Sargent Electric Company

National Labor Relations Board - Board Decisions

Mar 19, 1981

255 N.L.R.B. 121 (N.L.R.B. 1981)

SARGENT ELECTRIC COMPANY 121
Sargent Electric Company and Dennis H. Green-
wood. Case 6-CA-9991
March 19, 1981
SUPPLEMENTAL DECISION AND
ORDER
On November 17, 1980, Administrative Law
Judge Phil W. Saunders issued the attached Sup-
plemental Decision in this proceeding.' Thereafter,
Respondent filed exceptions and a supporting brief.
The National Labor Relations Board has consid-
ered the record and the attached Supplemental De-
cision in light of the exceptions and brief and has
decided to affirm the rulings, findings, 2 and conclu-
sions 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 recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Sargent Elec-
tric Company, Pittsburgh, Pennsylvania, its offi-
cers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order.
i The Board's original Decision and Order is reported at 237 NLRB
1545 (1978). Thereafter, the Court of Appeals for the Third Circuit en-
tered its judgment enforcing the Board's Order (Docket No. 79-1847.
December 13, 1979).
Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect.Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
SUPPLEMENTAL DECISION
STATEMENT OF THE CASE
PHIL W. SAUNDERS, Administrative Law Judge: This
case was heard before me in Pittsburgh, Pennsylvania, on
June 30, 1980, based on a backpay specification issued on
April 8, 1980, for the purposes of resolving a controver-
sy over the amount of backpay due the individuals
named herein.
On September 1, 1978, the Board issued its Decision
and Order (237 NLRB 564) directing Sargent Electric
Company, hereinafter Respondent, to make whole
Dennis H. Greenwood, Tommy W. Rose, Robert Sipe,
and Kenneth H. Bonds for their loss resulting from Re-
spondent's unfair labor practices. On December 13, 1979,
the Court of Appeals for the Third Circuit entered its
judgment enforcing the provisions of the Board's Order
herein, and accordingly, the backpay specification was
issued.
The Respondent admits the propriety of the General
Counsel's formula used to determine the amount of back-
255 NLRB No. 18
pay due the claimants, including the number of hours
each claimant would have worked during each week of
the backpay period; the hourly wage rates payable to
employees in the classification occupied by each of the
discriminatees; the hourly wage payable for overtime
work; the number of hours each discriminatee would
have worked at the overtime rate during the backpay
period; the vacation allowance rate payable to each of
the discriminatees; and the percentage of net backpay
payable to the Local Employee Benefit Board. '
The backpay period for each of the discriminatees
begins on January 10, 1977, when each was discharged
by Respondent, and ends on April 26, 1978, when each
of the claimants either accepted or declined the Re-
spondent's offer of reinstatement.
Each of the four claimants were either journeyman
electricians, wiremen, or linemen, and prior to their dis-
charge had been referred to the Respondent's Elrama
Power Station jobsite located approximately 25 miles
from Pittsburgh. The employees of Respondent were
represented by Local 5 of the International Brotherhood
of Electrical Workers (Pittsburgh) and all references
herein to other locals are of the same brotherhood.
During the backpay period all of the claimants in-
curred certain expenses while seeking and maintaining
their interim employment. The Board, of course, has
long considered these types of expenses to be an offset to
the amount of interim earnings and thus are recoverable,
and the employer has the burden of establishing that the
expenses were not incurred, or any incorrectness or
undue discrepancies in the amount of expenses claimed.
From time to time all of the discriminatees incurred
extra mileage costs and also two of them incurred extra
food and lodging expenses while seeking and/or main-
taining interim employment. More specifically, each of
the claimants testified as to the amount of extra mileage
incurred by them while maintaining interim employment
in respect to the daily commuting between their various
places of lodging and places of employment, and the
mileage rate used in such tabulations was 15 cents a
mile.2 Greenwood and Rose also incurred turnpike and
bridge tolls in seeking interim employment at various
times in the backpay period, but it is well established that
such mileage and tolls incurred by a discriminatee and
claimant in seeking interim employment is also a deduct-
ible expense from interim earnings and, therefore, a re-
coverable item.
Finally, extra lodging expense is claimed by Bonds
while he was maintaining interim employment and food
and lodging expenses are also claimed by Greenwood
while maintaining interim employment away from his
The Employee Benefit Board, referred to above, is in relation to a
pension fund established by the bargaining contract with certain moneys
to be paid by the Respondent on behalf of its employees. The amount of
the contributions set forth in the specification payable to each claimant, is
based on the net backpay due them for each quarter.
2 From July , 1975. to October 1978, the reimbursement by the Fed-
eral Government for business use of personal automobile was at least 15
cents a mile and it is submitted that this figure is a reasonable mileage
rate in computing the discriminatees or claimants expenses in maintaining
their interim employment. There appears to be no disagreement with the
15-cent-a mile charge and, accordingly, it is hereby accepted.
SARGENT LECTRIC COMPANY
122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
residence. Both claimants testified as to those expenses.
Moreover, it is well established that food and lodging ex-
penses are considered as deductible expenses from inter-
im earnings.
As pointed out, Respondent, with few exceptions, has
not seriously challenged the reasonability of the expenses
claimed nor the correctness of the expenses. In view of
these circumstances all such expense items claimed as
offsets to interim earnings are deductible.
The main issue in this proceeding is whether or not
the claimants made sufficient efforts to obtain other work
in order to meet their obligation to mitigate damages.
Counsel for Respondent argues that the major difference
in the reported earnings of the claimants during the six
quarters included in the Board's backpay specification
clearly establishes that each of the claimants did not
meet his respective duty to mitigate damages by securing
other available work. Respondent claims that their back-
pay obligation as to Robert Sipe terminated on Novem-
ber 10, 1977.
Board decisions have made it clear that an employer
has the burden of establishing that the discriminatees en-
gaged in conduct that would constitute willful loss of
earnings and, while it is true that a discriminatee or
claimant must make a good-faith effort to search for em-
ployment during the backpay period, "the backpay
claimant should receive the benefit of any doubt rather
than Respondent, the wrongdoer responsible for the ex-
istence of any uncertainty, and against whom any uncer-
tainty should be resolved." United Aircraft Corporation
(Pratt & Whitney Aircraft and Hamilton Standard Divi-
sion), 204 NLRB 1068 (1973), and cases cited therein.
The applicable legal principles were correctly restated
by Administrative Law Judge Shapiro in his Board-ap-
proved decision in Aircraft and Helicopter Leasing and
Sales, Inc., 227 NLRB 644, 646, as follows:
An employer may mitigate his backpay liability
by showing that a discriminatee "willfully incurred"
loss by "clearly unjustifiable refusal to take desir-
able new employment." (Phelps-Dodge Corporation
v. N.L.R.B., 313 U.S. 177, 199-200 (1941)), but this
is an affirmative defense and the burden is upon the
employer to prove the necessary facts. N.L.R.B. v.
Mooney Aircraft, Inc., 366 F.2d 809, 813 (5th Cir.
1966). The employer does not meet that burden by
presenting evidence of lack of employee success in
obtaining interim employment or a low interim
earning; rather, the employer must affirmatively
demonstrate that the employee "neglected to make
reasonable efforts to find interim work." N.L.R.B.
v. Miami Coca-Cola Bottling Company, 360 F.2d
569, 575-576 (5th Cir. 1966). Moreover, although a
discriminatee must make "reasonable efforts to miti-
gate [his] loss of income . . . [he] is held . . . only
to reasonable assertion in this regard, not the high-
est standards of diligence." N.L.R.B. v. Arduini
Manufacturing Co., 394 F.2d 420, 422-423 (Ist Cir.
1968). Success is not the measure of the sufficiency
of the discriminatee's search for interim employ-
ment; the law "only requires an honest good-faith
effort." N.L.R.B. v. Cashman Auto Company and
Red Cab Company, 233 F.2d 832, 836 (Ist Cir.).
And in determining the reasonableness of this effort,
the employee's skill and qualifications, his age, and
the labor conditions in the area are factors to be
considered. Mastro Plastics Corp., 136 NLRB 1342,
1359.
The Board confirmed the validity of these principles
by adopting the decision of Administrative Law Judge
Robert M. Schwarzbart in Sioux Falls Stock Yards Com-
pany, 236 NLRB 543 (1978). In determining whether an
individual claimant has made a reasonable search for em-
ployment, the test is whether the record as a whole es-
tablishes the employee had diligently sought other em-
ployment during the entire backpay period. Saginaw Ag-
gregates, Inc., 198 NLRB 598 (1972); Nickey Chevrolet
Sales, Inc., 195 NLRB 395, 398 (1972).
It is also well established that any uncertainty in the
evidence is to be resolved against the Respondent as the
wrongdoer. N.L.R.B. v. Miami Coca-Cola Bottling Com-
pany, supra; Southern Household Products Company, Inc.,
203 NLRB 881 (1973).
I. KENNETH BONDS
Bonds testified that after he was terminated on Janu-
ary 10, 1977, he traveled to his home in Hawthorne,
Florida, and then contacted the business agent of Local
1205, the local in which Bonds retained membership,
about employment and thereafter, pursuant to instruc-
tions from the business agent, traveled to Baton Rouge,
Louisiana, in order to sign the out-of-work book for the
local there, which he had to do on each Friday. As a
result of these efforts, Bonds began work at a Saia Elec-
tric job in Donaldsville, Louisiana, on February 28, 1977,
and worked at that job until mid-April 1977, when he
quit a few days before a strike occurred. However,
Bonds did not remain out of work very long as 2 or 3
days later he began work at an E. C. Earnst job in
McGehee, Arkansas, but because that employer was
transferring employees to night-shift positions, Bonds left
this job on or about May 5, 1977, at which time he drove
(on Friday) to Charleston, West Virginia, and at this lo-
cation began working for Union Boiler, Nitro Electric
Division, the following Tuesday. Bonds worked at this
job for approximately 10 days before a layoff. Very soon
thereafter he began working for Commonwealth Electric
at its John Ames Power House, Charleston, West Virgin-
ia, and worked at this job for approximately a month
when he quit. On the next day he began working for
Union Boiler once again, but this was only a 3 or 4 day
job. Bonds then picked up a job which lasted for ap-
proximately a week for Simmons Electric in Charleston.
Bonds testified that after finishing this job, he then trav-
eled to Illinois where, several days later, he began work-
ing for H. P. Foley. Bonds said that he quit the Foley
job after a week because he could not find a suitable
place to live and immediately began working at a J. M.
Foster job at U.S. Steel's Gary, Indiana, plant, but after
approximately 3 weeks on this job he was laid off. Bonds
then traveled to Hunter, Alabama, and worked for Ala-
bama Power for I day, but since he could not find a
SARGENT ELECTRIC COMPANY 123
place to live, he quit that job and several days later
began working for Delcon Corporation in Dothan, Ala-
bama. Bonds worked for Delcon approximately 6 weeks
when he quit to go to California. Approximately a week
later, upon arrival in California, he obtained a referral to
a job with Kirkwood Electric. Bonds testified that he left
the Delcon job because he felt or knew that electricians
in California were receiving a higher rate of pay. Bonds
worked for Kirkwood Electric for approximately 5
months before quitting several days before the job's com-
pletion. Bonds then traveled to Las Vegas where he
worked for various enterprises until the end of the back-
pay period. Apart from the initial period following his
discharge from Respondent on January 10, 1977, Bonds,
during the entire backpay period, was not off from work
for more than a week to 10 days at a time, and during
such periods was generally in traveling status seeking
other employment (10 days in getting to California).
Counsel for Respondent points out and argues that
Bonds did not obtain work until almost 2 months after
his discharge and if Bonds had shown due diligence, as
Sipe exhibited, he too would have been referred to work
in the Pittsburgh area within a few days after his January
discharge-but Bonds chose to leave the cold northern
climate and return to the more comfortable weather
found in his native Florida. Further, argues Respondent,
it is unreasonable to expect Sargent Electric to compen-
sate Bonds for moneys allegedly lost as the result of his
discharge when he failed to seek available work immedi-
ately after his termination of employment, as was his
legal responsibility.
Bonds explained that to his knowledge Local 712 (a
Pennsylvania local) was unable to place people during
the period here in question-that he had, in fact, inquired
of the business agent as to status of the work in the Pitts-
burgh area and was informed that it would be 2 or 3
weeks before employment would open up because of the
cold weather.
As pointed out, although Bonds testified that he quit
several jobs during the backpay period, as aforestated, I
am in agreement that the facts surrounding these in-
stances do not establish a willful loss of earnings. Thus,
Bonds quit the Saia Electric job in Louisiana because of
an impending strike; the E. C. Earnst job because he was
scheduled to be transferred to the night shift; the Com-
monwealth Electric job because of a personality conflict;
the H. P. Foley and Alabama Power jobs because he
could not find a suitable place to live; the Delcon job in
order to obtain a higher paying job in California; and
that he quit the Kirkwood job several days before the
job's completion. Moreover, in each instance, except
once, Bonds obtained a new job within a week. There-
fore, given all the surrounding circumstances, and given
the fact that Respondent initially occasioned the loss of
employment to Bonds, it cannot be said that a willful
loss of earnings was incurred.
It is also noted that his interim earnings, before de-
ductible expenses, either exceeded his gross backpay
(second quarter 1978), or, in several instances, closely ap-
proximated the gross backpay for each quarter.
In summary, Respondent has failed to meet its burden
of proof with regard to its contention that Bonds in-
curred a willful loss of earnings during the backpay
period. The record indicates that Bonds had substantial
interim earnings throughout the period in question and
that he did not remove himself from the job market but,
to the contrary, made repeated and continued calls and
contacts with business agents whenever out of work and
then, with due diligence, accepted their suggestions and
referrals whenever job opportunities existed.
11. ROBERT SIPE
Sipe stated that within a few days after his discharge
on January 10, 1977, he picked up a job with Prothers
Electrical Contractors in Beaver County, Pennsylvania,
on referral from Local 712 and also stated that at close
intervals thereafter he was successful in getting employ-
ment at the Shippingport Nuclear Power Plant, with
Elm Grove Electric Company in West Virginia, with
Jones & McLaughlin Steel Corporation, and with Ortlip
Electric Company.
Sipe admitted that he quit his job with Ortlip on or
about November 10, 1977, and that he then went to
Colorado Springs, Colorado, in order to study at the
Nazarene Bible College in preparation for the ministry.
However, when Sipe was attending Bible college, he
also had a job with Western Forge at night (11 p.m. to 7
a.m.) performing electrical maintenance work and he ob-
tained this job on or about December 1, 1977.
Counsel for Respondent argues that the backpay obli-
gation in question here terminated on November 10,
1977, when Sipe abandoned his employment and com-
menced his studies for the ministry and that Sipe's deci-
sion to permanently move away from the Pittsburgh area
for a purpose other than seeking a new job constitutes an
additional disqualification.
In the periods material hereto-it is noted that Sipe
was merely a part-time student-from 6 to 10 p.m. (night
school)-at the Nazarene Bible College, but from II p.m.
to 7 a.m., he apparently worked a full 8-hour shift with
Western Forge, as aforestated. Under such circum-
stances, I do not believe it can be determined that Sipe
had withdrawn from the labor market as he was devot-
ing only a few evening hours for college studies while
otherwise working an 8-hour day. Moreover, there are
no other indications that Sipe had permanently aban-
doned his work in the electrical field for full-time stud-
ies, nor are there any specific indications that he had per-
manently moved from the Pittsburgh area. It is also
pointed out that there is no evidence in the record indi-
cating that Sipe would have been retained by Ortlip
Electric during all or part of the backpay period follow-
ing November 10, 1977. In summary, Respondent has
failed to meet its burden of proof that Sipe incurred a
willful loss of earnings under the particular circum-
stances and events outlined above.
111. THOMAS ROSE
Immediately after being discharged on January 10,
1977, Rose returned to his home in Elkton, Maryland,
and signed for unemployment. Rose also contacted Local
313 in Wilmington, Delaware, and Local 126 in Norris-
town, Pennsylvania, and did so at least once a week until
SARGENT ELECTRC COMPANY
124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he obtained a job at Bethlehem Steel in mid-March 1977
as a journeyman wireman. Rose testified that he re-
mained on the Bethlehem job until the first part of June
when he was able to obtain a referral from Local 70 in
Baltimore to a job with Blumenthal Kahn in Baltimore
and that he left for the Blumenthal job because this job
paid over $11 per hour compared to the $6.17 per hour
he was receiving at Bethlehem. Rose further testified
that he started the Blumenthal job the day after he quit
Bethlehem.
After being laid off by Blumenthal in September or
October 1977, Rose traveled to Olean, New York, to
work for Daye Zimmerman, Inc., but was able to work
for only I day on that job because of the weather, and
was informed that the job would be shutting down. Rose
then telephoned a local in Augusta, Georgia, and was
able to obtain a referral to a job with Miller Electric in
Augusta. Rose testified that the Miller job was the only
job he could find at the time and that he continued to
work on the Miller job until mid-November at which
time layoffs were beginning to occur since the job was
nearing completion and as a result he left the job and re-
turned home to Elkton, Maryland, and where he again
signed for unemployment compensation. Or or about
January 10, 1978, Rose obtained a job with Bechtel
Power Corporation in Port Gibson, Mississippi. Rose
worked at Bechtel until mid-April or so when he left this
job, which was approximately 500-600 miles from his
home. Rose testified that he quit the Bechtel job in Mis-
sissippi in order to obtain employment closer to his
home, and that while working at Bechtel, he went home
for approximately 2 weeks in an unsuccessful attempt to
obtain employment nearer to his family. It appears that
while Rose was en route to the job in Gary, he tele-
phoned home and was then informed that Respondent
had offered him reinstatement to the job at the Elrama
Power Station. Rose accepted Respondent's offer and
testified that there was only a 2- to 3-day lapse of time
between the date he quit Bechtel and the date he began
working at Elrama.
Counsel for Respondent argues that if Rose had re-
mained in the Pittsburgh area after his termination, he
could have found other work and his earnings in the first
quarter of 1977 would not be deficient; that as a result of
Rose's unwillingness to aggressively seek replacement
work, he earned only $207 during the first quarter of
1977, and maintains that he is entitled to over $5,400 in
back wages from Sargent Electric Company and that
from his testimony it is quite obvious that Rose was "to-
tally satisfied" with his receipt of unemployment com-
pensation and just "didn't bother" to make a serious
effort to find replacement work, and that this willful
withdrawal from the labor market disqualifies him from
backpay eligibility during the first quarter of 1977. Fur-
ther, maintains Respondent, Rose's testimony demon-
strates a history of voluntary resignation from various
jobs to meet his personal convenience, and illustrative of
this is the fact that Rose quit a job with Miller Electric
in mid-November 1977, and did not seek replacement
employment until January 1978.
Rose testified that following his discharge, he did not
contact Local 712 in Beaver, Pennsylvania (or Local 5 in
Pittsburgh), about possible job referrals because he was
there "once before" when unemployed and was not sent
out and as a result he did not go back during the period
here in question.
Respondent also contends that since discriminatee Sipe
was able to obtain a referral from Local 712 immediately
following his discharge, that such circumstance indicates
that Rose would also have been able to obtain a referral.
However, in this regard, it must first be kept in mind
that Sipe obtained a referral as a welder and Rose is a
journeyman wireman and does not do welding. In addi-
tion, Respondent offered no probative evidence to estab-
lish that if Rose had contacted Local 712 shortly after
January 10, 1977, that he would have been referred to a
job. Moreover, as has been pointed out, the established
basis or test in determining if an individual claimant has
made a reasonable search for employment is whether,
considering the record as a whole, the claimant diligent-
ly sought other employment during the backpay period.
Thus, a backpay claimant will ordinarily not be found to
have incurred a willful loss of earnings merely because
the search for interim employment was not made in each
and every quarter of the backpay period, nor is a claim-
ant, who has otherwise made reasonable efforts to seek
new work, required to repeat job applications which,
from past efforts, are known to be futile or worthless.
Cornwell Company, Inc., 171 NLRB 343, 343 (1968). It
should also be noted that the Board has recognized the
discriminatees need not search for or accept employment
which is "unreasonably" distant from their home. F. M.
Broadcasting Corporation d/b/a WHLI Radio, 233 NLRB
326 (1977).
In the final analysis, Thomas Rose, following his dis-
charge, immediately went to his home in Elkton, Mary-
land, signed for unemployment compensation and then
contacted, on a weekly basis, at least two or three local
unions for job referrals. As also pointed out, during the
course of the backpay period, Rose worked at numerous
jobs around the country and during several quarters of
the backpay period received interim earnings closely ap-
proximating his gross backpay for those particular quar-
ters, and although Rose voluntarily quit several jobs
during the backpay period the record establishes that in
each instance such quits did not constitute a willful loss
of earnings. Thus, Rose quit Bethlehem Steel to start a
higher paying job the next day for Blumenthal Kahn; he
quit the Daye Zimmerman job in New York based on
the information that the job was shutting down due to
inclement weather and immediately obtained a new job
several days later; he quit the Miller Electric job in Au-
gusta several days prior to being laid off and returned
home to search for employment; and Rose quit the Bech-
tel Power job in order to start a job closer to his home
several days later-and certainly the 2-week period in
March 1978, when Rose left the Bechtel job in Mississip-
pi in order to search for employment closer to his home
in Maryland, should not constitute a period of willful
loss of earnings, based on his overall diligence in seeking
work.
In summary, Respondent has failed to meet its burden
of proof that Rose incurred a willful loss of earnings
SARGENT ELECTRIC COMPANY 125
during the backpay period. This record clearly indicates
that Rose had substantial earnings throughout the back-
pay period, and that at no time did he remove himself
from the job market. There is no probative evidence to
the contrary.
IV. DENNIS GREENWOOD
Immediately upon his discharge by Respondent on
January 10, 1977, Greenwood went to the unemploy-
ment office and also contacted Local 5 for referral. More
specifically, this record reveals that during the period be-
tween the date of discharge until the date he began
working at L. K. Comstock in March 1977, Greenwood
reported continually to the unemployment office on nu-
merous occasions on January 11, 13, 18, and 25, on Feb-
ruary 1, 8, 15, and 22, and on March , 8, and 15. More-
over, Greenwood reported to the office of Local 712 to
sign the out-of-work book on January 24 and again on
February 1977, but on each occasion learned that there
was no work available. Greenwood also unsuccessfully
attempted to obtain a referral from Local 5 on January
10, as aforestated, and on several other occasions. In
February 1977 he even attempted to obtain reinstatement
from Respondent, but was unsuccessful in doing so, and
he also telephoned the International Union offices in
Washington, D.C., on one or two occasions in an at-
tempt to obtain referrals and was also in regular contact
with his own local-Local 126.3
Greenwood testified that by the end of March 1977,
he had obtained employment at L. K. Comstock and
worked there until the end of June or the beginning of
July 1977, and his earnings there were in excess of the
earnings he would have received from Respondent.
After being laid off from L. K. Comstock, Greenwood
applied for unemployment compensation and made calls
to Local 712 and to Local 126. It appears that Green-
wood did not work during the months of July and
August 1977, but Greenwood obtained a job at Penn
Line Service on or about September 19, 1977, and
worked at that job until being laid off in the beginning of
November 1977. He then obtained a job for New River
Electric Corp., in Moundsville, West Virginia, and
worked there for approximately 6 weeks (until early De-
cember) before quitting shortly before the job ended.
Then, in an effort to continue working, and pursuant to a
referral from the International, Greenwood traveled to
northern Minnesota in January 1978 to work for Midland
Constructors, Inc., but because of adverse weather con-
ditions he was only able to work 1 day out of the 6 days
he stayed in Minnesota. Consequently, in view of the ex-
pectations that the job would not start back up until the
spring, Greenwood returned to his home, but only after
bad roads delayed his arrival there. Upon his return to
Pennsylvania, he signed for unemployment compensation
and made several trips to Local 712 in February and
March 1978 to sign the out-of-workbook. Greenwood
obtained a job at Henkels & McCoy in April 1978 and it
appears remained there until receiving an offer of rein-
statement from Respondent on April 26.
3 Greenwood's classification with Local 126 is that of a journeyman
lineman.
Counsel for Respondent points out that Greenwood
admittedly contacted the unemployment office on at least
four occasions before he visited the office of Local 712
to seek replacement work; that he did not contact Local
712 until 14 days after he had been fired; and by the time
Greenwood contacted Local 712 in seeking other em-
ployment, Robert Sipe had been employed for almost 10
working days. Moreover, argues Respondent, as a result
of Greenwood's failure to meet his burden of attempting
to find other work, he earned only S580 during the first
quarter of 1977, and Greenwood's record of seeking
other work only when convenient and absolutely neces-
sary demonstrates his willful loss of earnings. Respond-
ent further maintains that Greenwood's trip to Minnesota
was not work related and that he withdrew from the
labor market during this period of time.
Turning first to the contention that Greenwood did
not seek job referrals from Local 712 immediately fol-
lowing his discharge and Respondent's attempt to cou-
pled that with the fact that discriminatee Sipe was re-
ferred to a job by Local 712 shortly after his January 10
termination. However, in this regard it should be noted
that Sipe was referred to his job as a welder and Green-
wood is a journeyman lineman and cannot weld. More-
over, Respondent presented no probative evidence to es-
tablish that had Greenwood reported to Local 712 on or
before mid-January that he would have been referred to
a job in his classification, and especially so when keeping
in mind that a discriminatee need not instantly seek em-
ployment, and that a claimant will not necessarily be
found to have incurred a willful loss of earnings merely
because a continuous search for work was not made in
each and every quarter of the backpay period, Sioux
Falls Stock Yards, supra; Cornwall Company, Inc., supra.
Also noting the efforts Greenwood did make to obtain
employment during the first quarter of 19774 and the
substantial periods of interim employment he had there-
after. I am in agreement that Respondent has failed to
meet its burden of proof showing that Greenwood in-
curred a willful loss of earnings in the first quarter of
1977. Moreover, this record clearly establishes that
Greenwood did work for a number of enterprises start-
ing in March 1977, and with several jobs thereafter last-
ing substantial periods of time, as aforestated, together
with the fact that he also traveled to northern Minnesota
in the middle of the winter in an effort to work, and
there is no evidence that in doing so he removed himself
from the labor market. Moreover, Greenwood remained
in regular contact with various locals and the Interna-
tional during the periods of unemployment here in ques-
tion. On the record as a whole, Respondent has failed to
show that Greenwood did not exercise reasonable dili-
gence in searching for employment during the backpay
period.
I While the registration with the employment office is not conclusive
evidence of a reasonable search for employment it is. nevertheless, evi-
dence that the claimant did, in fact, seek work. The .adison Courier. Inc.,
202 NLRB 808, 813 (1973).
SARGENT LECTRIC COMPANY
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126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
On the basis of the foregoing findings, I conclude that
the claimants named herein are entitled to payment by
Respondent of the amount set opposite his name, plus in-
terest accrued thereon,5 minus appropriate social security
and income tax deductions, as required by Federal, state,
and local laws:
And also payment to the Local Employees Benefit
Board, on behalf of the discriminatees, of the amount set
opposite his name, plus interest on the basis heretofore
indicated:
Kenneth Bonds
Dennis H.
Greenwood
Thomas Rose
Robert Sipe6
$208.21
537.82
353.35
221.65 e
Kenneth Bonds
Dennis H.
Greenwood
Thomas Rose
Robert Sipe
$10,006.50
21,410.63
17,371.36
8,971.05
s In the manner prescribed in F W. Woolworth Company, 90 NLRB
289 (1950), and Florida Steel Corporation, 231 NLRB 651 (1977), and,
generally, Isis Plumbing & Heating Co., 138 NLRB 716 (1962).
6 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the find-
ings, conclusions, 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 deemed waived for all purposes.