Medline Industries, Inc.

National Labor Relations Board - Board Decisions

May 28, 1982

261 N.L.R.B. 1329 (N.L.R.B. 1982)

MEDLINE INDUSTRIES, INC
Medline Industries, Inc. and Warehouse, Mail
Order, Technical and Professional Employees
Union, Local 743, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America and Mark Ira Jamison.
Cases 13-CA-14386 and 13-CA-14497
May 28, 1982
SUPPLEMENTAL DECISION AND
ORDER
BY MEMBFRS FANNING, JENKINS, AND
ZIMMERMAN
On June 10, 1980, Administrative Law Judge
Marvin Roth issued the attached Decision in this
proceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief and Respondent
filed cross-exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, 2 find-
i Respondent has excepted to certain credibility findings made by the
Administrative Las Judge It is the Board's established policy not to
overrule an administrative lasw judge's resolutions with respect to credi-
hility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRH 544 (1950), enfd 188 F.2d 362 (3d Cir 1951). We have
carefully examined the record and find no basis for reversing his findings.
I The Administrative L as Judge found that employee Mark Jamison
was entitled to $377 91 as backpay for the first quarter of 1976 However,
at another point in his Decision, the Administrative Law Judge stated
that Jamison is not entitled to backpay for the first quarter of 1976 Our
review of the record herein indicates that Jamison is entitled to backpay
for the first quarter of 1976 in the amount of $377 91
As to the third quarter of 1976, the Administrative l as Judge found
that Jamison is not entitled to backpay because the difference between his
interim earnings and gross backpay is attributable to the fact that Jamison
incurred a willful loss of earnings by quitting a full-time jtob (Framesmith)
and working part time Jamison's gross backpay for that quarter was
$2,338.04 and his actual interim earnings were only $1,968 .91 Jamison
testified that in July 1976 he converted to full-time status. Since Jamison
did not specify the date of this conversion, we assume that he worked
part time for a poxrtion of July Inasmuch as Jamison's interim earnings
were only $369 13 below his gross backpay, we conclude that had he
worked full time for the entire quarter his intenm earnings would prob-
ably have exceeded his gross backpay Therefore, in agreement with the
Administrative L aw Judge we find that Jamison is not entitled to any
backpay for this quarter
The Administrative Law Judge incorrectly states that the parties stipu-
lated that, had employee Mark Kenney been employed by Respondent at
the time he was injured in an accident, he would have received
$21,834.11 for medical and income continuation insurance benefits. The
correct stipulated amount is $22,427.71 less S283.50 which is the amount
of premium Kenney would have been required to pay during the backpay
period if he had continued in the Company's employ Kenney is therefore
entitled to (I) reimbursement for the net medical insurance benefits of
S22,14421, (2) income insurance continuation benefits of $97020, and (3)
backpay of S865 87, all with interest Accordingly, the combined net
amount due Kenney is $23,980) 28
261 NLRB No. 182
ings, 3 and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Medline Indus-
tries, Inc., Northbrook, Illinois, its officers, agents,
successors, and assigns, shall take the action set
forth in the said recommended Order except that
the correct amount for Mark R. Kenney is
$23,980.28.
a In accordance with his dissent in Olvrnpiic Medical Corporation. 250
NI RI 14h (198(), Member Jenkins would award interest on the hackpay
dule based on the formula set forth therein
SUPPLEMENTAL DECISION
STAIITMiN 01 IHE CASI
MARVIN RorTH, Administrative Law Judge: This case
was heard at Chicago, Illinois. on January 21 and 22,
1980, for purposes of resolving a controversy over the
amount of backpay due John Chorba, Gregory Fair,
John Ford, Jr., Donald R. Holland, Mark Ira Jamison,
Mark R. Kenney, Douglas R. Kline, and Daniel J.
Weckler under the terms of the Board's order issued on
November 18, 1977 (233 NLRB 627), enforced in perti-
nent part 593 F.2d 788 (7th Cir. 1979). 1 The Board
found that Medline Industries, Inc. (herein called the
Company or Respondent), discriminatorily terminated
each of the employees, thereby violating Section 8(a)(3)
and (1) of the Act. The Board issued, in pertinent part, a
reinstatement and backpay order directing the Company
to make whole each of the discriminatees "for any loss
of pay (including overtime, holiday and vacation pay,
and insurance claims and benefits if any), together with
interest." The basic issues presented are: (1) Whether
Ford, Jamison, Kenney, and Kline willfully incurred loss
of interim earnings; and (2) whether Kenney is entitled
to certain medical and disability payments by reason of
Company-sponsored medical and income continuation in-
surance benefit plans under which Kenney was covered
at the time of his discharge. The Company has also
raised certain contentions in its brief, which the General
Counsel contends are not properly a subject of litigation
in this proceeding. These matters will be discussed in
connection with the General Counsel's motion to strike
portions of the Company's brief.
I At the outset of this hearing the Company conceded that it does not
dispute the amount of hackpay due Chorba. Fair. Htolland, and the estate
of Weckler, who died in or about September 1. 1979 Therefore and for
the reasons indicated, infra, im connection with the (ieneral Counsel's
motion to strike portions of the Company's brief, the issues presented in
this proceeding relate only to Ford, Jamison. Kennes. and Kline
1329
DECISIONS OF NAI'IONAL LABOR RELATIONS BOARD
All parties were afforded full opportunity to partici-
pate, to present relevant evidence, to examine and cross-
examine witnesses, to argue orally, and to file briefs.
Upon the entire record in this case 2 and from my ob-
servation of the demeanor of the witnesses, and having
considered the briefs submitted by the General Counsel
and the Company, I make the following:
FINIINGS AND CONCI.USIONS
A. The General Counsels Motion To Strike Portions
of the Company's Brief'
In its brief (pp. 4-11) the Company contends that in
light of Mark Jamison's overall personal and work histo-
ry both before and after his discharge, it is evident that
for a number of reasons Jamison would have voluntarily
left the Company long before October 13, 1978, when he
removed himself from the job market by entering the
United States Air Force. The Company argues that
therefore his claim should be cut short. The Company
further contends in its brief (p. 31, fri. 1) that the adjust-
ed gross backpay for all of the discriminatees should be
reduced by the sum of $5.37 per week, because "the par-
ties have stipulated that, under Medline's medical insur-
ancce and income continuation plans, employees were re-
quired to contribute $3.15/week and $2.22/week respec-
tively." The General Counsel filed a motion to strike the
pertinent portions of the Company's brief and the Com-
party filed a response to the motion. For the reasons dis-
cussed herein, I agree with the General Counsel that nei-
ther of the Company's contentions may properly be liti-
gated in this proceeding, and that the second contention
is based on an erroneous premise.
In its answer to the backpay specification, the Compa-
ny admitted that the backpay period for each of the dis-
criminatees began on the date of discharge and ended on
the date upon which the Company offered each employ-
ee reinstatement. With respect to Jamison, it is undisput-
ed that the backpay period began on May 23, 1975, and
ended on April 25, 1979. By way of answer to the speci-
fication, the Company further stated that it was "without
knowledge or information sufficient to form a belief as to
the truth of the allegations contained in paragraph IX"
of the specification, and therefore denied the same.
Those allegations included the General Counsel's compu-
tations of gross backpay, interim earnings, and "net back-
pay," i.e., gross backpay less interim earnings, for each
of the discriminatees. However, the Company asserted as
its first affirmative defense that each discriminatee in-
curred a willful loss of earnings during the backpay
period. The General Counsel filed a motion to strike the
Company's answer to the specification with respect to
gross backpay on the ground that the answer failed to
comply with the specificity requirements of Section
102.54(b) of the Board's Rules and Regulations. The
motion was referred to then Acting Chief Administrative
Law Judge Arthur Leff. The Company filed a response
to the motion, asserting that it "continued to deny" the
interim earnings and net backpay of each discriminatee,
t The General Counsel's unopposed motion to correct the transcript is
hereby granted
but "has never intended to deny, and does not now deny,
that the numerical entries contained in paragraph IX of
the Backpay Specification are true except so far as they
pertain to interim earnings and net backpay." By order
dated October 31, 1979, Administrative Law Judge Leff
granted the relief requested in the General Counsel's
motion. Specifically, Administrative l aw Judge Leff or-
dered that "Paragraph IX of Respondent's Answer be
stricken except as it pertains to the figures of interim
earnings and net backpay set forth in Paragraph IX of
the Btackpay Specification . . . that all the allegations of
Paragraph IX of the Backpay Specification shall be
deemed admitted to be true except insofar as that allega-
tion pertains to the interim earnings and consequently to
the net backpay of the backpay claimants, and . . that
Respondent be, and it hereby is, precluded from intro-
ducing any evidence in this proceeding to controvert the
gross backpay calculations set forth in Paragraph IX of
the Backpay Specification."
In its response to the General Counsel's present
motion, the Company argues that cutting short Jamison's
claim would not affect the "backpay period," and there-
fore that the Company's admission as to the backpay
period does not preclude a contention that Jamison
would not have remained long with the Company. How-
ever, that is not the problem with the Company's posi-
tion. For the purposes of this proceeding, the "backpay
period" begins with Jamison's discharge and ends with
the Company's offer of reinstatement. The Company's
admission in this regard would, for example, preclude
the Company from attempting to prove that it offered re-
instatement at an earlier date than that alleged in the
specification. I agree with the Company that its admis-
sion concerning the duration of the backpay period is not
inconsistent with an assertion that Jamison would have
remained with the Company for a limited period of time,
and therefore that backpay should be tolled at an appro-
priate point. However, the Company's assertion in this
regard, made for the first time in its brief, is inescapably
addressed to the matter of gross backpay. Indeed, the
Company impliedly so concedes in its brief (see p. 31, in
which the Company proposes that, on the basis of its ar-
gument, gross backpay should not be calculated beyond
1975). See also footnote 8 of the backpay specification, in
which the General Counsel submits that no calculation
of backpay be made beyond the point when Jamison re-
moved himself from the labor market. Contrary to the
Company's suggestion gross backpay is not always
simply a matter of mathematical calculation. Rather, the
matter of gross backpay may encompass a variety of
actual or potential matters in dispute, including the pro-
jected period of employment with the respondent-em-
ployer. However, in its answer to the backpay specifica-
tion and in its response to the General Counsel's motion
to strike portions of the answer, the Company failed to
indicate that it intended to present such defense. There-
fore, and by virtue of Administrative Law Judge Leffs
pretrial order, the Company was precluded from disput-
ing the amount (including duration) of gross backpay and
was in effect limited to contesting only the allegations of
interinl earnings and consequent net backpay; i.e., the
1330
MEDLINE INDUSTRIES, INC.
matter of whether the discriminatees willfully incurred
loss of interim earnings. 3 I am not striking the pertinent
section of the Company's brief in its entirety, as some
portions of that section are incorporated by reference
into the Company's arguments with respect to interim
employment. However, I am granting the General Coun-
sel's motion to the extent of striking the Company's brief
insofar as it is addressed to the contention that "Jamison
would have left Medline's employ for a number of inde-
pendent reasons thereby cutting short his claim." That
contention will not be considered on its merits in this
proceeding.
The Company's second contention, relating to contri-
butions to the medical insurance and income continuation
plans, is like the first contention, a proposed adjustment
to gross backpay which was not asserted in the answer
to the backpay specification and is precluded by the
terms of Administrative Law Judge Lefts order. More-
over, the Company's assertion is based on an erroneous
premise. The Company admitted or stipulated that Mark
Kenney was covered by the plans at the time of his dis-
charge, that his contributions to the plans would have
been $3.15 and $2.22 per week respectively, and that the
Company was entitled to be credited with such amounts
as would have been paid during the backpay period, as
an offset to the liability for benefits which Kenney
should have received as a result of his accidental injury.
However, there is no evidence, stipulated or otherwise,
as to whether any of the other discriminatees were cov-
ered by the medical insurance and income continuation
plans. Moreover, as indicated, the Company admitted
that the contributions were an offset against the alleged
loss of benefits, rather than an offset against lost wages.
Therefore I am granting the General Counsel's motion to
strike from the Company's brief its proposal to adjust
gross backpay as set forth in footnote I of the brief.
B. Mark Jamison
Jamison began working for the Company on April 10,
1975, and was discriminatorily terminated on May 23,
1975. He worked as a general laborer in the warehouse,
where he received, checked, and sorted deliveries and
loaded trucks. Jamison was a full-time employee who
noramlly worked Monday through Friday, from 8 a.m.
to 4:30 p.m. He was offered reinstatement to his former
job on April 25, 1979. The General Counsel contends
that Jamison is entitled to net backpay in the sum of
:' The conteition which the Company novl belatedly attempts to raise
in its brief was to some extent litigated in the unfair labor practice pro-
ceeding The Administrative L as Judge found that Company President
James Mills told discriminatees Jamis'on and Kenney, prior to their dis-
charge, that "those guys who didn't need the job and didn't plan (on stay-
ing with the Company would leave,'" whereupon Jamison and Kenney in-
sisted that they had no plans to leave the Company and needed their
jobs Hoswever, in the unfair labor practice proceeding the Company con-
tended that the terminations were "economically necessitated." The Ad-
ministrative Law Judge rejected this defense, and found that the employ-
ees were terminated because of their "protected concerted organizational
activities." It would seem to be implicit in the Administrative Liaw
Judge's ultimate findings, that Mills' reference to employees who "didn't
plan on staying," was also pretextual. However, as the parties were ntot
on notice that the duration of Jamison's projected employment would be
an issue in this proceeding, and in fact Administrative L aw Judge L eff's
order precluded such litigation, the matter was not pursued
$13,092.36, covering periods of time from his discharge
until October 13, 1978, when he entered the United
States Air Force. As will be discussed, Jamison's work
history during the intervening period indicates intermit-
tent employment with some eight different employers,
and a pattern which repeatedly involved his quitting or
refusal to accept jobs. The Company contends that Ja-
mison willfully incurred loss of interim earnings. For rea-
sons which will be discussed, I find substantial merit in
the Company's position, and that Jamison is entitled to
backpay only to the extent indicated in this Decision.
On June 9, 1975, the Company offered Jamison a non-
bargaining unit job. Jamison initially accepted the offer,
and returned to work for the Company, but left a few
weeks later. The circumstances of this brief period of
employment are discussed in the Board's Decision in the
unfair labor practice case. Specifically the Administrative
Law Judge found that the job in question necessitated a
transfer to Baltimore, Maryland, that the Company ini-
tially exaggerated the level of responsibility involved,
and that the Company required Jamison to either pay his
own moving expenses or post a bond to insure that he
would remain on the job. The Company initially repre-
sented the job to be an "executive type managerial or su-
pervisory assignment," but in fact it involved only "rou-
tine menial warehouse work without any assistance, as a
sort of one-man-band warehouseman-in-residence with-
out help of any kind." In his proposed remedy. which
was adopted by the Board, the Administrative Law
Judge provided with respect to Jamison and two other
discriminatees who were offered nonunit work, that
"whether they wish to accept it is for them to decide;
and any interim earnings they have received may be set
off in any compliance proceeding in determining back-
pay, if any, due." That provision of the remedy is bind-
ing in the present proceeding. See also Wonder Markets,
Inc., 249 NLRB 265 (1980). Moreover, for purposes of
entitlement to backpay, Jamison was not obligated to
accept employment which necessitated leaving his home
area. Therefore, Jamison did not incur willful loss of
earnings by refusing to accept alternative employment
with the Company.
Jamison testified that he began to search for work im-
mediately upon leaving the Company. On September 16,
1975, Jamison went to work as a warehouseman for
Quality Books. Jamison began working for $2.75 per
hour, and was raised to $3 per hour. However he left
after about a month in order to accept what he consid-
ered to be a better position as a store manager with
Framesmith, which operated several stores where it was
engaged in the fabrication and sale of picture frames. Ja-
mison previously worked as a store manager for Frame-
smith before going to work for the Company. Jamison
worked for Framesmith from October 1975 to January
1976 when he quit his job without any immediate pros-
pect of alternative employment. Jamison testified that he
left Framesmith because of a disagreement over a bonus
arrangement, and because he was not satisfied with the
way in which the stores were run. Jamison received a
wage of $3 per hour. He testified that he also had a
bonus arrangement which was orally agreed upon be-
1331
DECISIONS OF NATIONAL LABOR REI.ATIONS BOARD
tween himself and James Smith, the owner of Frame-
smith. Jamison testified that he could not recall the exact
terms of the arrangement, but that he was to receive as a
bonus the difference between labor costs and a certain
percentage of gross sales at Framesmith's Deerbrook
store. According to Jamison, Smith violated the agree-
ment by including Jamison's salary as part of the labor
cost, and thereby substantially reducing the amount of
Jamison's bonus. Jamison further testified that Smith was
not interested in running a successful business; e.g., he
declined to purchase sufficient materials to obtain a large
order, that he simply regarded Framesmith as his hobby,
which was subservient to his other business interests, and
that in fact Framesmith went out of business about 8
months after Jamison left.
The Company correctly points out that, under estab-
lished Board policy, a claimant is deemed to have will-
fully incurred loss of income by voluntarily relinquishing
interim employment "without compelling or justifying
means." Knickerbocker Plastic Co., Inc., 132 NLRB 1209,
1212 (1961); see also Shell Oil Company, 218 NLRB 87
(1975). 4 Absent such means, the claimant's projected
earnings from the interim employment operates as a con-
tinuing offset against gross backpay. (Knickerbocker Plas-
tic, supra, 132 NLRB at 1215.) In the present case, I find
that Jamison quit his job with Framesmith without the
requisite compelling or justifying means. Regardless of
Jamison's alleged dissatisfaction, the backpay specifica-
tion indicates that Jamison's interim earnings at Frame-
smith exceeded the income which he would have re-
ceived at the Company. The Framesmith position also af-
forded to Jamison the responsibility which he ostensibly
desired, and also enabled him to perform work for which
he was qualified and which he enjoyed; namely, picture
framing. Jamison's alleged dissatisfaction might have
been a justification for seeking alternative employment.
However, it did not justify his action in willfully incur-
ring loss of earnings by leaving Framesmith without any
prospect of alternative employment. Compare, Knicker-
bocker Plastic Co., supra, 132 NL RB at 1216, in which
the Board held that a claimant incurred willful loss of
earnings by quitting an interim job because the employer
refused to give her a pay raise. See also Miami Coca-
Cola Bottling Company, 151 NIRB 1701, 1703 (1965).
Moreover, in light of Jamison's subsequent record, which
will be discussed, I find that Jamison quit his employ-
ment at Framesmith in order to pursue his college stud-
ies. Therefore, Jamison withdrew from the job market to
the extent that he relinquished full-time employment
which interfered with those studies. See L.C.C. Resort,
Inc., d/b/a Laurels tHotel and Country Club, 193 NLRBI
. The General Counsel contends (br., p 4) that the "test under such
circumstances is not whether any employee, or most employees, would
have found conditions with the interim employer unacceptable," hut the
subjective standard of "whether the discriminatee genuinely believed
them to be so." In support of this proposition the General Counsel lists
three citations of Board cases, two of which are erroneous, and none of
which support the proposition. See Shell Oil Company, supra, 218 NLtRB
at 88-89. It is unlikely that the Board would adhere to such a standard.
which depends upon vague, shifting, and subjective factors. Moreover,
the proposed standard would run counter to the underlying "healthy
policy" in these proceedings "of promoting production and employ-
ment." Phelps Dodge Corporation v N I..R.B., 313 U.S 177, 200 (1941)
241, 246, 247 (1971). 1 find that Jamison's projected earn-
ings at Framesmith should operate as a continuing offset
against gross backpay until September 1976, when, ac-
cording to Jamison, Framesmith went out of business. Ja-
mison worked at Framesmith through the fourth quarter
of 1975, and his interim earnings, amounting to $2,221.61,
exceeded gross backpay for that quarter. Jamison's earn-
ings with Framesmith for the fourth quarter of 1975 con-
stitute an appropriate measure of offset against gross
backpay for the first and second quarters of 1976. Gross
backpay for these quarters was $2,599.52 and $2,015.31,
respectively (actual interim earnings were $325.80 and
$726.50 respectively). Therefore, Jamison is entitled to
net backpay of $377.91 for the first quarter of 1976, and
none for the second quarter of 1976.
Jamison testified that after leaving Framesmith he
looked for work which he was qualified to perform.
However, in or about January 1976 he enrolled as a stu-
dent at the College of Lake County in Grays Lake, Illi-
nois. Jamison took three courses, meeting both days and
evenings, and averaging 9 hours of classroom time per
week. In March 1976 Jamison began working as a part-
time data control clerk in the electronic data processing
department of Kemper Insurance Company. He worked
from midnight to 4 a.m. In July 1976, i.e. shortly after
the end of the school year, Jamison began working as a
full-time employee, from midnight to 8 a.m.5 However,
in September 1976, Jamison left Kemper for a similar job
with Washington National Insurance Company. Jamison
testified that he went to Washington National because
the job paid more and he could learn more about data
processing. Jamison was earning $540 per month when
he left Kemper. At Washington National he started at
$650 per month. Jamison remained with Washington Na-
tional until January 1977. The backpay specification indi-
cates that Jamison's gross backpay exceeded interim
earnings during each quarter of 1976. However, the
specification also indicates that Jamison's projected earn-
ings at Framesmith would have exceeded gross backpay
for the first two quarters of 1976. The specification fur-
ther indicates that gross backpay exceeded interim earn-
ings by $369.13 during the third quarter of 1976. Frames-
mith apparently went out of business during the last
month of that quarter. However, the deficiency in inter-
im earnings is attributable to the fact that through June
1976 Jamison intentionally accepted only part-time work.
Therefore, with respect to 1976, Jamison is entitled to
backpay only for the fourth quarter ($5.86).
In January 1977 Jamison enrolled as a "full-time stu-
dent" (his own words) in University of Illinois at the
Chicago Circle campus. Jamison took four courses. He
remained at the University of Illinois through the winter
5 In May 1976 Jamison underwent surgery for removal of cartilage In
his leg lie was hospitalized for 3 days, but promptly returned to worik,
althotugh he wore a compression cast on his leg for about 3 weeks, used
crutches fir about 2 weeks, and thereafter wore a brace. Jamison testified
that hlie was fully recovered in about 4 months; i.e, by September 19'6.
Hiaving found that Jamison willfully incurred loss of earnings and is not
entitled to any hackpay during this period, I find it unnecessary to pilss
upon the Company's contention that backpay should also be tolled be-
cause Jamison was physically disabled from performing the warehouse
work which he had performed with the Company
1332
MEDLINE INDUSTRIES, INC.
and spring terms of 1977. Jamison resumed his studies at
the University of Illinois in January 1978, and again con-
tinued through the winter and spring terms. In January
1977 Jamison voluntarily quit his employment with
Washington National in order to take a job as a machine
operator with Profile Plastics. At the time Jamison left
Washington National, he was working a rotating shift (3
days on and 4 days off) Jamison testified that he found it
"difficult to cope with" this schedule. However, Jamison
conceded that the real problem was that the Washington
National job interfered with his academic schedule. Ja-
mison also admitted that, after leaving Washington Na-
tional, he declined similar work as a data control clerk
with Kitchens of Sara Lee, although that position would
have entailed third shift work (midnight to 8 a.m.); i.e.,
the same hours which he worked at Kemper Insurance
Company. Jamison worked on the second shift at Profile
Plastics (3:30 p.m. to 11:30 p.m.) earning $3.10 or $3.20
per hour. He testified that the employer accommodated
his academic schedule by permitting him to sometimes
come in late for work. However, Jamison testified that
about February 4, 1977, he was "laid off' by Production
Manager Larry Stakel, because Stakel wanted only em-
ployees who could work a full shift. Jamison's personnel
record at Profile Plastics indicates that he quit because
he wanted part-time work. On May 20, 1977, coinciden-
tal with the end of the spring semester, Jamison again
went to work for Profile Plastics as a machine operator,
working as a full-time employee on the third shift. Ja-
mison did not obtain any other employment during the
period from February 4 to May 20, 1977, nor does his
testimony indicate that he made any effort to obtain full
or part-time work during this period. The decision in the
present unfair labor practice proceeding (233 NLRB at
635, fn. 30) indicates that the Company has been willing
to adjust working hours for employees, such as Jamison,
who might wish to take college courses in the evening.
However, at no time during the backpay period did the
Company operate with a second or third shift. Rather,
full-time employees, including Jamison, normally worked
from about 8 a.m. to about 4 p.m. Therefore, at no time
material could Jamison have worked with the Company
and still maintain his academic schedule at the University
of Illinois. I find that Jamison willfully incurred loss of
earnings by quitting his job with Washington National,
and by refusing to accept full-time employment with
Profile Plastics or Kitchens of Sara Lee, because he
wished to pursue his academic schedule as a full-time
student at the University of Illinois. Therefore, Jamison's
projected earnings as a full-time employee at Washington
National or at Profile Plastics (whichever is the greater)
constitutes a continuing offset against gross backpay. The
backpay specification indicates that for the fourth quarter
of 1976, when Jamison worked full time for Washington
National throughout the quarter, his interim earnings
amounted to $2, 202.72. The present record is inconclu-
sive as to whether Jamison would have earned more
with Washington National in succeeding quarters or as
to how much Jamison would have earned with Profile
Plastics had he worked full time throughout the first and
second quarters of 1977. I find that Jamison's interim
earnings for the fourth quarter of 1976 may be used as a
basis for projecting his earnings during the first two
quarters of 1977. Therefore, Jamison is not entitled to
any backpay for the first quarter of 1977 (When project-
ed earnings exceed gross backpay) and he is not entitled
to any backpay in the net amount of $397.43 for the
second quarter of 1977, representing gross backpay less
projected interim earnings.
When Jamison returned to Profile Plastics in May
1977 he began working at $3.20 per hour. After 30 days
his rate increased to $3.40 and on July 5, 1977, to $3.50
per hour. In early July, Jamison transferred to the first
shift, and his supervisor, Production Manager Stakel,
asked him to participate in a training program for setting
up and maintaining the Company's rotary presses. Until
this time, Jamison had only operated the machines. Ja-
mison agreed to go through the program. Eduardo Buel-
vas, who was presented as a company witness in this
proceeding, was in charge of Jamison's training. Buelvas
was then the setup leadman, and at the time of the
present hearing was day-shift foreman at Profile Plas-
tics. The training program ran for 30 days. Buelvas was
scheduled to go on vacation for 3 to 4 weeks in Septem-
ber 1977, and the employer was concerned that there be
some one in the plant who could be counted upon to
perform the setup work in Buelvas' absence. Jamison
was aware of these facts. The employer recognized that
Jamison had an aptitude for the work. At the conclusion
of the training period (August 3, 1977) the employer
evaluated Jamison's ability and performance and found
that "he does set up rotary jobs better than any other
trainee we have ever had." The Company gave Jamison
a 50-cent-per-hour raise to $4 per hour. Buelvas testified
that he has trained some 15 to 20 employees to perform
the setup work, and that, other than Jamison, none of
them complained about the adequacy of their training.
Jamison testified that after the training program was
completed, he felt that he needed more training. In fact,
Jamison continued to do setup work through August,
when Buelvas was in the plant and available to check his
performance. Nevertheless, on September 14, 1977, some
1-1/2 to 2 weeks after Buelvas went on vacation, Ja-
mison informed Stakel that he was quitting because he
could not perform the setup work. Jamison testified that,
at the time, he was assigned to do a complicated oper-
ation which he felt unable to perform. Acco-ding to Ja-
mison, there was no one there to help him. However,
Buelvas testified that there was another employee who
had knowledge about setting up rotary presses. Jamison's
personnel record indicates that Production Manager
Stakel pleaded with him to remain. There is no indica-
tion that the employer refused to help Jamison. Jamison
testified that on one occasion a filter blew up in his face.
However, this occurred during his training program, and
the training program covered safety procedures. If Ja-
mison was genuinely concerned that setup work was too
dangerous for him, then it is probable that he would
have asked to be taken off such work when the incident
r As of the time of this hearing, Prloduclion Manager Stakel was no
longer employcd by Profile Plastics Company counsel asserted that he
tried, but was unable, to locate Stakel I accept his representation in this
regard
1333
DECISIONS OF NATIONAL LABOR RELATI()NS BOARD
occurred or at the completion of the training program. It
is also unlikely that Stakel would have urged Jamison to
remain at his job if he had reason to believe that Jamison
was incapable of performing the work. Moreover, Ja-
mison did not impress me as an individual who was lack-
ing in self-confidence.
The General Counsel's contention that Jamison was
justified in abruptly quitting his job with Profile Plastics
might be persuasive if this were the only occasion on
which Jamison voluntarily left interim employment
during the backpay period. However, the Board has
held, in comparable circumstances, that willful loss of
earnings is evidenced when a claimant exhibits "a pro-
pensity to quit jobs for a myriad of reason." Knickerbock-
er Plastics Co.. Inc., supra, 132 NLRB at 1212-13 (con-
treras). Both before and after September 1977, Jamison
demonstrated an unwillingness to work at any job for
more than a few months. During the fourth quarter of
1977, Jamison obtained a job as a picuture framer with
Cole National Corporation, which operated a hobby
shop. Jamison initially testified that after 2 weeks the
whole staff was terminated. However, he next testified
that he left because he did not agree with some changes
which were made by the district manager, and because
"it wasn't the same as the position I applied for." In sum,
Jamison quit, and he did so without any immediate pros-
pect of alternative employment.7 In January 1978, Ja-
mison worked on a production line for Aerwey Labs in
Deerfield, Illinois (second or third shift), earning about
$3 per hour. Jamison testified that he left this job be-
cause he sprained his knee during a snowstorm in an ac-
cident unrelated to his job. Jamison testified that he was
unable to work at Aerwey for several weeks, because the
job involved standing and moving. If Jamison were
unable to perform the work at Aerway, then he obvious-
ly would have been unable to work as a warehousemen
with the Company. Therefore he is not entitled to any
backpay for the period of his disability. Certified Meals,
Inc., 235 NLRB 1286, 1288 (1978). Jamison testified that
sometime in February 1978 he was sufficiently recovered
to return to work. Nevertheless he did not even contact
Aerwey, although Aerwey's personnel office had advised
him to call when he was ready to return. I do not credit
Jamison's explanation that he did not call because he did
not think they had work for him. By this time Jamison
had again enrolled at University of Illinois, and it is evi-
dent from his overall pattern of conduct that for this
reason he was no longer interested in full-time employ-
ment. However, Jamison did subsequently work as a
part-time employee for Northport News. Jamison testi-
fied that in August 1978 he refused an offer of a job with
Patrician Galleries in Des Plaines, Illinois. The job,
which paid $3 per hour, involved constructing picture
frames on an assembly line basis. Jamison testified that
this work was not commensurate with his abilities, be-
cause he preferred to construct picture frames as a craft.
However, Jamison's job at the Company also involved
7 Also in the fourth quarter ol 1977 Jamiston look a 2-week vacation
trip to Greece and Israel. However as a full-time employee of the Com-
pany, Jamison would by this time have been entitled to 2 weeks of paid
vacation each year. Therefore he should not be denied any backpay by
reason of this trip.
unskilled work. I find that Jamison again willfully in-
curred loss of earnings by refusing to take a job with Pa-
trician Galleries.
I find that Jamison's projected earnings at Washington
National Insurance Company or at Profile Plastics,
whichever is the greater, should operate as a continuing
offset against gross backpay. The backpay specification
indicates that Jamison's earnings at Profile Plastics ex-
ceeded gross backpay for the third quarter of 1977. The
specification indicates that Jamison would have been
earning $5 per hour with the Company during the third
and fourth quarters of 1977 and $5.25 per hour through-
out 1978. Gross backpay for the fourth quarter "was
$2,889.65, the highest figure for any quarter of the back-
pay period. Jamison's interim earnings at Profile Plastics
during the third quarter of 1977 amounted to $2,201.96.
This figure, compared with his hourly wage figures, indi-
cates that he was regularly working at least 40 hours per
week. As of the time he quit (September 14) Jamison
was earning $4 per hour. I find that in addition to his
actual earnings, projected earnings of $384 (pay for the
remaining 12 days of work in September, assuming a 40-
hour week) should also be deducted from gross backpay.
Therefore Jamison is entitled only to net backpay in the
amount of $303.69 for the fourth quarter of 1977. The
specification indicates for the first quarter of 1978, gross
backpay amounting to $2,620.74, and actual interim earn-
ings of $684.35. However, by reason of his injury, Ja-
mison would not have been able to work for the Compa-
ny for a period of about 3 weeks. There were 13 full
weeks during this quarter. These figures, together with
the hourly wage of $5.25 indicate an average of slightly
over 38 hours of work per week with the Company
during the quarter. Therefore gross backpay should be
reduced in the amount of $599.50, leaving gross backpay
of $2,021.24. However, Jamison also would not have
been able to perform his job at Profile Plastics. There-
fore projected earnings at Profile should also be reduced
by an appropriate amount. I find that the continuing
offset, based on projected interim earnings at Profile of
$2,585.96 in a calendar quarter, should be reduced by
three-thirteenths, or approximately $600. Therefore, Ja-
mison is entitled to net backpay of $35.28 for the first
quarter of 1978.8 Gross backpay for the second quarter
of 1978 amounts to $2,779.88, (actual interim earnings
were $1827.12.) As indicated, gross backpay should be
offset by the amount of Jamison's projected earnings at
Profile Plastics ($2,585.96) during the third quarter of
1977. Therefore Jamison is entitled to net backpay of
$193.92 for the second quarter of 1978. Projected interim
earnings exceed gross backpay for the third and fourth
quarters of 1978. Therefore, there is no net backpay for
these periods. In sum, Jamison is entitled to total net
backpay of $1,893.23 plus interest as follows:
" Jamison's testimony with respect to his operation in May 1976 inji-
cates that his leg injury in January 1978 would not have prevented him
from working as a data control clerk, even while wearing a cast on his
leg Ilowevser, it would seem inappropriate and unrealistic to use the P o-
file I'lastlis job as an offset for the fourth quarter of 1977, and then
switch to the earlier job at Washington National as the appropriate offet
for the first quarter of 1978
1334
MEDLINE INDUSTRIES, INC.
Quarter Net Backpay
1975-2 $579.14
1976-1 377.91
76-4 5.86
1977-2 397.43
1977-4 303.69
1978-1 35.28
Total Net Backpay $1,893.23
C. Mark Kenney
1. The claim for lost wages
At the time of his discriminatory termination on May
23, 1975, Kenney was working for the Company as a
stockman. He had been employed by the Company for
less than 3 months. Kenney did not register for work
with the Illinois Bureau of Employment Security (BES)
at any time during his backpay period. Initially Kenney
relied on private leads to secure interim employment,
and his efforts were soon successful. Within 1 to 2 weeks
of his discharge, he learned of a job opportunity from a
friend whose father was the president of Floors by
Vinci, which was engaged in the business of tile and
carpet setting. Kenney started working for Floors by
Vinci on June 16, 1975. He began as a truckdriver, but
was shortly placed in charge of the tile side of the ware-
house, receiving and taking orders and loading material
on trucks. Kenney testified that his title was "warehouse
manager," and that he supervised three or four truck-
drivers. Kenney began with a weekly salary of $175,
which was increased to $190 in late July and to $200 in
late August. In December 1975 Kenney received a bonus
of $610. He testified that he did not know in advance
that he would be receiving the bonus. In December,
after receiving the bonus, and without any immediate
prospect of alternative employment, Kenney voluntarily
quit his job with Floors by Vinci. Kenney testified that
he did so because he was working 60 to 80 hours per
week, and he felt that his salary, which was not accom-
panied by overtime pay, was inadequate for such long
hours. However, in his investigatory affidavit to the
Board, Kenney stated that he left because the relative of
an executive was making more money than Kenney. In
his testimony Kenney added that he observed favoritism.
With regard to the alleged problem of long hours for in-
adequate pay, Kenney testified that he did not ask for
overtime pay because he was employed on a salary basis.
However, his pay stubs (at least those which he had in
his possession) were presented in evidence by the Com-
pany. They each contained entries for "total hours" and
"regular" and "overtime pay." The stubs indicated that
Kenney did not work more than 40 hours during any
week except the week ending August 9, when he put in
5 hours of overtime and earned $35.60 in overtime pay.
As to the matter of favoritism or salary discrimination,
Kenney testified that he complained to his immediate su-
pervisor that employee Jeff Rapacz was making $225 for
doing the same work as Kenney. Kenney testified that
the supervisor answered that it was none of his business.
However, the surrounding circumstances indicate that
there were at least mitigating circumstances in this osten-
sible discrimination. On October 6, 1975, Kenney was in-
jured in a motorcycle accident. He was away from work
for 2 to 3 weeks, but (as indicated by his paystubs) he
continued to receive his full salary in the form of sick
pay for at least part of this period.9 Upon his return to
work Kenney had to wear a brace on his leg for another
3 to 4 weeks. As a result of his disability Kenney was
unable to perform warehouse work. Floors by Vinci as-
signed Kenney to do office work, and Rapacz was as-
signed to the job of "warehouse manager." Kenney was
not informed as to whether this would be a permanent
change. However, the present record does not indicate
that Kenney ever returned to warehouse work. It is pos-
sible that had Kenney been able to continue to perform
warehouse work, he might have received a raise. These
circumstances do not indicate that Floors by Vinci en-
gaged in favoritism or discrimination by paying Rapacz
$225 per week when he was suddenly called upon to
perform Kenney's job.
I find that Kenney incurred willful loss of earnings by
quitting his interim employment with Floors by Vinci
"without compelling or justifying means" Knickerbocker
Plastic, supra, 132 NLRB at 1212. Kenney's assertion that
he quit because he was overworked and underpaid are
refuted by his own testimony and by his paystub records.
The records indicate that Kenney normally worked a 40-
hour week, and that he was paid overtime when he
worked overtime. Kenney's testimony further indicated
that after he was injured in October 1975 the employer
transferred him to office work. Kenney abruptly quit his
job after he received a substantial bonus. His action was
particularly unwarranted in view of the fact that he had
no alternative employment. Therefore, Kenney's project-
ed earnings at Floors by Vinci should operate as a con-
tinuing offfset against his backpay claim. Moreover, I
find that from the time Kenney quit his job until he next
obtained interim employment in the spring of 1976,
Kenney did not make an honest good-faith effort to
obtain interim work. Rather, the evidence concerning
this interim period, coupled with Kenney's precipitate
action in leaving Floors by Vinci, tends to indicate that
he was not particularly interested in a job at this time.
Kenney lived in Barrington, Illinois, a small suburban
community which is located at least 20 miles from
Northbrook. Unlike Douglas Kline and John Ford,
whose cases will be discussed, infra, Kenney had the reg-
ular use of an automobile for commuting to and from
work. Nevertheless, Kenney testified, without explana-
tion, that he actively looked for work only in Barrington
and nearby communities. As indicated, Kenney did not
register for work with BES. Kenney testified that he did
not recall filling out any employment applications, and
he did not name any firms which he contacted, other
than Tri-Star Cycles in Crystal Lake, Illinois, where he
eventually found employment. Although Kenney previ-
ously participated in a training program for motorcycle
mechanics, he testified that he looked for such work at
9 Kenney's paystub for the seek ending October 11 indicates that he
receied his full salary of $2(00 in the form of sick pay Kenney did not
produce any paystubs for the remaining period of his absence. He did not
testify as to whether or not he was paid for this period, and the General
Counsel did not prodiuce acnl pertinent records for this period
1 335
DECISIONS OF NATIONAL IABO()R RELATIONS BOARD
only one or two places. (Kenney was hired by Tri-Star
Cycles as an apprentice mechanic.) In February 1976,
Kenney went to Hawaii for a 10-day vacation. This fact
further tends to indicate that he was in no particular
hurry to obtain interim employment. ° I find that
Kenney is entitled to backpay only for the second quar-
ter of 1975, in the amount of $865.87, plus interest. '
2. The claim for medical expense and income
continuation benefits
The facts concerning this claim are substantially ad-
mitted, stipulated, or uncontroverted. At the time of his
discharge on May 23, 1975, Kenney was by virtue of his
employee status eligible for participation in, and did par-
ticipate in, a group medical insurance benefit plan admin-
istered on behalf of the Company by Employers Mutual
Liability Insurance Company of Wisconsin. At the time
of his discharge, Kenney was by virtue of his employee
status also eligible for participation in, and did participate
in, an income continuation insurance benefit plan admin-
istered on behalf of the Company by United Benefit Life
Insurance Company. By discharging Kenney, the Com-
pany caused his participation in these plans to cease, and
caused him to become ineligible to participate in those
plans or any other company medical insurance or income
continuation plans from May 23, 1975, until February 14,
1977.
On June 2, 1976, during the period of his employment
with Tri-Star Cycles, Kenney sustained serious physical
injuries in an automobile accident. At the time, Kenney
was not covered by any medical insurance or income
continuation plan coverage. Kenney testified that to his
knowledge neither Floors by Vinci nor Tri-Star Cycles,
his two interim employers, made such coverage available
to their employees. As no evidence was presented to the
contrary, I find that such was the case. Kenney lived
with his parents. Kenney's father, Robert Kenney, was at
the time of the accident employed by Litton Medical
Systems. Robert Kenney testified that through his em-
ployer he was covered by a group health insurance plan,
but that Mark was not eligible for coverage under the
plan because he was over 19 years of age (20 to be exact)
and not in school. Mark Kenney owned an automobile,
but his automobile insurance policy did not provide for
payment of medical expenses or compensation for lost
income. Mark Kenney testified that he did not consider
obtaining his own medical insurance policy until after
the accident.
Robert Kenney testified that he personally paid all of
Mark's hospitalization and other medical expenses arising
from the accident. These expenses amounted to over
$25,000. The parties stipulated that if Mark Kenney was
io In any event, Kenney would not be entitled to any backpay for the
time he spent in Hawaii. See Gary Aircraft Corporation, 210 NI.RB 555,
557 (1974). As a full-time company employee, Kenney would not have
been entitled to a paid vacation until June 1, 1976.
I For the third quarter of 1975. Kenney's interim earnings at Floors
by Vinci exceeded his gross backpay. The balance of his backpay claim
(fourth quarter of 1975 and first and second quarters of 1976) reflects his
lack of employment between leaving Floors by Vinci and going to work
for Tri-Star Cycles. On June 2, 1976, Kenney was physically injured and
thereby rendered unavailable for employment. Therefore there is no com-
putation of backpay beyond that date.
still employed by the Company at the time the expenses
were incurred, and if Kenney had submitted the bills to
the Company's insurance carrier for payment, the insur-
ance carrier would have paid reimbursement for those
bills in the amount of $21,834.11 (total of amounts listed
on page 1, column 5 of G.C. Exh. 8). Broken down by
calendar quarters, the compensible expenses were in-
curred as follows (expenses incurred in a period includ-
ing portions of two quarters are attributed to the latter
quarter):
2d qtr-1976
3d qtr-1976
4th qtr-1976
$4,210.4()
14,849.27
2,774.44
The parties further stipulated that as an offset to the
claim for reimbursement for the compensable medical ex-
penses, the Company would in any event be entitled to
credit in the amount of $3.15 per week during the back-
pay period, constituting the amount of premium which
Kenney would have been required to contribute during
the backpay period, had he continued in the Company's
employ. As there are 90 weeks in the backpay period,
this offset would amount to a maximum of $283.50. The
parties further stipulated that if Mark Kenney were em-
ployed by the Company on the date of the accident
(June 2, 1976) he would have received, by way of bene-
fits under the income continuation plan, 13 weeks of pay-
ments at $90 per week for a total of $1,170, during the
third quarter of 1976. The parties also stipulated that the
Company would in any event be entitled to an offset
against this claim in the amount of $2.22 per week during
the backpay period, constituting the amount of money
which Kenney would have been required to contribute
toward the plan if he had been employed by the Compa-
ny. The total amount of such contributions would have
been $199.80. With respect to the claim for medical in-
surance benefits, Robert Kenney testified without contra-
diction that he was never reimbursed for his payment of
Mark's expenses, but that after he paid the bills, Mark
orally agreed to reimburse him to the extent that any
award was received in this proceeding.
The General Counsel contends that the Company
should reimburse Mark Kenney for the medical and
income continuation benefits which would have been
paid by the insurers if Kenney had been in the Compa-
ny's employ at the time of the accident. The Company
contends that it should not pay the amount of any medi-
cal benefits because in sum: (1) Robert Kenney, as a
third party, cannot be reimbursed for his losses in a back-
pay proceeding; (2) Mark Kenney cannot be reimbursed
because he suffered no "actual loss," in that his father
paid all of his bills; and (3) Mark Kenney is not entitled
to any reimbursement because he willfully incurred any
loss he may have suffered by failing to secure interim in-
surance coverage. The first argument is not directly ad-
dressed to the General Counsel's claim as set forth in the
backpay specification, and strictly speaking is not actual-
ly an issue in this case. The specification makes claim
solely on behalf of Mark Kenney. The General Counsel
does not contend that the Company should reimburse
Robert Kenney, nor does the General Counsel contend
1336
MEDLINE INDUSTRIES, INC.
that any award to Mark Kenney should be conditioned
on reimbursement to his father. Rather, so far as this pro-
ceeding is concerned, any agreement between Mark
Kenney and his father is unenforceable and solely a per-
sonal matter between them. 12 I further find that the
second argument is without merit when viewed in light
of the principles applicable to Board backpay proceed-
ings. It is settled law that lost fringe benefits of employ-
ment such as insurance benefits, are compensable items in
a backpay proceeding. See, e.g., Rice Lake Creamery Co.,
151 NLRB 1113, 1129-31 (1965), enfd. as modified in
other respects 365 F.2d 888 (D.C. Cir. 1966); Deena
Artware, Incorporated, 112 NLRB 371, 375, 382 (1955),
affd. 228 F.2d 871 (6th Cir. 1955). Moreover. the Board's
order in the present case specifically provides for reim-
bursement to the discriminatees for lost insurance claims
and benefits, if any. Mark Kenney did in fact lose medi-
cal and income continuation benefits which he would
have received if he were still in the Company's employ
on June 2, 1976. The Company's argument that Mark
Kenney sustained no compensable loss because his father
paid all of his medical bills, runs counter to the principles
applicable in backpay proceedings. Actual net financial
"loss" as such is not the measure by which backpay is
determined. Interim earnings are properly deducted
against gross backpay. Thus, income actually or con-
structively earned during the backpay period is deduct-
ible against the claim for loss wages. Similarly, proceeds
from substitute insurance are a proper offset for the em-
ployer for claims on the same losses. Rice Lake Creamery
Co., supra, 151 NLRB at 1131. However, it is settled law
that collateral benefits, such as unemployment compensa-
tion and union strike benefit payments, are not deductible
as interim earnings or other offset against gross backpay,
even when the amount of such collateral benefits equals
or exceeds the gross backpay claim. "Since no considera-
tion has been or should be given to collateral losses in
framing an order to reimburse employees for their lost
earnings, manifestly no consideration need be given to
collateral benefits which employees may have received."
Gullett Gin Company v. NL.R.B., 340 U.S. 361, 364
(1951). Robert Kenney's action in paying his son's medi-
cal expenses, whether such payment be deemed as a gift,
loan, conditional loan or the meeting of a moral obliga-
tion to one's offspring, constituted a collateral benefit
which is not an offset against Mark Kenney's claim for
lost benefits, because such payment did not constitute
compensation to Mark Kenney for services performed.
N.L.R.B. v. My Store, Inc., 468 F.2d 1146, 1149-50 (7th
Cir. 1972), cert. denied 410 U.S. 910 (1973); Associated
Transport Company of Texas Inc., 194 NLRB 62, 73
(1971). In My Store, the court, in agreement with the
Board, held that weekly payments by a union to unfair
labor practice strikers who were improperly denied rein-
statement to their jobs were not deductible from gross
backpay. The payments were equal in amount to the
wages which the strikers would have received (exclusive
of fringe benefits), and were given as "loans," with a
12 Therefore, I excluded questioning by company counsel of Robert
Kenney concerning matters in potential mitigation of his losses; e g.. how
or where he obtained the money to pay the bills, and whether he could
have reduced his income taxes by reason of such payment.
commitment that the strikers would repay the money
w hen the employer honored its backpay obligations to
them. The court held that these payments were collateral
benefits which were not deductible from gross backpay
because they were not given as compensation for picket-
ing or other services. The facts in My Store are analo-
gous to those in the present case, and the principles set
forth therein are also here applicable. ' In sum, I find
that Mark Kenney sustained a compensable loss of medi-
cal and income continuation insurance benefits, and that
his father's action in paying his medical expenses was a
collateral benefit which is not deductible from gross
backpay.
With regard to the Company's third argument, I agree
with the Company that losses "willfully incurred,"
whether in the form of lost earnings or lost fringe bene-
fits, are not compensable in a backpay proceeding. How-
ever, I do not agree that this principle requires a discri-
minatee to incure expenses out of his own pocket in
order to make up for lost fringe benefits. As a result of
the Company's discriminatory conduct, Mark Kenney
lost not only his job, but also the benefit of a group
medical insurance policy which cost him only $3.15 per
week. deducted from his paycheck. The Company has
presented no evidence as to how much it would have
cost Kenney to obtain comparable individual insurance
coverage at his own expense. Given prevailing rates, it is
probable that the cost would have substantially exceeded
the sum of $3.15 per week. As indicated, I have found
that Kenney left his interim job with Floors by Vinci
without compelling or justifying means, and that he
thereafter did not make an honest good-faith effort to
obtain interim work. However, these findings, in the cir-
cumstances of Kenney's situation, do not warrant a find-
ing that Kenney willfully incurred loss of his insurance
benefits. Floors by Vinci did not provide insurance cov-
erage for its employees. At the time of the accident,
Kenney was once again gainfully employed, but his em-
ployer, like Floors by Vinci, also did not provide insur-
ance coverage. In the landmark case of Phelps Dodge
Corporation v. .L.R.B., supra, 313 U.S. at 197-200, the
Supreme Court made clear that in establishing the princi-
ple that deduction should be made for losses "willfully
incurred," i.e., "a clearly unjustifiable refusal to take de-
sirable new employment . . . we have in mind not so
much the minimization of damages as the healthy policy
of promoting production and employment." No such
"healthy policy" is served by compelling a discriminatee
to make up lost fringe benefits out of his own funds. We
are not yet a society where individuals (except those eli-
gible for Medicare) can obtain health insurance on their
own at nominal or no cost. Therefore, Mark Kenney did
not incur willful loss of medical insurance benefits, and
he is entitled to reimbursement for lost medical insurance
benefits in the net amount of $21,550.61, and to income
13 In Deena Artware. supra, 112 NLRB at 375, 382, the Board ordered
that the employer reimburse 12 female discriminatees for maternity insur-
ance benefits which they lost when they each gave birth during the back-
pay period. The Board did not inquire into whether any third person
paid the hospital and other medical expenses in question, although it is at
least plausible that in at least some instances the father paid the bill
1337
DECISIONS OF NATIONAl. I.ABOR RELATIONS BOARD
continuation insurance benefits in the net amount of
$970.20, both with interest.1 4
D. Douglas Kline
Kline was discriminatorily terminated by the Company
on May 23, 1975, and was offered reinstatement on
March 5, 1977. The General Counsel contends that Kline
is entitled to full reimbursement for his lost earnings, less
interim earnings, through the second quarter of 1976.
Thereafter Kline's interim earnings exceeded gross back-
pay for each quarter. The Company contends that Kline
did not make a diligent search for interim employment
and should not receive any backpay for the second and
third quarters of 1975.
In the unfair labor practice proceeding, the Adminis-
trative Law Judge found that in June 1975, Company
President Mills discussed with Kline the prospect of
other employment, "including such seemingly esoteric
possibilities as fur skinning and ski slope cleaning as a ski
bum in New Mexico." Kline pointed out that with the
exception of a possible job with Metropolitan Wire Com-
pany in Northbrook, located about 1-1/2 miles from his
home, he had no way of getting to any of the suggested
possible jobs, none of which involved a firm offer. Kline
followed through on the Metropolitan Wirelead, but was
subsequently informed that there was no job for him
there. In the interim, Mills offered Kline the possibility
of no lower rate of pay and steady employment at Met-
ropolitan in return for a withdrawal of the pending
unfair labor practice charges insofar as they involved
Kline. I agree with the General Counsel that the Admin-
istrative Law Judge's findings with regard to the episode
tend to indicate that Kline wished to and did actively
seek interim employment from the time of his discharge.
At the time of his discharge, and throughout the back-
pay period, Kline lived at the family home in North-
brook with his parents. Kline did not own or have the
regular use of an automobile. His only regular means of
transportation were by walking and bicycling. His home
was a 3-minute walk from the Company's plant. During
the summer of 1975 Kline began working at the High-
land Park Animal Hospital, located in Highland Park or
Deerfield, Illinois, about 10 miles from his home. Kline
had to borrow cars in order to commute to and from
work. The arrangement was not easy, but Kline re-
mained with his job. He was responsible for the care and
handling of animals. Kline's starting wage was about
$3.50 per hour. After nearly a year his wage had pro-
gressed to $4.25 per hour. Thereafter his interim earnings
exceeded gross backpay.
Kline, who was presented as a company witness, testi-
fied that he began looking for work immediately after his
discharge, and continued to actively seek work until he
obtained his job with Highland Park Animal Hospital.
Kline testified that he looked for work in Northbrook
14 In .L.K.RB. v My Srore. supra, 468 F.2d at 1152, the court of ap-
peals held, in sum, that it would be inequitable to award interest on back
pay to the extent that the strikers received weekly payments from their
union in the form of interest-free loans However, in the present case the
Board's order, which was enforced in pertinent part by the court of ap-
peals, specifically provides that all reimbursement, including that folr in-
surance claims and benefits, shall he with interest
and other suburban communities north of Chicago. Kline
checked newspaper help want-ads. In his testimony
Kline identified by name approximately 18 firms where
he sought employment, and identified the location of
other firms where he also sought employment. Kline tes-
tified that he filled out applications, was also interviewed
at some firms, and was told at some that they were not
taking applications. Kline did not indicate that he re-
ceived or rejected a job offer before going to work for
Highland Park Animal Hospital. Kline testified that he
registered with the BES within about 2 weeks of his ter-
mination, and returned once or twice before obtaining
employment. Kline testified that he "believed" that he
applied for unemployment compensation and received
one check, but that there was some mix up about checks
not coming in regularly. However, Kline testified that
this might have occurred before 1975 and prior to his
employment with the Company. No other witnesses
were presented with respect to his backpay claim. The
Company offered in evidence, unsupported by any testi-
mony, a computer printout from the BES purporting to
show that no benefits were paid to Kline (identified by
social security numbers) during the period from January
1, 1975, to January 8, 1980. 1 rejected the offer. First, in
the absence of explanatory testimony, there is no assur-
ance that the printout is either accurate or complete.
(Authenticity was not disputed.) Second, even if the
printout were both accurate and complete, the printout
would not serve to impeach Kline's testimony. The print-
out purports to show only that no benefits were paid to
Kline since January 1, 1975, and not that he failed to
register for employment. Moreover, Kline testified that
he was not sure whether he received a compensation
check during the backpay period or in an earlier period
of unemployment prior to 1975. In light of Kline's lack
of recollection about the precise circumstances of this
matter, it is more probable that the problem with pay-
ments occurred prior to 1975. I credit the testimony of
Kline concerning his efforts to obtain interim employ-
ment. I find that Kline made a sincere and diligent effort
to obtain interim employment. Therefore he is entitled to
the full backpay claim set forth in the specification
($2,630.79) plus interest. Compare, Midwest Hanger Co.
and Liberty Engineering Corp., 221 NLRB 911, 922
(Forbis) (1975), enfd. in pertinent part 550 F.2d 1101,
1106 (8th Cir. 1977).
E. John Ford, Jr.
At the time of his discriminatory termination (May 27,
1975) Ford had just completed his junior year of high
school. Ford began working for the Company as a regu-
lar part-time employee in the late fall of 1974, through a
workstudy program known as DCE. Ford worked from
3 p.m. to 6 p.m. and sometimes later and on Saturdays.
Like Douglas Kline, Ford lived at home with his parents
in Northbrook, did not have the regular use of an auto-
mobile, and relied on walking and bicycling for transpor-
tation (the latter until his bicycle was stolen). Ford, who
was presented as a company witness, testified that he
looked for work in the Northbrook area, and, in particu-
lar, at factories along and near Sherman Road (apparent-
1338
MEDLINE INDUSTRIES, INC.
ly an industrial and commercial thoroughfare). Ford tes-
tified that some plants refused to hire him because he
was a high school student. Ford testified that he showed
company counsel a list of the places where he looked for
work. However, the Company did not present the list in
evidence. I credit the testimony of Ford concerning his
efforts described above. Ford also testified that he
looked for work at department stores in shopping centers
in the Northbrook area. However, in his investigatory af-
fidavit Ford admitted that these efforts actually took
place after the backpay period. Ford also testified that he
registered with the BES, filled out a form (which he de-
scribed) returned once, but did not receive any benefits.
Ford testified that he was told at BES that they would
contact him, but he was not notified of any openings.
The Company offered in evidence the BES printout pre-
viously mentioned, which purported to indicate, with
regard to Ford's social security number "SSN not on
file." I again rejected the offer, which as indicated was
unsupported by any testimony which could establish ac-
curacy or completeness. Ford testified that BES in-
formed him that they kept records only for 6 months or
I year. Ford's testimony was hearsay: but in the absence
of testimony by a qualified witness, the printout had no
greater evidentiary weight. Rather Ford's testimony
simply confirmed the need for such a witness. I credit
the testimony' of Ford concerning his efforts to obtain
work through BES. Ford further testified that he sought
job referrals through private employment services, but
that they charged a lot and the referrals were too fiir
from his home. Specifically, Ford indicated that he was
unwilling to accept referrals (usually warehouse jobs) to
suburban communities located several miles from North-
field, such as Deerfield and Park Ridge, Illinois.
Ford did not obtain employment until November 1975,
when he obtained a temporary job with United Parcel
Service in Northbrook. In the meantime, Ford did not
enroll in the DCE program during his senior year, be-
cause he was taking "other courses" that year. There is
no evidence that Ford's school hours were altered or
that his availability for employment was reduced because
of his failure to enroll in the workstudy program. (I take
note of the fact that public high schools normally con-
duct all classes during fixed periods of time.)
Ford worked for United Parcel Service for about 2
months, until January 1976, when he was laid off. Ford
testified that he did not apply for a permanent job with
United Parcel because they already had many applica-
tions on file, and because his supervisor told him he was
too slow and should "wait quite a while" before reapply-
ing. Ford testified that after leaving United Parcel he ap-
plied for work at various firms in and around North-
brook, and he named or identified the locations of some
of these firms. However, Ford did not obtain any em-
ployment until he was reinstated by the Company in
February 1977. During the summer of 1976 a friend in-
formed Ford that the Mercantile Exchange, located in
downtown Chicago, was hiring help. Ford testified that
he did not apply' because the friend told him that the
work was "intense" with a lot of "screaming and yell-
ing," and that he (Ford) felt that he could not handle the
pressure. In his testimony, Ford explained, in essence,
that he did not feel temperamentally suited to perform
sales or other work involving constant dealing with
people. Rather Ford preferred to do factory or ware-
house work, such as his job with the Company. Ford tes-
tified that he also did not look for work during the
summer of 1976 because he had just finished high school
and did not need a job. The General Counsel determined
that Ford did not diligently search for employment
during this period. Therefore, the backpay specification
does not assert any claim for a portion of the second
quarter and all of the third quarter of 1976.
In the fall of 1976, Ford enrolled as a student at the
Chicago Art Institute, located in downtown Chicago,
about 30 miles from his home. Ford continued his course
of study there until May 1977. Ford had courses on
Monday, Tuesday, and Wednesday evenings until Janu-
ary 1977, and all day on Fridays and Saturdays. Howev-
er, neither during this or any other time during the back-
pay period did he seek full or part-time employment in
Chicago. The Company reinstated Ford in February
1977 and he continued to work there until he quit in De-
cember 1977.
Ford was the only witness presented with respect to
his claim. The Company contends that Ford is not enti-
tled to any backpay because he made no diligent search
for interim employment. The arguments advanced in sup-
port of this contention might be more persuasive if we
were here dealing with an individual who at the time of
his discharge had completed his schooling and was a
full-time worker or even a part-time worker who was
available at various hours. However, the Company's dis-
criminatory termination of Ford placed him in a particu-
larly difficult position. The summer job market for high
school students is a limited and competitive one, usually
involving more demand than can be satisfied by the
available positions. As of the close of the 1974-75 school
year, Ford could fairly assume that he had a part-time
job for the indefinite future. Instead, within a week the
Company discriminatorily terminated Ford, thereby
throwing him into this job market at a time when most
of his peers who wanted summer jobs had already ap-
plied for them, and when most available slots were
filled. ' Moreover, unlike many of his peers, Ford did
not have the use of an automobile for commuting to and
from work. His community of Northbrook did not have
a public transportation system. Although Northbrook
was tied into an interurban rail (RTA), that network did
not provide accessibility to the factory and warehouse
areas where Ford could find the kind of work for which
he was qualified. Furthermore, while a full-time member
of the work force might reasonably be called upon to
expend a substantial amount of time in commuting to and
from work, it is unreasonable to expect a high school
student, on top of the time needed for his classes and
homework, and the time devoted to after school employ-
ts The Company also imposed another handicap upon Ford in cionnec-
tion with employment during the school year The decision in the unfair
labor practice case ndicales that the Company had a policy .of accommo-
dating employees (eecn full-time employees). who wished to attend
school,o hy re'schedutilg their iorking hours (233 NL RI 61S. at fn 30)
1Itoke'er. other prospective employers might not hte ,o acciommodating
1339
DECISIONS OF NATIONAL I.A()OR RELATIONS BOARD
ment, to expend additional time and money in lengthy
and difficult commuting. Indeed, use of RTA, which was
the only public transportation available to Ford, would
probably have eaten up a significant portion of the limit-
ed earnings which he could expect from part-time em-
ployment. With regard to Ford's failure to participate in
the DCE program during his senior year of high school,
his testimony indicates that this decision was related to
his choice of courses, rather than manifesting an unwill-
ingness to perform after-school work. The record does
not indicate that Ford would have discontinued his em-
ployment with the Company by making this choice, nor
does it indicate that Ford was not available for part-time
work during the 1975-76 school year. In fact, as indicat-
ed by Ford's testimony, he actively sought part-time
work, and obtained such work on a temporary basis
during the school year. I find that Ford conducted a
good-faith and diligent search for part time or temporary
work during the period from his discharge until the
summer of 1976, and therefore that he is entitled to the
full amount of backpay claimed for this period.
However, the claim for backpay for the fourth quarter
of 1976 and the first quarter of 1977 warrants a different
result. Ford obtained no interim employment whatsoever
during this period. However, he was devoting a consid-
erable portion of his time to his studies at the Chicago
Art Institute. Although his courses necessitated his pres-
ence in downtown Chicago on 5 days each week, Ford
did not indicate that he made any effort to obtain part-
time or temporary employment in Chicago or anywhere
else outside of the Northbrook area. Ford was taking
courses in design, painting, and photography, thereby ob-
taining at least minimal qualifications in these fields.
However, Ford made no effort to obtain any employ-
ment in these fields, not even as an unskilled assistant, al-
though it may fairly be inferred that such work was at
least potentially available, particularly around the holi-
day season. In these circumstances, I find that Ford in-
tentionally subordinated and abandoned his search for
employment in favor of pursuing his studies at the Chica-
go Art Institute, and therefore that he is not entitled to
backpay for the fourth quarter of 1976 and the first quar-
ter of 1977. In sum, I find that Ford is entitled to back-
pay in the amount of $3,780.91 plus interest, representing
his claim for the period from his discharge through part
of the second quarter of 1976.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I hereby issue the following recommended:
ORDER 16
The Respondent, Medline Industries, Inc., its officers,
agents, successors, and assigns, shall make whole John
Chorba, Gregory Fair, John Ford, Jr., Donald R. Hol-
land, Mark Ira Jamison, Mark R. Kenney, Douglas R.
Kline, and the estate of Daniel J. Weckler, by paying
them the amount set forth below opposite their name,
plus interest thereon accrued to the date of payment and
computed in the manner set forth in Florida Steel Corpo-
ration, 231 NLRB 651 (1977), less tax withholdings re-
quired by Federal and state laws:
John Chorba
Gregory Fair
John Ford, Jr.
Donald R. Holland
Mark Ira Jamison
Mark R. Kenney
Douglas R. Kline
Estate of Daniel
J. Weckler
$1,145.89
276.87
3,780.91
838.59
1,893.23
23,386.68
2,630.79
1,444.87
I1 In the event no exceptions are filed as provided by Sec. 10246 of
the Rules and Regulations (of the National I.abor Relations Board, the
finldings, conclusionls, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deened waived for all purposes.
1340