-
thermore , it is one that tends to be confirmed by other
information listed on that same compliance form. Thus,
on the form, Kathman lists two employers to whom he
had applied for interim employment on April 21, 1980,
the Monday immediately following his unlawful termina-
tion and a date within the purported 2-week "Vacation"
period . Further, on the form , Shepherd lists as an ex-
pense for seeking interim employment, one apparently
determined by the General Counsel not to be recover-
able under backpay principles , the cost of "gas" for the
period "4/18/80-6/30/80." In sum, although Shepherd
did recite on the compliance form for the second calen-
dar quarter of 1980 that he had been on "Vacation" from
April 18 to May 2, 1980, other information that he en-
tered on that same form tends to confirm his denial that
he had taken a 2-week vacation immediately after his un-
COLORADO FORGE CORP
lawful termination by Respondent and tends to confirm
his explanation that he had misunderstood the question
on the form that had led him to make the "Vacation"
entry, an explanation that went unchallenged and is not
inherently incredible. In these circumstances, there is an
insufficient basis for concluding that Shepherd had re-
moved himself from the labor market during that 2-week
period immediately following his unlawful termination
by having taken a vacation
A somewhat closer question is posed by the evidence
concerning Shepherd's search for interim employment
during the slightly more than 4-month period between
his unlawful discharge and August 27, 1980, when he
had commenced working for Wright Glass Company
On his compliance forms for that period, Shepherd
listed, as recited above, two employers with whom he
had sought interim employment on April 21, 1980, two
additional employers to whom he had applied for em-
ployment prior to June 30,, 1980, three employers with
whom he had sought employment on July 7, 1980,1
and, finally, an application on August 27, 1980, to
Wright Glass with whom he commenced employment on
that same day. Respondent argues that such a limited and
irregular search for interim employment simply did not
satisfy Shepherd's obligation to exercise reasonable dili-
gence to avoid remaining idly unemployed Were this all
that had been involved during the April 18 to August 27,
1980 period, there might well be merit to Respondent's
position. See, e.g., NLRB v. Mercy Peninsula Ambulance
Service, supra. But more factors are involved here.
When he testified, Shepherd identified three or four
other employers with whom he had applied during the
second calendar quarter of 1980 and mentioned that as to
the identity of others to whom he had applied, " I really
can't remember There was so many of them." With re-
spect to the third calendar quarter of 1980, Shepherd
mentioned a moving company with whom he had sought
employment, in addition to the employers listed on the
compliance form for that quarter. Moreover, once he
had secured interim employment with Wright Glass on
August 27, 1980, he had worked steadily for it for over a
year. While at that point in time he did quit employment
with Wright Glass to take a 2-week vacation, 15 he re-
turned to employment with that firm on January 11,
1982, again working continuously for it until the conclu-
sion of his backpay period almost I month later. Conse-
quently, although it might be said that Shepherd's efforts
to avoid remaining idly unemployed during the entire
backpay period had not been ideal or exemplary, it
cannot be said that he failed to exercise "reasonable" ef-
forts to become employed and to maintain interim em-
ployment when, as it must, the matter is viewed from the
perspective of the backpay period in its entirety. "A dis-
charged worker is not held to the highest standard of
diligence in his or her efforts to secure comparable em-
ployment: `reasonable' exertions are sufficient." NLRB v.
Mercy Peninsula Ambulance Service, supra.
Determinations concerning the reasonableness of dis-
criminatees' efforts to locate interim employment are not
14 One of whom had been Wright Glass
15 Conduct discussed more fully infra
541
made abstractly and without regard to the economic cir-
cumstances in which they have been unlawfully termi-
nated As noted above, the Colorado Springs area is not
one of the Nation's largest metropolitan areas. Although
the situation has deteriorated further since that time, the
unemployment rate was not low at the time that Re-
spondent had chosen to unlawfully terminate six employ-
ees on April 18, 1980 Indeed, that the timing and loca-
tion of Shepherd's termination had not been conducive
to immediate reemployment elsewhere in that area is il-
lustrated by the difficulties encountered by Kathman, a
trimmer like Shepherd, as well as by Whiteaker, Trujillo,
and Hunt in attempting to secure employment elsewhere
following their unlawful discharges Shepherd did not
demonstrate an attitude characteristic of one who seeks
to remain idly unemployed. As described above, he did
make efforts to locate interim employment and did
remain employed for a substantial portion of his backpay
period. At no point has Respondent shown either that
Shepherd had rejected employment opportunities offered
to him between April 18 and August 27, 1980, or that
specific employment actually had been, or even likely
had been, available in the area for an employee of his
qualifications and experience had he but been more dili-
gent in his efforts to locate it. In short, Respondent has
failed to show that Shepherd would have met with any
success in locating interim employment had he daily
gone from door to door in the area, seeking employment
to replace that of which Respondent unlawfully had de-
prived him. In these circumstances, although the matter
is not wholly free from doubt, I conclude that it has not
been shown by a preponderance of the evidence that
Shepherd failed to make a reasonable effort to secure
substantially equivalent employment following his dis-
charge.
The situation concerning Robert Collins differs from
that of the other claimants in this proceeding in that Col-
lins did not appear at the hearing In its brief, Respond-
ent chastises the General Counsel for having failed to
produce Collins so that he could be examined concerning
his interim employment and his search for interim em-
ployment following his termination on April 18, 1980.
Yet, the Board has repeatedly taken the position that it is
not the burden of the General Counsel to produce claim-
ants at backpay hearings for examination by respondents
concerning matters that would mitigate or eliminate
backpay liability. Steve Aloi Ford, 190 NLRB 661 (1971)
That, however, does not end the matter.
Although there is no evidence that Respondent had at-
tempted to subpoena Collins, the General Counsel pro-
duced the other claimants, so that they were available
for interrogation by Respondent, and there is no evi-
dence that Respondent had been put on notice prior to
the backpay hearing that Collins also would not be ap-
pearing at it at the behest of the General Counsel More-
over, inasmuch as counsel for the General Counsel repre-
sented that "Mr. Collins, I was unable to locate," there is
no basis for presuming that Respondent would have been
any more able to locate him, even had it known that the
General Counsel did not intend to produce Collins at the
hearing, so that it could serve a subpoena on him. Al-
542 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
though Respondent introduced the compliance forms
that Collins had submitted for the calendar quarters en-
compassed by the overall period April 18, 1980, through
June 30, 1981, the backpay period for Collins runs until
February 7, 1982, according to the backpay specification.
Moreover, there is some basis for questioning the com-
pleteness, and possibly the accuracy as well, of the infor-
mation recorded by Collins on these forms. For example,
when the form the first calendar quarter of 1981 re-
quests, inter alia, the names and addresses of employers
with whom Collins had sought interim employment
during that period, Collins has written, "Can't Remem-
ber." On the forms for both the second and third calen-
dar quarters of 1980, Collins has written that he obtained
work at Anchor Pools on September 1, 1980, and further
that he had quit. But, on neither form does it list the date
on which he had quit, nor even whether he had done so
during the second or the third calendar quarter. Further,
during the second calendar quarter of 1981, Collins listed
as an interim employer an individual who the General
Counsel determined is, in fact, a person who had worked
with Collins, a coworker, and that the correct name of
Collins' employer during that period was Excavating En-
gineering, Inc.
Perhaps most puzzling of all is certain information re-
cited on Collins' compliance form for the first calendar
quarter of 1980, when considered in conjunction with
certain evidence in this proceeding. On that form, Col-
lins states that he had started work for Wiersma Dairy at
$700 per month. He makes no mention of having worked
for that entity during the third calendar quarter of 1980.
Yet, Wiersma Dairy reported, on a form introduced
during the hearing, that Collins had worked for it from
approximately June 15 to approximately September 22,
1980. Further, according to Wiersma Dairy, Collins had
earned a total of $250 while working for it during the
second calendar quarter of 1980, and a total of $732
while working for it during the third calendar quarter of
that year-figures simply not consistent with the $700-
per-month figure that Collins had listed on his compli-
ance form as having been his rate of pay. One other
point is worthy of note in connection with Collins' em-
ployment at Wiersma Dairy. Fiedler testified that, in ap-
proximately July 1980, he had been told by Collins that,
while working for Wiersma Dairy, Collins "was getting
his family to live in a trailer, they supplied the trailer,
the employer did, and was getting all of the fresh milk
they could drink and a side of beef and different things
like that that the farm made available to the employer
[sic]." In his brief, counsel for the General Counsel con-
cedes that the value of these payments in kind had not
been included in the computation of Collins' interim
earnings , but argues that "there is no way to accurately
calculate a monetary amount for this." Yet, there is no
merit to such an argument.
The Agency's own Casehandling Manual (Part Three),
Compliance, provides expressly. that interim earnings in-
clude "the value of perquisites of interim employment
such as board and room." Section 10530.1,e (definition of
Interim Earnings). Indeed, the Board has not been hesi-
tant to include in gross backpay monetary awards repre-
senting the cost of apartments and ancillary services that
normally are provided by employers to claimants prior
to their terminations. See, e.g., Pierre Pellation Enterprise,
222 NLRB 555, 557 (1976); Amshu Associates, 234 NLRB
791, 795-796 (1978). As was the case above with respect
to the workers' compensation payments, logic and paral-
lel reasoning dictate that if such matters are included in
gross backpay, they also should be included in interim
earnings that are deducted to calculate net backpay. Al-
though possibly not easily measurable, even limited expe-
rience with the Internal Revenue Service's procedures
for calculating the value of such items shows that it can
be done.16 -
In the final analysis, because he has been unlawfully
discharged, Collins is entitled to backpay. As found
above, the General Counsel's method of calculating his
gross backpay is not unreasonable. However, Collins was
never produced at the hearing and Respondent has had
no opportunity to interrogate him concerning the extent
to which that gross backpay figure should be reduced.
Although Respondent did not take all the steps that it
might have taken to ensure Collins' appearance, there is
no evidence showing that it did not anticipate that the
General Counsel would produce him, as was done with
the other claimants, nor is there any basis for concluding
that Respondent would have been any more successful in
locating him, so that it could have served a subpoena on
him, than had been the General Counsel. Moreover, the
documentation in Collins' compliance file is not complete
and is contradictory in part, and Collins' payments in
kind for the period that he was working at Wiersma
Dairy have been improperly precluded from the backpay
specification's computation of Collins' interim earnings.
Consequently, whatever net backpay is owed Collins is
to a significant degree speculative.
In these circumstances, it is appropriate to require that
the amount of net backpay claimed in the specification as
owing to Collins, $11,305, be remitted to the Regional
Director for Region 27 to be placed in escrow for Col-
lins for a period not to exceed 1 year from the date of
this supplemental decision, and that on locating Collins,
Respondent be given an opportunity to examine him re-
garding the amount of its backpay liability. Should there
be no mutually agreeable resolution to the matter there-
after, the Regional Director may issue a supplemental
backpay specification, and Collins' entitlement to back-
pay can be resolved with a supplemental hearing. Laredo
Packing Co., 264 NLRB 245 (1982).
D. Net Backpay
1. Bernard Kathman
The backpay specification claims that Kathman is
owed $1203 net backpay plus interest accrued to the date
of payment. Other than its above-rejected argument that
Kathman had failed to exercise reasonable diligence to
secure substantially equivalent interim employment, Re-
spondent advances no other contentions in opposition to
16 Of course, the Board has not been reluctant to refer to the Internal
Revenue Service's procedures where they can be tailored to the Board's
own statutory purposes See, e g , Florida Steel Corp, 231 NLRB 651
(1977).
COLORADO FORGE CORP. 1 543
that net backpay figure. Therefore, I conclude that it is a
proper one.
2. Frank Trujillo
Similarly, other than its above-rejected arguments con-
cerning Trujillo, Respondent interposes no further oppo-
sition to the backpay specification's computation of Tru-
jillo's net backpay as being $12,382, plus interest accrued
to the date of payment. Therefore, I conclude that this is
a proper net backpay figure.
3. Joe Hunt
As set forth in section II,C, supra, following his dis-
charge on April 18, 1980, Hunt had sought and obtained
interim employment with G.E.M. Contractors and, on
four occasions, with Silica Sand. Although Hunt had
listed the interim employment with the former on his
compliance form for the second calendar quarter of 1980,
he did not list his employment with Silica Sand on it.
Thus, in contrast to his earnings from G.E.M. Contrac-
tors, no deduction has been made from his gross backpay
for that calendar quarter for his earnings while having
worked for Silica Sand. In its brief, Respondent argues
that "an additional offset is required for the unreported
income Hunt earned from work at Silica Sand."
Respondent's argument, of course, is a correct one. As
discussed above, it is the burden of respondents to
produce evidence mitigating their backpay liability. Con-
sequently, employers ordinarily are obliged to produce
evidence of amounts of interim earnings during the back-
pay period., Here, Respondent has not produced evidence
concerning the exact amount earned by Hunt while
working at Silica Sand during the second calendar quar-
ter of 1980. Yet, so far as the record discloses, prior to
the hearing in this matter, there was nothing that would
have put Respondent on notice that Hunt had been
working at Silica Sand. Apparently, not even the Gener-
al Counsel had been aware of that fact inasmuch as there
is no mention of these earnings in the backpay specifica-
tion and, more important, no mention of employment by
Silica Sand is made on Hunt's compliance form for the
second calendar quarter of 1980.17 Consequently, to con-
17 Lest there be any question concerning the matter, I do not feel that
Hunt had been attempting to conceal receipt of these earnings when he
had completed the compliance form Nothing in the questioning of Hunt
concerning his interim earnings during that period indicated that Re-
spondent had been aware of those earnings and there is no basis for con-
cluding that Hunt disclosed their existence only because he was confront-
ed with a situation where there was no alternative to doing so Rather,
when describing his efforts to secure interim earnings following his ten-
mation, he voluntarily mentioned that, in the course of going to "day
labor" seeking work, he had been assigned "to work about four times for
Silica Sand, and I think it was during this period right here I'm sure at
was, in June." In the circumstances, there is no basis for concluding that,
when testifying, Hunt was being deceptive or evasive concerning the ex-
istence of these earnings, cf Great Plains Beef Co, 255 NLRB 1410 fn 1
(1981), nor for concluding that he had been attempting to intentionally
conceal the existence of these earnings. Cl 1•lite Cluef. Ina . 246 NLRB
407 (1979), enfd. as modified 640 F.2d 989 (9th Car. 1981) Rather, as dis-
cussed in sec II,C, supra, it appeared that, due to the lapse of time be-
tween the second calendar quarter of 1980 and the point in time at which
he had completed the compliance forms, Hunt simply had overlooked the
4 days of earnings while he had been working at Silica Sand.
elude that because Respondent failed to produce evi-
dence regarding the precise amount of Hunt's earnings
from employment at Silica Sand, especially as Hunt ad-
mitted being paid that money, those earnings that cannot
be deducted would be artificial and inequitable. 18
In connection with Hunt's backpay, Respondent makes
a second argument. During the first calendar quarter of
1981, Hunt had been out of work while hospitalized and
convalescing from an injury. In its brief, Respondent
argues that Hunt's gross backpay "must be reduced by
the amount of estimated earnings from the period of Feb-
ruary 23, 1981 through March 23, 1981, during which
time Hunt was unable to work for medical reasons." Yet,
it is uncontroverted that Hunt's hernia operation had
been occasioned by an injury sustained while working at
interim employment: "we were carrying a table top in,
anyhow. It was a half-inch piece of glass, and it weighed
500 pounds. And I felt the tearing, and I went to the
doctor I guess that next day; and he put me in the hospi-
tal. That's how it came about." "[B]ecause [Hunt's] un-
availability was not caused by illness but by an accident
incident to interim employment, there would have been
no loss except for the unlawful discrimination against
him." American Mfg. Co. of Texas, 167 NLRB 520, 522
(1967). Here, no evidence was presented that would war-
rant the conclusion that as a hammerman working for
Respondent, Hunt would 'have, or even likely would
have, sustained that type of injury. Consequently, it
cannot be said that Hunt's injury would have been
"likely to have occurred if working for [R]espondent."
Central Freight Lines, 266 NLRB 182, 184 fn. 13 (1983).
In these circumstances, Respondent's argument that
Hunt's backpay must be tolled during his, 1-month period
of hospitalization and convalescence from that injury
lacks merit.
However, one further point must be raised concerning
that injury. As pointed out in section II,A, supra, when
an employee receives workers' compensation payments
for wages lost, as opposed to reparation for physical
damage, those payments are construed as,interim earn-
ings and are deductible from gross backpay. Canova
Moving & Storage Co., 261 NLRB 639 (1982). In his brief,
counsel for the General Counsel appears to concede that
the payments made to Hunt as a result of his injury
during the first calendar quarter of 1981 had been ones
18 It might be argued that Respondent should have sought a subpoena
and a continuance of the hearing so that it could obtain and present infor-
mation concerning the precise-amount of Hunt's earnings at Silica Sand.
Yet, while a facilely stated alternative, it hardly is a practical one Not
infrequently, backpay cases involve great numbers of claimants If, as
each claimant is interrogated, a respondent must seek a continuance to
produce precise evidence concerning facts that are generally admitted,
backpay proceedings would drag on interminably starting, stopping, and
then restarting at each point when a claimant admits some new fact and
then the respondent seeks time to locate the information needed to pin it
down with precision so that it can be presented during the hearing
Indeed, Hunt was not the only claimant who disclosed new information
during the course of interrogation by Respondent in this proceeding.
Given the need to complete these proceedings and the Board's obligation
to conserve its limited financial resources, particularly in cases such as
this one where the hearing is not being held in a Regional Office city, to
fliply state that Respondent is not entitled to the benefit of an offset for
interim earnings because it failed to seek a continuance to determine their
precise amount is, although facile, neither realistic nor equitable
544 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
for wages lost, but the brief leaves unclear whether these
amounts had been included in Hunt's interim earnings for
that quarter: "In addition, interim earnings, which in-
clude amounts paid Hunt as disability, have presumably
been deducted," (emphasis added) but, "presumably" is
hardly satisfactory; either these payments -have or have
not been included in Hunt's interim earnings and "pre-
sumably" the General Counsel is aware of the answer.
In sum , as found above, during the second calendar
quarter of 1980, Hunt received earnings from Silica Sand
that have not been included in his interim earnings. Fur-
ther, it is not clear whether the workers' compensation
payments that Hunt had received for his work-related
injury during the first calendar quarter of 1981 have been
included in his interim earnings for that period. Inas-
much as these items are ones that should be ascertainable
from records whose accuracy are not likely to be disput-
ed (the records of Silica Sand and the records used to
compute the interim earnings for the first calendar quar-
ter of 1981), and in view of the fact that there is no evi-
dence that would provide any other basis for questioning
the accuracy of Hunt's net backpay as computed by the
General Counsel, I shall direct that Respondent pay the
amount of $5693, less whatever sum is determined was
paid to Hunt'by Silica Sand during the second calendar
quarter of 1980 and, if it has not already been taken into
account, whatever amount Hunt received as workers'
compensation for his injury during the first calendar
quarter of 1981. Although, seemingly, this involves no
more than the ministerial matter of mathematical compu-
tation, should there be no mutually agreeable resolution
of it, the disputed amount is to be placed in escrow and
the Regional Director for, Region 27 can include the sub-
stance of that dispute as an issue in a supplemental back-
pay specification and Hunt 's entitlement to the amount in
dispute will be resolved at a supplemental hearing.
Laredo Parking Co., supra.
4. Kavin Shepherd -
Aside from the above-recited and resolved conten-
tions, Respondent makes two arguments pertinent to
Shepherd 's net backpay . First, Respondent argues that
inasmuch as the record shows that Shepherd had been
absent "due to illness" for 14 days while employed by
Wright Glass during the period August 27, 1980, to Oc-
tober 27, 1981, his gross backpay should be reduced by
the amount of income that he otherwise would have
earned had he worked on those days. This is not a valid
argument for two reasons. Shepherd testified , without
contradiction , that on two of those days, it had been
"thirty below zero. I couldn 't do nothing that day [sic]."
Thus, the fact that Shepherd had not worked on those
days had not been his own fault , but instead had been re-
lated to the exigencies of his interim employment for
which he was not responsible . Cf. American Mfg. Co. of
Texas, supra.
Nor is there evidence that the remaining 12 days of
absence for illness, over a period exceeding 1 year in
length , were so numerous that , had he not been unlaw-
fully terminated earlier , by Respondent, he would have
been disciplined by Respondent for having been absent
on an excessive number of occasions . Indeed , there has
been no showing that 12 days of absence during a 14-
month period is an unusual number of absences for heat-
ers, trimmers, and helpers employed by Respondent. It
should be recalled that, as described in section I, supra,
the backpay formula for Shepherd "is the average of reg-
ularly-employed employees' earnings working" in those
classifications during the backpay period By its nature,
that formula would take into account absences for illness
of heaters, trimmers, and helpers in the comparison
group. Consequently, absent a showing, - which has not
been made here, that Shepherd's absences had been ex-
cessive in comparison with those of employees who did
work during that period, there is no basis for depriving
him of gross backpay for those days when he had been
absent at Wright Glass due to illness between August 27,
1980, and October 27, 1981.
Respondent's next contention with respect to Shep-
herd is that by having quit interim employment with
Wright Glass on October 27, 1981, all backpay liability
for him should cease until January 11, 1982, when he re-
sumed working for that employer. In making this argu-
ment, Respondent apparently overlooks the fact that the
General Counsel has made deductions from Shepherd's
gross backpay during the last calendar quarter of 1981
and the first calendar quarter of 1982 to reflect
"[p]robable interim earnings for Shepherd had he not
voluntarily quit the employment of Wright Glass," and,
further, to reflect the loss of earnings that he would have
made working there, instead of having been unemployed
during a portion of each of those quarters "due to his
own fault." To the extent that Respondent argues that all
Shepherd's gross backpay during that portion of his
backpay period should be tolled, that argument is not
correct under settled backpay principles. Where claim-
ants quit interim employment without justification, they
"shall be deemed to have earned for the remainder of the
period for which each is accorded backpay the hourly
wage being earned at the time such quitting occurred."
Knickerbocker Plastic Co., 132 NLRB 1209, 1215 (1961).
Accord: Miami Coca-Cola Bottling Co., 151 NLRB 1701,
1703-1704 (1965). Respondent has-not shown that the
General Counsel failed to apply this standard in comput-
ing Shepherd's "[p]robable interim earnings" for the
period after he had quit work at Wright Glass on Octo-
ber 27, 1981, until he resumed working for it on January
11, 1982. Accordingly, no further deduction is warrant-
ed.
Therefore, I conclude that Shepherd is entitled to net
backpay in the amount of $906, plus interest accrued to
the date of payment.
5. Stanley R. Whiteaker
In addition to the arguments rejected above, -Respond-
ent launches a battery of contentions pertaining to vari-
ous aspects of Whiteaker's history during his backpay
period that, according to the backpay specification, has
not ended. In analyzing them, it is necessary to follow
Whiteaker through his postdischarge conduct virtually'
step by step, particularly as errors have been made in
computing his net backpay.
COLORADO FORGE CORP. 545
In the backpay specification, no deduction for interim
earnings has been made during that portion of the second
calendar quarter of 1980 that followed Whiteaker's un-
lawful discharge on April 18, 1980. Yet, all parties now
agree that Whiteaker had commenced work with Inter-
state Forge in Navasota, Texas, on May 27, 1980, and
that he had worked for that firm until some point in July
1980, when he had quit and had started working -for a
firm identified only by the name "Tubular" in Navasota.
He worked there until obliged to return to Colorado
Springs for commencement of the unfair labor practice
hearing in this matter on July 31, 1980. In connection
with this phase of Whiteaker's backpay period, Respond-
ent advances essentially three arguments.
First, on his compliance form for the third calendar
quarter of 1980, Whiteaker recited that he had com-
menced working for Interstate Forge on June 30, 1980,
and, further, stated that he had worked for that firm
until July 29, 1980, without mentioning that he had
worked for Tubular. Based on these factors, Respondent
argues that "Whiteaker's lack of truthfulness in reporting
his earnings justify a punitive reduction of back pay."
When he testified, Whiteaker did not appear to be de-
ceiving or concealing these matters. Cf. Great Plains Beef
Co., supra; Flite Chief, supra. To the contrary, as had
been the case with Hunt's testimony concerning his em-
ployment at Silica Sand, Whiteaker freely described that
he had gone to work for Tubular, in the process of ex-
plaining why he had quit working for Interstate Forge.
The circumstances under which he mentioned having
commenced work for Tubular were not such that it
could be concluded that he was doing so only because
he feared that Respondent was about to confront him
with it. Further, on his compliance form, Whiteaker
stated that he had been paid $5.25 an hour by Interstate
Forge, but he testified that he had received only $4.75 or
$5 an hour when he had worked for Tubular. This differ-
ence results in an overstatement of his interim earnings
during the time that he was being deemed to have
worked for Interstate Forge, but in reality had been
working for Tubular-hardly an action consistent with
an effort to fraudulently increase net backpay. Finally,
though Whiteaker had started working for Interstate
Forge over a'month before the date on which he report-
ed having done so, as noted above, he had completed the
compliance forms after issuance of the Board's decision
in February 1982, almost 2 years after he had com-
menced working for Interstate Forge. In view of that
fact, "his inability to recollect the specifics of [his com-
mencement date with that employer] is understandable."
Neely 's Car Clinic, supra. Consequently, I conclude that
there is not a sufficient basis to "justify a punitive reduc-
tion of [Whiteaker's] back pay" on the basis advanced by
Respondent.
Respondent's second argument in this area is that the
backpay specification improperly deducted from Whi-
teaker's interim earnings a travel allowance of 20 cents
per mile from Colorado Springs to Navasota, Texas,'
where Interstate Forge is located. Respondent disputes
neither the amount of this allowance nor the number of
miles (1000) 'claimed between the two locations Rather,
it argues that "it was never shown that it was reasonably
necessary for Whiteaker to leave Colorado to secure em-
ployment." However, this argument does not have merit.
"A discharged employee is not confined to the geo-
graphic area of former employment; he or she remains in
the labor market by seeking work in any area with com-
parable employment opportunities." Mandarin v. NLRB,
621 F.2d 336, 338 (9th Cir. 1980) Moreover, a claimant
is entitled to be compensated for transportation expenses
incurred in seeking interim employment and, procedural-
ly, that is handled by deducting such transportation ex-
penses from interim employment. See, e.g., Electrical
Workers IBEW Local 401 (Stone & Webster), 266 NLRB
870 (1983), and cases cited there.
As concluded above, Whiteaker had exercised reasona-
ble diligence to secure substantially equivalent interim
employment following his unlawful discharge. Not only
were his efforts in 'that regard unsuccessful, but also Tru-
jillo's and Hunt's experience after May 27, 1980, tend to
show that had Whiteaker remained longer in the Colora-
do Springs area, he still would not likely have been suc-
cessful in locating interim employment. Indeed, as noted
above, Respondent has produced no evidence to the con-
trary. Whiteaker journeyed to Navasota only after first
having telephoned Interstate Forge and after ascertaining
that work would be available for him if he was willing
to relocate there. Thus, his trip to Navasota was not the
result of some spur-of-the-moment decision, made with
but a vague expectation of success in obtaining employ-
ment there; Whiteaker knew that he could obtain em-
ployment if he was willing to go to Navasota. In these
circumstances, there is no basis for concluding that Whi-
teaker had acted unreasonably in going to Navasota to
obtain employment with Interstate Forge and, according-
ly, Respondent is obliged to compensate him for his
travel expenses to that location.
The third argument is that inasmuch as "Whiteaker's
duties at Interstate were similar to those he was perform-
ing at [Respondent] when he was terminated," Respond-
ent's own "back pay liability to Whiteaker ceased when
he voluntarily quit his job at Interstate Forge without
any reasonable expectation of other employment." But,
as noted above, a claimant is not obligated to continuing
working for an interim employer when that work is
more burdensome than those with Respondent or . . .
unsuited to persons of the Claimants' skill and experi-
ence." Ozark Hardwood Co., 119 NLRB 1130, 1139
(1957). No willful loss of earnings is incurred when it
can be established that "the discriminatee was justified in
quitting the job in question because, for example, it en-
dangered his health." NLRB v. Mastro Plastics Corp., 354
F.2d 170, 179 (2d Cir. 1965), cert. denied 384 U.S. 972
(1966).
Here, in response to questioning by Respondent's
counsel, Whiteaker testified that he had quit his job at
Interstate Forge, "Because at that time in Navasota the
daytime temperature was running anywheres between
100 and 110 degrees, and working with hot steel, it was
too hot and I couldn't stand it." The matter was not pur-
sued further. Moreover, Respondent neither presented
evidence contradicting Whiteaker's testimony concerning
the high temperatures in Navasota at that time, nor did it
546 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
present any evidence showing that heat in its own Colo-
rado Springs facility had been as high or, at least, close
thereto. Obviously, degree of heat is a factor that can
affect an individual's health, particularly when working.
There is no evidence that, at the time that he had accept-
ed employment there, Whiteaker likely would have fore-
seen the degree to which temperatures would rise at
Interstate Forge's plant. After quitting, as discussed
above, Whiteaker immediately sought and obtained other
employment. Therefore, I conclude that Respondent has
failed to sustain its burden of showing that Whiteaker
had not been justified in quitting employment with Inter-
state Forge and, accordingly, of showing that he had in-
curred a willful loss of earnings by having done so. In
view of that conclusion, there is no basis for increasing,
in effect constructively, his earnings during the subse-
quent period, before he had commenced work at Tubu-
lar, so that his net backpay would reflect only the differ-
ence between what he would have, earned at Respondent
and what he would have earned had he continued work-
ing at Interstate Forge.
In response to a subpoena ad testificandum, Whiteaker
returned to Colorado Springs from Navasota because he
"had to come out here to go to the first hearing." Be-
cause he complied with this subpoena, he was fired by
Tubular:
Well, I told the foreman I was working for, I
showed him the subpoena. I had received it in the
mail. And I had just hired on and he said I should
have showed him that before I hired in and if I left,
I wouldn't have a job when I came back.
In view of the fact that Whiteaker had left Navasota in
response to a subpoena for a Board proceeding and in
light of the further fact that "his statutory rights were at
stake in that proceeding," NLRB v. Pilot Freight Carriers,
supra, it hardly can be maintained with any degree of
persuasion that Whiteaker somehow had incurred a will-
ful loss of earnings by having left Navasota to return to
Colorado Springs so that he could attend the unfair labor
practice hearing in this matter to which he had been sub-
poenaed.19
The unfair labor practice hearing was conducted on
July 31 and on August 1, 11, and 12, 1980. During the
10-day break between the two sets of sessions, Whiteaker
accepted employment in Englewood with Saf-Loc Sys-
tems from August 5 to 9, 1980.20 Although Whiteaker
19 Nor is there a basis for arguing that Whiteaker should not have ac-
cepted interim employment with Tubular or, at least, should have shown
his subpoena to Tubular's officials before having accepted employment
there, in view of the foreman's remark that Whiteaker never would have
been hired had Tubular but known of the subpoena There is no basis for
concluding that at the time that he had applied for work with Tubular,
Whiteaker reasonably could have foreseen that Tubular would take such
a position concerning the subpoena Further, had Respondent not unlaw-
fully terminated Whiteaker in the first place, there would have been no
need for him to have sought employment with Tubular, npr to have at-
tended a hearing concerning that termination
20 As is the case with his employment at Tubular,. Whiteaker's earnings
at Saf-Loc Systems are not included as interim earnings on the backpay
specification Yet, he had listed this employment on his compliance form
for the third calendar quarter of 1980
quit this job due to a dispute with his "boss," Respond-
ent does not contend that Whiteaker had incurred a will-
ful loss of earnings in having done so and, accordingly,
no issue exists concerning his departure from Saf-Loc.
After, again, unsuccessfully attempting to secure inter-
im employment in the Colorado Springs area,21 Whi-
teaker returned to Texas, this time to Houston, where he
secured employment with Olds Press & Forge22
"[r]unning hammer" at "[n]ine dollars" an hour "work-
ing ten hours, working forty-eight hours a week." Ulti-
mately, testified Whiteaker, he had quit working for Olds
Press because he had located a higher paying job in
Claremore, Oklahoma, with Kyle Forge, and because,
after having decided to accept employment with the
latter but to give 2 weeks' notice to Olds Press of his in-
tention to quit, "I got mad and I quit one afternoon."
Subsequently, Whiteaker commenced employment with
Kyle Forge, working "[f]orty hours a week" and earning
"ten fifty an hour running a hammer." In connection
with this sequence of events, Respondent makes only
two contentions.
First, the backpay specification recites that Whiteaker
had earned $1499 working at Olds Press during the last
calendar quarter of 1980 and $2259 working there during
the first calendar quarter of 1981. On his compliance
form for the third quarter of 1980, Whiteaker recited that
he had worked for Olds Press from September 15, 1980,
to February 29, 1981. Based on this information on the
form and on Whiteaker's testimony that he regularly had
worked 48 hours a week for Olds Press at $9 per hour,
Respondent argues that Whiteaker had to be malingering
while working at Olds Press or his earnings there would
have been far greater: "Even if we presume he was only
paid at the base hourly rate for all of the work which he
could have done, that would amount to $5184.00 for the
two 12 week periods, 10/5/80 through 12/28/80 and
1/4/81 through 3/29/81, rather than the amounts of
$1,499.00 and $2,259.00." At first blush, there appears to
be some validity to Respondent' s argument . However,
when considered in the context of another factor and
against the background of very little evidence concern-
ing the operations of Olds Press during that period, Re-
spondent's argument fails.
During the hearing, at Respondent's behest, a docu-
ment received by the Regional Office from Olds Press
was introduced. That document, sent by the Regional
Office to Olds Press and returned completed with the
signature of Ralph C. Browne on it, recites that Whi-
teaker had worked for Olds Press from "11/26/80" to
"2/10/81," a much shorter period of time than Whi-
teaker had listed on his compliance form.23 Thus, rather
than having worked for Olds Press for about 16 weeks in
1980, as Whiteaker listed on his compliance form, Whi-
teaker had worked there for only 5 weeks and, further,
2i Respondent has made no contention that Whiteaker 's efforts to
locate substantially equivalent employment during this period failed to
satisfy the "reasonable diligence" standard
22 No travel expenses are claimed for Whiteaker 's trip from Colorado
Springs to Houston
22 Again, it should be kept in focus that Whiteaker had filled out the
form considerably after the events recited on them had occurred.
COLORADO FORGE CORP 547
rather than having worked there for 8-1 /2 weeks in
1981, as he recited on his compliance form , Whiteaker
had worked there for only approximately 6 weeks at the
beginning of that year . Consequently , Respondent's com-
putation is based on 'too prolonged a period . Moreover,
excepting for purposes of analysis the method of compu-
tation that Respondent has followed , Whiteaker would
have earned approximately $2300 working from Novem-
ber 26 to December 31, 1980, and approximately $2500
working from January 1 to February 10, 1981. Of course,
that still leaves a variance from what Whiteaker actually
had earned , particularly during the fourth quarter of
1980. However, it should be recalled that both Thanks-
giving and Christmas fell during that quarter . Moreover,
inasmuch as Christmas fell on a Thursday during that
year, and of course Thanksgiving always does, there is
no basis for assuming that Olds Press does not follow the
not unusual practice of declining to resume operations
for the one remaining weekday following a holiday.24
Furthermore , given the holiday season , it is not unusual
for the volume of work in industrial concerns to decline
during the fourth calendar quarter and, then , to pick up
only somewhat slowly during the first calendar quarter.
Obviously there is an element of speculation in the
foregoing . Yet, Respondent's own "malingering" argu-
ment concerning Whiteaker is based on a degree of spec-
ulation , for it asks that an assumption be made-that
Whiteaker had been malingering-based on relatively
few known facts adduced during the hearing. Nonethe-
less, Respondent 's own argument appears to lend some
credence to the analysis in the foregoing paragraph in
view of the fact that, as quoted above, Respondent as-
sumes that there had been a break in the work at Olds
Press between "12/28/80 and 1/4/81." Moreover , this is
not a situation where speculation is necessary because
Respondent had been unable to adduce additional facts.
It had access to the facts that it needed to prove that
Whiteaker had malingered at Olds Press, if,he had done
so, while working there. The backpay specification that
issued on September 3, 1982, identified Olds Press as
haviing been one of Whiteaker's interim employers and
the specification also recited that Olds Press was located
in Houston . Respondent had not contended that it had
not been able to locate that employer or that it had been
rebuffed in whatever efforts it had made to obtain infor-
mation from it concerning Whiteaker's employment
there. Instead , it has chosen to argue for a speculative
result based on minimal evidence. However , in view of
the considerations set forth above, the inference for
which Respondent argues-that Whiteaker had malin-
gered while working for Olds Press-is not so compel-
ling a one that ,it must be drawn even absent detailed and
specific evidence that , at least seemingly , had been avail-
able to Respondent . Therefore, I conclude that there is
no basis for inferring that Whiteaker had not worked as
hard at Olds Press as he had when working for Respond-
ent and as he would have worked had Respondent per-
24 Of course , that same practice may have been followed on the week-
day remaining after New Year 's Day which , like Christmas , fell on a
Thursday during the period under discussion,
mitted him to continue working for it after April 18,
1980.
Respondent 's second argument in this area is directed
to the claim for $120 travel expense for his trip from
Houston to Claremore , Oklahoma, incurred by him so
that he could start work at Kyle Forge: 2 s
Furthermore , the award of travel expenses be-
tween Houston and Claremore, Oklahoma, is even
more difficult to rationalize . Whiteaker was making
more at Olds Press , the job he quit to move to
Oklahoma [R. Exh . 11] than he was making at [Re-
spondent] prior to his termination.
Respondent 's argument in this area does appear to have
merit. Whiteaker's gross backpay during the first calen-
dar quarter of 1981 is $4092 and while working for Olds
Press for less than half that period, Whiteaker earned
$2259. There is no basis for concluding that he would
not have continued earning at essentially that same rate
had he remained working for Olds Press beyond that
date. Indeed , if, as discussed above, Olds Press had expe-
rienced the not uncommon occurrence of business pick-
ing up ' gradually after the holiday season , Whiteaker
might have earned even more during the remainder of
the first calendar quarter of 1981.26 Consequently, there
was no need for Whiteaker to have sought more remu-
nerative employment inasmuch as, so far as the record
discloses , he had been employed by Olds Press at sub-
stantially equivalent interim employment.
Of course , there is nothing wrong with a claimant for-
going employment with one interim employer to secure
higher paying employment with another . See Electrical
Workers IBEW Local 401 (Stone & Webster), 266 NLRB
870 (1983), and cases cited there. Nevertheless , inasmuch
as Whiteaker already had interim employment paying
more than he would have earned at Respondent, there
seems to be no sound basis for compelling Respondent to
,subsidize his travel expenses to employment where he
would ' be earning an even higher amount than he would
have made working either for Olds Press or for Re-
spondent . Therefore, I conclude that Whiteaker 's interim
earnings for the second calendar quarter of 1981 should
not be reduced by the cost of his travel from Houston to
Claremore.
Eventually , Whiteaker was laid off by Kyle Forge. On
his compliance form, he lists "4-15-81" as the date of
that layoff, but in light of his uncertainty about the dates
recited on those forms, this may not be accurate . What is
clear is that immediately after that layoff, he broke his
ankle in a motorcycle accident and was incapacitated for
5 weeks. Inasmuch as his injury was not work related
and would have precluded him from working for
2s At no point does Respondent argue that Whiteaker should be de-
prived of backpay during the period that he was not employed after he
had left Olds Press and before he had commenced working at Kyle
Forge
'26 It is worth noting here that, on the form signed by Browne, Olds
Press reported that Whiteaker had been "Let Go" for having taken "Too
much time off" Confronted with this assertion , Whtteaker denied ex-
pressly that he had been fired There is no nonhearsay basis for conclud-
ing that Whiteaker had been fired
548 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
anyone, including Respondent, Whiteaker is not entitled
to any backpay for the period of his incapacitation. Med-
line Industries, 261 NLRB 1329 (1982).27
After recovering from his injury, testified Whiteaker,
he had "left Claremore, Oklahoma, and went back to
Colorado Springs here." Ultimately, he secured employ-
ment once more with Saf-Loc in Englewood. The back-
pay specification lists as a deduction from interim earn-
ings the expense of Whiteaker's travel from Claremore to
Englewood. Respondent argues that "the reasonable ne-
cessity of any of The travel expenses was never even
maintained, much less proven." With regard to this
aspect of Whiteaker's travel expense, Respondent's con-
tention also appears to have merit. Whiteaker admitted
that he never had sought employment in the Claremore
area before departing to return to Colorado Springs.
Consequently, in contrast to his earlier journey from
Colorado Springs to Navasota, there has been no show-
ing that he had left the Claremore area only after having
been unable to locate employment there. Nor has it been
shown that, in contrast to his trip to Navasota, Whi-
teaker had been aware of employment in Colorado
Springs or, for that matter, in Englewood, that he could
secure if willing to go there. To the contrary, he was not
able to locate interim employment in Colorado Springs,
though he did look for it. True, he did obtain employ-
ment ultimately in Englewood, but there is no showing
that he needed to go there from Claremore because there
was no employment for him in the latter area. In the
final analysis, Respondent does not question the degree
of diligence of Whiteaker's search for employment after
having recovered from his broken ankle, but rather only
its responsibility for his travel expenses. In the absence of
a showing that Whiteaker needed to go elsewhere than
Claremore, because of inability to secure employment in
Oklahoma, I conclude that his departure from Oklahoma
cannot be said to have been for other than personal rea-
sons and , accordingly, that it is not proper to deduct his
travel expenses from his interim earnings for that trip.
A further issue relating to Whiteaker's interim earnings
arises in connection with his employment after having
begun work once more for Saf-Loc. According to Whi-
teaker:
I was working midnights at Safloc [sic] making
five and a quarter an hour, and I got a day job Har-
ding making five fifty. And I worked both jobs for
three or four days a week , an I wasn 't getting no
sleep. So I quit one of them . The guy running the
place at the time and me and him didn 't get along,
and I didn't notify him that I was leaving.
Based on this testimony , Respondent makes two argu-
ments. First, on his compliance form for the second cal-
endar quarter of 1981 , Whiteaker recites that he had
27 However, it is not ceitam which 5-week period was involved. As
noted above, Whiteaker placed his layoff at Kyle Forge as having been
on April 15, 1981, but that could be inaccurate Although in his brief
counsel for the General Counsel conceded that Respondent was not
liable for backpay during that 5-week period, no allowance was made for
it in the backpay specification and its timing is significant because, using
the earnings percentage or multiplier to compute Whiteaker's gross back-
pay, the amounts of gross backpay vaned from week to week
worked for Saf-Loc from May 18 to June 19, 1981, and
that he had started work at-Harding Class on June 22,
1981. Yet, although deductions for interim earnings from
these two employers are made during the third calendar
quarter of 1981, none are made during the second calen-
dar quarter of that year. Obviously a mistake has been
made in this computation and, given the significance
that the Board attaches to the quarterly method of
computing backpay, it is a discrepancy that must be cor-
rected.
Second , Respondent argues that interim earnings
should be deducted for the period that Whiteaker had
worked for both employers . It is not clear from the
backpay specification whether Whiteaker 's total earnings
at both employers , during the period that he had worked
for both of them, were included in his interim earnings.
What is clear is the Board's position that earnings from
moonlighting-which, in effect , had been what Whi-
teaker had been doing while working for both Saf-Loc
and Harding Glass-are not to be charged to interim
earnings . Teamsters Local 559 (Mashkin Freight), 257
NLRB 24, 24-25 (1981 ), and cases cited there. There-
fore, if earnings from both of these employers have been
deducted from gross backpay for the period when Whi-
teaker had been working for both of them , that is an in-
correct deduction . If that has not happened , then no fur-
ther deduction for that period should be made.
Whiteaker worked for Harding Glass until he again
broke his ankle, this time by falling from a ladder while
working. Thus, the injury had been work related and Re-
spondent is liable for backpay during the time of Whi-
teaker's convalescence . American Mfg. Co. of Texas,
supra. However, while convalescing , Whiteaker was of-
fered reinstatement by Respondent . Due to his injury, he
was not able to accept it. When he recovered, Respond-
ent reemployed him on May 6, 1982, as a trimmer. The
General Counsel argues that this did not constitute valid
reinstatement and, due to that dispute, ceased the back-
pay computation for Whiteaker as of the end of the first
calendar quarter of 1982.
Although the parties litigated a number of matters in
connection with Respondent 's offer of reinstatement to
Whiteaker, this issue is not as complicated as they have
attempted to make it. As quoted in section I, supra, Re-
spondent was ordered , inter alia, to reinstate Whiteaker
to his former job. Because he had suffered an injury, he
had been unable to accept the offer when Respondent
had made it . But because that injury had been caused
while working for an interim employer, his inability to
accept the offer when made did not serve to terminate
Respondent 's reinstatement obligation . Consequently,
when Whiteaker was able to return , he was entitled to be
reinstated to the job from which he had been unlawfully
fired: hammerman.
Respondent argues that there was no hammerman po-
sition available for Whiteaker , pointing to Respondent's
Exhibit 1. This, of course , leads back to the problem of
the unidentified hammerman and the question of the
completeness of Respondent 's Exhibit 1. Nevertheless,
putting that question aside, it is undisputed that Warnick
still had been working for Respondent as a hammerman
COLORADO FORGE CORP.
throughout the spring of 1982, and, thus, at the time that
Whiteaker became available to return. True, if Respond-
ent's argument concerning Whiteaker's seniority is ac-
cepted, Warnick had more company seniority than Whi-
teaker. But, that is not the point. In the spring of 1982, a
position existed from which Whiteaker had been termi-
nated and Respondent was obliged to reinstate him to
that position. Wonder Markets, 236 NLRB 787 (1978).
Warnick had not become a hammerman until after the
unlawful terminations on April 18, 1980. Respondent has
made no showing that Warnick ever would have become
a hammerman had it not unlawfully terminated Whi-
teaker, Trujillo, and Hunt and, instead, had allowed them
to continue working, notwithstanding their protected ac-
tivities.
Where reinstatement is ordered, the respondent is
obliged to dismiss, if necessary, any employee assigned
or hired to perform the work that the discriminatee had
been performing prior to his or her termination. See, e.g.,
Mr. A's Restaurant, 248 NLRB 990, 995 (1980), enfd. 647
F.2d 171 (9th Cir. 1981). To permit a respondent to
transfer a more senior employee into the position vacated
as a result of an unlawful discharge, and then to rely on
its own seniority policy to bar a claimant's reinstatement,
would be to allow respondents to undermine the rein-
statement remedy by accomplishing through indirection
that which they could not accomplish through direction.
Therefore, I conclude that Respondent has failed to satis-
fy its obligation to reinstate Whiteaker as directed by the
Board and, accordingly, that Whiteaker's backpay period
was not terminated in the spring of 1982.
Because Whiteaker's backpay period has not been ter-
minated and inasmuch as no evidence was received con-
cerning his backpay after the pay period ending March
28, 1982, further compliance proceedings concerning him
are necessary. Furthermore, as must be evident from the
foregoing analysis, numerous areas concerning the por-
tion of his backpay period that was litigated are inaccu-
rate or incomplete, with the result that recalculation of
the net backpay between April 18, 1980, and March 28,
1982, is necessary in light of fluctuating weekly gross
backpay amounts. For example, net backpay for the
second calendar quarter of 1980 must be recalculated to
reflect the now-conceded fact that Whiteaker had started
work at Interstate Forge on May 27, 1980, and, addition-
ally, interim earnings from work at Tubular must be de-
ducted during the third calendar quarter of 1980 and in-'
terim earnings from work at Saf-Loc must be deducted
during the third calendar quarter of 1981 It must be as-
certained when the 5-week period of unavailability due
to the motorcycle injury occurred and, further, gross
backpay for that period must be eliminated. It must be
determined whether interim earnings from Saf-Loc and
Harding Glass were both erroneously included and de-
ducted from gross backpay for the period of time that
Whiteaker had been working for both of them. Further,
no deduction for interim earnings may be made for Whi-
549
teaker's travel expenses from Houston to Claremore and,
later, from Claremore to Englewood.
Although these matters, particularly the 5-week period
of unavailability due to the motorcycle accident, prob-
ably result, in total, in a reduction of Whiteaker's net
backpay, it is not possible to estimate the extent of that
reduction. However, because they involve primarily
mathematical computation once information, such as
from Tubular and Saf-Loc, is obtained, and in view of
the fact that it seems likely that more backpay will be
owed to Whiteaker for the post-March 28, 1982 period,
it appears appropriate to require that the amount of
$19,310 be remitted to the Regional Director for Region
27 to be placed in escrow for Whiteaker and if these
matters, as well as those involved in the post-March 28,
1982 portion of the backpay period, cannot be resolved
in a mutually agreeable manner, the Regional Director
may issue a supplemental backpay specification, and
Whiteaker's entitlement to backpay will be resolved at a
supplemental hearing Laredo Packing Co., supra.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed28
ORDER
It is ordered that the Respondent, Colorado Forge
Corporation, Colorado Springs, Colorado, its officers,
agents, successors, and assigns, shall
1. Pay $1203 to Bernard Kathman, $13,382 to Frank
Trujillo, and $9706 to Kavin Shepherd, with interest ac-
crued to the date of payment in accordance with stand-
ard Board formula as required by the Board in its deci-
sion issued February 9, 1981.
2. Pay Joe Hunt $5693, less the amount of interim
earnings that he received from Silica Sand during the
second calendar quarter of 1980 and, if not already de-
ducted as interim earnings, whatever workers' compensa-
tion payments he received during the first calendar quar-
ter of 1981, with interest accrued to the date of payment
in accordance with standard Board formula as required
by the Board in its decision issued February 9, 1982.
3. Remit the amount of $19,310 to the Regional Direc-
tor for Region 27 for Stanley R. Whiteaker to be held in
escrow until such time as the above-enumerated open
issues pertaining to his backpay period are resolved, at
which time the proper amount owing to him is to be
paid with interest accrued to the date of payment in ac-
cordance with standard Board formula as required by the
Board in its decision issued February 9, 1981.
4. Remit the amount of $11,305 to the Regional Direc-
tor for Region 27 to be held in escrow for Robert Col-
lins pending further efforts to locate him and to accurate-
ly determine his backpay.
28 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.